HomeMy WebLinkAbout2021 12 13 Consent 304 - Minutes from the Monday, September 20, 2021 City Commission Special Meeting CITY COMMISSION
Incorporated
1959 SPECIAL MEETING
MINUTES
MONDAY, SEPTEMBER 20, 2021 AT 6:30 PM
CITY HALL- COMMISSION CHAMBERS
1126 EAST STATE ROAD 434, WINTER SPRINGS, FLORIDA
163
CALL TO ORDER
Mayor Kevin McCann called the Special Meeting of Monday, September 20, 2021 of
the City Commission to order at 6:30 p.m. in the Commission Chambers of the
Municipal Building (City Hall, 1126 East State Road 434, Winter Springs,
Florida 32708).
Poll Call:
Mayor Kevin McCann, present
Deputy Mayor Ted Johnson, present
Commissioner Matt Benton, present
Commissioner Kevin Cannon, present
Commissioner TiAnna Hale, present
Commissioner Rob Elliott, present
City Manager Shawn Boyle, present
City Attorney Anthony A. Garganese, present
City Clerk Christian Gowan, present
*AGENDA NOTE*A FULL TRANSCRIPT OF THE PROCEEDINGS IS ATTACHED TO THE
END OF THESE MINUTES.
Mayor McCann outlined proposed rules of procedure for the proceedings.
"MOTION TO ADOPT PROCEDURES AS OUTLINED BY THE MAYOR." MOTION BY
COMMISSIONER CANNON. SECONDED BY DEPUTY MAYOR JOHNSON. DISCUSSION.
VOTE: BENTON (AYE); CANNON (AYE); JOHNSON (AYE); HALE (AYE); ELLIOTT (AYE)
MOTION CARPI ED 5-0.
AWARDS AND PRESENTATIONS
100.) Not Used
INFOPMATIONAL AGENDA
200.) Not Used
CONSENT AGENDA
300.) Not Used
PUBLIC HEAPINGS AGENDA
400.) Not Used
PEGULAP AGENDA
CITY COMMISSION MINUTES I SPECIAL MEETING MONDAY, SEPTEMBER 20, 2021 PAGE 2 OF 4
164
5OO) Pursuant to Pesolution No. 2021-09 and Section 4.11 of the City Charter, City
Commission Investigation Proceeding Related to the City's Existing
Consumptive Use Permits Issued by St.Johns River Water Management District
and the Multi-Phase Expansion of the City's Reclaimed Augmentation Plant at
Lake Jesup and Related Distribution System.
Mr. Marc Jones, Esquire was present representing the following subpoenaed
individuals:
• Mr. Kip Lockuff, Former Public Works and Utilities Director (not present)
• Former Commissioner Pick Brown (not present)
• Former Commissioner Jean Hovey (not present)
• Former Commissioner Joanne Krebs (not present)
• Former Mayor Charles Lacey (not present)
• Former Commissioner Cade Resnick (not present)
Mr. Darren Elkind, Esquire was present representing the following subpoenaed
individuals:
• Mr. Brian Fields, Former Community Development Director (present)
• Mr. Kevin Smith, Former City Manager (present)
Mr. Smith and Mr. Fields were sworn in by the City Clerk and provided testimony to
the Commission.
"MOTION TO APPROVE TAKING NO ACTION ON THE SEPTEMBER 20, 2021 LETTER
SUBMITTED BY MP. JONES, AND TO REVISIT THIS WHEN THE NEXT SET OF
WITNESSES COME IN, AND TAKE ACTION AT THAT TIME." MOTION BY
COMMISSION ERCANNON. SECONDED BY COMMISSION EP HALE. DISCUSSION.
VOTE: BENTON (AYE); CANNON (AYE);JOHNSON (AYE); HALE (AYE); ELLIOTT (AIDE)
MOTION CARPI ED 5-0.
Discussion followed on next steps and Attorney Garganese agreed to communicate
with CPH's representatives to set up a mutually agreeable time for their testimony
to be heard.
PUBLIC INPUT
Mr. Paul Partyka, 404 Park Lake Drive, Winter Springs wondered why the process
was initiated this way, thought a workshop would have been more effective and
thought the subpoenas should be retracted.
Mr. Geoff Kendrick, 7784 Trotwood Blvd, Winter Springs reiterated Mayor Partyka's
comments, thought the Commission was abusing its power, and suggested hiring
CITY COMMISSION MINUTES I SPECIAL MEETING I MONDAY, SEPTEMBER 20, 2021 1 PAGE 3 OF 4 165
an independent agency to review. Mr. Kendrick also asked why Commissioner
Cannon was not subpoenaed.
Ms Gina Shafer, Winter Springs Village, Winter Springsthan ked the Commission for
addressing water problems and noted appreciation for holding these discussions in
the sunshine. Ms Shafer also thought public input should have been heard in the
beginning.
