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| Having nothing to do with Ramsey - Is it a valuable bird dog that invites in a skunk? reprinted from July 1, 2011 |
Outsourcing, privatization, call it what you want. But are there any contract terms implied at law, or which if not included in a privatization would void the deal?
The question arises in the context of the McGlone family and the Emily McGlone employment by Flaherty's people, and the why in the world lady did you not just say no situation, see preceding posts.
Crabgrass reader "Ryan" in comments here and here noted:
I've heard talk of not wanting anything to even "smell" of impropriety when HRA dealings are in play and this disappointingly "smells". It doesn't even matter if Mrs. McGlone is perfectly qualified for the job, this was just flat out a mistake and a poor PR move by the council/city whomever is responsible. And i can't wait to hear about the fact that it's a private market opportunity and she has every right to apply. The bottom line is the city is WAY too involved in this project to consider this private market....DISAPPOINTED
and
This reflects poorly on the council and the city and now I'm wondering when the next "anonymous" letter will be plastered in the Star Tribune ruining the reputation of our great town again. DISAPPOINTED! And go ahead and tell me that I don't know all the details because I admit I don't. What you obviously don't realize is that it doesn't matter in the court of public opinion. On the surface this flat out looks bad, and in a lot of cases the surface is all it takes to turn would be truly private land buyers and developers away from a project that has alleged impropriety involved with it.
[emphasis added] So, what's that to do with privatization? Well, during the one time I spoke at the Flaherty trailer location in Town Center with Colin's wife, she responded to an inquiry that her employment contract was a private thing, her employer need not disclose anything to me, and she then added, "They told me I do not have to tell you anything." Despite that, she did disclose that her job was brokered in part through Ryan Cronk - a city fiduciary - that is, owing the city a duty of loyalty and dealing in the city's interest - a fiduciary loyalty fitting a dog often in cartoons, named, "Fido." (Same Latin origin for both words.)
Laying out aspects of a key privatization: As an initial observation, the latest privatization after key competent engineering people left for greener pastures, is reported by Sakry, here.
All this has more to do with an earlier privatization, one coincident in time with the city buying distressed Town Center land pending foreclosure a few summers ago (in 2009 if I remember correctly i.e., before Matt Look quit on his city council job mid-term to chase the bigger county board paycheck), with the city bot buying that mess out of foreclosure and deciding to play developer - amateur hour - and contracting then to privatize the PR function of development, with the hoopla machine contract having been awarded to Vegas-loving Landform folks who conjured up a "so-called" Development Management Team [but you may ask, "Where's the development when all I see is "rebranding" and a big sign on the highway"]. There were initially three outsiders brought in, along with Nelson on staff joining, but with the city's "Development Management Team" presently contracted to two individuals, Darren Lazan and Ryan Cronk, with no staff person reassigned to the role Nelson exercised.
These Screenshots, show how the City created a semi-privatized hoopla organ called "COR at Ramsey" (red commentary and highlighting added to current as-of-today screenshots below).
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| From City homepage; click to enlarge and read |
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| From City webpages, here; click to enlarge and read |
Clearly, the semi-privatization hybrid was launched as semi-official - taking on governmental functions while expressly including a city official, Nelson, as part of the so-called Development Management Team with her retaining that roll up until she left for greener pastures. The thing has always stood that interlocked with the city, from its inception.
So, Cronk and Lazan are fiduciaries and perform a delegated Governmental Function re city-owned real estate -- so what? Well, in its wisdom our legislature contemplated that privatization could be used as a mode of avoidance of a great Minnesota sunshine statute, the Public Data Act, and in anticipation that unprincipled folks might use any allowed loophole to drive a dark truck through, they specifically made it binding law on municipalities and those to whom outsourcing contracts are awarded, that no such mischief would be tolerated; Minn. Stat. Sect. 13.05, subd. 11, with Sect. 13.05 creating a timely compliance duty with Ramsey's City Clerk per her designation as Public Data Act compliance agent for the city; and with Subd. 11 closing the "hiding it via privatized contracting and/or outsourcing" loophole [stating, with emphasis added]:
Subd. 11.Privatization.
(a) If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision.
(b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.
That's some pretty good stuff. Sunshine-wise. Citizens are not mushrooms is what it says, and you cannot privatize sunshine away.
