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Kaplan Request for DocumentsF low City of Kalispell Post Office Box 1997 - Kalispell, Montana 59903-1997 - Telephone (406) 758-7000 Fax - (406) 758-7758 July 17, 2006 Mr. Eric Kaplan Kaplan Law Firm, P.C. 511 First Ave. West PO Box 2071 Columbia Falls, MT 59912-2071 RE: Request for Documents — Schwarz Construction, Inc. Dear Mr. Kaplan, Enclosed please find a copy of the documents and e-mails you requested from the City Attorney's office. I am sorry for any inconvenience due to the delay in receiving them. I have personally looked into several of your concerns. I would like to point out that Mark Crowley has not worked in the Planning Office for almost a year. He is working in the Department of Public Works offices as the City's construction inspector. In October 2005, MDEQ, on their own initiative, visited the Department of Public Works and requested that a member of the City Staff accompany them to all the in progress subdivisions. As a result of that visit there were several subdivisions in violation and several developers received similar letters. At no time was Mr. Schwarz singled out by the City or the MDEQ. I am also convinced that Mr. Harball had no knowledge of the MDEQ site visits until after they had been completed. It is the City policy to protect proprietary work if it is identified as proprietary. In the case of Mr. Billmayer's work, it was marked proprietary and the City has the responsibility to notify the creator that his/her work may be released to a third party and give them an opportunity to seek relief, as was the case with Mr. Bilimayer. If there is any other information that I can furnish, please do not hesitate to contact me at 758- 7703 or e-mail at: jpatrick@kalispell.com. Sincerely, James H. Patrick City Manager cc.: Mayor and City Council 511 First Avenue West Eric F. Kaplan Foot Office Box 2071 cricOkaplaillamore Columbia Falls, Montana 59912-2071 Telephone(406) 892-4446 Facoimile(406) 892-4449 afrAWTUR M, Sally 5. Miller Legal Aooiotant oallygkaplamlamorg We represent Schwarz Construction, Inc., as well as its affiliated entities and John Schwarz. I am writing in connection with several unfortunate incidents involving your City Attorney's Office. 1 was very reluctant to write this letter, but Mr. Harball has given us no choice in the matter. Although we have always had the utmost respect for Mr. Harball's integrity and work ethic, several recent events have caused us considerable consternation. In November of 2005, he and I, and others, had numerous conversations regarding a construction project within the City of Kalispell's jurisdiction. Although the substance of that episode is not particularly relevant to the point of this letter, some of the details of that incident are set forth in my enclosed letter of March 24, 2006. As that letter indicates, all of the parties reached and signed an agreement in complete resolution of this matter. Nevertheless, we later learned that a complaint had been filed against my client by the City at approximately the same time these negotiations were in progress. Regrettably, that complaint was never disclosed during my numerous conversations with various City employees. John takes great pride in his work and was disturbed by the complaint filed by the City. Although no action was taken against any of My clients by the DEQ and none is contemplated, we nevertheless Mr. James H. Patrick June 7, 2006 Page 2 want to investigate all of the facts leading to the complaint, including what it was based on, who filed it, and why it was filed but not disclosed. Accordingly, my enclosed letter of March 24 made very specific requests for the production of various City documents. As you undoubtedly know, nearly all City documents are available to the public for their review and copying and these certainly fall within that rule. To the extent there are limited exceptions, none of them apply here. We waited approximately one month for a response from Mr. Harball, but never received any word from him whatsoever. Accordingly, on April 26, 2006, 1 sent another letter to Mr. Harball requesting the information again, a copy of which is also enclosed. To date, we have never had the courtesy of any response whatsoever to this request. Mr. Harball has not supplied the documents, he -has not notified us that we can review the documents, he has not raised any objections --he has simply ignored these requests. We have very strong feelings about Mr. Harball's lack of action in this matter f but we will withhold them until we receive your response. We find it hard to believe and very troubling that the right of Montana's citizens to review the workings of their local government, as set forth in our Constitution, our statutes and in numerous opinions of the Supreme Court, can be so cavalierly ignored. Unfortunately, the foregoing is not the only example of your City Attorney's Office lack of respect for your citizens' "right to know."' During approximately the same time, in November of 2005, our client made a request to the City for certain public records relating to a flood study. The City recognized that the documents were public and should be produced to our client, but nevertheless took the questionable step of notifying the author of the documents, Jay Billmayer, of their intended disclosure and invited him to go to court to block the request. We have enclosed a copy of P.J. Sorenson's letter in which he indicates that he has been