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City Attorney excludes community’s choice for outside counsel on BFI

Thursday, December 11, 2008 by Mark Richardson

A resolution on today’s Council agenda to direct City Manager Marc Ott to hire an outside legal firm to assist in “un-doing” an agreement between the city and landfill operator BFI could spark some spirited discussion. One element of the resolution, sponsored by Council Members Mike Martinez, Laura Morrison and Lee Leffingwell, is to direct Ott to hire the law firm of Allison, Bass & Associates, LLP to study the procedures that led to the Rule 11 agreement and to advise the city on its options in rescinding the agreement.


However, a memo dated Wednesday from City Attorney David Smith to Ott outlines a number of other attorneys and law firms, which Smith believes, are qualified to handle the job for the city. The memo, written at Ott’s request, has the names of seven candidates for the job, but does not include Allison, Bass, the firm requested by the Council.


Martinez said Council Members got the idea of hiring Allison, Bass from community advocates who have dealt with the TCEQ on landfill issues.


The resolution is in response to an agreement negotiated by the city’s legal staff in October with BFI that would have the city end its opposition to a TCEQ permit application to allow the waste hauler to expand a northeast Austin landfill. In exchange, the city received a commitment from BFI to close the landfill in 2015. The agreement was filed with the State Office of Administrative Hearings for a contested case hearing on the BFI permit amendment request.


The City Council was on record at the time as being opposed to an expansion of the landfill and was considered part of a legal challenge to the expansion by a group that included neighborhoods, environmental groups and the city and county. The City Attorney said his staff interpreted the same resolution in which the Council opposed the expansion as giving it direction to complete the agreement. Several members of the Council disagree with that interpretation.


Martinez and Morrison said Wednesday that they did not have a problem with the City Manager choosing his own outside counsel.


“I would have to say that I’m in agreement that the Council shouldn’t set a precedent of being specific and telling the city manager who to hire—because I do think we could go down a road of—where do we stop?” he said. “Do we tell the city manager tomorrow who to hire to be fire chief, or any other position for that matter? So, I was OK with removing that specific language and just allowing staff to advise on who best to represent us and give us legal advice.”


Morrison was somewhat less positive about taking Allison Bass off the resolution but said, “I’m open to looking at his list and I think he (Smith) would probably be open to taking comments from me on people on his list,” she said. “So I’m just hoping that we can come to a good resolution.”


But at least one leader of the coalition against the landfill was concerned about a list of law firms coming from the City Attorney’s office.


“I think there is a major potential for conflict of interest,” said Robin Schneider, director of the Texas Campaign for the Environment. “It’s like the fox guarding the henhouse. You have a list of investigators chosen by the department that is being investigated.”


Schneider said the city needs to hire a firm and move quickly to decide a course of action. She said the deadline for filing motions in a similar case involving another landfill in the area operated by Waste Management Inc. is Jan. 12.


In his memo, Smith named potential outside counsel in two categories: those who would deal with issues surrounding the Rule 11 agreement and those who would look into the internal process that led to the dispute. Names on Smith’s list include, for municipal law, Jim Cousar and Christopher D. Smith of Thompson & Knight; Lowell Denton of Denton, Navarro, Rocha and Bernal PC, San Antonio; C. Robert Heath of Bickerstaff, Heath, Delgado, Acosta LLP; for administrative law, Lino Mendiola and Lisa M. Shelton of Andrews Kurth LLP; Andrew S. “Drew’” Miller of Kemp, Smith of El Paso; Williams J. Moltz of Moltz, Morton O’Toole LLP; and Celina Romero of Clark Thomas and Winters PC.

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