Saturday, August 5, 2017

"..and yet, he persisted": querlous complaints, perilous art, and the common goad





Any performance is discussible either from the standpoint of what it attains or what it misses. Comprehensiveness can be discussed as superficiality, intensiveness as stricture, tolerance as uncertainty—and the poor pedestrian abilities of a fish are clearly explainable in terms of his excellence as a swimmer. A way of seeing is also a way of not seeing—a focus upon object A involves a neglect of object B. - Kenneth Burke, Permanence and Change


More than two years ago, the Greater Rochester Arts and Cultural Trust, a private and nonprofit corporation, announced they were intent upon developing a Public Art Master Plan for the city of Rochester. The GRACT board president sat down with the steering committee and other members of the Rochester Arts and Culture Collaborative to let them know of this intent. He explained that though local working artists might be given an opportunity for input, they would not be included in the group developing the plan. Oh yes, he let the them know that GRACT was raising $15,000 to hire a consultant to help develop the plan. RACC members expressed their concerns that once again local artists were being excluded, but in the end conceded, hey, GRACT was paying for it. GRACT could do what they wanted.

Except, it turned out, GRACT wasn't counting on paying for all of it. What the GRACT board president failed to mention (or, frankly maybe did not even know at the time) was that GRACT would soon be requesting an additional $15,000 from the city of Rochester to pay for the consultant.

This request for $15,000 from the city was submitted by the GRACT CEO via an email to the city administrator on a Monday. The request was forwarded by the city administrator to the city council via email the following Wednesday, along with his recommendation for approval, and a source within the city budget from which the funds might be drawn. The request was placed on the agenda for the subsequent Monday's Committee of the Whole meeting where the GRACT CEO and two board members would present the request.

In three days, a request for $15,000 from a private organization had been submitted to the city, recommended by staff for approval, and placed on the COW agenda.

When RACC learned of this request on Thursday in the midst of that whirlwind week, it was of the opinion that if half of the money for this Public Art Master Plan was now coming from the public, there needed to be a bit more of the "public" in the planning of a "public" art master plan.

That was the issue then. And it is the same issue that is at the core of the current ethics complaint finding leveled against a member of the city council. A council member who supported this position from the beginning: a public art master plan funded with public dollars should be public. It is a view in which he has persisted. And now we know he has done so at his peril.

The council person is in peril, not because he was wrong: there is good reason to hold that the public status of that plan was at the time an open question. The question is now moot, but there was sufficient warrant to hold it was public as he did at the time when it was disputable. The proper status of that document prior to its release via a Data Practices Act request had not been resolved. It remains unresolved.

The council person is not in peril because he was wrong. The council person is in peril because he persisted.

The position the council person held, was the position of the majority of the council at the time of the initial request. When RACC learned of the request it spent the next few days prior to the COW meeting lobbying the council. RACC supported the fashioning of a public art master plan, but held that with public funding should come public accountability, transparency, and participation. The majority of the council agreed. Some with serious reservations. As of that COW meeting the request for $15,000 was going nowhere.

How is it then that GRACT was finally allocated $15,000 to pay for half the cost of developing a pubic art master plan? Because steps were taken to attempt to insure that the conditions of the planning and the plan would be public.

Immediately following the cratering of the request before COW, members of the GRACT and RACC gathered outside Conference Room 104 in City Hall. There they began to consider how they might jointly proceed. The following Friday GRACT and RACC representatives met in the RCVB conference room on the second floor of the Mayo Civic Center where GRACT is provided free office space. The size and shape of a joint proposal to the council in support of funding was determined. The details would be worked out, but the conditions were these: (1) To address the issue of public participation, both RACC and GRACT would appoint members to the public art planning group; (2) To address the issues of public accountability and public transparency, though not required to by law to do so, the GRACT public art planning group would conduct its meetings in compliance with open meeting laws. Once the details were settled, GRACT and RACC would submit a joint letter to the council with a asking that GRACT's request for $15,000 be approved.

As it turned out - in the first of many short falls - GRACT submitted a letter the council on its own leaving RACC to submit a separate letter. Never the less, on the basis of these letters and the conditions they contained regarding participation of the public, accountability to the public, and transparency for the public, the council approved the allocation of $15,000.

As the city attorney observed, there was no "contract" with GRACT. The city council refused one because some members of the council did not want to be obligated in any way to the plan the process might produce. However, the legislative history of the allocation would show the council's intent. There were clear conditions upon which the money was allocated to GRACT. There were clear contemporary statements and documents upon which that allocation was made contingent. A clear expectation one might reasonably hold - as did the council person and many others familiar with the process - that the planning and the plan were to be considered as a public process and product. It might well be that in a court of law this legislative intent would not have been upheld as sufficient, but the question was never put to a judge to resolve.

