Sherwin-Williams, as it designs and builds what it says will be a $300 million, 1 million-square-foot global headquarters on Public Square in downtown Cleveland over the next several years, has been granted sweeping authority to determine what, if any, information about the project will be shared with the public.
The development agreement
between the paint and coatings corporate giant and the City of Cleveland, which was approved Tuesday morning by Cleveland City Council's Development, Planning and Sustainability Committee, (and is expected to be passed by the full council on March 23), stipulates that Sherwin can designate any and all documents related to the project "CONFIDENTIAL" when they provide them to the city. The city, then, can deny them to the press or any concerned citizen making a public records request.
The key provisions in the development agreement are of course the financial incentives, which have been previously reported: The city will grant Sherwin a 30-year non-school Tax Increment Financing (TIF) package, which amounts to a 40-percent tax abatement. Sixty percent of the new building's property taxes will go to the Cleveland schools, but the remaining 40 percent, which would ordinarily go to the city's general fund, goes back to the company to invest in the construction of their facility. The city will also provide a $13.5 million construction grant — moving expenses, essentially, — and provide a 50-percent rebate on income taxes generated by new jobs, capped at $11.5 million over 15 years.
But the 34-page agreement includes a number of other provisions, most of which involve the city agreeing to make "good faith efforts" to do exactly what Sherwin demands. Take for example:
The City agrees to use its good faith efforts to work with the [Greater Cleveland Regional Transit Authority] and [Sherwin-Williams] to relocate bus and trolley stops to location(s) proposed by the Company, based on the final site plan of the Project and taking into consideration the location of entrances to the Project and any parking garage at the Project Site, such that buses and trolleys will complement and maximize the Company’s operations at the Project Site.
If requested by the Company, the City will use its good faith efforts to introduce and support legislation subject to passage by City Council that grants and/or obtains easements and other rights of way on, over or under real property in which the City has interests, or by other means, pedestrian connections (ground, skyway above-ground, underground or some combination thereof) within the Project Site and between the Project Site to Tower City.
In virtually all measures, the city merely agrees to do whatever it can to facilitate or enhance the project in ways that Sherwin-Williams deems necessary. The unmistakable impression is that the city will be at the company's beck and call. The city has even agreed to hire or designate a "Project Manager" to work specifically as a liaison on the project. And per the agreement, the project manager will "use good faith efforts to facilitate and expedite the permitting and site development process within the statutory and administrative authority of the City." Yes sir! Anything you say sir! Right away sir!
The agreement was crafted, council was told, by attorney Teresa Metcalf Beasley and a team at the McDonald Hopkins law firm. If the above provisions don't demonstrate the lopsidedness of the agreement, the section on public records sure does.
Built into the agreement is Sherwin's absolute power to control the flow of information related to the project. The agreement states that all records Sherwin provides the city can be confidential if Sherwin says so. They literally just have to mark them "CONFIDENTIAL."
The upshot is that if local reporters or other citizens request information that has been so designated, the city will issue one of its go-to blanket denials. "The information is proprietary," was the typical response when reporters sought information on the Amazon HQ2 bid. More of the same can be expected here.
But even if material related to the project has not
been explicitly designated as confidential, the agreement is structured to allow Sherwin to dictate what information is provided to the media.
In the event of a public records request, the city has agreed to give Sherwin "prior written notice sufficient to allow the company to seek a protective order or other remedy." The city has agreed to disclose only the bare minimum required by public records law and may seek "confidential treatment" for any information that Sherwin decides is CONFIDENTIAL. It's unclear if Sherwin has the authority to declare information confidential after the fact, (i.e., after a records request has been made), but it sure seems that way.
Moreover, per the agreement, "the City will use reasonable efforts to cooperate with the Company’s efforts to obtain a protective order, restraining order, or other reasonable assurance to maintain the confidentiality of Confidential Information, and to resist or refuse disclosure thereof."
"Confidential," remember, means whatever Sherwin-Williams says it does, so the city may be effectively agreeing to resist and refuse the disclosure of any information
related to the project. This of course flies in the face of public records law and grants a private company ultimate authority to suppress information and veto its dissemination on a project where millions of public dollars are being invested.
And yet, the vibe at Tuesday's council committee meeting was one of overflowing gratitude and delight. This should be no surprise, given the city's standard deference to business interests and the consensus on economic development incentives of this sort: Cleveland had to
provide these incentives, the automatic thinking goes, in order to retain Sherwin-Williams and its 3,138 jobs in Northeast Ohio. The city's economic development director David Ebersole even celebrated the incentives as prudent investments, estimating that the city would make at least $2.50 for every dollar it contributed to the project.
The public will have no way of verifying that math for decades, but suffice it to say these incentives are only investments
in a warped Orwellian sense.
They are ransom payments.
Nevertheless, the public can expect fulsome remarks of the sort we heard Tuesday, as when Council President Kevin Kelley said the presentation and briefings had been so thorough that he couldn't think of a single good question to ask the presenters from Sherwin-Williams. Councilmen Anthony Hairston, like his colleagues, was overjoyed that Sherwin was so passionate about "making the schools whole."
Sherwin's deputy counsel had said that corporate responsibility and volunteerism were both core values at the company and that providing $4 million per year to CMSD was "something that was very important to us," a ludicrous statement that passed without comment. (Those are taxes, first of all, not charitable donations. And one wonders how important the schools would be to Sherwin if the city had offered a full TIF.)
Councilman Charles Slife and others praised Sherwin for their commitment to Cleveland, their commitment to responsible hiring practices — they would "strive to meet" the requirements of the Fannie Lewis law, Sherwin said, though no hiring mandates are included in the development agreement — and celebrated the city's incentives as "good economic development."
Everyone seems pleased as punch to take them at their word. And now, thanks to the secrecy guaranteed in the city's agreement, their word will have to be good enough.
Sign up for Scene's weekly newsletters to get the latest on Cleveland news, things to do and places to eat delivered right to your inbox.