Panic in the Air!

Now that the AFT related lawsuit made it to the Florida Supreme Court, its become clear the future of the tax is in jeopardy. Fear and panic is in the air. Rather than calming down, reflecting upon failures and lessons learned, developing a real transportation plan for all constituencies in Hillsborough County, the BOCC wants to double down again on the past failures, starting at tomorrow's February 19, 2020 BOCC meeting.

It was apparent if one watched the Florida Supreme Court hearing on February 5, 2020, the questions from the justices and discussions with the lawyers focused on the conflict the AFT charter amendment had with state law FS 212.055. This conflict was quite evident on the day the amendment first saw light. Yet the Times and other proponents ignored the conflict "that any second year law student should understand". And they still do to this day, continuing to impugn the motives of the plaintiffs, who were proven correct. In his lower court ruling, Judge Rex Barbas removed the unlawful text. But in so doing, added further questions as to exactly what did the voters vote for?

The Times started the panic immediately after the Florida Supreme Court hearing. Ignoring the merits of the case, and state law, the Times sole concern is the "will of the voters" who voted for the amendment.

There is a real likelihood the Supreme Court may invalidate the voters’ decision on the transportation referendum. Hillsborough commissioners need to be prepared to put another referendum to the voters in November. The county cannot afford to remain stuck in neutral while the justices parse words to suit the Federalist Society. Bus service across the region is terrible. There are no fast connections between the major downtowns. Traffic congestion is worsening, and rail and other fixed routes remain fantasies for now.

What the Federalist Society has to do with anything with this law suit is clueless. The Federalist Society does not take any legal or lobbying positions, and has not ever filed an amicus brief in any case, much less this one. It does stand for interpreting the law as written, not as some activists lawyers and judges, and editorial writers prefer.

Regardless, the Times evidently watched the hearing, and came away panicked. As they should. The AFT legal team did not even request the Barbas ruling be rescinded during oral arguments, tacitly acknowledging the issues with the lawfulness in the amendment. Instead AFT argued to keep the lower court ruling in place, and the actions the BOCC took after the election AFT said reinstated relevant aspects of the AFT amendment.

Really? A key selling feature from AFT is that their amendment explicitly restricted the BOCC from its statutory authority. It constrained the BOCC by explicitly identifying the type of projects, the spending allocations, and created an Independent Oversight Committee with powers over the BOCC regarding the amendments plans. But in effect, now any BOCC, current or future, can change practically any aspect of the amendment after the election. Is that what the voters voted for?

Who knows?

If the BOCC were to follow AFT's lawyers reasoning, AFT would be the first to sue the BOCC!

AFT and the Times arguments are incoherent. But they are beginning to see the writing on the wall.

Add the recent firing of Ben Limmer, recently appointed to be HART's CEO, hired to lead HART to the train age. Limmer's firing was with cause, justifiably so. Some of his malfeasance was so egregious it begs the question how the HART board hired him in the first place.

Now HART is without an experienced leader and in semi-chaos. HART's share of future AFT big tax revenues in excess of $140 million per year are at risk. There are no real plans. Any new HART leader will be under an even bigger microscope than Limmer.

Who wants that job?

Of course, the Times gave AFT more space for platitudes to save their plan.

Right now, a vocal few are using a lawsuit to attempt a Tallahassee take-back of your tax dollars. They are hoping the Florida Supreme Court overturns the referendum results and invalidates the tax. Using litigation to initiate a political do-over is not new in Florida, and the consequences of this delay could not be more serious. Each day the All for Transportation funding remains uncertain, so does the future of our transportation system and our community.

But AFT and the Times ignore the fact the lawsuits invalidated substantial portions of their amendment, rendering its future severely in doubt, due to AFT's incompetence. Two of the three credited authors of this editorial are... lawyers.

Next to panic was BOCC chairman Les Miller. He made the mistake of floating a stopgap 1/2 cent tax as a quick remedy.

Just one week after Hillsborough government attorneys traveled to Tallahassee to defend the county’s transportation tax in front of the Florida Supreme Court, the commission chairman has submitted plans for a replacement tax to prepare for the worst-case scenario. 

Commissioner Les Miller will ask the board at its March 4 meeting to sign off on a plan to put a half-cent transportation sales surtax on the Nov. 3 ballot. That would be in case the state’s highest court strikes down the one-cent sales tax that 57 percent of county voters passed in 2018. 

If passed, the half-cent tax would be levied for 30 years.

...

