Local Public Agencies & Title VI Nondiscrimination Responsibilities

1. U. S. Department of Transportation Federal Highway Administration Local Public Agencies & Title VI Nondiscrimination Responsibilities Southern Transportation Civil Rights Executive Council (STCREC) Training Symposium Atlanta, Georgia June 12, 2012 Mohamed Sulaiman Dumbuya Resource Center Civil Rights Technical Service Team mohamed.dumbuya@dot.gov

2. Session Outcomes • Briefly Discuss the Increased Focus on LPA Projects • Recognize Delegation of Federal-aid Project Administration and Management to LPAs • Define FHWA’s Nondiscrimination Program • Identify LPA Title VI Nondiscrimination Responsibilities

3. Background • ISTEA (PL 102-240, 1991) • SAFETEA–LU (PL 109-59, 2006) • Provided for State DOTs to expand LPA programs to increase funding categories • Calls for establishment of oversight system to monitor the effective and efficient use of funds and be responsive to all areas relating to financial integrity and project delivery

4. Background Continued • 23 U.S.C. § 106(g)(4)(A) [as amended by SAFETEA-LU] RESPONSIBILITY OF THE STATES • The States shall be responsible for determining that subrecipients of Federal funds under this title have- • (i) adequate project delivery systems for projects approved under this section; and • (ii) sufficient accounting controls to properly manage such Federal funds.

5. FHWA National Program Review Team • Revived in 2006 • I “Assess the administration, oversight and stewardship of local public agency Federal-aid projects… • II. Identify areas for improvement that will ensure the overall quality and effectiveness of local project activities along with any needed changes in the oversight requirements.”

6. FHWA National Review of Federal-aid Projects Administered by LPAs • Findings • The administration of Federal-aid projects by LPAs appeared to lack a systematic or comprehensive oversight approach. • Current oversight activities, as a whole, may be inconsistent from State to State; and • Current oversight activities may be ineffective for ensuring that Federal-aid requirements are met on LPA-administered projects.

7. FHWA 2007 & 2008 Division Reviews • Most common findings • Lack of knowledge on the part of LPAs of the processes and procedures for establishing and administering federal-aid projects, • Lack of knowledge of federal and state requirements that need to be met in order to secure and maintain federal funding.

8. FHWA Conclusion & Response • Conclusion • Response • LPA-administered projects is a High Risk area that requires particular attention • FHWA should get States to fulfill their responsibilities with respect to local projects • States need a systematic approach to ensure adequate administration of local projects (quality control) and that FHWA should ensure that States fulfill their responsibilities (quality assurance) • FHWA needs to assist the States in developing mechanisms to improve stewardship and oversight of local projects • Developing Local Project Oversight Program requirements consistent with recommendations

9. State Transportation Agencies & Federal-aid Highway Funds • State Transportation Agencies (STAs) are the principal recipients of Federal-aid Highway Funds • STAs are responsible for construction of all Federal-aid projects • “Any State desiring to avail itself of the provisions of this title shall have a State transportation department which shall have adequate powers, and be suitably equipped and organized to discharge to the satisfaction of the Secretary the duties required by this title.” (23 USC 302(a)) • “The ST[A] has responsibility for the construction of all Federal-aid projects, and is not relieved of such responsibility by authorizing performance of the work by a local public agency or other Federal agency.” (23 CFR 635.105(a))

10. delegation of Project management Activities • STAs may delegate Federal-aid project administration and management to subrecipients including Local Public Agencies (LPAs) • “The State highway department may utilize, under its supervision, the services of well-qualified and suitably equipped engineering organizations of other governmental entities for making surveys, preparing plans, specifications and estimates, and for supervising the construction of any projects.” (23 CFR 1.11(b))

11. Who are Local Public agencies? • Local Public Agency • LPA SOP Template • “any city, county, township, municipality, or other political subdivision that may be empowered to cooperate with the State transportation department in highway matters” (23 CFR 635.102) • Any organization, other than the State Transportation Agency, with administrative or functional responsibilities which are directly or indirectly affiliated with a governmental body of any nation, State, or local jurisdiction

