Thursday, October 1, 2015

Megan Barry sees the light and flip flops on "Local Hire."

Today Mayor Megan Barry committed the first flip flop of her term as mayor.  I don't know if she saw the light after being elected or was just pandering while a candidate and knew better all along, but candidate Barry supported the local hire amendment to the Metro Charter and Mayor Barry says we must wait before implementing it and that it may cause some problems. In a letter to the Metro Council she said that after talks with union leaders and the business community and legal counsel that she reached a conclusion that the new procedure might hinder Metro's ability to move forward with construction projects and thus be "counterproductive towards the intended goals of putting more Davidson County residents to work." (link)

Really?  It was convenient for her that she waited until after the election to reach that conclusion.  The Chamber of Commerce opposed the amendment and could have told her that.  The Tennessean editorialized against it. Many people look at Barry's election victory as third term for Karl Dean and a continuation of his policies, but  Karl Dean opposed the local hire amendment. The legal and the economic problems with Amendment 3 were well known before the election.

Barry is quoted in the Tennessean as saying: "Like the majority of voters in the Aug. 6 election, I supported Amendment 3 because I believe strongly in workforce development and expanding access to good-paying jobs. My commitment to these principles has not (wavered) and I believe that we can find a path forward that satisfies our desire to promote economic prosperity for working families while also being fiscally responsible and continuing to move forward with important Metro projects. This delay in implementation will give us all a chance to research best practices in other cities and for my office to meet with members of the Metro Council, the business community, labor leaders and other stakeholders to develop guidelines that will meet our goals of training and hiring more Davidson County workers for jobs funded with their tax dollars."

Amendment 3 was not simply setting goals of expanding access to good paying jobs for local people or stating principles or expressing  desires; it was very specific. Here is the wording as it appeared on the August 6th ballot:

That is pretty specific.  Informed people knew this was a bad charter amendment when it was proposed. It is not a mere suggestion; it is the law.  Barry may get by with a delay of implementing the amendment because the amendment does not state the date it is to takeeffect, but a delay can not change the law.  It really does not matter what "best practices" show us. Barry should have looked at best practices before advocating for passage. A leader of the city should have done her due diligence before the election.

So what might happen if the law is ignored and some weak provision is put into place stating that companies must make a reasonable effort to hire local?  Government can get by without following the law for a long time until someone challenges governments failure to follow the law. Simply ignoring the law, I assume, would put a cloud over every contract bid and the uncertainty itself would drive up construction cost and then eventually someone would sue metro for not following the law and they would likely win.

Actually, there is no way to honestly follow this law.  There are not qualified construction people residing in Nashville to do the work we need done now, even without the local hire amendment. This is from a recent Tennessean article: 
Construction companies face worker shortage

Nashville’s recent development boom has sparked worries among construction industry leaders about a looming worker shortage.

With teens being pushed toward college and older workers entering retirement, many construction companies, such as Nashville’s Shaub Construction Co., are finding that there are not enough skilled workers to fill the positions available. (link)
Candidate Barry should have been aware of this. The only way a company can meet the requirements of the new charter provision is to simply hire a bunch of bodies to sit around and watch other people work.  There may be a lot of unemployed people in Nashville, but that does not mean they have skills or would be an asset to an employer. To hire enough unneeded people to fill the 40% local quota so you can hire the people you really need will drastically increase the cost of all Metro projects.

In addition to the law being costly, it is probably illegal.  It probably violates the privileges and immuniites provision of the constitution found in Amendment XIV, Section 1 of the Constitution which says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."  While this would be Metro doing it, not the State, Metro can not do anything that the State cannot do.  When the Constitution says "no sate" that applies to cities which get there authority from the State. So, while the law would allow Metro to discriminate against someone someone from Mt. Juliet or Watertown or Fairview without violating the U. S. Constitution, we could not discriminate against someone from Ohio or Michigan or Indiana. Also, even if it does not violate the U. S. Constitution, it very well may violate the Tennessee constitution and prohibit us from discriminating against that worker who lives in Mt. Juliet, Watertown or Fairview. (For more on the legal issues involved, follow this link.)

So, either we ignore the recently passed charter amendment and live with the uncertainty that we may be sued and have awarded projects stopped, or we follow the law and see all Metro projects cost considerable more than they should and live with the threat of a lawsuit challenging the law as a violation of the U.S. and Tennessee constitutions.  The other alternative is for the State to save us from out stupidity and nullify the law.  That is what I am hoping happens.  I bet secretly Megan Barry is also.

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