Alachua Voter Guide

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.

GRU officials for the fourth time in less than three weeks have issued trespass warnings, with the threat of arrest and jail, against a GRU ratepayer who dared to set foot on GRU titled property to protest the GRU-GREC electric rate hike.

See: http://www.youtube.com/watch?v=SItIM5Z4Mmg

As shown in the video, just before 1 p.m. today, on the eve of Christmas Eve, GRU officials, with the tacit or explicit approval of the Gainesville City Commission, called three armed GPD police officers away from their public safety duties to record GRU’s security chief’s trespass warning to 36-year-old Steven Clark — with the threat of arrest and jail — if he again sets foot on GRU titled property. Clark had been asking GRU ratepayers opposed to the GRU-GREC biomass plant if they wished to sign a petition and express their opinions. GRU’s latest assault on the Constitutional right of free speech and assembly came after Clark had gathered more than 60 signatures and phone numbers from ratepayers opposed to the GRU-GREC rate hike and eager to express their opposition to it.

Earlier this month, with the tacit or explicit approval of most members of the Gainesville City Commission, had summoned police officers away from their public safety duties to record trespass warnings subjecting three senior citizen GRU ratepayers to arrest if they continued their expressive activities on GRU titled sidewalks and parking lots.

One senior citizen had simply carried home made placards questioning GRU and city officials for having approved the GRU-GREC biomass deal over public opposition. He neither approached GRU customer nor talked to them.

One senior citizen had simply distributed fliers and leaflets encouraging GRU ratepayers opposed to the GRU-GREC biomass deal to participate in the electoral process as a means of addressing their concerns.

One senior citizen had simply given GRU customers opposed to the GRU-GREC biomass deal the opportunity, if they wished, to express their views on camera.

Again, I do not believe that Gainesville citizens will allow GRU officials, paid by GRU ratepayers, and Gainesville City Commissioners, voted into office to protect the interests of citizens, to continue their campaign to silence opposition to the irregularly negotiated, out-of-the-Sunshine and unnecessary GRU-GREC biomass deal.

Commissioner Byerly,

I was recently forwarded an email exchange regarding the GRU-GREC biomass electricity deal in which you appear to express opposition to the concept of the wood burning electric plant based solely on unspecified environmental concerns, while appearing to have no concerns about the financial aspects of the GRU-GREC deal.

If I understand your position correctly — and if I do not, I welcome clarification — I couldn’t disagree with you more strongly. As a candidate for the Gainesville City Commission District 1 seat who was drawn into the race solely because no candidate for the District 1 seat was willing to take a stand against the excessive and unnecessary coming GRU-GREC biomass electric rate hikes, I am committed, if elected, to doing all that is within my power to readdress the GRU-GREC deal and to provide the community with an avenue of relief from the potentially devastating impact that the GRU-GREC biomass rate hikes will have on the people of District 1 (mostly east Gainesville).

Based on extensive research and review of the record over the past year and a half, I have become increasingly concerned about the impact the massive GRU-GREC biomass rate increase will have on economic development efforts for east Gainesville as well as the rest of the community that depends on GRU power. Even before the GRU-GREC rate hikes take effect (these rate hikes as of October 10 being estimated by GRU under a best case scenario adding more than $126 per year to a modest 1,000 kilowatt per month user) GRU already charges customers 40 percent more per 1,000 kilowatt hours of electricity than does Florida Power & Light Company which services customers not 30 miles from Gainesville, including many of those areas in direct competition with Gainesville and Alachua County to attract desirable economic development.

These are not my opinions alone. Talk with Alachua County’s newly hired economic development coordinator Edgar Campos-Palafox about how even small increases in electric rates can hamper a community’s economic development efforts, and about how large electric increases can both make those efforts impossible, and reverse previous progress by forcing jobs-generating businesses to relocate elsewhere.

Without getting into the environmental aspects of the GRU-GREC deal, I ask you to consider the following information, and respond as you see fit.

GRU currently has a 5 year 50 MW Purchased Power Agreement with Florida Progress that, if GRU decision-makers fully utilized it, would allow the purchase of electricity at less than $80 per MWH. GRU, if it actually needed power in 2013 — which it does not — could get a new 5 year Progress contract for less than $70 per MWH.

If GRU actually needed power in 2013 — which it does not — it could build its own natural gas combined cycle electric generation plant and produce electricity at an average cost per MWH of closer to $60, calculating the cost over 30 years to build and operate its own CC natural gas plant, according to the EIA’s latest predictions (including construction costs, financing costs, fuel costs, operation and maintenance costs and taxes) as reported in the Wall Street Journal in late September of this year. At the City of Gainesville’s October 10, 2011 Regional Utilities Committee (RUC) meeting (which can now be viewed on line if you know how to find it) GRU officials acknowledged that the minimum best case scenario cost of the 100 MW of biomass power GRU will purchase under the GREC PPA would be more than $130 per MWH. Although GRU, with the blessing of the current Gainesville City Commission, resisted sharing this information with the public until the day before GREC held its official groundbreaking for biomass plant construction on October 11, it doesn’t take a math whiz to understand the GRU, with the blessing of the city commission, has chosen to move forward with an electricity generating project that will cost more than twice as much as could have been the case.

I cite the above facts because they directly contradict your assertion that it is misleading to suggest that there are options that would not result in a rate hike to customers. Clearly, either a new Progress PPA or a self-build natural gas option would not only not result in a rate hike to customers, but would result in a decline in rates. As further proof that rate reductions are within the capability of GRU, if its board of directors, members of Gainesville City Commission, were willing to do their homework and stand up for GRU’s ratepayers: Over the last three years, while GRU has kept electric rates at the unreasonably high levels resulting from temporary fuel cost spikes in 2008, the City of Tallahassee’s utility has reduced electric rates per 1,000 kilowatt hours by more than 23 percent.

Finally, Commissioner Byerly, I strongly disagree with your suggestion that any efforts by GRU to achieve a reduction in electricity demand would result in significant rate increases. All that would have been necessary for GRU to cut down on system electricity demand would have been for GRU to not renew its wholesale contracts with the City of Alachua and Clay Electric.

I understand from what you have written that the above information that you see an silver lining in rate increases, and I may not change your position. Your position, as I understand it, is that you believe that electric rate increases result in a reduction in electricity use, which you imply is a good thing. You write that you subscribe to a belief in a “general rule” that the cheaper the power the more power people use. But assuming that “general rule” is true, do you justify the devastating economic impact of the multi-billion-dollar wealth transfer out of this community, the economic development reversals, and the electric bill hikes to our community’s poorest and most vulnerable citizens on that basis? If one wished to use high priced power to force conservation as you appear to believe is acceptable (I don’t) why jack up rates unnaturally through overpriced biomass generated electricity via the mechanism of an irregularly negotiated contract, approved by the Gainesville City Commission in violation of the Florida Sunshine Law, that will transfer most of the $3 billion to $4 billion that ratepayers will be charged over the next 30 years to an out-of-state limited liability company whose sole or primary asset is the income stream generating by the GRU-GREC contract? If the goal is to increase electric rates, why not keep the money here, where it will benefit the community? Why not build and operate a far less expensive natural gas power plant (or simply refuse to extend the City of Alachua and Clay Electric wholesale sales contracts) and then jack up the electric rates by the same amount they will be jacked up if the GRU-GREC contract is allowed to stand? At least, in that case (which, again, I do not agree with) the City of Gainesville at least would have tens millions of dollars in increased revenue annually that could be used pay off debt and reduce taxes (offsetting for businesses the increased electric rates) and could be used to buy energy efficient appliances for poor residents who will be hit hardest by the rate increases.

