Specifically, they have amended the complaint filed last year against the City of Jacksonville and the City Council to request that the Court declare the passage of Ordinance 2010-217 to be both illegal and void. The several grounds asserted include multiple City and Council violations of Florida’s open government meeting (“Sunshine”) law.

The lawsuit further seeks to protect the public interest by asking the Court to force the City to correct violations of the public records law, which require government and officials to make records available to every citizen for review and copying. The City has failed to create and provide minutes of a public meeting (related to Trail Ridge), and refused to make a Council member’s records of the official business use of his cell phone available to the public.

A press conference will be held at 12:00 noon on Thursday, June 3, 2010, in front of the Jacksonville City Hall, 117 West Duval Street, Jacksonville, Florida, by Victor Wilhelm, President of the CTDC, and John Winkler, lead attorney for the Plaintiffs.

The Concerned Taxpayers of Duval County, Inc. is a not for profit corporation and nonpartisan political committee dedicated to serving the community as a watchdog group, using public information to oppose corruption, waste, and “Sunshine Law” violations in government. Additional information is available from the author of this press release, immediate past president John Winkler, who can be reached at 904-384-9918.

Below is a summary of the amended complaint. You can view the entire complaint here.

Paragraphs 1 to 5 briefly explain why the suit exists and the relief requested

Paragraphs 6 to 11 are jurisdictional and standing allegations

Paragraphs 12 to 20 are the early history of the City’s dealings with WM and Trail Ridge

Paragraphs 21 to 39 are the history of the Mayor’s attempted deal with Waste Management, the subsequent Waste Management vs. the City litigation, and the 2010-217 “settlement”

There are 15 individual counts:

COUNT ONE

Violation of Sunshine Law F.S. §286.011(2)and/or F.S. §119.07 for Failure to Record Minutes of Trail Ridge Oversight Special Committee Meeting of November 4, 2009

COUNT TWO

Violation of Sunshine Law (F.S. §286.011(8)(a)) – SHADE MEETING of November 24, 2009 — exceeding permissible scope of meeting [transcript attached as Exh. 17]

COUNT THREE

Violation of Sunshine Law (F.S. § 286.011(8)(a)) – SHADE MEETING OF MARCH 9, 2010 — exceeding permissible scope of meeting [transcript attached as Exh. 18]

COUNT FOUR

Violation of Sunshine Law (F.S. §286.011(8)(a)) – SHADE MEETING OF MARCH 15, 2010 — exceeding permissible scope of meeting[transcript attached as Exh. 19]

COUNT FIVE

Violation of Sunshine Law – unlawful shade consideration of $486,000 in noise abatement actions in lawsuits against third party, and subsequent incorporation into “litigation settlement”

COUNT SIX

Violation of Sunshine Law – unlawful shade consideration of $7.2 million in City claims against non-party, not in litigation, and subsequent incorporation into “litigation settlement”

COUNT SEVEN

Violation of Sunshine Law – use of shade meetings to evade open meetings law and improper incorporation of extraneous matters into “litigation settlement”

COUNT EIGHT

Violation of Sunshine Law and voting conflicts statutes (F.S. §286.012, F.S.§112.311, §112.313; F.A. §112.3143(3)(a)) by Councilman Ray Holt and Councilman Dr. Johnny Gaffney

COUNT NINE

Violation of Sunshine Law (F.S.§286.012) by Councilman Art Graham on Ordinance 2010-217 (failure to vote on bill)

COUNT TEN

Failure to waive Ordinance Code §126.105- failure to submit to the Planning and Development Department

COUNT ELEVEN

Failure to comply with Ordinance Code § 106.215 (2/3 vote of Council needed)

COUNT TWELVE

Public records law violation –refusal to provide Holt’s cell phone records

COUNT THIRTEEN

Violation of Sunshine Law (F.S. §286.011) ILLEGAL MEETING(S) of May 24-25, 2010 – C/M Clark and C/M Joost in re: Council president’s election

COUNT FOURTEEN

Declaratory judgment as to scope of 1990 RFP and application to 2010-217

COUNT FIFTEEN

Application of OGC Opinion of December 18, 2008 to Procurement of landfill operations “services” and to Procurement of services in general

Exhibit list:

Exhibit 1 – 1990 Request for Proposals [attached separately]

Exhibit 2 – City of Jacksonville Ordinance 2010-217

Exhibit 3 – City of Jacksonville Ordinance Code Chapter 126 [attached separately]

Exhibit 4 – Jacksonville Office of General Counsel letter dated December 18, 2008 [attached separately]

Exhibit 5 – Jacksonville Office of General Counsel letter dated February 27, 2009

Exhibit 6 — Memorandum of April 14, 2010 from Cindy Laquidara

Exhibit 7 – City Council Auditor’s report, April 15, 2010

Exhibit 8 – Memorandum of April 16, 2010 from Cindy Laquidara

Exhibit 9 – March 11, 2010 notice of Shade meeting of City Council

Exhibit 10 – March 12, 2010 notice of Shade meeting of City Council

Exhibit 11 – Letter to Waste Management from City Solid Waste director Fred Forbes dated January 22, 2010

Exhibit 12 – Letter form City Council of May 25, 2010

Exhibit 13 – Communications Allowance Request of Ray Holt dated June 26, 2009

Exhibit 14 – Jacksonville City Council Communications Allowance Policy, July 1, 2005

Exhibit 15 – Council Auditor Report dated March 10, 2008

Exhibit 16 – Docket Trail Ridge Landfill, Inc. and Waste Management Holdings, Inc. v. City of Jacksonville

Exhibit 17 – Shade Meeting Transcript of November 24, 2009

Exhibit 18 – Shade Meeting Transcript of March 9, 2010

Exhibit 19 – Shade Meeting Transcript of March 15, 2010

Exhibit 20 – Ordinance 2009-362-E

Exhibit 21 – Ordinance 2010–170-E

Exhibit 22 – Trail Ridge Oversight Committee Meeting Notice (for meeting 11/4/09)

Exhibit 23 – Screen shot of Jacksonville City Council Trail Ridge Oversight Committee available documents as of May 30, 2010

Here are some interesting news items concerning the landfill contract controversy. Clay County is doing what Jacksonville should do – bidding the landfill contract!  I guess that Waste Management did not have previous contracts with Clay County government that it could twist to its advantage and keep its competitors at bay.

The Florida Times Union editorial board complained that the committee-as-a-whole meeting mentioned above did not provide adequate time for discussion concerning the proposed settlement. We could hardly disagree with the Florida Times Union’s assertion that a contract worth more than $400 million over 26 years merits more than two hours of discussion. Let’s hope that Council President Richard Clark listens to this wise advice.

Finally, Concerned Taxpayers of Duval County (CTDC) President Victor Wilhelm had a letter to the editor concerning the landfill contract controversy published in the Florida Times Union. The CTDC has never wavered from its initial position that the contract must be bid and Wilhelm’s letter reflects this position.

What can you do? Let your City Councilperson know that competitive bidding of this contract not only makes good economic sense but assures an open and transparent process free of corruption.

See below past President John Winkler’s commentary on the landfill question.

It doesn’t take knowledge of rocket science to operate a landfill. Whatever Waste Management (WM), Republic/Southland, or anyone else in the garbage disposal industry may want the people of Jacksonville and their City Council to believe, spreading out household trash and covering it with dirt really is something that anyone able to operate a dump truck and bulldozer can do. While it may or may not be the kind of civic duty Jacksonville cares to perform using its own employees, there is nothing so special about the creation of a thousand-layer trash pile that it can only be done by giving exclusive rights to do so to one outfit, without competitive bidding, for the next thirty-five years.

