Wednesday, July 2, 2014

Brevard County Attorney Wants To File Legal Brief Supporting EDC

Brevard Clerk of Court Scott Ellis
VIERA, Florida -- Brevard County taxpayers could soon be paying for not just two, but three separate legal bills in a public records lawsuit between Brevard County Clerk of Court, Scott Ellis, and the Economic Development Commission of Florida's Space Coast (EDC).

That's because Brevard County Attorney Scott Knox has placed on the County Commission's July 8th Agenda a request to file a legal brief with Florida's 5th District Court of Appeal in support of the EDC's appeal which contends that it is not a public agency subject to the Florida Sunshine Act's Public Records Law.

EDC CEO Lynda Weatherman
The EDC is appealing a judgment handed down in April by Brevard County Circuit Court Judge, John Dean Moxley, Jr., who ruled that the EDC is indeed a public agency subject to Florida public records law and must produce its documents related to BlueWare to Ellis.

"Economic development and nurturing economic advances promulgated by the Chambers of Commerce are appropriate governmental functions...," Moxley reasoned in his Final Judgment.  "...the scope of the contract delegated economic development of Brevard County to the Economic Development Commission of Florida’s Space Coast, Inc.  Accordingly, any records generated in carrying out those duties are public records subject to inspection."

When asked why the County Attorney's wants to file a brief in support of the EDC's position when the contract between the EDC and the County specifically requires that the EDC's documents are subject to Florida's Public Records Law, County Attorney Scott Knox said:

 "My office has always maintained that the EDC is subject to the Public Records laws under certain circumstances within the scope of the contract.  But the contract specifically says the EDC was retained as an independent contractor, not as an agent or agency of  the County.  The Court ruling states that the County delegated its economic development function to the EDC, however, it is clear to me that is not what happened.

In my opinion, the Court’s ruling is overly broad and will hamstring the EDC, thereby putting Brevard County at a competitive disadvantage vis a vis other counties and cities in Florida, not to mention states such Texas, Alabama, North Carolina, Georgia and California, to name just a few." 

But the State of Florida's top economic development department appears not to be climbing the same wall of worry expressed by Knox.  "At this time, DEO has no plans to file a brief," said Florida Department of Economic Opportunity spokesperson, Jessica Sims.

The EDC isn't finding much support in the case from its state level counterpart, Enterprise Florida, either.   Brevard Times asked only one question from Enterprise Florida, "Does Enterprise Florida intend to file an Amicus Brief in the 5th DCA case?"  Enterprise Florida spokesperson, Sean Helton, didn't answer yes or no, but responded as follows:

"As Florida’s lead economic development organization, Enterprise Florida is committed to bringing new jobs to the state. With our partners at the Department of Economic Opportunity and CareerSource Florida, and our 67 economic development stakeholders, we are actively pursuing projects in and out of the state, nationally and globally, large and small, to create jobs for Floridians. We know economic development works in our state and will continue to responsibly use the tools available to encourage the establishment, expansion and retention of business in Florida.

Florida has some of the best compliance and metrics of its incentive program anywhere in the country, and accountability measures are in place to ensure taxpayers receive a return on their investment.

Since 1995, there have been more than 1,600 economic development transactions representing 1,100 projects. Eighteen total projects have returned more than $14 million in incentive funding as a result of clawbacks and sanctions. Many of these same projects still positively impacted the state economy by contributing hundreds of new jobs and millions in capital investments.


Just three separate projects fall under the definition of “failure,” meaning that state funds were paid, no jobs were created and no money was returned to the state. They were all Quick Action Closing Fund projects, and represent less than one percent of all incentive transactions. This results in a 99% success rate for this program.

The Department of Economic Opportunity’s portal provides unprecedented transparency to economic development incentive information – posting information 48 hours after it is no longer confidential."

Knox is requesting that his office file an amicus curiae brief, which means "friend of the Court", because the County cannot be a party to the appellate case when the County did not appear as a party during the lower court case.  When asked why Knox waited so long to request filing the brief after the Final Judgment was entered back in April, Knox said:

"The County did not participate in the lawsuit and it was not until I had a chance to review the transcript that the error in the Court’s ruling became evident.  That transcript was not in our hands until the first week in June and the County Commission was in recess for the entire month of June, so I could not ask if the Board had an interest in filing an amicus curiae brief until July 8. "

“The Court’s ruling does not hamstring anybody," Ellis said in response to Knox's legal opinion.  "F.S. 288.075 provides confidentiality to client lists, trade secrets, etc.  If the County truly believed that work done under county auspices and funding, such as the Blueware project, was subject to public records why did the County not file an Amicus brief to the trial court in favor of the Clerk of Courts?  The hearing was in Titusville, why did the County Attorney’s Office not bother to send an attorney to view the proceedings?"

County Commissioner Trudie Infantini was inquisitive as to why Knox is making such a request when last year, the Brevard County Board of Commissioners voted unanimously to request that the EDC relinquish its documents regarding BlueWare to Ellis so that he could continue his research and investigation into BlueWare's dealings with former Clerk of Court Mitch Needelman.

"The Commission voted August 20, 2013 to demand all legally permissible documents be turned over, Infantini said.  "Yet, 11 months later our County Attorney prepares his own agenda item overruling the decision of the County Commissioners and the judge, in an effort to prevent the release of documents.  Mr. Knox has not responded to my request as to who initiated this agenda item.  He should not be initiating it himself. This is like an act of insubordination - doing the opposite of what you are instructed to do." 

RELATED STORY: Economic Development Key Issue This Election Year


Former Brevard County Clerk of Court Mitch Needelman entered into a $6.1 million loan with Hewlett Packard after losing the primary election to Ellis in 2012.  Needelman then used the loan proceeds as an upfront payment to BlueWare before the company ever fulfilled its scanning contract with the Clerk's office.   

BlueWare is the company caught up in a public corruption criminal case brought by the Florida Department of Law Enforcement and State Attorney Phil Archer against former Clerk of Court, Mitch Needelman, his former business partner Matt Dupree, and BlueWare CEO Rose Harr.  

Ellis continues to assert that the loan done by Needelman, BlueGEM, Harr, and Hewlett-Packard was illegal and unconstitutional in repeated legal actions brought by HP against the Clerk's Office for repayment of the loan. 

The EDC helped BlueWare and some of its affiliated companies to qualify for various government programs and other "workforce incentives" that could have totaled nearly $2 million in taxpayer money.   In 2013, Ellis repeatedly requested that the EDC turn over its BlueWare documents so that he could defend the lawsuits brought by HP. However, the EDC refused to hand over all of its BlueWare documents to Ellis.

After the Clerk's office learned from a Brevard Times investigative article published on August 26, 2013 that State of Florida Department of Economic Opportunity officials said that BlueWare's confidentiality had lapsed and Governor Rick Scott's Office stated to Brevard Times that the BlueWare incentive contract was canceled on April 5, 2013, the Clerk sent his auditors to the EDC in Rockledge the next day to request a copy of the EDC file on BlueWare.  When the EDC refused to comply with that last public records request, Ellis then filed the lawsuit which is now on appeal.

Brevard Times was the only news source to continue a series of in-depth investigative articles led by Charles Parker into this and related stories: