Yes, New Albanians, the city council is once again obsessed with excrement.
Less than a month after the council showed wisdom in bringing to an end two pieces of litigation it was sure to lose, it officially reversed itself on one of them and thumbed its nose to the court and the opposing parties on the other.
The official reversal was the most serious of the Feb. 4 actions/inactions.
I've consulted with experts and attorneys about this litigation and not one seems to believe the council has a leg to stand on in this suit. Of course, this council has its own omniscient expert and an attorney willing to carry out his will, so Judge Cody will, despite clear signals to the council, be asked to consider the case of The Common Council for the City of New Albany vs. The Sewer Board of the City of New Albany AND The Common Council for the City of New Albany vs. The Stormwater Board of the City of New Albany.
Let's recap and then analyze this misbegotten "case."
Council members Gahan and Coffey, who've grown increasingly obsessed with the opportunity to pander politically on the manufactured issue of the "accountability" of the sewer and stormwater boards, and probably for other disparate reasons, motivated the previous council to file suit.
The excuse for spanking these boards was the granting of management contracts to EMC, the private contractor who managed sewer operations for the past five years. The relatively new stormwater board elected to execute a much smaller, but similar contract for operations management with EMC.
The sewer board contract with EMC contemplated an automatic renewal, at a higher price, provided that both parties agreed. This is important. There was no new contract under consideration, merely a continuation of the existing contract. The sewer board, due in no small part to the efforts of Kevin Zurschmiede, determined to renegotiate the contract and avoid the automatic renewal. The renegotiation resulted in a net savings to the sewer board and its ratepayers for the next five years.
The contract with EMC has been described legally as a "professional services contract." As such, it is not subject to the same procedures as contracts for goods and other services. If it is, and we believe it is, a professional services contract, there is little reason to challenge it and even less reason to believe that the city council can win in this litigation.
Imagine for a moment an indisputable professional services contract. Let's say, Jerry Ulrich's contract as the city council attorney. The council is surely entitled to make a subjective judgment that Ulrich has or has not done a good job in the past. They are surely entitled to determine whether his demeanor and attitude are convivial to their proceedings. Ulrich may or may not be the best lawyer for the job. He may or may not be the cheapest (or most expensive) lawyer available and willing to do the job. But no one (yet) has challenged the council's retention of Ulrich.
We'll concede that the EMC contract is of greater scale than the retention of a part-time council attorney. But engineering services and personnel management services are equally "professional" and have long been considered to be so important to the faithful execution of fiduciary duties that subjective evaluation trumps the "low-bidder" imperative the council seems to desire.
Does the council even have standing to have its suit go forward? Under current law and under current city ordinances, the sewer board is not beholden to the council. Although a majority of its membership is subject to appointment approval by the council, once appointed they are designed to be and obligated to be independent of the political whims of the council. Council has a narrowly defined role in sewer matters. Once the council has chosen to make its "enterprise" an independent utility, it should not and may not interfere in its operations. Yes, the council must approve most rate increases, but they are not entitled to micromanage the sewer board, whose members operate a utility that was always intended to pay for itself and to occasionally produce returns to the city's general fund.
The mere fact that Mr. Gahan became insulted by the previous board, the mere fact that Mr. Coffey deems himself an expert in myriad matters, does not justify tampering with this independence.
One cannot but speculate as to what favors and other compensations the council members may be seeking in trying to overturn what appears to be a favorable, and independently derived contract.
Is the council likely to prevail? No. The first question that will arise is whether the council has the right to sue the independent sewer board. Do they have standing, as the council, to challenge the actions of this independent board. We predict that Judge Cody will say no.
But then, suppose he grants them standing to challenge. Is the expense to the city, and the expense to the sewer utility's ratepayers, justifiable?
Most courts reject the concept of providing advisory opinions. Courts take on legitimate controversies and take them on only when they are "ripe." That the EMC contracts are professional services contracts is undisputed. The council seems to believe that the mere scale (in dollars) of the contracts make them somehow "special" and thus subject to challenge.
Finally, let's assume that Judge Cody grants the council standing to sue and that he declares the EMC contracts to not be "professional" services contracts exempt from the requirement to solicit bids and proposals and that the renegotiation of an existing contract triggers a requirement to expend $60,000 (according to Zurschmiede) to go through a bidding process.
Is it worth $30,000 to overturn a "good" contract? How about $60,000?
Why should Dan Coffey's private agenda cost this city tens of thousands of dollars? Why should New Albany residents and New Albany Sewer Board ratepayers shoulder the cost of this ego-driven conflict? To be a "test" case for the novel theory that independent utilities can and should be made dependent to their authorizing entities? To "test" the accepted law on what constitutes a professional services contract?