Wait, you say, is this a rerun column? The whole “bid the landfill” vs. “Waste Management Forever” debate was fought out last year, you remember, and won by the forces of light when City Council rejected the Mayor’s no-bid, 35 year, $750 million contract extension on running the Trail Ridge dump, right? Didn’t the City then leap at the chance to litigate with Waste Management if need be in order to establish our right to either build our own trash mound or have the low bidder do it? Yes, that happened, but suddenly there’s a new deal proposed by the Jacksonville General Counsel that is a whole lot like the Mayor’s old deal. Call it landfill redux, deja vu all over again, or lipstick on a pig – no matter how you slice the new proposed landfill contract, it’s still (at best) last year’s baloney. Unlike last year, however, there is no time for a deliberative process at City Council. The new proposed contract (Ordinance 2010-217) demands City Council accept it by April 30, 2010, as presented, with no changes allowed.

When a group of us at the Concerned Taxpayers of Duval County (www.jaxtaxpayers.org) sued the City last year to get a ruling that Jacksonville had to either bid out a contract this huge or do the work themselves, we pointed out several legal problems in the Mayor’s tentative agreement. One provision of that proposal (still available for review at www.coj.net under Ordinance 2008-538) was an illegal clause which could have, under certain circumstances, forced the sale of the entire thousand acre Trail Ridge landfill site, and an adjacent “borrow pit” (dirt mine) site, from the City to Waste Management without any competition. Another illegal aspect of the earlier version of the no-bid contract under state law was that it could have gone on for an indefinite period of years, since it defined WM’s right to spread garbage in terms of tons (42 million) rather than time. Interestingly, the proposed contract now thrown in front of City Council avoids these two problems by leaving out the bargain land sale provision and defining a maximum number of years that Waste Management will have the exclusive right to run the City’s landfill(s). The new proposal essentially allows no more than ten years as the period WM would have been running the existing landfill before it would have been full, another 19 years for WM to operate any expansions or new landfill, with another possible six year extension “upon mutual agreement.” Not, in my opinion, coincidentally, this potentially 35 year agreement is the same length of time as the estimates on how long the Mayor’s earlier proposal would have run.

While the Concerned Taxpayer suit has been in abeyance since the Mayor’s proposal was withdrawn, the very serious issue of whether City Council has the right to waive the requirements of the City Procurement Code and proceed to give WM the exclusive right to operate any City dumps far beyond the scope of the 1990 bidding process remains undetermined. We had hoped that City Council would retain the spine it grew last spring, see the WM litigation through trial, and obtain a judicial confirmation that the City does, in fact, have the right to seek competitive bids for landfill operations once WM buries another 5 to 7 million tons at Trail Ridge. Unfortunately, City Council President Richard Clark, without waiting for either a financial or careful outside legal analysis of the new proposal, has already opined that it “makes good business sense” to avoid further litigation; this was one of the Mayor’s old arguments, unanimously rejected by the City Council less than a year ago. Perhaps the less impulsive members of City Council will take note of the following flaws in the new proposal and reject (or ignore) Ordinance 2010-217 as a poorly conceived, badly executed plan to deprive the taxpayers of the benefits of fair and free market competition.

For example, I question what this language, in section 5.2 of the new “take it or leave it” proposed contract means: “Annual Adjustment of Fee. On July 1 of each year, the then current rates shall be adjusted by a factor which shall be the product of one (unity) and a decimal fraction equal to 0.70 times the preceding twelve-month change in the Consumer Price Index (CPI), said change being expressed as a decimal fraction.Adjusted rates shall be the product of the then current rates and the modifier and shall be expressed correct to the nearest whole cent ($0.01).” The CPI required by the contract is the CPI-W, which currently stands at 212.544 using 1982-4 as a base of 100.

To explain, let’s say inflation is three percent in the first year of the contract. On July 1, 2011, the new CPI-W is 218.920, or a change of 6.376 when “expressed as a decimal fraction.” If that is what the proposal means, then 0.70 times 6.376 is 4.4632 and the “product” of “one (unity)” and 4.4632 is 4.4632. On the other hand, is the change supposed to be the percentage, to be expressed as “.03,” which leads to an adjustment factor of .021? In either case, if “the modifier” (not otherwise defined) is the same as the “factor,” the result is absurd. The “product of the then current rates and the modifier” is either $10.58 per ton of regular trash in year one times 4.4632, or $47.22 per ton in year two, or $10.58 times .021, or $0.22 per ton. If there is no change in the CPI-W, then WM works the next year for free, under either interpretation of the adjustment factor. If prices go down in year one, the second year price becomes negative; does anyone seriously believe that Waste Management will pay the City for the privilege of burying our garbage?

