Wednesday, April 17, 2019

Legal Questions Remain As County Admits All For Transportation Gave "Oversight" Committee Overreaching Powers


Tampa, Fl
From: Eye On Tampa Bay
Posted by: Sharon Calvert


Legal questions remain about who has the "Rightful Authority" to appropriate All for Transportation's $16 Billion tax hike proceeds for 30 years. Now the county and the agencies receiving the tax proceeds are admitting there are big problems with AFT's tax hike charter amendment.

A
ll For Transportation (AFT) touted in their $4 million marketing campaign that the AFT $16 Billion tax hike was keeping "Political Hands" aka duly elected officials out of their tax hike cookie jar. AFT sent thousands of mailers to voters with that message.
All for Transportation Mailer

To ensure "political hands" were kept out of the $16 Billion AFT tax hike created cookie jar, AFT appropriated and earmarked the tax proceeds for 30 years and created their "Independent Oversight Committee" (IOC). AFT empowered the IOC, who are unelected appointees accountable to no one, with enumerated powers specified in AFT's 5 page tax hike charter amendment.

AFT gave the IOC ultimate approval/disapproval authority for all projects funded by the tax proceeds for 30 years. AFT created the IOC to be a decision making committee with powers of approval, disapproval and suspension of funds. The misnamed IOC has far greater powers than an oversight committee that just reviews, monitors, recommends, reports and audits.

The county and other agencies receiving the AFT tax proceeds know there are issues with AFT's charter amendment and the IOC.

Commissioner Sandy Murman admitted at the February 21 BOCC Workshop the AFT tax hike Puts County Between a Rock and a Hard Place.

At the February 1 HART Board meeting
 HART attorney David Smith told the HART Board that he had spoke the day before with County Administrator Mike Merrill, County Attorney Christine Beck and the county's outside council. Smith stated "he had recommended having a provision that makes BOCC the appellate body of IOC’s decisions, which will give the BOCC the rightful authority and provides elected review of an ultimate decision."

Smith's recommendation indicates he knows there is a problem with the overreaching powers AFT gave the IOC. 

But nowhere in AFT's 5 page charter amendment does AFT provide any ability to over rule or appeal a decision made by the IOC. As AFT advertised and marketed, AFT clearly intended they did not want "political hands" in their tax hike cookie jar. That is why AFT specifically gave the IOC ultimate decision making powers for all projects funded by the tax for 30 years.

Hillsborough County staff, including the County Administrator Merrill and County Attorney Beck, took Smith's recommendation and created the Transportation Sales Surtax Interlocal Agreement
. The Agreement was an agenda item at the April 3rd BOCC meeting requesting the commissioners approve the Agreement.

An Interlocal Agreement is required to distribute the proceeds but this Agreement includes a request that the IOC should incorporate in its by-laws "a process to address any potential disputes between an Agency and the IOC, including an appeal to the Board of County Commissioners of the County."

This request confirms all the agencies signing the Interlocal Agreement to receive the AFT tax proceeds agree there is an issue with the overreaching powers AFT gave the IOC.

However, this is just a process/procedural request and may have no legal binding on the IOC of today or any future IOC. AFT's charter amendment states the IOC can adopt by-laws and procedures but those process/procedures cannot be inconsistent with the charter which gives ultimate decision making authority to the IOC. 

If the IOC implemented a procedure to give "political hands" the decision making powers AFT touted they kept out, could that create more legal issues? 

Changes to the AFT charter amendment requires going through another charter amendment, if that is even possible, depending on whether the proceeds had been bonded or not. (see below). 

The video and the closed captioning of the April 3rd BOCC meeting can be found on the county's HTV website here and the Interlocal Agreement agenda item B-6 begins at about 3:59.

Only Commissioner White publicly asked important questions. An excerpt from the closed captioning of Whites questions and the discussion on the Interlocal Agreement can be found here.

30 years is a long time and many things can occur over that time, including one or more economic downturns, continued and more rapid transportation innovation and technology advancements, disruptions to traditional transit/transportation as we know it today, regulatory changes and changes to the needs of constituents.

Duly electeds have the authority to address and react to change which can include redirecting and prioritizing where tax proceeds are spent. This is how the former county commission funded the 10 year $812 million transportation plan by redirecting and reprioritizing existing tax proceeds to fund transportation projects.

White questions what happens when anytime in the future the parties receiving the tax proceeds want to change the specified spending allocations AFT mandates in their charter amendment.

The response from the County Attorney is that it will depend on whether AFT funds are bonded. If funds are bonded, the bond covenants will protect the bond holders. The bond covenants will ensure the bond funding source (AFT tax) is not impaired by prohibiting the county commission from taking action that would impair the source of the bond security (AFT tax).

