The City’s Secret Committee

This has been bugging me for a while, my (kinda) open records request was also denied, but the real issue is that the business community has a member on the committee, but the neighborhoods don’t. And I think they are in violation of the open meetings law. Thanks to Joe Tarr for his article and reminding me to look into this again. I’ll share the little info I do have.

OOPS, CAT IS/HAS BEEN OUT OF THE BAG, SEE WHO IS ON THE COMMITTEE
Alder Maniaci sent this to a neighborhood listserve a while ago, which is what got me asking what was going on.

From: Mikolajewski, Matthew
Sent: Monday, June 20, 2011 3:03 PM
To: Maniaci, Bridget
Subject: FW: East Washington RFP Selection Committee Update

Matthew B. Mikolajewski
Office of Business Resources Manager
Economic Development Division
Dept. of Planning & Community & Economic Development
City of Madison
215 Martin Luther King, Jr. Blvd., Room 312
P.O. Box 2983
Madison, WI 53701-2983
Phone: 608.267.8737
Fax: 608.261.6126
Email: mmikolajewski@cityofmadison.com
Web: www.cityofmadison.com/business/obr

From: Mikolajewski, Matthew
Sent: Friday, June 17, 2011 4:43 PM
To: Rhodes-Conway,Satya; Rummel, Marsha; Maniaci, Bridget; Cover, Steven; Erdman, Natalie; ‘Edward G Clarke’; ‘tom@dimdevllc.com’
Cc: Monks, Anne; Olver, Aaron; Marx, Don; Fruhling, William; ‘jbower@bowergrp.com’; ‘Rob Gottschalk’; ‘Dana Arnold’
Subject: East Washington RFP Selection Committee Update
Importance: High

RFP Selection Committee Members-

You should have now all received, or will soon receive, six proposals in response to the 700/800 Block East Washington RFP. Following are some updates/reminders regarding the process.

· On Thursday, June 23rd at 4:30 PM, we have scheduled a pre-interview meeting for the selection committee. This meeting will provide you with an opportunity to discuss any initial questions or concerns that you have with City staff; and, to discuss logistical issues with the interview process. The meeting will be in MMB LL-130.

· The interviews have been scheduled for Monday, June 27th from 8:00 AM to 4:30 PM. I have included an hour lunch break from 11:30 to 12:30. The interviews will be held in MMB LL-110. We will work on scheduling specific time slots with respondents next week.

· We are working on scheduling a neighborhood stakeholder meeting for the evening of Thursday, July 7th. The purpose of this meeting will be to report back to interested residents and stakeholders on the progress of the selection committee. If the selection committee desires, we can ask one or more respondents to attend and present their proposals. We are still working on a time and location. If selection committee members are available, it would be great for you to attend this.

· Within your packets are six proposals that were reviewed by staff and determined to meet the basic submittal requirements of the RFP. Staff have not yet made any judgment calls on the quality and quantity of the information presented, and you will note that there is variation in the type of information provided. There was a seventh proposal submitted that staff determined not in compliance with the basic requirements of the RFP, and the selection committee will not be asked to interview this respondent. Staff will follow-up with the respondent to thank him for his proposal.

· The City staff/consultant team cc’d on this email have also received the proposals. Over the next week, we will all review the proposals in more detail and furnish you with information about any “red-flags” or concerns that are raised from a staff perspective. We will also pull together a matrix/checklist to help you with your reviews during the interviews. As there is no checklist/matrix found within your current packets, we recommend reading the proposals and jotting down questions, concerns, pros/cons of the proposals as you see them.

· To help you with your review, you may wish to review the RFP first, which is still available through the city website at www.cityofmadison.com/business.

· In forming the selection committee, we did our best to identify individuals who we thought would not have a direct interest (financial, family, etc.) with any of the respondents. As you begin to review these proposals, if you realize that you in fact have an interest in one of these projects, please let me know ASAP.

· To insure a fair review process, we have kept these proposals confidential to date and would ask that you do the same. With a few necessary exceptions, no one outside of this email currently knows who the respondents are. The respondents do not currently know who is on the selection committee. We want to give everyone a fair opportunity to appear before you, and for you to gain an understanding of the proposals, without additional outside influence. Once the interviews have been held, there will be plenty of opportunities for public input, including the stakeholder meeting scheduled for July 7th. Any Purchase and Sale Agreement prepared with any of the respondents will require Common Council approval (a public process). All successful respondents will be subject to all standard Plan Commission and UDC review/approval (further public review) before they would be able to proceed. As such, you are being asked to help the City select the respondents that we should partner with initially to see if their proposals will work, and be acceptable to the community. You are not being asked to approve these projects.

