BG Advisor Note | TDS Wants Its Cake and Austin's Too (Andy Cates)
By: Andy Cates
NOTE: Reposted with author's permission from Texas Ethics Law (LINK)
An article appeared in yesterday's Austin Monitor discussing the ongoing feud between Texas Disposal Systems (TDS) and the City of Austin's lobbying ordinances.
TDS argues that the no-contact, no-bid process that is in place under city ordinance that prevents current city contractors from discussing potential bids on other contracts with city employees/officials. TDS says that the "prohibited communication" is an unconstitutionally vague infringement of their First Amendment rights, and until the city changes the rules, TDS is lobbying the city to put a moratorium on all waste contracts, effectively freezing the market for all competitors.
First of all, I think it's no secret that I'm no fan of the Austin campaign finance & lobby ordinances. I've got a blog post dedicated to explaining the new lobby laws which are vague at best, and I've recently teamed up with local lobbyist A.J. Bingham to educate the business community in Austin on the practical effects of the lobby ordinances here.
All of that said, it would be naive of anyone to think that TDS is asking for this waiver of the lobby rules and freeze on contracts until the waiver is set simply because the "rules are unclear". TDS is using its position as the primary waste removal contractor for the city to squeeze its employer for additional contracts.
Shockingly, it seems like the city is actually caving to their demands, at least in the short term, by considering lightening rules on no-contact periods and solicitation bans on bad actors.
Long-time Austin lawyer/lobbyist Nikelle Meade nailed it on the head when she said that the TDS arguments have little to no merit.
In mentioning that courts have consistently upheld speech restrictions if there is a compelling government interest, the main problem to TDS' argument comes into focus - they're talking out of both sides of their mouth.
On the one hand, TDS claims victim status that they are being persecuted unfairly, unconstitutionally, by unjust laws that keep them from competing in the marketplace. On the other hand, this isn't the marketplace, this is city government and there are rules in place to prevent corruption. Also, by lobbying the city to prevent anyone else from winning a contract in the meantime, TDS really shows its true colors as a monopolistic bully. You can't play victim and bully at the same time.
Finally, the article notes a frustration by Commissioner Stratmann when told about a business that was found in violation of the ordinance when it answered a question posed by a city employee. To bring this full circle, I still don't agree with a lot of the city's rules on this. In that instance, I would argue that a business should not be penalized because it was (for all intents and purposes) entrapped into violating a city ordinance by a city employee in answering questions posed even though the employee should have been aware of the no-contact requirement.
The system is by no means perfect, but using an imperfect system to squeeze out a few more dollars from the city, and potentially thousands more if this goes to court, is a weak way to assert your greediness.
At the end of the day though, no one comes out of this clean - The city should not bow to bullying, but it should use this as yet another example of the way in which a vague system of political speech and engagement regulations in a rapidly growing city can have tremendously confusing and negative effects.