The city of Gainesville is asking a Florida court to issue an injunction to stop the implementation of HB 1645, which moved control of the city’s Gainesville Regional Utilities (GRU) from the city to a governor-appointed independent board.
City Attorney Daniel Nee along with outside law firm Akerman LLP electronically filed a lawsuit in Florida’s Second Judicial Circuit in Leon County. The suit asks the courts to declare invalid HB 1645, which the governor signed into law on June 28, and requests a judge to grant the city both a temporary and a permanent injunction against the law.
The legislation, introduced by state Rep. Chuck Clemons, R-Newberry, is set to take effect on Oct. 1. He and other supporters argued it was necessary to address high rates, GRU’s debt load, and representation for GRU customers outside of Gainesville.
The lawsuit names the state of Florida, Gov. Ron DeSantis, Attorney General Ashley Moody and Secretary of State Cord Byrd as defendants in the case.
The city argues in its complaint that the state has overstepped its constitutional and statutory roles in removing GRU – a city department – from the city’s control and putting it under a state-controlled five-person board. In 2018, area voters rejected a similar proposal to put GRU under a governing board.
“I do believe, as the lawsuit makes clear, that the legislation, as passed along party lines this past legislative session, contains inconsistencies with the Florida Constitution and general law," Mayor Harvey Ward said in a statement. “For that reason, I believe the only responsible next step in any sort of smooth transition had to be asking the courts to weigh in on these issues.”
The lawsuit refers to Florida Statute (Chapter 189), which says that electric services cannot be transferred into special districts and that any municipal special districts must be controlled by elected city officials.
“HB 1645 stands alone -- there is no other statute in Florida which reaches inside a municipality, removes what are indisputably municipal functions, and assigns them to [the] state to operate and manage,” according to a motion, filed electronically Friday afternoon along with the main complaint.
Bill sponsor Clemons said in a text Tuesday that Florida’s cities and counties are sub-divisions of the state government and that he had “faith in the judicial process.”
The city allocated $250,000 for the lawsuit on June 22.
“The Gainesville City Commission is in denial,” Clemons said. “This lawsuit will only cost the taxpayers more money. Perhaps this action will be the last straw before a recall effort begins to remove bad decision-makers from office.”
The mayor in turn has blamed the need for a lawsuit on Clemons' unwillingness to work with the city on GRU-related issues.
“As with any ongoing litigation I’m reticent to have a lot to say, but I will say that I’m disappointed we ended up in this position,” Ward said in his statement. “I asked the original sponsor of the legislation to work with us before the legislation was passed, but he was unwilling to do so, ultimately leading our community to this regrettable position.”
The Florida Legislature’s Joint Legislative Audit Committee (JLAC) ordered the city in February to get GRU’s $1.8 billion in debt under control.
“It is clear from HB 1645 that the new ‘Authority’ is simply choosing to run a city department because the legislature and governor would prefer that it be run differently,” according to the main lawsuit.
The lawsuit also challenges HB 1645 for giving the five-person authority the right to take property under eminent domain and to borrow funds and issue bonds in the city’s name – all functions that lawsuit says belong exclusively to Gainesville elected officials under Florida law.
The city is in the middle of selling the trunked radio system to Alachua County and will need to refinance some of its issued bonds, both of which the city says in the lawsuit it cannot do under HB 1645. The existing GRU bond and debt agreements require that the city keep its power to set rates and maintain the utility services.
The city says those existing bonds and debt agreements will be negatively affected if HB 1645 is implemented.
The city also argues that the new law creates city employees who are not governed by the city, including a Chief Operating Officer/General Manager who is hired and fired by the authority. HB 1645 removed the city-appointed GRU general manager, a charter officer position under the city’s bylaws, as of July 1 with the intent to replace the position with the CEO/GM.
However, HB 1645 also requires current general manager Tony Cunningham to stay in place until the new authority appoints a CEO/GM. The new authority will not be officially sworn in until its first meeting on Oct. 4.
The city argues that with the state abolishing the charter officer position on July 1 there’s no budgeted position with GRU for Cunningham to fill so no way to pay Cunningham to continue in his position until a new CEO/GM is appointed.
“A municipality cannot just make up positions and pay people without an authorized budgetary position,” according to the lawsuit.
The city’s suit is not the only legal challenge to HB 1645. Earlier this month, a new nonprofit group called Gainesville Residents United filed suit over the bill, arguing it violates the Florida Constitution and impinges on the free speech of local residents.
-- With reporting from J.C. Derrick