A Sonoran Truth Editorial, 9.17.14
From: Terry Zerkle <terrylzerkle@aol.com>
To: atrenk <atrenk@roselawgroup.com>; chaniarts <chaniarts@yahoo.com>; mike.f.durkin <mike.f.durkin@gmail.com>; rmonachino <rmonachino@mindspring.com>
Sent: Tue, Sep 9, 2014 7:17 am
Subject: Development Fee (Capacity Charge) Study
Adam, et al,
Through a public records request to the Town Clerk and a response to that request by the Town Manager yesterday, I learned there has not been a Council approved executed contract between the town and TischlerBise for the Development Fee (Capacity Charge) study that is in process of being performed for the town by that firm.
While the Council apparently authorized entering a contract with TischlerBise on August 19, 2013, one was not on the agenda that evening for approval, and the staff never saw fit to have one prepared, so it was never done. And Council never exercised any oversight to see that it was done. This is pretty unbelievable. Here we are over one year later, following that outrageously confusing meeting last week on Capacity Charges, learning that there is no written Council approved executed contract for this “urgent” but still unfinished study.
Really, where is the Council and staff oversight on this stuff? Where is the adherence to basic, standard governmental contacting and procurement practices and procedures? Council is supposed to approve the actual contract inclusive of its scope of work, deliverables, and timeline, not just authorize entering into one. It’s supposed to be placed on the agenda for approval at a duly noticed public meeting and available to the public for inspection and input prior to approval. That’s the law.
The essence of the comments I made and wrote the Council about the flawed Water Master Plan contracting process last year (see below) apply to this situation as well. It’s not transparent, it’s not right, it’s not in accord with accepted standard governmental practice and procedure, and it was not done in accordance with law. Both the Council and the public were shortchanged and placed at risk on a major policy initiative as a result of incomplete, shoddy staff work and apparent non-existent Council oversight.
Hopefully, the vendor will work with the town to bring this study to a successful and expeditious close even though there is no written contract. They enjoy a good reputation in the state and nationally, so I would suspect they probably will.
Even so, this should be treated as a learning moment for the Council for the future. Do not try to short cut the process. Follow good, accepted governmental practice and procedure on approvals. Make sure everything is open and transparent. Exercise responsible policy oversight and direction. Do not accept shoddy, incomplete, or sloppy staff work. Ask for and expect professionalism in performance and products from staff. And for purposes of accountability and delivery, assure yourselves a responsible, competent point person has been tasked by the Town Manager to be in charge of, coordinate and lead major policy initiatives such as this, that everyone knows who it is, and that that person is familiar with the contract’s terms.
Feel free to give me a call if you wish to discuss.
Terry
—–Original Message—–
From: Terry Zerkle <terrylzerkle@aol.com>
To: Mike.Durkin <Mike.Durkin@gdc4s.com>
Cc: chaniarts <chaniarts@yahoo.com>; atrenk <atrenk@roselawgroup.com>
Sent: Mon, Aug 26, 2013 1:20 pm
Subject: Re: August 19, 2013 Council Meeting – Consultant Contract for Water Master Plan & Other Plans
Mike,
Your most recent email recanting what you said in the prior email is troubling. Respectfully, it’s not an issue of trusting you and the Council, and not a matter of what I want personally. It’s a matter of doing what’s transparent, right, in accord with accepted good practice, and required by law.
Under the present scenario by delegating the guts of contract policy development to staff and not bringing it back to Council for approval after the details are negotiated, citizens are closed out from having input into policy making that is their right to participate in if they so choose. For that matter, the Council as a body, which has overall oversight responsibility and a fiduciary duty to be involved in contract policy development and approval, is either opting out or closed out as well depending on one’s perspective. This is non-transparent policy making. It’s so wrong on so many levels as to defy description. It’s exactly the type thing the old regime used to engage in inclusive of the excuse that the urgency of the matter didn’t allow time to do it the right way. I strongly urge the Council to do the right thing and bring this contract back to the Council for public vetting and approval after the details are negotiated. Please, do not fall into the trap and pattern of doing public business in the sloppy, improper, non-transparent way it was done in the past. Work could still commence without delay if the consultant is willing to await payment until after Council approval of the contract.
There’s still the issue of how the improper changes that were made by staff to the Council adopted April 16, 2007 WMP are going to be addressed and corrected by Council. For example, the tank, pumps and piping for Gold Mtn Development were not in the WMP adopted by Council on April 16, 2007 and were improperly/illegally added by staff to the July 2007 version. The July 2007 version and subsequent versions were never seen by or taken to the Council for public vetting and adoption. How is the shenanigan part of what transpired back in the day including the tank for Gold Mtn Development going be corrected and not masked over or allowed to be legitimized by rolling it into the WMP update process?
Am available to discuss at your convenience.
