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The picture below was recently taken at the new Municipal Courts building currently under construction.  As you can see one of the sub-contractors on the job was one of our very own City Councilmen. I am certain that the work will be of the highest quality and that everything is on the up-and-up…. but… don’t ya think that the taxpayers have a right to know the financial details of this job as they pertain to the financial gain of one of their elected officials? I believe that information like the value of the contract and who the competing bidders were and what they bid should be readily available to the public in the name of transparency.

To be clear, I am sure that the letter of the law and the City’s bid processes were followed by everyone involved with this project. However, I think it is the Council as a whole that needs to take the next step to add more transparency to the process.

For reference please read my previous post…

Did you that a General Contractor does not even have to disclose his list of subs to be awarded a contract with the City? It wasn’t until I recently requested that contractors provide the City with the sub-contractor lists when dealing with local preference issues.  During our first local preference contract discussion this year an Austin contractor informed the Council that he had not decided upon all of his subs.  So…. I wonder, would it be wrong I voted to award the job referenced in my previous post to a Contractor that after the fact picked me to do the work?  I’ve been told that a Council person should abstain from a vote in which there may be a reasonable chance of receiving work as a result of the contract being awarded.  Hmmmmm, wouldn’t it make the sense that I shold refrain from discussions about a project in which there may be a reasonable chance I could receive work as a result of the contract being awarded?

Next Tuesday, June 30th, at 10 a.m. there will be a ribbon cutting for the opening of Wendland Road. The road will be open to traffic immediately following the ceremony. You can go to the ceremony and be on the first people to drive over the new road.

The Wendland Road project signifies the completion of the second of three major projects / improvements in our North Industrial Park.  Our first project, a $2 million, 21-acre detention pond - one of the largest in our system - was completed this past April.

The second of these projects now coming to completion is the Wendland Road component.  The City has added over a mile of new capacity to Wendland road to handle increasing truck traffic associated with the arrival of Toyota, HEB, and Northland Products.  The City has also added another mile’s worth of improvements, including a 12″ water line, an 8″ sewer line, a 4″ force main, and a lift station.  The cost is approximately $4 million dollars.

The third component of improvements to the North Industrial Park is the Rail component. We are adding over five miles to our existing rail system, bringing better, improved connection from BNSF mainline to all our customers in the park, including Toyota.  The estimated completion date is late fall of 2009 with a cost of approximately $9.5 million.
If you add up the dollars spent on these projects it totals $15.5 million.  The question here is how much, if any, of this money went to any businesses owned by Council members?  This is relevant because there were many discussions and votes that had to take place long before any bids were solicited or contracts awarded. Monies had to be allocated, incentives had to be formulated, studies had to be done, plans had to be drawn, land had to be purchased, etc. It is my belief that Council members with construction or construction related businesses should have abstained from every single discussion and vote since they, in all likelihood, would have the opportunity to bid on the contracts in one way or another.

There have been many red herrings tossed on the floor concerning this conflict of interest hullabaloo.  Over the next days I will attempt to briefly address various diversions that have been used so effectively - until now.  Before I start the rebuttals I want to make very clear my issue has to do ONLY with the practice of Council Members, directly or indirectly, benefitting from the hundreds of millions of construction contracts that have been awarded since I have been on the Council.   Everything else is nothing but a distraction.

1. The argument that my beef is politically motivated is entirely correct. This issue has everything to do with politics. You have two opposing views on this issue by elected officials that have yet to be reconciled.  Everything is politics when you get into disagreements.  The real issue is that the majority of the Council have worked together to keep the issue from the voters, virtually killing any meaningful discussion. Click here, here and here to view three posts on this particular smokescreen.
2. “The city could lose some talented people if it prohibited council members from doing business with the city.” This is one of the more bogus claims by pro-conflict of interest folks in town. This, by the way, is the same rationale used for the continual re-appointments of people to key City boards like TEDC and Reinvestment Zone. Does anyone seriously believe that in a booming City of 60,000 people that would that we be perilously lost if a few couple of dozen people couldn’t serve on the Council or on City boards (for 100 consecutive years)? Gimmee a break.  Click here, here & here for some posts on this diversion.
3. Contractors only deal with independent engineers not City staff.  One of the comments attributed to a Councilman in the Sunday article was “We don’t deal with the city directly when we’re doing (bidding) a project. We deal with an engineer who has been hired by the city.”  If this comment is taken at face value one would think that there are no City staff that interact with contractors during the duration of the job.  In reality this is not the case. The City has an entire construction safety department that is tasked with making sure all construction in the City meets the requirement as set forth by standards, codes and job specifications (for City jobs). Our purchasing and accounting departments handle the processing of change orders and payments respectively.  It is just not possible to exclude staff from the construction process.  Click here & here for my thoughts on this one.

