Ken Allard: Give TxDOT red light before it goes too far

By Ken Allard - San Antonio Express-News - 10/17/2007

Forgive me, fellow Texans, but I'm just a newcomer who looks ridiculous in a cowboy hat and doesn't even own an SUV. Quickly recognizing Eastern transplants, tourist shops try to sell me bumper stickers: "Wasn't born in Texas, but I got here just as soon as I could."So can you help me connect these dots while we wait for the daily Boerne-Loop 410-airport-Seguin-San Marcos traffic jam to clear up?

News item No. 1: Pleading a funding shortage, the Texas Department of Transportation announced it will cut $1.8 billion in road construction, including at least $57 million (apparently earmarked in a weak moment) to widen clogged San Antonio highways.

News item No. 2: Today, Travis County District Judge Orlinda Naranjo will decide if TxDOT officials acted illegally in spending taxpayer funds to drum up political support for toll roads (TxDOT's preferred solution to the state's transportation crisis).

News item No. 3: A private contractor received more than $750,000 from TxDOT to send road condition surveys to 150,000 presumably startled motorists whose license plates were "randomly recorded" by TxDOT surveillance cameras hidden in orange barrels on Interstate 35 from Laredo to Dallas.

As a one-time regular on his MSNBC simulcast, I would often hear radio shock jock Don Imus exclaim, "You just can't make this stuff up!" Indeed you can't when it comes to TxDOT, which gives an entirely new meaning to the phrase "out of control."

Has no one in the Lone Star State ever heard of "checks and balances"? (Hint to local high schoolers about to endure new rounds of standardized testing: This term does not refer to financial matters!)

Had TxDOT somehow been cast as a character on "The Sopranos," the only question would be: How long before Paulie Walnuts takes 'em out to get whacked?

While the arrogance of government agencies and personalities is the hardiest of all perennials, there is always the inevitable downside.

A powerful congressman such as Wilbur Mills winds up cavorting with stripper Fanne Fox in the Tidal Basin. FBI Director J. Edgar Hoover is eventually revealed to have had a fondness for basic black, apparently accessorized with really nice pumps and pearls.

So just how far can TxDOT push its luck before somebody wakes up and gives the agency its long overdue comeuppance?

Had anything like the trifecta of excesses outlined above occurred in Washington rather than Austin, the offending agency director would have been instantly summoned to appear before investigating committees, with the usual tiers of media mavens and photographers-in-waiting. With cameras scrutinizing every flinch, the tough questions for the TxDOT director would begin.

Who decides which road improvements are funded by your agency — and with whose concurrence? What public input is solicited, and why should the public believe TxDOT when you say you're running out of money?

What gives you the idea that a taxpayer-funded public agency has any business using those tax dollars to lobby for its own interests? And why waste almost a million dollars on a "Big Brother" survey about road conditions that your department should have understood to begin with?

Until such questions are asked and answered, simply think of TxDOT as a state agency being gradually auctioned off to a hot-bidding coalition of builders, developers, heavy equipment contractors and construction magnates.

One thing is certain: We are quickly losing much of San Antonio's special character to chaos — unbridled expansion, high-density housing and utterly unplanned growth. Despite growing questions about its transparency and competence, TxDOT acts as an obliging accomplice while fields, forests and the last remnants of an irreplaceable frontier culture are bulldozed into 24 lanes of privatized, toll-bearing concrete, complete with access roads.

Know what San Antonio will look like if these guys win? Houston!

Know what we are if we let that happen? Stupid!

Reasons enough to demand that our political leaders bring TxDOT's antics to a screeching halt before it starts putting up toll booths at the end of your driveway.

(Got here just as soon as I could to warn you.)

Turf prevails as Judge grants continuance, allows discovery - TURF attorneys may depose top TxDOT officials

By TERRI HALL - Texans Uniting for Reform & Freedom (TURF)- Oct. 18, 2007

Austin, TX – Thursday, October 18, 2007 - In Travis County District Court today, Judge Orlinda Naranjo granted Texans Uniting for Reform and Freedom (TURF) a continuance allowing TURF to force the Texas Department of Transportation (TxDOT) to move to the discovery phase and depose top TxDOT officials, including Transportation Commission Chairman Ric Williamson himself. Allowing discovery is vital for TURF to force TxDOT to hand over key documents that they’ve been withholding via Open Records requests. TURF is seeking to immediately halt the illegal advertising campaign and lobbying by TxDOT. LINK.

The State was attempting to throw us out of court with their favorite “get out of jail free” card (called the plea to the jurisdiction), but TURF’s attorneys, Charlie Riley, David Van Os, and Andrew Hawkins outmaneuvered Attorney General counsel Kristina Silcocks to file a motion for a continuance to allow TURF to move to the discovery phase to gather evidence to show TxDOT’s top brass broke the law with the Keep Texas Moving (KTM) ad campaign and lobbying Congress to buyback interstates.