12. LPAs must abide by all Federal Requirements • LPAs are required to carry out their Federal-aid project actions in accordance with all applicable Federal requirements • “When the work is to be performed under a contract awarded by a local public agency, all Federal requirements including those prescribed in this subpart shall be met.” (23 CFR 635.105(c)(2))

13. Nondiscrimination in theFederal-aid Program • Nondiscrimination denotes absence of disparate treatment or impact in Federally-assisted programs and activities • Nondiscrimination in the Federal-aid program is governed by: • Title VI of the Civil Rights Act of 1964 • The 1987 Restoration Act and • Other Nondiscrimination authorities

14. THE 1964 CIVIL RIGHTS ACT- Titles • Title I - Voting Rights • Title II - Public Accommodation • Title III - Desegregation of Public Facilities • Title IV - Desegregation of Public Education • Title V - Commission on Civil Rights • Title VI - Nondiscrimination in Federally Assisted Programs & Activities • Title VII - Equal Employment Opportunity • Title VIII - Registration and Voting Statistics • Title IX - Intervention & Procedure after Removal in Civil Rights Cases • Title X - Establishment of Community Relations Service • Title XI - Miscellaneous

15. Title VI of the Civil Rights Act of 1964 • Federal law that prohibits discrimination on the basis of race, color, or national origin in Federal programs and activities; • The law specifically states: “No person in the United States shall on the ground of race, color, or national origin be excluded from participation in, denied the benefits of, or subjected to discrimination under any program or activityreceiving Federal financial assistance.” (42 USC 2000d)

16. Civil Rights Restoration Act of 1987 • Direct response to the 1984 Supreme Court decision in the Grove City College vs. Bell case(465 U.S. 555) • Restored the original intent of Title VI to include all programs and activities of Federal-aid recipients and contractors whether federally funded or not • Federal agency nondiscrimination requirements limited to just those areas of the recipient’s operation that directly benefited from Federal assistance

17. What is FHWA’s Title VINondiscrimination Program? • Not limited to prohibitions of Title VI of the Civil Rights Act of 1964 • Includes other civil rights provisions of Federal statutes & related authorities that prohibit discrimination in programs & activities receiving Federal financial assistance (23 CFR 200.5(p)) • Other Nondiscrimination & Cross-cutting Authorities include: • The 1970 Uniform Act (42 USC 4601) • Section 504 of the 1973 Rehabilitation Act (29 USC 790) • The 1973 Federal-aid Highway Act (23 USC 324) • The 1975 Age Discrimination Act (42 USC 6101) • Executive Order 12898 on Environmental Justice (EJ) • Executive Order 13166 on Limited English Proficiency (LEP)

18. Title VI Law VersusTitle VI Nondiscrimination Program

19. LPA Title VI Nondiscrimination ResponsibilitiesSigned Assurances • 1) Signed Assurances • “every [award of, or] application for Federal financial assistance shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the [award or] application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed…” (49 CFR 21.7)

23. APPENDIX B A. The following clauses shall he included in any and all deeds effecting or recording the transfer of real property, structures or improvements thereon, or interest therein from the United States. (GRANTING CLAUSE) NOW, THEREFORE, the Department of Transportation, as authorized by law, and upon the condition that the (Name of Recipient) will accept title to the lands and maintain the project constructed thereon, in accordance with (Name of Appropriate Legislative Authority), the Regulations for the Administration of (Name of Appropriate Program) and the policies and procedures prescribed by (Name of Appropriate Administration) of the Department of Transportation and, also in accordance with and in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation (hereinafter referred to as the Regulations) pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. .2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the (Name of Recipient) all the right, title and interest of the Department of Transportation in and to said lands described in Exhibit "A" attached hereto and made a part hereof. (HABENDUM CLAUSE) TO HAVE AND TO HOLD said lands and interests therein unto (Name of Recipient) and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and shall be binding on the (Name of Recipient), its successors and assigns. The (Name of Recipient), in consideration or the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person shall on the grounds of race, color, or national origin, he excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on over or under such lands hereby conveyed [and)* (2) that the (Name of Recipient) shall use the lands and interests in lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of -the Secretary, Part 21, Nondiscrimination in federally-assisted programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may he amended and (3) that in the event of breach of any of the above-mentioned nondiscrimination conditions, the Department shall have a right to re-enter said lands and facilities on said land, and the above described land and facilities shall thereon revert to and vest in and become the absolute property of the Department of Transportation and its assigns as such interest existed prior to this instruction.*

