Toll agencies testify to keep financial studies secret from the public
By Terri Hall
April 18, 2015
Fireworks erupted in the Texas House Transportation Committee Thursday as Rep. Cindy Burkett laid out her bill, HB 2620, to make toll viability studies subject to open records laws. The North Texas Tollway Authority (NTTA) and Regional Mobility Authorities (RMAs) testified that they want to keep the studies secret from the public until at least 90 days prior to issuing bonds. In effect, that’s well after the public and decision makers can do anything to stop a project that’s not financially viable. The NTTA cited ‘possible’ issues with bond investors and federal securities law if the information released from preliminary studies conflict with final investment grade studies.
Committee members grilled the toll agencies for nearly an hour. Rep. Ron Simmons told the NTTA’s bond counsel that the Emerging Technology Fund bureaucrats testified against transparency, too, claiming similar issues on deals with private equity firms. But Simmons would have none of it.
“In the public world, where the public trust is at stake, and where there are public monies involved, it has to be total transparency…If that means we can’t get a deal done, we can’t get a deal done. Transparency is above getting the deal done when we’re dealing with public funds,” Simmons emphasized.
NTTA’s counsel said he agreed then proceeded to speak against the bill trying to scare the committee into stopping the bill for fear of potential violations of federal law. But when committee members pressed, it was clear it wasn’t necessarily a matter of violating federal securities law, but rather it was a matter of having to explain any differences between early traffic and revenue studies and the final studies given to the bond market.
Burkett put it more bluntly, “So it sounds like it’ll be inconvenient.”
Rep. Yvonne Davis went in circles with the NTTA for 40 minutes repeatedly asking him how they’d be harmed by the public having this information. He could not give a cogent answer other than it might require extra explanation to bond issuers if early traffic data varied greatly from the final report.
In 2007, former Governor Rick Perry was successful in passing rushed legislation to make the traffic forecasts for toll roads secret from the public. The public outcry against public private partnerships had hit a feverish pitch and a moratorium on the controversial contracts that privatize public highways in sweetheart deals for 50 years sailed through the legislature.
Perry vetoed the people’s bill, HB 1892, and quickly advanced his own watered-down moratorium, SB 792, and warned he wouldn’t allow amendments, including one to remove the language that made essential traffic data on toll roads secret until after the contract was signed. In other words, the public could only have access to the financial viability of a toll project and the potential public subsidies and costs to the public after it was too late to change the outcome. Earlier this year, the Dallas Morning News was denied access to traffic studies for the proposed Trinity Toll Road citing this statute.
Davis put the screws to the NTTA during Thursday’s hearing about this very point, “The people want to know that people in charge of ‘deals’ are doing good deals. You can’t ask them to know it until after you’ve done you’re deal. They’ve got to have access to some of the information…I don’t know how you shut people out until after you’ve done your deal then tell people to say ‘now tell me what you think of my deal.’”
Legislators eventually caved to Perry and passed the weaker bill back in 2007 since Perry threatened to call repeated special sessions until they passed his version of the moratorium. Citizens have been fighting to make the studies public ever since.
Last session when Perry was still the governor, Rep. Giovanni Capriglione brought the bill to make the traffic forecasts available to the public, but it never got out of committee. This session, Senator Lois Kolkhorst and Rep. Burkett brought identical bills to prevent toll entities from keeping this vital traffic data secret, only to be met by opposition from toll agencies who claimed they were testifying as neutral on the bill, but were clearly speaking in opposition to it.
Current Governor Greg Abbott campaigned against more tolls and has been a breath of fresh air at the Texas Capitol completely changing the tone surrounding toll road policy. So the fate of HB 2620 looks to fare much better than past attempts to make toll studies public.