760 CMR 47.00:
AFFIRMATIVE ACTION REGULATIONS GOVERNING RECIPIENTS OF EOCD/DCA FINANCIAL ASSISTANCE

47.01: Declaration of Policy
47.02: Purpose and Scope
47.03: Definitions
47.04: Role of the Executive Office of Communities and Development
47.05: Role of Massachusetts Commission Against Discrimination
47.06: Employment Policies of EOCD
47.07: State Services
47.08: Affirmative Action Governing Local Housing Authorities
47.09: Responsibility of the Applicant
47.10: Severability, Compliance and Sanctions

47.01: Declaration of Policy

(1) Non-discrimination and equal opportunity are the policy of the Executive Office of Communities and Development/Department of Community Affairs (EOCD/DCA) in all of its decisions, policies, programs and activities. To that end, all EOCD/DCA employees shall rigorously take affirmative steps to ensure equality of opportunity in the internal affairs of EOCD/DCA, as well as in its relations with the public. EOCD/DCA, in performing its statutory responsibilities, shall consider the likely effects which its decisions, policies, programs and activities shall have in meeting the goal of equality of opportunity.

(2) Affirmative Action requires more than vigilance in the elimination of discriminatory barriers on the grounds of race, color, creed, national origin, handicap, sex, age, language, military service and sexual orientation. It also entails positive and aggressive measures to ensure equal opportunity in internal personnel practices and in those policies and programs which affect persons and political subdivisions throughout the Commonwealth.

(3) EOCD/DCA shall initiate, where appropriate, affirmative action policies and programs designed to remedy the lingering effects of any past and present discriminatory patterns and practices to the extent that such policies and programs are consistent with the purposes and provisions of M.G.L. c.151B, and Executive Orders 227, 237, 246, and 253, as amended.

47.02: Purpose and Scope

(1) 760 CMR 47.00 is designed to provide a framework within which the EOCD/DCA can design and implement policies and programs to ensure equal opportunity and full participation for all citizens of the Commonwealth.

(2) 760 CMR 47.00 is also intended to define the equal employment opportunity, fair housing, business utilization, and affirmative action obligations of any applicant for state, state-assisted, federal or federally-assisted funds administered by the Secretary of EOCD/DCA.

47.03: Definitions

Applicant means any person, private for-profit or non-profit organization, or political subdivision of the Commonwealth which submits to the EOCD/DCA any application, contract, request, or plan for financial assistance from the EOCD/DCA which the Secretary is not obliged by law to fund.

Clearinghouse means any individual, organization, or agency established for, among other reasons, the purpose of furthering fair housing opportunities on a regional or city-wide basis.


Commission means the Massachusetts Commission Against Discrimination (MCAD).

DCA means the Department of Community Affairs.

EODC/DCA means the Executive Office of Communities and Development.

Financial Assistance means:

(a) any grant, loan or advance of state or federal funds,

(b) grant or donation of state or federal property or interest in property,

(c) any state or federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance, such as the allocation of federal or state tax credits, tax-exempt bond authority, or loan guarantees, and/or

(d) the sale, lease, or licensing of state or federal property, both real and personal, or any interest in such property, at a price below the current market value of such property interest.

LHA means a Local Housing Authority as established under M.G.L. c.121B or comparable legislation.

MBE means a business organization which is beneficially owned and controlled 51% or more by one or more Minority Group Members and is certified as such by the Massachusetts State Office of Minority and Women's Business Affairs.

Minority Group Member means a person who is of one of the following groups:

(a) Native American or Alaskan Native - A person having origins in any of the original peoples of North America, and who maintains cultural identifications through tribal affiliations or community recognition.

(b) Asian or Pacific Islander - A person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Sub-continent, or the Pacific Islands. This area includes, for example, China, India, Japan, Korea, the Philippine Islands and Samoa.

(c) Black - A person having origins in any of the black racial groups of Africa.

(d) Hispanic - A person of Mexican, Puerto Rican, Cuban, Dominican, Central, or South American origin.

(e) Cape Verdean - A person having origins in the Cape Verde Islands.

Political Subdivisions means any unit of local government, city, town, county, or subdivision thereof; instrumentality of the Commonwealth; or any other government entity, including authorities.

Secretary means the Secretary of the Executive Office of Communities and Development/Department of Community Affairs.

WBE means a business organization which is beneficially owned and controlled 51% or more by one or more women and is certified as such by the Massachusetts State Office of Minority and Women's Business Affairs.

