Donald D. Conn and an assistant mostly rely on outside help to solve Tampa Bay Water's legal problems.
By David R. Corder
Up until October 2000, Donald D. Conn compiled an impressive record. It had been about 28 months since six city and county governments agreed to create Tampa Bay Water as a regional water wholesaler and set aside years of litigious acrimony in favor of settling disputes through binding arbitration.
As the agency's general counsel, Conn played a key role during those early months in successfully quieting five potential arbitration disputes with one of the member governments mostly over the permitting of well field and surface water pumping in Hillsborough County. Those who know him say he worked long hours with staff to craft compromises.
But that fall Conn, 58, and the agency hit a solid wall. They couldn't quiet Hillsborough officials' concerns over the agency's permit applications to develop a 15 billion-gallon reservoir on their turf. The county and the legislatively enacted Hillsborough Environmental Protection Commission jointly petitioned for an arbitration hearing under terms of a 1998 multigovernmental agreement.
The dispute erupted into an all-out administrative trial the next March, with both sides hiring some of the Tampa Bay area's best outside legal talent money could buy. Conn relied on E. A. "Seth" Mills Jr. and Robert L. Olsen, then both at Fowler White Boggs Banker PA. The county and EPC retained Holland & Knight LLP's Roger W. Sims, Rory C. Ryan and Jeffrey T. Donner, among others.
On 13 days over four weeks, Conn and his team presented convincing testimony and arguments. In May 2001, the panel ruled the agency met all substantive law in its application for the reservoir's environmental use permits. To allay county and EPC concerns, however, the panel also ordered the agency to compile baseline data over the potential impact of any reservoir seepage on surrounding wetlands.
The trial showed Conn at his best, recalls Jerry Maxwell, Tampa Bay Water's general manager. When compromise fails, he says, Conn knows how to handle himself.
It also shows how valuable Conn has become to the agency's board of directors, a group of government leaders that sometimes struggles to reach compromise. And it goes a long way in explaining how Conn has survived 10 years, most of them tumultuous, as general counsel for the agency and its predecessor, West Coast Regional Water Supply Authority.
"Don fundamentally believes that anything can be negotiated out," Maxwell says. "When finally confronted with a condition where that is not true, he stands his ground and enters the fray."
Early on, Conn decided to outsource much of the agency's legal work. In 1997, three years after he joined the agency, he hired Barrie Buenaventura as assistant general counsel. They have two assistants.
With Buenaventura, Conn manages a multimillion-dollar budget spent mostly at the area's top law firms. While he oversees contracts and permits, she focuses on property acquisitions and eminent domain actions.
"Using outside counsel is efficient because it allows us to get the best possible legal representation for Tampa Bay Water when we need it and for as long as we need it but not a day longer," Conn says.
Conn's decision to rely on outside special counsel actually builds on his experience from 1991-93 as general counsel for what now is the state Department of Business and Professional Regulation. There, Conn managed a staff of 23 lawyers, most of whom were inexperienced.
"Because of my experience at DBR," he says, "I felt that the expertise that we would need could be better obtained through outside special counsel."
Since its formation in 1998, the agency has spent about $18 million in legal costs, he says. Over that six-year period, he estimates the legal budget accounted for about 2% to 4% of the agency's total overall costs. Details on how much each firm received were not available, he says.
Much of those costs occurred during the first few years of the agency's formation, Conn says. That was during the execution of a nearly $1 billion master plan to create a regional water supply system to serve the drinking water needs of residents in Hillsborough, Pasco and Pinellas counties and the cities of New Port Richey, St. Petersburg and Tampa.
With the master plan in its sixth year, Conn estimates his legal office accounts for about 2% or $3 million of the water wholesaler's 2004-05 budget of $150 million.
"A legal office needs to be looked at in terms of its accomplishments and whether it has been able to provide the necessary support for the agency's accomplishments," Conn says. "My hope is the legal office has been supportive of the agency in the accomplishment of its goals."
Hillsborough County Commissioner Jan Platt, who serves on the agency's board of directors, says Conn has done a good job. In 1994, as a board member with the agency's predecessor, Platt voted to hire Conn. A decade later she considers Conn one of the agency's best investments.
"We've been fortunate to have his wisdom guiding our legal affairs, because one only has to read the newspapers for all the legal problems that Tampa Bay Water has faced in recent years," Platt says. "He's a level-headed, reasonable sort of person who doesn't overreact."
"I just have the utmost respect for the way he handles the legal quagmire he finds himself in," she says. "And the quagmire wasn't of his making."
It was Conn's interest in governmental affairs that pushed him to earn a bachelor's degree in that subject from the University of Notre Dame. In 1969, he relocated to Tallahassee and found a job as a legislative analyst with the Florida House of Representatives. He earned a law degree in 1973 from the Florida State University College of Law.
While working as an analyst, Conn met Guy Spicola, a Tampa attorney who chaired the House Environmental Protection Committee. Spicola and Louis de la Parte, another Tampa lawyer then serving as a state senator. The legislators sought an end to the decades of acrimony throughout Hillsborough, Pasco and Pinellas counties and elsewhere over one of the state's most sought after assets: water.
The water wars centered on St. Petersburg's acquisition in the 1930s of well field property in northwest Hillsborough and Pinellas County's lease on the Eldridge-Wilde well field in northwest Hillsborough and northeast Pinellas.