Terry
Terry Zerkle
—–Original Message—–
From: Mike.Durkin <Mike.Durkin@gdc4s.com>
To: terrylzerkle <terrylzerkle@aol.com>
Sent: Mon, Aug 26, 2013 10:11 am
Subject: RE: August 19, 2013 Council Meeting – Consultant Contract for Water Master Plan & Other Plans
Terry,
I misspoke. As you saw, during the 19 August meeting, the council approved using my review as their last check on the contract. We will be informing the council (and at the same time the citizens) of the final contract particulars in September. At that time the contract will have been executed.
I know this is not exactly what you want but as you know there is some urgency in getting these plans completed so we can meet the deadline for our impact fee review.
I hope you will trust that the folks you helped elect have their hands on the wheel. [Ed.- No we don’t]
Thanks,
Mike
From: Terry Zerkle [mailto:terrylzerkle@aol.com]
Sent: Monday, August 26, 2013 9:47 AM
To: Durkin, Mike-P12871
Subject: Re: August 19, 2013 Council Meeting – Consultant Contract for Water Master Plan & Other Plans
Thank you, Mike. This is a smart move and the right thing to do.
Terry
Terry Zerkle
—–Original Message—–
From: Mike.Durkin <Mike.Durkin@gdc4s.com>
To: terrylzerkle <terrylzerkle@aol.com>
Sent: Mon, Aug 26, 2013 8:13 am
Subject: RE: August 19, 2013 Council Meeting – Consultant Contract for Water Master Plan & Other Plans
Terry,
Thanks for the comments. You make some accurate points.
In the interest of transparency we do plan to bring the contract before council in September for approval prior to singing.
Regards,
Mike
From: Terry Zerkle [mailto:terrylzerkle@aol.com]
Sent: Saturday, August 24, 2013 1:38 PM
To: Durkin, Mike-P12871
Subject: Re: August 19, 2013 Council Meeting – Consultant Contract for Water Master Plan & Other Plans
Mike,
The action taken by the Council at the Aug 19 meeting was to authorize staff to enter into a contract with WaterWorks Engineers in an amount not to exceed $200,000 [which is a ton of money] to complete the update to the CC Water Master Plan, and to create an Asset Management Plan and Fire Infrastructure Master Plan for the town’s water system, update the CC Sewer Master Plan, and authorize the TM, TA, and town staff to take all steps necessary to finalize the agreement. You were designated to review the contract before it was approved and signed. The contract was not required to be brought back to the full Council for public vetting and Council approval after its details were negotiated. Nor did the draft contract appearing in the Council agenda packet contain a scope of work, timetable, and deliverables, which are the policy guts of a contract of this type. The action taken by the Council was to authorize the draft contract to move forward with the staff delegated carte blanche authority to fill in the policy guts subject to your review without the contract being brought back to Council for formal approval.
That is non-transparent policy-making. Professional services contracts, which by definition and law are policy actions and documents, consist of two important components – price and scope(s) of work inclusive of timetable(s) and deliverables. Both are to be acted on and approved before the entire elected governing body at a duly noticed public meeting. This so both the Council and the public know what the entity and the public are getting for the dollars being invested. And so the public can be informed and weigh in on the details of the proposed contract if they so choose. Everything above board, out in the open, fully transparent. As it stands right now, both the Council and the public have been closed out.
In the interest of transparency, accountability, and adhering to standard governmental practice, this contract should be brought back to Council for public vetting and formal approval after its policy components are negotiated. While there may be little or no interest demonstrated by the public in the details at that time, at least action approving the document in its entirety will have taken place in the sunshine. No claim of chicanery or back room dealing can be made. Work could still commence prior to formal approval of the contract if the consultant is willing to await payment for that work until after Council approval action is taken.
I obtained a copy of the missing scope for the WMP portion of the new contract. Would ask you the following: Which 2007 version of the WMP prepared by CH2MHILL is being represented as the adopted version and being given to the new consultant? There are at least two 2007 versions – one dated March 2007 stamped Draft adopted April 16, 2007 and another dated July 2007 titled Final Report. The only version ever adopted by Council was the Mar 2007 version adopted on April 16, 2007. The July 2007 version was never adopted or taken to the Council. Moreover, the July 2007 version is the one staff changed and added the water storage tank, pumps and piping for Gold Mtn Estates on Continental Mtn. Major policy change and implications extending far beyond just capital improvement projects. How is this wrongdoing going to be rectified and not rolled over into and possibly caught up in the new process? There are other changes/additions in the July 2007 version as well. Not sure what they are, just that the two documents are materially different. These questions are particularly relevant given that the fox has been placed in charge of guarding the hen house.
Mike, none of what I’ve written here is intended to question your fitness and role in any of this. You are without question a person of uncompromising honesty and integrity and wish to do the right thing. I respect you immensely for that. Just trying to assure that the Council as a body fulfills its policy-making duty in a transparent manner and does not fall into the trap of repeating patterns of old or unwittingly providing cover and legitimacy for wrongdoing of old.
