BY: Diane Kobernick
Below you will find the complete response to the presentation given by Pasco County at the Gulf Harbors Civic Association clubhouse on Oct. 30, 2018. This commentary refers to a powerpoint slide show put on by the county, which is included in its entirety in another post on this page, and addresses the issues brought up in that slideshow. It is helpful to refer back to those slides when reading this commentary. So Diane’s response is as follows:
For all those that have been asking so many questions, I will address the County’s PowerPoint presentation in the meeting of Oct. 30, 2018, sponsored by the Gulf Harbors Civic Association. As many know, I was accused at the meeting of giving out misinformation. YOU decide.
The Slide numbers below refer to the slide numbers of the PowerPoint presentation put on by Keith Wiley and Nicki Spirtos, which is posted on the Gulf Harbors United website. In the presentation:
- Slide 2: Wiley indicated that the golf course closed in 2011.
- In fact, the golf course closed in 2006. This date is part of the official court records.
- Slide 7: “An ELAMP purchase would not allow for general access, or any park amenities”.
- Page 19 line 24 of Mr. Wiley’s deposition: Question from my attorney, “Has there ever been a time when ELAMP has used funds from the Penny for Pasco project for projects that are not accessible to the public?
- Answer from Keith Wiley “NOT TO MY KNOWLEDGE”. A direct contradiction.
- Same slide 7: “an MSBU would allow for a private park with amenities”
- Slide 11: “access to the Park ..will be limited to the owners of each Assessment Unit”.
- There are 3 issues with this. Access to the Park limited – again HOW
- How will you deny access to the taxpayers who paid the Penny for Pasco? They are contributing the $600,000 from ELAMP’s budget, which comes from Penny for Pasco.
- How will you deny access to Gulf Harbors Villas – those pink villas will not be assessed for the MSBU but are part of Gulf Harbors Civic Association through mandatory dues?
- Slide 12: Highlighted were the restrictive covenants prohibiting development.
- But NOT highlighted was the part “including but not limited to, the actual costs of land acquisition, ongoing maintenance of the Park and Property or other passive natural resource based amenities or other capital improvements or expenditures…”
This is the part of the MSBU that says that our costs will be more than just the $600,000 for the purchase; it will be that and everything above that.
- Slide 13: Contract contingencies were included:
- COMPLETELY OMITTED was paragraph 7 of the Purchase Contract.
- Paragraph 7: “This Contract is contingent upon (a) a vote by the residents of Gulf Harbors/ Flor-a-Mar, approving by a vote of more than 50% by written ballot, the purchase price and the creation of a MSBU to fund all costs in excess of $600,000. Including the annual maintenance of the property, and (b) adoption by the Board of County Commissioners of an ordinance….”
- Slide 14: The County has in fact stated the full Paragraph regarding the responsibility of clean soil. However….
The County completely omitted paragraph 10
“Or may also close the sale in the same manner as if no such Contaminants had been found:
- Slide 15: “optional improvements to be recommended by the Advisory Committee”:
- There are a few issues with this:
- There are no definite plans on how the County will appoint the Advisory Committee
- There are no guarantees that anyone from our subdivision will be on the Advisory Committee, or how many will be on the Committee. This is where I would love to make sure this is well planned and we are not subject to the whims of just a few.
- There are no guarantees that the recommendation of the Advisory Committee will be the deciding factor on what get done or not done on the property. It will only recommend and the Board of County Commissioners has full authority to accept or reject, or make their own plans. (please see any BOCC meeting where the citizens have been against a project and see how it is handled)
- Slide 17: The improvements/costs are optional
- If these improvements/costs are optional – why are they being charged now at the creation of the MSBU? And how did they come up with that estimate?
- Also Slide 17: Costs: NOTE “AN EXAMPLE of the POSSIBLE MSBU COSTS”
- The costs for Annual Operations and Improvements assume only $46,000. If this cost is higher, or the costs to purchase (such as closing costs etc.) are higher, the annual assessment could go up, maybe substantially. THERE IS NO CAP. (A FACT CONFIRMED BY MS. SPIRTOS AT THE MEETING)
- Slide 19: The ballot results
The County has maintained that the vote passed by 57% – my audit showed differently, and that is part of the lawsuit that still must be decided at trial.
