Alachua Voter Guide

If politics is indeed the art of the possible, in the District 1 campaign we did what was possible.

In two months of last minute campaigning vs. six and eight months of campaigning by two opponents in a district with a difficult demographic divide we needed more time to unite — what was possible for us was to bring into better focus the looming GRU-GREC biomass electric rate hike disaster.

After two and a half years of trying to pretend this bad decision never happened, biomass-at-any-cost-to-ratepayers city commissioners — in an effort to keep biomass rationalists off the city commission — went public and on the record leaving  a paper trail of attempted obfuscations and specious justifications that, in the fullness of time, will show  who is responsible and who should be held accountable.

This was what was reasonably possible to achieve in the District 1 race, and we achieved it.

Now that the general election has resolved itself in the manner in which it has been resolved, the insular Gainesville City Commission majority is conducting a runaway train headed for a crash of historic proportion — assuming the GRU-GREC biomass contract is not reformed or cancelled, which they seem hell bent on preventing.

These would-be conductors in the election just passed began what appeared to be the first stages of an orchestrated campaign to smear candidates who would speak truth to power.

For me, that incipient smear campaign is yesterday’s news, and largely irrelevant. The District 1 race yesterday was decided in favor of the conductors’ handpicked candidate Yvonne Hinson-Rawls.  The result, in my opinion, was not substantially affected by the inept City Commissioner Susan Bottcher led smear campaign against me. The result — a second place finish, a 78-vote swing from a runoff — was, in my opinion, the legacy of  a District 1 demographic divide that there was insufficient time  for us to bridge.

It was a different story in the At-Large city commission race that was not decided yesterday. In that race, largely because of political machinations, the city commission conductors’ handpicked At-Large candidate, Lauren Poe, is headed for a runoff with former Florida Public Service Commissioner Nathan Skop. In that race the city commissioner conductors’ disreputable smear campaign against candidate Skop appears likely to become nastier and more outrageous.

It is what it is.  But what goes around comes around, in politics as in life. The worm will turn.

My wife has brought to my attention the following assertions by City Commissioner Susan Bottcher.  Bottcher apears to have become the current city commission majority’s group-think purveyor of misinformation and attack in a desperate attempt to influence the outcome of Tuesday’s City Commission election.  If hand-picked new commissioners can be elected, past commission actions related to the irregularly negotiated more than $3 billion GRU-GREC contract may be kept from public consciousness. Bottcher has written the following version of the “FACTS” as devoutly wished by her and those who wish to re-write GRU-GREC history and thereby continue to mislead the public.

COMMISSIONER BOTTCHER’S INCREASINGLY DESPERATE PERSONAL ATTACKS AND ATTEMPTS TO MISLEAD THE VOTERS:

“Skop and Washington apparently learned nothing in law school about contracts, the Sunshine Laws or how bond ratings work. Both these candidates are promising that, if elected, they will force the city to break the contract with the owners of GREC (biomass plant).

“FACT: The contract was not done in secret. It has been a long standing policy that negotiations with a private contractor or business are conducted between city staff and the contractor. Once terms are set the contract goes to the full commission in a public forum for ratification. This is how it was done for GREC. This is in no way a violation of the Sunshine Laws since elected officials are not involved in the negotiation process. At the May 2009 commission meeting Commissioner Braddy made the motion to ratify the GREC contract, there was no public comment against it, and it passed unanimously.

“FACT: There was never a so-called buy-out clause in the GREC contract. The idea was discussed and after careful consideration between both parties it was decided that it was in the city’s and contractor’s best interests not to insert such a clause. Claiming such a clause existed and then was surreptitiously removed is patently false.

“FACT: Breaking the contract would ruin the proud AA bond rating this city enjoys. Not only would it cost the city hundreds of thousands if not many millions of dollars to break the GREC contract, it would have a long term devastating impact on the city’s ability to borrow money for future infrastructure projects (roads, new GPD building, RTS transfer station, etc). Anyone who advocates for now going back and breaking the contract is advocating for bankrupting the City of Gainesville.

“FACT: No one commissioner can force the city to do anything. There are seven voting commissioners and any changes require a majority of at least four. Even if any anti-GREC candidates is elected, the remaining commissioners have all voiced support for GREC. Even Commissioner Chase was quoted at two commission meetings last fall saying he is “committed to making GREC successful” and is “not interested in getting out of the contract.’”

RESPONSE TO COMMISSIONER BOTTCHER’S LATE ATTEMPT TO KEEP THE GRU-GREC CONTRACT SKELETON’S HIDDEN FROM THE PUBLIC:

FACT: Terms of the GRU-GREC biomass contract were secretly communicated to members of the Gainesville City Commission but not to the public. Gainesville City Commissioners and those who negotiated the GRU-GREC contract conspired to keep those ultimately responsible for paying for the cost of the GRU-GREC biomass project — GRU’s rate payers — from knowing how much the project was going to cost. Individual city commissioners also knew that the GRU-GREC biomass contract contained a provision under which details of the contract would be kept secret from the public until at least 2043. Aside from the breach of trust with the community that is inherent in these backroom dealings, what these commissioners did was to violate the Florid Government in the Sunshine Law. It has been admitted by the Mayor on the public record that he knew that the other commissioners knew key details of the project when they voted on it. The Mayor’s knowledge of what other commissioners knew is evidence of information Daisy Chaining, which is prohibited by the Florida Government in the Sunshine Law. As a result of these actions taken by commissioners in violation of the Sunshine Law, the GRU-GREC contract is void as a matter of law.

FACT: The negotiation of the GRU-GREC contract with the private contractor GREC’s predecessor in interest, Nacogdoches Power LLC, was authorized by the city commission in May 2008 to be carried out by new GRU General Manager Robert Hunzinger as a one man negotiation. A one person negotiation, under the Florida Open Meetings Law, allows negotiations to take place in secret without the need for public notice and public attendance.  Mr Hunzinger, contrary to his explicit instructions, organized a negotiating “team” headed by two co-lead-negotiators Ed Regan and John Stanton. This team-based negotiation required notice to the public and required negotiating team meetings to take place in the Sunshine.  As a result of actions taken by the negotiating team in violation of the Sunshine Law, the GRU-GREC contract is void as a matter of law.

FACT: At the May 7 2009 city commission meeting members of the Gainesville City Commission (but not Commissioner Ed Braddy, who was no longer on the city commission) — without notice to the public of the secret terms of the GRU-GREC contract, and without notice to the public that the the contract did not contain the back out clause that Commissioner Braddy and every other then commissioner by a public vote on May 12, 2008 in a public meeting required to be included in any contract executed by GRU General Manager Hunzinger — unanimously approved the GRU-GREC contract. As a result of these actions taken in violation of the Sunshine Law, the GRU-GREC contract is void as a matter of law.

FACT: A back-out or buy-out clause was specifically included in a version of the GRU-GREC contract the developer GREC had agreed to in September 2008. The clause existed and was removed, without the public being informed. Subsequently the city commission, without notice to the public, voted to ratify a version of the contract signed by General Manager Hunzinger. As a result of these actions taken in violation of the Sunshine Law, the GRU-GREC contract is void as a matter of law.

FACT: The action of the city commission in violating the Sunshine Law and then attempting to proceed with a void contract may threaten GRU’s and the city’s AA bond ratings. But while the city commission’s actions in entering into a contract void as a matter of law may threaten GRU’s and the city’s AA bond ratings, the “breaking” of a bad contract
through the legal process historically has not harmed GRU’s or the city’s bond ratings. The city on at least three occasions since the construction of the DeerHaven Generating Station has “broken” bad contracts when the public interest has required it, and neither the city’s nor GRU’s bond ratings have suffered as a result.

FACT: One or more commissioners’ bringing to light deficient negotiating and actions taken by the city not in the public interest can and has changed bad decisions made by the majority of the city commission. In December 2011 there were five commissioners, including Bottcher, who supported a scheme for the installing red light cameras at four intersections in the city under a contract that would have harmed citizens without substantial benefit to the community and a cost of more than $12 million to the citizens. Two city commissioners, with the assistance of members of the public, were able to demonstrate the folly of the Bottcher’s majority reasoning. As a result Bottcher’s support for the red light camera contract was abandoned, and the red light camera contract rejected by a 7-0
commission vote. Commissioners who have all voiced support for a contract can and do change their minds when held to account by other commissioners and the public.

The $64,000 question is:

How much more sheer nonsense and personal attack against independent-minded candidates will Bottcher spew forth in her continued attempts to influence the outcome of Tuesday’s election?

Commissioner Susan Bottcher in today’s Gainesville Sun wrote a Speaking Out piece that Sun editorial page editor Ron Cunningham considers to be a non politically motivated piece written by a sitting city commission candidate who simply decried the generally negative tone of the current city commission campaigns and cautioned voters not to be taken in by scare tactics. In some parallel universe occupied by Commissioner Bottcher — who has submitted campaign cash to her hand picked pro-GRU-GREC-biomass-deal-at-any-cost favorites and is working daily behind the scenes to attempt to secure their election — Commissioner Bottcher is a statesman rather than a political turf preserving politico, and as such should be protected from rebuttal by a mere candidate.

