Written 2/17/2008
The Attorney General and Duck Quacking
The Georgia Attorney General's office, as part of its mediation program to handle citizen complaints about issues related to the state's Open Records Act, has asked Oconee County to respond to my complaint about the County’s denial of access to the Selection Committee reviewing bids for the upgrade of the Rocky Branch sewage treatment plant.
Senior Assistant Attorney General Stefan E. Ritter wrote to Oconee County Attorney Daniel Haygood on February 14, 2008, asking him to "let me know in the next 10 days or so what your response is" to my complaint. Ritter forwarded that complaint, which I wrote on January 17, 2008, to Haygood.
In the meantime, I received a letter from Haygood, written on February 13, 2008, again denying me again access to a second meeting of the Selection Committee and to documents produced by that Committee.
I had written to Oconee County Board of Commissioners Chairman Melvin Davis on February 6, 2008, asking to be informed of a meeting of the Selection Committee announced at the January 29, 2008, meeting of the Board of Commissioners. I also asked again for access to the review documents of that Committee. I had copied that message to Ritter.
My complaint to the Attorney General was filed after I had been denied access to a January 4, 2008, meeting of the Selection Committee as well as the documents produced by that Committee based on its evaluation of the nine bids submitted for design work for the upgrade of the Rocky Branch sewage plant.
Ritter also wrote to me on February 14, 2008, indicating that he was focusing his inquiry with the County on the "open meetings portion" of my complaint. In the letter to Haygood, however, he also notes that I have complained that I was "not allowed to review public documents that were of the same nature as documents" I was allowed to view previously.
The County provided me access to the records of the evaluation of bids submitted for the Rocky Branch upgrade in late summer in response to an open records request I made. The County ultimately tossed out those bids and began the process again in November.
Haygood, in his letter of February 13, said my letter to Chairman Davis "mischaracterizes" the review process for the bids. He said the County has hired Precision Planning Inc. to assist with the review process and that PPI "has requested certain County staff to evaluate the bids."
In the letter, Haygood does acknowledge that members of the Board of Commissioners asked to be notified of the meetings of this group and that PPI has notified them.
According to the Request for Proposals itself, however, "A Selection Committee appointed by the Oconee County Board of Commissioners will evaluate the Proposals using a 100 point scale." The RFP then provides a table listing the criteria to be used in the evaluations and their weights in computing the final score for the 100-point scale.
When Jimmy Parker came before the Board of Commissioners at its December 18, 2007, meeting, he announced the membership of a committee to review the proposals. No member of the Board of Commissioners objected to the composition of the Committee, made up of Parker, another PPI staff member, the head of the County’s Utility Department, the head of the County’s Public Works Department, and County Administrative Office Alan Theriault.
On December 28, 2007, Jimmy Parker from PPI called together what he called the "RFP Review Team" and attached a copy of the table listing the criteria and weights for evaluation identical to the one in the RFP itself.
The BOC has appointed no other Selection Committee, and Parker’s "Review Team" has acted as specified for the Selection Committee in the RFP.
On December 21, 2007, Parker sent an email to the "Review Team Members" as well as the BOC members announcing the January 4 meeting.
Commissioner Chuck Horton announced at the BOC meeting of January 29, 2008, that he attended that January 4 meeting. He also has told me in an email message of earlier today that the Committee has met again. He did not indicate whether he attended.
In denying me access to the documents produced by the Selection Committee, Haygood, in his letter of February 13, again said the Committee was not created by the BOC but by PPI. He also said it is his view that the County can deny access to these documents as part of the bidding process.
In addition, he raised the question of "whether the evaluations are actually County records or not" after stating that they were created by PPI.
On this issue, however, state law seems to be very clear. The law "disallows" state agencies, such as the BOC, "placing or causing such items to be placed in the hands of a private person or entities for the purpose of avoiding disclosure."
At this point, it seems the County either has to acknowledge that the existing "Review Team" is, in fact, the Selection Committee specified in the Request for Proposal or admit that it is not following the review procedure specified in that RFP.
Basically, if it walks like a Selection Committee and quacks like a Selection Committee, I’m inclined to believe it is a Selection Committee, even if Haygood says it is not.
Sunday, February 17, 2008
Sunday, February 10, 2008
Written on 2/10/2008
Not Every Board Member Loves A Secret
The controversy over the retreat that the Oconee County Board of Commissioners held in Madison on December 7 without giving 24-hour notice and the decision of the County to close the bidding process for the Rocky Branch sewage treatment plant upgrade has brought out fissures on the Board that were in evidence at the January 29, 2008, meeting.
The story in the Athens Banner-Herald about the January 29 meeting gave a sense of those differences. A close examination of the comments, however, gives a clearer picture of how differently members of the Board view the controversy.
Because the Board of Commissioners does not broadcast its meetings live or put a video or audio version of the meetings on its web site, I had to rely on an audio recording of portions of that meeting made by Tim Price and Karen Kimbaris, members of the Board of Directors of Friends of Barber Creek. They were sitting at the rear of the room. I was out of town and missed the meeting entirely.
Because the audio quality is not high, I have transcribed key sections and made the transcription available, rather than the audio, at my web site, Oconee County Observations II.
Commissioner Chuck Horton was most critical of the County. "I do think there has been a degradation of the trust level," he told Chairman Melvin Davis, and he said the decline in trust had affected him.
"I’m included in that group," he said. "I think when we went to the retreat and it wasn’t disclosed on a timely manner the way it was supposed to. People can argue whatever, but it wasn’t disclosed. That didn’t help the cause."
Commissioner Margaret Hale said she was offended by the comment County Administrator Alan Theriault made in an email message on December 21, 2007, in response to my request for access to the bids for the Rocky Branch upgrade. Theriault said "The mere fact that a member of the general public is in anyway involved may taint and compromise the entire process."