The following was from Ms. Spirtos:
For those asking what Ms. Spirtos was alluding to by calling my actions complaining; in legal terms when you file a lawsuit it is called “A Complaint”, and the legal terminology is that a Plaintiff “complains” about the actions of the Defendant, it does not refer to petty grumbling as some may have got that impression.
Slide 21: In the lawsuit, Susan and I challenged the MSBU ORDINANCE.
- Both of us having read the MSBU in its entirety saw the dangers that were looming in the ordinance.
Slide 22: Ms. Spirtos referred to a “second attorney”
- Spirtos failed to mention the reason a “Second” Attorney was hired. After Susan had to remove herself because she moved out of Gulf Harbors, I hired an attorney to continue. This attorney became very ill and felt that he could not give any case his full attention.
- A request to the County and to the Intervenor’s attorney to give me a 30 day extension to find a new attorney and allowing that new attorney to properly review the case, was DENIED BY BOTH, even though it is customary and professional courtesy for attorneys to cooperate in cases like this, particularly where there are medical reasons.
- Fact: within the time my attorney was discovering his illness (December 2017), the County set the trial date for March 14.
- Fact: deadlines for pleadings in the case were imminent when my attorney finally disclosed his illness
- Fact: Keith Wiley, ELAMP’s and the County Representative, was scheduled for deposition January 25th and the first attorney did not feel strong enough to do it
- Fact: on January 10, 2018 the County and the Intervenors filed for Summary Judgement
- Fact: on January 11, 2018, I filed a motion to compel the County to produce the Production that was due December 26th and still not received
- Fact: I was able to acquire a new attorney and it was very fortunate that he was capable enough to sift through all the pleadings fast enough, even without the requested extension that the County and Intervenors denied.
- The Amended Complaint was drafted by the present (second) attorney. In drafting it, claims were dropped or added at his discretion. Although Susan and I did a good job defending this as “pro-se” (on our own), he felt that we had missed some more important issues that he wanted to litigate.
Slide 23: Ms. Spirtos # 1: BALLOTS:
- My claim, and I did do a full audit, is that the County did not conduct the ballot counting in accordance with existing law
- Fact: the County did count some YES votes received after the deadline
- Fact: the County did NOT count some No votes received after the deadline
- Fact: I challenged the County on some Yes votes that I was unable to verify
- Fact: that unsigned Yes Ballots were counted
There were 14 pages of questions in my deposition regarding the ballot counting. Ms. Spirtos chose to “cherry pick” just a few of the questions
# 2: Contamination costs:
- The County keeps hammering that the “SELLER” will pay for the clean-up. Yet we have documents between residents of Gulf Harbors and Ms. Starkey, Mr. Keith Wiley and Mr. Hobby, stating the owner(seller) has no money or means to do the clean-up.
I repeat: The County completely omitted to point out paragraph 10 of the Purchase Agreement:
which says in regard to the rights of the county:
“Or may also close the sale in the same manner as if no such Contaminants had been found”
Since the County has introduced some of my deposition, at this point, I would like to introduce some additional questions by Ms. Spirtos from my deposition
Page 107 lines 19 to 21 of MY DEPOSITION
- Question from Ms. Spirtos: “Would you agree that a buyer can waive a condition precedent to closing?”
Page 108 lines 7 to 9 of the same deposition:
- Question from Ms. Spirtos: “Just because you have the right to perform the inspection, doesn’t mean you have to perform the inspection, correct?”
It would appear that Ms. Spirtos was trying to get me to acknowledge that the county could do whatever they wanted in regard to the purchase contract, including skipping the environmental inspections.
# 3: Misleading Ballots claims:
- This was in fact a new claim that my attorney felt very strongly about. He felt a ballot should be simply either Yes or NO.
Also at my Deposition page 113 lines 19 to 23
My answer to a previous question: “My complaint with the Court was the fact that they didn’t follow their procedures”
- Question from Ms. Spirtos: “But they told you up front that it didn’t matter what the vote was. They told you that in the very first letter.”