The council person was of the opinion - one warranted at least by the legislative history - that the public art master plan product was public and should be made available to the public upon request. The city attorney held differently. And yet, the council person persisted.

Were the council person and the city attorney to have stepped before a judge they would have been equal before the law. The judge alone would have rendered the conclusive and determinative opinion as to the public status of the plan. It did not get that far because the plan had been sent to a city staff member's email account by a member of the Trust board. That having been done, the document was now available through a Data Practices Act request filed by the council person.

Do not let it pass unnoticed that at the very time the GRACT CEO was personally insisting that the Public Art Master Plan document was private, a member of the GRACT board was contemporaneously making it public in accordance with the laws of the State of Minnesota.

Note too, that this document was not just sent to a city staff member's email account. It was sent to other members of the public as well. At almost the very time the city attorney was issuing opinions regarding the legal obligations of the GRACT CEO, that opinion and those legal obligations were being supplanted by the actions of a member of her GRACT board.

So here we find ourselves with a member of our city council in peril of censure or even expulsion because of what? Because he persisted.

There is nothing conclusive or determinative in the city attorney's opinion regarding the public status of the plan at the time. To find as it has, the Ethical Practices Board had to first reach its own conclusion regarding the public status of the document. A conclusion it is in no position to reach and has no authority to make. The EPB has intervened in a legitimate and fully warranted disagreement between an elected city official and a member of the city staff. The EPB then sided with the city staff member and held that "full cooperation" required the council person to have done so also. Having thus set the table, the EPB found a "conflict of interest" on the part of the council person because he did not agree with the city attorney with whom the EPB, in its overreaching opinion, did agree.

Given the conflicting position of the GRACT CEO and the contemporaneous actions of a GRACT board member, is it even clear what the public status of the document was at the time? The EPB must very finely parse the timeline and sequence of word and deed to come anywhere near a conclusion on the matter. A conclusion that would none the less remain overreaching and beyond its purview.

As to the matter of the tax filings made by GRACT and whether or not the council person's statements regarding them were "false." Is this conclusion by the EPB arrived at based upon anything other than the assertions made in the complaint by the complainant? Did the EPB investigate these filings and determine their appropriateness? If so, were the statements by the council person false or merely incorrect?

(Anyone looking at GRACT's finances might scratch their heads. One need not accuse GRACT of any illegality to wonder at the discrepancies among the news accounts of what GRACT reports raising and distributing, the income and expenses it reports to the Minnesota Attorney General, and the appropriateness of filing a Form 990 or a Form 990n. Though it might well be incorrect to look at those discrepancies and form a certain opinion about the appropriateness of the filings, it is not necessarily false to do so. Any organization holding a major fundraising event at the Mayo Civic Center and reporting $0 in fundraising expenses would raise an eyebrow. At least two questions immediately come to mind: (1) who is GRACT's accountant because many nonprofits would like to know; and, (2) how is it RASC can't seem to score the same sweet deal at the MCC?)

It is tempting to observe that the matter coming before the city council is less about a member's conduct and much more about how things get done around here. Or to put a finer point on it: trying to change how things get done around here. It is all that, but the implications of the matter need not be given such scope to stress their seriousness.

Council members should read very carefully the EPB's opinion regarding "full cooperation." They should ask themselves if it is really sufficient to guide their own conduct. Does "full cooperation" in complying with the "legal advice" of the city attorney also entail complying with the "professional advice" of public works or parks and recreation or the zoning commission or any other public employees? Given the prospects for censure or expulsion that might result, can any public official - elected, appointed, or salaried - know where, when, and under what conditions "inevitable" disagreements "breach the obligation of 'full cooperation'"?

I believe the matter of the public status of the public art master plan was one of those inevitable disagreements. Any points one might want to award the city attorney on the lack of a contract could be balanced by any contrary opinion based upon legislative history and the intent it reveals. The issue is certainly further muddled by the inconsistency arising between the statements of GRACT CEO and the contemporaneous actions of at least some members of the GRACT board. The EPB has no clear standing to determine now - months after the fact - what the status of that document was in that small window of time upon which it has spent so much of its own time and casuistry. Without that determination, there is no basis for the finding. Anything that remains of the original complaint is hardly worth the legal fees incurred by the citizens of Rochester.

In all the muddle, one thing is clear: after over two years, $15,000 of public money, and the drama now unfolding, we still do not have a public art master plan.