Monday, February 3, 2020

No One Should Be Above the Rule of Law, Time to Throw Out the All for Transportation Transit Tax!

The oral arguments on the All for Transportation (AFT) lawsuits will be heard the morning of February 5, 2020.
From FL Supreme Court Docket Schedule
(click to enlarge)
One can watch the arguments livestream on Wednesday or view an archived video recording here.

It is worth reading some of the legal documents related to the case. The documents associated with the original case is found at the Hillsborough County Clerk of the Court by searching on case number 18-CA-11749, clicking on the magnifying glass under View and selecting Events/Documents.

We suggest reading White's Amended Complaint, the Depositions of Commissioner White and AFT's Chair Tyler Hudson and the Final Summary Judgment where Judge Barbas strikes major portions, including all the mandated spending percentages, from AFT's charter amendment.

The documents filed regarding the Appeals on the AFT lawsuits to the Florida Supreme Court can be found under Case Number SC19-1250. It is worth reading the Merit Briefs, the Amicus Curiae Briefs, and the Cross Reply Briefs.

A must read is the Cross Reply Brief filed on 11/13/2019 by Commissioner White's attorney Chris Altenbernd.

With the AFT legal process playing out this week at the Florida Supreme Court, it's time for some reminders about the AFT transit tax and why we hope it will be thrown out.

AFT subjected voters to an unlawful transit tax referendum as ruled by a lower court who struck major portions as illegal. AFT was a deceptive initiative created by transit ideologues to bypass duly elected officials, bypass any opportunity for public input and bypass any public debate.

AFT tried to bypass the rule of law. But as Altenbernd states in the Cross Reply referenced above: "“power to the people” is not a presumption that warrants keeping provisions in a county charter that flagrantly violate general state law."

AFT is a $16 Billion rail/transit tax. It was created by transit ideologues. AFT's $4 million campaign was funded by wealthy downtown special interests who will greatly benefit from AFT's mandated spending on costly rail projects in the city of Tampa.

AFT's  transit tax was never intended to fund the backlog of much needed new road capacity or fund the future needs for new road capacity. AFT used the fine print of their 5 page charter amendment to specifically prohibit and restrictively limit the use of any AFT funds for new road capacity - for 30 long years.

AFT knew that probably most voters never read the fine print. So AFT used a deceptive marketing campaign to masquerade the AFT transit tax as a "plan" to fix and improve roads. AFT never used the word "tax" in their advertising and never marketed their "plan" for what it is - a 1% 30 year transit tax hike.

AFT misled voters with their Ballot Title and summary language which is the only information every voter is guaranteed the opportunity to read. AFT excluded any reference to their mandated spending percentages in their Ballot Title and summary.
AFT Ballot Title/Summary Language

Of course voters will reasonably conclude that funding road improvements, which appears to be a top priority in AFT's Ballot Title and summary, includes funding for new roads and new road capacity. AFT bet on voters thinking that knowing they hid their intentions to prohibit using AFT funds for new road capacity in the fine print elsewhere.

In addition, with almost half of AFT's tax proceeds - 45% (about $7 Billion) - mandated to go to transit, AFT misleadingly did not even include transit in their Ballot Title.

Comparatively speaking, the 2016 Go Hillsborough proposed Ballot Title was "Fund countywide transportation system improvements for better roads and transit choices with 1⁄2% sales tax".

AFT led a misinformation campaign. AFT claimed their plan was to "fix roads, reduce congestion and get you home for dinner faster" when they are actually prohibiting funding of new road capacity. And with less than 2% using transit in Hillsborough, AFT avoided advertising they forced billions be spent on costly rail/transit projects.

With the help of their media allies, AFT shut down all debate. AFT did not want to risk being publicly asked about potential legal issues, about their burdensome spending mandates, about why they mandated Billions be spent on costly rail and transit or why AFT did not fund new road capacity. And AFT could not risk having to publicly defend their attempt to bypass the rule of law.

AFT is a transit boondoggle. HART has no plan for how to spend the Billions AFT hands them. It is fiscally irresponsible for AFT to mandate spending billions of taxpayer dollars for costly rail/transit projects that HART has done no due diligence, no planning, no ridership analysis, no cost estimates, and has had no public discussion about. It is irresponsible to force taxpayers to hand HART billions of tax dollars HART never requested.

