Paperless Trail: Suing the City to Obtain 'Public' Records

Folio Weekly | October 7, 2008
Twenty-five boxes take up a lot of room. Even stacked neatly along the wall in the Fourth Floor conference room, they consume nearly a third of the floor space. They're obtrusive enough that Karen Chastain, attorney with the Office of General Counsel, asks that we review their contents as quickly as possible.

She asks politely, but it's hard to respond in kind. After all, Chastain made us wait three years and spend more than $9,000 before she would even acknowledge these boxes of documents existed. Gaining access to them -- "public" records all -- required hiring an attorney and threatening legal action. Obliging the desire of city attorneys to reclaim their floor space somehow doesn't feel like a priority.

Our quest to obtain the records ended with a small victory -- the city provided many documents and repaid $5,000 of our legal fees. But it also highlighted the city's contempt for public records laws, and its utter lack of accountability for expenditures related to the city's NFL football interests. To date, some $185 million in taxpayer money has been spent wooing the Jaguars and luring the Super Bowl to town. How that money was spent remains largely a mystery. And that is very clearly by design.

***** The key to bringing an NFL team to town was a new stadium.

The city agreed to renovate the old Gator Bowl, transforming it into an NFL-quality facility. After making this pledge, the first thing the city did was divest itself of any project oversight. A 1993 lease agreement between the city and the Jacksonville Jaguars, Inc. (then known as Touchdown Jacksonville) gave the Jaguars "the exclusive and unconditional right to control the project site, and to select and enter into contracts with any and all contractors, subcontractors, suppliers, vendors ... or individuals."

The agreement allowed the Jaguars to make all decisions on the renovation, and only obligated the city to finance it.

Unfortunately, as the project progressed, the city's burden kept growing. In April 1990, the Jaguars promised an NFL-quality stadium for between $20 million and $50 million. In November 1990, they said it would take $60 million -- "Not a nickel more," according to Jags partner Tom Petway. By March 1993, Jags President David Selden said the cost would be closer to $80 million. Three months later, Jaguars majority owner Wayne Weaver said it would be $100 million.

The final lease agreement put the price tag at $121 million, in a deal that obligated the city to spend an additional $29 million on improvements around the stadium, including parking and a practice field. But the lease was soon amended, in February 1995, increasing the base contract cost to $124 million. A third amendment hiked it to $144 million. (City bonds sold to finance the project added another $200 million in interest payments.) The Jaguars agreed to pay just $20 million of this, in payments spread out over 30 years.

The taxpaying public had reason to wonder how, and how wisely, their hard-earned dollars were spent -- not least because the team decided to give the lucrative project to a company owned by an early Jaguars partner. Preston Haskell's The Haskell Company (as part of the joint venture Haskell/Huber, Hunt & Nichols) won the contract without submitting a competitive bid, even though state law requires taxpayer-financed projects exceeding $200,000 to be publicly bid. (City law requires competitive bids for any project over $12,000.) State law also requires design-build firms like Haskell to provide a guaranteed maximum price when working on taxpayer-financed projects -- something that clearly didn't happen.

Haskell was also legally prohibited by both state and local law from working on the project. Florida Statute 287-057 (18) prohibits a person involved in the drafting of a project to later receive a contract for that project. State law is echoed by Jacksonville ordinance 89-1087, which was coincidentally included in the 25 boxes of data. Signed by then-Council President Eric Smith and Mayor Ed Austin, the ordinance states, "A design criteria professional who has been selected to prepare the design criteria package shall not be eligible to render services under a design-build contract executed pursuant to the design criteria package." Since Preston Haskell, as a Jaguars partner, was involved in the design and cost estimates of the Gator Bowl renovation starting in 1990, the awarding of the renovation contract to his company violated both the state statute and the city ordinance.

The dubious nature of the deal gave Jacksonville residents a reason to be curious about the renovation contract. But they also had a right to see the document, according to Chapter 119 of the Florida Statutes, which governs public records. The lease agreement between the city and the Jaguars acknowledged this right, guaranteeing the city and its taxpayers "reasonable access to all renovation project information, including but not limited to financial, technical and computer data."

