936 1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS 2 EASTERN DIVISION 3 BUILDERS ASSOCIATION OF GREATER ) CHICAGO, ) 4 Plaintiff, ) ) No. 96 C 1122 5 v. ) Chicago, Illinois ) 6 CITY OF CHICAGO, ) May 28, 2003 Defendant. ) 2:00 p.m. 7 TRANSCRIPT OF PROCEEDINGS - TRIAL 8 BEFORE THE HONORABLE JAMES B. MORAN VOLUME 9 9 APPEARANCES: For the Plaintiff: MR. TIMOTHY R. CONWAY 10 MR. JOHN S. MROWIEC MR. EDWARD B. KEIDAN 11 CONWAY & MROWIEC 20 Clark Street, Suite 750 12 Chicago, Illinois 60606 (312) 658-1100 13 For the Defendant: MR. BRIAN L. CROWE 14 MR. CARY E. DONHAM MR. JACK J. HAGERTY 15 MR. GREGORY C. WARD SHEFSKY & FROELICH, LTD. 16 444 North Michigan Avenue, Suite 2500 Chicago, Illinois 60611 17 (312) 527-4000 18 For Intervenors: MR. MICHAEL K. FRIDKIN COMMITTEE FOR CIVIL RIGHTS UNDER LAW, INC. 19 100 North LaSalle Street, Suite 600 Chicago, Illinois 60602 20 (312) 630-9744 21 MR. JACK L. BLOCK MS. MARYANNE C. WOO 22 SACHNOFF & WEAVER, LTD. 30 South Wacker Drive, 29th floor 23 Chicago, Illinois 60606 (312) 207-1000 24 MICHAEL P. SNYDER 25 Official Reporter, United States District Court Telephone (312) 435-5563 937 Grzyb - direct by Crowe 1 (Proceedings in open court.) 2 MR. CROWE: Proceed, Judge? 3 THE COURT: Yes. 4 MR. CROWE: Mr. Grzyb, would you take the witness 5 stand, please. 6 ALEXANDER GRZYB, DEFENDANT'S WITNESS, SWORN 7 DIRECT EXAMINATION 8 BY MR. CROWE: 9 Q. Good afternoon, Mr. Grzyb. 10 A. Good afternoon. 11 Q. Would you state your name for the record and spell your 12 last name, please. 13 A. My name is Alexander Grzyb. It's spelled G-r-z-y-b. 14 Q. And what is your current occupation, Mr. Grzyb? 15 A. I'm senior vice-president of East Lake Management. 16 Q. And prior to working at East Lake, where did you work? 17 A. I worked for Nicor Gas in Naperville. 18 Q. And before Nicor, were you employed by the City of Chicago? 19 A. Yes, I was. 20 Q. What was your job there, sir? 21 A. I was acting purchasing agent. 22 Q. And when did you become acting purchasing agent? 23 A. It would have been May of '89. 24 Q. And who appointed you to that position? 25 A. Mayor Richard M. Daley. 938 Grzyb - direct by Crowe 1 Q. How long did you hold the job, sir? 2 A. Until the year 2000. 3 Q. Okay. Now, when you became acting purchasing agent in 4 1989, did you take any steps to improve the way the purchasing 5 department functioned? 6 A. Well, upon beginning my employment there, one of the very 7 first things I became aware of was a problem with the MBE/WBE 8 situation, and that was that I happened to watch a 60 Minutes 9 program, and one of the problems that was highlighted in that 10 was the fact that the MBE/WBE situation was that, the criticism 11 was that the minority contractors were listed on the contract 12 submissions to the City, but they were never notified. 13 So what we did, because we just didn't have the 14 capability to get that on computer right away, we actually 15 issued postcards to these minority subcontractors so they would 16 be aware that they were in fact listed on these contracts so 17 they would be aware of their share of responsibility and the 18 fact that they would be included in the contract and entitled 19 to do the work and to be paid for it. 20 Q. Okay. And did you take any other steps in regard to the 21 MBE/WBE situation in the construction area? 22 A. The construction area, the one thing that became very 23 apparent was the fact that we had a huge backlog of 24 construction jobs that had not been closed out. By that, I 25 mean that these constructions, there were still retainage that 939 Grzyb - direct by Crowe 1 the City held, and what we did was we did kind of a full court 2 press, put extra effort in to clean up the backlog in terms of 3 having the compliance unit review all of those contracts and 4 close them out so that any money that was due the MBE/WBEs 5 would be paid to them. 6 Q. I am going to ask you about the City's vendors list in the 7 purchasing department. Would you tell Judge Moran what the 8 City's vendors list was, and then I am going to ask you after 9 that, once you explain it to us, if you did anything while you 10 were acting purchasing agent about that. 11 A. Well, there was a vendor list, and after I looked at it, I 12 couldn't believe that there were that many businesses in one 13 state. We had a list of, it had to be close to 100,000, maybe 14 90, 95,000 businesses listed. 15 So we started to go through those and to verify 16 whether or not they in fact even existed, and what we did find, 17 the majority of them did not, either they had gone out of 18 business, and also very many of them had actually expired and 19 were no longer certified. 20 Q. And what did you do in regard to that huge vendors list, 21 sir? 22 A. Well, what we did was we actually sent out questionnaires 23 or surveys to all of these companies and asking them not only 24 were they still in business, but if they were interested in 25 doing business with the City, and also to list their area of 940 Grzyb - direct by Crowe 1 expertise or what types of goods or services that they in fact 2 thought they could supply to the City of Chicago. 3 Q. And what did you get it down to? 4 A. We actually got it down to I believe around 10,000. 5 Q. Now, this applied to all contractors? 6 A. Across the board. 7 Q. Not just MBEs or WBEs? 8 A. No, no. All contractors. 9 Q. And did you do anything after the list had been whittled 10 down to 10,000 vendors? 11 A. After, well, Sharon Byrnes worked on that project. 12 Q. She worked for you? 13 A. Yes. And so what we did was we actually went through the 14 list, and we went also to our certification process. 15 Q. And did you send out any questionnaires to the people on 16 the list? 17 A. Yes, we sent out questionnaires, and we -- I recall we got 18 quite a few back, I would think probably half of them at least, 19 so I think we received over 5,000 responses. 20 Q. What kind of questions did you ask them? 21 A. Well, we asked if they were, if they in fact were able to 22 supply the City with goods and services, and also we included 23 other information that was supplied to us by other vendors that 24 might be helpful to them. 25 Q. And you found the response quite active, did you? 941 Grzyb - direct by Crowe 1 A. I thought very much so. 2 Q. I want to take you back to 1990. Did you ever meet with 3 any representatives of what was called the blue ribbon panel 4 that was considering a minority and women-owned business 5 procurement program at that time? 6 A. Yes, I did. 7 Q. What did you do? 8 A. I met with some of the panel, several of the panel members 9 and other staff and other people regarding that, and basically 10 we provided them with all of our information, our cooperation 11 of all of our people, and any statistical information that we 12 had and facts that we had regarding the program, and we just 13 opened up, we kind of opened up our doors and wanted them to 14 know that we had an open-door policy and wanted to make sure 15 that it was open to them also. 16 Q. And did members of the blue ribbon committee work with the 17 law department people at that time? 18 A. Yes. 19 Q. And did they ask you questions, ask questions of the 20 department of purchases? 21 A. Yes. 22 Q. And did you fully answer them and cooperate with them? 23 A. Of course. 24 Q. Did it appear to you that they were interested in the way 25 the purchasing department operated? 942 Grzyb - direct by Crowe 1 A. Very much so. 2 Q. Did you in 1990 testify before the city council when it 3 considered that ordinance? 4 A. Yes, I did. 5 Q. And was your testimony, sir, in support of that ordinance? 6 A. Absolutely, it was. 7 Q. Let me ask you at this point. And you were under oath at 8 that time? 9 A. Yes. 10 Q. And all the questions that you gave were -- answers you 11 made were truthful, is that correct? 12 A. Yes. 13 Q. Tell us the nature of your testimony before the blue ribbon 14 committee. 15 A. Well, when I spoke to, at the city council, basically I 16 recall telling them that in my opinion, my experience, that the 17 M/WBE ordinance was absolutely necessary for the survival of 18 minority vendors in general. That was really the feeling I 19 got, that without it, it would have, wouldn't exist, I mean, I 20 don't believe they would get the work. 21 Q. When you became purchasing agent or acting purchasing agent 22 in 1989, was there an executive order that had been in place 23 signed by Harold Washington? 24 A. Yes. 25 Q. And in spite of that executive order which set aside 943 Grzyb - direct by Crowe 1 requirements, did you notice any resistance to involvement of 2 MBEs and WBEs by contractors and user departments in the City 3 of Chicago? 4 MR. CONWAY: Objection, Your Honor, lack of 5 foundation and an improper opinion. 6 MR. CROWE: I only asked him what he heard and what 7 you he saw, Judge, that's all. 8 THE COURT: If he is going to talk about what he 9 heard and what he saw -- 10 BY MR. CROWE: 11 Q. Tell the Judge, did you see resistance on the part of 12 contractors, resistance on the part of user departments? And 13 all Judge Moran wants to know is what you heard and what you 14 saw, sir. 15 A. Yes. Yes, I actually did. I, from -- actually from both 16 resistance from contractors and also resistance from people 17 that we worked with in the various user departments. 18 One of the examples personally that hit me was I was 19 observing, actually it was kind of ironic because I was 20 observing the Harold Washington Library just being started, it 21 was being built, and I remember going by it and noticed that it 22 was already out of the ground and they were up to the first 23 floor. So I, you know, just happened to ask Paul Spieles, 24 because he was more or less overseeing that project. 25 Q. Could you spell Mr. Spieles' name so the reporter doesn't 944 Grzyb - direct by Crowe 1 have to say to me after court, "How do you spell that Spieles?" 2 A. S-p-i-e-l-e-s. 3 Q. What was his job there, sir? 4 A. His job was he was a deputy purchasing agent at the time. 5 Q. He worked for you? 6 A. Yes. 7 Q. Tell us about it now. I'm sorry. 8 A. So at any rate, so I checked with him and found out that 9 there was virtually no minority participation. I thought to 10 myself, well, this library is being built in honor of the first 11 African-American mayor, and I just thought it wasn't right that 12 there was virtually no participation. 13 Q. Was that in about '89, sir? 14 A. Yes. 15 Q. Did you do anything about it? 16 By the way, let me ask you, who was the general 17 contractor, general manager on that job, do you know? 18 A. Actually it was a joint venture with Schal and U.S. 19 Equities. 20 Q. And did you speak to anyone at U.S. Equities? 21 A. Yes, I did. I contacted them directly myself and also 22 through people in addition to myself to let them know that they 23 were expected to comply with minority participation on that 24 project. It was such a large project, it was over 140 25 million-dollar project, so we had to follow that both 945 Grzyb - direct by Crowe 1 constructionwise and also in the compliance area. 2 Q. And what did people in the control group of, at U.S. 3 Equities tell you relative to MBE participation, sir? 4 MR. CONWAY: Objection, Your Honor, hearsay. 5 THE COURT: It can be what was represented to him. 6 Go ahead. 7 BY THE WITNESS: 8 A. Basically, Your Honor, what they had told me was that it 9 was going to take about two years to construct the building, 10 and they would do it on the tail end of the job. And I had a 11 problem with that because we experienced, you know, if we 12 believed everyone that way and believed them, we would end up 13 not having any. The building would be built, and the 14 opportunity would be lost. 15 So we worked with them, and pretty much it was a day 16 in day out on the compliance end, the construction end, and the 17 building. Actually, they did end up in compliance when the 18 building was finished, and it was finished on time. 19 BY MR. CROWE: 20 Q. And did they work, and did they comply pursuant to you 21 trying to enforce the policies of the City of Chicago as far as 22 race and gender was concerned? 23 A. Yes. 24 Q. By the way, did you notice if -- there was a 25 and 5 25 percent usage city contracts we have heard about ad nauseam in 946 Grzyb - direct by Crowe 1 this court. When you were acting as a purchasing agent, did 2 there seem to be sufficient capacity of minorities and women to 3 satisfy that? 4 A. Yes. 5 MR. CONWAY: Objection, Your Honor, improper opinion 6 and foundation. 7 THE COURT: When he was purchasing agent? 8 MR. CROWE: Yes. 9 THE COURT: He can testify as to what he observed at 10 the time. 11 BY MR. CROWE: 12 Q. Did there appear to be adequate capacity? 13 A. Yes. What we did was, as a result of all these surveys and 14 the information we got from the various departments, we knew 15 what our vendor base was both in the general vendor base and 16 also with the MBE/WBE, and we actually had a directory that 17 would list all of them that were certified, and there were -- 18 so, anyway, that was my opinion that there definitely was a 19 large enough field of MBE/WBEs out there. 20 Q. I want to pick up on the word "certified." Tell me, while 21 you were acting purchasing agent, how was the minority and 22 women business enterprise certification handled, Mr. Grzyb? 23 A. When we looked at the forms that were originally used, they 24 were very lengthy and cumbersome and confusing, and what we did 25 was -- 947 Grzyb - direct by Crowe 1 Q. You say "we." Did you have people working in the 2 certification department? 3 A. Yes. 4 Q. How many? 5 A. About probably four or five. 6 Q. That was their job? 7 A. Right. 8 Q. What did you and those particular assigned people do in 9 regard to improving the certification system? 10 A. Well, what we did was we actually went through the old 11 applications and basically streamlined them, shortened them, 12 made them easier to understand and less cumbersome. 13 Q. How about as far as recertification was concerned? 14 A. That was another area that we felt we were tying up too 15 much time of our employees and also creating an additional 16 larger burden on those businesses. So what we did was we 17 actually did a very short form and basically just, it was an 18 affidavit form, Your Honor, where they would just attest to the 19 fact that there have been no changes in ownership or major 20 changes, so that we didn't have to go through the same lengthy 21 process every year. 22 Q. After the enactment of the ordinance, the ordinance that we 23 are talking about at trial here, was there a separate unit 24 within the purchasing department that dealt with construction 25 contracts? 948 Grzyb - direct by Crowe 1 A. Yes, there was the construction unit that dealt with that. 2 Q. And how many people were in that unit? 3 A. Three or four people. 4 Q. And what did these people do, what was their assigned task? 5 A. What they would do is they would receive the initial 6 specifications from user departments, and they would review 7 them and actually get the specifications in the final form to 8 be advertised. 9 Q. Okay. And was there also a compliance division? 10 A. Yes. 11 Q. Would you tell His Honor how many people you had in 12 compliance and what their job was. 13 A. There were approximately four, four or five people in that 14 unit, and basically what they would do is they would verify a 15 lot of the, on the job sites to make sure that the 16 subcontractors or the minority contractors were actually out 17 there. They would go out to the work trailers and verify the 18 payrolls to show which MBEs/WBEs were actually on the job and 19 how many there were. 20 Q. And there were compliance officers that did that that were 21 under the compliance division, is that correct? 