Obviously the drafters of the new proposed contract, in their haste, used the word “product” when they meant “sum” and the word “modifier” when they meant “annual adjustment factor,” and they should have spelled out that the annual adjustment is going to be 70% of the annual percentage change in the CPI-W (assuming that is what they meant). This is the same kind of incredible sloppiness in drafting contract language back in 1991 that created the present litigation between the City and Waste Management over what that contract really means. Is this really the best that a battery of well-paid lawyers can do? Disclosure: although I am a lawyer, no one has paid me a dime for any of the work I’ve done or am doing in connection with the landfill.

One more example of the lurking disasters in the proposed contract should suffice. Section 5.6 calls for the City and Waste Management to “use reasonable efforts” to come to an agreement on using Waste Management to recover recyclables from the “current waste stream,” but if they can’t agree, “CITY shall be entitled to competitively bid the establishment and operation of such an operation.” [Yes, it really is written that way] The very next sentence says Waste Management “shall have the exclusive right to operate any such new technology requested by the City.” So the City can bid out the recycling operation but only Waste Management can run the equipment. Is it so hard to envision another lawsuit brought by WM against our town if it tries to actually use a different company to pull recyclables? Count I: failure of City to use reasonable efforts to negotiate in good faith. Count II: request for injunction against the City,violating WM’s exclusive right to operate new technology at Site.

Alas, while I am confident that this exposure of the gross ineptitude displayed by the City’s lawyers in drafting the second “no-bid landfill contract” will result in more changes, I am not so sanguine about the City Council just doing the right thing, letting the 1991 landfill contract run out in five to seven years, and then either running Trail Ridge with our own local employees or bidding out operations on shorter contracts.

Last year WM’s competitors made lots of noise about how they could beat the Mayor’s deal if allowed to bid; this year they are (so-far) strangely silent. But the citizenry needn’t be silent. Call and email all 19 City Council members. Sign the petition at http://www.ipetitions.com/petition/bidtrailridge . Attend the City Council meetings April 12 and 26 to encourage your elected officials to do the right thing. Already the City’s solid waste disposal “fee” is being raised because it is less than the cost of collection. If the public doesn’t make the City restrain those costs by preserving competitive bidding, all of us and our descendants will be paying the price for decades to come.

John Winkler, Attorney

Videos sponsored by the Jacksonville Young Democrats on the landfill question:

Video 1
Video 2

The legality of Mayor Peyton’s efforts to give Waste Management a $750 million City contract without competitive bids was challenged in a lawsuit by a local citizen’s group late Friday. The Concerned Taxpayers of Duval County, on behalf of all local residents, are requesting a court ruling on whether the Mayor’s proposal for the Trail Ridge landfill can even legally be considered by City Council. John Winkler, President of the CTDC, said his group is unaffiliated with any potential landfill operator. “Our sole purpose is to insure that the City follows the spirit and letter of its own laws on giving out large contracts, ” said Winkler. “City Council must determine both who will run the landfill and how much it will cost the residents for the next thirty years or more. Hundreds of millions of taxpayer dollars are at stake, and the process has to be transparent, fair, and free of corporate intimidation of either the public or public officials.”

Winkler explains that the suit asks the court to declare that a vote by City Council to waive the city competitive bidding rules is illegal, as would be entering into the restated contract on Trail Ridge. The CTDC maintains the Mayor’s request to City Council violates local law because the overriding public purpose of the Procurement Code and the contracts it covers make it clear that landfill operations must be bid. The proposed “restated” contract is also unlawful because it contains provisions which could force the City to sell the entire 977 acre Trail Ridge site, together with the newly-purchased City “dirt mine,” to Waste Management without following the City ordinance on land sales.

