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STATE OF MINNESOTA                                                                            IN DISTRICT COURT

 

COUNTY OF ST. LOUIS                                                                 SIXTH JUDICIAL DISTRICT

 

Harry R. Welty, Lawrence J. Burda,

Dean Davidson, Robert D. Sershon,                                       Court File No. 69DU-CV-09-758

and Art Johnston,

Plaintiffs,

v.                                                                                

Independent School District #709
and Johnson Controls, Inc.,

Defendants.

 

 

ANSWERS TO DEFENDANT JOHNSON CONTROLS, INC.’S INTERROGATORIES TO PLAINTIFF HARRY R. WELTY (SET I)

                                                                                                          

The plaintiff Harry R. Welty answers set I of Defendant Johnson Controls, Inc.’s interrogatories as follows:

Interrogatory No. 1:     Identify all Persons you believe have knowledge of any fact that is relevant to the claims or defenses in this litigation, and for each such person, describe in detail the knowledge you believe such person has.

Answer:

It is my belief that a great many people have some knowledge of at least a few facts relevant to this litigation. They would include any of a dozen or more Duluth School District administrators and employees and probably at least the same number, if not more, employees of Johnson Controls Inc. employed at the time of the consummation of, or subsequent to, the contract in question. As I know a great many of the District’s employees from my eight year service on the School Board I am aware of the role they play in District operations which might give them access to this knowledge.

In addition some members of the Duluth School Board should have been privy to details of the negotiations between JCI and District staff although it appears to me that Board members were relatively passive and incurious during the process despite their elective responsibility to approve all contracts especially one of such magnitude.

The most knowledgeable District employees would include Supt. Keith Dixon, Bill Hanson and Kerry Leider followed by Patrick Devlin in Purchasing, and Jody LeBlanc who currently oversees District finances. Two School principals who were drawing their salary from a federal grant for healthy schools while working in cooperation with Johnson Controls and who, I’ve been led to believe, subsequently went to work for JCI , Eric Kaiser and Greg Repensky may also be familiar with the contract’s development.

Among other administrators and secretarial staff that might have had an inside view of the contract’s development would be Bill Westholm, formerly the Assistant Superintendent in charge of school operations and his successor Joe Hill who succeeded Mr. Westholm after the contract’s development. Ron Soberg, the District’s lobbyist would likely have been consulted relative to the statutory authority permitting the contract’s initiation.  The Superintendent’s Secretary’s Judy Maki and Bill Hanson’s secretary Melinda Thibault would have some knowledge of the negotiations as they would have kept track of the scheduling and perhaps the agendas of meetings. The District’s Public Relations director Katie Kaufman who has an office adjacent to the Superintendent and who has taken a leading role in defending the District’s actions and criticism of the LTFP. To do this effectively she would need to have some knowledge of the process that brought it about in order to answer questions addressed to the Superintendent by the public and the press.

Mr. Leider’s facilities management staff likely learned details of the contract negotiations as they would have been consulted about the condition of the District’s many facilities. These would include Dave Spooner and possibly John. Hoban who is in charge of district-wide maintenance. 

While a similar number of Johnson Controls employees may also have played some part in the development of the contract I have only met one of them to my knowledge, Jeff Schiltz, but only to exchange pleasantries. JCI ’s Michael J. David has also been mentioned in the Press regarding the project and in conversations I’ve had with others and I presume he would be a primary source of information about the contract’s development. Johnson Controls listed a great many experts that they would help them develop the LTFP in their response to the District’s RFP. I presume some of these individuals may be privy to information pertinent to this litigation.

Additionally, a number of attorneys were consulted during this process and one of them Mark Knudson (spelling) was in charge of drafting the contract on behalf of the School District . His counterparts at JCI would also have some knowledge of the contract its origins and possible defects.

I have been asked to detail the particular knowledge that each person has and for this I must confess that common sense and speculation are my guide. The District has not been forthcoming in providing background information which would make the contract negotiation process more transparent but I presume that each of the people I’ve mentioned, by virtue of their position within JCI or ISD 709, could provide details about the contract’s development. The only evidence I have of anyone’s knowledge comes from the documents presented in our pleadings.

Interrogatory No. 2:     Identify all Persons you believe have knowledge of JCI ’s business relationship with the School District and School Board, and for each such person, describe in detail the knowledge you believe such person has.

Answer:

To answer this question I would refer the court to my answer to the first interrogatory as the list of Persons and the knowledge they might be privy to would be virtually identical..

Interrogatory No. 3:     Identify and describe in detail any and all Communications and Meetings you have had with any School Board member (including but not limited to Gary Glass), School District agent or employee, or JCI agent or employee related to the RFP; the Response; the Agreement; the Resolution; or any issues relating to the subject matter of this litigation.

Answer:

The last one-on-one meeting I recall having with any school board member other than Gary Glass would probably have taken place over two years ago. I recall driving home from Gary Glass’s home with Tim Grover about the time Mr. Glass was elected to the Board and that is the last such meeting I recall.  I also met with Mary Cameron, and Nancy Nilsen and explain the circumstances of those meetings in my answer to Interogatory No 25.  I do not recall speaking with them  specifically about any issues relating to our current litigation on those occasions.

I attended many meetings with Tim Grover for about a year in connection with Let Duluth Vote. Because Mr. Grover made it clear that he was strongly opposed to any litigation related to the development of the Red Plan the issues listed in this interrogatory were rarely part of our discussions.