There are only two legitimate ways to look at the law; and I like both. Either that provision, by its enactment is an implied covenant in any city-privatization contract whether expressly written or not; or any contract written without it is void as against public policy. Now, in the latter case that would mean a void contract, Darren would be entitled to no commissions and would have to make restitution of any city money his firm has received; less what he might be entitled to in quantum meriut, which to me is zero because he and his magic dashboard spreadsheet stuff (which Elvig claims to never get to see enough of), has that apparent discernible value, in my judgment, although Lazan and Cronk may argue otherwise.
I suppose there is a third legitimate way to look at things; stonewalling by Cronk and/or Lazan would be a material breach of contract, a breach of fiduciary duties owed City of Ramsey (compliance with law being implicitly required), and a willful and intentional breach of clear law; which collectively would entitle the City to refuse performance of contract obligations otherwise applicable to the City - such as payment of commissions, as but one example. And if there were to anyway be a paying money not owed after a contract breach happens - what would that say about officials and their view of public duty? It would be like wiping one's feet on a Public Data Law copy. Ugly in the extreme.
Hat tips. A reader having knowledge of Public Data Law requirments deserves thanks for calling all of MS Sect. 13.05 to my attention. The Timberjay newspaper in Ely, and its owner-publisher, Marshall Helmberger, deserve a big-time hat tip, for being a real newspaper doing investigative journalism of a kind we in the north metro should want to have. Helmberger's public data disclosure efforts have been reported here, here, here, and here for example [with the first two items public and not behind a subscription wall], and he has litigated against a stonewall by privateers (that is the term for privatization beneficiaries, isn't it?).
Helmberger's effort has established a Dept. of Administration precedent; this link.
So, what's Crabgrass' data request to be? Well, it is written and submitted before this post is published, so, here it is in its most relevant part:
There probably are shorter ways to phrase requests to pin things down, but anybody saying it is unclear what is requested and what the aim is cannot be sincere in saying that.
Good faith with the City's primary election now less than a month away is to not stonewall or play games. I think people will be reasonable that way. After all, stonewalling leaves citizens in their voting to draw whatever conclusions they may, while disclosing the pay level and history of Emily McGlone getting that job might disarm the worse of suspicions.
___________UPDATE___________
In looking at that request item, there is a bit of confusion of wording on the item's number 4 entry; but standing on what's there and clear, especially on the first three requests makes sense. I want the Landform insiders, per law, to disclose what they did while owing the city a fiduciary duty and having a disclosure duty derivative of the City's, per MS 13.05, subd. 11.
In the precedential situation up north: The initial ALJ determination re the Timberjay paper that was overturned on administrative review was reported in part, here.
Interestingly, dubious bonding was at issue too; this link (with Timberjay discussion concerning possible intentional effort to bypass sunshine via sequentializing contracts rather than sensibly making them parallel); see closing MPR paragraphs:
"The big concern here is if companies like Johnson Controls can use this as sort of an umbrella contract, and then they go out and hire everybody," Helmberger said. "That could be riddled with conflicts of interest and secret deals ... and their contention is that the public would never be able to see any of those contracts."
The Data Practices statute says data kept by private companies in the course of performing a government function should be public, but the statute doesn't define government function, said Mark Anfinson, a media attorney who helped Helmberger on the case.
Anfinson said the case is significant for those who believe the public and the media should be able to examine government contractors' records.
"It's an important precedent, because it deals with an important aspect of government, which is private companies that do contract work with government — a pretty big portion of the whole stream of business in this state," he said.
[emphasis added] In another MPR item, under the subhead, "FROM CONSULTANT TO PROJECT MANAGER" the situation is further explored. An interesting side observation, this official item was signed off on by a "Spencer Cronk."
But anyway, all that funny contracting stuff, that's up on the Iron Range.
Not in our fine upstanding pillar-of-rectitude Ramsey. Where there would not be a blanket Development Management Team contract where subcontracting disclosure could arguably be suppressed, right? Not Ramsey, no intentional stonewall interposition.
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In closing, again, I refirm and reemphasize my expectations - i.e, looking forward to both good faith and promptness in a response duty being met as befits time pressures of having a primary election weeks away.