On October 1, 2023, the Gainesville Regional Utilities Authority took over the management, personnel, operations, rates, service levels, finances, debt, and liability of the City’s utilities from the Gainesville City Commission. This takeover was founded on HB 1645, a poorly written bill, now law, that violates the US and Florida constitutions, ignores statutory process requirements, and is now being ignored in its implementation.

In response, five separate lawsuits have been filed against multiple defendants to protect the citizens, residents, and GRU customers of Alachua County. Gainesville Residents United, Inc. is directly involved in two of the suits and closely tracks progress on the other three.

These court challenges seek a legal solution to a political problem; what we really need is this political problem to find a political solution. New legislation would be a quicker fix IF amendments are drafted for the Legislative session beginning in January 2024. If not, then the wait until May 2025 (when the following legislature adjourns) will take longer than asking the courts for answers.

Unfortunately, our local legislative delegation has shown little willingness to consider constructive input from local citizens or from people who understand how municipal utilities work. Our Legislative delegation meets on October 25th at 1:30pm to hear suggestions from organizations and individuals about what to do in their session that convenes in early January. Gainesville Residents United, Inc., and several of our members and supporters as individuals, have in the past suggested amendments and have offered to negotiate solutions to no avail. The City Commission has done the same. Perhaps the Utility Authority members can convince the Legislature to fix the mess they now preside over.

Everybody involved cares passionately about our community – but finding common ground beyond that simple statement is hard when there are so many social, political, and ideological issues to consider. Doing nothing, however, about the current unworkable situation is not an option for practical, ethical, financial, and legal reasons. So, in defense of our community, we filed suit. Following are brief summaries for the five separate lawsuits that involve the Utility Authority. Initial filings and related documents are at: www.GRUnited.org.

Case 1: Gainesville Residents United, Inc., et al v. Gov. Ron DeSantis et al, filed 7/3/23 in U.S. District Court.

This comprehensive federal case contains twelve counts alleging that House Bill 1645 violates Federal and State constitutional rights, and Florida statutes. To focus our efforts, we voluntarily dismissed two of the initial defendants: Florida’s Attorney General and Secretary of State, but did not dismiss the Governor (who appoints Utility Authority members) and the City of Gainesville. Judge Allan Winsor will establish the trial calendar and procedures soon.

The defendants have raised few factual disputes to be resolved – so the trial will focus on the law and its impact. A complicated case like ours requires time for a judge to become familiar with the arcane practice of utility governance, so we are following the normal (slow) processes of the federal court. Gainesville Residents United may choose to move for summary judgment (this is how the City accelerated its trial). Summary judgment is a decision on the legal merits alone and that decision can be appealed. Counsel on this case is a team of three attorneys: Terrell Arline, Gary Edinger, and Joe Little.

Case 2: City of Gainesville vs. Gov Ron DeSantis, et al, filed 7/21/23 in Leon County Circuit Court.

The City of Gainesville’s case contains ten counts alleging violations of the Florida Constitution and various Florida Statutes. The three state officers being sued filed motions to dismiss themselves from the case, arguing that they were not the proper defendants. They also argued that the City did not have legal standing to sue the State.

On September 29, Judge Angela Dempsey agreed with the State and dismissed the case. In doing so, her opinion went further by adding arguments from the State’s lawyers on each count, even though they were not relevant to the reasons underlying her dismissal. Unfortunately, in recent years, Florida’s judiciary has become more protective of state authorities’ actions by simply dismissing lawsuits without holding a trial on the merits. In this case, there was only one hearing that lasted barely two hours.

The question for the Gainesville City Commission during October is whether to appeal the case. If the City does not appeal, no case law (good or bad) is made. Given the track record of the state appellate courts in Florida, the odds of a successful appeal for the opponents to HB-1645 are not great. From the perspective of city commissioners, another reason to leave the trial court decision alone is the Governor’s penchant for removing local elected officials with little justification. Gainesville’s legal team is City Attorney Daniel Nee and outside counsel Cindy Laquidara.