If I have misunderstood your position — or if, in light of the above, your position has changed so that you do oppose the GRU-GREC biomass rate hike for financial reasons (in addition to your recently announced opposition for unspecified environmental reasons) — a response indicating such would be much appreciated.

Sincerely,

Ray Washington
Candidate, Gainesville City Commission, District 1

Gainesville Police Chief Tony Jones is currently looking into GRU’s efforts to turn GPD into a private force to arrest citizens if they set foot on GRU property to protest the coming GRU biomass rate hike. I have been told that in the coming week one way or the other there will be a resolution of the recent arrest threats issued by GPD officers, at the request of GRU officials, aimed at preventing three Gainesvillle senior citizens from setting foot on GRU downtown headquarters property to discuss the coming GRU biomass rate hikes with GRU customers.

While this drama plays out — will GPD support GRU’s commandeering of scare police resources to prevent Gainesville citizens from exercising their free speech and assembly rights or will GPD repudiate GRU’s improper attempts to use scarce city police resources in order to prevent the expression of views contrary to those of GRU officials who themselves use GRU’s downtown property to promote the GRU-GREC biomass deal? — it is useful to revisit, once again, the extended history of GRU and the Gainesville City Commission to keep information about the GRU-GREC biomass deal and the accompanying GRU electric rate hikes hidden from the public.

It has been more than 30 months since the Gainesville City Commission, in violation of the Florida Sunshine Law, on May 7, 2009 approved a largely secret more than $3 billion contract to require Gainesville area users to purchase over-priced electric power for three decades from an out of state limited liability corporation known as GREC, details of which contract were to be withheld from the public until nearly 2050, with the express support and approval of the city commission.

It has been more than eight months since attempted-to-be-kept secret provisions of the GRU-GREC contract were made public as a result of the settlement of three legal challenges by invididual Gainesville citizens who, though opposed by most city commissioners, agreed in the public interest to settle their legal challenges to the GREC biomass deal in return for, among other things, the unblackening of the 30-year GRU GREC contract.

It has been nearly seven months since I requested that the city commission — in light of the now revealed terms of the GRU-GREC contract, and in light of GRU’s rosy predictions having not come about — to authorize an independent evaluation of the GRU-GREC contract to determine whether the community’s best interests would be served to continuing with the GRU-GREC contract, or whether the community’s best interests would be better served by renegotiating or canceling the contract prior to GREC issuing it’s notice to proceed with construction, which was still weeks away from occuring.

It has been more than six months since GRU’s Assistant General Manager (and co-lead negotiator on the GRU-GREC deal) ordered professional engineer and Gainesville Energy Advisory Committee member Joe Wills to abandon his efforts to have GEAC perform its legally mandated duty to encourage and facilitate dialogue between the city commission and the public on energy policy matters such as the GRU-GREC biomass deal.

It has been more than five months since GREC issued its notice to proceed with construction, on the same day on which Gainesville City Commissioner Thomas Hawkins advised engineer and GEAC member Wills to further GRU official Stanton’s efforts to stop public dialogue about the GRU-GREC deal, adding his own advice that Wills should “politely” ignore members of the public whose views conflicted with those of GRU officials.

It has been more than five months since the Gainesville City Commission referred all discussion of the GRU-GREC rate impacts to the city’s Regional Utilities Committee, an act that Mayor Craig Lowe and allies on the commission interpret as prohibiting the city commissioners from engaging in any furhter public discussions of the GRU-GREC biomass deal, and its rate impacts, until the RUC completes its “deliberations.”

It has been two months since the RUC, headed by City Commissioner Susan Bottcher, began its “deliberations” — the first city commission sanctioned discussion of any aspect of the GRU-GREC deal in nearly two and a half years.

Which brings us to the present — sort of.

What happened at the RUC meeting?

Those who attended the meeting are aware that the vast majority of the citizens who attended the meeting — held at the very GRU building from which GRU officials would call out police to threaten senior citizens who wished to discuss the GRU-GREC biomass deal and its attendant rate hike — were adamantly opposed to the deal, demanding answers to questions the city commission had dodged for two and a half years.  They are aslo aware that many of the quesions asked by citizens were not answered by the RUC meeting emcee, GRU General Manager Robert Hunzinger, who announced before answering quesitons that he intended to allocate about fifteen minutes to address those questions he deemed to be “pertinent.”

But those who were unable to attend the meeting — held at 4 p.m. in the afternoon on October 10 — likely know little or nothing of what transpired.

For two months I have been trying to ensure the vidoe of the meeting gets out to the public.

Below you will find a letter letters I wrote to Mayor Craig Lowe and the commission on November 16 — two days before I decided to run for District 1 of the Gainesville City Commission — weeking to ensure that the RUC meeting video is put on the website where members of the public can find it, and that GRU cease using ratepayer money to fund propganda designed to mislead the public.

Neither Mayor Lowe (nor any member of the City Commission except for Commissioner Todd Chase) has responded to this letter, nor even acknowledged having read it.

In addition to the November 16 letter, I also wrote three ealier letters to  RUC Chair Susan Bottcher asking that she answer important questions that arose at the RUC meeting, which answers Gainesville citizens and GRU ratepayer deserve to have answered, particularly inasmuchas Commissioner Bottcher’s RUC has taken jurisdiction of all discussion of the GRU-GREC biomass deal, which, in the mind of Bottcher and most other city commissioners, has thereby immunized the city commisison from having to discuss the deal with the public until some unspecified time after the city commission elections.

I did receive a response to these letters from Ms. Bottcher — an email informing me that the only way she would address any of the questions raised would be in a private meeting with legal counsel present.  I responded that the questions raised in my letters were questions of public interest and should be discussed in a public form, where the public could have access to the answers.  It has been more than a month, and Commissioner Bottcher has not further responded to my questions.  Commisisoner Chase, to his credit, attempted to discuss these questions in a public meeting of the commission, only to be told by the Mayor that because the RUC had assumed jurisdiction of biomass rate hike related information, his attempt to foster a discussion in a regular city commission meeting was “inappropriate.”

