CH2MHill to Release Documents In Central Public Records Case
On Tuesday, 19th Judicial District Judge Kay Bates signed an order compelling CH2MHill to produce public records requested by the Central City News in 2010.
The newspaper sued CH2MHill in April 2010, saying that the $6 billion-a-year company that ran the City of Central from 2007 to 2010 under a privatization agreement, was subject to Louisiana’s Public Records Law, because the company was functioning as the City of Central and performing sovereign acts on behalf of the city.
The case, Community Press v. CH2MHill, has received considerable statewide and even national attention. The Louisiana Press Association filed an amicus brief supporting the Central City News’ position. Press organizations saw the case as important because they fear politicians will farm out the administration of local and state government to private companies and use privatization to circumvent the Public Records Law and keep the public’s business secret.
Over the past two years, the case went to Louisiana’s 1st Circuit Court of Appeal and the Louisiana Supreme Court, which had agreed with the newspaper on most points of law. Further depositions, at least one hearing, and further appeals were still likely in the case.
However, the newspaper and CH2MHill agreed last week to settle the case and submitted a proposed judgment to the court.
Under Judge Bate’s order, the company certified that it had provided a list to the newspaper and the court of all documents in its possession that are responsive to the public records request.
In turn, CH2MHill said it would provide all of those documents to the newspaper immediately, except those subject to the attorney/client privilege.
An attorney for CH2MHill said Wednesday that he will provide the documents in the form of a CD to the newspaper today.
CH2MHill was also ordered to pay the newspaper’s attorney fees.
Attorney fees, which were substantial in the case, had become a major issue between the parties. Throughout the trial, CH2MHill argued that the newspaper should pay the company’s attorney fees.
At the same time, Community Press argued that the Public Records Law does not allow the public body to get attorney fees but that a citizen seeking a public record is entitled to attorney fees in certain cases. In 2010, CH2MHill told the court that it had already racked up $70,000 in attorney fees.
Other than attorney fees, the newspaper did not seek monetary damages in the case.
Under the stipulated judgment, each party paid its own court costs.
The controversy began one day before Central’s municipal elections, which were held on Saturday, March 27, 2010.
Central Mayor Mac Watts was running for reelection against challenger Jr. Shelton. Both are Republicans. Shelton had made a major campaign issue out of high permit fees in the newly-incorporated City of Central. He argued in his campaign speeches and newspaper ads that the permit fees, which were being collected by CH2MHill, which kept 90 percent of the proceeds, had risen enormously since the city was incorporated in 2005.
Watts disagreed and said they were quite reasonable.
Then, on the day before the election, 5,000 flyers were inserted in The Advocate newspaper for delivery in and around the City of Central. The flyers argued against Shelton’s position on permit fees. The flyer said it was from “The City of Central.”
On the Monday after the election, Central City News editor Woody Jenkins called David Barrow, executive assistant to Central Mayor Mac Watts, to learn if the City of Central had in fact authorized the advertising flyer. Barrow said that the city had not authorized the flyer and that he knew nothing about it.
Jenkins then called Tommy Higgs, the manager of CH2MHill’s operations in Central, to ask about the flyer. Higgs said that yes, CH2MHill had authorized the flyer. When asked how CH2MHill could advertise in the name of the “City of Central” without the knowledge or permission of city officials, Higgs said, “We have authority to advertise in the city’s name anytime we want.”
In fact, the contract between the City of Central and CH2MHill provided that CH2MHill could not advertise to the people of Central without the written permission of the Mayor of Central.
CH2MHill had just completed an advertising campaign entitled “We Are Central.” In the ads, employees of CH2MHill were featured and portrayed as representing Central, as though CH2MHill and its employees were indistinguishable from the city government.
Central City News editor Woody Jenkins said, “It became clear that a private company and the city government had, for all practical purposes, become one. CH2MHill named the Public Works director of the City of Central and other high ranking officials. Permits were being issued not by city officials but by employees of a private company. Advertising in the name of the City of Central was being placed apparently without the approval of city officials. Central had become a ‘company town,’ and that company was a multi-billion dollar international company based out of state that was not answerable to anyone here.”
“Our position was that if a private company begins to exercise the powers and duties of government, it should be held to compliance with Louisiana’s Public Records Law. We felt that the people of Central should have the same right to access public records that they would have if they lived in Baton Rouge or any other city in Louisiana. Clearly, if the City of Baton Rouge placed an ad in The Advocate, we could go down to the Governmental Building downtown and get a copy of those records. But in Central, that wasn’t true.”