I do recall teasing Tim about a comment he had made to Gary Glass when Mr. Glass showed Tim the contract between JCI and the District with its undated signature of Board Chair Ann Wasson which Tim had never seen before. I was teasing Tim about the ambiguous reply Tim had offered Gary asked him what it was. Tim had replied, “It is what it is.”  Because of a long friendly relationship I’d had with Mr. Grover I was not inclined to press him about potentially embarrassing aspects of the contract’s development.

I have not sent an email to a Board member other than Gary Glass for over a year and rarely did so before that time. None of these emails to Board members, other than Mr. Glass, ever covered details listed in this interrogatory.

I have never met with any school district employee to discuss any of these issues for fear of putting their jobs at risk. Neither have I sent any of them any email that I can recall. I have written unflattering things about Kerry Leider in my blog related to the Red Plan some of them based on affidavits found in our pleadings. A short time after posting my criticisms I talked with Mr. Leider at a School Board meeting and told him I did not hold him responsible for the Red Plan’s defects but regarded him merely as its “messenger.” He seemed grateful to hear me say this.

This was one of a number of School Board meetings I have attended with School Board members and on some occasions I’ve addressed the school board in the public comment portion of their meetings but these were not “meetings” in the sense implied by this question.

I’ve not met with any JCI employee to discuss any aspect of the Red Plan or sent any them any email or other correspondence.

Other than the unofficial meetings of Let Duluth Vote I’ve often met with Gary Glass to discuss the Red Plan. These one-on-one meetings have rarely been scheduled far in advance and so rarely appear on my calendar thus unless I mentioned them in my blog it would be difficult to reconstruct their timing or specific subject matter.

I was aware in the summer or fall of 2007 that Mr. Glass had acquired the actual contract between the District and JCI and that he had reported that Kerry Leider told him that Johnson Controls would get a “generous” compensation for their work on the Red Plan in the neighborhood of 13%. This information is reflected in at least two news stories from that time in the Duluth News Tribune the first of which reported a figure of about $33 million in JCI compensation. In a subsequent story the District disputed this figure. The correction suggested that JCI ’s maximum compensation would be only around $4 million dollars. This was followed by an editorial backing the District and this editorial was the basis some months later of a fierce denunciation of Mr. Glass by a local columnist for spreading false information and defaming JCI .

At some point I believe Mr. Glass showed me a copy of contract and perhaps he even gave me a copy. I do not recall if I read it in full. If I did I certainly did not fully comprehend it. I do recall a long conversation with Mr. Glass about a provision in the contract that gave JCI exclusive and “proprietary” ownership of public data gathered by JCI .

I am aware of at least three requests to the District for some of this data each of which the District denied. Our request for discovery in this suit seems be a fourth such instance of the difficulty common citizens have in reviewing this data.

Interrogatory No. 4:     Identify and describe in detail any and all Statements in your possession or that you are aware of referring to or related to the RFP; the Response; the Agreement; the Resolution; or any issues related to the subject matter of this litigation.

Answer:

Most of the primary statements you wish me to identify can be found in the pleadings we have presented to the Sixth District Court. A few other related documents that I consider significant I’ve uploaded to the website www.letduluthvote.com.

These documents include portions of the Review and Comment on the Red Plan presented to the Minnesota Department of Education. They include a document given to the District by its financial advisor Northern Securities showing the timing and cost of bonds needed to finance the Red Plan.  To the best of my knowledge I have never removed any of these documents from the www.letduluthvote website after uploading them and they are all available for viewing by anyone who is able to connect to the Internet. They could also be printed out.

I also have copies of two letters I obtained from the taxpayer’s attorney, Craig Hunter, at least one of which was written by Kerry Leider. I believe both of them were composed in 2007 and discuss the District’s work with JCI .

There may be other such documents in my possession but I do not presently recall what they might be. If I have not already posted them to the Internet its probably because I did not consider them to be of central importance.

Interrogatory No. 5:     Identify all Persons you believe have knowledge of the School District ’s policies and practices with respect to the procurement of professional services or for the procurement of goods, and for each such person, describe in detail the knowledge you believe such person has.

Answer:

All school board members are responsible for enforcing school policy as they and their predecessors are the guardians and authors of the policy.

Whether they understand or follow these policies or not all District employees are expected to adhere to the policies and failure to do so is grounds for termination. The responsibility for procurement falls primarily on the business office and its purchasing department. The District’s chief purchasing agent is Patrick Devlin. Mr. Devlin’s name is currently being listed on all the District’s advertisements for bids on all Red Plan construction. The adds direct venders to send their bids to his office. I believe, however, that this is simply a matter of protocol and that Mr. Devlin is only tangentially involved with drawing up or evaluating these bids. I base this assumption on a discussion he had with a school board member about the RFP on Lester Park School ’s construction. In that discussion Mr. Devlin told the Board member that the contract required Lester Park to be demolished this year. This is incorrect which suggests Mr. Devlin is not intimately involved in the drafting of Red Plan bids. This does not surprise me.

When I served on the School Board there were two purchasing agents who drew up the School District ’s routine purchasing bids. I recall this because then PTSA Chairwoman, Judy Seliga-Punyko, had vociferously lobbied to cut one of these positions in order to have more programming money. I spoke with Mr. Devlin about this at the time and he told me that this would make the Purchasing Department’s work impossible because he was already short-handed.