Here are the four letters. Read them and draw your own conclusions:

November 16, 2011

The Honorable Craig Lowe, Mayor
Members of the Gainesville City Commission
200 East University Avenue
Gainesville, FL 32601

Dear Mayor and Commissioners:
As you know, a community dialogue finally has begun after 2 ½ years of a commission-sanctioned wall of silence about previously secret financial details of the so-called GREC biomass deal. As this process plays out, it is important that the commission take a proactive stance in assuring that members of the public have access to accurate, easily accessible information relating to the most costly private contract ever approved by the commission.
An important step in the community dialogue process occurred when the city’s Regional Utility Committee held a public meeting at Gainesville Regional Utilities’ downtown headquarters on October 10, 2011. At that meeting GRU leaders provided their account of the GREC decision-making process, made many arguments, presented some asserted facts and answered some citizen questions.
RUC Chair Susan Bottcher is to be commended for her acquiescence to repeated citizen requests that she allow a video of the RUC meeting to be posted on the city’s website. But Commissioner Bottcher was also asked, weeks ago, to have the RUC meeting video made accessible to the public at the website location where most members of the public would expect to find it – i.e., next to the October 10, 2011 RUC meeting entry under the heading “video.” As of today – 44 days after the RUC meeting – the video link remains grayed out with the words “Not available.” Obviously, only by actually locating and viewing the RUC video are members of the public who did not attend the RUC meeting able to compare the assertions of GRU leaders at that meeting with facts about the GRU-GREC deal contained in documents now being made public.
By this letter, on my own behalf, I ask the city commission, as a body, to require that the October 10, 2011 RUC video immediately be linked to the city website location described above, where it is likely to actually be located and viewed by members of the public who wish to view it.
I also have another GRU-GREC-information related request to make, again, on my own behalf. Several Gainesville area citizens and GRU ratepayers have expressed to me their objection to the GRU public relations unit using GRU ratepayer funds to publish misleading propaganda in the GRU publication “the customer – answers & insights.” I share these concerns, and bring them to the commission as a GRU ratepayer, resident of Gainesville and District 1 voter, and, again, not as the representative of any person or group.
The latest, most egregious, instance of this misuse of ratepayer funds for propaganda purposes can be found in the latest issue, online at:
http://www.gru.com/Pdf/CustomerBulletin/November_2011_v26_n2.pdf
I ask you to consider two specific stories featured on page one of the November edition of “the customer – answers & insights,” and to consider my written responses to them.
GRU PROPAGANDA ITEM NUMBER ONE: “The site of the future Gainesville Renewable Energy Center (GREC) is beginning to take shape. Since beginning major construction on the biomass generating facility in June, construction crews have been busy excavating and laying foundations. ‘There are more than 200 workers on site now, and when construction peaks next year we expect to have around 900,’ said Josh Levine, development manager for GREC. ‘Based on an economic analysis of the project, we estimate construction will provide at least $55 million to the local economy through jobs and materials.’ GREC will be fueled by a sustainable, local supply of leftover clean wood waste. When GRU begins purchasing biomass energy in 2013, it will provide Gainesville with increased energy independence by becoming less reliant on fossil fuels imported from other states. In fact, GREC is expected to provide a $31-million boost to the regional economy annually from ongoing operations.”

 

RESPONSE TO PROPAGANDA ITEM NUMBER ONE: (1) As to GRU’s latest construction date claims, issued for the apparent purpose of leading GRU-ratepayers to believe that the project is a “done deal” – In an apparent attempt to discourage questions about what it would cost to get out of the GRU-GREC deal, GRU managers have repeatedly put forth misleading information about how far along the GREC project has advanced. GRU propagandists originally claimed GREC construction began in January 2011; next GRU propagandists claimed GREC construction began in March 2011; now GRU propagandists, in the November issue of the GRU “the customer” newsletter, claim that GREC construction began in June, 2011. GREC construction did not get underway in any real sense until after GREC on June 30, 2011 issued its so-called notice to proceed. GREC did not host a groundbreaking ceremony until October 11, 2011. Yet GRU’s unelected leaders – with the complicity of most of the elected members of the city commission – have issued misleading pronouncements while maintaining a wall of silence behind which GRU leaders refused to acknowledge, much less answer, important questions about GREC’s financial details until substantial construction funding expenditures began to be made, increasing the cost of getting out of the GRU-GREC deal. City Commissioner Todd Chase at the July 7, 2011 city commission meeting – a week after GREC finally filed its notice to proceed – finally had his standing request to have the matter or GREC-related rate impacts referred to the city’s Regional Utilities Committee approved by other city commissioners. RUC Chair Susan Bottcher, nevertheless, thereafter ignored public requests for the RUC to act expeditiously to take up the referral, waiting more than four months to have the RUC meet to discuss rate impacts, thereby assuring that construction expenditures had risen to the point that seeking to adjust or get out of the GRU-GREC deal could be claimed to be cost prohibitive – as GRU General Manager Hunzinger, in fact, did claim, when the RUC finally did hold a meeting to discuss rate impacts. (2) As to GRU’s claim of a $55 million GREC-related construction payment infusion of cash into the local economy – Assuming GREC’s economic analysis of the construction project is accurate, GRU’s claimed $55 million job-and-construction-material cash infusion into the local economy during the period 2011 through 2013 is a poor return on investment in relation to what GRU ratepayers will have to pay the out-of-state entrepreneurs who comprise the foreign limited-liability corporation known as GREC. First, $55 million in local construction-related cash infusion is an overstatement. Many of the GREC construction jobs are being performed by workers brought in from out of state, as became clear at the October 9, 2011 Gainesville Citizens CARE, Inc. Community Biomass Forum, where members of the audience included construction workers who had been brought in from Texas to begin GREC construction. Second, $55 million is only a small portion of what will be spent to construct the GREC facility. Gainesville Mayor Craig Lowe and City Commissioner Jeanna Mastrodicasa on December 7, 2010, perhaps inadvertently, revealed the previously secret cost of GREC construction when they told the Governor and Cabinet that timely site certification was necessary in order to ensure GREC would receive a $200 million federal taxpayer funded construction grant. Given that the federal ARRA grant GREC’s out-of-state investors expect to receive is 30 percent of allowable construction costs, the public now knows that, unless GREC intends to defraud the government, allowable construction costs on December 7, 2010 were believed by in-the-know city commissioners to be $667 million1 ($667 million1 = $200 million/.30). Thus the public can calculate that about 3/4 of the federal government subsidy check will NOT go to the local economy. And the public can calculate that of GREC’s as-of-December-2010 expected construction costs of $667 million1, the asserted $55 million going into the local economy amounts to barely 8 percent of the total being spent on construction ($55,0000,000/$667,000,0001 = 8.25 percent). Another way of stating this is that about 92 percent the as-of-December-2010 expected construction payout will not go to the local economy. Instead, about 92 percent of the cost of construction ultimately paid by GRU ratepayers ($612 million) will be paid to those who live outside of the area. (3) As to GRU’s claim of a GREC-related annual $31 million fuel-purchase-related boost to the regional economy – $31 million annually paid into the regional economy is a pittance in the context of the $3.2 billion minimum GREC expects to extract from GRU ratepayers over three decades (likely to be closer to $4 billion). A less than 1 percent annual return flow into the REGIONAL economy is a poor return on investment. [For the GAINESVILLE area economy it is an even poorer return. The forest studies relied on by GRU show that Alachua County has less than 1 percent of the timberland from which GREC intends to harvest and collect so-called forest residue and trimmings. Only a small percentage of the $31 million in GREC fuel payments will come to Alachua County providers. Most of the $31 million will flow to distant counties such Nassau County and Volusia County, much of whose forest land is owned by Rayonier Corporation, a multi-national real estate investment trust (REIT) with whom GREC has contracted to provide most of the forest residue and trimmings that will be burned in the GREC biomass facility.]