The Central City News filed formal public records requests with the City of Central and CH2MHill requesting access to all documents pertaining to the advertising flyer that had run in the Advocate the day before the election. Public records requests are supposed to be honored immediately or within three days at most.
About a week later, the City of Central responded that it had no records pertaining to the advertising flyer. About the same time, CH2MHill responded that it was a private company and not subject to the public records law.
Jenkins said this alarmed him for two reasons. “First, when a body receives tax dollars and performs governmental functions, it is subject to the public records law. Second, the contract between the City of Central and CH2MHill had specific language requiring CH2MHill to subject itself to the public records law and respond immediately to public records requests.”
“So CH2MHill was obligated to respond to our public records requests not only because state law requires it but also because their contract requires it. We made repeated requests from counsel for CH2MHill that they provide the documents. We asked the mayor and members of the City Council to intervene. Nevertheless, CH2MHill adamantly refused to provide the documents. This left us with no choice but to file suit under Louisiana’s Public Records Law.”
In late April 2010, Community Press, LLC, the owner of the Central City News, filed suit against CH2HMill, asking that the company be required to provide the documents subject to the public records request.
Under Louisiana law, a hearing on a public records suit is supposed to be tried within 10 days. Nevertheless, Judge Bates did not set a date for a hearing on the case until June 10, 2010. The Central City News subpoenaed Mayor Mac Watts and CH2MHill manager Tommy Higgs to testify at the hearing.
On the Friday before the scheduled Monday hearing, Judge Bates called the parties to say that she was postponing the hearing. The Central City News strongly objected to the postponement and refused to agree. Nevertheless, the judge postponed the matter.
Meanwhile, that weekend, Tommy Higgs, who had been duly served with a subpoena, fled the state. Since then, he has been in seclusion and inaccessible. Attorneys for CH2MHill have said the company has no knowledge of where he is.
Six weeks later, Judge Bates held a hearing on a motion for summary judgment by CH2MHill, asking that the case be dismissed. This was not the 10-day hearing mandated by state law, that would have allowed for the testimony by witnesses and the introduction of evidence. Rather, it was a motion by CH2HMill asking that the case filed by the Central City News be summarily dismissed.
Judge Bates granted CH2MHill’s motion and threw the newspaper out of court. CH2MHill asked that the newspaper be assessed with more than $70,000 in attorney fees. Central City News objected, saying that public bodies cannot collect attorney fees under the terms of the statute.
Community Press then sought writs from the 1st Circuit Court of Appeals, asking that Judge Bates’ ruling be overturned.
In 2011, by a 3-0 vote, the appellate court agreed with the newspaper and overturned Bates’ decision. CH2MHill appealed the appellate decision to the Louisiana Supreme Court. In 2012, the supreme court affirmed the 1st Circuit decision and sent the case back to Judge Bates. The 1st Circuit had agreed with Central City News’ interpretation of the public records law and agreed that private companies such as CH2MHill are subject to the public records law of the state if the connexity between the City of Central and CH2MHill was great.
Because no evidentiary hearing had been held by Judge Bates, there was nothing in the record to answer the appeal court’s question. For example, they wanted to know what percentage of the city budget went to CH2MHill. Counsel for the Central City News told the court it was 82 percent. Counsel for CH2MHill said it was closer to 80 percent.
The appeal court ordered the case back to Judge Bates to determine the degree of connexity between the city and CH2MHill. The supreme court decision affirmed that approach. Since early 2013, Community Press has been seeking to get information from CH2MHill in order to answer the appeal court’s questions.
Three weeks ago, the Central City News was scheduled to take depositons from Central Mayor Mac Watts and Central’s chief administrative officer, David Barrow. As the date of the depositions approached, CH2MHill counsel became more interested in talking settlement. After much negotiation, the parties agreed to a settlement, which was submitted to the court.
The judgment submitted to Judge Bates and signed by her was very similar to the original relief sought by the Central City News, namely that CH2MHill would produce the documents responsive to the newspaper’s public records’ requests and reimburse the Central City News for its attorney fees.
Earlier this week, CH2MHill sent to counsel for Community Press, LLC, the settled amount for attorney fees.
The plaintiffs were represented in the case by St. Amant & Tessier and Savoye & Wheeler. The defendant was represented by Baker Donelson.