This coverage is made possible by grants from the Central Corridor Funders Collaborative and The McKnight Foundation.
How MPR’s legal misadventure is driving up the cost of LRT line
Central Corridor Project Office
LRT construction on Cedar Street in front of MPR's building.
Executives of Minnesota Public Radio are accustomed to depositing checks. Their annual “pledge weeks” seem to roll around as frequently as Red Cross blood drives and often sound just as desperate.
However, very soon MPR will have to write out a sizable check – for $55,000 – to the Metropolitan Council to reimburse the agency for expenses in connection with MPR’s unsuccessful lawsuit involving the Central Corridor light-rail transit (LRT) line.
To put that number in perspective, it amounts to more than 900 new MPR memberships at the $60 level. The phone lines no doubt are now open!
The $55,000 figure no doubt is dwarfed by the amount of membership money spent by MPR on its lawsuit, which was dismissed late last year by Ramsey County District Judge Elena Ostby. It also pales in comparison to the nearly $1 million in taxpayer costs incurred by the Met Council in defending the lawsuit.
(Disclosure: From 2003 to 2011, I was the Metropolitan Council's director of public affairs. See my full professional bio here.)
This legal misadventure graphically illustrates one of the reasons that public infrastructure projects often escalate in cost and drag on long past their intended completion dates (think Stillwater bridge).
Former Met Council Chair Peter Bell frequently commented on the number of state and federal laws that could be used by opponents of public projects to impede their progress. Bell frankly doubted that the interstate highway system could be completed under today’s legal framework.
One of three suits
The MPR lawsuit was one of three brought against the Central Corridor project, along with suits filed by the University of Minnesota and groups representing the St. Paul minority community. All have now been resolved.
This was hardly unique to the Central Corridor project. The Hiawatha LRT project was the target of eight lawsuits, all of which ultimately were unsuccessful.
But MPR’s case was particularly weak. Here’s why:
In April 2009, MPR and the Met Council signed a 10-page memorandum of understanding in which the council agreed to install a floating track slab, or its equivalent, “capable of continuously providing vibration mitigation satisfying the criteria” specified in the document.
The agreement said the council would not commit to “a specific solution” at that time because final engineering was not yet underway.
On the recommendation of project engineers, the council ultimately opted for a rubber-supported floating slab that has been widely used by other rail projects to protect sensitive facilities from vibrations.
It is the same type of slab being used to protect University of Minnesota research laboratories located near the LRT alignment on Washington Avenue. Cost estimates at the time showed that a rubber-supported slab would be about 30 percent less expensive than a steel spring-supported slab, which MPR sought.
So in February 2010, MPR went to court, essentially trying to rewrite the memorandum of understanding it signed to require a steel spring-supported slab.
In the months that followed, MPR’s lawyers undertook extensive discovery efforts, compelling the Met Council to copy and provide 58,000 pages of documents. The council also was forced to hire several consultants to “independently analyze the rubber-supported floating slab and rebut the errors of analysis by MPR’s experts,” according to court documents.
Suit dismissed
But none of this changed the plain language of the agreement that MPR and the council had signed, as Judge Ostby ultimately concluded.
Last November, Ostby granted the council’s motion for a summary judgment dismissing MPR’s lawsuit, saying “there is no evidence that the Met Council has breached the mitigation agreement.” In her ruling, Ostby also ordered MPR to reimburse the council for “reasonable costs” incurred in connection with the lawsuit.
The council initially submitted an itemized claim for $136,882 in costs, primarily for the independent experts and document copying. But MPR objected to that amount, and the council ultimately settled for $55,000.
However, the taxpayers will have to pick up the entire tab for the Met Council legal bills from Lockridge, Grindal and Nauen – a hefty $775,914.
MPR’s legal expenses presumably were in the same neighborhood. It was represented by Leonard, Street and Deinard, a prominent Minneapolis firm. MPR declined last week to reveal how much it spent on lawyers and consultants.
Bill Gray, an MPR spokesperson, said the suit was “based on the advice of multiple engineering experts” that the proposed design of the floating slab was inadequate. “We take our obligation to protect the investment made by the public in the MPR Broadcast Center very seriously. That was our main goal in filing the lawsuit.”
Under the original agreement with MPR, the Met Council still will install a 700-foot-long floating slab on Cedar Street to protect MPR’s studios and the two churches to the north. The cost of the slab has not yet been determined, according to project staff.
In addition, the council will pay for $475,000 in acoustical upgrades to three MPR studios to insulate them from any LRT noise.
