By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
Just recently, our city council got confused about whether it had actually told us it was going to spend $30 million in bond money on the Elm Fork Levee back in 1998 when it asked us to go to the polls and vote in favor of spending $30 million in bond money on the Elm Fork Levee.
Hang on. This could happen to anybody. These are busy people. And I don't want you making a big fuss over it, because, no matter what, it's only $30 million, and we don't want people in other cities to think we're poor.
The city council is talking about spending our $30 million on other stuff, because the rest of the Trinity River project, especially the toll road part, is in big money trouble. The council can't quite remember whether it ever really technically specifically told us it was going to spend the $30 million on a levee. So, if they just can't remember, well, then maybe they can just spend the $30 million on something else, like the toll road or "signature bridges."
In 1998, at the urging of Mayor Ron Kirk and most of the city council, we voted to authorize $246 million in taxpayer debt for the Trinity River project. Included in that money was $30 million for the city's share of a U.S. Army Corps of Engineers levee--a dirt wall, basically, along the edge of the river--to keep the Elm Fork of the Trinity from flooding. The Elm Fork Levee was going to cost a total of $60 million, of which half was supposed to come from the federal government.
Since the 1998 bond vote, the public has learned that almost no real engineering work had been done before the election to see what everything was really going to cost. It was a mistake. They've admitted it. They're doing the work now. Just let it go, OK?
The point is, at a recent hearing on the project, Dallas public works director David Dybala told the council that the federal government had decided the Elm Fork Levee was stupid and unnecessary and there would be no federal money for it.
So, guess what? Now the council has this vote from 1998 saying that you and I agree to go $30 million in debt on our houses for a levee. But they have no levee to build. Logical conclusion? Borrow the money anyway! Spend it on other stuff! Yeehaw!
Come on, you see the logic. Don't be a stiff. It's like somebody sends you a credit card in the mail, right? What are you gonna do? Max it out! If there's some big issue about it, change your name, move to Ohio at midnight. These people on the council are cool. They're players.
But they wanted to know--first from Dybala and then from the city's lawyers--whether they could get in trouble. They asked Dybala whether the levee was specifically listed in the 1998 bond program as part of the overall package of bonds being authorized by voters.
Dybala said, "In the 1998 bond program, it was identified as part of an overall program."
See. It was only "identified." Not listed. Quick thinking, Judge Learned Hand Dybala! I think I get it.
But council member Donna Blumer seemed unconvinced. She asked, "Did it say 'levee,' and that was what was put before the voters?"
Dybala said, "It indicated a levee."
Ha! You can't go to the pokey for indicated, can you?
Blumer asked, "If the bond program was very specific about allocating $30 million for a levee and we re-program that into something else, is that legal? Can we build something else?"
Dybala said, "Yeah, we can." He explained that "the proposition didn't specifically list the Elm Fork. It was just the Trinity River."
At that point, a helpful assistant to City Attorney Madeleine Johnson stepped forward and read to the council the specific language we voted on at the polls in '98, which mentioned only "floodways, levees, waterways, open space, recreational facilities, the Trinity Parkway, and related street improvements."
So, you see, the Elm Fork Levee wasn't specifically mentioned in there. And the council, understandably, couldn't remember whether the levee had ever actually been specifically promised to the voters in any other official way before the bond election.
Oh, man, they are going to be so happy when they find out I kept my files. But really, it's just my job. I am not a hero.
So here's what we have in the old shoe box: In a slick-paper four-color brochure that went out to voters in April 1998, there is a section titled "Elm Fork Levee." I read it carefully to make sure it didn't say "Possible Elm Fork Levee" or "Elm Fork Levee Maybe But Don't Count On It."
It says "Elm Fork Levee." In fact, the brochure describes the levee in some detail. It says it will be a "six-mile-long embankment that will range in height from 15 to 18 feet and will extend from Royal Lane all along Luna Road and east to Bachman Lake."
