DBE, ACDBE & Title IV Issues Yovannie R. Storms, Esq. Marchena and Graham, P.A.

DBE, ACDBE& Title IV Issues

Yovannie R. Storms, Esq.

Marchena and Graham, P.A.

Presentation Outline

I. Title VI – what it means for airports and compliance

II. Goal Setting, DBE and ACDBE

III. Long Term and Exclusive Contract Analysis

IV. Questions on DBE/ACDBE Regulations or Compliance

Marchena and Graham, P.A. * www.mgfirm.com * 407.658.8566

I. Title VI – What is Title VI?

Title VI requires the Secretary of Transportation to take affirmative action to ensure that an individual is not excluded because of race, creed, color, national origin, or sex from participating in an activity carried out with money received under a grant from the Department of Transportation.


Title VI

• Title VI actually refers to Title VI of the Civil Rights Act of 1964.

• 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs implements Title VI of the Civil Rights Act of 1964 to Transportation/Airports.


Title VI – What it states:

• “No persons in the United States shall, on the ground of race, color or national origin* be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal Financial assistance.

*49 USC §47123, Nondiscrimination, extends Title VI protected bases to include sex and creed for Federal Aviation Administration recipients.


Title VI – What does this mean for Airports and Administration?

Generally:

• Treat everyone equally.

• Do not discriminate against anyone.

• Do what I can to assist the airport sponsor to voluntarily comply with Title VI.

• Know how to handle a discrimination complaint if one is received.


Title VI – Why?

• DOT guidance states “transportation is considered an essential service to participation in modern society.”

• Airports are required to ensure nondiscrimination for air passengers, tenants, Limited English Proficiency (“LEP”) individuals and others affected by such things as environmental justice.

• It is the law.

• It is the right thing to do.


Title VI – Examples of Required Actions?

Required Actions:

• Forward to the FAA all Title VI complaints of discrimination, including resolution efforts within 15 days of receipt.

• Display the nondiscrimination poster at various locations.

• Update all contracts to include the mandatory Federal nondiscrimination contract clause.

• Provide language assistance to the Limited English Proficiency (“LEP”).

• Address LEP population in the Airport Emergency Evacuation Plan.


Title VI – Examples of Recommended Best Practices

Recommended Best Procedures

. Should have a Title VI Policy.

. Should name official “Title VI Coordinator.”

. Should post the Discrimination Complaint Procedures on Airport website for customers to utilize.

. Should place Non-Discrimination Poster in additional high traffic areas – before and after security.


Title VI – Examples of Recommended Best Practices

Continued Recommended Best Practices:

. Airport should provide training to Airport tenants on Title VI obligations annually and to new tenants at orientation.

.Airport should provide annual training to Airport tenants on LEP Services that are available free of charge.


Title VI – Contents of a Title VI Policy

.Policy Statement

.Discussion on Airport Administration including name and responsibilities of Title VI Coordinator.

.Complaint Procedures including referral and cooperation with FAA and investigation internal procedures.

. A statement on monitoring.

. May include the LEP Policy.


Title VI – Contents of the LEP Policy

. Should include community statistics which identifies which languages exist for Limited English Proficiency individually within your geographic location.

. The Policy should detail which written notices shall be translated in the various languages.

. The Policy should detail which languages should be represented at the Airport.

. Any other methods used by your Airport to assist LEP individuals.


Title VI – How to Perform Required Community Statistics

. U.S. Census Bureau Website.

. Public Health Department.

. State Demographics.

. Local School Board Statistics.


Title VI – Complaint Procedure

. Title VI Coordinator received complaints.

. A copy of the complaint, as well as, description of the resolution efforts must be forwarded to the FAA within 15 days.

. The Title VI Coordinator maintains a record of the complaint, conducts a preliminary review, attempts resolution and forwards complaint to FAA.

. The Airport may require complaints to be in writing.

. The Title VI Coordinator should issue a written decision.


Title VI – Internal Investigation Procedures

. Cooperation with the FAA, which includes not interfering with FAA investigation and sharing information.

. Prompt investigation.

. Prompt resolution.

. Taking action and implementing procedures to reduce changes of similar discrimination in the future.

. Intimidation and retaliation prohibited.

. Contact the complainant.

. File investigation report.


Title VI – Internal Investigation Procedures

. Consult with legal counsel.

. Forward report and response to complainant.

. Detail appeal procedure and basis and final administrative action.

. Copy the FAA.


Title VI – Limited English Proficiency – What is it?

• Title VI and its regulations require recipients to take reasonable steps to ensure ‘meaningful’ access to the information and services they provide.”

• U.S. Department of Transportation has issued Guidance on LEP in Federal Register, Volume 70, No. 239, Policy Guidance Concerning Recipients’ Responsibilities to Limited English Proficient (LEP) Persons.