Mr. Art Gallo, 799 Nandina Terrace, Winter Springs spoke about sunshine
requirements and noted he would reserve judgments on if subpoenas were right or
wrong. Encouraged people to review everything
Mr. Ron Ligthart, 7036 Winding Waters Circle, Winter Springs expressed
disappointment with Commission, thought the proceedings were a hostile process,
thought Kip Lockuff was very smart and qualified and spoke on the importance of
appreciating technical expertise.
Discussion followed on the importance of holding these conversations in the
sunshine and the projects currently underway to address the issues being discussed.
ADJOURNMENT
Mayor McCann adjourned the meeting at 9:44 PM.
RESPECTFUL L Y SUBMI TTED.-
CHRISTIAN GOWAN
CITY CLERK
APPROVED.-
MAYOR KEVIN McCANN
NOTE: These Minutes were approved at the 2021 City Commission Regular Meeting.
CITY COMMISSION MINUTES I SPECIAL MEETING I MONDAY, SEPTEMBER 20, 2021 1 PAGE 4 OF 4 166
The following is a transcript
prepared by a Court Reporter for
the Monday, September 20, 2021
City Commission Special
Meeting
167
1
1 CITY COMMISSION MEETING
2 SPECIAL MEETING
3
4
5 REGULAR AGENDA ITEM NO. 500
6 CITY OF WINTER SPRINGS, FLORIDA
7 INVESTIGATION PURSUANT TO CITY CHARTER
8 SECTION 4.11 AND RESOLUTION 2021-09
9 /
10 TRANSCRIPT OF PROCEEDINGS
11
12 DATE TAKEN: MONDAY, SEPTEMBER 20, 2021
168
13 TIME: 6:29 P.M. -8:16 P.M.
14 PLACE: CITY OF WINTER SPRINGS-CITY HALL
15 1126 East State Road 434
16 Winter Springs, Florida 32708
17
18 REPORTER: CATHERINE M. MORROW
19
20
21
22
23
24
25
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2
1 THE MAYOR: Evening everyone. I would like
2 to call the September 20, 2021, city commission
3 meeting to order. Christian, conduct the role.
4 CITY CLERK: Commissioner Benton?
5 COMMISSIONER BENTON: Here.
6 CITY CLERK: Deputy Mayor Johnson?
7 DEPUTY MAYOR: Here.
8 CITY CLERK: Commission Cannon?
9 COMMISSIONER CANNON: Here.
10 CITY CLERK: Commissioner Hale?
11 COMMISSIONER HALE: Here.
12 THE CLERK: Commissioner Elliott?
13 COMMISSIONER ELLIOTT: Here.
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14 THE CLERK: Mayor McCann?
15 THE MAYOR: Here.
16 THE CLERK: Mr. Garganese?
17 CITY ATTORNEY: Here.
18 THE CLERK: Thank you. If we may stand?
19 (A prayer was made by the Deputy Mayor.)
20 THE MAYOR: All right, folks. This is a
21 special meeting of the city commission, which is
22 being held to conduct one specific item of
23 business. On July 12, 2021,the city commission
24 adopted resolution number 2021-09 invoking its
25 investigatory powers under section 4.11 of the city
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3
1 charter to initiate and conduct a formal
2 investigation into certain business affairs of the
3 city related to the city's consumptive use water
4 permits and Lake Jesup reclaimed water augmentation
5 plan.
6 As a mayor, it is my responsibility to preside
7 over these proceedings at the outset because this
8 is something that, to my knowledge, the city
9 commission has not previously done before. I am
10 going to lay out some supplemental ground rules for
11 tonight's proceeding, after seeking advice from
12 counsel, because I want this evening, most
13 importantly, to be conducted in a fair, clear, and
172
14 orderly manner.
15 Having said that, there are particular ground
16 rules.
17 First, as it relates to decorum,the normal
18 city commission meeting rules of decorum and
19 professionalism will apply to this proceeding as
20 applicable and as expected.
21 Number two, as it relates to the city charter,
22 this proceeding is being conducted under 4.11 as
23 stated of the city charter. For the record that
24 section states, quote, the commission may make
25 investigations into the affairs of the city and the
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4
1 conduct of any city office or agency for the
2 purpose -- may subpoena witnesses, may administer
3 oaths, take testimony and require the production of
4 evidence. Any person who fails or refuses to obey
5 a lawful order issued in exercise of these powers
6 by the commission shall be guilty of a misdemeanor
7 and punishable by a fine of not more than $500 or
8 by imprisonment for not more than 60 days or both,
9 unquote.
10 In other words, this investigation is being
11 conducted solely at the direction of the city
12 commission and no one else. Again, my role as
13 mayor is to preside over these proceedings while I
174
14 ask questions and seek clarification during these
15 proceedings. My primary purpose is to keep the
16 proceeding moving in a fair, clear, and orderly
17 manner.
18 Number three, as it relates to the scope of
19 the investigation, to summarize the resolution
20 adopted by the city commission, the commission sets
21 forth some extraordinary challenges the city has
22 recently faced regarding potable and reclaimed
23 water systems.
