Malheur County District Attorney Dave Goldthorpe on Tuesday, Sept. 20, ordered managers of the Treasure Valley Reload Center to turn over records regarding budgets and engineering to the Malheur Enterprise.
Goldthorpe also imposed a $200 penalty on Malheur County Development Corp., the public entity overseeing the Nyssa rail project.
The state law providing for such a penalty has apparently never been used before by a district attorney and was first used in July by a state judge in Portland.
Goldthorpe assessed the fine for “undue delay” in providing public records. He concluded the development company hadn’t obeyed the law and ordered the documents and payment be turned over by Friday, Sept. 23.
Grant Kitamura, an Ontario onion company executive and president of the county development company, said on Wednesday he hoped the company would comply but “I haven’t talked to the MCDC office,” adding “I don’t know” who should pay the $200 fine.
Dan Joyce, Malheur County judge, said he too hoped the development corporation would obey the order.
“I am just kind of surprised what kind of advice they were taking,” Joyce said.
On Wednesday, the development corporation responded to the request for every budget document dating to January with a single two-page document on a building bid.
The order comes on top of a lawsuit the Enterprise recently filed in Malheur County Circuit Court against the development company and the county over other records issues.
READ IT: Public records order
The company is governed by a board appointed by the Malheur County Court that includes Grant Kitamura, an Ontario onion shipper who is president of the development company, Corey Maag of Jamieson Produce in Vale, Jason Pearson of Eagle Eye Produce in Nyssa, Kay Riley, retired from Snake River Produce in Nyssa, and Lynn Findley, Republican state senator from Vale. Kitamura routinely grants interviews but the other directors typically don’t respond to written questions from the Enterprise.
The board of Malheur County Development Corp. includes (clockwise) Jason Pearson, Grant KItamura, Kay Riley, Corey Maag and Lynn Findley.
The documents ordered disclosed by Goldthorpe could provide the first thorough insight into spending and budgets for the rail project. The development company has kept from the public documents tracking the details of how the project fell farther and farther behind and went over budget. Company leaders are now seeking an extra $9 million on top of the originally budgeted $26 million to finish the rail shipping center.
The documents also could answer how engineers miscalculated the work needed to put in the shipping center. Anderson Perry & Associates, the La Grande engineering firm in charge of construction, has blamed “unforeseen” conditions at the farmland site for millions in extra costs to fill in wetlands and other unstable ground.
Brad Baird, president of Anderson Perry, has not addressed written questions from the Enterprise or granted an interview on the topic. His company is in line to get $1.75 million for its work on Treasure Valley Reload Center.
Greg Smith, private contractor in overall charge of the project, also has a practice of not responding to written questions or interview requests. County officials recently granted without explanation a significant pay increase for Smith’s company, boosting his monthly fee to $9,000. Gregory Smith & Company previously had been paid $6,000 a month for its reload center work.
A key issue in the project has been the unstable ground.
Anderson Perry & Associates was paid in 2018 to study a 13-acre wetland in the heart of the 65-acre project area.
Contractors ran into trouble almost immediately when work started last fall. The initial contract called for 19,000 tons of large rock to fill in soft spots. By late July, however, contractors had used 106,000 tons of large rock, about half of it trucked in from Cambridge, Idaho.
As a result, the cost for the earthwork contract has ballooned from $5.1 million to $12.5 million under Anderson Perry’s most recent estimate.
Baird explained to the development corporation board recently that construction was started with limited information about the wetland.
“No explorations occurred in the wetland area, which is the area where the most significant impact for additional rip rap materials occurred,” Baird wrote in his report.
On Aug. 19, the Enterprise requested records about engineering for the project. “The record is clear that engineered plans dramatically miscalculated the amount of construction it would take to fill and build on several acres of wetland. The record is clear that this additional work contributed to delays in construction progress and the need to expend an estimated $5 million that was not budgeted,” the request said.
Two days earlier, the Enterprise requested project budget records from the development corporation.
READ: Original public records request
“The information we seek has not been otherwise made public and it is of vital interest to the community,” the Enterprise wrote in its request.
Documents held by public agencies are normally available under the Oregon Public Records Law.
Grant Kitamura, president of the development company since its formation in 2017, responded by email that he had none of the requested budget records on the $35 million project “other than minutes from meetings.”
When development company officials provided no records, the Enterprise petitioned Goldthorpe on Sept. 6 regarding budget documents and on Sept. 9 regarding wetland engineering. The law gives the district attorney the authority to adjudicate public records matters in local government.
“If Mr. Smith and MCDC are allowed to violate the law with impunity, the public records law has no meaning. The people of Malheur County are left in the dark about matters they find to be of vital interest,” the Enterprise wrote.
Moments after the Sept. 9 petition was submitted, Smith broke his silence on the records in an email to Goldthorpe.
“Documents will be turned over by next Wednesday at no cost to the requester,” Smith wrote.
“It has now been over a month since the original request was made with no production of records,” Goldthorpe wrote. “This is not in compliance with the letter or the spirit of Oregon’s public records law.”
“I hereby order that all of the requested records be provided” no later than Friday, Sept. 23.
He also ordered the development company to pay the $200 penalty “as a result of the initial failure to respond to the request as well as the subsequent undue delay after promising a specific completion date.”
Goldthorpe also directed that the development company provide the public records at no cost. Smith has previously assessed hundreds of dollars in fees because he saw no public interest in the documents.
Reporter Pat Caldwell contributed reporting to this story.
Contact Editor Les Zaitz: [email protected]
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Engineering costs for Nyssa project jump with belated contract change
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