BILL REQ. #:  H-5045.1 

READ FIRST TIME 02/09/10.   

     AN ACT Relating to transferring the office of minority and women's business enterprises into the department of commerce; amending RCW 39.19.020, 39.19.030, 39.19.041, 39.19.060, 39.19.250, 39.19.150, 39.19.200, 39.19.210, 39.19.220, 39.19.230, 42.17.2401, and 43.63A.690; creating a new section; repealing RCW 41.06.082; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 39.19.020 and 1996 c 69 s 4 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Advisory committee" means the advisory committee on minority and women's business enterprises.
     (2) "Broker" means a person that provides a bona fide service, such as professional, technical, consultant, brokerage, or managerial services and assistance in the procurement of essential personnel, facilities, equipment, materials, or supplies required for performance of a contract.
     (3) "Department" means the department of commerce.
     (4) "Director" means the director of the ((office of minority and women's business enterprises)) department.
     (((4))) (5) "Educational institutions" means the state universities, the regional universities, The Evergreen State College, and the community colleges.
     (((5))) (6) "Goals" means annual overall agency goals, expressed as a percentage of dollar volume, for participation by minority and women-owned and controlled businesses and shall not be construed as a minimum goal for any particular contract or for any particular geographical area. It is the intent of this chapter that such overall agency goals shall be achievable and shall be met on a contract-by-contract or class-of-contract basis.
     (((6))) (7) "Goods and/or services" includes professional services and all other goods and services.
     (((7))) (8) "Office" means the office of minority and women's business enterprises within the department.
     (((8))) (9) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons.
     (((9))) (10) "Procurement" means the purchase, lease, or rental of any goods or services.
     (((10))) (11) "Public works" means all work, construction, highway and ferry construction, alteration, repair, or improvement other than ordinary maintenance, which a state agency or educational institution is authorized or required by law to undertake.
     (((11))) (12) "State agency" includes the state of Washington and all agencies, departments, offices, divisions, boards, commissions, and correctional and other types of institutions.

Sec. 2   RCW 39.19.030 and 1996 c 69 s 5 are each amended to read as follows:
     (1) There is hereby created the office of minority and women's business enterprises within the department. ((The governor shall appoint a director for the office, subject to confirmation by the senate. The director may employ a deputy director and a confidential secretary, both of which shall be exempt under chapter 41.06 RCW, and such staff as are necessary to carry out the purposes of this chapter.))
     (2) The office shall consult with the minority and women's business enterprises advisory committee to:
     (((1))) (a) Develop, plan, and implement programs to provide an opportunity for participation by qualified minority and women-owned and controlled businesses in public works and the process by which goods and services are procured by state agencies and educational institutions from the private sector;
     (((2))) (b) Develop a comprehensive plan insuring that qualified minority and women-owned and controlled businesses are provided an opportunity to participate in public contracts for public works and goods and services;
     (((3))) (c) Identify barriers to equal participation by qualified minority and women-owned and controlled businesses in all state agency and educational institution contracts;
     (((4))) (d) Establish annual overall goals for participation by qualified minority and women-owned and controlled businesses for each state agency and educational institution to be administered on a contract-by-contract basis or on a class-of-contracts basis;
     (((5))) (e) Develop and maintain a central minority and women's business enterprise certification list for all state agencies and educational institutions. No business is entitled to certification under this chapter unless it meets the definition of small business concern as established by the office. All applications for certification under this chapter shall be sworn under oath; and
     (((6))) (f) Develop, implement, and operate a system of monitoring compliance with this chapter((;
     (7)).
     (3) The director shall:
     (a) Adopt rules under chapter 34.05 RCW, the administrative procedure act, governing: (((a))) (i) Establishment of agency goals; (((b))) (ii) development and maintenance of a central minority and women's business enterprise certification program, including a definition of "small business concern" which shall be consistent with the small business requirements defined under section 3 of the small business act, 15 U.S.C. Sec. 632, and its implementing regulations as guidance; (((c))) (iii) procedures for monitoring and enforcing compliance with goals, regulations, contract provisions, and this chapter; (((d))) (iv) utilization of standard clauses by state agencies and educational institutions, as specified in RCW 39.19.050; and (((e))) (v) determination of an agency's or educational institution's goal attainment consistent with the limitations of RCW 39.19.075;
     (((8))) (b) Submit an annual report to the governor and the legislature outlining the progress in implementing this chapter;
     (((9))) (c) Investigate complaints of violations of this chapter with the assistance of the involved agency or educational institution; and
     (((10))) (d) Cooperate and act jointly or by division of labor with the United States or other states, and with political subdivisions of the state of Washington and their respective minority, socially and economically disadvantaged and women business enterprise programs to carry out the purposes of this chapter. However, the power which may be exercised by the ((office)) director under this subsection permits investigation and imposition of sanctions only if the investigation relates to a possible violation of chapter 39.19 RCW, and not to violation of local ordinances, rules, regulations, however denominated, adopted by political subdivisions of the state.

