Facebook
Fark
Digg
Reddit
Stumble
Friday, Sept. 18, 2009 | 2 a.m.
Sun Coverage
Sun Archives
- 215 Beltway project may be headed for deadlock (9-1-2009)
- Commission to review 215 Beltway bid again, minus two members (8-25-2009)
- Paver learns its skeletons cost it a 215 Beltway job, not record (8-14-2009)
- Judge halts work on 215 Beltway project (8-5-2009)
- Company files new lawsuit over county award of construction job (7-30-2008)
- County reaffirms vote, rejects lowest bid for road project (7-21-2009)
- Judge: Protest of 215 Beltway paving bid too late (6-12-2009)
- Judge upholds temporary restraining order in Beltway paving lawsuit (4-27-2009)
- Company that lost 215 Beltway paving bid sues county (4-23-2009)
- 215 Beltway widening contract sparks controversy (4-21-2009)
- Interchange opens on Lake Mead, 215 Beltway (11-26-2008)
- Road construction continues despite economic downturn (11-21-2008)
The waiting game for two highway construction companies and hundreds of workers could be ending soon, as a controversial agreement finally has been filed in federal court.
It forces the Clark County Commission to vote a third time on a $100 million-plus Las Vegas Beltway widening project, but this time with two commissioners abstaining.
Those court-induced abstentions have many people shaking their heads. The implications of this deal extend beyond moving the political process forward, some say.
For one thing, the abstention agreement could create a chilling effect on county elected officials who might not vote their conscience out of fear of being sued, said Howard Schweber, associate professor of political science at the University of Wisconsin-Madison. When he first heard about what had happened in Clark County, the constitutional scholar said “the hair on the back of my neck started to rise.”
Even if commissioners abstain from voting willingly, the agreement raises constitutional questions, Schweber said.
Keeping Commissioners Tom Collins and Steve Sisolak out of the next vote on the Beltway contract was a compromise intended to resolve the court battle over the bid award.
Fisher Sand & Gravel sued the county twice after the County Commission awarded the Beltway job to Las Vegas Paving even though Fisher had submitted a bid that was $4.6 million less than Las Vegas Paving’s bid. Fisher’s lawyers alleged the company was denied due process and that some commissioners — Collins and Sisolak in particular — were unduly influenced by the unions that support Las Vegas Paving.
The judicial order reflects an oral agreement made in court. Though it is signed by Stan Parry, Fisher’s attorney, U.S. District Court Judge Robert Jones had not signed it as of Thursday.
It isn’t final until Jones signs it.
Once he does, the County Commission will schedule another hearing on the bids.
As crafted, the agreement fits with “the basic goal of the parties, to get these jobs moving” and not tie the bid up in court any longer, said attorney Tom Dillard, who represented Clark County in the matter.
Clark County’s unemployment rate is at a record 12.5 percent.
Perhaps the need for jobs outweighs Schweber’s incredulity at what he sees as a constitutionally challenged order.
“I find it outrageous that a promise ... to abstain from voting on an issue by an elected official should be an element of a (judicial order). I almost can’t get my head around that. It touches on democratic process, First Amendment issues and more.”
The two county commissioners don’t appear to have done anything that should force them to abstain, he added.
“It’s not as though they were proposing to do something unconstitutional,” Schweber said. “And even (if they did), the decision would be to strike down what they had done” as opposed to forcing abstentions.
“I have never heard of any circumstances in which a federal court asserted the authority to dictate the actions of elected officials,” Schweber said.
In off-the-record talks, many county officials agree with Schweber but most are afraid to speak openly out of fear of angering the judge. Two messages the Sun left with the judge’s office went unanswered.
Commissioner Chris Giunchigliani, however, had no reservations about speaking up, especially about a portion of the agreement that says Clark County “shall give notice of all specific allegations against any bidder,” and time will be given to a bidder to “present evidence” in response.
To Giunchigliani, that amounts to giving bidders a “cheat sheet” before they address the commission.
“To say that we have to provide information ahead of time, that’s like telling all the kids the answers before you give them a test. How are you going to get truthful answers?” Giunchigliani said. “Bidders should know their stuff, be willing to answer questions and not need a cheat-sheet beforehand.”
Giunchigliani doesn’t like setting this kind of precedent, one that would force the county to create mounds of new paperwork, to engage in almost a legal discovery process before bids come to the commission.