24 The scope of the investigation in tonight's
25 proceedings are related to the provision for
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1 potable and reclaimed water and limited only to the
2 following three matters of interest.
3 The three matters of interest that we are
4 addressing this evening are first, to identify and
5 explain the factual projections, supporting data,
6 and analysis that were prepared by the city related
7 to obtaining the city's current two consumptive use
8 permits from St.Johns water management district,
9 one for ground water and potable use; that's permit
10 number 8238, and permit number two, or the second
11 permit, for surface water and for irrigation. That
12 is permit number 105763.
13 Second, is to identify--second purpose here
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14 is to identify and explain the factual history
15 behind the design, permitting, construction,
16 operation, and management of the Lake Jesup
17 Reclaimed Water Augmentation Plant as well as the
18 current condition and feasibility of using that
19 plant for future use.
20 And the third purpose is to identify and
21 explain the factual history behind the reasons why
22 the city didn't complete the multiphase expansion
23 of the city's reclaimed distribution facilities as
24 identified in the study prepared by CPH engineers,
25 dated September 20, 2005. Ironically, that makes
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6
1 it exactly 16 years ago today.
2 The fourth guiding principal this evening--
3 the purpose of this meeting is to receive testimony
4 from the witnesses subpoenaed by the city
5 commission. The questioning by the city
6 commission, and the testimony provided by the
7 witnesses shall be specifically limited to the
8 scope of the investigation expressed by the
9 resolution,which I just summarized.
10 In other words, questions and testimony is
11 required to be germane and relevant to the scope of
12 the investigation. Outside opinions or other input
13 is not welcome. We are after facts, and I will
178
14 vigorously defend that. We will stay on topic from
15 all involved in the room.
16 The fifth, testimony under oath pursuant to
17 section 4.11 of the city charter. Witnesses who
18 testify to the matter of facts at tonight's
19 proceedings will give such testimony under oath or
20 affirmation. The city clerk will swear in
21 witnesses.
22 Sixth, as to transcript of testimony, court
23 reporter services were obtained by the city for
24 tonight's proceedings to make an accurate record of
25 the proceeding. All witnesses and their counsel at
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1 their expense may obtain the transcript of the
2 proceedings through the city clerk's office.
3 Number seven, important right to counsel.
4 During this proceeding, everyone should understand
5 that it is a fundamental principal of law that
6 every witness has a right to counsel. The
7 participation of counsel during the course of the
8 hearing and while the witness is testifying shall
9 be limited to advising said witness as to his or
10 her legal rights.
11 However, counsel may not state objections --
12 excuse me--counsel may state objections on behalf
13 of his or her client, but counsel will not
180
14 otherwise be permitted to engage in argument with
15 the city commission. Advise your client you are
16 here for them, not us.
17 Number eight, privilege against self
18 incrimination. During the questioning of any
19 witness, everyone should understand that.
20 It is a fundamental principal of law that
21 every witness may invoke his or her right against
22 self incrimination as provided by law.
23 Nine, enforcement. Pursuant to section 4.11
24 of the city charter, the city commission reserves
25 the right that any subpoenaed witness who has not
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1 complied with the subpoena, he or she refuses to be
2 sworn or to testify or answer proper questions by
3 the city commission and any of its members through
4 the scope of investigation, in such case, any
5 decision by the city commission to enforce the
6 subpoena against any witness may be taken up at a
7 later date, if it is deemed necessary by the city
8 commission.
9 Ten, questioning witnesses. Each of the five
10 members of the city commission will be afforded an
11 opportunity to question each witness when the
12 witness is sworn and ready to testify and will call
13 on each commissioner who will question the witness
182
14 one at a time.
15 Please do not interrupt another commissioner
16 when it is their turn to ask questions. For the
17 sake of time please try to refrain from asking
18 repetitive questions that have already been
19 answered. Once each commissioner has had an
20 opportunity to question the witness, I will ask the
21 city commission whether any of its members has any
22 additional followup questions until the questioning
23 has been concluded.
24 When the witness is finished responding to the
25 questions,the witness is excused from the
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9
1 proceeding. Please remember we must keep this
2 proceeding moving. Questions will be, again,
3 germane and relevant to the scope of the
4 investigation. Commissioners will refrain from
5 being argumentive with any of the witnesses and
6 their counsel.
7 Number eleven, all important public input.
8 Respect the time of the witnesses and their counsel
9 here this evening. We will not have public input
10 until all the witnesses have had the opportunity to
11 testify. We will proceed directly to call
12 witnesses.
13 Public input will occur at the end of the
184
14 testimony, if the commission determines that time
15 still allows. I suspect we will make that time.
16 Number twelve, and in closing here, order of
17 witnesses. Eleven witnesses were issued subpoenas
18 and all witnesses were served by process server
19 except for former Commissioner Brown.
20 Despite numerous attempts, the process server
21 was unable to serve the subpoena upon Mr. Brown.