The AFT transit tax is unbalanced and unfair. 74% of the AFT tax proceeds will be paid by those who live in unincorporated Hillsborough. However, that fast growing part of the county will get no funding for the congestion relief they need and want. Due to AFT's mandates to fund costly rail project in Tamp, over 50% of the AFT tax proceeds will be spent in the city of Tampa where less than 1/3 the county's population resides.

The AFT tax forces much needed road capacity projects to be funded from another tax source or funding for new roads is shut down - for 30 years when 800K people are expected to move to Hillsborough. Did voters know that? Or did voters reasonably assume road capacity projects were  funded by the 30 year $16 Billion AFT transit tax?

Real performance audits on complex programs takes months not weeks to complete. The performance audit required by Section 11 of the State Statute 212.055, that governs local sales tax referendums before the referendum can be placed on the ballot, requires at a minimum the audit examine:
1. The economy, efficiency, or effectiveness of the program.
2. The structure or design of the program to accomplish its goals and objectives.
3. Alternative methods of providing program services or products.
4. Goals, objectives, and performance measures used by the program to monitor and report program accomplishments.
5. The accuracy or adequacy of public documents, reports, and requests prepared by the county or school district which relate to the program.
6. Compliance of the program with appropriate policies, rules, and laws.

Only HART and Hillsborough County (only 2 of the 6 recipients of AFT transit tax proceeds) were audited by the State's Office of Program Policy Analysis and Government Accountability (OPPAGA). Neither entity had a plan or a spending program for AFT's dictated policy mandates for how to spend the AFT billions they will receive. Goals, objectives and performance measures for AFT's spending policy do not exist. They did not exist when the performance audit was done in August 2018.

The City of Tampa, who will receive over a BILLION dollars of AFT tax proceeds, was not audited at all. Nor was Temple Terrace, Plant City or the Hillsborough MPO. Why not? If all recipients of the AFT transit tax proceeds were not audited, how is the performance audit considered complete? If the performance audit was not complete, then why did it get placed on the ballot?

Can OPPAGA unilaterally decide which recipients of the AFT tax proceeds gets audited and who does not? If so, how is that decision made?

No one can determine the effectiveness of AFT's dictated spending program because AFT refuses to disclose any details for  how to determine any measure of success for spending AFT's billions over 30 long years. AFT provides no measure for determining success, determining congestion relief, determining transit ridership increase or determining cost effectiveness of their mandated spending allocations.

AFT refuses to divulge how and why AFT calculated their mandated spending percentages. AFT's Chair Tyler Hudson stated in his Deposition of 4/1/2019 that such information was political speech, free speech, protected by the First Amendment.

Hudson admits AFT's transit tax is a political agenda. It is an agenda to force taxpayers in unincorporated Hillsborough to fund costly rail/transit projects in the city of Tampa. It is an agenda to benefit the same wealthy downtown special interests who funded AFT's campaign.

With major portions of the AFT transit tax thrown out as unlawful, how did OPPAGA ensure the AFT spending policy program complied with all the appropriate policies, rules and laws? As we reported here, "the performance audits completed could not meet the required statutory requirements."
The lower court struck all the mandated spending percentages in Sections 11.07 and 11.08 and portions of Sections 11.05, 11.06, 11.09, 11.10 and 11.11.  After selectively striking major portions, Judge Barbas left an incoherent charter amendment - like a dangling participle. Such incoherence  could possibly lead to further legal questions or issues.

Local media was aware of AFT's potential legal issues but refused to report about them. Keeping such important information from the voting public is wrong. We will remember that for future reference.

We anxiously await a ruling by the Florida Supreme Court.

We do not want to see a bad precedent set where wealthy special interests can fund tax hikes and bypass the rule of law to benefit themselves.

There are layers of issues with the AFT transit tax. We hope the entire AFT transit tax charter amendment is ruled unlawful and thrown out.

But beware if the tax is thrown out….

AFT and their allies are ready and have written another transit tax ballot initiative to put on the November ballot. This go round AFT will use sympathetic county commissioners, not a petition drive, to put it on the ballot.

The same wealthy special interests will open their deep pockets again and the battle will continue.

But we won't be fooled again!

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