Our castle-like Historic Old Central High School building is as iconic and picturesque as any landmark here, on par with the Aerial Lift Bridge as identifiably “Duluth.”
So a sale of the nearly 130-year-old brownstone behemoth, an architectural treasure and wonder, is a big deal to Duluthians. How many generations of students were beckoned to classes by its commanding 210-foot clock tower? How many crowded its halls, moments there etched into their memories and into their very beings?
In October, the Duluth School Board entered into a purchase agreement with Saturday Properties of St. Louis Park, Minnesota. The developer and its architect already have ambitious plans and attractive renderings at zenithdchs.com of a makeover that includes a cafe, gym, public spaces, and 121 apartments, 10% of them rent-restricted for households at 60% of the area median income.
As impressive and reassuring as the plans are, what’s the sale price? And what sorts of contingencies are included in the sale agreement? Such contingencies typically are written in to protect a developer should financing not come through or should something else go south. Could Duluth school district residents and taxpayers be left holding the bag?
The public wants to know such details — and has a right to know them. This is our community. These are our tax dollars. The sale is a matter of deep public concern and public interest.
But we don’t know such details. The school district refuses to make public the purchase agreement.
According to an email chain acquired by the Opinion page, News Tribune education reporter Adelle Whitefoot formally requested, in writing, a copy of the purchase agreement on April 7. The district responded the same day saying it would not release the document until the sale closed.
Meaning when it’s too late for the public to object or even weigh in. In secrecy is not how transparent government is supposed to operate. It’s not how we want those representing us to act.
Whitefoot again requested a copy of the purchase agreement on April 13, this time citing the state statute indicating the agreement is “public data.” The district responded eight days later, “respectfully denying” the request. The district cited its “interpretation” of Minnesota’s open-meeting law to justify blocking public access to the document.
But, as Whitefoot countered, that statute “governs the ability for public bodies to go into closed session for discussions and addresses access to meeting records. It does not classify the underlying data that are discussed at those meetings.”
In other words, the district “is not in the right” here, according to Mark Anfinson, a renowned expert in Minnesota on public access, open meetings, and the First Amendment.
“Nothing in the open-meeting law’s language classifies the purchase agreement as private,” Anfinson told the Opinion page this week. “Unless a statute specifically classifies a government record as private or confidential, the default rule is that it is public. … There’s no statute that specifically classifies as private an executed final purchase agreement, even if a closing hasn’t occurred. The reason there isn’t something that does that is once you have everybody’s signature on a purchase agreement, it’s a binding contract. The closing is a formality.”
The district’s position, Anfinson further said, reflects a “common (and) genuine lack of understanding of the law and sometimes a cynical evasion of the law. … I would never accuse the school district or its staff or its attorneys of deliberately thumbing their nose at the law, but the open-meeting law is not a data-classification statute.”
There’s no denying the intense public interest in and potential controversy over the sale of Old Central. With taxpayers’ interest and dollars at stake, and with a beloved public asset on the line, as impressive and reassuring as the developer’s plans may be, the community has a right to know the sale details. A legal right. In the name of transparency and good open government.
And we have a right to know now, before the closing, while meaningful input can still be offered.
The News Tribune and its education reporter made a “request” for the purchase agreement for Old Central. Residents of the Duluth school district can go further by insisting on seeing the document and its details — before they can’t be changed.
'Get it done before anybody can have input'
“It’s not at all uncommon for the motivation for trying to block public access to these documents before closing, especially in cases where there may be some controversy surrounding (a sale, to be) that the officials are very fearful that once the contract terms are public there will be a strong wind of public objection that will start blowing and will disrupt the carefully laid plans of the public officials. It happens quite frequently in the context of teacher bargaining, where a school board will give teachers a deal much more generous than many of the members of the public think it should. … They like to get it done before anybody can have input, which is problematic.”
— Lawyer and college instructor Mark Anfinson, a leading authority in Minnesota on public access, open meetings, and the First Amendment, in an interview this week with the News Tribune Opinion page