Vendor appeals Carson City garbage decision
November 19, 2018
One of the five vendors that replied to Carson City's request for proposal for waste management services is contesting the city's recent decision.
C&S Waste Solutions, represented by the law firm McDonald Carano, sent a notice of appeal to the city, contending the decision was "arbitrary and capricious," based on a flawed agenda and incorrect legal advice, and should be rescinded and redone.
In reply, the Carson City District Attorney's office said the legal arguments were without merit and the vendor wasn't entitled to an administrative appeal by law or municipal code.
At its first meeting this month, the Board of Supervisors voted to enter into negotiations with Waste Management of Nevada for the city's next trash collection and recycling service contract starting in July.
Five vendors submitted proposals and a consultant, Sloan Vazquez McAfee, and city staff recommended the board work with Waste Management.
C&S scored second in the consultant's evaluation. Its proposed residential rates were 36 cents a month higher than Waste Management's rates while its commercial customer rates, which vary based on waste amount, were overall higher. The contract, which contains many requirements, is awarded based on value and not necessarily the lowest bid.
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The agenda item specified Waste Management, based on the staff recommendation. During discussion, Supervisor Karen Abowd made a motion to enter into negotiations with C&S. Daniel Yu, chief deputy district attorney and board counsel, told the board it was restricted by the language of the agenda item and could take action on Waste Management or take no action.
The motion was withdrawn and later replaced with a motion to enter into negotiations with Waste Management, which passed on a 3-1 vote. Supervisor John Barrette voted no and Supervisor Brad Bonkowski recused himself due to a conflict of interest.
In its notice of appeal, C&S's attorneys, Josh Hicks and Lucas Foletta, argue open meeting law allows the board to amend the motion proposed by staff and chose a different vendor.
The city disagrees.
"My office reviews all board agendas prior to publication, and contrary to what Mr. Hicks alleges, the language used for the agenda item was entirely lawful. The Board of Supervisors, city staff and my office are always mindful of helping strike the appropriate balance between addressing concerns of the public and municipal efficiency, but never at the cost of government transparency and compliance with the law," said Yu. "The Open Meeting Law is a legislative framework of rules enacted to promote transparency and it is not intended to be stretched and molded for the convenience of government officials or private actors who hope for a certain outcome. I stand by the legal advice I provided on the record as counsel to the board, which I am confident was fully consistent with statutory requirements under the Nevada Open Meeting Law, as well as case law and Attorney General opinions interpreting those provisions."
C&S is weighing its options going forward.
"On Nov. 1, the Board of Supervisors was told that they could not consider a lawful motion to negotiate a franchise agreement with C&S Waste Solutions. Our appeal makes a simple request — allow the board to vote on that motion," said John Shea, CEO, C&S. "We are disappointed that board staff has not only denied our appeal without first taking the appeal to the board, but has also stated that no vendors have any appeal rights. We will be evaluating our legal options in the coming days."