Facing a lawsuit and a reporter’s inquiries, the Hays County Commissioner’s Court is asking County Judge Bert Cobb to tear up a contract for a school zone speed-safety camera program.
The decision could leave taxpayers liable for as much as $3 million in stipulations made for early termination of what county officials contended was a two-year contract, but with language in it suggesting the contract with American Traffic Solutions Inc. was for 10 years.
An early termination also raises questions about the status of hundreds of $150 citations, valued at well over $150,000, many of them unpaid.
In one seven-month period between November 2015 and May 2016, the Hays County Speed Zone program generated more than 800 citations yielding better than $121,000 in revenue from just two school zones in the most rural precincts in Hays County, southwest of Austin.
Cobb and Will Conley, the commissioner who lobbied for and proposed the program in February 2015, added the item to its Tuesday consent agenda (see Item 12 here), meaning the commissioner’s court could terminate the contract with ATSI without any public discussion.
The agenda item suddenly appeared at the end of a week in which Conley and other county officials declined to answer questions about a program attorney Bill Davis contends was created illegally and in violation of the Texas Constitution.
Davis filed a lawsuit July 27 contending the Commissioner’s Court had no constitutional authority to enter into a contract with ATSI that, in effect, created new traffic regulations.
The Commissioners Court created the program without a study to justify claims of a public safety threat and without a public hearing to explain the program before its implementation, the suit says.
The lawsuit also claims the Commissioner’s Court overstepped its authority by enlisting the sheriff, the constables, the district attorney, the justices of the peace, the tax assessor, treasurer, auditor and justice court clerk to carry out the program.
“I’m arguing that the way they went about it was wrong from day one,” Davis said. “It’s a program designed to take money from the gullible and it’s illegal as all get-out.”
Of the many county officials involved, only one agreed to speak to Watchdog about the school zone camera program.
Mark Kennedy, Hays County’s general counsel who was instrumental in crafting the contract with ATSI, did not return a call or respond to an email requesting comment.
Nor did Conley, the Precinct 3 commissioner who proposed the program and in whose precinct one of the cameras operates. Ray Whisenant, in whose Precinct 4 the other speeding camera operates, said “We’ve been sued, so your best option would be to talk to our counsel.”
Luanne Caraway, the county tax assessor who agreed in February 2015 to handle penalties for delinquent violators, said she has not been asked by the county or ATS to handle a single case so far.
Still, Caraway said, she had concerns about assisting with enforcement, which in the case of this kind of speeding violation consists of putting a hold on a violator’s license plate renewal until the ticket is paid.
Enforcement is just one of a panoply of legal problems with the safety camera program, Davis said. Not the least is the way the county went about creating the program, something Davis knew nothing about until a letter addressed to he and his wife came in late March.
The “notice of violation,” with an Arizona return address, informed the Davises they owed $150 based on photos taken of their license plate by a camera in a marked van. Payment was to be made to a violation processing center in Ohio.
Davis responded by sending letters to the pertinent county officials and to the processing center asking for a court hearing, as provided in the notice. Then he began looking into how the school-zone program came to be.
‘A shadow private court’
Following behind contentions made in Davis’ lawsuit, Watchdog reviewed video of several Commissioner’s Court meetings where the program was discussed, including Feb. 17, 2015, when the court unanimously agreed to enter into a contract with ATS.
You can watch passage of the program here.
Although county officials have all along touted the program as a student safety effort, there is no discussion of any study of traffic in any of the 20 school zones that were under consideration.
Nor was there discussion of calling for a public hearing to present the program.
However, Whisenant volunteered to be part of whatever public information effort was made after the vote because he said he thought some people in Hays County “were going to feel somewhat disenfranchised by this.”
“The Texas Transportation Code does not authorize Hays County to create new traffic violations and civil fines – much less a shadow private court and fee collection system,” the lawsuit says.
Moreover, the program was wrongly packaged as a professional services agreement, which allowed the commission to give the contract to ATS without competitive bidding, the lawsuit says.
None of these deficiencies is mentioned in the altogether positive local coverage of the camera program.
After county officials raved about the success of a test run in which ATS issued 71 warning tickets over 10 days in July 2015 at Scudder Elementary School, they announced the county was adding a second camera to rotate among half a dozen schools.
For the first two years, the contract calls for 75 percent of ticket proceeds to be paid to ATS and 25 percent pocketed by Hays County, in part to pay for the equipment, including the two vans.
Should the contract be extended, it calls for a 60-40 split favoring the county.
However, the language in the contract signed by Cobb on Feb. 17, 2015, is a 10-year contract renewable for successive five-year terms. (You can read the entire contract here.)
The contract also calls for stiff penalties in the event of termination. An accounting of the various charges included in the contract suggests county taxpayers could be on the hook for $3 million or more should ATSI choose to invoke the contract.
Watchdog on Sept. 12 requested but has so far not received figures on the number of tickets issued, a breakdown of locations and monthly totals of revenue generated by the tickets.
However, a previous Texas Public Information Act request shows that between November 2015 and May 2016 ATS made at least $91,295 and Hays County $30,430 from at least 811 citations.
In March alone the program issued at least 184 tickets at a cost to drivers of $27,625, according to the ATS invoices included in the request.
Davis said he thinks a growing number of the notices of violation are either going unpaid or are being challenged as residents begin to realize what the county has done. The county originally set a July 19 hearing before a justice of the peace for Davis, but has since reset it for Oct. 18.
“I think the expectation was that most people would just pay these tickets,” Davis said.
Davis has no intention of letting go regardless of what the county does with his supposed violation.
“You have to wonder, how many people have the ability to fight this,” Davis asked. You don’t have to be an attorney to know this is wrong. They just happened upon one who is really angry about this.”