State College is once again considering a Responsible Contractor Ordinance for public construction projects in the borough, this time with a provision that elicited some controversy when a similar measure was passed by Centre County government in 2023.
Borough Council during a work session on Monday informally voice support for including a requirement in the ordinance that would require a certain percentage of the craft labor workforce on projects over $250,000 to be journeypersons who have completed a state- or federally-approved apprenticeship training program or registered apprentices currently enrolled in such a program.
The draft ordinance included in Monday night’s agenda didn’t specify the percentage, but the county’s RCO has a 70% requirement. Opponents of the county’s RCO contended that would favor union shops and disqualify from bidding otherwise qualified non-union contractors who have years of experience and training.
No formal vote was taken on Monday and the discussion was meant to provide guidance to borough staff for preparing an ordinance to vote on at a future meeting.
The ordinance would establish new requirements for contractors to be eligible for borough-owned projects of $250,000 or more.
State law and the borough purchasing code require contracts to be awarded to the lowest responsible bidder but do not define “responsible.” RCOs, proponents say, aim to ensure worker safety and timely, cost-effective work on public projects.
Borough Council considered the ordinance last December, but members agreed at the time to postpone consideration until 2024 for further deliberation.
Like the draft considered last year, the proposed ordinance on the agenda for Monday’s work session included a requirement that contractors must certify that they will pay craft workers prevailing wage by the appropriate job classification. That extends to subcontractors and off-site custom fabrication for non-standard goods and materials for a project, the latter a requirement that received some pushback at the county level.
It also prohibits bids from being awarded to contractors who in the past 10 years have been convicted of a crime related to the contracting business or in the past three years had a contracting license or certificate revoked, been debarred or suspended by a government agency, defaulted on any project or been found in violation of any law applicable to their contracting businesses.
The ordinance would require all craft labor working on a borough project to have completed the Occupational Safety and Health Administration’s 10-hour safety training course for safety and at least one person with OSHA 30 training.
The draft ordinance last year did not include the apprenticeship provision because the borough, unlike the county, is a home-rule government. Borough solicitor Terry Williams advised that the state legislation enabling home rule prohibits municipalities from “determining duties, responsibilities or requirements to be placed upon business, occupations and employers,” and including the apprenticeship provision would leave the borough open to legal challenges.
Williams offered the same caution on Monday. He also cited a Pittsburgh ordinance that was not related to contractors, but rather for governing rental properties, that was struck down by Commonwealth Court last year under the “business exclusion” of the home rule law.
At the start of the discussion, however, Borough Manager Tom Fountaine said it was council’s decision whether or not to include it.
“If council does choose to present this and litigation results, then the borough will defend that litigation,” Fountaine said. “This is an issue that is very narrowly focused on a home rule statute in a case that was decided by the Pennsylvania Commonwealth Court in 2023 that is currently before the Pennsylvania Supreme Court specifically related to that business regulation process.”
Representatives of three labor organizations spoke during public comment and said RCOs have been in place throughout Pennsylvania, including in several home rule municipalities, without issue.
Connor Lewis, president of the Seven Mountains AFL-CIO, said RCOs have been litigated and upheld throughout the country.
“This is not a controversial item,” Lewis said. “It’s a well-litigated item, and I think that with any piece of legislation there is a risk that at some point in the future other pieces of law will then raise additional potential legal theories, but that’s a risk of anything. I find it curious that that is prohibitive to acting now when there is a much larger body of established case law that affirms that this is something that is entirely within the borough’s power to do.
“So we’re ignoring the established case law and taking a speculative future thing that hinges on a pending court decision that is completely unrelated to the question at hand. Because with respect, the question of regulating tenant-landlord relations has no applicability to the ability of a borough to set its own procurement code and standards for projects that are being paid for purely with public dollars. The two are not comparable in any way, shape or form.”
An RCO is “merely a bid spec” that informs potential bidders of what the borough has determined to be responsible for a project, said Jim Enders, president of the Central Pennsylvania Building and Construction Trades Council.
“It’s not an attempt at the regulation of any business. No business is required to ever bid on a project of public works,” Enders said. “We believe that the limitation on home rule bodies in determining duties, responsibilities and requirements to be placed upon business occupations and employers is not relevant to an RCO. I’m not an attorney. I’m a welder with a desk job. job. The interpretation of the home rule will leave up to you, but we believe the RCO language is merely a bid spec similar to that of the square footage requirements of a building, the color of the paint on an interior wall or the quantity of toilets that are required in a women’s bathroom.”
Both Enders and Mike Guigley, a business representative for Sheet Metal Workers Local 19, said that if council does not include the apprenticeship requirement, they should not pass an RCO at all.
“I’d rather have none than a watered down version,” Guigley said.
“We fight to raise the standards for all working families, whether you’re union or not.,” Enders added. “We firmly believe that the highest quality of workmanship should be delivered on every job site, union or not. Registered apprenticeship programs are the best way to do it.”
Council members who offered comment made clear they were in favor of the ordinance and including the apprenticeship provision.
“We’ve seen serious injuries, even deaths from contractors working in the borough in recent years,” Councilman Matt Herndon said. “There’s no way to 100% ensure that these tragedies never happen again, but we should do our best to avoid them in the future. And this ordinance is a step in the right direction.”
Councilman Josh Portney said that every worksite death or injury “is not only morally wrong but it’s also an economic cost for us.”
“I think we need to do everything we can to prevent those kinds of losses or injuries,” Portney said.
Councilman Gopal Balachandran pointed out that the ordinance has a severability clause, meaning that if one part is challenged and struck down, the rest will remain in effect. He also noted that the City of Reading is home rule and has an RCO with apprenticeship requirements that has not been challenged.
Council President Evan Myers cited his personal experience. His father lost a finger while working in Philadelphia textile factory and later, as a union member working on radar at New Jersey RCA plant, collaborated with management to train workers in apprenticeship programs “so they were learning how to do things safely.”
That’s why personally I feel very strongly about including this,” Myers said. “I do understand the interpretation from the solicitor, but as Manager Fountaine has said, it’s up to us to make that decision.”
It was not yet clear when the RCO would appear on a borough council voting agenda. Council’s next meeting is scheduled for 7 p.m. on Monday, Sept. 16.
