Chapter 2.64
RESIDENT PREFERENCE FOR EMPLOYMENT ON PUBLIC WORKS PROJECTS
Sections:
2.64.020 Statement of purpose.
2.64.050 Employment preference.
2.64.060 Eligibility for preference.
2.64.070 Projects subject to preference.
2.64.080 Reduction of work force.
2.64.090 Application to contracts involving federal or state funds.
2.64.100 Unavailability of preferred workers.
2.64.120 Chapter incorporated in contracts.
2.64.130 Resident hire reports.
2.64.140 Reporting provisions.
2.64.160 Publication of list of violators.
2.64.010 Findings of fact.
The assembly finds that:
A. Because of its unique climate, distance from the contiguous states, and isolation from the more populated portion of this state, the borough has historically suffered from unique social, seasonal, geographic and economic conditions that result in an unstable economy;
B. The lack of employment opportunities in the borough has substantially contributed to serious social and economic problems in the borough, including high rates of alcoholism and suicide;
C. The unstable economy is a hardship on the residents of the borough and is aggravated by the large numbers of seasonal and transient nonresident workers;
D. The rate of unemployment among residents of the borough is one of the highest in the state and nation and the current rate of unemployment in the borough substantially exceeds the national rate of unemployment;
E. The borough has one of the highest ratios of nonresident-to-resident workers in the state and nation;
F. The borough has a compelling interest in reducing the level of unemployment among its residents;
G. The construction industry in the borough accounts for a substantial percentage of the available employment;
H. Historically, the rate of unemployment in the construction industry in the borough is higher than the rate of unemployment in other industries in the borough;
I. It is appropriate for the borough to consider the welfare of its residents when it funds construction activity;
J. It is in the public interest for the borough to allocate public funds for capital projects in order to reduce unemployment among its resident construction workers;
K. The influx of nonresident construction workers contributes to or causes the high unemployment rate among resident construction workers because nonresident workers compete with residents for the limited number of available construction jobs;
L. A substantial number of residents in the borough have experience or training in occupations that would be employed on public works projects;
M. Nonresident workers displace a substantial number of qualified, available and unemployed borough workers on jobs on borough-funded, public works projects;
N. The borough has a special interest in seeing that the benefits of borough construction spending accrue to its residents;
O. The borough, when acting as a market participant in funding public works projects, should give borough residents an employment preference to promote a more stable economy;
P. The borough has a duty of loyalty to its citizens and should fulfill this duty by giving residents preference for employment on public works projects it funds;
Q. There is a legitimate and compelling governmental interest and the public health and welfare will suffer if borough residents are not afforded employment preference in borough-funded, construction-related work;
R. The number of borough residents who are unable to find work is substantially higher than is reflected by unemployment rates based on nationally accepted measures;
S. Many borough residents who wish to work do not seek employment as frequently as necessary to meet federal definitions of unemployment because of continuing lack of employment opportunities in the borough;
T. A majority of borough residents are Inupiat and they have a disproportionately higher rate of unemployment than of non-natives. Such lack of employment is not due to lack of skills, but is rather due to a lack of knowledge by contractors as to the skills of the local labor force;
U. Most of the Inupiat citizens of the borough are shareholders of the NANA Regional Corporation. The NANA Corporation has undertaken an extensive inventory of manpower skills of its shareholders and their spouses;
V. The state of Alaska operates a State Employment Services for all the citizens of the state within the borough;
W. There are numerous other agencies within the borough involved in providing employment services and manpower training opportunities;
X. There is a need to make this manpower information network more efficient. (Ord. 87-19am § 2 (6.32.005), 1987)
2.64.020 Statement of purpose.
The assembly has enacted this chapter in response to problems and concerns identified by the findings of fact in NABC 2.64.010 to:
A. Ensure that qualified resident workers do not remain unemployed while nonresident workers are employed on construction projects funded by the borough if the purpose of the project includes reducing the unemployment of residents;
B. Ensure that qualified resident workers do not remain unemployed while nonresident workers are employed on construction projects funded by the borough; and
C. Reduce the level of unemployment among residents of the borough. (Ord. 87-19am § 2 (6.32.010), 1987)
2.64.030 Definitions.
In this chapter, the following words shall have the meanings prescribed.
“Qualified” means possesses the requisite education, training, skills or experience to perform the work.
