October 8th, 2009
County contracts with ADR firm

Anna Bartkowski, left, and Walt Krudop, right, of Central Texas Alternative Dispute Resolution, discusses a contract with Hays County commissioners. Photo by Sean Batura.

By SEAN BATURA
News Reporter

Hays County Commissioners signed off on a program for alternative dispute resolution two weeks ago, giving low-income residents an inexpensive means for resolving civil disputes.

Commissioners voted, 4-1, to contract with Central Texas Alternative Dispute Resolution, Inc. (CTADR) after making last minute changes to the contract to include a mutual terminal clause and a means for the company to handle Child Protective Services (CPS) cases.

CTADR is a 501(c)3 organization created after a steering committee appointed about a year ago by Hays County Judge Liz Sumter (D-Wimberley) determined that  county needed an alternative dispute resolution (ADR) system.

CTADR’s executive committee includes Secretary and Executive Director Anna Bartkowski, Walter Wright as vice president and Walt Krudop as president. Bartkowski is a professional mediator on the board of the Texas Association of Mediators. Wright is an associate professor in the legal studies program of the Department of Political Science at Texas State, an attorney and former president of the Texas Association of Mediators. Krudop, a professional mediator, was president of the Fort Bend County Dispute Resolution Center and designed a dispute resolution program for Shell Oil Company.

CTADR mediated two CPS cases free of charge for the county in the last two weeks and conducted about five other mediations in the last three months. The five mediations were hosted on a trial basis by Hays County Precinct 4 Justice of the Peace Terry Kyle.

“I think that (the ADR system) has already proven itself to be a good program for us,” said Hays County Precinct 4 Commissioner Karen Ford (D-Dripping Springs) before the court voted for the contract.

Precinct 3 Commissioner Will Conley (R-San Marcos), the lone commissioner to vote against the contract, objected to awarding the deal without a bidding process and signing off on a deal with last minute changes that he was unable to review.

“I just got this contract four minutes ago, which makes me even less supportive,” Conley said.

Ford replied that a version of the contract, minus the changes commissioners discussed at the last minute,  was available in the court’s agenda packet. The county uploads the agenda packet for its upcoming meeting to its website every Thursday by the close of business.

Kennedy distributed a slightly different, updated version of the contract to commissioners at the meeting during which they voted on the contract. Before voting, commissioners discussed the changes and made one of their own.

The contract as originally proposed allowed either party to withdraw from the agreement only upon default by the other party. Precinct 2 Commissioner Jeff Barton (D-Kyle) suggested adding a “no-fault divorce option,” whereby the parties could mutually decide to terminate the agreement “at any time, for any reason or no reason.”

Bartkowski suggested that commissioners could instead choose not to renew the contract in the event that they no longer wanted CTADR’s services.

Barton said his desire for the mutual termination clause did not signify “any underlying reservations whatsoever,” but an acknowledgment that there may someday be reasons why either party might want to terminate the contract before its expiration date.

“That’s unforeseeable right now, but we have recent experience with some pretty big contracts that we thought might be there for a long time, (where) the parties have grown in different directions, and it’s sometimes useful to have a mutual termination clause,” Barton said.

Barton may have been referring to Buda City Council’s recent decision to not renew its contract its contract with the county for law enforcement services next year. The city pays the county $60,339.49 per month for nine Sheriff’s deputies to provide law enforcement for the city.

Buda decided to go in another direction after Hays County Sheriff Tommy Ratliff unilaterally demoted Bo Kidd, the popular captain of the Buda patrol.  Buda officials have expressed confidence that their city can put together a police force by April, when the county contract expires. The county would absorb the nine officers back into the Hays County Sheriff’s Office’s (HCSO) regular force.

Krudop said he agreed with the mutual termination clause. Sumter suggested that the mutual termination clause require the contract between the county and CTADR be in force 30 to 90 days after the date the parties agree to terminate. Barton said a clause allowing for termination at any mutually-agreeable time would be ideal. Sumter agreed.