Sec. 3   RCW 39.19.041 and 1995 c 269 s 1302 are each amended to read as follows:
     The director or the director's designee may establish ad hoc advisory committees, as necessary, to assist in the development of policies to carry out the purposes of this chapter.

Sec. 4   RCW 39.19.060 and 1996 c 288 s 28 are each amended to read as follows:
     Each state agency and educational institution shall comply with the annual goals established for that agency or institution under this chapter for public works and procuring goods or services. This chapter applies to all public works and procurement by state agencies and educational institutions, including all contracts and other procurement under chapters 28B.10, 39.04, 39.29, 43.19, and 47.28 RCW. Each state agency shall adopt a plan, developed in consultation with the director or the director's designee and the advisory committee, to insure that minority and women-owned businesses are afforded the maximum practicable opportunity to directly and meaningfully participate in the execution of public contracts for public works and goods and services. The plan shall include specific measures the agency will undertake to increase the participation of certified minority and women-owned businesses. The ((office)) director shall annually notify the governor, the state auditor, and the joint legislative audit and review committee of all agencies and educational institutions not in compliance with this chapter.

Sec. 5   RCW 39.19.250 and 2009 c 348 s 2 are each amended to read as follows:
     (1) For the purpose of annual reporting on progress required by section 1 of this act, each state agency and educational institution shall submit data to the office and the office of minority and women's business enterprises on the participation by qualified minority and women-owned and controlled businesses in the agency's or institution's contracts and other related information requested by the director or the director's designee. The director ((of the office of minority and women's business enterprises)) or the director's designee shall determine the content and format of the data and the reporting schedule, which must be at least annually.
     (2) The office must develop and maintain a list of contact people at each state agency and educational institution ((that is)) who are able to present to hearings of the appropriate committees of the legislature its progress in carrying out the purposes of chapter 39.19 RCW.
     (3) The ((office)) director must submit a report aggregating the data received from each state agency and educational institution to the legislature and the governor.

Sec. 6   RCW 39.19.150 and 1987 c 328 s 10 are each amended to read as follows:
     (1) Any city, county, town, special purpose district, public corporation created by the state, municipal corporation, or quasi-municipal corporation having reason to believe that a particular minority and women's business enterprise should not have been certified under RCW 39.19.140 may petition the office for reconsideration. The basis for the petition may be one or more of the following:
     (a) The ((office's)) department's rules ((or regulations)) were improperly applied; or
     (b) Material facts relating to the minority and women's business enterprise's certification application to the office are untrue.
     (2) The petitioner shall carry the burden of persuasion. The affected minority or women's business enterprise shall receive notice of the petition and an opportunity to respond.
     (3) After reviewing the information presented in support of and in opposition to the petition, the ((office)) director shall issue a written decision, granting or denying the petition. If the ((office)) director grants the petition, ((it)) the director may revoke, suspend, or refuse to renew the certification or impose sanctions under this chapter as appropriate.
     (4) The ((office's)) director's decision on a petition is administratively final and the rights of appeal set out in the ((office regulations)) department rules shall apply. A certification shall remain in effect while a petition is pending.

Sec. 7   RCW 39.19.200 and 1993 c 195 s 1 are each amended to read as follows:
     The minority and women's business enterprises account is created in the custody of the state treasurer. All receipts from RCW 39.19.210, 39.19.220, and 39.19.230 shall be deposited in the account. Expenditures from the account may be used only for the purposes defraying all or part of the costs of the ((office)) department in administering this chapter. Only the director or the director's designee may authorize expenditures from the account. Moneys in the account may be spent only after appropriation.

Sec. 8   RCW 39.19.210 and 1993 c 195 s 2 are each amended to read as follows:
     The ((office)) department may charge a reasonable fee or other appropriate charge, to be set by rule adopted by the ((office)) department under chapter 34.05 RCW, to a business using the services of the ((office)) department under this chapter.

Sec. 9   RCW 39.19.220 and 1993 c 195 s 3 are each amended to read as follows:
     The ((office)) department may charge to a political subdivision in this state a reasonable fee or other appropriate charge, to be set by rule adopted by the ((office)) department under chapter 34.05 RCW, prorated on the relative benefit to the political subdivision, for the certification under this chapter of a business.

Sec. 10   RCW 39.19.230 and 1993 c 195 s 4 are each amended to read as follows:
     The ((office)) department may charge to a state agency and educational institutions, as both are defined in RCW 39.19.020, a reasonable fee or other appropriate charge, to be set by rule adopted by the ((office)) department under chapter 34.05 RCW, based upon the state agency's or educational institution's expenditure level of funds subject to the ((office)) department.

