To better walk the city through potential legal ramifications associated with its plans to change how it will fund fire service operations, Cape Coral will use a lawfirm it says is more familiar with the proposed funding mechanism.
Officials said this week the city's legal firm, Nabors, Giblin & Nickerson, which handles the city's bond validations, is not involved with the proposal to fund a still-to-be-determined portion of departmental operating costs with a new two-tiered assessment.
Instead, Tallahassee-based Bryant Miller Olive will walk the city through the process, with implementation now likely next budget year, rather than this, as was originally proposed.
City Manager John Szerlag said the reason for the shift is that Bryant Miller Olive is more in tune to the "ready to serve" methodology the city plans to use in its fire assessment, as opposed to the alternative "calls for service" method of determing the assessment costs..
"It's more a level of philosophy than opposed to any level of confidence," Szerlag said. "Nabors Giblin prefers the calls for service method, while Bryant Miller Olive uses the ready to serve methodology, as does the Florida League of Cities."
Bryant Miller Olive has advised the city to get the methodology bonded to deter those who might want to sue later.
The "ready to serve" methodology is a two-tiered approach to assess fire services. One tier is a base charge to all landowners. The second is based on the value of the improved property, whether it be a big-box store or a single-family home.
Ken Small, of the Florida League of Cities, prefers to call it the "Brooksville method" because it was the first city in Florida to use it.
A lawyer named Mark Lawson created it. Lawson, Small said, was among those who created the original assessment methodology - the demand method- which many cities still use, while he worked at Nabors, Giblin & Nickerson in the 1990s.
"That took a lot of data and the League challenged him a few years ago, in order to save cities money, to come up with an alternative methodology that's fair and doesn't require expansive consultants," Small said. "It's no longer 'What is the cost,' but 'What is the availability?'"
By this time, Lawson had moved to Bryant Miller Olive. It took three years for him to develop the methodology and to find a city, Brooksville, willing to accept it.
St. Petersburg was the second, but backed away at the last minute and chose to use property taxes instead, Small said.
In the last few months he has ended his relationship with them and is on his own, Small said.
Meanwhile, Christopher Roe, who had worked with Lawson during his time there, is now working on the Cape Coral assessment process. He sent a letter to Szerlag concerning the validation of bonds required to put the plan into motion.
"I heard from the city attorney a month ago and she told me the story of the city's development of a fire assessment and asked if I was familiar with the methodology," Roe said. "I have worked with readiness to serve for other cities."
Bryant Miller Olive was recommended by Burton & Associates and by the League of Cities because it was a proponent of the ready to serve methodology, Roe said.
Roe said the difference between call-based and ready to serve is that call-based looks at the cost to respond to a fire, commercial, residential, industrial, and them do statistical analysis of past calls.
"The cost is apportioned among the various properties based on the call history and classification," Roe said, adding the method has been challenged in court and upheld.
The ready to serve method, however, has not.
Roe said he expects it to eventually be challenged and "the law of the land will weigh in," adding he expects the method to be upheld.
"The cities wanted something that was easier to administer and transparent and didn't have the high cost of consultants," Roe said. "The ready to serve method looks at fire protection in a different way."
Small said most people will never need to call in a fire in their lifetime, but will pay for having the service there when they need it. Not only can improved properties have fires, but vacant lots as well.
Opponents of implementing a fire assessment in place of using property taxes, as the city currently does, look at it a different way
"When it's put before your regular law firm and they said it won't defend it, that's got to tell you this isn't the right thing to do," said Steve Lovejoy, president of CapCapetaxes.com, an advocacy group against the raising the city taxes.
Councilmember Chris Chulakes-Leetz believes that's a good question that needs answering. He has made it into a discussion item for Monday's city council meeting for Szerlag to answer
"Why does our bond council refuse to represent us in the fire service tax and we're forced to use another bond council?" Chulakes-Leetz asked. "That also happens to be Burton & Associates' law firm. So much has to be answered by a reasonable person. Mr. Szerlag only puts out information that serves him."
Councilmember Marty McClain, though, said it's just a case of the vocal nay-sayers rocking the boat.
"What we've seen historically in this city is that anytime somebody sits and thinks that something is illegal, it becomes gospel that it is," McClain said. "Nobody wants to take the time to see it isn't."
Councilmember John Carioscia said getting a firm that understands the methodology makes sense.
"If you have an injury, you want to have the best personal injury lawyer and maybe get those on staff who deal with malpractice," Carioscia said. "As a prudent measure, the city manager will change law firms with expertise in the methodology we seek to use. That's common sense."
No one from the Fort Myers or Tallahassee offices of Nabors, Giblin & Nickerson was immediately available for comment.