Conflict of interest ruling strikes a nerve

Downtown property owners excluded from bidding

City management has made a decision, in the midst of the bidding process, to exclude downtown property owners from the list of applicants to complete the Downtown Neighborhood Plan. That decision, made to prevent conflicts of interest, has stirred anger among some of those eliminated from the consultant pool.

An initial Request for Qualifications went out in April but that was rescinded and a second RFQ issued in August. The second RFQ included the new conflict of interest policy and a submission deadline of Sept. 8.

After the second deadline, seven responding firms were whittled down to three. The City Council could vote on the consultant for the Downtown Neighborhood Plan next week. Although the bid documents did not include a total dollar figure, the Council budgeted $200,000 in the 2006-2007 for the downtown plan.

Wednesday night Cid Galindo– who also happens to sit on the Planning Commission – made a low-key pitch to the Downtown Commission to urge reconsideration of the new conflict of interest policy and send any possible conflicts through the city’s Ethics Commission.

Galindo happens to live in the Brazos Lofts at Fifth and Brazos but he wasn’t the only consultant prevented from participating in the bid by the new policy. Sinclair Black, Charles Heimsath and Donna Carter all own downtown property and were excluded from further bidding, Galindo said.

"My livelihood is not dependent on that contract," Galindo said. "I’m really here, more, to defend the principles in the situation and to point out that there has been a substandard handling of this situation by city staff and especially the city legal department."

Galindo presented letters of support from the Downtown Austin Neighborhood Association and the Downtown Austin Alliance. He noted that it was true that policy had not been changed – conflict of interest guidelines do apply to elected officials and employees – but was the first time, to his knowledge, that it applied to contractors. Such a decision could present some serious unintended consequences.

Galindo would find, of course, a sympathetic ear at the Downtown Commission. Most of the members who sit on the board have done some work for the city, bid on work for the city or live in downtown Austin. As Andrew Clements, former president of DANA, pointed out, the people most passionate about downtown are likely to live there, and it was disturbing to see that the contract could be handed off to outside consultants with no interest in downtown.

The Downtown Austin Alliance suggested a new policy be adopted: that any team be excluded that owned more than 2 percent of the assessed value within the study area’s boundaries; that any property ownership downtown be disclosed and described in detail; and that Council should weigh the degree or magnitude of the conflict based on the numbers, measuring that conflict against the overall quality of the team.

How that conflict is defined also is important, said developer and downtown property owner Robert Knight. One person could own 2 percent of the total assessed value of downtown as part of a larger portfolio, however, and feel no conflict of interest while another might have every penny he owns sunk into downtown real estate and feel a great deal of interest in a deal, Knight said.

"It’s not the number that would create a conflict for someone," Knight said. "Its how much that person owns and whether that ownership is likely to influence their decision."

DANA, in its letter dated Sept. 5, said it was inconceivable to exclude such highly qualified consultants from the RFQ process on the downtown planning effort. DANA wrote that the city’s legal department had usurped the role of Council.

"As long as there is full disclosure, it should be the prerogative of the City Council to determine the degree of conflict, and to weigh that potential conflict against the qualifications of the applicant," Vice President Kevin Burns wrote. "It has consistently been done that way in the past."

DANA asked for a new the bidding deadline to be delayed until the conflict issue could be rectified. Galindo has asked that the bidding process be taken through the Ethics Commission. The Council, of course, will hear from city lawyers in closed session on the need to enforce conflict of interest provisions. They will then get to decide whether they agree with the rule before proceeding to a decision on who write the new downtown neighborhood plan.

The commission took no action because the item was not posted for action on the agenda.

Clean Water Program on track

With 121 individual projects, the Austin Clean Water Program (ACWP) is one of the largest programs managed by the Austin Water Utility. Despite its size, ACWP is on or ahead of schedule on all of those projects, according to a staff report made to the Environmental Board Wednesday night.

AWU’s Gopal Guhthikonda made the agency’s semi-annual report to the board, outlining progress made in fulfilling an administrative order by the US Environmental Protection Agency in 1999 to eliminate sewer overflows from the city’s wastewater collection system.

Guhthikonda said the latest ACWP accomplishment is the implementation of a new set of Sanitary Sewer Overflow Response Procedures.

"This plan is designed to accelerate the response process, contain the wastewater overflow, and clean up the area as soon as practicable," he said. "We have been getting an excellent response from the public over how quickly we are able to respond to reports of problems."

Guhthikonda also noted that ACWP is executing a Tree Supply and Planting Service Contract with the Watershed Protection Department.

"Instead of replacing the trees on each and every project we have impacted, we have put together a contract with tree experts," he said. "With some of our contractors, they don’t have the resources or the personnel to make sure that trees are replaced properly. We work with tree planting contractors who know how to put in the proper irrigation systems."

ACWP is taking a "Two-Track Strategy" in response to the EPA’s order, Guhthikonda said.