I deduce from this long ago conversation that the extremely demanding work of drawing up detailed construction bids for the Red Plan would be more than Mr. Devlin could handle. Additionally, JCI ’s contract gives it extraordinary powers as the project manager to draw up the specifications for materials and then choose the winning bids. This includes the power to write the specifications for big ticket items manufactured by JCI and JCIs subsidiaries guaranteeing additional earnings for the company.

I do not believe any JCI employee has any knowledge of School District bidding policies. I suspect these policies have been all but ignored to date.

Until a few years ago the Duluth School District had an internal auditor who made sure that the school administration adhered to District policies. Duluth was one of only three school districts in the State of Minnesota at the time to have such an employee. At present no such oversight exists beyond that of the Superintendent, the Business Office and the School Board.

Interrogatory No. 6:     Identify all Persons you believe have knowledge of the School District ’s selection process with respect to the specific proposals submitted in response to the RFP, and for each such person, describe in detail the knowledge you believe such person has.

Answer:

The principle Persons would include Supt. Keith Dixon, Bill Hanson, Kerry Leider and those individuals who served on the committee to select a company to develop the Long Term Facilities Plan.

Interrogatory No. 7:     Identify all Persons you believe had knowledge of JCI ’s preparation and submission of its Response to the RFP, and for each such person, describe in detail the knowledge you believe such person has.

Answer:

Certainly the two JCI employees I mentioned in answer to the first interrogatory were involved, Jeff Schiltz and Michael J. David. Because there is a record of District officials meeting with Johnson Control sales people prior to the drafting of the RFP those District employees and perhaps some school board members would have had some knowledge of the preparation and submission of the District’s RFP. It is not impossible to imagine that some District employees or school board members were in a position to anticipate portions of JCI ’s response to the RFP because JCI was the only bidder in a position to divine the intentions of the District because of its communications with the district before the RFP was sent out.

Interrogatory No. 8:     Identify all Persons you believe had knowledge of the negotiation and execution of the Agreement, and for each such person, describe in detail the knowledge you believe such person has.

Answer:

I have listed these individuals previously. They would include Supt. Keith Dixon, Bill Hanson, Kerry Leider and possibly Patrick Devlin the purchasing agent who had many years of experience drawing up RFP’s for the District. It would also include employees of JCI including but not limited to Jeff Schiltz and Michael J David. Additionally, Mark Knutson, an attorney for one of the District’s law firms was the principal agent acting for the District as the contract language was drafted.

As for the “execution” of the agreement I’m uncertain if this refers to the adoption of the agreement by the School Board or the use made of the agreement in the implementation of the Red Plan. In either case I believe I’ve outlined the likely Persons who played a part. 

Interrogatory No. 9:     Identify all Persons you believe have knowledge of the School Board’s adoption of the Resolution, and for each such person, describe in detail the knowledge you believe such person has.

Answer:

I would ordinarily list the School Board members themselves as Persons who would have had knowledge of the adoption of this contract because in my experience as a school board member all contracts were presented in their entirety to the School board at official school board meetings prior to approval by the Board.

This was not the process followed in adopting the JCI Project Management contract. Whatever discussions took place with Board members in advance of its adoption the Board did not see the contract until long after it was adopted. It was signed by the Chair on an undated contact sometime after its adoption. 

When Board members Tim Grover and Laura Condon were shown the contract by Gary Glass they both expressed some surprise. Tim explained to Gary cryptically, that, “It is what it is.” I later teased Tim about this and Tim did not deny having said this.

Based on correspondence sent to the Board by Supt. Dixon and Facilities Management Director Kerry Leider I presume they were familiar with the contract’s language if not all the implications of the language.

Indeed, the vehemence of the District in denying Johnson Controls’ future earnings suggests either that some District administrators did not fully understand the contract’s language or worse that they lied to conceal it.

I have been told by Sarah Horner, the education  reporter of the Duluth News Tribune that Kerry Leider told her that he never told Mr. Glass that JCI would earn 13% of the Red Plan Construction Management contract. This denial is preposterous in light of the affidavits presented to the court in our pleadings.

It is not simply Kerry Leider who has denied the compensation spelled out in the Contract. Many people that I’ve talked to have told me that Supt. Keith Dixon repeatedly assured the public at school district presentations that JCI would not be paid much more than about 4% of the contract’s total cost.

If these stories are true it strongly suggests either a lack of knowledge about contract’s details or an unwillingness to admit the truth. I do not know which explanation is more likely.

There is a simple alternative explanation. Gary Glass may be mistaken or could be telling a lie. As I’ve considered this I could never think of a reason why Mr. Glass would invent such story and to spread on the front page of the local newspaper only to suffer the abuse which was heaped upon him afterward. Any doubts I may have had regarding Mr. Glass’s veracity were laid to rest the moment I myself reviewed the documents that we have now presented as affidavits to the Sixth District Court.

Interrogatory No. 10:  Describe in detail the factual basis of your assertion in Paragraph 14 of your Complaint that “the amount yet to be spent on the red plan is hundreds of millions of dollars.”

Answer:

Our complaint simply restates the information provided to the public by the School District and JCI .  The Red Plan will take several years to complete and thus its spending will stretch out over the course of construction. Next year and the year following will see the greatest share of construction spending.

A succession of news stories in the Duluth News Tribune with accompanying graphs have confirmed this information. It was recently presented by the Chamber of Commerce when they released the results of an economic study they commissioned to show the multiplier effect anticipated from the Red Plan construction spending.

