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TURF Committee Report Response
Submitted in response to the Sunset Committee Report on June 24, 2008
Overall, we’re delighted that the Sunset Commission sees the need for fundamental reform at TxDOT, and acknowledges that simply tweaking some things or maintaining status quo will not suffice to restore the public trust in this agency or in transportation decision-making around the state.
However, in response to the Committee Report, we have some further suggestions we need the Commission to recommend to the Legislature.
ISSUE 1
SINGLE ELECTED COMMISSIONER
While the Sunset Committee staff recommends abolishing the Transportation Commission and replacing it with a single commissioner, we DO NOT need to have that position APPOINTED by the Governor, giving us more of the same. The new head of this agency needs to answer directly to the people of Texas through statewide election. We need an independent representative who answers to the voters and who represents the entire state, as a whole, in transportation matters. A single elected commissioner also avoids chopping up the state by region with regional commissioners, which inevitably pits region against region, urban against rural, and may compromise seamless transportation throughout the state. When 76% of the feedback you received from the public asked for an elected commissioner, it’s abundantly clear that’s what the people of Texas want the Legislature to adopt.
ISSUE 2
PROJECT PROGRAMMING – NEED FREEWAY VS TOLLWAY “NEEDS” ANALYSIS
We agree that TxDOT and MPO planning mechanisms are broken. We need to end the toll road wish lists (TMMP plans that even the Governor admitted were based on an if-money-were-no-object principle) and get a true side-by-side, apples to apples comparison of the cost of fixing our roads and keeping them freeways versus the cost of turning them into tollways. If it's anything like the US 281 project in Bexar County, TxDOT/ARMA has turned a $100 million gas tax funded FREEway plan into a $1.3 billion toll project. This side-by-side comparison will help Legislators and the public discern our true "unfunded needs" if we truly have any, since we cannot rely on TxDOT's "funding gap" figures to be accurate. Then and only then can we accurately assess funding our roads in the least invasive, most affordable, and most transparent fashion.
ISSUE 3
PROPAGANDA VERSUS EDUCATION CAMPAIGNS
TURF is suing the State to STOP TxDOT's propaganda campaign called Keep Texas Moving, which advocates the Trans Texas Corridor, privatization, and tolling. Just look at the fixation on tolling over other funding options on TxDOT’s web sites. The Committee Report highlights no less than 3 web sites dedicated to tolling using taxpayer money. The information found on these sites only extols the benefits of tolling and privatization (never any criticisms) to the exclusion of other modes of transportation and other forms of financing. Conveniently, tolling puts the most money in TxDOT’s coffers and creates a slush fund not subject to federal law, which has higher environmental and public involvement standards.
The Sunset Commission needs to strongly recommend to the Legislature that we need a statute that clearly spells out what TxDOT is authorized to do as far as marketing. A statute must include restriction of advertising toll roads (restrict to “Get your toll tag here” for toll projects already built and open to traffic) and advocating one policy over another through its web sites, public information resources, staff time and resources. The law must also clearly prohibit not only advocacy of certain policies over another (versus truly educational campaigns like “Click it or ticket”), but also enforce the prohibition against state agencies lobbying using taxpayer money. TURF would be happy to share the evidence we’ve uncovered in our lawsuit that shows the blatant political nature of the ad campaign and that also documents illegal lobbying, including the hiring of registered lobbyists, by TxDOT.
NOT JUST PUBLIC “INVOLVEMENT,” BUT PUBLIC VETO POWER
There are no specific public involvement recommendations that would force TxDOT to do what the public asks them to, particularly in regards to toll projects and the Trans Texas Corridor. Simply taking public testimony and then ignoring it is what has caused a massive revolt against transportation policies all over the state! We need some public involvement REQUIREMENTS that FORCE TxDOT to implement the alternative chosen by the public, not the one that makes the State the most tax revenue. Whether it be a public vote on all toll projects, or through public comment on projects through public hearings, something must be done to give the taxpayers who foot the bill the final say, including how the project is financed, on the best alternative for their community.
TRANSPARENCY, NOT LIP SERVICE
SB 792 tried to force more transparency with the financial terms for toll projects. However, the financial guts of these projects are still being withheld from the public, by law. For instance, as long as TxDOT calls something a “draft” document, they do not have to release it. Also, the market valuation studies and toll viability studies (also called traffic and revenue studies) that reveal the genuine feasibility of these projects, the structure of the bonds, and if the tolling entity plans to refinance and backload a toll, are not being released per SB 792.
The San Antonio MPO, for instance, was asked to give final approval of the financial terms on the US 281 toll project in December 2007 without having access to the actual market value study or documents showing the financial terms of the deal (which aren’t required to be disclosed per SB 792 until 30 days prior to letting a contract). The public hearing revealing this financial information didn’t happen until June 2008, and the meeting was held at 1:00 PM in the middle of the workday 20 miles from the project area. The purpose of a public meeting is to solicit public comment, and when the tolling entity holds the meeting when the vast majority of the population is at work as far away from the project area as possible, the meeting can in no way be legitimate. The whole process is secretive and absolutely backwards! If the public objects to the structure of a deal, how can they stop it if the MPO already approved it prior to disclosure of the information? It’s insane to withhold these documents from the public and even our Legislators when they’re being asked to give FINAL APPROVAL for the toll rates and terms of these deals at the MPO.
