El Paso Open Records: City Incompetence or More?

secrets_nov13Anybody interested in government transparency at the City of El Paso should take a moment to read my experience with the open records process at the city. And, no this is not about David Karlsruher. His parent’s company just happened to be the mechanism that led me to question the city’s competence and sincerity when releasing public information as per the open records laws.

Executive Summary

Since many individuals complain about my exhaustive and long posts I have decided to divide this post into two sections, an Executive Summary that gets to the crux of it and a Factual section that details exactly how I arrived at my hypothesis.

Executive Summary: The Open Records Requests I filed

On August 29, 2013 I filed open records request identified as W001194-082913 (1194) with the following wording: “Please provide the total amounts paid by the City of El Paso, by year from 2001 through 2012 to CSA Engineers & Constructors, CSA Design Group, CSA Design Group, Inc., and or Karlsruher Inc. dba CSA Constructors.”

Then on October 21, 2013 I filed three additional open records requests with the city because I was told that my original information was wrong.

The first request no: W001802-101813 (1802) asked the city to “provide the total amounts, by year, paid to Karlsruher, Inc. dba CSA Engineers & Contractors for the project known as the “Upper Valley Rd. St. & Drainage Improvements Phase I – Traffic Circle between 2009 through 2011.”

The second request no: W001803-101813 (1803) asked the city to “provide the total amounts paid by the City of El Paso, by year from 2001 through 2012 to Karlsruher, Inc. dba CSA Engineers & Constructors.”

And, the third request no: W001804-101813 (1804) asked the city to “provide the total amounts paid by the City of El Paso, by year from 2001 through 2012 to CSA Constructors.”

Note that in three of the requests I asked for checks in the date range of 2001 through 2012. One of the requests asked for one specific project, the Upper Valley Rd. and I limited the date range to 2009 through 2011.

Executive Summary: List of Contracts Awarded to Karlsruher Companies

As part of my research I wanted to link checks issued to the Karlsruher companies with the contracts awarded to them through city council action. I found the following six contracts approved by city council to the Karlsruher companies. These were a mixture of four contract awards and two accompanying change orders.

1. Davis Drive Street & Drainage Improvements (2006-132): $679,932.07

2. David Drive Street & Drainage Improvements (2006-132) Change Order: $65,000

3. Westside Community Park & Recreation Center Improvements Phase II (2009-041): $457,375.68

4. Upper Valley Road Street & Drainage Improvements Phase I (2009-089): $1,773,440.58

5. Upper Valley Road Street & Drainage Change Order (2009-089): $33,690.40

6. Colonia Verde Park Improvements (2010-235): $116,700.

The total amount for all of the contracts is $3,126,138.60 from 2006 through 2010.

Executive Summary: The Responsive Documents I Received

For three requests; 1802, 1803 and 1804 I was provided with a PDF document titled; “CSA Design Group”. In the case of 1804, the file was provided twice. In my original request 1194 I was provided a similar PDF document albeit with more dates listed.

I created a grid showing the differences in the responses I received from the four open records requests that I filed.

 

For the purposes of the Executive Summary the only difference between the four responsive documents I received is that the original one, 1194, included checks issued in 2012. Therefore the three open records requests I received in my October 21, 2013 requests total $176,885.01 in checks while the original request totals $314,954.96.

Executive Summary: The Issues

I was very specific as to what I wanted from the city. In all four cases I received the same document as a response except that the original request included checks issued in 2012.

Issue number one:

Request 1802 asked specifically for checks issued to Karlsruher for the project known as the Upper Valley Rd. (2009-089) project that was issued in 2009. If the project was awarded in 2009 how can a check be issued to them in 2008?

Issue number two:

Six contracts have been awarded to Karlsruher for four different projects totaling $3.1 million. Yet, according to the responsive documents that I have received I can only assume that Karlsruher has only been paid for one project: the Upper Valley. If we accept that the responsive document above is correct then we have to assume that the only checks issued so far are for the project known as the Upper Valley Rd. However if we accept that as fact then we also have to accept that a check was issued before an award was approved by city council. Obviously something is wrong here.

