How to “lose” TIF documents

***UPDATE 4/8/2021: After writing the original post, I decided to phone the Public Access Counselor (PAC) of the Attorney General’s Office to discuss possible Open Meetings Act implications of the incident described in it. Following the discussion, I filed a Request for Review and today I was notified that the PAC has accepted the request. Below is a copy.

2021-RfR-67673-FI-letter

Original post:

The TIF forensic assessment revealed that City of DeKalb was unable to locate documents the auditors asked for, even basic records like invoices. We will never know whether the city lost invoices or just paid the developers without bothering with them. But here’s a clue: careless handling of contracts worth more than $180,000, to be paid out of TIF funds, occurred during a council meeting just last week. At minimum, the handling lowered their visibility.

Consideration versus Resolution

The March 22, 2021 DeKalb city council meeting agenda has separate sections for considerations and resolutions. Here’s the first consideration:

1. Consideration of a Contract with Gehrke Construction for the Repair and Remodeling of Fire Station One in the Amount of $139,205.00.

And here’s the first resolution on the same agenda.

1. Resolution 2021-023 Approving a Second Addendum to the Non-Exclusive License Agreement for the Installation of Underground Fiber Optic Facilities within the Public Right-of-Way (Dated June 15, 2010) for the Expansion of the Annie Glidden North Broadband Infrastructure Project.

Two things distinguish a resolution from a consideration: level of detail and a unique identifying number. A consideration is a discussion item only, meant as a way for city staff to take direction from the council on next steps, which might eventually include a resolution. A resolution, on the other hand, is an action item and is a detailed document by necessity. It must have a title detailed enough for a reasonable person to understand what council is voting on, and more details in its body, such as authorizations and other assignments for executing the action.

Yet Mayor Jerry Smith turned two TIF considerations into something resembling resolutions that evening, requesting motions and seconds and votes. As clerk, I treated the first one as an honest mistake and advised this was not an action item. The city manager and city attorney claimed the city council could turn anything on the agenda into an action item if it wanted. I then requested that council members affirm their approval of the proposed break with regular procedure. They did approve it, but at least the abnormality was highlighted with that step.

Consequences

Had the considerations been written as resolutions in the agenda, it would have alerted the public that the city intended to vote that very night on a measure to use TIF money to renovate a public building. In DeKalb this tends to be controversial, more so now because most of the aldermen have made it a matter of pride to vote only for TIF projects that generate returns on investment. They should have been made to explain the apparent change in policy, but effectively (and perhaps cravenly) ducked accountability via this maneuver that eliminated further opportunity for public comment.

Additionally, failure to generate proper resolutions means it’s not clear who is authorized and accountable to execute the contracts and how (i.e., conditions, limitations, and attestations). There is an awful lot of money involved in these projects to be ignoring formalities and allowing loose ends of any kind. (Edit: not that that’s ever okay, but level of concern tends to rise with scale).

Handling the items this way also makes them harder to find. If you click this link, it will take you to a listing of 2021 resolutions. Resolution 2021-023 is on it, and when the amended agreement is signed and posted you’ll easily be able to find and access the documents. Unfortunately, two considerations that should have been resolutions have effectively been disappeared from public view through trickery that denied them their rightful places.

But at least now you know one way to “lose” TIF documents.

Below are relevant pages of the March 22 agenda.

consideration-vs-resolution