I don’t believe this statement of Ms. Spirtos fits the facts or accurately reflects the contents of that letter.
Item 4. Florida Election Law
- This claim is one that my attorney felt was worth pursuing
Item 5. Public Hearing:
- The original BOCC meeting was scheduled August 23, 2016 and no notice was given that it was rescheduled to September 27, 2016
Item 6. Chapter 94
- Even though all our documents and most especially the letter accompanying the ballots indicated “pursuant to Ch. 94”, once Susan and I challenged that the County did not follow the procedures of Chapter 94, the County pled in Court (for the first time) that they changed their mind and chose to follow another rule instead.
Slide 25: The County says it won Summary Judgment on 3 counts, and says a post in GHU incorrectly stated the county lost the summary judgement.
I feel this is a complete misrepresentation.
- Had the County actually won Summary Judgment, the case would be done.
- For a Summary Judgment to be won, the County had to win every one of their issues in their request for Summary Judgment.
- Some of the Counts were in favor of the County – this simply means these issues will not be dealt with at trial.
- However on the main serious issues the county did not win, and so these will be dealt with at trial. So the County saying that they won on 3 counts is misleading, they did not win their Summary Judgment, or in other words, they lost.
Slide 27: The county states that “To date, the Court has not entered judgment in favor of Plaintiff on any claim”
Here too I feel Ms. Spirtos is being disingenuous. The facts are:
- County Filed a Motion to Dismiss – Denied
- County Filed a First Motion for Summary Judgment – Not Granted
- Intervenor’s Filed a Motion for Summary Judgment – Not Granted
- County Filed a Motion to be allowed to serve me 100 Request for Admissions (30 is the permitted number) – Denied
- My Motion to Amend the Complaint by my new Attorney – Granted
- My Motion to Continue filed by my new Attorney – Granted
- Motion in opposition for Continuance by County and Intervenor – Denied
- County filed another Motion for Summary Judgment – Granted in part – denied in others (this is discussed in Slide 25)
- Technically, the way it works is that a judgment is not entered in favor of Plaintiff on the Motions where the County was denied, they were just denied. But if they were denied then they did not win. Another way to describe that is that they lost.
- This slide is a perfect example of how the County spins events to make it look like they won by choosing their words very carefully. The fact is they lost, regardless of the words Ms. Spirtos uses.
Slides 30 to 33: These show specifically chosen sections of my deposition.
- An exhaustive and detailed audit was done solely by me.
- The first attempt at an audit done at ELAMP’s office proved to be unsuccessful due to all the errors found
- A few of your neighbors and I went back 2 more times to get an accurate count and were still unsuccessful, but that was due to the way the ballots were stored
- The problem with how the ballots were stored was that ballots were bundled together in groups with a number count. Many of these bundles’ counts did not match ELAMP’s count.
- The complete audit was done when I finally got ELAMP’s spreadsheet which indicated how each owner voted, and had the mailing information. Then I was able to compare that to the actual ballots. This was a process that took many hours to tabulate. Since I knew that I would have to testify to this, I chose to do this full audit myself.
- Fact: There were 14 pages of questions regarding the ballot counting. Spirtos chose to “cherry pick” just a few of the questions.
Slide 31: Plaintiff took No Notes
Ms. Spirtos chose to add this to the presentation.
- Why? This is misleading.
- The question asked was: “Did you take notes that day?”
- I Answered: “I did not.”
- I answered the exact question asked, but if you read the rest of the deposition it would reveal that the ballots were so disorganized that I had to return another day to try again. Taking notes at that time was pointless.
Slide 32: Plaintiff’s friend gave up and left without counting all the ballots:
- This is also misleading.
- Fact: The ballots were so disorganized that we could not successfully count them that day when we first went.
- Spirtos failed to mention that we did finish the counting once I received the ELAMP spreadsheet to go by.
Slide 33: Plaintiff claims YES votes with comments should not be counted
- As one example of the problem with comments, there were ballots that checked YES, but had a comment that they did not want the County involved. This is clearly not what the ballot was asking them to vote on, but it was still counted as YES.
- Another example is ballots with comments that were very obviously not in favor, but the voter forgot to check the NO box, so it was not counted.