22 Mr. Brown will be rescheduled at a later date and a
23 new subpoena issued to Mr. Brown. In furtherance
24 of the previous direction of the city commission,
25 copies of the certificate of service have been
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10
1 provided to the city clerk and are entered into the
2 record.
3 CPH Engineering, witnesses David Gierach and
4 Terry Zaudtke, are represented by Attorney Frank
5 Hamner. Mr. Hamner provided a letter to the city
6 attorney, dated September 15th of this year. And
7 due to a previous client matter out of town,
8 Mr. Hamner was not able to make tonight's
9 proceeding, and he requested that his clients'
10 testimony be rescheduled so he can attend the
11 proceedings.
12 Therefore,the testimony of David Gierach and
13 Terry Zaudtke will be rescheduled to a later date.
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14 As for the remaining witnesses that have been
15 served, we will proceed with the witnesses in the
16 following order. First will be Mr. Kip Lockuff,
17 former public works and utilities director. Second
18 will be Mr. Kevin Smith,the former city manager.
19 Third,will be Mr. Brian Fields,former community
20 development director, followed by Mr. Charles
21 Lacey, the former mayor; Mr. Ken Greenberg, former
22 commissioner; Mrs.Jean Hovey, former commissioner;
23 Mr.Joanne Krebs, former commissioner; Mr. Cade
24 Resnick, former commissioner.
25 1 am requesting consensus of the city
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11
1 commission as to the procedures I outlined,
2 therefore, unless there are any objections by the
3 city commission, I would like to call Mr. Kip
4 Lockuff to appear and be sworn to testify.
5 COMMISSIONER CANNON: Mayor, I think in
6 fairness to every witness, they should have the
7 opportunity to be cross examined by their attorney,
8 which will provide any additional information after
9 we finish questioning the witnesses.
10 THE MAYOR: I understand the sense of
11 fairness. I am very concerned about time
12 management, and I am also concerned about deviating
13 away from facts, having folks come--we are simply
188
14 here to gather facts. We are not here to hear
15 speeches,whether it be from this dais, from an
16 attorney, or from someone putting on a show.
17 1 am very concerned about the people
18 intentionally or unintentionally eating up time so
19 that this entire proceeding is basically
20 ineffective. Because we can have one person sit
21 here and tie up the entire proceeding and stop any
22 valuable work from being done.
23 1 would be willing to do that as long as there
24 are limitations. I will use this gavel. If the
25 questioning or answers are not pertinent to the
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1 facts, I will interrupt you. We will not be going
2 on long tirades for any other motivation,whether
3 it be motivation to stop time, motivation to
4 posture, motivation to earn attorney's fees,
5 whatever that is. We will keep it moving forward.
6 1 will be very aggressive. I suspect at the
7 end of the evening I may not have friends. I may
8 irritate folks on both sides of this microphone.
9 We have got to keep this moving forward.
10 COMMISSIONER CANNON: My concern is the rule
11 of completeness and fairness to a witness, so they
12 at least are given an opportunity, if they or their
13 attorney feel as though there was an additional
190
14 fact or something presented, and we haven't the
15 most accurate picture.
16 1 don't know if that will or will not arise,
17 but I do not want to close that door by the
18 procedures we are adopting now.
19 THE MAYOR: I believe that sounds reasonable.
20 1 am willing to afford that as long as things move
21 along. Again, I will be very liberal with the use
22 of a gavel and interruptions. And I expect all in
23 attendance to abide by those basic rules.
24 COMMISSIONER CANNON: I make a motion that we
25 adopt the procedures as set forth by the Mayor.
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1 THE MAYOR: The motion is made by Commissioner
2 Cannon and seconded by Deputy Mayor Ted Johnson.
3 Christian?
4 THE CLERK: Commissioner Benton?
5 COMMISSIONER BENTON: Aye.
6 THE CLERK: Commissioner Cannon?
7 COMMISSIONER CANNON: Aye.
8 THE CLERK: Deputy Mayor Johnson?
9 DEPUTY MAYOR: Aye.
10 THE CLERK: Commissioner Hale?
11 COMMISSIONER HALE: Aye.
12 THE CLERK: Commissioner Elliot?
13 COMMISSIONER ELLIOTT: Aye.
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14 THE CLERK: Mr. Mayor?
15 THE MAYOR: Aye.
16 THE CLERK: Thank you.
17 THE MAYOR: Mr. Kip Lockuff, former public
18 works and utilities director. If Christian will --
19 MR.JONES: I am not Mr. Lockuff. My name is
20 Mark Jones. I am an attorney representing a number
21 of individuals.
22 MR. MAYOR: I'm going to let you have your
23 time tonight, I promise you.
24 MR.JONES: I represent a number of
25 individuals here tonight: Mr. Lockuff, former
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1 public works and utilities director; former Mayor
2 Charles Lacey; former commissioner Rick Brown,
3 former commissioner Ken Greenberg; former
4 commissioner Jean Hovey; former commissioner Joanne
5 Krebs; and former commissioner Cade Resnick.
6 1 have a prepared statement that covers all of
7 my clients as to why they are not going to be in
8 attendance tonight. I want to make sure that makes
9 its way into the record. So if it is okay, I am
10 going to approach the clerk to put that into the
11 record.
