Biomass Complaint

Update 10:25 p.m.

Although plans for a biomass plant in Tallahassee have been shut down--it seems the issue is not going away. Thursday, vocal plant opponent Erwin Jackson filed several complaints with the state Ethics Commission--hoping it will take a closer look at the deal that tried to usher the plant through as part of FSU's master plan.

Jackson filed complaints against FSU President T.K. Wetherell, FSU Board of Trustees Chairman Jim Smith, Tallahassee Mayor John Marks and Tallahassee City Commissioner Allan Katz. "The question remains now, is there any ethical and legal activities that went on during this whole process?" said Jackson.

A grand jury is also set to review the bio-mass deal next week. Eyewitness News has attempted to contact some of those listed in the ethics complaint. We'll have more as this story continues.

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Press release from Jackson Properties

To: Friends of Southwest Tallahassee
From: Erwin Jackson, Ph. D
Topic: Ethics Violation Filed February 12, 2009

Erwin Jackson has formally asked the State of Florida Commission on Ethics to investigate the actions of several government officials involved in the biomass-mess. The purpose of the request is to allow a neutral party to investigate and determine the accuracy of the following ethical complaints.
Thursday, February 2, 2009 Erwin Jackson filed four separate ethics complaints with the State of Florida Commission on Ethics. Even though the BG&E biomass plant will not be built in Leon County according to S. Glenn Ferris, CEO of BG&E, several legal and ethical questions have been raised regarding the actions of all parties involved. I have referred to these parties as the “Triangle of Deception and Greed!” Specifically T.K. Wetherell, President of FSU and his wife, John Marks, Mayor of the City of Tallahassee, and S. Glenn Ferris, CEO of BG&E.

Last week the Leon County Grand Jury has directed State Attorney Willie Meggs to investigate possible illegal actions of those parties involved in the BG&E biomass plant proposed for Tallahassee. I have formally asked the State of Florida Commission on Ethics to investigate the actions of several government officials involved in the biomass-mess. The purpose of the request is to allow a neutral party to investigate and determine the accuracy of the following ethical complaints. Specific complaints were filed against:

1. T.K. Wetherell, President, Florida State University

2. Jim Smith, Chairman, FSU Board of Trustees

3. John R. Marks III, Mayor, City of Tallahassee

4. Allan Katz, City of Tallahassee Commissioner

Ethic Complaint Documents Below:
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T.K. WETHERELL, PRESIDENT OF FLORIDA STATE UNIVERSITY

The “Code of Ethics for Public Officers and Employees” found in Chapter 112 of the Florida statutes is intended to ensure that public officials conduct themselves independently and impartially not using their offices for private gain.
When we elect or appoint a government official a “public trust” is formed. The Florida Commission on Ethics establishes ethical standards for public officials recognizing the right of individual citizens to protect the public trust against abuse. Unfortunately, too often the public can only trust that our government officials will try to fill their pockets with our money. The questions raised below are based in part on secondary sources and thus will be confirmed or denied by investigators with the Florida Commission on Ethics.

ETHICS COMPLAINT #1

Did TK Wetherell, President of Florida State University and his wife accept any compensation payment or thing of value when they know, or with the exercise of reasonable care should know, that it is given to influence a vote or other official action per Sec 112.313 (4), Fla Stat.

Did T.K. Wetherell actively participate with his wife, Virginia, in securing a biomass plant to be built on FSU property? Mr. Ferris, CEO of BG&E offered Virginia Wetherell a significant financial interest in a $150,000,000 biomass plant. This equity position has been reported between 4 to 10 percent or $6,000,000 to $15,000,000 dollars. This equity position was a “gift,” no payment was expected or paid by T.K. or Virginia Wetherell. T.K. Wetherell, as husband to Virginia, would enjoy equally the financial benefit offered to Virginia.
In exchange for this handsome “gift” or “bribe,” it is believed that BG&E Farris wanted Ms. Wetherell to (1) use her connections with the Florida Department of Environmental Protection (FDEP) to secure required state permits (Ms. Wetherell was previously Secretary of FDEP); and (2) to convince her husband, FSU President T.K. Wetherell, to take actions that would allow a biomass plant to be built on the FSU campus.
Evidence indicates that the “gift” or “bribe” given to the Wetherells yielded favorable results. First, the review and permitting of the proposed biomass plant would routinely be conducted by FDEP regional office in Pensacola. Why was this particular biomass plant selected for special handling at the central state office in Tallahassee instead of routine processing by the regional office? Who made this decision and for what purpose?
In addition, this “gift” or “bribe” also seemed to motivate President Wetherell and FSU staff to actively lobby City Commissioners and staff to support placement of a biomass plant on FSU’s campus. President Wetherell sought help from his long time friend, Jim Smith, past Attorney General and current Chairman of the FSU Board of Trustees, to lobby the Governor and Cabinet for this same purpose. The ownership interest and future profit of this biomass plant would be enjoyed equally by President and Mrs. Wetherell. Did President Wetherell use his position as President of FSU to secure the use of State owned land in order to receive personal financial reward?

