The Inspector General Lawsuit – Myths and Reality

It’s been over two years since a group of Palm Beach County municipalities sued the county to avoid paying their share of the Inspector General’s budget. While the litigation drags on (a court date has been set for next January), the Office of Inspector General has been starved of funds and unable to continue staffing beyond 60% of her projected levels.

The public statements made on behalf of the litigants is that it is “all about the money”, and they believe the county has no right to require them to pay for the OIG services, in spite of the clear intention of the referendum passed by 72% of the voters.

This is not to say that the litigants do not chafe at the very idea of external oversight. Challenges to the authority of the OIG have taken other, less public avenues, like limiting the OIG jurisdiction with “definitions” of waste, fraud and abuse, instituting rules for public employee dialog with the OIG, and impeding access to meetings and documents.

Although West Palm Beach is considered the “ringleader” of the lawsuit, and many of the cities say they are following their lead, central to the action is the law firm of Corbett, White and Davis, P.A., and WPB City Attorney Claudia McKenna. Corbett, White and Davis represent the League of Cities, and twelve of the county municipalities, five of which are participants in the lawsuit. Principals Trela White and Jennifer Ashton shared the League Counsel seat on the OIG and Ethics Ordinances drafting committee and mounted a serious but unsuccessful effort to include the “waste, fraud and abuse” definitions in the ordinances. White/Ashton were voting members when the committee approved the funding methodology that is now being challenged in the lawsuit. McKenna was present for many of the committee meetings, and although she did object to the funding approach in a statement, it was no surprise to her how the funding was to work or why the method was selected.

Although it has been assumed that the West Palm Beach City Commission voted to participate in the lawsuit, a vote may not have been taken. In October of 2011, CWD principal Keith Davis wrote a memo to the “Mayor and Council Members”, outlining the purpose of the lawsuit, and making the case that the IG funding mechanism is an illegal tax under Florida law, and inconsistent with the charter amendment. The memo, which was obtained by West Palm Beach activists through an open records request, further stated that it constituted double taxation (ie. residents are paying twice for service) and that the municipalities have lost control of their budget.

This letter was referenced by City Attorney Claudia McKenna in a memo on October 27, where she listed eleven cities that had joined or were expected to join the lawsuit and recommended that WPB should join as well. It starts with

“As we have discussed with each of you individually, for the past several months the City Attorney’s office has been in discussions with City Attorneys representing numerous municipalities within the County.”

and concludes with: ”

Unless the office receives an objection regarding challenging the funding, the City Attorney’s office will join the City of West Palm Beach as a plaintiff in the lawsuit.”

Myths and Reality

In the Davis memo a rationale is presented which is a mixture of truth, misdirection and mischaracterization of the content and intent of the IG ordinance (the “myths”). Although it will be a court that decides what is truth and what is not, here are the statements and some things to consider. We report and you decide.

Myth 1: The current IG funding mechanism is an illegal tax on a municipality. Since it is not a user fee (no direct tie from fee to service provided) or a special assessment (no benefit to real property), it must be a tax – which the county cannot levy on a municipality. The fact that the voters approved it does not make it legal.

Consider: The voters of each municipality passed the charter amendment that extended the IG over their cities, including the responsibility to pay for it. Oversight consists of infrastructure (such as a call-in line to report wrongdoing), and periodic review of city contract activity and decision-making. The level of effort in a given year depends on the amount of activity that requires scrutiny, and is not fixed. It is “there for you” much as a hotel swimming pool is part of the room fee, even if you don’t swim in it. The fee is objective (based on LOGER activity). A case can be made that it is a fee and is not illegal.

Myth 2: The current IG funding mechanism is inconsistent with the charter amendment (which calls for an amount 0.25% of contract activity) because it uses the LOGER system which looks at other things besides contract activity.

Consider: The ordinance drafting committee devised a formula to extract relevant contract activity from the LOGER system and IG funding is not related to “other” LOGER activity. Furthermore, it is backward looking to smooth out spikes in activity, and excludes “extraordinary” contracts such as the operation of the Lake Worth power plant.

Myth 3: Assessing a contract fee as suggested in the ordinance would be an illegal tax as well because funded activities do not directly relate to the vendor paying the fee.