instructed"' to provide this notice to Mr. Billmayer and he copied the City Attorney, Charlie Harball, on the letter. It seems apparent that Mr. Harball knew the documents should be made available, but nevertheless offered Mr. Billmayer the opportunity to try to prevent that. Mr. James H. Patrick June 7, 2006 Page 3 Not surprisingly, Mr. Billmayer filed a lawsuit against the City in December, in which my client, Schwarz Architecture & Engineering, intervened. At least two points are noteworthy about this episode. First, although Mr. Harball apparently knew, or certainly should have known, that these documents were public documents, he refused to take a position at the hearing held in Court on January 24, 2006. The Kalispell City Attorney stated he was looking for direction from the Court in regard to how they should handle these ,"copyrighted" documents, but then admitted to the Judge he did not know whether or not they were copyrighted. He also candidly admitted in Court that these files should be available to the public, bu"! did not know whether or not the public should be allowed to copy the documents. It is unfortunate the Court did not have the benefit of the City's analysis , research or position on these compelling municipal issues. In any event, on April 10, 2006, Judge Stadler issued an opinion in favor of Schwarz Architecture & Engineering, Inc. Judge Stadler concluded by stating as follows: In summary, Montana law provides for inspection and copying of public writings and Plaintiffs' request that an injunction issue to prevent copying based upon purely cpeculative reasons is not appropriate. It is disappointing that what was so clear to the Court and to our clients was a matter upon which the City of Kalispell would not ev take a position. I To make matters worse, the City Attorney's Office arbitrarily and unilaterally decided not to comply with the Court's Order. Shortly after the decision was rendered, a representative of my client sought to obtain the documents in question. I am advised that the City refused to produce those documents based upon an oral representation by Mr. Billmayer's attorney that he plannedto file a motion to prevent the City from producing the documents pending an appeal to the Supreme Court, which also had not yet been filed. We do not know if the City Attorney's Office initiated the call to Mr. Billmayer's attorney, or how the entire matter came about. In any Mr. James H. Patrick June 7, 2006 Page 4 event, I believe it is inappropriate for your City Attorney to refuse to follow a Court Order based upon an informal, ex parte, statement of some potential future action itssing party. It would be even more troubling if it were determined that your City Attorney's Office initiated the call, which appears to be a distinct possibility inasmuch as there would have been little reason for Mr. Billmayer's office to place an unsolicited call to the City Attorney. As I mentioned above, it is with great reluctance and hesitation that we write this letter. However, the two incidents described above combine to depict a lack of respect for the public's right to know, as well as a lack of interest in the legitimate request of your citizens. With Mr. Harball ignoring our initial letter for over two months now, we had little choice but to look elsewhere for help. In closing, we would greatly appreciate it if you could let us know the status of our document request and the reason why there has been no response to it. We would also like to learn more about Mr. Harball's decision not to release the documents that were the subject of the lawsuit and whether or not he or his office initiated a call to Mr. Billmayer's counsel upon receiving my client's request. Any additional light you can shed upon any of the other issues we have raised would also be appreciated. Thank you for your prompt attention to these matters and please do not hesitate to contact me if you have any questions. LMAJUUMB� EFK/ssm Enclosures pc: Pam Kennedy, Mayor Charles Harball John Schwarz 511 First Avenue West Post Office box 2071 Columbia Falls, Montana 59912-2071 Telephone (406) 892-4446 Facsimile (406) 892-4449 March 24, 2006 Mr. Charles A. Harball Kalispell City Attorney Post Office Box 1997 Kalispell, MT 59903-1997 Re: Schwarz Construction, Inc. Floodplain Permit #KFDP-05-05 Dear Charlie: Eric F. Kaplan eriG01kaplanlamorg Sally 5. Miller Legal Assistant sally0kaplan lamorg As you will recall, you and I had extensive conversations and negotiations in November of 2005 concerning the captioned matter. Specifically, we tried to formulate a stipulation regarding this matter that was acceptable both to my client and the City. As you know, we did reach an agreement which was signed by the parties on November 23, 2005. Despite the foregoing, my client just received a "warning letter" from the Department of Environmental Quality concerning this specific matter. I have enclosed a copy of this letter for your convenience. As you will see, the letter indicates that the City of Kalispell filed a complaint against Schwarz Construction, Inc. on October 18, 2005. The letter also indicates that our client's activities constituted a violation of the Montana Water Quality Act. I am troubled by the fact that at no time during our conversations, nor during my conversations with other City employees, were we notified that the City had filed this complaint. The stipulation that we negotiated does not suggest in any manner whatsoever that our client