"I understand the public frustration," Hale said. "When I saw ‘public input taints the process’ I can say for me, it’s not true. I am not an expert in these things. I look to people who are experts to offer me guidance and education about these projects."
Hale said she wanted to County do be more flexible regarding the bids. "We are not required to do certain things, and I agree. The word for me is ‘required’."
Commission Don Norris was unapologetic.
"I don’t see where I have violated anyone’s trust," he said in reference to the closed bidding process. The citizens "know just as much about it as I do."
On the meeting in Madison, he said: "I’ve been here 20 years. I can’t recall ever having a secret meeting. I’m sorry too. There was no secret what occurred. It was not advertised. But that has been corrected. But one time in 20 years?"
Commissioner Jim Luke said not a word during the discussion.
Chairman Davis used the opportunity to repeat his position that a staff error had resulted in the notice for the December 7 meeting going out less than 24 hours in advance.
"We didn’t know that that lateness occurred," he said. "Was it intentional? Of course it was not intentional. Would I have canceled the meeting had I known that it had gone out late? Of course I would have. But I did not know it. Neither did any of this board members know it."
"The item happened," he said. "And I’m sorry it happened. And, again, as Don (Norris) has said, measures have been put in place to correct that."
The meeting had been scheduled at least three weeks in advance. I questioned whether a closed meeting had taken place in public comments I made to the Board on December 18. None of the Board members responded by acknowledging such a meeting.
Davis issued an apology only after a reporter for the Athens Banner-Herald contacted him on January 8, 2008. The reporter asked Davis about the report on my blog on January 6, 2008, of the meeting in Madison.
At the January 29 meeting, Davis offered this more general statement about his policy on releasing information to the public:
"We are attempting to do everything we possibly can to provide that information that the public needs to be adequately knowledgeable of any issue that comes before this board."
That is a pretty clear statement that it is Davis’ view that he, not the public, should decide what information the public needs to know.
Not Every Board Member Loves A Secret
The controversy over the retreat that the Oconee County Board of Commissioners held in Madison on December 7 without giving 24-hour notice and the decision of the County to close the bidding process for the Rocky Branch sewage treatment plant upgrade has brought out fissures on the Board that were in evidence at the January 29, 2008, meeting.
The story in the Athens Banner-Herald about the January 29 meeting gave a sense of those differences. A close examination of the comments, however, gives a clearer picture of how differently members of the Board view the controversy.
Because the Board of Commissioners does not broadcast its meetings live or put a video or audio version of the meetings on its web site, I had to rely on an audio recording of portions of that meeting made by Tim Price and Karen Kimbaris, members of the Board of Directors of Friends of Barber Creek. They were sitting at the rear of the room. I was out of town and missed the meeting entirely.
Because the audio quality is not high, I have transcribed key sections and made the transcription available, rather than the audio, at my web site, Oconee County Observations II.
Commissioner Chuck Horton was most critical of the County. "I do think there has been a degradation of the trust level," he told Chairman Melvin Davis, and he said the decline in trust had affected him.
"I’m included in that group," he said. "I think when we went to the retreat and it wasn’t disclosed on a timely manner the way it was supposed to. People can argue whatever, but it wasn’t disclosed. That didn’t help the cause."
Commissioner Margaret Hale said she was offended by the comment County Administrator Alan Theriault made in an email message on December 21, 2007, in response to my request for access to the bids for the Rocky Branch upgrade. Theriault said "The mere fact that a member of the general public is in anyway involved may taint and compromise the entire process."
"I understand the public frustration," Hale said. "When I saw ‘public input taints the process’ I can say for me, it’s not true. I am not an expert in these things. I look to people who are experts to offer me guidance and education about these projects."
Hale said she wanted to County do be more flexible regarding the bids. "We are not required to do certain things, and I agree. The word for me is ‘required’."
Commission Don Norris was unapologetic.
"I don’t see where I have violated anyone’s trust," he said in reference to the closed bidding process. The citizens "know just as much about it as I do."
On the meeting in Madison, he said: "I’ve been here 20 years. I can’t recall ever having a secret meeting. I’m sorry too. There was no secret what occurred. It was not advertised. But that has been corrected. But one time in 20 years?"
Commissioner Jim Luke said not a word during the discussion.
Chairman Davis used the opportunity to repeat his position that a staff error had resulted in the notice for the December 7 meeting going out less than 24 hours in advance.
"We didn’t know that that lateness occurred," he said. "Was it intentional? Of course it was not intentional. Would I have canceled the meeting had I known that it had gone out late? Of course I would have. But I did not know it. Neither did any of this board members know it."
"The item happened," he said. "And I’m sorry it happened. And, again, as Don (Norris) has said, measures have been put in place to correct that."
The meeting had been scheduled at least three weeks in advance. I questioned whether a closed meeting had taken place in public comments I made to the Board on December 18. None of the Board members responded by acknowledging such a meeting.
Davis issued an apology only after a reporter for the Athens Banner-Herald contacted him on January 8, 2008. The reporter asked Davis about the report on my blog on January 6, 2008, of the meeting in Madison.
At the January 29 meeting, Davis offered this more general statement about his policy on releasing information to the public:
"We are attempting to do everything we possibly can to provide that information that the public needs to be adequately knowledgeable of any issue that comes before this board."
That is a pretty clear statement that it is Davis’ view that he, not the public, should decide what information the public needs to know.
Wednesday, February 06, 2008
Written 2/6/2008
County Admits Problems at Calls Creek
In a conversation with me following the meeting of the Board of Commissioners last night, Oconee County Public Works Director Emil Beshara confirmed that the County is having serious problems with the cost of operating the Calls Creek sewage plant, and this is the motivation for seeking an alternative design for the proposed Rocky Branch upgrade.
Beshara said the decision of the County to insert the design option into the November 16, 2007, Request for Proposal for the Rocky Branch upgrade was the result of his input and that of John Hatcher, the Oconee County Utility Department director. That design option calls for a more traditional type of biological treatment followed by membrane filtration.