Dillard doesn’t see any precedent being set, though, because the judge made it clear that the agreement would be “of no precedential value.”
A judge can say all he wants, but Schweber said a precedent could nonetheless be set.
“The county and officials should be thinking that, while it is true that a consent decree is not (a legal) precedent, it is a strategic precedent,” he said. “It sends out a loud notice to companies that lose future bids that here is a strategy you can try that may work.”
Even with the abstentions of the two commissioners, there’s a very real chance that no one will get the $100 million-plus job. That’s because although five commissioners will be voting, four votes will still be needed for a majority.
Of the five commissioners — Susan Brager, Giunchigliani, Larry Brown, Lawrence Weekly and Rory Reid — only three voted for Las Vegas Paving last time. The other two, Brown and Brager, voted for Fisher.
If they vote the same, neither bidder will get the job, and it could be put on hold or the bid process could start over from square one.
Another possible solution, and one that would preempt another public showdown, would be if Fisher and Las Vegas Paving make peace, with one agreeing to be the other’s subcontractor, for example.
lets keep local company working
It would seem that Las Vegas Paving needs to get busy spreading the green paper to Brown and Brager. That's what works in this town.
Here come da judge!
"I have never heard of any circumstances in which a federal court asserted the authority to dictate the actions of elected officials."
It would appear, AGAIN, that jurisprudence needs a major tuneup, from the top on down. What arrogance. Assurances of "no precedential value" regarding the ruling mean nothing, I assure you.
This whole charade is quite comedic. Meanwhile, we wait, and wait, and wait...
One has to love the politicians, they're voted into office and they become instantly stupid. This could've been resolved many months ago yet these politicians are to brain dead to do what's right. They'd rather kowtow than produce anything useful.
A majority vote of the Commission is required.
didnt 1 of those cos' have an exec that was busted 4 a sex-offense
Picking winners and losers over who has the political clout instead of who will do the job for the least amount of money is "pay to play".
When contracts are awarded based on union membership it translates into "only those that support my candidacy can win the work".
This should be a Justice Department investigation as much as the slime in Chicago.
The contract can only be awarded if four of the sitting commissioners vote in favor of one of the contractors.
Unusual writing and editing in this story. The issue is an actual or perceived bias on the part of local public officials in a decisionmaking process, proposed to be resolved by a consent decree regarding a future vote. The fact that a judge might sign the consent decree bothers the reporter, partly because it is troubling and baffling to "law experts." Yet only one such expert is quoted or even identified. He's an expert in the sense that he's loaded with academic credentials and practiced law for a few years. But his expertise does not extend to the state of the law in Nevada nor to this area of law. The media often turn to academics for expert legal opinions, but often those opinions are highly flavored with academia, with little evidence of practical expertise. That is likely because the academics are more willing and able to speak than practitioners, who are not normally in the business of rendering legal opinions to the media. But, in any case, one must decide just how much of an expert the quoted expert really is.
The area of law is this matter is administrative and procurement law. The issue has little to do with First Amendment law. There are some First Amendment implications (the right of a public official to vote on an issue, and the right of the public to have their representatives vote). But those rights are always subject to outside "influences"--such as absenteeism of the voting official or, as in this case, actual or perceived conflict or bias. Any First Amendment right regarding the vote of a public official is subject to the public's right (or the right of a contract bidder) to a fair vote.
As to any outrage at judicial activism or overstepping, there should be none. This is a consent decree, folks. The parties have weighed the risks of a judicial decision. The judge, as always, has encouraged a compromise. The parties have put together a proposal, which the judge has to approve in order to accomplish the compromise. There is no official or enforceable compromise without the judge's signature. That is what happens in the real world. People settle disputes and judges sign off on the settlements unless they are contrary to public policy. There is no activism or overstepping here. Outside the classroom, the judicial system does what it does and is supposed to do--resolve disputes efficiently. Academic outrages aside.
FOLLOW THE MONEY. "Just remember when any politician opens their mouths they are telling you a lie". All the politicians in Clark County are assured wonderful benefits when they leave office
Thanks Maryn,
I hope you are right and this is not some judge overstepping his bounds. So is Operating Engineers issue with Fisher NOT being Union even though their subcontractors are? I've seen these unions work arm twist before...not pretty. Often times they twist so much that nobody wins. Elect me...Fisher wins.