{"id":7143,"date":"2012-07-27T13:02:36","date_gmt":"2012-07-27T18:02:36","guid":{"rendered":"http:\/\/lincolndemocrat.com\/?p=7143"},"modified":"2017-02-27T19:51:46","modified_gmt":"2017-02-28T00:51:46","slug":"90-days-for-jci-to-fess-up","status":"publish","type":"post","link":"https:\/\/lincolndemocrat.com\/?p=7143","title":{"rendered":"90 days for JCI to fess up?"},"content":{"rendered":"<p><em>I&#8217;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.<\/em><\/p>\n<p>From the Timberjay:<\/p>\n<p><strong>Court of Appeals skeptical of J CI\u2019 s public data claims <\/strong><\/p>\n<p>By Marshall Helmberger <\/p>\n<p>ST. PAUL &#8211; The public\u2019s 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. <\/p>\n<p>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\u2019s ruling in January that said Johnson Controls Inc. did  not have to turn over information sought by the newspaper. <\/p>\n<p>In that instance, Judge Eric Lipman determined that JCI was not engaged in a \u201cgovernmental function\u201d 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. <\/p>\n<p>Anfinson noted that while the case centered around the release of an architectural subcontract, Judge Lipman\u2019s ruling would apply to all information related to the project that JCI had not specifically provided to the school district. \u201cAcceptance of [JCI\u2019s] position would overturn ten years of accepted practice,\u201d said Anfinson. \u201cThis case will affect every public contract going forward.\u201d<\/p>\n<p>The three judges who heard the case last week appeared to share Anfinson\u2019s concerns about Judge Lipman\u2019s decision and indicated they would offer little deference to the findings made by the administrative law judge. <\/p>\n<p>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\u2019s $79 million construction project should be kept secret not only from the newspaper, but even from school officials themselves. <\/p>\n<p>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. <\/p>\n<p>\u201cI start from the position that everything is open,\u201d said Chief Judge Larry Stauber, who countered that he saw nothing in JCI\u2019s contract that expressly  prevented release of the requested subcontracts. \u201cIt seems to me the school district has a right to know who the subcontractors are.\u201d<\/p>\n<p>Anfinson said state agencies routinely obtain copies of subcontracts on major projects, and those subcontracts are available for public inspection. <\/p>\n<p>Judge Stauber expressed surprise that a similar approach wasn\u2019t taken in the case of ISD 2142. \u201cI don\u2019t understand why the school district doesn\u2019t have a copy of every single subcontract,\u201d he said. <\/p>\n<p>Lillehaug argued that JCI was not engaged in a \u201cgovernmental function\u201d 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. <\/p>\n<p>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\u2019s public information laws. <\/p>\n<p>Lillehaug argued that WDSI was distinguishable from the current case because in the prior case, Steele County had \u201cdelegated decision-making authority\u201d that  was not the case with JCI and ISD 2142. <\/p>\n<p>Judge Margaret Chutich questioned whether such a distinction exists in the law. \u201cLook at the statute,\u201d Chutich said. \u201cIt says \u00e2\u20ac\u02dcIf a government entity enters into a contract with a private person to perform any of its functions\u2019 it\u2019s subject to the law. The statute is very clear and very broad,\u201d said Chutich. <\/p>\n<p>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\u2019s contract with the school district. \u201cThe issue is what does the contract say,\u201d Lillehaug said. <\/p>\n<p>\u201cBut the school district didn\u2019t draft the contract, JCI did\u201d 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. <\/p>\n<p>Judge Margaret Chutich noted that the court rejected a similar argument to Lillehaug\u2019s in the WDSI case, and found that contractors are subject to the law even if the notification is overlooked in their contract. <\/p>\n<p>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\u2019s right to know. Judge Chutich appeared to concur.  \u201cIf a government entity leaves this out, suddenly the law has no effect?\u201d she asked. \u201cWe know what could happen then.\u201d<\/p>\n<p>Attorney Steve Lindeman, representing ARI, faced equally skeptical questioning as he argued that releasing his contract with JCI could have  \u201cenormous implications\u201d for his client, potentially providing competitors with  inside information, including pricing information.<br \/>\n\u201cIt\u2019s for a public project,\u201d responded Stauber, somewhat incredulously. <\/p>\n<p>Lindeman repeated Lillehaug\u2019s 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. <\/p>\n<p>\u201cYou\u2019re saying your work is not a government function because it\u2019s being laundered through JCI\u2019s contract?\u201d asked Stauber. <\/p>\n<p>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. <\/p>\n<p>\u201cThe appellant is saying there are all these overages. But you\u2019re saying all of this should be shrouded,\u201d said Stauber. \u201cWhat about these overages?\u201d Stauber asked. <\/p>\n<p>Lindeman responded that the issue had not come up earlier and wasn\u2019t in the official record of the case. <\/p>\n<p>\u201cI don\u2019t care if it\u2019s in the record,\u201d responded Stauber, \u201cis it true?\u201d<\/p>\n<p>Lindeman looked for a way out. \u201cI see that my time is up, your honor,\u201d he said.<br \/>\n\u201cThat\u2019s okay, go ahead and answer,\u201d shot back Stauber. <\/p>\n<p>Lindeman never answered directly, but the damage had been done.   <\/p>\n<p>The three-judge panel now has 90 days to issue its decision. <\/p>\n","protected":false},"excerpt":{"rendered":"<p>I&#8217;ve been AWOL on reporting the ongoing court case against JCI and the St. Louis County Schools. It looks like the recent favorable opinion&#8230;<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[102,80],"tags":[],"_links":{"self":[{"href":"https:\/\/lincolndemocrat.com\/index.php?rest_route=\/wp\/v2\/posts\/7143"}],"collection":[{"href":"https:\/\/lincolndemocrat.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lincolndemocrat.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lincolndemocrat.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lincolndemocrat.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=7143"}],"version-history":[{"count":6,"href":"https:\/\/lincolndemocrat.com\/index.php?rest_route=\/wp\/v2\/posts\/7143\/revisions"}],"predecessor-version":[{"id":20165,"href":"https:\/\/lincolndemocrat.com\/index.php?rest_route=\/wp\/v2\/posts\/7143\/revisions\/20165"}],"wp:attachment":[{"href":"https:\/\/lincolndemocrat.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=7143"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lincolndemocrat.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=7143"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lincolndemocrat.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=7143"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}