The rebuttal The Sun will not publish:

COMMISSIONER BOTTCHER’S ASSAULT ON VOTER COMMON SENSE

As has been reported recently in The Gainesville Sun, national and international investors have been buying and selling and slicing and dicing the economic future of the citizens and ratepayers of our community (“Part owner of biomass plant sells 40% stake,” January 18, 2012).

The owners of the rights to income from GRU ratepayers for the so-called GREC biomass plant – if it gets built – continue to play their game of musical chairs. For now the owners of GREC are opaque limited liability entities from Minnesota, New Hampshire, Massachusetts and Connecticut, with high-risk-high-return investors from around the world, backed by 14 to 15 percent interest money lenders are from France, the Netherlands and Japan.

These money changers, as the Gainesville City Commission election heats up, are depending on the assistance of oh-so-superior city commissioners like Susan Bottcher to try to ensure that the more-than-$3-billion looting of Gainesville’s electric ratepayers can continue unabated. Bottcher (“The world is watching our city now,” January 23, 2012) is doing all she can to deliver.

First, Bottcher superciliously lectures us simple-minded Gainesville citizens that we are “being watched by national and international investors and entrepreneurs.”

Next, she patronizingly instructs us that we had better not embarrass her and her political allies with our “provincial political negativity.”

Next, she arrogantly dismisses the positive civic participation of public-spirited citizens who deign to question decisions she and her friends would seek to force down our throats, which puts at risk the echo-chamber-intensified magical thinking that in her mind has led to “this proud point in our history.”

Next, she haughtily derides citizen demands for city commission accountability as nothing more than “fear” that could threaten what she believes to be the “collective vision” of the “best of our community.”

Finally, she condescendingly instructs Gainesville voters that what she and her fellow travelers believe represents “progress,” and that what others believe represents “a step backwards.”

What’s going on here?

Bottcher’s intent seems clear: On the eve of an historically important city of Gainesville election she wants to convince voters to abandon their own self interest and elect GRU-GREC-biomass-deal-at-any-cost-to-ratepayers candidates in the hope of keeping the GRU-GREC biomass contract irregularities from being reviewed and brought before the public.

Bottcher and four other city commissioners have donated money to the campaigns of these candidates in a desperate attempt to keep new commissioners from being elected who would insist on a public examination of the looming wood burning incinerator disaster. These candidates have shown themselves willing to adopt the talking points of Bottcher and friends, and to join and reinforce their attempts to close down discussion of the GRU-GREC biomass electric rate hikes – this despite the disproportionate burden with which the most economically vulnerable members of our community will be saddled if the GRU-GREC biomass scheme is allowed to continue.

Bottcher’s modus is to express scorn for Gainesville voters who ask questions – apparently on the theory that such pompous lecturing will hold back the rising tide of voter resentment.

Good luck with that.

The Gainesville Sun in its elections portal, which went on line today, has performed a service similar to the service attempted by the Alachua Voter Guide.

Thoughtful voters researching the issues and the candidates’ stands on the issues will use both of these resources prior to casting their votes.

The City Commission District 1 race was highlighted today in the print version of The Sun, featuring candidate responses to identical questions about issues considered important by The Sun.

As to the fiscally-irresponsible, irregularly-negotiated, out-of-the-Sunshine $3 billion to $4 billion GRU-GREC biomass deal the question posed to each District 1 candidate was:

“What are your thoughts on the city’s 30-year contract to purchase biomass power?”

I hope my answer expressed the urgency I feel — and the urgency that many members of this community feel — about the need for the city commission to immediately act to reverse the corrupting influence of this bad contract with which a previous commission (and the majority of the current commissioners were part of that) so inexplicably (and largely secretly) saddled this community.

I wrote: “This bad contract has become the defining issue of this election. I was part of the legal team representing public-spirited Gainesville area citizens whose efforts on April 6 resulted in previously secret portions of the GRU-GREC contract being unblackened. I became a candidate after weeks of trying to convince the two candidates for my district’s commission seat to oppose the coming GRU-GREC electric rate hike. They both declined to do so. The most important duty of any candidate elected to the City Commission will be to readdress the GRU-GREC deal in light of current circumstances, this time fully in the sunshine.”

This city is facing many urgent and important problems of great complexity which also will need to be addressed, but which cannot be adequately addressed until the city commission stops hiding the ball from the public and courageously addresses the GRU-GREC biomass deal in the light of day, without regard for protecting anyone except the citizens of this community whose economic interests have been sacrificed for reasons that are not yet clear.

As to the positions of the other two District 1 candidates, those positions are telling.

Candidate Grundy, in a response he purports to have written himself, states: “This is an issue that has been voted on unanimously by the City Commission and is already under construction, so as a candidate there is not much any candidate can do about the contract. Should the issue go through a legal challenge and is overturned by the court, then obviously the city will change direction. The biomass plant is already under construction, and I will continue to ask more questions and gather more information and be open to all points of view; however, I do not see much that can be done right now.”

Of course a candidate can’t do much until elected — but a candidate can speak out against the biomass electric rate hike and pledge to do all he or she can do stop it. This is something Mr. Grundy, who is the handpicked successor of the pro-biomass-rate-hike commissioner whose seat Mr. Grundy wishes to occupy, has refused to do.

Candidate Hinson-Rawls, in a response she purports to have written herself, states: : “Biomass will help bring jobs to Gainesville. I will fight to make sure costs to residents are minimized. However, the city must continue to diversify our energy options to lower utilities costs for residents both now and in the future. Gainesville has an opportunity to become a leader in alternative energy. I also believe there must be a systematic approach to educating residents about how to maximize efficient use of their energy to bring costs down now and in the future.”

These are virtually the same words written and spoken by four GRU-GREC-biomass-deal-at-any-cost-to-the-pubic commissioners — Mayor Lowe and Commissioners Bottcher, Mastrodicasa and Hawkins — have written and spoken previously. These four commissioners — all of whom are paid public salaries and all of whom have written checks with this fungible money to Candidate Hinson-Rawls in an effort to ensure the election of another GRU-GREC-biomass-deal-at-any-cost-to-the-public commissioner — have been unable to defend these specious claims, and how have left their hand-picked candidate twisting in the wind, also unable to justify these claims.

1. “Biomass” will not bring any more jobs to Gainesville than any other electrical generating plant, and probably will bring less. The out-of-state private limited liability company GREC has awarded a (secret from the public) operating contract for the plant to a Kansas-based company without any requirement that the company hire the expected 40 plant operation employees locally. (If the city commission had ordered GRU to build its own plant it could have also ordered GRU to hire locally). Worse, the most recent best case scenario figures promulgated by GRU executives (who themselves earn six-figure ratepayer-funded salaries and are behind the unnecessary construction of a new $52 million Taj Mahal GRU administrative building complete with a health spa from which the public is excluded) posits that the annual cost of the so-called GRU-GREC biomass electric power contract at best will be $103 million (more than twice the cost of electricity purchased on the open market and well over twice the cost of electricity that could be produced by GRU from a ratepayer-owned combined cycle natural gas generating facility). GRU’s executives and their GRU-GREC-biomass-deal-at-any-cost-the-public-be-damned defenders on the city commission who have made Candidate Hinson-Rawls “jobs” argument, base that claim on a specious best-case-scenario specially-commissioned FSU study (whose premises have been shown to be erroneous). But even that faulty study demonstrates that $31 million in economic benefit that allegedly would flow from the GRU-GREC biomass plant would not flow to Gainesville, as Ms. Hinson-Rawls claims (or as is claimed on her behalf, but would flow to the broad GREC “catchment area” of northeast Florida and south Georgia. Ms. Hinson-Rawls’ backers (including GRU-GREC contractors whose secret contracts have been kept from the public and who have made large contributions to her campaign) know, if Ms. Hinson-Rawls does not, that 99 percent of the forest land from which most of the trees and parts of trees that would be burned up in the GRU-GREC incinerator is located outside of Alachua County, and that the largest trees-and-parts-of-trees supply contract (which contract has been kept secret from the public) has been awarded to the multi-national Rayonier Real Estate Investment Trust which has identified 200,000 acres of forest land, most of it in the so-called GREC biomass incinerator catchment area (but not in Alachua County), which forest land Rayonier has publicly stated it intends to strip of trees and turn into real estate developments (again, none of which will be in Alachua County). Finally, to add public insult to public injury, even if the FSU study touted by Candidate Hinson-Rawls’ backers was not faulty, and even if the alleged $31 million in money actually flowed just to Gainesville rather than to 24 other counties and a multinational Real Estate Investment Trust, the alleged $31 million economic benefit from an overpriced $103 million contract of which $50 million to $60 million in not necessary is no deal at all.

2. The idea that Candidate Hinson-Rawls — who with her backers fully supports the coming GRU-GREC biomass electric rate hike — would “fight to make sure costs to residents are minimized” would be ludicrous if her willingness to carry water for her backers were so invidious and so unfair to residents of the city in particularly and economically depressed District 1 in particular.