Please don’t hesitate to let me know if you have any questions or suggestions.

Thank You,

Matt

Matthew B. Mikolajewski
Office of Business Resources Manager
Economic Development Division
Dept. of Planning & Community & Economic Development
City of Madison
215 Martin Luther King, Jr. Blvd., Room 312
P.O. Box 2983
Madison, WI 53701-2983
Phone: 608.267.8737
Fax: 608.261.6126
Email: mmikolajewski@cityofmadison.com
Web: www.cityofmadison.com/business/obr

COMMITTEE MEMBERS
For those of you who didn’t recognize all those names, here’s the scoop:
To:
Rhodes-Conway,Satya; = Alder, District 12
Rummel, Marsha; = Alder, District 6
Maniaci, Bridget; = Alder, District 2
Cover, Steven; = Director of Planning Community and Economic Development for the City
Erdman, Natalie; = Director of the CDA (Community Development Authority), a quasi=governmental arm of the city
‘Edward G Clarke’; = See below
‘tom@dimdevllc.com’ = Tom Langraf – not sure why he’s included, he is often a consultant for the city, but I’m unclear his role here

Cc:
Monks, Anne; = Mayor’s office staff
Olver, Aaron; = Economic Development Director for the city
Marx, Don; = City Staff, Real Estate
Fruhling, William; = City Staff, Planning Department
‘jbower@bowergrp.com’; = Frequent consultant to the city on all kinds of projects
‘Rob Gottschalk’; = Frequent consultant to the city, Vandewalle and Associates
‘Dana Arnold’ = Dunno this one, but I’m assuming he/she is part of the consulting team

Of course, this brings up, how much are we paying for consulting on this project?

SO, CAN I SEE THE APPLICATIONS?
So, that email raised several questions . . . and I tried to get some answers, but here is what I was told.
My email to city attorney’s office guru on open records and open meetings:

Roger –
I was going to inquire about these applications because I keep hearing about them, but then my alder sent out this to my listserve. See the portion below where Matt says these are to be kept confidential. Can they do that? At what point do they become subject to open records? And can I get all of them, even those that didn’t make the cut? I thought they would be available to the public the due date of the RFP. Thoughts? I really do want to see them and would do an open records request for them.

Brenda

p.s. Matt, don’t mean to go around you, I just know Roger is the dude who knows the answers! 🙂 Also, I”m wondering why no neighborhood people are on the committee, but the business community or EDC seems to have a representative.

– – snip – – see above.

Roger Allen’s Response:

Brenda,
Thanks for the “expert” designation. Here are my thoughts.

As you know, I represent the interests of the City as a legal entity and it would be inappropriate, perhaps even unethical, for me to provide legal advice to individual members of the public. Therefore, I am not in a position to tell you whether you should or should not make a public records request as contemplated in your email below.

However, I’ll try and walk a tightrope here and share some facts with you that may be pertinent to your decision on whether to make a public records request. It is my understanding that one proposal that was “cut” was rejected for failing to meet the submission requirements of the RFP. There was no consideration of the merits of the proposal.

The “Selection Committee” is an informal body of advisors to the City. It is not a formally constituted body. This body is very much like the body of volunteers who review and score employment applications. The “Selection Committee” has not finished its review of the proposals and therefore, none of the remaining proposals have been “cut” from the review process at this time. Once that body makes its recommendations I believe that these proposals could be subject to disclosure under Wisconsin’s Public Records Laws. However, I have not reviewed those proposals and cannot make any representations regarding whether all of the contents of those documents would be subject to disclosure.

I have not interpreted your email as an actual public records request. It seems more like you were asking if you should make a request at this time or at some later time. I can’t answer that question for you but I hope that I have supplied enough information for you to resolve that question.

– – snip, personal comment to me – –

OPEN MEETINGS LAW FOLLOW UP
So, I kinda just stopped looking into it and got distracted by something else, however, I should have kept following up, because this language from the Attorney General about open meetings has been sort of haunting me.

The definition of “governmental body” includes a “state or local agency, board, commission, committee,
council, department or public body corporate and politic created by constitution, statute, ordinance, rule or
order[.]” Wis. Stat. § 19.82(1). This definition is broad enough to include virtually any collective governmental
entity, regardless of what it is labeled. It is important to note that a governmental body is defined primarily in
terms of the manner in which it is created, rather than in terms of the type of authority it possesses. Purely
advisory bodies are therefore subject to the law, even though they do not possess final decision making power, as
long as they are created by constitution, statute, ordinance, rule, or order. See State v. Swanson, 92 Wis. 2d 310,
317, 284 N.W.2d 655 (1979).

