City Council to Law Dept.: Help on hiring bill

In the hours before the Baltimore City Council moved forward on a proposed local hiring mandate, members of the council expressed their frustration with the city’s Law Department over its continued insistence that the bill is unconstitutional.

“I thought the Law Department did a poor job here,” Councilman James B. Kraft said Monday. “Part of their job is to help us write legislation. They should have said: ‘Here is what has been done in other cities. Here’s how we should tweak this to survive challenges.’ Instead, they just said they don’t like it. I thought they could have shown a little more cooperation.”

Councilman Carl Stokes, chair of the city’s Taxation, Finance and Economic Development Committee, which allowed the proposed law to proceed last week, echoed these sentiments.

“The solicitor should not be throwing his hands up,” Stokes said. “The president and most members of the council think we can achieve the intent of the bill. We think it’s correct, and similar legislation has been enacted in the country. Any bill can be amendable.”

City Solicitor George Nilson, however, said the criticism was “totally absurd.”

“We spelled out eight to 10 different ways that the council could achieve its goal besides passing this law,” Nilson said Monday. “It’s always possible to pass laws that aren’t challenged. That doesn’t mean it’s constitutional.”

In a memo released earlier this month, the city solicitor’s office suggested “focusing the hiring preference on income level rather than residency in a way that satisfied the Equal Protection Clause of the United States Constitution” and “focusing the preference on those who are unemployed or who have graduated from job training programs in a way that satisfied the Equal Protection Clause of the United States Constitution.”

In every single case in which a plaintiff has raised a Privileges and Immunities challenge in court to similar laws, Nilson said, the law has been overturned.

Cities like Quincy, Mass.; Worcester, Mass.; and Jersey City, N.J., have put forward local hiring laws only to have them struck down by federal judges who said the law violated the Constitution.

However, Councilwoman Sharon Green Middleton noted Monday that other cities, including Washington and San Francisco, have a similar law in place.

“So I think we are doing the right thing,” Middleton said. “We can always add amendments or make changes to address concerns.”

The bill, which was introduced by Council President Bernard C. “Jack” Young in November, must be reviewed for final passage at the council meeting on June 3 before it goes before Mayor Stephanie Rawlings-Blake for approval.

Ian T. Brennan, a spokesman for the mayor, did not respond to a request for comment Monday. The mayor’s office, however, has previously stated the mayor “defers to the Law Department on the serious legal issues related to the proposed bill.”

Nilson has said the goals of the proposed bill, under which any person or entity who “has a contract with the city for more than $300,000” or “will benefit from more than $5 million in assistance for a city subsidized project” would have to ensure that at least 51 percent of the jobs required for a project be filled by residents of the city, could be accomplished “on an administrative basis” rather than through legislation.

In order for the preference to survive a legal challenge that states the law violates the Constitution’s Privileges and Immunities Clause of Article IV, Nilson’s office said, the city must prove that nonresidents are the cause of local unemployment.

“[This is] a test that no city to date has passed,” Nilson said in the memo issued earlier this month. “Since the goal of lessening unemployment can be achieved without discriminating against nonresidents, courts strike down local preference laws almost uniformly.”

The only way for the proposed law to survive a constitutional challenge, the memo stated, would be for the city to commission a study to provide statistical proof that city residents who are unemployed are jobless “because and only because” nonresidents are filling available jobs.

“The study must rule out other factors of unemployment like lack of education and lack of job skills,” the city solicitor said in his memo. “Only then would a court find that the law passes the constitutional test. This study would be expensive, with little likelihood of success.”

Young, however, remained optimistic that the city could survive a legal challenge.

“Baltimore city should not be left behind,” he said at a work session last week. “We have to be bold. We have to be creative. Don’t tell me we can’t do it.”

Councilwoman Mary Pat Clarke said the proposed law is “fair, reasonable and much needed” and that if the law is challenged, “we can do tweaking then.”

“But when you have the highest unemployment rate in the state, you need to take action, and it needs to be clear so that the people can understand that they have rights here,” she said.