Shelby County commissioners vote Monday, Jan. 22, on a first step toward amending the minority and locally owned business program they approved more than a year ago with great fanfare.

The first step is hiring attorney Ricky E. Wilkins to review proposed fixes that are to follow. Wilkins would be paid up to $50,000 from the commission’s contingency fund.

“This has legal written all over it. We can’t be stuck in the mud here. Either we are going to make this move with consulting assistance or we are going to kill this program in the court of public opinion and probably a court of law unless we make these changes."

Van Turner,
Shelby County Commissioner

“This has legal written all over it. We can’t be stuck in the mud here,” said commissioner Van Turner in committee sessions last week. “Either we are going to make this move with consulting assistance or we are going to kill this program in the court of public opinion and probably a court of law unless we make these changes. So that’s why it’s important to go ahead and move this thing forward.”

Wilkins worked with the consulting firm that did a disparity study on county government contracts. The percentage goals for awarding contracts to minority and locally owned businesses that the county approved in December 2016 are based on that study. As a result, Wilkins could quickly say whether any specific changes depart from the findings of the disparity study, making them vulnerable to a legal challenge, or whether they are consistent with the study’s findings.

The commission meets at 3 p.m. at the Vasco Smith Administration Building, 160 N. Main St. Follow the meeting @tdnpols, www.twitter.com/tdnpols, for live coverage.

Recommendations to come later will likely include a formal statement that in cases where the contract is a choice between a minority business and a locally owned business, the preference goes to the minority business.

The commission’s contract diversity officer, Shep Wilbun, outlined other possible fixes last week.

“The idea is if we go to a revised LOSB (locally owned small business) process that instead of the bidder being automatically kicked out for being nonresponsive there would be a percentage of goal met which would still allow them to be considered,” Wilbun said. “But they would then be graded on a scale of how well they met the goal for that project, as opposed to automatically kicking them out.”

There could also be incremental percentage points and thus preferences for companies that meet some but not all of the standards.

“Some communities offer what is called a private-sector construction incentive,” Wilbun said. “If you are doing business with MWBEs (minority and women business enterprises) in the private sector, you get a credit toward your bid to do work with the government. We think that’s worth looking at.”

He also suggested raising the cap on the gross receipts of a business. Minority and locally owned businesses that go over the cap no longer qualify toward the percentage goals because of their success.

“It’s been said that if we had higher limits there would be more opportunity to participate,” Wilbun told commissioners. “Our approach is the introduction of a new mentor/protégé program which allows for those not qualified as an LOSB to still get the advantages an LOSB would get by mentoring LOSBs.”

Two weeks ago, the commission delayed a vote on hiring Wilkins until it had a better idea of what the changes to the ordinance approved in December 2016 would be.

“We are going to dig into this,” Turner said last week. “I’m here for the work. … But we’ve got to get this ordinance done correctly.”

The commission also votes Monday on a resolution that would declare a six-month moratorium on permits for new construction material landfills in unincorporated Shelby County. The moratorium would be a companion to a similar moratorium approved earlier this month by the Memphis City Council within the city limits.

It followed the council’s vote to reject plans for an expansion of a Memphis Wrecking Co. construction materials landfill in Frayser.

Anticipating the council rejection, Memphis Wrecking began looking at alternative sites zoned for heavy industrial in Raleigh, Hickory Hill and Cordova that wouldn’t require the special-use permit the Frayser site required. At those sites, any owner and applicant would need no permission to put a new construction landfill there.

“I could simply buy the land and do what I want to do because it is zoned that way,” said commissioner Eddie Jones, who is proposing the county moratorium. “It’s just bringing parity to the zoning of heavy industrial. It’s not really punishing anybody. It’s saying, ‘Wait a minute.’”

In the six-month period, the council or commission could vote to make exceptions. Both bodies would get a look at the areas zoned heavy industrial that could be sites for new construction landfills and look at their proximity to residential areas.

The Frayser landfill expansion would have pushed the landfill area east and closer to Whitney Achievement School.

County Commission chairwoman Heidi Shafer voted for the moratorium in committee, but with reservations.

“Nobody wants a landfill in their area but we need landfills. … I’m trying to hit that good balance,” she said. “When the economy is just starting to pick up, I don’t want anything to signal that it is unfriendly. I don’t want to put in any more layers.”