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TxDOT Sunset Advisory Commission Re-Review
The more things change, the more they stay the same. This adage certainly applies to the Texas Department of Transportation.
While TxDOT staff assures the Sunset Advisory Commission that it has changed its stripes and implemented many of the Sunset Commission's recommendations on its own, the reality is quite different. Even the Grant Thornton audit revealed TxDOT is rushing to implement "changes" so as to prevent the Legislature from doing it for them, yet the audit reports those changes to be superficial and hastily thrown together without creating any fundamental change to the way the Department operates.
“TxDOT seemingly rushed to post Project Tracker online as a ‘band-aid’ to provide transparency into the TxDOT planning process without changing anything about the process or how projects are managed...Project priorities constantly change throughout the planning process based on competing factors, leading to data accuracy issues. Project status information is not accurate...Project information displayed in multiple tools present different information, and there is not an authoritative source for this information.
“The Department has presented misleading information regarding the magnitude of cost savings or cost avoidance that can be attributed to regionalization (ie - $90 million in “savings” was credited to regionalization before it was ever even implemented!).”-- Grant Thornton Audit
The Audit also revealed a "deep-seated" belief among top management that TxDOT is doing "everything right" and that public criticism will fade once the public understands "how right they are." In other words, the public is too stupid to understand that despite it's taxpayer-funded ad campaign to push PPPs, the Trans Texas Corridor, and tolling, its rigged environmental studies, deceptive public involvement practices, manipulation of MPOs, and its $1.2 billion dollar "accounting error," TxDOT is doing everything right.
The audit said this same sentiment also applies to the Legislature and those with oversight over the agency. Top management at TxDOT lacks respect for YOU as well.
“Top leadership is....perceived as lacking respect for governing bodies (e.g., Transportation Commission, Legislature).” -- Grant Thornton Audit
When an agency shows "deep-seated" disregard for the taxpayers who pay their bills and such a blatant lack of respect for the Legislature, this is the ultimate reason TxDOT must be completely scrapped and a new agency must take its place.
Even the Transportation Commissioners brag about their arrogance, thumbing their noses at a critical public saying, "I'm Ted Houghton, the most arrogant Commissioner of the most arrogant state agency in the history of the state of Texas" (more here) as it announced it was pulling the plug on TTC-35 due to the backlash. Even then, Houghton blamed the failure of the project on TxDOT not doing a good enough job "educating" the public about the project. So again, STUPID Texans just aren't smart enough to understand TxDOT's grand plans. To the contrary, Texans understood the implications of the Trans Texas Corridor and acted accordingly to KILL it. Such flagrant belligerence must be dealt with in order to have a prayer of restoring the public's trust in this broken agency.
Here are some other examples that demonstrate TxDOT hasn't changed one bit:
1) In the fall of 2009, both John Barton and Amadeo Saenz sent letters to the San Antonio-Bexar County MPO effectively making threats of loss of funding if it voted to return two major toll projects to non-toll projects. (See attachments) In the lead-up to the MPO vote October 26, 2009 before 800 people (against tolls), TxDOT REFUSED to provide documentation to the duly elected MPO Chair because he was anti-toll. TxDOT staff disavowed its own original non-toll plan for US 281, refused to calculate its cost in today's dollars, REFUSED to be the project sponsor for a non-toll project (making it impossible for the MPO to adopt a non-toll option in its plans), misled MPO Board members about the project costs, and amazingly had two votes on the MPO Board to vote to toll roads that put money into its own coffers.
Plus, this insistence by TxDOT that to gain access to Texas Mobility Funds (TMF), a region has to “leverage” the funds with some local pot of money, ie - tolling or local bonds or property taxes (TRZs), speaks volumes about TxDOT’s tactics to get MPOs and local officials to buy into controversial tolling schemes. The Legislature made no such requirement. It was explicitly read into the record at the May 2006 Bond Review Board meeting that TMF funds can be used for both tolled and non-tolled projects.
Yet TxDOT came in and adopted rules that heavily encouraged leveraging (ie - tolling). Then, it tells SAMPO that it MUST include leveraging (which is beyond what its own rules state). It also demonstrates that TxDOT’s recent rule changes claiming that it will not withhold a region’s allocation or threaten to pull funding for failure to buy into tolling, is mere window dressing. The threat of withholding TxDOT’s discretionary pots of money (TMF, Prop 14, Prop 12, & stimulus money) from local MPOs have allowed them to continue to use force to get buy-in on tolling.