The County specified in its application to the state for a permit to discharge up to 1 million gallons per day of effluent from the Rocky Branch plant into Barber Creek that it would use the same design as it currently is using at Calls Creek.
That design is the vertical loop reactor and membrane biological reactor. The second design is called a suspended growth biological process for secondary treatment with tertiary membrane filtration.
Beshara confirmed that the second design is more traditional, possibly using standard procedures such as aeration to stimulate bacterial breakdown of the sewage, followed by membrane filtration. The first design combines the filtration and the biological reaction.
Beshara said the Calls Creek plant is being forced to replace membranes much more frequently than had been promised and that electrical costs for operation of the plant are higher than expected. The membranes are supposed to last five years, he said, but the County is replacing them every "few" months.
The is confirmation of what bidders for the upgrade to Rocky Branch said in the first round of bidding.
Carter & Sloope said it the closing comments of its bid that "It is our understanding that the County is having some concerns about the long-term O&M (Operating and Maintenance) expenses of membrane treatment plants."
Prior to this conversation, which Beshara initiated, the County never has acknowledged that there were any problems with the Calls Creek plant and has consistently touted its design as a model for such plants.
Beshara said he believes the County can produce as high of a quality of water with the alternate design as with the original. Since the County has not allowed citizen examination of the bids or even of the Selection Committee evaluation of those bids, it is impossible to know at this point what the bidders proposed or believed they could produce with the alternate design.
Beshara said the County allowed the bidders to propose alternatives for the biological process, as long as they included membrane filtration.
He credited the Friends of Barber Creek’s pressure on the BOC with making impossible for the County to abandon membranes, which the County tried to do in the first round of bidding.
"I had always been instructed that it would use membrane filtration," he said. Beshara joined the County after the first round of bidding had been completed and discarded.
The Selection Committee for the bids, appointed by the Board of Commissioners to evaluate the bids, has selected three firms for consideration: Brown and Caldwell of Atlanta, HSF Engineering of Snellville, and Wiedeman & Singleton of Atlanta.
Jimmy Parker from County consultant Precision Planning Inc., who chairs the Selection Committee, announced at the January 29 meeting that the Selection Committee will meet with bidders in the middle of this month.
Tonight I wrote a letter to BOC Chairman Melvin Davis asking to be informed of the time, date and place of the meeting so I can attend. I was denied access to an earlier meeting of the Selection Committee on January 4 and have filed a complaint with the state attorney general regarding that denial.
At the BOC meeting last night, I made a statement to the Board indicating why access to those bids is so important for anyone concerned about the County’s plans for the Rocky Branch sewage treatment plant.
As soon as I finished my statement, the Board, without response or comment, adjourned the meeting.
County Admits Problems at Calls Creek
In a conversation with me following the meeting of the Board of Commissioners last night, Oconee County Public Works Director Emil Beshara confirmed that the County is having serious problems with the cost of operating the Calls Creek sewage plant, and this is the motivation for seeking an alternative design for the proposed Rocky Branch upgrade.
Beshara said the decision of the County to insert the design option into the November 16, 2007, Request for Proposal for the Rocky Branch upgrade was the result of his input and that of John Hatcher, the Oconee County Utility Department director. That design option calls for a more traditional type of biological treatment followed by membrane filtration.
The County specified in its application to the state for a permit to discharge up to 1 million gallons per day of effluent from the Rocky Branch plant into Barber Creek that it would use the same design as it currently is using at Calls Creek.
That design is the vertical loop reactor and membrane biological reactor. The second design is called a suspended growth biological process for secondary treatment with tertiary membrane filtration.
Beshara confirmed that the second design is more traditional, possibly using standard procedures such as aeration to stimulate bacterial breakdown of the sewage, followed by membrane filtration. The first design combines the filtration and the biological reaction.
Beshara said the Calls Creek plant is being forced to replace membranes much more frequently than had been promised and that electrical costs for operation of the plant are higher than expected. The membranes are supposed to last five years, he said, but the County is replacing them every "few" months.
The is confirmation of what bidders for the upgrade to Rocky Branch said in the first round of bidding.
Carter & Sloope said it the closing comments of its bid that "It is our understanding that the County is having some concerns about the long-term O&M (Operating and Maintenance) expenses of membrane treatment plants."
Prior to this conversation, which Beshara initiated, the County never has acknowledged that there were any problems with the Calls Creek plant and has consistently touted its design as a model for such plants.
Beshara said he believes the County can produce as high of a quality of water with the alternate design as with the original. Since the County has not allowed citizen examination of the bids or even of the Selection Committee evaluation of those bids, it is impossible to know at this point what the bidders proposed or believed they could produce with the alternate design.
Beshara said the County allowed the bidders to propose alternatives for the biological process, as long as they included membrane filtration.
He credited the Friends of Barber Creek’s pressure on the BOC with making impossible for the County to abandon membranes, which the County tried to do in the first round of bidding.
"I had always been instructed that it would use membrane filtration," he said. Beshara joined the County after the first round of bidding had been completed and discarded.
The Selection Committee for the bids, appointed by the Board of Commissioners to evaluate the bids, has selected three firms for consideration: Brown and Caldwell of Atlanta, HSF Engineering of Snellville, and Wiedeman & Singleton of Atlanta.
Jimmy Parker from County consultant Precision Planning Inc., who chairs the Selection Committee, announced at the January 29 meeting that the Selection Committee will meet with bidders in the middle of this month.
Tonight I wrote a letter to BOC Chairman Melvin Davis asking to be informed of the time, date and place of the meeting so I can attend. I was denied access to an earlier meeting of the Selection Committee on January 4 and have filed a complaint with the state attorney general regarding that denial.
At the BOC meeting last night, I made a statement to the Board indicating why access to those bids is so important for anyone concerned about the County’s plans for the Rocky Branch sewage treatment plant.
