Shut up and pay up

Let’s consider this mysterious and allegedly absolute cover of confidentiality under which Fort Smith and federal officials discussed the settlement of the city’s Clean Water Act violations – a settlement now estimated to cost taxpayers and Fort Smith residents $480 million between now and 2026.

Settlement negotiations between the city and Department of Justice were held for about 18 months. Maybe it was 12 months. Or 20.5 months. We’re not sure because the negotiations were so confidential that the public wasn’t allowed to know when folks who are paid with taxpayer dollars were meeting to determine how many taxpayer dollars would be required to pay for violation of a public Act that was approved in public by Congress as part of an intent to protect the public from negative impacts on our water.

This is an interesting concept worth repeating through summarizing: Two public entities debating the use of public money to fix a problem in the public interest with penalties and remedies outlined by public law were able to block their discussions from public view.

Some folks say the feds like to keep settlement discussions private so as not to provide insight into their negotiating tactics. Tactical leverage seems unnecessary if the feds are negotiating with all parties in good faith. Other folks suggested that Fort Smith officials wanted to operate under the cover of confidentiality to protect their negotiating positions and skill from Board and citizen review. For whatever reasons, the two sides found mutual agreement in not wanting transparency for the public or even elected officials who would eventually vote on the settlement. (And this is assuming that no members of the Fort Smith Board received private, behind-the-scenes updates on the process.)

One Board member, then City Director Pam Weber, asked during a study session how much it would cost for the city to simply comply with the demands of the federal government. It’s a simple question, one might think: What’s this gonna cost us?

"We may be getting into areas of the negotiations,” responded Jerry Canfield, the city’s lead attorney on the matter. "There have been extensive negotiations about what the requirements are and the cost of those. The affordability analysis. … I think in that format, it's probably a question that gets into the negotiations that we shouldn't answer.”

Canfield’s answer is remarkable with respect to his bravado. He wanted us to believe these negotiations were so sensitive to the public light that it was not even possible to disclose a range of what the settlement could cost taxpayers.

Weber wasn’t the only elected official seeking info. The office of U.S. Sen. John Boozman, R-Ark., wanted to sit in on the talks.

Lisa Cherup, an attorney in Washington, D.C., with the Environmental Enforcement Section of the Department of Justice, objected.

“Again, as we discussed, it would not be appropriate for the Senator’s staff to attend a settlement meeting. Additionally, the US considers anything discussed at a settlement meeting to be ‘settlement confidential,’ and that such communications should not be ‘leaked’ to the press or to political offices not part of the municipalities (sic) governance structure,” Cherup noted in a November 2013 e-mail to Canfield.

It makes one wonder what is so proprietary about negotiations related to a basic societal function of keeping shit (literally, not figuratively) out of waterways that not even a U.S. Senator and his staff were to be trusted. Are we going to conquer the world by shoving tree roots through backyard plumbing? Do the terrorists win if they learn our true costs to keep grease contained?

Cherup closed the November 2013 e-mail with an interesting twist: “Of course, we understand that the City’s governance structure (Mayor, Board, etc.) must all be kept apprised of what is happening in negotiations.” Cherup repeated this point in a July 2014 note to Canfield: “I do understand that Mr. Gosack needs to prepare City officials for consideration of the consent decree; and needs to prepare the public for a rate increase; however, we cannot have the specifics of what was discussed during the negotiations leaked to the press, while the negotiations are ongoing. That is counterproductive.”

At least three Board members were never “apprised” of the process until it was placed in front of them and they had but a few days to approve the $480 million plan. That also seems counterproductive and not appropriate.

City Administrator Ray Gosack seemed to understand that strict adherence to confidentiality would be tough based on Arkansas law. In a December 2013 e-mail to Canfield, Gosack asked: “Should we discuss with DOJ how we respond to FOIA requests for information from these discussions? One media outlet, The City Wire, has been very aggressive lately in its requests for e-mails, notes, etc. on various topics. I think it’s possible they could make FOIA requests for our documents relating to these settlement discussions. Perhaps DOJ needs to be aware that we may receive these requests.”

We have yet to learn the answer Gosack was provided.

When asked by The City Wire to cite specific state or federal law that allowed negotiations between public entities about a public law that would result in the expenditure of public dollars to remain confidential, there was an attempt by the city to suggest federal rule 408. Attorneys consulted by The City Wire laughed (literally, not figuratively) at the idea that rule 408 applied. With input from said attorneys, we sent this response to the city: “The federal rule (408) governs admissibility of evidence and appears to have nothing to do with public access. The Arkansas Supreme Court ruled in Scott v. Smith that such rules of evidence have application only in court proceedings and do not create exemptions to the FOIA. Also, exemptions allowed by Arkansas’ FOIA do not include negotiation activity of a municipality.”

We again asked the city for “state and/or federal rules the city and attorneys for the city are using to reject the release or discussion of information related to negotiations (or the lack thereof) between the city and DOJ/EPA?” We have yet to receive a good answer.

The Environmental Protection Administration office in Dallas provided this as an answer to our question about the legal source of confidentiality. Item 7 was the answer, and it is one of nine federal Freedom of Information Act exemptions.
“7. Compiled for law enforcement purposes, the release of which
a. could reasonably be expected to interfere with law enforcement proceedings,
b. would deprive a person of a right to a fair trial or an impartial adjudication,

c. could reasonably be expected to constitute an unwarranted invasion of personal privacy,

d. could reasonably be expected to disclose the identity of a confidential source,

e. would disclose techniques, procedures, or guidelines for investigations or prosecutions, or

f.  could reasonably be expected to endanger an individual's life or physical safety.”

Am open to why anything in the above list allowed for absolute confidentiality in the settlement negotiations between the city and the feds.

This settlement may be a done deal, but it shouldn’t be too much to demand the city or the feds provide a clear, rational and substantive legal reason why it was in the public’s best interest for settlement negotiations to be conducted outside the public view.

Lisa Cherup may be a great attorney for the EPA, but her opinion of what is productive or counterproductive does not automatically justify confidentiality. When she reminded Canfield about not leaking negotiation details to those who are “not part of the municipalities (sic) governance structure,” Canfield or someone at the city should have reminded Cherup that Fort Smith citizens are at the top – literally, not figuratively – of the city’s “governance structure.”