Las Vegas Sun

January 23, 2018

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Law experts baffled by looming deal with paver

Two commissioners would have to sit out vote on contested contract

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.

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