As soon as I finished my statement, the Board, without response or comment, adjourned the meeting.
Monday, February 04, 2008
Written 2/4/2008
Crack in the Policy of Secrecy
Lost in the media reports about the Board of Commissioners meeting on January 29 was a major concession made by the Oconee County administration regarding when the bids for the upgrade for the Rocky Branch sewage treatment plant will be available to the public.
The public will get to see those bids before the Board of Commissioners votes, not after, Chairman Melvin Davis said on the 29th.
"When final recommendations are made to this BOC," Davis said, "All proposals and bids will be public at that time and placed on the web site for review, and the BOC will not act on that proposal or recommendation at that time to allow plenty of time for public input."
This contrasts with what Oconee County Administrative Officer Alan Theriault told me in an email message on December 26, 2007. Theriault said the bids "will be available to the public at such time as the final award of the contract is made or the project is terminated or abandoned."
Chairman Davis also made a second promise at the meeting after Friends of Barber Creek Vice President Tim Price reiterated the request that the County agree not to discharge water from the Rocky Branch plant into Barber Creek at times of flooding, to treat the water to the highest level technology allows, and to provide for independent monitoring of the plant.
"Rest assured that this Board of Commissioners wants to do everything possible to make sure we don’t do anything that is detrimental to the environment, the creek, to make sure that our treatment is to the highest quality that we can afford to handle. I think the request for proposal asks for the best treatment that we can possibly get as far as membrane filtration and tertiary treatment."
"I hear I have your word on that," Price said.
"I think that is what this Board of Commissioners desires to do. There is no question about that," Davis replied.
Davis’ response does point to the importance of making the bids available to the public before the BOC votes.
The RFP specifies that the bid must be for a design that uses membrane filtration, but it allows two options.
The first is the vertical loop reactor and membrane biological reactor specified in the application the County made for the state permit to discharge the treated sewage water from the plant into Barber Creek.
The second design is called a suspended growth biological process for secondary treatment with tertiary membrane filtration.
I have spoken with two experts on sewage plants. Membranes are more central to the first design than the second, they said. Which type of plant will produce a better quality water is dependent on a number of things, I was told, including the ability to operate the plant correctly and the type of sewage being treated.
By examining the bids from first RFP issued in June of 2007, I discovered that the County had given a tip to at least some of the bidders that it was willing to abandon membrane filtration altogether.
In its bid, Jordan Jones & Goulding wrote that it was "delighted" to learn at the pre-proposal conference "that there is flexibility in your thinking." The letter continued that the Utility Department leadership was looking "for the most cost effective way of producing reuse water and meeting future discharge limits."
JJ&G proposed a plant without membrane filtration to save the County money. The Selection Committee recommended JJ&G receive the contract, but the BOC never was asked to vote on the recommendation.
Carter & Sloope, another bidder in that first round, also discussed alternatives to membrane filtration.
"It is our understanding that the County is having some concerns about the long-term O&M (Operating and Maintenance) expenses of membrane treatment plants."
It is because these bids are so important and can be so informative that I have filed an open records request to view them and to view the written reports of the Selection Committee. I also asked to be informed about the meeting the Selection Committee held to discuss the bids. I have been denied all of these things.
Davis’ promise on January 29 is the first crack in this policy of secrecy regarding the bids.
Crack in the Policy of Secrecy
Lost in the media reports about the Board of Commissioners meeting on January 29 was a major concession made by the Oconee County administration regarding when the bids for the upgrade for the Rocky Branch sewage treatment plant will be available to the public.
The public will get to see those bids before the Board of Commissioners votes, not after, Chairman Melvin Davis said on the 29th.
"When final recommendations are made to this BOC," Davis said, "All proposals and bids will be public at that time and placed on the web site for review, and the BOC will not act on that proposal or recommendation at that time to allow plenty of time for public input."
This contrasts with what Oconee County Administrative Officer Alan Theriault told me in an email message on December 26, 2007. Theriault said the bids "will be available to the public at such time as the final award of the contract is made or the project is terminated or abandoned."
Chairman Davis also made a second promise at the meeting after Friends of Barber Creek Vice President Tim Price reiterated the request that the County agree not to discharge water from the Rocky Branch plant into Barber Creek at times of flooding, to treat the water to the highest level technology allows, and to provide for independent monitoring of the plant.
"Rest assured that this Board of Commissioners wants to do everything possible to make sure we don’t do anything that is detrimental to the environment, the creek, to make sure that our treatment is to the highest quality that we can afford to handle. I think the request for proposal asks for the best treatment that we can possibly get as far as membrane filtration and tertiary treatment."
"I hear I have your word on that," Price said.
"I think that is what this Board of Commissioners desires to do. There is no question about that," Davis replied.
Davis’ response does point to the importance of making the bids available to the public before the BOC votes.
The RFP specifies that the bid must be for a design that uses membrane filtration, but it allows two options.
The first is the vertical loop reactor and membrane biological reactor specified in the application the County made for the state permit to discharge the treated sewage water from the plant into Barber Creek.
The second design is called a suspended growth biological process for secondary treatment with tertiary membrane filtration.
I have spoken with two experts on sewage plants. Membranes are more central to the first design than the second, they said. Which type of plant will produce a better quality water is dependent on a number of things, I was told, including the ability to operate the plant correctly and the type of sewage being treated.
By examining the bids from first RFP issued in June of 2007, I discovered that the County had given a tip to at least some of the bidders that it was willing to abandon membrane filtration altogether.
In its bid, Jordan Jones & Goulding wrote that it was "delighted" to learn at the pre-proposal conference "that there is flexibility in your thinking." The letter continued that the Utility Department leadership was looking "for the most cost effective way of producing reuse water and meeting future discharge limits."
JJ&G proposed a plant without membrane filtration to save the County money. The Selection Committee recommended JJ&G receive the contract, but the BOC never was asked to vote on the recommendation.
