February 8, 2008
Land buyer sues county over firing – Brevard County Whistleblower
By SARAH OKESON
FLORIDA TODAY
A fired government land buyer has filed a whistle-blower suit against Brevard County, claiming he tried to stop a non-profit that negotiates prices with landowners from misappropriating public money.
David Drake was hired as the county’s land acquisition manager for its Environmentally Endangered Lands program in April 2006 but was let go in March 2007, less than a year later.
Drake’s attorney, Maurice Arcadier, said Plaintiff had told the county about problems with The Nature Conservancy, including overbilling and submitting wrong invoices.
“He was terminated for doing his job too good,” Arcadier said. “Basically, the county was getting ripped off left and right. There’s a lot of things that could potentially be corrupt.” Plaintiff ’s former boss, Mike Knight, who oversees the county’s EEL program, said Drake had problems working with The Nature Conservancy.
“He was terminated in his probationary period because he couldn’t develop a cooperative working relationship with The Nature Conservancy,” Knight said. “He wasn’t able to work with them. He was very adversarial with them. It developed into a very nonfunctional relationship.”
Jill Austin, a spokeswoman for The Nature Conservancy, said Drake’s lawsuit doesn’t have any merit.
“The Nature Conservancy reviewed the claims that he made and found them without merit,” Austin said.
The county’s EEL program was established in 1990 when voters approved issuing up to $55 million in bonds to buy land and paying slightly higher property taxes to cover the bonds. Those bonds still are being paid off. In 2004, voters approved a renewal of the program, enabling the county to spend up to $60 million more.
Recent purchases have been marked with public scrutiny of appraisals and questions about whether taxpayers are getting the best deal possible.
County commissioners let two deals lapse last month that would have paid $24.2 million for two Scottsmoor-area properties, prices that were more than twice what the owners paid during the hot real estate market of 2004 and 2005.
Drake said in his lawsuit that he told Knight he suspected The Nature Conservancy of misappropriating funds and that Knight tried to silence him. Drake said he suspected that Knight was also “involved in the illegal acts” and that he also reported the suspected violations to Don Lusk, the parks and recreation director, and to County Manager Peggy Busacca.
The Nature Conservancy has a three-year contract with Brevard County for up to $278,000 a year. The contract runs through Sept. 30 and can be extended.
Drake seeks damages of at least $15,000, back pay and compensation for job-search costs and loss of benefits, his complaint in circuit court says. He filed suit last April and the case is pending.
Contact Okeson at 242-3673 or sokeson@floridatoday.com.
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April 6, 2008
Section: NEWS
Edition: Final/All
Page: A01
EEL deal breeds controversy
SARAH OKESON
Staff
Florida Today
When environmentalists were trying to persuade voters in 2004 to pay higher taxes so Brevard County could spend another $60 million to buy land for conservation, they needed cash for campaign ads and mailings.
Most of it came from one source: The Nature Conservancy, a national environmental charity that holds a three-year contract for up to $834,000 to negotiate with the owners of land the county wants to buy to preserve from development.
More than three years after the yes vote, the contract is under intensifying scrutiny. Internal county e-mails and letters, audits, contracts, bills and a whistleblower lawsuit, among other public records, show that some inside county government have criticized the terms of the land-buying deal for years.
Of particular concern: the contract lets The Nature Conservancy bill the county every three months for lump-sum payments without submitting receipts or supporting documents required by most government contracts.
The county agreed to the unusual contract terms even after a previous audit identified a possible and after auditors recommended increased oversight of the work and the bills. The Nature Conservancy and county officials in charge of Brevard’s Environmentally Endangered Lands Program say the nonprofit organization has met the contract’s requirements and its expenses are legitimate.
“We’re proud of what the conservancy and the EEL program have accomplished together,” said Keith Fountain, the lawyer who manages land negotiations for the Florida chapter of The Nature Conservancy.