- This said, after comparison of the ballots to ELAMP’s spreadsheet, errors were found on the spreadsheet where it did not match the actual ballot.
Slide 35: “Most of the soil samples are below the target levels for residential uses.”
- Fact: several of the soil samples are ABOVE the Florida DEP (Dept. of Environmental Protection) clean up target level, which is 2.1 mg/kg for arsenic
- Fact: I have personally met twice with the DEP staff to understand and ask questions about contamination and the DEP Procedures
- Fact: there are levels of arsenic that are at 20.8, 6.45, 18.2 etc. I have the actual report and anyone can ask for it from the DEP
- Fact: there are 3 monitoring wells installed on the golf course that monitor the arsenic level in ground water, showing the presence of arsenic
- Fact: the owner’s Environmental specialist found contamination above target levels
- Fact: Atkins, hired by the County to analyze both the county’s and owner’s environmental reports confirmed some contamination above target cleanup levels
Slide 37: “Plaintiff claims that the MSBU would be responsible for environmental cleanup is FALSE.”
- I repeat: The County keeps hammering that the “SELLER” will pay for the clean-up. Yet we have documents between residents of Gulf Harbors and Commissioner Starkey, Mr. Keith Wiley, and Mr. Hobby, stating the owner (seller) has no money or means to do the clean-up.
I repeat The County completely omitted paragraph 10 of the Purchase Agreement:
“Or may also close the sale in the same manner as if no such Contaminants had been found:
- Ms. Spirtos and the county are saying the Seller will pay, even though the Seller has no money, and the county has the ability to close on the purchase even with the contamination in place. Once the purchase is closed, the lienholders will be paid, and they are gone. At that point there is no ability to reduce the purchase price to charge the Seller for any contamination. So if there is any remediation needed after the purchase, WHO WILL PAY FOR IT? The MSBU states that all costs will be paid by the MSBU, so if the county did not get the money from the seller before the purchase, guess who will be left holding the bag?
Slide 38: “As part of County’s due diligence, a Phase 1 and Phase 2 was ordered”
- Fact: The County closed on Timber Oaks golf course 2 years prior WITHOUT doing this due diligence
- Fact: The County closed on Magnolia Valley golf course, and per many public records requests, the County has still not done any Environmental reports
- Fact: the first Environmental Report was given to the County November 30, 2016, AFTER Susan and I filed the lawsuit to challenge the MSBU, and AFTER the date the county had planned to close on the purchase
- Fact: Susan and I received a copy of Phase 1 and Phase 2 together only in February 2017
Slide 39: “… 4.7 million, that’s no longer $100 a year.”
- Curious as to why Ms. Spirtos chose this quote
- Fact: the County received a letter from their own environmental specialist, Universal Engineering, stating the cost of remediation could cost anywhere from $315,000 to $4.7 Million.
- Obviously that would more than $100 per year
Slide 40: “Plaintiff’s lawsuit claims the ballots were not legal…”
- This was a claim my attorney chose to add to our lawsuit. I defer to my attorney to argue this claim, so I cannot comment on the legal argument.
Slide 41: “There will be no closing if the remediation is not completed by the Seller”
- This section was added to the purchase contract only in 8/29/17, one year after the MSBU was passed. (The MSBU still says all costs will be paid by the MSBU.) This section was added by the county with no prior public disclosure, comment or input. There is nothing preventing the county from changing it again. The original purchase contract still says that the county can close on the purchase regardless of any contamination.
Slide 42: “Statements Made on the Gulf Harbors United.Org website”
- I stand by this post as being accurate. Early September 2018, I met with officials of the Florida DEP in Tampa. They were Mary Yeargan, Pamela Vasquez, Yaisa Angulo and Shannon Herbon. One of the topics discussed was “delineation”. The testing protocol as it was explained to me is that the environmental company takes soil samples, gets the samples analyzed, and continue the process until the results of the soil samples show no contamination at the location of the sample. TO GET TO A CLEAN SAMPLE, THEY MIGHT NEED TO GO OUTSIDE THE PROPERTY BOUNDARY
- I fail to understand why Ms. Spiros makes the statement that “There will be no testing on private property.” The procedure described in the GHU post is exactly how the DEP explained it to me.
