Victory for open government, but not complete transparency


Small victory for open government at MPO
New agenda complies with Texas Open Meetings Act, but not MPO bylaws

(San Antonio, TX - August 27, 2012) Texans Uniting for Reform and Freedom (TURF) is celebrating a small victory today, now that the San Antonio-Bexar County Metropolitan Planning Organization (MPO) agenda includes more specificity about its proposed action for toll projects on US 281 and Loop 1604. However, there's more work to be done, since the board is seeking to amend its short-range (TIP) and long-range plans (MTP) at today's meeting, and the MPO's bylaws require a two-step process, which includes a 30-day public comment period, and an even greater level of disclosure on its agenda before any action can take place.

"While we welcome the board's compliance with the Open Meetings Act, open government still demands the MPO follow its bylaws for proper public disclosure when making changes to the short and long-range plans," notes Terri Hall, Founder/Director of TURF. "Changes to the TIP & MTP are more permanent than merely adopting a proposal, and the bylaws rightly require that when the scope of a project or pots of money change, that the public is properly notified and given 30 days to submit public comment before any final decisions are made."

Policy 6 of the MPO bylaws state: "Amendments to the TIP require a two-step process. To permit adequate public review and comment, amendments to the TIP will be presented at a Transportation Policy Board meeting with action on the amendment occurring at the following Transportation Policy Board meeting (approximately 30 days after initial presentation)...amendments to delete a project or significantly change the scope of work of a project will be explicitly listed on both the presentation and action agendas for the Transportation Policy Board meetings."

Today's agenda does not specifically list the changes in scope of the toll projects nor did the agenda last meeting. The agenda last meeting also failed to notify the public on its agenda that the MPO was planning to make changes to the TIP at its next meeting, nor did it notify the public of a 30 day comment period. Therefore, TURF believes the two-step process required for amending the short and long-range plans has not commenced until these requirements are met.

Though the board can vote to bypass the two-step process, they still have to call a special public meeting within today's MPO meeting specifically to solicit public comment on the proposed changes to the TIP, and this special meeting must be posted on the agenda, which it is not.

For instance, TURF points out that the scope of the project on Loop 1604 changes from adding 4 new lanes (currently in the TIP as tolled, would now be non-toll) to adding 8 new lanes (4 non-toll, 4 toll). On US 281, the scope is changing from the current TIP which would add two new toll lanes and convert all the existing main lanes to toll lanes, to a new plan that would not add any new highway lanes, and that would shrink existing free highway capacity by converting the center main lanes into dedicated bus-HOV-toll lanes and keep the remaining four non-toll lanes free.

The proposed change on 281 will not meet the traffic needs for the corridor based on the MPO's own traffic data since it doesn't add any new highway capacity, nor does this amendment (or the current TIP) comply with federal law that prohibits the conversion of free lanes to toll lanes.

TURF sent a demand letter threatening to sue to the MPO July 20, addressing the MPO's violation of the Texas Open Meetings Act on June 25, 2012. TURF asked the board to nullify its action and to re-post the proposed action in a manner that complied with the Texas Open Meetings Act. The board sought to adopt a specific financing proposal to toll portions of US 281 & Loop 1604, but didn't properly inform the public due to its vague agenda item which merely read: "Action on additional Federal and State Funding Opportunities."

Watch the MPO's actions unfold in this video.

"Complying fully with the Texas Open Meetings Act and noticing agenda items with the requisite specificity ensures the public's business is conducted in public," notes Arif Panju, at attorney with the Austin law firm Cantilo & Bennett, L.L.P. which represents TURF.  Panju also sits on the board of directors of the Freedom of Information Foundation of Texas. Panju is available for comment at the contact information above.

"The Texas Supreme Court has held that governmental bodies are responsible for properly notifying the public, and anything less than full disclosure of agenda items is not substantial compliance," says Panju.

TURF informed the MPO that it would seek an injunction to halt any further action on the proposal and a court order declaring the action void unless the MPO voids the action it took on June 25.

TURF believes the June 25 meeting warranted legal action because it so flagrantly sought to keep the public in the dark about what the MPO was adopting. Not only did the agenda item even fail to mention the names of the two highways involved, but it involved a proposal seeking to convert an existing free lane into a toll lane on US 281, taking money from US 281 and giving it to Loop 1604 (US 281 has already had $130 million in non-toll funds taken away that could have been used to fix it without tolls), and turning the middle toll lanes on US 281 into dedicated bus-HOV toll lanes.  Clearly, an agenda item simply noting "Action on additional Federal and State Funding Opportunities" does not give a reader, as a member of the interested public, proper notice of what the MPO was planning to do.

The plan also takes the power to toll away from the Alamo Regional Mobility Authority (the toll authority) and allows the ATD Board the discretion to determine who operates the toll road (and hence collect the tolls), including itself. This effectively grants the ATD board the right to raid the toll revenues to pay for mass transit projects, like the controversial downtown streetcar.

Some board members caught by surprise by last minute changes
Not only was the agenda item vague, but changes to the proposal were made after the agenda was posted and the board's meeting packet distributed -- changes that weren't posted or ever discussed until the MPO walked in the door for its meeting on June 25 (see the documents here). Though significant changes were made, the board took action on the proposal.

State Representative Joe Farias, an MPO board member and the only dissenting vote, asked how the MPO could vote on such a measure when he only found out about the changes by "reading about it in the newspaper over the weekend."