Questions linger over no-bid dog control deal in the Falls

Apr. 24—When Mayor Robert Restaino's administration asked Niagara Falls lawmakers to approve a new animal sheltering agreement with a Grand Island provider last summer, it suggested the move was necessary to address an "emergency" involving the city's ability to care for stray dogs.

Critics of the contract continue to question why no bids were solicited prior to the Sept. 6, 2023 council meeting where lawmakers agreed, in a 4-1 vote, to pay The Pit Chic on Grand Island $20,270 per month to shelter up to 17 dogs, as well as $37 a day for any additional dogs, under a 16-month deal.

Critics maintain, months before the council vote that the administration had already settled on The Pit Chic as the preferred vendor for the contract, which, based solely on the per-month charge, totals $324,320.

Their main piece of evidence: Documents Pit Chic owner Kelli Swagel submitted to the Town of Grand Island on Feb. 17, 2023 — 201 days before the September contract vote by the Falls City Council.

Those documents, which were submitted to the town as part of a special use permit request from The Pit Chic, included a business proposal where Swagel indicated she secured an agreement for sheltering services in the City of Tonawanda and was "in negotiations" for a similar contract in the Falls.

"These contracts would generate an income of over $320,000 per year for The Pit chic aside from boarding and training services," Swagel's business proposal reads. "These generous contracts would allow The Pit Chic to offer more jobs and services to our community."

PUBLIC BIDDING AND EMERGENCIES

Under general municipal law, local governments are required to undertake competitive bidding for purchase contracts in excess of $20,000 and for public works contracts in excess of $35,000. Some exceptions apply, including contracts involving "professional services," an often-broadly applied classification that generally covers services such as accounting, legal or marketing.

General municipal law also allows for exceptions to competitive bidding amid "public emergencies," which are defined as "arising out of an accident or other unforeseen occurrence or condition that impacts "public buildings, public property or the life, health, safety or property of the inhabitants of a political subdivision."

The exception allows municipal officials to undertake "immediate action which cannot await competitive bidding or competitive offering, contracts for public work or the purchase of supplies, material or equipment."

WAS IT AN EMERGENCY?

In February 2022, the Niagara Gazette on a city council meeting during which Restaino told city lawmakers the administration was informed by the SPCA of Niagara that it would no longer entertain a long-term contract for animal control services with the city.

At the time, Restaino estimated that it would cost the city half a million dollars to "build a new (city-run) shelter." He also noted that any effort to address the city's animal control needs would not include the SPCA of Niagara and that there were no other shelters the city could "rely on" in Niagara County.

On Aug. 11, 2023 — one day before the final extension of the city's SPCA contract ended — the city, under the direction of Restaino's administration, entered into a Memorandum of Understanding with The Pit Chic" on the basis that it was the only "suitable replacement vendor" that was both a New York state registered animal shelter and an adoption facility capable of helping the city "avert the aforesaid emergency." The MOU expired at midnight on Aug. 31, prompting the need for council approval of a long-term agreement.

Former Falls Councilman Vincent Cauley, who was the lone council member to vote against approval of The Pit Chic's contract last September, believes the administration had ample time to seek formal bids for services from possible replacement vendors. Given the cost involved, Cauley continues to argue that it also had a legal obligation to do so.

"An RFP would have allowed us to vet vendors and get the right price and get the right vendor in Niagara Falls," he said.

RESPONSE TO CRITICS

During the council's April 3 meeting, Falls resident Tanya Barone, who has been an outspoken critic of the administration's decision to award a no-bid contract to The Pit Chic, played a recording she made while interviewing Restaino following an event on March 16.

In the recorded interview, Barone asked Restaino to explain how The Pit Chic came to know about the availability of a contract for animal sheltering services if the city never formally solicited any bids. In the recording, Restaino suggested it was from a combination of sources, including newspaper articles, social media posts and exchanges with the SPCA and "city people."

"I think it was just a question of seeing things," Restaino said, adding,

"There's nothing nefarious about it."

In speaking with Barone, Restaino said it "wasn't easy" for the city to fill its need for a new animal shelter provider. He said the administration did attempt to gauge interest from available providers but described that interest as "limited."

"Ultimately, we received an extension but by Aug. 31 we had to have a place to bring the dogs," Restaino told Barrone. "That was the emergency we were confronted with and that was the information we gave to the city council."

