Dallas Mayor Mike Rawlings wants the City Council to hurry up — hurry up! — and sign a pile of documents creating some kind of a private thing to control the new park we want to build on the Trinity River downtown.
Former City Council member Angela Hunt has her hand up like a traffic cop. She wants the city to wait a few weeks before signing so council members can go over the documents and make sure there isn't a toll road hiding in them somewhere, which there is.
This is the thing to keep in mind: Hunt has been on this case since 2006. She told us in 2006 that the city’s plan to build a multi-lane toll road along the river through downtown was a bad use of land and money. Eleven years later, virtually everybody — including many who were once her most adamant opponents on the issue — agrees that she was right on the basics.
The hardcore proponents of the road said she was a fool and a liar. They said not building the toll road would make fixing the city’s snarled downtown freeway system impossible. That was not true. We haven’t built their toll road. Massive improvements to the downtown freeway system are now almost complete without it.
They said they had billions of dollars for the toll road already committed as a subsidy from state, federal and tollway officials and that Hunt risked sending all that money “down the river.” Hunt said they had not one dime and in fact were $2 billion in the hole. They still don’t have their dime, and now they’re deeper in the hole.
They said a toll road along the river would fix the city’s downtown traffic congestion problems. Hunt and her allies on the current council, Scott Griggs, Philip Kingston and Sandy Greyson, were able to show that the multibillion-dollar toll road boondoggle would improve downtown driving times either not at all or by minuscule amounts — absurd given the cost.
Hunt has never been wrong about this. She has never lied. The proponents of the toll road have never been right. They have lied repeatedly. If anything, they have burned their public credibility to a crisp by now.
The documents the mayor wants the council to hurry up — hurry up! — and sign would create a so-called “local government corporation” to operate a new park along the river downtown. The mayor is presenting his pile of documents as a matching-socks deal by which the City Council finally can vote to kill the toll road idea for good.
Two things would happen Aug. 9: The council would vote to withdraw its approval from the toll road plan, and the council would vote to sign the documents creating the new private thing to be in charge of the park.
Simple, right? Kill the toll road. Create the local government corporation for the park.
Simple, except for this: One of the documents the mayor wants the council to hurry up — hurry up! — and sign says that the local government corporation can engage in the “construction of a toll road or any other regional, state, or federally sponsored roadway infrastructure.”
Full stop. This is a thing to run a park. It’s like Friends of the Park or something. But it can build toll roads? Why would a park thing build a toll road? That’s like creating a municipal chess and checkers league and then giving it the power to build toll roads.
Now, to be sure, another one of the documents the mayor wants the council to hurry up and sign says the opposite. There’s a term sheet — sort of a handshake agreement on what the local government corporation will really do — and it says, “The Project does not and shall not include within its scope any regional, state, or federally sponsored or funded roadway infrastructure or authorize any activities to realize the construction of any regional, state, or federally sponsored toll roads within the Dallas Floodway.”
Well, there you have it in black and white. No toll roads. So doesn’t that settle it?
Maybe yes, maybe no. Because there’s a third document. It’s called the Certificate of Formation. All of the documents make it plain that this third one, the certificate, is the boss, the top document. If there is a conflict somewhere in the other documents like yes toll road, no toll road, then the certificate rules.
The certificate says the local government corporation is created under a certain state law which it identifies by legal gobbledygook. But if you look it up, the law is called the Texas Transportation Corporation Act. It was created in 1984 to “encourage donations of right of way for state highways, and donations of funds for preliminary planning and design for those highways” and to provide “a presently unavailable vehicle for private citizens to contribute property and money for the development of roadways.”
The certificate lays down the law: “The Corporation shall have and exercise all the rights, powers, privileges, authority, and functions given by the general laws of the State of Texas to nonprofit corporations incorporated under the Act.”
The Act? That would be the special “We-can-build-a-toll-road-if-we-want-to” act, passed in 1984.
To be way too fair about it, I must allow that another provision in the documents says that the new corporation can’t really just haul off and build a toll road when the mood strikes it. It would have to seek and gain permission from the City Council.
In other words, it can’t build a toll road at all. But it can build a toll road. But it has to get permission. So really, really great.
That means if the City Council hurries up and signs the documents as they are, then we are guaran-damn-teed an ongoing council battle about the toll road ad nauseum, at least for the rest of the local government corporation's 40-year life. And I thought the mayor said we should sign this stuff so we can put the issue behind us. Whose behind we talking about?
Think about this. How hard would it be for us to sharpen our No. 2 pencils, wet them on our tongues and go through all the documents? We scratch out anything that says the park thing can build a toll road. We scratch in, “No toll roads.” Bingo. We fixed it.
Is there some reason we’re not allowed to do that? Why is there such an urgency to hurry up and sign all these complicated documents the way they are, almost like we’re not even allowed to read them? What does it mean for them to have these conflicts and all this complicated stuff about which one rules and which one we’re supposed to believe? Couldn’t they have put it all in one big document with large print?
I asked Hunt, who is a lawyer, to put her lawyer face on and pretend that I was a client asking her these same questions. What would she tell me?
“The fundamental problem here,” she said, “is that these documents don’t line up. As an attorney, I see exactly this kind of thing when documents that are fundamentally complex are rushed. This is exactly the kind of thing that happens. You see conflicted language.”
She listed some lawyerly ifs for me:
“If a client were to come with me with a contract that was a 40-year term. If it had no termination-for-convenience clause, in other words, if you sign on the dotted line, you are in it for 40 years unless you want to end up in court. If it was a situation where you are giving away your largest asset for 40 years.
“If you came to me, Jim, and you said, ‘Yeah, but I don’t understand these documents. They don’t make a lot of sense. They conflict with each other.’”
“I absolutely wouldn’t let you sign them,” she said. And then she added another big if:
“If you were told you have to hurry up and you just have to sign these documents. You can’t talk to your family about it. You can’t ask your wife, your extended family, your cousin who’s an attorney. You can’t talk to anybody about it. You just have to sign it.”
“I would ask, ‘What’s the rush? Why don’t we want to get this right for such a long-term, expansive deal?'”
I asked her how I could know if the documents are screwed up by accident or whether it might be a deliberate trick.
“I would say, ‘Let’s look the history of the folks asking you to sign the document. Let’s look at their credibility. Let’s look at their reputation. How have they dealt with you in the past, Jim? Have they dealt with you with integrity?'”
Hmm. Right about now, hand firmly on wallet.
As a last question, I asked her whether it would make any difference if it were an accident or a trick? If I were to sign the documents as is, would it make any difference later on if the conflicts in them turned out to be accidental or deliberate?
“No,” she said, “because you’re a big boy.”
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“You’re stuck,” she said.
Oh. That kind of big boy.
They come to me later and say, “Hey, we never realized it before, but there were some conflicts in those documents you signed with us, and now we believe they allow us to build a toll road.”
I’m a stuck big boy. A not-very-smart, stuck big boy.