47.04: Role of the Executive Office of Communities and Development

EOCD/DCA is the Commonwealth's lead housing and community development agency. In this capacity, it is charged with addressing the management, housing, and community development needs of the Commonwealth's 351 cities and towns. EOCD/DCA is also charged with coordinating the Commonwealth's overall long-term housing and community development strategy.

(1) In deciding whether to award financial assistance to an applicant, the Secretary shall consider whether the applicant is in compliance with applicable civil rights obligations, as determined by the Commission, in the areas of housing, employment, and MBE/WBE utilization. The Secretary shall review the reasons for the Commission's determination, giving substantial weight to the Commission's recommendation. To facilitate the Secretary's review of the applicant's civil rights record, the Secretary shall implement the following procedures, which were initially the subject of a Memorandum of Agreement between EOCD/DCA and the Commission dated March 22, 1985:

(a) notify the Commission on an annual basis of projected rounds of funding of discretionary non-entitlement programs administered by EOCD/DCA to be awarded to municipalities and local housing authorities or to private applicants. Such notice shall include:

1. anticipated dates of program funding cycles,

2. types of applications,

3. program funding value,

4. funding source, and

5. applicant selection criteria;

(b) notify the Commission of any changes or program modifications which would affect the Commission/EOCD review system;

(c) inform applicants of the requirements of 760 CMR 47.00;

(d) notify the Commission at the time of issuing a Request for Proposals (RFP) for financial assistance to applicants and provide the following:

1. a copy of the notice,

2. a list of prospective applicants receiving the notice,

3. the date responses to the RFP are due,

4. the anticipated date of final funding decision, and

5. the anticipated award date;

Where the Secretary anticipates the provision of financial assistance to an applicant without resort to an RFP, the Secretary will also notify the Commission of such proposed action and provide the Commission with ample opportunity to notify EOCD/DCA as to whether the applicant is in compliance with applicable civil rights laws.

(e) upon notification by the Commission that an applicant is in apparent non-compliance status, direct the applicant to make a sincere and concerted effort to reach agreement with the Commission which will bring the applicant into compliance.

(f) not award funds to an applicant that the Commission finally determines to be in non-compliance status, as provided in 760 CMR 47.05(1) herein, unless after reviewing the reasons for the Commission's determination, the Secretary finds that the proposal or project is necessary for the protection of the public health or welfare and the applicant has made a sincere and concerted effort to reach agreement with the Commission as required by 760 CMR 47.04(1)(a)5. Any such finding shall be forwarded in writing to the Commission.

(g) to award funds to an applicant that the MCAD determines to be in conditional status, as provided in 760 CMR 47.05(1)(h)2. herein, only where the Secretary determines, after consultation with the Commission,that the imposition of certain conditions on such award will further the applicant's ability and willingness to comply with applicable civil rights requirements. If an applicant fails to comply with these conditions during the period of such award, the Commission may conclude that such failure warrants a determination that the applicant is in non-compliance.

(h) The Secretary shall appoint an Affirmative Action Officer who shall have, among other things, the following authority and responsibilities:

1. establish reporting requirements for all successful applicants relative to their compliance with the obligations under 760 CMR 47.00;

2. gather information, and report such information regularly to the Commission, relative to successful applicants' compliance with the obligations under 760 CMR 47.00;

3. track and advise the Secretary relative to program compliance with the equal opportunity obligations of Executive Order 227;

4. recommend approval or disapproval of all EOCD/DCA appointments and EOCD/DCA funded construction contracts;

5. supervise monitoring and enforcement of EOCD/DCA's Affirmative Action Plan as described in 760 CMR 47.06 herein;

6. inform and otherwise assist EOCD/DCA program managers regarding the substance of any civil rights comments provided by the Commission, as well as of any compliance conditions imposed by EOCD/DCA on the award of financial assistance.

7. in concert with EOCD's Chief Counsel, inform EOCD/DCA program managers of any changes in applicable civil rights laws and policies; and

8. in concert with EOCD's Chief Counsel, provide instruction to EOCD/DCA program staff on civil rights compliance and procedures for tracking compliance.

