Beltway paving ruling puts commissioners on spot

If you have dug yourself into a hole, the first thing to do is stop digging.

Apparently, this expression is unknown to some members of the Clark County Commission.

Despite ample opportunity to stop digging the dangerous pit they made in the Las Vegas Paving and Fisher Sand and Gravel debacle, they insist on burrowing away. On Tuesday in U.S. District Court, federal Judge Robert C. Jones buried the commission, the county, and Las Vegas Paving, too.

An angry Jones slapped the county and stripped the $116 million beltway expansion contract it awarded Las Vegas Paving. Jones then awarded the contract to Fisher, the low bidder.

That’s right. Jones overruled the commission.

He clearly believed the county was playing games with the court after it declined to follow a previous order to ensure Fisher’s due process rights were granted. Instead, the commission voted to void the contract and start a new bid process.

“I was not kidding, damn it,” Jones said. “I meant their due process rights were to be honored. I wasn’t asking for them to go around the writ. Will you convey the message to the commission?”

Since lawyers for the county and Las Vegas Paving made no audible response, according to the hearing transcript, I’ll deliver the message, Your Honor.

The commission’s troubles began last year when, against staff’s recommendation, it voted to award Las Vegas Paving the beltway contract. Fisher’s bid, at $112 million, was $4 million lower.

Commission observers suspected some members were brazenly catering to organized labor allies. Las Vegas Paving is a local union contractor. Fisher is a nonunion outfit headquartered in North Dakota that employs Nevada workers.

After Fisher attorney Stan Parry raised the issue of union juice politics, the company was vilified in a July 21 commission hearing. Low bid aside, commissioners argued its credibility was suspect after examining tax fraud allegations involving former company executive Mike Fisher. (Fisher was sentenced to 37 months.) The commission’s criticism smacked of a ham-handed attempt to confuse the issue by defaming a critic.

Parry called it “ambushing a contractor. No matter how you feel about Fisher, what they did was clearly inappropriate.”

Jones said commissioners acted in an arbitrary, capricious and arguably corrupt manner.

“They had to go through the process of giving due process rights to Fisher,” Jones said. “That did not include the ability to give up all bids, to reject all bids. That right, I think, is gone.”

Since they refused to see the light, Jones dragged them into it. He apologized for his anger, but made clear he wanted “to show the distress of the court over what is perceived to be the commission’s attempted end run.”

What Jones described as an end run was the commission’s attempt to extricate itself from a mess that has the potential to reverberate politically. After twice awarding the bid to Las Vegas Paving, the commission wasn’t to be trusted to play fair with Fisher, Jones said.

Paving general counsel James Barker said Friday his company is preparing a motion for emergency reconsideration. “We are of the firm belief the judge clearly overstepped his authority in this case. There’s a question of a court imposing its authority on the legislative branch.”

Expect Las Vegas Paving to continue to pound away at Fisher’s “responsibility,” despite the fact the North Dakota company has hundreds of millions of dollars in jobs ongoing in Nevada.

Parry is not impressed.

“We had to pursue this not only to protect the company’s reputation, but to protect the whole system of public bidding,” he said.

The county has 30 days to file an appeal. But there’s more at stake than road contracts and reputations.

Commissioners would be wise to stop digging this hole before it swallows their careers.

John L. Smith’s column appears Sunday, Tuesday, Wednesday and Friday. E-mail him at Smith@reviewjournal.com or call 702-383-0295. He also blogs at lvrj.com/blogs/smith.