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Hearings officer gives green light to Greenstar

Tuesday, February 16, 2010 by Michael Kanin

An independent hearings officer has recommended that the city allow the bid of Greenstar (Mid-America Recycling) to build a new Materials Recovery Facility (MRF) for the city, rejecting the city staff’s contention that Greenstar violated the city’s no lobbying ordinance.


Though hearings officer Monte Akers sided with Greenstar, Purchasing Officer Byron Johnson could still choose to overrule the verdict. In the process, the city’s anti-lobbying ordinance may have been presented with its first legal challenge. Johnson told In Fact Daily Tuesday afternoon that he would make a determination before the end of the week.


The city decided to disqualify Greenstar from the MRF request for proposal (RFP) process after it sent a copy of its complaint about one of its competitors, Texas Disposal Systems (TDS), to City Attorney David Smith in an email.


Akers told In Fact Daily that his ruling was “not an easy decision.” This is clear from the text provided to Johnson and Greenstar attorney Greg Hill. In it, Akers notes that Greenstar’s argument that its contact with Smith was mandated by Texas State Law is “persuasive.” Greenstar had made the argument that, under rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct, because Smith acts as the attorney for the city, any communication that came from its legal representation had to include Smith.


But Akers also agreed that the Purchasing Office employee Roy Rivers was correct in interpreting that contact as a violation of the city’s anti-lobbying ordinance. This would seem to set up a conflict between municipal and state law.


Before answering this question, Akers moved on to determine whether the letter sent by Greenstar could be considered a “representation” as defined by the anti-lobbying ordinance. This would have to be affirmed for Greenstar to be considered in violation of the rule. “The critical questions in this analysis, then, are whether the communication…provides information ‘about the response of Greenstar’ and whether it advances the interests of Greenstar,” Akers wrote. It was his conclusion that they did not.


Akers then returned to the larger question of whether the city ordinance conflicts with the state law. “(C)ommunicating with the City Attorney in a letter to the city would have been proper, if not mandatory,” writes Akers, “had the language of the Anti-Lobbying Ordinance not been applicable.”


Akers also noted that a court of law would likely attempt to reconcile the conflicting laws, “to give both effect.” But, he concluded that, ultimately, “I believe that Greenstar’s assertion that in the event of conflict between The (State) Rule and the (City) Ordinance, the rule with prevail.”


Despite this, Akers insists that his ruling doesn’t set up a court case. “It boils down to the interpretation of the ordinance,” he says. “In this case it wasn’t interpreted the way it was intended to be interpreted.”  Akers here implies that, if the ordinance were enforced as it was intended, there would be no conflict with state law. He added that he believes that Austin’s anti-lobbying rules would hold up on a challenge based on his findings.

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