“Resident” means a person who establishes residency under the following criteria:
1. A person establishes residency in the borough by being physically present in the borough with the intent to remain in the borough indefinitely and to make a home in the borough;
2. A person demonstrates the intent required under subdivision (1) of this definition:
a. By maintaining a principal place of abode in the borough for at least 30 days or for a longer period if a longer period is required by ordinance or regulation; and
b. By providing other proof of intent as may be required by ordinance or regulation, that may include proof that the person is not claiming residency outside the borough or obtaining benefits under a claim of residency outside the borough.
A person who establishes residency in the borough remains a resident during an absence from the borough unless during the absence the person establishes or claims residency in another city, territory or country, or performs under acts or is absent under circumstances that are inconsistent with the intent required under subdivision (1) of this definition to remain a resident of this borough. (Ord. 87-19am § 2 (6.32.310), 1987)
2.64.040 Borough policy.
It is the policy of the borough that, to fulfill the duty of loyalty owed to its citizens and to remedy social or economic problems, the borough will grant an employment preference to residents when the borough is acting as a market participant. (Ord. 87-19am § 2 (6.32.020), 1987)
2.64.050 Employment preference.
A. In the performance of contracts let by the borough for construction, repair, preliminary surveys, engineering studies, consulting, maintenance work or any other retention of services necessary to complete any given project, residents shall be employed, at a rate of at least 50 percent, where they are available and qualified. In all cases of public works projects, preference shall be given to residents.
B. When a construction project is partly or wholly funded by or through the borough or agency of the borough, a department, office, agency, borough board, commission or other organizational unit of or created under the executive or legislative branch of borough government, including the utilities, is a signatory to the construction contract, the contract shall require that the worker hours on a craft-by-craft basis shall be performed at least 50 percent by bona fide borough residents. (Ord. 87-21, 1987; Ord. 87-19am § 2 (6.32.030), 1987)
2.64.060 Eligibility for preference.
A. A person is eligible for an employment preference under this chapter if the person certifies eligibility as required by the mayor, is a resident of the borough, and:
1. Is receiving unemployment benefits under AS Chapter 23.23 or would be eligible to receive benefits but has exhausted them;
2. Is not working and has registered to find work with a public or private employment agency or a local hiring hall;
3. Is underemployed or marginally employed as defined by the mayor; or
4. Has completed a job-training program approved by the State Department of Labor, is either not employed or is engaged in employment that does not use the skills acquired in the job-training program.
B. An employer subject to a resident hiring requirement under this chapter shall certify that persons employed as residents under the preference were eligible for the preference at the time of hiring.
C. A labor organization that dispatches members for work on a public works project under a collective bargaining agreement shall certify that person dispatched as residents to meet a preference were eligible for the preference at the time of dispatch.
D. An employer or labor organization may request assistance from the certification agency in verifying the eligibility of an applicant for a hiring preference under this chapter. (Ord. 87-19am § 2 (6.32.100), 1987)
2.64.070 Projects subject to preference.
The preference established in this chapter applies to work performed:
A. Under a contract for construction, repair, preliminary surveys, engineering studies, consulting, maintenance work or any other retention of services necessary to complete a given project that is let by the borough, a department office, board, commission or other organizational unit of or created under the executive or legislative branch of borough government, including the utilities;
B. On a public works project;
C. On a public works project under a grant from the borough to a named recipient;
D. On any other public works project or construction project that is funded in whole or in part by borough money. (Ord. 87-19am § 2 (6.32.110), 1987)
2.64.080 Reduction of work force.
When a work force is reduced, resident workers, except supervisory personnel, shall be terminated last. (Ord. 87-19am § 2 (6.32.040), 1987)
2.64.090 Application to contracts involving federal or state funds.
In a contract involving expenditure of federal aid funds or state aid funds, this chapter may not be enforced in a manner that conflicts with federal or state statutes giving preference to veterans or prohibiting other preferences or discriminations among United States or Alaskan citizens. (Ord. 87-19am § 2 (6.32.050), 1987)
2.64.100 Unavailability of preferred workers.
A. NANA Regional Corporation office in Kotzebue and the State of Alaska Job Service in Kotzebue are designated as the contact agencies.
B. If the contact agencies are unable to refer a sufficient number of qualified, eligible, available residents able to perform the work, they shall provide a letter to the employer and mayor that such residents are not available and such certification shall serve as an exemption to the requirement of NABC 2.64.050(B). To be eligible for this exemption the employer must contact and receive a letter from all designated contact agencies.
