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Water District’s watered-down rules let ex-chairman-turned-lobbyist dodge conflict law

By Dan Christensen, BrowardBulldog.org

Nicolas Gutierrez

When it comes to lobbying, the rules are different at the South Florida Water Management District.

A loophole written into the Water District rules has opened a revolving door of influence that at least one former governing board member-turned-lobbyist has used to sidestep state conflict-of-interest rules.

Florida law bars appointed state officers and others from returning to lobby their former agency for two years after leaving office. The idea is to prevent them from cashing in at the public’s expense on their inside knowledge and personal influence with ex-colleagues.

Former chairman Nicolas Gutierrez, a three-time appointee of Republican Gov. Jeb Bush, left the board in April 2008.  But district visitor logs obtained by Broward Bulldog show that during the next two years Gutierrez returned to district headquarters seven times on behalf of a trio of clients to meet privately with key staff, including the purchasing director.

In an interview, Gutierrez said his lobbying work during the two-year period complied fully with the district’s “post-employment restrictions,” which also apply to former top managers.

“Obviously this benefited me,” said Gutierrez, a former district chairman. “But this is the way things have evolved.”

Gutierrez added that the difference between state law and the district’s policy was not significant. “I forget whose quote it was – something about ‘consistency is the hobgoblin of little minds.’”

CHANGING THE RULES

The district watered down the state’s flat two-year prohibition 15 years ago by adding a few words to the rules it adopted to implement it. The extra language applies the ban only to persons who represent clients in matters in which they “participated personally and substantially” while in office. (Gutierrez said he had no prior involvement in the matters he lobbied on during that time.)

Another change by the district gave unconditional authority to the Water District’s executive director to waive the district’s two-year rule. To date, the district said, no waivers have been issued.

District General Counsel Sheryl Wood declined to be interviewed. In response to written questions, her office stated that the district modified the state’s stricter ban “to provide consistency” with the state ethics code, the Florida Administrative Code, the rules governing engineers and the Florida Bar’s Rules of Professional Responsibility.

“TROUBLING” DECISION

Robert Jarvis, a professor of constitutional law at Nova Southeastern University, called the district’s actions “very troubling” and said the district should “amend its rules to conform to the state law.”

“The district’s current rules make it too easy for influence-peddling by former board members,” Jarvis said. “There’s simply no justification for its departure from state law, and there’s clearly no benefit to the public, and a lot of potential harm…The only people who benefit from the district’s looser rules are the former board members and their clients.”

Audubon of Florida Executive Director Eric Draper said the “rules are wrong and should be changed.” He called on the Legislature to “set statewide [lobbying] rules for all taxing districts.”

“The agency that manages our water resources and referees use of a limited resource must be held to the highest standard of trust and confidence,” Draper said Wednesday.

The Water District is a regional agency governed by a board of nine political appointees tapped by the governor and confirmed by the Florida Senate. It oversees water resources in 16 counties including Broward, Miami-Dade and Palm Beach. About a third of its $1.5 billion annual budget comes from property taxes it levies.

In April, Broward Bulldog reported how for years the district has used 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.

Wood, the district’s lawyer, said then that the state’s strict lobby law does not apply to Florida’s five water districts because they are independent taxing districts – not executive branch agencies.

Dozens of special corporate interests, including developers and agricultural interests like Big Sugar, vie for influence at the district. The West Palm Beach-based agency was recently criticized by a Miami federal judge for failing for years to enforce clean water standards in the Everglades.

GUTIERREZ EXPLAINS

Gutierrez, a Coral Gables attorney, said his lobbying duty for clients during the two-year period was relatively minor work that met with both success and failure:

  • He helped the Camay Cattle Company, which owned two pieces of property divided by district land, secure a permit allowing it access to the district’s land to avoid transporting horses on a highway.
  • He lost a bid to get the district to renew a fish farm lease for Blue Heron Farms. The company later went out of business, he said.
  • The Homestead-based landscaping and environmental services firm Arazoza Brothers hired Gutierrez to help them learn about bidding opportunities and make business connections at the district. Among other things, Gutierrez said, he introduced Arazoza officials to then-district procurement director Frank Hayden.  The visitor log shows the meeting was Feb. 2, 2010.

Persons who violate the state’s two-year ban on lobbying their former agencies face penalties that include public censure, a $10,000 civil penalty and the forfeiture of client fees.

The district’s lone sanction for those who violate its less strict two-year rule is to bar them from representing future clients there, according to the general counsel’s office.

That’s never happened.

The office said no violations are known to have occurred since the rule was adopted, and none have been alleged.

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  • If you have a problem, file an ethics complaint. The Commission on Ethics isn’t bound by the district rules. If its a violation of state law, then its a violation regardless of how the district interprets it.

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