Thursday, June 20, 2019

What's Next?

Now that much of the mandated spending constraints All For Transportation tax hike have been found unconstitutional, all the media, business elites, politicians and proponents that were so wrong about the legal issues, are pushing hard to reinstate the "will of the people".

Judge Rex Barbas summary judgement, while preserving the tax, makes it clear why so much of the AFT charter amendment was unconstitutional.

The Honorable Rex M. Barbas

But that's not slowing down AFT and the "mix of interest groups."

Barbas agreed with Commissioner Stacy White the prescribed spending allocations in the amendment are unconstitutional.
The use of the word shall denotes the legislature's intention that the county commission be exclusively responsible for determining which uses the surtax proceeds should be allocated to as well as the amount to be distributed to each use.
As such, the Court finds the portions of Article 11 Sections 5 - 9 that have been stricken on the attached Amended Petition Form, unconstitutional. This is because the stricken portions constitute a usurpation of powers as they dictate the uses BOCC may apply the proceeds to as well as how much of the proceeds BOCC may apply to each one.
Bold in original.

Regarding how the Clerk of Court must distribute the funds, again Barbas ruled in favor of Commissioner White.
Section 5, however, mandates which uses the proceeds shall be applied to and provides a formula for the distribution of the proceeds. Because Article ll Section 7 was solely decided by the voters through the initiative petition process without any input from BOCC, it is in direct conflict with general law. It is in conflict with general law because section 212.055(l) requires the clerk to distribute the proceeds in accordance with how BOCC deems appropriate.

As such, the Court finds Article 11 Section 4 constitutional. The Court further finds the portions of Article 11 Section 5 that have been stricken on the attached Amended Petition Form, unconstitutional.
Bold in original.

Regarding the Independent Oversight Committee, again, Barbas ruled against the IOC ability to approve projects.
Plaintiff argues that Article ll Sections 6, 9, and 10 create an IOC and confer IOC with the authority to perform BOCC's statutorily mandated duties. The Court finds that duties which the legislature expressly provides shall be performed by county commissioners carrot be conferred upon another.
The Court tends that Article ll Sections 6, 9, and 10 reflect the duties prescribed to IOC are not supplementary and instead have the effect of depriving the county commission of its statutory authority and duties mandated in section 212.055(1). The portions not stricken allow IOC to review and audit the expenditures and plans that are proposed under the Amendment and make their findings known to the general public.

As such, the Court finds Article 11 Sections 6, 9, and 10, as stricken on the attached Amended Petition Form, unconstitutional. This is because the stricken portions prescribe duties to IOC, which have the effect of relieving BOCC of the following duties: determining which uses the proceeds will be applied; determining in which combination the proceeds may be applied, or; final approval and payment thereof.
Bold in original.

What is left is the tax itself, and a neutered IOC.

Barbas has further elaboration in the ruling regarding the ballot language and severability if you're interested. One may argue that with these three major strikes against the core of the amendment the intent of the amendment was no longer discernable to voters, and thus invalid. Barbas has his reasoning why that's not so.

You can read Judge Barbas Summary Judgement below.

One might think after getting it so wrong, AFT, our politicians, business elites and media would take some time to understand the issue, regroup, learn from those that were right, and revisit what they believe to be true, but have now been proven wrong.

But no.

The Tampa Bay Times is cheerleading the way for the lemmings.
Now it’s time to move ahead. Commissioners should seize the opportunity to honor the voters’ intent by taking the proper steps to divvy up the transportation tax as the amendment promised. Road improvements would still be the biggest winner, which should please suburban residents and was a practical concession for making historic investments in mass transit. Local officials should ensure that Hillsborough Area Regional Transit is made whole by committing at least 45 percent of the tax proceeds to the county’s mass transit provider as the amendment outlined. And though Barbas curtailed its power, the independent oversight committee still has a vital role to play over the next three decades in ensuring that billions of tax dollars are responsibly spent as the voters intended.
The Times can't help themselves. They want to immediately double down and lock in the 30 year prescribed spending plan outlined in the AFT amendment. Given the people who wrote and funded the AFT amendment and deceptive $4 million advertising campaign could not be bothered with legal vetting, what gives the Times the confidence they got 30 years of spending and transportation planning correct?

