New Rochelle Schools Stonewall on Building Conditions Report

NEW ROCHELLE, NY — The City School District of New Rochelle is continuing its stonewalling on production of documents related to the building collapse at Webster Elementary School and more broadly the entire record of facilities in the New Rochelle school system.

On December 9, 2015, Talk of the Sound submitted a Freedom of Information request for a copy of a Building Condition Survey Report prepared by CSArch.

“[We] would like to obtain a copy of the Building Condition Survey which I understood was prepared by CSArch and completed in October 2015. [We are] aware that this BCS may or may not have been submitted to NYSED but regardless if it is a record in possession of the district today I would like a copy of the report today.”

On December 21, 2015 Talk of the Sound received the following reply:

“Your request for ‘a copy of the Building Condition Survey which [we] understood was prepared by CSArch and completed in October 2015″ is denied because the document is still in draft form. Once the document is finalized, it will be made available to the public.”

On December 21st, Talk of the Sound sound an advisory opinion from Robert Freeman, Executive Director of the New York State Committee on Open Government:

“The City School District of New Rochelle hired a company to conduct a Building Condition Survey, required by SED every 5 years. The district made various public pronouncements about this BCS report – that it would be completed in October, that it had been completed in October, that it was the basis for the scoping for a $50mm capital school bond for a referendum vote on 12/15. They have talked about it quite a bit and never once indicated it was preliminary or a draft. Now [We] have FOIL’d for the report and [the District] claims it is exempt because it is in draft form. As I understand this report is not due until some time in 2016. Apparently they are not filing it with SED until the due date.  What’s the thought on this – they said the report was done, it was distributed to the board, it was the basis for the bond?”

On December 24, 2015, Freeman responded:

“Attached is an advisory opinion that likely addresses the issue that you raised.  In the event that it cannot be opened, a second copy will be sent separately.”

The opinion is dated January 8, 2003 and addresses a similar situation involving a Village in New York:

“In this regard, first, the Freedom of Information Law makes no specific reference to drafts, and in my view, documentation in the nature of a draft is subject to rights of access.  That statute is applicable to agency records, and §86(4) defines the term “record” to include:

“…any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.”

Based on the foregoing, a draft prepared by or for the Village would constitute a “record” as soon as it exists.

Second, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.”

A Building Condition Survey is not exempt from FOIL under §87(2)(a) through (i) nor is the District claiming it is exempt. In fact, they claim they will make the BCS report public at some future date.

The advisory opinion was forwarded to the District but ignored in an appeal filed 12/24/15 with Dr. Osborne:

“Dr. Osborne,

This is an appeal of the denial of my FOIL for the BCS report prepared by CSArch in October 2015 or thereabouts.

 I was not aware that a claim that a report was described as a “draft” report could qualify a public record to be exempt from FOIL. Therefore, I asked Robert Freeman about this and he sent the following email which makes clear that claiming a public record is a “draft” is NOT grounds for denying a FOIL request, that there is no such exemption under the law. He does note there are aspects of the report, depending on the nature of the report, who prepared the report and the content of the report, where portions of the report might be redacted in certain instances. In such cases, he finds that the report should be disclosed with redaction as it is a public record regardless of your claim it is a “draft”.

I would add that this report was deemed sufficiently complete to be discussed in the press over the past four months, that it was described numerous times as “completed” in October, that it was stated to be the basis for the $50mm bond proposal and that it will eventually be filed with SED at which point it can be obtained under FOIL from them regardless of frivolous claims made by CSDNR.

 Finally, school officials including You and Mr. White have proclaimed many times to have had a transparent process with regard to the bond. The failure to proactively, voluntarily, immediately make public all records related to the bond well in advance of the bond vote and do so in a visible way on the district website as part of the promotional efforts related to the bond suggests the opposite to be the case. This was a key point raised in opposition to the bond, in fact it was the first item on the list of reforms promulgated by ReformFirst.org and a major factor in why the bond failed. And yet, incredibly, the withholding of these records continues.

