5 (m) Consideration and ACTION to award a term contract for Commercial and Industrial Solid Waste Collection Services for the City of Brownsville. (City Manager’s Office) Agenda item for Tuesday's City of Brownsville Commission meeting
By Juan Montoya
On the eve of Tuesday's City of Brownsville Commission meeting where a multi-million dollar contract for commercial and solid waste collection service is to be awarded, the current contract holder, Brownsville GMS, has filed a motion asking a court to issue a Temporary Restraining Order and Temporary Injunction to enjoin the city from terminating GMS's contract and executing one with Republic, a competing vendor.
The motion was filed electronically at 12 a.m. Monday and assigned to the 445th District Court. Visiting Judge Robert Pate has been assigned to hear the case.
Named as defendants are the City of Brownsville and Mayor Tony Martinez, commissioners Rose Z. Gowen, Ricardo Longoria Jr., Joel Mungia, Ben Neece, in their official capacity, and commissioner Jessica Tetreau in her individual and official capacity and former commissioner Cesar de Deleon in his individual capacity.
In requesting the order for the TRO and injunction, GMS charges that the city administration has violated its bidding process and that two commissioners - De Leon and Tetreau - had hidden conflicts of interest in the matter because one had stated that he would work against them because they hadn't given him any money for his campaign and had given former City Manager Charlie Cabler $15,000.
(In an attached exhibit, a partial transcript of a four-hour secretly-recorded conversation of De Leon by former Brownsville Fire Department Chief Carlos Elizondo contains a part of the conversation where the former commissioner boasts of having stopped the awarding of the contract to GMS and alleging the company had given Cabler the money.)
GMS charges that Tetreau stood directly to benefit from the awarding of the contract to Republic, which has a contrct to wash its trucks at her husband's commercial car wash, and that the additional trucks Republic would require would benefit the business directly.
Further, they charge that she did not file an affidavit of conflict of interest and abstain from further participation in the matter.
Elizondo was terminated by Cabler after questions arose over his apparent steering of patient transfers to an ambulance service with which he was associated. The Cameron County DA’s Office charged Elizondo with 11 counts of computer security breach over allegations that the former official accessed the Brownsville Fire Department’s Emergency Reporting System 11 times after the city had suspended him after he was indicted on the theft and misapplication of fiduciary duty.. His trial is scheduled for June.
Cabler resigned as city manager and is now in a runoff for mayor against Texas Southmost College trustee Trey Mendez. Tetreau just won reelection to District 2.
GMS charges that Tetreau stood directly to benefit from the awarding of the contract to Republic, which has its trucks washed at her commercial car wash, and that the additional trucks Republic would require would benefit her business directly.
Further, they charge that she did not file an affidavit of conflict of interest and abstain from further participation in the matter.
The 32-page motion charges that during the three times that the city conducted the RFP process, it had violated the Open Meetings Act by not giving sufficient notice to the bidders and not listing the items on the agenda.
Among some of the other allegations raised in the motion for a TRO and injunction, GMS alleges that:
1. The city commission rejected the negotiated contract March 7 without any context or discussion suggesting that the item had been discussed in violation of the Open Meetings Act.
2. That its contract had been denied after exposing its bid, and that the metrics where GMS had scored well were changed to stack the deck against its bid.
3. That after the contract was put out for RFPs, no notice of any action was posted by the city for more than a year and a half.
4. That the commission discussed the contract in executive session January with city administrators and each other without providing public notice in violation of the Open Meetings Act.
5. That it voted to approve the contract with an oral vote and not giving notice in violation of the OMA.
6. That the city recognized the "irregularities" of then process and sought to cancel the bidding process the third time and award the contract to its predetermined favorite, Republic.
The company alleges that the actions of Tetreau and De Leon constitute tortious interference and that unless the court grants it the TRO and injunction it will cost it a considerable amount of money and inflict "irreparable" harm to the company and its employees. It seeks actual and exemplary damages from them in their individual capacity.
GMS alleges that De Leon and Redfish Recycling started a campaign against the awarding of the contract to it, a contract it had won in competitive bidding over the span of 30 years.
GMS is seeking monetary relief of more than $1 million and unspecified non-monetary relief.
The city contract for commercial and solid-waste disposal is valued at more at more than $50 million after franchise tax and deductions such as the tip-in fee at the city landfill.