22 A. Yes. 23 Q. What is meant by user department? We have talked about 24 that at trial. You are the person that dealt with user 25 department. What is it? 949 Grzyb - direct by Crowe 1 A. Those are city departments. Some examples, if we are 2 talking about construction, as an example, would be aviation, 3 water, sewers, department of transportation, housing, that kind 4 of department. 5 Q. And who would write the specifications initially for the 6 user departments, the user department or the purchasing 7 department? 8 A. The user department would, and then they would forward them 9 to us. 10 Q. Now, we were talking about and you were talking about a 11 goal of 25 and 5 percentage. Tell us how that percentage 12 actually worked, percentages actually worked under the 13 ordinance, sir. 14 A. Well, that, the 25 and 5 was basically a goal for us to 15 work toward. 16 Q. And was there something called a target market program? 17 A. Yes. The target market, actually that was a subcontractor 18 program, and basically the way that worked was when the target 19 market was being, when it was actually being started or 20 conceived, it took several years for it to evolve, and as that 21 happened, as the target market portion was growing, the actual 22 25 and 5 overall percentage was reduced, and I think after a 23 few years, I think it became 16.9, and I think it stayed at 24 that, according to the ordinance, for MBEs, and I think 4.5, I 25 believe it was 4.5 for WBEs. 950 Grzyb - direct by Crowe 1 Q. Okay. And that was as the, as the target market percentage 2 was supposed to increase, I take it the subcontracting goals 3 program percentages went down? 4 A. Balanced out, right. That was the intent. 5 Q. And in '94 did it lock in at 16.9 for minorities and 4.1 6 for women? 7 A. Yes, and the target market program after that, the goal was 8 I believe 10 percent, and, again, it was a phased-in program. 9 I think it took three years, and that would have been probably 10 around '94. 11 Q. There was testimony in the Court, Mr. Grzyb -- 12 THE COURT: You kind of lost me on that one. 13 MR. CROWE: I'm sorry, sir. 14 THE COURT: How does this all fit together? 15 MR. CROWE: I was just going to pull it together and 16 summarize it, if I can. 17 THE COURT: Okay, go ahead. 18 BY MR. CROWE: 19 Q. There were some questions asked in court, it was brought to 20 Judge Moran's attention that when you actually added 10 percent 21 to 16.9, it came to 26.9 rather than 25. 22 A. Well, there are two things, and I probably should have said 23 a little more earlier. 24 On the target market, that was exclusively for 25 minority, minorities, MBEs/WBEs, to bid on. So we wanted -- 951 Grzyb - direct by Crowe 1 the purpose of that I believe was that MBEs and WBEs typically 2 always shared in little bits and pieces of contracts, and the 3 idea was, with this target market program, it was to help 4 nurture them and grow them so that they could actually become 5 prime contractors so they no longer would have reliance and 6 dependency on other contractors. 7 So that being said, when the target market was 8 brought into focus, the overall 25 and 5 goal from MBE/WBE, 9 that actually we started, the requirements were dropping, 10 deescalating, so that they would then become, when target 11 market came on board, the other ones went down so that overall 12 it would not, it would not be excessive. 13 Q. So that the goals of MBE and WBE were decreased so 14 compensate for this target market use? 15 A. That would be exclusively to grow minorities. 16 THE COURT: And that was 10 percent of? 17 THE WITNESS: Of overall city business. 18 BY MR. CROWE: 19 Q. It was to grow to 10 percent? 20 A. Yes. 21 Q. If possible? 22 A. Yes. 23 Q. Okay. Now, as I mentioned before, it was pointed out to us 24 that when you add 10 percent to 16.9, it comes to 26.9 rather 25 than 25. Was there any particular reason for that, Mr. Grzyb? 952 Grzyb - direct by Crowe 1 A. Well, I think the one thing that we looked at and that we 2 considered was the fact that even though we always were very 3 hard on granting waivers, there were instances where waivers 4 would have to be granted, and that again would take away from 5 the minority participation or the opportunity for minority 6 participation. So that, when you look at it mathematically, it 7 appears that it was higher than it should have been, but, in 8 fact, there were, there were moneys, amounts that were actually 9 not made available because of waivers, that would not go to 10 minorities. 11 Q. Waivers of minority usage? 12 A. That's correct. 13 Q. And I take it that must have been running close to, 14 somewhere close to 2 percent? 15 A. Actually it was right around that, sometimes a little less. 16 Q. I am going to show you a document, Mr. Grzyb, if I may. I 17 am going to show you an exhibit, Mr. Grzyb, which the 18 plaintiffs have, and we are going to give them another copy, 19 and these are -- I am going to be asking you in a few moments 20 about an Affirmative Action Advisory Board. We'll revisit 21 that. 22 They kept minutes, didn't they? 23 A. Yes, they did. 24 MR. CROWE: May I approach, Judge? 25 THE COURT: You may. 953 Grzyb - direct by Crowe 1 BY MR. CROWE: 2 Q. I am going to show you what's been marked as Defendant's 3 Exhibit No. 240, and are these the minutes of the Affirmative 4 Action Advisory Board? 5 A. Yes, they are. 6 Q. Directing your attention to Bates No. C20544, and under 7 purchasing, would you tell the Judge just what those few lines 8 say relative to waivers. 9 A. Okay. Well, it basically talks about the fact that there 10 were, there were a monthly percentage of waivers that were 11 granted. In the last year, $600,000 worth of city contracted 12 activity out of the 73.4 million were contract reviewed, 13 included waiver requests. 14 Q. Now, these minutes are dated May 7, 1992, are they not? 15 A. Yes. 16 Q. Do you want to just read this line and a half here, what it 17 says as to the percentage of waivers that were granted. 18 A. Waivers accounted for 1.68 percent or 12.1 million of that 19 figure, while approved MBE/WBE waivers account for .37 percent 20 or $2.3 million. 21 Q. All right. 22 THE COURT: And what was the date of that? 23 MR. CROWE: Yes, sir. 24 THE COURT: The date? 25 THE WITNESS: 1992. 954 Grzyb - direct by Crowe 1 MR. CROWE: That was May of '92, Judge. May 7 of 2 '92. 3 BY MR. CROWE: 4 Q. Did the target market program enable qualified minority and 5 women businesses to regularly act as prime contractors? 6 A. Yes. That was the intent. 7 Q. That was the purpose? 8 A. Yes. 9 Q. Because originally the MBE/WBE program was a 10 subcontractor's goal for women, was it not? 11 A. Yes. 12 Q. You testified earlier there was resistance from the user 13 departments to the MBE/WBE program prior to enacting the 14 ordinance. Tell me, did this resistance evaporate once the 15 ordinance was passed? 16 A. No. Actually it became evident that there was resistance, 17 and I remember one of the reasons for remembering that was it 18 was a constant struggle, really. What they were supposed to do 19 is they were supposed to originally designate those contracts 20 or specifications that they were sending us to bid as to 21 whether or not they would be, they would qualify for target 22 market advertisement, and we just weren't getting any. I mean, 23 we kept getting specifications from them, and they, we kept 24 waiting, where are the target markets? So we would, we would 25 constantly have to go after them to start including some that 955 Grzyb - direct by Crowe 1 they designated as target market. 2 Q. And what kind of resistance were you getting, sir? 3 A. Well, they basically were not really cooperating. 4 Q. In the user departments? 5 A. That's right. 6 Q. I want to show you again this Exhibit No. 240, and I am 7 going to direct your attention to Bates No. C20552. 8 MR. CROWE: Once again, Your Honor, may I approach 9 Mr. Grzyb, the witness? 10 THE COURT: Sure. 11 BY MR. CROWE: 12 Q. Mr. Grzyb, I'll show you minutes of Affirmative Action 13 Advisory Board meeting dated October 8 of 1992, and at the 14 bottom of the page, it's not very long, would you read what it 15 says relative to resistance by user departments to the 16 ordinance and to what was contained in the ordinance. 17 A. "Rodriguez also mentioned that the department of sewers has 18 close to $30 million worth of work slated for the next few 19 months and a meeting should be scheduled to discuss the 20 possibility of 10 percent of those contracts being let in the 21 target market. It was also noted that some departments have 22 not incorporated target market into their contract planning, 23 and it has been difficult getting information to some of the 24 departments." 25 Q. And there was no reason that that could not be incorporated 956 Grzyb - direct by Crowe 1 at that time by the user departments, was there, Mr. Grzyb? 2 A. No, there was no reason. 3 Q. Tell us how the purchasing department worked after you 4 became acting purchasing agent. For example, how did the City 5 advertise for bids for construction contracts while you were 6 the purchasing agent? 7 A. Well, what we did was we actually advertised, we actually 8 bid the actual advertisements, but we used either the Sun-Times 9 or the Tribune. Then we also used a Hispanic newspaper, I 10 believe the Chicago Defender also, and later we actually were 11 able to do that on the internet. It might have been around '97 12 or so. 13 Q. And so there was advertising to everyone in Chicago that 14 was interested? 15 A. Yes, sir. 16 Q. Tell us -- the City had a location where copies of the 17 specifications and the bid documents could be picked up? 18 A. Yes, that would be the bid and bond room. 19 Q. Okay. And were the bids required to be submitted in sealed 20 envelopes by a particular date? 21 A. Yes. That would have been stated on the actual bid 22 specification to be returned. It would have the location and 23 the time that they were due. 24 Q. And how were contracts awarded from the bids, Mr. Grzyb? 25 A. Well, as I said, they would be submitted with a deadline of 957 Grzyb - direct by Crowe 1 a certain time, and at that time they were publicly opened and 2 publicly read, and the bid tabulations were done, and they 3 compared the actual submission to what was required in the bid 4 specification, and ultimately the bid would be awarded. 5 Q. Okay. And to whom would the bid be awarded? 6 A. Well, the bid would be awarded to the lowest responsible 7 bidder. 8 Q. That's the word I want to pick up on, "responsible." What 9 did that mean, to be the lowest responsible bidder? What were 10 you looking for? 11 A. Well, in addition to the lowest price, obviously they had 12 to comply with all of the requirements of the bid specification 13 as to signatures, signed affidavits, insurance bonding 14 requirements, all those things. So it wasn't just one thing 15 that they had to be responsible. 16 Q. And there was also the MBE/WBE compliance? 17 A. Compliance, that's correct. 18 Q. Other than what was required in the ordinance, was there 19 also a voluntary program instituted by the City whereby 20 majority contractors could get credit for minority business 21 enterprise, women business enterprise on private sector work? 22 A. Yes. There was such a program, although there isn't an 23 awful lot to say about that program because the contractors 24 never really picked up on that, and it really fizzled. I mean, 25 it didn't go anywhere. No one made use of it. 958 Grzyb - direct by Crowe 1 Q. Was that where a contractor would get a dollar credit for 2 every $3 paid to a subcontractor? 3 A. Yes, so that when they bid on a city job, they would get a 4 percent based on what you had just said. 5 Q. And why didn't the majority contractors pick up on the 6 program, as you say? 7 MR. CONWAY: Objection, Your Honor, outside the 8 witness' personal knowledge and speculative. 9 MR. CROWE: Let me rephrase the question, Judge. 10 BY MR. CROWE: 11 Q. Was the program well advertised so that it was known to 12 majority contractors? 13 A. Of course. 14 Q. And did you see majority contractors taking advantage and 15 making use of that voluntary program? 16 A. Not at all. I don't recall one. 17 Q. And that required, to get this credit, it didn't require, 18 but it could get credit for the use of minority on private 19 sector jobs? 20 A. That's correct, nongovernment jobs. 21 Q. And you noticed that the program wasn't used by majority 22 contractors? 23 A. No, sir. 24 Q. Tell us about the use of unions on city construction jobs, 25 sir. 959 Grzyb - direct by Crowe 1 A. Well -- 2 MR. CONWAY: Objection, Your Honor. It calls for a 3 narrative. 4 MR. CROWE: Okay. 5 BY MR. CROWE: 6 Q. Does the City of Chicago use unions on their work, sir? 7 A. Yes, they do. 8 Q. And why do they do that? 9 A. It's required. 10 Q. Why is it required? 11 A. Because it's in the city ordinance, in the statutes, I 12 believe. 13 Q. Okay. Does the, does the City, from what you observed at 14 the time, have any valid reason or fear for not using unions, 15 sir? 16 MR. CONWAY: I am going to object, Your Honor, 17 speculative. 18 BY THE WITNESS: 19 A. Because they would strike the job and shut it down. 20 THE COURT: No, he can go ahead. 21 THE WITNESS: I'm sorry. 22 BY MR. CROWE: 23 Q. Go ahead, Mr. Grzyb. 24 A. I think the concern, the concern there is that the job 25 sites would be struck and shut down and put things to a halt. 960 Grzyb - direct by Crowe 1 Q. Talking once again about the Harold Washington Library, was 2 there any situation that involved the use of nonunion workers 3 by the City or those working under the City for nonunion 4 workers on the Harold Washington Library? 5 A. That became a real problem for us, and we were not, we were 6 not able to use nonunion workers there. 7 Q. Why not? What happened? 8 A. Well, they were, they threatened to shut the job down. 9 Q. Who did? 10 A. The unions. 11 Q. Through the time you were acting purchasing agent from '89 12 to 2000, what did you notice, what did you see, what did you 13 hear about minority and women membership in unions that did 14 work in the City of Chicago? 15 A. Well, it's kind of frustrating because we were looking at 16 all different ways to help establish minority contractors so 17 that they in fact could grow and prosper in their respective 18 businesses. But to get them actually started in various 19 businesses was very difficult, especially in the trades, 20 whether it be carpentry, electrical, because they just couldn't 21 get access to union membership or the various apprenticeship 22 programs that were out there. So they were really being 23 discriminated or they just, they just didn't have access and 24 weren't given access to those opportunities. 25 Q. Mr. Grzyb, when you took over the purchasing department in 961 Grzyb - direct by Crowe 1 1989, did it appear to you that the purchasing department was 2 open to everyone, that it was a user friendly place? 3 A. Actually, not at all. 4 Q. Tell us about that, sir. 5 A. Well, I would get many, many complaints from minority 6 MBEs/WBEs, and minority people that would say that they 7 couldn't even get their questions answered, that they really 8 didn't have access. 9 Q. And were there also complaints from non-MBEs? 10 A. There were, but not nearly as many. 11 Q. And did you do anything about that, sir? 12 A. Well, of course, anyone that ever called us, we would let 13 them know that they didn't really need to be concerned about 14 that, that if they ever had any questions, to call, and, 15 further, I made sure -- I remember this very well -- I 16 instructed all of the people that reported to me, that worked 17 in our department that they also should be receptive to people, 18 answering their questions and assisting them, and we did a lot 19 of assists, whether it be with workshops, business fairs, how 20 to do business with the City. So we did a lot of promotion 21 that way and advertisement to get that message out to the 22 public. 