A Wrong Road Taken

Opinion

By Charles O'Dell, PhD

We expect public officials to be ethical, open and certainly legal in their conduct of public business. Unfortunately, that doesn’t always happen.

To drum up Precinct 4 voter interest in the May 2007 bond election for Pass-Through Financing of three state roads, Hays County Pct. 2 Commissioner Jeff Barton and Pct. 3 Commissioner Will Conley were proclaiming that US 290 West safety improvements were dependent on the $172 million road bond passing, even though US 290 wasn’t identified in the bond language.

Don Nyland, TxDOT engineer responsible for the Dripping Springs portion of the Austin District, publicly denied any such relationship existed and was emphatic that the US 290 safety improvements would proceed regardless of the bond outcome. Nyland was responding to questions posed at a Dripping Springs Chamber of Commerce luncheon in April 2007. Newly elected Pct. 4 Commissioner Karen Ford was in attendance. Voters defeated the 2007 road bond. TxDOT work on US 290 safety improvements continued.

Now Commissioners Barton and Conley are claiming there was a “gentleman’s agreement” by which Hays County agreed to reimburse TxDOT, at least partially, for the US 290 West safety improvements. Side agreements between governmental entities out of the public view are illegal.

In a letter to TxDOT Austin District Engineer, Robert B. Daigh, P.E., dated February 18, 2008, he was asked about this “gentleman’s agreement” and Daigh responded:

“Yes, there is a link between the US 290 left turn lanes and the Pass-Through Finance projects . . . During the negotiation, it was agreed that TxDOT would finance the project (US 290) if Hays County proceeded with the pass-through financing of the other projects being considered: FM1626, Loop110 and RM12. The agreement with this understanding was fully executed by Hays County.”

The “understanding” that Daigh refers to is illegal. If it isn’t on paper with authorized signatures, it’s not legal or binding because it isn’t public.

Criminal courts have been harsh with those who enter into these “side agreements” as is demonstrated recently with five former U.S. insurance executives who were found guilty two months ago of defrauding the public. These executives are facing incarceration and fines in the tens of millions of dollars for their secret side agreement.

Giant insurance companies AIG and Gen Re participated in a plan in which AIG paid Gen Re as a part of a secret side agreement to take out reinsurance policies with AIG, propping up its stock price and inflating reserves by $500 million. This secret side agreement defrauded the public.

Commissioners Barton and Conley and a high ranking TxDOT official have all admitted to a secret “gentleman’s agreement” that could cost Hays County taxpayers millions of dollars to pay for US 290 safety improvements that TxDOT officials had previously said was not related to local bond revenues, leading the public to believe their federal fuel taxes were paying for these needed improvements.

Now, to comply with the secret “gentleman’s agreement” Barton and Conley have set into motion a new plan that will pay for road projects at I-35 and reimburse TxDOT for US 290 safety improvement work, despite public assurances that state and federal agencies would meet their obligations for US 290. You can hear this plan unfold in the January 31, 2008 commissioners’ court workshop as Prime Strategies Mike Weaver and TxDOT’s Daigh and Nyland tell the court of how important the US 290 project is in the failed Pass-Through Financing package revision.

And despite voter rejection of the 2007 road bond, Barton and Conley cling to their special interest road projects with a secret TxDOT “gentleman’s agreement,” backroom deals with San Marcos Mayor Narvaiz for Loop 110, and bypassing voters with $19.5 million in limited tax road bonds.

Isn’t it time our Hays County District Attorney looked into these illegal side agreements?

There is no excuse for unethical, closed door or illegal behavior by public officials.

As co-founder of Hays Community Action Network (HaysCAN) in 2003, Mr. O’Dell strives to carry out the mission of ensuring open, accessible and accountable government. He is a long time and close observer of the workings of the Hays County Commissioners Court. He earned a degree in Agricultural Education and a Masters in Ag Economics at Texas Tech, and, later, a Ph.D. at The University of Maryland while employed as a Research Economist with the U.S. Department of Agriculture (USDA) in Washington, D.C. Texas born and raised on a family farm, O’Dell is a Hays County Master Naturalist and a board member of the Ethical Society of Austin.