FDOT Forgery and Obstruction of Records Requests

Florida transportation official accused of actively hiding public records By MATT DIXON 07/26/2020 08:00 AM EDT POLITICO TALLAHASSEE — The Florida Department of Transportation, a $10 billion agency, had a program to evade state public records laws that at least one department attorney feared was illegal, records obtained by POLITICO show. Antonio Lozada, a senior attorney at the agency, revealed the policy during an April interview taken as part of an inspector general investigation into forged signatures at FDOT. The investigation into Gov. Ron DeSantis’ transportation department focused on signatures forged by longtime general counsel Erik Fenniman. But the three-month probe also uncovered a scheme to conceal public records and unearthed previously unacknowledged safety concerns about Brightline, a private passenger rail service, records show. At the heart of the inquiry was a letter to the Town of St. Lucie Village about Brightline, a private passenger rail service between West Palm Beach and Miami that has raised safety concerns. An Associated Press analysis in 2019 found that Brightline had the worst death rate of any railroad in the nation. In a March letter addressing the town’s safety worries, Fenniman forged the signature of former department attorney Latasha Jackson. Fenniman also made it look like Jackson had signed Lozada’s name to a March letter to the town’s attorney, investigators found. Neither Lozada nor Jackson were involved with finalizing the letters. Jackson was no longer with the department when the March 9 letter was signed. During an interview with investigators, Lozada said he thought Fenniman forged the signature because of controversy surrounding Brightline. He wanted to avoid the potential for blowback in the event someone was killed by one of its trains. “Someone probably will die in connection to this Brightline in St. Lucie County,” Lozada said, admitting the safety risks of a project the state has defended. “I could see why someone may not want their signature on that and maybe have seemed really appealing to put the signature of someone who is no longer here.” Lozada remains with the department, where communications director Beth Frady called his comments about Brightline “personal conjecture” and not “an official determination.” St. Lucie Village was happy to get a letter from the DeSantis administration acknowledging its concerns, said the town’s lawyer, Richard Neill Jr. “I am afraid that lives will be lost as a consequence of this project,” Neill said in an email. In his interview, Lozada also told investigators that Fenniman had created a program to stifle the generation and release of public records. “He used an acronym, FERP, F-E-R-P. He called it the Fenniman Email Reduction Plan” Lozada told investigators, according to a recording of the interview obtained by POLITICO. “I’ve been in other agencies where they’re like, ‘Be careful with what you put in writing,’ but this is different from, ‘Oh, don’t, you know, don’t put anything in writing you wouldn’t want everyone to know.’” Fenniman did not respond to requests for comment. Frady distanced the department from Fenniman, who had a 15-year career there, including a brief stint as acting secretary. “The department can not speak to or explain the actions of one individual, especially when those actions, or inactions, were certainly not a directive or policy within the agency,” Frady said in an email. Fenniman told his staff that if attorneys were providing opinions on politically sensitive topics, they should put it on a USB drive, print it out, write it in a notebook and speak to others face-to-face, “without a paper trail," Lozada said. He worried that the policy violated Florida public records laws. “My reading of [state public record laws] is that just because you’re not sending an email doesn’t make it not a public record,” he told investigators. He said the program was designed to stifle public records requests. “The idea is that there is no centralized repository if we are doing handwritten notes and, um, or if we’re typing something out, printing it out and not saving it or putting it on a USB drive and handing it to them,” he said. “So, if there was some sort of request then, you know, things may not be found.” Lozada said he didn’t always follow the policy out of concern it was illegal. “Sometimes I flout that because I say to myself, ‘I have a job to do, and I need to protect myself,’” he told investigators. Lozada’s interviews were part of an FDOT inspector general investigation into forgeries at the agency. In June, investigators concluded that Fenniman had forged the signatures of lower level attorneys in part to give political protection to top administration officials, including DeSantis and FDOT Secretary Kevin Thibault. DeSantis and Thibault, both Republicans, told POLITICO in June they were unaware of the policy. Lozada was not a subject of the investigation. Thibault, a DeSantis appointee, was not interviewed as part of the investigation. Fenniman was not charged with a crime in the forgeries. The inspector general investigation was reported by POLITICO in June. Fenniman resigned shortly after the story was published. POLITICO has been requesting the documents related to the investigation since June 25, but the department has not released them. POLITICO independently obtained a recording of Lozado’s interview and other records on Friday. The forged signatures were part of a strategy used by Fenniman to keep his name off potentially explosive or politically sensitive documents. He told investigators that if the name of a high level official, like general counsel, was tied to a controversial issue, it was more likely that the DeSantis administration could face political blow back. “That’s our philosophy on a lot of things,” Fenniman said, according to a transcript of his interview with investigators. “The executive suite was called — the Secretary may work up a document and work with the governor’s office and kind of get the green light on every single comma, period.” “There’s an appeal process or an ability to review it and assess it, saying, ‘Well, maybe our position on this can be moved,’” Fenniman said. “It helps protect the agency. It helps protect the governor.”