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Council directs staff to hire lawyers without naming firm

Friday, December 12, 2008 by Mark Richardson

Despite some saber rattling earlier in the week, Council members approved a resolution Thursday directing City Manager Marc Ott to hire outside counsel to assist the city in reversing course on an agreement with BFI Waste Services related to expansion of its northeast Austin landfill—without specifying which firm to hire.


The situation arose over a Rule 11 agreement negotiated by the City Attorney’s office over a permit amendment sought by BFI to expand its Sunset Farms landfill.  Staff negotiated and filed the agreement despite the fact that the City Council passed a resolution in 2007 opposing the expansion of the landfill. The Texas Commission on Environmental Quality has jurisdiction over the permit.


Several Council Members said staff should not have made the agreement without approval by the Council.


Speaking to the resolution, Austin attorney Brad Rockwell told Council that based on his reading of the City Code and state law, the agreement is void.


“My research of the law tells me that it is 100-year-old, black-letter law that the city may make such an agreement only with an explicit Council vote in order for the agreement to be valid,” he said. “In this case the agreement is 4 and void, and legally unenforceable.”


Rockwell said the city should go to the judge in the hearing and ask that he or she undo the Rule 11 agreement. He also said the city should hire an outside counsel to advise it on how to deal with the issue.


“They should hire a firm that is independent, has no ties to the city, no conflicts, and is available for timely action,” he said. “They will need to report back to the Council by Dec. 18. That’s just a week from today.”


Council Member Laura Morrison – calling it a “challenging situation” — said the city needs to hire outside legal help to both look into the process by which the situation occurred and to get advice on how to negate the Rule 11 agreement.


Robin Schneider, director of Texas Campaign for the Environment, said she was glad the city was committed to hiring outside counsel, but still had major concerns about the City Manager asking the City Attorney for a list of qualified law firms and attorneys.


Council members approved the amended resolution – minus the name of any law firm – on a 7-0 vote. City Attorney David Smith had recommended a number of firms with prior ties to the city. The original resolution proposed by Council Members Mike Martinez, Lee Leffingwell and Morrison designated an unrelated firm as their choice to make inquiries about the city’s position and the process used for deciding to make the agreement. It was not clear on Thursday which firm would be selected.  

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