Attorneys and their opinions

As everyone is probably pretty well aware, we've been anxiously awaiting a letter, requesting the opinion of the Attorney General. We (being the citizens of Cape Coral) wanted to know if the Auditor General was right, or if the City Management was right, regarding the recent audit performed by the State. You remember the one, where we get to 'respectfully disagree' with each other?

We can't help ourselves, we're human. We want to find answers when two individuals, or groups of individuals have different opinions. We want to know which opinion most closely matches reality. I think we'd all be a bit happier knowing one way or another. There was of course, an option which allowed this. Our City Council could request an opinion of the State Attorney General.

Sounds simple enough, doesn't it?

Well, of course, it's not quite that simple. The council approved an action which allowed one finding to be questioned. Finding number 20. This finding, according to the synopsis was:

"The City did not fully comply with provisions of Section 287.055, Florida Statutes, in procurement of its contract for its utility expansion program. Additionally, invoices submitted for payment by the contractor were not adequately supported. Finally, the City’s consultant hired to audit selected work authorizations relating to its utility expansion program included several findings and made several recommendations."

The City Attorney took this opinion, sharpened her pencil, and came up with:

"Where construction manager at risk or program manager at risk services are procured, pursuant to local ordinance which conforms to the requirements of 287.055, Florida Statutes, for the design and construction of a multi-phase utility project, would 287.055(9)(c) preclude the negotiation of a guaranteed maximum price and a guaranteed completion date based on competitively bid subcontracts for each phase of the project?"

She then included an entire "Memoranda of law" which went on to fully illustrate the City's official position. In the position, our City Attorney states quite clearly that the City built it's own rules for bidding using "the most pertinent provisions of CCNA".

So you'll see that she is trying to justify her own statement, within the question, when she says that our "Local ordinance which conforms to the requirements of 287.055..."

Notice what's missing there? I didn't either at first. It took a few reads to really understand. Here's what's missing, The Auditor General was kind enough to point it out in his own rebuttal, to our fine City Management's rebuttal:

"However, the point of our comment was that no documentation was available to demonstrate such evaluation occurred. Specifically, the City did not provide evidence that the contractor was appropriately licensed as of the date of the City’s evaluation."

In addition, what appears to be missing is the entire foundation of the argument. Is it even legal to supersede a state law, set to ensure regularity within municipalities? What gives a municipality the right to overrule the State, in a rule, created to control the municipality?

So we're left with real issues on the table. Is the City right in its stance that we are able to write our own rules for contracting? Is it right that the City did not provide evidence of the contractor licensing process?

These questions will not be answered by the letter to the Attorney general, in it's current draft. We need to urge the Mayor and Council to request an opinion which more closely matches the needs of our City.