Task force charged with trying to make sense of Oregon's prevailing

A task force charged with unraveling how Oregon's prevailing wage rate law applies to complex public-private projects continued its work last week by brainstorming possible criteria for determining whether a project is or is not a public work.

Thursday's two-hour session saw the 17-member task force, which was appointed in June by Oregon Labor Commissioner Dan Gardner and first met in early August, making inroads on shaping interpretation of a state statute that defines public works.

Dave Hicks, an attorney with the Oregon Department of Justice, told task force members that there are really only two state statutes relevant to the task at hand: ORS 279C.800(5), which defines public works, and ORS 279C.810(c), which identifies projects that don't directly or indirectly use public funds as exceptions to the prevailing wage law, regardless of whether they're public works or not. A lack of case law, Hicks said, gives the task force much flexibility in determining what fairly should and should not fall under prevailing wage law.

There is no binding precedent on how these statutes should be interpreted, he said. There's not even a lot of guidance.

The two statutes combine to form a two-prong test, and during its last meeting, the task force agreed to sort prevailing wage issues into a group for each of the prongs, plus a third group for issues related to processes and procedures.

The first issue group - which includes the first test prong of whether a project is carried on or contracted for by a public agency and therefore a public work - was the meeting's focus. Task force co- chairman Bob Shiprack, executive secretary of the Oregon State Building and Construction trades council, urged members to set aside the ORS and come at the language from the perspective of what seems right, and what seems fair.

We're going to take a look at this as a clean slate, using our best judgment, he said.

A list of 14 project scenarios was used to spark discussion. All dealt with situations that are both common and tricky, such as construction contracts that include both a public agency and a private party, public agencies issuing requests for proposals for both sale and development of buildings that will ultimately be privately owned, and private development of buildings for which a public agency provided tax credits.

Resulting criteria for interpreting the language included who the owner was, what the structure would be used for, who bore the risk in the project, what interest and intent the government had in the project, whether the public agency was paying construction bills and whether the public agency issued requirements for construction.

Thursday's meeting, Shiprack said, was really a framing discussion, intended to flesh out issues the Bureau of Labor and Industries wants the group to touch upon. The discussions, held on the second and fourth Thursday of every month through February, will ultimately end in policy recommendations to Gardner.

Focus during the next meeting will be on the second issue group - and the second prong of the two-prong test - which is funding. Items that fall into the second group include funding mechanisms of new market tax credits, tax increment financing, lower than market loan rates, etc., as well as mixed financing projects.

The next task force meeting will be held from 3:30 p.m. to 5:30 p.m. Oct. 27 in Room 918 of the Portland State Office Building, 800 N.E. Oregon St., in Portland.

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