Carter & Sloope, another bidder in that first round, also discussed alternatives to membrane filtration.
"It is our understanding that the County is having some concerns about the long-term O&M (Operating and Maintenance) expenses of membrane treatment plants."
It is because these bids are so important and can be so informative that I have filed an open records request to view them and to view the written reports of the Selection Committee. I also asked to be informed about the meeting the Selection Committee held to discuss the bids. I have been denied all of these things.
Davis’ promise on January 29 is the first crack in this policy of secrecy regarding the bids.
Sunday, February 03, 2008
Written 2/3/2008
Chairman Davis Goes on Offensive
Board of Commissioners Chairman Melvin Davis has gone on the offensive following the publication on Monday, January 28, of the story in the Athens Banner-Herald under the top-of-the-front-page headline "Oconee officials again called out."
The story, by Oconee reporter Adam Thompson, focused on the complaint I filed with the Georgia Attorney General regarding the January 4 meeting of the Selection Committee that is reviewing the bids for the upgrade of the Rocky Branch sewage plant. The County refused to give public notice about the meeting, making it impossible for citizens to attend.
Davis has ignored the question of the meeting’s legality and defended the County’s decision to keep the specifics of the bids secret.
Rob Peecher, editor and publisher of The Oconee Leader, emailed me that "Melvin Davis called and wanted to talk to me" the day the Banner-Herald story ran. Peecher, in questions he posed to me on the evening of January 31, laid out Davis’ defense for the County’s decision to close the bidding process for the Rocky Branch upgrade.
At the Board of Commissioners meeting on the 29th, Davis set aside the agenda to launch into an attack on the critics and asked County Attorney Day Haygood to justify the decisions made about the bidding process.
The Oconee Enterprise, which is the designated recipient of County legal notices and often serves as the mouthpiece for County officials, ran a story in its January 31 edition under the headline, "Chairman fights back in open records dispute."
The paper quotes Davis as saying at the Tuesday (January 29) meeting that "falsehoods and insinuations" had been circulated about the bidding process, but that the County was following strictly Georgia law.
The County’s case, as spelled out by Haygood at the January 29 meeting, is based on a distinction in Georgia law between a competition with sealed bids and a competition with sealed proposals. The County issued a Request for Proposal.
Competitive sealed bids are opened and evaluated without discussion with the bidders. The law says the County can close these bids to the public, but it does not have to do so. The County does not have to select the low bidder.
The County can negotiate with the bidder in the case of competitive sealed proposals. The County is not allowed to disclose the contents of proposals to competing bidders, according to Georgia Code.
Haygood at the meeting on January 29 said the County is using the competitive sealed proposal process to save money. He also allowing citizens to see the bids would violate the law and be a misdemeanor.
The County also used the competitive sealed proposal process when it first advertised for bids for the Rocky Branch upgrade in June. In response to an open records request I made after the bids were received, the County released them to me.
The County has never explained why it was not a violation of the law to release the bids last time and it is a violation of the law today. The law has not changed.
When I examined the bids in the June competition, I learned that the County had given a tip to at least some bidders at the presubmittal conference. The County said it was willing to abandon membrane filtration at the Rocky Branch plant in favor of a less sophisticated treatment technology. The County received three bids. The Selection Committee recommended a bidder who wanted to abandon membrane filtration.
After I revealed this irregularity, the County abandoned the bids and started the process over. This time, it has refused to allow any access to the bids.
In my complaint to the Attorney General, I focused on the County’s denial of access to the Selection Committee meeting of January 4 and denial of access to the evaluation documents that Committee produced.
Dr. Kent Middleton, an expert on media law and a faculty member at the University of Georgia, has told me he believes that meeting is covered by the case law that has built up for the Georgia Open Meetings laws. Hollie Manheimer, executive director of the Georgia First Amendment Foundation, said she believes that as well.
The Open Meetings Laws allows an agency, such as the Selection Committee, to go into closed session under a limited set of circumstances, but only if it meets first in open. Opening of bids is not one of those circumstances that would allow the Selection Committee to go into closed session.
Even if it were legal to go into executive session, the Selection Committee would be required to take that action in public at a meeting for which it gave proper notification of the time and place of the meeting at least 24 hours in advance.
The Request for Proposal issued for the second round of competition specifies that membrane filtration must be used in the plant design, but it allows two options.
The first is the vertical loop reactor and membrane biological reactor specified in the application the County made for the permit to discharge the treated sewage water from the plant into Barber Creek.
The second design is called a suspended growth biological process for secondary treatment with tertiary membrane filtration.
I have spoken with two experts on sewage plants. Both assured me these designs are not the same and can produce different outcomes.
The County has decided up to this point to keep the discussion of these options and their consequences from the public. In comments entered into the record of the January 29 meeting, the Board of Directors of Friends of Barber Creek asked that no action be taken by the Board of Commissioners until the public has had a chance to review the bids.
At the January 29 meeting, Jimmy Parker from Precision Planning Inc., who is chairing the Selection Committee, said three bidders have been recommended for further discussion. They are Brown and Caldwell of Atlanta, HSF Engineering of Snellville, and Wiedeman & Singleton of Atlanta.
He said he plans to come back to the BOC on February 26 with the results of that negotiation.
Chairman Davis Goes on Offensive
Board of Commissioners Chairman Melvin Davis has gone on the offensive following the publication on Monday, January 28, of the story in the Athens Banner-Herald under the top-of-the-front-page headline "Oconee officials again called out."
The story, by Oconee reporter Adam Thompson, focused on the complaint I filed with the Georgia Attorney General regarding the January 4 meeting of the Selection Committee that is reviewing the bids for the upgrade of the Rocky Branch sewage plant. The County refused to give public notice about the meeting, making it impossible for citizens to attend.
Davis has ignored the question of the meeting’s legality and defended the County’s decision to keep the specifics of the bids secret.