Barbas even lined out
Projects described in the foregoing sentence do not constitute New Automobile Lane Capacity, as defined in Section 11.07(08) below.
(8) Limits on New Automobile Lane Capacity. Agencies are prohibited from expending any funds from the categories mandated by Section 11.07(1), (2) and (3) above on New Automobile Lane Capacity. For purposes of this Section 11.07(8), “New Automobile Lane Capacity” means projects that consist of (i) adding additional lanes for automobile traffic to existing roads or streets that are not related to intersection capacity improvement, or (ii) constructing new roads or streets.
Thus Barbas confirmed the severe limitations on new road capacity in the AFT amendment, which of course the Times and AFT repeatedly deceived the public about.

Road improvements were not the biggest winner, and certainly will not be if the the Hillsborough Board of County Commissioners passes an ordinance to effectively reinstate AFT spending allocations.

The Times editorial concludes:
Commissioner Kimberly Overman captured the right spirit Tuesday, announcing she would move to allocate the tax “exactly as described in the charter amendment.” That would honor the outcome of the referendum and the voters’ intent. If that commitment ever wavers, the oversight committee can shine a hot spotlight on those failures — and the voters can hold the county commissioners accountable in future elections.
Commissioner Overman, who states she is a long-time advocate of smart planning (what ever that is...), is the last person that should be speaking up on this matter. She stated publicly at a BOCC meeting the AFT amendment had been legally vetted. This is false, as the AFT leader, Tyler Hudson, stated the amendment in fact was not legally vetted during a deposition. Hudson is a lawyer, as are other AFT principles Brian Willis and Rena Frazier, believe it or not.

Hillsborough County Commissioner Kimberly Overman
If Commissioner Overman, "a long-time advocate of smart planning", could not get it right then, why does she... and the Times, have confidence now?

The Times questioned the Commissioners regarding their position going forward.
Do you support reinstating the percentages? 
Miller, Hagan and Murman said they want more guidance from the county's legal staff about whether that would violate the judge's order. 
Miller: "At this point, I'm concerned if we reinstate the percentages, we'll violate the constitutionality the judge rendered. He rendered the percentages to be unconstitutional....I don't think we need to be out here (Wednesday) as a county commission deciding whether to do the percentages. If we’re going to do those, we have to find a way to do it legally within the order of the judge." 
Overman: "Absolutely. It made sense, and that's what the voters voted on. Our job is listen to what the voters asked us to do and represent them." Smith and Kemp both said they want to implement the will of the voters.
Interesting that Commissioner Miller is rather circumspect in his response. Of course, Overman, "a long-time advocate of smart planning", predictably won't spend any time "smart planning" and learning from her mistakes.

Commissioners Hagan, Kemp, and Overman were further quoted as supporting dedicated funding for Hillsborough Area Transit, despite the fact that HART has little in the way of real plans.

HART is no different than Tampa, Temple Terrace, Plant City or Hillsborough County for that matter. None have yet to have developed plans for spending the AFT funds. $68 million is already collected, on the way to an estimated $300 million in the first year.

Hillsborough transportation  plans
Despite the fact there are no plans, and the fact the AFT amendment was literally written by a few transit activists and lawyers over wine outside of any planning process or planning authority, we must do what they say!

And do it now.

At today's BOCC meeting, 2 days after Barbas judgement, the activists, business elite were already pushing the issue.
The Hillsborough County Commission took no action Wednesday after about two dozen people asked the board to reinstate percentages dictating the types of projects revenue from a one-cent transportation sales tax can pay for.
The speakers represented a mix of interest groups that often oppose each other when speaking to the commission and other boards about transportation. People from the business community, anti-highway expansion groups, transit riders, the chamber of commerce, the Tampa Bay Lightning and U.S. Rep. Kathy Castor's office all asked the board to reinstate the allocations people voted for in the charter amendment.
The "mix of interest groups" is no surprise to those who follow transportation issues closely. All want something from your taxes without having to pay for it themselves.