3. Candidate Hinson-Rawls’ claim that “there must be a systematic approach to educating residents about how to maximize efficient use of their energy to bring costs down” is even more insulting. In her zeal to support the political motives of her backers over the economic interests of her would-be-constituents Candidate Hinson-Rawls not only defends unjustified and unjustifiable electric rate hikes, but also argues that Gainesville residents are not “educated” and sets the stage for placing the the blame on her her would-be-constituents for the electric rate hikes she should be fighting.

Inasmuch as Candidates Grundy’s and Hinson-Rawls’ position statements are purported to be self-penned, we as voters can take these responses as the actual positions of these candidates.

INFORMATION SUPPRESSION, DISINFORMATION, THREAT AND ATTACK

Mark van Soestbergen writes in The Gainesville sun this morning that, from his perspective, “It was nice to see the GRU response over the weekend regarding biomass financials.”

The so-called “biomass financials” response of which Mr. Soestbergen is so enamored is a reference to two letters authored by two highly-paid GRU officials in the January 8 letters-to-the-editor section of The Sun.

These letters – written presumably during work hours and therefore funded by the very ratepayers GRU officials have been attempting to silence – were signed by GRU Assistant General Manager Kathy E. Viehe and GRU Marketing and Communications Manager J. Lewis Walton.

Ms. Viehe and Mr. Walton are part of a vanguard of top GRU officials – many of them being paid more than $100,000 per year, and at least one them being paid more than $200,000 per year – who have been unleashed upon GRU ratepayers in an orchestrated campaign of information suppression, disinformation, threat and attack.

The efforts by Ms. Viehe, Mr. Walton and other GRU officials – efforts sanctioned and applauded by Mayor Craig Lowe and Regional Utilities Committee Chair Commissioner Susan Bottcher and a few other GRU-GREC-biomass-deal-at-any-cost-hide-the-ball city officials – have recently included official jail threats against three senior citizens and a young African American man who have been fostering a welcome dialogue with and providing a voice to hundreds of beleaguered GRU ratepayers wanting a forum in which to express their opposition to the coming GRU-GREC biomass electric rate hikes.

Hear some of their voices, which GRU officials and collaborators on the city commission have been trying so desperately to suppress:

http://saive.com/STEVEN.html

http://saive.com/TRESIA.html

http://saive.com/ELOISE.html

http://saive.com/LORENE.html

http://saive.com/JACQUELINE.html

http://saive.com/YOLANDA.html

Ms. Viehe – whose views are apparently identical with those of Mayor Lowe, Commissioner Bottcher and their allies on the city commission who support and applaud GRU’s threats to have Gainesville citizens jailed for expressing their First Amendment free speech and peaceable assembly rights – wrote in her ratepayer-funded Sun letter-to-the-editor that GRU is justified in summoning GPD police officers “when someone becomes disruptive,” as GRU officials define “disruptive.”

Mr. Walton – whose views are also apparently identical to those of Mayor Lowe, Commissioner Bottcher and their allies on the city commission, and whose views Mr. van Soestbergen applauds – used his ratepayer-funded Sun letter-to-the-editor to attempt to call into question the credibility of one of the senior citizens GRU has threatened with jail and who dares to declare that irregularly negotiated GRU-GREC biomass deal is “a tremendous wealth transfer to an out-of-state company, at the expense of ratepayers.”

Wrote Mr. Walton, in rebuttal: “Nothing could be further from the truth that there is a wealth transfer out of state with biomass. Currently GRU sends millions of dollars out of state to buy coal and natural gas.”

Mr. Walton’s letter is misleading, and, presumably intended to mislead, with the complete approval of GRU’s top brass and the majority of the members of the Gainesville City Commission. What Mr. Walton fails to explain is that even if the $3-billion-to-$4-billion-GRU-GREC-biomass deal were allowed to proceed – and I am pledged if elected to the Gainesville City Commission to do all within my power to assure that it does not proceed – GRU according to its own published 10-year plan will not as a result reduce by a single ounce its imports of coal. Far from replacing coal burning, the biomass plant, according to GRU’s ten-year plans, will be used to sell power to the City of Alachua, Clay Electric and others at rates far lower than GRU intends to charges Gainesville area customers.

Now on the heels of Mr. Walton’s ratepayer-funded obfuscation comes GRU-GREC-biomass-deal-at-any-cost fellow traveler Mr. van Soestberger who claims, falsely, that “for every dollar it costs GRU to provide electricity, 70 cents goes to fuel,” and that “70 cents not only goes out of state, it ends up in the coffers of giant conglomerates that, in turn, have hedge funds and global investors as their shareholders.”

On October 10, 2011 GRU executives at public meeting admitted that under a best-case scenario the GRU-GREC biomass electricity purchase for the first full year of operation would result in GRU having to pay the out of state limited liability company GREC a $103 million, of which only $28 million would be paid out by GREC for fuel, in this case parts of trees to be burned in the GREC electricity-generating biomass incinerator.

Unless Mr. van Soesterberger has been trained in the sort of voodoo math used by carbon accounting charlatans – and I have no evidence that he has been – he accepts the same math rules that the rest of us accept. Under those rules ($28 million is what percentage of $103 million?) only 27 cents – not 70 cents – of every dollar spent on biomass fuel would go to the purchase the trees and parts of trees that make up virtually all of the biomass fuel the GREC incinerator would burn.

Assuming Mr. van Soesterberger accepts the same math rules that the rest of us accept, the question becomes where, in the case of the GRU-GREC biomass contract, where would the 27 cents of every dollar GRU ratepayers pay to GREC for trees and parts of trees actually end up?

We know – from public testimony given by GRU Assistant General Manager Ed Regan – that 30 percent of the cost of harvesting, gathering, processing and transporting trees and parts of trees to the GREC incinerator will be expended for diesel fuel used to power the harvesting and gathering equipment, processing equipment and 25 ton trucks that would make the 100,000 trips to and from the GREC incinerator each year. Using GRU executives’ own representations, and using the math rules we all accept, we know that of the 27 cents of every dollar GRU customers would pay for biomass fuel, 8.1 percent would go to diesel fuel and 18.9 percent would go to those who would sell trees and parts of trees to GREC to be burned in the biomass incinerator.

Who are these tree and tree part providers who will receive the $19.5 million (18.9 percent of the $103 million GRU customers will have to pay for “biomass fuel”)?

We know from news releases and public statements by GRU executives that the largest category of wood and wood parts to be burned in the incinerator will come from trees and parts of trees cut down and out during forest harvesting and forest thinning operations. The only forest harvesting contract that has been announced has been a contract with the multi-national Real Estate Investment Trust Rayonier Corporation, whose forest holdings include about 200,000 acres between of land that the Rayonier multi-national intends to convert to real estate development, most of which real estate development land falls within the GREC “catchment” area from which almost all of the tree and parts of trees to be burned in the GREC incinerator will be gathered. We also know from Rayonier’s SEC filings that less than 1 percent of Rayonier’s land holdings are in Alachua County.

We don’t know the exact terms of the Rayonier contract to sell trees and parts of trees to GREC because, according to GRU executives, the contract between Rayonier and GREC is a “trade secret” that even GRU and city officials have never seen the GREC-Rayonier contract. But we do know that whatever the terms of the GREC-Rayonier contract, only a small percentage of the money GRU ratepayer money handed over to GREC will go to the purchase of fuel from Alachua County suppliers because (1) there are no oil wells in Alachua County and no diesel fuel refining facilities in Alachua County; and (2) more than 99 percent of Rayonier’s lands are outside of Alachua County.

Where does that leave us? Not with exact numbers, which GRU executives and their aiders and abettors on the city commission see no reason for the public to have this information.

But it leaves us with an understanding of why GRU executives and their aiders and abettors on the city commission never purport to represent how much economic benefit the GRU-GREC biomass deal would allegedly provide to Gainesville and Alachua County, but, instead, insist on telling us vaguely that there will be economic benefits to the “area,” which, given the extent of the “area” from which GREC expects to gather trees and parts of trees for incineration, includes south Georgia and 23 Florida counties other than Alachua County.

The game is almost up for GRU executives, their supporters on the city commission, and their ever-diminishing handful of cohorts off the commission, such as Mr. van Soesterberger and the usual suspects on the GRU-GREC-deal-at-any-cost rapid response team.

But don’t expect them to go quietly. Watch this space for the usual suspects rapid-response team to swoop down with ever more desperate threats and attacks. Watch what happens in waning days of the Gainesville City Commission election as the end game nears. If that watch becomes too depressing, feel free to go to my website to keep up with the efforts of brave Gainesville citizens who are unafraid to speak truth to power and support my campaign to change the City Commission majority and rescue our community from the corrupting influence of the GRU-GREC contract.

Go to — www.voteraywashington.com.

And go to the polls on January 31, and encourage your friends and family to go to the polls. Let your voice be heard!

In another section of this forum I was asked what I would do, if elected to the City Commission, to get out of the GRU-GREC contact. Below is my answer, which I have provided in other places and at other times, but which I may never have provided in quite this form.