 

GRU PROPAGANDA ITEM NUMBER TWO: “Natural gas prices have fallen in the past few years, and thanks to an investment made nearly a decade ago, GRU is using this market shift to save money for customers. In 2001, GRU repowered a natural gas unit at the John R. Kelly Generating Station to increase its efficiency and take advantage of more environmentally friendly technology. This unit, known as Combined-cycle Unit 1, did not run as frequently at first because natural gas prices were high. Today, it is a key component to producing cost-effective, reliable energy for customers on a daily basis. GRU’s current fuel mix includes coal, natural gas, nuclear, solar and landfill gas, and biomass will be added in late 2013. Kelly Plant Production Manager Joe Shaw said this diverse portfolio allows the utility to respond to changing market conditions and pass savings along to customers. ‘There is only one natural gas pipeline that serves our part of the state. What we saw after Hurricane Katrina were enormous spikes in the cost of natural gas, probably four times what it is today,’ said Shaw. ‘Strategically, having multiple fuel types gives us the flexibility to adjust to price volatility and shield customers from huge fluctuations.’”

 

RESPONSE TO GRU PROPAGANDA ITEM NUMBER TWO: (1) As to GRU’s claim that it has used falling natural gas prices over the last few years “to save money for customers – GRU’s managers, in the face of sharply declining natural gas prices, have stated that GRU kept the cost of electricity per 1,000 kilowatts the same since 2008, touting this as an important accomplishment. During this same period – while GRU leaders have conceived and constructed a new $52 million operations center complete with employee gym, the cost of which has been factored into rate increases – GRU’s peer utility, Tallahassee City Utility, has used falling natural gas prices to cut the cost of electricity per 1,000 kilowatts by nearly one quarter. (2) As to GRU’s suggested that GRU hit a home run in the repowering of the Kelly Combined-Cycle Natural Gas Unit 1 – the 2001 repowering was a good idea, in theory, but poorly executed by GRU management. A primary reason that the repowered facility “did not run as frequently at first” was because much of the time it was either broken or malfunctioning.

 

I request that the matters contained in this letter be discussed during Commissioner Comment at tomorrow’s city commission meeting.
Does the Gainesville City Commission sanction this sort of misleading propaganda being promulgated at ratepayer expense? If not, will the city commission direct GRU’s unelected leaders to cease using ratepayer funds for propaganda purposes in the future, or else require GRU to provide ratepayers a forum to respond to GRU’s misleading assertions?
I am also attaching three letters containing several important RUC-meeting-related questions that I wrote to Commissioner Bottcher two weeks ago. These questions contained in these letters – written on my own behalf as a constituent, not as a representative of any person or group – she declined to answer because, she asserted, “you need to make an appointment with me (or any commissioner) if you wish to discuss GREC (or any city-related issue or business). This is so I can arrange for our legal counsel to attend said meeting(s).” I request that the questions contained in these letters be discussed during Commissioner Comment at tomorrow’s city commission meeting.
Sincerely,

RAY WASHINGTON

Encl: November 3, 2011 letters to Commissioner Susan Bottcher

Notes
1The $667 million GREC construction cost inadvertently revealed by Mayor Lowe and Commissioner Mastrodicasa on December 7, 2010 vastly understates what will actually be paid by GRU ratepayers to “lease” the GREC facility over a period of 30 years. The 30-year “lease” cost will total more than $1.3 billion, and does not include biomass fuel costs, operation and maintenance costs or property taxes, all of which must be paid by GRU ratepayers in addition to the more than $1.3 billion lease charge. [See the so-called “non-fuel energy charge” described in the GRU-GREC Purchased Power Agreement released to the public on April 6, 2011 –https://www.gru.com/Pdf/futurePower/GRECBiomassPPAUnredacted-withLetterandEquitableAdjustment-final.pdf, pages 80-85. As this document shows, the minimum “non-fuel” lease charge GRU will be obligated to pay to GREC will be $54.40 per megawatt hour, which minimum was increased by GRU sometime after June 30, 2011 without specific city commission approval. To date, GRU has not released any details of this “construction cost adjuster.”] The minimum lease charge can be calculated as follows: the per megawatt hour “non-fuel energy charge” of $54.40 is multiplied by 100 megawatts ($5,450 per hour), which is multiplied by 24 hours ($130,800 per day), which is multiplied by 365 days ($47,742,000 per year), which is multiplied by 30 years ($1,432,260,000 over the life of contract) which is reduced to the minimum capacity GREC is required to provide (90 percent, or $1,289,034,000 over the life of the contract), which figure is increased by the so-called construction cost adjuster, a minimum of 2.4 percent (establishing the a current lease charge of $1,319,970,816 over the life of the contract). If GREC for any reason fails to complete construction by December 31, 2013 the minimum total lease charge to be borne by GRU ratepayers will rise to $1,515,383,640. Pursuant to Section 3.2 of the PPA, lease charges can be increased at any time by GRU – without city commission approval – through a so-called “equitable adjustment” mechanism. Assuming the best-case scenario – a $1,319,970,816 lease charge, rather than a $1,515,383,640 lease charge – GRU’s asserted $55 million construction-related cash infusion into the local economy amounts to a 4.2 percent return on investment ($55,000,000/$1,319,970,816 = 4.2 percent).

 

November 3, 2011

Commissioner Susan Bottcher
Chair of the Gainesville Regional Utilities Committee
200 East University Avenue
Gainesville, FL 32601

RE: Misrepresentations about GRU’s predicted GRU-GREC-related ratepayer cost increases

Dear Commissioner Bottcher:

As you are aware – as a result of your attendance at, and participation in, the October 10, 2011 Regional Utilities Committee (hereinafter “RUC”) meeting – Gainesville Regional Utilities (hereinafter “GRU”) unelected leaders on that date made certain representations that the RUC accepted and apparently now intends to present in a report to the full city commission (and the public).

Among the representations made by GRU representatives at the October 10, 2011 RUC meeting was a claim that GRU on May 7, 2009 told the city commission that GRU’s position was that the GRU-GREC biomass deal in 2014 would likely result in a $10.56 per month payment increase (a $126.72 per year increase) of a 1000 kilowatt per month electricity user. This claim by GRU officials is false.

GRU’s actual representation to the commission on May 7, 2009 – documented in the video of the May 7, 2009 commission meeting, still available for review online on the city’s website – was that a $10.56 per month increase as a result of the GRU-GREC deal was unlikely. GRU leaders in fact stated that it was GRU staff’s opinion that the impact of the GRU-GREC biomass deal in 2014 would be a $3.88 per month increase (a $46.56 per year increase) for a 1000 kilowatt per month electricity user.

