By Peter White
NASHVILLE, TN — The soccer stadium inquiry in Chancery Court last week was a bit like the impeachment hearings in Washington. Two alternate realities played out in Chancellor Ellen Hobbs Lyle’s courtroom: one reality-based, the other a blanket denial of any wrong-doing with the soccer stadium deal at the Fairgrounds.
Metro Attorney Lora Fox told Chancellor Lyle that three stadium contracts have been awarded. She said Populous received the contract for the stadium design on August 15, 2018, Mortensen/Messer received the stadium construction management contract on March 6, 2019, and Kimley-Horn received a contract for infrastructure design on July 25, 2019. That much is true.
But insiders who had a financial interest in the project corrupted the awards process. (See Bid-rigging)
“These are not abstract concepts,” Fox told Lyle. “These entities are going forward and incurring costs and provided quite a bit of work on these projects ever since that time.” Really? No dirt has been dug. Not one spade full. According to the Fairgrounds Improvements Project Manager, Ron Gobbell, planning for the soccer stadium is less than half done.
“The soccer stadium is at 35% design phase. It’s been priced by the construction managers. We are going through an extensive and very detailed value engineering review of that,” Gobbell said.
He addressed the Fair Board on November 12, 2019. He said the design of the Fairgrounds infrastructure project was 30% completed and that the construction would be bid sometime next Spring.
So, Metro Attorney Lora Fox didn’t bold-face lie to Lyle but she conflated planning with construction and that is incorrect and deceptive. The old Expo buildings have not been torn down and they have to be demolished before the stadium can be built. There is no construction equipment on the soccer site.
What kind of construction management can Mortenson/Messer be doing if there is no construction going on for them to manage? And so telling Chancellor Lyle that they are on the job and incurring costs is stretching the truth quite a bit. They’ve not spent a dime. If they have, somebody else is paying for it because Metro isn’t. On November 26 Metro’s Department of Finance confirmed that the stadium bonds have not been issued yet.
Metro Attorney Lora Fox’s legal argument is that the plaintiff, Save Our Fairgrounds, does not have standing to sue. She made the same argument November 2018. Lyle decided they did have standing but she granted Metro a summary judgment in January 2019. Plaintiffs appealed, won, and the case is back in Lyle’s court.
Plaintiff attorney Jim Roberts asked Lyle to dismiss Metro’s motion to dismiss. She denied it and instead took Metro’s motion under advisement and will rule in the next few weeks.
The arcane argument Fox made concerns legal process—something called a Writ of Certiorari which is generally used to appeal an administrative board’s decision. It is a way of getting a Chancery Court to review an agency’s action.
Metro Attorney Lora Fox told Lyle that the plaintiffs did not file one in time. She said the proper procedure was to file a complaint with the Procurement Appeals board and since they did not file within the 60-day window, they forfeited any chance for standing in the court.
Plaintiff attorney Jim Roberts pointed out that the plaintiffs weren’t jilted bidders in the soccer contract-letting but as taxpayers they have a right to sue. That is what Chancellor Lyle will have to determine.
“We didn’t file a certiorari because it doesn’t apply,” said Roberts. “We filed a declaratory action to ask the court to decide that it is illegal to put non-metro employees on a procurement committee. really it’s bid-rigging,” he said.
As the Tribune reported in the Fort Negley case, when Metro was trying to put a private development on that historic public site, Metro’s procurement office has a history of making questionable contract awards to City Hall insiders. In that case it was builder Bert Mathews who stood to make millions on the same ground where runaway slaves fought and died with Union soldiers during the Civil War.
Metro Attorney Lora Fox is basing her legal case on Metro’s procurement procedures that often favor the well connected and faulting the Fairgrounds preservationists for not following the rules of the very department that is up to its neck in the same corruption they are suing about.
Ellen Hobbs Lyle is very careful to address the legal issues litigants bring to her court. She asks a lot of questions to make sure she understands all the relevant facts. In this case, she is like Dorothy when the Wizard of Oz tells her not to pay attention to the man behind the curtain. If she listens to Metro Attorney Lora Fox, Lyle won’t pull it back. If she listens to Plaintiff attorney Jim Roberts, she will.