“A one-half percent surtax with the provisions outlined in the recommended motion has a greater chance of gaining widespread voter support,” Miller wrote in the proposal. 

But the citizens who drummed up support for the county’s existing full penny sales tax vehemently oppose the half-cent plan. 

“We do not support half-solving our transportation problem, and neither do the nearly 60 percent of voters that supported the All For Transportation plan in 2018,” All For Transportation spokesman Tyler Hudson told the Tampa Bay Times.

This Times news article is annotated with Times editorial writer John Hill contributed to this report. This confirms the Times does not have a firewall between reporting and editorial staff.

Hillsborough County Commission Chair Les Miller

Miller got the message. "Miller had proposed a half-cent levy before reconsidering Monday and supporting a full cent. That’s a wise decision."

Hillsborough County commissioners are wise to plan a discussion for Wednesday on whether to create a backup plan in case the Florida Supreme Court strikes down the one-cent transportation tax that county voters approved in 2018. They should not backtrack. Voters clearly wanted a full penny tax for a range of transportation improvements, and the commission should respect those intentions. 

Commission chairman Les Miller and Commissioner Kimberly Overman acted responsibly by scheduling this discussion. The commission has a narrow window to put a tax on the November ballot. Given the pointed questions by several Supreme Court justices during oral arguments this month regarding a challenge to the existing one-cent tax, commissioners need to act quickly in case the court overturns the will of the voters. The county has lost enough time and the state of its transportation system is only moving backward.

Unsurprisingly, rather than take time to reflect on what went wrong and develop real plans suitable for all constituencies they serve across Hillsborough County, Miller and Overman are leading the charge to reinstate the tax as another ballot initiative on the November 2020 ballot.

Miller's draft proposal is an ordinance for a 30 year 1 percent sales tax referendum. It simply allocates 40% to HART, and 60% for Hillsborough County and municipalities and adds some semblance of an oversight committee. It takes a simple majority of 4 votes to put Miller's ordinance on the ballot.

It's interesting that Miller originally stated in his first draft “A one-half percent surtax with the provisions outlined in the recommended motion has a greater chance of gaining widespread voter support” when the AFT plan received 57% of the vote,  and he reduces transit spending from 45% in the AFT amendment to 40%. Is Miller acknowledging weakness in the AFT plan and its popularity should the word get out this time what it's really about?

Overman seeks a Charter Amendment to largely reinstate AFT's original 30 year 1 percent sales tax Charter Amendment political agenda.

It is AFT 2.0, surrounded with more platitudes from Tampa Bay Partenership, who was a big funder of AFT.

It requires a super majority of 5 commissioners to put on the ballot. 

Hillsborough County Commissioner Kimberly Overman

Overman's proposal includes large sections on transit benefits extracted from the Tampa Bay Partnership's Regional Competitiveness Report, as well as the "Real Choices when Not Driving" section from the Hillsborough MPO 2045 LRTP. One might think she wants to get you out of your car.

Like a cockroach you can't kill, these bad plans keep showing up at the worst possible times.

Here come the plans! Yet the Florida Supreme Court has yet to release their ruling. There is speculation the ruling will be released in March or April, but it could be later.

Why the panic?

They have a tight timeline. From Miller's draft proposal:

Given the pressing unfunded transportation needs in our County, and given the uncertain timing and outcome of the Supreme Court’s ruling on the legality of the Transportation Surtax, and given the requirement in Florida Statutes to allow at least 180 days for OPPAGA to complete an audit following the Board’s adoption of an ordinance placing a voter referendum on the November 3, 2020 general election, it is critical that the BOCC take timely action to ensure that there is no gap in transportation sales surtax funding.

If the BOCC want to get another sales tax hike on the November 2020 ballot, they need at least 180 days for the OPPAGA audit. They have until May 7, 2020 to cram it in. The BOCC is being driven by artificial deadlines to tax you, rather than well taking time to develop rationalized plans to improve transportation for all of Hillsborough County.

Isn't it time the Hillsborough BOCC and so called esteemed leaders took time to learn from the past mistakes?

The AFT plans were not developed by transportation engineers, planners, and financial professionals. Their "plans" were conceived over wine by transit activists and lawyers unfamiliar with the law.

Why should these "plans" remain the basis for Hillsborough's transportation future?

Rather than regurgitate poorly developed and biased plans from transit activists, the BOCC must take a cooling off period. Then the BOCC can lead with some new ideas, seek input from professionals, and develop a strategy that will serve all of Hillsborough County, and rebuild the needed trust with the public.

Otherwise they will panic us into more politically inspired traffic jams.