23 Q. Did you ever receive any complaints from minority business 24 enterprise, women business enterprise persons relative to 25 difficulty getting commercial loans? 962 Grzyb - direct by Crowe 1 A. Actually, minorities in general had that problem, and it 2 was a big stumbling block for all of the minorities, really. 3 That's something that, to my experience on the job, that was 4 something I became aware of right away, that that was one of 5 the larger obstacles. 6 Q. And in your role as acting purchasing agent, sir, did you 7 take any measures to help remedy that situation? 8 A. Yes, myself and a couple of my deputies actually met with 9 bankers and other people to see if there was anything that 10 could be done or to see if that was a valid problem, and I 11 found it was, definitely. 12 Q. And did the City try to help alleviate that situation in 13 the purchasing department? 14 A. We really weren't able to. It was very difficult for us, 15 because it was the lending institutions. 16 Q. Did you ever receive any complaints from persons in 17 minority business enterprise or women business enterprises who 18 believed they were discriminated against by the City or by 19 prime contractors? 20 A. Sure. Just in general, some of the really more prevalent 21 complaints were -- well, they were obviously, they had problems 22 with bonding or loans, but many of them had complaints about 23 pressure by contractors, by prime contractors to sign off on 24 waivers of lien so that they, the prime would get paid. 25 But the other thing was, a complaint was -- I'm 963 Grzyb - direct by Crowe 1 trying to think is they were complaining with the fact that 2 there was bid shopping, meaning the minority contractor, 3 MBE/WBE would be approached by a prime contractor, say, and 4 listed to the City on a particular bid that they were going to 5 use a certain minority contractor, but then never use them or 6 substituted them by going to buy, to buy the services or 7 supplies for less money, so, in fact, reneged on their 8 agreement to use them. And some actually were listed that they 9 were going to be used and never used at all. 10 Q. About how many times through the years did you receive 11 complaints like this, sir? 12 A. Through the years? 13 Q. Yes. 14 A. Gosh, I don't know. Probably at least 20, maybe more. 15 Q. And do you remember any of the names of some of these prime 16 contractors at this time or what the subject of the complaint 17 was? 18 A. Well, it could have been a number of different complaints. 19 It's been a while since I've been in the job as acting 20 purchasing agent. At this point, I couldn't really guess as to 21 what company it might be. I'd hate to guess for one and be 22 wrong about it. 23 Q. Let's talk about a document that you do have. Mr. Grzyb, I 24 want to show you what's been marked as Defendant's Exhibit No. 25 277. And would you tell His Honor, Judge Moran, what this 964 Grzyb - direct by Crowe 1 document is, sir. 2 A. Your Honor, this is a report that was sent to me April 7th 3 of '97, and basically what it is is it's a report that lists 4 businesses that actually failed to comply with the various 5 requirements of the ordinance. 6 Q. And this document is a memorandum from the deputy 7 purchasing agent to you as the acting purchasing agent, is that 8 correct? 9 A. Yes, sir. 10 Q. And it's dated April the 7th, 1997? 11 A. Yes. 12 Q. And the document says, "During the calendar years '95 and 13 '96, 61 construction contractors failed to comply with the 14 EEO." 15 What is that, the EEO? 16 A. Equal Employment Opportunity. 17 Q. And what's the CRO? 18 A. And then that was also the Chicago residency ordinance. 19 Q. And then it says or the MBE or WBE requirements? 20 A. That would be the various compliance for participation on 21 contracts. 22 Q. It says, "Attached to this report, we have identified 23 several construction companies that consistently fail to meet 24 those MBE/WBE goals." 25 Can you tell us the names of the companies that were 965 Grzyb - direct by Crowe 1 on there and the number of times they failed to meet the 2 promised goals and commitments? 3 A. Yes. Insta-Form Midwest, 18; Kenny Construction, 11; G&B 4 Construction, Inc., 7; M&A Cement Work, 6; Benchmark 5 Construction, 5; Capital Cement, Inc., 5; Civil Contractors & 6 Engineers, 5; National Power & Rodding, Inc., 5. 7 MR. CONWAY: And, Your Honor, I'd move to strike that 8 last answer. This is a list that concerns not MBE/WBE goals, 9 but also the affirmative action in employment, which is 10 different than the MBE/WBE in contracting, and the Chicago 11 residency ordinance. That's an ordinance that says 50 percent 12 of the hours on construction projects over $100,000 must be 13 Chicago residents. That answer was not responsive to the 14 question, and it misstates the document. 15 THE WITNESS: Your Honor, can I answer a little bit 16 on that? 17 THE COURT: Go ahead. 18 THE WITNESS: Our compliance people checked for all 19 those things that were just mentioned when they would do their 20 compliance checks on the sites. That was part of their 21 compliance with their job. 22 THE COURT: And I understand that this covers a 23 bigger waterfront than just M and WBEs. 24 MR. CROWE: It does, Judge. That's why I asked him 25 to explain what those other initials stood for. 966 Grzyb - direct by Crowe 1 BY MR. CROWE: 2 Q. And, Mr. Grzyb, does the letter then talk about anticipated 3 action against these companies in the last paragraph? Read 4 what it says, please. 5 A. I agree with what Carnice said, we should put these 6 companies on notice, that continued failure to comply with EEO 7 and M/WBE and DBE goals should, could result in their being 8 removed from our bidders list. 9 Q. And this was in and about enforcing the ordinance, is that 10 correct? 11 A. Yes. 12 Q. And do you recall what if anything you did about that, sir? 13 A. Well, that, there was an ongoing daily battle working with 14 these companies, and there was so many of them, to actually get 15 the work completed, and with our compliance people staying on 16 stop of it and working with then, we actually forced them 17 pretty much to eventually comply with the requirements. 18 Q. And were some of the contractors named in that list some of 19 the contractors of whom you received complaints from minority 20 and women business persons through the years? 21 A. Yes. 22 Q. Can you tell us an example about Mr. Lombard at Midway 23 Airport, sir? Do you recall a situation involving him at 24 Midway? 25 A. Mr. who? 967 Grzyb - direct by Crowe 1 Q. Lombard. 2 A. No. 3 Q. Did you receive any other types of complaints from MBEs and 4 WBEs regarding financial matters? 5 A. Regarding financial matters, they were pretty much the 6 same, the same complaints regarding being able to afford 7 insurance, bonding, that kind of thing. 8 Q. I take it you received -- 9 A. And loans. 10 Q. I take it you received complaints from others than, 11 non-MBEs about that, did you not, sir? 12 A. Much fewer. 13 Q. Was there an Affirmative Action Advisory Board set up by 14 the ordinance, sir? 15 A. Yes, sir. 16 Q. And what was the Affirmative Action Advisory Board? 17 A. The Affirmative Action Advisory Board consisted of MBEs and 18 WBEs and nonminorities also, nonminority contractors. 19 Q. And is this the board that we see in minutes and documents 20 which was, its name was later changed to the Equal Opportunity 21 Advisory Board? 22 A. Yes. 23 Q. And there were MBEs on the board? 24 A. Yes. 25 Q. There were members of women business enterprises? 968 Grzyb - direct by Crowe 1 A. Correct. 2 Q. And there were some prime contractors also? 3 A. That's right. 4 Q. And you were also a member of the board? 5 A. Yes. 6 Q. How often did the board meet? 7 A. Well, usually we met monthly, and then when the ordinance 8 pretty much, it started to come in institutionalized, the 9 function of the board, then we started meeting I believe it was 10 quarterly after that. 11 Q. And this Affirmative Action Advisory Board we now know kept 12 minutes, is that correct? 13 A. Yes. 14 Q. And were these minutes regularly maintained and became part 15 of the City's business records? 16 A. Yes, they did. 17 Q. I am going to show you another document, maybe the final 18 document, and all the, that entire 240 that I gave you and the 19 documents you read from before, those are all examples of the 20 minutes that were retained by the City, is that correct? 21 A. Yes. Yes, and the board actually dealt with the various 22 functions that were called for within the ordinance, developing 23 regulations for the target market, things like the graduations. 24 Q. It was to monitor the program, is that correct? 25 A. Yes, that's correct. 969 Grzyb - direct by Crowe 1 Q. It was to monitor the ordinance? 2 A. That's right. 3 Q. That was the purpose of the Affirmative Action Advisory 4 Board? 5 A. That's correct. 6 Q. It was set up by the ordinance, and it was followed 7 through, it was created, and you had meetings to monitor the 8 ordinance? 9 A. Yes. 10 Q. I am going to show you another document which we have 11 marked as Defendant's Exhibit No. 3. 12 MR. CROWE: Judge, I have a copy of it here. 13 BY MR. CROWE: 14 Q. Would you tell us what that is, Mr. Grzyb. 15 A. This is the report, report to the Mayor. 16 Q. And does that report to the Mayor -- what's the date of the 17 report, by the way? 18 A. The date is December 27th, 1993, signed by the chairman of 19 the Affirmative Action Advisory Board, Mr. Linval Chung. 20 Q. Okay. By the way, the ordinance itself identifies the 21 functions that the Affirmative Action Board was to perform, 22 isn't that right? 23 A. Yes. 24 Q. And are the functions spelled out in Exhibit No. 3? 25 A. Yes, they are. 970 Grzyb - direct by Crowe 1 MR. CONWAY: Judge, I have to object. We objected to 2 Exhibit 3 on hearsay grounds. 3 THE COURT: Well, it is a city -- 4 MR. CROWE: City document, Judge. 5 THE COURT: It's a city document from an established 6 agency of the City. 7 MR. CONWAY: Judge, it's not part of the board 8 reports. 9 MR. CROWE: It's a record kept in the ordinary course 10 of city business. 11 THE WITNESS: It's a requirement based on the 12 ordinance. 13 THE COURT: It's a report to the Mayor by an 14 established agency, which has, I gather, an obligation to make 15 a report. 16 THE WITNESS: That's correct. 17 MR. CROWE: May I proceed, Judge? 18 THE COURT: You may. 19 BY MR. CROWE: 20 Q. Looking at that report, can you tell His Honor what the 21 functions of the board was, what they did and what they were 22 supposed to do and what they in the fact did? 23 A. It's a report, Your Honor, and I believe here what 24 Mr. Chung had done was reported on the target market and also 25 various problems and difficulties with MBE/WBE, the slow 971 Grzyb - direct by Crowe 1 resolutions between the user departments and contractors 2 holding up payments. 3 And it also talks about the graduation program here 4 as far as when a company would reach the certain amount of 5 sales for three consecutive years revenues, that they would 6 graduate out of the program, and then discusses native 7 Americans. 8 And also I think toward the end it looks like that 9 paragraph has to do with problems with African-Americans not 10 receiving construction type work from the City. So there is a 11 disparity, evidently, there was with the African-Americans in 12 the construction area. 13 So this is basically a report to the Mayor outlining 14 those, and I think all of those who are required in the 15 ordinance. 16 Q. Did you, back in 1990, Mr. Grzyb, have an opportunity to 17 observe whether voluntary measures worked as far as giving, 18 allowing participations of minorities and women in the 19 construction business? 20 A. Yes, I did. 21 Q. And what did you see or not see? 22 A. That there was no voluntary participation by prime 23 contractors, that our compliance people had to constantly chase 24 after them to get them to comply. 25 Q. And when you left the City in the year 2000, was there 972 Grzyb - cross by Conway 1 still a need for that ordinance, sir? 2 A. In my opinion, absolutely. I think without it I don't 3 think they would be getting any work, they wouldn't be 4 contacted. We found that to be the case. 5 MR. CROWE: Judge, if I could have just a second? 6 (Pause.) 7 MR. CROWE: Judge, I would move to admit Exhibit 3, 8 Plaintiff's Exhibit 240, Plaintiff's Exhibit 277, Your Honor, 9 and Defendant's Exhibit -- 10 THE COURT: And they are received. Oh. 11 MR. CONWAY: Judge, Exhibit 2- -- that's fine, Judge. 12 (Said exhibits received in evidence.) 13 MR. CROWE: Judge, that's all I have of the witness 14 at this time. 15 CROSS-EXAMINATION 16 BY MR. CONWAY: 17 Q. Now, when you talk about resistance, you are talking about 18 resistance to meeting the percentages in the City's MBE/WBE 19 ordinance, is that right? 20 A. That's correct. 21 Q. So you are using the ordinance as the benchmark against 22 which the performance of the user departments and prime 23 contractors is measured, is that right? 24 A. The ordinance requires certain compliance. 25 Q. And that's the benchmark that you are talking about, right? 973 Grzyb - cross by Conway 1 A. Yes. 2 MR. CROWE: Object to the form of the question. 3 THE COURT: No, he can answer it. 4 BY MR. CONWAY: 5 Q. Is that right? 6 A. Well, when I, when I give my opinion, I am talking about 7 discrimination in general as I saw it also. 8 Q. Right, and you are talking about complying with the 9 ordinance, correct? 10 A. That's what most of what we discussed was. 11 Q. East Lake Management, do you work with Leroy Banmister? 12 A. Yes, I do. 13 Q. And is that company owned by Elzie Higgenbotham? 14 A. Yes, it is. 15 Q. Now, you were shown Defendant's Exhibit 240, and you were 16 asked about waivers on construction projects. Do you have that 17 exhibit in front of you? 18 A. I don't know. 19 MR. CROWE: Excuse me, Judge. I asked him about 20 waivers generally. I didn't ask him about waivers on 21 construction projects. 22 MR. CONWAY: Yes, exactly, Judge. 23 BY MR. CONWAY: 24 Q. Let me show you Exhibit 240. 25 MR. CROWE: Judge, if I can straighten out the 974 Grzyb - cross by Conway 1 record? 2 MR. CONWAY: Well, Judge -- 3 MR. CROWE: He says "exactly," and then he says, but 4 he questioned him, Crowe asked you about waivers on 5 construction projects, and that's not what I asked him. I 6 asked him about waivers generally. 7 THE WITNESS: Your Honor, as it relates to the 8 overall dollars spent -- 9 MR. CROWE: I guess my objection is it 10 mischaracterizes the evidence, Judge. 11 THE COURT: Yes, I had it as waivers generally. 12 MR. CONWAY: Okay. 13 BY MR. CONWAY: 14 Q. And, in fact, when you were asked to take a look at City 15 Exhibit 240 and you were asked to open to page 20544, that was 16 the first page of the May 7th, 1992 Affirmative Action Advisory 17 Board meeting minutes? 18 A. I believe so. 19 Q. And then when you turn to the next page, C20545, do you see 20 where it's explained that the greater portion, and this is the 21 fourth bullet point on C20545, it was explained at this 22 advisory board meeting that the greater portion of waivers are 23 in the area of manufacturing, machinery replacement parts, 24 heavy machinery, and software, right? 25 A. According to this statement, yes. 975 Grzyb - cross by Conway 1 Q. And under the City's MBE/WBE ordinance, there was a special 2 program for construction contracts over $10 million? 3 A. Yes. It was actually any contract that was over $10 4 million where there was, we would look for additional 5 opportunity for minority, greater minority participation 6 because of the large value of the contract. 7 Q. But that's the provision of the ordinance that said waivers 8 would be covered by these higher percentages on projects over 9 10 million, correct? 