Sunday, October 5, 2014

Brevard County Clerk of Court to withhold EDC payments

BREVARD COUNTY, Florida -- Brevard County Clerk of Court, Scott Ellis, says that his office will withhold payments to the Economic Development Commission of Florida's Space (EDC) since October 1st because the County Commission failed to follow the County's procurement policy during the recent award of the County's revised $1.4 million contract with the EDC.

"In your procurement policy, all requests for goods and services, all purchases shall be for public purpose, and it goes on with various things how you do this, unless otherwise exempt under this policy," Ellis told the Commission at its September 16 meeting.  "I find no exemption under this policy for anything remotely resembling economic development.  And it says $100,000 and above, you will go through and solicit three responsive, qualified sources for purchasing thresholds."

"Well, it’s my position that this grant is a request for goods or services, and as such, we need to go out to bid for it," Commissioner Trudie Infantini later said the the meeting.  "We need to receive three responsive bidders for this contract and I do not think legally, that we can award this.  I'm trying to discourage this Board from moving forward on this. I know how the vote will go, but I would like to say for the record, I do not think legally we are allowed to do this"

"I would also point out that that is a Board Policy, which can be waived even if it were services, which it is not," County Attorney Scott Knox said in response.

County Manager Stockton Whitten concurred with Knox by saying, "Actually, the Board Policy provides for that exception and so, the Board can make that exception, it’s already in your Policy"

Commissioner Robin Fisher then turned towards his fellow Commissioners and asked, "Just for clarity though, is it, are we going to waive the procedure Policy in this motion?"

"That's the next one," Commissioners Chuck Nelson and Mary Bolin-Lewis, replied.

However, within five minutes after Fisher's inquiry about waiving the policy, not one Commissioner remembered to waive the policy when the actual motion was before them.

It appears in the meeting video that the Commissioners became distracted when Infantini and Fisher debated the definition of what constitutes a "Financial Report" that the EDC is required to annually submit to the County.

Infantini had asked Whitten what was the difference between an audit and a financial report.  Fisher interjected and asked Infantini, "You've never heard of a financial report?"

"No. I've called an income statement, a balance sheet, statement of owners’ equity, statement of cash flows, a management letter, but I've not heard just financial report," Infantini replied.  

Infantini then asked Fisher, "Could you tell me what it is?"

"Yeah. It gives you their annual, the finances in the current year that was spent when it's that simple maybe you need a CPA," Fisher quipped  (Infantini has a master's degree in accounting). 

A few minutes later after the Commission had moved onto other Agenda items, Fisher said, "I just googled Financial Report..."

Infantini interrupted Fisher, "So I guess you actually didn't know what it was, you had to google it?"  She then turned to the audience and said, "He was up here googling on his cell phone."

"I just want to educate you here a little bit," Fisher said.  He then proceeded to read aloud a definition of a financial report from his smart phone.

"So you didn't know what it was, yet you were asking for it," asked Infantini.

Fisher then started to say, "I knew what it was, I just, I just..." when Infantini interrupted again and said, "Oh, O.K., so you knew what it was but you just didn't know how to word it so you looked it up on Google."

"I was hoping that, you being a CPA, that you could do that for me," said Fisher. "Gets back to that real CPA deal." 

Bolin-Lewis then joined in the fray, "Mr. Whitten, we've been using that term continuously for the last 8 years that I've been here.  And so, we've used that term for the last six years that Commissioner Infantini has been here, so I guess now that she understands it."

"Your pettiness can never stop," Infantini said to Bolin-Lewis.  "You guys have no grasp of what financial records you are even looking at."

October 1st is an important date because the County's new fiscal year starts and the EDC contract would have taken effect.   The Commission had an opportunity to correct the absence of the waiver because it met one more time (September 23) before October 1st.  However, the Commission did not take any new action to correct the contract even though Fisher briefly revived the dispute at the September 23 meeting about the definition of a "Financial Report" from the last meeting. 

The new contract with the EDC is controversial because it substantially modifies the previous service contract between the County and the EDC in a deliberate attempt to evade the responsibilities of the new requirements of Florida's Sunshine Law.  The move comes in the wake of the Florida Sunshine Law case brought by Brevard County Clerk of Court, Scott Ellis, against the EDC for documents related to the Blue Ware scandal.

Currently, the EDC is appealing a judgment handed down last 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."