The current bunch at TxDOT knows no other way to operate than to manipulate MPOs into tolling regimes through heavy-handed tactics using threats, intimidation, obfuscation, and, sadly, even outright lies to achieve its pre-determined outcome -- which is more tolls & CDAs. MPO Board members are frustrated since they rely on TxDOT figures and claims for all of its planning and have no other scenarios or alternatives to consider other than what TxDOT (or an RMA) tells them. In the summer of 2009, TxDOT went around trying to get as many CDAs into MPO plans as possible to use it as a hammer to manipulate lawmakers into re-authorizing the controversial and unaccountable CDA contracts when the session starts in 2011 or else their projects won’t get built.
In fact, as recently as September 2010, local elected officials in Bexar County and San Antonio believe their region is being “punished” for their inability to overcome the public opposition to tolling and for their perceived failure to get any toll roads off the ground as a new source of revenue for TxDOT projects.
2) Once TxDOT claimed to have pulled the Trans Texas Corridor TTC-35 project, it rushed to do statewide hearings called My35 and My69 under the guise of taking a new citizen-driven approach for these corridors. The segment advisory committees that determined what proposals were ultimately presented to the public for input were hand-picked by TxDOT and stacked with local government staffers, Chamber of Commerce types (whose members do business with TxDOT), MPO staff and even RMA staff. The one or two token ordinary citizens were sidelined. In fact, for the New Braunfels Outer Loop study, the Technical Work Group of 20 people consisted of 12 TxDOT employees and 8 citizens, so whenever something was put to a vote, they assured total control of the outcome by having the majority vote.
Then, the public meetings were poorly publicized. The radio ads did not specify times or dates of local meetings, but just referred people to a web site. By the time commuters got home, it would be difficult to recall the web address (it was not TxDOT.gov but My35.org) and look-up actual meeting times/dates using this method. There were no roadside signs alerting people to the actual meetings, and in some cases, the notice in the paper was published the day of and even the DAY AFTER the meetings took place. Ditto for the TxDOT Rail Plan meetings. When the public rejected certain toll proposals on I-35, the segment committees, stacked with TxDOT allies, still voted to advance those tolled options. So much for listening to the public!
For the My69 meetings, one was held in Lufkin at the offices of the Chamber of Commerce! Not exactly a venue for large crowds and obviously at a place sympathetic to and supportive of TxDOT's plans to toll I-69. Trying to find the materials TxDOT distributed to the public at those meetings were hard to find on TxDOT's web site for I-69, with months going by and no meeting materials posted for public review.
In addition, both TxDOT and RMAs consistently fail to use the word “toll” at public meetings seeking input on potential toll projects. They’ve learned that being honest about a project being tolled invites backlash, so they purposely omit legally necessary information that the public needs in order to give meaningful feedback. Instead, they cloak the toll tax in other government gobbley-gook sounding terms like “managed lanes,” traffic demand management system, HOT lanes, congestion pricing, etc.
Finally, one of our supporters who attended the My35 meeting at the Via Metro Center in San Antonio, witnessed a TxDOT employee and her husband filling out comment cards on the project. Our observers have consistently noted more consultants and agency staff present than members of the public at these meetings. No wonder why the authentic public input gets dismissed, it’s obviously being skewed by participation from TxDOT’s own employees! This is precisely the way TxDOT handled the Trans Texas Corridor hearings. They have NOT changed ANYTHING about their public involvement process. They’re not listening to the public, nor are they being open, transparent, or honest with the public. The trickery and deception are downright offensive.
3) TxDOT recently took down its Keep Texas Moving web site which had all the information on PPPs/CDAs in Texas as well as all the Trans Texas Corridors in active development (only TTC-35 was pulled). TxDOT freely admitted to reporters at the TTC-35 press conference that its announcement did NOT effect TTC-69/I-69 or any of the other corridors. When the Governor's race began to heat up this fall, those pages disappeared from TxDOT's main web site as well.
4) Let's not forget how TxDOT handled the Prop 12 funds. It rushed in to commit half of those funds to expanding I-35 (seemingly as punishment for the public's rejection of TTC-35, TxDOT took away much needed funding for urban area projects and threw it all at I-35). When MPOs and other officials asked that Prop 12 be allocated by formula, it ignored them and doled out the money by project, leaving some regions completely hung out to dry.