ETHICS COMPLAINT #2
Did T.K. Wetherell, President of Florida State University use his official position to obtain a special privilege for himself or others per Sec. 112.313 (6), Fla, Stat. Specifically did T.K. Wetherell use undue influence as President of FSU to coerce City Commissioners to sign a long term contract that would enrich the Wetherells personally?
President Wetherell and Ms. Wetherell, as part owners of the proposed BG&E biomass plant, lobbied City Commissioners and staff to secure a utility agreement with BG&E. Specifically, President Wetherell wanted the City to sign an agreement with his company (partial family ownership interest) to purchase all of the electricity that the BG&E biomass plant would produce. This purchase agreement would result in significant riches to the Wetherells during the 30 year life of the contract. During the first year of the contract the City would purchase $16.5 million of electricity and between $2.1 and $5.5 million of gas. The gross income to the Wetherells and their BG&E Company partners would exceed $600,000,000 during the life of the City contract.
Did T.K. Wetherell give the City an ultimatum if they refused to sign this lucrative contract for the Wetherells? According to City Commissioner Debbie Lightsey, T.K. Wetherell made it clear that if City officials failed to sign this utility agreement he (T.K. Wetherell, President of Florida State University) would have FSU stop buying electricity from the City. “That agreement was something that FSU kind of insisted on,” Lightsey said. “There was a concern that if you don’t help us with this, (FSU) can always go elsewhere for our power. There has even been proposed legislation that would allow universities to get off the local grid.”
It seems T.K. Wetherell made the City Commissioners an offer they couldn’t refuse! It was reported by T.K. Wetherell that FSU spends$38 million on electricity per year. The City would profit about 30% from the sale of this electricity or approximately $12,000,000. If the City lost FSU as a utility customer the city would lose $12,000,000 that is used to pay for the overall operation of the City.
Some Commissioners express some concern over the FSU/City power agreement. City Commissioner Mark Mustian said “I felt the City stretched (for FSU) and I don’t think it’s unreasonable to ask for something on the other side.” City Commissioner Debbie Lightsey was also concerned by T.K. Wetherell’s insistence that the City give FSU a special “T.K. Discount” of between $2 and $5 million per year. This cash payment would be available to only FSU and none of the other large utility buyers in Tallahassee. Commissioner Lightsey summarized the facts succinctly, “FSU wanted the BG&E facility to locate on its property, but wouldn’t sign the lease without this multimillion dollar payment agreement with the City.” The end result of this agreement would require “all our electric customers to pay higher (utility) bills for 10 years.” She concluded, “A great deal for FSU-not so great deal for all our other electric customers.”
In the end, it seems the City Commission caved to the strong arm tactics of T.K. Wetherell. T.K. and Virginia Wetherell and their partners in BG&E would enjoy the riches from a $600 million contract thanks to the City of Tallahassee and at the expense of all City residents.
ETHICS COMPLAINT #3
The self dealing as described in Sec. 112.313 (6), Fla Stat. may also be relevant in T.K. Wetherell’s involvement in the Greater Northwest Florida Economic Development Council.
T.K. Wetherell is paid by the public to be President of Florida State University. While employed by FSU he sought and was chosen to represent Tallahassee/Leon County on the Greater Northwest Florida Economic Development Council. This council is actively seeking taxpayer funding for “energy parks.” This funding would support the development of biomass plants throughout northwest Florida. Should the President of FSU take part in lobbying activities for the purpose of generating public funds for the biomass industry? This activity is especially concerning when T.K. Wetherell and his wife have a financial interest in BG&E. BG&E’s reported goals are to develop biomass plants or energy parks throughout Florida. The more successful T.K. Wetherell is in raising state funding levels for biomass plants, the more money will be available for T.K., Virginia, and their BG&E partners!
ETHICS COMPLAINT #4
