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Landowner sues city, Wal-Mart and Endeavor

Wednesday, October 22, 2003 by

Judge grants TRO against Wal-Mart, Endeavor, not city

The owner of the land at MoPac and Slaughter once set to be the home of a new Wal-Mart Super Center has received a Temporary Restraining Order prohibiting both Wal-Mart and Endeavor Real Estate from destroying documents or emails relating to their negotiations with the City of Austin. Mayor Will Wynn and other members of the City Council, along with pressure from neighborhood and environmental activists, convinced the company to abandon the site. Endeavor withdrew from its contract to buy the land, and the owner is considering legal action against all parties involved.

On October 1, Wal-Mart announced its decision not to pursue the Slaughter at MoPac location and Endeavor officials said they would drop their option to purchase the property. On October 2, Brian Cassidy of Locke Liddell & Sapp, who represents SR Ridge Limited Partnership, the landowner, submitted an open records request to the city, seeking a voluminous amount of information. On October 16, the city sent a copy of its request that Attorney General Greg Abbot issue an opinion on what records the city might withhold and what must be turned over to the prospective plaintiff. According to the suit filed Tuesday, that letter is the only document Cassidy has received.

The contention in the suit filed yesterday is that without a court order, potential evidence might be destroyed. Cassidy and attorney John Nelson filed a request for a TRO on behalf of SR Ridge against the City of Austin, Wal-Mart and Endeavor. They made their arguments in a brief hearing Tuesday afternoon. Assistant City Attorney Robin Sanders represented the city, but representatives of Endeavor and Wal-Mart chose not to oppose the action.

Sanders told the court that the city, as a matter of policy, routinely retained documents and emails. “Destruction of government documents is a penal code offense,” Sanders told District Judge Darlene Byrne. “We’re not interested in that.” Cassidy argued that with the increasing trend toward telecommuting, some of the crucial emails showing details of the negotiations between the city and Wal-Mart could easily be stored on computers not governed by the city’s document-retention policy. The general protection afforded city documents, he told the judge, “may not be as broad as your order needs to be. Some documents and information may be in the personal computers of City Council members. It’s definitely a gray area.” While Cassidy said he did not suspect any city employee or elected official of deliberately deleting emails, he did note it was possible for some files or messages to be removed through routine computer maintenance procedures designed to clean out old files and improve the performance of a machine’s hard drive.

In granting the motion regarding Wal-Mart and Endeavor, Byrne noted there was a “total absence of any information about a retention policy. You’re at risk that, maybe next week, they wash their entire computer system.” But she excluded the city on the grounds that state law and city policies provide a reasonable guarantee the information would not be destroyed. The possibility that files might be deleted, she ruled, was not sufficient cause for a TRO. “As for the city, you have at best . . . speculative harm,” she said. “In most cases where I grant these, we have real evidence it is happening.”

In response to Cassidy’s open records request, the city asked the Attorney General for a ruling on whether much of the information would be protected under various sections of the Government Code, which relates to public information. First, the city asked for a determination that the information sought by SR Ridge is “excepted from disclosure under Section 552.103 because the City anticipates litigation on matters relating to the subject of this request.” In the letter to Abbot, Assistant City Attorney Brad Norton noted that the purpose of that section is to allow the governmental entity to protect its position “in litigation by requiring parties seeking information relating to that litigation to obtain it through discovery procedures.”

The attorney-client privilege is also an established principle that protects both the attorney and those who seek his advice from being forced to divulge information. The Supreme Court has recognized that principle on numerous occasions. As Norton writes, “Attorney-client communications have long been privileged and confidential by judicial decision, so such communications are excepted from required disclosure under Section 552.101 of the Government Code.” The letter also says, “internal communications consisting of advice, recommendations, opinions and other material reflecting the policymaking processes of the government body” are exempt from disclosure rules. So, if the Attorney General sees matters as the city does, SR Ridge will have to get its information through the normal discovery process used in civil litigation.

McCracken, Goodman voice support for moratorium

Both would like to add design standards to study

A barrage of emails have begun to flow into City Council offices as members of the public become aware of the proposed anti-big box ordinance and accompanying 45-day moratorium on permits for those buildings. (See In Fact Daily, October 21, 2003.) Consultant Mike Blizzard of Grass Roots Solutions made it easy for those who oppose such businesses over the aquifer to tell the Council how they feel. He sent out an email Tuesday morning directing readers to an easy link for e-mailing the entire Council to show support for “an ordinance limiting big box retailers like Wal-Mart, Lowe’s and Costco from building over our aquifer.”

Council Members Raul Alvarez and Daryl Slusher are sponsoring the ordinance. Council Member Brewster McCracken, who was initially listed as a sponsor, said he had received about 300 emails on the subject. Last night he said he would be supporting the ordinance, with an amendment. “I’m working on an addition to the proposal that would require design standards—so that we can move past these kind of generic, windowless stores that are fronted by enormous parking lots.”

Although most of those contacting McCracken favor the moratorium and ordinance, he said, “It’s not as overwhelming as these things usually are. There are a lot of pro- Wal-Mart emails…that is not even the issue. It’s how big do we make the stores in what part of the city. The issue is consuming the Council’s agenda and we need to work on a solution to it. This city has a lot of experience and expertise in working on design standards for retail standards. Whether we do it as a moratorium or not I think everybody has recognized that we do need a cooling off period… there is a surprising intensity of emotion on both sides of the issue. It has caught a lot of us by surprise. We need to change the way big box development is done in Austin.” McCracken campaigned against Wal-Mart’s now-abandoned plan to build atop the aquifer.

