Could Louisiana Social Services ask its contractors for minority, faith-based, and community-based status after awarding a contract?

Plain-English summary

The Department of Social Services asked whether it could collect three kinds of information from private entities already under contract: minority status, faith-based status, and community-based status. The AG concluded the Department could collect the information for statistical and planning purposes. Its view depended in part on the Department asking after the contract award, so the information was not part of selecting the contractor.

For minority status, the AG said a post-award inquiry for those purposes did not appear prohibited by state or federal discrimination law. For faith-based and community-based status, it found little law specifically addressing collection of such data. It pointed to federal data-collection practice and said a voluntary request was more acceptable, again stressing the completed contract award.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the Department ask a contractor for its minority status?

The AG said a post-award inquiry for statistical and planning purposes did not appear prohibited by the discrimination laws it considered. Its answer was tied to asking after the private service contract had been awarded.

Could it ask whether a contractor was faith-based or community-based?

The AG said asking for that information did not seem contrary to law. It favored a voluntary request and cited federal practice in identifying faith-based grantees.

Did the opinion approve using the answers to choose contractors?

No. The question and answer concerned information collected after contracts were finalized. The AG emphasized that timing as protection against bias or discrimination accusations.

Background and statutory framework

The opinion cited Executive Order No. 13279 and a federal report on faith-based grants as examples of collecting participation information. It observed that case law on faith-based initiatives did not answer the specific data-collection question. Its conclusion addressed the Department's described post-award statistical and planning use.

Citations

• Executive Order No. 13279 (federal faith-based organization data collection described in the opinion).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/06-0040

Original opinion text

August 28, 2006
OPINION NUMBER 06-0040

12-A Contractors
90-A-1 Public Funds and Contracts
Mr. Steven L. Mayer, Esq.
General Counsel
The Department of Social Services may collect certain
information for statistical and planning purposes from
Department of Social Services
private service entities under contract with the Department.
755 Third Street, 2nd floor
P.O. Box 1887
Baton Rouge, LA 70821

Dear Mr. Mayer:

On behalf of the Department of Social Services, you have requested an opinion of this office regarding the legal authority of the Department of Social Services to collect and use certain information for statistical and planning purposes from private service contractors which have entered into contracts with the Department. More specifically, you ask whether the Department of Social Services can collect the following information from these contractors: 1) the minority status of the provider; 2) whether the provider is faith-based; and 3) whether the provider is community-based.

It is widely held as acceptable practice for state and federal governments to ask for the minority status of employees, applicants, and other entities that contract or enter into agreements with government bodies. In your particular situation, because inquiring on the minority status of the provider will not take place until after the private service contract has been awarded, asking the minority status for statistical and planning purposes would not appear to be prohibited by any state or federal discrimination laws.

While there is a great deal of case law concerning the validity of faith-based initiatives, our office has been unable to find any cases that deal with the collection of data of such entities, nor of community-based services. Many faith- based and community-based services are approved and supported at the state level, through departments such as yours, and information on how such data is collected is scarce. However, as part of the newly created White House Office of Faith-Based and Community Initiatives, President George W. Bush signed an executive order mandating that any such state or local agency shall:

“…implement new policies that are necessary to ensure that their respective agencies collect data regarding the participation of faith- based and community organizations in social service programs that

Page 2

Opinion Number 04-0040
Mr. Steven L. Mayer
General Counsel
Department of Social Services
Page: -2-

receive federal financial assistance” (George W. Bush, Executive Order No. 13279, 2002.

That executive order establishes that the various state agencies that dole out federal assistance and social service funds collect data on faith-based and community services, but it provides little direction in how to do so. More information can be gleaned from analyzing the White House’s annual report on Grants to Faith-Based Organizations, Fiscal Year 2005). On the final page of this report, released March 9, 2006, the report states:

“In compiling this data, the Federal agencies made good-faith efforts to identify FBO’s based on information gathered from a variety of sources, including an optional survey distributed with federal grant applications…While the self-identification method was the preferred approach to identifying FBO’s, it was not the only method used. In cases in which applicants did not fill out the surveys, agencies relied on other methods of identification, such as administrative reports, web sites, and phone inquiries.”

In essence, asking private service contractors to provide faith-based and community service information does not seem to run contrary to law. It would be more acceptable in your matter to ask on a voluntary basis, much as how the White House and federal agencies have done for the above yearly report. The fact that your office will not ask for such information until the private service contract with your department is already finalized will safeguard the State against any potential accusations of bias or discrimination and still permit the Department of Social Services to effectively carry out its goal of data collection for statistical and planning purposes.

We trust this adequately responds to your request. If you have any questions or comments, please do not hesitate to contact our office.

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY: _____
CHARLES BRAUD
Assistant Attorney General
CCF, Jr./CHB, Jr./sk

Page 3

SYLLABUS
OPINION NUMBER 06-0040

12-A Contractors
90-A-1 Public Funds and Contracts

The Department of Social Services may collect certain information for statistical and planning purposes from private service entities under contract with the Department.

Mr. Steven L. Mayer, Esq.
General Counsel
Department of Social Services
755 Third Street, 2nd floor
P.O. Box 1887
Baton Rouge, LA 70821

DATE RECEIVED:

DATE RELEASED: August 28, 2006

Charles H. Braud, Jr.
Assistant Attorney General