“Publicly subsidized, privately profitable/ The anthem of the upper-tier puppeteer, untouchable”
— Propaghandi, “And We Thought Nation-States Were A Bad Idea…”
If you ask a dumb question, you get a dumb answer. Texas courts have been asking a very dumb question lately: Where is the line between public and private in a public-private partnership?
For the unfamiliar, the PPP is crony capitalism distilled to its rotten essence. The business model: money in is public, money out is private. The whole point of a PPP is flim-flammery. It commingles funds, making the distinction between public and private impossible.
The Texas legislature passed a law making the funds of these quasi-public entities a matter of public record, but the Supreme Court of Texas has found a way to reverse the law, making the public private, and slamming shut inquiry into cronyism. What’s worse, it has now created a system where you can be fined hundreds of thousands of dollars just for daring to ask an entity to open its books. And it’s done this by flipping around the very law meant to stop the powerful from bullying the public out of politics through frivolous lawsuits.
There’s usually some social good cited as justification for a PPP, but the setup is so corrupting that it could turn something as wholesome as a beloved, 130-year-old fair into a scam.
That’s just what happened in Dallas to the Texas State Fair, to the ruination of a 277-acre former civic jewel called Fair Park, neither half of that name any longer apt for a desolate stretch of blacktop, fencing, empty halls, abandoned houses, and ramshackle storage yards that would make Frederick Law Olmsted weep. It’s ugliness itself.
The city has spent hundreds of millions of dollars to support the (cough) nonprofit that operates both the fair and Fair Park. The nonprofit’s managers collect salaries and legal fees of a million dollars and upwards, yet have managed to chase off all the park’s high-end cultural tenants — the Dallas Symphony Orchestra, the Dallas Museum of Art, the Dallas Opera, the Science Museum, and the Museum of Natural History.
The situation is proving impossible to fix, thanks to the sort of cronyism at City Hall you might find anywhere, and a few court decisions that are impossible to imagine outside Texas.
The fair’s board is packed with some of the richest people in Dallas, who have the influence to stifle almost any reform. On the other side are the mostly black residents of South Dallas (short a few of their sold-out political leaders), who have an unlikely champion in Don Williams, the former CEO of Trammel Crow, which is the ne plus ultra of Dallas establishment money. Williams has commissioned architects and planners to “put the park back in Fair Park,” as his slogan has it.
At first, Mayor Mike Rawlings supported a plan to privatize Fair Park. Only it was a funny sort of privatization, because instead of getting money, the city was offering to give the cronies $610 million to operate it — on account of the pig pens needed fixing up and such. The plan would have changed little about the park’s use, which was the point. But there was enough resistance from Williams, the community, and around half the City Council that Rawlings had to halt his plan to turn the park over to his hand-picked establishment representative, and put the thing out to bid. That process could wrap up by January.
The reformers have been pressing hard for a look at the State Fair’s books since an audit last year found that the city had no way of verifying whether the fair was complying with their contract and reinvesting “excess revenues” in the park. My own analysis found the fair far short of compliance.
For just one example of the sort of conflicts of interest that block the city from holding the fair accountable, look at the Dallas Park and Recreation Board, whose president, Bobby Abtahi, was a part of the “core team” trying to acquire the park without going through a bidding process, according to that group’s own emails. So it shouldn’t be a surprise that the Park Board, which has members pushing for more scrutiny, found itself cut out of the loop this summer, with Abtahi set to work out the “excess revenue” question himself with the cronies at the fair.
In 2015, an Austin attorney named Jennifer Riggs filed a public records request with the State Fair seeking a look at the books. The fair is a nonprofit corporation, but in Texas even a corporation “that spends or that is supported in whole or in part by public funds” is subject to the state’s open records act, or at least that “part, section, or portion” of the organization that is publicly funded.
The State Fair, though, didn’t want to turn over the records. We already know from public records that the fair grossly overpays its executives and lies about its attendance and economic impact. The fair doesn’t want the truth about the rest of its operation getting out.
There is a long-established, well understood procedure in Texas law for an entity to contest a public records request; it requests an opinion on what must be disclosed from the Attorney General, who issues thousands of them each year. State law also states that “A governmental body… or other person or entity that files a suit seeking to withhold information from a requestor may not file suit against the person requesting the information.”
