Attorney Bach clarifies impact fee matters

Submitted by Suanne Z. Thamm
Reporter – News Analyst

December 4, 2014 5:54 p.m.

 

DSCN1555At the close of the December 2, 2014 Fernandina Beach City Commission (FBCC) meeting, Vice Mayor Sarah Pelican thanked City Attorney Tammi Bach for copying her and others on the email Bach had sent to Commissioner Johnny Miller regarding questions about the impact settlement recently raised by local blogger Dave Scott. (http://www.davescottblog.com). At the request of the FBCC, Pelican read the email below into the record:

From: Tammi Bach <[email protected]>

Date:12/01/2014 11:05 AM (GMT-05:00)

Johnny:  thank you for forwarding to me…see my response below which I am also copying all Commissioners on.

First, the $1.8 Million is NOT being paid from TAX DOLLARS.  The settlement and City’s outside attorneys’ fees for the “cadre of out-of-town attorneys and consultant” will be paid from reserve funds in the Water Utilities account which is an enterprise fund not at all funded by property taxes or any other kinds of taxes.  The Utilities Department is funded solely by rate and fee payers who use the system.  The $700,000 refunded last year was due to an error in providing 90 days’ notice of an increase in impact fees in 2009.  Only the increased proportion was refunded not the whole thing.  There was $155,000 in water impact fees refunded, not $735,000.  Most of the refunds in 2013 were sewer impact fee increases which are not at issue in the lawsuit being discussed here.

The settlement documents and amount of settlement ($1.8 Million) were published prior to the City Commission’s public meeting giving the public an opportunity to make comments at the meeting and for Commissioners to discuss it.  Some interested parties and media, including Mr. Dave Scott and Mr. Phil Griffin were present at the November 18th meeting.  Why did they not make public comments to the City Commission to express their views then?  The reason that the agenda was amended the day before the Commission meeting is because the City was waiting for signatures on documents from Plaintiff and their attorneys before the City Commission could formally consider the settlement at the November 18th meeting.  In a perfect world, the settlement documents would have gone out on Wednesday, November 12th or Thursday, November 13th with other agenda items but that is still just a few days prior to Commission meeting.

City Attorney
City Attorney

There was never a vote taken at any attorney/client meeting behind closed doors indicating that the City Commissioners had voted on a settlement outside of the Sunshine.  The City followed all legal procedures pursuant to Section 286.011(8), Florida Statutes.  The Commissioners considered the settlement issues and amounts in attorney/client meetings which are recorded in transcripts prepared by Bill Hazes Court Reporting.  Those transcripts will be available to the public in the next few months upon the conclusion of the class action (after Court approves settlement and class members are identified).

I have a couple of questions to folks who are sadly misinformed by bloggers and weekend editorialists:

1)      Do you really believe that the City Commission did not settle this case earlier because they wanted to pay more attorneys’ fees or wanted to continue the legal fight for the sake of fighting?; and

2)      What would be the purpose of the City Commission violating the Sunshine Law when every word discussed behind closed doors is taken down verbatim by a Court reporter present in the room the entire time with the City Commission?

The City Commission, City Manager, City Attorney and outside attorneys believe and still believe that the actions taken by the City Commission back in 2003 when the City purchased the FPU water system was a benefit the community and done through a public process of several Commission meetings with consultants presenting evidence that buying the FPU water system was a good thing for the City.  The rates paid by users of the Fernandina Beach water system are lower than any neighboring communities which is a testament to excellent management by the City of the water system and the wise decision to purchase the system.

 
Suanne Thamm 4Editor’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.

19 Comments
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Larry Myers
Larry Myers (@guest_24896)
9 years ago

Thanks for excellent coverage of this subject.
Is there information on who qualifies & how they apply for the refund of utility impact fees??

Dave Lott
Dave Lott(@dave-l)
9 years ago

Very informative and illustrates how there are different perspectives and opinions (but not facts) on such controversial issues. Tammi raises some interesting questions especially with regards to the transcripts of the executive sessions being made available to the public post-settlement.

Bruce Smyk
Bruce Smyk (@guest_24902)
9 years ago

Does the phrase “NOT from TAX DOLLARS” soften the blow of its coming out of the pockets of taxpayers, whether as a “user fee” or a “tax”? Does it matter whether it comes out of the left pocket or the right pocket? What about the lost revenue/ salaries related to businesses that decided not to come here or not to expand because of the “fees”? Will anyone be held accountable? I doubt so.

