Robin Froerer's family and business agreed to a deal with the county to end a dispute over a railroad crossing but the pact stipulated they could not talk to the media about the rail reload project. (The Enterprise/Pat Caldwell).

NYSSA – The county’s $400,000 deal to settle a dispute over a rail crossing required something unusual from the people getting the money: Silence.

Farmer Robin Froerer, her family and her businesses had to agree not to speak to the media about any matter related the Treasure Valley Reload Center, proposed on farmland near the Froerer operation.

The provision was inserted into a contract county officials needed to keep the rail project going. And it came after Froerer questioned the project, complained about the credibility of the key county official in charge of the project and after the Enterprise reported in early March on her family’s dilemma.

The contract condition reads: “Neither Froerer, or any family member, nor related business entity shall make any statement to the local, state or federal media concerning the TVRC until after the project is completed and operating.”

The reload center isn’t expected to operate for another year.

Additionally, the family business “shall not fund, encourage, support, arrange or influence in any way opposition to the TVRC” the contract said.

The gag provision isn’t normal in government contracts.

Greg Smith, director of the Malheur County Economic Development Department, told the Enterprise by email on Friday, April 16, that his agency had no records documenting the need for the gag. He also said his agency had no record that it had ever used such a provision before – or that it even had examples of other contracts that did.

Dan Joyce, Malheur County judge, likewise responded that the county could provide no other contract containing such a limit on citizens and businesses.

The state Justice Department, which oversees contracts involving nearly every state agency, said such a provision wasn’t a part of its work. The state Transportation Department, which is funding the Nyssa project, said imposing silence wasn’t part of its contracting routine.

The deal with the unusual language was intended to solve a problem for the Froerers. Union Pacific Railroad, which has a line that will serve the Nyssa project, decided it would close Gem Avenue at its track. That intersection is at the northeast corner of the proposed reload center.

The closure meant problems for the Froerers, who have long used the Gem Avenue crossing to get farm produce to processing plants.

Records obtained by Malheur County show that the conflict between the Froerers and Greg Smith, Malheur County’s economic development director, threatened to stall progress on the reload center. The Froerers last fall raised legal issues about whether certain planning for the center followed state law.

In putting their objections on the record, they also cited what they said was instance after instance of Smith misleading them or not following through.

“The direction of the development was hidden from the affected citizens and adjacent landowners and those citizens were provided with purposeful misinformation to move this project forward at all costs,” the Froerers wrote.

They said Smith and Larry Wilson, at the time a county commissioner, promised the reload project wouldn’t impact access to their farmland. They said Smith specifically told them that the Gem Avenue access to their farm acreage “would not be altered with this development.”

Smith, however, wrote to Union Pacific officials last Jan. 26 that the Froerers could use another crossing farther north than the one they had been using.

“The closure of the crossing will not landlock them,” Smith wrote.

Froerer said that one point Smith told them that access to their land would be “facilitated with an access across the UP tracks and emails and maps of the crossing location were forwarded to pick a location for the crossing.”

They said they were subsequently told by a Union Pacific executive that Smith “egregiously erred” in promising the access.

A Union Pacific official last month said in an internal email that issues over the dispute is “Greg’s problem, not Union Pacific’s.” Smith released the email in response to a public records request.

One solution to the crossing closure was to shift the Froerers’ truck traffic south across a neighboring farm to use a different rail crossing. That required an easement over the neighbor’s land owned by Alscott Farms.

The Froerers wrote they were puzzled about why it seemed to take a long time for Smith to contact Alscott Farms about the easement.

“At the very least, if it took an amateur a matter of minutes to contact this landowner, how could a presumed professional economic development coordinator and contracted agent of Malheur County and MCDC be so inept as to spend months to contact the landowner?” they wrote.

The Froerers asserted the development corporation “had two years to work on this and has failed or simply failed to try.”

Smith didn’t respond specifically to their claims when asked by the Enterprise, noting only that the county’s economic development company “does not have the ability to modify a private two-party agreement between the Froerers and Union Pacific.”

Records released by Malheur County Judge Dan Joyce showed the county stepped in to negotiate a solution, retaining a Portland attorney and racing to meet a March 25 deadline.

They made it, obligating the county to use some of its reload center money to build a road for the Froerers to reach a rail crossing.

And while the agreement was focused on the crossing issue, the pact also sidelined the Froerers.

The source of the unusual limit wasn’t apparent from records released by Joyce. He responded in three days to a public records request from the Enterprise with emails and other documents. Smith, provided with a similar request at the same time, responded 18 days later.

Joyce said the provision for silence was put into the agreement “because the attorneys for the other party put it in there. All three attorneys agreed to it.”

But Robin Froerer said it was the county and its development corporation that wanted the gag provision.

Questioned by email about that provision, Smith responded, “Our willingness to provide up to $400,000 to the Froerers is nothing more than our trying to be a good neighbor during their time of need.”

Jack Orchard, a First Amendment attorney who represents the Oregon Newspaper Publishers Association, said the contract provision may violate the First Amendment of the U.S. Constitution.

“Where a government benefit is conditioned on an applicant or beneficiary being prohibited, under penalty of breaching a contract, from disclosing information, I believe this is illegal as a government coercion of one’s freedom to speak,” said Orchard.

Orchard said restriction allows “government to control, through withholding benefits, a free flow of information.”

“This is even more critical where availability of public resources, tax dollars, is subject to a government agency’s decision on when and what information can be disclosed about the use of those public resources,” said Orchard.

Joyce said he would drop the provision “if requested by the Froerers.”

News tip? Contact reporter Pat Caldwell at [email protected]

Previous coverage:

PUBLIC MONEY, PRIVATE EMPIRE: Greg Smith serves many public masters - for a price

State gives green light to rail reload center

Malheur County in talks over possible sale of Nyssa rail center

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