Three Items for the New City Council

The voters have clearly spoken and given Oscar Leeser a mandate. Although it is extremely difficult to jump from being a candidate to actually assuming office, unfortunately the new administration has to immediately take action to both allay the fears of the electorate and restore trust in the city government.

As difficult as it may be, there are three things that the Leeser administration should consider doing immediately. They are release the emails, clarify to the city manager exactly what her function is, and pause the ballpark debacle. Let’s look at each item individually.

Release the emails.

Although the Texas Attorney General has ruled that Stephanie Townsend Allala’s open records request for the personal emails and texts of the mayor, city representatives and the city manager should be released to her, the current city administration has sued to keep them private. Although potentially embarrassing to the owners of the communications the fact is that any city business communicated on either is the property of the city’s electorate. The Texas Attorney General has agreed, even after reviewing the records submitted by the city to the attorney general.

Besides Townsend Allala, it is my understanding that KVIA’s Maria Garcia and journalist Debbie Nathan have also submitted an open records request for these communications. I will be submitting my own request as well today.

The incoming administration should immediately direct the city attorneys to cease their suit against the Texas Attorney General and order the custodians of records to immediately release the emails to Allala and the others who have requested them.

This action alone will not only save taxpayers’ the expense of suing to keep the records private but also it will go a long way to restore the publics’ trust in the city government.

Clarify the city manager’s functions.

Many have placed the blame on Joyce Wilson on what is going on with many facets of the city. Although the city manager shares some of the blame for the devastation of the city; the reality is that the authority lies directly on City Council’s shoulders. City Council wields the authority and therefore it is they that need to fix the problem.

The solution is simple. The city manager’s function is to implement the public policy as developed by city council. It is the city council’s duty to create the public policy of the city and give the city manager clear instructions on how to implement it.

Joyce Wilson, whether she is staying, leaving or retiring needs to understand that all city representatives are equal under the law and that any information is to be clearly, promptly and equally given to them. Creating public policy is not the city manager’s responsibility, whoever the city manage may be. Also, the decision as to how public policy information is to be managed is the decision of the elected officials and not city staff.

Pause the ballpark.

Many readers, including many city voters feel that the ballpark is a foregone conclusion. The reality is that it is not. First, let’s take look at where the city is in regards to the ballpark fiasco.

First, and most importantly the electorate wants a say on the ballpark. The plans to the ballpark are currently being developed as you read this. There are no detailed plans in place rather there is a haphazard seats counted versus available space mathematics that somehow came out to be $50 million. Besides the destruction of city hall the only other item currently being done in regards to the ballpark is site preparation and design work.

This is important to note; the only work actually being done right now is design of the ballpark and preparing the site where city hall used to stand. Whatever future the electorate has for the ballpark it will be necessary to complete the site preparation work, albeit with some minor changes.

Site preparation still needs to be done whether the ballpark is built or not. This is important to keep in mind because this expense is required regardless of what happens with the site. The other expense is the design of the ballpark, basically the engineering and blueprints and the construction bidding process. Bidding on the work is asking for contractors and tradesmen to submit a bid to complete each facet of the construction. According the information made public during city council’s meeting of May 28, 2013; only 20% of the bids have been submitted to the city.

The other general perception is that the city has already spent the $50 million and that the court has ruled that the city has to build the ballpark. This is not the case.

First, in the action taken by city council on May 28, 2013 the only thing it did was authorize the issuance of bonds to fund the construction of the ballpark.

They did not write checks to pay for the ballpark.

Issuing bonds is like taking a home improvement loan. You get a set amount of credit to complete the home improvement you are planning to complete. It is a credit line. You do not have to spend it all, or even any of it. Like a municipal bond, a home improvement loan likely has restrictions on it on how you can spend the money but it does not require that you spend the full credit line.

Some individuals have expressed that the city is obligated to build the ballpark. There are two reasons for this. The first one is the obvious one in that the city entered into a contract with MountainStar Sports Group to build the ballpark. I’ll dissect this one in a moment. But first let’s look at the other reason some individuals feel that the ballpark must be built. It is because many feel that the court order the city has attained requires that it be built. My layman’s reading of the court order seems to me to state that the city has the authority to issue bonds to build the ballpark. Nowhere did I find that the order states that the ballpark must be built.

Now let’s look at the contract between the city and MountainStar Sports Group. Any businessman will tell you that a contract is nothing more than a piece of paper detailing what will be done and how. It is not law. I have no doubt that MountainStar Sports Group has inserted some favorable benefits that state that the city will pay significant amounts if it does not build the stadium. But this is not set in stone. As with any contract it can be modified or challenged in court. In fact, MountainStar Sports Group is asking that the contract be modified at tomorrow’s city council meeting. In other words the contract is a document subject to interpretation.

So exactly what is it that I’m asking for?

