Councilman Sues Austin|to Bring Uber Back

     AUSTIN, Texas (CN) — An Austin city councilman has sued his mayor, to try to invalidate the May 7 election in which voters roundly refused to repeal mandatory fingerprint-based background checks for Uber and Lyft, driving the businesses out of the city.
     Donald S. Zimmerman sued Mayor Steve Adler on June 16 in Travis County Court.
     Zimmerman has battled the city over tax issues, and founded the Travis County Taxpayers Union Special Political Action Committee.
     Proposition 1 failed despite the millions of dollars spent by Uber’s and Lyft’s PAC, Ridesharing Works for Austin.
     The PAC submitted more than 23,000 signatures to get Prop. 1 on the ballot. It would have repealed the city’s 2015 ordinance and replaced it with a “citizen-initiated” ordinance (referred to as the 2016 ordinance in Zimmerman’s complaint). Both companies shut down operations in Austin after Prop. 1 failed.
     Zimmerman says in his lawsuit that the ballot language “misled the voters and omitted chief features of the amendment, distorting the true essence of the amendment.”
     He also challenges the efficacy of the city’s system of fingerprint-based background checks, passed in 2015 for Transportation Network Companies (TNCs) like Uber and Lyft. The system will be phased in, with 50 percent compliance required by Aug. 1, and full compliance by Feb. 1, 2017.
     Zimmerman complains: “First, the city’s regime does not require immediate (or near-immediate) implementation of a background check regime on TNC drivers in order to service passengers in the City of Austin. …
     “Second, ‘compliance’ is not determined driver-by-driver. While subsection A states that ‘a person must pass a … fingerprint-based criminal background check … to be eligible to drive for a TNC,’ this requirement is applied ‘in accordance with the schedule’ set forth in (B), which sets out the ‘benchmarks.’ These benchmarks are ‘calculated as the percentage of hours or miles driven by compliant drivers of the total hours or miles driven by other drivers for the TNC during the benchmark time period.'” (Ellipses in complaint.)
     “Third, the 2015 Ordinance does not specify what criminal history would be relevant to driver eligibility. Instead, it merely states that ‘if the criminal background check indicates that a person has been convicted of certain offenses, to be specified by separate ordinance, that person is prohibited from driving for a TNC.’ …
     “Fourth, the 2015 Ordinance does not actually state that any driver would be prohibited from driving for a TNC in the event he or she fails the criminal background check; instead, it states that TNCs failing to meet the benchmarks ‘shall be subject to penalties established by separate ordinance.'”
     Under the 2015 ordinance, there will be a 50 percent chance in August this year that a rider will have a driver “whose background was not required to be checked at all,” Zimmerman said.
     He said Mayor Adler has acknowledged that the fingerprint requirement will not be enforceable until the council enacts the penalty provision alluded to in the ordinance.
     Zimmerman also claims the 2015 ordinance will cost too much city money and staff time to enforce.
     The city or a hired third party will collect fingerprint information and submit it to the state for criminal background checks. The Austin Transportation Department will have to set up a Safety Assurance Program to help eligible TNCs obtain the background checks for its drivers.
     The 2015 ordinance also imposed two fees on TNCs: an annual fee based on either a TNC’s number of drivers, 1 percent of its gross local revenue, or total miles driven; and a fee for any TNC not participating in the city’s Safety Assurance Program, with the money to go into a Compliant Driver Education Fund.
     Zimmerman says the 2016 ordinance would provide benefits not in the city ordinance. He says it would require a national criminal background check on drivers immediately, unlike the city’s phased-in requirement. The 2016 ordinance also specified the offenses that would make a person ineligible to drive for a TNC, it is enforceable, and the TNC would pay the costs of background checks instead of the city.
     Zimmerman “vehemently objected” to the ballot language of Prop. 1, which was written by Councilwoman Ann Kitchen, whom he calls a “vocal opponent” of the proposition.
     He claims that Kitchen’s language, which stood, “falsely conveyed that the amendments repealed safety provisions without putting anything in their place, and was designed to persuade voters to reject the amendments.”
     Zimmerman’s 21-page lawsuit challenges virtually every step of the May 7 election.
     “The City publicized its current regime as necessary to ensure rider safety. Yet as of the date Austinites were called upon to cast their votes, existing law was materially incomplete, rife with gaps waiting to be filled by further Council action, and the background-check requirement is wholly unenforceable as recognized by Mayor Adler himself,” Zimmerman says. He claims that common law prohibits the city “from cherry-picking three repealed provisions to paint a one-sided picture distorting the real choice put to the voters.”
     “The citizen-initiated ordinance repeals the 2015 Ordinance entirely. In stark contrast, the citizen-initiated ordinance establishes a framework whereby the financial burdens are borne by the TNCs, not the taxpayers. … Just as the proposition must mention a fiscal burden sought to be imposed by a measure, it follows that where a citizen-initiated measure would abolish government programs and lessen the burden on taxpayer resources, this too constitutes a chief feature of the amendment that must appear in the proposition. …
     “Not only did the city’s Proposition 1 omit chief characteristics, but materially and affirmatively misled the voters, and the outcome of the election is not the true outcome.”
     He claims the election should be declared void because, among other things, the ballot added the words “the Ordinance” after “For” and “Against,” which he says caused confusion by referring to two ordinances.
     The city said in a statement: “The City Council respected the citizen-initiated petition process and voted to call a May election. The Council made every effort to ensure that the ballot language fairly represents the petition’s intent. The City prevailed in the pre-election lawsuit filed on this same topic, and is prepared to defend the actions it took as part of this election process.”
     Former Austin drivers sued Uber and Lyft in federal class actions this month, claiming the companies’ abrupt pullout violated the Worker Adjustment or Retraining Notification Act, which requires employers with more than 100 employees to give 60 days notice before mass layoffs.
     Zimmerman wants the election declared void, and a new election.
     He is represented by Jerad Najvar of Houston.

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