If these were the only two issues then we would be able to say that an error was committed in one of my open records requests. However I still have more issues with the responsive documents that I received.

Issue number three:

Notice that, according to the list I was provided they indicate that the Karlsruher’s only received one payment prior to April 26, 2010 for $10 on May 7, 2008.

Yet, I have found five contracts that have been awarded to Karlsruher that prior to 2010 totaled about $3 million. Is it possible that the first check they received on those projects was for $31,300 on May 26, 2010?

Issue number four:

There are at least six contracts issued to Karlsruher and yet the list of payments provided to me shows a total of $314,954.96 in payments in my original request (1194) and $176,885.01 in the rest of my requests. Is it possible that only $314,954.96 or $176,885.01 has been paid to them on the contracts in the last 12 years?

Likewise the last contract that I found that was awarded to them was in 2010. In total I found $3.1 million in contracts awarded to them and according to the responsive documents I have received they have only been paid about 10% of the total contracts in the last twelve years. Or, if we go by the second set of numbers are we to accept that less than 5% has been paid to them?

Either the cash flow in twelve years is extremely slow or the city did not properly provide me with a list of total checks issued to the company.

Issue number five:

Requests numbers 1803 and 1804 asked for checks issued to Karlsruher between 2001 and 2012 yet the response I received was a list of checks through December 19, 2011.

Yet as per my original request 1194 there were at least five checks issue to them in 2012. Why were these checks not included in those two requests?

Issue number six:

I have been told numerous times that the city is not required to create records in response to an open records request. That is why it is not possible to use open records requests to ask questions. As I understand it, an open records request is for requesting existing information and not for having the city research and compile information.

If we are to accept this as doctrine then I’m bothered by what appears to me to be the city attempting to provide me with the information I requested by assuming that they know what I want.

I address the fact that companies can use various names in the complete section below. I do not believe that there is anything wrong with that. However when I asked for checks issued to four different company names (1194) I was provided a result for one company name: CSA Design Group. It makes sense since that was one of the company names I requested.

However, how does that explain 1802 and 1803 that specifically asked for checks issued to “Karlsruher, Inc. dba CSA Engineers & Contractors” and 1804 asking about “CSA Constructors”?

Did the city take it upon itself to assume what it is that I was requesting? If so, is this proper?

As you can tell I have many questions about how the city has handled these specific open records requests. Is it possible that it is all a “misunderstanding”?

However transparency in government requires that if anyone files an open records request then the information that they are provided should not only be responsive to what they are seeking but it should also be accurate.

I do not believe that what I have received is accurate or responsive.

You probably already know what I believe has happened here however I have presented the evidence I have and I leave it to you decide for yourself.

There are some of you that will argue that I’m agenda driven and that I have taken what was convenient for me and have either left out important details or have manipulated the information in order to create the outcome I wanted.

Therefore for those seeking clarity and are interested in determining whether I exercised due diligence in researching this I invite you to read the rest as I detail all of the steps and the processes that I undertook. I have also linked the original responsive documents in order to allow you to conduct your own research.

The Open Records Timeline

On August 29, 2013 I filed an open records request identified as W001194-082913 with the following wording: “Please provide the total amounts paid by the City of El Paso, by year from 2001 through 2012 to CSA Engineers & Constructors, CSA Design Group, CSA Design Group, Inc., and or Karlsruher Inc. dba CSA Constructors.”

On October 21, 2013 I filed three additional open records requests with the city:

Request no: W001802-101813 asked the city to “provide the total amounts, by year, paid to Karlsruher, Inc. dba CSA Engineers & Contractors for the project known as the Upper Valley Rd. St. & Drainage Improvements Phase I – Traffic Circle between 2009 through 2011.”

Request no: W001803-101813 asked the city to “provide the total amounts paid by the City of El Paso, by year from 2001 through 2012 to Karlsruher, Inc. dba CSA Engineers & Constructors.”