Sec. 11   RCW 42.17.2401 and 2009 c 565 s 24 are each amended to read as follows:
     For the purposes of RCW 42.17.240, the term "executive state officer" includes:
     (1) The chief administrative law judge, the director of agriculture, the administrator of the Washington basic health plan, the director of the department of services for the blind, the director of the state system of community and technical colleges, the director of commerce, the secretary of corrections, the director of early learning, the director of ecology, the commissioner of employment security, the chair of the energy facility site evaluation council, the secretary of the state finance committee, the director of financial management, the director of fish and wildlife, the executive secretary of the forest practices appeals board, the director of the gambling commission, the director of general administration, the secretary of health, the administrator of the Washington state health care authority, the executive secretary of the health care facilities authority, the executive secretary of the higher education facilities authority, the executive secretary of the horse racing commission, the executive secretary of the human rights commission, the executive secretary of the indeterminate sentence review board, the director of the department of information services, the executive director of the state investment board, the director of labor and industries, the director of licensing, the director of the lottery commission, ((the director of the office of minority and women's business enterprises,)) the director of parks and recreation, the director of personnel, the executive director of the public disclosure commission, the executive director of the Puget Sound partnership, the director of the recreation and conservation office, the director of retirement systems, the director of revenue, the secretary of social and health services, the chief of the Washington state patrol, the executive secretary of the board of tax appeals, the secretary of transportation, the secretary of the utilities and transportation commission, the director of veterans affairs, the president of each of the regional and state universities and the president of The Evergreen State College, and each district and each campus president of each state community college;
     (2) Each professional staff member of the office of the governor;
     (3) Each professional staff member of the legislature; and
     (4) Central Washington University board of trustees, the boards of trustees of each community college and each technical college, each member of the state board for community and technical colleges, state convention and trade center board of directors, committee for deferred compensation, Eastern Washington University board of trustees, Washington economic development finance authority, The Evergreen State College board of trustees, executive ethics board, forest practices appeals board, forest practices board, gambling commission, life sciences discovery fund authority board of trustees, Washington health care facilities authority, each member of the Washington health services commission, higher education coordinating board, higher education facilities authority, horse racing commission, state housing finance commission, human rights commission, indeterminate sentence review board, board of industrial insurance appeals, information services board, recreation and conservation funding board, state investment board, commission on judicial conduct, legislative ethics board, liquor control board, lottery commission, marine oversight board, Pacific Northwest electric power and conservation planning council, parks and recreation commission, board of pilotage commissioners, pollution control hearings board, public disclosure commission, public pension commission, shorelines hearings board, public employees' benefits board, salmon recovery funding board, board of tax appeals, transportation commission, University of Washington board of regents, utilities and transportation commission, Washington state maritime commission, Washington personnel resources board, Washington public power supply system executive board, Washington State University board of regents, Western Washington University board of trustees, and fish and wildlife commission.

Sec. 12   RCW 43.63A.690 and 2005 c 302 s 6 are each amended to read as follows:
     (1) The department shall provide technical assistance and loan packaging services that enable minority and women-owned business enterprises to obtain financing under the linked deposit program created under RCW 43.86A.060.
     (2) The department((, in consultation with the office of minority and women's business enterprises,)) shall develop indicators to measure the performance of the linked deposit program in the areas of job creation or retention and providing access to capital to minority or women's business enterprises.

NEW SECTION.  Sec. 13   RCW 41.06.082 (Office of minority and women's business enterprises -- Certain personnel exempted from chapter) and 1983 c 120 s 14 are each repealed.

NEW SECTION.  Sec. 14   (1) The office of minority and women's business enterprises is transferred to the department of commerce to be an office within the department of commerce.
     (2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the office of minority and women's business enterprises shall be delivered to the custody of the department of commerce. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the office of minority and women's business enterprises shall be made available to the department of commerce. All funds, credits, or other assets held by the office of minority and women's business enterprises shall be assigned to the department of commerce.
     (b) Any appropriations made to the office of minority and women's business enterprises shall, on the effective date of this section, be transferred and credited to the department of commerce.
     (c) If any question arises as to the transfer of any personnel, funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.
     (3) All employees of the office of minority and women's business enterprises classified under chapter 41.06 RCW, the state civil service law, are transferred and assigned to the department of commerce to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.
     (4) All rules and all pending business before the office of minority and women's business enterprises shall be continued and acted upon by the department of commerce. All existing contracts and obligations shall remain in full force and shall be performed by the department of commerce.
     (5) The transfer of the powers, duties, functions, and personnel of the office of minority and women's business enterprises shall not affect the validity of any act performed before the effective date of this section.
     (6) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.
     (7) All classified employees of the office of minority and women's business enterprises assigned to the department of commerce under this section whose positions are within an existing bargaining unit description at the department of commerce shall become a part of the existing bargaining unit at the department of commerce and shall be considered an appropriate inclusion or modification of the existing bargaining unit under the provisions of chapter 41.80 RCW.

NEW SECTION.  Sec. 15   This act takes effect July 1, 2010.