Lynchburg News & Advance, July 31, 2005

Virginia's Public Private Education Facilities and Infrastructure Act, PPEA for short, is gaining steam statewide even as more questions arise about just how much the public has a right to know about the process.

As it is currently interpreted by localities around the state, PPEA essentially allows them to consider matters of public policy, such as "adverse social, economic, and environmental impacts," in secret.

That's not right, and the public ought to be protesting. The problem is, PPEA is so complicated that even the localities often rely on the contractors, lawyers and investors who hope to benefit from the project for guidance.

PPEA, and its similar but not identical state law for highway projects, the Public Private Transportation Act (PPTA), are the likely method by which many of the major state projects of the future will be built.

In short, both laws allow the state and localities to "partner" with private contractors or investors to build public projects.

A big selling point of the PPEA bill when it was passed by the General Assembly in 2002 was that it would allow private investors to finance public projects, thereby saving the state and localities money. Sounds good.

But a part of the bill that was overlooked when it was passed also means that state procurement laws, which allow a great deal of secrecy, trump the Freedom of Information Act when it comes to these projects. Sounds bad.

The citizens of Bedford County experienced this firsthand last year when their School Board held 14 closed meetings to discuss competing proposals for a new Jefferson Forest High School.

That project didn't involve any private financing. The School Board was using PPEA in hopes of reaching a better deal for a better school than could have been done through the old open-bid process.

Last week, the Virginia Board of Education held a public hearing on plans to consolidate the state's two schools for the deaf and blind, then met in an hour-long closed session, emerged, and voted with no discussion to accept one of two proposals.

The Virginia Department of Transportation, to its credit, does not keep the proposals it receives secret, posting them on its web site.

It's a different story with the Virginia Information Technologies Agency. That group, which handles the state's huge information technology operation, says it plans to keep the proposals for overhauling its system secret.

These contracts are worth perhaps billions of dollars, and involve about 1,200 state employees, according to the Richmond Times-Dispatch.

Don't look for an exact figure on the cost, because that will be kept secret until the deal is done.

PPEA allows several contractors to submit competing proposals for a project. The state or locality then negotiates with one or more of the contractors in secret to come up with a winning proposal.

According to the current interpretation of the law, the state or locality is not required to announce the amount of the proposal, or anything else about it, until the money to pay for it must be appropriated. That's hardly keeping the public informed.

The proposals themselves are very comprehensive and include far more than just proprietary information about the contractor's private financial records.

For example, the state guidelines for PPEA proposals call for the contract to "identify any adverse social, economic, and environmental impacts of the project" and to "describe the anticipated significant benefits to the economic condition of the public entity and whether the project is critical to attracting or maintaining competitive industries and business to the public entity of the surrounding region."

Sounds like something that could influence or set public policy, right? Who knows, since the proposals aren't made public until it's too late for the public to have a say.

Some folks, including Gov. Mark Warner, are trying to shine a spotlight, or at least a flashlight, on these secret dealings.

Warner wants the big information technology deal opened up.

"The governor expects VITA to be as forthcoming as possible within the bounds of protecting proprietary information and the state's negotiating advantage," his spokeswoman said.

And a Virginia Freedom of Information subcommittee is looking into possible changes to PPEA that would require more disclosure and set up some guidelines for the localities to follow.

Central Virginia's legislators ought to give close and careful consideration to what the governor is saying. They ought to vote in favor of any proposals that come before them in the 2006 session that would let the taxpayers know how their money is spent and what their government is doing.