Request no: W001804-101813 asked the city to “provide the total amounts paid by the City of El Paso, by year from 2001 through 2012 to CSA Constructors.”

For the purposes of readability I’m shortening the identification of each of the four open records requests by taking out the sequence digits that is unique to each request as follows:

W001194-082913 is now identified as: 1194.

W001802-101813 is now identified as: 1802.

W001803-101813 is now identified as: 1803.

W001804-101813 is now identified as: 1804.

I have also linked to the original responsive documents I received for you to review and compare with my analysis.

I am also going to stop writing open records requests each time I refer to the ones I submitted to make it easier to follow. Therefore if I write 1194 or 1802 please accept that it means my open record request as identified by the identification number 1194, or 1802. And to further make this even more readable I’m going to identify how each open records request differs from the others by pointing out specifically what each one was asking for:

1194: asked for the total checks issued to CSA Engineers & Constructors, CSA Design Group, CSA Design Group, Inc., and or Karlsruher Inc. dba CSA Constructors divided by year from 2001 through 2012. Please note that there are four company names I’m asking for here: CSA Engineers & Constructors, CSA Design Group, CSA Design Group, Inc. and Karlsruher Inc. dba CSA Constructors, and that the date range is 2001 through 2012.

1802: asked specifically for any payments issued by the city to Karlsruher, Inc. dba CSA Engineers & Contractors for the project known as the “Upper Valley Rd. St. & Drainage Improvements Phase I – Traffic Circle” between 2009 through 2011. This request asked specifically for one project known as the Upper Valley Rd. and I limited the scope to checks issued between 2009 and 2011.

1803: asked for the total amounts paid to Karlsruher, Inc. dba CSA Engineers & Constructors between 2001 and 2012. Notice that I asked specifically for checks issued to Karlsruher, Inc. dba CSA Engineers & Constructors. This request covered the periods between 2001 and 2012.

1804: asked for the total amounts paid to CSA Constructors between 2001 and 2012. This one has the same date range of between 2001 and 2012 however it asks for checks issued to CSA Constructors.

Notice that except for 1802, that asks for payments in the time frame of 2009 through 2011 the rest of my requests ask for checks issued from 2001 through 2012. The difference between 1803 is that 1803 asks specifically for the company name: Karlsruher, Inc. dba CSA Engineers & Constructors and 1804 asks for the company name: CSA Constructors.

The Karlsruher Companies

According to public records and as far as I can tell the Karlsruher family controls the following companies: (The number in parenthesis should make it easy for you to look up the filing at the County for DBAs and at the State for corporations.)

1. CSA Constructors (20110004556) was established on August 5, 2011 as a DBA (doing business as) at the County. It is an active organization as of November 15, 2013 according to the County records.

2. CSA Engineers & Constructors (20090004488) was established as a DBA on July 27, 2009 and was withdrawn on August 5, 2011 as per the County records.

3. Karlsruher, Inc. (EIN: 17427801844) was established with the State of Texas on April 15, 1996. It is an active organization as of November 15, 2013 as per the State’s online records.

4. CSA Design Group Inc. (EIN: 32019334799) was established on March 13, 2006 with the State of Texas. It is an active concern as of November 15, 2013 as per the state’s records.

Is this list exhaustive? Is it possible that I missed one or more? Yes, because the nature of private business in the United States is such that unless there is active litigation there is no mechanism under which I can compel the owners to give me the names of all of the company names they operate under. Therefore I am left to gather information based on public information that I have at hand.

Does it matter that I missed a company name? For the purposes of this blog if I missed one or more company names should not matter because my open records requests specifically asked for the specific company names as I have outlined above.

I point this out because I fully expect the useful idiots to attempt to distract from my main point by attempting to create the illusion that you can’t believe what I write because I didn’t get the facts correct.

City Contract Awards to the Karlsruher Companies

As far as I can ascertain from reviewing as many of the city council meeting minutes as I could stomach the following is a list of bids awarded to the Karlsruher’s. I have divided them up by year. Each number in parenthesis is the solicitation identification number that should make it easier for you to look up.