Please feel free to give me a call if you have questions.
Terry
—–Original Message—–
From: Mike.Durkin <Mike.Durkin@gdc4s.com>
To: terrylzerkle <terrylzerkle@aol.com>
Cc: atrenk <atrenk@roselawgroup.com>
Sent: Tue, Aug 20, 2013 3:38 pm
Subject: RE: August 19, 2013 Council Meeting – Consultant Contract for Water Master Plan & Other Plans
Terry,
The contract with WaterWorks does not exist. The contract into which we enter will contain a SOW and a schedule. As you witnessed, the council charged me with seeing that this happens. I will.
Regards,
Mike
From: Terry Zerkle [mailto:terrylzerkle@aol.com]
Sent: Tuesday, August 20, 2013 3:33 PM
To: atrenk@roselawgroup.com
Cc: spitzer.nina@yahoo.com; rmonachino@mindspring.com; Durkin, Mike-P12871
Subject: August 19, 2013 Council Meeting – Consultant Contract for Water Master Plan & Other Plans
Hi Adam,
I am at a loss on how to tactfully phrase this, but the Council committed a grievous error in procedure and process at last night’s council meeting in authorizing staff to enter into a contract with the consultant for the updated Water Master Plan and other plans without that document containing a scope of work, timetable and deliverables.
You were right in making an issue of it. Moreover, definitive corrective action should be taken at a subsequent meeting, along the lines of what is suggested below in the paragraph appearing in italics. Also, your comment about the misfeasance that was in play in the past resulting from the absence of these plans was spot on.
Concerning the immediate issue, a contract of the type and expense being considered is by definition and law a major policy document and action. Its guts consist of scope(s) of work, timetable(s), and deliverables. The guts are what the council as a policy-making body is charged with overseeing, approving, and making sure the contract contains at the time of adoption as well as assuring it will serve and meet the community’s needs. Approval by not just a single Council member interacting with staff, but the entire Council sitting in a properly noticed public meeting acting in concert as a policy body.
That it didn’t contain any of the essential components and that it was approved in this format is highly irregular and extremely troubling. If not corrected, it amounts to an abdication of the council’s policy-making authority to staff, which, as you know, was a major problem inherent in the old regime. It also has the potential to seriously compromise public trust in the Council’s decision making.
How so? Action approving the contract without its guts lacks transparency, fiscal responsibility, and governmental accountability, which was the mantra during the campaign. This supposedly is what was going to change when the new Council was seated.
I’m extremely surprised the Town Attorney approved the contract in this form for presentation to Council without it containing a scope of work, timetable, and deliverables, either as part of the document or an exhibit thereto. Those components constitute public sector contract management 101 for this type Council approved professional services contract.
The appropriate action at last night’s meeting would have been for the Council to select Waterworks Engineers as the consultant for this project and authorize staff to negotiate a contract with them in an amount not to exceed $200,000 that would be brought back to Council at a subsequent meeting for approval. This is what’s needed for public transparency.
This email is not intended as a slight to the Water Advisory Committee. Apparently they did their due diligence and homework in recommending a consultant firm and a scope of work with timetable and deliverables to the Council. Their work, for whatever reason, failed to get incorporated in the contract document that was presented to Council.
This is a big deal. Not only is $200,000 a ton of money, correcting the Water Master Plan fiasco is critically important to the long-term well being of the community. The Council as the policy-making body needs to be on top of it, in charge of it, and seen as such. And the process in all of its manifestations from awarding the contract to completing the various plans needs to be fully transparent and done according to proper procedure. There shouldn’t be shortcuts or staff connivances as was done in the past or even the appearance of same.
My suggestion for correcting this miscue and achieving transparency, fiscal responsibility and accountability is to agenda this matter for additional discussion and direction at the next Council meeting. At that meeting provide direction to staff that when negotiated the contract is to be brought back to the Council for formal approval. Staff could be authorized to commence work under the negotiated contract with the consultant prior to formal approval by Council with the understanding and acknowledgement by the consultant that payment for that work is subject to Council approval of the contract. That way work could commence without delay if the consultant is willing to assume what should be only minor risk.
In closing, permit me to add this policy-making reminder from an earlier email I sent when the new Council candidates were running. I feel it is illustrative of the current issue in many respects. Here it is:
“Policy-making. Take charge of your policy-making role and responsibilities early on. Make it known that you are in charge of policy and will not countenance infringement on those prerogatives. Ask questions. Seek clarification. Avoid rubber stamping. Reject sloppy or incomplete information and staff work. Expect good analysis, especially when it involves finances of any kind. Make it known that you expect professionally prepared staff reports with appropriate technical/financial analysis, options and recommendations as appropriate to accompany agenda items or other recommendations for council consideration.”
Hope these comments are of value. Feel free to call if you have questions.
Terry
Terry Zerkle