Public Contracts (Office Of The City Manager)
| Multi Request | Public Contracts |
| Submitted | July 11, 2018 |
| Due | April 8, 2021 |
| Est. Completion | None |
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Communications
From: Dan Rubins
To Whom It May Concern:
I. Background Information
Contract administration is frequently a source of concerning behavior in the public sector. For example:
- In the aftermath of Hurricane Maria, a company with only two employees (Whitefish Energy) was hired hired by PREPA, Puerto Rico's public utility company, to restore power to the island at a cost of $300M. The contract had audit-proofing clauses and left little recourse for PREPA due to nonperformance. After 8 months, Puerto Rico did not have power fully restored and now Congressional and FBI investigations are pending.
- During an internal audit of the City of San Diego's contracting practices, the contract with office products supplier Staples was found to exceed the City Council's approved $2M annual threshold by a full $1M. Auditors found found insufficient financial controls and produced a further 60 pages of recommendations.
- The US Defense Contract Audit Agency (DCAA) found sustained exceptions for incurred costs audits 28.6% of the time in its 2017 Report to Congress.
- From 2010 to 2013, a Maryland Transit Authority employee allegedly used poor contracting oversight to siphon $6.3M from the state coffers.
- The City of Vallejo, CA was recently the victim of an alleged contracting kickback scheme run by the city's landscape maintenance manager, only uncovered in an FBI investigation. The kickback scheme occurred only a few years after the city was in Chapter 9 bankruptcy because of ballooning contractual obligations.
- In recent years, officials in the southern California cities of Bell, Irwindale, La Puente, Monterey Park, Pico Rivera, Temple City, and Vernon have been brought up on various public corruption charges.
While the vast majority of public contracting is done with integrity, bad actors and a lack of public knowledge have a disproportionate effect on the fiscal wellbeing and public trust of every level of government.
II. Requested Records
Pursuant to the { law }, I hereby request the following records:
1. Any and all executed contracts, memorandums of understanding (MOUs), and other equivalent agreements that are currently active, or were active within the last two years, other than standard employee agreements. Please provide a copy of the executed document as well as any addenda, amendments, attachments, exhibits, materials, and schedules.
2. Any and all contract template documents, for example, employee agreements, vendor agreements, master services agreements, nondisclosure agreements, or interagency cooperation contracts.
3. General policies and procedures for contract administration, including training materials and records used to instruct members of your agency in contract administration.
4. Any available process narratives, audit reports, or findings regarding contract administration covering the last two years.
I am happy to discuss any issues or suggestions to make fulfillment more manageable for your office.
III. Fees
If there are any fees for searching or copying these records, please inform me in advance of fulfilling the request.
I would also like to request a waiver of all fees in that the disclosure of the requested information is in the public interest and will contribute significantly to the public's understanding of how governments manage public money and the obligations to which they are entrusted.
Neither I, nor my company (Legal Robot), has any commercial interest in obtaining the requested information. Rather, we intend to use software to analyze and disseminate the requested information free of charge so that the public may identify patterns of bad behavior that, when eliminated, will benefit governments and the public alike.
We plan to enrich and cross-link the information we receive from multiple jurisdictions, and provide an exploratory interface for the public on the internet, for free. Because we consider this work to be Data Journalism, and we further expect to provide our analysis to other media organizations for additional print and online publication, I ask to be categorized as a representative of the news media. Upon request, I am happy to provide our analysis and any articles we write based on our analysis in advance of publication, though I cannot speak for other media outlets.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 calendar days, as the statute requires.
Sincerely,
Dan Rubins
From:
Mr. Rubins:
Your Public Records Request dated July 13, 2018 was forwarded to me for review and response.
You listed four categories of requested documents. The first category was for "any and all executed contracts, memorandums of understanding (MOUs), and other equivalent agreements that are currently active, or were active within the last two years, other than standard employee agreements. Please provide a copy of the executed document as well as any addenda, amendments, attachments, exhibits, materials, and schedules."
This request as currently written fails to reasonably describe an identifiable record or records, and is unfocused and non-specific. (Gov. Code 6253(b); Rogers v. Superior Court (1993) 19Cal.App.4th 469.) An open ended request for any and all contracts ever executed by the City of Escondido within the last two years is not reasonable and is clearly overbroad and unduly burdensome. (Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App4th 159.)