I will work on more later.

I have spent considerable time pondering on the quarry item from a couple of weeks ago. The outcome is the outcome so there is no use re-hashing out the details of the meeting.  The thing that I am somewhat confused about is the abstentions of two Council members from discussing and voting on the item. A conflict of interest is a conflict of interest regardless of whether or not the elected official votes or discusses the item.  The Mayor’s abstention is pretty straightforward. He, up until recently, owned a quarry himself. Since he received some significant income from this quarry he, by definition, was conflicted out.  Councilman Schneider’s abstention is a bit more curious though.  On his abstention affidavit he hand wrote that “could be a customer” in the future and “that he had previous negotiations with the land owner”. For the record I agree that he should not have participated based on his reasons and am glad he chose to abstain.  It seems to me, however, that he now seems to agree with the arguments I have been making for over a year about him being conflicted on discussing or voting on ANY item that he “could” be a bidder on. It really doesn’t matter that he “might” bid as a general or sub-contractor.  It is the fact that he “could” be bidding just like he “could” have become a customer of the now defunct quarry. If his logic stays consistent it appears that we have turned the corner on our disagreement and the Council will be all the better for it.

Click here to view the abstention affidavits for the Quarry agenda item.

I guess it has been too long for most people to remember Tom Martin. Tom Martin was the Director of Public Works when I first elected to the Council over 6 years ago. It wasn’t long after the election that he was let go by the former City Manager. At the time there were lots of justifications as to why he needed to go but from my perspective a big reason was that he got crossways with a Councilperson. While you may not remember Tom Martin there is one group of people that remember him well, our City employees. They saw first hand what could happen when you cross a Councilperson. Now put yourself in their shoes. Would you want to police the work of one of your bosses?  Well that’s the exact position we have placed numerous City employees that have oversight responsibilities for construction contracts awarded to a Councilperson.

When you hear the phrase “honest politician” what do you think of? Do words like integrity, trustworthy or honorable come to mind or do words like self-serving, unscrupulous and dishonest rise to the top of the list? Should the phrase be taken at face value or is it an oxymoron? When I think of oxymorons I tend to think of the ones that make me laugh.   Cheerleading scholarship, assistant supervisor, wedded bliss, United Nations, and stable woman really tickle my funny bone.  For some reason my wife doesn’t see the humor in a couple of those on the list… but I digress. However, I see no humor in the words honest politician. People just don’t trust politicians. Heck, I don’t trust politicians. Words like self-serving, unscrupulous and dishonest rise to the top of my list when I hear the phrase. I guess that’s why I take this conflict of interest stuff so seriously. Some would say that it makes the individual Councilmember look bad, but I think it also makes the Council as a whole look bad. We are not doing a very good job protecting the “perception of integrity” that is so important to an elected body.  Ironically, we have a Councilmember abstaining from yet another Construction contract vote tonight.

Last Thursday we approved another local preference contract.  This time around we paid $21,000 more than the low bidder from out of town. While I acknowledge the benefit to the local economy, I am also concerned about the expense to the taxpayers. So far we have spent almost $75,000 more on two projects than if we had chosen the low bidders. This is no small amount.  The conundrum for me is that, like last time, both contractors provided lists of subcontractors they planned on using. Both lists contained a good number of local sub-contractors so those dollars were going to stay local no matter what.  The only real difference is that the actual contractor himself was local.  Is that enough to justify the added expense? In this case I thought so and voted accordingly. Next time it may not.  Click here to view the agenda info including the contractors sub lists.