"It was an issue of who does the water belong to and who has the right to develop and use that water," Conn recalls.
Concerned about parochial attitudes, Spicola and de la Parte crafted legislation that led to the 1973 formation of the West Coast Regional Water Supply Authority. Conn followed the issue closely. Little did he know that more than 20 years later he would become intimately involved in the water supply authority's evolution into Tampa Bay Water.
After three years as an analyst, Conn went to work for then-Attorney General Robert Shevin. Three years later, he returned to the Florida Legislature to work as staff counsel to the Joint Administrative Procedures Committee. Then he took a job as a cabinet aide to then-Attorney General Jim Smith. Two years there earned him a job as the state courts administrator.
Five years work with the state courts evolved into a job as a hearing officer with the state Division of Administrative Hearings. But the job's travel schedule wore on him. He longed for more time at home with his wife, Patti, and their 3-year-old daughter, Jennifer. To balance professional and family needs, he became general counsel at the Department of Business Regulation.
Conn knew exactly what he was getting into in 1994 when he became the water supply authority's general counsel. "I knew exactly what the water wars were," he says, with a smile.
He joined at an interesting time.
In 1994, the Southwest Florida Water Management District, commonly known as Swiftmud, issued an emergency order to cut back on well field pumping because of negative impacts on wetlands and lakes, Conn says. Concern about the impact of pumping spawned a new round of litigation.
To allay the concerns of local government leaders, the water authority and Swiftmud embarked on a plan to solve the rifts. From 1995-98, members of the authority crafted the Tampa Bay Water master plan.
The master plan relied heavily on the development of new water sources - initially funded with about $500 million in revenue bonds and $183 million in Swiftmud money. While reducing pumping levels, the plan directed the agency to build a treatment plant and a complex pipeline system that would link to pumps along Hillsborough's Alafia River and the Tampa Baypass Canal. It also proposed the development of a desalination plant, the largest in North America.
As the system grew, so did the legal challenges. Citizen groups and local governments challenged the impact of surface water pumping on the Tampa Bay ecosystem. Vendors challenged bids. Property owners resisted the agency's efforts to condemn the land for pipelines.
It was a tremendous challenge, says Pinellas County Commissioner Bob Stewart, who also chairs Tampa Bay Water's board of directors. Now in his second year as chairman, Stewart says the board gives Conn high marks for his performance.
"Without exception the board members have been very supportive of Don's efforts and recognize his strengths," he says.
"We have tremendous challenges in the area of law and litigation, and Don has been a very strong leader for the board," he adds. "His legal advice has been well-founded and the board has followed it without exception."
To understand Conn's job, look at his legal office's production since 1998. It includes 1,265 contracts prepared and reviewed; 616 real estate documents; 48 federal, state and local environmental permits; and another 260 non-environmental permits
There have been eight arbitration hearings with member governments, and seven administrative hearings over disputes with private or business interests. With the help of special counsel, Conn favorably resolved two administrative appeals to the 2nd and 5th district courts of appeal.
Then the agency embarked on public-taking actions on 106 parcels of land, in addition to the acquisition of 94 other parcels through voluntary purchases or easements.
Much of that legal work went to just a few law firms.
For instance, Tampa's Allen Dell PA has handled eminent domain actions, permitting and arbitration and administrative hearing claims. It also is involved in litigation over construction flaws at the desalination plant in southeast Hillsborough. Allen Dell attorney Richard Harrison handled much of the eminent domain work for the pipeline that links the desalination plant to treatment plant.
The Tampa office of Pennington Moore Wilkinson Bell & Dunbar PA handled much of the agency's legislative work. Tallahassee attorney Pete Dunbar, the former Pinellas legislator who recently left the firm, frequently assisted the agency. Attorney Susan Spurgeon worked on numerous property acquisitions and easement negotiations with Tampa Electric Co.
Saxon Gilmore Carraway Gibbons Lash & Wilcox PA, and its predecessor, also handled property work, permitting issues and assisted with problems with contractors and contractor bankruptcies.
Those firms also account for part of the $30.5 million Conn's office has recovered from contractors mostly over construction defect issues.
"I don't think a legal office's success, or whether it's fulfilling its responsibilities, should be measured in terms of dollars and cents," he says. "I recognize that resources need to be managed efficiently, but if we're going to look at dollars and look at the $18 million available for legal services over the last six years then we should also look at financial recoveries. They've totaled $30.5 million."
That figure could more than double if Conn has his way.
With the help of Allen Dell attorneys, Conn lays claim to a $24 million surety bond that guaranteed the subcontract work of Hydranautics Inc. for the design, installation, startup and pretreatment testing of the desalination plant's reverse osmosis seawater filtering system. It's an action complicated by the agency's efforts to regain complete control of the facility following the bankruptcy reorganization of Covanta Energy Group Inc., the parent of the plant's primary contractor.
Earlier this month, a New York bankruptcy judge confirmed Covanta's reorganization plan and authorized transfer of all remaining assets by the first week of September to the agency. Meanwhile, the agency is nearing the end of the bid process to select a new contractor to fix deficiencies at the plant, which has produced about 3 billion gallons of treated water.
As a testament to his tenacity, Conn says he is not satisfied with just the $24 million surety bond. He thinks he can recover more under a $15 million professional liability insurance policy that guaranteed the plant's design.