1. I would attempt to secure three other votes on the commission to require GRU officials to immediately provide information to the commission as to what construction has been completed at the GREC site and at what cost, and approve an independent report as to whether the initial infrastructure that has been put in thus far (presumably piping, electrical connections and reinforced foundations) could be used, or could be adapted to, some much less expensive and much less locally environmentally deleterious form of electric power generation. (As one example: A 100 MW combine cycle natural gas plant could be built at less than half the cost of the biomass plant, could be operated and maintained at far less than the cost of operating and maintaining the biomass plant, and, at current natural gas prices, could be fueled at less than the cost of extracting wood products from area forests. As to local environmental impacts, a combined cycle natural gas plant would draw only about one quarter the water needed by the biomass plant, would use fuel brought in by existing natural gas pipeline rather than requiring, as would the biomass plant, about 50,000 annual heavy diesel truck trips — 100,000 counting trucks coming and going; would emit only a fraction of the carbon that would be emitted by the biomass plant gas plant; and would emit almost no particulate matter of the sort that would be emitted by the biomass plant, and as has been condemned as damaging to human health by numerous independent medical groups and officials, including the president of the Florida Medical Society whose warnings were in large part responsible for stopping the construction of a biomass plant in Tallahassee and in the nearby African American Community.)

2. I would attempt to secure the cooperation of at least three other commissioners to approve a buy out of the GRU-GREC contract under terms that would favor the ratepayers of this community, with the upfront knowledge as to what use, if any, GRU might later be able to make of the initial infrastructure that has been laid down by GREC thus far. (We know that the major construction has not yet begun, but, thus far, no information has been provided to the pubic as to what construction has been completed, and at what cost).

3. I would support the filing of a lawsuit seeking a declaratory judgment as to whether the GRU-GREC contract is in fact, as it appears to be, void ab initio as a result of having been entered into in violation of the Florida Open Meetings Law. (There are several Sunshine law violations that individual commissioners have already acknowledged having occurred, including (a) the commission’s 2009 approval of the GRU-GREC contract that differed substantially from the 2008 commission negotiation authorization, without having noticed the public about some of the changes and without discussing some of those changes in a public meeting; (b) the appointment by the GRU general manager of a team headed by GRU Assistant General Managers Ed Regan and John Stanton, which team’s deliberations, crystalized and communicated privately to individual commissioners, which team meetings were required to have been noticed and opened to the public; and (c) the admitted (by the Mayor) daisy-chaining by GRU officials of information between the Mayor and individual commissioners as to what the other commissioners knew and what actions the other commissioners intended to take. There are other Sunshine Law violations that I believe have taken place and that, if established, could be separate bases on which a court could make a ruling that the GRU-GREC contract was void ab initio and thereby without force or effect, but I mentioned these three violations specifically because they have been revealed in the public record since April 6, 2011, the date on which several public spirited citizens, opposed by the majority of members of the city commission, in settlement of private litigation, finally secured the unblackening of previously hidden GRU-GREC financial details. The fact that these particular violations of the Sunshine Law were widely known — and, indeed, were part of the public record as a result of having been discussed by myself and others at post April 6 city commission meetings — has the effect of having put GREC officials on notice that the contract through which GREC expects to begin receiving its more than $3 billion payments beginning in 2013 may be a void contract. If a court determines the GRU-GREC contract to have been void ab initio, no payments would be due, unless GREC were to sue the city and seek damages as a result of city commission actions that resulted in the contract being void. But if GREC officials knew or should have known that the contract might be void, GREC officials’ ability to claim damages may be limited by the fact that GREC could have gone to court to seek a declaratory judgment as to the contract’s validity at any time before filing its notice to proceed on June 30, 2011, or any time thereafter, and by such timely action have avoided the substantial expenditure of construction funds that began to flow after June 30. GREC by its failure to take this protective action may have handed this community a great gift, resulting in the community’s extrication from the contract at little financial costs. The great cost to the community in terms of trust in government to look out for its citizens is another matter.

One side note on Florida Open Meetings Law violations: As every attorney familiar with Sunshine Law issues is aware, a contract found to be void ab initio as a result of having been approved in violation of the Open Meetings Law can have new life breathed into it by being “cured” by the body that illegally approved it — in this case the Gainesville City Commission. In order to be cured, the commission need only follow the law the second time around — properly notice a meeting at which the void contract is brought up for reconsideration, openly discuss the relevant contractual provisions in the Sunshine, and vote again to ratify the contract. GREC and its partners drawing public salaries as GRU executives so far have not sought to do this, perhaps because to do so might spook the overseas lenders who have agreed to finance the project (at junk bond rates of 14 to 15 percent interest, according to ad hoc GRU-GREC committee co-lead negotiator Ed Regan). This is a risky choice that depends for its success on the continued passivity of the Gainesville electorate. In the upcoming city election should Gainesville voters elect those candidates who have been hand picked by GRU-GREC-biomass-deal-at-any-cost city commissioners GREC investors will feel safe in having a commission that when the time comes will vote to cure and reimpose on GRU’s already-beleagured ratepayers the onerous terms of the the void GRU-GREC contract.

(In the upcoming elections GRU-GREC biomass-deal-at-any-cost commissioners Mastrodicasa, Bottcher, Henry, Hawkins and Mayor Lowe have all contributed funds they hope will ensure the election of the only three candidates who agree with their pro-biomass positions and have stated they will do nothing to disturb the GRU-GREC contract. Those three GRU-GREC-supporting candidates are: Lauren Poe, seeking the at large seat, and Yvonne Hinson-Rawls and Armando-Grundy, seeking the District 1 seat.)

Commissioners Henry and Mastrodicasa will be gone this year as a result of term limits, the result being that only three of the five above-cited GRU-GREC biomass deal at any costs commissioners will remain on the commission after this election. Should the citizens of Gainesville see fit to elect me as commissioner for District 1 and see fit to elect anyone except for Lauren Poe as the commissioner for the At Large seat, the GRU-GREC end game will have arrived.

We’ll see.

Just before Christmas, GRU officials, operating with the tacit or explicit approval of most members of the Gainesville City Commission, called out the police to threaten with arrest and jail an earnest young African American man named Steve Clark, who has collected hundreds of signatures from GRU ratepayers opposed to the coming GRU-GREC biomass electric rate hikes.

Mr. Clark’s alleged crime? Attempting to engage his fellow Gainesville residents and GRU ratepayers in the political process to give voice to their opposition to the more than $3 billion GRU-GREC deal, the burden for which will fall disproportionately on District 1 electric users, and on businesses.

As can be seen in the video that was recording during the City-sanctioned assault on Mr. Clark’s free speech rights, GRU Security Chief David Thompson had police summon Mr. Clark away from his conversation with another African American GRU ratepayer — a senior citizen named Eloise Bowman — who, along with granddaughter, was attempting to use the public space to share their views about the GRU-GREC biomass deal.

As can be seen in the video. Mr. Clark was taken away from his conversation with Mrs. Bowman and her granddaughter for the sole purpose of accommodating GRU Security Chief Mr. Thompson, surrounded by three armed police officers, in issuing Mr. Clark a criminal trespass warning, the violation of which, Mr. Clark was threatened, would have him “sitting out on Northeast 39th Avenue” (the Alachua County jail).

On the video, one can hear Mrs. Bowman, after Mr. Clark is taken away from his conversation with her, stating — with more intelligence, clarity and common sense than has been exhibited by most members of the Gainesville City Commission in their lockstep support of the financially irresponsible GRU-GREC deal — delivering the message that most commissioners and GRU officials acting in concert with them seem desperate to suppress at any cost to the rights and expectations of citizens of this community:

“It’s not fair from them to try to make us pay for this new plant they’re putting up. We’re not responsible for them putting up the new plant.”

Who will stand up for the people of District 1 to make sure their common sense pleas are not silenced?

I respectfully suggest that this is the more than $3 billion question in the District 1 City Commission race, and the question that most separates me from my opponents. Neither of the two other candidates for the District 1 City Commission seat has uttered a word of support for Mr. Clark or Mrs. Bowman, or offered any protest against the violation of Mr. Clark’s civil rights.

Why not?

The answer to this most important question is known only to my two campaign opponents, who are actively supported in their city commission electoral campaigns by a majority of members of the city commission — the most ardent supporters of the GRU-GREC biomass deal at any cost, Mayor Lowe, and Commissioners Bottcher, Hawkins and Henry. Meanwhile,
I have condemned what happened to Mr. Clark and Mrs. Bowman and her granddaughter, have offered support for their cause, and have rolled up my sleeves and drafted a legal memorandum that I sent to Gainesville Police Department Chief Tony Jones, GPD legal advisor Ron Combs, and City Attorney Marion Radison explaining why I believe their civil rights have been violated.

Whatever my opponents’ virtues – and they do have virtues – among them does not seem to be a willingness to take a stand against the powers that be on the city commission in order to protect and defend the beleaguered people of Gainesville when the people need it most.