One former county worker says he was fired after he complained to his bosses that The Nature Conservancy was not following its contract and that a county supervisor and an employee of The Nature Conservancy allowed a “gross waste” of taxpayers’ money. He is suing the county.
Lingering issue
The contract issues are a get their money’s worth out of the program to buy environmentally sensitive land. The 13-page contract includes a sample bill with blanks for total costs in broad categories such as salaries, travel and communications.
Neither the form nor the contract requires the group to detail or submit documents to back up its costs. In fact, the contract states the county “shall not require any additional documentation for payment.”
A look at the bills the county has paid illustrates the issue. The bill for work done from October through December 2006 totaled $43,294. It lists $30,415 for salaries, $3,355 for travel and a 22 percent charge for “indirect costs,” among other fees. Such surcharges are not unusual in
government contracts.
What is unusual is the lack of supporting documentation. There is no itemization of spending and few receipts to prove business expenses or other documentation common to most government
service contracts.
Steve Stultz, the county’s central services director, said most county agencies require documentation.
“We routinely require proof of their costs, but it would be on a contract-by-contract basis,” he said.
Under its contracts with Miami-Dade and Palm Beach counties, The Nature Conservancy is required to turn in receipts or paid invoices.
The Brevard County contract requires The Nature Conservancy to open its books if the county asks to see records, but at least one county employee and auditors from Clerk of the Court Scott Ellis’ office said the group failed to do so when asked.
“The underlying issue was, ’What did you do for those hours?’ ” said David Drake, who filed a whistleblower lawsuit against the county saying he was fired from his job overseeing landbuying for the county’s Environmentally Endangered Lands program because he persistently raised concerns about the arrangement.
“I felt frustrated by the lack of accountability on The Nature Conservancy’s part, especially because they had such a professional reputation.”
The Nature Conservancy and county officials said the organization is submitting the bills as required by the contract. Mike Knight, the county’s program manager for EEL, said the county adequately oversees spending.
“They keep very accurate records, and we evaluate the appropriateness of the charges,” Knight said.
So far, The Nature Conservancy has collected $434,616 in fees and expenses from the county under the 2005 contract.
The Nature Conservancy got the current contract in September 2005, but it has handled Brevard County’s negotiations on and off since 1993, shortly after the start of the EEL program.
County commissioners picked the nonprofit group after a committee reviewed proposals from six organizations. The price and terms were negotiated later. The deal calls for The Nature Conservancy to handle communications with landowners, scouting property and coordinating appraisals with the county before recommending a negotiating strategy. The county pays all the expenses.
Only such deal
No other county program hires an outside negotiator to make land deals, Brevard County Manager Peggy Busacca said. The Nature Conservancy has had land-negotiation deals with at least six other counties in Florida.
“It was felt that having someone who specializes in these types of negotiations would allow us to acquire land for less money and in a more efficient manner,” she said.
The terms with each county are different. For instance, Miami-Dade and Palm Beach County required more documentation of expenses. And both counties paid less than Brevard for the service.
Miami-Dade’s two-year contract pays the charity up to $254,076 a year with an increase of up to 3 percent this year. Palm Beach County paid a 1 percent fee for negotiations when acquisitions cost the county less than the appraised value of the property. Palm Beach’s bill totaled $160,171 from 2004 to 2007. The Nature Conservancy isn’t negotiating any more purchases for Palm Beach County because its bond money has been spent.
Overall, local officials say they are happy with the contractor’s work.
“It has always been my impression that they were trying to do a good job,” said former Brevard County Commissioner Ron Pritchard, who often scrutinized EEL. “I never saw anything that would be considered less than honorable.”
Drake disagreed.
Audit struggle
Hired to oversee environmental land acquisitions after a critical county audit, Drake said he had trouble getting The Nature Conservancy to document what it did for hours it billed.
In a July 2006 quarterly review, Drake gave The Nature Conservancy low marks for an invoice and not providing the county enough information about negotiations.