10 A. I'm sorry. Could you repeat what you just said. 11 Q. The City's MBE/WBE ordinance, the possibility of waivers 12 was addressed by having a higher percentage on these 13 construction projects over $10 million, correct? 14 A. What I had said was that when we, when we had a goal for 15 obtaining a higher goal for minority MBE/WBE percentage, that 16 was to help offset any waivers that would be granted so that 17 the, that the portion for the minorities would not be 18 shortchanged. 19 Q. And in terms of the MBE/WBE program as applied to 20 construction contracts, waivers were not granted on 21 construction contracts, is that right? 22 A. I can't say that that's right, no. 23 Q. Let me show you Defendant's Exhibit 240. Can you find the 24 minutes of the Affirmative Action Advisory Board meeting dated 25 April 28th, 1998? 976 Grzyb - cross by Conway 1 A. What year was that? 2 Q. 1998. 3 A. '98. These don't appear to be in order. It goes from '96 4 to '99. 5 Q. So 1998 is omitted from -- 6 A. I don't see it unless you can find it for me. No, I don't 7 think it's here. 8 THE COURT: I don't have it. 9 BY MR. CONWAY: 10 Q. Let me ask you to look at the Builders Association Exhibit 11 151. I have got it opened to, let me get back to the first 12 page in BAGC Exhibit 151. 13 These are the Affirmative Action Advisory Board 14 meeting minutes for April 28th, 1998. Do you see that? 15 A. Yes. 16 Q. Okay. Then going to the second page of these minutes, let 17 me see if I can make this larger for you. 18 MR. DONHAM: Excuse me, Mr. Conway. Do you have a 19 Bates number page? 20 MR. CONWAY: Yes. 21 MR. DONHAM: 151 is about 100 some pages. 22 MR. CONWAY: It's AAAB108. 23 BY MR. CONWAY: 24 Q. And calling your attention to the paragraph that begins 25 Carnice Carey, do you see that paragraph? 977 Grzyb - cross by Conway 1 A. Yes. 2 Q. And in these April 28th, 1998 minutes, Mr. Ratliff made a 3 statement regarding waivers, and that statement was Mr. Ratliff 4 added that waivers are not granted on construction projects. 5 Is that the case? 6 A. I see that. I see that. Well, that's what he said. 7 Q. Right. And Mr. Ratliff was more involved on a day-to-day 8 basis with enforcing the MBE/WBE program than you were, 9 correct? 10 A. Regarding that, yes. 11 Q. And what was Mr. Ratliff's title? 12 A. He was assistant -- well, he was actually a deputy 13 purchasing agent in charge of certification compliance. 14 Q. Okay. And you are talking about he was in charge of 15 certification and compliance under the City's MBE/WBE program, 16 correct? 17 A. That's correct. 18 Q. And while we have got Exhibit 240 in front of us, you were 19 asked some questions about the reference to the target market 20 program in the October 8th, 1992 board minutes. Let me put 21 those in front of you again. 22 And you read some portion about a Mr. Rodriguez, 23 talking about 10 percent of contracts being let in the target 24 market, is that right? 25 A. Yes. 978 Grzyb - cross by Conway 1 Q. Was the target market percentage at this 10 percent level 2 as of October 8th, 1992, a year and a half after the ordinance 3 was enacted? 4 A. I'm not sure. 5 Q. That 10 percent level, that kicked in for the target market 6 in 1994, correct? 7 A. I thought so, I'm not positive about it. That was, again, 8 it was a goal, we had established goals that we felt needed to 9 be met, but the date, I don't know. 10 Q. Now, for construction projects over $100,000, did the City 11 of Chicago require prime contractors to have performance and 12 payment bonds? 13 A. Yes. Yes, I believe they did. 14 Q. And did the City also require prime bidders on construction 15 contracts to have insurance? 16 A. Yes. 17 Q. And prime contractors on construction jobs let by the City 18 also had to satisfy self-performance requirements, that is, 19 they had to do a percentage of the work on the construction 20 project with their own forces? 21 A. Yes. 22 Q. And the City also had prequalification for its bidders on 23 construction contracts, is that right? 24 A. Yes. 25 Q. And the City began its internet -- strike that. 979 Grzyb - cross by Conway 1 The City started placing its upcoming bids on the 2 internet back around 1996? 3 A. '7, I believe. 4 Q. 1997? 5 A. I seem to recall it was around that time. I'm not 6 positive. I think it was '97. 7 Q. And for upcoming construction projects, copies of the 8 specifications and other bid documents could be picked up in 9 this bid and bond room? 10 A. Yes. 11 Q. That was what, on the fourth floor of the city hall while 12 you were there? 13 A. That's correct. 14 Q. Now it's on the third floor? 15 A. I don't know. They have moved it once or twice since I've 16 been gone. I've been gone almost four years. I don't know. 17 Q. And did the City, for its upcoming bidding for construction 18 projects, did it also release that information to F.W. Dodge, 19 CMD, and other sources? 20 A. I believe we made that information available to various 21 trade groups and things like that. We did as much of that as 22 we could to put it out there as far as what was available so 23 that everyone could bid on it. 24 Q. Let me show you what we have got as Builders Exhibit 9. 25 This Exhibit 9 describes the City's bid and bond room policy, 980 Grzyb - cross by Conway 1 is that right? 2 A. Yes. 3 Q. And it outlines the publication of notices of upcoming bid 4 dates that you have described? 5 A. Yes. 6 Q. I'd like to go to the second page. Now, if a prime 7 contractor or someone picked up the specifications for a 8 particular project, the City would keep track of who would come 9 by to pick up copies of the plans and specifications? 10 A. To my recollection, typically they had a sign-in sheet or 11 people would leave their business card when they picked up a 12 bid specification. 13 Q. And that, you called that a takeout list? 14 A. Yes. 15 Q. And the City maintained this takeout list of persons who 16 would stop by the bid and bond room to ask for specifications? 17 A. I believe that was kept in the bid and bond room. 18 Q. And looking at this first paragraph on the second page of 19 Builders Exhibit 9, the second sentence from the top of the 20 page where it says, "A record of all prospective bidders is 21 kept to allow the department of purchases to inform you if any 22 addenda are issued and for prospective subcontractors to 23 inquire who may be bidding on that particular job." 24 Was that the purpose of these takeout lists? 25 A. Well, I think the purpose of the takeout list was exactly 981 Grzyb - cross by Conway 1 what you just read. 2 Q. All right, thank you. 3 A. You are welcome. 4 Q. And if someone picked up the plans and specifications from 5 the bid and bond room, they had to leave some kind of deposit? 6 A. It depended on whether or not it was a very involved and 7 costly preparation of the plans, blueprints, and so forth, so 8 they had to cover, help the City cover the cost of those 9 drawings and engineering form, engineering plans and things 10 like that. 11 Q. Well, the deposits for those plans were refundable once 12 they were returned? 13 A. Yes. Yes, they were. 14 Q. Now, the MBE/WBE program was one of the priorities of your 15 administration, correct? 16 A. Yes, sir. 17 Q. In these 25 MBE and 5 percent WBE percentages, those were 18 just a minimum goal that you followed during the time that you 19 were administering the program, correct? 20 A. That's correct. 21 Q. And it was your understanding during the years you were 22 acting purchasing agent for the City that there was no maximum 23 percentage, is that correct? 24 A. I think if there were a maximum, it would have been in the 25 MBE ordinance. 982 Grzyb - cross by Conway 1 Q. So let me just, during the years you were acting purchasing 2 agent, was it your understanding that there was no maximum 3 percentage for MBE or WBEs? 4 A. I don't recall there being one. 5 Q. And during the years you were acting purchasing agent, 6 discrimination on the basis of race, ethnicity, or gender in 7 connection with City projects and contracting was against 8 Chicago policy, is that right? 9 A. Definitely. 10 Q. Was that policy set forth in the MBE/WBE ordinance? 11 A. I think that's a policy of common decency as far as I was 12 concerned. That was enough for me. 13 Q. And that's the policy that you enforced during your entire 14 time as acting purchasing agent? 15 MR. CROWE: Object to the form of the question. 16 THE COURT: What's the question again? 17 MR. CONWAY: Judge, I'll ask the court reporter to 18 read it back. 19 (Question read.) 20 MR. CROWE: Objection, Judge. There is two questions 21 pending. First he asked him about discrimination in the 22 ordinance, discrimination policy in the City of Chicago, and 23 the witness just said discrimination is against common decency 24 and honor. And he says, So that is what you adhered to? Which 25 is he talking about? 983 Grzyb - cross by Conway 1 THE WITNESS: Your Honor, can I just answer? 2 THE COURT: Go ahead. 3 BY THE WITNESS: 4 A. Well, I don't know if this is what you are looking for, but 5 my feeling is that, first of all, discrimination is against the 6 law on the federal, state, and local level, and I don't know 7 that I can tell you anything better than that. 8 BY MR. CONWAY: 9 Q. And do you have any personal knowledge of a specific 10 instance where the City of Chicago discriminated against a 11 minority business enterprise or women-owned business enterprise 12 in connection with a construction project let by the City? 13 A. I can't say specifically, but all I know is from day-to-day 14 work at, in my past job, that we experienced that almost daily. 15 Q. Well, you got complaints is what you said, right? 16 A. Yes, that's correct. 17 Q. And when you got those complaints, you forwarded them to 18 the proper authorities, correct? 19 A. If they were severe enough to do that, yes. Otherwise we 20 would have our compliance people work with the contractors to 21 correct the problem. 22 Q. So whenever you got these complaints of discrimination, 23 your office took action to investigate them, right? 24 A. Yes. 25 Q. And did you personally conduct those investigations? 984 Grzyb - cross by Conway 1 A. No, I did not personally. 2 Q. It was somebody on your staff, right? 3 A. Yes. 4 Q. And as far as referring allegations of discrimination to 5 the inspector general, how many times did that happen during 6 all the time you were acting purchasing? 7 A. I really would be guessing. I have no idea. 8 Q. Not many, is that correct? 9 A. Probably not many, no. 10 Q. In these allegations that purchasing was somehow a closed 11 shop, you got complaints from non-MBEs and non-WBEs about that, 12 right? 13 A. Pretty much the majority was with MBEs/WBEs. 14 Q. Did you keep track of how many complaints were made by each 15 group, that is non-MBE versus MBE? 16 A. No, but the vast majority were without a doubt probably ten 17 to one more than that. 18 Q. And when we talk about -- 19 MR. CROWE: Could the witness be allowed to finish 20 his answer, sir? 21 THE WITNESS: Your Honor, may I answer? 22 THE COURT: Go ahead. 23 BY THE WITNESS: 24 A. I was just going to say that a great majority of them were 25 from MBE/WBE. There were some from non-MBEs, but relatively 985 Grzyb - cross by Conway 1 there were very few by comparison. 2 BY MR. CONWAY: 3 Q. And when we talk about closed shop, we are talking about 4 complaints that people couldn't get in to talk to anyone or get 5 answers to their questions, correct? 6 A. Well, I think that's part of it. I think the other part of 7 it is the fact that they didn't seem to feel that anyone was 8 doing anything about all the other things I talked about 9 earlier that they were encountering, things likes bid shopping, 10 you know, forcing subcontractor, minority subcontractors to 11 sign off on waivers of lien, that kind of a thing, or not being 12 used when they were listed as being used. So those were the 13 types of complaints. 14 Q. All right, and you considered that to be a complaint about 15 the closed shop purchasing? 16 A. Well, the point was they didn't have access. They didn't 17 have access to, and I gave an example earlier, just something 18 as simple as actually getting information or getting assistance 19 on filling out forms as an example, certification forms. 20 Q. And let me -- these complaints about purchasing being a 21 closed shop, I mean, you didn't -- did you devote any energy to 22 investigating whether that was true or not or did you spend 23 most of your time just making sure that the purchasing 24 department was open to everybody? 25 A. I really didn't have the time to go back and police what 986 Grzyb - cross by Conway 1 happened in the past. I thought it was my responsibility to 2 the current administration and to the public really to make it 3 better as soon as I could so that we would, it wouldn't be as 4 bad as it was, and we could do as much as we could to make it 5 better. 6 Q. And do you have any specific personal knowledge of an 7 individual city employee who discriminated against 8 minority-owned or women-owned business? 9 A. It was in terms of what, though? And how -- 10 Q. I am talking about your personal knowledge and specifics 11 that you can give us names. Do you know of any individual city 12 employee who discriminated against minority-owned or 13 women-owned businesses? 14 A. Not at this point, I couldn't give you that, no. 15 Q. And how about prime contractors who worked on construction 16 projects that were let by the City? Do you have personal 17 knowledge of any specific prime contractor for the City of 18 Chicago who discriminated against a minority-owned or 19 women-owned business? 20 MR. CROWE: Your Honor, if I may, I have an objection 21 to this question, and this actually goes back to one of our 22 motions in limine. It had to do with the reference to the term 23 "discrimination." It's kind of a legal term, and I think we 24 had raised this in our motion, and you said we should raise it 25 again in the context of particular witness. 987 Grzyb - cross by Conway 1 I am not sure what Mr. Conway is getting at, and it 2 is a legal term, and so I object to the form of the question on 3 that ground. 4 THE COURT: Well, I think the witness can define it 5 himself as he goes along as to what he means by it. 6 THE WITNESS: Can we go back to what the question is? 7 THE COURT: Sure. 8 MR. CONWAY: If I could ask the court reporter to 9 read back the question, please. 10 (Question read.) 11 BY THE WITNESS: 12 A. From personal experience, I would have to say, no, I don't 13 recall. 14 BY MR. CONWAY: 15 Q. Now, in terms of complaints that your staff dealt with 16 regarding prime contractors dealing with subcontractors, your 17 staff would investigate those complaints, is that right? 18 A. Yes. 19 Q. And your staff would talk to the prime contractor and also 20 the subcontractor? 21 A. Yes. 22 Q. And there were lots of reasons as to why a particular 23 subcontractor might not be getting paid on a construction 24 project, correct? 25 A. That's correct. 988 Grzyb - cross by Conway 1 Q. For example, the work might not actually be finished, is 2 that right? 3 A. That's a possibility. It could also be that he didn't get 4 any work that he was supposed to, so it could be -- 5 Q. And how many times did that happen during all the years you 6 were acting purchasing agent? 7 A. That what happened, that there were complaints or -- 8 Q. There were lots of complaints, is that right? 9 A. That's correct. 10 Q. All right. And you yourself didn't go around trying to 11 investigate or verify the facts of these complaints, right? 12 A. No, I didn't have the time to do that. 13 Q. And the City, did it have a bonding assistance program that 14 was provided to some city certified minority and women 15 construction contractors? 