Rob Peecher, editor and publisher of The Oconee Leader, emailed me that "Melvin Davis called and wanted to talk to me" the day the Banner-Herald story ran. Peecher, in questions he posed to me on the evening of January 31, laid out Davis’ defense for the County’s decision to close the bidding process for the Rocky Branch upgrade.
At the Board of Commissioners meeting on the 29th, Davis set aside the agenda to launch into an attack on the critics and asked County Attorney Day Haygood to justify the decisions made about the bidding process.
The Oconee Enterprise, which is the designated recipient of County legal notices and often serves as the mouthpiece for County officials, ran a story in its January 31 edition under the headline, "Chairman fights back in open records dispute."
The paper quotes Davis as saying at the Tuesday (January 29) meeting that "falsehoods and insinuations" had been circulated about the bidding process, but that the County was following strictly Georgia law.
The County’s case, as spelled out by Haygood at the January 29 meeting, is based on a distinction in Georgia law between a competition with sealed bids and a competition with sealed proposals. The County issued a Request for Proposal.
Competitive sealed bids are opened and evaluated without discussion with the bidders. The law says the County can close these bids to the public, but it does not have to do so. The County does not have to select the low bidder.
The County can negotiate with the bidder in the case of competitive sealed proposals. The County is not allowed to disclose the contents of proposals to competing bidders, according to Georgia Code.
Haygood at the meeting on January 29 said the County is using the competitive sealed proposal process to save money. He also allowing citizens to see the bids would violate the law and be a misdemeanor.
The County also used the competitive sealed proposal process when it first advertised for bids for the Rocky Branch upgrade in June. In response to an open records request I made after the bids were received, the County released them to me.
The County has never explained why it was not a violation of the law to release the bids last time and it is a violation of the law today. The law has not changed.
When I examined the bids in the June competition, I learned that the County had given a tip to at least some bidders at the presubmittal conference. The County said it was willing to abandon membrane filtration at the Rocky Branch plant in favor of a less sophisticated treatment technology. The County received three bids. The Selection Committee recommended a bidder who wanted to abandon membrane filtration.
After I revealed this irregularity, the County abandoned the bids and started the process over. This time, it has refused to allow any access to the bids.
In my complaint to the Attorney General, I focused on the County’s denial of access to the Selection Committee meeting of January 4 and denial of access to the evaluation documents that Committee produced.
Dr. Kent Middleton, an expert on media law and a faculty member at the University of Georgia, has told me he believes that meeting is covered by the case law that has built up for the Georgia Open Meetings laws. Hollie Manheimer, executive director of the Georgia First Amendment Foundation, said she believes that as well.
The Open Meetings Laws allows an agency, such as the Selection Committee, to go into closed session under a limited set of circumstances, but only if it meets first in open. Opening of bids is not one of those circumstances that would allow the Selection Committee to go into closed session.
Even if it were legal to go into executive session, the Selection Committee would be required to take that action in public at a meeting for which it gave proper notification of the time and place of the meeting at least 24 hours in advance.
The Request for Proposal issued for the second round of competition specifies that membrane filtration must be used in the plant design, but it allows two options.
The first is the vertical loop reactor and membrane biological reactor specified in the application the County made for the permit to discharge the treated sewage water from the plant into Barber Creek.
The second design is called a suspended growth biological process for secondary treatment with tertiary membrane filtration.
I have spoken with two experts on sewage plants. Both assured me these designs are not the same and can produce different outcomes.
The County has decided up to this point to keep the discussion of these options and their consequences from the public. In comments entered into the record of the January 29 meeting, the Board of Directors of Friends of Barber Creek asked that no action be taken by the Board of Commissioners until the public has had a chance to review the bids.
At the January 29 meeting, Jimmy Parker from Precision Planning Inc., who is chairing the Selection Committee, said three bidders have been recommended for further discussion. They are Brown and Caldwell of Atlanta, HSF Engineering of Snellville, and Wiedeman & Singleton of Atlanta.
He said he plans to come back to the BOC on February 26 with the results of that negotiation.
Saturday, January 26, 2008
Written 1/26/2008
Bids Closed to Public to be Discussed by BOC
The Oconee County Board of Commissioners will get an update on the bids for the upgrade of the Rocky Branch sewage treatment plant at its meeting on Tuesday, January 29, according to the draft agenda released by Oconee County Clerk Gina Lindsey on Friday afternoon, January 25.
Rocky Branch will be the first item on the agenda, but it is not possible to know if the Board will be asked to take action or anything about the bids themselves or the review process since the County decided to close the entire process to citizens.
The County holds a state permit to discharge up to 1 million gallons per day of treated sewage water from an upgraded Rocky Branch plant into Barber Creek, which flows through the northern part of the County.
Citizen scrutiny of the first round of bidding in late summer showed that the County had given tips to at least some bidders that it was interested in using a less sophisticated treatment technology than was called for in the Request for Proposal.
County officials recommended that a bidder who intended to use the lesser technology be given the contract, but the County threw out the bids after these irregularities were exposed.
In the second RFP, the County offered bidders the option of using both the original technology and a second technology.
Feng Jiang, who did graduate work involving these technologies at the University of Georgia, informed me that they are not equivalent and that the only way to know which will produce the higher quality water is to know the characteristics of the sewage coming in to the plant.
Board of Commissioners member Chuck Horton, who attended a closed meeting of the bid Selection Committee, said he did not believe the Committee was interested in recommending an inferior technology. He admitted, however, that he did not know the difference between the two technologies or the implications of selecting one over the other.
The Selection Committee, with Horton present, met on January 4. Members of the Committee are John Hatcher, Utilities Department director, Emil Beshara, Public Works Department director, Alan Theriault, County administrative officer, Jim Sunta, from Precision Planning Inc., and Jimmy Parker, also from Precision Planning.
Parker has been given the responsibility by the County for handling the bid review process, and he set up the January 4 meeting.
