Lawyers for Williamson County, Waste Management of Texas Inc., and citizens groups squared off in WilCo District Court Monday to present arguments in a lawsuit WilCo brought late last year against WMI over a contract dispute. The legal question centers on whether the contract is valid; WilCo says it isn’t. In the courtroom Monday, the sharply drawn legal battle pitted form against substance, as attorneys for the three parties presented arguments for summary judgment before District Judge Burt Carnes. One angle of the debate is whether the contract should have gone through a competitive bidding process, as the citizens groups and rival Texas Disposal Systems owner Bob Gregory claim. WMI maintains that its 2003 landfill operating agreement is exempt from the open bid statute, while opponents insist the contract is a “lease” or “purchasing agreement” and therefore in violation of state law.
WMI attorney C. Robert Heath presented the contract’s technicalities as its best defense. “This form of an agreement simply doesn’t fall under the statute,” he said, referring to the County Purchasing Act, which stipulates governments hold an open bid process for contracts exceeding $25,000. “The agreement is one in which the county receives, rather than expends, funds,” Heath’s motion asserts, further arguing that landfills fall under a lawful public health and safety exception. Invoking the title of the contract, “Williamson County Landfill Oper-ation Agreement,” Heath’s motion states: “Presumably, if [commissioners] had intended to enter into a lease they would have used the language commonly found in leases.”
Plaintiff and protesters slammed Heath’s defense as “form-over-substance” posturing. The county’s hired gun, Susan E. Potts – who ascended to lead attorney when County Attorney Jana Duty and an assistant bailed on the case after a “philosophical disagreement” with commissioners over hiring outside counsel – argued that the agreement “constitutes a lease,” in which the lessee “possesses, uses, and enjoys property of others” – the landfill, in this case.
Early on, the citizens groups that stand opposed to WMI’s proposed expansion of the landfill joined the lawsuit as “intervenors” to ensure the claim would be “pursued aggressively,” according to a press release from the Hutto Citizens Group. Representing the intervenors, James Hemphill sought to bolster the lease-agreement position: “Elevating the substance of the argument … the county is purchasing landfill management services by paying Waste Management … revenue generated by a county asset.” And, in countering WMI’s attempt to bar the intervenors, Hemphill’s motion states: “Taxpayers have standing not only to enjoin illegal contracts, but to seek declaratory judgment that an illegal contract is void.” And it charges that the defense relies on linguistic “imagined loopholes” to protect its lucrative contract.
It’s uncertain when the judge will rule on
the matter.
This article appears in April 11 • 2008.