16 A. I believe so. 17 Q. And your department had a procedure for bid protests, 18 correct? 19 A. Yes. 20 Q. And your department also had an ombudsman who was 21 responsible for handling complaints for minority-owned and 22 women-owned businesses, correct? 23 A. Yes, that's right. 24 Q. I'm sorry? 25 A. Yes, that is right. 989 Grzyb - cross by Conway 1 Q. And did you ever see any reports from this ombudsman who 2 was appointed to deal with complaints from minority-owned or 3 women-owned businesses? 4 A. I don't recall seeing them. I may have, but I don't recall 5 it specifically. 6 Q. Do you have the City's Exhibit 175 in front of you? 7 A. This is Exhibit 1-B? 8 MR. CROWE: I don't think we offered that into 9 evidence, Judge. 10 BY MR. CONWAY: 11 Q. Let me give you my copy of -- I'm sorry -- Defendant's 12 Exhibit 277. Let me give you my copy of Defendant's Exhibit 13 277. 14 This is a report from Troy Ratliff to you about 15 shortfalls in the EEO, CRO, and MBE/WBE/DBE utilization? 16 A. Yes. 17 Q. If you could turn to the second page of this exhibit. I'm 18 sorry, the third page of this exhibit. For the MBE/WBE 19 program, those are the assessed shortfalls for the two years 20 shown, 1996 and 1995? 21 A. Yes. 22 Q. Now, the first paragraph of text on the third page of this 23 exhibit says that "These dollars are released when a final 24 audit has been conducted." Do you see that? 25 A. Yes. 990 Grzyb - cross by Conway 1 Q. Was that the case during the years that you were acting 2 purchasing agent, that there would be an initial assessment of 3 shortfalls in MBE/WBE utilization followed by a final audit? 4 A. I think the audit would be done anyway. I'm not so sure it 5 was contingent on any further release. Contract closeouts 6 determine what would be released. 7 Q. But there was some later process after the initial 8 assessment of MBE/WBE shortfalls? 9 A. Well, it may have been an audit to review everything, but I 10 don't, I don't know -- if what you are saying is that this is 11 money that was released based on an audit, I don't believe 12 that's the case. You'd have to ask the person that prepared 13 this to clarify that for you. 14 Q. Okay. So that's beyond your personal knowledge, how the 15 closeout audits were handled on construction projects? 16 A. Well, it's my understanding that when a closeout was 17 conducted, that's when, that's when the moneys were paid out if 18 the contractor was in compliance. 19 Q. So, in other words, if the audit revealed that the 20 construction contractor was ultimately in compliance, these 21 shortfall dollar amounts would be paid out to the contractor? 22 A. I would, I would think, if that was the case, that would 23 be, that would be true. 24 Q. Okay. 25 A. But not knowing specifics, I don't know. I couldn't answer 991 Grzyb - cross by Conway 1 that. 2 Q. And can you tell me if any of the -- and I realize this is 3 a list of contractors under the EEO, CRO, and MBE/WBE program, 4 and DBE program, but the contractors listed on Defendant's 5 Exhibit 277, can you tell me if any of those are city-certified 6 MBEs or WBEs? 7 A. Any of these companies? 8 Q. Right. 9 A. Actually, no, I'd be guessing. I think they, from what I 10 can see, they appear to be mostly prime contractors, non-MBEs, 11 non -- they may be WBEs, but they appear to be mostly prime 12 contractors. 13 Q. How about Benchmark Construction Company. Do you recognize 14 them as a city-certified MBE? 15 A. They may in fact be. 16 Q. And how about M&A Cement Works? Do you recognize them as a 17 city-certified WBE? 18 A. No, I don't. I don't recall. There were many alphabet 19 companies, and I just don't remember that. 20 Q. The Harold Washington Library -- 21 THE COURT: About how much longer do you have? 22 MR. CONWAY: Judge, maybe I should finish with this 23 question about the Harold Washington Library, and we take our 24 break? 25 THE COURT: Okay. 992 Grzyb - cross by Conway 1 MR. CONWAY: I'm sorry, Judge. 2 BY MR. CONWAY: 3 Q. Let me show you, if I can put this up on the screen, 4 Builders Exhibit 70, and this is a report of MBE and WBE 5 participation. I'm sorry. Let me go to the previous page, and 6 maybe that will help you, Mr. Grzyb. 7 This Plaintiff's Exhibit 70 is a summary fact sheet 8 of 1990 M/WBE contract award statistics, is that right? 9 A. I'm trying to read it. 10 The title is, subtitle is, yes, "Summary Fact Sheet, 11 1990, M/WBE Contract Award Statistics," yes. 12 Q. I am going to apologize because I have to spin it around 13 the second page, and this second page of Exhibit 70, let me 14 blow up the notation under that chart, and that refers to the 15 Harold Washington Library center project. Do you see that? 16 A. Yes. 17 Q. And that project was reported in the 1989 data, correct? 18 A. I assume. I assume it was. I'm not positive. 19 Q. And the reference here to the Harold Washington Library 20 construction will include 29 percent MBE and 5 percent WBE, was 21 that the case on the Harold Washington project? 22 MR. CROWE: Judge, I object. I can't read this here. 23 I don't know that Your Honor can. 24 THE COURT: I can see it. 25 MR. CROWE: Can you? 993 Grzyb - cross by Conway 1 BY THE WITNESS: 2 A. Okay, the second line you are referring to? 3 BY MR. CONWAY: 4 Q. Right, in the text underneath the table. 5 A. Okay. So it will include 29 and 5 participation, okay. So 6 that's what they are attesting to, when the job is done, that's 7 what they are estimating, evidently, that they expect to be at 8 29 and 5. That's how I read it. 9 Q. Okay. And at the same time, was the international terminal 10 project going on in Chicago? 11 A. I believe so. I don't recall the specific date. 12 Q. And going back to the first page of Exhibit 70, the very 13 last note on the first page of Exhibit 70, there is a reference 14 to the terminal 5 contract. That's the international terminal, 15 correct? 16 A. Yes. 17 Q. And did that have a targeted percentage of 29.8 percent MBE 18 and 7.7 percent WBE participation? 19 A. I'm sorry. I'm just reading through this page here. You 20 are looking for what the goal was? 21 Q. Correct, for the terminal 5, international terminal 22 project. 1990. 23 A. It says 25 and 5, and it says, "See attachment," which 24 shows 363 million of contract awards, 29.8 percent of which is 25 targeted for MBEs and 7.7 percent which is targeted for WBEs. 994 Grzyb - cross by Conway 1 Q. And was that the case on this terminal 5 project, that the 2 MBE/WBE utilization will exceed the City's 1990 goals for that 3 project of 25 and 5? 4 A. I think, it's just my opinion, I think that this is an 5 estimate or a projection of what it could be. I don't know 6 that it was a goal to attain that much necessarily. 7 I think one way they may have come up with that 8 percentage or dollar amount is looked at the different 9 components of the job and looked at what the possibilities were 10 there in terms of what the field of minorities and WBEs, 11 MBE/WBEs were maybe to come up with that percentage possibly. 12 I don't know. 13 Q. But the percentages that we see here on the first page of 14 Builder's Exhibit 70, those are, "based on commitments made by 15 the contractor for this major airport construction contract"? 16 That's what it says? 17 A. Those are what they are estimating. 18 Q. That's what they are -- 19 A. That's based on what they are estimating. 20 Q. Well, this is based on the contractor's commitment for 21 terminal 5? 22 A. Yes. 23 MR. CONWAY: Thank you. 24 Your Honor, take a break? 25 THE COURT: Okay. 995 Grzyb - cross by Conway 1 (Recess.) 2 BY MR. CONWAY: 3 Q. Now, can you give me the name of any general contractor for 4 the City who supposedly listed MBEs or WBEs at bid time and 5 then did not use them on a city construction project? 6 A. I can't, and the reason would be that most of those 7 infractions occurred in the earlier years that I was there. It 8 became less of a problem obviously with time. 9 Q. And that's something you fixed right away where you had the 10 documentation requiring the listing of subcontractors at the 11 time of bid, is that right? 12 A. Yes, we would verify with the minority M/WBE subcontractor 13 to reconcile with them that they in fact were notified and that 14 they would in fact be used, and if they were to be substituted, 15 we instituted a procedure where their request had to be in 16 writing, and the response would be in writing as to whether 17 they would be allowed to substitute if they had a valid enough 18 reason to do so. 19 Q. And you implemented those requirements early on? 20 A. Yes. 21 Q. In your career as acting purchasing agent? 22 A. Towards the earlier years. 23 Q. You talked about shopping proposals or bids. Now, the 24 prime contractors on city construction projects, do you know if 25 they also shopped bids for non-MBE/non-WBE subcontractors? 996 Grzyb - cross by Conway 1 A. The majority of our complaints again were from MBEs and 2 WBEs. There were very few from nonminority contractors, 3 Q. But -- 4 A. -- but I'm sure it happened. 5 MR. CROWE: Judge, once again he continuously does 6 not let him finish his answer. 7 THE COURT: Give him a chance. 8 MR. CONWAY: I will do so, Judge. Sorry. 9 BY THE WITNESS: 10 A. Sorry. My point I am trying to make is that it wasn't 11 exclusive to minorities, but the vast majority of those were 12 with minority firms. 13 BY MR. CONWAY: 14 Q. The complaints that you received? 15 A. Yes. 16 Q. And was your requirement that contractors, prime 17 contractors actually list their intended subcontractor for a 18 particular category of work on a contract, was that a way of 19 addressing these complaints that you got about shopping -- 20 THE COURT: I'm sorry. Run that one by me again. 21 BY MR. CONWAY: 22 Q. Was your requirement that prime contractors list their 23 intended subcontractor for a particular category of work on a 24 contract, was that a way of addressing these complaints of bid 25 shopping or shopping the proposals? 997 Grzyb - cross by Conway 1 A. Yes, that was partially the case, yes. 2 Q. And with respect to the financial issues, did the City 3 institute a monetary advance program for MBEs and WBEs? 4 A. I do recall such a program, and I believe the way it worked 5 was that they would have to apply for the advance, we would 6 consider it, what their situation was, their financial 7 situation, and if it were granted, it would be pretty much seed 8 money or start-up money. And as they got toward the end of it, 9 for instance, say it was $20,000, toward the last $20,000 that 10 they billed, we would keep that, we would not pay the last 11 20,000, so that's how we would get our money back, the advance 12 back. That's how that worked. 13 Q. And you never came to any conclusion that insurance 14 companies or bonding companies or banks were discriminating 15 against minority-owned or women-owned businesses, is that 16 correct? 17 A. Well, my conclusion was that they didn't appear to have a 18 level playing field in terms of actually obtaining insurance or 19 obtaining bonding or obtaining loans. That was something I saw 20 throughout the years and probably continues today. 21 Q. But as far as it being the result of discrimination, you 22 came to no conclusion that there was any discrimination by 23 insurance companies or bonding companies or banks, is that 24 correct? 25 MR. CROWE: Object once again to this definition of 998 Grzyb - cross by Conway 1 discrimination. It has as many mouths to that definition as 2 the mouths that use it. 3 THE COURT: Well, I think the witness can answer, 4 define what he means by that as he goes along. 5 BY THE WITNESS: 6 A. I would just simply respond to that by saying that my 7 experience was that that was a major problem for minorities, 8 they didn't have start-up money, and they constantly complained 9 that they could not obtain financing in the way of loans or 10 obtain bonding or insurance. 11 BY MR. CONWAY: 12 Q. And that's the extent of your knowledge, correct? 13 A. The extent of it at this point, it might be, yes. 14 Q. Okay. And did your office take steps to make sure that 15 bonding and insurance requirements for individual projects were 16 realistic? 17 A. As it relates to whose work? 18 Q. As it relates to the work by the contractors and 19 subcontractors on that project. 20 A. We did evaluate that. 21 Q. Can you give us a name of anyone who came into your office 22 and complained to you about discrimination by unions? 23 A. Not by name, but I can't remember all the minority 24 subcontractors that I ever talked to. No, I can't remember 25 that, not from five, six, seven, eight, nine years ago, no. 999 Grzyb - cross by Conway 1 I'm sorry, I wish I could, but I can't. 2 Q. Were there any records kept of these complaints about 3 unions? 4 A. To my knowledge, I don't know, specifically regarding 5 unions, no. 6 Q. And with respect to these complaints that you got about 7 unions, was it your office's policy to refer such complaints 8 over to the City's law department to look into the allegations? 9 A. I believe we may have done that also, the union, but I 10 recall that there was a union liaison to the City of Chicago, 11 and I think, I seem to recall that we were working through him 12 to kind of get the message to the unions to work with the City 13 as far as allowing minorities into various apprentice programs. 14 Q. So you referred the information about these complaints 15 either to the law department or to the union liaison? Your 16 answer was yes? 17 A. Yes, yes. 18 Q. And did I accurately describe the City's, what's sometimes 19 called the canvassing formula, that on construction projects 20 over $100,000, that there is a separate ordinance that 21 addresses affirmative action in employment of minority and 22 women workers? 23 A. I didn't get what your point was. If you did what? 24 Q. Apart from the City's MBE and WBE programs, the City has a 25 separate ordinance that is directed at -- 1000 Grzyb - cross by Conway 1 A. The formula you are referring to, a canvassing formula? 2 Q. Right. And the purpose of that canvassing formula is to 3 give bidders on city construction projects a credit, if you 4 will, for committing to use minority and women workers on 5 projects? 6 A. Yes, I believe so. 7 Q. And how long has the City had that ordinance? 8 A. I couldn't tell you when it was brought into being. 9 Q. And with respect to minority-owned and women-owned 10 contractors, your office had many outreach efforts? You had 11 fairs, correct? 12 A. Yes. 13 Q. And that seven-week program that Turner Construction 14 sponsored, that was in your view very, very effective and very 15 helpful? 16 A. Yes, it was. 17 Q. And a couple banks in the Chicago area also got involved in 18 this management training program that Turner sponsored? 19 A. That's correct. 20 Q. And this was a seven-week course, this Turner Construction 21 management program? 22 A. Yes. 23 Q. And that included things about information on how to do the 24 final aspects of operating a business? 25 A. Yes, record keeping, bidding jobs, meeting requirements for 1001 Grzyb - cross by Conway 1 various types of work. 2 Q. In that Turner Construction management program that began 3 around the time you started as acting purchasing agent? 4 A. Yes, it would have been definitely '89 or even a little 5 before. 6 Q. And the City also had vendor fairs about how to do business 7 with the City for minority-owned business? 8 A. And nonminority also, small nonminority, or for anyone. It 9 was open to everyone. 10 Q. And those were twice a year, these vendor fairs? 11 A. At least. We did quite a bit of outreach in the way of 12 workshops, and we actually had groups call us, community groups 13 and business groups, and we would actually go out and meet with 14 people and get them instruction, provide them with information. 