12 The reason they are not hear today needs to be
13 in the record, so we need to put it into the
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14 record.
15 THE MAYOR: And I would like to remind
16 everyone, again, we are here simply to ask
17 questions on facts. That is all we are here for.
18 MR.JONES: I appreciate that. There is a
19 letter in the record explaining why CPH is not
20 here. I am going to put in the record why my
21 clients aren't here.
22 1 have a copy for every commissioner. I would
23 like to read it into the record. If the Mayor is
24 telling me I am not going to be given that
25 opportunity, I'll sit down.
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15
1 THE MAYOR: That looks to be a very thick
2 document.
3 MR.JONES: Let me continue. This is a
4 statement of why my clients are not appearing. In
5 addition, it is a written response from
6 Mr. Lockuff.
7 Through a public records request we were able
8 to obtain questions that were proposed to be asked.
9 He answered those questions in written form for the
10 commission. There is a written response in this
11 packet. This is not just me doing a drive-by in
12 front of the commission.
13 THE MAYOR: You can submit. At that point you
196
14 are not under subpoena. Your clients are under
15 subpoena. It is duly noted that those individuals
16 are not present; that their attorney is here. You
17 can leave that for the record.
18 COMMISSIONER CANNON: I know I would like a
19 copy, for the record.
20 MR.JONES: May I approach?
21 THE MAYOR: Yes,thank you.
22 COMMISSIONER CANNON - I do have one question,
23 Mayor. The city attorney may want to ask this
24 question. Mr.Jones has instructed all of his
25 clients not to appear today and to honor the
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1 subpoena.
2 MR.JONES: I believe Mr. Cannon is aware of
3 the attorney-client privilege in that matter. 1
4 advised my client not to show up today.
5 COMMISSIONER CANNON: That is all I want to
6 know. I want to reiterate what the mayor said. My
7 desire in these proceedings is to find out what
8 happened, why it happened, and if we can prevent it
9 from happening again.
10 THE MAYOR: I am not looking to point fingers,
11 blame or anything like that. It's just that we
12 have got a big chunk of change spent on a facility
13 that is taxpayer dollars. I am really concerned
198
14 why that happened. Under my watch, I just don't
15 want it to happen again. That was the purpose of
16 my line of questioning.
17 Okay. Mr. Kevin Smith, the former city
18 manager, if you would please come forward?
19 MR. ELKIND: Mr. Mayor, if I may have a
20 moment, briefly? My name is Darren Elkind. My
21 professional address is 142 East New York Avenue.
22 I represent both Mr. Smith and Brian Fields.
23 They are here in accordance with the subpoena
24 with which they were served. I am not going to
25 make any speeches. I just want to make it very
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1 clear for you. I sent a letter, I am sure you all
2 have it,with our concerns over the nature of these
3 proceedings, which are very unusual based on
4 25 years of experience and representing the local
5 government.
6 For that reason, they are the consummate
7 professionals. They want you to have a clear
8 understanding of the questions or the issues about
9 which you have questions. They have prepared -- I
10 was able to receive written questions today.
11 They have quickly put aside their other work
12 duties today to get detailed answers to the
13 questions. I will tell you Mr. Smith has a lot
200
14 more information than Mr. Fields does in regard to
15 questions received.
16 THE MAYOR: Stay on topic.
17 THE WITNESS: What we will do, on my advice,
18 is we have those written answers. I have extra
19 copies for everybody. We will put it in the
20 record, and they will be happy to take an oath and
21 affirm these answers are true and correct,to the
22 best of their knowledge.
23 We will give them to you for the record.
24 We'll give you a moment or two to read them. If
25 you have additional questions,they will be happy
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1 to respond to those.
2 THE MAYOR: It is your position you would like
3 to read the questions,then your clients will take
4 followup questions?
5 MR. ELKIND: Yes. When collegial bodies take
6 part in investigations they are usually in
7 agreement on the manner in which questions are
8 enforced.
9 These folks walked down here to city hall.
10 Somebody called them and said hey,we have
11 questions. We want to know about these things. So
12 I have some grave concerns, maybe they will not
13 come to fruition and maybe my concerns will be for
202
14 not.
15 That is the way I have instructed them. And
16 they will comply with the terms of the subpoena and
17 provide that testimony in writing.
18 THE MAYOR: It is my understanding, and I will
19 look to the city attorney, in response to your
20 email, that your clients were subpoenaed to come
21 and answer questions and that in nowhere did it say
22 that other than you asked as a courtesy you be
23 provided questions in advance,that you would be
24 actually answering those questions;that we would
25 have the opportunity to have them simply-- now if
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1 they want to read those questions, and if they want
2 to read their answers from the questions that we
3 gave them, and they may want to read what they
4 wrote, I think that may be appropriate.
