Can MDX make payroll if it’s abolished? Judge orders emergency hearing to find out
Concerned that Miami-Dade’s toll roads could run out of money next week after lawmakers abolished the expressway authority, a Tallahassee judge on Friday gave the state until Monday to show that road operations will not be disrupted or he will temporarily block the law.
“Let me make something clear to you: We are not going to have the toll roads in Dade County not run properly,’’ said Leon County Circuit Court Judge John C. Cooper during a hearing on a lawsuit brought by the Miami-Dade Expressway Authority against the state.
Cooper scheduled an emergency hearing for Monday, July 15, at 11 a.m. to decide whether to temporarily block the law from taking effect as MDX sues the state to invalidate the law that abolishes the county’s toll road authority and replaces it with a new toll board controlled by the state.
“We’re in hurricane season,’’ Cooper said. “A hurricane can crop up real fast, and we don’t want a dysfunctional road system during hurricane season.”
Cooper responded to an argument raised by MDX’s Miami lawyer, Eugene Stearns, who said that when the Legislature abolished the toll road, it did not properly provide for the transition of its budgetary and operational authority. He warned that unless the judge halts the law, the agency can’t make payroll or pay its outstanding bills starting on Wednesday.
“They said they created a new [expressway authority] but the new one can’t exist and be functional for at least three months,’’ Stearns said. “So here we are in the middle of hurricane season. There is no one to write a check. There is no way to pay an employee. There is no one to keep roads safe. There is no one to deal with the issues of this case and manage the agency. No one was granted authority. No one.”
But Clark N. Gates, attorney for the Florida Department of Transportation, responded that “DOT has confirmed there is no gap in operations.”
He said maintenance inspections on State Road 836 and the other four expressways owned by the MDX are being handled without interruption and all MDX employees are now employees of the new expressway authority known as Greater Miami Expressway Agency or GMX.
But Cooper, who admitted he had never heard of MDX before the case and asked what the difference was between the mayor of Miami-Dade County and the mayor of Miami, wasn’t convinced.
The judge asked Carlos M. Zaldivar, the general counsel for GMX who was listening to the hearing by phone, if he had no money to pay the toll road’s bills since the agency was abolished.
“We have no authority to pay anything,’’ Zaldivar responded.
MDX argues that west Miami-Dade lawmakers close to Gov. Ron DeSantis executed a power grab to dissolve MDX and replace it with the GMX, which would no longer be controlled by county Mayor Carlos Gimenez, who chaired the board until it was abolished.
County officials argue the law is a violation of the 60-year-old home rule authority established in the Florida Constitution. The state argues that MDX has no authority to sue.
Jim Wolfe, District 6 FDOT secretary who is a voting member of the new GMX board, told the Herald/Times after the hearing that he personally sent a letter to the 33 employees at MDX “and stressed that it should be business as usual.”
“The statute did not abolish bank accounts or the authority to draw on bank accounts,’’ he said. “There should be no difficulty issuing the checks. Just do it the same way they did last week.”
Stearns disagrees.
“That’s just not true and if it was, they would agree to an order saying that,’’ he said. “But rather than agree to an order they’ve asked for depositions on Sunday. They’re panicked. They left a mess. It’s the Keystone cops — they managed to combine incompetence with unconstitutionality.”
Helen Aguirre Ferré, the governor’s spokesperson, said the new toll board will be up and running by the middle of next month and “all assets, all facilities and all tangible and intangible properties are transferred” from the old expressway authority to the new one.
“Tolls are still being collected. Everything is still proceeding,’’ she said “There is no gap.”
Stearns said Cooper will hear testimony on Monday that disputes that. “We can’t write checks against MDX because MDX doesn’t exist.”
In addition to lawyers for DeSantis and FDOT, lawyers for the Florida Transportation Commission and the Florida House, led by Miami’s José Oliva, lined up in Cooper’s chambers in support of the law that took effect July 1.
“If you convince me that there’s going to be a seamless interchange between the two, regardless of the constitutionality of the statute, that’s one thing,’’ Cooper told them. “But if you can’t tell me that, the odds are high I’m going to enter a temporary restraining order on an emergency basis just to protect the citizens of the county.”
In May, MDX asked Cooper to enjoin the legislation before it was signed, but Cooper denied the request. At that time, he also asked the state what would happen to the transfer of operations, but on Friday he said he never received a satisfactory answer.
Meanwhile, DeSantis has already filled three of the four GMX seats he controls, but the county commission, which opposed the legislation and supports the lawsuit, has not made the five appointments it has authority over. The law gives the county until the end of the month to name the appointees but, Stearns argues, by filling the posts the county would be waiving its legal arguments.
“The law abolishes something created by the board of county commissioners so the board is probably not likely to do something that is going to indicate it is waving its claim of unconstitutionality,’’ he said.
Zaldivar, who is now supposed to be an employee of the new expressway authority, appeared to underscore the power struggle when he told Cooper that absent a board there is no executive staff to make decisions.
“The board gives the authority to the executive director,’’ he said. “We don’t have a board. Therefore we have no policies, no bylaws to go by.”
But Ferré disagreed. She said the nine-member board must be appointed by July 31st, and its first meeting must occur in the next 15 days.
“Following the law doesn’t waive the litigants’ ability to challenge the law in court,’’ she said. “If they want to they can proceed. Their claim is simply made to be obstructionist.”
Wolfe, the district secretary, said he hopes employees “are not scaling back operations. What they were working on last week needs to continue.”
DeSantis’ has made three of his four appointments to the new board: Marili Cancio, a lawyer from Key Biscayne and a former Republican candidate for a state Senate seat; Rodolfo Pages, of Miami Beach, managing director of the Caoba Capital Partners private equity firm and charter-school executive; and Fatima Perez, a Miami resident who was once chief of staff to Philip Levine when he was mayor of Miami Beach and now regional manager for Koch Industries.
Stearns said that two of the governor’s appointees already violate the law that prohibits the appointment of anyone recently appointed to a county position and prohibits the appointment of a lobbyist.
Cooper admitted that “there appears to be political differences on this issue” but that won’t influence what he said appears to be the central question in the lawsuit: whether the Florida Legislature violated the home rule provisions in the state constitution by abolishing an agency established by the Miami-Dade County Commission.
He scheduled a hearing on the larger lawsuit for July 25 and 26.
Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas
This story was originally published July 12, 2019 at 1:35 PM.