15 Q. And specifically with the WBE/MBE program, the City had 16 multiple workshops advising minority-owned and women-owned 17 business enterprises how to get certified with the City? 18 A. Yes, we would do outreach in that area, yes. 19 Q. And with respect to vendor lists, you are not aware of any 20 work which your office did with a list of bidders on city 21 construction projects, correct? 22 A. I'm not sure I understand your point or what the -- can you 23 please repeat that question? 24 Q. Were you ever aware of any work that your office did in 25 preparing a list of bidders on city construction projects? 1002 Grzyb - cross by Conway 1 A. For what purpose? 2 Q. For any purpose. 3 A. I'm not, I'm not sure if there was such a list. I think, I 4 think we did have the information in terms of what construction 5 companies normally bid, and there was a bidders list in terms 6 of who the bidders were with the City of Chicago and people 7 that got paid by the City of Chicago. So it's a 8 computer-generated list that would show all those companies. 9 THE COURT: Well, originally you were talking about 10 this vendors list and 95,000 or 100,000. 11 THE WITNESS: Yes. 12 THE COURT: And I gather that was an undifferentiated 13 list of everybody who was a vendor with the City, including 14 construction companies? 15 THE WITNESS: Yes. 16 THE COURT: And when that got pared down, you ended 17 up with a much smaller list which also included construction 18 companies, but they weren't broken out as a separate -- 19 THE WITNESS: I don't recall such a list of 20 construction companies that I remember seeing. 21 THE COURT: Separate? 22 THE WITNESS: I don't believe so. 23 THE COURT: Okay. 24 BY MR. CONWAY: 25 Q. But the information was available to the City who actually 1003 Grzyb - cross by Conway 1 bid on construction projects let by the City? 2 A. What information are you speaking of? 3 Q. About who the bidders actually were on city construction 4 projects, that information was available to the City? 5 A. Are you saying if someone were to call our department and 6 want to know who all the bidders were or who all was bidding? 7 I don't understand. 8 Q. Well, just overall. You had this horrendous vendors list, 9 correct? 10 A. Yes. 11 Q. And you also had the information available -- 12 A. I don't believe we ever published or sent out a vendors 13 list, to my knowledge. The MBE/WBE directory was prepared and 14 issued and used by prime contractors and other minority 15 subcontractors. 16 Q. Even though the City never sent out a vendors list, did you 17 have the information available to identify who actually bid on 18 construction contracts let by the City of Chicago? Was that 19 information available? 20 A. I don't know that it was available in any kind of a report. 21 I don't know that at all. 22 Q. Whether it was in a report or not, was it available in the 23 computer system of the City who actually bid? Was that 24 available? 25 A. When you say they actually bid, in terms of total numbers 1004 Grzyb - cross by Conway 1 or a particular bid? 2 Q. In terms of total numbers. 3 A. I'm not sure. I don't recall. 4 Q. For projects, constructions projects that had federal 5 funding, did the City's MBE/WBE program still apply to that 6 portion of the project that was funded with city funds? 7 A. I don't believe so. 8 Q. And as assistant purchasing agent, did you give regular 9 budget messages to the city council? 10 A. Yes, annually. 11 Q. Was that to the budget committee? 12 A. That was to the city council and budget committee. 13 Q. And at these reports to the city council that you made, 14 were there comments by individual aldermen as to what the 15 participation numbers were for one minority as opposed to 16 another in city contracting? 17 A. Yes, typically. 18 Q. Give me an example. 19 A. For instance, an alderman may ask how many construction 20 contracts were issued to African-Americans or -- we had 21 statistics on goods and services as opposed to -- for instance, 22 goods and services, African-Americans were hired typically in 23 those contracts than they were in the construction area. So 24 those would be, they would always feel that very little 25 construction work went through African-American minorities, and 1005 Grzyb - cross by Conway 1 that was an example of what the complaints were by the 2 aldermen. 3 Q. And who is the they that you refer to, are these aldermen 4 who were African-American themselves? 5 A. Alderman Tilman is an example, Alderman Shaw, Alderman 6 Beavers. Many of them would make those comments. 7 Q. And did you take any action in response to those comments? 8 A. Well, what we tried to do is to locate more 9 African-American firms. 10 Q. The African-American firms just were not available in 11 construction? 12 A. Not as many in that area, but there were other areas that 13 we encouraged, whether they be in the area of demolition -- 14 again, that's where the unions came in, carpentry, plumbing, 15 electrical. We really wanted to see more, but that's where we 16 came against, hit a roadblock, hit the wall with the union 17 apprentices. They just wouldn't take them, they were having 18 trouble getting in. 19 Q. How about Hispanics? Were they available in construction? 20 A. They did more in construction. 21 Q. Right. And how about Asian-American companies in 22 construction? Were they available? 23 A. There weren't that many. There weren't that many 24 Asian-American companies that I recall. 25 Q. Now, with respect to the target market, do you agree that 1006 Grzyb - cross by Conway 1 the City's user departments had a pretty good idea of which 2 minority-owned and women-owned construction contractors were 3 available in different specialties? 4 A. Probably the way they would have known is through 5 experience of them being used on jobs. 6 Q. And were there times where there was an awful lot of 7 construction work in the Chicago area and there were many MBEs 8 or WBEs that were pretty much overextended with their resources 9 and their work force? 10 A. From time to time that came up, but not that often. 11 Q. And that would also affect what the level of target market 12 contracts were in any year for the City, that is, the overall 13 level of activity? 14 A. Yes, but it would not be a true statement to say that that 15 was the main reason, because all those years that I was acting 16 purchasing agent, they weren't all blockbuster years, and we 17 had a battle every year. 18 Q. And these are the target market contracts that are 19 exclusively set aside for minority-owned and women-owned 20 businesses? 21 A. Right. 22 Q. And you talked to the user departments about their actions 23 with respect to the target market? 24 A. Well, I'd lodge complaints with the chief of staff and the 25 department heads, and my managers and deputies dealt with other 1007 Grzyb - cross by Conway 1 people within the department to get that message through. 2 Q. And did you ever investigate the reasons the user 3 departments had for allocating a particular contract to target 4 market or not? 5 A. I didn't understand exactly why it was that they -- it 6 wasn't all that important. They knew, if they designated 7 someone to perform as a target market, then they obviously were 8 aware they were capable, they were available, and they 9 qualified to do the work. But the problem was it was far and 10 few between. It was always a chase to call to get them to 11 actually recommend a firm, or a particular contract, not a 12 firm, but a contract for target market designation. 13 Q. Did you ever investigate the reasons the user departments 14 had? 15 A. Well, we would ask, and then it was just a matter of 16 waiting for them to get back to us. We would send it back to 17 say there are minority firms out there that can do this. We 18 haven't received -- we've received almost nothing from you. 19 You need to uphold your responsibility because I don't know 20 what they thought, whether they thought somebody else, one 21 other department was going to do it all, or -- and they didn't 22 have to. You'd have to ask them. 23 Q. And was there any limit on the dollar amount of -- well, 24 strike that. 25 For an individual contract, was there any limit on 1008 Grzyb - cross by Conway 1 the dollar amount of the contract that could be listed under 2 the target market program? 3 A. Not to my knowledge. It was a matter of whether or not 4 there were contractors out there that were capable of 5 performing a particular size job. 6 Q. And on city construction projects, a payment bond was 7 required of the prime contractor, correct? 8 A. Yes. 9 Q. And that was to insure payment to subcontractors on those 10 projects? 11 A. Yes. 12 Q. And in your remarks before the city council in connection 13 with the 1990 ordinance, did you report that the level of MBE 14 participation for 1989 was 25.15 percent? 15 A. I don't recall. I don't remember. 16 Q. If I could show you, it's part of the City's Exhibit 1-B. 17 It's page 32 of the transcript. It's got a Bates number of 18 C1424. 19 Just calling your attention to the line 5, did you 20 report to the City during the hearings on the 1990 ordinance 21 that from 1989, the MBE percentage was 25.15 percent, and the 22 WBE participation was 6.15 percent of all city spending? 23 A. Yes. 24 Can I ask you what date this would have been, this 25 testimony would have been given? 1009 Grzyb - redirect by Crowe 1 Q. I believe July 23, 1990. 2 A. Okay. 3 MR. CONWAY: That's all I have for this witness at 4 this time, Your Honor. 5 REDIRECT EXAMINATION 6 BY MR. CROWE: 7 Q. Mr. Grzyb, you were shown some figures on compliance by 8 U.S. Equities, the general contractor on the Washington 9 library, on cross-examination. Do you recall that? 10 A. Yes. 11 Q. And is it not a fact that that compliance was achieved only 12 after your efforts to bring it about? 13 A. That's correct. Those numbers actually in the beginning, 14 they gave estimates. The problem was they would do nothing 15 about it and telling us that after, toward the end of the 16 second year, they would get the majority of the MBEs involved 17 in that project. The problem with that was it was such a large 18 amount that if we trusted them and they didn't do it, where are 19 we going to go to find $140 million that can be made available 20 for minority participation? Because there weren't that many 21 $140 million contracts out there when you compare the thousands 22 that we let. 23 Q. And did you put in time, effort, and energy to bring that 24 about? 25 A. Almost daily, probably daily, I would say. 1010 Grzyb - redirect by Crowe 1 Q. And I take it it was the same contractor who was on the 2 O'Hare International project? 3 A. I believe so. 4 Q. And the questions asked you, that was at the same time, is 5 that correct? 6 A. Yes. 7 Q. And that compliance was also brought about after your 8 efforts on the same contractor at the Washington Library? 9 A. Exactly. 10 Q. Mr. Grzyb, you were asked questions about did you ever see 11 acts of discrimination. What you saw at the Harold Washington 12 Library where blacks were not used on that library, were those 13 acts of discrimination as far as you were concerned? 14 A. I was. First of all, there were very few if any 15 minorities, but especially -- 16 Q. That's not my question. My question was, as far as you 17 were concerned, were those acts of discrimination? 18 A. In my opinion, they were. 19 Q. And when you saw the user departments resisting the use of 20 women and the use of minorities on city projects, were those 21 acts of discrimination as far as you were concerned? 22 A. Yes. 23 Q. And when you saw -- 24 I'm sorry. I did it to my witness. 25 A. I was just going to state that was the point that I was 1011 1 making earlier when we were talking about discrimination. That 2 was my view of discrimination. 3 Q. And finally, Mr. Grzyb, when you saw prime contractors, 4 during the time that you were the purchasing agent, not using 5 women as they were supposed to and not using men in city 6 projects, as far as you were concerned, were those acts of 7 discrimination? 8 A. Yes. Yes, sir. 9 MR. CROWE: Judge, if I could just confer with 10 counsel for a moment, I may be finished. 11 (Pause.) 12 MR. CROWE: Thanks, Mr. Grzyb. 13 THE WITNESS: Your Honor, is it okay to step down? 14 MR. CONWAY: Nothing further, Your Honor. 15 THE COURT: And that's it. Thank you. 16 THE WITNESS: Thank you. 17 (Witness excused.) 18 MR. CROWE: Judge, we had set aside some time to get 19 Your Honor's ruling on the admission of certain documents. I 20 say this with all due candor. The City has about 400 documents 21 to which Mr. Conway or Mr. Keidan have raised several 22 objections. Mr. Conway has about 800 documents to which we had 23 very few objections. 24 And if we could get the Court's ruling on those 25 documents, it might eliminate a certain number of witnesses we 1012 1 might otherwise have to call in this case. 2 Mr. Donham is prepared to enter into those 3 discussions and colloquy between Court and counsel if Your 4 Honor wants to participate at this time through that rather 5 onerous task. 6 THE COURT: Might as well. 7 MR. DONHAM: Judge, I have divided this into several 8 categories. 9 THE COURT: All right. 10 MR. DONHAM: And I think I'd like to start with the 11 earliest category, I mean the largest category, and hopefully 12 it's the easiest to deal with. 13 I will make reference to City Exhibits 2 and 3, 5 14 through 13, 15 through 35, 37 through 40, 45, 107 through 156, 15 235 through 252, 258 through 282, 287 through 289, 304, 375, 16 377, and 493. 17 And what is common to all these documents, sir, is 18 that they are city business records that are maintained and/or 19 produced by the city purchasing department. 20 Now, the plaintiff has raised objections to all these 21 on authenticity and foundation, hearsay, and relevance. We 22 could have someone come in and go through all these and 23 establish that they are business records. I don't think there 24 is any dispute that they are business records. We produced 25 them in the case. And as for relevance, this is a case about 1013 1 the city purchasing department, so it seems that, I don't 2 believe there is any real issue as to relevance. 3 And as to those exhibits that I named, sir, I would 4 ask that those be admitted. 5 MR. KEIDAN: Judge, first of all, I guess I want to 6 hear the numbers again, and I don't want to do this on the fly 7 because we have got scattered through this about 100 exhibits. 8 I don't know if what Mr. Donham is saying as to whether they 9 are city documents is correct as I sit here. I'd like to -- 10 THE COURT: Why don't we proceed on the basis that 11 they are as represented, and if it turns out that they 12 aren't -- 13 MR. DONHAM: Then, you know, Judge, if I made a 14 mistake here in my list, I would, you know, obviously withdraw 15 any statement. You know, I'm not -- 16 THE COURT: I'm not going to read them tonight 17 anyway. 18 MR. CONWAY: You know, Judge, maybe this would be a 19 useful suggestion. Whatever the categories are and whatever 20 the representations are as to why they are admissible, they 21 have seen our objections, they've been there since December or 22 January, whatever it is. Whatever those groupings are, Judge, 23 maybe we could present them to you, rather than doing it on the 24 fly, just send us the list, and we have to make a decision by 25 Friday. Does that help at all, Judge? 1014 1 THE COURT: Well, maybe we should just talk about it 2 generally, because that may help in terms of who decides to do 3 what. 4 MR. CONWAY: Very good, Judge. 