Konish: The Akerman law firm has been retained by the Gainesville City Commission before

Letter to the editor

On May 12, 2017, the Akerman law firm delivered to the Gainesville City Commission a 62-page report with 292 pages of exhibits that examined legal issues surrounding the “Consent and Agreement” relating to the GREC Biomass Contract. This engagement was delivered by the then-City Auditor with his office’s funds. The then-City Attorney approved. A “vocal citizen” instigated the engagement.

In another report titled “Options for Consideration of a Forensic Audit Biomass Contract (sic),” the “City Auditor explained he had become aware that the GRU GM and GRU CEO were negotiating to purchase the GREC plant with a nondisclosure agreement (the City Auditor was not privy to the nondisclosure agreement and was not aware of it when it began).”

The “Consent and Agreement” in question was executed on June 30, 2011. This entire Akerman legal review was untimely, and this alone posed an additional problem for any legal challenge.

The Akerman law firm “found three sections (agreements outside the scope of the Consent and Agreement) that they identified as ultra vires (without authority) that violated provision 20.2 of the PPA contract…”

One other section was identified as “ maybe an ultra vires act.” The “Akerman Law LLP determined there would be multiple defenses available to GREC for employment against an ultra vires case.” I found Akerman’s analysis to be excellent with respect to the matter at hand. At no point could then-Mayor Ed Braddy and then-Commissioner Charles Goston expect two other commissioners to support taking a hard line with respect to GREC and challenging the validity of the GREC PPA. Akerman could have and would have done it. 

The bottom line is that an elected city commission by a simple majority has wide latitude to enter into and double down on bad contracts. Any legal challenge is necessarily a heavy lift, especially if untimely.

The good news is that Akerman is well-versed in a major impetus behind HB 1645. As for the current, new Akerman engagement, it is beyond any doubt that the legislature has absolute power to amend a city charter without voter approval, which is likely to soon occur. 

Any challenge to this bedrock principle would be frivolous, and the Akerman law firm would not bring any such case. To do so could expose Akerman and the City to the State of Florida’s attorney’s fees, as well as other consequences.

Moreover, time is not on the Commissioners’ side. Any legal challenge cannot be filed until after at least June 28, 2023. HB 1645 becomes effective on July 1, 2023. Legislation is presumed to be constitutional and effectual. HB 1645 has been vetted over many years and is airtight. 

As for guidance on what HB 1645 means for the City, Akerman will not be telling the city commission what it wants to hear. They are not the normal “consultants.” They are prominent officers of our Judicial System.

Having been previously advised of the premises, Akerman is sure to immediately notice the clear and unambiguous legislative mandate that GRU promptly be rendered “free from the direction and control” of the Gainesville City Commission in all regards. Akerman will surely explain that HB 1645 mandates a reorganization of GRU governance that will require a companion reorganization of City government. The incestuous web that has been spun between GRU and the City Commission will have to be quickly untangled. The sweeping legislative repudiation of both the GRU governance structure and paradigm will be noticed by Akerman. 

I have yet to hear any plausible legal theory to justify a legal challenge to HB 1645. Most of the larger municipal utilities in Florida have governance structures similar to that created by HB 1645. The courts are very unlikely to interfere preemptively, if at all.

Courts do not consider the wisdom of legislation. Given their track record, this does help the Gainesville City Commission.

GRU does not belong to the City Commission or city commissioners. Unless vetoed by the Governor or enjoined or invalidated by the courts, the Gainesville City Commission must begin to cooperate next week with the transfer of complete control over GRU to the governor-appointed Authority. Such transfer must be complete on October 1, 2023.

Jim Konish, Gainesville

The opinions expressed by letter or opinion writers are their own and do not necessarily represent the views of AlachuaChronicle.com. Letters may be submitted to info@alachuachronicle.com and are published at the discretion of the editor.

  • this begs the question of how you cooperate with a board that does not yet exist.

  • Their on in house lawyer told them weeks ago that the State had a wide range of control over GRU yet these idiots don’t listen to their own lawyers just another waste of taxpayer dollars

  • Makes you wonder if there’s any “under the table” or should we say, “out of the sunshine,” funds changing hands.

  • Sounds like the same Akerman Law firm Wayne LaPierre of the NRA is paying millions a month to keep him out of federal prison.

  • Jim: “HB 1645 has been vetted over many years and is airtight.”

    The City Commission’s view of its ‘autonomy’ over GRU and GRU’s resources never had legal legs from the start. But, Gainesville’s past and present elected commissioners continue to promote their mismanagement is the better choice over fears of takeover by FPL or Duke as House Rep. Yvonne Hayes Hinson, D-Gainesville, asserted during House debate on the Bill.

    It appears the Democratic ideology of progressive change has been inverted to one of keeping things the way they are based upon power, not reason or progress.

