BISD BOARD SHUNS LAWYER ON PROPOSED LETTER OF INTENT

5. Discussion, consideration and possible action to execute a Letter of Intent for the formation of a Public Private Partnership regarding the purchase, exchange, lease or value of real property for the planning of a Performing Arts Center

By Juan Montoya

During Tuesday's meeting of the board of the Brownsville Independent School District, there was much teeth-gnashing and wringing of hands at the thought of having the superintendent sign a Letter of Intent to explore the formation of a Public-Private-Partnership to establish a Performing Arts that would also provide a hospitality and culinary industry curriculum.

The LOI is the first step toward potentially having the BISD, a local university, and private investors explore the idea of collaborating toward the establishment of that facility, estimated by some observers to come at at between $40  $50 million.

After much discussion – sometimes contentious – the LOI was approved with a 4-3 vote with Cesar Lopez, Carlos Elizondo, Laura Perez-Reyes and Joe Rodriguez voting to approve and Dr. Sylvia Atkinson, Minerva Peña and Phil Cowen against.

For years now, the BISD has envisioned the implementation of a hospitality and culinary instruction curriculum to complement the tourism sector in the Lower Rio Grande Valley. However, with dwindling state resources and the sprouting of other vocational-technical institutions, it could not see a way to implement those plans.

Now, with the so-called P3 alternative mechanism adopted by federal state and local entities, the BISD has seen a possibility to design, build, operate such a facility combining the financial abililties of the partners to make it happen.

It is  novel idea in the Rio Grande Valley, and the trustees' lack of knowledge with the concept was evident. Some, like Peña, who constantly harps about "the kids" and protecting the district's finances, was vociferous about the lack of detail in the LOI. She, apparently under the impression that if the signing of the LOI was approved it would commit the district to the project.

Others, like Cowen, felt that the public had not been included.
"Everything we do has to be public," he said.

It didn't help that BISD general counsel Baltazar Salazar apparently flip-flopped on including the item on the agenda, even after having met with administrators, including Zendejas, Ken Lieck, and Lorenzo Sanchez earlier, revising the item, and then giving his stamp of approval for the incusion of the item on the agenda.

"My recommendation (was to pull it) because there wasn't any detail  and it doesn't fall within the guidelines...," he said, getting cutoff by Lopez who reminded him that his position a few hours earlier was to include it in the meeting.

"I'm a little surprised you say that," Lopez said. "When we reviewed it you were OK with it, then you do a complete 180 (degrees). This is strictly exploratory. We're not obligating the school district to anything."

This is not the first time that Salazar has issued opinions concerning the inclusion of the LIO  and has given questionable opinions on it. In last month's meeting he also pulled the item from inclusion in the executive session saying that state law prohibited it from being discussed. However, when other attorneys in the region were asked, they disputed his interpretation of the law.

According to the TEA guides, a number of issues can be discussed in closed meetings including
attorney consultation, real estate negotiations, personnel matters, real-estate acquisitions, and  economic development negotiations, among others.

The hospitality industry industrial facility LOI clearly falls under this last category. The board is not required to conduct an open meeting to "discuss or deliberate regarding commercial or financial information...received from a business prospect that (it) seeks to have locate, stay or expand, in or near the district...or to deliberate the offer of a financial or other incentive to such a business prospect. Texas Government Code 551.087

Yet, according to sources close to the discussion between Salazar and the facility's proponents, when confronted with the citations and attorneys' opinion, Salazar is said to have told them that he didn't permit the item to be heard by the board "por mis huevos."

Sources say that some trustees felt that they had been deliberately misled by Salazar and wondered whether grounds existed for either his removal, or whether those actions could constitute grounds for complaints to the Texas State Bar.  Salazar is getting paid $280,000 a year and had attempted to expunge three felony convictions but the Texas Department of Safety objected and they remain on his record. A previous board - which included Pena - voted to hire him anyway.

LOI supporter Carlos Marin addressed the board to tell them that a confidentiality clause in the LOI was there to protect the concepts they were advancing and that it would disappear after the discussions regardless of whether the plan was carried forward or not.

"This only applies to the LOI," he said. "If there is no agreement to go forward, it disappears."

The Public Private Partnership proposal is not on the table, he told the board. The LOI, he said, is merely an exploratory interim agreement. Even after the private partner submits to BISD a proposal, Under the LOI and the P3 guidelines, BISD is under no obligation to consider or evaluate the proposal, he added. If BISD decides to not consider or adopt a proposal from the private developer, the LOI terminates with no obligation by either party.

Still outside the LOI and P3 process are the proposed facility’s specifications (location, size, configuration etc); how it would be potentially operated and shared with the institution of higher education; what other higher education partners could be brought into the mix; how the facility would be financed; and the legal framework to name a few.

The LOI provides BISD a framework for exploring and addressing these questions in a timely, non-binding way and at no cost to BISD, he said.