5 MR. KEIDAN: And, Judge, for example, he says, one of 6 the categories he gave is 5 through 13, and I just note it's 7 near the start of his laundry list of numbers, and we did not 8 object to four of those, but we did have objections to a few of 9 his specific documents within there. So we didn't object to 10 all the numbers that he gave you; just to a few of them. 11 MR. DONHAM: I was just trying to save time. There 12 may be a few scattered in there that -- my recollection is that 13 if the document also happened to be on their own list, they 14 didn't object to it. But if they didn't also identify it as a 15 document, they objected to it, and that was pretty much uniform 16 without, through the whole list. That's what we are just 17 trying to cut through a bit now. 18 THE COURT: Well, certainly, as comes as no surprise 19 to you, this is not a jury case, it seems to me far better for 20 me to say as long as the document is what it purports to be, 21 and if it is a city business record kept in the ordinary course 22 of business, then as far as I'm concerned, there are no 23 technical reasons for it not to come in in terms of being an 24 admissible document. 25 And it really gets down to the matter of is there 1015 1 something in there that is possibly hearsay or is it relevant? 2 And it seems to me that it is better to deal with relevance 3 matters after they come in, because obviously people have taken 4 a rather diametrically different opinion as to what is relevant 5 here and what isn't, and people are going to be entitled to 6 make their arguments one way or another, and to have them in 7 front of me as part of the record it seems to me would be the 8 appropriate way to proceed, as I have said before. 9 MR. DONHAM: So if I understand it right, Judge, with 10 regard to the documents that, assuming that I am accurate in 11 what I said in terms of describing these as business records -- 12 THE COURT: Right. 13 MR. DONHAM: -- they are admitted subject to my 14 actually being correct and subject to any specific relevance or 15 hearsay objections that may arise in the context of a document? 16 THE COURT: Yes, and I am sure that, on a lot of 17 stuff, plaintiff is going to be telling me I should disregard 18 them because they are just not relevant to the particular 19 issues that are presented here in view of the applicable legal 20 standards. But having them there to consider whether that's 21 right or not, that's step number one anyway. 22 MR. DONHAM: I suppose I should correct myself. As 23 far as the hearsay issue, my understanding, I believe, is that 24 to the extent that they are actually business records retained 25 by the City, that's an exception to the hearsay rule. 1016 1 THE COURT: Well, except you can, one can have in a 2 business record a matter that is rank hearsay, and that doesn't 3 come in. 4 MR. CONWAY: Judge, is the City's representation that 5 this list they went through, which is what we are referring to, 6 are the business records generated by the City? Is that the 7 representation? 8 MR. DONHAM: No. 9 MR. CONWAY: This list. 10 MR. DONHAM: No, they are not all -- 11 THE COURT: They are generated by or preserved by as 12 records that they received. I mean, if somebody sends them an 13 invoice, that's certainly a business -- 14 MR. CONWAY: That's a good example, Judge. 15 MR. DONHAM: And I'll just say, Judge, just so 16 there's, you know, there's certain documents, and I'll even 17 give, I'll give the numbers, I think 107 through 156, which 18 relate to a specific contractor, and some of those Ozinga, and 19 those documents include in there documents presented by Ozinga 20 to the City with regard to certification and matters like that, 21 so they were maintained by the City. 22 MR. CONWAY: Oh, Judge, that's a perfect example of 23 we are going, the broad generalization of business records for 24 that mass of documents concerning the Ozinga company, which, 25 Judge, I thought under the settlement agreement, was not at 1017 1 issue in this case. In any event, Judge, we have got things 2 like tax returns. 3 MR. KEIDAN: And other financial data submitted by 4 Ozinga and other companies. Those are not city business 5 records, whether or not the City claims now that it's preserved 6 these documents. That is not a city business record, Judge. 7 MR. DONHAM: Well, I would argue to the contrary, 8 Judge. Those are documents that were sent to the City as part 9 of its business, they were -- and the City maintained them as 10 part of its ordinary course of business in operating a program, 11 operating a purchasing department. 12 THE COURT: Well, it's one of these situations where 13 they are business records in the sense that they are matters 14 that have been presented to the City as representations to the 15 City upon which the City ostensibly relied and which they kept 16 in the regular course of business; but, on the other hand, they 17 may not be proof of the representations therein, and, indeed, 18 in this case I would rather suspect that in certain instances 19 the City takes great issue with whether certain representations 20 that were made were totally truthful and accurate. 21 MR. CONWAY: Judge, what about the objection that, 22 under the settlement agreement between the City and Ozinga, 23 Ozinga is not supposed to be at issue? 24 THE COURT: Well, I don't think, not in terms of any 25 claim between Ozinga and the City. 1018 1 MR. DONHAM: We are not making any claim. 2 MR. CONWAY: Then it's not relevant, Judge. 3 MR. DONHAM: That's not true. 4 THE COURT: Well, I, at least I -- 5 MR. DONHAM: And let me explain why it's relevant, 6 Judge. 7 Mr. Conway has said a couple of times that there were 8 no waivers given in construction. As you know, Ozinga is a 9 ready-mix concrete contractor, and the documents, among the 10 documents that were there show that Ozinga, which had a 11 contract from about 1997 through -- they are still doing 12 business, but through 2001, they did about $60 million with the 13 City, and their MBE participation was less than 1 percent. 14 So that's certainly relevant with regard to the issue 15 of waivers, and those are documents that are within the group 16 that we are asking you to admit. 17 MR. CONWAY: But for Ozinga, Judge, I have to get 18 into to explain that to Your Honor, obviously I am going to say 19 that those waivers were granted in the face of complaints, 20 injunctions, Seventh Circuit oral arguments, and that's where 21 we get into -- in this particular category of documents, there 22 is an objection other than the ones that we listed. 23 THE COURT: Well, let's put them in a special 24 category and worry about them later. 25 MR. DONHAM: Judge, I just want to be clear on this. 1019 1 Ozinga got its waiver back in 1997 when the contract started. 2 We are not talking about what went on last year or anything 3 that was before the Seventh Circuit. I am talking about 4 documents that were produced by Ozinga to the City and the 5 City's response to those documents back in '97, way before 6 there was any Seventh Circuit. So it's -- 7 THE COURT: In the first place, that case got settled 8 in the Seventh Circuit. I don't think I have even read the 9 settlement agreement. Maybe I have. To the extent that there 10 is releases and so forth, that's between the parties, well, 11 you'd have to persuade me that it would affect the 12 admissibility of evidence in this case where what the 13 relationship between those parties may have been back a few 14 years ago is, from the City's point of view, germane to the 15 position they are taking in this case. 16 MR. CONWAY: But, Your Honor, the lawsuit was pending 17 back in '96, and it certainly would be Ozinga's position that 18 it would not have gotten those contracts if they were not 19 challenging the unconstitutional MBE/WBE program, which gets me 20 into an argument that the settlement agreement was supposed to 21 address. 22 THE COURT: Well, I think, let's put that aside for 23 the moment since I don't even have it in front of me. 24 MR. CONWAY: All right, Judge. 25 THE COURT: But otherwise, does that take care of 1020 1 where we are at? 2 MR. DONHAM: On the city business records? 3 THE COURT: Right. 4 MR. DONHAM: Yes, sir. 5 MR. CONWAY: And what was the numbers after 282, 6 Judge? 7 MR. DONHAM: Okay, let me go through it again. It 8 was 280 -- I had 258 to 282, 287 to 289, 304, 375 to 377, and 9 493. 10 THE COURT: Next category. 11 MR. DONHAM: Yes. The next category, I guess I could 12 almost describe it as a subset of the city business record. 13 There are a number of documents that we had marked, Exhibits 14 161 through 234, that were correspondence generally involving 15 Judge Getzendanner in her work on the blue ribbon panel. 16 Now, the builders have marked a couple of these as 17 exhibits for themselves. We had hoped that Judge Getzendanner 18 would be here. It is my understanding her husband had some 19 surgery and she's not able to participate, but our view is that 20 she was acting -- 21 THE COURT: What's the nature of the surgery? 22 MR. DONHAM: I'm not sure, I'm not privy to that, but 23 that's what we were advised. 24 But our view is that she was acting essentially as an 25 agent of the City working on the blue ribbon panel and that 1021 1 these documents, which are mostly correspondence to and from 2 her and other blue ribbon panel members, would constitute city 3 business records, and also for purposes of completeness. If a 4 couple of these are going to be put in, I think that we should 5 be able to show the whole picture. 6 MR. CONWAY: Judge, it can't possibly be a business 7 record because it's directly responding to the anticipated 8 legal challenge to the program. I think you have seen that 9 enough in the blue ribbon report. It's in anticipation of 10 litigation at a minimum. 11 And, Your Honor, it's not part of the official record 12 even in the City's view of the support for the 1990 ordinance. 13 It's not the blue ribbon report, it's not any of these 14 hearings, and for that reason, it's not what the City relied on 15 or used for purposes of its 1990 ordinance. 16 And that's in addition to the other -- and many of 17 these we are talking about, the 170 documents, Judge, and some 18 of them are just rank hearsay. The conclusions are included in 19 there. They are not business records. They are in a different 20 category. 21 MR. DONHAM: Well, I think it's unfair to say that 22 they have nothing to do with the blue ribbon panel report. 23 It's true that this correspondence was not before the blue 24 ribbon panel. However, this is -- 25 THE COURT: Who was the correspondence between? It 1022 1 was between Susan Getzendanner and? 2 MR. DONHAM: Let me give you some examples, Judge. 3 Exhibit 161, letter to Susan Getzendanner from J. Terrence 4 Brunner from the Better Government Association. 5 THE COURT: Okay. 6 MR. DONHAM: 162, letter from to Susan Getzendanner 7 from Kelly Welsh regarding appointment as a special assistant 8 corporation counsel. 9 163, another letter from Kelly Welsh to Susan 10 Getzendanner enclosing materials regarding the City's M/WBE 11 program. 12 164, a letter to Ruben Castillo from Susan 13 Getzendanner enclosing a letter from the City. 14 165, a letter to Ruben Castillo from Susan 15 Getzendanner regarding a call from Kelly Welsh. 16 166, a memorandum to Ruben Castillo and Milton Davis 17 from Susan Getzendanner enclosing a copy of a letter that was 18 written to Joe Gardner, who was with the Metropolitan 19 Reclamation District at the time, I believe. 20 That's a sample, Judge. There is a whole list of 21 these. 22 MR. CONWAY: Judge, I stand by the objections that we 23 made to this exhibit list in addition to the ones I just made. 24 For example, Exhibit 161, it's the Better Government 25 Association. You don't have it in front of you, but J. 1023 1 Terrence Brunner is making some position statements that's rank 2 hearsay. 3 THE COURT: And that, I am aware that they sometimes 4 do that. Certainly what happened back in 1990 falls in a 5 somewhat different legal category than what the situation is 6 right now because, as I read Croson and its progeny, the burden 7 there is for the, well, a substantial good faith effort to 8 determine whether the constitutional norms have been breached, 9 not a matter of absolute proof, but a good faith, substantial 10 effort which demonstrates that there was a reasonable cause to 11 believe that something was so and wasn't an exercise in racial 12 politics. 13 And what the City did to attempt to do that seems to 14 me to not -- well, to extend beyond exactly what was said to 15 the city council, and in that sense has a relevancy, a limited 16 relevancy, but relevancy nevertheless, and, on the other hand, 17 unless it is something that, from the City's point of view, 18 bolsters that position, well, there is a limit to how many 19 letters I want to read. 20 MR. DONHAM: Well, I guess the point, Judge, would be 21 to show that there was a substantial good faith effort by the 22 City to determine whether an ordinance was needed and to 23 determine -- or to demonstrate that it wasn't engaging in, I 24 think as the Croson court said, simple racial politics. And I 25 think that, yes, there are a lot of letters here. A lot of 1024 1 them are not, you know, long or detailed, but it shows that 2 there was substantial effort made by the City. I think for 3 that purpose is really what we are looking for. 4 THE COURT: I just want to keep in mind anything you 5 put in as an exhibit that you want to rely upon, you want me to 6 rely upon as an exhibit, I am going to have to read. 7 MR. DONHAM: Well, Judge, what we can do is, what we 8 can do, Judge, is point out certain specific ones that, we can 9 highlight them. 10 THE COURT: Okay. But on the other hand, if there is 11 something you aren't going to highlight anything in, then why 12 put them in? Because then if I haven't read them, the Court of 13 Appeals isn't going to read them either, so -- 14 MR. DONHAM: All right. I understand what you are 15 saying. We will present a pared down list of these documents 16 that we think illustrate the substantial good faith effort that 17 the City undertook in 1989 and 1990 to demonstrate a compelling 18 interest for a program. 19 THE COURT: Okay. 20 MR. DONHAM: And I can get that to you early next 21 week, Judge. 22 THE COURT: Okay. 23 MR. DONHAM: Now, the next category of documents, 24 which actually itself falls into two categories -- 25 Could I return to the table? I want to pick 1025 1 something up. 2 THE COURT: Sure. 3 MR. CONWAY: Judge, not to go backwards, but that 4 category we just went through, the 161 to 234, we get the pared 5 down list, and then we tell you if we still stand by our 6 objections? 7 THE COURT: Sure. 8 MR. DONHAM: Yes, that's fine. 9 The next category, Judge, they are included in 10 several different exhibits, Exhibit No. 36, 284, and 407 11 through 434, and these documents are newspaper articles. I 12 believe that 36 is a fairly large number of them, many of them 13 going back to the seventies. 14 Now, these, the City subscribed to these newspapers 15 for years, the Sun-Times and the Tribune, and as far as the 16 evidentiary issues with newspapers, to the extent that they are 17 over 20 years old, under rule, I think it's 901(b)(8), ancient 18 documents, which includes documents over 20 years old, and 19 that's been held to apply to newspapers -- well, newspaper 20 articles are included within this ancient document exception if 21 they appear to be what they are, if they've been maintained in 22 an appropriate manner, and actually I think Rule 803(16) 23 provides for the admissibility of statements in a document in 24 existence 20 years or more when the authenticity is 25 established, and it applies to all sorts of documents including 1026 1 newspaper articles. 2 That would be an argument for the admissibility of 3 these, but the real purpose of them, Judge, is that these 4 documents show what the City was on notice about, because it 5 received these newspapers. And, again, there is not much 6 institutional knowledge in a city. We went from the early 7 seventies in one Daley administration to Mayor Bilandic, then 8 to Mayor Byrne, then to Mayor Washington, then to Mayor Sawyer, 9 then the current Mayor Daley. It's hard to find one person in 10 the City that has this institutional knowledge. 