Initiative Measure 200 (I-200) becomes effective today. When the voters of our state approved I-200, they were making a statement that they wanted to end preferences based on race or sex while leaving unchanged preferences for people with disabilities, for veterans, and for people over 40 years of age. I-200 is now the law of our state and I will uphold and implement the law as I am sworn to do. This directive is how I believe state agencies should implement I-200.

We must make sure that everyone is given fair and equal consideration in public employment, public contracting, and public education. Therefore, we must continue and intensify our outreach and recruitment efforts to encourage diversity. Diversity is what makes our state and country unique. And our diversity is a vital source of strength, creativity, and innovation.

I-200 is a new statute and does not repeal or supersede pre-existing statutes. Our task is to harmonize the new and existing laws to the greatest extent possible. In cases of a direct, irreconcilable conflict, I will read I-200 as implicitly repealing or overriding pre-existing law.

To aid in implementing I-200, I have identified several broad categories of laws, rules, policies and procedures that may be affected. Each of those categories is described below, together with my decision for addressing I-200’s impact. All executive agencies are directed to review their rules, policies, procedures and goals and to make changes where necessary to be consistent with this directive. While I cannot direct the actions of our state’s institutions of higher education, I encourage them to consider this directive to ensure consistency across state government in the application of I-200.

I. PUBLIC EMPLOYMENT:

A. Race, Sex, etc. Shall Not Be Considered in Hiring Decisions.

Race, sex, color, ethnicity and national origin may not be used in the final selection of an applicant for public employment, unless allowed under section 4 of I-200 (exempting an action that is "based on sex and is necessary for sexual privacy or medical or psychological treatment; or is necessary for undercover law enforcement…") or section 6 of I-200 (exempting actions "that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state").

B. Plus 3, Exception Testing, and Exam Screening Adjustment Shall Be Discontinued When Based on Race, Sex, etc.

Much debate has occurred over whether the "plus 3 system," "exception testing," and "exam screening adjustment" can be continued under I-200. The "plus 3 system" is a program where three additional names of applicants from an under-represented group may be considered for employment if the group of applicants originally referred to the employer lacked adequate representation of the group. "Exception testing" is a process that, under extenuating circumstances, allows people to submit job applications even when the application period has closed. One of those circumstances is when certain groups are under-represented in the eligible applicant pool. "Exam screening adjustment" allows applicants from an under-represented group to take an oral employment exam if the original group of oral exam applicants lacked adequate representation of the group.

The plus 3 system, exception testing, and exam screening adjustment, while clearly not part of the final selection of an applicant, are much closer to the final selection decision than outreach and recruitment programs. Accordingly, use of these tools based on race, sex, color, ethnicity or national origin shall be discontinued unless allowed under sections 4 or 6 of I-200. At the same time, use of the plus 3 system, exception testing, and exam screening adjustment shall continue for veterans, disabled veterans, people with disabilities, people over 40 years of age, and other groups of people not affected by I-200.

C. Plans and Goals Shall Remain, but Use of Plans and Goals Shall Not Be Binding.

Affirmative action plans and goals are themselves not in conflict with I-200 and shall be maintained, but shall not be binding unless allowed under sections 4 or 6 of I-200. Comparison of actual employment data with plans and goals may reveal barriers to equal opportunity or the need to increase outreach and recruitment efforts. However, race, sex, color, ethnicity or national origin shall not be considered in the final selection of an applicant.

D. Outreach and Recruitment Efforts Shall Be Intensified.

Outreach and recruitment programs designed to generate the best pool of qualified applicants for employers are not in conflict with I-200. Efforts to increase the number of applications from under-represented groups shall be intensified to make sure all qualified individuals are included and given fair consideration in public employment.

II. PUBLIC CONTRACTING:

A. Race, Sex, etc. Shall Not Be Considered in Awarding Construction Contracts or Contracts for the Purchase of Goods and Services.

Race, sex, color, ethnicity and national origin may not be used in the final selection of a bidder for a public contract, unless allowed under sections 4 or 6 of I-200. Adding preference points or price preferences for meeting Minority and Women Business Enterprises (MWBE) goals, requiring attainment of MWBE goals as a condition of responsiveness, or otherwise awarding a contract to a bidder who did not submit the lowest bid but who met MWBE goals, and similar programs shall be discontinued, unless allowed under sections 4 or 6 of I-200.

B. Laudatory Goals Shall Be Continued.

MWBE purchasing and contracting goals are themselves not in conflict with I-200 and shall be maintained, but shall not be binding unless allowed under sections 4 or 6 of I-200. Otherwise, the goals shall be continued as laudatory goals. Agencies shall continue to establish laudatory goals for specific contracts to encourage participation of MWBE’s in state contracting. However, the laudatory goals shall not be mandatory; meeting them shall not be a condition of responsiveness; and there shall be no sanctions for failure to meet them. The Office of MWBE shall also continue to establish annual overall goals that will guide agencies in establishing laudatory goals. Annual overall goals are intended to help eliminate improper discrimination by identifying disparities between the number of qualified contractors of a particular group able to perform a particular service and the number actually engaged in work under state contracts. Comparison of actual contracting data with goals may reveal barriers to equal opportunity or the need to increase outreach and recruitment efforts. However, race, sex, color, ethnicity or national origin shall not be considered in the final selection of a contractor.

C. Outreach and Recruitment Efforts Shall Be Intensified.

Outreach and recruitment programs designed to broaden the pool of potential contractors and provide notice of public contracting opportunities are not in conflict with I-200. Efforts to increase the number of contractors from under-represented groups shall be intensified to make sure all qualified contractors are included and given fair consideration in public contracting.

III. PUBLIC EDUCATION:

A. Student Body Diversity is Encouraged.

Diversity of all kinds – racial, gender, ethnic, socio-economic, and geographic to name a few – are vitally important to the educational experience. It is thought-provoking interaction with people different from ourselves that opens our minds, broadens our perspectives and sets a top-quality education apart from a mediocre one. I encourage our state institutions of higher education to intensify recruitment and outreach programs to maintain diversity in our state’s educational system. However, preferences in admissions based on race, sex, color, ethnicity and national origin should be discontinued.

B. Hiring and Contracting.

Institutions of higher education that do not use state agencies in employment or contracting are encouraged to consider this directive to ensure consistency across state government in the application of I-200.

IV. CONCLUSION:

The purpose of this directive is to give general guidance to ensure that the new law is applied uniformly across state government. If you have questions regarding specific programs, please contact Dennis Karras, Director of the Department of Personnel, for questions relating to public employment; Marsha Tadano Long, Director of the Department of General Administration, for questions relating to public contracting; Jim Medina, Director of the Office of MWBE, for questions relating to MWBE goals; and Everett Billingslea, my general counsel, for general assistance.

The section headings contained in this directive are for reference purposes only and do not affect in any way the meaning or interpretation of this directive.