Councilman Heady files suit against Vero in U.S. District Court

VERO BEACH — Councilman Brian Heady, a long-time renegade citizen-activist, has repeatedly called council members and top city staffers “liars, cheats and thieves,” but now he’s filed suit with the U.S. District Court’s 11th Circuit elaborating on those allegations.

Late Wednesday afternoon, Heady submitted a complaint seeking a Declaratory Judgment from the U.S. District Court’s 11th Circuit, which covers Vero Beach, on whether the city properly entered into the current Orlando Utilities Commission contract and whether the city restricted the public’s right to free speech.

Heady said he’s doing what his supporters voted him into office to do — to demand that the public business be done in the public eye and to force accountability for the actions of government.

“I have not changed my tactics,” said Heady, who has twice filed suite against local government bodies; namely the City of Vero Beach and the School District of Indian River County.

Specifically, the lawsuit asks the court to render an opinion on:

The validity of the city’s dealings in entering into the April 2008, $2 billion electric contract with OUC;

The keeping of related documents secret from the public for two years both during and after the contract process;

The failure of the city to maintain an original contract document at City Hall (it was, for two years, held in the home of a consultant in Massachusetts);

And restrictions placed on Heady as a councilman in asking questions in public about contract proceedings.

The final of four causes of action in the draft claims that “the mayor and two councilmen conspired to limit councilmen from asking questions with regard to the electric contract,” and that the actions were “prompted by the City Manager and City Attorney.”

The Council’s actions, Heady claims, restrict his First Amendment right to free speech during public meetings of the Council.

At the most recent city council meeting Heady had listed 18 agenda items he wanted to bring up, but most were deleted by a vote of other council members, some of whom said they wanted to see backup material for the matters he wanted to discuss.   Heady called the action by the council “morally treasonable.”

Though Heady earnestly seeks the court’s guidance on these matters, he admits that he has a broader goal – holding those responsible accountable.

In light of the federal complaint, Heady says he wants to approach law enforcement about what he views as possible “honest services fraud violations by both members of the Council and city staff.”

Heady said he intends to attach the complaint filed in federal court to another addressed to the U.S. Attorney’s Office.

Heady said he’s never seen any policy that prevents him from suing the city or filing such a complaint while he’s a sitting council member.

“If there is such a policy, I don’t think they would be able to enforce it,” Heady said.

City Attorney Charles Vitunac, in response to a question from Councilman Ken Daige, said there’s nothing stopping Heady from filing suit — at his own expense — against the city.

City Manager Jim Gabbard did not return phone calls seeking comment about Heady’s intentions to file a federal suit.

The 1988 honest services fraud law, which has been previously affirmed, holds that citizens have the right to expect those in public service to be acting as honest brokers. An act deemed to be dishonest that is in whole or in part conveyed over a federally regulated medium such as telephone, email or the postal system could rise to the level of a crime.

Recent convictions in Palm Beach County of multiple members of the county commission show that, when properly investigated and prosecuted, the doctrine of honest services fraud has some teeth. Honest services fraud is punishable by up to five years in prison, $250,000 in fines – or both.

In the past three years, a trio of Palm Beach County Commissioners have either been convicted of or have pled guilty to honest services fraud. Former Commissioners Tony Masilotti, Mary McCarty and Warren Newell are serving prison time for their less-than-honest service to the taxpayers of Palm Beach County.

Federal prosecutors also used the statute to nab Enron CEO Jeffrey Skilling and lobbyist Jack Abramoff.

Heady, who has made repeated attempts to air these matters at the City Council level, sees the federal lawsuit as a last resort.

Mayor Kevin Sawnick said recently that unless someone sued the city, the Orlando Utilities matter had been fully discussed and he intended to move on.

“This has nothing to do with what the mayor said. I just don’t think it has occurred to any one of the ratepayers collectively paying an extra $30 million each year to file a lawsuit. The only two customers that have large enough electric bills – the School Board and the County – to realize the return on investment for the cost of the attorneys don’t seem to be taking up a lawsuit,” Heady said.

In March, Heady asked the city’s auditing team – Harris, Cotherman, Jones, Price & Associates – to give its opinion on the OUC contract dealings.

The ruling from the CPA firm was less than encouraging for Heady, as it stated during a public meeting that the issues surrounding the OUC contract did not rise to the level of a violation of city or general accounting policies. Auditors predicted that no one would sue the city about the matter and, even if someone did sue, chances of the litigation prevailing were not substantial enough to warrant including the risk in the city’s financials.

It may be up to the courts to decide whether the auditors are right.

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