Case 3: Nath Doughtie vs. Gov Ron DeSantis, et al, filed on 8/18/23 in U.S. District Court.

Nath Doughtie, a former Circuit Judge from Alachua County, is the sole plaintiff in this Federal case. His lawsuit alleges that HB-1645 violates the 1st and 14th amendments to the U.S. Constitution by eliminating his right to vote to elect members of the municipal governmental body that provides utility services. This case is in the early phase of swapping motions with the State agencies. Doughtie’s case and the case by Gainesville Residents United are both before Federal Judge Allan Winsor. It is possible that the judge will decide to join them into one trial. The plaintiff’s attorney on this case is Joe Little.

Case 4: Writ of Quo Warranto by Petitioners Robert Hutchinson and Jeffrey Shapiro against Respondent Gov Ron DeSantis, filed on 10/2/23 in Leon County Circuit Court.

“Quo Warranto” means “by what authority”. This recent lawsuit raises the question of how the Governor can ignore the statutes regarding requirements for soliciting Utility Authority Member nominations. It also challenges the appointment of members who do not meet the residency requirements in the law. The circuit court judge has already provided his notice that the evidence submitted is sufficient for him to rule and has given the Governor’s office 40 days to provide their counter-arguments.

Ironically, the Governor could simply run an inexpensive advertisement, then 30 days later appoint four members to the Utility Authority who live within Gainesville (as required by the law). Instead, he ignores the law that he signed less than four months ago and will submit a response in 40 days to the judge after which there will be a trial in a few months. The judge will either direct the Governor to follow the law, (which would take less time and money, and minimize disruption), or, invalidate the portion of the law requiring a public notice for nomination and the residency requirements (which is something found in hundreds of other laws). And the kicker is, if the judge directs the Governor to follow the law, then everything the current Utility Authority has done up to then may be declared null and void, including the appointment of the current members. It’s a large bet to gamble on an unprincipled stand. Counselors on this case are attorneys: Terrell Arline, Gary Edinger, and Joe Little.

Case 5: Writ of Quo Warranto by Petitioners Kristen Young and David Hammer against Respondents Mayor Harvey Ward and Chair Craig Carter, filed on 10/20/23 in Alachua County Circuit Court.

This brand-new lawsuit asks the question: how can the Mayor swear in members of the Utility Authority without a published Public Notice soliciting nominations as required by the law? Our public records request 28 days before the swearing-in to the Governor’s office received a quick response that they never published a Public Notice. The lawsuit also asks the question of how members could be sworn in who did not meet the residency requirements as required in the law, which was affirmed as legislative intent by statements of the bill’s sponsor.

This case argues that the law unconstitutionally deprives residents of their right to vote for officials who perform “legislative” matters. It also indirectly raises an interesting issue by suing both the City Commission and the Utility Authority. As the legislative decision-making authority, City Commissions are the proper defendants in legal suits against a municipality; not the administrative departments who report to that Commission.

The Utility Authority was not defined in the law as a city department, but instead the term “unit” of the city was used in HB-1645; this relationship is not defined in any Florida statute or legal doctrine. The Judge that ruled against the City (in Case 2 summarized above) opined that the state officers were not the right parties for the City to sue, but the Utility Authority would be the correct party. This case begins to test that legal absurdity, as the City Attorney will be faced with arguing on behalf of the City Commission and the Utility Authority in the same action when their interests are diametrically opposed. The attorney for this case is Joe Little.

Entanglements . . .

Sooner rather than later, the City Commission and the Utility Authority will find themselves in unprecedented legal entanglements that will be impossible to unravel without either clarifying legislation or a judge’s opinion. Most of the likely problems have been foretold in the initial litigation filed by the City and by Gainesville Residents United. Here are a few inevitable and predicable scenarios that the special law created:

No legislative or regulatory oversight. As it stands now, any Gainesville utilities customer who is not satisfied with the rate levels or service levels of the Gainesville Regional Utilities Authority has nobody to appeal to except the Governor. By state law and the City’s amended charter, the City Commission is now prohibited from considering utility-related functions. The Florida Public Service Commission only has very narrow jurisdiction over municipal utilities and isn’t seeking to get involved. Gainesville’s electric utility customers are now the only ones in the nation who have no effective route of appeal to an elected body or a utility regulatory agency.

