On certification to the Department of Treasury.
For affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Pashman, J.
This appeal of an administrative agency decision implicates the constitutional powers of both state and local government. At issue are two provisions of an ordinance enacted in 1980 by the City of Camden mandating affirmative action by private construction companies awarded public works contracts by the city government. Both provisions enact goals that exceed the minimum requirements in the State Treasurer's affirmative action rules, R. 1977, d. 364, N.J.A.C. 17:27-1.1 to 13.2, promulgated pursuant to the amendments to the Law Against Discrimination concerning affirmative action in public works contracting, L. 1975, c. 127, N.J.S.A. 10:5-31 to 38.
The first provision establishes a 25% minority*fn1 hiring goal for contracts with the City of Camden, which is more rigorous than
the 20% goal set by the State Treasurer for all other public works contracts in Camden County. The second provision requires that 40% of the labor force in Camden City public works projects be city residents. The State Treasurer had set no residency quotas or goals. Appellant United Building and Construction Trades Council of Camden County and Vicinity (Council), an association of labor organizations, challenges State approval of the Camden program as both unauthorized under the Law Against Discrimination, N.J.S.A. 10:5-1 to 38, and unconstitutional. The Court now holds that approval of these provisions by the State Treasurer was proper under the statute. We also hold that neither provision violates the United States or New Jersey Constitution, and that the resident hiring quota is not preempted by state statute.
The 1975 amendments to the Law Against Discrimination, mandating affirmative action in public works contracting, L. 1975, c. 127, N.J.S.A. 10:5-31 to 38, are typical of state and federal statutes that seek to use the government's purchasing power to promote equal opportunity in the construction trades. See generally Public Works Employment Act of 1977, 91 Stat. 116, 42 U.S.C. § 6701 et seq.; Fullilove v. Klutznick, 448 U.S. 448, 473, 100 S. Ct. 2758, 2772, 65 L. Ed. 2d 902, 921 (1980) (upholding federal affirmative action quotas for minority contractors). Under the act, state and local governments, in their roles as marketplace participants, require the contractors they hire to make efforts to employ more minority workers.
The affirmative action provisions do not directly affect contracts between private parties. The minority hiring goals pertain only to contracts with the State, its political subdivisions, and agencies or authorities created by state and local government. N.J.S.A. 10:5-32. In enacting the affirmative action amendments to the Law Against Discrimination, the Legislature
chose to delegate the responsibility for promulgating specific hiring goals. The statute provides that no public works contract monies shall be paid to any contractor, subcontractor or firm that has not guaranteed compliance with an affirmative action program approved by the State Treasurer. N.J.S.A. 10:5-32. To this end, the statute empowers the State Treasurer
a. To investigate and determine the percentage of population of minority groups in the State or areas thereof from which the work force for public works contracts is or may be drawn;
b. To establish and promulgate such percentages as guidelines in determining the adequacy of affirmative action programs submitted for approval pursuant to section 2 of this act . . . [ N.J.S.A. 10:5-36 (footnote omitted)]
The State Treasurer has discretion to promulgate specific affirmative action requirements as long as they are based on "the percentage of population of minority groups in the State or areas thereof," N.J.S.A. 10:5-36(a).
Pursuant to his statutory mandate, the State Treasurer promulgated comprehensive affirmative action rules in September 1977. R. 1977, d. 364, N.J.A.C. 17:27-1.1 to 13.2, which included "employment goals" for the hiring of minorities in each of New Jersey's 21 counties. N.J.A.C. 17:27-7.3. In light of the State Treasurer's power "[t]o require all State and local agencies awarding public works contracts to submit for approval their affirmative action programs," N.J.S.A. 10:5-36(c), the rules further provided for approval of any local affirmative action program that conforms to the statutory and administrative requirements, and "establishes an employment goal which is not lower than the applicable goal established by [ N.J.A.C. 17:27-7.3]." N.J.A.C. 17:27-6.5 (emphasis added).
After the State Treasurer promulgated the 1977 affirmative action rules, a group of Camden citizens approached city officials to inquire about the enactment of an affirmative action program for city public works contracts. The mayor appointed Camden City attorney, Louis A. Vargas, to head a task force of
city residents. By May 1980, a proposed affirmative action ordinance had been drafted.*fn2
On July 24, 1980 the Camden City council adopted "an ordinance to establish an affirmative action program in connection with construction contracts to be performed for or on behalf of the City of Camden." The ordinance noted that according to 1977 U.S. Labor Department statistics, the unemployment rate for Camden was 11.5%, compared with 8.1% state-wide and 7.6% county-wide. Unemployment among Black Americans in the city was 18.4%, and among Hispanic Americans 15.6%. The ordinance noted further that unemployment in Camden had increased significantly since release of the Labor Department statistics.
The ordinance applied to all contracts with the City of Camden involving more than $50,000. It provided that every public works contractor
The ordinance defined "minority" and listed several criteria for measuring good faith compliance.
