Published June 8, 2008

Watchdog over transit finds its power limited
A special commission was supposed to be a watchdog over the Transit tax, but government attorneys and politicians took away most of its bite.
BY LARRY LEBOWITZ

An independent watchdog panel that was supposed to prevent misuse of the transit tax was defanged from the start by county commissioners and attorneys.

"We're neither independent nor a trust," former state Rep. Luis Morse muttered when he quit the panel in 2004.

Enabling legislation turned the Citizens Independent Transportation Trust into little more than an advisory board with limited powers and limited resources.

How limited? Transit tax funds have been used to add to the payrolls of the county transit agency, the county public works department, the county employee relations department, the county procurement department and the 3-1-1 call center.

Only one agency has seen its payroll shrink.

The trust's staff started with 17 people in 2003; today, it is eight. The trust has no power to hire its own executive director or staff.

"It's an awkward relationship because I report to the mayor through the county manager's office," said CITT executive director Nan Markowitz. "But I work for this board that sometimes is in an adversarial position with the people I work for. It turns into an us-versus-them situation. Except I'm them, and I'm working for us."

The trust cannot approve or reject contracts until they have already been approved by commissioners. It has limited power to control sales-tax spending once an initial contract has been awarded.

That's not how it was pitched to voters. They were told that an independent watchdog would protect their interests, overseeing the county's spending of the new tax.

"The intent of the CITT that I was pitching was never fully fulfilled," said former Mayor Alex Penelas. "To a very large extent, the CITT was diluted."

One long-term CITT member says the dilution was no accident.

"I think the way they constructed the trust -- in the ordinance, with the commissioners able to override everything we do -- was premeditated," said Marc Buoniconti, who has served the trust since its inception in 2003. "I don't think they ever were going to really give us the powers that the voters expected."

Commission Chairman Bruno Barreiro, who sponsored the ordinance and campaigned for the tax with Penelas, said commissioners were not going to give up that much control.

"Penelas wanted a stronger trust, that's true. But I didn't want to give an autonomous board the ability to run Transit. And that was the [commission's] sentiment."

The commission largely controls the trust because commissioners appoint 13 of the 15 trust members. The county mayor and the Miami-Dade County League of Cities appoint one each.

Subsequent attempts to bolster the trust's independence have failed when put before commissioners.

In 2006, Commissioner Carlos Gimenez proposed a resolution that would allow the trust to hire and fire its own executive director. The plan died without a discussion. In 2007, Commissioner Sally Heyman offered a similar plan, which didn't fare much better.

Limited authority

In 2004, an assistant county attorney told the trust that it didn't have the power to put the brakes on projects it had previously endorsed -- even when costs started to soar.

The issue arose over a plan to overhaul the original Metrorail fleet at an estimated cost of $188 million. That estimate quickly rose to $258 million. But Assistant County Attorney Bruce Libhaber opined that the trust couldn't stop the deal -- no matter how high the price.

"Basically, he said, our oversight powers didn't extend into this area," said the Rev. Theodore Wilde, whose CITT term ended in 2007. "The price was going to be whatever it was going to be. I still, to this day, am waiting for them to define 'oversight' to me."

On another issue in 2004, Libhaber said the enabling legislation gave the trust no power to question or reject operating-expense invoices that Transit was submitting for reimbursement. The trust's oversight, Libhaber said, didn't extend into day-to-day government functions.

Frustrated trust members started to ask around town whether any law firms would be willing to provide free legal advice.

In response, then-County Attorney Murray Greenberg made a rare appearance at a February 2006 CITT meeting, telling trust members they were forbidden by the ordinance to seek outside counsel. He quickly left.

Buoniconti said the trust has learned a few ways to exert its limited authority.

When county managers earlier this year asked the trust to approve the purchase of new rail cars instead of performing the overdue rehab, the panel reluctantly agreed.

But in drafting the needed amendment, Buoniconti persuaded his colleagues to set a "do not exceed" ceiling of $401 million. This time, he said, if Transit needs more money, it will have to return to the trust for additional approval.