24. APPENDIX C The following clauses shall be included in all deeds, licenses, leases, permits, or similar instruments entered into by the (Name of Recipient) pursuant to the provisions of Assurance 7(a). The (grantee, licensee, lessee, permitee, etc., as appropriate) for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add "as a covenant running with the land"] that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this (deed, license, lease, permit, etc.) for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permitee, etc.) shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. [Include in licenses, leases, permits, etc.]* That in the event of breach of any of the above nondiscrimination covenants, (Name of Recipient) shall have the right to terminate the [license, lease, permit, etc.] and to re-enter and repossess said land and the facilities thereon, and hold the same as if said [licenses, lease, permit, etc.] had never been made or issued. [Include in deed.]* That in the event of breach of any of the above nondiscrimination covenants, (Name of Recipient) shall have the right to re-enter said lands and facilities thereon, and the above described lands and facilities shall thereupon revert to and vest in and become the absolute property of (Name of Recipient) and its assigns. The following shall be included in all deeds, licenses, leases, permits, or similar agreements entered into by (Name of Recipient) pursuant to the provisions of Assurance 7(b). The (grantee, licensee, lessee, permitee, etc., as appropriate) for himself, his personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds, and leases add "as a covenant running with the land") that (1) no person on the ground of race, color. or national origin shall be excluded from participation in, denied the benefits of, or he otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over or under such land and the furnishing of services thereon, no person on the ground of, race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permitee, etc.) shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations. Department of Transportation, Subtitle A, Office of the Secretary. Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964), and as said Regulations may be amended. [Include in licenses, leases, permits, etc.]* That in the event of breach of any of the above nondiscrimination covenants, (Name of Recipient) shall have the right to terminate the [license, lease, permit, etc.] and to re-enter and repossess said land and the facilities thereon, and hold the same as if said [license, lease, permit, etc.] had never been made or issued. [Include in deeds]* That in the event of breach of any of the above nondiscrimination covenants, (Name of Recipient) shall have the right to re-enter said land and facilities thereon, and the above described lands and facilities shall thereupon revert to and vest in and become the absolute property of (Name of Recipient) and its assigns.

25. Signed Assurances Contd. • Failure or refusal to furnish required assurance is grounds for the termination, refusal to grant or continue Federal financial assistance • “If an applicant fails or refuses to furnish an assurance required under § 21.7 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to this section, Federal financial assistance may be refused…” (49 CFR 21.13(b)&(c))

26. Methods of administration • 2) Methods of Administration • “The Recipientshall provide for such methods of administration …to give reasonable guarantee that it, other recipients, sub-grantees, contractors, subcontractors, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Act, the Regulations and this assurance” (USDOT Assurance #9); see also 49 CFR 21.7(b).

27. Methods of administration Contd. • Minimum Requirements • Public outreach & education plan/procedures • Training program for staff and others • Procedures for processing complaints • Program to assess (review) and periodically report on status of Title VI compliance • Detailed plans for bringing discriminatory programs into compliance • Data collection procedures and methods (see Compliance Officer’s Manual, 1966, p. 6-7) • MOAs are contained in a Title VI Nondiscrimination Implementation Plan

28. Implementation Plan • 3) Title VI Nondiscrimination Implementation Plan • Title VI Nondiscrimination Statement of Policy • Express commitment to Title VI Nondiscrimination obligation • Policy signed by Chief Administrative Officer • Policy statement circulated throughout organization & public • Organization & Structure • Depict the MARS of the Nondiscrimination Program • Designate Title VI Coordinator, Manager or Specialist • Outline role(s), responsibilities and authority

