Fair official says contract scoring was changed only once, documents shredded

The chief administrative officer at the state agency that runs the Del Mar Fair testified that she changed her scoring evaluations for a potentially lucrative contract for a private company to run the midway only once — not twice, as two other employees testified — and then shredded her original scoresheet.

Melinda Carmichael, who is the No. 2 staff person at the district, said in a deposition taken in a lawsuit filed by Talley Amusements, the company that did not get the contract , that any changes she made were “very minimal,” and that she could not recall exactly what scores she had changed in the evaluation.

She also testified she was not instructed to change her scores by Carlene Moore, the chief executive for the district. That contradicts testimony from two retired employees who testified earlier; they said Carmichael’s scores were changed after Moore was told Talley’s proposal had scored the highest overall.

One employee testified that, after looking over the scores and seeing Talley had won, Moore said that “we might need to change some scores. “ A second employee testified that Moore took Carmichael’s scoring sheet to her office, and then that employee later got a new sheet with the scores in the “safety” category changed. She also said the scores were changed a second time after that.

Carmichael, however, related a different sequence of events. She said she was the one who initiated the scoring change.

“As I recall, I came across Carlene, stopped by, to her office for something and I saw her scoring the scoresheets,” she testified. “And I said probably something jokingly, “You’re still scoring that?” And she goes, “Yeah, I’m taking another look at a few things.” And I said “Oh, we can go back and take another look?” And she said, “Sure, if you want to.” And I said, “Okay, I think I will.” And that was the extent of it.”

She said she did not remember if she raised or lowered a score for Talley and she was “trying to ensure that I was scoring to the best of my ability”.

When John Moot, the lawyer for Talley, asked her where the original scoresheet she had changed was, Carmichael said, “I’m sure that’s shredded.” She also said that other scoresheets, apparently drafts she worked on while reviewing the proposals, were also shredded. She said she routinely shreds “most things of a confidential nature.”

When Moot asked if she “personally shredded” the scoresheet Carmichael responded, “I personally shredded all of the prior documents for that, yes, because they were no longer relevant.”

Carmichael’s deposition came in a lawsuit Talley filed after a competing company, Ray Cammack Shows or RCS, was declared the winner of the competition for a potentially five-year contract to run the midway games and rides at the fair in 2021.

After RCS was declared the winner Talley filed a formal contract protest. But eight days after that was filed the district canceled the 2021 fair, citing COVID-19 concerns. Instead a smaller program called Home Grown Fun was put on with a handful of games and rides.

Months after that the district again advertised for a master operator. This time only RCS submitted a proposal and a few weeks ago the district awarded them the contract for the upcoming 2022 fair. Talley did not bid.

Among other things, the company contends it was the rightful winner of the 2021 contract, should now be the one providing services to the district and that year’s fair was cancelled because it was going to win the contract. In response the district has said the 2021 fair was cancelled because of the pandemic, not because of favoritism, and that the contract Talley is suing about was never formally entered in to because of that cancellation.

A San Diego Superior Court judge has agreed and declined to issue a temporary restraining order blocking the district from approving any master midway operator contracts.

In a statement Moot said he was shocked by the shredding of documents related to the contract. “The number two in the organization changes the score of an $80 million contract to make the loser the winner and shreds the evidence. Where in America can you still have a job after doing something like this?”

Government agencies are required to adopt rules for retaining records and those rules can vary by agency. David Loy, the legal director for the First Amendment Coalition, said while some documents can be exempt from public disclosure, deciding a record is confidential does not mean it can be destroyed.

“I can’t believe the mere fact that a document is deemed ‘confidential,’ standing alone, can justify destroying it at will at any time,” he said. “Whether a document is exempt from disclosure is a very different question from whether it must or should be retained.”

The district said in a statement that Carmichael’s deposition made clear that Moore did not tell her to change scores, and that Carmichael testified that she scored Talley low on its safety plan for running the fair amid the COVID-19 pandemic. The statement also noted she downgraded Talley for not complying with a requirement to provide references from “three separate fair organizations.”

The company provided references from one fair for three different years, as required for that contract. It was the succeeding contract, the one Talley did not bid on, that required three separate fairs to provide a reference.

Moot pointed to sections of the formal Request for Proposals sent out for the master operator contract which said proposals from bidders are considered public information, and a second which says, “All proposals, evaluations and scoring sheets shall be available for public inspection at the conclusion of the Committee scoring process and announcement of intent to award, or cancellation of the RFP.”

The district did not directly address the shredding issue in its statement, saying that Carmichael “disposed of her drafts” after the scoring was complete.

“The 22nd DAA retains public records in compliance with applicable statutes, rules and regulations, and responsibly disposes of items that it is not required to maintain in the ordinary course of business such as drafts or other scrap paper,” the statement said. “This is a common business practice and, like most companies, non-profits, and government agencies, we contract with an outside company for shredding services to protect confidential information and to promote sustainability through recycling.”

The statement noted that scores “routinely change throughout the evaluation process” and scorers are encouraged to make copies of scoresheets to use as working drafts.

The contract at issue is the centerpiece of the district’s efforts over the past several years to put midway operations under one company, instead of having numerous contracts with individual ride and game operators. That was the system in place for decades but in 2018 the district said having one operator would be more efficient and less burdensome.

In her deposition Carmichael said she changed scores because “it’s part of the instructions that you can.” Carmichael and others, including Moore, scored the technical part of each proposal— the nuts and bolts of how each company would run the midway. A second part of the evaluation covered the financial aspect, including how much revenue the district would receive.

Moot has said under Talley’s proposal the cash-strapped district was to receive 90 percent of the revenues the first year and lower percentages each year thereafter. He has contended that overall the fair would get $9 million more over the life of the contract than it would under the RCS proposal.