First and foremost if the existing city council has any decency left in it, it will table the MountainStar’s $12 million contract modification for one week. This will not significantly impact the timetable for the ballpark. Keep in mind that it is they that are asking for the changes and two that currently only 20% of the bids have come in. Issuing the additional bonds a week later will not delay the construction.

More importantly what I am asking the Leeser Administration is to pause the project in order to evaluate the current status and review the process. And possibly reconsider whether the city should vote on the ballpark.

What? Have a vote on the ballpark, but it’s too late many are thinking to themselves.

Not really. The city’s limitation is two parts; the first is the contractual agreement with MountainStar Sports Group to have a ballpark ready by 2014 and second, the hole in the ground where city hall used to stand.

Let’s first look at the issue of the hole in the ground. Everyone agrees that a new city hall will eventually have to be built. The city is paying rental fees for leasing office space. Why not consider building the new city council where the old one once stood? I’ll discuss this in more detail after I address the issue of possible litigation with MountainStar Sports Group.

As I wrote above, the city has a contractual agreement with MountainStar Sports Group to build a ballpark. As with any contract there are penalties for missing certain deliverables. In this case there are two obvious ones, the first is having the ballpark ready by opening game night 2014 and the second are the penalties for not building the ballpark.

During the same city council meeting of May 28, 2013 it was disclosed that MountainStar Sports Group has a contingency plan in place to play their games for one year in Tucson should the ballpark not be ready on 2014. Any sound business arrangement has contingency plans in place. I also understand that there are penalties should the team be forced to play in Tucson for one more year.

And this is where I feel a pause to the ballpark is necessary.

Although we all understand that there is a commitment to build the ballpark and that there are penalties for delays or not building it there is absolutely no trust that what has been told to the community is the truth.

Therefore, taking a small pause would allow the new city council to evaluate the status and the future of the ballpark.

The attorneys tasked with fighting the release of the emails should now be tasked with giving city council a full analysis of exactly what has been spent on the ballpark to date and how far along the process the project is. It should, of course, clearly detail the liabilities to the city in both a delay of the ballpark and the cancellation of the contract altogether. At that point, city council and the community will be in a much better position to complete a cost analysis and make a determination on whether the city should proceed with building the ballpark or not. In a worst case scenario the city and the community would be in agreement that it is better to continue to build the stadium. That would build significant trust and put the community closer to accepting the ballpark.

But what if the cost analysis proves that it is feasible to go to the voters in November, or maybe a special election, and ask them whether they would rather build the ballpark or build a new city hall.

But what about the lawsuits that are sure to follow?

That is why I’m advocating that the city administration put a small pause in the project and ask the city attorneys’ to tell the community exactly what the lawsuits will cost.

Now keep in mind two things, all contracts have a litigation cost to them. It ultimately comes down to which entity can afford to see the process through. There are many levels of court systems that each part has to go through and ultimately it is the one with the deepest pocket that prevails. Businesses ultimately settle the litigation sooner than later. There is also the notion of sovereign immunity. There are many times litigants suing government entities do not prevail in court because of sovereign immunity. Although I do not know for sure but I assume, because of the lack of trust in the John Cook administration, that MountainStar Sports Group had the Cook administration put in clauses to deal with sovereign immunity the fact is that we really do not know. Tasking the city attorney’s office to let city council and the community know exactly what the potential legal liabilities are will allow the community to be informed.

What about the bonds?

As I wrote above, I believe the bonds are nothing more than a credit line that the city can draw on. At this point not much has been spent from them and, to my knowledge, there is no requirement that the money needs to be spent. I understand that there are fees the city has spent to float the bonds and that the bonds have restrictions on how they can be spent.

But if the decision is ultimately made to scrap the ballpark and build a new city hall then the existing bonds can be cancelled and new ones floated.

I am not an attorney so it is very possible that I might be mistaken on some of my assumptions. Maybe some kind legal-eagle out there will set me straight. But I honestly think my interpretation as outlined here is an accurate representation of where the city stands in regards to the ballpark.

Ultimately what I think would be a perfect solution to the ballpark fiasco is that the Leeser administration completes a transparent feasibility study on what it would cost and whether it would be feasible to give the voters a choice.

The voters could then choose to continue with the ballpark or they could choose to pay some penalties and build a new city hall.

Ultimately the voters get to decide, which is exactly what they always wanted.

I realize that this is a tall order and one wrapped in the “perfect outcome” to a problem but I am not ignorant to the fact that it is easier to quarterback from the side lines then to actually implement the solutions. I also realize that a bureaucracy is an unwieldy behemoth that is difficult to stop and force a change in direction.

Nonetheless, I feel that the steps I have outlined above will not only begin the healing process to an electorate that is clearly angry but it will also begin to set the legacy that will be the Oscar Leeser administration.

What is the worst that could happen should the new city council decide to pause the ballpark? The expense to have city staff present a detailed report to council and the community of exactly where it is in regards to the ballpark and how expensive it would be to the voters to get a choice. Of course, the worst that can happen to me is that the cost would be so astronomical that I would be shown to be the idiot some believe I am.