Public Contracts (Sutter County Board Of Supervisors)

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 California Public Records Act, 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

Ms. Micheli,
Thank you for your timely reply. I understand this is a large request and certainly do not want to disrupt regular business, so I am pleased to hear that many of the documents are already available online; we will start our research from there.

In lieu of part 1 of my request and to ensure we are downloading complete information from the county website, would it be possible to get a list of agreements or counter-parties?

Regarding part 2: I am looking for documents like standard employee agreements instead of requesting a high number of repetitive documents. Perhaps we could limit part 2 to documents that were actually used in the last year?

Regarding part 3: Here, I am looking for the written policies, procedures, and instructions that get used in Contract Administration, so we can exclude presentations, transcripts, and any audio or video recordings.

Regarding part 4: Documents like process narratives, audit reports, and findings are important for this work, but presumably these documents are a small portion of the request, if any.

Please feel free to email or call (415) 894-0240 if you have questions or need any clarification.

Thanks,
Dan Rubins

I apologize for my delayed response, I had miscategorized this response in our system as a positive response so I did not follow up.

With all due respect, I do not accept your interpretation of the request being overly broad, unduly burdensome, and an unreasonable use of public resources. I also believe the case law does not support your position, which I am happy to detail in legal filings. I believe the description of the requested records was quite clear. However, if it helps to simplify this request further: I would like all contracts or similar instruments, and their attachments, that were active since July 1, 2016. I am sure your internal and external auditors would agree that the financial obligations of the county, which would largely be contained in contracts, must be readily accessible. Otherwise, there would presumably be a material risk to the County's financial statements. I would further refer you to Cal. First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 166, 78 Cal. Rptr. 847 (1998), "A clearly framed request which requires an agency to search an enormous volume of data for a 'needle in the haystack' or, conversely, a request which compels the production of a huge volume of material may be objectionable as unduly burdensome. [citations omitted] Records requests, however, inevitably impose some burden on government agencies. An Agency is obligated to comply so long as the record can be located with reasonable effort."

Unfortunately, I cannot limit the request further than I already have. However, I am open to retrieving those records in the most convenient manner for the County. So, is it possible for you to identify which records are *not* in the agenda packets or attachments and only produce those records that are not online? I am also open to other methods of fulfilling the request, like providing a backup file of each database in any commonly used format and performing the search myself.

Furthermore, I have doubt about the scope of the effort you describe. If any of the 23 separate departments you describe have contract approval authority and may have their own contract management systems, I would expect to see those systems named on the Sutter County Enterprise Systems Inventory, as required by SB 272. From what I can tell in the current SB 272 ESI posting at https://www.suttercounty.org/assets/pdf/it/suttercounty_sb272catalog.pdf, the only systems involved would be Microsoft SharePoint, DFM Associates' RiiMS, possibly OpenGov, and SunGard Public Sector's ONESolution.

Lastly, I would ask for information on which specific staff member(s) would be tasked with the work you describe and would, therefore, incur a direct cost of $125.07/hour? I am doubtful any current Sutter County employee could be the basis for justifying such a fee and would like further detail.