The business community, chambers of commerce, Tampa Bay Lightning (Jeff Vinik, of course!) all believe they will benefit from financing, construction and development from increased investment in transit. At least they are not stupid about highway expansion unlike too many transit activists.
Alan Zimmet, the attorney who represented the county in the lawsuit, briefed commissioners about the judge's ruling. Lawyers are still waiting for a final judgment, after which there will be a 30-day window for parties on either side to file an appeal.
Alan Zimmet lost on the key constitutional issues. Why would the commission be listening to him now?
County Attorney Christine Beck cautioned commissioners about discussing any pending litigation. None of board members commented on the ruling following the legal briefing. 
"I'm also aware there are many discussions about the most appropriate way to uphold the will of the voters," Beck said. "There's no way we could pass an ordinance today. It requires notice and public hearings and so forth. I would think that in the coming weeks we would be tackling some of these issues."
Beck outlines the opportunity to get it right -- for the BOCC and the entirety of Hillsborough County.

Clearly the transit activists, downtown Tampa, business elites, clueless politicians and feckless media are trying to force the issue now. They have the motivation, since there is something in it for each of them. They're called "interest groups" because they are "interested" in more free rides, more development, and more power.

But the BOCC represents ALL of Hillsborough County. The 98% that do not use HART, and are road dependent. The small business owner, the commuter, those that work outside of downtown, the laborer and craftsmen that work jobs all over Tampa Bay. The commissioners seem to forget they represent the nearly 1 million residents in Hillsborough County that do not live in Tampa (and the county is growing much faster than Tampa). This is particularly true of Commissioners Overman, Kemp and Smith that are county-wide commissioners, but they seem to only represent downtown Tampa and nearby neighborhoods. They need to represent all their constituents, not just Tampa.

They also need to exercise true leadership rather than jump to conclusions. Leadership is not about following the mob under the guise of "the will of the voter", when the voter was misled with deceptive $4 million advertising campaign supporting an unconstitutional amendment. Leaders work with all people, seeking different points of view, sometimes against the conventional wisdom, understanding the options, the pros and the cons, craft solutions that have the greatest net benefit, and can communicate their rationale to their constituents.

Well, we can hope.

If you want to avoid paying billions for transit and rail transportation in Tampa, and want your roads fixed to better handle the influx of 700,000 new residents over the next 30 years, now is the time to get motivated and show up.

If not, the "mix of interest groups" surely will, and you'll be paying big time for 30 years for transportation tax that won't work.


  1. Are there any organized groups working together to push back against these special interest groups? Aside from writing to each of county commissioners expressing my opinion are there any other ways to have my voice heard?

  2. Imagine this...if Commissioner White hadn't filed his challenge and weathered the pervasive maligning of AFT and the slanted press, we would have been stuck with the totality of this misrepresented tax for the next 30 years!! Since the "Oversight Committee" has been rightfully neutered by the judge, perhaps we could assign them more useful work, such as, reviewing the wasteful mega-spending of our tax dollars in pursuit of one commissioner's dream of having his own professional baseball team.

  3. Excellent post! What a web we weave when we try to deceive. There are many more legal questions about the tax now than before the trial. Article 11 codified the tax in the county charter. The judge has since thrown out most of the article in the County Charter. All that remains is the county’s ability to collect a 1% sales tax for transportation and a neutered IOC. This in effect gives all the money to the BOCC, $16 billion to be divvied up at their and future boards discretion. It cannot become part of the county charter, only the collection of a one cent sales tax can. The dividing up of the tax can only now be done by ordinance requiring 4 affirmative votes of the BOCC to pass. It is unknown at this time if future county boards would be prevented from changing any interlocal agreements dividing up the tax. The present interlocal agreement needs to be rewritten if the spending categories for each local government and HART is to be preserved. What if HART or the city of Tampa or the BOCC wants to change their spending allocation, i.e. all for rail or all for buses? Does that invalidate the interlocal agreement? How the judge did not find the whole referendum unconstitutional is beyond belief. Basically, the judge validated “voter beware”. You wanted to tax yourself 1% without knowing where the money was going is your problem. So, the percentages were irrelevant. The spending percentages were irrelevant and the Independent Oversite committee was irrelevant, but the 1% sale tax was relevant. Can you imagine the precedent set for future charter amendments or sales tax referendums in other counties? Promise them anything just get the money. So, what did the Russians do that was so bad? This wild ride has just started.