Prosecutorial Timidity For White Collar Crimes: Long Term Costs to Residents

[Dwight Hines]

Prosecutorial Timidity For White Collar Crimes:
Long Term Costs to Residents
Seventh Judicial Circuit
St. Augustine, Florida
July 24, 2008
Dwight Hines


The Seventh Judicial Circuit for the State of Florida includes Putnam, St.
Johns, Volusia, and Flagler Counties.  The State Attorney for the circuit,
as in all circuits of Florida, is elected to prosecute violations of the
law.  In the past three years, and likely much longer, the present State
Attorney for the Seventh Circuit,  John Tanner, has not prosecuted a single
individual for failure to comply with the Florida Public Records Act
(Chapter 119, Fla. Stat. (2007).   Such failures to prosecute these white
collar crimes not only cost the tax payers large sums of money, as we shall
see for the City of St. Augustine, but also violate fundamental rights of
the people who live, or work, or visit the City.  Prosecutorial discretion
is a necessary and integral part of the state attorney's decision system but
when the exercise of that discretion results in costs of millions of dollars
and significant and substantive amounts of pain, it is time for us to have a
state attorney who will practice more balanced law enforcement and not be
timid in enforcing white collar crimes.

State Attorney Tanner is challenged in the present election by Mr. R. J.
Larizza, a qualified attorney who I believe will not tolerate refusals by
government officials to comply with Florida Rules for electronic records
(Rule 1B-26.003, F.A.C.) or Florida laws on open records (Chapter 119, Fla.
Stat.) or Florida laws on Open meetings (Chapter 286, Fla. Stat.).

Examples of violations, like the multiple public record requests for
information to the City of St. Augustine that resulted in a denial that
records for city vehicles existed.   Indeed, false affidavits were filed in
circuit court, in response to an open records civil suit, that not only were
the City computers unable to print information that was on the computers but
that the computers did not remember what information they did contain.

Even though the City produced huge boxes of data on city vehicles at the
first hearing, the state attorney's office failed to prosecute anyone in the
city for filing false documents or for failures to comply with the open
records act.  It made no difference to the prosecutors that after the open
records suit was filed, it was revealed that the City had been dumping tens
of thousands of square yards of toxic materials into the old City reservoir,
in violation of state laws.   The City was fined by the Florida Department
of Environmental Protection, but the case on how to best deal with the mess
created is still  in litigation, which is costing tax payers money. It is
not odd that the City has refused to provide documents on how much the
outside attorneys are charging for representing the City, but it shows they
have no fear, and probably little respect for, the state attorney.  The
amount of money, not including legal fees, laboratory fees, and restoration
costs and monitoring, for just the illegal dumping in the old City reservoir
is over $1,000,000.   The total bill is still increasing and it will be
impressive.

A second example of how failure to enforce white collar crimes, like the
open records and open meetings acts, is that the City was recently found to
have ignored repairing the pipe that discharges treated sewage water into
the Matanzas River and associated marshes, for five years.  What compounds
these violations in notifying the Fla DEP, for which a $31,000 fine has been
initially assessed, is the violation of the Florida Open meeting laws when
the City Manager, Harriss, met individually some years ago to tell the
commissioners that the pipe was broken and that it would be too expensive to
repair.  The commissioners agreed and nothing was done, not even
notifications as required by law, to the DEP.  This is not a new way of
compromising city commissioners, but if their meetings had been open, they
would not have flouted the laws so boldly.

The broken pipe, and reports now state that the pipe was broken in numerous
places and the last 120 feet had disappeared, becomes more important when it
was discovered last week that the City sewage treatment plant in 2006 had
several months of high levels of E. coli discharged through the pipe and
into the marsh.  Again, there were no notifications to the public, and no
signs posted in the river or on the marsh about the real hazards of fishing
and swimming in the area.   The unacceptably high levels of cyanide that
were also detected were not persistent, but there were no public warnings,
and no notifications to the police or fire or health departments, as
required by law and common sense.

The cost to replace the pipe will be in excess of one million dollars and
the City commission recently met publicly and approved the spending of the
money in a public meeting.   There was no mention of any violations by the
commissioners or the city manager, or of past individual meetings to not
repair the pipe that the City Manager bragged about to the newspaper.
Indeed, the city manager and commissioners seem to feel that they saved
money by hiding the broken pipe from the public and DEP, they believe they
figured out how to replace the pipe at a lower cost than their estimates of
five years ago.   They don't figure, as farmers have to figure, that when
you degrade the land, even marshland, it costs to get things back in shape,
if that is even possible.  Of course, there are also no costs included for
the harms to humans included in their calculations.

What is appalling is not only are these illegal and stupid violations a
crime against all of those who respect our environment, but a mean insult to
those who use the rivers and marsh for recreation and fishing.  The facts
that these violations are also environmental justice violations because the
locations of the toxic dumpings are adjacent to traditional Afro-American
neighborhoods.   But, we don't want to raise questions with the state
attorney about equal treatment for minorities when there are fewer
Afro-American businesses in St. Augustine than there were in the 1960s, and
the practice of hiring Afro-Americans in the fire department and most other
city departments doesn't happen, so no one asks why the number of blacks in
the City have been declining over the decades since the 1960s.

Yet, there may be a higher order of natural justice coming into action now,
the type that the old preachers, the Bible thumpers, warned about years ago,
the type of justice that Rachel Carson wrote about, that there'd be a
reckoning, that all the little harms, all the wrongs, would accumulate and
take all of us down equally.   The woman who told me this week that small
fish, crabs, and coquina have disappeared or are significantly reduced in
number at the Matanzas River outlet to the Atlantic Ocean may be the
accumulation of ecological impacts of the illegal discharges by the City
upstream, and these negative impacts may have arrived at the expensive ocean
front homes.   We need more data, valid and reliable biological information
on plants and animals that were exposed to these events because E. coli can
survive at unacceptably high levels in natural systems for extended periods
of time.

It is difficult to imagine how the City manager or the city commission would
have allowed all these white collar violations if they had known the
violations would become public.  Presenting the real costs for the City to
remedy the violations, including ecological restoration, would never have
been approved by the people of St. Augustine.

The increase in millage for the City taxes this year would not have been
necessary if these simple white collar laws had been enforced and if people
knew the laws were going to be enforced.

When you hear of a blue collar crook complaining that although he stole a
car, and he says it shows something is wrong about him being in jail and the
men who wasted millions of tax dollars by their secret dealings are still
getting paid high salaries, are still driving around in a City paid SUV, and
still burning gas bought by the City, aren't going to be prosecuted.    "Hit
ain't right."   If we could put a price on trust, the failure to enforce the
simple white collar laws on open records and open meetings would put us into
spiritual bankruptcy.

What we still don't know is how much all of these illegal acts, acts that
create avalanches of violations after openness is repeatedly violated, are
causing plain physical harms to plants, humans, and other animals.

dh


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