In a small town, the powers-that-be can usually handle the town’s affairs over a dinner table at the country club, because, most of the time, not that many other people in town know what’s going on or care all that much.
In a big city where lots of people not only care but make it their business, trying to do public deals in private just creates great big terrible messes. Dallas is stuck between the small-town politics of its recent past and the urban realities of today, with a lot of great big terrible messes to show for it.
For instance, look at the jury verdict last week finding the city liable for $23-$33 million in damages over a contract for gas drilling in city parks. Gas drilling in city parks, you say? No! Surely not. How could that even be? Good point. It couldn’t. But it was.
As Stephen Young explained here last week, the City Council told a former city manager more than a dozen years ago that there was to be no gas drilling in city parks. Seemed like a no-brainer at the time, which may have been the problem.
The city manager pretended to agree, but then she did a country club deal with a drilling company, not disclosed to the council, allowing them to drill, baby, drill. In the parks. Worse, the city accepted a check from them for $19 million and immediately spent the money.
Later when the company was ready to drill in parks, the council said no, of course. Drill in parks? Surely you jest! The council had always made that quite plain.
The company asked about its $19 million. The council said what $19 million? And then came the most amazing part, the moment when the conflict between small town and big city cultures came clearly into view.
Former City Council members Angela Hunt and Scott Griggs, both lawyers who know how to dig, unearthed the key to the whole crazy mess. They found a letter from the former city manager to the drilling company.
In the letter, the city manager basically told the drilling company to give her the check and promised she would get the council to vote the right way when the time came. The time came, but the council voted against drilling.
In a city, you’d expect the rest of the City Council to thank Hunt and Griggs for solving the mystery, then fire the city manager and tell the lawyers to begin negotiating to make the gas company whole. This one went in the opposite direction.
The rest of the City Council jumped all over Hunt and Griggs for being uncivil and for outing the city manager. Their main criticism was that Hunt and Griggs had allowed the public to see into the deal.
Then they made the brilliant decision to tell the gas drilling company to go to hell. Give it your best shot, they said. Oh, great idea! That’s just what the gas drilling company did. And now they have shot us for between $23 million and $33 million. Excellent shooting, gas drilling company!
I don’t like to call people idiots, because that’s divisive and not helpful, contributes to polarization and is not gentlemanly. But these council people were idiots. They were $23 million idiots. That’s a lot of idiocy, all over one thing.
In a city, public business must be done in public. If you must start your deal at the country club, at least know to bring it downtown at some point, put it right out there in the big public square and shine a light on it.
The reason you do that in a city is to avoid idiotic jackpots later. And, by the way, doing public business in public also usually is required by law, which brings us to a contemporary idiotic jackpot.
Last week Charlotte and Robert Barner, who live on the 11th floor of a high-rise fronting century-old Reverchon Park, announced a lawsuit that will ask a judge to kill a lease for 6.25 acres inside the park, authorized last month by the City Council. The lease would allow a private for-profit sports and entertainment company to demolish an existing small baseball field and replace it with a commercial stadium and entertainment center.
It’s a lawsuit, OK? It’s one side of the story. Anybody can file a lawsuit. This suit will face the same significant hurdle that all suits against the city must overcome, in that the city is normally but not always immune from suit under the doctrine of sovereign immunity.
But, man. Talk about drilling straight into the idiot jackpot problem. The basis of this suit is language in the state Parks and Wildlife Code that speaks directly to this specific deal but also more broadly to the general question of public accountability.
In Texas, the law really doesn’t like to see parks used for anything other than parks, not ever, not by anybody, even government, let alone private for-profit users. But the law does provide a few narrow pathways by which a park can be converted to a non-park use.
And by the way, the terms “public” and “park” have been through the mill in court over the years and are by now carefully refined and defined by the case law. A deal like what the Dallas City Council approved at Reverchon, run by a private entity charging admission, could never be a public park use according to the courts.
Texas law, nevertheless, says a local or state governmental body can convert park land to a non-park or private use if three prerequisite conditions have been satisfied. The first, the law says, is that “there is no feasible and prudent alternative to the use or taking of such land.”
The public ball diamond and the rickety old stands have been there in Reverchon longer than anybody seems to know accurately. But now if the city wants to tear that all out and convert the land to a private use, state law says it must prove first that it has no viable alternative. Like leave it alone maybe?
The second condition laid down by state law is that, “the program or project includes all reasonable planning to minimize harm to the land.” And there is another toothache.
The council considered this plan twice. Last Dec. 11, the council rejected the plan after several members on the council loudly and specifically decried the plan’s total lack of planning or impact study.
Subsequent to that vote, the country club machinery revved into high whine. Dallas Morning News columnist Robert Wilonsky, who with architecture critic Mark Lamster is more or less one of the paper’s Jedi Guardians, howled that the vote had been deeply uncivil.
Within a month, the same City Council members came back to City Hall and voted the deal in, but they did it without the missing planning or study. They just did it — old-style.
Eleven members of the 15-member council, led by the mayor, ducked their heads, swallowed and did as they were told. They passed the thing without the very elements that they themselves had identified on the record as deficient or wholly missing only a month before. Some of them mumbled that maybe all of that business could be taken care of later by somebody somehow, after the approval.
That’s not what the law requires, not to mention common sense. You don’t jump head-first into a swimming hole then check later for depth. The law says the planning and study have to come first, then the vote.
As the Barners’ lawsuit now points out, the very proof they need to show the city did not meet the requirements of state law has been provided by the City Council, on the record in open debate. That gets us back to that word that, as I said above, I never use, because I’m too much of a gentleman.
The law imposes another requirement before public park land in Texas can be taken out of public park use. It says, “The governing body or officer shall consider clearly enunciated local preferences.” The law lays out carefully what “consider” means. It doesn’t mean the mayor says, “OK, I considered it.”
According to the law, there must be public hearings in which the specifics of the deal are put before the public — the part where you take it out into the public square and shine a light on it. None of that was done in the Reverchon deal.
Instead, this was a typical old-style country club deal cooked up behind closed doors between the would-be private operator and compliant weak-kneed city staffers and elected and appointed officials. As such, it probably directly violates the requirements of the law.
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We can see how all of that might happen in a small town. It seems like less fuss, less muss. Everybody knows who runs the show. Better to let things run their course.
But this is a big, diverse, active city now. Things will never run that course, unnoticed and unopposed. Especially when people feel a deal was hidden from them, they will step in front to stop it.
The Barners paid a certain price for their real estate. They’re bird lovers. They bought with the understanding that they would always see barred owls in the park from their balcony. If somebody intended to turn the park into Disneyland, the Barners needed to be given the proper notice required by law so they could oppose the change.
The last thing is this: In the suit, lawyers Thomas Whelan and Bruce Bowman argue that the City Council threw away its shield of sovereign immunity when it voted in a way that violated state law. If that’s true, it means the council has exposed the city to another black eye in court. I wish I could say that word again. Just too gentlemanly, I guess. But it’s idiots.