Consider: This is not the current method, but if it was, see myth 1 above.

Myth 4: It is double taxation – municipal residents are already paying for the county’s share of the IG funding alongside those in unincorporated areas, in addition to municipal taxes to support the city share of the budget. A taxpayer receives the same share of IG services wherever they live so city residents pay twice.

Consider: IG activity is related to the business of government. The county government and its 10,000 employees and $4B budget requires oversight, and all county taxpayers fund this through county millage. Each municipality has its own separate government, also requiring oversight (the unincorporated areas do not). The city share of IG funding covers city government, not county, and it is a separate activity and a separate expense.

Myth 5: The Municipalities have lost control over their budgets because the county can raise the fee without input from the cities, compromising their home rule “exclusive right to appropriate funds as they deem necessary in the responsible operation of government.”

Consider: Next year budget allocation to the cities are taken from current year LOGER. The municipalities can look at this as easily as the county, so they are not blind-sided. Furthermore, a provision of the IG ordinance requires IG budget review by a representative panel from the League of Cities. This occurs yearly in front of the county commission, and to date, no budget objections have been registered.

Likely Outcomes

The current leaders of West Palm Beach and the 13 other suing municipalities are dug in on their position and not likely to end this lawsuit voluntarily. Perhaps it will be decided by the court in January. If not, remember that the municipal elections are coming in March. We will make every attempt to identify the challengers who would end this lawsuit and require the municipalities to pay their share of the IG funding. We believe then ethics-minded citizens will rally around these candidates, much as 72% of the voters supported the extending the IG jurisdiction over the cities. It already worked in Wellington and that city withdrew from the lawsuit when the challengers won election. We will never erase the stain of “corruption county’ until obstruction by public officials is stopped.

Inspector General: West Palm Beach Ethics Probe

As reported in the PB Post on 9/27/13 “Inspector General: West Palm Beach should not have repaid Mitchell in ethics probe.” This writer agrees . Here are the facts of the case, made available by requesting a Public Records Request from the PBC COE.

On Dec.8, 2011 the PBC COE received a complaint,along with a compact disk (CD) concerning Commissioner Mitchell, and upon examination of the the disk an initial inquiry was begun.

On Dec.30,2011 the COE filed a Memorandum of Legal Sufficiency, recommending that a formal investigation be initiated under case # C12-001.
COE staff believes there was reasonable, trustworthy facts and circumstances for the COE to conclude that Kimberly Mitchell, a WPB City Commissioner, violated Section 2-443 (a) (1-2) Misuse of public office or employment, by using resources of an on duty City employee to resolve an issue concerning her personal, residential Comcast service.

Further, staff believed there was sufficient evidence to find that Commissioner Mitchell violated section 2-443 (b) Corrupt Misuse of official position.

On Feb.2,2012 the complaint was heard by the COE in executive session. Present were Commissioners Rogers, Harbison, Reinhart, Farach, and Fiore.

Commissioner Reinhart disclosed that Commissioner Mitchell was a friend, who referred clients to him, and he represented a brother of one of her close friends.

Commissioner Harbison disclosed Commissioner Mitchell’s mother was a former client.

Here is how the commissioners voted to continue the investigation:

• Commissioner Reinhart: No probable cause count 1 & 2
• Commissioner Harbison No probable cause count 1 & 2
• Commissioner Rogers No probable cause count 1 & 2
• Commissioner Fiore Probable cause count 1 & 2
• Commissioner Farach Probable cause count 1, No probable cause count 2

At no time did any Palm Beach County Commissioner on Ethics, investigator, or county staff ever declare that Commissioner Mitchell was innocent, or absolved of any wrong doing. They just voted to not continue the investigation.

Commissioner Mitchell, not content with receiving a walk, then had the audacity to present the city (taxpayers) with her attorney’s bill of $7,325.00 which Commissioners Robinson, Materio, Moffitt, and James approved at a city commission meeting without any commissioner making a single comment.

Residents upset with the PBC COE decision filed a complaint against them with the Office of Program Policy Analysis and Government Accountability (OPPAGA) which is reviewing the policies, and has so far reported the commission needs to sharpen its methods of handling investigations and hearings. Is it a coincidence that Commissioners Reinhart and Harbison are no longer with the PBC COE, along with Commissioner Farach who allowed them to vote on the Kimberly Mitchell/ Comcast issue after they made their disclosures?