The words “constitution,” “statute,” and “ordinance,” as used in the definition of “governmental body,” refer
to the constitution and statutes of the State of Wisconsin and to ordinances promulgated by a political subdivision
of the state. The definition thus includes state and local bodies created by Wisconsin’s constitution or statutes,
including condemnation commissions created by Wis. Stat. § 32.08, as well as local bodies created by an
ordinance of any Wisconsin municipality. It does not, however, include bodies created solely by federal law or by
the law of some other sovereign.

State and local bodies created by “rule or order” are also included in the definition. The term “rule or
order” has been liberally construed to include any directive, formal or informal, creating a body and assigning it
duties. 78 Op. Att’y Gen. 67, 68-69 (1989). This includes directives from governmental bodies, presiding officers
of governmental bodies, or certain governmental officials, such as county executives, mayors, or heads of a state
or local agency, department or division. See 78 Op. Att’y Gen. 67.

Of course, because it is all being kept secret, its hard to tell what is going on, but it appears that a head of a “local agency, department or division” has “informally” set up this committee, and therefore the open meetings laws apply. Matt Mikolajewski is the “Manager” of the “Office of Business Resources”, the top guy. And my guess is his boss, Andrew Olver, the Economic Development Director told him to set up this committee.

BUSINESS LEADERS OK, NEIGHBORHOOD LEADERS, NOT SO MUCH
The Second thing bugging me is Ed Clarke. He is on the Economic Development Commission and often chairs the meetings in the absence of Doug Nelson from M&I, or whatever they are called now. The more troubling thing is who is Ed Clarke. Well, he’s on the boards of both THRIVE and DMI, both business lobbying groups. In fact, he’s the Chair of DMI.

So, the business community has been able to ensure that their interests are well represented, but from Joe Tarr’s article, we have:

Maniaci, says she lobbied to have a meeting with neighborhood groups, but was overruled by the other committee members.

I understood that Rummel and I thought Rhodes-Conway argued the same. And the answer back was that the alders represented the neighborhood interests (and not the business interests?) so they didn’t need a neighborhood representative. But, they were outnumbered . . . so therefore the neighborhood interests were also outnumbered. Great.

TOO MESSY?
Don Marx’s explanation for keeping these records secret according to the Isthmus was:
“It is important that the selection committee’s decision be reflective of the actual merits of the proposals and not the product of undue political influence and perceived public opinion. Withholding these proposals from public disclosure at this time promotes the public interests of having an independent body provide the city with an unbiased, candid and objective assessment of them.”

No it doesn’t, it promotes the business community interests and denies the rest of the public a even playing field! The business community already is lobbying their butts off, and all they are doing by preventing it from “being messy”, is denying the neighborhoods and other interested parties from having equal access, benefiting members of the business community and disadvantaging the people who are going to have to live next to and with this project.

My bigger disappointment is the alders buying the public process being too messy. And saying that we will have a public process after they have decided which project wins is classic Mayor Dave way of doing things . . . we’ll make the important decisions and then you tinker with it. I had hoped we had gotten away from that, but this process makes me see we have not. And worse, the alders have stopped fighting that thinking.

SO, WHAT HAPPENED TO THE PUBLIC PROCESS?
According to the email:

· We are working on scheduling a neighborhood stakeholder meeting for the evening of Thursday, July 7th. The purpose of this meeting will be to report back to interested residents and stakeholders on the progress of the selection committee. If the selection committee desires, we can ask one or more respondents to attend and present their proposals. We are still working on a time and location. If selection committee members are available, it would be great for you to attend this.

Did they mean July 2012? Cuz as far as I know, this didn’t happen.

DRIVING OUR COSTS UP, BIGGER TIF REQUESTS
Equally disturbing is this thinking (again from the Isthmus article):

Mikolajewski says that making the proposals public now would put developers negotiating with potential tenants at a disadvantage: “If suddenly other people knew who was talking to who, they could say, ‘I could do this for less.’ You create a detrimental situation where people are confusing the negotiation process.”

Wait, what? We don’t want to let the market work, we are shielding them from that process? And what does that mean for the Madison taxpayer, it likely means that we will have a bigger TIF request for whatever project is approved. Isn’t that the exact opposite of what we want?

CONCLUSION
Quite frankly, I think this is bullshit. I think they violated the open meetings laws, I”m disappointed in the alders in not fighting harder for neighborhood input and a transparent process and helping to shield the business community interests and I think its absurd that we would be helping the developers make more money and drive up the TIF request. What I’m even more disturbed by is that this is a pattern with the Economic Development Division and I”m disappointed we haven’t seen any changes to this thinking. This is our own little microcosm of what is going on at the state and it stinks.