Mr. Caesar, Mr. Price, Mr. McLaughlin, Mrs. Benedetti, and Mr. Gonder need to shed the influence of the Coffey/Gahan axis. They need to consider whether their own curiosity ought to be satisfied at such great expense.
This was NOT done because counsel told them they had a good case. It WAS done because Mr. Coffey and Mr. Gahan successfully framed the question in such a way as to manipulate their colleagues into asking the wrong question. Mr. Ulrich is the council's hired gun and if they tell him to file suit, he will. When the question is put to a lawyer as "can you present a case," the answer will be "yes." When the question is put to a lawyer as "can you win a case," the answer may well be different.
But if you are willing to pay any price to have your case presented, don't expect your hired gun to say "no."
Sincerely, we invite your comments. The council is alleging that the sewer board executed an illegal contract. That's dubious. The motives are transparent. The ease with which the council executed an about-turn from its wise decision to drop the lawsuit casts doubt on their collective judgment.
And as for that other litigation they elected to put to an end, it should be noted that the council did not meet the court-ordered deadline for submitting a response to Judge Tinder's demand for a proper redistricting ordinance. No consent decree has been presented to the plaintiffs in that action, who now have 14 days to seek a default judgment against the city and the council.
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6 comments:
During the last couple of meetings, I had the feeling that even if the Court sided with the Council, that basically nothing was going to change with the contract. If that was the case, why continue to spend the money for a judgement(even in your favor)if you were not going to do anything about it?
After last night's meeting, I spoke with Mr. Gonder and Mr. Gahan about my concerns. While I am still ruminating on their answers(surprise, surprise)I do see some logic to their position.
My impression still is that nothing will change with current contract. What a ruling would do is give the Council, as the legislative body, a guideline on how detailed a new ordinance dealing with such contracts in the future must be. Of course that is my generalized understanding of our discussion. It, at least, answered my question on what the Council was planning on doing after a verdict.
I would like to add that Mr. Gonder and Mr. Gahan were very generous with their time after the meeting. I never felt like they were trying to get rid of me. That will probably come later after they get to know me!!
"The contract with EMC has been described legally as a 'professional services contract'".
Defendants are described legally as "innocent" of the charges against them until a verdict is delivered.
At best, the transaction with EMC is a hybrid consisting of both management of the utility but also significant expenditures, on the city's behalf, on goods and services. These aren't minor expenditures like copy paper and envelopes. It seems to me that in the capacity of the utility's manager, EMC is acting as a surrogate city and should be expected to bring the level of transparency to its purchases that is expected of the city. The previous Council did not see such transparency exhibited and brought the suit.
My philosophically based inclination is that city services should be performed by city employees absent some compelling reason to the contrary. A power point presentation showing promsied efficiency is not in my mind compelling. The missing ingredient is not efficiency--the mantra of the bottom-line hucksters--but management. Management of city services should be done by city employees.
"One cannot but speculate as to what favors and other compensations the council members may be seeking in trying to overturn what appears to be a favorable, and independently derived contract." Aside from the immediate reaction of disgust with your insinuation of venality on my part as a council member, I also have as background the insinuations of others who have alleged improper quids pro quos leading to the no-bid contract under question. It is that hint of impropriety which I hope to see erased by the law suit. Once decided then I would expect the Council to more clearly delineate what is expected in future contracts.
Seeking to make his case that "process matters", John Dean in "Broken Government", quotes a study saying," 'Process is what they (average Americans) relate to' ,because most people 'have understandable difficulties comprehending the substantive complexities of (policy)issues,' while they'often have a gut reaction to process'".
I've never claimed to be anything but an average American.
Thank you, John, for your contribution. I think it's pretty clear that I disagree with your vote to reinstate the lawsuit against the sewer board.
In our private discussions, you had never provided even this much information or justification for supporting the lawsuit. I appreciate your sharing this with us on the blog.
You mention transparency, something I'm all in favor of. I understand that council members speak among themselves and seek to educate themselves independently. I assume that you have satisfied yourself that your course is right.
But the point of my criticism is that the council has not been transparent about this. Everything has been done in secret.
You know that I take these things pretty seriously. I, too, seek to educate myself, as do many others who are not elected public officials. But this secret information that is alluded to, this crisis that requires the extraordinary measure of the city suing its owned utility, has not been made clear.
In fact, it is shrouded in mystery. The council has not discussed its reasons, it has not offered a reason for the suit.
Make it transparent. Debate it. Tell us why it is necessary. Your constituents are not children who should be shielded from the truth.