Residents are upset with the decision of the Commission on Ethics, so who do we turn to for help? I turn to the Inspector General Office. Commissioner Mitchell is 1 of 5 commissioners who support the lawsuit against the IG. The story above is one reason the WPB Commissioners refuse to stop the lawsuit. Stop funding the IG and she will stop looking into their misdeeds. Three commissioners, Mitchell, Materio, and Moffitt are up for re-election in March 2014. They need to go. If you have read this far, please continue and read the Inspector General’s report to the city of WPB.

Whither Chapel-by-the-Lake?

Sept.16,2013 was a late night for City Commissioners and the residents who met to discuss the First Baptist Church’s Chapel-by-the-Lake property. The church has a chance to sell the property for 23 million dollars, if the city agreed to allow developer Al Adelson to erect a 29 story condominium on 3 acres of land. To accomplish this Mr. Adelson would require the city of WPB to make large concessions concerning setback requirements.

The City Commission on Monday voted 3/2 to rezone the property from community service to multifamily residences, which would allow the Condominium to be built. Commissioner Robinson, who voted for the rezoning stated “My vote was for the Church” Did Commissioner Robinson listen to the residents opposed to the project? Commissioner Robinson supposedly represents the residents, taxpayers, and voters of WPB. In my opinion he does not do a very good job.

Commissioners Moffett, James, and Robinson want a smaller structure, so the developer will lower the building a few floors, and the City Commissioner’s will vote to approve the project, due to the fact they only hear ching, ching, the bell on the cash register, and many dollars will be gained in the form of taxes.

The city government does such a poor job of spending our tax dollars wisely now, why would they expect us to trust them with more of our hard earned dollars. A few examples:

• In the last month it has cost the taxpayers over one million dollars to settle four law suits filed against the city.
• Over five million dollars wasted on Open Sky Police Radio, and it still cost the taxpayers yearly on a radio system that has never been operational.
• Well in excess of two million dollars wasted on Commissioner Mitchell’s pet project, Digital Domain, where the city nearly lost a piece of land worth an additional ten million dollars.
• Commissioner Materio’s pet project to spend 2.9 million on land in her district to keep Wal-mart out.
• The massive failure of the Waste Water Plant where the taxpayers dollars amounting to thirty seven million dollars was spent, and they shut the plant down.

Oh yes, they will vote for the Chapel-by the- Lake.

Rally to protest the WPB-initiated IG Funding Lawsuit

Concerned citizens of WPB, in an attempt to ensure an honest, and strong government, are going to hold a rally in West Palm Beach to protest the lawsuit, initiated by WPB city officials, against the Inspector General’s office.

We are in firm belief that this lawsuit is an effort to disrupt the budget of the IG and ensure Ms. Steckler is denied the funding to properly investigate complaints. In protest the residents will hold a rally to inform city government of our displeasure with their actions.

When: Sept.30,2013
Time: 1:00 PM -2:00 PM
Place: WPB City Hall Courtyard
(nw corner Clematis and N. Dixie)

Believing in “strength in numbers” we welcome everyone who takes an interest in good government to join us in making this rally a success, and have city officials take its residents’ concerns seriously.

If interested please contact either: [email protected] or [email protected].

If you join us – don’t forget to bring some water and a hat!

Here are some sign ideas but make it your own:

• WPB Stop the IG Lawsuit
• Pay your IG Bills
• Fund the IG
• Listen to your voters
• WPB Fears IG Oversight
• Mitchell, Materio, Moffett – NO Re-election in 2014
• What is WPB Hiding?

Announcing WPB Gov Watch

In a Democracy, the people get the government they deserve“. So said Alexis de Tocqueville, or Thomas Jefferson, or Ayn Rand – it has been attributed to all of them. Democracy is also hard work and best not left to politicians. And the best government is one that is constantly watched. And it doesn’t take a lot of people to make a difference. In fact, Margaret Mead said ““Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever does.” That is our motto. We hope to change the City of West Palm Beach.

We hope that you will join us in this effort.

 

« Previous Page