Without reviewing the report’s figures I recall them to have shown approximately $10 million in spending for 2008; $58 million for 2009 and $100 million to $128 million for the two succeeding years. The Red Plan has been estimated to cost $293 million thus $220 million in Red Plan spending lies ahead in future years. The word “two” in twohundredtwentyeight justifies the use of the plural “millions” in describing future Red Plan spending.

Interrogatory No. 11:  Describe in detail the factual basis of your assertion in Paragraph 14 of you Complaint that “the fees yet to be generated to Johnson Controls for professional services related to the “red plan”, may run to tens of millions of dollars.”

Answer:

The affidavits presented to the School District by Johnson Controls suggest management fees of 18%. If one multiplies the “hundreds of millions of dollars” referred to in the last interrogatory by this percentage the result is a figure in the “tens of millions of dollars.

Interrogatory No. 12:  Identify and describe in detail any and all Documents or Statements in your possess or that you are aware of related to the RFP; the School District’s selection process and criteria with respect to the RFP; the School District’s selection of JCI ’s Response; the negotiation and execution of the Agreement; or the School Boards adoption of the Resolution. Your response does not need to include documents in the St. Louis County Court File regarding this litigation.

Answer:

In addition to the documents mentioned in my answer to Interrogatory No. 4, I have a number of documents about the Red Plan printed for public consumption by the School District that describe the development of the Red Plan. I also have a newspaper advertisement taken out by the District to refute criticism aimed at it by Let Duluth Vote. I probably also have some clippings of a weekly column written by or for Dr. Dixon in the Duluth Budgeteer in which he attempts to keep the public informed about the activities of the School District.

Interrogatory No. 13:  Identify any and all Documents, Communications, and Statements dated January 1, 2005 to present, in which  you have expressed your opinions regarding the School District, the School Board; individual School Board members, the RFP; JCI ; the Response, the Agreement; the Resolution; or the “red plan.”

Answer:

I have written these opinions in several venues since January 1, 2005 . By far the most extensive source of my writing on these subjects are found in my blog: www.lincolndemocrat.com. Over the course of the last  two years I have at times written extensively and almost exclusively about these topics in one of several venues.  Virtually, all of my writings on these subjects can be found on the Internet where they can be easily printed out.

Another source of my writing on these subjects is the website: www.letduluthvote.com. This is a site of my creation and organization – such as it is. I have uploaded documents to this website that I am not the author of but most of the presentations and writing in this site are mine. While I occasionally update the information in this website most of the pages I’ve put on it have undergone few changes from the time I first uploaded them. The main page does change frequently mostly by the addition of new items near the top of the page and removing items which are out date. Rather than completely erase these obsolete items I frequently put them on pages that are described as “archives.”

My blog is roughly analogous to a diary. While each separate post could be considered a document in and of itself, like a daily entry in a diary, the blog as a whole could be viewed as something akin to a diary, making it a single document as well as a collection of separate documents.

I have also been a regular contributor to a column in a local tabloid called the Reader Weekly where I’ve often written a column every other week. I would guess that over the past two years I’ve written about 15 columns on these subjects including a series I described as a history of the development of the Red Plan. That history, however, did not dwell on the issues referred to in these interrogatories but rather on the situation leading up to the hiring of Dr. Dixon by the Duluth School Board.

I believe that I have posted all of these columns on a much older website of mine, whose creation dates back to 1999. The website is: www.snowbizz.com and can be found in a section called “Diogenes.”

I have also exchanged a multitude of emails relating to these issues over the course of two years. Because my home computer has had some technical problems most of the emails prior to about a year ago have been lost. Some emails this age or older do remain on a remote server.

I recently did a rough estimate of the number of words I’ve expended to write about these and other Red Plan related issues and concluded that my public writings alone could exceed three quarters of a million words. In the single month of July of this year I “published” over 30,000 words on my blog alone.

Interrogatory No. 14:  Identify and describe all activities in which you have participated in addition to this lawsuit to oppose to the RFP; the Agreement; the Resolution; or the “red plan.”

Answer:

I began my “activities” two years ago when I was embarrassed by Bob Boone, the publisher of a local tabloid the Reader Weekly, into writing a column about the Red Plan. Although I had no interest in returning my gaze to the School District Mr. Boone told me that as a former eight year member of the School Board I had an obligation to the community to share my thoughts. I began that first column by saying that the Red Plan might be the best plan in the world but without a public vote it was wrong.

That column led to my meeting with other people who wanted a referendum and people who opposed the Red Plan and people who resented the process by which the Plan was brought to life.

In addition to the writing and publishing I’ve done to insure a public vote I took the lead in forming the organization called, “Let Duluth Vote.” I helped circulate two petitions the first of which asked the School Board to hold a referendum.

When the Board rejected that petition I lobbied the Minnesota Department of Education to reject the District’s Review and Comment on the Red Plan.

When I learned from the MDE that a new school board had the right to set aside all contracts signed to construct the Red Plan for a one year period I ran for the School Board hoping to give it a new majority which would assure a public referendum.

When I failed to win election I helped draft a second petition which the Minnesota Department of Education assured me would require the School District to hold a referendum. It would be a non binding referendum but it would allow the public to vote on the biggest school building project in Minnesota ’s history and the only such plan for which no referendum would be conducted.

After many months passed I concluded that the District had no intention of allowing the Plan B alternative to be put on the ballot. I then began raising money for a legal challenge of the Red Plan. I helped disseminate requests for proposals to law firms asking them if they could present a sound legal theory that would, should it prevail, put an end to the Red Plan. While I had in mind a challenge on the loss of our voting rights I made clear in the Let Duluth Vote RFP that any legal theory that had a serious chance of derailing the Red Plan would be considered. To my surprise such a theory was presented challenging the lawfulness of the contract.