Funding cannot be divorced from meaningful TxDOT reforms
It’s impossible to address what’s wrong at TxDOT by separating the sunset review process from any discussion about funding. TxDOT’s insatiable appetite for unpopular toll roads, innovative financing, the Trans Texas Corridor, and CDAs is precisely because of the Legislature’s abdication of its duty to properly fund STATE highways and to prioritize transportation funding in its budget. In 1980, transportation was 15% of the state budget, whereas in 2009 it was a mere 4.8%.
Local government increasingly is being required to pick-up more of the tab for the state highway system through leveraging requirements, not unlike school funding which reached crisis levels and required court action. This, too, is an abdication of duty and causes local taxes to be raised when a fuel tax increase by contrast is the most sensible, affordable way to fund state highways.
To quote Paul Burka, Editor of Texas Monthly:
“...the Legislature acted in a fiscally irresponsible manner when it issued several billion dollars in bonds to pay for road projects. By going into debt to build roads, TxDOT ended up with less money for new roads than if it had just used gasoline tax money. This is what happens when lawmakers spurn the pay-as-you-go principle. This is not fiscal conservatism. This is spending beyond your means. You can’t blame TxDOT. The blame belongs with the Legislature...” -- May 27, 2010
We concur, however, while TxDOT does not control HOW MUCH money it has to work with, it IS responsible for HOW it spends OUR money. So this, too, is an area of the agency that lacks any level of accountability much less transparency. Even Transportation Committee members have a hard time getting reliable figures from TxDOT. Ditto for MPOs, ditto for the public.
“TxDOT is unable to track and communicate how the annual budget is expended...Without a process to verify financial data, conflicting data is sometimes released,and as a result, financial data is mistrusted by most external stakeholders. Implementing financial controls to improve accuracy and reliability will ensure TxDOTʼs constituents and stakeholders receive consistent, reliable and trust-worthy data.” -- Grant Thornton Audit
In addition, the Audit states employees at TxDOT have no appreciation for saving taxpayers money by efficiently managing projects.
“The agency lacks an appreciation for how it can save money by efficiently managing projects. It needs to improve the quality of designs which can reduce costs associated with change orders during construction and reduce project delays associated with poor quality designs...
“...TxDOTʼs success in meeting deadlines seems to rely on willingness to engage in crisis management, rather than as a result of a disciplined, well-paced process. There are many other examples of projects with overruns exceeding $10 million and even doubling the original estimates...
“...Historically, the TxDOT culture...has NOT promoted a requirement to stay within budget or to be cost conscious and judicious in the use of funds...
“...TxDOT does not have a reliable way to confirm that projects are well defined and scoped,that the chosen technical approach or solution is feasible, that the estimated cost is realistic or what the expected return on the investment will be. This approach to implementing technology increases TxDOT risk – of project failure, of incurring increased cost due to vague scope definition or scope creep, of technology incompatibility, of incurring redevelopment costs or higher-than-necessary maintenance costs.” -- Grant Thornton Audit
Leaving State Open to Fraud, Bogus Public Involvement Efforts
The Grant Thornton Audit showed that barely a third of one division has documented licenses when ALL are required to be licensed to work in that division. This among other things shows its lack of compliance with state and federal laws that leaves the State vulnerable to FRAUD.
Now more than EVER, the leopard has shown its spots and the public sees perfectly just how wasteful, mismanaged, and arrogant TxDOT remains. Nothing short of totally dismantling the current agency and starting over will be acceptable.
UNACCOUNTABLE RMAs - duplication of duties, inefficiencies, “management fee” skimming
We understand that at one point last year, the District Engineer for San Antonio was transferred to El Paso because the Alamo RMA literally had control of all the major projects in San Antonio, leaving little work for the district office to do.
This is one of the fundamental problems creating dysfunction in transportation today. Because TxDOT says there are insufficient funds for any new construction, MPOs have turned to tolling to keep its plans “financially constrained”; therefore, local toll authorities control the majority of each region’s projects (due to SB 792 and giving local toll authorities right of first refusal on toll projects), leaving little for the district offices to do. Then when the public says ‘No’ to tolls, there is nothing it can do to wrestle these projects away from toll agencies whose sole existence depends upon the projects being tolled.
