Officials who blame construction company for road troubles
refuse to release pavement analysis or written communications
Gilroy – City officials who are blaming a construction company for problems with road-work along Santa Teresa Boulevard, the city’s western traffic artery, are refusing to disclose a pavement analysis of the “failing road” or written communications related to the matter.
Officials pre-emptively rejected the Dispatch’s request for a copy of the pavement report, which they say is not yet written but will fall under attorney-client privilege when it is printed. They also have refused to identify the pavement expert who determined that water intrusion is causing tire ruts to form along the western, southbound lane of Santa Teresa Boulevard. Even as they sound the alarm for a potential legal battle with the contractor, Granite Construction Company, officials are refusing to disclose their communications with the company.
Last week, City Attorney Linda Callon denied a request for a copy of a letter from Gilroy engineering director Rick Smelser to Granite Construction Company.
“We’re not going to release the letter that you referred to,” Callon said. “We don’t believe it’s in the public interest to release that document. We’re working on a resolution of claims. … We don’t want to end up with each party writing public relations letters because we know they’re going to be published in the Dispatch. We want to expeditiously get this road repair under control and we’re informing the other party of their obligations. So we’re going to keep these communications private. They are not public record.”
The city has not cited any specific allowances for withholding the documents, as required by the state’s public records law. Callon did not return calls Monday to provide a specific exemption.
State law provides for situations where disclosure of information to a potential claimant or litigant could jeopardize the public interest, acknowledged Jim Ewert, legal counsel for the California Newspaper Publishers Association.
“But I am failing to understand the policy behind sending the information to the very group that could potentially be a litigant, yet refusing to release it to the public,” he said.
City Administrator Jay Baksa and Community Development Director Wendie Rooney are serving as the lead spokespeople on the road project. Both were out of the office Monday and unavailable for comment.
Kurt Kniffin, the Monterey branch manager for Granite Construction, also was out of the office Monday. In a Jan. 26 letter to the editor, he wrote that it is not “a foregone conclusion that this situation will result in a protracted legal dispute.”
Yet both sides have already positioned themselves on the key question of who is responsible for the phasing of the project. The answer to that question will likely determine who picks up the bill for costly road repairs.
When they first disclosed the situation last month, city officials faulted the contractor for paving the western side of Santa Teresa Boulevard during rainy winter months. Representatives of Granite Construction wrote in the same letter to the editor that “the timing of a significant item of work, such as paving, is … driven by the project starting date, the time contractually allowed to complete the project and the project schedule (which is reviewed on an ongoing basis by the city).”
Rooney said a pavement expert hired by the city confirmed their suspicions about the source of the road deterioration, but she expected the report to remain confidential under “attorney-client privilege.”
Ewert said that position runs counter to the will of California voters, who in 2004 overwhelmingly approved a proposition requiring government officials to “narrowly interpret” exemptions under the state’s Public Records Act.
“(The city) is interpreting the attorney-client privilege to apply to any document that comes within the possession of the city attorney. That is a broad interpretation,” Ewert said. “A narrow interpretation would say that only those documents that arise from an investigation initiated by the city attorney, or documents that are produced by the city attorney, are subject to that privilege.
“The city has failed on two levels,” Ewert concluded. “They’ve failed to identify the statute that allows them to withhold that information. They’ve likewise failed to interpret the law narrowly.”
The Dispatch filed a formal Public Records Act request Friday to obtain the letter to Granite Construction, as well as the pavement analysis and any e-mail communications of top managers regarding the matter. The city has until February 21 to respond.
“Clearly those should be open records,” Dispatch Editor Mark Derry said. “The residents have endured that project and they have a lot of questions about how it has been handled, and it’s of course their money. The taxpayers should be allowed to understand how their money is spent. If the city impedes that process, it further disconnects people from their local government.”
Mayor Al Pinheiro deferred to city attorneys on whether officials can withhold the documents.
“We have to protect the city first. That’s why we hire counsel to do that and I’m going to defer to them on this,” he said. “I want to release as much as we are able to without compromising our ability … to protect the city.”
