Saturday, May 28, 2011

Whose idea was it? Reasonable notice?

Dear Friend,

Have you seen the editorial in this morning’s St. Pete Times?  If you remain interested in trying to find the fire under all the smoke boiling from SWFWMD, take a look.  You can go directly to the SPT website HERE (control – click) or pasting into your web browser.  Very close to the points I’ve made earlier.

Several issues are beginning to bubble to the top of this conversation: 1) Did SWFWMD make the decision to disband the Basin Boards using statutorily required procedures to insure the public was reasonably notified? And, 2) Where did the idea originate to get rid of the 50-year-existing, successful basin board process that guarantees local control of water management taxes and assures that those who don’t benefit from those taxes won’t have to pay them?  First:

1.         Did SWFWMD make the decision to disband the Basin Boards using statutorily  required procedures to insure the public was properly notified?

Understand, I'm not a lawyer, but HERE’S where you can find the "Sunshine" required by Florida Statutes (or just paste this in your browser:

Based upon what I'm told, the governing board probably has the authority to do what it did, but it may not have followed the right procedure.  I can't say definitively that it didn't, but here are some excerpts from the documents found at the website referenced above that may provide insight.  The purpose of Florida's "Sunshine Law" is to insure government in Florida operates transparently and openly to the affected public.  Here are some quotes from relevant Attorney General Opinions:

"Even though the Sunshine Law does not prohibit a board from adding topics to the agenda of a regularly noticed meeting, the Attorney General's Office has advised boards to postpone formal action on any added items that are controversial. See AGO 03-53, stating that "[i]n the spirit of the Sunshine Law, the city commission should be sensitive to the community's concerns that it be allowed advance notice and, therefore, meaningful participation on controversial issues coming before the commission."

"While the Sunshine Law requires notice of meetings, not of the individual items which may be considered at that meeting, other statutes, codes or ordinances may impose such a requirement and agencies subject to those provisions must follow them. See Inf. Op. to Mattimore, February 6, 1996. For example, s. 120.525(2), F.S., requires that agencies subject to the Administrative Procedure Act must prepare an agenda in time to ensure that a copy may be received at least seven days before the event by any person in the state who requests a copy and who pays the reasonable cost of the copy. After the agenda has been made available, changes may be made only for good cause. Id. Therefore, agencies subject to the Administrative Procedure Act must follow the requirements in that statute "

Also, according to Attorney General Opinion (AGO) 75-305, responding to the propriety of acting on a matter not on agenda under the Sunshine Law, the Attorney General’s office stated:

“Accordingly, I am of the opinion that the failure of a specific item to appear on a published agenda does not preclude discussion of that item at an open, public noticed meeting of a governmental body. Of course, whenever possible, covered boards or commissions should discuss only those matters of which the public has been properly advised. I should also caution that if this procedure were to be designedly used in such a manner as to circumvent or frustrate the Sunshine Law, I do not believe that the holding in Hough would prohibit appropriate legal action being taken under such circumstances.” (

So, did they do it "right"?  You’ll need to ask your closest lawyer-friend. 

Even if they didn't, though, would it make any significance difference to do it over again, properly, given what’s obviously in the cards? 

Yes, and here's the difference.  The affected public would have reasonable notice of the impending decision, have an opportunity to consider its impact upon them and would have the opportunity to communicate those impacts to the decision-makers.  Who knows, after hearing from THE PEOPLE and learning about the history, purpose and performance of Basin Boards, they might even change their minds.  As it stands now, it appears they just don’t want to know what the public thinks.  This is where the District is wrong.  Let them prove it isn’t so.  They need to take the matter up again and give the public its say.  Even if they just made the same decision all over again, at least they'd know what it truly means and what the public thinks about it.

2.         Where did the idea originate to get rid of the 50-year-existing, successful basin board process?

This is stuff really interesting for wonks.  Probably not so much for others. 

Almost everything the legislature did this past session affecting water management districts and the subsequent actions by the SWFWMD governing board can be traced directly back to a seven-page document entitled, “Governance of Florida’s Water Management Districts Options for Legislative Consideration”.  It was produced on December 19, 2007, by an obscure auditing group of the legislature called the Office of Program Policy Analysis and Government Accountability.  The person whose name on the report is the Director of the group, Gary R. VanLandingham, Ph.D. 

Ever heard of him?  I haven’t either, but he (and his legend of gnomes) is apparently the wizard behind the curtain.

Here’s the report summary:

“… This memo is part of a series that reviews the districts’ operations, and focuses on district governance and options for legislative consideration. These options include requiring the Legislative Budget Commission to review and comment of district budgets (Option 1), revising dates for the water management district budget review process to match the state fiscal year (Option 2), directing districts with basin boards to assess the value of their basin boards (Option 3), eliminating the authority of district governing boards to designate basin boards (Option 4), and providing for the election of governing board members (Option 5). For each option, we describe the advantages, and disadvantages.”