“This is a great victory for Texas taxpayers!” an elated Terri Hall, TURF’s Founder and Executive Director proclaimed. “This egregious misuse of $9 million of taxpayer money by a rogue government agency is one MAJOR step closer to being stopped.”

The tide seemed to turn when Riley showed the affidavit by TxDOT’s Helen Havelka was false. TURF uncovered this August 13, 2007 memo by Coby Chase through an Open Records request showing the Keep Texas Moving campaign was not over and in fact it has multiple phases planned with the next one fashioned to influence the upcoming Trans Texas Corridor TTC-69 NEPA (National Environmental Policy Act) hearings planned for early 2008.

With a clear attempt to mislead the court by causing Judge Naranjo and the public to believe the KTM Campaign was over when in fact it isn’t, the State’s credibility and case went downhill from there.

“I wonder what TxDOT’s top brass is saying tonight as they’re being informed they’ve now been added as defendants and may be deposed under oath about their lobbying and ad campaign activities,” pondered Hall. “My guess is the phones are ringing and the paper shredders may just get fired-up.

This lawsuit is brought pursuant to § 37, Texas Civil Practice and Remedies Code. TxDOT’s expenditure of public funds for the Keep Texas Moving campaign is illegal, and an injunction prohibiting any further illegal expenditures in this regard.

TxDOT has violated § 556.004 of the Texas Government Code by directing the expenditure of public funds for political advocacy in support of toll roads and the Trans Texas Corridor, and have directly lobbied the United States Congress in favor of additional toll road programs as evidenced in its report, Forward Momentum.

On Monday, September 24, Judge Orlinda Naranjo did not initially grant a temporary restraining order (TRO). TxDOT unearthed a law that says they can advertise toll roads (Sec 228.004 of Transportation Code) and the citizens invoked another that says they can’t (Chapter 556, Texas Government Code). The burden to obtain a TRO is higher than for an injunction.

“TxDOT is waging a one-sided political ad campaign designed to sway public opinion in favor of the policy that puts money in TxDOT’s own coffers. School Boards cannot lobby in favor of their own bond elections, and yet TxDOT cites its own special law to line their own pockets at taxpayers’ expense,” says an incredulous Terri Hall, Founder/Director of TURF.

Hall also notes that TxDOT’s campaign goes beyond mere advertising, “It’s propaganda and in some cases, the ads blatantly lie to the public! In one radio ad it claims it’s not signing contracts with non-compete agreements in them, and yet last March TxDOT inked a deal with Cintra-Zachry for SH 130 that had a non-compete clause (which either prohibits or financially punishes the State for building competing infrastructure with a toll road). Read about it here.”On this link scroll down to radio ad “continuing maintenance”).

On August 22, 2007, TURF filed a formal complaint with Travis County District Attorney Ronnie Earle to investigate TxDOT’s illegal lobbying and asked him to prosecute TxDOT for criminal wrongdoing. See the formal complaint here . The petition seeks immediate injunctive relief in a civil proceeding.

Updates to TURF’s petition and supplemental affidavits will be posted soon.

City staffers accused of taking sides on Trinity toll road

By RUDOLPH BUSH, BRUCE TOMASO and DAVE LEVINTHAL - The Dallas Morning News - Saturday, September 29, 2007

Top Dallas city staff members appear to have a cozy relationship with leading advocates for the Trinity River toll road, a series of e-mails among them shows. The disclosure has infuriated toll road opponents and caused City Manager Mary Suhm to caution her top deputies about politicking on the job.

For instance, in a July 6 e-mail, Rebecca Dugger, director of the city office overseeing the Trinity project, encouraged toll road supporters to call a radio talk show to give a positive view of the project.

"I am not going to call. Hope you can," Ms. Dugger wrote in response to a request that she call the show.

Twenty days later, toll road backer and former City Council member Craig Holcomb asked Ms. Dugger if she could assist him in making a presentation before the Oak Cliff Chamber of Commerce.

"I would LOVE to partner with you. ... Do you want me to attend as a backup/visual eye candy?" Ms. Dugger responded.

And in an Aug. 15 e-mail to Ms. Suhm, Ms. Dugger and other staff members, Mr. Holcomb felt free to take a swipe at council member Angela Hunt, the toll road's chief opponent.

The e-mail was intended to arrange a meeting between city staff and the nonprofit Trinity Trust organization and asked if the group could meet at the Original House of Pancakes. Mr. Holcomb liked the location "[f]or nostalgia's sake, to remember the days before AH," he wrote in reference to Ms. Hunt.

Mr. Holcomb said Friday that he had never asked the city staff to do anything inappropriate and that the staff never had.

He acknowledged being friends with Ms. Dugger and many others at City Hall, and he made no apologies for that.

