Loophole in law lets lobbyists dodge disclosure at South Florida Water Management District

By Dan Christensen,

The South Florida Water District uses a loophole in state law to avoid requiring lobbyists to register and disclose who hired them, which officials they seek to influence and how much they are being paid.

None of the state’s five water management districts require special interest lobbyists to register before they contact board members and staff about big money contracts, environmental permits or other important matters involving public policy.

Lobbyist disclosure has been a fact of life for years in Washington, Tallahassee and at city and county halls across Florida. But not at the South Florida water district’s regional headquarters on Gun Club Road in West Palm Beach, where tens of millions of taxpayer dollars and other public funds are spent every year.

Florida law regulates those who lobby the Legislature, the governor and any agency of the executive branch. Local laws do the same for municipalities. But water district officials contend that broad regulatory reach does not extend to the water districts because they are a unique governmental creature – an independent taxing district.

“In order for us to have a lobbyist registration provision, you’d need to amend the [lobbying] statute to include us,” said longtime SFWMD district general counsel Sheryl Wood. “We are not an executive branch agency.”

State regulations, first adopted decades ago, state that it is necessary to require public disclosure by lobbyists to preserve “the integrity of the governmental decision-making process.” But in its nearly 40 years in existence, the Water District has not asked Tallahassee for the regulatory authority that Wood says it lacks.

Board member Eric Buermann, a Republican who until last week served as chairman of the 1,900-employee district, said it’s time for change. He called lobbyist registration “a good idea” to promote transparency and “allow everybody to know what the relationships are up front.”

“Most of those who come to our meetings, or are advocating to us, are paid to represent a point of view,” Buermann said. “I would be in favor of registration, but I’m also in favor of trying to keep it as simple as possible so you don’t create a whole new bureaucracy to manage all these registrations.”

Public’s right to know

Barbara Petersen, an open government advocate and president of the Tallahassee-based First Amendment Foundation, said the public has a right to know who is trying to influence district officials.

“I’m surprised to hear this. These agencies deal with some of the biggest issues in the state. People are very concerned with what’s going on with their water,” said Petersen. She added that while the law may not specifically authorize the district to adopt new lobbying controls, it does not appear to prohibit it either. “I don’t see why they couldn’t just do it,” she said.

Florida’s special purpose water management districts were created by the Legislature in 1972 to prevent flooding and protect the water supply. They are jointly overseen by the governor, who can veto their budgets, and the Legislature, which decides how much they can collect in taxes from the district’s property owners. The South Florida district covers 16 counties, including Broward and Miami-Dade.

The districts are run by unpaid governing boards that set policy and let contracts. Board members are appointed by the governor to four-year terms, not elected.

The South Florida district has come under fire recently. The executive director announced last week that she would step down on April 29 after news reports of mismanagement and conflict questions about a hiring. Conflict issues regarding board members also have been raised.

In 2006, the district was brushed by scandal involving district land sales and purchases. Two county commissioners, including one who lobbied the district for a deal, pleaded guilty to corruption charges.

On Wednesday, The Palm Beach Post reported that Florida Department of Environmental Protection Secretary Herschel Vineyard appointed a new state “water czar” – former SFWMD board member Melissa Meeker – to oversee each of the state’s five water management districts. The move follows Gov. Rick Scott’s push to give Tallahassee more control over the districts and slash $100 million in district property tax collections in South Florida alone.

Representatives of North Florida’s smaller water districts, where budgets are hundreds of millions of dollars less than they are in South Florida, say they see few lobbyists.

But lobbyists regularly ply their trade at the South Florida district, where the annual budget is $1.1 billion. Typically they are lawyers and former district officials representing developers, agricultural interests and local governments seeking water permits or construction approvals.

A lobbyist at the top

The lobbyists have even had one of their own serve as chairman of the SFWMD governing board, Coral Gables attorney Nicolas Gutierrez.

Gutierrez, first appointed by former Gov. Jeb Bush in 1999, represented Hollywood’s Morrison Pump Company in 2006 when it sold the district 15 large pumps for $1.5 million. The pumps soon failed and Morrison later refused to honors its warranty. The company continues to supply pumps to the district today, Broward Bulldog reported April 7.

Morrison’s contract did not come before the board for approval. Nevertheless, Gutierrez later was hit with an ethics complaint alleging his representation of private clients doing business with the district was a conflict of interest.

Gutierrez completed his term and departed the board in April 2008. In December, the Florida ethics commission found probable cause to believe a conflict existed, and that Gutierrez had failed to declare it on state-required conflict of interest forms that regulate public officials. It dropped the case, however, after deciding “the public interest would not be served” by further proceedings because Gutierrez had not participated in Morrison’s selection.

The commission did not address whether Gutierrez attempted to exert influence behind the scenes. He has said he played no role.

How many lobbyists operate today at the SFWMD?

“I couldn’t tell you,” said Wood. “I think it would be anytime we have a contract at the agency.”

Some rules  in place

The district is not devoid of lobbyist regulation. To promote fair and open competition, and comply with applicable state law, the district adopted post-employment rules that prevent board members and employees from lobbying at the district for two years after leaving their posts. Gifts to staff and board members are prohibited. There’s also a “cone of silence” provision prohibiting communications with anyone except the assigned procurement specialist after a solicitation hits the street.

The Water District even flirted with the idea of requiring lobbyists to register. In 2005 at a board member’s request, Wood said, her office explored ways to obtain “the authority to do a rule-making change” to permit the district to require registration.

The board later adopted a new building security policy requiring everyone who enters the district’s headquarters to be photographed and declare “who they are representing and who they were going to see,” Wood said.

However, the district keeps no written logs, and the information that entrants provide can be spotty, said district spokesman Randy Smith. But it is entered into a database that is available to the public, though not online.

The database is rarely used, Smith said.

The district’s security policy does not touch lobbying contacts made by telephone, letter, email or other means not involving an office visit.

Once it was adopted, though, the idea of requiring lobbyists to register fizzled.

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