TxDOT Commissioner’s Intervention on Project Questioned

Austin American Statesman
Sunday, December 21, 2014
By Asher Price

With its traffic analysis languishing at the Texas Department of Transportation, a Georgia-based company hoping to build a controversial landfill in Caldwell County was looking for help.

So two of Green Group’s lobbyists turned to a commissioner at the state transportation agency, who also serves as second-in-command of a consulting firm where they are both associates.

Within a week, the politically connected commissioner, Jeff Moseley, had contacted the Austin district engineer — someone not part of the headquarters administrative team — to ask about the project, emails obtained by the Statesman show. Shortly thereafter, state engineers decided to accept, with some ambivalence, the company’s traffic analysis of how the landfill would affect an accident-prone stretch of road.

The Texas Ethics Commission, alerted to Moseley’s involvement by a Caldwell County rancher opposed to the landfill, has ruled that there is not evidence available to determine that the episode runs afoul of state law, but it raises questions of propriety as Moseley’s outside business interests appear to give him a stake in the outcome.

The ethics complaint was filed by Rob Kohler on behalf of his father, Dan Kohler, who owns 130 acres of ranch land about two miles from the proposed landfill.

A proposed landfill in Caldwell County has some of the hallmarks of a standard landfill fight: an out-of-state company says it … read more

“One side of me says he was just getting the process going,” Dan Kohler said. “But he should have been smart enough to have steered clear. Either he was acting out of stupidity or full knowledge.”

Moseley, who was appointed to the transportation board by Gov. Rick Perry and earns $15,913 annually for his work on the commission, declined to comment.

Carl Griffith, head of the consulting firm Griffith Moseley Johnson and Associates, said his firm has been working with Green Group for several years.

Griffith said Moseley, the firm’s executive vice president, has “never met anyone with Green Group” and “doesn’t even know what’s going on in Green Group.”

Moseley, who had served as a county judge in Denton County and had headed economic development initiatives for Govs. George W. Bush and Perry, “is one most the ethical and religious people I know,” Griffith said. “No one would ever propose Jeff would do anything unethical or wrong for any money in the world.”

He declined to say how much money the consulting firm has been paid by Green Group.

But this year alone, Green Group will pay two associates of the consulting firm as much as $100,000 each for their lobbying work, according to state lobbying records.

It was those two lobbyists, Ralph Marquez and Dan Eden, two former high-ranking state environmental officials, who turned to Moseley in January for help, frustrated with a lack of progress on the traffic impact analysis.

Green Group needed TxDOT engineers to sign off on the traffic impact analysis it had submitted before it could move forward with the permit process at the state environmental agency.

The 130 Environmental Park, as it’s been dubbed by Green Group, will include a landfill, a recycling facility and an industrial park. The 1,200-acre parcel — 250 acres of which will be dedicated specifically to burying waste — is largely flat, undeveloped land just east of Texas 130.

According to Green Group’s application, the landfill will operate for 44 years and accept 26.5 million tons of waste, enough to nearly fill the Empire State Building if it were completely hollow.

The traffic impact analysis submitted to TxDOT focused on a several-mile stretch of U.S. 183 that has seen three fatal crashes in the past five years and another pair of crashes that left people with incapacitating injuries, according to TxDOT records requested by the Statesman.

The landfill and recycling center will eventually generate 900 trips a day, increasing traffic by 3.3 percent in the area, according to the analysis, which calls for a northbound right turn deceleration lane into the facility.

“US 183 will be adequate to handle the predicted volumes of site traffic throughout the life of the 130 Environmental Park facility,” concluded the study, paid for by Green Group.

The emails obtained by the Statesman show that Moseley stepped in as the the landfill project faced a key deadline for approval.

On Jan. 28, Eden and Marquez wrote Moseley: “The TxDOT coordination is critical to our project and would need to be included in our next submittal to TCEQ which we anticipate before the end of February.”

“We appreciate any help you can provide to expedite TXDOT’s review of this project,” they wrote.

On Feb. 4, Moseley wrote directly to Greg Malatek, the district engineer for TxDOT’s Austin regional office, which oversees Caldwell County, asking to meet that afternoon to talk about the traffic impact analysis and forwarding the note from Eden and Marquez.

At no point in the email did Moseley disclose that his consulting firm has a relationship with Green Group.

On Feb. 13, Eden wrote Moseley to thank him for his help — and to tell him things remained unsettled.

Several days later, Moseley nudged again: He forwarded Eden’s note to Rose Walker, TxDOT’s chief clerk, asking her to distribute it.

“Greg, this is a follow up from an earlier request from Moseley,” Walker writes Malatek that afternoon. “Is there a status update?”

The following day, Malatek wrote Walker and Moseley back that his team would make a final review the next day.

By late February, the transportation agency gave preliminary approval to the traffic analysis.

The Ethics Commission declined to comment on its ruling, which concludes that there is no evidence of a direct benefit to Moseley for his intervention.

“The complaint did not include any evidence or allege facts to show that the respondent offered or accepted anything of value” as prohibited by law, said a Nov. 20 letter. “Therefore,” it concludes, “this allegation will not be considered by the Commission.”

Asked whether he thought Moseley had a conflict of interest, Eden said Moseley has not been involved with Green Group matters.

“When we asked for his help, I didn’t even think it could be a potential conflict of interest — and I don’t think he did, either,” Eden said. “It was simply an inquiry to get some action. It’s pretty typical TxDOT would do that in a certain time frame, and we were not sure what the issue was.”

“As a former commissioner, if something goes wrong at the agency, if the agency is not doing its job, I appreciated someone telling me,” said Marquez, who served as a commissioner at the state environmental agency.

“If I had asked him, ‘Can you get this report approved?’ I’d see that as a violation of the rules. But asking where it’s at and why it’s not moving, that’s a procedural thing.”

Texas ethics laws discourage all public officials from accepting employment that could create a conflict of interest with their roles in state government. And under state law, an appointed officer — such as Moseley — who votes on a matter in which he or she has a personal interest can be removed from office. But the traffic analysis study was not a voting matter, and there is no evidence that he asked the TxDOT staff to decide a certain way.

Whether an appointee with a financial stake in a decision is allowed to advocate at the staff level is not addressed directly in the law.

“Board members are required to oversee their agency,” said Natalia Ashley, executive director of the Ethics Commission, who was not specifically addressing the Moseley case. “Implicit in that is that they communicate with staff.”

A TxDOT spokeswoman said district-level staff members have contact with a wide variety of people, including commissioners, elected officials, the media and the public.

Angela Evans, who teaches ethics in government at the LBJ School of Public Affairs at the University of Texas, said that even the ambiguity of whether Moseley acted properly can be troubling.

“If you’re an official in Texas, when you take your oath in a public service position, you’re making an ethical decision to work for the public and not for yourself,” Evans said. “Picking up the phone to ask where something is is not in itself unethical. But at least there’s a perception of impropriety, and that doubt undermines the trust of the public. Officials should err on the side of being extremely conservative.”

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