White also asks about making changes before any bonds are issued. The county's Bond Counsel responds they will be governed by the Interlocal Agreement and the Charter and that the bond resolution is not relevant until bonds are outstanding.

When White asks hypothetically what the legal implications are of changing what AFT specifically allocated to HART (45%) before any bonds are issued, the answer provided was the county commission must comply with the charter.

After White gets his questions answered, below is an excerpt of his comments:
SO I JUST WANT TO SAY WITH RESPECT TO SECTION 2 THAT SPEAKS TO RATIFICATION AND THE PARTIES DEEMING APPROPRIATE, THESE PREDETERMINED SPENDING ALLOCATIONS THAT WE HAVE NOT STUDIED THOSE ALLOCATIONS. 

IN FACT, ALL FOR TRANSPORTATION MAINTAINS THAT THE PERCENTAGE AND ALL THE INFORMATION NEEDED FOR THIS BOARD TO MAKE AN INFORMED DECISION ABOUT THE ALLOCATION, DISTRIBUTION, AND USES ARE PRIVILEGED POLITICAL STRATEGIES PROTECTED UNDER THE FIRST AMENDMENT. THEY HAVE NOT DISCLOSED THEM TO THE COURT, TO THE COUNTY COMMISSION, OR EVEN TO THE VOTERS.

SO TO RATIFY UNKNOWN POLITICAL STRATEGIES OF ALL FOR TRANSPORTATION, NOT JUST FOR THIS BOARD, BUT FOR EVERY BOARD FOR THE NEXT 30 YEARS IS UNJUSTIFIABLE.

AND IT'S IN CONFLICT WITH WHAT THE LEGISLATURE DEMANDS THAT WE DO IN SECTION 212.055 FLORIDA STATUTES IN ORDER TO HAVE THE RIGHT TO IMPOSE A TAX THAT IS OTHERWISE PREEMPTED TO THE STATE.

WE ARE GIVING 45% OF THIS MONEY TO HART. BILLIONS OF DOLLARS.

AND I DON'T HAVE THE INFORMATION THAT WOULD ALLOW ME TO DEEM APPROPRIATE, THAT IS TO JUDGE AS FITTING AS A MEMBER OF THE COUNTY COMMISSION, THAT THIS IS WISE.

I DON'T HAVE THE INFORMATION THAT ALLOWS ME TO GO BACK TO MY DISTRICT AND TELL MY CONSTITUENTS THAT THEY NEED TO COMMIT 45% OF THIS MONEY TO BUSES, MUCH LESS MAKE THAT DECISION FOR THE COMMISSIONERS THAT COME AFTER ME.

AND THEN ANOTHER QUESTION THAT I HAVE, SOMETHING THAT I DON'T UNDERSTAND, IS THE 35% REFERENCED IN SECTION 11.08 SUBSECTION 2.

WHY IS IT THAT THAT MONEY MUST BE SPENT ON TRANSIT SERVICES THAT UTILIZE EXCLUSIVE TRANSIT RIGHT‑OF‑WAY FOR AT LEAST 75% OF THE LENGTH OF THE APPLICABLE SERVICE?

IS THERE ANYONE HERE THAT CAN ANSWER THAT QUESTION?

ANYONE? OKAY.

SO, COMMISSIONERS, WE'RE BEING ASKED TO RATIFY CERTAIN PROVISIONS, AND I'M POINTING TO THIS ONE AS AN EXAMPLE, THAT THERE JUST SEEMS TO BE NO INFORMATION ON, WHICH AGAIN IS, YOU KNOW, OF CONCERN TO ME.

I DO KNOW BASED UPON INFORMATION THAT'S OUT THERE ON THE RECORD THAT IT SEEMS THAT ONLY THE STREETCAR AND DOWNTOWN TAMPA MEETS THIS REQUIREMENT.

SO BEFORE I COMMIT TO SPENDING A BILLION DOLLARS ON TRANSIT INFRASTRUCTURE THAT IS APPARENTLY DESTINED TO GO WHERE THE STREETCAR NOW GOES, I NEED FACTS.

I CAN'T JUST RATIFY AN UNDISCLOSED PROJECT.  THIS CLEARLY SEEMS TO VIOLATE WHAT THE LEGISLATURE EXPECTS OF ME. IN FACT, EXPECTS OF ALL OF US TO DO IN JUDGING THE USES FOR THE NEEDS OF THESE DOLLARS.

AND I THINK MY OATH REQUIRES ME TO KNOW MORE BEFORE I CAN SUPPORT THIS.

WE'RE RATIFYING ABOUT $3 MILLION A YEAR TO THE MPO FROM COUNTY REVENUE WHEN IT CURRENTLY OPERATES JUST WITH GRANTS FROM THE STATE AND FEDERAL GOVERNMENT. IT RECEIVES NO REVENUE FROM US TODAY.

