BY MARK SCHUMANN

Try as some might, it is impossible to ignore the fact that the city’s transactional attorneys have already charged more than $1 million for some 2,000 hours of work.  But according to their billing records, they have only spent 25 hours addressing key issues with the Florida Municipal Power Agency.

And try as some apologist for the Council troika might, it is hard to explain away the fact that the city’s legal costs are now three times the original estimate, with no end in sight.

To hear FMPA representatives tell it, between phone calls and two face-to-face meeting – one held last year and another early this year – they have had no more than 12 hours of discussions with the city’s transactional attorneys.  Most of that time was spent listening to tortured reasoning for why the city isn’t actually selling its electric system but is merely abandoning its assets.  This overly clever “college try” followed an early attempt to suggest that the city is simply dumping surplus power. 

“Crazy” is the word Councilman Jay Kramer used to describe the transactional attorney’s strategies to date; and “crazy” is also the word Kramer used to label the Council’s decision to authorize an additional $300,000 for legal fees.

Having spun its wheels trying to find a way around the FMPA contracts, rather than addressing them more forthrightly, the city is literally years away from closing this deal.

The simple, puzzling truth is that the city’s transactional attorneys are still more than a month away from a target date for merely “agreeing to a plan of action for obtaining FMPA and related FMPA approvals.”  Yet, without any clear sense of how to resolve the city’s contractual obligations to its fellow FMPA members and bondholders, the Council troika and FPL have already signed an asset purchase and sale agreement – negotiated at great expense to the city.

The transactional attorneys are now into the city for $1.4 million, but they have yet to offer workable solutions to resolving the legitimate concerns FMPA officials and representatives of their bondholders have to a deal that doesn’t conform with the contracts the city agreed to when it joined the FMPA.

Whatever world the Council troika and their chosen transactional attorneys live it, it does not seem to be a world where facts matter.  For, try as they might to convince the public otherwise, the city is almost surely going to remain a member of the FMPA’s All Requirements Project through September 30, 2016.  That inconvenient reality doesn’t keep the transactional attorneys, City Manager Jim O’Connor and the Council troika from continuing to offer assurances they are working toward a target date of early 2014 for closing the deal.  That is just not likely to happen – and for good reason.

Try as some might to pretend otherwise, the city is responsible for contingent liabilities in connection with its participation in three FMPA power projects and its membership the All Requirements Project.  If the transactional attorneys and O’Connor have some solution for how the city can cover those liabilities after handing over its customer base to FPL, they are holding their cards close to their chest.  The time has long past to put the cards on the table.

Reading a recent editorial in the island tabloid, I could not help but wonder if the commentary was reflective of a developing strategy to make the FMPA out to be obstructionist.  Another take on what has and has not happened to date is that the city is simply unwilling to accept the fact that it is seeking to leave the FMPA in a way that would put additional risk and burden on the FMPA and its bondholders.

Perhaps it is instructive to note that at least one of the transactional attorneys now working for the city at $500 an hour once led the City of Lake Worth into a legal battle with the FMPA – a battle for which Lake Worth leaders eventually apologized.

Whatever “path forward” the transactional attorneys and O’Connor may find for resolving the city’s contractual commitments to the FMPA, its member cities and its bondholders, it likely won’t be a path that leads through the courts.

Trying to intimidate the FMPA won’t clear the way forward either.

Regarding the FMPA’s willingness to protect the interests of its members, perhaps it is also instructive to note that the joint action agency successfully sued FPL in the mid 1990s for violation of anti-trust laws.  FMPA won the case on summary judgment – meaning that after reading the filings the judge rendered a decision without even needing to hear the case agued.

Whatever differences the city and its transactional attorneys have with the FMPA over interpretation of the contracts, the issues will not be resolved in the court of public opinion.  Continuing to try to make FMPA out to be a scapegoat is, at best, counterproductive.