I have also had some presence with other groups who have challenged the Red Plan. They include some laison work between Let Duluth Vote and attorneys who were working with homeowners in the Lester Park neighborhood who feared being evicted from their homes by eminent domain. At one point I wrote a personal check to one of these attorneys for his work when I could not persuade Let Duluth Vote to expend the money.

I have also offered advice to homeowners in the Ordean neighborhood who object to the construction of a high school on the small property where the current Ordean Middle School is situated. This work has primarily been directed to the City of Duluth Planning Commission which makes decisions on zoning regulations and which also now has the final authority to determine whether an Environmental Impact Study should be conducted.

I became one of the taxpayers in this suit brought before the Sixth Judicial District and when the Court set a $100,000 bond I contributed $20,000 myself to the bond and worked to raise the other $80,000 to protect the taxpayers from the theoretical costs a construction delay would cause.

I have also contacted potential candidates for the next school board campaign and I intend to help them win election this November in order to change the majority on the School Board and so guarantee a referendum on the Red Plan or a suitable and less expensive alternative.

In addition I intend to write a book about the politics and fight against the Red Plan so that future generations will not forget what has happened here in Duluth and motivate them to insure it never happens anywhere else in Minnesota again.

This seems to be a relatively complete list of my actions over the past two years but it is probably not absolutely complete.

Interrogatory No. 15:  Describe in detail the “Let Duluth Vote” campaign, including but not limited to the date the campaign was established; the Persons who established the campaign; any and all Persons who have held positions within the campaign; any and all Persons who currently hold positions within the campaign; the date the website www.letduluthvote.com was established; any and all Persons who update material on the website www.letduluthvote.com; any and all activities in which the campaign participates; and any and all efforts and activities in which the “Let Duluth Vote campaign has participated in opposition to the RFP; the Agreement; or the Resolution.

Answer:

As this court knows Let Duluth Vote has no legal standing. It is not incorporated and consists of whoever wishes to participate in it at any given time.

Let Duluth Vote has no “official” officers but it does have someone who acts a treasurer, by virtue of her handling the organization’s bank account. Her name is Shirley Evensen. To date over 2,000 Duluth citizens have contributed to Let Duluth Vote in the past eight months. We have no record of early contributors because early in the organization’s existence it subsisted on contributions raised by “passing the hat.” No one has kept track of the people who have attended its meetings over the past two years. Many people who once participated have stopped attending and new people have taken their place.

The organization’s actions closely mirror my own. It has at my insistence refrained from taking any stands on candidates or ballot questions because this would require it to file campaign finance reports. Its sole purpose is to return the right to vote to citizens of the Duluth School District .

The first meetings were held in the summer or fall of 2007. Let Duluth Vote has generally held weekly meetings attended typically by 20 to 25 people over the past year.

There is one other significant activity that I did not mention in interrogatory 14, the development of an alternative to the Red Plan called Plan B. I did not list it in that interrogatory because I’ve only played a small role in its creation. This was first proposed by Tim Grover in January of 2008. I favored a different proposal, one that would give the public a chance to vote on something very similar to the Red Plan, but financed completely by bonds rather than lease levy purchase agreements. Tim and I debated the merits of our two proposals at a Let Duluth Vote meeting and Tim’s petition language narrowly won. It’s the basis of the current Plan B that is being roundly criticized by Mr. Grover and other Board members now.

In Fall or December of 2008 a small group of people, architects, engineers and Let Duluth Vote leaders got together to flesh out the spare 75 words of the Plan B petition in preparation to developing a Review and Comment. I attended a few of these meetings but was primarily interested and responsible for some of the other activities I described in Interrogatory 14.  This activity foundered when, for the following year, it became evident that the District had no intention of allowing the petition language to be drawn up into a review and comment document for presentation to the Minnesota Department of Education. When the District changed course in the late spring of 2009 and indicated a willingness, even an eagerness, to draw up a review and comment document by hiring an Architectural firm to do the work several leaders of Let Duluth Vote actively worked with the Architectural firm ATS &R to draw up the Review and Comment proposal.

Let Duluth Vote has also taken the lead in raising the money to hire an attorney to challenge the Red Plan and in raising the $100,000 bond to protect the five taxpayer/plaintiffs financially should their suit fail.

I would be unable to list all the people who have attended meetings of Let Duluth Vote over the past two years. The closest to a title might be the honorific “spokesman” or “spokeswoman.” The two chief spokesmen for LDV would include Harry Welty one of the group’s founders and Brenda Anderson who also runs the group’s meetings and draws up is agendas.

Art Johnston, an engineer, has worked long and hard to develop the Plan B alternative.

Karen Heisick has been a major researcher and has helped make presentations of Let Duluth Vote initiatives to various groups.

Larry Burda, Dan (Robert) Sershon, Art Johnston along with Harry Welty are four of the five taxpayers in the current suit against the District and JCI . They have all been active in the organization.

Gary Glass is a school board member and since his election to the Board does not consider himself a member of Let Duluth Vote but has done his best to keep the group appraised of the actions of the School Board.

I consider this list to be something of an honor roll and am embarrassed to leave anyone’s name out but unless ordered to do so by the court I’ll stop here with a very incomplete list of our supporters. Many of the people who regularly attend Let Duluth Vote meetings can be identified because they have written letters to the editor at one time or another.