5 MR. ELKIND: I think that is fine. The point
6 I will make clear, and I will instruct my clients
7 not to answer verbal questions from the dais. That
8 is just the rule. We are here -- let me just
9 answer now--we are here to answer questions and
10 provide you with information.
11 I will point out that nobody else is here
12 other than my two clients. They are professionals.
13 They are here to provide information. I don't want
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14 to digress, Mayor. It is unheard of to have an
15 investigation and serve former employees with a
16 subpoena to ask them about the work they did in
17 your employ.
18 THE MAYOR: I would argue that although that
19 is, in fact,very unique and very rare, it is also
20 very rare that a municipality accepts federal and
21 state and taxpayer funds, to the tune of$3.5
22 million dollars, and we have no idea what has
23 happened.
24 At the same time--and that is, again,we are
25 sticking with the three points that we were
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20
1 attempting to answer.
2 1 respect these two gentleman, I do. They
3 worked for the city for many, many years and
4 provided the city great service in many, many ways.
5 1 simply--again, these commissioners have voted
6 and asked to be able to ask questions. I would ask
7 Mr. Garganese,that does not,to me, appear to
8 follow the subpoena as it is written and the
9 investigation as the commissioners have voted for.
10 And so in my role as presiding over this
11 does--this doesn't appear to me to meet the
12 order.
13 CITY ATTORNEY: The city charter authorizes
206
14 the city commissioner to conduct investigations and
15 subpoenas. In furtherance of that subpoena, the
16 charter doesn't limit it just to written questions,
17 written answers. There is no limitation on the
18 subpoena.
19 The commission issued the subpoena to testify.
20 The clients are here. I am not sure if they will
21 testify other than to provide answers,written
22 answers to written questions that were preliminary
23 questions that were provided by some of the
24 commissioners in advance of this meeting.
25 I don't know if they will answer questions.
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21
1 But I am hearing, at least, their witnesses will
2 come in and be sworn. They will be able to
3 regurgitate questions they were provided in advance
4 of this meeting and provide a response verbally to
5 those questions. Whether they go any further, 1
6 guess, it is up to Mr. Elkind's advice to his
7 client.
8 The subpoena powers of the commission do not
9 limit the city commissions subpoena powers to
10 providing written questions and to getting written
11 answers.
12 MR. MAYOR: Thank you. I appreciate that.
13 MR. ELKIND: May I make a suggestion?
208
14 THE MAYOR: Yeah.
15 MR. ELKIND: As you pointed out,your time is
16 valuable. Their time is valuable. If I may
17 suggest? They really are here to answer questions.
18 We are concerned when you say we took$3.5 million
19 in loans.
20 Again, we don't know what happened. We are
21 concerned when somebody says something like that.
22 So here is what we are willing to do. They will
23 read the question or I can read the question. And
24 they will be happy to read their answers to you.
25 If any of you have any additional questions
209
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1 once we get to that, then by all means jot them
2 down. They are here to provide answers. From a
3 timing perspective, if you can't get to it tonight
4 or don't want to, these gentleman will be happy to
5 provide you answers, provide that information to
6 you in the future.
7 The other folks who didn't show up tonight
8 apparently are going to do it in the future. So
9 why don't we move it along.
10 THE MAYOR: We are in agreement to start with.
11 For clarification, I have never and did not
12 insinuate nor would ever accuse these two gentleman
13 who served our city of taking that money in any
210
14 way. I did not say that, and I want to make sure
15 it is on the record that I am not accusing these
16 two professionals of taking money.
17 All we are simply trying to do is find out
18 what has gone on with the plan,that's it. I am
19 not accusing these two gentleman that served our
20 city.
21 So let's swear them in. Mr. Elkind,you and
22 your client are free to take a seat over there.
23 MR. ELKIND: Madam Clerk, I have taken the
24 liberty of making copies, if you want them?
25 THE MAYOR: And Mr. Smith, if you would stand
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1 to be sworn in? Thank you.
2 (Party Sworn)
3 MR. SMITH: I do.
4 THE CLERK: Thank you.
5 MR. ELKIND: May I approach?
6 THE MAYOR: Read the questions. Read your
7 answers.
8 MR. ELKIND: May we proceed, Mayor?
9 THE MAYOR: One moment, please.
10 MR. ELKIND: The first question is, why did
11 the$3.5 Lake Jesup reuse plant not work?
12 MR. SMITH: First, a few things to note 1
13 think important to this body. The Lake Jesup plant
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14 was a treatment plant for water augmentation
15 purposes, in distinguishing that between
16 augmentation and reuse. But for purposes I will
17 address later,the Lake Jesup plant is referring to
18 this plant over here.
19 1 am not trying to be silly. The plant on
20 Lake Jesup,just for your edification, didn't cost
21 $3.5 million. It was part of a two-prong project.
22 So it roughly cost somewhere in the neighborhood of
23 half of that.
