Following up on my 10/12/2005 Open Records request regarding closed discussions (particularly the terms) of the Madison School District’s purchase of land for a new elementary school on the far west side, I recently filed the following open records complaint with District Attorney Brian Blanchard: Background:
The complaint’s text follows:
Letter:
Mr. Brian Blanchard
Dane County District Attorney
City County Building
210 Martin Luther King Blvd. Room 523
Madison, WI 53703
Dear Mr. Blanchard:
Please find attached an open records complaint pursuant to Wis. Stat. § 19.37 against the Madison Metropolitan School District.
I believe that public knowledge of and confidence in government activities is vital to our society. Jefferson commented often on politics, people, public education and government, including these words: “Whenever our affairs go obviously wrong, the good sense of the people will interpose and set them to rights.” –Thomas Jefferson to David Humphreys, 1789. ME 7:322
Disregard of the open records statutes undermines public confidence in our taxpayer funded schools. I urge you to address this matter forcefully and expeditiously.
Yours truly,
James E. Zellmer
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OPEN RECORDS COMPLAINT
I, James E. Zellmer, file this open records complaint pursuant to Wis. Stat. § 19.37. I allege and complain as follows:
1. I am a resident of the City of Madison, Wisconsin and my address is 4224 Waban Hill 53711.
2. I file this open records complaint against the Madison Metropolitan School District which has a business address of 545 West Dayton Street, Madison, WI 53703.
3. I filed an open records request by e-mail-with Clarence Sherrod, the attorney for the Madison Metropolitan School District on October 12, 2005. A copy of the request is attached as Attachment A to this complaint. Later on October 12, 2005, Mr. Sherrod indicated by e-mail that he had referred my request to the District’s legal custodian for a reply. A copy of Mr. Sherrod’s response is attached as Attachment B to this complaint.
4. My open records request requested copies of any agreements signed this year by the Madison Metropolitan School District or its representatives to purchase land for a school site. I specifically indicated that I understood the issue of purchasing land for a school site was discussed by the Madison Board of Education on October 10, 2005.
5. On October 25, 2005, I received a reply to my open records request from Robert Nadler, the District’s Custodian of Records denying my request as to the agreement discussed at the Board of Education’s October 10, 2005 meeting. A copy of the reply is attached as Attachment C to this complaint.
6. The October 25, 2004 response indicated that the request was being denied because:
a. The agreement has not been finally approved by the Board.
b. The agreement has contingencies which have not been removed by the Board and release of the agreement would place the School District at a competitive disadvantage in the bargaining of the contract.
c. Because the School District has not removed certain contingencies, the School District may choose to renegotiated certain terms and conditions of the agreement and the release of the agreement would place the School District at an unfair disadvantage in that negotiation.
d. If the agreement was released, third parties may seek to enter the bargaining process and place the School District in a disadvantageous position in negotiation.
e. Release of the requested agreement would inhibit the competitive bidding process if all agreements concerning the School District’s attempts to purchase property were released before final approval by the Board of Education.
7. I understand that on the afternoon of Friday, November 4, the School District released to the public as part of the School Board’s packet for its November 7, 2005 meeting, the agreement sought by my open records request. The agenda for the Board of Education’s November 7, 2005 meeting included purchasing land for a school site.
8. The agreement sought by my open records request was a Vacant Land Offer to Purchase. The Vacant Land Offer to Purchase is a written agreement signed by the seller on September 23, 2005, and the Madison Metropolitan School District as the buyer on September 26, 2005. The agreement was signed by Roger Price on behalf of the School District.
9. Given a written agreement exists which requires the seller to sell the property to the School District, and given that only the School District had the option to get out of the contract, there was no competitive or bargaining reason for the signed written agreement to be withheld from the public. This is consistent with 81 Op. Atty Gen. 139 (1994).
10. Public access to land purchase agreements after negotiations are complete but before final approval of the transaction is consistent with the policy behind the open records law as stated in Wis. Stat. § 19.31. “In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.”
11. The School District’s refusal to release the signed written agreement because the agreement had not been finally approved by the School Board, and the School District could therefore choose to renegotiate certain terms and conditions of the agreement, is contrary to the open records law. Indeed, if the School District’s interpretation of the open records requirements is correct, then the School District would presumably be justified in not releasing any written agreement for any purpose until after the agreement was approved by the School Board. If that was the case, public comment, input and scrutiny on all District contracts would be foreclosed.
12. In order to protect the public’s right to information about the School Board’s important decisions, I make this complaint to the District Attorney for Dane County under the provisions of Wis. Stat. § 19.37(1)(b). I hereby request that the District Attorney for Dane County institute an action against the Madison Metropolitan School District and Robert Nadler, legal custodian, to recover the forfeiture provided in Wis. Stat. § 19.37(4) together with reasonable costs and disbursements as provided by law.
Dated: _________________________ __________________________________
James E. Zellmer
I agree with you that in this particular instance the school district was not justified in keeping the land purchase secret from the public. I agree because I infer from the way the property was priced (i.e., at the seller’s cost) that seller wanted to sell the property specifically to MMSD, not to the highest bidder. In general, however, I strongly disagree with point #9 that once the seller is contractually bound there is no longer any competitive or bargaining reason to withhold the details of an agreement from the public. As long as contingencies are still pending, a deal may have to be renegotiated. If the deal has been publicized, the buyer’s bargaining power may be compromised. For example, let’s say that MMSD enters into an agreement to purchase land from a seller that wants that to get the highest possible price for his property. MMSD publicizes the deal during the contingency period. Another party consequently learns of the deal and makes a backup offer to the seller. Then MMSD does a soils test (one of the contingencies) on the property and learns that it will need to spend, say, $50,000 more than it anticipated for site work (e.g., soil compaction). MMSD attempts to renegotiate the deal to get the seller to lower the price by $50,000 because the soil condition is such that the property is not worth as much as MMSD originally thought. Because the seller has a backup offer, he will be much less inclined to agree to reduce the price. That’s why, in general (albeit not in this particular instance), MMSD would, IMO, be justified in not publicizing land purchases until all contingencies have been removed.