Judge won’t order resolution to bus contract dispute

By Kyle B. Hansen

Published Friday, Sept. 16, 2011 | 5:21 p.m.

Updated Friday, Sept. 16, 2011 | 8:09 p.m.

A final decision on a controversial bus operations contract remains in the hands of the Regional Transportation Commission — for now.

A District Court judge on Friday declined a request to order the commission to award a contract to First Transit, but he left open the possibility that he could do so in the future.

Judge Rob Bare said he wanted to clear the way for the RTC to make its own decisions and award the contract, but he agreed with First Transit on many of its arguments and said if the commission fails to take action, he might.

The contract was first awarded to First Transit by the commission in May by a 4-3 vote. That vote was later unanimously rescinded by the board after an opinion from the state attorney general's office said the RTC must have five votes to take action under the Nevada open meeting law.

The judge, however, said that opinion was wrong, the May vote was valid and the RTC can take action by a vote of members present rather than a majority of all members.

Bare called the letter from a deputy attorney general "erroneous" and said First Transit was a "victim of a bad opinion from the attorney general's office."

But the judge said he respected the board's later vote to rescind the contract, even though the vote was based on the attorney general's opinion.

In doing so, he declined First Transit's request to order the commission to award the contract, which was originally expected to go into effect 10 days from Friday.

So while the commission and Veolia Transportation won the fight to keep the court from ordering the contract awarded, the two parties lost their arguments that the May vote was invalid.

Bare told First Transit to return with the same request for a court order if the commission acts arbitrarily, abuses its discretion or remains deadlocked.

He also made sure First Transit could appeal his decision to the state Supreme Court.

Bare spent about an hour explaining his decision and answer questions from the attorneys; all after about four hours of oral arguments and about a thousand pages of documents were presented.

The RTC board is scheduled to vote on the contract again at its October meeting. The board could then decide to award the contract to First Transit, rescore the proposals and possibly award the contract to Veolia, the higher bidder, or reject all the bids and start the process over.

The bus operations contract ended up in court when First Transit sued the RTC Aug. 19, asking the judge to order the commission to award the contract to them.

The RTC board held a special meeting Sept. 1 and voted unanimously to fight the lawsuit.

And Veolia Transportation, the losing bidder that wasn't included as a defendant in the suit, filed a motion asked to be involved, a request that was approved by the judge Monday.

The focus on the hearing today was on whether or not the RTC board was required to be composed of elected officials only. If it was, the state open meeting law requires action to be approved by a majority of all members of the board, whether or not all are present.

But Bare ruled that state law does not require members of the board to be elected officials, and he pointed out that they are not elected to that board.

Members of the board include two Clark County commissioners, two Las Vegas city council members, and a city council member from Henderson, Mesquite and Boulder City.

Even though they are all elected officials, Bare said the state law governing the RTC does not specifically say they have to be elected, only that they are selected from the proper municipality's board.

Since they are not required to be elected, the open meeting law says the board can act by a majority vote of members present at a meeting, the judge said.

That part of the ruling was in line with arguments made by attorneys for First Transit.

Veolia attorneys also argued that the judge should not intervene in the contract dispute since the RTC had not exhausted its process of selecting the process.

Bare disagreed, saying he could issue an order on the contract, but he declined to, saying the RTC still had the right to make a decision.

"I have a respect for the separation of powers," he said. "I have a respect for the RTC."

But he stressed that the RTC board had to follow the request for proposal process it set up about a year ago when it first began the process of picking a company to operate the bus system.

If it fails to do so, he could order the RTC to award the contract to First Transit.

The issue will be next discussed at the RTC meeting Oct. 13, but any decision there will still not be final since either Veolia or First Transit is likely to bring the contract back to the court system.