Lou Goldmman
Lou Goldmman(@lgoldmngmail-com)
9 years ago

Let’s see if I understand this situation completely. Some four years ago Pat Keogh, Realtor Phil Griffin and attorney Clinch Kavenaugh appeared before the City Commission. They told the CC that using the impact fees for payment of the purchase price for the water system was against the law and because it was an illegal use of the impact fees they wanted the collection of the impact fees to be suspended. At that time they didn’t ask for repayment of the fees, or any fines, they just asked that the City suspend the impact fees. The CC, in their infinite wisdom, did nothing. It’s like they stuck their heads in the sand thinking that if they did nothing, the issue would go away. That decision, to do nothing, as we now know, was very costly. Yes, the commissioners could have done some research on their own, the utility director and City Attorney should have known the law and the City Manager could have stepped in – that’s what managers are supposed to do. Instead they did nothing and a lawsuit was filed which asked for return of the impact fees that were paid to the City. That decision – to do nothing – as we now know was very costly to the City. If the City were a private business and that decision was made – some head(s) would be rolling.

Dave Lott
Dave Lott(@dave-l)
9 years ago

Lou,
I certainly wasn’t there and part of the discussions, but I think (and hope) it wasn’t a matter of simply not taking a look and hoping the issue went away. Pat’s vocal arguments against impact fees of any type goes back much longer than 4 years ago. I am guessing (and it is only a guess) that the underlying legal question of whether the impact fees were legal was in fact examined and the City thought they were legal, therefore taking the position that they did. Certainly when outside counsel was brought in they made a persuasive argument that the City would prevail in the matter. Hindsight is always 20/20 and it is indeed painful to see these funds expended on legal fees, even if they are enterprise fund fees and can’t be spent on other activities – but a reduction in water/sewer rates would have been nice.

Ross Gass
Ross Gass (@guest_24917)
9 years ago

I think it’s very important to remember that one of the commissioners who had the power to stop this problem dead in it’s tracks is up for election in the upcoming run off: Mr. Tim Poynter. As a commissioner, he could have instructed the City Manager at the time to suspend the seat counting campaign. Instead he was one of the ones who made the choice “to do nothing”. Business owners were upset and the City Manager was given carte blanche to continue. Now we want to reelect this man to serve on the city commission???
And, Mr. Bruce Smyk, if you’d like to hold someone accountable for the lost revenue related to the fees, then vote for Charlie Corbett and not Tim Poynter on Dec. 9th. Don’t let one of the men responsible for this suit to return to a decision making position in this city.
Considering the city was on the hook for $24 million dollars (the “asking price” of the lawsuit) I’d say that $1.8 million settlement (considering settling is better than drawing out the suit and having to pay ever larger amounts in legal fees) is coming out pretty darned well.

Bruce Smyk
Bruce Smyk (@guest_24925)
9 years ago
Reply to  Ross Gass

Huh? When was the last time the city prevailed in a lawsuit? I presume you are related to Pat Gass (no inferences to be raised, just trying to figure it out).

Sonny Florida
Sonny Florida (@guest_24952)
9 years ago
Reply to  Ross Gass

I think it’s very important to remember that one of the commissioners who had the power to stop this problem dead in it’s tracks is up for re election in the upcoming year: Ms. Pat Gass. As a commissioner, she could have instructed the City Manager at the time to settle the lawsuit. Instead she was one of the ones who made the choice “to do nothing”. Business owners were upset and the City Manager was given carte blanche to continue. Now we want to reelect this woman to serve on the city commission???

Andrew Curtin
Andrew Curtin(@bkdriverajcgmail-com)
9 years ago

Mr.Smyk,
Prevailing was probably not an option,but minimizing the adverse impact on the city was.This,in fact was accomplished,thanks to the effort and leadership primarily of Comm.s Gass,Corbett,and Pelican,as well as the hard work of Mr.Gerrity and especially Ms.Bach in coordinating and directing the legal effort to defend the city in court.Also,Mr.Buddy Jacobs deserves recognition for his services.
The outcome,while costly could have been a lot worse.However,like the McGill suit it could have been settled years ago had there been city officials then who had been looking after the City’s best interests rather than feeding their own egos.
Unfortunately for us, such officials as Mr.Poynter,Ms.Steger,Mr.Czymbor and others preferred to prolong the legal imbroglio rather than seek a settlement.