I believe most District 1 voters do not want to elect a new commissioner wedded to toeing the current commission’s line at the expense of the rights of the citizens of District 1.

FOURTH REVISED MEMORANDUM ON GAINESVILLE CITIZEN/RATEPAYERS’ CONSTITUTIONAL RIGHTS OF FREE SPEECH, PEACEABLE ASSEMBLY AND PETITION FOR REDRESS OF GRIEVANCES ON GRU TITLED SIDEWALKS

DATE: DECEMBER 27, 2011

TO: RONALD COMBS, SENIOR ASSISTANT CITY ATTORNEY

BACKGROUND

For more than four years, some elected Gainesville City Commissioners and some unelected Gainesville Regional Utilities officials have taken the position that a significant portion of the city utility’s electric generation capacity should be provided by the incineration of wood or waste wood variously known as woody biomass, or biomass. The biomass debate has energized a cross section of the Gainesville community, including those who support biomass generation and those who oppose biomass generation, at least in the manner proposed and at the cost proposed – currently projected to be between $3 billion and $4 billion.

For more than four years, some proponents of biomass incineration generally – particularly including Gainesville City Commissioners who identify themselves as supporters of GRU’s contract with the private out-of-state limited liability corporation known as GREC – have sought to limit public debate1 about the GRU-GREC biomass contract and have continued those efforts to limit public discussion down through the present time. 2

GPD’S RECENT INVOLVEMENT IN GRU’S ATTEMPTS TO LIMIT CITIZEN/RATEPAYERS’ FIRST AND FOURTEENTH AMENDMENT RIGHTS

On November 28, 20113 several individual Gainesville citizens and GRU ratepayers began expressing their opposition to GRU-GREC biomass contract at GRU headquarters on S.E. 4th Avenue, vowing to return to GRU headquarters during every business day until the January 31, 2012 city elections. Their targeting of GRU headquarters rather than City Hall for their expressive activity was in part because the Gainesville City Commission had ceded to GRU discretionary authority to increase GRU ratepayer obligations under the GRU-GREC contract without further city commission approval or review; in part because the last public forum regarding the GRU-GREC contract was held in the GRU headquarters building; and in part because more GRU ratepayers tend to visit GRU headquarters to voice their opinions about GRU policies and actions than tend to visit City Hall to express their views about these issues.

The individual expressive activities undertaken by these citizens and ratepayers have included: (1) walking back and forth in front of GRU headquarters holding hand-made signs stating opinions and asking questions about the GRU-GREC biomass deal; (2) handing out leaflets regarding the GRU-GREC biomass contract and encouraging other citizens and ratepayers to participate in the political process; (3) providing other citizens and ratepayers with the opportunity to express their opinions about the GRU-GREC biomass contract on video; and (4) seeking signatures of other citizens and ratepayers for petitions for the redress of grievances regarding the GRU-GREC biomass contract. These activities have all occurred on sidewalks apparently owned by GRU and/or the City of Gainesville that lie between the public roadway and the GRU headquarters building, and not within the GRU headquarters building itself.

During the first week of citizen and ratepayer protests at GRU headquarters, GPD was consulted by GRU officials regarding mechanisms for limiting the access, but took no action.

During the second week of citizen and ratepayer protests at GRU headquarters, armed GPD officers were summoned by GRU officials to GRU headquarters to inform several senior citizen ratepayers – Dallas Priest, Harold Saive and Debbie Martinez – that they would not be allowed on GRU property for any purpose other than paying GRU bills or conducting GRU-defined business, and that if they set foot on GRU property in the future for any other purpose they would be subject to arrest. The senior citizen ratepayers thereafter have remained off GRU property, awaiting word from GPD Chief Tony Jones as to whether GRU officials would agree to rescind their threats of arrest, or whether GPD would refuse to enforce them.

Last week, following your apparent advice to Chief Jones and City Attorney Marion Radson, and, presumably GRU officials, armed GPD officers summoned by GRU officials were again dispatched to GRU headquarters to inform yet another citizen ratepayer he would not be allowed on GRU property for any purpose other than paying his GRU bills or conducting GRU-defined business, and that if he was to set foot on GRU property in the future for any other reason he would be subject to arrest. 4

Given your written advice, and GRU officials’ consequent resumed actions to restrict expressive activity on sidewalks surrounding GRU, Gainesville area citizens and ratepayers – their fifth week of protest to begin when GRU reopens for business on Wednesday, December 28 – are in the process of determining what actions to take in order to protect their First Amendment rights and the First Amendment rights of other citizens and ratepayers in the face of GRU’s GPD enforced policy of exclusion of expressive activities from GRU sidewalks.

GPD’S POSITION

The week that GPD officers, at the request of GRU officials, issued their first arrest threats to the senior citizens and ratepayers, I was requested by citizens and ratepayers to attempt to intervene with GPD Chief Tony Jones on their behalf to attempt to discover whether GPD would decline to arrest them. I agreed to discuss this matter with Chief Jones, not as an attorney representing their interests as clients but as a city commission candidate concerned both with the deprivation of First Amendment rights of any Gainesville citizens and ratepayers, and as a citizen concerned about with the expanding and increasingly questionable attempts by GRU-GREC biomass deal proponents in official capacities to squelch public debate about the single largest private contract ever approved by the Gainesville City Commission.

As a result of these requests, I contacted Chief Jones by phone and email the week the first GRU trespass warnings were issued. The following week, I spoke with Chief Jones personally about this matter, and again followed up by email. Last week I again contacted Chief Jones by email again requesting to know whether he intended to either to ask GRU officials to withdraw their trespass warnings against the senior citizen ratepayers, or, alternatively, to know whether Chief Jones would inform GRU officials that GPD would not enforce trespass warnings issued in violation of constitutional rights of Gainesville citizens and ratepayers. Chief Jones subsequently informed me that he would be meeting with you about this matter on Thursday, December 22.

After the close of business on Thursday, December 22, 2011 you forwarded me an email to Chief Jones and City Attorney Marion Radson in which you stated what I took to be your advice to Chief Jones and Mr. Radson – that, in your opinion, GPD would arrest the citizen ratepayers on GPD property following trespass warnings that had been issued to them, if they ventured back onto GPD property to continue their expressive activities. If I am incorrect in my interpretation of your forwarded email, please let me know by noon tomorrow so that I may accurately advise the citizen ratepayers of GPD’s position, which will assist them in determining what action to take as their protest enters its fourth week, two weeks after trespass warnings were issued against them and after which they determined not to set foot on GRU property again or test GRU’s legal position until GPD’s position had been made clear to them.

THE LAW

Your conclusion, as expressed to Chief Jones, and to City Attorney Radson, appears to be that GRU trespass warnings against the citizen ratepayers engaged in expressive activity may be issued and enforced without justification because, in your opinion: “While it is a public building, GRU is not, and has not to my knowledge, ever been declared or used as a ‘traditional public forum.’” If this is your conclusion, I could not disagree more strongly.

Inasmuch as the none of the expressive activity undertaken by the citizen ratepayers against whom GRU officials issued trespass warnings occurred within the GRU headquarters building, I assume that for the purpose of your legal advice to Chief Jones and Mr. Radson you have classified all property titled to GRU under your chosen rubric of “public building.”

Whatever the nomenclature you have applied to the sidewalks outside of the GRU headquarters building, the sidewalks being the only GRU property on which the citizen ratepayers have protested or sought to protest, the question at issue is not whether the GRU building has been declared or used as a traditional public forum, but whether the First Amendment, applicable to the states by virtue of the Fourteenth Amendment, is violated when a trespass warning is issued against citizens and GRU ratepayers who wish to engage in expressive activity on publicly owned sidewalks between the doors to the GRU headquarters building and Gainesville’s city streets.

The answer to this question is important, because if GPD officers seek to enforce a trespass warning issued in violation of existing decisional law, those officers may by so doing deprive themselves of qualified immunity to which they may otherwise be entitled in a 42 U.S.C. § 1983 legal action seeking monetary damages, injunctive relief or a declaratory judgment.

As you know, the United States Supreme Court has required a so-called forum analysis in determining the level of restriction that may be permissibly applied to expressive activities on public property. Under the tri-partite analysis laid out by the Court Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983), first category is the traditional public forum. Traditional public forums include the streets, sidewalks, and parks. In a traditional public forum, the state may not restrict speech based on content and must show that its regulation is necessary to serve a compelling state interest and is narrowly tailored to achieve that interest.

Inasmuch as the citizen ratepayer protestors against whom GRU has issued trespass warnings had been conducting their expressive activities on allegedly GRU-owned sidewalks that were not distinguishable from any other city owned sidewalks, trespass warnings selectively issued by GRU officials targeting those who “protest re: biomass” – as recited in the GRU incident report memorializing GRU’s trespass warnings to the citizen ratepayers – have not indentified any legitimate state interest, much less a compelling one.

