Tontitown, Engineers At Odds Over Documents
Last updated Sunday, December 9, 2007 4:08 PM CST in News
By Bob Caudle
THE MORNING NEWS
TONTITOWN -- A local engineering firm recently declined an Arkansas Freedom of Information Act request to supply a Tontitown elected official with documents paid for by the city.
EGIS, a consulting firm the city of Tontitown uses as its engineering department, declined to provide city Recorder-Treasurer Tracy Goddard with a word processing document of the specifications for a street overlay project.
EGIS is on a monthly retainer by the city to inspect road projects, review and prepare bids, and review final plats. The company also charges for other services on an hourly basis.
Mick Wagner, executive director of the Tontitown water and sewer department, requested an electronic document on road specifications from Goddard, the city's custodian of files. Goddard did not have the document and requested it from the engineering firm under the Freedom of Information Act.
"I FOI'd the city, knowing full well they didn't have it," Wagner said. "There was no engineering task performed in the document I was asking for. It just specified what kind of overlay and how many cubic yards. The city shouldn't have to pay for them to reproduce something the city can change the wording on and reuse."
As of Friday, the city hadn't received any documents from the engineering firm except invoices, according to acting City Attorney J.R. Carroll.
Joe Tarver, the president of EGIS, said the city has electronic documents and has had them for years. The engineering firm provides the city with Adobe Portable Document Format files, Garver said.
"The original intent of the FOI was meant to give the public access to information," Tarvin said. "He wants us to put our work product on the Internet in a form that can be edited."
Not so, Wagner contends.
"I'm not asking for an AutoCAD file (a software application for 2D and 3D design and drafting) to go out and engineer a road," Wagner said. "Whether the city pays $7,000 for a document or $500 for a document, we should have a copy so we don't have to pay the same fee again."
Wagner said he asked that the road specifications document be supplied to the city in a Microsoft Word format so the city could take the document, change the width, length and name of the street, without having to pay EGIS engineering fees for clerical work.
Wagner also said he asked Sam Goade, Springdale director of public works, for a copy of Springdale's road specifications. Goade provided the 14-page item, Wagner said.
Tarvin maintains his firm is different from obtaining documents from a city. He cites three reasons his firm did not comply with the city's request:
* It can lead to a violation of state law.
* It's against the rules of the state Engineering Licensing Board.
* It could lead to a violation of his company's agreement with the software company providing his firm's engineering programs.
"We bought the software from a company and pay $1,000 per year for licensing fees," Tarvin said. "If we release this in an editable version, it could violate our licensing agreement with the software company. Our lawyers have told us not to put information into editable form. No one has the right to change them."
Tarvin said, for instance, if EGIS sent a bid without the state-mandated engineering seal, somebody could change the document without his company's knowledge.
"We give documents to the city in a PDF format," Tarvin said. "They can get and read the copy anytime they want. The purpose of the FOIA is to provide free access, Not provide documents that the public can make changes to."
However, Gabe Holmstrom, a spokesman for Arkansas Attorney General Dustin McDaniel, pointed out a previous Attorney General opinion that appears to contradict the EGIS viewpoint.
Opinion 99-350 states a private entity that receives public funds for services rendered to a government agency is subject to FOIA when the services could have been performed by public employees, the attorney general concludes.
Wagner, who also requested EGIS invoices under the Freedom of Information Act, said he forced the issue on the FOIA request after noticing EGIS's contracts contained a clause paying the engineering firm a percentage of a cost of a project.
That clause, Wagner contends, gives the firm no incentive to hold down costs.
He said he wanted the information as a taxpayer, but he based his requests from experiences he had with another engineering firm while Wagner was the chairman of the city's Water and Sewer Commission.
"Sometimes, what you have is an engineer who'll take advantage of people who haven't negotiated a lot of contracts," Wagner said. "I thought it was something that needed to be done. I've got nothing against Tarvin personally, but I'm a lot more leery of him than I was before this started."
This is the first year on the City Council for four of the six aldermen and the mayor. Under Wagner, the Water and Sewer Commission sued a Springdale engineering firm, ESI, and Dossett worked out a settlement through mediation with the group.
ESI eventually agreed to pay the city $140,000 to settle the matter out of court. Tontitown officials sued the engineering firm over what they claimed to be inaccurate drawing, specifications and "other documents."
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