May 13–Last week, the Missouri Highway Patrol realized it had a problem.
But it took the state’s most high-profile law enforcement agency three tries to admit it.
Like Henry Winkler’s old character “The Fonz” on the ’70s television show “Happy Days,” saying “sorry” proved to be difficult.
On May 9, the patrol announced it had reached a contractual arrangement with two companies to provide technology to truckers and state regulators who would allow truckers who meet certain safety standards to bypass weigh stations, saving time and money.
Because of the contracts (there is actually only one, but more on that later), the patrol said it would stop serving on the board of one of the companies, the nonprofit HELP Inc. The Missouri Department of Transportation issued a similar news release.
Neither news release mentioned the ongoing FBI investigation into the practice, first reported in my column in April. Nor did it mention state Auditor Nicole Galloway’s parallel investigation.
On May 10, the patrol upped the ante. An internal review, it said, had discovered “concerns with actions” of previous patrol employees, and the review had been forwarded to Attorney General Josh Hawley. That makes three investigations with the patrol yet to admit the central problem.
It is an unbelievably obvious conflict of interest for state regulators to sit on the board of a company that they regulate.
Finally, Department of Public Safety Director Drew Juden, in a third news release in two days, found the words: “I commend Colonel Sandra Karsten and the Highway Patrol for ending the years-long practice of having a Patrol representative serve on the board of directors of a vendor. Even the perception of a conflict of interest can diminish the public trust.”
Perhaps Juden had actually read the memo issued on May 1 by the associate administrator of enforcement for the Federal Motor Carrier Safety Administration.
That memo lays out clear guidelines for the proper use and accounting of federal grants, which Missouri and other states had been using to pay HELP Inc. for the privilege of having state regulators sit on their board. The memo lays out unallowable costs, including spending any of the federal funds on lobbying, and travel expenses meeting federal per diem guidelines. The memo makes it clear that state organizations must keep a clear accounting of such spending, particularly on lobbying, to make sure that none of it is spent “illegally” contrary to federal law.
Federal motor carrier spokesman Duane DeBruyne said the memo was a restatement of “long-standing federal regulations.”
Two sources with knowledge of the discussions that led to the May 1 memo from the federal government — which was sent to state officials and trucking industry representatives across the country — said it came about specifically because of questions raised by the FBI in its Missouri investigation.
In Missouri, HELP Inc. has three lobbyists. Its remaining Missouri board member is a lobbyist for the trucking association.
State officials won’t say what the patrol found in its internal review, but it is not difficult to imagine it will relate to the employment gateway that opened up between the state and the organization it was supposed to be regulating.
At least three former Missouri state employees have parlayed their former work on the board of HELP Inc. into employment with the company. One of them, former state patrol Superintendent Bret Johnson, has now filed amendments to his personal financial disclosures at the Missouri Ethics Commission going back to 2010, because he wasn’t disclosing his board membership as required by state law.
According to its website, HELP Inc. currently has state employees from 20 other states sitting on its board. Of the states in which it operates, California, Florida and Missouri have opted out of board memberships because of conflict of interest concerns.
Those concerns take on greater meaning when considering two contracts the state agreed to last month.
Indeed, the state recognized that both HELP Inc. and its major competitor, Drivewyze, had qualified to win requests for proposals for the weigh-bypass technology in the state. But it won’t allow Drivewyze to use the “weigh-in-motion” sensors already in state highways.
In every other state where those sensors are in place, put there by vendors and the states, the state owns the data, and competing companies can access that data and compensate the state for the proportional costs of maintaining them.
Missouri, on the other hand, wants Drivewyze to shut down major interstates and install duplicate sensors. The RFP process was handled by those state employees who were on the board of HELP Inc. at the time, and have now been removed because of the “perceptions” of conflict.
Drivewyze CEO Brian Heath said the company is still negotiating with the state over the new contract. He is pleased the people regulating his company no longer sit on the board of his competitor, but the ongoing FBI investigation and the separate rules for two companies cast a cloud over those negotiations:
“Fair competition is critical to a free market and any activities that can be construed as anti-competitive need to be properly examined,” he said. “States need to be wary of any vendors offering millions of dollars of free equipment as they may unwittingly be supporting a strategy by highly capitalized companies erecting barriers to entry against other companies wanting to enter the market. This ‘pay to play’ concept only restricts competition and hurts the trucking community, the cost of moving freight and ultimately, the taxpayer.”
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