Public information experts agree that residents have the right
to see the drafts of purchase agreements and leases that the city’s
attorney has compiled with Gilroy Gardens’ legal counsel concerning
the city’s potential purchase of the park.
Public information experts agree that residents have the right to see the drafts of purchase agreements and leases that the city’s attorney has compiled with Gilroy Gardens’ legal counsel concerning the city’s potential purchase of the park.
The Dispatch has filed a Public Records Act request seeking any and all tentative documents. These records are not held solely by the city, but have been created in conjunction with the legal counsel for Gilroy Gardens’ Board of Directors.
This means that residents should be able to see the documents because they have changed hands between the city and Gilroy Gardens. Revealing them would not jeopardize negotiations because the city is the only potential buyer at this point, and the documents do not contain either parties’ 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 First Amendment law.
“I don’t understand how public disclosure of what a private entity (the park) already knows and has access to would frustrate the successful completion of negotiation,” said Francke, referring to the fact that California’s Public Records Act does not allow municipalities to withhold documents if their release is in the public’s interest. “What is it about letting the public know what is in draft lease that would jeopardize or frustrate the success of a negotiation?”
But Andy Faber, an attorney with the city’s law firm, Berliner-Cohen, said releasing the various drafts would inhibit candid negotiations between the park and city. Mayor Al Pinheiro also said that staff and the city attorney should be allowed to do the jobs and come up with final drafts to present to the council for approval or disapproval. Just let them do their jobs that we pay them for, Pinheiro 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. “We’re not rubber stamping. We give them parameters to work with and show them what we’re looking for.”
Instead of making the drafts public and revealing terms that the city council has the power to change, Pinheiro said the council should simply request the final drafts a week before a potential decision is to be made Jan. 22 and then pour over them, but not now.
“There are too many people getting involved,” Pinheiro said. “There are two council members coming right off the campaign trail, and they are making a point.”
Pinheiro referred to City Councilmen Craig Gartman and Perry Woodward, who both spent two hours Wednesday morning at the San Jose office of Berliner-Cohen asking questions and receiving candid answers, they both said. This comes after the council voted 4-3 Monday night to create a special ad hoc subcommittee – consisting of the two councilmen – to review the draft documents before Berliner-Cohen and Gilroy Gardens present the final versions of the purchase agreement and lease terms.
Woodward, who was elected in November and said he wants the drafts released, sparked a long debate among colleagues and staff Monday night when he said he wanted to watch over the latter’s shoulders as it and Berliner-Cohen work out the purchase details of Gilroy Gardens.
The city plans to take out a 20-year loan to purchase the gardens in February 2008 for about $13.1 million. The park’s nonprofit board of directors, led by Bob Kraemer, 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.
Kraemer said he did not care who looks at the lease on the city’s side: He just cares about the timing of the deal, he said.
Either way, the whole situation exemplifies how cities’ attorneys’ words are too often taken at face value by the public.
“This is done all the time, ‘Oh, you must be right Mr. City Attorney,’ and we don’t know better, so it goes away,” Francke said. “It’s never challenged because people don’t stop to think about what’s being said, or they’re simply not motivated enough to challenge it.”
But Woodward is challenging it.
While Berliner-Cohen gave Woodward and Gartman drafts of the lease and purchase agreements and potential amendments to the park’s bylaws, Woodward said the firm had stamped “Attorney-Client privilege” on the dossier even though the inch-and-half stack of papers have traveled between Berliner-Cohen and the park’s legal counsel.
So far Berliner-Cohen has provided a five-page summary of the drafts, but after asking questions of the attorneys Wednesday morning and hearing their honest, elaborate responses, Gartman said they revealed much more.
“The summary barely even scratched at the surface of the details we talked about this morning,” Gartman said Wednesday afternoon. He added that the attorneys talked about the drafts and Berliner-Cohen’s opinions of their terms, which are not subject to disclosure.
“I think that the presentation we got from our attorney is something that the entire council would benefit from knowing because there are so many aspects of this deal in which would make it work or not work,” Gartman said. “We want to make sure that we are looking out for the best interests of the community and making sure that the deal makes sense and is not exposing the community, financially, in the future.”
If the city buys the park and leases it back to the board and the park cannot make ends meet, the city could be left paying water, electricity, insurance, maintenance and landscape crews, Gartman said. “How much will that cost? What is plan B?” Gartman 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. But the city attorney must first make the drafts public.
“Once you begin negotiating, exposure of those negotiations prematurely will potentially bring in meddlesome third parties, like the public, right?” Newton said with a chuckle.