29. Implementation Plan Contd. • Procedures for Assuring Compliance and Enforcement • Outreach, training, reviews, data collection, complaint process and enforcement • Accomplishment Report • Accomplishments made since last report/update • Title VI Nondiscrimination issues identified and addressed • Reviews conducted • Summary and status of complaints filed

30. Implementation Plan Contd. • Annual Work Plan • Outline Title VI Nondiscrimination monitoring and review activities planned for the coming plan year • State by whom each activity will be accomplished and target date for completion • Required Title VI Nondiscrimination Contract Provisions • Procedures to ensure Title VI Nondiscrimination provisions are included in all Federally-funded contracts regardless of tier (Appendix A of USDOT Order 1050.2) • Nondiscrimination in selection and retention of subcontractors; procurement of materials and leases of equipments • Nondiscrimination in notification of Title VI obligation to each potential subcontractor or supplier • Nondiscrimination in employment practices • When employment is primary objective of Federal assistance • Discrimination in employment results in discrimination in services provided by Federally-assisted programs

31. Implementation Plan Contd. • Disadvantaged Business Enterprises (DBE) • Participation by Small Business Enterprises • Procedures to ensure that DBEs are afforded opportunity to participate in Federal-aid Highway programs and activities • “It is declared to be in the national interest to encourage and develop the actual and potential capacity of small business and to utilize this important segment of our economy to the fullest practicable extent in construction of the Federal-aid highway systems, including the Interstate System. In order to carry out that intent and encourage full and free competition, the Secretary should assist, insofar as feasible, small business enterprises in obtaining contracts in connection with the prosecution of the highway program.” (23 USC § 304) & (49 CFR 26, effective 2/2011)

32. Nondiscrimination agreements • Abbreviated Title VI Nondiscrimination Plans for LPAs serving a population less than 100,000 • Key Elements include: • Assurances • Implementing Procedures • Complaint Procedures • Sanctions • Signatures

33. Is the LPA Contractor or Consultant required to have a Title VI Nondiscrimination Implementation Plan? • First, you need to determine if the party is a Recipient or a Contractor/Consultant/Vendor • If a Recipient, they are required to have an Implementation Plan (Method of Administration) • If a Contractor, etc. they are not required to have an IP

34. Who is a [Sub]recipient? • Recipient • An entity or person to whom Federal assistance is directly extended and thereby subjects them to Title VI compliance obligations (23 CFR 200.5(n)) • Subrecipient • An entity or person to whom Federal assistance is indirectly extended either through a recipient or another subrecipient and thereby subjects them to Title VI compliance obligations (23 CFR 200.5(n))

35. Who is a Contractor? • A Contractor/Subcontractor • “..any person, corporation, partnership, or unincorporated association that holds a FHWA direct or federally assisted construction contract or subcontract regardless of tier” (23 CFR 230.407 (i)) • “One who participates, through a contract or subcontract (at any tier), in a DOT-assisted highway, transit, or airport” (49 CFR 26.5)

36. What is the Distinction between a Recipient & a Contractor?

37. Key Points • SAFETEA –LU created the impetus for increased focus on LPA project delivery • LPAs must carry out Federal-aid Highway projects in accordance with all applicable Federal requirements • LPAs must have Signed Assurances (USDOT 1050.2) • They are binding agreements • Failure or refusal to furnish required signed assurances may result in refusal of Federal financial assistance • Methods of Administration & Implementation Plans • Nondiscrimination Agreements (Population < 100,000) • Ceteris paribus, Only Recipients, Not Contractors, are required to have T6NIPs

38. Concerns?? Questions ?? Comments?? Suggestions ??

39. Resources • Federal-Aid Program Administration LPA Website • http://www.fhwa.dot.gov/federalaid/lpa/index.cfm • Sample Title VI/Nondiscrimination Plan and Nondiscrimination Agreement (WSDoT) http://www.wsdot.wa.gov/publications/manuals/fulltext/M36-63/Lag28.pdf • DOJ Title VI Manual • http://www.justice.gov/crt/about/cor/coord/vimanual.php

40. THE END THANK YOU!!