Alachua Voter Guide

The day after the January 31 city commission general election, I wrote the following words, a version of which appeared on this blog, and a version of which was published by The Gainesville Sun:

“The city commission conductors’ handpicked At-Large candidate, Lauren Poe, is headed for a runoff with former Florida Public Service Commissioner Nathan Skop in part because of internecine political infighting and in part because of the city commissioner conductors’ disreputable whispering smear campaign against candidate Skop. These attempted smears, in my opinion, will become nastier and more outrageous in the Poe-Skop runoff. The stakes are that high. Biomass-rate-hike-at-any-cost commissioners are desperate to end all discussion of the irregularly negotiated more than $3 billion biomass contract the city commission approved in violation of the Florida Sunshine Law.”

The accuracy of my prediction is no cause for celebration. That sitting Gaineville City Commissioners — with the help of Gainesville Sun collaborationists whose days of employment at Hallifax Media Group may be numbered — behaved in the runoff just as their past behavior indicated they would behave, was disheartening to experience, despite its inevitability.

Whatever the outcome of tomorrow’s runoff election — and the outcome is far from clear — the long, sad unraveling of the GRU-GREC biomass disaster will continue apace.

The details of the biomass unraveling — partly political and partly legal — may vary a bit, depending upon the outcome of tomorrow’s election, but, ultimately, the inevitable GRU-GREC disaster, in one form or another, will play out, and the injury and scarring of this community we have chosen as our home will be a long time healing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The $64,000 question is:

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

All are invited to Leonardo’s 706 (at 706 West University Avenue in District 1) for a “Final Nail in the Biomass Rate Hike Coffin Campaign Fund Raiser” from at 6 p.m. – 8 p.m. on Monday, January 23. It is my only fundraiser of the election. The purpose is to raise funds to ensure voters in District 1 have vital information about the GRU-GREC biomass deal.  It will have an additional purpose of helping fund further communication of information to At Large 1 voters.

We hope to see you there!

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.

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.

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.

On Monday evening (December 5) at the African American Accountability Alliance’s 2012 City Commission Candidate Forum, our community witnessed the clearest signal yet that the crack in the information wall that has been obscuring the Gainesville City Commission’s GRU’s biomass electric rate hike scheme has spread beyond the point at which the GRU-GREC-biomass-deal-at-any-cost backroom dealmakers can hope to contain it.

Prior to Monday’s 4As forum, Armando Grundy, one of three candidates for the District 1 City Commission seat, had carefully towed the pro-GRU-GREC-biomass-rate-hike line espoused by his mentor and political sponsor, current District 1 City Commissioner Scherwin Henry, who has voted in favor of the GRU-GREC-biomass deal at every opportunity and who is among the biomass-rate-hike’s most ardent supporters.

At every previous forum, Mr. Grundy had refused to stray even an inch from his mentor and sponsor’s pro-GRU-GREC position
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At previous forums, Mr. Grundy — as justification for his support for the GRU-GREC-biomass-rate-hike that will disproportionately hurt the residents of District 1 — has insisted that he understands the people of District 1. According to Mr. Grundy’s prior statements, the people of District 1 simply do not care about the biomass issue.

But at Monday night’s first District 1 forum, Mr. Grundy – faced with the undeniable fact that the citizens of District 1 have great common sense and overwhelming want to get out of the financially onerous GRU-GREC deal – Mr. Grundy finally, and definitively, stepped away from his mentor and sponsor Mr. Henry.

The abrupt change came after I pointed out, once again, that the GRU-GREC biomass plant has not been opposed by the other two District 1 candidates — not Mr. Grundy, a newcomer to District 1, who moved to District 1 after losing a previous election in which he attempted to become City Commissioner the city commissioner for District 3, and not Yvonne Hayes Hinson-Rawls, who lived in East Gainesville as a child and student and more recently retired to District 1 after a career in New York and Dade County. It was at that point that Mr. Grundy — facing a District 1 crowd with opinions distinctly different than those Mr. Grundy had represented to be their opinions – turned on his mentor and sponsor Mr. Henry.

As accurately reported in The Gainesville Sun:

“Washington also criticized his two opponents for not opposing the biomass plant, prompting Grundy to say he does indeed oppose it.”

It is too early to tell how Mr. Grundy’s split from Commissioner Henry on the biomass issue will play out in the final lap of the City Commission election season.

But it is clear that public outrage that has been boiling has continued to boil hotter ever since the April 6 unblackening of GRU-GREC financial details that the city commission had sanctioned being kept secret from the public until nearly 2050 continues to boil.

And it is clearthat pressure generated by that boiling has cracked the city commission’s carefully constructed two-and-a-half-year GRU-GREC biomass information wall of silence.

And it is clear, now that Mr. Grundy has abandoned his political sponsor and mentor on the biomass issue, that the crack has now spread to the point where there is nothing the GRU-GREC-biomass-deal-at-any-cost backroom dealmakers can do to stop the ill-conceived and irresponsibly negotiated biomass edifice from crumbling to the ground. When that will happen, and how, remain to be seen. I’ll keep you posted.