"I suspect that those who might view this in hindsight might think things could have been done differently," Restaino added. "We thought we made the best decision that we could."

Swagel declined the Niagara Gazette's request for an interview and the newspaper's offer to discuss matters related to the city's contract with her or her attorney.

In an appearance before the city council in March, she told city lawmakers she approached the Falls about a dog sheltering deal after entering into a similar arrangement with Tonawanda and after securing shelter certification from the state.

"It has been no secret that the Niagara County SPCA was eliminating its municipal contracts," Swagel said. "This was something I could help assist with based on my experience. I contacted municipalities to find out their needs, including, but not limited to, the City of Niagara Falls."

CRITICS' CONCERNS

Leading a group of vocal critics of the administration's agreement with The Pit Chic is Janine Gallo, the owner of a Buffalo bottle redemption center who last summer was in talks with Swagel to acquire a building in Niagara County for the purposes of developing a new animal shelter.

In recent months, Gallo has presented city officials with text message exchanges between her and Swagel, suggesting they show Restaino's administration and The Pit Chic were discussing plans to make her the city's preferred vendor weeks before the emergency request for the contract's approval.

As she has with city council members and representatives of Restaino's administration, Gallo provided the Gazette with a copy of a July 7, 2023 text-message exchange in which Swagel told Gallo she has the "NF mayor looking into parcels for us."

Another set of text messages, dated Aug. 1, 2023, which were also provided to the Gazette by Gallo, shows Restaino telling Swagel that city officials had a chance to review "projected budget numbers" and while there were some items the city would like to discuss, they were "minor."

"We think that if we can set a per dog/per day expense we can achieve a contract that we can get in front of the council," Restaino's message to Swagel reads. "We look forward to meeting next week."

During the city council's April 3 meeting, Gallo again encouraged city lawmakers to open up the process to other potential vendors, arguing that "black and white evidence" has been presented to show the contract should be voided.

"This is a contract that has enough just cause to cancel," she said.

Barone noted that, beyond paying The Pit Chic for housing and caring for stray dogs, the city agreed, as part of its contract, to purchase additional kennels and fencing for the facility, items she believes, as a private business owner, Swagel should be responsible to purchase herself.

"They had to publicly post an RFP to manage the ice rink and also ball diamonds," Barone said. "There are several things that had to get RFPs out there for to lease and run these facilities. Why would this have been different?"

DIFFERING COUNCIL OPINIONS

Current Falls Council Chairman Jim Perry, who was not a member of the council when the animal sheltering agreement was approved last fall, acknowledged the city did not solicit proposals from other vendors before hiring The Pit Chic. In investigating the matter this year, Perry said he was told by the city's legal counsel that the contract was awarded as a "professional" service.

Perry noted that there aren't many options locally when it comes to animal shelters and, with the Niagara County SPCA already ruled out, The Pit Chic was considered to be the best in a field of possible applicants, he was told.

"There was a lack of professional services that met the criteria at the time and they had to move forward with it," Perry said.

"I have to depend on what our attorneys say and they are telling me that it was valid. They are telling me it was legal," he added.

Councilman Donta Myles disagrees.

He questions the timing of the request for an "emergency" council vote given that The Pit Chic, in her business proposal, told Grand Island officials she had a deal in the works in the Falls last February — months before the September council vote.

"It shows that there was already some type of agreement before this whole emergency was brought to us," Myles said.

Myles said he still wants the city to "do business the right way" by inviting proposals from prospective animal shelter vendors. He said he'd welcome the current vendor, The Pit Chic, to participate in any such process.

"The absolutely biggest thing is how about we do business the way we do business," Myles said. "Let's make sure we are doing business the right way."

Myles sent a draft resolution calling for a new round of bids for city animal control services to Perry who indicated he's not interested. In an email to Myles, Perry said he thought it would be inappropriate for the city to pull a contract from anyone based on what he described as "unsubstantiated claims."

In an interview with the Gazette, Perry said he's satisfied with the opinion of the city's legal counsel that the process was legal and appropriate and that the city has a "valid contract in place" with The Pit Chic.

"There seems to be no legal reason to break that contract until the contract is up and then there will be an RFP put out," he said.