AND I HAVE RECEIVED NO EVIDENCE AS TO WHY WE NEED TO COMMIT FOR 30 YEARS TO GIVE THIS NEW REVENUE TO THE MPO.

I DO NOT AGREE THAT THE IOC AS CREATED IN THE CHARTER IS CONSTITUTIONAL OR AUTHORIZED BY GENERAL LAW.

BUT IF IT IS, IT IS INDEPENDENT. NOTHING THAT I READ IN ARTICLE 11 ALLOWS THE AGENCIES TO SUBJECT THE IOC TO LIMITS OR CONTROLS OF ITS ACTIVITIES. I DON'T SEE HOW WE HAVE THE POWER TO DO THIS WHEN THE CHARTER GIVES THAT BODY THE RIGHT TO CREATE ITS OWN RULES.

AND I READ ARTICLE 11, THE REASON THAT THE IOC HAS THE SKILL SET THAT IT HAS IS BECAUSE THE AUTHORS OF ARTICLE 11 WANTED IT TO BE, WANTED IT TO INDEPENDENTLY EVALUATE PROJECTS, WHICH THIS INTERLOCAL AGREEMENT SEEMS TO BE TRYING TO PREVENT.

AND I'LL JUST CLOSE BY JUST ASKING THE RHETORICAL QUESTIONS OF, YOU KNOW, HOW CAN WE STIPULATE AND AGREE THAT THIS AGREEMENT IS CONSTITUTIONAL WHEN WE DON'T EVEN HAVE A LEGAL OPINION THAT ARTICLE 11 IS CONSTITUTIONAL.

Note: In 2015, the Hillsborough MPO stated in their 2040 long range transportation plan, they only needed $16 million over 20 years to do their planning. AFT mandates handing the MPO $160 million (1% of the $16 Billion) for 30 years which is a boondoggle to empower central planning bureaucrats. We doubt many county commissioners would ever appropriate such wasteful spending.

Somewhere after the 3:59 time marker in the video of the BOCC meeting, Commissioner Hagan left the dais. He never returned until the afternoon session began after the lunch break. Therefore, the Interlocal Agreement was passed 5-1 with White voting NO and Hagan MIA. 

Commissioner White brought some of these serious issues up before the election. All the agencies receiving the tax proceeds knew the AFT tax hike language was risky business. At that time three of the county commissioners were former state legislators who remained silent on the issues.

County commissioners will be the first to run to Tallahassee to complain when they think the State is stepping on their toes of authority. It is ironic that all of them but Commissioner White remained silent when a committee of unelected appointees is given powers that usurps their authority. 

Messes will occur when a massive transit tax hike is created outside Sunshine with no transparency and no public input. 

Legal messes will occur when a 30 year $16 Billion transit tax referendum is not properly legally vetted before it is placed on the ballot. 

If lawsuits had not been filed challenging the language used in the AFT charter amendment, these serious issues may have been swept under the rug and hidden from the public.  

The county commissioners should not be striving to make the big AFT mess even messier or taking action that puts their constituents and taxpayers at any further risk.



This post is contributed by EYE ON TAMPA BAY. The views expressed in this post are the blog publisher's and do not necessarily reflect those of the publisher of Bay Post Internet.

Cross Posted with permission from: Eye On Tampa Bay



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Monday, April 15, 2019

Mayor Kriseman is throwing residents under the bus

St. Petersburg Fl
Public Opinion by author: Robert Neff

The proposed noise ordinance has Whereas clauses that justify the proposed ordinance. These are not carried forward into the actual municipal code. There are four Whereas clauses that discuss how sound is harmful to residents, but there is another Whereas clause that discusses how the City intends to treat the commercial establishments who have helped the City prosper. To protect the bars, restaurants, and cafes, Mayor Kriseman is gaslighting residents and  throwing residents under the bus.
WHEREAS, the City intends to treat the commercial establishments who have helped the City prosper fairly and recognizes the right to free speech enjoyed by those establishments and their need to utilize amplified sound as a means of continuing their successful commercial endeavors; and
The City had spent $5,700 to hire an acoustical noise expert to study the downtown noise and mechanical noise. The three acoustical studies identified downtown St. Petersburg noise issues.

The bar, restaurant, and cafe's excessive noise has caused residents to experience medical issues related to noise, such as, stress, anxiety, and increased heart rate.

In 2013, According to St. Petersburg Police Department Incident/Investigation Report 2013-041269, police responded to a resident, who stated, "...that since Club Detroit opened, she has been "deprived of sleep" due to the vibration the club's music emits. She added that recently it has been giving her headaches and has been making her very nauseous. She said overall the vibration from the bass is affecting her sleep and physical well being."