The County has acknowledged the names of the nine bidders, but not other information about the bidders or the bids.
I asked to be informed about the time and place of the Selection Committee meeting, but I was told by Theriault that I would not be. I learned that the Committee met only through an open records request I filed on January 7. I also was denied access to the bids and to details of the evaluation of those bids.
While Georgia law does allow–but not require–counties to close bids, it requires open access to public meetings, with limited exceptions. I have filed a complaint with the Attorney General about the County’s unwillingness to post notice about the January 4 meeting.
I also contacted the Georgia First Amendment Foundation and provide it a copy of my complaint to the Attorney General. Hollie Manheimer, executive director of the Foundation, wrote to Theriault on January 23, 2008, asking him to offer an "explanation of what will be done to remendy these actions that go against the interests of the public."
At the BOC meeting on Tuesday, members of the Board of Directors of Friends of Barber Creek will ask the BOC not to take any action on the Rocky Branch bids until the public has been given an opportunity to review them and have access to the evaluation process.
Commissioners Margaret Hale and Horton have told me personally they want citizens to have access to the bids. Commission Jim Luke has told me he does not.
Commissioner Don Norris usually supports what County officials, such as Theriault, propose. Those officials are appointed by and report to Board of Commissioners Chairman Melvin Davis.
Two other items on the January 29 agenda also are important. One is a discussion of Transfer of Development Rights, which advocates argue could be used to protect the rural parts of the County from development. The other is Impact Fees, which many counties impose on developers to cover costs associated with development.
These two items follow the Rocky Branch update on the draft agenda.
Bids Closed to Public to be Discussed by BOC
The Oconee County Board of Commissioners will get an update on the bids for the upgrade of the Rocky Branch sewage treatment plant at its meeting on Tuesday, January 29, according to the draft agenda released by Oconee County Clerk Gina Lindsey on Friday afternoon, January 25.
Rocky Branch will be the first item on the agenda, but it is not possible to know if the Board will be asked to take action or anything about the bids themselves or the review process since the County decided to close the entire process to citizens.
The County holds a state permit to discharge up to 1 million gallons per day of treated sewage water from an upgraded Rocky Branch plant into Barber Creek, which flows through the northern part of the County.
Citizen scrutiny of the first round of bidding in late summer showed that the County had given tips to at least some bidders that it was interested in using a less sophisticated treatment technology than was called for in the Request for Proposal.
County officials recommended that a bidder who intended to use the lesser technology be given the contract, but the County threw out the bids after these irregularities were exposed.
In the second RFP, the County offered bidders the option of using both the original technology and a second technology.
Feng Jiang, who did graduate work involving these technologies at the University of Georgia, informed me that they are not equivalent and that the only way to know which will produce the higher quality water is to know the characteristics of the sewage coming in to the plant.
Board of Commissioners member Chuck Horton, who attended a closed meeting of the bid Selection Committee, said he did not believe the Committee was interested in recommending an inferior technology. He admitted, however, that he did not know the difference between the two technologies or the implications of selecting one over the other.
The Selection Committee, with Horton present, met on January 4. Members of the Committee are John Hatcher, Utilities Department director, Emil Beshara, Public Works Department director, Alan Theriault, County administrative officer, Jim Sunta, from Precision Planning Inc., and Jimmy Parker, also from Precision Planning.
Parker has been given the responsibility by the County for handling the bid review process, and he set up the January 4 meeting.
The County has acknowledged the names of the nine bidders, but not other information about the bidders or the bids.
I asked to be informed about the time and place of the Selection Committee meeting, but I was told by Theriault that I would not be. I learned that the Committee met only through an open records request I filed on January 7. I also was denied access to the bids and to details of the evaluation of those bids.
While Georgia law does allow–but not require–counties to close bids, it requires open access to public meetings, with limited exceptions. I have filed a complaint with the Attorney General about the County’s unwillingness to post notice about the January 4 meeting.
I also contacted the Georgia First Amendment Foundation and provide it a copy of my complaint to the Attorney General. Hollie Manheimer, executive director of the Foundation, wrote to Theriault on January 23, 2008, asking him to offer an "explanation of what will be done to remendy these actions that go against the interests of the public."
At the BOC meeting on Tuesday, members of the Board of Directors of Friends of Barber Creek will ask the BOC not to take any action on the Rocky Branch bids until the public has been given an opportunity to review them and have access to the evaluation process.
Commissioners Margaret Hale and Horton have told me personally they want citizens to have access to the bids. Commission Jim Luke has told me he does not.
Commissioner Don Norris usually supports what County officials, such as Theriault, propose. Those officials are appointed by and report to Board of Commissioners Chairman Melvin Davis.
Two other items on the January 29 agenda also are important. One is a discussion of Transfer of Development Rights, which advocates argue could be used to protect the rural parts of the County from development. The other is Impact Fees, which many counties impose on developers to cover costs associated with development.
These two items follow the Rocky Branch update on the draft agenda.
Wednesday, January 16, 2008
Written 1/16/2008
Keep ‘Em in the Dark
The County confirmed its plans to keep citizens in the dark about the second round of bids on the upgrade of Rocky Branch sewage treatment plant last week by officially denying my Open Records Request for access to the bids and the review documents.
In a letter dated January 10, 2008, County Administrative Office Alan Theriault rejected my request on January 7 for access to the nine submitted bids and to the documents produced by the County during the evaluation of the bids.
The County also denied me access to other documents I requested regarding correspondence between Consultant Jimmy Parker and the County relating to the evaluation of the nine bids.
All I was given was copies of nine sheets of paper, including a blank evaluation form.
In denying the request, Theriault cited state law allowing the County to deny access to bids. The law does not require the County to deny access.
The County had allowed us access to the bids and the evaluation materials during the first round of bidding in late summer.