47.05: Role of the Massachusetts Commission Against Discrimination

The Commission is the Commonwealth's designated civil rights monitoring and enforcement agency in the areas of employment, housing, and business utilization pursuant to M.G.L. c. 151B, as amended, and Executive Order No. 227, entitled Governor's Code of Fair Practices. As a matter of legal authority, administrative structure and resources, and experience, the Commission is uniquely qualified to make determinations concerning the compliance of applicants with applicable civil rights laws. Therefore, in furtherance of 760 CMR 47.00, EOCD/DCA shall rely on the determination of the Commission relative to an applicant's record of compliance with applicable civil rights requirements, based on the following Commission assistance:

(1) notify EOCD/DCA in writing every four months of the compliance or non-compliance status of municipalities and local housing authorities (LHA's) throughout the Commonwealth;

(2) notify EOCD/DCA, not less than one week prior to the date RFP responses are due, whether the compliance status of any municipality or LHA's referred to in 760 CMR 47.00 is subject to change and, if so, the substance of any anticipated change. Any such municipality or LHA subject to such change shall be in "conditional status" for the purpose of 760 CMR 47.00; and

(3) recommend to the Secretary a form(s) for notifying applicants of their civil rights obligations as defined in Executive Order No. 227, and all other applicable federal and state civil rights requirements.

47.06: Employment Policies of EOCD

(1) All EOCD/DCA officials and supervisory employees shall appoint, assign, train, evaluate, compensate, and promote agency personnel on the basis of merit and fitness, without regard to race, color, religion, national origin, ancestry, language, sex, age, military service, sexual orientation, or handicap (provided reasonable accommodations can be made).

(2) The following standards and procedures shall govern the preparation and adoption of affirmative action plans by EOCD/DCA:

(a) set forth goals and timetables and employ all reasonable measures to eliminate the lingering effects of any present or past discriminatory employment practices;

(b) review its existing staffing patterns, and to the extent that such patterns indicate a pattern of staffing of minority group members and women that is not fairly reflective of the percentage of minority group members and women in the greater Boston SMSA, take appropriate remedial measures to resolve and eliminate such patterns in future hiring and promotion decisions;

(c) conduct an ongoing review of its Affirmative Action Plan to ensure compliance with such plan, and with the intent of 760 CMR 47.00;

(d) appoint an Affirmative Action Officer to supervise monitoring and enforcement of the Affirmative Action Plan. In addition, the Affirmative Action Officer shall have the authority to recommend approval or disapproval of all appointments and EOCD/DCA funded construction contracts.

(3) The Secretary shall, in conjunction with the Commission, periodically review the above standards and procedures and shall propose modifications and amendments where appropriate, provided however, that any such modifications and amendments shall include without limitation, the provisions of this policy 760 CMR 47.06(1)(a) through (d).

47.07: State Services

All EOCD/DCA services shall be provided without discrimination based on race, color, religion, national origin, ancestry, age, sex, military service, or sexual orientation. No EOCD/DCA facility shall be used in furtherance of any discriminatory pattern or practice nor shall EOCD/DCA become a party to any agreement, arrangement, or plan which has the effect of sanctioning such patterns or practices. 760 CMR 47.07 shall apply to any public, quasi-public, or private non-profit entity which provides such services pursuant to a contract with EOCD. Any such contract shall include language implementing 760 CMR 47.07.

47.08: Affirmative Action Governing LHA's

Pursuant to M.G.L. c.121B, EOCD/DCA has financial, legal, and regulatory authority over the activities of the Commonwealth's LHAs. Based on this authority, EOCD/DCA has previously promulgated 760 CMR 33.00, effective May 13, 1988, to ensure against future discrimination based on race, color, religion, national origin, sex, language, sexual orientation, political beliefs or affiliations, military service, age, presence of children, or disability, and to remedy affirmatively the effects of any past or present discrimination in the internal hiring and personnel and tenant selection policies and practices of LHAs, as well as in the purchase of goods and services and in the construction of state-aided housing by such authorities. Pursuant to this regulatory authority, EOCD/DCA has issued, and periodically reviews and revises, a policy, including annual numerical goals, regarding the utilization of MBE's and WBE's for the construction and modernization of state-aided housing by LHAs. 760 CMR 33.00 is hereby cross-referenced and incorporated herein. Notwithstanding the applicability of 760 CMR 33.00 to LHAs, LHAs are also subject to 760 CMR 47.00.

47.09: Responsibility of the Applicant

(1) It is the responsibility of each applicant for financial assistance from EOCD/DCA to ensure that in the administration of its policies, programs, and projects, it is in compliance with all applicable civil rights laws and is pursuing all reasonable measures designed to foster equal opportunity and participation in such policies and programs. To the extent that the applicant identifies policies and programs which may have had and/or may continue to have a discriminatory impact on individuals, businesses, or organizations relative to housing, employment or MBE/WBE utilization, the applicant must take appropriate affirmative measures to remedy the effects of such discrimination. The obligations of the applicant herein apply not only to an initial determination of eligibility for financial assistance but also to the administration of any such assistance.