• Federal Register 50123


Title VI – LEP – Four factor analysis

Four Factor Analysis:

1. Number of LEP persons at your Airport – Airport is required to know.

2. Frequency of contact with Services.

3. Importance of the Service provided by the Airport – if a delay or denial of access to a particular Service could have serious health or life threatening implication, it is probably “important.”

4. Resources available to the Airport and cost.


Title VI – LEP – What is it?

• Limited English Proficiency Individual is a person who does not speak English as their primary language and has limited ability to read, write, or understand English.

• To the best of your ability, know of individuals in your organization can provide interpretation on translations services.

• Provide notice of Interpretation (verbal) services.

• Provide notice of Translation (written) services.

• Refer to LEP Services available.Marchena and Graham, P.A. * www.mgfirm.com * 407.658.8566

Title VI – LEP – What does it mean to me?

• Know what language assistance options are available

• Know what to do if an LEP individual approaches you

• Be familiar with the airport, for example can you direct someone to:• Information booth(s)• Baggage claim• Airport maps• First aid station• Police


Title VI – LEP – What does it mean to me?

• If you are bilingual or multilingual and are willing to assist LEP individuals – let the airport sponsor know


Title VI – LEP – Why?

• LEP individuals may not:• Understand English instructions; • Be able to read English; and• Communicate their need(s).

• There may be an emergency.

• Airports are required to ensure nondiscrimination and meaningful access for LEP individuals.


Title VI – LEP and Plans

• Language assistance plan.

• Emergency plan• Identify how LEP individuals will be assisted during an

emergency;• Alert notification and warning; and• Emergency public information.


Title VI – Environmental Justice (“EJ”)

• Environmental Justice ensures no low – income or minority population bears a disproportionate burden of effects resulting from Federal funding recipients actions.


Title VI – Environmental Justice – What does it mean to me?

• Can help to ensure that discrimination does not occur.

• Can help with community involvement/outreach.

• Can help to identify low – income and/or minority communities near the airport.


Title VI – Environmental Justice– Why?

• Environmental justice concerns must be considered at all stages of a project (development and planning).

• Community size does not matter.• If a small population is impacted.

• It is the law.

• It is the right thing to do.


Title VI – Responsibilities – Airport Sponsor

• Abide by the laws.

• Post “Unlawful Discrimination” poster.

• Ensure all employees and tenants understand their responsibilities.

• Ensure all contracts* include a clause regarding 49 CFR Part 21 and nondiscrimination obligations.

• *Contracts include, but are not limited to: leases, permits, licenses, contracts, subcontracts, etc.


Title VI – Required Contract Provision

• FAA Civil Rights Compliance office has suggested language: General Civil Rights language:

The Lessee assures that it will comply with pertinent statutes, Executive orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance and that it shall comply with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, DOT, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the DOT - effectuation of Title VI of the Civil Rights Act of 1964, as said Regulations may be amended.


Title VI – Required Contract Provision

• FAA Airports Division released its: “Required Contract Provisions for Airport Improvement Program and for Obligated Sponsors” in May, 2014- Much more detail in the “required” contract clause.


Title VI – Responsibilities – Airport Sponsor

• Identify how LEP individuals will be assisted during an emergency.

• Title VI Coordinator with training and experience.

• Report discrimination complaints received to the FAA within 15 days of receipt.


Title VI – Responsibilities - Others

• All• Abide by the laws;• Do not discriminate; and• Report discrimination complaints to airport sponsor.

• Airport Employees• Knowledgeable re: Title VI complaint process; and• Knowledgeable of the airport language assistance plan.

• Tenants• Be aware and knowledgeable of nondiscrimination clause in

contract.


Airport Best Practices - Title VI Review

• Title VI complaint procedures and complaint forms posted on website.

• Is website available in predominant languages of community/traveling populations.

• Periodically informs/trains employees and tenants regarding Title VI (Ideas of how to train?).


Title VI – Employee and Tenant Training

. No person in the United States shall on the ground of race, color, national origin, sex or creed be excluded from participation in, be denied of or be subjected to discrimination under any program or activity receiving federal financial assistance.

. Persons – Title VI protections cover more than U.S. citizens;

. United States – includes 50 states and U.S. territories;

. Race, Color, National Origin – Race is discrimination based on one’s ethnicity, Color discrimination based on skin complexion, and National origin is discrimination based on one’s origin from a particular country or part of the world. This section also includes sex and creed.



. Program or Activity – Title VI’s prohibitions apply institution-wide, not just to area receiving the Federal Assistance.

. Need to provide: same meaningful access to services.

. Limited English Proficiency – LEP Individual is a person who does not speak English as their primary language and has limited ability to read, write, speak or understand English. To the best of your ability, know if individuals in your organization can provide interpretation or translation services.



. 4 Factor Analysis:

1. Number of LEP persons at Airport.

2. Frequency of contact with Services.

3. Importance of the Service provided by the Airport – if a delay or denial of access to a particular service could have serious health or life threatening implication, it is probably “important.”

