Behind-closed-doors-hotel committee — TEXT of complaint to the State Attorney General’s Open Meetings Compliance Board

COMPLAINT: City of Frederick Mayor Randy McClement’s hotel advisory committee (HAC) I submit, has been breaking state law for six years — a public body meeting behind closed doors. Maryland’s Open Meetings Act requires state and local public bodies to hold their meetings in public, provide adequate notice of meetings, and compile and release agendas and minutes of the meetings. Although they can go into closed session when discussing confidential topics, meetings of the City and County, political ‘sub-divisions’ of the State, must generally be notified to the public, documented and open.

Maryland Attorney General Brian Frosh: “The (Open Meetings) Act’s goals are to increase the public’s faith in government, ensure the accountability of government to the public, and enhance the public’s ability to participate effectively in our democracy.”

http://www.marylandattorneygeneral.gov/Pages/OpenGov/OpenMeetings/default.aspx

The founding fathers recognized the evil of rule by backroom cliques, Patrick Henry writing in 1788 that “the liberties of a people (are never) secure when the transactions of their rulers are concealed from them.” Almost all abuses of government power are contrived in secrecy, the rationale for the movement for applying the principle of ‘open government.’

The Frederick HAC has never been listed as a City entity, its meetings have never been publicly advertised or open, its agenda and minutes have never been published, yet it has been repeatedly cited as the major source of advice to the City on the $84m downtown hotel and conference center (DHCC.)

The City has delegated to the HAC the management of hotel consultants, site selection, specifications for the hotel, the structuring of the procurement, the scoring of bids in RFP14J, the lobbying effort for state money, and public outreach or propaganda on behalf of the project.

The hotel advisory committee was established by Frederick Mayor McClement in 2011 and gets different names, the longest being Downtown Frederick Hotel and Conference Center Advisory Committee, other names abbreviate by omitting words such as Frederick, or Advisory, or Downtown, or the phrase ‘and Conference Center.’ Sometimes the committee convenor, Richard Griffin, City head of economic development, refers to it as The Team, or The Hotel Team, or if it is a candy-floss presentation as ‘community partners’ or just ‘partners.’

The HAC has met at an absolute minimum 16 times in violation of the OMA – the number of meeting agenda/dates I have gotten under PIA request – but there is reason to believe that since 2011 it has met many more times, probably about 40 times in total in violation of the OMA. Its busiest and undoubtedly most scandalous meetings almost certainly occurred in 2013, 2014 (which PIA requesting has so far turned up not a single agenda/date of meeting) and 2015 for which PIA has at the first shot produced just one agenda/date. Incidentally the fact that the City accepts PIA requests about the HAC is further evidence, if needed, that it is understood by their legal department to be a City agency.

NAME: It goes under different names but we’ll just refer to it as the hotel advisory committee or HAC. The HAC is, I submit, a public body by state law under State code 10.502 Definitions (h) (2) “ ‘Public body’ includes: (i) any multimember board, commission, or committee appointed by the Governor or the chief executive authority of a political subdivision of the State, or appointed by an official who is subject to the policy direction of the Governor or chief executive authority of the political subdivision, if the entity includes in its membership at least two individuals not employed by the State or the political subdivision…”

pA-2 of http://www.marylandattorneygeneral.gov/OpenGov%20Documents/Openmeetings/AppA.pdf

The HAC members appointed by the Mayor
The HAC is a ‘public body’ required to be open as defined in state law, we have been told by several attorneys. It was created and its membership was appointed, or eligible membership defined by representation of chosen ‘partners,’ by Mayor McClement, without reference, so far as I can determine, to the Board of Aldermen.

HAC chairman Earl Robbins has often publicly referred to the Mayor having invited him to chair the HAC. Other members of the HAC have been aides to the Mayor and County Executive, City and County directors of economic development and representatives of trade associations: the Frederick County Chamber of Commerce, the Chamber’s Major Employers Group, the Downtown Partnership, Frederick County Tourism Council, East Frederick Rising, and sometimes a lead consultant.

Some years ago when Frederick Preservation Trust (FPT) asked for representation to provide a historic preservation voice at the HAC it was told explicitly that the Mayor decided the membership of the HAC. So FPT asked him for a HAC seat. (He declined their request.) 

HAC meets in City Hall, its meetings convened and agenda set by a City official
HAC meetings have generally been held on City property, most in City Hall itself. Meetings of the HAC have been called on a ‘when-needed’ basis by Richard Griffin, a City department head sometimes referred to as the hotel project manager. Griffin has also set the agenda for meetings. When endorsement is sought from City government at the Mayor & Board of Aldermen meetings or proposals are being put to City regulatory agencies like the Historic Preservation and the Planning Commission, the lead speaker is usually HAC chair Earl Robbins. On other occasions it is Griffin. Griffin repeatedly refers to the HAC as his source of authority for the conduct of the hotel project, citing it as having recommended this, or determined that. The Mayor, too, treats the HAC as his main deliberative body on the boondoggle hotel project.

The Open Meetings Act has various tests of whether a local government entity is a ‘public body’ and if, as I read it, it meets one of them then it is subject to the requirements of public notice of meetings, open meetings, publication of agenda and minutes, and operating only with a quorum of members. The fact that Mayor McClement appointed HAC’s membership is then sufficient to establish it as a City ‘public body.’ The fact that Griffin, a senior deputy to the Mayor has convened meetings of the HAC and set its agenda for those meetings, and that those meetings have been held on City premises in City Hall only reinforces its status as a City body under the terms of state law.