Despite that "guarantee," when Folio Weekly requested a copy of the contract in March 2004, the city refused. Initially, city procurement officials said they couldn't find the document. They later changed their story, saying that since the Jaguars and the Haskell Company were both private entities, the agreement between them was also private: Neither taxpayers nor city officials were entitled to see it.

Amazingly, city attorneys backed up this opinion. In an August 2004 letter to Folio Weekly, Deputy General Counsel Karen Chastain wrote, "We do not believe this specific document is in the possession of the City. Please be advised that we do not believe the City is required to have this particular document so that it would be a public record. Because we do not physically have it, and because it is not a public record, we are not able to provide this specific item to you to satisfy your request."

The frailty of this argument was previously pointed out in Folio Weekly ("Who Owns Alltel Stadium?" Cover Story, Marvin Edwards, Sept. 7, 2004). In a nutshell, when the city anoints a private company to function in its stead -- as Jacksonville did when it deputized the Jaguars to manage the renovation -- that company becomes subject to state public records laws.

But Chastain's argument was even weaker than perhaps even she knew. As it turned out, the city did have a copy of the renovation contract. When Folio Weekly was finally allowed to review the contents of the 25 boxes in July 2007, the deal between the Jaguars and the Haskell Company was one of the first documents we found.

***** Not everyone is interested in reading the bone-dry legalese of a design-build contract. Many more people were interested the 2005 Super Bowl, however, and in knowing how tax dollars were used to finance the event. Whether this interest reflects the natural allure of the game, or the fact that the local media, 10 years after the Jags came to town, were more willing to scrutinize the team's deals, the reality was that public records requests rained down on city officials. Reporters and city accountants alike demanded a financial accounting from the Jacksonville Super Bowl Host Committee, the private nonprofit organization created to manage the city's preparations for the game.

From the start, city officials stonewalled such requests. Although the organization was subsidized with city funds, staffed with several city employees and tasked with providing a public function on behalf of the city -- all key legal factors in determining whether an agency is subject to Florida's stringent open-records laws -- both the city and the Host Committee claimed the agency's records were not public.

The city declined to offer a legal justification for its position, but it controverted both state law and the Host Committee's own organizational decree. Article 13 of the Dec. 3, 2004 agreement between the City and the Host Committee, titled Compliance With State and Other Laws, states: "Consultant [Host Committee] must comply with any and all applicable Federal, State and local laws, rules and regulations ... includ[ing] but are not limited to, any and all building and permitting requirements, Chapter 119, Florida Statutes, [the Public Records Act] and Section 286.011, Florida Statutes" -- also known as the Sunshine Law.

Article 12 states that upon completion of the Host Committee's services, all documents related to its duties "are to become the property of the city."

Despite this, the city refused all records requests, both before and after the big game. According to minutes of a city meeting dated April 6, 2004, "Beau Halton of The Florida Times-Union has formally requested copies of all contracts with subcontractors, claiming they are public records. [City of Jacksonville Chief Administrative Officer] Sam Mousa stated that Mr. Halton had contacted the City, and a response by City General Counsel stated that anything in City files is available for review. The City has no copies of ... subcontracts in its files."

Neat trick. Just as with the stadium renovation contract, the city claimed that it didn't have documents as a means to dodge public records laws. And just as in the first case, this simply wasn't true. Several of the contracts that the city "had no copies" of were found in the 25 boxes eventually relinquished by the city. (One of those contracts was for work assigned to J.B. Coxwell Contracting, Inc. with the sums running into millions of dollars. Coxwell is the firm that Sam Mousa joined when he left city government.)

Attempts by the Jacksonville Business Journal to get Host Committee records were similarly stymied. As an article in the Journal's Aug. 12, 2005 issue explained, "the host committee denied the Jacksonville Business Journal's request for [Host Committee] documents, saying the group is not subject to the state's public record laws." The paper noted that it had attempted to contact Karen Chastain, who'd also served as city legal liaison to the Host Committee, but she did not return phone calls. "A woman in the office of General Counsel," the paper continued, "refused to make an appointment [with Chastain] saying, 'She's not going to talk to you.'"

