Can FitzGerald keep county HQ proposals secret? Should he?

I saw the first signs a few months ago, but I never thought it'd be this bad.  Ed FitzGerald is asserting the right to lease a new Cuyahoga County headquarters, sell 13 public buildings, and maybe string together a mega-deal to do it all with one developer, without letting the public see the proposals until the contracts are signed.*

In other words, the county executive is launching a new headquarters search that's less transparent than the infamous Ameritrust deal.  And a four-year-old state law may allow him to do it.

I could barely believe this front-page Plain Dealer story today, "Details on county proposals won't be released to public."  But an email to me from county law director Majeed Makhlouf confirms it's true. Makhlouf quoted from a 2008 law that allows counties to use competitive sealed proposals instead of competitive sealed bidding to award contracts. The law says (bolds mine):

In order to ensure fair and impartial evaluation, proposals and any documents or other records related to a subsequent negotiation for a final contract that would otherwise be available for public inspection and copying under section 149.43 of the Revised Code shall not be available until after the award of the contract.

That law ought to anger anyone who cares about open government.

I knew secrecy was building around the county's big move earlier this year, when I asked for the appendix to a report about the county's real estate holdings and got a call from FitzGerald, who politely explained why he wasn't giving it to me.

His argument, that the report's details were a "trade secret," was fishy. He also said the appendix would give away property appraisals and hurt the county's bargaining position, a practical argument that made more sense. (See my earlier post here.)

But now, he and Makhlouf are asserting the right to tell us nothing about the bargaining positions of developers competing for a public contract -- "so officials could negotiate the best deal for selling property," as the PD paraphrases. In other words, to preserve the county's ability to play developers against each other by keeping them in the dark and bluffing!

I thought the whole point of creating a new government was to create more accountability and openness.

Think about the last search for a new county headquarters.  It was botched so badly, it cost the public tens of millions of dollars and helped bring down the old form of government.

My story about the Ameritrust affair ("Tower Play," June 2008) showed that the county commissioners bought the Ameritrust complex thinking their plan would save money, but it would actually have permanently added to the cost of government. That became clear if you dug deeply enough into the county's assumptions about the costs of leasing vs. building, the costs of financing, and the costs of maintaining, renovating, and operating offices. But if you just trusted the commissioners' assertions, you had no way of knowing they were wrong.

This time, we'll know even less about the county's plans to move. Because the administration chose to request "proposals" instead of "bids," it looks like almost all the important information will be kept secret, in closed executive sessions of the county council and in documents locked up until the contract ink is dry.*

"So I guess we're just supposed to trust the process?" Laura Johnston, the PD's county government reporter, tweeted in frustration yesterday. 

Today I talked to David Marburger, a top media lawyer in town and co-author of Access With Attitude: An Advocate's Guide to Freedom of Information in Ohio. He said the sealed proposals law may not be as black-and-white as Makhlouf says. He read the law and pointed to another section of it:

A county contracting authority shall not use competitive sealed proposals for contracts for construction, design, demolition, alteration, repair, or reconstruction of a building... 

What if the county chooses a developer's proposal to construct a brand-new headquarters building? Could it still keep the proposals secret? Or, say the county chooses to lease an existing downtown office building (as most people think it will). What if the lease calls for the landlord to alter, repair, or reconstruct the building before the county moves in? Can the proposals still be withheld?

Either way, Marburger calls the law bad policy.

"Officials are allowed to commit to a contract before the public can see what the options were and influence the outcome," he says. "That can't be in the public's interest. ... By then, it's too late to even raise questions."

*Update, 7/23: FitzGerald says the proposals will be released to the public one step before the contracts are signed, when the negotiated deals go to the county council for approval.  The county request for proposals says so too.

This is an improvement, though it leaves the public with a short window of opportunity to see and debate the options before the contracts are signed.  See item #1 in my new blog post.