I want to call attention to an outstanding idea our City Attorney mentioned to me during the meeting. His idea was to let the local contractor match the low bid so that we do not have to pay the additional amount. I think this has the potential to be a good solution to these situations.  He is in the process of researching the legality of this option.  I will keep you apprised of what he finds out.

All this time I have been struggling with the conflict of interest section in our current charter and I get the following email. After reading the email a dozen times I proceeded to read the section about 100 times and have come to the conclusion that this is one of the most ambiguous things I have read. I do, however, agree with his interpretation.  It’s about as clear as mud… depending on who you’re talking. If the goal is real transparency for the voters mud just won’t do will it?

As I read the current charter, anyone who owns a business or 10% of a business or has a first degree relative who owns a 10% interest in a business, then that person cannot do business with the city through that business. The only problem with the provision is that he is only excluded from dealing with the city if he receives a “special economic benefit that is distinguishable from the effect on the general public.” Basically, this could be interpreted to mean that he can’t sell his widgets for a higher price than anyone else to the city. It could also mean that he can’t get special considerations. These considerations could be assisting in the bid requirements, design, materials, methods and so on. Also having inside knowledge about the budget or thought process of the council could be perceived as an economic benefit. However, this language seems to allow a council member to do business as long as it is on a level playing field.  I disagree with the interpretation of the second part (red text below). While it might seem unnecessary if the first part (blue text below) bars a councilman from doing business with the city, there are many possibilities where it works in tandem with the first part. Subcontractors, parts suppliers, materials suppliers, service suppliers could all benefit from the letting of a contract to a business owned by other than a council member.  For example, the mayor could have awarded a road contract to a company who he knows would use the gravel from his quarry. While he would not directly do business with the city, he could still get an economic benefit.

Section 4.9.  CONFLICT OF INTEREST:
No Council¬member shall, during his term of office, hold any other public office or employment, compen¬sation for which is paid out of public funds. No Councilmember, appointed officer, or employee of the City shall benefit unduly by reason of his holding public office. For the purposes of this section, a person “unduly benefits” by reason of his holding public office, if he, a person related to him in the first degree, or a business entity in which he or a first degree relative has a ten percent interest or from which he or a first degree relative receive ten percent of their income, will receive a special economic benefit that is distinguishable from the effect on the general public. No Councilmember, appointed officer, or employee of the City having a direct or indirect interest in any proposed or existing contract, purchase, work, sale, or service to or by the City shall vote or render a decision, or use his position, authority or influence in a manner that would result in his financial betterment to a greater degree than the general benefit to the public. Any knowing or willful violation of this section shall constitute malfeasance in office, and any elected or appointed official, or any employee of the City, guilty thereof shall thereby forfeit his office or position. Any violation of this section, with the knowledge, expressed or implied, of the person or corporation contracting with the City shall render the contract involved voidable by the City Council. The restrictions contained in this section shall be cumulative of those required and provided by State law.

This Thursday in our workshop session one of the items up for discussion is the City Charter.  I requested this session to once again voice my concerns about the conflict of interest issues pertaining to a sitting Council member being awarded construction contracts by the City. There are numerous reasons this practice gives me heartburn the main one being the impact it can have on the public’s perception of the Council. It is a fact that perception is reality in the minds of the voters. If it looks likes a fish, swims like a fish and more importantly smells like a fish then a fish it is. It doesn’t really matter if it is actually a fish or not. It appears as one and thus it is. The practice doesn’t look right. It just looks plain fishy.

I started a new book today called “The Speed of Trust” by Stephen Covey.  At the beginning of the book the author writes “There is one thing that is common to every individual, relationship, team, family, organization, nation, economy, and civilization – one thing which, if removed, will destroy the most powerful government, the most successful business, the most thriving economy, the most influential leadership, the greatest friendship, the strongest character, the deepest love.  On the other hand, if developed and leveraged, that one thing has the potential to create unparalleled success and prosperity in every dimension of life. Yet, it is the least understood, most neglected and most underestimated possibility of out time.  That one thing is trust.”

I firmly believe that the foundation by which governments works best is based on trust. Elected officials should do everything and anything within their power to ensure that nothing hinders their reputation or trustworthiness.  The black and white areas are fairly easy to discern and avoid.  However, it is the grey but legal areas that cause people to question the ethics of the elected officials.