"If you work with somebody for five years on a project, you get to be friends," he said. "It's deeply troubling to me that because you share a joke with someone in an e-mail, that anyone would question your integrity."

Regarding his joke about Ms. Hunt, he said, "One council member out of 15 wants to derail the Trinity project, and I don't see anything wrong with being nostalgic for a time when that was not the case and we could all work together."

City staffers are prohibited from advocating for one side during an election, and Ms. Suhm said her staff has been careful to avoid taking a position on the Nov. 6 referendum on the toll road project.

But long-standing friendly relationships between some staff members and toll road proponents have at least led to the appearance that the city has gone out of its way to assist those who would see the referendum fail so the road can be built.

Former Dallas City Council member Donna Blumer, who opposes the toll road project, said she was shocked by the e-mails.

"They're pretty damning ... city staff is collaborating with the Vote No! campaign," she said.

Ms. Hunt said that the e-mail exchanges "undermine any argument the city has that they're being neutral on this issue." But she does not plan to pursue the matter through legal or ethical channels.

"I'm focused on November 6th, getting our referendum passed and making sure we get the park we want and not a giant toll road in a floodway. Going forward with it doesn't win this election," Ms. Hunt said.

Mayor Tom Leppert, who said he had not seen the e-mails in question, said the city staff should remain neutral and has tried to do so.

Voters will decide Nov. 6 whether a high-speed highway can be built inside the Trinity River levees. A yes vote prohibits such a highway. A no vote would allow the city's plans to go forward.

The Dallas Morning News obtained hundreds of e-mails originating at City Hall regarding the toll road project, using the state's open records law. The vast majority were between city staff and toll road proponents. Only a handful were from those who oppose the toll road and did not involve requests for information.

Defending the staff
Ms. Suhm broadly defended her staff's handling of what she said has become a delicate, even precarious, balancing act on the Trinity project.

City staffers are required to help the city realize a "Balanced Vision Plan," ordered by the City Council, that calls for the construction of a toll road between the Trinity levees downtown, Ms. Suhm said.

But they aren't permitted to advocate for or against a referendum that, if successful, would undermine that plan.

Further complicating matters is the fact that leading referendum opponents are City Hall insiders, from former council members and mayors to a former city manager.

"It's a hard line. We talk about it all the time," Ms. Suhm said.

As recently as Tuesday, Ms. Suhm cautioned her top deputies about how to handle requests for information about the Trinity project, she said.

"I have been completely wound up about this since the start. I have been a major league nag," she said.

As for Ms. Dugger's e-mails with Mr. Holcomb, Ms. Suhm acknowledged the two are personally close and said that led to an overly friendly tone in the e-mails between them.

"I talked to her. I said, 'I know y'all are friends, but you need to keep the friendship part out of the business part,' " Ms. Suhm said.

She added that while she might have handled the matter of the radio talk show differently, she believes Ms. Dugger acted appropriately when she declined to go on the show.

"I would be concerned if she had called [in]," Ms. Suhm said.

Ms. Dugger also defended her correspondence.

"My basic concern is for the facts to be told. If I feel like the facts are not being told, and if others have the facts, then they should get those facts out there," she said.

Other e-mails
Ms. Suhm also was the recipient of friendly e-mails from toll road backers seeking help or information.

On July 5, she received a request from former City Manager Jan Hart Black, now the president of the Greater Dallas Chamber of Commerce.

"We will need a presentation from city staff on the issues and consequences of a successful election," Ms. Hart Black wrote.

Ms. Suhm said Friday that the city regularly fulfills requests for presentations on the Trinity project. Ms. Hart Black also defended the request.

"The city has a responsibility to respond and to provide us information and answer our questions. We request information from City Hall on many issues," Ms. Hart Black said in a prepared statement. "I am sorry that Angela Hunt is attacking city staff for simply doing their job."

In a July 18 e-mail, toll road backer and former City Council member Donna Halstead asked Ms. Suhm to personally review a poll intended to gauge support for the Trinity River toll road plan.

Ms. Halstead said the request was one of many she has made of Ms. Suhm regarding a variety of topics.

"Mary and I have known each other for many years. I ask her and others at City Hall questions all the time," said Ms. Halstead, who heads the Dallas Citizens Council. "I'm very lucky that they feel comfortable giving me answers."

Ms. Suhm acknowledged receiving Ms. Halstead's e-mail regarding the poll. She said she reviewed the poll for factual errors.

"If the other side came and asked us questions or asked us to speak about [the project], we would," she said.

City staff members are permitted to answer factual questions from the public regarding city projects, but Ms. Hunt questioned Ms. Suhm's decision to review the poll.

"I find it unusual that the city manager of the ninth-largest city in America is doing fact-checking on a partisan poll. ... What's she doing? Spell-checking?" Ms. Hunt said.

