The city attorney has rejected a request to release the draft
forms of a purchase agreement and lease that it has compiled with
Gilroy Gardens’ legal counsel concerning the city’s potential
purchase of the park for $13.1 million.
The city attorney has rejected a request to release the draft forms of a purchase agreement and lease that it has compiled with Gilroy Gardens’ legal counsel concerning the city’s potential purchase of the park for $13.1 million.
Councilmen Perry Woodward and Craig Gartman have supported the request for transparency, and the two compose a special subcommittee that has permission to view the draft documents before the rest of the council receives the final drafts some time next week, according to Mayor Al Pinheiro. The body will then have a public study session on the matter Jan. 14 before a potential vote on the purchase Jan. 22.
Pinheiro said he was pleased with Berliner-Cohen’s decision because it allows city staff to do its job without public meddling. Residents and the council will have every opportunity to review the final drafts in the coming weeks and then offer insight before a decision, he said.
“We are paying these attorneys big money, and we pay our staff big money. They are both paid to look out for and protect the city. Let them get their job done,” Pinheiro said.
Public information experts and First Amendment attorneys, on the other hand, supported The Dispatch when it filed a request Dec. 19 under the state’s Public Information Act to obtain any and all tentative documents. But Assistant City Attorney Jolie Houston wrote in a letter Dec. 28 that releasing these records is not in the public’s interest and “would greatly impair the city’s ability to secure the best possible contract and/or lease.”
Houston pointed to what’s known as the “draft exemption” under state law and further rejected the release of any internal draft documents held solely by the city because they fall under attorney-client privilege. The draft agreements of concern, on the other hand, are not held solely by the city: Residents should be able to see them because they have changed hands between the city and Gilroy Gardens, so revealing them would not jeopardize negotiations because the city is the only potential buyer at this point. In addition, the documents do not contain either parties’ private legal thoughts or opinions, according to Terry Francke, general counsel for the open-government group Californians Aware, and Erica Craven, a partner at Levy, Ram & Olson in San Francisco who specializes in media and First Amendment law.
Bob Kraemer leads Gilroy Gardens’ nonprofit board of directors, a private entity that could release the shared documents, but he said that would not be in the park’s interest either.
Woodward disagreed with Kraemer and Houston after he said he and Gartman uncovered contractual concerns in the drafts that Berliner-Cohen did not fully report to the council Dec. 17.
“We’ve been digging into the financial and contract terms. There are a lot of issues that did not come up (Dec. 17), which is exactly what I was concerned about,” Woodward said. “There is a lot of work that needs to be done before the city spends $13 million on this project.”
This is work for the city staff to do by itself, though, until it has something for the council to digest and ultimately decide on, Pinheiro has said repeatedly. Pinheiro used to sit on the park’s board as the city’s representative before Councilman Dion Bracco took over.
Woodward also called these connections into question when he asked rhetorically, “How much of an arms-length deal is this really?” He and Gartman will go to Berliner-Cohen’s San Jose office for the second time today to further discuss the draft agreements and research the park’s financial history thanks to the board’s cooperation, Woodward said.
The council voted 4-3 Dec. 17 to create Woodward and Gartman’s special ad hoc subcommittee to review the draft documents before Berliner-Cohen and Gilroy Gardens present the final versions. The creation of this subcommittee came after much debate among council members and city staff.
The city plans to take out a 20-year loan to purchase the gardens in February 2008 for about $13.1 million. The board met its latest payment date in November when it forked over $800,000 to bondholders, according Kraemer. The next payment of $500,000 is set for March, which happens to be the same amount of money that has been set for escrow, according to Assistant City Administrator Anna Jatczak.
The park’s board offered to sell it to the city last year and has not entertained offers from any other potential buyers such as Six Flags, Kraemer and city officials have said. For this reason, Craven, the First Amendment lawyer, said there would be no competitive disadvantage for the park if the draft documents became public. “What could be the harm of disclosing that?” she asked rhetorically.
These are questions the public might be able to help answer, according to Tom Newton, general counsel for the California Newspaper Publishers Association. Residents can voice any concerns they have at 6 p.m. Jan. 14, at City Hall, located at 7351 Rosanna St.*