Mayor Pro Tem Jackie Goodman, a veteran of both the Council and the Planning Commission, had similar thoughts. In an email Goodman wrote that she does not need any more emails on the subject since she supports the moratorium and ordinance. “In fact, we need to use this process review time to see if we can’t be a little more subtle than usual . . . and see if we can’t incorporate some Georgetown and Wimberley ordinance (design) components into this, too.”

County commissioners skip contract bidding

Vote on concessionaire splits court

A split Commissioners Court declined to send the concessionaire contract at the Travis County’s Exposition Center out for competitive bid next summer, over the objections of the county purchasing agent.

The concessionaire contract, currently held by Aus-Tex Concessions, has been on the county’s executive session agenda for a number of weeks. Yesterday, the Commissioners Court agreed to extend Aus-Tex’s contract for another four years after commissioners clarified they were not required to go out for bid on it.

While most county contracts are one year in length, with the option for one-year extensions, Aus-Tex has held the concessionaire contract for five years. Purchasing Agent Cyd Grimes urged the court to seek bids for the contract in a memorandum dated Sept. 29, noting that at least two other companies were interested in competing for it.

The concessionaire contract has thus far never generated much interest. Until a couple of years ago, the Expo Center had meandered along without even any air conditioning. In her memo to Commissioners Court, Grimes pointed out that the Exposition Center is a far different facility today than it was in 1999, when the last concession contract was awarded.

“Today, there is a greater potential for increased concession revenues,” Grimes wrote. “The only way for the Court to be assured that it is getting the best commission on revenues at the Center is to open it up to formal competition.”

Aus-Tex gives the county 39 percent of its revenues, plus another $50,000 payment per year to cover a portion of the cost to install air conditioning at the facility. County Judge Sam Biscoe pointed out that Aus-Tex had contributed toward the HVAC system far in advance of its installation and ought to be around to reap the benefits of its contribution.

“They have been more than good partners out there,” Biscoe said.

Commissioner Gerald Daugherty said he was torn. While Daugherty believed Aus-Tex deserved some additional consideration because of its contribution to the air conditioning system, he was also uncomfortable circumventing the bid process. Daugherty said he understood that the last contract had been drawn up and predicated on the condition that the Expo Center would be air-conditioned, in the hope of drawing more local events.

“I would be more inclined to give them another two years without the $50,000, but we need the $50,000 for the Expo Center to be self-sustaining; so we’re in a spot,” Daugherty said. “To extend to four years without a bid . . . I don’t think that’s something that we need to start doing arbitrarily. We’re going to bid that, and we’re not going to bid this? I’m really uncomfortable in this situation.”

Commissioner Karen Sonleitner went even further, saying the contract would be under keen scrutiny. “I wouldn’t call this a sweetheart deal, but there will be others who will,” Sonleitner told her colleagues before the vote.

The concessionaire contract did not need to go out for bid because, in the opinion of the County Attorney, it was a “revenue-generating” contract. Revenue-generating contracts do not fall under the Purchasing Act. In her memo, Grimes went on to write that no audit has ever been conducted by the county to even verify the gross receipts at the Expo Center.

Alicia Perez, executive manager of operations for the county, provided the court with statistics on concessionaire contracts at Bergstrom Airport. In the concourse area, where Matt’s El Rancho, Amy’s Ice Cream and the Salt Lick Barbeque are located, the concessionaire has agreed to provide a 12-percent commission on food and a 15-percent commission on alcohol. The contract also guarantees the city a minimum of $523,000 per year.

Grimes pointed out that the concessionaires at Bergstrom bore much higher overhead costs. She also provided unsolicited emails from a number of the major users of the Expo Center—including the Ice Bats and Star of Texas Rodeo—complaining about the quality of the food, the high cost of concession items and slow service.

Despite Grimes’ arguments, Biscoe moved for extending Aus-Tex’s contract, saying he wanted “what’s best for the Expo Center and Travis County.”

Commissioners were split 3-2 on the final vote, with Biscoe and Commissioners Ron Davis and Margaret Gomez voting in favor of the contract. Daugherty and Sonleitner voted against it.

©2003 In Fact News, Inc. All rights reserved

More delays requested for Wal-Mart cases . . . Representatives of several local organizations have requested that the City Council delay hearing two non-aquifer related Wal-Mart cases this week. The groups, including the South River City Citizens (SRCC), AFSCME, Austin Neighborhoods Together, and the Austin Independent Business Alliance, as well as Susan Moffat, Robert Tsukahara and Robin Rather as individuals, asked the Council to delay hearing the zoning cases until after the city has completed a study of “the negative effects of Wal-Mart on local economies.” In a separate email, Rene Barrera of the SRCC requested a four-week postponement on the cases. Wal-Mart’s attorney, Richard Suttle, said, “We cannot agree to a month. If they wanted a week that would be fine. But this case has been around for a long time. We’d like Slaughter and I-35 to be heard Thursday but on Ben White we could wait week ”. . . Clean Air Force wants you . . . Central Texas must do something to lower air pollution. In order to avoid possible federal penalties, area governments signed the Early Action Compact, which means elected officials are looking at the best ways to comply with clean air standards. As part of that process, the Clean Air Force has put together a survey so the public can weigh in on the issue. To view the survey, go to: http://webtools.nustats.com/cleanair.survey. The Clean Air Force would like as much feedback as possible by the deadline of November 15th . . . Today’s meetings . . . The Council Committee for Telecommunications Infrastructure will meet at 3pm. The Planning Commission will meet at 6pm, as will the Mexican American Cultural Center Advisory Board.

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