Lowe: Reject settlement in biomass suit


Craig Lowe, the mayor of Gainesville, address the audience about intolerance and how great the city of Gainesville is at overcoming it, during the 3rd Annual Gathering for Peace at Trinity United Methodist Church in Gainesville Sunday Sept. 9, 2012.

Brad McClenny/Staff photographer
Published: Wednesday, December 19, 2012 at 3:41 p.m.
Last Modified: Wednesday, December 19, 2012 at 3:41 p.m.

Gainesville Mayor Craig Lowe plans to vote to reject a settlement offer in a lawsuit over the biomass plant, describing the legal challenge as "frivolously aggressive."

Lowe announced his intention Wednesday morning via email to several senior city officials and the six other members of the City Commission.

The City Commission is scheduled to vote Thursday evening on whether to accept the proposed settlement to end the lawsuit that anti-biomass group Gainesville Citizens CARE filed alleging that the city's negotiations on the contract to purchase electricity from the power station violated the Sunshine Law and the contract should therefore be declared null and void.

The suit argues that when the City Commission put contract talks under the authority of Gainesville Regional Utilities General Manager Bob Hunzinger, who then assembled a GRU staff negotiating team, the staff group became an advisory board and its meetings should have been noticed and open to the public.

While disputing those allegations, attorneys for GRU and the Gainesville Renewable Energy Center, the firm behind the biomass plant, negotiated a proposed settlement.

Under it, Gainesville Citizens CARE would drop the suit in exchange for a televised, public City Commission meeting dedicated to the biomass plant and contract. At that meeting, Gainesville Citizens Care would have a minimum of four hours to make a presentation.

"The proposed settlement agreement would create a meeting that is not genuinely needed and is therefore a farce," Lowe wrote in his email. "And the City Commission ceding control of how we schedule and conduct meetings would only compound the mockery of our process that would occur. Furthermore, the proposed agreement calls for at least one commitment that the city commission is not empowered to make: that all members be required to be present for such a circus sideshow of a meeting."

The city, he argued, has a "strong case" and should seek another settlement via mediation or continue to fight the lawsuit.

Marcy LaHart, the attorney representing Gainesville Citizens CARE, said the meeting called for in the settlement would provide the first full public discussion on the "drastic changes" between the biomass plant proposal initially accepted by the commission in 2008 and the final, post-negotiation contract the commission approved in 2009. One difference was the extension of the contract term from 20 to 30 years.

"We have agreed to disagree, and rather than waste a lot of taxpayer money going to trial, the parties reached what I think is a fair solution that benefits everyone," LaHart wrote in an email. "My clients and any other members of the public will finally have a chance to be fully heard and have their questions about the biomass plant answered, the city gets to avoid the expense of going to trial and the possibility that the power purchase agreement will be declared void."

Lowe's initial email was sent to all members of the Commission, along with staff members such as the city attorney, Hunzinger and the City Clerk, and did indicate how he intended to vote on an upcoming issue.

Barbara Peterson, with the First Amendment Foundation, said the Florida Attorney General has said such a communication complies with the Sunshine Law as "long as the commissioner doesn't solicit a response."

In a 2001 legal advisory opinion requested by the city of Port Orange, the Florida Attorney General's Office said it "would strongly discourage" elected officials from circulating individual position statements to other board or commission members. But, the opinion continued, "it would appear" such an action complies with the Sunshine Law "as long as council members avoid any discussion or debate among themselves on these statements."

Other city commissioners have not sent out similar position statements on the proposed settlement.

Reached for comment Wednesday, Commissioner Yvonne Hinson-Rawls said she agreed with much of what Lowe said.

"If they want to conduct a City Commission meeting, they need to run for City Commission," she said.

Biomass plant sale:

Another biomass-related issue is on the afternoon agenda. GRU will seek permission from the City Commission to file a claim for arbitration against the Gainesville Renewable Energy Center, arguing that the sale of a 40 percent stake in the plant in late 2011 violated contract terms because the city was not given its contractual right of first refusal to purchase a controlling stake in the plant.

At arbitration, the city would seek to compel GREC to follow those contractual obligations. GRU will also seek permission to allow GRU General Manager Bob Hunzinger to negotiate an alternate resolution to the dispute, one that would require future final approval from the City Commission.

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