The first track is to conduct sufficient work to clear the current administrative order by the federal deadline. The 96 first track projects include overflow elimination, grease control, a major public involvement and education program, developing positive relationships with regulators, an enhanced maintenance program and a Sanitary Sewer Evaluation Survey (SSES)-driven Capital Improvement Program.

The 25 second track programs are designed to prevent new overflows from occurring, he said. Those programs include the capacity, management, operations and maintenance (CMOM) program, high-flow storage, a long-term SSES program, a root control strategy, small contractor development program, private property repairs assistance, and stream walking.

Guhthikonda said the ACWP is aiming to complete all of its projects six months before the EPA-ordered deadline of 2009.

"We have seen over a 40 percent reduction in wastewater overflow over the last two years, a significant improvement," he said. "I must say though, this year has been a really dry year, so we have not had any major overflows, even during the few rain events we have had. So that has helped up a lot in reducing the number of overflows."

To date, $103 million of the total $227 million in ACWP Track One projects – about 45 percent – have been bid, with change orders on those bids accounting for a 3.4 percent increase in costs. ACWP has installed 129,391 linear feet (about 24 miles) of pipe, 602 manholes. The project has also excavated 19,520 linear feet (about 3 miles ) of tunnels among seven shafts.

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Kim addresses Environmental Board . . . While it was never mentioned by name, the long, winding and often confusing process by which the city arrived at its decision to build Water Treatment Plant 4 stepped on a lot of toes, none moreso than the city's Environmental Board, which fought tooth and nail to try an steer the project to a place where it would do the least harm to Austin's environment. That the Environmental Board was shown a certain level of disrespect during the process was, presumably, the reason for Council Member Jennifer Kim's unusual visit last night to speak to the board's members. "There have been a number of things that have prompted me to come here today," Kim said. "All of us have a role to play in the decision-making process. And looking back, I know that you have asked for information from staff, from us, to get help from the staff time and time again, and I don't have the answers for why that didn't happen, or if it could have happened better. I just know that it wasn't a good process." Several times over the past 18 months, board members requested information from city staff that was not made available, or delivered only after it was too late for the board to make a recommendation. "I get a sense from a number of you that you felt dismissed, that you weren't heard, that you weren't respected, and for that I am very sorry," Kim continued. "I am very sorry for your not being heard and I think that in Austin, we take pride in our culture of having an open process and having open dialogue. It really saddens me that it didn't happen in this case." Kim told the board that she has received an assurance from City Manager Toby Futrell that staff will be instructed to deal with all requests for information in a way that the Environmental Board and other boards and commission are able to advise the Council on issues and not just ratify its decisions. . . . Cole to be honored. . . Council Member Sheryl Cole will be honored today during a press conference at Noon at City Hall. The Council Member will receive the award in connection with her commitment to alleviate the suffering of those with Sick Cell Anemia. The disease affects large numbers of African-Americans as well as some Hispanics and Asians. Cole led the effort to increase funding to combat the disease in its upcoming city budget . . . Meetings. . . There will be a Joint Meeting of the Zoning And Platting Commission and the Planning Commission at 6pm at Threadgill's World Headquarters, 301 W. Barton Springs Rd. It's a social gathering, so no business will be conducted. . . . The Hill Country Alliance will host a community meeting on the CAMPO Regional Growth Concept and the Fix 290 Oak Hill plan at 6:30pm at Bee Cave Elementary School, 14300 Hamilton Pool Road . . . The Texas Department of Transportation is holding an open house at 5pm at O. Henry Middle School, 2610 W. 10th St., to discuss future transportation plans for the MoPac Corridor between Cesar Chavez north to Parmer Lane. . . Reform agenda to be announced . . . Members of Common Cause, the League of Women Voters and Texans for Public Justice will announce a five-point plan to "Make Democracy Work" in Texas at an 11am news conference in the Speakers Committee Room of the State Capitol today. The state's largest political reform groups promise that their platform will, if adopted, restore integrity and independence to the state's political institutions . . . OA announces progress . . . Opportunity Austin, the Greater Austin Chamber of Chamber's five-year economic development initiative to create 72,000 new jobs, is making solid progress, according to Mac Holladay of Market Street Services who presented his appraisal to Opportunity Austin investors yesterday. In 2003, the Greater Austin Chamber retained Atlanta-based Market Street Services to develop a long-term economic development strategy for the Austin region. Opportunity Austin was launched as part of a five-county, five-year plan intended to diversify the economy and replace the 25,000 jobs lost during the technology slump. In 2004, Opportunity Austin announced the creation of 22,700 new jobs. In 2005, 24,900 jobs were added to the Austin region . . LWV discusses Governor's race . . . The upcoming Governor's race will be decided by a plurality of votes, not a majority. The winner will be whoever receives the most votes even if that is not 50 percent. Is that how our Governor should be elected? The public is invited to join the League of Women Voters of the Austin Area to discuss this issue at the Informal Discussion Group meeting, with guest discussion leader, Dr. Gary Keith, Senior Lecturer in the Government Department at the University of Texas, at 6pm on Monday at La Madeleine (35th and Lamar), in the back dining room.