Case Studies of Resolving Public Disputes
In addition to developing dispute resolution systems, a primary focus of the Center is to assist governmental entities in resolving specific public policy disputes. The Center has helped numerous state agencies and local governments plan for the resolution of specific disputes and secure the services of neutrals trained in resolving public disputes. The following is a brief summary of key cases successfully completed by the Center and Center Fellows:
Mediation: Houston SIP Litigation
The Center facilitated a policy dialogue and settlement negotiations, with the assistance of a Center Fellow, regarding the federal litigation over the Texas State Implementation Plan (SIP) for attainment of the federal Clean-Air Act ground-level ozone standard in the Houston-Galveston area. Although other Texas regions are classified as non-attainment, only the Houston-Galveston area is classified as a “Severe” non-attainment area for ground-level ozone. At the request of the United States Environmental Protection Agency (EPA) Region 6, the Center assisted in bringing together environmental groups, business representatives, and federal, state, and local governmental officials to discuss the policy, legal, economic and scientific issues critical to resolution of the federal lawsuit. The Center provided consultation on the convening process, developed objectives, ground-rules and agendas, and facilitated the two-day session. The facilitated negotiations gave all parties a valuable opportunity to discuss issues and interests in a common setting and to initially evaluate options for resolving some of their differences.
Partnering: EPA Region 6/ TCEQ
In 2000-2001, the Center, with the assistance of a Center Fellow, provided assistance in planning and facilitating intergovernmental partnering between EPA and the Texas Commission on Environmental Quality (TCEQ), formerly the Texas Natural Resources Conservation Commission. In the most recent project, the Center conducted a survey and evaluation of the effectiveness of the agencies’ partnership efforts since 1999. The findings are contained in a publication entitled “Report Evaluating Progress Toward Joint Agency Cooperative Partnership” issued in late fall of 2001. The successful completion of the evaluation made a significant impact in changing agency interactions in the administration of the water, air and waste programs.
Policy Dialogue: HB 826
In Texas, the principal of sovereign immunity prevents most lawsuits brought to resolve contract disputes between the government and its contractors. In 1999, the legislature passed HB 826 setting out a new dispute resolution process to provide an administrative forum for contract disputes against the state, Tex. Gov’t Code Ch. 2260. The Center facilitated a policy dialogue on behalf of the Office of the Attorney General to develop model rules and contract language required by HB 826. This collaborative group process for the government and its contractors involved implementation of statutory provisions creating a new contract dispute process for contractors and a model ADR clause for all governmental contracts affected by the legislation.
Community Consensus Building: Redevelopment of East 11th & 12th Street Corridor
In 1997, the mayor of Austin elicited the Center’s assistance in resolving a long-standing community dispute between community members and the redevelopment authority involving control and direction of development. The city had secured funds, which it was in danger of losing, for the redevelopment of a sector of East Austin suffering from protracted economic decline and urban neglect. The Center, with the assistance of a Center Fellow, brought all interested parties together for a formal consensus building process that resolved disputes and allowed the City to restart the redevelopment process.
Negotiated Rulemaking: Regulation of Medicaid Beds in Nursing Homes
A 1997 statute directed the Texas Department of Human Services (DHS) to establish procedures for decertification and reallocation of Medicaid beds in nursing facilities. In consultation with the Center, DHS chose to use negotiated rulemaking to develop the new regulation. In September, 1997, DHS engaged the Center and a Center Fellow to facilitate the process. The negotiating group included representatives from governmental agencies, nursing home and hospital associations, and advocacy groups for nursing home patients. Many of the stakeholders were initially skeptical, but through negotiation, information sharing and facilitated dialogue, the group was ultimately able to reach consensus on a complete set of rules covering the subject by January 1998.
Policy Dialogue: Electric Utility Restructuring
Prior to the 1997 legislative session, two Texas legislators engaged the Center to facilitate a negotiation-based effort to restructure Texas’ electric utility industry. At the legislators’ request, the Center put together a facilitation team to assist negotiations late in 1996. After initial discussions, it became apparent that although participants were interested in exploring each other’s perspectives, they were not in agreement that negotiating a deregulation bill was desirable at that time. As a result, the group then shifted to the policy dialogue model. Although the effort did not produce consensus on legislation regarding restructuring, new issues were discovered, some potential resolutions were identified and several areas of disagreement were narrowed for many of the parties.
Community Consensus Building: Extension of Wastewater Service in Travis County
The City of Austin Water and Wastewater Utility contracted with the Center in 1996 to increase the use of consensus building techniques in the Utility’s community interactions. The Utility specifically sought assistance in implementing a consensus process for a dispute regarding extension of wastewater service in environmentally sensitive southwest Travis County. The Center worked closely with the Utility to identify and interview stakeholders, structure the consensus process, select facilitators/mediators, analyze feedback about the study from stakeholders and organizations, and provide information regarding conflict resolution processes. The stakeholder committee worked to find environmentally acceptable agreements on whether wastewater service could be extended, how any needed service extension should be designed and how costs would be shared. The negotiating group ultimately submitted a consensus report approved by the city councils of Austin, Rollingwood and West Lake Hills. Approval of the report opened the door to further negotiation of inter-local agreements between the municipalities. A successful bond measure in 1998 secured funding for implementation.
Negotiated Rulemaking: Development of Timberland Taxation Appraisal Manual
The Texas Comptroller had used a traditional rulemaking process to update the Manual for the Appraisal of Timberland, which affects the price of all timber sold in Texas. Responses to the Comptroller’s initial rule were unacceptable, and the Comptroller decided to engage in negotiated rulemaking. Through an interagency contract, the Center helped in designing the negotiated rulemaking process, convening the negotiating group, developing ground rules, and facilitating the meetings with the help of a Center Fellow, Tom Reavley. The result was a consensus on revisions to the Manual.
Mediation: Texas Education Agency and Advocacy, Inc. Litigation
The Center staff mediated a settlement in a long standing case: Angel G., by Next Friend Valerie Crowley et al., v. Texas Education Agency, et al. This federal suit, filed by Advocacy, Inc. in early 1994 dealt with delivery of educational services by TEA and local school districts to disabled children living in residential care facilities throughout Texas.
Negotiated Rulemaking: Rules for Oil Spill Damage Liability Assessment
Legislation passed in 1993 directed the Texas General Land Office (GLO) to use negotiated rulemaking to develop rules regarding oil spill damage assessment on the Texas Coast. The legislation directed development of identical rules by each Texas natural resource “trustee,” the GLO, Texas Parks & Wildlife Department, Texas Natural Resource Conservation Commission, and other stakeholders. The Negotiated Rulemaking Group (NRG) established by GLO included the three government agencies, industry stakeholders and environmental groups. The Center provided the NRG with negotiated rulemaking training, initial group facilitation, planning and consultation on negotiated rulemaking procedures and selection of facilitators. Ultimately, the NRG developed a set of consensus rules that was adopted by all three trustee agencies.