It is clear that GRU leaders on October 10, 2011 misled the RUC (and the public) by effectively claiming that what GRU leaders are now predicting to be the likely rate impact for a 1000 kilowatt per month ($10.56) is no different than what GRU leaders predicted on May 7, 2009 ($3.88).

Do you as Chair of the RUC intend to endorse these misrepresentations, or will you perform your fiduciary duty and make clear to the public that GRU has increased its estimate of the likely GRU-GREC biomass deal rate impact on a 1000 kilowatt per month electricity user by more than 172 percent?

Sincerely,

RAY WASHINGTON

 

November 3, 2011

Commissioner Susan Bottcher
Chair of the Gainesville Regional Utilities Committee
200 East University Avenue
Gainesville, FL 32601

RE: RUC truth-in-reporting on the GRU-GREC biomass deal

Dear Commissioner Bottcher:

As you are aware – as a result of your attendance at, and participation in, the October 10, 2011 Regional Utilities Committee (hereinafter “RUC”) meeting – Gainesville Regional Utilities (hereinafter “GRU”) unelected leaders on that date made certain representations that the RUC accepted and apparently now intends to present in a report to the full city commission (and the public).

Among the representations made by GRU representatives at the October 10, 2011 RUC meeting was a claim that the increased cost of electricity to a 1000-kilowatt-per-month GRU ratepayer in 2014 – the result of the GRU-GREC biomass deal – would be limited to $10.56 per month ($126.72 per year).

This representation, as you know, was based on the following suppositions:

• that GRU would be able to find a long-term buyer for 25 percent of the GRU-GREC plant’s power production that GRU leaders claim GRU customers will not need;
• that GRU would benefit from system wholesale power sales of unneeded power;
• that GRU would be able to secure a contract to sell unneeded power to a federal agency;
• that GRU would be able to establish (and the city commission would approve) GRU’s participation in an off-books “conduit” entity that would issue tax-free bonds in order to acquire some or all of GREC’s private debt, payment to which GRU will be obligated.

Do you as Chair of the RUC intend to report to the city commission that the RUC has fully examined these claims and can reasonably predict that each of these contingencies actually will occur – or will you perform your fiduciary duty and report that it is unknown whether these contingencies will occur, and further, that it is unknown whether, if these contingencies actually do occur, that they will have the claimed effect of preventing the already excessive GRU-GREC-biomass-plant-induced electric bill adjustments from accelerating more than the172-percent rise in GRU’s predictions of likely electric bill impacts between May 7, 2009 and October 10, 2011?

Sincerely,

RAY WASHINGTON

 

November 3, 2011

Commissioner Susan Bottcher
Chair of the Gainesville Regional Utilities Committee
200 East University Avenue
Gainesville, FL 32601

RE: Will the RUC recommend an independent examination of the GRU-GREC biomass deal?

Dear Commissioner Bottcher:

As you are aware – as a result of your attendance at, and participation in, the October 10, 2011 Regional Utilities Committee (hereinafter “RUC”) meeting – Gainesville Regional Utilities (hereinafter “GRU”) unelected leaders on that date made certain representations that the RUC accepted and apparently now intends to present in a report to the full city commission (and the public).

Among the representations made by GRU representatives at the October 10, 2011 RUC meeting was a recommendation that in order to pay for the excessive electric bill impacts expected to be visited upon GRU ratepayers as a result of the GRU-GREC biomass deal, GRU leaders will be seeking:

• a scaling back of GRU’s expansion into solar-generated electricity, by the mechanism of early termination of its Solar Feed in Tariff Program; and

• a scaling back (or “offset”) of GRU annual transfer to the City of Gainesville’s General Fund, which scale back will be made up with new property taxes.

Do you as Chair of the RUC intend to report to the city commission that the RUC endorses these extreme measures in order to pay for the irregularly negotiated and excessively expensive GRU-GREC biomass deal – or will you perform your fiduciary duty and instead recommend an independent examination of the GRU-GREC deal and demand that GRU leaders provide the city commission and the public information about the alternatives for altering the GRU-GREC contract, and the costs for buying out of it?

Sincerely,

RAY WASHINGTON

 

 

It has been claimed by leaders of GRU and Gainesville City Commission that no “back door out” provision had been possible in GRU’S negotiation of the $3-billion-to-$4-billion deal between GRU (the city-owned utility Gainesville Regional Utilities) and GREC (the out-of-state limited liability corporation created for the express purpose of collecting payments from GRU for building, managing and operating a 100-megawatt wood-burning electricity generator).

A previously secret memorandum from GREC project manager Josh Levine to GRU-GREC co-lead negotiator Ed Regan — discovered by citizens a few weeks ago — establishes that these representations were false.

Not only was GREC’s limited liability corporate parent – American Renewables (then known as Nacogdoches Power LLC) – willing to agree to include a buyout clause in what has come to be known as the GRU-GREC Power Purchase Agreement (PPA), GREC/American Renewables/Nacodoches at the time the Levine-Regan memo was written had included the buyout clause in a proposed version of the GRU-GREC contract. And the buyout amount was about 1 percent of the 30 year cost of the the contract.

Specifically, in the previously secret memorandum, Mr. Levine wrote Mr.Regan: “At the request of Gainesville Regional Utilities (GRU), we have included a Termination for Convenience Clause (Section 29) within the PPA between GRU and Gainesville Renewable Energy Center, LLC (GREC).”

So far, GRU has declined to provide a copy of the September 2008 iteration of the GRU-GREC contract that contains the referenced Section 29 Termination for Convenience Clause that GRU officials and most members of the City Commission have previously represented never existed.

Gainesville Mayor Craig Lowe, Gainesville City Commissioner Jeanna Mastrodicasa, GRU General Manager Robert Hunzinger, GRU-GREC co-lead negotiator Regan and others have said that the reason no backout clause was included in the GRU-GREC contract was because GREC/American Renewables/Nacodoches had never agreed to such a clause.

The $3-billion-to-$4-billion question is whether some or all members of the Gainesville City Commission misled the public, or whether someone at GRU misled some or all members of the Gainesville City Commission, or some combination of the two.

To better understand the context in which this important question is asked, consider the following 50 points, which, as far as I know, are undisputed.

1. It is undisputed that on May 12, 2008 – before the Gainesville City Commission approved giving GRU General Manager Hunzinger to negotiate the largely secret deal with the limited liability corporation Nacogdoches Power LLC (which has since become the limited liability corporation American Renewables LLC). The authority was based on assurances by GRU-GREC co-lead negotiator Regan that the negotiated contract would contain a backout clause that would allow the GRU to act in the public interest and get out of the contract up until the time of the Nacogdoches filed its final notice to proceed.

2. It is undisputed that the vast majority those attending the May 12, 2008 city commission meeting spoke in opposition to the GRU-Nacogdoches deal.

3. It is undisputed that the city commission, as a result of demands of citizens attending the May 12, 2008 city commission meeting, unanimously adopted a motion directing Mr. Hunzinger to “ensure” that a buyout clause be negotiated into the GRU-GREC contract.

