On January 18 of this year, Joanne Branch, a "contract specialist" with the San Diego Unified School District, sent architect Ralph Roesling a letter full of good news. His firm was being retained to do an initial design workup at three older schools being remodeled and expanded using money from bonds sold, thanks to voter passage of 1998's Proposition MM. "Congratulations on your selection to provide architectural services on another Prop MM project!" Branch wrote. "This letter constitutes your notice to proceed to begin the initial formulation of the design services for three sites, in the not-to-exceed amount of $25,000 per site."
Roesling's firm, Roesling Nakamura Architects, Inc., the letter went on, was being retained to work on the upgrades of Gompers Secondary, Jefferson Elementary, and Oak Park Elementary. "These funds are intended to cover your time and effort while you are holding your two task force meetings per site and finalizing the project scope and budget. Upon the completion of a pre-schematic budget and project schedule, you must provide me with a fixed fee proposal. This proposal is due by or before Friday, March 8, 2002."
Once the proposal was submitted to the district, Branch's letter continued, "We will enter into a brief negotiation phase. When negotiations are successfully completed, a notice to proceed will be issued for you to begin schematic documents." In other words, the original $25,000 design fee for each school was only the beginning for Roesling Nakamura. In fact, according to district records obtained under the provisions of the California Public Records act, the negotiations resulted in each of the three school projects being issued a "change order," which dramatically increased architectural fees to be paid to the architects.
On June 30, the Jefferson Elementary fees jumped from $25,000 to $350,000. The same day, Oak Park went from $25,000 to $311,300, and Gompers increased from $25,000 to $649,000. Less than a month later, on July 16, a fourth change order resulted in a $99,650 increase to the Gompers project, bringing its total to $748,900 in design fees alone, according to district records. According to a July 12, 2002, letter from the district to Roesling Nakamura, the total construction budget of the Jefferson project is $1,968,000. Based on that figure, the architects' fee represents 17.8 percent of the construction cost. The district letter says the Oak Project construction budget is $1,270,000, making the architects' fee 26.4 percent. In the case of Gompers, where the total budget is said to be $4,750,000, the architects' percentage is 14 percent.
The latest cost overrun was the result of an alleged "mistake" made by Roesling Nakamura. In a letter dated July 15, 2002, to school district contract specialist Joanne Branch, Roesling Nakamura business manager Harry Stephens wrote, "Thanks for working with me to get these figures corrected. I appreciate your understanding that it is possible for me to make an honest mistake. I have corrected the figures on Gompers for the Portable Certification."
In a letter responding to Stephens, dated July 16, 2002, Branch wrote, "On July 15, 2002, we were notified that you had identified a clerical error on the proposal for Gompers Middle School related to the fees for the certification of the 32 portable buildings. You had inadvertently re-used the numbers from Oak Park instead of calculating specifically for Gompers. We have reviewed your claim and find that is fair and reasonable to increase your fees by $99,650 for the work associated with the certification of these buildings." After saying she would respond to a request for comment after talking to superiors, Branch subsequently failed to call back.
What led to the other such increases in the fees? What justified them? What was the district's reasoning, and what criteria did it use to negotiate the new contract, granted without competitive bid or any kind of public hearing?
Only a partial accounting of the Roesling Nakamura contract and the negotiations that led to it can be given, because after providing some documents covering the three projects and their change orders, the district abruptly switched course and refused to turn over any more records, claiming an exemption in the public records law that, the district contends, allows it to keep details of its negotiations with the architectural firm secret.
"The District is withholding certain materials specifically relating to negotiations, which are exempt under the deliberative process privilege found under Government Code section 6255," according to a letter to Reader attorney William J. Sauer, dated August 26, 2002, and signed by Sandra T.M. Chong, Proposition MM staff attorney.
Terry Franke, general counsel of the Sacramento-based California First Amendment Coalition, which represents newspapers and broadcasters advocating full and open access to governmental records at both the state and local level, argues that San Diego Unified's use of the "deliberative process privilege" to withhold the Roesling Nakamura negotiation documents is without legal foundation or justification.
"What you see here is an example of a rash or a virus that's spreading pretty obviously among state and local agencies, just using the deliberative process privilege as a wild card for whatever you can't otherwise exempt from public scrutiny."
The exemption claimed by the district, Franke explains, was created over the past several years by four state court rulings in various public-records-act cases. "Three out of the four cases involve information touching on the governor's decisions. In one case it was simply information on who met with him over an extended period of time, and in two other cases it was information supplied to him by people who wanted to be appointed to public office. In one case, the fourth case, the court of appeal has applied it to the phone numbers dialed by members of the city council over a year or two."
In each case the court's rationale was to preserve the confidentiality of elected officials for limited purposes. "The idea is to allow policy makers to get the benefit of candid advice and really explore a variety of potentially controversial options in as free a way as possible," Franke says. He adds that an exemption under those circumstances is far different from the situation presented in the Roesling Nakamura case.