Do you deny that Mr. Coffey and Mr. Gahan are the driving forces on this suit? What exactly is it that they have told YOU, but not US, that persuaded you to not only vote twice to continue the lawsuit, but to cooperate in the hiding of this information?
Anyone who has watched Mr. Coffey and Mr. Price over past years can diagnose their belief that "someone" is getting something beneficial and that they aren't getting their share. Whether that something is graft or inside information, those two seem to be obsessive about it.
Coffey, even now with your full support, continues to sling McCarthyite innuendo at each meeting. What are these phantom charges that have continually been alluded to? Why are they not addressed in public meetings?
If there is wrongdoing or the suspicion of wrongdoing, air it out. If the council no longer wishes to have an independent utility that runs like a business, pass an ordinance unwinding it and take it over yourselves.
But using the very expensive resources of the courts and all the attendant lawyers in order to get an advisory opinion has not been justified.
Political favors come in all shapes and sizes. Sometimes it is money. Sometimes it is information that can be turned into money. Sometimes it is secret information that can be used to build political power by keeping it secret.
I seek knowledge in order to influence public decisions. This council and its predecessor, on this issue, have withheld that knowledge, and I object.
Mr. Zurschmiede gave us one side of the debate on Monday night. The rest of the council provided us nothing. No new information was brought forward. Since no new knowledge was shared with the public, can you fault us for our suspicions?
Are you telling us that there was no secret backroom discussion that motivated the reversal? Yes, I (and we) are resentful at being treated like children.
To tell us to sit down, shut up, and mind our own business is not acceptable. We won't eat the mystery meat.
You and the council are using the excuse of "litigation" to hide information. Just because you learn something in executive session doesn't make it exempt from the government in the sunshine laws. You need to justify the secrecy or lift the veil, one or the other.
John, you, of all people, should know that we are persuadable people. But no effort has been made to persuade us. Instead, we are told that our suspicions are "disgusting."
Randy:
As you know, I voted to continue the lawsuit the first time; therefore I did not see or seek new information. As I said in my original response, I simply want any hint of impropriety cleared away. That is my sole motivation for the origianl and subsequent vote.
I'm not trying to hide anything about my motivation. I have heard rumors of favors being passed around. I have no idea if the rumors have credence and therefore, will not put names to the accusations. I thought this was the best way to clean the slate and move forward. I can not speak to the motivation of others.
My perception is that Jeff Gahan was the driving force of the lawsuit in the last Council. Part of my vote to continue the suit is a reflection of my confidence in him. Any discussions I have heard on this subject have always centered on using the suit to make the process more effective,to set a precedent for future bidding, and thereby make the process more transparent. Again, I believe Mr. Gahan's words and motivation. I've said that I will take anyone at their word until I have first hand reason not to. At this point, no one on the Council, including Mr. Gahan, has said anything to cause me to doubt their word. I have also confessed that I may be naive, but I am not interested in replacing naivete with cynicism in the interest of potentially, someday, maybe, avoiding blisters on my fingers.
My expression of disgust was simply with your insinuation that I personally benefitted from favors, compensation, or whatever. It's not true and I'm still disgusted.
My two cents: The stench in all of it so far is the continuing hints of "new information," but not the slightest effort on the part of any recipient of said information to share any of it at the Monday meeting.
That's the sort of thing that contributes to the impression that non-transparency is the order of the day.
If Mr. Gahan's motives are pure, and I've no reason to believe otherwise, then wouldn't the best thing to have done would be to state exactly what the "new" information was?
In lieu of it, we're left with Dan Coffey cuddling Mr. Chambers's pumpkin and braying at the moon.
I appreciate John's candor as always and this isn't directed solely at him BUT:
As I've discussed with several council members, playing with Dan Coffey gets you dirty. His casual willingness to lie has been widely experienced and well documented.
His faulty assertions should be challenged and refuted, until we reach a point at which he at least thinks twice about his political kneecaps before stepping up on the bully pulpit.
From those conversations, I know that some council members are well aware of Coffey's problems with the truth and have chosen to silently suffer them out of some as yet inexplicable sense of fraternity (or at least a notion of just getting them over with as soon as possible so the meeting can continue).
That's the opposite of transparency. That's enablement. If transparency in dealings is the goal, the council members with consciences should start the policing internally with at least as much vigor as is directed outwardly. They must be as disgusted with Coffey's innuendo and accusations as anyone else's.
To knowingly ignore obvious impropriety from other council members while leading a supposed campaign against it elsewhere is not only cause for suspicion but indictment, making it difficult to take other transparency efforts seriously.
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