24 The first part was the Lake Jesup plant. The
25 other is the Oak Forest Pumping and Storage
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1 Facility, which is located just north of the spray
2 fields. It was probably, again, half that cost,
3 give or take a few hundred thousand dollars.
4 Again, I do not have the exact numbers.
5 As far as the plant functioning, certainly I
6 was privy to some conversations about its
7 viability, plant functions about its viable, and
8 whether or not it was working properly.
9 But based on my research and my conversations
10 with professional engineers, who were consulted for
11 us, and our public use and utility director,the
12 plant did, in fact, work for the purpose it was
13 intended to do.
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14 The second question is, why was the$3.5
15 million Lake Jesup Reuse Plant not used?
16 It was used. The up force facility,
17 particularly provided $3.5 gallons of storage for
18 the reuse and significant overall improvements for
19 the city's reuse system.
20 If I may, it was quite an impressive feat. I
21 am real proud of the work we did there. It
22 basically helped move the reuse from the west waste
23 Florida plant to the homes on the east side of
24 town, significantly improving the pressure and
25 reliability of the overall system. The Lake Jesup
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1 facility provided irrigation to the center of the
2 park. And at the time,the distribution lines
3 phase of this project had not yet begun.
4 Number three was,when did you know there was
5 problems with the $3.5 million Lake Jesup plant?
6 My opinion is the plant did not have problems,
7 other than some minor clogging issues with the
8 intake lines due to the water quality in Lake
9 Jesup. Those concerns were addressed.
10 And number four,when did you learn of the
11 above?
12 1 am not aware of any problems, other than the
13 intake discussed above and do not recall the dates.
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14 What actions did you take to address the$3.5
15 million plant? My opinion is it is not a failure
16 of the plant.
17 Moving onto number six, are you aware of or
18 have you ever read the reclaimed water augmentation
19 study dated 9/20/05? If not, were you aware it
20 existed? If yes, do you remember if there were any
21 attempts on your behalf to determine if the
22 timeline was being followed in relation to
23 reclaimed water?
24 Yes, I am aware of the study. I have read
25 some of it. Due to several factors it was decided
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1 that the city wouldn't move forward with
2 implementation of the residential lines. These
3 factors included the following. The current and
4 difficult physical conditions we were under; the
5 water augmentation study dated 9/20 was issued when
6 the economy was doing well and we were in the midst
7 of a so-called building boom.
8 By the time we got to the construction of the
9 Lake Jesup intake plant the economy was in a
10 recession and development had slowed significantly.
11 The city already owed approximately$50 million in
12 overall debt when I came aboard. And the expansion
13 of the reclaimed distribution system would have
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14 cost an additional $14 million. That much money at
15 the time would not have been a prudent course of
16 action.
17 It could be argued that we did not have the
18 money for the$3.5 million project due to several
19 things, including a $1.2 million, to the best of my
20 memory, grant from the Water Management District
21 and utilization of state revolving fund loan
22 proceeds, which included favorable terms,
23 conditions, and rates.
24 We were able to build a project with fiscal
25 prudence. Senior city staff brought in agenda
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1 items to the city commission in 2011 outlining the
2 fiscal situation and explaining the manner in which
3 the Lake Jesup plant would be funded.
4 MR. ELKIND: Mr. Mayor, if you would like 1
5 have a copy of it.
6 THE MAYOR: I have a copy.
7 MR. ELKIND: 2011?
8 THE MAYOR: I have the reclaimed water
9 augmentation study and the June 2017 --
10 MR. ELKIND: This is the evidence --what
11 Mr. Smith is referring to in his testimony is a
12 city commission -- it outlines the numbers very
13 clearly. So this is helpful to the understanding
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14 of the financial aspect of this. You said you
15 didn't know what happened. May I approach?
16 THE MAYOR: Yes, please.
17 MR. SMITH: Would you like me to continue?
18 THE MAYOR: Yes.
19 MR. SMITH: Under the question of the water
20 augmentation study of 2005,the purpose of the Lake
21 Jesup plant was not primarily to provide additional
22 irrigation water, but rather to decrease the amount
23 of ground water being pumped in from the aquifer
24 and to offset it with water from Lake Jesup.
25 Significant debt to expand the reclaimed
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1 system was not warranted because we had instituted
2 significant conservation measures. For example, we
3 created the new water conservation coordinator
4 position. We instituted a heavy consumer education
5 effort-- I apologize --and so on and so forth.
6 Those efforts proved not only to be a success, but
7 enormously so.
8 If you reference the chart below in the
9 2011/2012 time frame when we were constructing the
10 plant up through 2019, you could see we were
11 significantly, at the time, below our allotted CUP.
12 And even though we hadn't expanded the Lake Jesup
13 system, the distribution lines into residential
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14 areas, the amount of head room, if you will, that
15 we had below our maximum CUP was very significant.
16 We attribute those, at the time, directly to
17 our water conservation efforts. CPH later did the
18 same in their 2017 water quality report that was
19 sent to the Central Florida Water Initiative. 1
20 hope I am saying that correctly.