C. In the event any employee’s position becomes vacant for any reason and the employer is required to refill such position, it shall notify the contact agencies within 24 hours of such vacancy. Within 48 hours of such notification, the certification agency shall either comply with subsection (A) or (B) of this section. (Ord. 87-21, 1987; Ord. 87-19am § 2 (6.32.060), 1987)
2.64.110 Duties of mayor.
A. The mayor shall promulgate regulations necessary to carry out the provisions of this chapter, including but not limited to the method, time and content of reporting by employers covered by this chapter and reporting provisions permitting ongoing supervision by the borough on all public works projects covered by this chapter.
B. The mayor shall adopt rules to encourage and require the hiring of residents to the maximum extent permitted by law. (Ord. 87-19am § 2 (6.32.070), 1987)
2.64.120 Chapter incorporated in contracts.
The provisions of this chapter are considered to be a part of every public works contract let after the effective date of the ordinance codified in this chapter. (Ord. 87-19am § 2 (6.32.080), 1987)
2.64.130 Resident hire reports.
A. With each certified payroll, the contractor shall provide to the borough finance department a resident hire report which identifies each employee, his or her craft, and their place of residency.
B. At the completion of each job, the contractor shall provide to the borough finance department a total summary by craft and residency of persons employed on the project.
C. The borough finance department shall review the certified payrolls submitted by the contractor and shall investigate and, if necessary, prepare complaints of violations pursuant to NABC 2.64.170(A).
D. The mayor shall report annually to the assembly on the status of employment in the borough, the effect of nonresident employment on the employment of residents in the borough, and methods to increase resident hire. The report shall be submitted by January 31st of each year. (Ord. 87-19am § 2 (6.32.090), 1987)
2.64.140 Reporting provisions.
An employer obligated to meet resident hire requirements under this chapter shall comply with the reporting provisions of NABC 2.64.130 and such other reports that the mayor determines are reasonably necessary to carry out this chapter. Except for statistical data, all information regarding specific employees is confidential and may not be released by the borough. (Ord. 87-19am § 2 (6.32.120), 1987)
2.64.150 Applicability.
The provisions of this chapter do not apply to a contract entered into before the effective date of the ordinance codified in this chapter unless the contract includes a provision requiring compliance with laws regarding the hiring of Alaska residents that take effect during the term of the contract. (Ord. 87-19am § 2 (6.32.320), 1987)
2.64.160 Publication of list of violators.
A. The mayor shall distribute to all departments and agencies of the borough a list of the names of persons or firms convicted of a violation of this chapter. No person appearing on the list and no firm, corporation, partnership or association in which the person has an interest may work as a contractor or subcontractor on a public construction contract for the borough until after three years from the date of publication of the list.
B. A borough department head found to be in violation of this chapter may be required to forfeit the position of department head.
C. A person, firm, corporation, partnership or association covered by the provisions of this section who is not satisfied by a decision of the mayor may, as the final administrative process, appeal the decision to the assembly. The assembly may, upon a showing of hardship, waive all or any part of the penalty provisions of this chapter. (Ord. 87-19am § 2 (6.32.210), 1987)
2.64.170 Civil penalties.
A. In addition to any criminal penalties imposed, after a hearing the mayor may impose civil penalty on a person who, in connection with certification of eligibility for an employment preference under this chapter:
1. Makes a false sworn statement; or
2. Makes an unsworn falsification with intent to mislead a public servant in the performance of a duty.
B. The amount of civil penalty under subsection (A) of this section for a person who falsely certifies that the person is eligible for an employment preference under this chapter is not more than $250.00 for each false certification.
C. The amount of civil penalty under subsection (A) of this section for an employer who falsely certifies that employees are residents eligible for a preference under this chapter is not more than $500.00 for the first false certification. The penalty for the second false certification made by an employer and for each false certification thereafter is at least $500.00, and not more than $1,000, and forfeiture of all borough contracts affected.
D. The amount of civil penalty under subsection (A) of this section for an employer who fails to comply with the requirements of NABC 2.64.050(A) shall be not more than $500.00 for each day and each craft for which the requirements of NABC 2.64.050(A) are not met. It shall be an affirmative defense that the employer has received from the certification agency pursuant to NABC 2.64.100(B) that no available persons were available. (Ord. 87-19am § 2 (6.32.200), 1987)