BY GREGORY A. HALL
The Cincinnati Enquirer
Bill Butler
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COVINGTON -- Developer Bill Butler and Corporex Cos. are on the offensive in a controversial bidding lawsuit, listing documents, depositions and events that they say prove they broke no laws and are targets of biased Kenton County officials.
Corporex officials say bids for a $35.6 million Kenton County courthouse and parking garage were public records. That would mean the proposals were open to viewing by anyone once taken from the county safe in April 1996, the company's attorneys say.
That's also the way Campbell County Attorney Paul Twehues sees it. His opinion as an impartial observer was sought by The Enquirer. But Kenton County officials and an author of Kentucky's open records law say it's not that simple.
The state attorney general's office, which defends and enforces state law, won't give a specific answer because it is investigating the case.
Who is right, what was public, who was hurt and who is going to pay will be decided in court.
The county is suing Corporex to recover an $850,000 settlement paid to two losing bidders -- Wessels Construction and Development Corp. and Carroll Properties. Corporex edged out those bidders after Mr. Butler took a controversial look at competitors' plans in the home of the county's top official, then-judge-executive Clyde Middleton.
Mr. Middleton announced his resignation as the settlement was reached, and then the county sued Corporex. The Kentucky attorney general's office is investigating the events of the 1996 bidding process.
Most of the key issues in the county's lawsuit revolve around the events of a single day, April 2, 1996. In the morning, the bids were unsealed. That night, Mr. Middleton let Mr. Butler review all of the records.
The county is crying foul about that meeting, saying Mr. Butler saw confidential pieces of competitors' bids.
Mr. Butler says nothing was improper about his meeting with the judge-executive because the bids were open to public viewing. To support that, Mr. Butler's attorneys have compiled hundreds of pages of depositions, county documents and their own descriptions of the events of the bidding process that show their side of the story. Highlights of Corporex's arguments are:
The county's last written communication before the bid opening says bids will become "public records" when unsealed, company attorneys say. If true, there was nothing improper about the meeting with Mr. Middleton, they say.
The company gained no advantage by having its competitors' bids, Corporex attorneys say.
Both Mr. Middleton and Mr. Butler have said they thought the bids were public at the time. The errors were committed by county officials who didn't make clear how the process would be conducted, they say.
Deputy Judge-executive George Neack was biased against Corporex and all his actions in the entire process were calculated to get Wessels the bid, Corporex contends. He had been a neighbor of the family for years and served with its patriarch in Crescent Springs city government. Mr. Neack said that had no bearing on the bidding process or the evaluation of the bids.
Corporex maintains that by calling the proposals public records, anyone could see them, including Mr. Butler.
"When Bill Butler viewed them, they were public," said Joseph Trauth, an attorney for Corporex.
Both Corporex and the county point to a March 22, 1996, letter from Mr. Neack to the three bidders as a key piece of evidence. But they dispute what it means.
The letter states: "Keep in mind that once your (bid) is actually opened and distributed to County team members, the information becomes a public record. With this in mind, the subject of property site acquisitions . . . should not be publicly addressed by you as a part of your presentation."
The letter also states that bidders will not be allowed to watch other presentations. If they do, the letter says they could be disqualified. The county says that section of the letter shows bidders were not to see competitors' proposals. Corporex says that applies only to the meeting and not to public viewing afterward.
"A public record is a public record and can be viewed by everyone," Mr. Trauth said last week.
The attorney for Campbell Fiscal Court, Mr. Twehues, agrees on one point but is puzzled by another.
He said the meeting between Mr. Middleton and Mr. Butler was unusual, and nothing similar has occurred in his involvement with Campbell County bidding.
"I've always understood public records to mean they're open to the public," said Mr. Twehues, who is retiring after 21 years in office and has had no dealings with the lawsuit.
Both sides are relying on the lawsuit to settle the records question. County Attorney Garry Edmondson says the term "public records" means documents owned by the public, but not all are necessarily open to view. He cited income tax records as a similar example of confidential public records.
Jon Fleischaker, a Louisville attorney for the Kentucky Press Association and an author of the state open records law, agreed there are public records that the public is not entitled to see. "Just because it's a "public record' doesn't mean it's available to the public for inspection," he said.
In certain circumstances, bids can be kept confidential; releasing portions of the bid package would not mean everything must be disclosed, Mr. Fleischaker said. He said he could not give his opinion on all the technical details of the Kenton County case because he is not familiar with them.
Corey Bellamy, a spokesman for Attorney General Ben Chandler, declined to comment on the specifics of the Kenton situation because it is part of the lawsuit. He would not answer basic questions about when bids are open to the public.
In general, he said, a public record is any documentation kept by public agencies."However, some of those may be exempt (from disclosure) under the open records statute."
Corporex also maintains the county didn't follow its own procurement code, which requires confidentiality of all bids for competitive negotiations. Therefore, the company contends, the bids had to be considered open to the public.
The code calls for a written document from the county administrator specifying that competitive negotiations, rather than standard bidding, will be used. County Administrator Ralph Bailey and Mr. Neack, who oversaw the process, have admitted they wrote no such letter.
But Mr. Edmondson says the county's advertisement seeking proposals served as notification.
He admits the county's release of base bid prices violated the letter of its code. That decision was made, he said, because officials felt a public project of this magnitude should not be negotiated entirely behind closed doors.
"We decided there would be no harm in the public seeing (drawings) and the bottom line figure," Mr. Edmondson said, but in hindsight everything should have been kept secret until the final contract was ready, he said.
Mistakenly making some information public doesn't make the entire bid public, Mr. Fleischaker said.
Final bids are public records, he said. In a standard bidding process, that's when bids are opened.
"But that's the end of the process," he said. The agency must pick the lowest and best bid.
In the Kenton County process, bidders were questioned and allowed to make changes in their proposals.
In a competitive negotiation process, where proposals are taken and then the public body negotiates with bidders, the proposals remain confidential.
"The bottom line is the same," Mr. Fleischaker said. "When the bidding process is over, it's open."