Sonny Florida
Sonny Florida (@guest_24951)
9 years ago

Mr. Curtain,
Ms. Bach seems to be the common denominator here. Her job I’m to assume is to direct the commissioners regarding such things. I’m not sure I understand the correlation between the commissioners who were in office during the McGill lawsuit, and the ones who are now during the impact fee lawsuit. Again, I’m to assume during both lawsuits Ms. Bach provided advice and direction in regards to handling things. If anyone should be held accountable, I’m certainly looking her direction.

Bruce Smyk
Bruce Smyk (@guest_24962)
9 years ago
Reply to  Sonny Florida

Well, the current commission just gave her a 4% raise, so they must like her performance.

Robert Warner
Robert Warner (@guest_24991)
9 years ago

Sometimes it is just hard to get anyone to listen, especially when second guessing, ex-post facto, is our national past time. There are no perfect answers.

Andrew J.Curtin
Andrew J.Curtin(@bkdriverajcgmail-com)
9 years ago

Sonny Florida,
First, I’d appreciate your spelling my name correctly-“Curtin”. Thank you in advance.
While the attorney does offer advice and provide direction,the decisions are those of the Commissioners’ alone.Since neither Gass,Pelican,nor Corbett were on the commission back then,nor for that matter,Boner or Miller,it was the decisions of their predecessors,including Mr.Poynter,that has brought us to this point.So,the efforts of the current commission and staff to achieve a settlement minimizing the financial impact on the city.

Ross Gass
Ross Gass (@guest_25001)
9 years ago

Sonny Florida,
How interesting that you don’t use your real name. Is it because you don’t feel compelled to stand by your false statements? You simply “copied and pasted” my factual statement regarding Mr. Poynter and substituted my mother’s name. (Yes, Pat Gass is my mother though my opinions are my own and are not meant to speak for her in any way.)
Not a single member of the present commission was present when this mess began. Mr Poynter, however, as myself and Mr Curtin pointed out, was present and could have stopped the process. Again, this is not an opinion, it is a fact.

Sonny Florida
Sonny Florida (@guest_25004)
9 years ago
Reply to  Ross Gass

Ross Gas,
You eloquently stated what I wanted to say, therefore I saved the time and effort and used your words. Not so sure what false statements I made, nor do I understand why you feel the need to surround copied and pasted with quotation marks. And yes, Sonny Florida is indeed my legal name. Thanks for taking the time to respond. Hope you have a wonderful evening.

tony crawford
tony crawford (@guest_25002)
9 years ago

It’s almost Monday folks, that would be ELECTION DAY. Could all the mud slinging stop before the poles close and use that effort to get out as many people to get out and vote for whoever the mud is being slung for. I really think by now most have made up their minds who to vote for. If you haven’t, look at it this way—If you like what is happening in the City– You like what direction the City has been going in—You like the fiscal responsibility shown by this commission–you like The way Commissioners have treated the public at meetings—You are in favor of cutting back money to charities and being given the opportunity to support them on your own–If you are happy with the way the waterfront project is being handled—If your happy with what the plans are for 8th street—-If you happy with the way the commission has voted on port issues—If your Happy with the way the City supports shrimp fest– If your happy with the handling of the lawsuits and the plans for marina dredging –than this election is a no brainier. The focus now has to be to get out and get all your like minded people to vote. This is a really important election. It should be decided by as many people as possible. Once again– You can’t change on the 10th what you could have fixed on the 9th Please everyone see if you happy and vote accordingly.

Andrew J.Curtin
Andrew J.Curtin(@bkdriverajcgmail-com)
9 years ago

The choice Tuesday is simple:
-Irresponsible borrowing and spending/profligacy/self serving agendas/personal arrogance-Poynter.
-Conservative, fiscally responsible leadership,putting the city and its residents first-Corbett.
Please Consider each one’s record during the terms they have served,and then vote.

tony crawford
tony crawford (@guest_25014)
9 years ago

Andy, That is the main thing –lets get out there and vote and get all our friends to do the same. Lets hope the Cities future is decided by a few.
Most important is on Dec 10th we all work together.

tony crawford
tony crawford (@guest_25025)
9 years ago

Sorry folk, made a mistake on a previous comment. Election day is not Monday its Tues. May have been wishful thinking to get this over with, My apologies. Thanks Andy for mentioning it was Tues.