It wasn't just the media trying to get information, however. On Aug. 17, 2005, Assistant Council Auditor Kirk Sherman sent a letter to Paul Harden, attorney for the Host Committee, "requesting copies of invoices and cancelled checks that support the $1,198,000.00 paid by the City to meet your supplemental funding request."

Sherman got no response. On Sept. 7, he wrote a follow-up request. Again, no response. A third letter, Nov. 2. Nothing.

Sherman shouldn't have been surprised. His colleague, Assistant Council Auditor Jim Meyer, had already tried, without success, to obtain Host Committee records. In a July 2004 letter to then-Council Vice President Kevin Hyde, Meyer suggested, "You may want to consider requesting for your July 16th meeting an updated Super Bowl Host Committee Budget. I have been trying for the last several months to get a copy from Michael Kelly [Host Committee President], but without any success. He just doesn't seem to understand why I feel I need one and basically doesn't want to give me one."

Meyer continued, "The document should be a public record, but I can't get the [Peyton] Administration to back me up on that issue ... The original budget required us to provide just under $3,000,000 of assistance. I hate to think of what that number may be now."

In August 2004, Meyer tried again. In a memo copied to both City Councilmembers and the Council Auditor's staff, he attached "a previous email requesting Super Bowl financial information which has not been forthcoming from either the Administration or the Super Bowl Host Committee."

Exhibiting his frustration, Meyer added, "I have repeatedly mentioned this to [Finance Director] Cal Ray since I originally sent the request for information. I also sent an email to Karen Chastain and Michael Kelly ... I have yet to hear from them."

He never did.

***** Folio Weekly's effort to get Super Bowl expense records from the city met with a similar stonewall. On Dec. 15, 2005, we appealed to Chief General Counsel Rick Mullaney to intervene and see that the records were released. He referred the matter to Steven E. Rohan, senior attorney with that office, who responded on Dec. 20, 2005. "The records you have requested are, and always have been, in the possession of the Jacksonville Super Bowl Host Committee, a private organization not legally associated with the City of Jacksonville," Rohan wrote. "For that reason, there are no records we can deliver to you ... I regret any misunderstanding."

Rohan concluded his letter with this odd bit of boosterism: "The Super Bowl was a great event in our community and certainly created great interest."

It certainly did: The Host Committee spent some $11 million in taxpayer money before all was said and done. But how that money was spent, whether the contracts were publicly bid, and what, if any, graft or waste could be found in the lavish wining and dining that surrounded the event remains a mystery -- in large part thanks to Rohan's efforts ("Super Suckers," Cover Story, Marvin Edwards, Jan. 31, 2006).

Having been thwarted by city attorneys, Folio Weekly asked state Attorney General Patricia Gleason for help. On April 19, 2006, Gleason (now special counsel for Gov. Charlie Crist's Office of Open Government) contacted Rohan and offered to mediate the dispute and help determine whether Host Committee records were subject to public disclosure. Rohan never acknowledged the request and Gleason, conceding that the mediation program was strictly voluntary, closed her file.

But Rohan did respond to a prior request for mediation in August 2005, this one from the Jacksonville Business Journal. Though Rohan declined Gleason's offer, he revealed something significant about his role and whom he served. "I have discussed the issues at length with Mr. [Charles] Hedrick [attorney for the Host Committee]. The issues are novel, complex and important to our clients. We are comfortable that an ultimate ruling, after perhaps months, if not years of litigation, would ultimately be in our favor."

With the pronoun our, Rohan lumped himself with the attorney representing the Host Committee -- an agency he'd already claimed was "a private organization not legally associated with the City of Jacksonville." He also made plain that his client -- the Host Committee -- was willing to fight the public records requests for "months, if not years."

It's unclear why Rohan, as a city attorney, sided with this agency, particularly in shielding a request for documents pertinent to a massive outlay of taxpayer dollars. Regardless, the position of the city attorney's office was clear.

