Abele’s Transit Threat Gets Pushback
Abele is upset that a
legally appointed review panel voted to spike his decision to award a
half-billion-dollar contract to MV Transportation to run the Milwaukee County
Abele doesn’t want to
be overruled ever again.
Here’s Abele’s letter
to the board:
From: "Abele, Chris"
Date:03/10/2014 9:41 AM (GMT-06:00)
To: "Alexander, Deanna" ,"Borkowski, Mark" ,"Bowen, David" ,"Broderick, Gerry" ,"Cullen, David" ,"Haas, Jason" ,"Johnson Jr, Willie" ,"Jursik, Patricia" ,"Lipscomb, Theodore" ,"Mayo Sr, Michael" ,"Rainey, Khalif" ,"Romo West, Peggy" ,"Schmitt, James" ,"Stamper, Russell" ,"Staskunas, Anthony" ,"Taylor, Steve" ,"Weishan, John" ,"Dimitrijevic, Marina"
Cc: "Grady, Mark" ,"Bargren, Paul" ,"Dranzik, Brian" ,"Martin, James" ,"Fudge, Joshua" ,"Tyler, Don"
Subject: Transit and Procurement Compromise
I am writing you today to try to reach a compromise on the transit situation.
As you may be aware, counsel has examined the options that are available and has indicated it is very likely an appeal of the decision of the Administrative Determination Review Committee (ADRC) to Circuit Court would be successful. This is a road I am willing to explore, but like you, I would rather work toward a solution together.
While I strongly disagree with the ruling from the ADRC, and believe the committee's action was illegal and political in nature, my biggest concern is the broader appeal process, the message this appeal process sends to vendors and ultimately the detrimental impact on our services.
Milwaukee County does not follow the Administrative Appeal Process laid out in state statue (Chapter 68). In 1997, then County Executive Tom Ament’s administration, proposed a different process that is known as Chapter 110 and it was adopted by the Board. The County’s Chapter 110 process currently does not specify qualifications, require procurement expertise or require any specific skill set to hear a Chapter 110 procurement or contracting appeal. Lacking that requirement allows elected officials and other individuals with limited to no expertise in procurement and contracting, and with possible conflicts of interest, to hear these appeals. Allowing elected officials to serve in this way is directly contrary to best practice.
According to the American Bar Association (ABA) [2000 Model Procurement Code for States and Local Governments], appeals should be heard by a Chief Procurement Officer or someone in a similar position. According to ABA Model Code, the County may also set up a Procurement Appeals Panel to hear a subsequent appeal. The ABA recommends that such a panel be made up of experts. If an aggrieved party disagrees with county’s final decision, they can then appeal to court of law.
The National Institute of Governmental Purchasing, Inc. (NIGP) agrees with the ABA’s best practices. NIGP looked at some counties across the Country to see how they handle this issue. They note that Waukesha, Wisconsin and Fairfax County, Virginia each have single individual procurement experts hear all appeals. NIGP also looked at Gwinnett County, Georgia, where any appeal goes directly to court of law. The Interim County Attorney in Gwinnett County says that since that process was put in place in the 1990’s only two decisions have been challenged in court. In both cases the court sided with the County experts who awarded the original contract.
Given this context, I am proposing that we reach a solution that would allow us to move forward with a new RFP and avoid a potential costly court action. I will commit that neither the DOT or I will take this issue to court if a majority of the Board makes a commitment to work with me and the Comptroller’s Office to change the Chapter 110 process to follow best practices, including specifically to remove politicians from the appeals process. If at least ten Supervisors will commit by March 19, 2014 to changing this process as set forth above, we will not move forward with legal action. This compromise will allow the DOT to move forward with reissuing the RFP for transit with an improved and clear appeals process. My hope is that by working together, we can together improve transit service for our community.
Can you believe he called this threat a "compromise"?