The brochure was sent out over a very handsome photo of our mayor, Ron Kirk, along with his signature and the names of people such as real estate czarina Ebby Halliday Acers, philanthropist Patricia B. Meadows, former city council member Lee Simpson, current council member Lois Finkelman, County Judge Lee Jackson, council member Veletta Lill, Mayor Pro Tem Mary Poss, council member Alan Walne, state Rep. Steve Wolens, and a bunch of other very impressive people in the city.
So, what else have we got here in the old bin? Well, here's a little yellow card the city handed out, giving a thumbnail sketch of the bond program for voters. It shows the Elm Fork Levee on the list for $30 million.
And, uh, deeper down in here...oh, this is bad. No, wait. That's a gourmet dog treat with a ribbon tied to it. Here is what I was looking for. Yes, here is an official city memo that went to Mr. Dybala himself, dated February 18, 1998, from Peter H. Vargas, who was in charge of the Trinity River project at that time, specifically cataloging everything in the bond program.
And in this memo to Mr. Dybala, an entire page is devoted to the "Elm Fork Levee." Hmmm. Quite a bit of detail here. Gives the dimensions, the cost, and so on. Says the feds will kick in $30 million. Guess again, eh? Describes how essential the Elm Fork Levee is to the rest of the system we're going to build.
You know, in addition to sending copies of some of this stuff over to Mr. Dybala, I think I'm going to run over to Whole Foods and get him a big old jumbo bottle of gingko biloba. For memory, you know.
Now, to be fair to the council, I should mention that some of them expressed a certain amount of squiggliness over Dybala's suggestion that they just take the $30 million and run.
Council member Alan Walne said to Dybala, "To just say you can spend it anywhere because it wasn't in the language, I think that's a terrible injustice to the people. I think we gotta be really careful there, not necessarily just for this project but because of future bond issues."
Council member Sandy Greyson asked City Attorney Johnson to just say yea or nay, whether it's legal to take money the voters authorized for one project and go spend it on other stuff.
Johnson said, "I don't think we can answer this question off the top of our heads." She said she would go study the issue.
Greyson said, "I really hope you do, because I am very uncomfortable with the idea that we can just take these dollars...and we can just switch them around willy-nilly, and if we can do that, I'd really like to know that, so I hope you come back to us with that answer."
Now, here is my worry. While both Walne and Greyson said they were "uncomfortable" with snatching the $30 million, neither one of them said, "So don't do it."
Nobody said that.
But the city council vote on this piece of business is coming up right away. Judging by Ms. Johnson's attitude, I don't see her rushing forward to get a definitive answer on this issue to the council before the vote.
So, again, I live to serve. Even though I am not a lawyer, I nevertheless have spent some time consulting my own life experience and some of the things my mom and dad taught me to see whether I could offer anything useful in this complex area of the law. I tried mainly to think of examples from my own neighborhood in East Dallas.
The question would be: What does it really add up to when someone tells you they need your money for one thing but they actually want to spend it on something else?
One example I thought of: There used to be a young woman in our part of town who had a lot of tattoos, and she used to run up on people's porches screaming that she needed money for an emergency operation because her baby had a hole in his heart. Lo and behold, we found out that she didn't even have a baby! In fact, we now believe that she was spending our money on illegal drugs!
We were extremely disappointed in her.
I know that our city council members would not want to get the same reception, if they were to come visit us in our homes, that she wound up getting: The last few times she showed up, we stood far away from the front door with a cordless phone in our hands yelling, "I am calling 911!"
No matter what the city attorney tells the council members about the bond language and the specific terminology and the case law and so on, if they take that $30 million for the Elm Fork Levee and spend it on something else, I believe that most citizens are going to have a 911-type reaction.
I care about my council people. I just don't want to see them getting sued or trucked off to the big house or stuff like that.
But if it does go that way, I should mention that I do have access to a comfortable truck.