RMAs are skimming up to $15 million off the cost of projects for “management fees” over and above its costs to operate. They duplicate TxDOT’s duties and in some cases charge management fees to “supervise” TxDOT doing environmental work, etc. This duplication of effort is a gross misuse of taxpayer money. RMAs do not work. They WASTE and MISUSE taxpayer money through management fees, compete with TxDOT for projects (even non-toll projects), are as unresponsive to the public as TxDOT, and illegally use state funds to hire lobbyists to lobby for more power and higher taxes (Texas Govt Code Chapter 556.0055 specifies a political subdivision cannot use state funds to hire lobbyists, and the Alamo RMA, a political subdivision, is solely funded by TxDOT at this point and spent nearly $25,000 of those funds last session on lobbyists).
TxDOT cannot be fixed; It must be completely scrapped
The Audit found that EVERY division within TxDOT needed improvement, most needed significant reforms. It’s obvious TxDOT bureaucrats are incapable of “fixing” themselves. Their attempts have yielded ZERO meaningful results. Its poor performance in every area of measurement and failure to criticize poor performance, and its penchant for promoting from within have created an agency that cannot accept criticism or change and is incapable of reform without completely dismantling the agency and starting over.
“Nearly every department within the agency received a rating of orange or red meaning results donʼt fully or consistently meet requirements or issues or incidents consistently or frequently impede performance...We heard in interviews that the TxDOT community was too small a family to ever provide a negative rating to someone on their performance review.
“Size of staff - TxDOT does not base its employee requests on actual needs...the staff allocation may be either greater than or less than the true employee requirement...The current employee performance program does little to motivate high performance, little to discourage low performance and generally is NOT helping TxDOT achieve organization goals...
“...These low ratings reflect a concern that personnel who are managing contracts do not have proper training and are not properly managing assigned contracts...
“Of all individually listed projects in the short-range plan, only 29.95 percent of projects in FY07 and 49.19 percent in FY06 were actually let in or before their identified letting year. By comparison, in FY09 Arizona delivered 96 percent of projects in their STIP, Ohio delivered 95 percent of their listed projects, and Florida delivered 97 percent of their projects...
“TxDOT has significant leadership issues that impair staff and management effectiveness and morale...Top leadership is perceived as not being open to feedback, open dialogue or challenges – people expressed fear of saying “no”; perceived as out of touch with staff concerns and morale.” -- Grant Thornton Audit
What genuine reform looks like:
1) ELECTED leadership at TxDOT, to place TxDOT under conservatorship, install an Inspector General, and to completely gut the agency and start over!
2) End inefficiencies, demand accountability, especially financial accountability using ZERO-BASED BUDGETING
3) An end to CDAs/PPPs that sell our Texas roads to private, foreign companies -- true TRANSPARENCY, NOT LIP SERVICE -- No more SECRET contracts (these contracts are STILL kept SECRET from the public until AFTER they're signed). Ending CDAs of all types, including design-build CDAs, means an END TO “BEST VALUE” bidding (that replaced low bid requirements), PAYMENTS TO LOSING BIDDERS (now unlimited sums of money, but used to be capped at $250,000), and end to NON-COMPETE AGREEMENTS that forbid or penalize free road expansion surrounding toll roads, and end to the manipulation of SPEED LIMITS on free roads to drive more traffic to toll roads, and and end to guaranteed profits.
4) NOT JUST PUBLIC “INVOLVEMENT,” BUT PUBLIC VETO POWER
TxDOT has NOT heeded the public feedback/opposition to tolling on the majority of toll projects around the state. Also, the highway lobby often attends meetings to make it appear there is more support for tolling than there actually is. Anyone with ties to the road building industry or whose company would potentially profit from the project should be required to disclose it when submitting comments or testimony.
5) End the reliance on tolling, debt & borrowing to build roads, and using taxpayer money to subsidize loser toll projects.
6) ABOLISH UNACCOUNTABLE RMAS, FIX MPOs (only elected officials should have voting powers when it comes to allocating our TAX dollars, otherwise the taxation without representation will continue). Both fail to listen to and heed the public feedback.
We’re very disappointed that the Sunset Commission chose to re-review TxDOT during the holiday season, December 15 & 16. It’s already difficult for ordinary citizens to take time off work to get to the Capitol (on their time and dime), but it’s near impossible during the busy holiday season. This will undoubtedly suppress public testimony and plays into the mistrust citizens already feel surround the process.