And here’s how Supervisor Tony Staskunas, a member of the review panel that rejected Abele’s recommended contract, responded to Abele's threat:
County Executive Chris Abele
Office of the County Executive
901 North 9th Street – Room 306
Milwaukee, WI 53233
RE: Transit Appeal / Procurement Process
Dear County Executive Abele:
I am responding to your email dated March 10, 2014, relative to the recently completed Administrative Determination Review Committee decision of Milwaukee County's transit contract. I am deeply disappointed by the tone set by your email and the accusations and threats set forth in your email.
Specifically, your email states that you "believe the committee action was illegal and political in nature". Isn't it possible for someone to disagree with you without their disagreement being either political or illegal. In my ten months on the Milwaukee County Board, my perception is that just about every time that the Milwaukee County Board disagreed with one of your positions, the Board's conduct was either "illegal", "political", or evidence of the "dysfunctional" County Board. In my 25 years of public service I have learned that it is possible for reasonable people to have differences of opinion on public policy without one side or the other acting in an illegal, political, or dysfunctional way, while continued use of such inflammatory language only exacerbates the already poor relations between the executive branch and legislative branch. The reality is that you are also a politician and that your actions are no more or no less political than those of County Board members
The Administrative Determination Review Committee took its role very seriously. We were advised every step of the way by County Corporation Counsel Paul Bargren. We issued detailed and specific findings and conclusions. The Committee set forth a simple road map for the Department of Transportation to make changes and corrections to the RFP and to the RFP process. I firmly believe that if those changes are made to the RFP and RFP process that the Department of Transportation should be in a position to issue a new RFP for the transit contract very quickly. Since the decision was issued on February 20, 2014, I have been open and willing to meet with both you and the Department of Transportation to give you additional guidance as to how I believe the RFP and RFP process can be corrected so that we can move forward and identify the most cost effective method to provide good transit service to the residents of Milwaukee County. Your threats of a lawsuit do not help this process, but only hinder the process. Threats of litigation do not constitute "compromise" but serve instead only to throw gas on the fire of an already difficult situation.
You point out in your email that the administrative appeal process set forth in Milwaukee County Ordinance Chapter 110 is flawed. Nevertheless, it is the current law. It is the law that was very strictly followed by the Administrative Determination Review Committee. I don't know why this process was instituted in 1997, but perhaps it was for a good reason unknown to both you and myself. You imply that by not following Chapter 68 that the County and County Board violated the statute when you know, or should know, that Section 68.16, Stats., specifically allows a governing body to opt out and enact its own ordinance. Instead, you are asking the County Board, in advance, with no study or public input, to commit to a process using unknown and unelected bureaucrats to make decisions rather than the officials elected by the people to make these decisions.
You have requested that board members "commit" to certain ultimatums or you will commence a lawsuit. I can't prevent you from commencing this lawsuit, however mistaken I believe the lawsuit to be, but I will commit to working with you and your office relative to a review of the County's administrative appeal process. If the administrative appeal process can be handled in a better, more efficient way, I will certainly be open to changes to that process. However, I cannot commit in advance to a specific outcome, and I'm not sure how any supervisor could commit to a specific outcome since we haven't yet studied and discussed any of the necessary information to make an informed decision.
County Executive Abele, as we move forward on the transit contract and other issues, I to respectfully ask that you please tone down your inflammatory and personal rhetoric. People of good will can, and often do, disagree. There is always a natural tension between the executive branch and legislative branch of government. Personalizing our disagreements doesn't make the situation any better and doesn't serve the residents of Milwaukee County.
Abele simply cannot handle transparency, responsibility, or humility. Instead of learning from the mistakes made during the RFP and correcting them, Abele is threatening to shut down a review process that includes democratically elected supervisors. Remember: This is the guy who wanted to give a half-billion-dollar contract to the lowest-scoring bidder on the service and operations portion of the RFP. MV won the contract because it low-balled its bid. Why would Milwaukee County transit riders and taxpayers be thrilled to turn over our transit system to the operator who clearly would provide worse service than all other bidders—including the current operator?
I wish I could say that this was the end of the story, but, unfortunately, it is to be continued.