4. It is undisputed that on April 29, 2009 Mr. Hunzinger signed off on a final version of the GRU-GREC deal that would obligate GRU to pay GREC at least $3 billion over three decades, and that contained provisions allowing Mr. Hunzinger to approve payment increases to GREC without city commission approval.

5. It is undisputed that when on May 7, 2009 the city commission ratified the GRU-GREC contract, the terms of the contract expressly prohibited key financial from being made known to the public for more than three decades.

6. It is undisputed that the neither GRU nor the city commission at the May 7, 2009 city commission meeting told the public that key parts of the contract being ratified would be kept secret from the public for more than three decades, and that the public was not told that the contract did not contain a backout clause.

7. It is undisputed that for the rest of 2009 and for all of 2010 the city commission failed to hold a single public meeting to discuss financial terms of the GRU-GREC deal, the most costly private contract ever approved by the city commission.

8. It is undisputed that in 2010 several groups of Gainesville area citizens began a series of legal challenges to the largely secret GRU-GREC biomass deal.

9. It is undisputed that in early 2011, the citizens challenging the GRU-GREC biomass deal entered into a joint settlement agreement with GREC under which they agreed to drop their legal challenges to the GREC project in return for several important concessions from GREC – among them a commitment by GREC to make public the provisions of the GRU-GREC contract that the contract had required to be kept secret for at least 30 years after the GREC biomass plant began operations

10. It is undisputed that former Mayor Pegeen Hanrahan, and her successor, current Mayor Lowe, and most members of the city commission, opposed the efforts of the citizens that resulted in the settlement that made the GRU-GREC contract public.

11. It is undisputed that on March 16, 2011 – before GREC actually released the previously secret financial detail of the GRU-GREC contract – GRU Chief Financial Officer Jennifer Hunt on behalf of Mr. Hunzinger, and without public announcement, and without the city commission scheduling a public meeting to discuss the action, signed off a more than $100 million “equitable” increase in the already-burgeoning $3 billion-plus GRU-GREC deal, all of which would have to be paid by GRU ratepayers.

12. It is undisputed that there was public announcement or news coverage of the $100 million “equitable” increase, and that on March 16, 2011 former Mayor Hanrahan had published a commentary in The Gainesville Sun in which she defended and supported (without revealing the recent more than $100 million “equitable” payment increase to GREC) GREC’s past attempts to keep the GRU-GREC contract secret from the public, and implied that Gainesville area citizens who had launched the legal challenges that resulting in the secret contractual provisions becoming public had thereby risked increasing the cost of the GRU-GREC deal to GRU ratepayers.

13. It is undisputed that on April 5, 2011 – after the settlement agreement between citizens and GREC had been reached, but before GREC actually released the previously secret financial details of the GRU-GREC contract – GRU General Manager Hunzinger signed his name to a column that appeared in The Gainesville Sun in which he too supported the GRU-GREC deal (but made no mention of the more than $100 million “equitable” payment increase he had allowed to be signed off on without public knowledge less than three weeks before).

14. It is undisputed that on April 6, 2011, pursuant to the citizen settlement agreement, a version of the previously secret financial provisions of the GRU-GREC contract was released to the public, including documentation of the more than $100 million March 16, 2011 “equitable” increase in contract payments from GRU to GREC, which must be funded by GRU ratepayers.

15. It is undisputed that after April 6, 2011 many individual Gainesville area citizens began appearing before the city commission asking for explanations of what was revealed in the now unblackened GRU-GREC contract, including questions about the amount of the March 16, 2011 “equitable” increase in contract payments from GRU to GREC, which must be funded by GRU ratepayers.

16. It is undisputed that neither Ms. Hanrahan nor Mr. Hunzinger in their columns published in The Gainesville Sun before the release of the previously secret portions of the GRU-GREC PPA – or in any public forum thereafter – has ever acknowledged the March 16, 2011 more than $100 million “equitable” increase, which must be paid by GRU ratepayers.

17. It is undisputed that, to date, no GRU or city official has ever publicly acknowledged the March 16, 2011 more than $100 million “equitable” increase in the required GRU-to-GREC contract payments.

18. It is undisputed that beginning in April 2011 area citizens appeared at every regularly scheduled city commission meeting and attempted to get answers to questions arising from the April 6, 2011 release of previously secret parts of the GRU-GREC contract, including questions about the March 16, 2011 more than $100 million “equitable” increase in contract payments from GRU to GREC.

19. It is undisputed that on April 21, 2011 Mayor Lowe stated on the record that (a) all of the members of the Gainesville City Commissioner wholly approved of the GRU-GREC contract (while failing to reveal the unreported March 16, 2011 more than $100 million “equitable” payment increase), and (b) that all members of the city commission knew at the May 9, 2009 ratification of the contract that it did not contain the promised back out clause (without explaining how he could know what the other commissioners knew, inasmuch as the removal of the backout clause had never been discussed in any public meeting).

20. It is undisputed that, to date, neither any GRU executive, nor former Mayor Hanrahan, nor current Mayor Lowe, nor any member of the city commission, nor the city’s Regional Utilities Commission, has challenged the assertion that the March 16, 2011 “equitable” increase in contract payments from GRU to GREC amounts to more than $100 million.

21. It is undisputed that, on May 19, 2011, I appeared before the Gainesville City Commission and formally presented a letter in which I asked the city commission to consider the appointment of an independent panel to re-evaluate the GRU-GREC deal.

22. It is undisputed that, on May 19, 2011, I informed the commission that GREC had not yet issued its notice to proceed, and requested that the independent panel I had requested be appointed be told to report back to the commission before GREC filed its notice to proceed, after which the cost of getting out of the GRU-GREC deal – if that were to be recommended by the independent panel – would be substantially more costly.

23. It is undisputed that on May 19, 2011 members of the city commission were presented with seven boxes containing hundreds of alphabetically organized petitions signed by concerned Gainesville area citizens and GRU ratepayers requesting that the city commission re-examine its commitment to the GRU-GREC deal.

24. It is undisputed that neither the Mayor nor any member of the city commission on May 19, 2011, or on any date thereafter, has ever responded to, or acknowledged, my request for consideration of the appointment of an independent panel.

25. It is undisputed that neither the Mayor nor any member of the city commission on May 19, 2011, or on any date thereafter, has responded to, or acknowledged, the requests of the citizens and ratepayers whose petitions were presented to the city commission.

26. It is undisputed that on May 24, 2011, engineer Joe Wills, a citizen member of the Gainesville Energy Advisory Committee (GEAC) made a written request to GRU executives to “Please consider the advisability of suggesting that the commissioners consider organizing a ‘town meeting’ of sorts, inviting the opposition, in particular, and public in general, to attend the event to receive an briefing update on the project and formally address the many concerns that are being voiced.”

27. It is undisputed that on May 24, 2011 GRU Assistant General Manager John Stanton – half of the two-man-GRU-leadership team that negotiated the GRU GREC deal – rebuked Mr. Wills for attempting to have GEAC perform its legally-mandated duty to serve as an information bridge between the community and the city commission.