21 In 2014,we were approximately 30 percent
22 below the CUP in that year alone. Drop in usage
23 deferred both the short-term need for expansion of
24 the line and arguably the long-term need to expand
25 the system. Attention should be paid to the
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1 ongoing conservation efforts being undertaken by
2 the city.
3 Moving onto number seven. During your
4 discussions pertaining to the proposed development
5 project, during your tenure was the consumptive use
6 permit or reclaimed water ever discussed or brought
7 to your attention?
8 Yes, of course. All new development has to
9 demonstrate there is sufficient water available to
10 serve the project. This concept is referred to as
11 concurrent use, which I am sure you all know. I am
12 not an expert as a city manager. I am not
13 personally involved in discussions or individual
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14 development projects.
15 Number eight. During your tenure, what
16 department and specifically what individuals were
17 you dependent upon to inform you of any issues
18 related to development projects as they pertain to
19 the consumptive use permit or to reclaimed water?
20 Utilities Public Works Department.
21 Number nine. What, if any, was your
22 involvement with the$3.5 million Lake Jesup
23 Surface Water Plant? If none, were you aware that
24 the facility existed? Have you ever visited the
25 Lake Jesup Surface Water Plant?
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1 My role was city manager, oversight and
2 strategy relative to funding of the project. Yes,
3 1 have visited the plant. Again, the Lake Jesup
4 plant was only part of$3.5 million project. The
5 pumping and storage facility was the other element
6 of the project,which together with the Lake Jesup
7 plant caused a net total, after grants, of
8 approximately$3.5 million.
9 Number ten. Did you ever make inquiries or
10 take any action to determine why the$3.5 million
11 Lake Jesup Surface Water Plant did not work?
12 No professional engineer or other
13 appropriately qualified personnel ever advised me,
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14 personally,that the plant did not. It is my
15 belief and understanding that the plant did work.
16 There were adjustments that needed to be made with
17 the intake system but otherwise the plant worked.
18 Same correction on project cost. Again,just
19 to remind that it is not a $3.5 million loan for
20 Lake Jesup.
21 Number eleven. Do you know who is responsible
22 for the design of the$3.5 million Lake Jesup
23 Surface Water Plant? CPH Engineers designed the
24 project. I do know that there were different
25 contractors for the Lake Jesup portion and the Oak
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1 Forest portion,to the best of my recollection.
2 Same direction on project cost as above.
3 Number twelve. Had you known of the serious
4 issues on the $3.5 Lake Jesup Water Plant, what
5 actions would you have taken?
6 The premise of the question does not reflect
7 the actual facts, in my opinion. However, if there
8 were any pertinent problems during my tenure, 1
9 would have done my best to address them. And same
10 correction on the cost as noted above.
11 Mayor,that is what I have. I hope I didn't
12 read that too fast. It is a little awkward.
13 THE MAYOR: I will open up the questioning,
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14 starting with my left. Commissioner Hale, do you
15 have questions?
16 Would you like to pass for a moment and come
17 back?
18 COMMISSIONER HALE: I'll pass for a moment.
19 THE MAYOR: Commissioner Benton?
20 MR. ELKIND: Mr. Mayor,we are truly not
21 trying to be difficult. I have done this for a
22 long time. I have grave concerns about the
23 process.
24 But if folks have questions that they want to
25 get an answer to, ask the question. If it is not,
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1 in my opinion, appropriate, I will just tell him
2 not to answer it, which I am entitled to do.
3 THE MAYOR: I fully respect that. That is
4 what counsel is here for. I completely understand
5 your point. I am giving in the moment. We value
6 your time. We understand. I am simply asking if
7 they have questions. I am trying to do it in an
8 orderly fashion.
9 Commissioner Benton, do you have a question?
10 1 want to make sure Commissioner Benton gets a copy
11 of this for reference. Our memories aren't that
12 long.
13 MR. SMITH: Nor is mine.
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14 MR. ELKIND: If we can ensure that the city
15 clerk has a copy?
16 THE MAYOR: I am in my Monday June 12, 2017,
17 commission meeting minutes. For the record, I am
18 also holding the commission agenda from June 12,
19 2017, okay? Commissioner Benton?
20 COMMISSIONER BENTON: I have one question for
21 you?
22 MR. SMITH: Yes, sir.
23 COMMISSIONER BENTON: Page 1, item 3001.
24 MR. SMITH: Yes?
25 COMMISSIONER BENTON: Where it says the city
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1 is well positioned over the 20-year planning period
2 to meet our water supply needs and following that
3 it is highlighted?
4 MR. SMITH: Yes?
5 COMMISSIONER BENTON: It also includes the
6 statement that the investment--includes
7 allocation reduction due to the previous investment
8 in reclaimed water system, including augmenting the
9 reclaimed water system from Lake Jesup.
10 He says, our designated alternative water
11 supply. He also says staff is comfortable staying
12 below the consumptive use permit of 1.5/1.4 billion
13 gallons of potable water for a year through 2029 as
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