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Friday October 31st 2014

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The Buzz 5.19.11

PRIVATE BP MEETING According to Escambia County Attorney Alison Rogers, the Tuesday, May 10 meeting was to be private so that BP and officials could confidentially talk about outstanding claims regarding the BP oil spill.
“The understanding was for this to be like a mediation discussion,” said Rogers. “We both could pitch ideas, but they wouldn’t be held against us later in court.”
Attending the meeting, per our sources, were Chris Jones, Escambia Co. Property Appraiser; Randy Oliver, County Administrator; Rogers; Amy Lovoy, County Budget Director; plus Rita Lee and Finance Director Dick Barker from the City of Pensacola.

According to our sources, BP was represented by Todd Thomson, BP Director of Government Relations Florida; Keith Rupp, General Manager, External Relations at BP; Maria Travis, OB&C Houston Transformation Manager at BP America; Brooks Schuler of Witt Associates; and a BP attorney. They described themselves as the “BP Litigation Avoidance Team.”

The IN and the media weren’t supposed to find out about the meeting. According to both Jones and Oliver, BP had called and asked for it.
“We have two outstanding issues,” said Oliver. “Both involving revenue.”

The county hasn’t resolved its claim over the state-shared revenue. “BP is concerned about double dipping (paying both the county and state),” said the county administrator. “I think we agreed on the methodology, and we will have to get some kind of state sign-off.”

The other issue is what Oliver called “the big elephant in the room”–the loss in property values related to the BP oil spill. “We talked very generally and agreed to meet again in July.”
Oliver felt like it was a good meeting, but “BP never has a decision-maker at the table.”

Property Appraiser Chris Jones said that the meeting was really BP’s show. They asked for it, which Oliver confirmed, and Jones hosted it at their request.

“BP immediately came out and said that they didn’t think loss in property values was compensatory under OPA (Oil Protection Act),” said Jones. “I looked at Randy Oliver and thought, “Then why are we here?’”

BP did back off that hard position and asked about how Jones could prove the loss was oil-related. “I told them that it would come down to the experts.”

Jones said that values were already down because of the recession, but when the oil spill happened, real estate sales stopped. “They were on a fact-finding mission, but this was my first meeting with them, and I’m always cautious when I’m talking with lawyers,” said Jones.

When the BP Litigation Avoidance Team pressed the property appraiser on how he would determine loss of property value related to the oil spill, he refused. “I didn’t want to get into a one-sided conversation,” said Jones. “I told them to give me a template of how they think it should be done. I wasn’t interested in giving them anything only to have it ripped apart by their experts.”

Jones told IN that BP will be bringing their real estate expert to the July meeting. “Then maybe the county can determine whether it will need to lawyer or not.”

County Attorney Alison Rogers said that Escambia County is in the middle of the selection process for a law firm to represent it should it choose to litigate. A selection committee has narrowed the field down to two teams:
Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. and McDonald, Fleming, Moorhead, Ferguson, Green, Smith & Dekozan, LLP.

Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A.

The City of Pensacola has chosen its legal team, which includes Levin Papantonio and Beggs & Lane.

BULLYSTOPPER HOTLINE School Superintendent Malcolm Thomas made on May 12 a presentation to the Escambia County School Board on the new online system that the district will launch in August.

It will allow anyone to anonymously report incidents of school bullying, teen dating violence, harassment and other incidents. Principals will be trained on how to deal with reports. All reports will be investigated to some extent.

With nonviolent situations, the principal will determine the appropriate actions. With violent reports, the sheriff’s office will be notified. With violent incidents, the victim’s parents will be notified. Victims will be given six follow-up sessions.

The School Board expressed concern that principals are not criminal investigators, and that even with training they will be already stretched too thinly to properly investigate cases. There seemed to be some confusion over where the job of the principal ends and the sheriff’s office begins.

The website will offer different categories of abuse, so that a principal can distinguish the urgency of different allegations. The principal will be notified electronically. The School Board discussed whether or not abuse complaints should be forwarded from the principal to the school resource officer, or automatically to the school resource officer. No final decision was made on that point.

With issue of repeat false reports, the IT department will be able to check IP addresses, thus making anonymous not anonymous. Those who make false reports in good faith will not be penalized.

DUI CASES HIT SNAG The Intoxilyzer 8000 breath-test machine, the state’s only approved breathlyzer machine, is under attack by defense lawyers in Southwest Florida, who asked the company to release the computer code on the machine, reports the Herald-Tribune. CMI, Inc., Kentucky-based maker of the Intoxilyzer 8000, believes the code is protected trade information. Defense attorneys want to study how the machine works to check the validity of its results.

Despite a judge’s order to produce the source code and a Florida Supreme Court ruling that upheld subpoenas for the information, CMI has yet to comply, putting thousands of DUI cases in limbo. The Florida Department of Law Enforcement says the Intoxilyzer 8000 works and has no plan to approve another instrument.

Sarasota defense attorney Tom Hudson writes on this website that the Intoxilyzer 8000 is based upon the Zilog Z-80 microprocesso—the “same chip was the brains of the Tandy TRS-80, which was the hit of the home computer industry…in 1977.”

When the Intoxilyzer is calibrated, if the temperature of the testing solution is off by as little as one-fifth of one degree (.20), the calibration is not considered accurate. According to local DUI defense attorney Eric Stevenson, there are breathlyzers that can capture temperature and even samples of the driver’s breath, but FDLE is happy with the current machine and its limited software.

To complicate the issue locally, during the course of discovery local attorneys have deposed the FDLE agent, Margaret Geddings, in charge of the annual inspections of the Intoxilyzer 8000 machines in this judicial district. Geddings said that she had used her cell phone on occasion to abort her test of the machines. If a machine fails two tests, it can no longer be used. If a machine was failing its second test, she said that she would abort the test with her cell phone, make adjustments to the machine and restart it.

Geddings said that the failures were not due to the machine, but to some error on her part. She admitted that she only notified an agency inspector of the aborted test if one was in the room. Geddings didn’t notify her superiors if she intentionally aborted an inspection test.

Stevenson believes that this calls into question the validity of the inspection, especially if the inspector can stop and restart that crucial second test.