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Note
for attorneys - In time there will be links embedded in this text to some of the
topics this history relates. Much of it could be found with a little looking
online (some of it can be found in this unruly website) If you don't see a link
to information that would help you prepare a proposal please contact us and we
will get a hard copy or PDF to you if we have it. Some of these links will take
you outside this website.
A brief history of the Red Plan:
A contentious
Duluth
school board election in 1997 led to an ongoing discussion of how to deal with
Duluth’s
excess school capacity in the face of a declining student population. There was
general community agreement that some school buildings should be closed in order
to divert roughly $1.2 million from building maintenance into classroom
operations. The issue of what should be closed pitted elementary schools against
secondary schools. Two elementary schools were closed. There was little or no
discussion about tearing down and replacing schools. The issue came to be known
as the “long range plan.” The discussion changed radically 2006 with the
hiring of a new Superintendent and the goal of saving money by closing excess
capacity was substituted with the enticing prospect of saving money by building
more cost effective and energy efficient schools.
Superintendent Keith
Dixon inaugurated a study of the District’s facilities needs. Dr. Dixon had
previously been the Superintendent of the
Faribault,
Minnesota
schools where he had overseen a similar though more limited building program.
The unexpected and unwanted consequences of
Faribault’s
construction were such that the community elected school board candidates who
pledged to fire Dr. Dixon.
Prior to sending out
bids to analyze
Duluth’s school facilities and
develop a long range plan Dr. Dixon began working with Johnson Controls Inc. We
suspect that
JCI
drafted much of the
School
District
’s RFP seeking bids to design a “long range plan.” If so this
gave
JCI
an unfair advantage
against other bidders. The School Board awarded the bid to
JCI.
JCI
’s
proposal contained a novel provision offering to drop the charge for the
development a long range plan if the School Board later selected Johnson
Controls to become the resulting building plan’s program manager. This
provision gave
JCI
an unhealthy incentive to expand the scope of the project because it would
magnify their project management earnings.
When confronted
later about
JCI
’s
project management earnings Dr. Dixon erroneously lowballed them claiming they
would not exceed $4.5 million. It now appears that
JCI
’s
earnings will exceed $30 million and might even double this. This is just one of
numerous instances of Dr. Dixon and/or school board members providing inaccurate
or misleading information to the public. Ironically the supposed cost savings
through energy efficiency is another such example. The District has now conceded
that traffic costs (fuel) will likely increase by $400,000 annually and the plan
will install air conditioning into school buildings which will greatly increase
energy costs.
JCI
manufactures chillers.
JCI
’s
potential earnings from project management vastly exceed the modest $250,000
they would have been paid for simply designing a building plan. This is a
serious but probably legal conflict of interest. A second conflict of interest
was written into the project management contract between the school district and
JCI
.
It gave
JCI
the authority to award bids for construction and equipment including millions of
dollars for equipment manufactured by
JCI
and its subsidiaries such as chillers for air conditioning. This expense has
been justified as dehumidification. The contract anticipated $293 million in Red
Plan construction costs. The School Board approved this contract without ever
laying eyes on it. Copies of this “master agreement” show that the School
Board Chair signed an undated document.
JCI
developed three plan options “red,” “white,” and “blue.” Each
plan’s expense exceeded a quarter billion dollars. Each plan was vastly larger
than the District’s existing ten-year deferred maintenance plan which totaled
$36.9 million. The District’s plan had identified 414 projects needing
attention.
JCI’s
experts identified 1,600 repairs requiring $206 million in spending. This
suspiciously high figure met a state recommendation which encouraged school
districts to build new schools should the cost of repair exceed 60% of the cost
of a new building.
The recommendation
for complete replacement of so many school buildings has come as a surprise to
former School Board members who, from 1989 until 2004, poured an additional $30
million into building repair while also passing a $19 million referendum for
athletic facilities and implementing a $26 million building program which built new schools and
made all schools compliant with state health, safety and ADA requirements.
Ironically, two of the new schools built during this period were the
first buildings worked on by JCI under the terms of the Red Plan.
Many of the design
professionals brought in by
JCI
to evaluate Duluth’s school facilities were
not licensed to do such work in
Minnesota.
