Vote on bus contract to First Transit affirmed

A District Court judge ruled Friday that the original vote to award First Transit a lucrative bus contract was valid and an opinion to the contrary by the state attorney general's office was "in error and incorrect legally."

But Judge Rob Bare stopped short of ordering the Regional Transportation Commission to enter into a $600 million contract with First Transit, saying a subsequent vote had muddied his legal grounds to do so.

The commission acted on the attorney general's opinion in July and unanimously rescinded its May vote to strip the contract from incumbent operator Veolia Transportation and award it to First Transit.

First Transit's attorneys had gone to court to ask the judge to order the commission to sign the original contract.

"It wasn't as fair as it could have been, which is not to say that the Regional Transportation Commission did anything wrong," Bare said. "You were the victim of an erroneous opinion."

On May 19, the commission opted to give the contract to First Transit, whose bid was $50 million less over a seven-year period.

Board members Roger Tobler, Robert Eliason, Debra March and David Bennett voted in favor of First Transit. Chairman Larry Brown and commissioners Steve Ross and Chris Giunchigliani opposed the motion. Commissioner Lois Tarkanian was absent.

One day after the vote, Veolia attorneys filed a protest with the Regional Transportation Commission, arguing that state law said a majority vote is based on the number of members on a board, not the number of members present.

Commissioners sought the advice of the attorney general's office, which agreed with Veolia's lawyers.

"That's the elephant in the room," Bare said. "This whole case is that attorney general's letter."

Bare ruled that the state majority vote law does not apply to the Regional Transportation Commission, saying that while members are elected officials they are appointed to their posts on the commission. He also said state law years ago gave regional transportation commissions the discretion to make their own bylaws and policies governing meetings. Since 1980, a majority vote has been based on the number of members present at the meeting.

"That has been the standard and practice of the Regional Transportation Commission's governing board," Bare said.

Since rescinding the vote, the board has deadlocked 4-4 on proposals regarding the contract. Tarkanian joined Brown, Giunchigliani and Ross; Bennett's replacement, Kraig Hafen, has sided with his predecessor.

With the expiration of the current contract 10 days away, Bare said it was necessary for the court to get involved.

"The public should expect some checks and balances in what a government body is doing," he said.

Regional Transportation Commission executives allowed Veolia to continue to operate the bus system on a month-to-month basis for 180 days.

The board meets next on Oct. 13 and among their options are to award the contract to First Transit, review the scoring on the bids or choose to reject all proposals and start over. The board has also discussed splitting the contract into two different regions.

The judge said if First Transit considers any action to be arbitrary and capricious, he will reconsider its writ asking him to force the commission to sign the First Transit contract.

Zev Kaplan, general counsel for the commission, said if the board opts to bid the contract again, it must have sound reasoning. He said one such reason might be to see whether competitors come in with lower bids.

"It can't just be, 'We don't want to deal with this. Let's throw it out,' " Kaplan said.

When the Meadows mall was built, Bare said, the zoning vote was deadlocked at a 2-2 tie, and a judge intervened. He said he would do the same if the board continues to be divided on the bus contract.

First Transit attorney Pete Gibson declined to comment after the hearing. However Gibson made clear his feelings about the attorney general's opinion and the board's quick action to rescind the vote, a move that put the judge in a difficult position.

"That is so wrong. There has to be some remedy for that situation," Gibson said. "It cost my client $600 million."

Contact reporter Adrienne Packer at apacker@review
journal.com or 702-387-2904.