4. Resources available to the Airport and cost.



. Strategies for providing Language Assistance Services:

. Populations: Prepare and update a community statistical analysis;

. Provide notice;

. Provide Interpretation Services;

. Provide translation; and

. Refer to Airport Language line or other services available at your airports.


Airport Best Practices – LEP

• Telephonic language assistance service.

• Bilingual and multilingual staff and/or volunteers:• Poll your employees and tenants.

• Names tags identifying language(s) the individual speaks.

• Universal signage.

• Documents, signage and/or announcements in multiple languages.


Airport Best Practices - LEP

• Language assistance plan.

• Website available in language(s) other than English.

• iPad/computer with Google translate.

• I-Speak (translation) cards.


Airport Best Practices – Environmental Justice

• Know communities surrounding airport.

• Conduct outreach to communities when preparing to do projects.

• Noise program.

• Information about projects posted on website.

• Notices in local newspapers about projects and meetings.


II. Goal Setting: DBE/ACDBE

. Collaboration of Departments

. Outreach . Examples of Outreach:



“Concession”-

“Exclusive”- type of business activity that is conducted solely by a single business entity on the entire airport.

Sample categories: management contracts, sub contracts, web-based or electronic business

Advertising, lodging, duty free, car rental, parking, transportation, retail, food service, dining service.



“Long-Term”- any agreement between a sponsor and a single concessionaire or multiple consecutive concessionaires that has a term of more than 5 years duration. (more than 5 years includes base and all options)

Must request prior approval of the FAA- granted in limited circumstances.



Required Information:

1. a description of the special local circumstances that warrant a LTE agreement.

2. A copy of the draft lease, sublease, agreement and related documents.



Required information:

3. Assurances that any ACDBE participation will be in an acceptable for,- (JV, etc)

4. Documentation of proper ACDBE certification

5. a description on the type of business to be operated.

6. information on the estimated investment of the ACDBE and any unusual management or financial arrangements



Required information:

7. information on the estimated gross receipts and net profit of the ACDBE

8. In the case of a Joint venture, identify the structure of the joint venture and the role of the ACDBE


IV. Questions on DBE/ACDBE Regulations or Compliance


Airport Monitoring and Enforcement

.ACDBE programs must include the monitoring and compliance measures the airport will use, including levels of effort and resources devoted to this task.

.Describe the frequency of reviews or records, on-site reviews of concession workplaces, etc., to determine whether ACDBEs are actually performing the work for which credit is being claimed.

.This type of oversight is crucial to combating ACDBE fraud, and FAA will closely scrutinize this aspect of ACDBE programs.



.Airport Sponsor subject to compliance reviews by Office of Civil Rights

.14 CFR Part 16 Airport Enforcement Proceeding:

.Withhold grant funds; and

.Terminate grant eligibility.

.DOJ referral for DBE/ACDBE Program Fraud:

.Jail; and

.Fines.



.Suspension and Debarment

.Listed on the Federal Government’s Excluded Parties List System; not eligible to participate in Federal contracts.

.DOT directive to UCP to initiate proceeding to remove DBE/ACDBE certification.


Questions

• What are some examples of Airport’s LEP services?• How many of you have analyzed your top language in the

________?• How many of you have your websites translated?• Are there interpreters available? • Are they clearly marked with symbols or colors to assist an

LEP person?• Title VI Coordinator (by a show of hands how many airports

have Title VI coordinator)?


Yovannie R. Storms is a shareholder at Marchena and Graham, P.A. She is a founding member of the firm’s Airport Practice Group. Born in Bayamon, Puerto Rico, Mrs. Storms has been practicing law in the Orlando area and with Marchena and Graham, P.A. since being admitted to the Florida Bar in October 1999. Mrs. Storms’ practice is concentrated in civil rights, Federal and local small business policies and programs, municipal finance, corporate law, business transactions, real estate transactions, government and contract law. She drafted current Airport Concession Disadvantaged Business Enterprise (“ACDBE”) policies as well as a Title VI Policy, Limited English Proficiency Plan. Additionally, Mrs. Storms has drafted the training materials for airport employees and tenants regarding Title VI.


As a result of the work performed in this area, Mrs. Storms was invited to speak at the 4th Annual FAA National Civil Rights Training Conference for Airports. Mrs. Storms has developed extensive and important contacts at the FAA with respect to DBE, ACDBE and Title VI issues. Mrs. Storms has reviewed certifications, attended appeal hearings and assisted in drafting responses to such appeals. As a result, Mrs. Storms has compiled an attorney work product data base of appeals to include small business irregularities, good faith efforts, certification reviews, and participation by small business.

Mrs. Storms also provides counsel in preparation and setting of goals for DBE, ACDBE, MWBE, LDB and Service Disabled Veteran programs.


DBE, ACDBE & Title IV Issues Yovannie R. Storms, Esq. Marchena and Graham, P.A.

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Transcript of DBE, ACDBE & Title IV Issues Yovannie R. Storms, Esq. Marchena and Graham, P.A.