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Comments (21)
Has MinnPost
opposed any major infrastructure projects? If they have not I may pledge.
Conflicted?
I shouldn't have to click on your name and read the bio to find out that you were until very recently employed by one of the 2 parties in the dispute you describe (Met Council). That type of conflict should be disclosed prominently in the text of the piece; or better yet, someone with no conflicts should write it (perhaps not feasible given staffing-- but the disclosure certainly is).
How about this-- "Readers should be aware I was until recently employed by the Metropolitan Council, but I no longer receive any salary or other support from them."
Oh, and this:
"The spam filter installed on this site is currently unavailable. Per site policy, we are unable to accept new submissions until that problem is resolved. Please try resubmitting the form in a couple of minutes."
is annoying...
Read more thoroughly
Yeah, I agree the spam filtering thing was annoying. It was a glitch, though, and it's fixed.
As far as disclosure goes, there was a big parenthetical that should have made it obvious that Mr. Dornfield was closely related to the project. (Disclosure: From 2003 to 2011, I was the Metropolitan Council's director of public affairs. See my full professional bio here.) The clicky bit only provided more details.
This isn't a conflict.
That being said, I thought the piece was clearly written by someone suffering from tunnel vision. Yeah, MPR's lawsuit appears to have been a mistake. But the tone of the article blames MPR for driving up the cost of the project with a frivolous lawsuit. If, indeed, it was frivolous, then the court should have awarded full costs to the winner. It didn't, so it suggests that the whole story isn't presented here.
I take back my comment re the disclosure
It appears as though that big parenthetical didn't get published with the article. My bad.
Confused
I'm rather confused by the article. Back when he was the spokesman for the Met Council -- an odd fact to leave out of a news story, isn't it? -- Dornfeld noted the existence of $144 million for a contingency fund for unplanned expenses on the line. In the above article, he notes a 775k legal expense the Met Council took on. When he announced a deal between the Met Council and the U of M on behalf of his former employer, Dornfeld said the expenses there would run about $33 million.
This leaves about $111 million unaccounted for before these unplanned expenses drive up the cost beyond that indicated as a budget for the Central Corridor line.
Where did that other $111 million go?
hateful tone aside...
...I'd just like to point out that you rag on MPRs fund drives while this article sits under a fund drive banner for MinnPost.
tone ...
For what it's worth, I don't think the story is criticizing fund drives, but how that fundraised money was used.
I'm glad we added a conflict-of-interest disclosure and sorry it came after publication.
snark
Sure, I can see that. But the 1st and 3rd graf are dripping with snark about fund drives. Just thought it was funny in the context that the article was placed right next to a fund drive plea from MinnPost.
"For what it's worth...."
"....I don't think the story is criticizing fund drives"
Well, it certainly talks about fund drives in a snarky way, doesn't it? "Their annual 'pledge weeks' seem to roll around as frequently as Red Cross blood drives and often sound just as desperate."
Disclosure added
Several readers have correctly pointed out that the article itself should have disclosed Steve once worked for the Met Council (if you click on his name, his bio has this information). We’ve added the disclosure to the story.
Nothing sacred about MPR
As per my personal obsession I have to point out that Peter Bell managed to get the Twins stadium built with $300 million public dollars, maybe that's just because it WASN'T public infrastructure.
As to the article at hand, there's no denying that MPR blew a million bucks on a dismissed lawsuit over mitigation's that were already in place and sufficient. Almost by definition this was poor judgement regardless of where Mr. Dornfeld used to work. It sounds to me like only 20% of MPR's programming is produced their studio anyways, so I don't know what they're worried about to begin with, a little jiggle in the studio might make the shows more interesting.
This lawsuit was reason # 27 why I gave no money to MPR last year. I don't support non-profits that file bogus lawsuits, bully low power radio stations, and over-pay their presidents. And by the way, the 70's called, they want their programming back.
The real jiggle in this case...
...is MPR gettin' all jiggy.
The cost of NIMBY
I already knew Steve had once worked for the Met Council, but the version I read already had the disclosure. No harm, no foul.
What’s “right” frequently depends upon whose ox is being gored. As a former planning commissioner, I’ve seen plenty of instances of NIMBY sentiment, and the consequence – whether the proposed project was public or private – was, far more often than not, to increase the cost of whatever was being proposed.
Sometimes, the NIMBY sentiment is justified, sometimes not. In this instance, I vaguely recall – I’d just moved here – that MPR wanted the whole line rerouted, which seemed unreasonable at the time, even to a newbie, but I had no inkling of the process that led up to the route selection, and still don’t, so perhaps the initial complaint was justified.