Camden's affirmative action program was amended by a second ordinance, adopted on August 28, 1980. This second ordinance provided, in addition to the minority hiring goal, that public works contractors "shall make every effort to employ persons residing within the City of Camden but in no event shall less than 40% of the entire labor force be residents of the City of Camden." [Emphasis added.]
Both the July 24 ordinance and the August 28 amendatory ordinance were submitted on November 14, 1980 to Chief Affirmative Action Officer Briscoe for his approval. On November 24, 1980 Briscoe informed the city that the affirmative action program met minimum state requirements*fn3 and was approved by the State for the period November 24, 1980 through November 24, 1981.*fn4 Appellant now challenges this approval of the Camden affirmative action program by the Chief Affirmative Action Officer.
The Council did not participate in the procedure through which the Chief Affirmative Action Officer approved the Camden program. Because the Camden program met all the minimum requirements for state-approved plans, its approval by the Chief Affirmative Action Officer presumably was assured pursuant to N.J.A.C. 17:27-6.5. On December 17, 1980 the Council filed a Notice of Appeal with the Appellate Division, pursuant to R. 2:2-3, challenging the final determination of the Chief Affirmative Action Officer in approving the Camden plan.
On June 19, 1981 we directly certified the appeal to this Court to decide all issues in the case.
A. The Department of Treasury's Statutory Authority to Approve the Camden Ordinance.
Appellant does not contend that the Chief Affirmative Action Officer has no statutory authority to approve local affirmative action plans. The 1975 amendments specifically give the Treasurer the power "[t]o require all State and local agencies awarding
public works contracts to submit for approval their affirmative action programs." N.J.S.A. 10:5-36(c). Such a provision is superfluous if local government has no authority to promulgate plans that differ in some respects from the State Treasurer's guidelines. The Court presumes that the Legislature does not enact meaningless legislation. McGlynn v. New Jersey Public Broadcasting Auth., 88 N.J. 112 (1981); 2A Sutherland, Statutory Construction (4th ed. 1973) § 46.06.
The Council focuses instead upon the specific decision of the Chief Affirmative Action Officer in approving the Camden ordinance. The Council first contends that although the State Treasurer is empowered to approve local affirmative action programs, the Law Against Discrimination provides no authority for approving local hiring goals more rigorous than the applicable county-wide goal. Neither, according to the Council, does the statute provide authority for establishing any resident hiring quotas at all. The Council also contends that even if the State Treasurer can approve local minority hiring goals, the Department abused its discretion by approving Camden's more rigorous goal without any showing of necessity.
The standard of review applied to the State Treasurer's decision to approve the Camden minority hiring goal and resident quota is no different than the standard used to review any other final agency decision. As stated in New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561 (1978),
"[a]dministrative rules and regulations have in their support the rebuttable presumption of validity if they come within the ambit of delegated authority," and . . . . unless such regulations are "clearly ultra vires on their face, the party contesting them has the burden of proving their invalidity." [quoting In re Regulation F-22, Office of Milk Industry, 32 N.J. 258, 261-62 (1960)]
As a result of this "rebuttable presumption of validity, . . . an ultra vires finding is disfavored." Id. The grant of authority to an administrative agency is to be liberally construed to enable the agency to accomplish the Legislature's goals. The agency has "such implied incidental powers as may reasonably be adapted to that end." In re Suspension of Heller, 73 N.J. 292, 303 (1977).
In this case, the scope of the State Treasurer's delegated authority is clear. The relevant law is an amendment to the Law Against Discrimination. It bars public works contractors from discriminating on the basis of "age, race, creed, color, national origin, ancestry, marital status or sex." N.J.S.A. 10:5-33. At the same time, the statute mandates affirmative action in public contracting by outlawing public works contracts with any party "which has not agreed and guaranteed to afford equal opportunity in performance of the contract in accordance with an affirmative action program approved by the State Treasurer." N.J.S.A. 10:5-32. To this end, the State Treasurer is empowered to determine percentages of minority populations across the State, N.J.S.A. 10:5-36(a), and establish those populations as guidelines in determining the adequacy of affirmative action programs. N.J.S.A. 10:5-36(b). Unless the Chief Affirmative Action Officer's decision works "to alter the terms of [the] legislative enactment or frustrate the policy embodied in the statute," N.J. Chamber of Commerce v. N.J. Elec. Law Enforce. Comm'n, 82 N.J. 57, 82 (1980), by impeding or acting arbitrarily with regard to promotion of equal opportunity in public works contracting through affirmative action, the decision will be affirmed.
1. The 25% minority hiring goal.
The State Treasurer's affirmative action rules include "employment goals" for the hiring of minorities in each of New Jersey's 21 counties. These goals range from a low of 10% in seven counties to a high of 32% in Essex County, reflecting the differing minority populations in each area. The goals are clearly not equivalent to the minority populations in each county, since "minority workers" includes women, who we assume represent about 50% of the population in each county. The Camden County goal is 20%. The goal enacted by the City and approved by the State Treasurer is 25%.
The State Treasurer's affirmative action rules also impose duties on contractors to undertake a good ...