Rules for public-private deals are OK, but pick proper rules
Written by Michael Lewis on September 5, 2017
To expedite public-private partnerships and unsolicited proposals for deals with Miami-Dade, commissioners are being asked today (9/7) to toss out every word of county code on the topic and add a whole new version.
Even if we agreed entirely with fostering a new wave of deals that could wind up with companies controlling public lands, buildings, transit systems, infrastructure and far more, we’d urge moving slowly and carefully to set rules of the game.
And since one provision of today’s item states that two-thirds of commissioners at any meeting could waive any rules anywhere in county code in any public-private partnership, we’d suggest going far slower yet. Why in the world should that open-ended ability to circumvent all rules that have ever been enacted be in this legislation?
In fact, while this legislation containing every word of 10 proposed new pages of code is offered by Commissioner Jose “Pepe” Diaz, it reads like it was proposed by a company that wants to cut major deals with the county and is seeking to eliminate any barriers – or safeguards – upfront.
The proposal does throw commissioners the usual bones that all unsolicited offerings would show “how the project would benefit small and community based contractors” and list small business enterprises that would participate, but those are window dressing in big deals that give cover to commissioners who vote yes.
Today’s vote is preliminary. A hearing and second vote would follow.
But before commissioners get too far along, they have a lot to satisfy themselves about.
Like, why throw out a whole code and replace it entirely while adding a raft of new provisions? What would be lost from code that commissioners had approved before? Does it still have value?
Or, what do the experts say? We aren’t expert in such deals, and presumably Commissioner Diaz isn’t either. So, where do the concepts in his proposals come from and who has vetted them?
If I were a commissioner I’d be asking my law department and deputy mayors and outside experts what the true impact of the new rules would be and what safeguards the public would have. I’d also be asking the International City/County Management Association for national standards – they do exist.
I’d also want to know what exactly proposed “cone of silence” provisions mean to the public learning about private offerings that affect the public’s holdings. Doesn’t the public have a right to learn at the outset that someone wants some of our land or our roadway or transit infrastructure or wants to build something for us and keep the profits?
Under the legislation, all those offerings would be made to the mayor but the commission could accept a private proposal even if the mayor and professional staff determined that it didn’t meet county needs or was a bad deal.
In fact, one concern about unsolicited proposals for contracts and public-private partnerships is that they allow outsiders to set our priorities both for our public assets and for public focus.
Any of these deals could be great in every aspect, but once any major offering, good or bad, gets to the table, that project captures the county’s focus, whether or not it meets a public need. It becomes a deal to be cut, even if it should never have been on the table at all.
Public-private deals are attractive to officials who see private funds as a solution to all funding gaps.
But investors need a big profit to cover a government deal’s red tape, whereas government projects need only break even and serve the public. So either the private partner has to be far more efficient than the county could be on a project – which is sometimes true – or it has to be getting something valuable from government to make the deal work.
There don’t seem to be safeguards of government assets in this enabling legislation except that the county could not pledge its full faith and credit in a deal. Even that safeguard, however, could be wiped out by a two-thirds commission vote any day.
Commissioner Diaz is absolutely correct that the county needs rules of the road to drive public-private and unsolicited deals to their proper conclusions. But before we get out on the highway, the county needs rules that meet its needs and safeguard public assets better.
For example, the rules Mr. Diaz offers would allow the mayor to waive public bidding anytime in any deal. That would make it far easier for a company to propose a deal with the county and avoid competition, but that isn’t always in the public interest. Private industry seeks multiple bids to get the best deal. Why isn’t that good policy for the public too?
Again, the idea of rules is fine. But go slowly, ask the experts, and be sure that the rules are crafted to benefit the public, not just would-be business partners.
These deals are likely to involve major public assets. They’ve got to be win-win, not win-lose.