I am the sole owner/manager of www.letdulthvote.com. I am its principal author/organizer and the only person with access to the site for uploading new material. I occasionally upload information written by others to the site and generally attribute authorship of said material.

All of the material on both of these sites is easily available, printable and downloadable.

According to the web registration website, whois.com.,  www.letduluthvote.com was created and or first registered on Aug 27, 2007

Interrogatory No. 16:  Identify all Persons whom you believe have knowledge or information regarding the profits JCI will earn as a result of the Agreement and for each such person, describe in detail the knowledge you believe such person has.

Answer:

It seems obvious to me that only JCI personnel will have a true and accurate picture of the income and profits JCI will take in from the project management of the Red Plan. The profits may not be entirely clear until the project is completed and unanticipated expenses have been deducted from earnings. I presume that the two aforementioned JCI employees would be able to make a reasonably accurate estimate of earnings. For the Duluth School District I presume that Superintendent Dixon, Bill Hanson and Kerry Leider would be able to offer the best estimate of JCI ’s profits.

I also believe that anyone who has read the documents presented to the Sixth Judicial District by the plaintiffs in this case would be able to draw reasonably accurate conclusions about the income JCI will earn as a project manager.

The documents presented, however, do not reflect the additional earnings and or profits JCI will accumulate from sales of its equipment to the School District or the long term contracts that will be awarded to JCI to maintain this equipment.

Interrogatory No. 17:  Describe in detail when you first received any information regarding the RFP including what information you received; the source of that information; how you received the information; and when you received the information.

Answer:

I do not recall the date I first learned any details about the RFP. It would have been sometime after the spring 2007 and probably before 2008. The source of the information would most likely have been Maureen Booth or Gary Glass. This public information would have come from the Duluth School District ’s business office. I have learned additional information about the RFP over time including right up to the filing of our pleadings with the Sixth District Court.

Interrogatory No. 18:  Describe in detail when you first received any information regarding the Response, including what information you received; the source of that information; how you received the information; and when you received the information.

Answer:

I do not recall the date I first learned any details about the JCI ’s response to the RFP. It would have been sometime after the spring 2007 and probably before 2008. The source of the information would most likely have been Maureen Booth or Gary Glass. This public information would have come from the Duluth School District ’s business office. I have learned additional information about JCI ’s response to the RFP over time including right up to the filing of our pleadings with the Sixth District Court.

Interrogatory No. 19:  Describe in detail when you first received any information regarding the School Board’s selection of JCI following the issuance of the RFP, including what information you received; the source of that information; how you received the information; and when you received the information.

Answer:

I most likely received information about the School Board’s selection of JCI from Gary Glass in the spring or summer of 2007. Other than what I had read in the Duluth News Tribune this public information would have come from the Duluth School District ’s business office. I have learned additional information about the School Board’s selection of JCI over time including right up to the filing of our pleadings with the Sixth District Court.

Interrogatory No. 20:  Describe in detail when you first received any information regarding the Agreement, including what information you received; the source of that information; how you received the information; and when you received the information.

Answer:

I received the first information about the Agreement from Gary Glass in the spring or summer of 2007. I know that he acquired this document from the School District’s business office shortly before he revealed that Johnson Controls would likely earn 13% of the over all cost of construction of the Red Plan. I believe I read some of the contract language at that time and know that Gary pointed out some of its more questionable features, specifically the proprietary rights JCI would hold over public data generated by the District.

The first expert analysis I encountered of the earnings JCI would receive under the terms of the contract were explained in depth by a Duluth architect, Robert Aho, who specialized in construction contracts. I believe he wrote his analysis sometime in early 2008.

Interrogatory No. 21:  Describe in detail when you first received any information regarding the Resolution, including what information you received; the source of that information; how you received the information; and when you received the information.

Answer:

I received the first information regarding the June 19th resolution from Gary Glass in the summer of fall of 2007 and specifically remember being appalled to learn the School Board had approved the Resolution approving a contract sight unseen just as the Red Plan’s Review and Comment document had been approved sight unseen before it was sent on to the Minnesota Department of Education.

It was at this time I learned it had been signed by Chair Ann Wasson on an undated document.

Interrogatory No. 22:  Describe in detail the letter referenced in a posting by Plaintiff Harry R. Welty on www.lincolndemocrat.com on May 20, 2008 which “outlined a possible case of bid rigging by Johnson Controls” including but not limited to the letter’s author; the party to whom the letter is addressed; the letter’s date; how you came into possession of the letter; and the letter’s contents.

Answer:

This was a letter of complaint sent to the Duluth School Board by ABE Systems of Duluth outlining the uncompetitive circumstances surrounding the awarding of a construction contract and the unfair and improper influence brought to bear by JCI in order to muscle ABE aside to win a bid. I believe I posted the letter on www.letduluthvote.com although I may have removed it once I concluded that my advertising the conflict of interest had only served to further undermine ABE for future bids on the Red Plan. I later learned that the legal definition of “bid  rigging” did not apply to the dubious situation I wrote about but there was no doubt in my mind that JCI was exercising its contractually awarded rights to select winning bids in such a way that was a clear conflict of interest and which unfairly disadvantaged its competitors.

Interrogatory No. 23:  Identify all Persons you believe have knowledge or information with respect to the veracity of the allegations asserted on www.lincolndemocrat.com, www.snowbizzs.com and www.letduluthvote.com that JCI influenced the School Board’s RFP selection process in its favor, and describe in detail the knowledge or information you believe such person has.