violated any laws and specifically states that the agreement was not to be construed as an admission of liability. Moreover, I am advised that you told two Schwarz employees that the stipulation ended the matter and no further action would be taken. I suppose it is conceivable that you did not know about this complaint, but I would like to find out from you whether or not that was Mr. Charles A. Harball March 24, 2006 Page 2 the case. In any event, the letter from DEQ is copied to Mark Crowley of the City who works with Tom Jentz, who was also involved in these negotiations. Indeed, you, Tone, and I were the principal parties involved in these talks. John is also upset by the way this was handled and I too have a number of concerns. Accordingly, we hereby make the following requests so we may get to the bottom of this. We would appreciate it if you would very promptly supply to us all of the following documents: 1. All files in the possession of the City of Kalispell, wherever located and however denominated, which discuss, refer or relate to the captioned matter or to any aspect of the negotiations or the stipulation referred to in this letter. So that there is no misunderstanding, we intend for the word "documents" to be understood in its absolute broadest sense and to include written, graphic, or electronic inedia of any kind whatsoever, including emails, correspondence, drafts, reports, recommendations and other documents. We would expect you to make a comprehensive search for these documents in all locations where they might conceivably be found. 2. To the extent any City employees have emails or other documents on their computers relating to this matter, we request that copies be printed and be delivered to us. 3. Please identify the individual who is primarily responsible for filing this complaint and please summarize the basis for the complaint. Based upon the DEQ letter in question, we will assume that Mark Crowley initiated this action unless and until you advise us otherwise. If it was Mr. Crowley who did initiate this process, we would like to know whether or not it was approved by anyone else in your office and we will expect all documents relating to Mr. Crowley's analysis and complaint, as well as any documents of others in your office dealing with said analysis or complaint, to be produced pursuant to request number 1 set forth above. Each day that the letter from DEQ remains of record, it has the potential to further damage our client. Accordingly, we respectfully request that you do everything you possibly can to expeclite the production of these documents. If you withhold on any basis any Mr. Charles A. Harball March 24, 2006 Page 3 documents or if you are aware of any requested documents that have been destroyed either in the ordinary course of business or otherwise, we ask that you so advise us. In closing, please be advised that our client takes this very seriously. Not only do we have serious questions with regard to how DEQ handled this, but we are troubled by the fact that this complaint was filed during our negotiations and, despite its obvious relevance to our talks, it was never disclosed to us. Accordingly, we will expect a timely and satisfactory response. Thank you. F. Kaplan EFK/ssm Enclosure pc: John Schwarz 1 511 First Avenue West Post Office box 2071 Columbia Falls, Montana 59912-2071 Telephone (406) 692-4446 Facsimile (406) 892-4449 April 26, 2006 Mr. Charles A. Harball Kalispell City Attorney Post Office Box 1997 Kalispell, MT 59903-1997 Re: Schwarz Construction, Inc. Floodplain Permit #KFDP-05-05 Dear Charlie: Eric F. Kaplan ericMaplanlamorg Sally S. Miller Legal Assistant eally0kaplanlamorg I sent you a letter dated March. 24, 2006 in connection with the captioned matter. As you know, we have not received any response from you. I would appreciate it if you would let me know the status of this matter. As you will recall, in addition to a number of other matters, we requested a number of documents which we clearly have a right to review. If we do not receive a prompt and satisfactory response, we will take whatever additional lawful action may be required to obtain this information. I am hopeful we can resolve this on an informal basis, but we will not hesitate to resort to the Courts, as well as other City officials, if necessary. Thank you. Very truly yours, EFK/ssm pc: John Schwarz Dec-05-05 12:59pm From- T-999 P.002/003 F-934 City of Kalispell Planning Department 17 - 2°d Street East, Suite 211, Kalispell, Montana 59901 December 2, 2005 .Tay Billmayer Billmayer Engineeriaug 2191 Third Avenue E Kalispell, MT 59901 Re: Request for copies/Hampton Tea. Flood Study Dear Mr, Bilimayer: Telephone: (406) 751- t 850 Fax: (406) 751-1858 Website: kalispellplannlno.com Our office has recently received a. written request for photocopies of our files relating to LOMR case #02-08-300P (i.e. the Hampton Ian Flood Study). Our files contain a number of documents which you produced which contain language to the effect that Unauthorized use, reproduction or duplication is strictly prohibited. I have been instructed to provide you with notice that the request has been made, and that we will provide a t=-day window (i.e. through December 15) for you to take formal action to bar the request If we do not receive notification of formal action, we will provide the requested copies to Schwarz Architecture and Engineering. Sincerely, P Sorensen Kalispell Planning Office Cc: City Attorney Schwarz Engineering