In United States v. Grace, 461 U.S. 171 (1983), decided immediately after Perry, the U.S. Supreme Court held that sidewalks owned by the Supreme Court (which building the court considered to be a “non public forum”) were nevertheless traditional public fora for Perry analytical purposes because: “The sidewalks comprising the outer boundaries of the Court grounds are indistinguishable from any other sidewalks in Washington, D.C., and we can discern no reason why they should be treated any differently. Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property.”

The Supreme Court in Grace, while acknowledging that sidewalks on some non-public-fora property – such as military bases – in some circumstances can take on the non-public forum characteristics of a physically separated enclave through which those sidewalks traverse (and are thus “separated from the streets and sidewalks of the city itself”) such is “not true of the sidewalks surrounding the Court. There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave. . . Traditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of property.”

This analytical approach for analyzing First Amendment protection for expressive activities on sidewalks abutting public buildings has been applied by courts for 28 years now, and is well established.

While no cases can be located that specifically discuss the status of sidewalks abutting public utility headquarters buildings – as no cases are evident treating the status of sidewalks abutting many other specific types of public buildings – the analytical framework is nevertheless well established.

See, e.g., Brister v. Faulkner, 214 F.3d 675 (5th Cir., 2000), in which individuals handing out leaflets before an on-campus event at the University of Texas at Austin’s Frank C. Erwin Jr. Special Events Center (the “Erwin Center”) were forced to leave the property based on proof that they were interfering with the arrival and departure of the facility’s patrons. These individuals, as a result, sued university officials under 42 U.S.C. § 1983, seeking damages, declaratory relief, and an injunction against future First Amendment violations. The Brister court issued the requested declaratory relief based on a finding that although the university’s property itself was not a traditional public forum, the sidewalks leading up to the doors of the special events center building were to be considered a traditional public forum because a “portion of the university’s property on the center’s Red River Street side consists of a brown gravel area paved with small stones that extends from the center’s public entrance out to the sidewalk. This property blends in with the city’s sidewalks, and there is no physical demarcation indicating where university property ends and the city’s easement begins.”5

In issuing the declaratory judgment against University of Texas officials and the police officer who sought to prohibit lawful expressive access to the center’s sidewalks (in both their official and individual capacities) the Brister court found that “in no way were the plaintiffs’ ‘threats of prosecution . . . imaginary, speculative or chimerical’: The officers were fully prepared to arrest the protesters if they did not comply with the officers’ instructions.”

The Brister ruling makes clear that the Gainesville citizen ratepayers excluded from GRU’s sidewalks by GRU officials, if arrested or threatened with arrest for their attempts to utilize GRU sidewalks for their expressive activity under the facts as memorialized in GPD’s incident reports, have grounds for seeking judicial intervention in federal court under 42 U.S.C. § 1983.

Improper exclusion and arrests or threats of arrest of citizen ratepayers lawfully exercising or attempting to exercise their First Amendment expressive rights under these circumstances may strip GRU officials and GPD police officers of qualified immunity that they might otherwise be entitled to assert.

Before another day passes in which Gainesville citizens and ratepayers are under improper threat of arrest and incarceration for exercising their First Amendment rights on GRU owned sidewalks outside of the GRU headquarters building, I ask that you reconsider your advice.

I also request that you or Chief Jones or another city or GPD official inform me before noon tomorrow whether or not GPD intends to enforce the trespass warnings issued against Gainesville citizens and ratepayers by GRU officials, so that these citizens and ratepayers may take action in accordance with that information.

Notes

1 Biomass supporters’ attempts to limit discussion on the biomass issue dates back to June 18, 2007 when Gainesville City Commissioner Jack Donovan unsuccessfully moved for a series of four public meetings with public participation before the City Commission, at Mayor Pegeen Hanrahan’s request, formally approved GRU’s request to seek bids for construction of a biomass burning power plant plan. Commissioner Donovan’s motion for increased public discourse was opposed by Mayor Hanrahan, and GRU’s request to move forward with the biomass plant was approved. Mayor Hanrahan a few hours later flew to Washington D.C. to make her national debut testifying before a select Congressional committee on global warming, before which she delivered previously drafted comments in which she stated that under her leadership the city commission had voted to move forward with a biomass power plant that under then-existing carbon accounting rule would accomplish her goal of conformance with the so-called international Kyoto Protocol.

2 (1) Pro-biomass city commissioners sidestepped overwhelming public opposition to the awarding a biomass electricity contract to the predecessor of GREC on May 12, 2008 by unanimously voting to include in the contract a contractual back-out clause and then, without public notice or public discussion, secretly agreeing to have the back-out clause removed from the contract; (2) Pro-biomass city commissioners, without public notice or public discussion, on May 7, 2009 voted to approve a more than $3 billion expanded contract with GREC that included provisions to keep secret from the public key provisions of the GRU-GREC contract until nearly 2050, including never publicly discussed provisions giving GRU officials – without the requirement of future public meetings – the authority to adjust upward payments under the GRU-GREC contract throughout its entire 30 year term; (3) Pro-biomass city commissioners appeared at multiple regulatory hearings supporting the GRU-GREC deal, while at the same time declining to hold any city sponsored meetings to allow public discourse about the GRU-GREC deal; (4) Pro-biomass city commissioners and Mayor Hanrahan opposed citizen legal actions that resulted in the secret terms of the GRU-GREC contract being made public; (5) Former Mayor Hanrahan on March 16, 2011 – three weeks before the secret portions of the GRU-GREC were revealed to the public and the day GRU officials signed off on a then secret more than $100 million increase in the GRU-GREC contract – published in The Gainesville Sun an opinion piece criticizing Gainesville citizens whose legal efforts she then knew would result in secret portions of the GRU-GREC contract being made public; (6) Pro-biomass city commissioners from the April 6, 2011 release of the previously secret portions of the GRU-GREC contract until October 10, 2011 refused all citizen requests for a public meetings and discussions of the GRU-GREC contract details; (7) Pro-biomass former Mayor Hanrahan and pro-biomass current City Commissioner Jeanna Mastrodicasa wrote to Gainesville citizens in The Gainesville Sun attempting to dissuade them from attending an October 9, 2011 citizen-led forum whose purpose was to discuss previously secret information contained in the GRU-GREC contract; (8) Pro-biomass City Commissioners Susan Bottcher and Thomas Hawkins, and Mayor Craig Lowe, the day before the official groundbreaking ceremony for the GREC biomass plant on October 11, 2011, conducted the first city-sponsored meeting about the GRU-GREC deal since the deal was approved by the city commission two and a half years before on May 7, 2009, and at that meeting allowed GRU officials to present their versions of the GRU-GREC decision-making process while prohibiting consideration of citizen questions relating to the GRU-GREC decision-making process; (9) Pro-biomass City Commissioner Bottcher, chair of city’s Regional Utilities Committee (RUC), since October 10, 2011 has refused to respond to repeated citizen requests to have a video of the October 10, 2011 RUC meeting posted on the RUC schedule web page under the tab “Video”; and (10) Pro-biomass RUC members Commissioners Bottcher and Hawkins and Mayor Lowe since October 10, 2011 have blocked attempts to have any aspects of the GRU-GREC deal returned to the Gainesville City Commission for further public discussion.

3 See: http://www.wcjb.com/news/11087/protest-at-gru

4 Shortly after trespass warnings were issued against the three senior citizen ratepayers, other ratepayers began appearing at GRU and protesting on the same sidewalk property from which the senior citizen ratepayers had been banned. It was not until a day after your issuance of written advice that on Friday, December 23, 2011, GRU summoned three armed GPD officers to witness the delivery of a fourth trespass warning, this time against Steven Cark, a 36-year-old African American ratepayer who had gathered more than 60 signatures from other GRU ratepayers opposed to the GRU-GREC biomass deal. I have requested and am awaiting receipt of the incident report describing this additional trespass warning.

5It is important to note that in Brister the court did not address what sorts of First Amendment protections would have been be available to the protestors on the center’s sidewalks if the center itself had been a “dedicated public forum” or a “limited public forum,” focusing on the fact that at the center “there is no indication or physical demarcation of the public sidewalk, which is a public forum, and the university grounds, which typically are not.” The GRU office building, unlike the University of Texas center at issue in Brister, has been used hundreds of times for public meetings in which GRU and city officials have solicited the attendance of citizens wishing to express their views on a variety of matters of public concern. On October 10, 2011, in fact, the Gainesville City Commission and GRU officials invited citizens to ask questions and to share their views on the GRU-GREC biomass rate impacts – the very issue the discussion of which on GRU grounds GRU officials now seek to criminalize with the assistance of armed GPD officers.

Below is a memorandum I have written and intend to send to senior city attorney Ron Combs, GPD’s legal adviser and copy to City Attorney Marion Radson, tomorrow.

I am hoping that some recipients of this email will come to GRU headquarters on Wednesday at noon — and encourage others to come to GRU headquarters on Wednesday at noon — when the citizen ratepayer protestors who have been given illegal trespass warnings meet to determine their next moves.