“The citizens must guarantee City Council is not intimidated by Waste Management’s threats of litigation, amplified by the Mayor, into approving execution of an illegal ‘no-bid’ contract on the landfill,” Winkler reiterated. “Moreover, even a legal contract that could force the City into selling its only landfill site to a private company is irresponsible. The people of Duval County are unwilling to take that risk.”

See filed court documents below.

Complaint For Declaratory And Supplemental Relief

Exhibit 1

Exhibit 2 Part 1

Exhibit 2 Part 2

Exhibit 3

Exhibit 4

• Not only a garbage engineer but also the city auditor said that the idea that if another company wins the bid for servicing the landfill there will be a large V shaped area that is not used is false.
• Councilman Davis asked the Republic CEO and lawyer if they promise they can beat the negotiated contract and they say they can.
• Republic estimates that Trail Ridge is currently running at a 50% profit margin and that the negotiated contract will end-up being a 40% profit margin with the industry standard being 20% profit margin.
• A councilman (I think it was Joost but don’t quote me on that) asked the Republic representative to get into their profit margins for landfills that they run in other states.
• After being grilled by members of the City Council, the Republic representative said that it seemed like he was going through the bidding process right at the podium and the whole room laughed.
• Councilman Davis then realized that he was making himself appear to be partisan and then apologized to the Republic representatives and tried to say that this is a very important issue and he needs all the facts.
• Councilman Davis suggested that representatives from Republic be put under oath for public comment during the next meeting and asked Republic to pay the city’s legal fees if WM sues the city.
• Our fair city has tried this before and in the case of Mid American Waste systems vs. the city of Jacksonville it was decided by a court of law that the city MUST bid the contract due to state law and does not even have the right to negotiate the contract. The city’s general council disagrees with this and feels that the city does have the right to negotiate.
• The state statute that states that bidding is the rule is statute 287.001
• Waste Management is a very litigious company that has been in and still is in legal battles with the city.
• The current CEO of Republic was working for WM at the time of the signing of the 1991 contract.
• Per the garbage engineer, there is no such thing as air rights over a landfill. The city owns everything.
• All over the country, there are adjoining landfills operated by different companies (apparently due to mergers and divestitures this is somewhat common) and there have been no lawsuits.

Not so fast. It is like marrying the first girl you fall in love with. Sure, it could turn out great, but why not shop around before you take the plunge? In medical science, scientists run clinical trials to verify if a drug really can cure the disease that it claims to cure. So the drug company says that the drug reduces the symptoms of the disease by 50%. Should we immediately start using the drug? Not exactly. You first ask if there was a control group. This control group has the same disease and is similar to the group receiving the drug, but does not get the drug. If the control group also sees a reduction in the symptoms of the disease of 50%, then we know that the drug is no more effective than letting the disease takes its natural course.

What does this have to do with the proposed landfill contract? When you bid the contract, each company submitting a bid is a control group for other bidders. Sure, $250 million sounds great. But could it be matched by other waste management companies? We will never know until we bid the contract.

Also, in the advertisement, Waste Management would seem to be our friend by taking us aside and asking us if this really is a good time to risk litigation costs and permitting delays. You would think that Waste Management is doing us a favor by helping us to avoid all of those headaches. What a pal!

I guess that this is the part that perturbs me the most. Waste Management is using the carrot and stick approach. Sweeten the pot with the carrot of $250 million of cost savings, but swing around the stick of litigation at the same time. Both the city and Waste Management are pursuing risk adverse courses. Waste Management avoids litigation that they are likely to lose according to Florida Coastal School of Law professor Cleveland Ferguson and the city’s General Counsel and also avoids the possibility of losing the contract through competitive bidding. The city avoids the cost of litigation and the possibility of running out of landfill space due to possible injunctions against bidding the landfill to any other company while the litigation is taking place.

The big loser in all of this is the competitive bidding process. The bidding process not only protects the taxpayer by assuring that city services are provided in the most cost efficient manner possible. But it also ensures that government contracts are not awarded to companies that have the best connections within city government. Using fair and transparent competitive bidding avoids government corruption and ensures fairness in the awarding of government contracts. Bid the contract!