I have obtained some records under FOIL related to building conditions and capital construction projects. I just obtained the engineering report on the failure of the ceiling at Webster School. These have been produced grudgingly, often with significant delays, in some cases heavily redacted. Again, the opposite of the transparency you claim to offer.

I would note that this is a district that had no problem publishing a DRAFT version of school safety plans in 2013 following the blowback after Sandy Hook even though the SAVE Law specifically PROHIBITS publishing or publicly distributing ANY version of a school safety plan. The hypocrisy here has the rank aroma of Jeff Kehl the one constant in years of FOIL abuse in the CSDNR.

The public has an affirmative right under the law to have the BCS report, draft or final. More to the point, if you want voters to trust you when you put up another bond this Spring, you need to reverse your practice of flailing about for thin or baseless legal arguments to hide information about school facilities and capital construction from the public (a Jeff Kehl specialty).

You can start by immediately releasing the un-redacted version of the BCS report.

You can add to that an un-redacted version of the report prepared by Mike Orifici on the 6 fraudulent invoices he investigated in March 2014 and the report delivered to the board by Orifici containing a “prioritized list” of health and safety issues with school facilities as described in his invoice for $6,500 dated 6/4/14 which you have falsely claimed does not exist in your denial of my previous FOIL appeal, a false statement filed in writing with the NYS Committee on Open Government. It is a Class A misdemeanor punishable by up to a year in jail to file a false written instrument: “S 175.30 Offering a false instrument for filing in the second degree. A person is guilty of offering a false instrument for filing in the second degree when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant. Offering a false instrument for filing in the second degree is a class A misdemeanor.”

If you and Mr. Orifici continue to maintain your demonstrably false claim the the CapProSoft report is the report you were given in July 2014 not the report described in the 6/4/14 invoice for which he was paid $6,500 then the only conclusion left is that Orifici was paid $6,500 for work he did not do on a report that he did not produce which he did not present to the board. That being your position, I would expect you to make a criminal referral to the New Rochelle Police Department related to fraud, falsifying business records and grand larceny.

On October 22, 2015 I raised these very issues, in a public meeting, on video tape. I think it is an inescapable conclusion that You and Orifici lied about this in an effort to deceive me, the school board, voters and the public at large about the report referenced in the 6/4/14 invoice in advance of the bond vote. It explains why Mr. Orifici became very angry and moments later threatened me with litigation in a hallway near the meeting room if I reported his remarks.

I have since obtained invoices from SWBOCES that prove beyond a doubt that the two of you, in effect, conspired by what was said and not said, to lie. The records I now posses show that the input work on the CapProSoft report was not even begun until September 2014, that data entry work was not completed until November 2014, the the “published on” date of the CapProSoft report is dated March 2015. It is impossible that Orifici provided you with the CapProSoft report in July 2014 as was claimed at the 10/22/15 Bond Input Forum because it did not exist.

Further, the CapProSoft report describes major repairs such as millions in roof repairs based on a 2014 report. You have, in effect, made the absurd circular argument that the 2014 report referenced in the CapProSoft report published in March 2015 is the CapProSoft Report itself. Obviously that cannot be the case. In fact, it is not the case because the CapProSoft report is referencing the report described in the 6/4/14 invoice which you have sworn, in writing, in a filing with New York State does not exist.

The phrase “tangled web” comes to mind.

Please turn over the BCS “draft” immediately. I would also encourage you to come clean about the rest of this if you ever want to have any hope of building public trust and passing your bond.

Thank you and Merry Christmas

Robert Cox

Managing Editor

New Rochelle’s Talk of the Sound”

On January 5, 2016, after a school board meeting that night, Assistant Superintendent for Business & Administration Jeff White approached me and spoke with me briefly about the BCS. I raised the issue of my FOIL for the BCS and the response below. He stated that he was unaware of my appeal (or that Bob Freeman provided case law to the effect that there is no exception for “draft” documents) but said there was no intention to withhold the document from me and that he would put it online once it was finalized.