REVISED MEMORANDUM ON GAINESVILLE CITIZENS’ AND RATEPAYERS’
CONSTITUTIONAL RIGHTS OF FREE SPEECH, PEACEABLE ASSEMBLY AND PETITION
FOR REDRESS OF GRIEVANCES ON GRU TITLED SIDEWALKS

DATE: DECEMBER 27, 2011

TO: RONALD COMBS, SENIOR ASSISTANT CITY ATTORNEY

BACKGROUND

For more than four years, some elected Gainesville City Commissioners
and some unelected Gainesville Regional Utilities officials have taken
the position that a significant portion of the city utility’s electric
generation capacity should be provided by the incineration of wood or
waste wood variously known as woody biomass, or biomass. The biomass
debate has energized a cross section of the Gainesville community,
including those who support biomass generation and those who oppose
biomass generation, at least in the manner proposed and at the cost
proposed – currently projected to be between $3 billion and $4
billion.

Some proponents of biomass incineration generally, including
Gainesville City Commissioners who identify themselves as supporters
of GRU’s contract with the private out-of-state limited liability
corporation known as GREC, particularly, for more than four years have
sought to limit public debate1 about the GRU-GREC biomass contract and
have continued2 those efforts to limit public discussion down through
the present time.

GPD’S RECENT INVOLVEMENT IN GRU’S ATTEMPTS TO LIMIT CITIZEN RIGHTS
UNDER THE FIRST AND FOURTEENTH AMENDMENTS

On December 5, 20113 several individual Gainesville citizens and GRU
ratepayers began expressing their opposition to GRU-GREC biomass
contract at GRU headquarters on S.E. 4th Avenue, vowing to return to
GRU headquarters during every business day until the January 31, 2012
city elections. Their targeting of GRU headquarters, rather than City
Hall, for their expressive activity was in part because the
Gainesville City Commission had ceded to GRU discretionary authority
to increase GRU ratepayer obligations under the GRU-GREC contract
without further city commission approval or review; in part because
the last public forum regarding the GRU-GREC contract was held in the
GRU headquarters building; and in part because more GRU ratepayers
tend to visit GRU headquarters to voice their opinions about GRU
policies and actions than tend to visit City Hall to express their
views about these issues.

The individual expressive activities undertaken by these citizens and
ratepayers have included: (1) walking back and forth in front of GRU
headquarters holding hand-made signs stating opinions and asking
questions about the GRU-GREC biomass deal; (2) handing out leaflets
regarding the GRU-GREC biomass contract and encouraging other citizens
and ratepayers to participate in the political process; (3) providing
other citizens and ratepayers with the opportunity to express their
opinions about the GRU-GREC biomass contract on video; and (4) seeking
signatures of other citizens and ratepayers for petitions for the
redress of grievances regarding the GRU-GREC biomass contract. These
activities have all occurred on sidewalks apparently owned by GRU
and/or the City of Gainesville that lie between the public roadway and
the GRU headquarters building, and not within the GRU headquarters
building itself.
During the first week of citizen and ratepayer protests at GRU
headquarters, GPD was consulted by GRU officials regarding mechanisms
for limiting the access, but took no action.

During the second week of citizen and ratepayer protests at GRU
headquarters, armed GPD officers were summoned by GRU officials to GRU
headquarters to inform several senior citizen ratepayers – Dallas
Priest, Harold Saive and Debbie Martinez – that they would not be
allowed on GRU property for any purpose other than paying GRU bills or
conducting GRU-defined business, and that if they set foot on GRU
property in the future for any other purpose they would be subject to
arrest. The senior citizen ratepayers thereafter have remained off
GRU property, awaiting word from GPD chief Tony Jones as to whether
GPD would agree to rescind these threats of arrest.

During the third week of citizen and ratepayer protests at GRU
headquarters, armed GPD officers were again summoned by GRU officials
to GRU headquarters to inform a 36-year-old African American protestor
named Steve Clark that he would not be allowed on GRU property for any
purpose other than paying his GRU bills or conducting GRU-defined
business, and that if he was to set foot on GRU property in the future
for any other reason he would be subject to arrest.

These four citizens and GRU ratepayers, as their fourth week of
protest is about to begin, are in the process of determining what
actions to take in order to protect their First Amendment rights and
the First Amendment rights of other citizens and ratepayers in the
face of GRU’s GPD enforced policy of exclusion of expressive
activities from GRU sidewalks.

GPD’S POSITION

The week that GPD officers, at the request of GRU officials, issued
their first arrest threats to the senior citizens and ratepayers, I
was requested by citizens and ratepayers to attempt to intervene with
GPD Chief Tony Jones on their behalf to attempt to discover whether
GPD would decline to arrest them. I agreed to discuss this matter
with Chief Jones, not as an attorney representing their interests as
clients but as a city commission candidate concerned both with the
deprivation of First Amendment rights of any Gainesville citizens and
ratepayers, and a citizen concerned about with the expanding and
increasingly questionable attempts by GRU-GREC biomass deal proponents
in official capacities to squelch public debate about the single
largest private contract ever approved by the Gainesville City
Commission.

As a result of these requests, I contacted Chief Jones by phone and
email the week the first GRU trespass warnings were issued. The
following week, I spoke with Chief Jones personally about this matter,
and again followed up by email. Last week I again contacted Chief
Jones by email again requesting to know whether he intended to either
to ask GRU officials to withdraw their trespass warnings against the
senior citizen ratepayers, or, alternatively, to know if Chief Jones
would inform GRU officials that GPD would not enforce trespass
warnings issued in violation of constitutional rights of Gainesville
citizens and ratepayers. Chief Jones subsequently informed me that he
would be meeting with you about this matter on Thursday, December 22.

After the close of business on Thursday, December 22, 2011 you
forwarded me an email to Chief Jones and City Attorney Marion Radson
in which you stated what I took to be your advice to Chief Jones and
Mr. Radson – that, in your opinion, GPD would arrest the citizen
ratepayers on GPD property following a the trespass warnings that had
been issued to them if they ventured back onto GPD property to
continue their expressive activities. If I am incorrect in my
interpretation of your forwarded email, please let me know by noon
tomorrow so that I may accurately advise the citizen ratepayers of
GPD’s position, which will assist them in determining what action to
take as their protest enters its fourth week, two weeks after trespass
warnings were issued against them and after which they determined not
to set foot on GRU property again or test GRU’s legal position until
GPD’s position had been made clear to them.

THE LAW

Your conclusion, as expressed to Chief Jones, and to City Attorney
Radson, appears to be that GRU trespass warnings against the citizen
ratepayers engaged in expressive activity may be issued and enforced
without justification because, in your opinion: “While it is a public
building, GRU is not, and has not to my knowledge, ever been declared
or used as a ‘traditional public forum.’”

If this is your conclusion, I could not disagree more strongly.

Inasmuch as the none of the expressive activity undertaken by the
three senior citizen ratepayers4 against whom GRU officials issued
trespass warnings occurred within the GRU headquarters building, I
assume that for the purpose of your legal advice to Chief Jones and
Mr. Radson you have classified all property titled to GRU under your
chosen rubric of “public building.”

Whatever the nomenclature you have chosen to apply to the sidewalks
outside of the GRU headquarters building, the sidewalks being the only
GRU property on which the senior citizen ratepayers have protested or
sought to protest, the question at issue is not whether the GRU
building has been declared or used as a traditional public forum, but
whether the First Amendment, applicable to the states by virtue of the
Fourteenth Amendment, is violated when a trespass warning is issued
against citizens and electric ratepayers who wish to engage in
expressive activity on publicly owned sidewalks between the doors to
the GRU headquarters building and the city streets.

The answer to this question is important, because if GPD officers seek
to enforce a trespass warning issued in violation of existing
decisional law, those officers may by so doing deprive themselves of
qualified immunity to which they may otherwise be entitled in a 42
U.S.C. § 1983 legal action seeking monetary damages, injunctive relief
or a declaratory judgment.

As you know, the United States Supreme Court has required a so-called
forum analysis in determining the level of restriction that may be
permissibly applied to expressive activities on public property. Under
the tri-partite analysis laid out by the Court Perry Education
Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983),
first category is the traditional public forum. Traditional public
forums include the streets, sidewalks, and parks. In a traditional
public forum, the state may not restrict speech based on content
unless it can show that its regulation is necessary to serve a
compelling state interest and is narrowly tailored to achieve that
interest.

Inasmuch as the citizen ratepayer protestors against whom GRU has
issued trespass warnings had been conducting their expressive
activities on allegedly GRU-owned sidewalks that were not
distinguishable from any other city owned sidewalks, trespass warnings
selectively issued by GRU officials targeting those who “protest re:
biomass” – as recited in the GRU incident report memorializing GRU’s
trespass warnings to the senior citizen ratepayers – have not
identified any legitimate state interest, much less a compelling one.