Conflicts of interest may occur when public officials are in a position to make decisions which affect their personal financial interests. Section 112.313 (3), Fla. Stat. limits a public officer acting in an official capacity from purchasing, renting, or leasing any realty, goods, or services from a business entity in which the employee, his or her spouse, or child own more than a 5% interest. Specifically, what is the actual ownership interest enjoyed by T.K. and Virginia Wetherell in the BG&E biomass company? Has this ownership interest changed since the formation of BG&E of Tallahassee, LLC? Do any side agreements exist between the Wetherells and long time friends and BG&E business associates and lobbyists Bob Ashburn and Gary Roberts?
In a letter dated January 26th, 2007 to Anita Thompson, Tallahassee City Manager from Virginia Wetherell, wife of FSU President T.K. Wetherell, stated, “In order to resolve any real or perceived conflict of interest, I have withdrawn my business and consulting arrangements from BG&E of Tallahassee, LLC (biomass developer). Ms. Wetherell failed to mention in this letter that she was given for free a percentage of ownership interest in the proposed biomass plant estimated to be valued at $150,000,000 to $200,000,000. Ms. Wetherell was no longer an employee or consultant but rather now she became a partial owner of BG&E of Tallahassee, LLC. Ms. Wetherell stated she owned less than a 10% interest in the biomass plant.
T.K. Wetherell knew of the apparent conflict of interest between his role as President of FSU and that of a partial owner (financial ownership through his wife) of BG&E. T.K. Wetherell as partial owner of BG&E was trying to secure a land lease from FSU at the same time T.K. also happened to be FSU’s President. Betty Steffens, FSU General Legal Counsel, also recognized the apparent conflict and actively sought the assistance from the City of Tallahassee to lease the 21 acres from the State and then sublease the property to BG&E. Jim English was approached several times but refused to get involved due to “regulatory and liability” concerns. Jim English said the city wanted to maintain an arms length “relationship with FSU and BG&E.”
Betty Steffens then explored the possibility of BG&E leasing the land directly from the Board of Trustees of the Internal Improvement Trust Fund. Eva Armstrong, a state employer with State Lands states BG&E could legally lease the 21 acres from the state. However, she cautioned that the process to reach that result would be “very lengthy and potentially problematic.”
T.K. Wetherell and his legal counsel Betty Steffens continued their search for an intermediary to lease the 21 acres for BG&E. Several months later T.K. Wetherell found a willing participant in his long time friend Jim Smith, Chairman of the FSU Board of Trustees and past Florida Attorney General. Chairman Smith agreed to go to the board of Trustees of the Internal Improvement Trust Fund and seek permission for the FSU Board of Trustees to lease the 21 acres from the State and then sublease it to BG&E. According to Jim Ash, Democrat Capitol Bureau Chief, October 18, 2006, “Governor Jeb Bush and the Cabinet approved the measure unanimously without discussion.” The speed of their approval even impressed S Glenn Ferris, CEO of BG&E, “We were quite surprised and quite pleased.”
ETHICS COMPLAINT #5
Did T.K. Wetherell violate Sec. 112.313 (6), Fla. Stat. when he sent FSU police to stop the peaceful distribution of information opposing the building of a biomass plant on FSU property?
A couple of months ago I was passing out information regarding the biomass plant on the bottom floor of the FSU University Center. The first floor has several shops where students gather to eat or purchase items from vendors. Specifically, this information questioned the decision by T.K. Wetherell and others to build a biomass plant on FSU’s campus.
Since T.K. Wetherell has a financial interest in BG&E he would oppose any material that was contrary to his plan to develop this biomass plant. T.K. Wetherell used his position as President of FSU to send police to escort me off his campus. T.K. Wetherell used FSU police to protect his financial interest in BG&E. I was told that I was not wanted on his campus and that if I refused to leave the police officer was instructed to arrest me. My constitutionally guaranteed freedom of speech does not exist on FSU campus if T.K. Wetherell disagrees with its content.
In contrast, a couple of years ago Senator Al Lawson was allowed to distribute reelection brochures on FSU campus and even distribute brochures during a FSU football game. Senator Lawson was not escorted off campus. It seems free speech is only offered to those individuals whose view are approved by T.K. Wetherell.

