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Water Authority hires lawyers at $400 an hour but won't say why

The Erie County Water Authority board hired the Phillips Lytle law firm on an "emergency" basis late last year, agreeing to pay its lawyers an hourly rate of $400 to $435 an hour.

The agency said only that the lawyers were needed because of "improper conduct" and "environmental issues."

Exactly what is this matter about?

The authority won't say.

How much is this costing the agency and rate payers?

The authority won't say.

The state's Committee on Open Government issued a legal opinion stating the agency has no grounds to withhold the information.

Erie County Water Authority awash in six-figure salaries

Authority officials disregarded the opinion.

"Nothing in the Advisory Opinion has caused the Board to reconsider its denial of your appeal," Joseph T. Burns, secretary to the authority, wrote in a letter to The Buffalo News.

He added in a statement that the legal matter the hired lawyers are working on does not involve personnel or public safety.

The Erie County Water Authority is a $73 million-a-year agency responsible for providing clean water to more than half a million consumers throughout the county. It raises its revenue from residential and commercial water customers.

But its reluctance to explain why it needs lawyers fits the agency's pattern of withholding information. Despite hiring a new public relations firm in 2015, at a cost of $60,000 a year, obtaining information on anything from public meeting agendas to summer water use is difficult.

The water authority's media policy regarding information requests states the purpose is to protect the public agency. Informing the public is not listed as a goal.

"This policy is intended to protect the interests and reputation of the organization, its employees, Commissioners, and customers, especially during crisis situations," states the policy posted in two places on the water authority's website.

Most recently, water authority Chairman Earl Jann refused an appeal from The Buffalo News to provide unredacted information related to the hiring of the lawyers for a "state of emergency" approved during a public board meeting in December.

Jann, a former town supervisor and pharmaceutical representative, has announced his intention to become executive director of the authority, a post that pays $145,000 a year.

Erie County Water Authority Chairman Earl Jann has refused an appeal from The Buffalo News to provide unredacted information related to the hiring of the lawyers. (Chris Caya/Courtesy of WBFO News)

"The Erie County Water Authority is open to all public scrutiny, especially regarding our water quality and other public health concerns," Burns said in statement for this story. "We follow the letter of the law on all these matters, without fail. We agree with the Committee on Open Government's analysis of The Buffalo News matter: a description of litigation strategy in a communication with legal counsel is clearly protected speech under attorney client privilege – a cornerstone that upholds the First Amendment to the United States Constitution."

Republican water authority chairman angles for $145,000 job

The three-page advisory opinion states that the information deleted by the water authority is unlikely to be privileged.

The Buffalo News noticed a board agenda item in November referring to a "declaration of an emergency" and the hiring of the Phillips Lytle law firm.

A reporter asked a water authority spokesman what the matter was about. He offered to find out but never did.

After a repeat request for information a month later, Sean Dwyer of Zeppelin Communications emailed: "I have been informed that is the Authority's long-standing practice (as well as the advice of their attorneys) that they are unable to elaborate on this item due to it involving ongoing or potential litigation. Hope this helps."

The News then filed a Freedom of Information Law request seeking information about the "state of emergency."

In response, the water authority a month later provided several documents redacted with black marker.

FOIL response from the ECWA

One is a retainer agreement letter from Phillips Lytle, which included a $400 hourly rate to business litigation lawyer John G. Schmidt Jr., who is close to local Republican leaders, and a $435 rate for another lawyer specializing in environment, energy and land-use matters. The letter references "Investigative Post Matter."  Investigative Post is a local, nonprofit, investigative journalism organization that produced a piece in November alleging that the water authority "cut corners" in its water testing for lead.

Another document was an emergency declaration for John Schmidt Jr. of Phillips Lytle to represent the authority regarding "improper conduct."

In each case, the exact nature of the matter was blacked out.

"The retainer agreement is a contract," said Robert Freeman, executive director on the Committee for Open Government, "and contracts between a government agency and a party outside of government are, and historically have been, public."

The fact that the matter appears to involve improper conduct and environmental issues is a matter of obvious public concern, said Joseph T. Giglia, general counsel for The Buffalo News.

"Why should we be left to guess what this issue is about if they're a public agency?" he said.

The Water Authority claims the retainer agreements and other documents were redacted because they fall under attorney-client privilege and intra-agency materials, which are exempt from state transparency laws. An appeal to Jann, the authority's chairman, was denied.

The Committee on Open Government issued a legal opinion citing extensive case law why a retainer agreement and other documents should not be redacted. Both those documents are unlikely to contain actual legal advice and do not count as inter- or intra-agency materials.

The opinion also states the water authority should not deny any information requested on the grounds that it is not in the water authority's possession, when the records requested may have been produced by an outside organization on the authority's behalf.

Committee on Open Govt opinion

The authority rejected the legal opinion in a brief letter.

"That being so, the board is, in my opinion, being close-minded and failing to recognize rights of access conferred by FOIL," Freeman responded.

Giglia, The News's lawyer, said he hopes water authority officials will reconsider their decision to refuse to provide the information that the public is legally entitled to know.

"The only way to preserve and maintain our right to documents that fall under FOIL is to take legal action in asking a judge to review the materials," he said.

Transparency has dogged the politically controlled public utility agency over the past year, despite more than doubling the amount of money spent on "public information" since last year and hiring of PR firm Zeppelin Communications, run by Republican strategist Michael R. Caputo.

In July, an Amherst water main break left more than 200,000 households with low water pressure. Democratic County Executive Mark Poloncarz announced a boil-water advisory and accused the authority of "incompetence" in getting information to the public and to other concerned government officials in a timely manner.

The authority since has adhered strictly to a media policy that requires all media requests, large and small, be funneled through the hired PR agency or through a FOIL request. Website information regarding public meetings also is limited.

Customer water use data used to be provided quickly and without problems by water authority administrators. But during last summer's drought, the authority did not provide any summer water use information for weeks, despite repeated requests from Buffalo News reporters.

The board meets in public twice a month, but posts no agenda information beforehand, only upcoming meeting times. Although information reviewed during the board's open meetings is considered public, the authority will often refuse to release some of it without a FOIL request, if then. A website link also exists for committee meeting minutes, but none has been posted this year.

Meanwhile, the amount of money budgeted for "public information" has increased significantly, from $74,137 spent last year to $179,940 budgeted for this year.

The authority has spent money to improve communication with customers since the the July water main break when neither public officials nor members of the public could reach anyone at the water authority because phone lines were overwhelmed. The agency now offers a text alert system and improved its social media presence. In addition, some advance board agenda information is provided to the media upon request.

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