DA orders Malheur County to release records about reload project cost overruns

Railroad ties are stocked outside of Nyssa on Tuesday, April 12, to be used on miles of rail track planned for the Treasure Valley Reload Center. One $2.7 million track remains optional as costs rise for the project, officials say. (The Enterprise/LES ZAITZ)

VALE – Malheur County has been ordered to disclose public records related to cost overruns on the Treasure Valley Reload Center that have added millions to the project budget.

The Malheur County Economic Development Department also has been directed to answer whether it has documents related to a costly rail spur that is now considered optional.

Malheur County District Attorney Dave Goldthorpe issued a public records order on Friday, April 22, directing more documents be made public.

The Malheur Enterprise in March sought records in 15 categories from the county and its development company as it investigated construction problems at the Nyssa rail site.

With the exception of a single construction contract, no records were disclosed until project officials revealed publicly that project costs had escalated millions of dollars over budget – money the project doesn’t have.

Greg Smith, county economic development director, disclosed the cost overruns and construction problems in report to the board of the Malheur County Development Corp., the public company overseeing the reload project.

Smith made the report public about two hours before he produced 12 records for the Enterprise that provided basic documentation of cost overruns and major project changes. He produced the records four days after the Enterprise sought the intervention of the district attorney.

In his order, Goldthorpe concluded that communications between two key contractors on the project are to be released.

Smith has a practice of not responding to telephone messages or written questions from the Enterprise.

 Goldthorpe issued his public records order in response to a petition from the Malheur Enterprise seeking those public records about the Nyssa rail project. This included requests for communications between Anderson Perry & Associates, under contract as the project engineers, and Steve Lindley Contracting, which is handling initial groundwork for the rail center.

On April 8, Smith provided copies of contracts with builders, bonding information and payment request. He provided no record of emails or other records regarding the construction issues.

Smith said he wouldn’t disclose communications between the project engineer and the contractor at the time conditions worsened and costs began to spiral.

“Any communications between Anderson Perry and Steve Lindley Contracting, two privately owned companies, have not been provided as they are not subject to public records law,” wrote in an April 8 email.

Goldthorpe concluded otherwise.

“The records of communications between contracting parties are public records subject to disclosure by MCED,” Goldthorpe wrote in his order. “Such records should also be provided according to the Enterprise’s request.”

Goldthorpe noted that “several areas of the request are still awaiting a response or clarification.”

He cited the “lack of open communication” between Smith’s operation and the Enterprise. He said that had the county agency specifically addressed each request, his intervention might have been unnecessary.

Goldthorpe wrote, “Please seek to communicate promptly and professionally about these matters in the future as silence or unexplained delay only complicate matters should be simple.”

Also on Friday, emails released to the Enterprise show citizens weren’t happy with Smith’s proposal to charge the Enterprise $900 for records requested in March.

Smith advised the newspaper at the time of that fee to get records related to the project problems. He said all the records were held by the project engineer, meaning the county had none of its own records. He said the president of Anderson Perry & Associates would have to be paid $225 an hour to gather records.

Smith on Friday released emails requested by the Enterprise based on email logs provided earlier.

Among the newly-disclosed records was an email exchange on March 18 between Smith and Stephanie Berget.

“Waive the charges and let us see the truth,” she wrote.

Smith responded: “The information requested by the Malheur Enterprise is housed with our contract engineer, Anderson Perry. This is the fee they will charge Malheur County to complete the task. This fee will be passed on to the Enterprise.”

He added, as he did in several emails to county residents, “I would hope the Malheur Enterprise and the good people of Malheur County could find a way to work together.”

Berget didn’t find that response acceptable.

“So you get all this information and give it to another company and then they charge a big amount to give the citizens back their own information? That sounds like a pretty good racket. And by the way, the good people of Malheur County get along just fine with the Enterprise. I know I’m just a common citizen who doesn’t understand big words like ‘contract engineer’ but I’ve got a pretty good idea of when I’m getting gouged.”

Erik Puustinen-Westerholm wrote to Smith, “I encourage the Malheur Enterprise to continue asking relevant and pointed questions about issues that directly affect the citizens of this fine state. When a journalist gets pushback for asking relevant questions, I just think of my dog giving me the eye when I try to feed her old hamburger. She can tell when the meat has soured.”

Maxine Burgess also chimed in on the proposed $900 fee in a March 18 email.

“I understand your reticence to provide the Malheur Enterprise with the required documents because it would show us where all that money the county has been paying you for the reload center project has gone,” she wrote. “And even though you want to claim otherwise, the taxpayers and residents of Malheur County do want to know what they’re paying for. The excessive fee you want to charge the newspaper for records that you should already have assembled is a thinly-veiled attempt to keep information from a very interested public.”

There was no record that Smith responded.

Burgess also called the matter to the attention of Malheur County Judge Dan Joyce.

“If you were performing due diligence on this project, we would already know how the money has been spent and it wouldn’t be necessary for a newspaper to do something that you and the commissioners should have been doing all along. It is long past time for the county court to demand answers from Mr. Smith,” she wrote.

Joyce responded to her by email that “the oversight for the reload center comes from Malheur County Development Corporation and the Oregon Department of Transportation.” He all bills are paid and that “the county court is updated weekly, by the Economic Development Office.”

Records Request Timeline:

March 14: Malheur Enterprise requests 15 categories of public records related to construction problems and finances of Treasure Valley Reload Center.

April 5: When records aren’t released, the Enterprise files a petition with District Attorney Dave Goldthorpe to order they be released.

April 8: Malheur County discloses a report showing the project is behind schedule and up to $5 million over budget.

April 8: Malheur County releases 12 contracting documents to the Enterprise.

April 12: Project engineers disclose costs are now up to $9.8 million over budget

April 22: District attorney issues order requiring document disclosure.

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