JIM SMITH, CHAIRMAN
FSU BOARD OF TRUSTEES

ETHICS COMPLAINT #1
Did Jim Smith, Chairman of the FSU Board of Trustees and past Attorney General, violate Sec 112.31 (6), Florida Statute by altering or falsifying a legal binding contract or failed to include essential information that would mislead members of the Board of Trustees and encourage the development of a biomass plant on FSU property. Development of the biomass plant on FSU property would directly result in a financial benefit to T.K. Wetherell, President of FSU, his wife Virginia and other investors in BG&E of Tallahassee, LLC.
During a FSU Board of Trustee meeting on June 6th, 2006, Ms. Betty Steffens, General Counsel for FSU briefed all board members on a proposed BG&E biomass plant that might utilize some FSU property. It was disclosed that Virginial Wetherell, President TK Wetherell’s wife and former Secretary of the Department of Environmental Protection was a “representative” of BG&E. The minutes of this meeting state, “To avoid any unforeseen conflict in May President Wetherell asked Chairman Smith to handle any potential negotiations with the City of Tallahassee and BG&E over leasing University property.” General Counsel Steffens and her staff were asked to assist in developing a lease agreement between the FSU Board of Trustees and BG&E under Chairman Smith’s direction. Minutes from a FSU Board of Trustees’ meeting, dated January 26th, 2007 reported that, “Chairman Smith thanked Ms. Steffens and the staff who worked on the agreement.”
I reviewed the lease agreement between FSU Board of Trustees and BG&E. There was a single Attachment A which showed the legal description of the contracted land and surrounding properties. In reviewing this attachment it became apparent that approximately over 100 single family homes that are located on the north side of the contracted land had been omitted or removed. A trustee member not personally familiar with this neighborhood could only conclude that the missing homes never existed.
Attachment A leads one to believe that the proposed biomass site is far from single family homes. In Attachment A, you can see the map presented to trustee members with the houses removed. Attachment B shows an accurate map which accurately reflects the existence of approximately 100 single family homes.
I was concerned that someone had eliminated our neighborhood and had mislead the Board of Trustees regarding the close proximity of these homes to the proposed 140 foot smoke stack. I sent a letter to Chairman Smith on November 24, 2008, asking for an explanation as to who was responsible and why these houses were eliminated. Chairman Smith said staff from the Florida Department of Environmental Protection (FDEP) prepared the lease agreement “with specific terms and conditions.”
Unfortunately, Attachment A of the lease agreement was just as misleading as Chairman Smith’s letter to me. Due to the serious nature of this matter I sought indisputable documentation. Bud Vielhauer, Deputy General Counsel for the FDEP, stated he is 100% sure and has documentation to prove that FSU requested a copy of the general format used in all lease agreements by FDEP. All specific details and attachments unique to this agreement were added by Betty Steffens, General Counsel of FSU. Again, Ms. Steffens was working under the direct supervision of Jim Smith, Chairman, FSU Board of Trustees.
Knowingly altering a legal government document or failing to disclose critical information to facilitate the financial gain of a personal friend (T.K. Wetherell) would seem to be unethical. Even worse, these actions if proved may document “official misconduct” as outlined in section 838.022 F.S. and is a second degree felony.
Three important questions that must be answered are:
(1) Does Jim Smith or any other city, county, or state government officials have a financial interest in this BG&E biomass plant. Have the wives or children received money, employment or gifts from BG&E?
(2) Did T.K. Wetherell, President of FSU, ask his General Counsel to seek Jim Smith’s assistance or approval in “altering” this government document?
(3) Did Betty Steffens alter this legal document? If so, who requested her to take this action?

JOHN MARKS
MAYOR, CITY OF TALLAHASSEE

ETHICS COMPLAINT # 1
Did Mayor John Marks violate Section 112.313 (6), Florida Statute by deliberately limiting public access to information that might prevent the construction of a biomass plant on FSU’s campus and a financial loss to T.K. and Virginia Wetherell?
Mayor John Marks and the City of Tallahassee entered into an agreement with BG&E to purchase $600 million dollars worth of electricity and gas over the next 30 years. This contract would result in the President of FSU, T.K. Wetherell and his wife Virginia, to profit handsomely. It is believed that Mayor Marks’ actions were designed to limit the public’s right to know about the spending of public funds and the intended recipients. The intentions for these actions are unclear but it seems the Mayor’s goal was to encourage T.K. Wetherell to allow FSU to remain a utility customer with the City of Tallahassee.
A December 10th, 2008 public hearing was held at 6p.m. to allow public discussion regarding a proposed biomass plant and whether an extension should be given to the developer of this plant –BG&E of Tallahassee, LLC (BG&E). Several citizens were displeased because this public hearing took place approximately two years after City officials signed legal documents committing themselves to enter into a business relationship with BG&E.
Mayor Marks failed to tell those 200 plus citizens that he made a decision to extend the BG&E contract at a 4 o’clock meeting that same day before receiving public input. It seems unethical and a waste of the publics time to schedule a public meeting for the presumed purpose of gathering information if the Mayor takes independent action on the advertised topic earlier in the day.
A review of the December 10th, 2009 City Commissions agenda revealed that extending the purchase agreement with BG&E was not advertised. According to a Florida 4th DCA, 1996 ruling the Sunshine law does not require boards to consider only those matters on a published agenda. However, the Attorney General’s Office has advised boards to postpone formal action on any added items that are controversial. Specifically AGO 03-53 states, “In the spirit of the Sunshine Law, the city commission should be sensitive to the community’s concerns that it be allowed advance notice and therefore meaningful participation on controversial issues coming before the commission.”
The biomass controversy has extended far beyond the county lines. The topic of biomass energy is very current and quite controversial. Therefore, it would seem that the Mayor’s decision to order staff to extend the BG&E agreement without public notice violates AGO 03-53.