Answer:

This Interrogatory states that I have alleged that JCI improperly influenced the Duluth School Board. It also calls on me to draw conclusions I can not make because the information I have is only circumstantial in nature. I have noted the appearance of an inside advantage where JCI ’s dealings with the School District are concerned. If I have crossed the line and made an allegation I would like defense counsel to bring the allegation to my attention so that I can correct it.

It is only in the past few weeks that I’ve learned that JCI ’s Michael J David worked with Supt. Keith Dixon while Dr. Dixon was superintendent in Faribault , Minnesota . I had heard rumors that JCI worked with Dr. Dixon in Faribault previously but thought little of it because JCI has probably worked with the majority of Minnesota School Districts over the years.

I had also heard word-of-mouth stories that JCI was working with the Duluth School Administration and the School Board prior to the Board’s approval of the RFP. It is only since the taxpayers brought suit against JCI and the District that I’ve seen letters from Kerry Leider, the District’s Facilities Manager which confirm this.

Influence by its nature is not illegal but it can confer an advantage. Since the Board was already working with JCI personnel before they released an RFP there is little doubt that influence whether innocent or otherwise already existed between JCI and the Duluth School District . The best measure of the innocence or guilt of that relationship can be deduced from the language written into the contract between both parties.

Once again it was Dr.Dixon, Bill Hanson, Kerry Lieder and the School Board members who had this preexisting relationship with JCI .  Jeff Schiltz and Michael J. David were the major players at JCI if undue influence was being exercised.

Interrogatory No. 24:  Identify any and all documents, Communications and Statements relating to, referring to or evidencing the veracity of the allegations asserted on www.lincolndemocrat.com, www.snowbizz.com and www.letduluthvote.com that JCI influenced the School Board’s RFP selection process in its favor.

Answer:

Let Duluth Vote and others have engaged in a mostly fruitless effort to acquire documents of this nature. The documents that we do have access to are public and demonstrate only that JCI got a very generous contract from the Duluth School District . 

There are no documents to my knowledge that suggest anything other than that JCI got a very generous contract. Those documents are all a part of the taxpayer’s pleadings before the Sixth District Court. Since I only have documents at hand that suggest that Johnson Controls got a very generous contract I do not believe any documents I’ve posted to the three sites mentioned can be characterized as alleging any illegality other than that which can be found in the taxpayer’s complaints demonstrating the harm done to the taxpayers by an unduly generous contract for which no bidding was required.

I would add that this harm is being aggravated by the School District ’s decision to expedite Red Plan construction to insure that the election of a new school board in November will deny voters a chance to review or vote on the Red Plan in a referendum.

Interrogatory No. 25:  Describe in detail your relationship with each of the current School Board members, including Gary Glass, including but not limited to any Communications referring or relating to the issues in this lawsuit; the RFP; the Response; the Agreement; or the “red plan.”

Answer:

I have only addressed most of the Duluth School Board members irregularly at the allotted time for public comment at their monthly school board meetings. The time allotted for my comments is three minutes a month.

*** 

The first time I met Ann Wasson may have been seven or eight years ago when, as a School Board member, I sat in a dunk tank for the elementary school carnival that her children attended. We have never spoken to each other about the Red Plan or anything else that I can recall.

***

I met Nancy Nilsen in 2003 when she became the de facto leader of West Duluth citizens concerned with preserving Denfeld as a Western High School . I appreciated her efforts that year to help pass an operational levy for the District although, ironically, I was annoyed that she demanded the School Board support the continuation of three high schools when I advocated closing one. To help pass the operational levy I reluctantly agreed to support the continuation of three high schools for the duration of the levy.

A short time after this a vacancy on the School Board opened up with the death of a school board member. Nancy applied for the vacancy and lost a close vote to fill the position. I supported another candidate although I thought Ms. Nilsen would make a good school board member in her own right.

I met with Ms. Nilsen once in 2007 in a coffee shop near her place of work to encourage her support a referendum on the Red Plan. She told me she would not support one.

***

I first met Laura Condon when we both taught in the Proctor Schools in 1976. I do not recall her well and she had to remind me of our early acquaintance when I met with her to ask for her support in my quest to be the School Board Chairman after the 1997 School Board election.  Laura had campaigned in opposition to the previous Board’s decision to bring the Edison Charter Schools to Duluth . I had voted to bring the charter to Duluth and after that election four new Board members opposing Edison and the five Board members who remained and who had supported the Charter formed antagonistic blocs that continued over the next four years.

To the best of my recollection Laura and I never had a hostile conversation although when I met with her just before retiring from the Board in 2004 and asked her to support Mary Cameron for the School Board’s Chairmanship Laura reacted to my request with some vehemence and antipathy.

I do not recall speaking to her one on one about the Red Plan.

***

I encouraged Judy Seliga-Punyko to run for the school board on at least two occasions and gave her some help in her first run for the office. We have always had a cordial relationship and I was grateful when Judy sent me a donation when I pursued a quixotic race for the U.S. Congress in 2006. It was one of very few I received. At the time she sent me a kind personal note perhaps in gratitude for my earlier help in her unsuccessful school board campaigns.

When Judy filed for the 2nd District School Board in 2007, the seat I had once held, I called her up told her I would be running against her because I disagreed with her about the Red Plan. It was a somewhat awkward conversation but it was cordial. That, to my recollection, is the only conversation I’ve had with Judy regarding the Red Plan.