While the Minnesota Board of design professionals (AELSLAGID) investigated these
charges it would not publicly release its findings other than to report no cause
for concern. How the members of the AELSLAGID Board who's firms would later be
hired to work on the Red Plan voted on these decisions is unknown.
Not only did the
School Board authorize the
JCI
program management contract sight unseen they sent the Red Plan’s Review and
Comment document to the Minnesota Department of Education before they laid eyes
on it.
The key feature of
the Red Plan is the freedom it gives the School Board to proceed without a
public vote. This is a new found legal authority is predicated on a new
interpretation of language found in three overlapping statutes and which was unknown
to previous Duluth
school boards. In fact, the Duluth
legislator who drafted one of these statutes, Rep. Mike Jaros, explained that
this use of his statute violated the letter and intent of his
legislation. The
statute gives the
Duluth
school board permission to
embark on a building program without holding a referendum in order to implement
a state mandated integration program. This statute's letter and intent are being
subverted because the Red Plan will clearly divide the Duluth
schools along racial lines.
The Minnesota
Department of Education did not challenge the District’s and Johnson
Control’s interpretation of these laws when they approved the building
program. It appears that the MDE put great stock in a deeply flawed survey of
300 Duluthians, paid for by
JCI,
which suggested widespread community support for implementing the Red Plan
without a public vote.
It has been
difficult to track evidence of a need for the Red Plan because
JCI
’s
program management contract also gives Johnson Controls “proprietary”
ownership of public data. To date the District has withheld this information
from Let Duluth Vote, School Board member Gary Glass, and the public by claiming
it belongs to Johnson Controls. Recently the Superintendent was adamant that the
only data that the District would give Let Duluth Vote was the sketchy
information it provided to the Department of Education when it submitted the Red
Plan for review and comment. Even though the MDE did grant permission for the
District to finance and build much of the Red Plan its staff eagerly sought
transportation and desegregation data from Let Duluth Vote which the District
did not make available. Unfortunately, Let Duluth Vote did not have access to
this information either. We have subsequently learned a few interesting tidbits
like the
estimated $400,000 increase in bussing costs. We have also learned that
the District and
JCI
never did an energy study of the schools although they have touted energy
savings as a major justification for undertake the plan.
Let Duluth Vote is
not convinced that Minnesota Statutes really sanction a school building program
which undermines a state approved Duluth Integration
program. Even if this
twisted result turns out to be legal we suspect that the Red Plan may fall afoul
of federal civil rights legislation.
Part of the
statutory authority being exercised by the District hangs on the school district
having the legal authority of a “City of the First Class.” Yet the
School
District
does not have contiguous borders with the City of
Duluth.
In fact, the majority of the District’s land area, five townships, lies outside Duluth’s
perimeter. We doubt that the District has the power to compel taxpayers in its
five townships to pay for the Red Plan based on Duluth’s
“First Class” status.
The public has been
met repeatedly by the Duluth School Board with the curt reply “We were elected
to make these decisions.” School Board members are relatively immune from
recall. However, evidence of the school administration’s mismanagement, bad
faith and incompetence strongly suggest that a case for malfeasance could be
made. At the very least Let Duluth Vote intends to call for an audit by the
State Auditor.
A petition
circulated by Let Duluth Vote and submitted to the Board nearly a year ago was
upheld by the State Attorney General who directed the School Board to follow state
statutes and prepare an alternative plan for review and comment to the MDE for the smaller
building plan described by the petition. To date the District has managed to
stall the development of plan or a review and comment report to present to the Dept. of Education.
It gives every indication of running out the clock on this until the next
construction season begins.
Finally, in
reference to our greatest grievance - the loss of our vote - while school
bonding referendums are not guaranteed by the Constitution the “equal
protection” clause of the 14th amendment requires states to treat its citizens
equally. The statutes which buttresses the Red Plan treat citizens of the
state’s largest cities as second class citizens denying them the same chance
to vote on major school building projects that all other Minnesotans enjoy. The
justices of the U.S. Supreme Court have written eloquently that the right to vote is
among the most fundamental rights belonging to citizens in our republic.
Defending this right successfully would lend much prestige to any
attorney representing the people's interests.
There may be other issues which
could be pursued than those outlined here.
Let Duluth Vote will not limit
itself to the legal issues suggested in this brief history.
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