    When GRU was established in 1912 its purpose served Gainesville residents throughout, and beyond, the city’s Jim Crow era into a time of great technological and social growth not imagined in 1912.

    What was an efficient system in 1912 may not be in 2023 and that issue – efficiency of a small utility vs. larger systems – will probably be on the minds of the first appointed GRU board members.

    However, for voters to yield to Rep. Hinson’s fears is a move backward, not forward, and remain hostage to those who levy ‘ghost taxes’ through utility fees.

    ‘Local control’ places considerable responsibility on voters to control their own fate through informed decisions always holding local government under close scrutiny.

  • The underlying intent of HB1645 is good. A separate utility board with a clear mandate of long term fiduciary management of the utility that has been sorely missing over the past number of years and is absolutely necessary at this time.

    It will allow the general government to focus on learning simple concepts, like saying “No” to pet projects and living within means.

    It will also allow GRU management to actually exercise professional judgment on how best to cost effectively provide UTILITY services to the customer without being joined at the hip by general government considerations and political correctness.

    It’s the way in which this bill was brought up (after previous versions attempts were voted down) at ramming speed through the legislature and with no constructive input from any stakeholders to at least constructively improve the bill or mitigate some of the negative impacts that is unconscionable.

    Since the primary architect of the bill, Clemons, is a term-limited member of the house from Newberry who only has a hand full of GRU customers, this begs the question: “who was really behind this bill”. Most likely it’s the same outfit that bought Perry his seat, FPL. Keep all eyes on them moving forward.

    Since this bill is likely to become law, the Commission and GRU need to accept that the best way to move forward is to move forward constructively to a new way of life without looking back.

    The primary responsibility of all is to keep employees focused on keeping themselves and the public safe while continuing to provide reliable service to Customers.

    The rest will sort itself out over time.

  • Citizens of Gainesville have witnessed a progressive pattern of financial blunders repeated over 18 years by successive City Commissions. They shined a light on and opposed the commissioners secret and redacted deals, feigned and actual ignorance, massive borrowing and defensive spending, unconscionable punishment of whistleblowers and systematic removal of staff that objected to misdeeds and blunders.

    During this extended period, the then local daily newspaper provided editorial and other support for each of the city’s blunders and fiscal fiascos. The steps in timeline are well established and can be briefly enumerated as follows:

    1. Based on private arrangements made by a independently elected mayor, the commission voted to obligate the city to build, lease and buy the largest, notoriously high risk mass burn incinerator in the United States over the objections of experts and citizens.

    2. Citizens, experts and staff members told city commissions in private and in public that the incinerator was a great risk, that it would not do what was promised, that it was not needed because there was more than sufficient generating capacity for decades without making the finacially risky and envirnomentally questionable investment .

    3. The deal went forward behind a political veil as foreign investors agreed to buy in for 250 million dollars enabling a feldgeling private company to build its second and largest incinerator here and rent it to Gainesville. Aparently the private deal was based on putative assurances from the city’s independently elected mayor and compliant commissioners such that the investors could bank on the city’s resources to bail out the investment at a massive profit.

    4. The incinerator’s design was experimental and flawed, its construction was marked with blunders, and it failed to perform as promised by the vendor. Thereafter the mayor and city commission negotiated privately to buy complete ownership of the defective incinerator for about 7 times of the amount invested by the foreign profiteers. The city’s used the full faith and credit of the ratepayers to purchase the incinerator for nearly two billion dollars resulting in a 30 year debt to be paid back by residents amounting to more that three billion dollars that was not funded by energy generated from the costly and defective incinerator.

    5. Upon each of these misadventures and deals, citizens including Jim Konish, Nathan Skop, Ray Washington Debbie Matinez among others along with industry experts provided irrefutable financial evidence in stark contrast to that provided by successive city commissions who had strangely identical political positions. The then daily newspaper whose following was sufficient to support the re-election of incumbents, supported each of the city commission’s actionswhile criticising citizens who opposed it.

    6. Public citizens, distressed by commission actions and although peaceful, were ignored and excoriated by the then daily newspaper and its editorialists. An oddly similar succession of mayors and commissioners threatened and ordered citizens who opposed the deals to be removed or arrested at meetings on pretexts that had no justifiable basis. A series of city financial auditors left or were fired along with succession of managers.

    Although no local state attorney or federal agency has acted to protect the citizens from the city commission, a series of national financial rating agencies published the financial consequences of successive city commissions’ resulting in substantially elevated costs to residents. Florida’s Auditor General investigated the commission’s fiscal activities and commanded the city to make substantial changes, to which the response was essentially verbal while maintaining excessive, superfluous municipal expenses and elevated spending.

    Thanks to the citizens who stand up for the rest of us and for the reportage.

  • Jim Konish needs to serve on the governors new local board. Yes it passed everyone

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