At this point, making an appeal to the State Attorney's Office might seem a natural next step. But we'd already tried that. In July 2004, when we were attempting to obtain the Gator Bowl renovation contract, Folio Weekly (at the urging of the First Amendment Foundation and the Attorney General's Office) met with Assistant State Attorney Steve Siegel. Though he initially expressed interest, suggesting that he’d be willing to use his office's subpoena power to obtain the contract and saying he planned to "investigate" the Jaguars/Haskell deal, Siegel soon backed away. Violations of the Sunshine Law, including the withholding of public records, didn't necessarily violate a criminal statute, he explained. Even given the huge sums of public money involved, Siegel said pursuing a mere civil violation would be a waste of his time.

We did appeal directly to Mayor John Peyton's office. On May 31, 2006, we sent a letter citing the Host Committee's refusal to turn over its financial records and asking Peyton to weigh in on the issue. Peyton's office referred the letter to General Counsel Rick Mullaney, and his deputy, Chief Assistant General Counsel Cindy Laquidara, responded on his behalf. "Please note that the documents you seek are not within the control of the city of Jacksonville, nor are they within the control of an agency of the City of Jacksonville so as to convert a private document to a public one," she parroted. "As such ... there is no basis for a mediation."

We were running out of options. Having failed to obtain the records via public records laws, the Office of General Counsel, the State Attorney's Office, the Mayor's Office and the Attorney General's Office, we decided to take matters into our own hands. We hired a lawyer.

***** D. Gray Thomas is a partner in Sheppard, White, Thomas & Kachergus, PA, a highly respected Jacksonville law firm. He agreed to take the case, and on March 1, 2007, he sent letters to Mayor John Peyton, Wayne Weaver, Ron Barton (Executive Director of the Jacksonville Economic Development Commission) and the Jacksonville Super Bowl Host Committee. In the letters, Thomas cited public records laws and requested "copies of any and all invoices, contracts and other records of expenditures" related to either the stadium renovations or Host Committee activities.

"Please contact me within 10 days of receipt of this letter so that I may be advised of the status of the request," he concluded each letter. "If I do not hear from you within that time, I will consider such action a denial of our client's request and will proceed accordingly."

On March 12, 2007, Karen Chastain responded. "Please be advised that we are presently coordinating the retrieval of applicable records in our possession concerning these events of several years ago ... we will be pleased to coordinate with you concerning your review of these materials."

It was the first time Chastain acknowledged the city might have additional records in its possession. As it turned out, the General Counsel's office had an unbelievable cache of records -- 25 large boxes containing nothing but documents related to stadium renovations and the Host Committee.

Some of the paperwork in those boxes proved interesting. There was a record, for instance, of the city's plans to bid out the stadium renovation contract, including a detailed timetable to "competitively select [a] Design/Build Contractor" and establish "a guaranteed maximum price contract." In July 1993, a city consultant even prepared a public bid notice to distribute to interested contractors, including a description of the selection process and evaluation criteria.

There is nothing in the record that explains why the city decided to abandon the bid process and hand the project to Haskell, or why it decided not to seek "a guaranteed maximum price contract." But there is documentation suggesting that at least some people had concerns about the deal.

Three letters, all dated June 25, 1993, objected to the open-ended nature of the renovation contract, and the fact that there was no cost ceiling. Then-General Counsel Charles W. Arnold Jr. (now a Circuit Court Judge) directed his letter to Mayor Ed Austin and the City Council. "Given the fact that the City has no set of construction plans and specifications for improvements to the Gator Bowl, has no firm estimate as to the construction cost, and has no feasibility study as to the likelihood of proper and timely completion based on construction scheduling logic," Arnold wrote, "I do not believe that any reasonable, prudent elected official would approve such a Lease Agreement." Noting how costs had already escalated "from a Touchdown Jacksonville-guaranteed $60 million to a present-day estimate substantially in excess of $100 million" just in the preceding 60 days, Arnold called the contract a "critical liability issue." (Arnold was subsequently removed from the city's negotiating team with the Jaguars by lead negotiator John Delaney.)

Mayor Ed Austin also sent a letter to the City Council. "Simply stated, it is vital that the City only enter into a Lease that is fully funded from existing and reliable revenue streams, that does not expose the City to open and unlimited liability in favor of a private business ..."