In United States v. Grace, 461 U.S. 171 (1983), decided immediately
after Perry, the U.S. Supreme Court held that sidewalks owned by the
Supreme Court (which building the court considered to be a “non public
forum”) were nevertheless traditional public fora for Perry analytical
purposes because: “The sidewalks comprising the outer boundaries of
the Court grounds are indistinguishable from any other sidewalks in
Washington, D.C., and we can discern no reason why they should be
treated any differently. Sidewalks, of course, are among those areas
of public property that traditionally have been held open to the
public for expressive activities and are clearly within those areas of
public property that may be considered, generally without further
inquiry, to be public forum property.”
The Supreme Court in Grace, while acknowledging that sidewalks on some
non-public-fora property – such as military bases – in some
circumstances can take on the non-public forum characteristics of an
physically separated enclave through which those sidewalks traverse
(and are thus “separated from the streets and sidewalks of the city
itself”) such is “not true of the sidewalks surrounding the Court.
There is no separation, no fence, and no indication whatever to
persons stepping from the street to the curb and sidewalks that serve
as the perimeter of the Court grounds that they have entered some
special type of enclave. . . Traditional public forum property
occupies a special position in terms of First Amendment protection and
will not lose its historically recognized character for the reason
that it abuts government property that has been dedicated to a use
other than as a forum for public expression. Nor may the government
transform the character of the property by the expedient of including
it within the statutory definition of what might be considered a
non-public forum parcel of property.”

This analytical approach for analyzing First Amendment protection for
expressive activities on sidewalks abutting public buildings has been
applied by courts for 28 years now, and is well established.

While no cases can be located that specifically discuss the status of
sidewalks abutting public utility headquarters buildings – as no cases
are evident treating the status of sidewalks abutting many other
specific types of public buildings – the analytical framework is
nevertheless well established.

See, e.g., Brister v. Faulkner, 214 F.3d 675 (5th Cir., 2000), in
which individuals handing out leaflets before an on-campus event at
the University of Texas at Austin’s Frank C. Erwin Jr. Special Events
Center (the “Erwin Center”) were forced to leave the property based on
proof that they were interfering with the arrival and departure of
the facility’s patrons. These individuals, as a result, sued
university officials under 42 U.S.C. § 1983, seeking damages,
declaratory relief, and an injunction against future First Amendment
violations. The Brister court issued the requested declaratory relief
based on a finding that although the university’s property itself was
not a traditional public forum, the sidewalks leading up to the doors
of the special events center building were to be considered a
traditional public forum because a “portion of the university’s
property on the center’s Red River Street side consists of a brown
gravel area paved with small stones that extends from the center’s
public entrance out to the sidewalk. This property blends in with the
city’s sidewalks, and there is no physical demarcation indicating
where university property ends and the city’s easement begins.”5

In issuing the declaratory judgment against University of Texas
officials and the police officer who sought to prohibit lawful
expressive access to the center’s sidewalks (in both their official
and individual capacities) the Brister court found that “in no way
were the plaintiffs’ ‘threats of prosecution . . . imaginary,
speculative or chimerical’: The officers were fully prepared to arrest
the protesters if they did not comply with the officers’
instructions.”

The Brister ruling makes clear that the Gainesville citizen ratepayers
excluded from GRU’s sidewalks by GRU officials, if arrested or
threatened with arrest for their attempts to utilize GRU sidewalks for
their expressive activity under the facts as memorialized in GPD’s
incident reports have clear grounds for seeking judicial intervention
in federal court under 42 U.S.C. § 1983.

Improper exclusion and arrests or threats of arrest of citizen
ratepayers lawfully exercising or attempting to exercise their First
Amendment expressive rights under these circumstances may strip GRU
officials and GPD police officers of qualified immunity that they
might otherwise be entitled to assert.

Before another day passes in which Gainesville citizens and ratepayers
are under improper threat of arrest and incarceration for exercising
their First Amendment rights on GRU owned sidewalks outside of the GRU
headquarters building, I ask that you reconsider your advice.

I also request that you or Chief Jones or other GRU official inform me
before noon tomorrow whether or not GPD intends to enforce the
trespass warnings issued against Gainesville citizens and ratepayers
by GRU officials, so that these citizens and ratepayers may take
action in accordance with that information.

Notes

1 Biomass supporters’ attempts to limit discussion on the biomass
issue dates back to June 18, 2007 when Gainesville City Commissioner
Jack Donovan unsuccessfully moved for a series of four public meetings
for public comment before the City Commission, at Mayor Pegeen
Hanrahan’s request, formally approved GRU’s request to seek bids for
construction of a biomass burning power plant plan. Commissioner
Donovan’s motion for increased public discourse was opposed by Mayor
Hanrahan, and GRU’s request to move forward with the biomass plant was
approved. Mayor Hanrahan a few hours later flew to Washington D.C. to
make her national debut testifying before a select Congressional
committee on global warming, before which she delivered previously
drafted comments in which she stated that under her leadership the
city commission had voted to move forward with a biomass power plant
that under then-existing carbon accounting rule would accomplish her
goal of conformance with the so-called international Kyoto Protocol.

2 (1) Pro-biomass city commissioners sidestepped overwhelming public
opposition to the awarding a biomass electricity contract to the
predecessor of GREC on May 12, 2008 by unanimously voting to include
in the contract a contractual back-out clause and then, without public
notice or public discussion, secretly agreeing to have the back-out
clause removed from the contract; (2) Pro-biomass city commissioners,
without public notice or public discussion, on May 7, 2009 voted to
approve a more than $3 billion expanded contract with GREC that
included provisions to keep secret from the public key provisions of
the GRU-GREC contract until nearly 2050, and including never publicly
discussed provisions giving GRU officials – without the requirement of
future public meetings – the authority to adjust upward payments under
the GRU-GREC contract throughout its entire 30 year term; (3)
Pro-biomass city commissioners appeared at multiple regulatory
hearings supporting the GRU-GREC deal, while at the same time
declining to hold any city sponsored meetings to allow public
discourse about the GRU-GREC deal; (4) Pro-biomass city commissioners
and Mayor Hanrahan opposed citizen legal actions that resulted in the
secret terms of the GRU-GREC contract being made public; (5) Former
Mayor Hanrahan on March 16, 2011 – three weeks before the secret
portions of the GRU-GREC were revealed to the public – and the day GRU
officials signed off on a then secret and still unacknowledged $100
million increase in the GRU-GREC contract – published in The
Gainesville Sun an opinion piece criticizing Gainesville citizens
whose legal efforts would result in secret portions of the GRU-GREC
contract being made public; (6) Pro-biomass city commissioners from
the April 6, 2011 release of the previously secret portions of the
GRU-GREC contract until October 10, 2011 refused all citizen requests
for a public meetings and discussions of the GRU-GREC contract
details; (7) Pro-biomass former Mayor Hanrahan and pro-biomass current
City Commissioner Jeanna Mastrodicasa wrote to Gainesville citizens in
The Gainesville Sun discouraging them from attending an October 9,
2011 citizen-led forum whose purpose was to discuss previously secret
information contained in the GRU-GREC contract; (8) Pro-biomass City
Commissioners Susan Bottcher and Thomas Hawkins, and Mayor Craig Lowe,
the day before the official groundbreaking ceremony for the GREC
biomass plant on October 11, 2011, conducted the first city-sponsored
meeting about the GRU-GREC deal since the deal was approved by the
city commission two and a half years before on May 7, 2009 and allowed
GRU officials to present their version of the GRU-GREC decision-making
process after having prohibited consideration of citizen questions
relating to the GRU-GREC decision-making proces; (9) Pro-biomass City
Commissioner Bottcher, chair of city’s Regional Utilities Committee
(RUC), since October 10, 2011 has refused to respond to repeated
citizen requests to have a video of the October 10, 2011 RUC meeting
posted on the RUC calendar web page under the tab “Video”; and (10)
Pro-biomass RUC members Commissioners Bottcher and Hawkins and Mayor
Lowe since October 10, 2011 have blocked attempts to have any aspects
of the GRU-GREC deal returned to the Gainesville City Commission for
further public discussion.

3 See: http://www.wcjb.com/news/11087/protest-at-gru

4 Shortly after trespass warnings were issued against the three senior
citizen ratepayers, other ratepayers began appearing at GRU and
protesting on the same sidewalk property from which the senior citizen
ratepayers had been banned. On Friday, December 23, 2011, GRU
summoned GPD officers to witness the delivery of a fourth trespass
warning, this time against Steven Cark, a 36-year-old African American
ratepayer who had gathered more than 60 signatures from other GRU
ratepayers opposed to the GRU-GREC biomass deal. I have requested and
am awaiting receipt of the incident report describing this additional
trespass warning.

5It is important to note that in Brister the court did not address
what sorts of First Amendment protections would have been be available
to the protestors on the center’s sidewalks if the center itself had
been a “dedicated public forum” or a “limited public forum,” focusing
on the fact that at the center “there is no indication or physical
demarcation of the public sidewalk, which is a public forum, and the
university grounds, which typically are not.” The GRU office
building, unlike the University of Texas center at issue in Brister,
has been used hundreds off times for public meetings, in which GRU has
requested the attendance of citizens wishing to express their views of
matters of public concern, including on October 10, 2011, citizens who
were invited to share their views on the very issue the discussion of
which on GRU grounds GRU officials now seek to criminalize with the
assistance of GPD.