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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