As a City body the HAC should be a listed like 26 other City boards, commissions & committees ranging alphabetically from Ad Hoc Economic Development Advisory Committee and Airport Commission through to Westside Regional Park Task Force and Zoning Board of Appeals. Like these 26 the HAC should be listed there, structured for public notification of meetings, publication of agenda ahead of the meetings, open meetings, reporting of minutes and requiring a quorum present.

see
http://www.cityoffrederick.com/124/Boards-Commissions

The downtown hotel project has an already formidable list of disgraces as a boondoggle:

— its waste of public funds proposing to spend $84m on a project which the City’s own financial consultant Municap values on opening at $30m based on prospective cash flows

— a doubling of project cost and trebling of ‘public’ contributions over four years

— the boosterish nonsense of so-called ‘impact analysis’ used to promote it, which treats ALL the hotel’s prospective business as net new business for the city and the county

— disregard for consultant JLL’s recommendation of a competitive procurement process

— the sham competed procurement of a crony developer, seen in the farce of the winning proposal being received by the City before the issuance of the RFP with the City’s consultant JLL working on it simultaneously with drafting the RFP as documented in timesheets attached to consultant invoices

— scoring of the two proposals received that is a travesty of commonsense

— the high comedy of the infinitely stretchable HAC timeline under which in 2011 the project hotel was to open in 2014, in 2012 2015 etc such that the opening is always three years off

— hundreds of thousands of dollars spent on lobbying and hundreds of hours of officials’ time spent on shameful panhandling expeditions to Annapolis

— the belittling of the City’s Historic Preservation Commission

— the project’s blighting of the marketplace for privately financed downtown lodging over the past decade depriving the downtown of any hotel lodging whatsoever, achieving the opposite of the supposed objective of City-sponsorship

Add to this list that the ‘community partners’ or the ‘Hotel Team’ or the hotel advisory committee with however many adjectives it collects or drops on any given day, is in reality just an old-fashioned insider clique.

Its objective has been to grant a favored developer a big monopoly downtown and to engineer a ripoff of taxpayers, $31m is sought. Contrived by City officials in the name of ‘economic development’ the HAC has been operating behind closed doors in breach of state law, and contrary to the better practice of most other City of Frederick agencies.

Submitted September 25, 2017

Supplemental submission Oct 3, 2017

NOTE: The single clearest demonstration of the role and nature of the Hotel Advisory Committee is contained in the text of the Request for Proposals to hotel developers, called RFP14J issued in February 2014.

What the RFP for a hotel developer says on the hotel advisory committee (HAC) — offered as supplemental to my complaint

The Request for Proposals for a Downtown Hotel and Conference Center RFP14J issued Feb 19, 2014 (RFP14J) contains the City’s most extensive outline published of the origins, nature and roles of the HAC.  The p2 cover letter Dear Prospective Developer is signed jointly by the Mayor Randy McClement and Earl Robbins, chairman of the HAC and begins: “The City of Frederick on behalf of the Downtown Hotel Advisory Committee is pleased to accept proposals for the development of a privately owned and operated full service hotel…”

p8 states: “The Downtown Frederick Hotel Advisory Committee is chaired by Earl H. Robbins Jr,, appointed by Mayor Randy McClement. The Committee is composed of leadership from the Frederick County Chamber of Commerce, Major Employers Group, Tourism Council of Frederick County, East Frederick Rising, Downtown Frederick Partnership, and the City and County Economic Development Departments. Jones Lang LaSalle (JLL) has been retained by the group to provide professional hotel and real estate consulting services. JLL will assist the committee in the evaluation of the proposals and certain business arrangements to be reflected in the associated development agreement; however, all determinations and decisions on the selection of a hotel developer, the project and disposition of the property will belong to the City of Frederick Mayor and Board of Aldermen. The Downtown Hotel Advisory Committee will serve solely as the recommending body to the City.”

Further into the RFP (p11) the HAC is traced back to at least 2010: “The Downtown Frederick Hotel Advisory Committee  initiated an initial demand and feasibility study in 2010 and an update in 2012…”

Site selection is another task assigned to the HAC. On p13: ”The Advisory Committee has identified four sites in downtown Frederick which are sufficiently sized and within walking distance…”

Under the heading Financial/Transaction Structure & Terms p15 the procurement is put squarely on the HAC: “The Downtown Hotel Advisory Committee is seeking a privately owned and operated hotel and conference center…”

Prior to discussion of selection criteria p24 it is stated: “The Downtown Hotel Advisory Committee shall serve as the selection team…” A table showing possible points per item in the list of criteria as part of scoring then states: “Following the final review and scoring, the Downtown Hotel Advisory shall make a recommendation to the Mayor and Board of Aldermen regarding award of RFP (sic)”

What comes through here, I submit, is that the HAC, chaired by the Mayor’s appointee, administered by his head of economic development, is the key advisory committee to the City on the City’s hotel project. It is tasked to be the selection committee to choose the hotel developer by scoring proposals. It is given consultant resources by the City.  Its membership includes a senior officer of the City, the County, the quasi-public Tourism Council and several business groups that have been pushing the City sponsored, taxpayer supported hotel project from the beginning.  end.

Copy of RFP14J referenced above:

http://www.cityoffrederick.com/DocumentCenter/View/8353

PSam 2017.10.04

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