In the proposed noise ordinance, the City has four "Whereas" paragraphs recognizing how harmful noise is. However, the City refused to hire a medical expert to provide a report on the harmful effect noise has on adult and kids health. This would have also served to educate Mayor Kriseman, City Council, Police, City staff, business and residents. This could have been the basis for a community education and outreach program.

While the proposed noise ordinance changes the penalties and adds motorboats, the time and distance requirements do not change for residents downtown or in the City's neighborhoods. With 2019 noise calls are trending much higher than 2018, noise is getting worse for residents in the City. The citation rates have dropped under Mayor Kriseman and are abysmal.

Bars have filed lawsuits against three residents for calling the police. The last lawsuit was in 2016, Edge Partners d/b/a Flamingo Resort vs. Neff, which the Judge dismissed. The lawsuits have had a chilling effect on the community. Many residents have given up and stopped calling the police.

A Public Records Request exposed Mayor Kriseman's disdain for the noise ordinance. On April 11, 2017, Mayor Kriseman asked Police Chief Holloway to enforce the noise ordinance for two weeks in 2017. What were the police doing the other 50 weeks? What did Mayor Kriseman tell Police Chief Holloway to do in 2014? 2015? 2016? 2018?

The four health-related clauses sound like the City cares, but, if Mayor Kriseman refused to hire a medical expert, how can residents trust the City to protect our health when Mayor Kriseman is not enforcing the noise ordinance and is recognizing businesses who have helped the City prosper?

In addition to finding Mayor Kriseman's email, another Public Records Request provided several emails where Council Member Kornell, Police Community Service Officer Kelly, and Flamingo Resort owner, who is Board President for the Skyway Marina District, develop a strategy to deal with a resident who reported noise to the police, and Mayor Kriseman, and City Council. This email was not provided in the first Public Records Request, but was responsive in another request six months later.

What else is the City hiding?






Here are the proposed noise ordinance's "Whereas" clauses:


WHEREAS, residents of the City of St. Petersburg have a right to express themselves and enjoy the sounds that enhance the quality of their lives; and
WHEREAS, excessive amplified sound can be a serious hazard to the public health, welfare, safety, and the quality of life for City residents; and
WHEREAS, City residents have a right to be free from harmful and disturbing levels of sound; and
WHEREAS, the City has a substantial interest in protecting its residents from harmful and disturbing levels of sound; and
WHEREAS, it is the policy of the City to prevent harmful and disturbing levels of sound that may jeopardize the health, welfare, or safety of its citizens or degrade the quality of life while protecting the rights of citizens to enjoy sounds that are important to their quality of life and necessary for daily work and leisure activities; and
WHEREAS, the City intends to treat the commercial establishments who have helped the City prosper fairly and recognizes the right to free speech enjoyed by those establishments and their need to utilize amplified sound as a means of continuing their successful commercial endeavors; and
WHEREAS, the City’s enactment and enforcement of the provisions of this ordinance shall be content neutral with regard to the regulated sound.
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Wednesday, April 10, 2019

St. Petersburg’s noise calls continue to trend higher in 2019

St. Petersburg Fl
Public Opinion
By author: Robert Neff

Previously reported that January 2019 was trending higher than January 2018. The trend continued for first three months. Where 2018 had 2,517 noise calls, 2019 could be over 4,000 calls. This would break the 2013 record and be the highest ever recorded under Mayor Kriseman's Mayorship. To view the calls on the City's StatMap, click on the link below.

2019 — First three months 

984 Noise Calls
132 Loud Party
1,116 TOTAL CALLS 

2018 — First three months 

611 Noise Calls
87 Loud Party
698 TOTAL CALLS 

Difference — First three months 

+373 Noise Calls
  +45 Loud Party
+418 TOTAL CALLS 

Will the increase calls impact the noise citation rate for the bars?

Probably not, that is, unless the Mayor asks the police force to enforce the noise ordinance and issue citations to bars and residences with repeat calls. Until then, residents, vehicles and motorcycles are more likely to be issued a citation than a bar.
While the data has proven the Police are not enforcing the noise ordinance, this email from Mayor Kriseman to Police Chief Holloway will help you understand why the City of St. Petersburg has an abysmal citation rate.

The Mayor is selectively enforcing the noise ordinance to make himself look good. Appearance matters more to Mayor Kriseman than the resident's health and well being.



But Mayor Kriseman is not alone in his quest to turn up the volume. City Council Member Kornell has worked with the Community Service Officer, and Flamingo Resort owner, who is the Board President for the Skyway Marina District. Together, they developed a strategy to deal with a resident who repeatedly called the police to report Flamingo Resort's noise.


The opinions here are the author's and do not necessarily reflect the views of Bay Post Internet or the Blog Publishers where it appears.
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