Finally, a letter from Lex Hester, Austin's Chief Administrative Officer. He observed that the revenue stream promised by the Jaguars "as justification for stadium costs going from contracted, guaranteed, not-to-exceed $60 million dollars to open-ended cost of over $120 million dollars is not sufficient" and complained the city was "being asked to assume substantial risks and a doubling of the 1991 executed contract costs."

Despite the serious concerns of these top city officials, the deal was approved on Aug. 24, 1993 without discussion or amendment.

Something similar happened in the build-up to the Super Bowl. In September 2000, then-Jacksonville Economic Development Commission Executive Director Mike Weinstein (currently a candidate for state representative) sent a memorandum to the City Council. In it, he specifically addressed this question from the Council Auditor's Office: "Who will be at risk to cover the $8.3 million Host Committee budget for the Super Bowl game if the costs exceed projections and/or the anticipated revenues do not materialize? City?"

Weinstein, who later became the Host Committee CEO, offered this response: "The City of Jacksonville will have no additional financial obligations. If the Jacksonville Super Bowl Host Committee's budget of $8,350,000 turns out to be insufficient to cover the costs of the week of events, the Host Committee would have to raise additional funds to cover the shortfall. The City would have no additional obligation to the NFL, or the Host Committee."

That, of course, turned out to be bunk. In May 2005, Adam Hollingsworth, Mayor Peyton's Chief of Staff, sent a memo to the City Council, acknowledging this fact: "With all the bills paid, the City spent approximately $9.2 million."

Except all the bills weren't paid. Hollingsworth explained that the Host Committee had a shortfall of $1.8 million, and he was sending legislation to the City Council authorizing the city to pick up the tab. That brought the city's obligation to $11 million, or $2.65 million more than Weinstein's figure, despite his promise of "no additional financial obligations."

Where that money went remains largely a mystery. Some reimbursement information was included in the 25 boxes the city provided, but only in the form of vague invoices from the Host Committee. Nothing is itemized or specified with any level of detail. In a typical payment document, from Feb. 11, 2005, Karen Chastain sent J.B. Coxwell Contracting a check for $243,000 "for work at SuperFest" -- the Super Bowl-week street party financed by the city. An Oct. 11, 2004 letter from Host Committee CEO and Jaguars part-owner Tom Petway to then-Mayoral Chief of Staff Scott Teagle simply requests a payment of $80,000 (out of an $850,000 cash contribution from the city). Petway explains, casually, "These funds will be unitized for administrative, logistical and volunteer training programs as required for the final preparations for the Super Bowl." There is nothing to indicate that the city requested any more detailed accounting of this sum before it cut Petway a check.

The discovery of the 25 boxes opened up an avenue to recoup some of the costs of hiring attorney Thomas. State law allows legal fees to be recovered in cases where public access to public records was unlawfully denied. According to the Public Records Handbook, published by First Amendment Foundation of Florida, "attorney's fees and court costs are recoverable even where access is denied on a good faith but mistaken belief that the documents requested were exempt from public disclosure."

It's not clear that the city's willful refusal to turn over the records was a "good faith" error. The best Chastain could offer was that the information had somehow been overlooked. But the city agreed to pay a portion of our legal fees. Although the city originally verbally agreed to pay the entire $9,000 bill, in the end, it cut a check for $5,000. Thomas agreed to waive the remainder.

It was a small victory for public access. In an Aug. 5, 2008 letter, Thomas' senior partner William Sheppard mused on the significance of our effort. He explained that the suit had been necessary "to put public records on the table as the law requires." Although the law is pretty clear, he said, "our laws in this country are not self-executing and too often it takes someone with fortitude, resources and connections to make the government do right."

"When I look back on the experience," Sheppard concluded, "I can only realize that through you we were able to make the Public Records Act come alive."

In agreeing to settle with the city, however, we were also forced to acknowledge that, even with the law on our side, there was no way to compel the release of all the documents without a massive outlay of time and money. As City Attorney Steve Rohan made abundantly clear, the Host Committee -- and its city lapdogs -- are perfectly willing to endure "months, if not years of litigation," in order to keep their secrets secret.

Unfortunately, in their quest to keep public information hidden from the taxpaying public, they're working out of the deepest pockets of all: ours.

Folio Weekly

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