Texas Ethics Commission attorney Tim Sorrells said e-mail traffic of this nature doesn't appear to fall under his office's purview.

City Attorney Tom Perkins, meanwhile, declined to comment on his office's involvement, if any, in such a matter. Mr. Perkins did note that "we have certainly discussed with staff the permissible parameters of what they should or shouldn't do in a campaign."

Mr. Leppert, meanwhile, said he wants to make sure there isn't any appearance of bias on the part of the city's staff.

"My view is everybody is doing their best to play this thing as neutral and down the middle as they can," he said.

Mr. Leppert, who has become the major voice of the toll road supporters, said that it doesn't help his cause to have the staff seen as tilting toward one side or the other.

"I don't want it to be an issue," he said.

THE RULES FOR CITY OFFICIALS, EMPLOYEES

Dallas Administrative Assistant City Attorney Jesus Toscano sent a four-page memorandum to the City Council, City Manager Mary Suhm and her assistant city managers in August explaining what actions city officials and employees may take during the Trinity campaign. Mr. Toscano wrote that employees:

• May not use city facilities, personnel, equipment or supplies in support of or in opposition to the measure, except to the extent and in accordance with the terms that those city resources are generally available to the public.

• May be involved in political activities outside of work that support or oppose the measure, but cannot use their city titles.

• May participate in fundraising activities supporting or opposing the measure in his/her individual capacity, but not on city time.

• May not use the prestige of their position with the city on behalf of a political committee. This also applies to a city measure, if political committees have been formed to support or oppose the measure.

• May make personal contributions to political committees supporting or opposing the measure.

• May place campaign signs in their yards and on the premises of their homes supporting or opposing the measure.

• May display campaign bumper stickers supporting or opposing the measure on their personal vehicles (but not on any city vehicles under the employee's control).

• Should not push any subordinate employee to participate in an election campaign, contribute to a political committee, engage in any other political activity or refrain from engaging in any lawful political activity. A general statement merely encouraging another person to vote does not violate this provision.

Dave Levinthal
Read more in the Dallas Morning News

Confidentiality Interests Prevent DOT From Handing Over Docs

By Laura McGann - July 5, 2007
The Department of Transportation is citing "confidentiality interests of the Executive Branch" as the reason for hanging on to at least 53 documents the House Committee on Oversight and Government Reform wants to see.

The committee requested the documents for its investigation into whether DOT improperly lobbied Congress on behalf of the auto industry. DOT maintains that anti-lobbying measures do not apply in the alleged scheme because members of the agency contacted Congress directly. The measures only applies when an agency enlists citizens to lobby officials, lawyers for DOT argue.

Rep. Henry Waxman (D-CA) still wants a full look at the case. The situation emerged from California's request for an Environmental Protection Agency waiver that would allow it to heighten emissions standards in the state. When the deadline for EPA to make a decision neared, DOT employees contacted members of Congress about how the decision could affect the auto industry in their districts.

See Tpmuckraker

DOT Defends Lobbying Congress For Auto Industry
By Laura McGann - June 14, 2007
The Department of Transportation said in a letter earlier this week that anti-lobbying measures do not apply to its officers who contact members of Congress on behalf of the auto industry.

DOT announced this stance in a letter from the agency’s acting general counsel responding to the head of the House Committee on Oversight and Government’s request for information. The committee wants to hear more about an alleged plan to pressure members of Congress into persuading the Environmental Protection Agency to deny California a waiver allowing it to raise carbon emission standards.

DOT’s head lawyer Rosalind Knapp argued in her response that anti-lobbying law only applies when agencies call on private citizens to lobby Congress on their behalf. She also said that she advised several officials that it would not violate anti-lobbying provisions if they contacted members of Congress directly:

DOTs actions in no way violated anti-lobbying restrictions, as those provisions apply to and prohibit “grass roots” lobbying intended to encourage third parties, members of special interest groups, or the general public to contact members of Congreess or State legislatures in support of or opposition to a legistlative matter.
The executive director of The Project on Government Oversight Danielle Brian said the “grass roots” language comes from a case under the Reagan administration where the Pentagon and Lockheed Martin were accused of illegally lobbying Congress. The case made it illegal for agencies to get community members involved in lobbying, but allowed agencies to contact members of Congress directly.

Despite the historical standard, Brian said she still thinks DOT’s argument is worth challenging. “I think its important not to just accept the executive branch’s opinion on what is acceptable,” Danielle said. “Congressional lawyers need to look at that law as well.”

Waxman is still pursuing the issue. He responded to the letter from DOT’s general counsel Knapp saying that there is a "need for a thorough examination of the facts”

NOTE by Faith Chatham: The letter touches on a similar issue to that raised in Texas when US DOT stated that proposed legislation would violate Federal policy and probably cause loss of transportation funding.