28. It is undisputed that Mr. Stanton wrote Mr. Wills that he should not attempt to foster a public discussion about the GRU-GREC deal, and should not mention the possibility of the city buying its way out of the GRU-GREC deal, because, according to Mr. Stanton, “even the discussion of such is contrary to GRU’s position.”

29. It is undisputed that Mr. Stanton wrote Mr. Wills: “Let me be clear; stop it! Now. Do not continue to push this agenda. Do not suggest more public meetings.”

30. It is undisputed that at every regularly scheduled city commission meeting in May 2011 and June 2011 citizens appeared before the city commission continuing to ask specific questions about the GRU-GREC deal.

31. It is undisputed that at no city commission meeting in May 2011 or June 2011 did the mayor or any city commissioner answer (or even acknowledge) a single citizen question about the GRU-GREC deal, though commissioners answered most other questions posed to the commission by citizens, including questions about policies asserted to result in dogs occasionally defecating on city sidewalks.

32. It is undisputed that on June 30, 2011 City Commissioner Thomas Hawkins wrote GEAC member and engineer Mr. Wills: “I believe the best strategy to take towards the vocal minority that opposes any increase in base load capacity is to politely ignore them.”

33. It is undisputed that in early July 2011 GREC announced that it had finally obtained financing for some of the construction of the GREC biomass plant and that GREC had filed its final notice to proceed.

34. It is undisputed that on July 7, 2011 – the first city commission meeting after GREC’s final notice to proceed was filed – the city commission voted to send to the city’s three-commissioner Regional Utility Committee (RUC) a charge to look into the rate impacts to GRU ratepayers of the GRU-GREC deal (the first city-sponsored meeting to discuss the GRU-GREC deal since May 7, 2009, when the deal had been approved by the city commission).

35. It is undisputed that for months after the July 7, 2007 city commission referral, RUC Chair Susan Bottcher declined to put discussion of the GRU-GREC deal on any RUC agenda.

36. It is undisputed that in August 2011 a Gainesville public interest group announced that, the RUC having ignored all citizen requests to schedule the RUC meeting to discuss biomass rate impacts, it would organize its own community biomass forum to present independent information about the GRU-GREC deal to the public, and would provide the public with an opportunity ask questions, including questions the public had been asking the city commission without having their questions answered or acknowledged.

37. It is undisputed that in late August, 2011, I began sending written invitations to GRU Manager Hunzinger and various specified GRU executives and staff members, inviting them to participate in the planned citizens community biomass forum.

38. It is undisputed that Mr. Hunzinger responded only to the second of multiple written invitations to participate in the community biomass forum – then only to ask for another copy of the first invitation.

39. It is undisputed that Mr. Hunzinger thereafter neither responded to the initial invitation to participate as a member of a community biomass panel forum nor to any of the multiple subsequent written invitations that he received.

40. It is undisputed that after the citizens community biomass forum was announced, Commissioner Bottcher scheduled the RUC on biomass rate impacts to take place at a date more than four months after the matter had been referred to her committee.

41. It is undisputed that on October 2, 2011 – a week before the citizens community biomass forum was scheduled to be held – that City Commissioner Jeanna Mastrodicasa allowed to be published in The Gainesville Sun, over her name, an editorial column in which the writer suggested that the citizens’ community biomass forum planned for October 9, 2011 was unworthy of the public’s attendance, and “a small group of vocal opponents” who “plan to have a forum amongst themselves without facts.”
42. It is undisputed that on October 7, 2011 Former Mayor Hanrahan, in the on-line comments to The Gainesville Sun, made a public appeal – to a Gainesville citizen who had written a letter to The Sun that she was going to attend the community biomass forum because she wanted “to know more facts about the planned biomass plant” – urging her to attend the RUC meeting, and advising her that attending the citizens biomass forum forum would not be the best “use of your time.”

43. It is undisputed that on October 9, 2011 the community biomass forum was held at Grace Presbyterian Church (part of the Presbyterian Environmental Ministries) – with an attendance of more than 150 community members, according to the church’s pastor, Dr. Richard Palmer.

44. It is undisputed that the October 9, 2011 community biomass forum allowed hours of questions to be asked by dozens of members of the community previously uninvolved with the biomass debate, including lawyers, engineers, resource allocation specialists, former utility executives, people employed in construction of the GREC biomass plant and dozens of community members from all walks of life.

45. It is undisputed that questions asked and answered at the community biomass forum included questions that neither Ms. Hanrahan, nor Ms. Mastrodicasa, nor Mr. Hawkins – nor any GRU executive advising them – had ever publicly addressed.

46. It is undisputed that on October 10, 2011, City Commissioner Bottcher opened a meeting of the RUC at which she had advised the public not to ask questions about the GRU-GREC decision-making process, and whose questions RUC program emcee Hunzinger stated he would answer if he determined them to be “pertinent.”

47. It is undisputed that on October 11, 2011 The Gainesville Sun quoted RUC member, Mayor Lowe, a supporter of the GRU-GREC deal, as having “expressed optimism that federal carbon regulation could be on the horizon, which is important because it would drive up the costs of coal-and-gas-generated power.”

48. It is undisputed that The Gainesville Sun on October 11, 2011 reported that Mayor Lowe’s expressed “optimism” was based on the his hope that the rise in the cost of coal-and-natural gas-generated-power would “change the relative value” of the GREC biomass plant.

49. It is undisputed that Mayor Lowe was not quoted in The Gainesville Sun as being concerned about the fact that a rise in the cost of coal-and-natural-gas-generated power would result higher bills for GRU customers – most of whose power for decades to come is expected to be generated by coal and natural gas.

50. It is undisputed that since the October 11 RUC meeting most members of the Gainesville City Commission have taken the position that commission discussion of the GRU-GREC-biomass-deal is off limits, because the matter now resides in the RUC, whose members Lowe, Bottcher and Hawkins intend to keep the referral tied up in the RUC without holding any further meetings on the topic until after the January 31, 2012 city commission election.

Whether this attempted reinstatement of the commission’s two-and-a-half-year biomass information lockdown will insulate the commission from further discussion until after the election remains to be seen.

The $3-billion-to-$4-billion question remains: Did some or all members of the Gainesville City Commission mislead the public, or did GRU executives GRU mislead some or all members of the Gainesville City Commission?

What follows is a bit lengthy, and complicated, but, for those who comfortable with details and complexity, I believe it adds context to the latest attempt by GRU officials to threaten with arrest Gainesville citizens who dare to attempt to talk with GRU customers about the GRU-GREC biomass deal on GRU property:

For more than two and a half years GRU and the Gainesville City Commission have aided and abetted the private limited liability company GREC’s attempt to keep hidden from the public the important financial details of the GRU-GREC biomass deal – at more than $3 billion the most costly contract ever approved by the city commission.

Seven citizens of Gainesville, on April 6, finally succeeded in having previously secret details of the GRU-GREC contract made public, in settlement of public interest litigation that had been opposed by the Gainesville City Commission and GRU. As a result of the release of these details, many members of the public learned for the first time that the GRU-GREC contract did not contain a back out clause that commissioners had promised and that would have allowed the city to back out of the deal if GRU’s rosy financial predictions turned out to be wrong. Those rosy predictions have turned out to be very wrong.