“Day-to-day communications is labored and inefficient, adding delays to most tasks. Contractor is regularly unavailable or nonresponsive,” he wrote. Knight did the evaluations after that, giving
satisfactory reviews.
Drake said the contractor regularly canceled meetings with him and never allowed him to attend negotiations with landowners. He said he found The Nature Conservancy was misrepresenting hours on a bill, and he was never asked to review the bills again.
In December 2006, Drake questioned why an appraiser valued land as lakefront property when Drake said it was not on a lake.
“If we send TNC the appraisals to review, and they go on the site visits, and we pay them for their expert advice and negotiation ability and real estate acumen, why are we paying waterfront prices for land on a bog?” Drake scribbled on one report. “. . . Please tell me that I am not the only one who sees this as a serious problem.”
County commissioners voted unanimously in April 2007 to buy the property for $67,000. An auditor’s report pegged the value at $32,467 and said the appraiser did not factor in past sales at auction or for back taxes.
In January 2007, The Nature Conservancy suggested starting negotiations for land near Buck Lake Conservation Area at $25,088 an acre. The suggested price was 96 percent of the appraised value and more than double what the owners paid for it less than two years earlier.
“What is so tough about negotiation that we have to hire an expert at $53 an hour to start negotiations at 96 percent of appraised value?” Drake penned on the paperwork.
Later that month, he e-mailed Knight, “I have grave concerns about accepting the negotiation strategies as presented, and I fear that the way they were presented leaves EEL open to scrutiny from anyone who examines the record closely.” Knight tried to fire him the next month.
“I believe these and other activities I witnessed and documented over the previous 10 months encompass a pattern of gross waste of public funds and gross neglect of duty,” Drake later wrote Busacca.
Personal conflict
County officials portray the problem as a personality conflict between The Nature Conservancy’s Fountain and Drake, who were known to yell at each other. “The two of them could not get along,” Knight said. “. . . It reached a point where they weren’t even willing to communicate by phone.”
Drake was terminated March 29. He has since sued, saying he got fired for alleging that The Nature Conservancy and county officials are wasting tax dollars.
Fountain declined to discuss the specifics of Drake’s lawsuit.
Drake was not alone in his concerns.
Auditors for Ellis, who has been a longtime critic of the EEL program, have been raising questions about Brevard County’s relationship with The Nature Conservancy since at least 2004.
That year, an audit of EEL by Hoyman Dobson found an “effective overpayment” of $107,373 more than the charity spent from 2001 to 2004. The audit said no one at the county noticed. The audit faulted the county for not clearly defining the responsibilities of the contractor and the county.
Another audit in 2007 by the same firm questioned $2,836 in travel expenses and $203 for software for The Nature Conservancy.
Auditors also contend The Nature Conservancy is negotiating inflated prices for conservation land and basing its recommendations on appraisals that are not taking into account the real estate downturn. Ellis’ auditors are continuing to try to get records needed for an audit of expenses.
Contact Okeson at 242-3673 or sokeson@floridatoday.com.
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EEL spending
— Voters approved $60 million in bonds for conservation land purchases in 2004. So far, the county has spent $30.7 million.
— County commissioners were set to spend most of the remaining funds earlier this year. However, they dropped plans to pay $24.2 million for two Scottsmoor properties in the face of public criticism about whether the land was overpriced.
— The county still has $31.3 million in the bank from the bonds from the 2004 referendum and leftover funds from an earlier referendum.
— The county could get $15 million more. The county sold only $45 million of the $60 million in bonds OKed in 2004.
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Events in the EEL expenses debate
For graphic by T. Standish, FLORIDA TODAY, see PDF link below or microfilm.
Attorney: Maurice Arcadier
Status: Resolved
Date Filed: 2007-11-01
Our Melbourne office is centrally located in Brevard County, enabling our lawyers to serve clients throughout “the Space Coast”, including Cocoa Beach, Palm Bay and Vero Beach.