In a separate action during the January 28, 2009 Tallahassee City Commission Meeting, Mayor Marks continued to block the public’s access to information contradictory to the position held by the Mayor and T.K. Wetherell, President of FSU.

Specifically, I requested that the Mayor allow me to show a 3 minute video which would expose the hazards of living next to a biomass plant. This tape would directly contradict information presented by T.K. Wetherell’s fellow BG&E investor S. Glenn Farris. The video consisted of three mothers who described noise, odor, and health factors that made their life extremely difficult.

The Mayor’s staff was given the tape to review 3 to 4 days prior to the public hearing. An email was sent to me stating that I would not be allowed to show the video one hour prior to the public hearing. I showed the Mayor all release forms from the director of the film and still the Mayor refused to allow this information to become public.
I believe the Mayor’s actions to suppress knowledge from the public in order to preserve the financially beneficial contracts between FSU and City of Tallahassee may be a violation of Section 112.313(6) Florida Statute. It also seems that he may have violated the ruling from the Attorney General AGO 03-53.
I would hope that the Mayor of Tallahassee, the Capital of Florida, would work to protect and advance Florida’s free speech and open government policy. Unfortunately these reported actions would act to limit public access and protect the financial gains of a select few!

ALLAN KATZ
TALLAHASSEE CITY COMMISSIONER

ETHICS COMPLAINT # 1
Did Allan Katz, Tallahassee City Commissioner violate Sec. 112.3143, Florida Statute by voting in an official capacity upon a measure which would insure to his private gain or to the private gain by a person or corporation who retained the Commissioner’s services.
Specifically, Commissioner Katz and his law firm were retained by BG&E for legal services. Commissioner Katz knew that several issues would be brought before the City Commission seeking his approval. Commissioner Katz may have violated the public trust by accepting money from BG&E and at the same time being paid by Tallahassee residents.
Commissioner Katz voted consistently to assist BG&E to build a biomass plant on the FSU campus. Specifically, he made a motion on April 26, 2006 to direct city staff to explore a biomass project. Commissioner Katz moved to authorize the City Manager to negotiate a contract with BG&E on June 28, 2006. The Approval of the BG&E contract was moved by Commissioner Katz on October 11, 2006.
Commissioner Katz apparently saw no conflict between supporting BG&E with his votes while accepting their cash. The total dollar amount paid to Commissioner Katz and his legal firm is unknown. When the biomass issue became controversial and very public, Commissioner Katz recused himself on April 16, 2008 approximately two years after government agencies began discussions about building a biomass plant.
In a letter dated November 25, 2008 City Attorney, Jim English, wrote “I have confirmed that you have previously abstained from voting on the issue (BG&E biomass plant) and filed the appropriate disclosure form.” Unfortunately, Commissioner Katz voted several times to support BG&E’s efforts to build a biomass plant before he decided to recuse himself. City Attorney English also referenced the point that Commissioner Katz nor his firm should perform any further legal services for BG&E.
The timing and reason for Commissioner Katz to recuse himself were also of concern. Once the public started asking questions about his involvement in the biomass deal he decided he might need to recuse himself. “I thought we were through with all the approvals, but as soon as all the controversy came along I decided in the interest of people thinking that I was saying because I was a client, I should disengage,” Katz said. Let me try to understand what he is saying! I thought I had already voted on all the necessary permits to approve BG&E’s desire to build a biomass plant. However, when this issue became controversial, I felt I should recuse myself since I have been accepting cash from BG&E and the public might not understand or appreciate my actions!
In summary, it seems that Commissioner Katz voted several times in favor of BG&E while failing to disclose he was being paid by BG&E. Also, he never announced his interest in BG&E before the earlier votes nor filed the Commission form 8B within 15 days after the vote. These actions would seem to be ethical violations per section 112.3143, Florida Statute.


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