On May 19, I appeared before the Gainesville City Commission and formally asked the commission to appoint an independent panel to review whether the GRU-GREC deal still made sense in light of GRU’s faulty predictions, and in light of substantially changed circumstances. My request came weeks before GREC filed its final notice to proceed, an event up to which GRU-GREC co-lead negotiator Ed Regan had previously implied to the commission that GRU could back out of the deal for about $2 million.

On May 19, each commissioner was also presented with my request in written form, along with a box to each commissioner containing hundreds of petitions from citizens pleading for commissioners to do their fiduciary duty and readdress the GRU-GREC deal before it was too late. GRU General Manager Robert Huzinger advised commissioners not to respond, suggesting that he would not touch the subject “with a ten foot pole.” The commission failed to respond to the request and to the citizen petitions, even to acknowledge that the request had been made.

At about the same time, in May, an engineer and citizen member of the Gainesville Energy Advisory Committee named Joe Wills was ordered by GRU-GREC co-lead negotiator John Stanton to cease his efforts to encourage communication between the City Commission and the public about the GRU-GREC deal. Wills subsequently resigned as a protest over these improper attempts to prevent GEAC from performing its legally mandated duty to serve as an information bridge between the commission and the public on matters related to energy policy.

From May through June Gainesville citizens appeared at every single regularly scheduled city commission meeting asking more and more questions about the GRU-GREC biomass deal. But not a single citizen question was answered, or even acknowledged to have been asked.

Finally, on June 30, 2011 GREC, finally issued its notice to proceed, a watershed date after which the cost of getting out of the GRU-GREC deal began to rise substantially.

On July 7, 2011 the city commission authorized the subject of biomass rate “impacts” to be referred to the city’s Regional Utilities Committee, composed of GRU-GREC-biomass-at-any-cost proponents Susan Bottcher, Craig Lowe and Thomas Hawkins. For months, Ms. Bottcher, chair of the committee, refused to hear citizen requests that the RUC actually hold a meeting on the biomass referral.

Finally, a group of citizens – frustrated at the city commission’s more than two year refusal to schedule a single meeting about the most costly private contract ever approved by the city commission – decided to organize their own community biomass forum. Thereafter, the RUC meeting was scheduled, and Commissioner Jeanna Mastrodicasa and former Mayor Pegeen Hanrahan, writing in The Gainesville Sun, attempted to discourage citizens from attending the citizens’ community biomass forum, and to get their information instead from what was to be presented at the RUC meeting.

On October 9, about 150 citizens attended the citizens community biomass forum, the first substantive discussion ever held about the costs and effects of the proposed GRU-GREC biomass plant. The only city commissioner to attend the forum was Commissioner Todd Chase, though every other commissioner and the Mayor had been invited to attend Neither Mr. Hunzinger nor any other invited GRU official to participate in the forum chose to do so.

On October 10, the RUC meeting on biomass rate impact was held. It was attended by about 60 citizens, many of whom had attended the citizens community biomass forum. They came armed with sufficient knowledge to ask important questions. Many of these questions were ignored by the RUC meeting’s emcee, GRU General Manager Hunzinger, who announced it was his intention to answer only those questions he deemed “pertinent.”

Following the RUC meeting, citizens demanded, without success, that Commissioner Bottcher allow a video that had been made of the RUC meeting to be posted on the city’s website so that citizens who were not able to attend the meeting could view the meeting on line. Commissioner Bottcher finally authorized the video to be posted on the city’s website. But weeks ago I wrote Ms. Bottcher and other commissioners requesting that the video be placed on the city’s where citizens could find it – specifically at the link to the link to the October 10 RUC meeting, below the tab labeled “video.” To date, my letter has not been responded to, and the link below tab labeled video continues to be grayed out with the notice that the video is “Not available.”

Citizens able to view the video of the RUC meeting would see and hear GRU’s general counsel step forward to claim on Mr. Hunzinger’s behalf that Mr. Hunzinger had spoken individually, in private, to every commissioner before the GRU-GREC contract was approved on May 7, 2009 and informed each commissioner that the “suggested” back-out clause had been removed. The back-out clause, it was asserted, was removed because GREC would not allow the clause. It was that every before the May 7, 2009 meeting at which the GRU-GREC contract was approved was aware that there was no back out clause in the contract (and thus no escape valve if GRU’s financial predictions turned out to be wrong).

About a week after the RUC meeting, concluded, citizens, as a result of a public records request, obtained a copy of a memo written by GREC that proved that – contrary to Mr. Hunzinger’s assertions –GREC had actually included a back out clause in the contract. This discrepancy has never been adequately explained.

Additionally, shortly thereafter, I was told about a recording of a city commission meeting held on December 17, 2009 that establishes that more than 7 months after the city commission approved the GRU-GREC contract commissioners appeared still unaware that GRU had removed the back out clause.

Now, GRU officials have called in the police to stop citizens from talking about “biomass” on GRU property.

Again, I do not believe the citizens of Gainesville will allow this to stand. The results of next month’s city election will be the test.

Yesterday Gainesville city police, at the behest of Gainesville Regional Utilities officials, warned three citizens that they would be arrested if they continued to stand on GRU property and talk with GRU customers about the coming GREC biomass-rate-hikes, and about opportunities for participating in the political process to seek redress the effects of the more-than-$3-billion GRU-GREC biomass deal.

These three citizens – Dallas E. Priest, Harold W. Saive and Deborah L. Martinez – and others, for more than a week, over their lunch hours, have been exercising their constitutionally-protected right of assembly.  But no assembly occurred today, because for more than 24 hours after GRU officials sent GPD officers to issue trespass warnings yesterday these citizens they still had not been given a written explanation of what they were prohibited from doing and saying on GRU property.

This afternoon these citizens finally were handed a copy of “Incident Investigation Report 02-11-025296” (a public record available to any citizen) that specifically explained to them why they were ordered off of GRU property, and what they must avoid talking about on GRU property to avoid arrest.

“David W. Thompson (GRU’s chief of security) wanted to trespass three (3) from the above location from their ongoing protest on the property, in reference to ‘Biomass,’” the report explained.

“Martinez, Saive and Priest were all advised that if they return to the property they will be subject to arrest.”

They are allowed to come on GRU property if “coming to pay a bill or a GRU related issue.”

The long and short of it is that these three citizens – whose average age is 68 – here in democratic Gainesville will be arrested if they protest “biomass” while setting foot on GRU property, which bears the slogan “A Utility Owned By The People It Serves.”

What happens now?

My understanding is that these three citizens, now advised as to the limits of their freedom, will return to GRU tomorrow and attempt exercise their peaceful right of assembly on the sidewalk by the street outside of GRU property, from which police have not yet banned them.  My understanding, also, is that others who still retain their right to talk about “biomass” on GRU property, may venture onto GRU soil to talk to GRU customers about “biomass” –  at least until more Gainessville police officers are dispatched to shut them down.

I do not believe the citizens of Gainesville will allow this to stand.