2006

On July 25, 2006 city council awarded the Davis Drive Street & Drainage Improvements (2006-132) to Karlsruher, Inc. dba CSA Engineers & Constructors for an estimated amount of $679,932.07. The motion to award the contract was made by Steve Ortega and seconded by Ann Morgan Lilly. It carried unanimously with Susie Byrd not present to cast a vote.

2007

On September 11, 2007 city council awarded a change order to CSA Engineers for the Davis Drive Street & Drainage Improvements Project (2006-132) for an additional amount of $65,000. This council action was accomplished via three city council motions.

In the first motion, that carried unanimously, the council approved the change order. Beto O’Rourke then made a motion to reconsider the item and it was seconded by Steve Ortega. The motion to reconsider carried unanimously. The third motion, made by Steve Ortega and seconded by Susie Byrd, carried unanimously awarding the change order.

2009

On January 27, 2009 city council awarded the Westside Community Park & Recreation Center Improvements Phase II (2009-041) to Karlsruher Inc. dba CSA Engineers & Constructors for $457,375.68. This award was awarded during the Consent Agenda that was approved by council unanimously.

And then on March 24, 2009 city council awarded the Upper Valley Road Street & Drainage Improvements Phase I, Traffic Circle (2009-089) to Karlsruher Inc. dba CSA Engineers & Constructors for $1,773,440.58. This award took four city council motions, actually five if you include the motion to exit from Executive Session to award the contract.

The four motions were:

1. Melina Castro made a motion to retire into Executive Session. This motion was seconded by Emma Acosta. The motion carried.

2. Ann Morgan Lilly made a motion to award the contract to Karlsruher. The motion was seconded by Susie Byrd. Byrd, Eddie Holguin, Steve Ortega and Beto O’Rourke voted in favor of the motion. Emma Acosta and Melina Castro abstained. Rachel Quintana was absent.

3. Melina Castro made a motion to reconsider the award and was seconded by Steve Ortega. It carried unanimously.

4. Ann Morgan Lilly, seconded by Steve Ortega moved to award Karlsruher the contract. Voting in favor was Susie Byrd, Melina Castro, Eddie Holguin, Ann Morgan Lilly, Steve Ortega and Beto O’Rourke. Emma Acosta again abstained. Rachel Quintana was absent.

Finally on September 29, 2009 Karlsruher Inc. dba CSA Engineers & Constructors was awarded an additional $33,690.40 for the Upper Valley Road Street & Drainage Phase I (2009-089). This item was adopted by city council in the Consent Agenda. Beto O’Rourke was absent for this vote.

2010

On October 26, 2010 city council awarded the Colonia Verde Park Improvements (2010-235) to Karlsruher Inc. dba CSA Engineers & Constructors for $116,700. According to the meeting’s minutes the lowest bidder, American Contractors, on this project was deemed “unresponsive” because the company did not have the “financial capacity” or “experience” as required by the bid’s specifications. The motion was approved unanimously in the Consent Agenda.

For those that think I’m just picking on David Karlsruher I will point out that the Karlsruher’s submitted bids on at least 14 other projects that were not awarded to them during my time frame of 2001 through 2012. Their bids were higher than their competitors.

List of Contracts

The list below is a simplified compilation of the contracts that I found that were awarded to the Karlsruher’s.

  1. Davis Drive Street & Drainage Improvements (2006-132): $679,932.07
  2. David Drive Street & Drainage Improvements (2006-132) Change Order: $65,000
  3. Westside Community Park & Recreation Center Improvements Phase II (2009-041): $457,375.68
  4. Upper Valley Road Street & Drainage Improvements Phase I (2009-089): $1,773,440.58
  5. Upper Valley Road Street & Drainage Change Order (2009-089): $33,690.40
  6. Colonia Verde Park Improvements (2010-235): $116,700.

As you can see I found six contracts awarded to Karlsruher for a total amount of $3,126,138.60 from 2006 through 2010.