Justified or not, Bob Collins raises a *very* interesting point regarding the existence of a sizable contingency fund. If that contingency fund still exists, it should easily cover the cost of this litigation. If it no longer exists, Mr. Collins’ question seems entirely appropriate: Where did that other $111 million go?
Full Disclosure
Interestingly, I raised the issue of transparency and disclosure when MPR was doing stories (some of which had a negative tone) on the Central Corridor project without noting the lawsuit. News Director Laura McCallum promised to add disclosure to future stories, and they promptly followed through.
It was refreshing to see a prompt and positive response from MPR when I raised the issue.
The Victor as the Reporter?
Disclosure aside, an article of this nature should not be written by the victorious party to a lawsuit, and passed off as an unbiased news story. Given the amount of fees spent in this case, I am sure there were two sides to this story. Did the Met Council makes oral representations to MPR about the vibration mitigation methods they intended to use? Was the wording of the "memorandum of understanding" ambiguous? I find it hard to believe that MPR would have proceeded to challenge the selected mitigation method without some strong reasons. The fact that the Judge ultimately sided with the Met Council does not mean that the challenge was frivolous, unfounded, or not warranted. The story also has a strong undercurrent suggesting that citizens (individuals, non-profits, companies, etc.) should never raise a challenge to the nature, extent, or methods of governmental projects. Wow. The laws allowing those challenges are there for a good reason.
Another author would be better
so that the bias we all see in this piece would go away.
We can see the bias in the fact that he mentions the U of M's resistance to the LRT line. But he brushes it aside--one, there was a settlement. Then, two, the U has been very expensively moving its "sensitive" research labs away from Washington Ave. they simply are not compatible with the LRT line, whatever floating platforms the Met Council proposed. They're not enough to protect the research. he doesn't mention that. Damage, expensive damage, was done to the U by this line, and folks like this reporter insisting that the line go right by those labs.
So MPR defended its enterprise and that, too, cost lots of money. So?
Not a splendid article, folks.
MPR lawsuit
A couple of responses:
1. I have never tried to conceal my eight years of experience at the Met Council. Until the redesign of the MinnPost website, my bio was at the top of the page with every story I wrote. I would point out that I spent nearly 40 years as a newspaper reporter and editor, nearly half of them writing about regional planning, transit and related issues.
2. I have been writing for MinnPost about regional and urban issues for nearly a year, drawing upon this experience. If I had not written this story about MPR's lawsuit and its fiscal impact, it would not have been written by anyone.
3. In response to Paul (above), former Met Council Chair Peter Bell had nothing to do with securing public funding for the Twins stadium. That was Twins executive Jerry Bell (no relation).
Steven- nobody suggested you
Steven- nobody suggested you "tried to conceal" your Met council affiliation. I did have an issue with this very pro-met council piece not having a prominent disclosure about your connection to that organization.
There is a very big difference between trying to conceal, and disclosing. I don''t try to conceal my birthday, but it's not readily available knowledge. If it's important, it should be disclosed, not just "not concealed."
Even if your bio was still displayed on the same page, that wouldn't really be disclosure, since many people zero in on the story, and ignore the various banners/boxes/ads around it. If you have a real conflict, and in this case you do, it belongs in the story, where readers can't miss it-- which is clearly what the editor believed, in retrospect.
I have been puzzled all along
by the assertion that the LRT line would be "too noisy" or disrupt sensitive laboratory equipment when heavy automobile traffic--which is very loud, as anyone who has ever lived next to a busy highway knows-- does not.
Conflicted
If you want to talk about conflicts, how about a non-profit (MPR) that is partially publicly funded using part of that money to sue the very government that provides the funding.
I am sick and tired of having my tax money used to sue myself. I would have been very willing to listen to the occasional rumble of a light rail line during an MPR show.
It's time to quite providing MPR with any more public funding.
I'm a frequent MinnPost
I'm a frequent MinnPost reader, and absolutely love the content, but rarely comment. After reading the lede, I thought about logging in for the first time in a while to comment- it sounded like something from Gawker. By the time I got through the story, I was very disappointed by what seemed like unnecessary bias and sloppy reporting. This is not the MinnPost I know. When I got to the comments and realized that somehow I had skipped over the disclosure, I felt totally cheated by one of my favorite news sources. I'm kind of heartbroken that this story was written and published. What MPR did was annoying, but Steven Dornfeld is an entirely inappropriate person to be writing about the issue, and MPR's "desperate" fund drives are completely irrelevant.