Liability for injuries. Another example of a predictable conflict is if an employee is injured on the job, or if a resident or visitor to Gainesville is injured by the Utility’s negligence, or if a business dispute arises between a contractor and the utility. The liable party would seem to be the Gainesville Regional Utilities Authority, however, as a “unit” of the City, the Authority cannot be sued directly. Yet the City Commission is now prohibited by a state law from having any say in Utility matters. If both the City and the Utilities Authority can’t or won’t satisfactorily settle with an injured party, the only appeal is to the Governor, except now one judge’s opinion says the Governor can’t be sued either.

Debt. When a utility borrows money to build or renovate facilities, it is called a bond. The Utilities Authority will want to re-structure its debt or issue new bonds in the near future. All the utility bonds are currently in the name of the City of Gainesville, which can only be issued by the City Commission. How to re-structure this arrangement is not a trivial matter. The direct costs of doing so will be substantial legal fees for re-negotiating bond covenants. The impact on rate-payers will be from any changes in bond ratings (up or down) that result from the new arrangement. In the past, one of the reasons Gainesville bond ratings were relatively attractive was the willingness by past City Commissions to properly fund the Utility Plant Improvement Fund, and to make rate adjustments as necessary to balance the Utilities’ finances. The new Utility Authority’s marching orders include reducing or maintaining electric rates regardless of whether this impacts utility plant maintenance or the debt service, and therefore bond ratings. Incautious statements or ill-advised votes by Authority board members and meddling by legislatures can result in substantially increased debt service costs that can only be covered with increased rates to the customers.

Eminent domain. Eventually, the Utility will need to acquire property for a sewage lift station, or right-of-way for a pipe or wire. Eminent domain is a legal proceeding in the courts to determine how much the private landowner should be paid for the public’s taking of their property. Since the Utility Authority apparently cannot go to court on its own, and the City Commission cannot be involved in Utility decisions (such as where to site a utility facility), who will be in court to resolve these inevitable issues?

Verboten topics. HB-1645 specifically forbids the Utility Authority to “consider issues that are social, political, or ideological.” In the real world, these are exactly the kinds of decisions that utility authorities deal with all of the time. When our Utility Authority inevitably has a discussion that touches on any of these trigger points prior to voting, they will have broken this preposterous special law. In their first meeting, members of the Utility Authority and GRU staff may have violated this law already. As it stands now, there is a circuit court judge who has ruled that the City is the correct party to sue in these matters. So, are residents to sue the City Commission over “social, political, and ideological considerations” that were unlawfully discussed by the Utility Authority?

Onward . . .

This has been, and will continue to be, a long, slow, arduous process. Litigation is expensive and will become even more so if appeal decisions to obtain good case law. We will continue to update you and to ask for your continuing participation. Thank you for all who have helped in so many ways so far – this is important.

Board of Gainesville Residents United, Inc.
Susan Bottcher ◦ Roberta Gastmeyer ◦ Yvonne Hinson ◦ Robert Hutchinson ◦ Jeffrey Shapiro ◦ Wes Wheeler

Gainesville Residents United, Inc. is a 501(c)4 non-profit Florida corporation whose mission is “to educate, advocate, negotiate, and litigate important issues for our community.” Gainesville Residents United receives all of its support from individual private donors. Donations are not tax deductible and, at the conclusion of litigation, will be returned proportionately to donors.

Mailing address:
For litigation documents, news media archives, and donations:
2619 SE 30th Place
Gainesville, FL 32641

www.GRUnited.org
info [at] GRUnited.org