I realize that the Karlsruher’s have received city awards this year however all of my open records requests specifically asked for awards through 2012 therefore I am not including that information here as it does not pertain to the issue at hand.

It is important to note that my open records requests asked for checks issued to the four Karlsruher companies and therefore you should not expect a contract award amount to correlate with the checks issued to them. This is because an award is a process that may take several years to complete and checks are issued as phases are completed and accepted by the city. I also assume that construction would take anywhere from one to five years, or more to complete and eventually the two numbers; checks issued should correlate with the awards awarded. However it is very possible that the two numbers would never equal because an award is an “estimate” subject to changes such as Change Orders, however they should, though be within range of a close approximation by the time the contract is completed and all of the change orders have been tabulated.

Let’s Tie Everything Together

First let’s address the issue of differing company names. The Karlsruher’s used the company name “Karlsruher, Inc. dba CSA Engineers & Constructors” in five of the awards awarded to them. In 2007 they used the name “CSA Engineers”. This is important because one of the excuses used by the city when explaining discrepancies on the release of public records is that the requested was “not specific enough”. However as you will see not only did I address that scenario by submitting my requests seeking information under the various names I was aware about, the city, itself, responded to my open records requests with one name; “CSA Design Group”.

To me this is not an issue because companies operate under different names and thus may accept payments under one company name while submitting bids under another. I have no problem with this as it is a common practice.

What Did I Ask For?

I asked for all of the checks issued to the Karlsruher’s from 2001 through 2012 under four company names. Three of my open records requests asked for the same thing under different company names and one asked for a specific project.

Let me simplify it this way:

The following requests were for the period 2001 through 2012.

1194 asked for checks issued to CSA Engineers & Constructors, CSA Design Group, CSA Design Group, Inc., and or Karlsruher Inc. dba CSA Constructors.

1802 asked for checks issued to Karlsruher, Inc. dba CSA Engineers & Constructors.

1803 asked for checks issued to Karlsruher, Inc. dba CSA Constructors.

Although it would seem that I should have received three different responses that is not necessarily true because the city may have been aware that the Karlsruher’s operate under different names and they may have attempted to provide me the information I requested diligently. I’ll address this issue later in my post.

However note that request 1802 limited the dates to between 2009 and 2011. This request also asked specifically for the project “Upper Valley Rd. St. & Drainage Improvements Phase I – Traffic Circle”. As I wrote above, this bid was issued to them on March 24, 2009 in the estimated amount of $1,773,440.58.

What Were The Responsive Documents the City Provided Me?

For all three requests; 1802, 1803 and 1804 I was provided with a PDF document titled; “CSA Design Group”. In the case of 1804, the file was provided twice. In my original request 1194 I was provided a similar PDF document albeit with more dates listed.

I created the following grid containing the information provided to me on all four of the city’s documents. The column is the open records identification number and the rows are the dates and amounts provided in each document.

So What Is the Problem?

I have already addressed the issue of different company names and therefore for the purposes of this I’ll accept that the city provided me the information on CSA Design Group as meaning it included all of the company names I requested and the city therefore has only issued checks to CSA Design Group. I have no other information at this point to suggest that the city has issued checks to any other company name associated to the Karlsruher family.

Issue number one: Request 1802 asked specifically for checks issued to Karlsruher for the project known as the Upper Valley Rd. (2009-089) project.

The Upper Valley project identified as 2009-089 includes one change order for a total amount of $1.8 million. That contract was issued in 2009.

If we accept this as fact then how is it that my open records request (1802) shows a check issued to them in 2008? Remember that, that request was limited to the dates of 2009 through 2011.

Issue number two: I have already established that I have found at least six contracts awarded to Karlsruher for four different projects totaling about $3.1 million.

Since the city gave me the same list of checks as responsive to all four of my requests are we to assume that the Karlsruher’s have only been paid on one project, Upper Valley between 2008 and 2012? Have they not being paid anything on the other projects?