(2) Each successful applicant shall ensure that every construction contract or contract for goods or services utilizing financial assistance from EOCD/DCA shall contain an article prohibiting discriminatory employment practices by contractors, sub-contractors, and suppliers of goods or services based on race, color, religion, national origin, ancestry, age, sex, handicap, or sexual orientation. The non-discrimination article shall include a provision requiring contractors and suppliers of goods or services to give written notice of their commitments under 760 CMR 47.09 to any labor union, association, or brotherhood with which they have a collective bargaining or other agreement. Such notice shall also be given to the Commission, SOMWBA, and EOCD/DCA's Affirmative Action Officer.

(3) Each successful applicant shall take affirmative steps to increase the participation of MBEs and WBEs in all construction, consultant, goods, and service contracts, including identifying any practical impediments to such participation. Each such applicant shall also take such further steps as EOCD/DCA may from time-to-time conclude will further compliance with this requirement, including the establishment of annual goals for MBE and WBE participation. Where an applicant is a city or town with a population of more than 10,000 permanent residents, such applicant shall implement the following additional measures:

(a) develop a viable MBE/WBE program, which ensures opportunities for MBEs and WBEs in the awarding of contracts by the city or town. The program should include an annual specific goal for MBE/WBE participation of 5% for MBEs and 5% for WBEs respectively for construction and for goods and services.

(b) notify SOMBWA of its intent to solicit bids and make available to SOMBWA, upon request, copies of such solicitation, specifications and plans, prior to publication of the availability of any construction contract with an estimated value in excess of $50,000.

(c) maintain and update on an annual basis a fair housing plan which outlines the objectives and specific actions to be taken by the applicant for the current year to foster housing opportunities for minority households.

(d) maintain and update on an annual basis an equal employment opportunity plan which outlines the objectives and specific action to be taken by the applicant for the current year to ensure that minority workers are adequately represented among the applicant's workforce, and

(4) Relative to an application for financial assistance for a residential project, it is the responsibility of each applicant to do the following:

(a) submit an affirmative fair housing marketing plan to EOCD/DCA to ensure that reasonable measures are taken to disseminate to minority households in the region where the development is to be located information concerning the availability of affordable housing units in the development. No financial assistance shall be provided by EOCD/DCA to an applicant until such plan is approved in writing by EOCD/DCA.

(b) satisfy whatever affirmative action occupancy goals are established by EOCD/DCA for the development based on the methodology set forth in 760 CMR 5.08(3)(b);

(c) list the availability of units in the development with any clearinghouse designated by EOCD which has been established in the region or adjacent regions where the development is to be located; and

(d) adopt other measures to further fair housing opportunities, such as the applicant's participation in a region-wide strategy or plan.

The requirements of 760 CMR 47.09(4)(d) shall not apply to any application for financial assistance for housing to be constructed or renovated pursuant to EOCD/DCA's Chapter 689 (Special Needs) Program.

47.10: Severability, Compliance and Sanctions

The provisions of 760 CMR 47.00 are severable, and if any of these provisions shall be held illegal by any court of competent jurisdiction, the decision of such court shall not affect or impair any of the remaining provisions.

Any person who has evidence of non-compliance with 760 CMR 47.00 may submit a written complaint to the Secretary. The Secretary will provide notice of such complaint to the Commission, which shall initiate a prompt investigation to determine whether a compliance review, report, complaint, or any other information indicates a possible failure to comply.

(1) Upon advice of the Commission, if any investigation indicates that no action is warranted, the Secretary shall so inform the complainant, if any, in writing.

(2) If the investigation indicates a failure to comply, the Secretary shall request the Commission to attempt to resolve the matter by informal means whenever possible.

(3) Upon notice by the Commission that the matter cannot be resolved, the Secretary shall take whatever action s/he deems appropriate to resolve the complaint.

(4) The Secretary may also notify the Attorney General, with a recommendation that appropriate proceedings be brought to enforce any rights of the Commonwealth under any law of the United States or the Commonwealth.

The Secretary, in determining compliance with 760 CMR 47.00, shall request the assistance of the Commission where appropriate.

REGULATORY AUTHORITY:

760 CMR 47.00: M.G.L. c. 6A, § 8; M.G.L. c. 23B; M.G.L. c. 121B; and M.G.L. c. 151B,§ 4;

Title VIII of the 1968 Civil Rights Act;

42 U.S.C.§ 3601 et seq.;

Executive Orders 74, 227, 237, 246, and 253.