***

I first met Mary Cameron just before filing to run for the School Board for a fourth time in 1995. Three times before I had run for an at-large seat and I had always lost. For my fourth attempt I intended to run for the smaller and more manageable District 2 seat where I would have a greater likelihood of success.

When I learned an African-American woman who lived in the District was planning to run for the Board I called her up and introduced myself. The candidate was Mary and I wanted to size her up since she lived in the same district and was a potential challenger. It was my intention to step aside for her and run for the at-large seat once again if it turned out she was planning to file for the District seat. I felt strongly that Duluth needed minority representation among its elected officials and that this took precedence over my own ambitions.

As it happened Mary had already set her sights on a District-wide seat so we did not end up challenging each other.  In fact, much to the consternation of my own campaign volunteers, when I discovered that Mary’s campaign volunteers were inexperienced I put my campaign on hold to help get Mary’s started. I painted her law signs and sendt out a fundraising letters to my supporters asking them to donate to Mary.

We both won and served on the Board as the newcomers with very little power or influence with the senior board members. In the process we became each other’s biggest supporters.

I continued to serve as Mary’s unofficial campaign manager for her two subsequent School Board campaigns in 1999 and 2001. I wrote a candid but sympathetic column about Mary for the Reader Weekly and created a Website devoted to her reelection in 2001. Like most of my web creations much of it remains on the Internet as an archive of my past activities.  Its current web URL is: http://www.snowbizz.com/DuluthSchools%20Page/WildAboutMary/wildaboutmary.htm

In 2005 I passed on all of my records of Mary’s past campaigns to her new campaign manager Bob Brooks along with my advice on how she should campaign. I was confident that Mary would easily win reelection and she did.

Mary was one of two former School Board members that I invited to my daughter’s wedding.

I met with Mary once after filing to run for the School Board in 2007 and told her that I planned to keep Central High School open. This was not the real motivation for me to run for the Board. I wanted to assure that there would be a referendum on the Red Plan. I made this comment knowing that Mary was a Central Grad and I mistakenly thought she would appreciate my comment since she was one of the school’s alumni. 

To her credit Mary made it clear in that meeting that it was the health of the entire school system that was her top priority and that old loyalties would have to be set aside. I have not met with her since to discuss the Red Plan.

***

I first met Tim Grover in 1989 when I circulated a petition hoping to persuade the School Board to keep Washington Junior High open. We have been political allies and close friends ever since. Tim is the other former School Board member I invited to attend my daughter’s wedding. During the time we served on the School Board we enjoyed each other’s company and had many long, animated and laughing discussions about School Board personalities and politics.

For the first nine months of Let Duluth Vote’s existence Tim was once again a close ally. In late winter or early spring of 2008 Tim threw in the towel and decided that the Red Plan could not be stopped. At that time he bowed out of Let Duluth Vote. Tim regards himself as a pragmatist and in his opinion there was no way to convince the Board to put the Red Plan up for a vote or stop the construction. This had the effect of helping him regain the trust of most of his fellow school board member’s and has resulted in his election this year to be the Chairman of the School Board.

I can not fault him for his pragmatism but we no longer talk about the Red Plan or school politics. It’s been over a year since I sent him an email.

***
Gary Glass and I crossed swords when I was served on the School Board and advocated the closing of a high school in order to spend more money on school programming. One of my allies on the Board had advocated selling
Old Central High School to help save money. I supported this ally by keeping the recommendation on the table for the purpose of discussion. Mr. Glass was strongly opposed to selling Old Central and this meant that we had a cordial if somewhat adversarial relationship.

Mr. Glass and I met again as opponents of the Red Plan coalesced in 2007 and called for a referendum. We were both candidates for the School Board that year and have continued to work for a referendum ever since.

Mr. Glass and I speak regularly about our joint efforts to bring about a referendum and in the intervening two years have discovered problems with the Red Plan far beyond the School Board’s refusal to put it to a public vote.

We typically send each other several email messages each week and talk on the phone fairly often. We’ve met over coffee on occasion and Gary frequently attends meeting of Let Duluth Vote. I occasionally mention my encounters with Gary on my blog. I wrote about one such meeting when a committee of Let Duluth Vote was interviewing Craig Hunter. Ironically, our meeting place then was a restaurant where Tim Grover and Laura Condon, once bitter adversaries, were having lunch together. I thought that coincidence would make a fun posting on my blog.

Interrogatory No. 26:  Identify all Persons whom you believe have knowledge or information with respect to the veracity of your allegation that JCI induced the School District entered into an unlawful contract and describe in detail the knowledge or information you believe such person has. 

Answer:

This list would include most of the individuals I’ve mentioned in my answers to previous interrogatories. I can not think of any additional material details that I would enhance my previous answers

Interrogatory No. 27:  Identify an all personal e-mail addresses you have used from period beginning January 1, 2006 to the present.

Answer:

harrywelty@charter.net

Interrogatory No. 28:  Identify any and all personal computers you have used from the period beginning January 1, 2006 to the present. 

Answer:

I have a personal computer at home and I occasionally use my wife’s laptop computer when I am traveling. I have also posted to my blog from computers in many public libraries and occasionally from computers in the business centers of Hotels I’ve stayed

                  Dated:                                                       _________________________

Harry R. Welty

 

                  Dated:                                                       NORTHLAND LAW

__________________________

Craig S. Hunter (#48264)
Attorney for Plaintiffs
11 E. Superior St., Ste. 328

Duluth
, MN 55802 |
(218) 625-2215