As this seemed to ignore Freeman’s opinion that there is no exception for a “draft” document. I pressed the issue, noting that there was clearly an intention to improperly deny me access to a public record because my request had been denied and my follow up ignored.

White then made an extremely odd claim.

He stated that there was no document at all, that he had not received ANY document at all from CSArch related to a BCS.

This is not the first time that I’m being told that records that I have good reason to believe exist do not exist. A similar claim was made regarding the Orifici Report.

I pointed out that in the response to my FOIL there was no claim that the record did not exist but that it was in “draft form” as if that made it exempt from FOIL which case law and Bob Freeman indicate is untrue. White repeated several times that he had not received any version of a BCS report. I pointed out the School Clerk who had stated that the report was in draft form but he declined to address the matter to her at that time.

There have been numerous public statements to the contrary, including, the following in the Journal News based on interviews with school officials and Ritzenthaler of CSArch.

New Rochelle schools consider $49.5M bond

“The building condition survey is a New York State requirement every five years. The final report won’t be completed until mid October, but schools superintendent Brian Osborne said the district needs to move ahead with an aggressive timeline.”

This is consistent with various statements by Dr. Osborne, Mike Orifici and Tom Ritzenthaler at public meetings that the BCS report had been completed.

Talk of the Sound has now filed an appeal of the improper denial of our FOIL request:

“Dr. Osborne,

This is an appeal of the denial of my FOIL request for a Building Conditions Survey (BCS) Report prepared by CSArch in 2015 as described below.

As indicated in an advisory opinion from Robert Freeman of the New York State Committee on Open Government (provided previously) there is no exemption under §87(2)(a) through (i) of the New York State Freedom of Information Law for “draft” documents.

A record either exists or it does not exist and whether it is marked “draft” or “final” or with any other adjective has no bearing on whether it is a public record subject to FOIL.

I ask that you support my appeal and immediately turn over the Building Conditions Survey in whatever form it exists.

Thank you,

Robert Cox

Managing Editor & Publisher

Talk of the Sound

PS, I leave it to you to sort out why Ms. Saraiva says the report exists but in draft form and why Mr. White said he has never received any such report at all, especially considering that you were quote in article in the Journal News which stated that the “final” version of the BCS would be completed in mid-October 2015 and that you and others have repeatedly stated that this BCS report was the basis for the $50 mm price tag on the recently proposed bond.”

UPDATE: Hours after sending the above appeal, we received a response to a prior appeal dated 12/24/15 which reads as folllows:

“Dear Mr. Cox:

 This will respond to the Freedom of Information Law appeal made by e-mail on December 24, 2015, in which you appeal the denial of your request for the “BCS report filed by CSArch in October 2015 or there abouts.”

 The District has not yet received the Building Condition Survey report (“BCS”) from its architects, CSArch as it is still being worked on and is in draft form.  As soon as the report has been formally received by the Board of Education it will be made available to the public.

Sincerely,

Brian G. Osborne

Superintendent of Schools”

We sent the following reply: 

“Dr. Osborne,

As Mr. Freeman has indicated, this is not an issue of whether a record has been “formerly received” in a “final” version but whether you have a record or not.

You cooperated in the production of this article: http://www.lohud.com/story/news/local/westchester/new-rochelle/2015/10/02/new-rochelle-school-district-bond/73205540/

This paragraph directly relates to this issue:

“The building condition survey is a New York State requirement every five years. The final report won’t be completed until mid October, but schools superintendent Brian Osborne said the district needs to move ahead with an aggressive timeline.”

You went out to the public for a $50mm bond where you repeatedly referenced the BCS report and prior to the defeat of the bond proposal on 12/15 I cannot recall you ever stating the report was not received or not formally received or existed only in draft form or otherwise was not in possession of the school district in some form.