Issue number three: Notice, according to the list I was provided, that the Karlsruher’s only received one payment prior to April 26, 2010 for $10 on May 7, 2008?

Yet, I have found five contracts awarded to them prior to 2010 totaling about $3 million. In 2006 and 2007 I found one award (2006-132) with one change order for $744,932.07.

Is it really possible that the first check they received on that project was for $31,300 on May 26, 2010?

And if so, does that make the response I received for 1802 invalid because it specifically asked for one project? Or is it possible that they have not been paid on any other projects and change orders through last year?

Issue number four: There were at least six contracts issued to Karlsruher and yet the list of payments provided to me shows a total of $314,954.96 in payment in my original request (1194) and $176,885.01 in the rest of my requests. The first contract awarded was in 2006 for $679,932.07

Are we to accept that only $314,954.96 or $176,885.01 has been paid to them on those contracts in the last 12 years?

If so then that would invalidate my other open record request asking for one specific project.

Likewise the last contract that I found that was awarded to them was in 2010. In total I found $3.1 million in contracts awarded to them and according to the responsive documents I have received they have only been paid about 10% of the total contracts in the last twelve years. Or, if we go by the second set of numbers are we to accept that less than 5% has been paid to them through last year?

I cannot see how a business would remain viable if it takes over two years to get the first draw, longer if we accept my other open records requests as valid.

It is possible that that the city handles construction contracts by paying sub-contractors directly instead of the prime contractor? This might explain why such a small amount appears to have been paid to Karlsruher for the $3 million in contracts.

However this does not explain my issues one, two and three as I outlined above. If the case is that the city is paying sub-contractors directly then the only way to find out is by submitting open records requests asking for checks issued by awarded contract however I do not see how this would explain issues one, two or three.

Issue number five: Requests numbers 1803 and 1804 asked for checks issued to Karlsruher between 2001 and 2012 yet the response I received was a list of checks through December 19, 2011.

Yet as per my original request 1194 there were at least five checks issue to them in 2012. Why were these checks not included in those two requests? Did the city take my request for one specific project 1802 that had a date scope of 2009 through 2011 and somehow erroneously used that to limit their response in 1803 and 1804?

If that’s the case then how would they explain including the check for 2008 that is beyond the date range?

Issue number six: I have been told numerous times that the city is not required to create records in response to an open records request. That is why it is not possible to use open records requests to ask questions. You can ask for existing information however you cannot ask the city to research and compile data to create a new set of information.

If we are to accept this is doctrine then I’m bothered by what appears to me to be the city attempting to provide me with the information I requested by assuming that they know what I want.

I have addressed the fact that companies can use various names and have stated that there is nothing wrong with that. However when I asked for checks issued to four different company names (1194) I was provided a result for one company name: CSA Design Group. That makes sense since that was one of the company names I requested.

However, how does that explain 1802 and 1803 that specifically asked for checks issued to “Karlsruher, Inc. dba CSA Engineers & Contractors” and 1804 asking about “CSA Constructors”?

Did the city take it upon itself to assume what it is that I was requesting? If so, is this proper?

As you can tell I have many questions about how the city has handled these specific open records requests and if it had been just these four then it would be easy to chalk it up to incompetence at the city. Being nicer it could be argued that it is all a “misunderstanding”.

I have had to ask the city’s coordinator to correct the information they provided me because it was clearly wrong at least twice. At what point are “errors” and “misunderstandings” acceptable? And at what point do mistakes become incompetence?

More importantly at what point does incompetence become interference with the open records request process?

Transparency in government requires that if anyone files an open records request then the information they receive should not only be responsive to what they are seeking but it should also be accurate.

I do not believe that what I have received is accurate or responsive.

You probably already know what I believe has happened here because of my previous experiences that I have blogged about. However I have presented the evidence that I have and I leave it to you decide for yourself whether I’m just “crazy” or that the city has bungled my open records request. If you agree with me that the open records requests are incorrect then I must ask you to consider if it was on purpose or was it something more sinister?

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