Austin Bait-and-Switch Lawsuit Could Set Precedent for Harris County

On November 7, Brad Johnson published a copyrighted article in The Texan under the headline, “Austin’s Project Connect Challenged for ‘Bait and Switch’ of $11 Billion and Rising Transit Plan.” The subhead reads, “The suit alleges a breach of what voters were originally promised by the city since the tax increase was approved in 2020.”

The details of the Austin Transit plan story differ from the Harris County 2022 Road and Parks Bonds. But both controversies arise from alleged “bait and switch” tactics used to sell voters something radically inferior to what was promised to them beforehand. If successful, the Austin lawsuit could set a precedent for Harris County.

Outline of Austin Lawsuit

To summarize the Austin controversy, voters approved a tax rate increase in 2020 to fund construction of three light rail routes and an underground transit system at a cost of $7.1 billion. Three years later, the cost has ballooned to $11.6 billion – a 63% increase in three years – while the length of the proposed rail system has decreased from 27 miles to 10 – 62% less.

The crux of the lawsuit: the current project is different from the one voters approved, “and represents the largest property tax increase in Austin’s history.” The complaint reads, “This lawsuit is brought because “Austin taxpayers are not getting anything close to the benefit of the bargain they made for Project Connect …”

The lawsuit continues, “They (the plan authors) unilaterally adopted a Replacement Plan, that in the context of consumer-protection law would be called a “bait and switch” because it is so inferior to what voters “bought.” For reasons described in the lawsuit…

“…the Defendant Officials no longer have statutorily required voter authorization to assess, collect, or spend the Project Connect Tax increase nor do they have authority to issue bonds to be paid from that tax.”

Austin Lawsuit

But it gets worse. Paragraph 18 of the suit contends, “None of the Project Connect advocates have publicly admitted that the dramatic 257% increase in cost per rider—a key criteria in the competitive process for federal funding—reduces the odds of Project Connect receiving a 50% federal match…” Then it continues, “Nor is there any recognition of the effect on whether federal evaluators—or Austin voters for that matter—can trust the figures presented…”

That plan went off the rails. Much like Harris County’s 2022 Road and Parks Bonds.

Parallels with Selling 2022 Harris County Bonds to Voters

The Harris County 2022 Bonds have nothing to do with the Austin Transit Plan – except for the way they were sold, i.e., with false information.

Before the Commissioners Court put the 2022 Road and Parks Bonds on the ballot, Commissioners Ellis and Garcia openly talked about the need to distribute funds based on so-called “equity” principles, using a race-based social vulnerability formula – not one that accounted for road miles or square miles of parks that required maintenance. Their race-based approach would skew the distribution of funds from the new bond in favor of their precincts.

An uproar then ensued that threatened to kill the bond offering. So, Ellis, Garcia and Hidalgo voted to guarantee a minimum $220 million from the bonds to each precinct. Based in part on the promise of an equal minimum for EACH precinct, the bonds passed comfortably.

Then shortly after the election, the deal changed again. Equity and social vulnerability were back in. The minimum guarantee was ignored.

Precinct 3, which has 47 percent of the county’s roads and 35 percent of the county’s parks to maintain, received $188 million – $32 million less than the minimum and only 19% of the total money allocated.

Commissioners Ellis and Garcia received 30% and 27% respectively. That was because of their race-based formula, despite the fact that their precincts fall largely within municipalities that maintain roads and parks. Those municipalities are responsible for their own roads and parks.

In a commercial context, the FTC would consider this bait and switch.

To sell the bonds, the County told people one thing in newspapers, on social media, in public meetings, in handouts and on the County’s website. But soon after the bonds were approved, the deal changed.

Ironically, Precinct 3 voters who were all negatively impacted could have sunk the bond offering had they not been deceived.

This 2 minute and 39 second YouTube video distills key dialog from Commissioners Court before and after the switch.

It Started with the 2018 Flood Bond

Frankly, I see the Austin lawsuit as a positive thing. I hope someone in Harris County lodges a similar lawsuit. Perhaps it can rein in some egregious, bait-and-switch promises that have become hallmarks of Harris County politics lately.

The bait and switching didn’t start with the Road and Parks Bonds. Consider the 2018 Flood Bond. It promised “equitable” treatment of the various watersheds, with the worst being addressed first. Since then, equitable was redefined as “equity” by Rodney Ellis in a way that Webster’s Third International and Oxford English dictionaries do not recognize.

Ellis even bragged openly in commissioners court about tricking voters.

And of course, the areas with the worst flooding are among those getting the least help…and pushed to the end of the line.

The San Jacinto West Fork had the highest flooding in the county during Harvey. But the San Jacinto watershed ranks twelfth in the county in funding to date. See below. And most of that has gone to areas downstream from where flooding was so severe.

Worse, while we wait our turn for projects, a steady decline in the speed of project delivery has added to inflation costs which now threaten the delivery of promised projects. Just as in Austin.

Flood-mitigation spending has slowed to less than half its peak in 2020. Delays add to the inflation burden on the entire bond program and threaten cancellation of some projects.

No one can even guarantee there will be enough money left to do anything in the hardest hit Lake Houston and Spring Creek areas.

And the 2018 flood bond was a $5 billion program!

We need some civic-minded lawyers who care about the future of Harris County to step up and look at these policies.

Posted by Bob Rehak on 11/9/2023 with thanks to Brad Johnson and The Texan

2263 Days since Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.