My examination of those bids showed that the County had given tips to bidders that it would entertain a design not specified in the formal Request for Proposal (RFP). The recommended bidder proposed use of a technologically less sophisticated design that could not treat the water to the same standard as the membrane filtration system specified in the RFP.
The low bidder had stuck by the published specifications and was passed over by the reviewers. In addition, the recommended bidder actually had drawn up the written specifications for the plant that was included in the RFP.
After I pointed out these problems in a posting to my blog (see my posting of 9/2/2007 below), the County tossed out the bids and decided to rebid the process.
The documents the County did release to me when I went to the courthouse on January 11 indicate that the County did hold a meeting of the review committee on January 4. As I reported on 12/28/2007 (below), Theriault denied me advance notice of that meeting in an email message he sent me on 12/21/2007.
The documents the County did released to me include correspondence between Theriault and Jimmy Parker from Precision Planning regarding how they were going to involve the Board of Commissioners in the decision. Parker is chairing the evaluation committee.
Parker suggested that he present a short list of three firms to the BOC for final approval and request the Board’s authorization that the Chairman of the Board and the staff negotiate with the three firms.
"I just want to make sure we cover all the political bases," Parker said.
Theriault said this issue would be discussed at the January 4 meeting. The notes I received do not indicate the outcome of that discussion.
I have talked with two legal experts with considerable experience with the Georgia laws governing public access to meetings. Both said they believe that the County violated state law in closing the review meeting and indicated that the Georgia Supreme Court has ruled clearly that official meetings of almost all sorts are open to the public.
Any action taken at an illegally closed meeting can be declared void by the courts.
The County did release to me a copy of correspondence between Theriault and BOC Chairman Melvin Davis in which Theriault advises Davis on how the County can close the bidding process. Theriault repeated the statement he made to me that the public "could compromise the entire process."
The response of the nine bidders to the second RFP is important because the second RFP asks bidders to submit a base and an alternate design. The base design should follow the original membrane design specifications submitted to the Georgia EPD as part of the application for the permit to discharge treated sewage water into Barber Creek. The alternate design calls for membrane filtration as a tertiary step, rather than the use of a membrane biological reaction.
I have spoken with an expert on sewage plant designs who has assured me that this difference is not a trivial one.
The decision by the County administration–under the control of Chairman Melvin Davis–guarantees that we will never know which of the nine bidders was proposing to use a technology to treat the water to the highest quality at the lowest price.
Yet we are the ones who are going to have to deal with the water discharged and pay for the $8-10 million plant.
This is a County administration that has demonstrated once again that it prefers to make important decisions that affect the public behind closed doors.
Keep ‘Em in the Dark
The County confirmed its plans to keep citizens in the dark about the second round of bids on the upgrade of Rocky Branch sewage treatment plant last week by officially denying my Open Records Request for access to the bids and the review documents.
In a letter dated January 10, 2008, County Administrative Office Alan Theriault rejected my request on January 7 for access to the nine submitted bids and to the documents produced by the County during the evaluation of the bids.
The County also denied me access to other documents I requested regarding correspondence between Consultant Jimmy Parker and the County relating to the evaluation of the nine bids.
All I was given was copies of nine sheets of paper, including a blank evaluation form.
In denying the request, Theriault cited state law allowing the County to deny access to bids. The law does not require the County to deny access.
The County had allowed us access to the bids and the evaluation materials during the first round of bidding in late summer.
My examination of those bids showed that the County had given tips to bidders that it would entertain a design not specified in the formal Request for Proposal (RFP). The recommended bidder proposed use of a technologically less sophisticated design that could not treat the water to the same standard as the membrane filtration system specified in the RFP.
The low bidder had stuck by the published specifications and was passed over by the reviewers. In addition, the recommended bidder actually had drawn up the written specifications for the plant that was included in the RFP.
After I pointed out these problems in a posting to my blog (see my posting of 9/2/2007 below), the County tossed out the bids and decided to rebid the process.
The documents the County did release to me when I went to the courthouse on January 11 indicate that the County did hold a meeting of the review committee on January 4. As I reported on 12/28/2007 (below), Theriault denied me advance notice of that meeting in an email message he sent me on 12/21/2007.
The documents the County did released to me include correspondence between Theriault and Jimmy Parker from Precision Planning regarding how they were going to involve the Board of Commissioners in the decision. Parker is chairing the evaluation committee.
Parker suggested that he present a short list of three firms to the BOC for final approval and request the Board’s authorization that the Chairman of the Board and the staff negotiate with the three firms.
"I just want to make sure we cover all the political bases," Parker said.
Theriault said this issue would be discussed at the January 4 meeting. The notes I received do not indicate the outcome of that discussion.
I have talked with two legal experts with considerable experience with the Georgia laws governing public access to meetings. Both said they believe that the County violated state law in closing the review meeting and indicated that the Georgia Supreme Court has ruled clearly that official meetings of almost all sorts are open to the public.
Any action taken at an illegally closed meeting can be declared void by the courts.
The County did release to me a copy of correspondence between Theriault and BOC Chairman Melvin Davis in which Theriault advises Davis on how the County can close the bidding process. Theriault repeated the statement he made to me that the public "could compromise the entire process."
The response of the nine bidders to the second RFP is important because the second RFP asks bidders to submit a base and an alternate design. The base design should follow the original membrane design specifications submitted to the Georgia EPD as part of the application for the permit to discharge treated sewage water into Barber Creek. The alternate design calls for membrane filtration as a tertiary step, rather than the use of a membrane biological reaction.
I have spoken with an expert on sewage plant designs who has assured me that this difference is not a trivial one.
The decision by the County administration–under the control of Chairman Melvin Davis–guarantees that we will never know which of the nine bidders was proposing to use a technology to treat the water to the highest quality at the lowest price.
Yet we are the ones who are going to have to deal with the water discharged and pay for the $8-10 million plant.
This is a County administration that has demonstrated once again that it prefers to make important decisions that affect the public behind closed doors.
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