Slides 44 & 45: “Florida’s Election Laws”
- My attorney chose to add this to our lawsuit, and I defer to my attorney to argue this claim. I am not qualified to comment on the legal argument, nor is the general public,
- I don’t understand this attempt to argue a legal issue in a public forum.
Slide 48: “Mediation”
- The comment “it appeared the case would settle” is very misleading.
- I have been fighting to protect our sub-division for more than 2 years. Until, and only until, I am able to get written BINDING commitments to protect us all, there can be no settlement.
- Our Community SHOULD be protected from the County’s over-reach.
- There should not be a “loop hole” for the County to use to get around anything that might be agreed to.
Slide 49: “…Plaintiffs spouse announced “the lawsuit very much alive.””
- Why would Ms. Spirtos show this post?
- Fact: The lawsuit has not settled, and is set for trial April 15, 2019, so it is in fact very much alive.
- The fact that “my spouse” exercises his protected First Amendment Right to question our elected officials should not be questioned.
- His facts were correct – the lawsuit is still very much alive – in fact, the County has asked me for more production
- Spirtos has asked to take depositions of 4 of your neighbors. (2 have been dropped for medical reasons). All of these actions are part of a “very alive” lawsuit.
Slide 51: “The MSBU”
There were 6 counts in the lawsuit. The county tried to get a ruling to eliminate all 6 in their Summary Judgment, 2 of which were granted, and 4 of which were denied and still need to be ruled on at trial. The remaining counts set for trial are:
Count 1: The Florida Election Code
- Pasco County failed to comply with the requirements of the statue and otherwise used false, deceptive and misleading Ballot Summary language for the Ballots
- The County submitted a public measure to the vote thus the County was required to comply
- The ballot language is ambiguous, deceptive and misleading on several issues
The County’s Summary Judgment was DENIED on this count, so the trial will determine if the Code applies and if the county properly followed the law in the voting procedure.
Count 2: Challenge to FS 125.
- That other citizens of Pasco County will benefit from the golf course purchase who are not paying for the MSBU
This Count was partially Granted and partially Denied, therefore this issue must go to trial.
Count 4: The County was required to follow Pasco County Ordinances Chapter 94.
The County’s Summary judgment was DENIED on this count, so the trial will determine if Ch. 94 applies, and if the county properly followed it.
- The claim states that the County had to follow Chapter 94 since communications with the property owners stated “pursuant to Chapter 94”
- The ballot results will be a part of this claim.
Count 6: Whether the Florida Election Code applies.
The County’s Summary judgment request was DENIED on this count, so the trial will determine if the Code applies.
Slide 52: Environmental: “When complete, the property will be suitable for passive recreational use, per FDEP standards”
- What is passive recreational use?
- Will that include the possibility of walking trails?
- Will that include the possibility of a dog park?
- Is it possible that other amenities may be proposed?
- Could it be possible that in order to have any of these amenities it will require remediation after the purchase has already been competed, in which case the seller is no longer available to pay for it?
Following are some quotes from my deposition not presented at the meeting:
Page 43 Line 4-5 and Lines 25 +
Ms. Spirtos showed several posts from NextDoor that showed members of the Community exercising the first amendment right of free speech.
One such post read:
- “what a dirty pack of corrupt scum bags”
Questions from Ms. Spirtos: “Did you ask “her/him” to not talk that way about your neighbors?”
My Answer: “No, I would never tell anyone – another person not to talk about – in any way. I don’t tell people how to think and how to speak.”
“Again, if my neighbors are frustrated, however they write, they have a right to say it and I just – fine.”
Page 45 Lines 5 to 11
Ms. Spirtos showed emails between a few of the Community neighbors:
One email read: “For whatever it may be worth, being right is less important than winning:
Question from Ms. Spirtos to me: “Do you embrace that philosophy?”
My answer: “That is a weird question. Do I– it’s not philosophy I ever thought of.”
Question from Ms. Spirtos: “Do you think it’s more important to win than to be right?”
My answer: “I guess it depends on the circumstance, but to be right should supersede winning.”