“That is quite common in all of our contracts,” Sumter said. “It’s a very good clause to have, because, as Commissioner Barton points out, no one wants to accuse anyone of breach of contract for termination (reasons).”

CTADR asked, and commissioners agreed, that a clause be added to the contract allowing CTADR to accept CPS cases at its sole discretion, as long as the cases do not create an “undue burden” on its resources.

“The reason for that is, originally we weren’t intending to start the CPS program right away, but that has become a need that has really come to us from the community,” Bartkowski told commissioners. “And so we have decided to address that need.”

Two of the 17 CTADR mediators are trained to conduct CPS mediations. Bartkowski said CTADR may enter into another contract with the county if her organization finds an increase in its CPS caseload warrants more funding. Bartkowski declined to say what size CPS caseload might trigger a need for more funding and how much money CTADR might request.

A change to the contract suggested by District Attorney Civil Division Chief Mark Kennedy requires that the amounts of the payments the county makes to CTADR be subject to the approval of the county auditor before payment. Another difference in the final contract from the version posted online is a clause, also recommended by Kennedy, granting the county auditor the right to audit all CTADR accounts regardless of funding source.

CTADR had originally proposed to commissioners that it not offer mediation services involving couples with a combined income of more than $60,000, though the provision was not included in the contract.

CTADR is in the process of looking for office and mediation space. San Marcos attorney Anna Martinez Boling, recently appointed Judge in Hays County Court at Law No. 1 and member of the dispute resolution center steering committee, offered to donate office space to CTADR temporarily.

CTADR can mediate disputes between neighbors, employers and employees, consumers and merchants, landlords and tenants, among others. District court judges, county court-at-law judges and justices of the peace may refer certain cases to CTADR for mediation.

The kinds of cases judges will most often refer to mediation include those involving divorce child-conservatorship, child-support cases, instances involving individuals who choose to represent themselves rather than use a lawyer and cases involving at least one indigent party. Bartkowski said CTADR would be less likely to take a case if the amount in controversy were greater than $50,000, but there might be circumstances in which it might, such as if both parties were indigent.

“The principle is the same for family law cases,” Bartkowski said. “If the parties make a combined income of $60,000 or more, we would be more likely to steer them to the private mediation community because the assumption is that they don’t need to utilize the county’s resources to access low-cost mediation services.”

Bartkowski said the CTADR will charge $50 per party for a three-hour mediation, but may charge less depending on the needs of the parties.

County commissioners allocated $20,000 in the FY 2010 budget for CTADR, which received the sum upon the contract’s execution. The county will further fund CTADR by collecting $15 per filing on all civil cases filed in district and county courts and $5 per filing on all civil cases filed in justice of the peace courts, except suits filed by the county, suits for delinquent taxes, condemnation proceedings and proceedings under the Texas Mental Health Code. The contract obligates CTADR to provide “detailed” quarterly and cumulative annual reports regarding its activities and financial status to the county.

The contract between CTADR and the county will be in effect from Oct. 1 until Sept. 30, 2010, unless the parties agree to terminate it sooner or one of them is in default. The contract acknowledges CTADR’s independence from the county, including its right to enter into relationships with other public and private entities and individuals. CTADR may receive funding through federal and state grants.

Commissioners voted 4-1 on Sept. 1 to negotiate a contract with CTADR and to fund an alternative dispute resolution (ADR) system by collecting mandatory court fees. Conley said the ADR system’s involuntary funding mechanism was one reason he voted against the program.

The Sept. 1 ADR item, sponsored on the court’s agenda by Sumter, cited a discretionary exemption found in Texas Local Government Code 262.024 as a basis for not soliciting bids from other dispute resolution organizations.

Said Bartkowski, “Mark Kennedy made the determination that our group met the requirements for exemption from the bidding process due to our unique qualifications and knowledge of dispute resolution systems design, mediator training expertise, and position and involvement in the mediation community – locally, regionally and even internationally. There does not exist another group with comparable credentials in this field or similarly situated with the knowledge to develop (an ADR system).”