The City would be happy to help you narrow your request to identify a certain agreement or document that you are looking for. However, your current request for any and all contracts within the past two years would be unduly burdensome because it would require employees from every department to search every project file to find contracts within the past two years, pull each contract from each file and make it available for your inspection or copying. As you can imagine, a city of our size enters into numerous contracts every week. It is difficult to even estimate the volume of records that might be responsive to this request, but there are most likely over 500 contracts of varying types and amounts entered into every single year and these are not maintained in a single electronic database.
Please contact me by email at your earliest convenience to discuss ways that we can narrow your request and help you identify the document or documents that you are seeking.
Sincerely,
Allegra Frost
Deputy City Attorney
City of Escondido
201 North Broadway
Escondido, CA 92025
760-839-4608 (main)
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Confidentiality Statement: This communication contains information that may be confidential, and it may also be legally privileged or otherwise exempt from required disclosure. If you are not the intended recipient, please do not read, distribute or copy this communication and please delete the message from your computer.
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From: Office Of The City Manager
Mr. Rubins:
I have not received a response from you regarding my July 18, 2018 email requesting that you narrow and clarify your public records request, dated July 13, 2018. Therefore, I am providing responsive records that I was able to gather for your request.
This closes your July 13, 2018 PRA request. If you would like to narrow and clarify your request pursuant to my July 18th email, please contact the City Clerk's Office to submit a new request.
Thank you,
Allegra Frost
Deputy City Attorney
City of Escondido
201 North Broadway
Escondido, CA 92025
760-839-4608 (main)
[Description: cid:image002.png@01CE91BA.F94ADA60]
Confidentiality Statement: This communication contains information that may be confidential, and it may also be legally privileged or otherwise exempt from required disclosure. If you are not the intended recipient, please do not read, distribute or copy this communication and please delete the message from your computer.
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From: Dan Rubins
Ms. Frost,
I apologize for the delayed response and I thank you for providing the materials in your last email. I understand this is a large request, so I would like to provide some detail and limit the scope of responsive documents.
Based on public records requests to other cities of similar size, I think your estimate of 500 responsive contracts/year is probably accurate, so let's see if we can eliminate some of those. I am looking at the last couple years of legal language, primarily in procurement documents, so plans, drawings, price lists or other attachments without legal terms are not necessary, if that helps. We can also exclude agreements that use the standard forms that you sent in your last email.
I am no lawyer, but my understanding of Cal. First Amend. Coalition v. Superior Court was that it was primarily related to correspondence and deliberative process privilege and so long as the records are "described clearly enough to permit the agency to determine whether writings of the type described in the request are under its control," that they are to be disclosed. My request is not vague and it is pretty clear that contracts to which the city is a party are under the control of the city. I can check with my lawyer, but I don't think that the fact there are simply a large number of documents excludes them from being disclosed due to vagueness. After all, I am not asking for any document or communication that mentions someone's name, as in that case. Rather, I am asking for a rather specific and finite set of legal documents, most of which have financial obligations. So, perhaps your concern is similar to the over-breadth argument in that case? Here, I am not sure that the documents requested are overly broad since an auditor would normally ask for the same (at least). Also, I would expect there are controls in place that require some easy access to critical legal documents like contracts. I understand there are multiple departments to contact and contract administration is often decentralized or delegated for smaller amounts, but I would be very concerned if city employees had to "search every project file" for such documents. I suppose I could submit a separate request to every single city department in order to "focus" the request, but that seems like it would generate unnecessary work for the city as a whole. Now, I do agree that producing all of these records in the 10 days given by CPRA is quite unreasonable; even with the 14 day extension it seems tight. We recently made the same request to another CA city about the same size and they are providing the documents over three months, which seems reasonable for ~1000 documents. Would a similar timeline work for your city?
Also, perhaps we can start with a subset of records that are already in electronic form? The actual signature is not important for my work, I am just looking for the version of the document that was executed. If any of the agreements are already online through agendas or meeting minutes, please direct me to those and we can easily exclude those documents from this request.
Per your last email, I will open a new request with the City Clerk's office in the morning with these points clarified.
Thanks,
Dan Rubins
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