The city is ignoring orders from the state to release documents about the Newton North High School project.
Their reason? Because they say so.
“We believe that our position is legally supportable and a better read of the public records law than that which you and the Supervisor of Public Records have taken,” City Solicitor Dan Funk wrote on Oct. 27, 2009 to the Plumbers & Gasfitters Local 12, which has requested information about plumbing trade contracts at Newton North.
The contracts were rewarded to Sagamore Plumbing, a non-union shop.
The city is relying on its interpretation of the law to deny the public records request. Local 12 and the city have clashed over North before, and the city settled with the union in order to avoid delays in the North project.
In 2008, the union contested the city’s awarding of the plumbing bid to Sagamore; the state Attorney General’s office ruled in favor of the union and said it would go to court to enforce that ruling. To avoid an injunction, which would have had “catastrophic” effects on the North project, according to the city solicitor, the city paid a $100,000 settlement to Local 12 in September 2008.
“Even the slightest delay in the project schedule imposed by an injunction would likely result in a catastrophic, financial impact on the project, including delaying the opening of the school,” wrote Funk in a letter to Mayor David Cohen dated Sept. 29, 2008, recommending settlement.
The work done by Sagamore under that contract has since come under review from the state Plumbing Board (see related story).
Now, in the Oct. 27 letter, Funk said the city would continue to oppose releasing more records based on its view of the law.
“Whether this matter goes to a higher authority remains to be seen; however, our legal position is based purely upon our read of the law. Any suggestion the city is seeking to hide records is absolutely baseless,” Funk wrote.
But Kevin Cotter, business manager for Local 12, said the union was only trying to get information on a project they felt was mismanaged.
“It’s been troubling, to be honest with you,” Cotter said. He added later, “This stuff, in my opinion, should be pretty transparent.”
According to a letter dated Oct. 19 of this year from Cotter to the solicitor’s office and the Board of Aldermen, the union requested documents about the project, including contractual and payroll data, and the city denied the request. Cotter said the union appealed to the state Supervisor of Public Records twice, and both times the supervisor agreed with its request.
But the still city refused to release the documents.
“For some reason, they’re still taking the position that this is not public information,” Cotter said.
The Oct. 27 letter from Funk defends the city’s repudiations of both the Supervisor of Public Records and the attorney general in the earlier bid protest.
“We have great respect for these agencies and the decisions that they reach,” Funk wrote. “However, in both the bid protest and the public records dispute, we disagreed with them based purely upon our understanding of the applicable law. These disagreements are matters of principle that make a difference to the city and have ramifications that can include additional costs and application to future projects.”
This is not the first time that the city’s legal department has disagreed with the state over interpretation of the law. The city fought challenges to its use of Community Preservation Act money in 2006 and 2007, losing in Middlesex Superior Court and the Supreme Judicial Court. In both cases, the city argued that it interpreted the law about using CPA funds properly, even though state guidelines prohibited using the money in the fashion the city proposed.
This time, the dispute is turning ugly.
“Isn’t it arrogant to state that the city’s position respectfully disagrees with an administrative order and disrespects the authority of the Secretary of State’s office?” Cotter wrote in the Oct. 19 letter. “… one can only assume that the continuous refusal to adhere to such an order lends itself to the question of a conspiracy, and if so, at who’s [sic] expense, the taxpayers?”
“While I appreciate your frustration over not receiving all of the voluminous records you have requested that is not an excuse for your reprehensible and offensive tone and substance,” Funk shot back in his Oct. 27 letter. “You have every right to disagree with the city; it is unfortunate that you have chosen to disagree in such a disrespectful manner.”
