CSX directed rail legislation to its benefit

Article Courtesy of The Palm Beach Post
By Dara Kam

Published December 13, 2009

TALLAHASSEE — Thousands of e-mails from state transportation officials show that the transportation giant that stands to get at least $432 million from taxpayers in a deal to build a Central Florida commuter rail line played a major role in crafting the legislation.

In the deal passed last week, the state is paying Jacksonville-based CSX Inc. $432 million for 61 miles of track for the "SunRail" commuter line between Deland and Poinciana. The freight operator will pay the state about $3.2 million a year to share the rails with the commuter line.

The e-mails from Florida Department of Transportation Secretary Stephanie Kopelousos, Deputy Secretary Kevin Thibault and general counsel Alexis Yarborough also reveal a keen interest in privatizing future rail projects — including high-speed rail proposals the state is hoping to get $2.6 billion in federal stimulus money to help build.

And they show that the DOT officials — the chief negotiators of the SunRail/CSX deal — used code words like "waffles" and "pancakes" in the subject line of e-mails, perhaps to avoid being captured by public records requests.

Sen. Paula Dockery, an ardent SunRail opponent who helped kill a bill approving the deal in May, requested the e-mails shortly before the beginning of the special session that ended Tuesday.

The agency initially told her that Kopelousos, Thibault and Yarborough did not exchange any e-mails with the words "rail," "SunRail" or "CSX" in them for the past eight months.

When she questioned them about that, department officials said that a data entry error was responsible for the mistake. The three officials had sent or received more than 8,000 e-mails with those terms since March.

On Nov. 24, the day before Senate President Jeff Atwater, R-North Palm Beach, hinted that a special session would be called, Yarborough and Atwater aide Paul Whitfield sought input from a CSX lobbyist and Vice President Bob O'Malley to craft one of the most contentious components of the legislation — allowing DOT to reclassify certain railroad workers on current and future projects in a manner that would do away with union protections guaranteed under federal law.

Yarborough did not sign off on the labor language in the bill until O'Malley approved it.

Whitfield sent Yarborough, O'Malley and a private attorney hired by the DOT an e-mail asking them to "review the attached and comment as soon as you are able" the morning of Nov. 24.

O'Malley forwarded the message to others, including CSX senior attorney David Hoffman, who made changes to the document and returned it to O'Malley, who then forwarded it to Yarborough.

"Please see attached document with our suggested edits. We wanted to share with you first," he wrote.

Yarborough responded: "This is more consistent with the prior targeted group. Will you let Paul know we talked and this is preferable?"

That exchange is typical of the chains of e-mails provided through Nov. 25, the date when Dockery, R-Lakeland, made the request. In some cases, Whitfield, Yarborough or other DOT staff included O'Malley directly on draft language, seeking his input.

In October, Thibault sent a message to his boss Kopelousos with the subject "Pancakes."

Attached to the e-mail was a proposal creating a $2 surcharge on rental cars in Palm Beach, Miami-Dade and Broward counties to help fund Tri-Rail.

Kopelousos sent Thibault a message on Nov. 12 with the subject "pancake" that had an attachment of questions posed by House members.

The same day, Thibault sent Kopelousos an e-mail with the subject "French toast."

The messages had nothing to do with breakfast.

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