The fair followed neither law, and instead sued Riggs for daring to ask for the records. Riggs fought back, using Texas’s version of an anti-SLAPP law, the acronym standing for strategic lawsuit against public participation. Some 28 states have these laws, which are meant to protect public debate — by citizens, journalists, activists, whomever — from wealthy bullies who abuse the court system. But only Texas, so far as I know, has managed to pervert the law into having the exact opposite effect, thanks to the state Supreme Court’s philosophical opposition to the exercise of common sense.
Riggs won initially, then lost on appeal, then filed a lawsuit when the fair dismissed its own lawsuit (the fair was just stalling and trying to avoid depositions). Here’s the twist: the fair then used the anti-SLAPP law against Riggs, claiming she had infringed its own rights, and not only got the suit dismissed, but won some $236,000 in lawyer’s fees and sanctions, which the judge knocked down from $642,000.
Here’s what that means: anybody in Texas who tries to scrutinize any sort of public-private partnership, any arrangement where tax dollars are ending up in the pockets of well-connected individuals, faces the risk of hundreds of thousands of dollars in penalties. It also means the mayor of Dallas is responsible for sponsoring and subsidizing this vicious anti-taxpayer, anti-accountability conduct by his friends.
There’s a reason Texas leads the nation in crony capitalism. And it starts with the state Supreme Court, a body that’s too inconsistent in its rulings to be easily summed up. But let me try.
The first thing to understand about the Supreme Court of Texas is that it always puts the interests of the establishment and of the donor class ahead of any notional respect for the public or accountability. The second is that it practices a form of textual interpretation that I’d call judicial autism. You can never be quite sure how the court will interpret the law, but the ruling will usually display some sort of literal-mindedness that misses the point. Where those two tendencies are in conflict, the former wins out, as the court is shameless about rewriting the law to suit the needs of big government and moneyed interests.
These traits are what created the present mess, through three rulings, in particular.
The first, called Greater Houston Partnership v. Paxton, was a blatant bit of judicial activism from 2015, where the court decided that private groups wouldn’t usually need to share their records after all. The law said they did if they were “supported in whole or in part by public funds,” but the court didn’t like that one bit, not where a group of high-profile Houston business leaders were involved. So it decided “supported…in part” really meant “sustained by public funding” almost entirely.
Of course, even under that high standard, one could argue that the effectively free year-round use of a massive public park qualified as “sustaining.”
But how is the State Fair able to sue a records requestor? This is only partly the Supreme Court’s fault. In the ’90s, SCOTX allowed the City of Garland to disregard the prescribed route for arguing about public records and to file a lawsuit against the Dallas Morning News. As that case went through the courts, the legislature fixed the law in 1995 by specifically prohibiting lawsuits “against the person requesting the information.”
So SCOTX’s ruling in 2000 was based on the law in 1993 when suit was filed, not the 1995 law that stands today. But that apparently escaped the notice of the Dallas appeals court that ruled in favor of the State Fair, citing Garland, which has long been moot. In its defense, the Dallas court knows very little about public records law, because those cases are normally heard in the correct jurisdiction of Travis County, where Austin is located.
In 2011, Texas passed its anti-SLAPP law, called the Texas Citizens Participation Act, which is similar to model legislation passed in other states. The law states that its purpose “is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government,” but that was apparently too vague for SCOTX to comprehend.
In two rulings now, SCOTX has held that this law meant to cover public discussion and participation in government is applicable, well, to just about anything involving two people talking. “The plain language of the statute imposes no requirement that the form of the communication be public,” the court ruled, missing the entire context. No other state has struggled with this, as far as I know, as no other state has a Supreme Court so unwilling to engage in rudimentary statutory construction.
So now, there’s this mushrooming legal subindustry applying this distorted First Amendment law to disputes that have nothing to do with government. Get hit with a wrongful termination claim by an employee? Is your company in oil and gas, health care, or any other industry that government regulates? Do you have internal emails about the employee’s performance? Then you can prevail on a claim that the employee’s lawsuit infringes on your rights under TCPA, and get it dismissed almost instantly.
One appellate judge noted in an opinion that if he happened to roll over in bed one morning and talk a little shop with his wife, that would apparently be covered by the TCPA, too.
The court’s interpretation of the law is so all-encompassing that it actually empowers a wealthy quasi-public agency to bully a voice for accountability, the exact opposite of what the law was meant to do.
The legislature can try to fix this. But the court’s not going to abandon a philosophy that’s opposed to common sense on principle. The most we can ask is that it pay a little more attention to the meaning of the words “public” and “private.” Don’t apply laws protecting public debate to private conversations. And don’t make privacy statutes out of laws meant to guarantee public access to public records of public money.