 You are once engaged in a deliberate deception to stonewall the production of public records.

This is not the path towards building trust and support within the community for any future bonds or budgets you intend to put before voters.

Please reconsider the path you have chosen.

Thank you

 Robert Cox

Managing Editor

New Rochelle’s Talk of the Sound”

A reader sent along the Bond Newsletter and pointed out the first paragraph which prompted another email to Dr. Osborne. 

“Dr. Osborne,

There is really not much more to say but that you, sir, are a documented liar. You have lied about the Orifici Report (which I have proven through invoices from the District and from BOCES) and now you are lying about the BCS report. Mr. White has also lied about the BCS report.

In the very first sentence of the linked document, a legally required document sent through the U.S. Mail to every registered voter in New Rochelle in December 2015, you described the very BCS report you now claim does not exist.

2015 New Rochelle Bond Newsletter

“The school district is proposing a bond for essential infrastructure projects identified in the state mandated Building Condition Survey (BCS).” 

This report is cited as the basis for $50mm in critical repairs yet you now claim it does not exist.

The document continues to cite the BCS and lists specific, detailed dollar figures next to each type of repair: 

“This BCS report was prepared by independent, licensed architecture and engineering firms and includes the following:

• Roof repair/replacement
• Window replacement
• Masonry repairs
• American with Disabili es Act improvements
• Electrical upgrades
• Exterior door replacements
• Other projects for code requirements
• Plumbing upgrades”

Note the phrase “was prepared”. You have formally, legally asserted that this report was completed prior to the bond referendum vote on 12/15 but now you formally, legally claim that it was not. It cannot be both.

The only question which remains is whether you lied to the Journal News? To the board and public at the public bond hearings and discussion forums and presentations at school board meetings? In the mailer sent to every voter? On WVOX radio? Or in the written instrument filed with the Committee on Open Government which, given that it would be false, would be yet another Class A misdemeanor? Or perhaps you are telling so many lies that it is becoming difficult to keep track. Perhaps you should organize your lies in a spreadsheet so you better keep track of them.

Please stop lying and stonewalling and turn over the BCS Survey immediately.

Thank you

Robert Cox

Managing Editor

New Rochelle’s Talk of the Sound”

UPDATE 1/11/16

On Jan 11, 2016, at 7:14 AM, RA, LEED AP Associate Architect of the New York State Education Department  Office of Facilities Planning sent an email on the new BCS portal:

“The process for submitting the 2015 Building Condition Survey (BCS) has changed from the 2010 Building Condition Survey. 

The 2015 BCS is accessed online via the NYSED Application Business Portal at http://portal.nysed.gov. 

The NYSED Application Business Portal is normally accessed by the school superintendent.  In order for school district architects/engineers to access the 2015 BCS, the school district superintendent must give entitlements to the other personnel.  The SEDDAS User Guide with information on how to give entitlements to others can be viewed in the portal. 

Please see the Office of Facilities Planning Building Condition Survey web page for  2015 BCS Instructions and answers to Frequently Asked Questions at www.p12.nysed.gov/facplan/BldgCondSurv.htm 

Questions regarding data entry should be directed to (518) 474-3906 or emscfp@nysed.gov with ?2015 BCS? noted in the subject line. 

Rosanne Groff, RA, LEED AP 

Associate Architect 

New York State Education Department

Office of Facilities Planning 

Albany, NY”

I called Rosanne Groff on the telephone and then followed up with an email:

On 01/11/16, Robert Cox wrote to Rosanne Groff, RA, LEED AP Associate Architect of the New York State Education Department  Office of Facilities Planning.

“Rosanne,

I am following up on our telephone discussion earlier today regarding your email below. The FAQ language (below) indicates that the BCS must be “conducted” by 11/15/15.

2015 Building Condition Survey

“The public school building condition survey (BCS) requirement remains in place and must be conducted by November 15, 2015.  The data submission deadline has been extended to June 30, 2016.”

