Alachua Voter Guide

Nathan Skop is running for the At Large 1 seat of the Gainesville City Commission with a commitment to protect our community from the more than $3 billion biomass contract disaster of the commission’s own making.

If Nathan Skop is elected in the February 28, 2012 city runoff election, my understanding is that as a first order of business he would require GRU General Manager Robert Hunzinger to provide information about what construction has been completed at the GREC biomass site, and at what cost. In addition, it is my understanding that he would require GRU General Manager Robert Hunzinger to provide information about whether the infrastructure that has been put in place by GREC could be used, or could be adapted to, a less expensive form of electric power generation. It is my understanding that with the above information in hand he would seek the cooperation of other commissioners for a renegotiation of the GRU-GREC contract under terms that would favor the ratepayers of this community.

Commissioners can at long last stand up for ratepayers, or not. But make no mistake – if Nathan Skops’ efforts are rebuffed by GRU-GREC-biomass-plant-at-any-cost-to-ratepayers commissioners who remain committed to forcing the financially irresponsible GRU-GREC biomass disaster of the commission’s own making down ratepayer throats, there is a “death penalty” option.

Based on information that has come to light since previously secret portions of the GRU-GREC biomass contract were made public on April 6, 2011, the contract may be found by a court to be void on several bases:

1. GRU General Manager Robert Hunzinger, contrary to May 12, 2008 city commission instructions that he himself negotiate the GRU-GREC Contract, instead appointed an ad hoc committee, headed by GRU Assistant General Managers Ed Regan and John Stanton, whose meetings were required to have been noticed and opened to the public but were not;

2. Hunzinger, Regan, Stanton and others “daisy-chained” information between the Mayor and individual commissioners by GRU officials before the commission’s May 7, 2009 vote; and

3. The city commission on May 7, 2009 approved a contract differs substantially from the contract the commission authorized in a public meeting on May 12, 2008. Changed terms of the contract were not publicly noticed or discussed before the commission approved them.

These and other Sunshine Law violation, if established in court, provide bases on which a judge would be required to rule that the GRU-GREC contract is void and without legal effect.

The significance of all this is that if a court now determines the GRU-GREC contract is void, there is no contract to break. Should GREC file suit against GRU and/or the City of Gainesville to attempt to recover damages, no damages may be awarded to the extent GREC was on notice that its contract with GRU was in violation of the Sunshine Law but chose to proceed with construction at its own risk.

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

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

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

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

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

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

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

We’ll see.

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.