Sound familiar?  You can find this seven-page report to the legislature HERE (or  I won’t bore you with details but if you read it, you’ll recognize the questions and the answers it provides.  It is very interesting, I promise.

After all I’ve read and heard so far, I’ve concluded that the disbanding of SWFWMD’s basin boards is misguided.  Some will call it boneheaded.  Others could say it’s evil, dangerous and non-republican by a Republican-controlled body (the legislature, not necessarily the board).  It moves the power of decision-making further from the people and concentrates more of it in the governing board which is already significantly controlled by the Governor and will now be even more controlled by the legislature (explained further below).  Will it save money, be more efficient?  Maybe a little.  Will taxes be collected in one basin for projects in another? Yes, once the funds on hand are spent and the District becomes one big basin, or maybe two or three smaller mega-basins. 

Why doesn’t the governing board just do away with basin taxing districts altogether?  Because if it does, it will lose the taxing capacity of the basins altogether.  Basin board taxing authority is separate from the governing board’s, and because it’s described by Florida Law, and maybe the constitution, a higher level authority than the governing board may be required to change it.  So, in order to prevent the loss of any of its total taxing capacity, the board will have to keep at least one basin intact. This is what the governing board might be considering.  It appears it can declare itself a district-wide basin board, as well as remaining the district governing board and thus be able to continue levying the “basin” tax and the governing board tax.  As such, all the talk about greater efficiency and saving money becomes somewhat bogus because the basin board concept, after all, will remain intact.

Did the legislature need to go as far as it did in increasing its control beyond that of the Executive Branch?  No, very strong control over the five districts’ operations, authority and budgets already extends from the Governor through his authority to appoint individual board members and the Secretary of the Department Environmental Protection.  DEP also has lawful authority to exercise “supervisory” oversight of the districts. This results in very significant control.

So what’s really going on here? 

The legislature has always been envious of the funding capacity of the districts because they have demonstrated over and over again for years that they can actually get things done, things residents of the individual districts wanted and needed.  This has made the legislature ambivalent and disingenuous.  While it covets the taxing capacity of the districts for state purposes, it also wants the districts to be the whipping boy, i.e.,  a shield to protect against the ire of a public that abhors government spending. 

Over and over again, legislators have schemed to gain control of water management districts’ constitutional right to levy a property tax (approved in 1976 by statewide referendum), without tripping that nasty constitutional prohibition that says the legislature shall not levy a property tax.  They do this anyhow, however, by transferring state programs to the districts which effectively offloads the state tax burden for the programs onto the backs of property owners.  Clever, huh?

One of the most prominent examples of these “unfunded mandates” was the Warren G. Henderson Act of 1984 which gave authority and responsibility to the Department of Environmental Regulation (now DEP) to protect wetlands and surface water of the state for public interest.  The Department promptly pushed it off on the Districts, as planned.  The dumping of that state responsibility on the five districts alone triggered a monstrous increase in their respective taxes which was the only way they had to fund this huge, state-required regulatory program.  The districts took the political bullets, of course, while the legislature smugly and disingenuously berated the staffs and boards of the districts for building empires. 

Understand, this program and others, such as those intended to constrain growth to thoughtful and desirable parameters that prevent sprawl, urban decay and destruction of environmentally sensitive lands and water, have been the saving grace of Florida’s greatest assets, its natural systems.  These laws have been immeasurably beneficial to this state.  The extent to which so many good laws were so methodically dismantled this session, however, was a little like removing our state nose because we don’t like our state face.  It’s not going to be pretty.

Many businesses recognize the super-critical relationship between Florida’s world renown quality of life and the viability of its natural systems.  The two are one and the same.  It’s why people want to live here.  They understand this and want to see Florida’s natural assets protected.  There are others, however, who couldn’t care less.  The vindictiveness of those who view environmental protection as unnecessary constraints on their businesses can be seen in play here.  Some are very powerful people who cynically work the halls of Tallahassee to get laws off the books, like this past session, that will only return Florida to the days when wetlands were for draining, rivers and lakes were for getting rid of sewage, panthers were nuisances to be shot, and gopher tortoises were for dinner. 

But I digress.

The part of this year’s legislation that relates to SWFWMD and the basin boards was designed and executed by a vindictive legislature, in my obviously humble opinion, that used an ailing economy as reasoning to gain more control of them and their taxing capacities.  Remember, however, the more control they gain over the independence of the districts, the closer they get to levying an ad valorem tax by definition and the free ride could stop.

A final point needs to be made.  The appointment process can be used to provide oversight and control of water management district budgets, operations and policies for good reasons but it can also be used to disrupt and subvert … and to achieve personal vendettas.  This, it appears, may also be a negative force now at work within SWFWMD.

I recognize that much of what is happening to get our economy back on its feet can be justified because changes are truly needed - changes to give businesses as much opportunity as possible to thrive under a free economy and increasing global competition.  This does not justify killing the layer of the golden egg in the process, however.  There are many ways to be reasonable about effecting desirable change.  Killing the basin boards isn’t one of them.

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