11 But as an institution, the City did have notice of 12 these events that were reported in the papers for its entire 13 existence over this time frame, and for that purpose, we'd ask 14 that these newspaper articles get admitted. 15 Now, some of the later exhibits that I mentioned, I 16 think 36 has most of the older ones. There are some more 17 recent articles also, and I think those are also, as far as 18 foundation, more recent newspaper articles are self- 19 authenticating, and, again, it shows what the City is aware of. 20 MR. CONWAY: Judge, we have our objections, of 21 course, as you know in our written objections to all these 22 exhibits, including those regarding hearsay, Judge. You are 23 talking about the foundation. 24 THE COURT: What? 25 MR. CONWAY: Foundation is important here. It cannot 1027 1 be used to show knowledge by the City because our review of 2 these documents indicates that some, apparently some paralegal 3 collected a set of articles. There is no foundation for saying 4 that this is a set of information that was before the City at 5 any particular point in time. So that argument doesn't work, 6 it's hearsay. And it's not relevant unless they are trying to 7 use it for the truth of the matter asserted, and that's in 8 addition to our other written objections. 9 But foundation is important here because there is no 10 showing that this was collected by anyone. I am inclined to 11 agree that there was high turnover at the City over all these 12 years, but that only undercuts the City's argument that somehow 13 there is some pervasive systemic discrimination that needs to 14 be remedied. But let's put that aside. These should not come 15 in. 16 THE COURT: Well, again, I wonder if we are arguing 17 here about something that isn't worth arguing about. I 18 certainly do not believe that a real battleground in this case 19 was whether there was discrimination by the City and by the 20 trade unions and within the construction industry that was 21 systemic and persuasive and pervasive back in the sixties 22 and -- well, certainly to the fifties and sixties and into the 23 seventies. 24 I probably read an awful lot of those articles, and, 25 you know, as to whether, if something was published in the 1028 1 Tribune and the Sun-Times, then obviously a lot of people in 2 the City read it. 3 From what you are telling me, you are not disputing 4 that they were published when they say they were published in 5 the publication they say they came from. 6 MR. CONWAY: Well, Judge -- 7 THE COURT: But I am just not sure I need to read all 8 those. 9 MR. DONHAM: Well, again, Judge, maybe we could do 10 the same thing, we could highlight a couple that we think are 11 perhaps of more significance than others and bring those to 12 your attention. I certainly realize that this case is, has got 13 a lot of paper, and there's going to be a lot of testimony, and 14 I am not trying to overburden Your Honor by any means. In 15 other words, I am trying to do the best I can for my client 16 here. 17 THE COURT: I understand that, but, again, I just 18 don't really see this case turning on what the state of affairs 19 was back 35 years ago. 20 MR. DONHAM: I don't think we go back 35 years, but 21 that's -- 22 THE COURT: Pretty close. Seventies. 23 MR. DONHAM: There are other newspaper articles that 24 are more recent. 25 THE COURT: Well, the more recent ones, as far as I 1029 1 am concerned, are pretty much like people making complaints 2 that this is what is being represented. Whether it's a matter 3 of a complaint by somebody or it's a newspaper story, it is a 4 representation by somebody, in the case of a newspaper, by a 5 reporter, as to a certain set of facts, which is certainly 6 hearsay, but may have some relevance as something that's being 7 said that people in public life have to pay attention to, look 8 into. 9 MR. DONHAM: So let me see if I understand where we 10 are. 11 THE COURT: So I think for a limited purpose, they 12 can come in. 13 MR. DONHAM: Shall I -- let me move on to the next 14 category, Judge. There is the next category, these are a 15 series of documents that are basically transcripts and 16 testimony from congressional committees and subcommittees. And 17 I can go through these, the ones that we'd like you to take 18 judicial notice of. 19 Note that in the Adarand v. Slater case, the Court 20 took judicial notice of a number of congressional hearing 21 documents. 22 Now, what we have tried to do, Judge, is pare this 23 down to hearings that actually involved people from the City of 24 Chicago and from the Chicago area, being mindful of the 25 admonition that in local government cases you need to focus on 1030 1 the market area that you are dealing with. 2 THE COURT: Right. 3 MR. DONHAM: Although I would also point out that it 4 wasn't the City but it was the Builders Association who was 5 asking the witness questions today about her business in 6 Jamaica and in Texas and in western Kentucky, so we didn't open 7 that door, but I suggest that perhaps the builders did by going 8 into those matters. 9 THE COURT: No, I don't think they opened any doors. 10 MR. DONHAM: Let me go through these, Judge. 11 Our Exhibit No. 53 was a hearing before the house 12 subcommittee on government operations, barriers to full 13 minority participation in federally-funded highway construction 14 projects, April 1, 1988. This dealt with the road builders, 15 among other things, who testified or were quoted there, the 16 statements of Reverend Willie Barrow, statement of Joseph 17 Banks, executive director of Midwest Community Council, 18 statement of Leon Bradley from the Chicago Urban League, 19 statement of Cleveland Chapman and Carolyn Jordan who also 20 participated with the blue ribbon panel. These all deal with, 21 deals with the City, it's a congressional hearing, and we 22 believe that's a document that would be appropriate for 23 judicial notice. 24 MR. CONWAY: And, Judge, in our written objections to 25 these written exhibits, we quote the language from the Croson 1031 1 decision that says, "If all a state or local government need do 2 is find a congressional report on the subject to enact a 3 set-aside program, the constraints of the equal protection 4 clause will in effect have been rendered a nullity." 5 So, Your Honor, in addition to hearsay, the fact that 6 these were previously produced, the relevance objection, 7 improper opinion testimony, and this language from the Supreme 8 Court in Croson that says that a city cannot rely on 9 congressional reports or else an equal protection clause is 10 just a nullity, Judge, this particular category of information 11 should not be in the record. And remember, we are not talking 12 about the City's program, we are not talking about the 10 13 percent federal program that was at issue in Adarand versus 14 Slater, as Your Honor is well aware. So all the backup for 15 that 10 percent aspirational goal does not apply to our local 16 government imposing a much higher percentage on an insufficient 17 record. 18 THE COURT: Well, as I read Croson, the City can't 19 point to some congressional hearings and say, "Therefore, it 20 justifies the program." Can they add it to the pile? I think 21 they can add it to the pile. To the extent that it involves 22 some other program and some other area of government, level of 23 government, it has, that has a real impact on its relevancy. 24 But this is such an area, I guess talking about 25 newspaper articles is another example, where there has been so 1032 1 much comment, so much writing, you all have, I know, experts 2 who have relied on all sorts of written commentary that parsing 3 out what is wholly beyond the bounds and what is within, 4 although not massively helpful, is rather difficult, and at 5 this point, it seems to me the thing to do is let it in, and, 6 to the extent that there is something helpful to them that they 7 want to rely on, they can point it out, and you can tell me why 8 I shouldn't pay any attention to it. 9 MR. DONHAM: And, Judge, what we'll do is when we 10 give you the list of the exhibits that we want you to take 11 notice of from I'll call them the Getzendanner group, I'll give 12 them to Mr. Conway at the same time, the list that we want you 13 to take particular notice of, and then he can make whatever 14 comments he wants at that time. 15 THE COURT: Okay. 16 MR. DONHAM: Is that acceptable to Your Honor? 17 THE COURT: Yes. 18 MR. CONWAY: Judge, on the last category, I know you 19 have already ruled, but in our written objections, the 20 authentication and foundation, this is why we objected to 21 information that was not in front of the city council, because 22 now you have hundreds of exhibits, congressional reports coming 23 in -- 24 MR. DONHAM: There is not hundreds, Judge. We have 25 maybe six or eight, I think, maybe at the most ten that we are 1033 1 going to point out to Your Honor. I mean, there are several 2 more listed on our exhibit list. 3 MR. CONWAY: Well, are those -- 4 MR. DONHAM: We are going to point out six, eight, 5 maybe ten that we ask you to that are basically focused on the 6 Chicago area. 7 MR. CONWAY: The rest are withdrawn, Judge? 8 THE COURT: Pardon? 9 MR. CONWAY: Are the rest withdrawn? 10 THE COURT: I think he is going to be going through 11 the same paring down exercise we have been talking about. 12 MR. DONHAM: Yes. 13 THE COURT: I don't want to read hundreds of 14 statements before the congressional committees. 15 MR. DONHAM: That's not what we are here for, Judge. 16 It does show that it's a subject that has come up many, many, 17 many times in terms of being an important public policy issue. 18 But we are going to give you a narrow list, Judge. 19 THE COURT: If all the literature about this subject 20 were included, it would make Webster's International Dictionary 21 look like a third of a comic book. 22 MR. DONHAM: Judge, that is all that I have right 23 now. 24 MR. KEIDAN: And, Judge, I have a few, while we are 25 on this subject. Mine is not exhaustive, but we have some city 1034 1 business records that the City objected to, and I am not going 2 to talk about the exhibits that the City did not object to. 3 THE COURT: Sure. 4 MR. KEIDAN: But only those that they did. And when 5 we are talking about the city business records, BAGC Exhibits 6 26, 27 and 138, I'd move for the admission of those at this 7 time. 8 MR. DONHAM: Just a second. Let me get a copy of our 9 list so I can see what we are talking about. 10 THE COURT: Sure. 11 Can you describe the categories? 12 MR. KEIDAN: 26, 27, and 138. 13 26 and 27 are Arthur Andersen documents that were 14 done at the City's request. They were reports and interviews 15 with respect to the MBE program, and they are documents that 16 were kept by the City. 17 And 138 is an audit of the City's MBE program done by 18 the NIGP, the National Institute of Government Purchasing, at 19 the City's request, and, again, that is a document that the 20 government, the City -- 21 THE COURT: And by the same token, that's information 22 that was made available to the City. 23 MR. DONHAM: Yes. Judge, we'll withdraw our 24 objections subject to the same comment regarding hearsay. 25 Again, they weren't prepared by the City, but we will withdraw 1035 1 the objection to those. 2 THE COURT: Okay. 3 MR. KEIDAN: And the second category, Judge, is 4 business records of the Builders Association of Greater 5 Chicago. There are not a lot of these, but they go to the 6 issue of standing, and I think we can speed that issue up. 7 THE COURT: Do we still have a standing issue? 8 MR. KEIDAN: Well, the City does, is the short 9 answer, Judge. And let me give you the numbers of documents 10 that I am talking about. 11 MR. DONHAM: Judge, if they want to put in their 12 documents, I'm not going to object to them. 13 MR. KEIDAN: Well, let me give you the numbers right 14 now so that the record is clear, because they haven't objected 15 to all of them. But the documents I believe to be entered as 16 BAGC business records are 274 to 287 and 294. 17 MR. DONHAM: And, Judge, we'll withdraw any objection 18 to those documents. 19 THE COURT: Okay. 20 MR. DONHAM: Judge, there was -- actually I'm glad 21 Mr. Keidan, he reminded me that we had also listed some BAGC 22 documents as exhibits, documents that they produced. This was 23 Exhibits 292 through 300, 302 and 303, 381, 391, and 436 to 24 492, which are either minutes or correspondence. 25 There shouldn't be any foundation problem or 1036 1 authentication problem with Builders Association documents that 2 they produced, and so we'd also ask that those be admitted. 3 MR. KEIDAN: Can I just have those numbers again? 4 MR. DONHAM: Sure, 292 to 300, 302, 303, 381, 391. 5 MR. KEIDAN: 381 through 391? 6 MR. DONHAM: Yes, and 436 to 492. 7 THE COURT: And any document that a party produces is 8 fair game as an admission, both sides. 9 MR. DONHAM: Yes, sir. 10 And, of course, we still have our issue with the 11 other Builders Association minutes, but I think they are going 12 to respond by Friday noon, and hopefully we can get that 13 resolved early next week. 14 THE COURT: Tomorrow? 15 MR. KEIDAN: Well, Judge, I have one issue with 16 respect to -- well, if you will just bear with me for one 17 second? 18 THE COURT: Sure. 19 MR. KEIDAN: No, I think we are okay with those 20 numbers. 21 THE COURT: Okay. 22 MR. DONHAM: Okay. 23 THE COURT: Tomorrow? 24 MR. DONHAM: Yes, sir. 25 THE COURT: What's happenings tomorrow? 1037 1 MR. DONHAM: Judge, tomorrow the first witness that's 2 going to go on I believe is Karen Johnson. The intervenors 3 will put her on. And then I know Dr. Bates is going to be here 4 to finish up, and I'm not sure how long. I know Mr. Conway 5 said an hour and a half. I guess it will depend on how long 6 that goes. We'll have to have another witness here maybe. 7 THE COURT: Well, that's why I was raising it, 8 because I've got a quarterly meeting that I'm supposed to go to 9 at about 3 o'clock tomorrow afternoon. 10 MR. DONHAM: Well, it may be that if Dr. Bates is 11 done by about 3 o'clock, that may be all we can do them. 12 MR. CROWE: We'll try to accommodate that, Judge, for 13 sure. 14 THE COURT: Okay. 15 MR. DONHAM: And I suppose if, to make sure, we could 16 put Ms. Johnson on next week and -- 17 THE COURT: No, I'd like to move it along as best we 18 can. 19 MR. CONWAY: And then, Judge, with respect to these 20 pared down lists or the exhibits the City is actually relying 21 on, what's the date that we get that list for all these 22 categories? 23 MR. DONHAM: Give me a few days, Judge. I mean, they 24 took two weeks to file a response to a motion to compel. Give 25 me a few minutes. 1038 1 MR. KEIDAN: We are not arguing. 2 THE COURT: No, they just want to know when you can 3 get to it. 4 MR. DONHAM: Hopefully by the time we finish up next 5 Thursday, and if I can do it sooner, I certainly will do it 6 sooner, Judge. I don't want extra things on my plate. We have 7 got plenty to do. 8 THE COURT: Okay. Hopefully by the end of next week. 9 MR. CONWAY: That's it, Judge. Thank you. 10 MR. CROWE: Good night, Judge. 11 MR. DONHAM: Thank you, Judge. 12 (Adjournment from 5:00 p.m. to 10:00 a.m., May 29, 2003.) 13 C E R T I F I C A T E 14 I, Michael P. Snyder, do hereby certify that the forgoing is a complete, true, and accurate transcript of the 15 proceedings had in the above-entitled case before the Honorable JAMES B. MORAN, one of the judges of said Court, at Chicago, 16 Illinois, on May 28, 2003. 17 ______________________________ Official Court Reporter 18 United States District Court Northern District of Illinois 19 Eastern Division 20 21 22 23 24 25