Sometimes it pays to have friends at City Hall. Literally. – An opinion

Submitted by Suanne Z. Thamm

Reporter-News Analyst

The Memorandum of Understanding has been signed; City Manager Joe Gerrity authorized the check for $8,000 on May 21, 2013.  The City of Fernandina Beach [read:  you, the taxpayer] has just paid local waterfront advocate Lynn Williams and his partner, respected local shrimper David Cook, in full for services the city hopes will be rendered in some form by some unspecified date for construction and testing of an undocumented water injection drilling (WID) process that might save us hundreds of thousands of dollars in city marina dredging fees. 

If a plan exists for how this construction and testing will be done, it has yet to materialize.  No one disputes that Williams and Cook have good intentions.  It’s the experience and credentials that are not readily apparent. Although Williams did say when the matter was discussed by the Fernandina Beach City Commission in March, “David Cook can build anything.”  At that meeting, Williams was short on specifics, but his oratory won over the commissioners–that is, all the commissioners but Arlene Filkoff.  The other four found no problem in authorizing the City Manager to give Williams $8,000 to work on his idea.  This is the same commission, I might add, that delayed hiring a City Clerk because of money concerns and is considering whether the budget has enough “slop” to allow them to fund any grants to the city’s not-for-profit agencies next year.  This group of commissioners also campaigned on platforms supporting government transparency, cutting taxes, and eliminating special interests from city decision-making.

My first public information request in March for specifics on this proposed project returned exactly zero: no engineering drawings, methodology, permits or cost breakdowns.  After hearing at the June 18, 2013 city commission meeting that the $8,000 had been handed over to Williams, I submitted a second public information request.

That request turned up some interesting background information, although not exactly what I was looking for in terms of specifics.  The record indicated that City Attorney Tammi Bach engaged in several email exchanges with Williams, the city’s risk manager, and City Manager Joe Gerrity’s office between March 28 and May 21, 2013 when Gerrity authorized payment to Williams.

From the public records, it appears that Williams submitted the first draft of the agreement based upon sample agreements he requested and received from Bach.  Bach amended his April 3, 2013 draft on April 5, 2013 to include additional language to meet legal requirements.  On April 18, 2013, Bach forwarded the draft agreement to the city’s insurance consultants to make sure the city would be covered. 

That same day Bach received back an email from Jennifer Woods, the Director of Risk Management for Harden Insight, raising 9 specific concerns and questions.  Woods had difficulty doing a full risk assessment because of “the very limited scope of work that is described in the  [Memorandum of Understanding].”   But she raised red flags concerning city liability, asking at one point, “Has the City done enough due diligence on these two individuals and their testing process?  What is their expertise or qualifications?  Has the City checked references with similar projects?  Has the City considered other contractors?”  She also seemed concerned that according to the agreement, “Williams and Cook will retain ownership of the equipment after the test. This seems contrary that the city would be paying for equipment and then allow the independent contractors to keep it.  Again, more details on the cost of the equipment and the utilization of it would be helpful.”  She concluded with, “Based on the above [concerns], I recommend that the MOU be amended to clarify the scope of the work and the responsibilities of both parties.  The City should be aware that some of these potential risks may not be insured under this arrangement by their insurance policies and that they could be assuming the risks associated therein.”

Bach forwarded this email to Gerrity immediately, asking for a meeting to discuss the issues raised.  There is indication that a meeting was scheduled, but no notes have surfaced.  Indeed, there is no written or emailed document connecting the city manager to this at all, except for his signature authorizing the $8,000 check to be cut on May 21, 2013.  Likewise, there is no record indicating that Bach or Gerrity advised the commissioners that there might be some problems for the city with moving forward on the Williams-Cook agreement.

Many of the questions raised by the risk manager remain unanswered.  But there was a strong liability statement included in the final agreement, which seems to assign liability to Williams & Cook, who have agreed to assume “…all risks and hazards incidental to construction, testing  and/or  demonstration  of  WID,”  and  releases the city from losses or injuries arising out of any act of omission or negligence, either active or passive of the City of Fernandina Beach, its employees and elected officials. 

The duly executed agreement between the city and Williams & Cook calls for providing “up to the total sum of $8,000 at the start of work.” While there is mention of a final report, there is no delivery date specified or even suggested. There is no requirement for interim reports.  And there is still no statement of work to include drawings, methodology, measures of success, state review or other points that would logically be part of a routine bid proposal.

Most government contracts are paid in installments after certain benchmarks are achieved.  Or after the final product has been submitted and reviewed for satisfying the terms of the agreement.  But in this particular case, our city has paid the entire amount up front, with no timetable for a report and no benchmarks for success. 

But it is not fair to single out Williams and Cook for what appears to be a poorly documented project, which may or may not produce anything of value for the city.  Any citizen has the same right to petition the government for support.  The problem lies with the people who approved and funded this project, ignoring the due diligence that should have gone into the review of this proposal before it even got to the commission.  Instead, the City Commission ignored or did not invoke any technical or legal review and just said yes.  They cut short the process, putting both Bach and Gerrity in the position of either needing to “make it work” or risk commission displeasure by bringing it back to them with a recommendation to reconsider. 

So why did four commissioners jump to approve this item with so little detail and review?  Was it because of heavy lobbying efforts?  Was it to show the electorate who really runs the city?  And why didn’t the City Attorney and the City Manager raise red flags before the vote was taken?

An individual more familiar with WID than I opined that there are firms that have pioneered, tested and perfected this type of dredging here in the United States, not just in Holland.  If the city were truly interested in pursuing such a solution to the dredging dilemma, it could have put out an RFP and gotten some solid, scientific advice that would relate directly to our local problem.  Instead, we are spending $8,000 because a couple of local guys have an idea on which they are more comfortable risking taxpayers’ money than their own.  And if this turns out to be a process that cannot be replicated, won’t work in our marina, or can’t get state approval … well, bless their hearts, they tried. 

And just remember that the only commissioner who did not think this was a good idea is leaving office in December.

Editor’s Note:  Suanne Z. Thamm is a native of Chautauqua County, NY, who moved to Fernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city.  We are grateful for Suanne’s many contributions to the Fernandina Observer.

June 27, 2013 10:45 p.m.