This practice has got to stop! If a toll project is in the public’s best interest, then it should withstand the light of day.
ISSUE4
END THE “BEST VALUE” PROPOSAL AND PAYMENT TO LOSING BIDDERS, IT’S A TAXPAYER RIP-OFF
The report mentions that toll contracts are different than the Department’s traditional contracts. This differing standard shows the disproportionate emphasis and special privileges given to toll road contractors not otherwise enjoyed on non-toll projects. Rather than require TxDOT use the lowest bid, toll contracts are allowed a nebulous “best value” bid. State law also allows payments of to $1 million to losing bidders on toll projects.
This policy creates an entire pro-toll lobby through road contractors themselves who will profit handsomely by merely bidding on a toll project and it allows them to re-coup a cost of doing business that other industries do not enjoy when bidding on government projects. This practice is a total waste of taxpayer money and needlessly inflates the cost of transportation. No other bidders on government contracts get this pay-off, and it’s likely to spread to other government agencies. This is NOT a precedent the taxpayers want to set. The Sunset Committee’s job is to identify waste, fraud, and abuse, The “best value bid” and payments to losing bidders qualify! Get rid of them!
DO NOT RE-AUTHORIZE CDAS
If the public outcry over privatizing our public infrastructure wasn’t loud enough in the 80th Legislative Session, then what more must the public do to end this risky, extremely expensive method of delivering toll projects? How quickly the testimony from Dennis Enright of Northwest Financial in New Jersey before the Senate Transportation Committee March 1, 2007 has been forgotten. Mr. Enright said there is no risk transfer to the private entity and that CDAs cost the taxpayers of a minimum of 50% more than public toll roads. Mr. Enright rightly called toll roads monopolies by their very nature. He also said it’s always best to keep these projects in the public NOT private sector. So why are CDAs being discussed at all? We wouldn’t need all the recommended extra oversight and bureaucracy if CDAs were not re-authorized. There were 20 lawyers present at the signing of the SH 130 CDA. Such waste of taxpayer money when TxDOT is claiming we’re out of money for roads is the height of hypocrisy! Public infrastructure (a government sanctioned monopoly free of competition) that Texans depend on for daily living shouldn’t be under the control of private companies whose primary motive, naturally, is profit, not the public interest.
OTHER AREAS NOT ADDRESSED
ABOLISH UNACCOUNTABLE RMAS, FIX MPOS
The Committee Report was silent on the problems with Regional Mobility Authorities enacted through HB 3588 in 2003, but touches on some of the problems at MPOs. MPOs and RMAs are just as tone deaf to the will of the public as TxDOT. Hundreds of people can fill their boardrooms and submit public comments opposing toll projects, yet they proceed with tolling anyway. RMAs are subdivisions of the State, and though local county commissioners appoint most board members and often provide some start-up loans, they are funded primarily by TxDOT and an extension of TxDOT’s toll-first mentality. They’re merely a front for local control. When TxDOT shows them the money, we know who holds the wheel.
RMAs are essentially created to sell bonds and toll roads, and they were created without a public vote. We have the Texas Turnpike Authority, TxDOT, and now RMAs. We do not need all of this duplication in effort. RMAs are mini-TxDOTs, they don’t answer to the people, and pit region against region (board members from one part of a city vote to toll another part of the city). We’ve also found that even though Board members are appointed by Commissioners representing various precincts, the majority of appointees do not reside in the areas to be tolled, leaving those who will be tolled without representation. The same is true of MPOs. The regions that won’t be tolled vote with TxDOT to toll the regions that are proposed to be tolled, leaving the citizens who will bear the tax increase with no meaningful representation.
If a law is enacted as suggested in the “PUBLIC INVOLVEMENT” section giving the public the ability to choose the best alternative for road projects, it must also apply to overruling an MPO plan that may designate a project as a toll road. The PEOPLE should have the final say, period.
END THE FIXATION ON TOLLING
The Transportation Commission passed a Minute Order on December 18, 2003 mandating all new capacity to Texas roads be studied for tolls first. This policy is why TxDOT is tolling everything in sight, and the Legislature must step-in to change the direction.
With gas at $4 a gallon, and driving decreasing for the first time in more than 30 years, we have to revisit this shift to tolling. We’re in uncharted territory as it relates to fuel and energy costs, even topping the inflation adjusted high of 1980. Selling billions in bonds for toll projects that depend on high growth rates and old patterns of driving for 40-50 years at a time, is foolish and unsustainable in the long-term. Some of these RMAs are foregoing buying bond insurance for multi-million dollar toll projects. This leaves the taxpayers on the hook to bail out failed toll projects. We’re setting up the taxpayers for an Enron/mortgage-crisis style bail out.