The New Rochelle School District made public statements in early October that the New Rochelle BCS would be “fully completed” in mid-October and then claimed, including in its official bond referendum mailer, that a proposed $50 mm bond was “BASED ON” the BCS which clearly indicates the BCS was completed. Similar claims were made at school board meetings and bond hearings. This suggests that the New Rochelle School District was seeking to comply with the 11/15/15 deadline and was seeking to convey it had, in fact, done so.

I made a FOIL request for the BCS on 12/9/15, the week before the bond vote on 12/15/15 and 3 weeks after the NYSED deadline. That request, and a subsequent appeal, were denied on the grounds that the BCS existed but only in “draft form”. The use of the terms “draft” and “final” is a distinction without a difference when it comes to public records requests, according to an Advisory Opinion provided to me by Robert Freeman of the NYS COOG and filed with my appeal to Dr. Osborne.

Last week, on 1/5/15, after a school board meeting, Assistant Superintendent for Business & Administration Jeff White, approached me and went further, stating that he had not received ANY version of a BCS survey, not even a draft, and, separately, that he had received nothing at all from CSArch, the firm hired to conduct the BCS last summer.

Schools Superintendent Dr. Brian Osborne, addressing the board on 12/22/15 stated publicly that the BCS was due to NYSED in mid-January. You pointed out during our telephone conversation that due to delays opening a new BCS online portal the deadline to file 2015 BCS Surveys has been extended until June 30, 2016.

My concern is that Dr. Osborne and Mr. White, who are deliberately refusing to make the BCS public and lying about it in the process, may now use that extension to delay filing the BCS and thus attempt to continue their charade that the BCS report does not exist or exists “only” in “draft” form and thus continue to deny access to this public record.

The bond referendum on 12/15/15 failed. There are indications from the District that they may put the bond back up on 5/17/16. It is conceivable that that District could hold off filing the BCS with NYSED until well after a second bond vote and thus continue to stonewall on producing the BCS.

Given that failures to maintain facilities has been a serious health and safety issue in New Rochelle for years (2 ceiling collapse, buildings with little or no hear during heating season, roof leaks, electrical fires and more) these are non-trivial matters.

Osborne and White have both have done the same thing regarding a prior, unofficial, survey of building conditions performed in the spring of 2014 delivered to Dr. Osborne which they have both denied exists despite my having obtained invoices and other records which prove the unofficial survey exists. Dr. Osborne has implied that I am confused, that the only such report that exists from 2014 is a summary report produced using the CapProSoft software. Dr. Osborne and the developer of that software, Mike Orifici, claim that the CapProSoft IS the unofficial, survey of building conditions performed in the spring of 2014 delivered to Dr. Osborne in July 2014. This is demonstrably false. I have since obtained invoices from Southern Westchester BOCES that show the data entry work on the CapProSoft report in question was not even begun until September 2014, not completed until November 2014, and not published until March 2015 which flatly contradicts the claim that the CapProSoft report was delivered to Dr. Osborne in July 2014. It is an impossibility. Further, the CapProSoft report itself references a report from 2014 which can only be the unofficial, survey of building conditions performed in the spring of 2014 which Osborne and White claim does not exist but for which they paid $6,500 to Mike Orifici’s firm. If there is no such report, as Osborne and White claim, then they are by extension claiming they were defrauded by Mr. Orifici which would open him up to charges of falsifying business records and felony grand larceny.

The purpose of this email is to document with the New York State Education Department Office of Facilities Planning our exchange and make your office aware that school officials in New Rochelle have made numerous false statements regarding facilities in New Rochelle and either lied to voters in claiming their proposed $50mm bond was based on their 2015 BCS or lied to me and, more importantly, to the New York State Committee on Open Government. It is my understanding that Filing a False Written Instrument with a New York State agency is a Class A misdemeanor punishable by up to a year in jail.

Robert Cox

Managing Editor

New Rochelle’s Talk of the Sound”