90 days for JCI to fess up?

I’ve been AWOL on reporting the ongoing court case against JCI and the St. Louis County Schools. It looks like the recent favorable opinion JCI got to withold public data could be put in jeopardy. Praise the Lord. If only I could have pried a little public data out of JCI before the Red Plan lived up to its name.

From the Timberjay:

Court of Appeals skeptical of J CI’ s public data claims

By Marshall Helmberger

ST. PAUL – The public’s right to know the details of major public construction projects faced a key test last Friday before a three-judge panel of the Minnesota Court of Appeals.

Arguing for the Timberjay Newspaper, attorney Mark Anfinson called on the court to uphold well-established law in Minnesota by overturning an administrative law judge’s ruling in January that said Johnson Controls Inc. did not have to turn over information sought by the newspaper.

In that instance, Judge Eric Lipman determined that JCI was not engaged in a “governmental function” when it contracted to manage construction of a $79 million school building project for the St. Louis County School District, and therefore was not subject to state laws governing the release of public information.

Anfinson noted that while the case centered around the release of an architectural subcontract, Judge Lipman’s ruling would apply to all information related to the project that JCI had not specifically provided to the school district. “Acceptance of [JCI’s] position would overturn ten years of accepted practice,” said Anfinson. “This case will affect every public contract going forward.”

The three judges who heard the case last week appeared to share Anfinson’s concerns about Judge Lipman’s decision and indicated they would offer little deference to the findings made by the administrative law judge.

The judges appeared equally skeptical of arguments made by attorneys for JCI and Architectural Resources, Inc., who stated that subcontracts related to the school district’s $79 million construction project should be kept secret not only from the newspaper, but even from school officials themselves.

Arguing for JCI, attorney David Lillehaug said the contract the company signed with the school district does not call for release of subcontracts, to anyone.

“I start from the position that everything is open,” said Chief Judge Larry Stauber, who countered that he saw nothing in JCI’s contract that expressly prevented release of the requested subcontracts. “It seems to me the school district has a right to know who the subcontractors are.”

Anfinson said state agencies routinely obtain copies of subcontracts on major projects, and those subcontracts are available for public inspection.

Judge Stauber expressed surprise that a similar approach wasn’t taken in the case of ISD 2142. “I don’t understand why the school district doesn’t have a copy of every single subcontract,” he said.

Lillehaug argued that JCI was not engaged in a “governmental function” when it was hired by ISD 2142 to oversee construction of two new schools and renovate three existing schools, and so was not subject to public information laws.

But judges pointed to the statute and to related decisions by prior courts, noting that in a very similar case (WDSI v. Steele County), involving architectural work for construction of a public jail, the court of appeals found that the architect involved was engaged in a governmental function and was subject to the state’s public information laws.

Lillehaug argued that WDSI was distinguishable from the current case because in the prior case, Steele County had “delegated decision-making authority” that was not the case with JCI and ISD 2142.

Judge Margaret Chutich questioned whether such a distinction exists in the law. “Look at the statute,” Chutich said. “It says ‘If a government entity enters into a contract with a private person to perform any of its functions’ it’s subject to the law. The statute is very clear and very broad,” said Chutich.

Lillehaug tried a different tack, arguing that a contractual provision that is supposed to notify contractors on public projects that they are subject to public information laws was missing from JCI’s contract with the school district. “The issue is what does the contract say,” Lillehaug said.

“But the school district didn’t draft the contract, JCI did” said Judge Stauber. Lillehaug responded that the school district had assistance from legal representation and should have included the warning had it wanted the law to apply.

Judge Margaret Chutich noted that the court rejected a similar argument to Lillehaug’s in the WDSI case, and found that contractors are subject to the law even if the notification is overlooked in their contract.

Attorney Anfinson said allowing contractors and public officials to evade public information laws by simply omitting a notification clause would invite regular abuses of the public’s right to know. Judge Chutich appeared to concur. “If a government entity leaves this out, suddenly the law has no effect?” she asked. “We know what could happen then.”

Attorney Steve Lindeman, representing ARI, faced equally skeptical questioning as he argued that releasing his contract with JCI could have “enormous implications” for his client, potentially providing competitors with inside information, including pricing information.
“It’s for a public project,” responded Stauber, somewhat incredulously.

Lindeman repeated Lillehaug’s line of argument, suggesting that ARI was not engaged in a governmental function when it drew up plans for the construction of new public schools and the renovation of existing ones.

“You’re saying your work is not a government function because it’s being laundered through JCI’s contract?” asked Stauber.

Lindeman faced more trouble over an issue first raised by Anfinson during his arguments. Anfinson noted that mistakes in the architectural work completed by ARI had forced the school district to make dozens of costly change orders, and that the Timberjay wanted to review the contracts to determine if it might be possible for the school district to seek recovery for the errors.

“The appellant is saying there are all these overages. But you’re saying all of this should be shrouded,” said Stauber. “What about these overages?” Stauber asked.

Lindeman responded that the issue had not come up earlier and wasn’t in the official record of the case.

“I don’t care if it’s in the record,” responded Stauber, “is it true?”

Lindeman looked for a way out. “I see that my time is up, your honor,” he said.
“That’s okay, go ahead and answer,” shot back Stauber.

Lindeman never answered directly, but the damage had been done.

The three-judge panel now has 90 days to issue its decision.