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Sunshine Law expert seeks records from four county commissioners

Sunshine Law expert seeks records from county commissioners

Written by Joe Hendricks on . Posted in Community News, Manatee County.

Updated Nov. 23, 2020 – BRADENTON – Thursday’s Manatee County Commission discussion about potentially terminating County Administrator Cheri Coryea has triggered a public records request from Florida Sunshine Law expert Michael Barfield.

On Friday afternoon, Barfield, a paralegal, submitted individual written public records requests to county commissioners Vanessa Baugh, George Kruse, James Satcher and Kevin Van Ostenbridge. County Attorney Mickey Palmer was copied on each of the requests Barfield submitted on behalf of Sarasota-based Denovo Law Services.

The records requests seek the public records in the individual possession of Baugh, Kruse, Satcher and Van Ostenbridge. A subsequent request seeks records from former Commissioner Steve Jonsson.

On Nov. 3, Baugh was re-elected as the county’s District 5 commissioner. Kruse was elected as the at-large District 7 commissioner. Satcher was elected as the District 1 commissioner. Van Ostenbridge was elected as the District 3 commissioner, a district that encompasses Anna Maria Island, Cortez and west Bradenton.

Sunshine Law expert investigating efforts to terminate county administrator
County Commissioner Vanessa Baugh is the subject of the public records request. – Joe Hendricks | Sun

The four commissioners were sworn into office on Tuesday, Nov. 17. Two days later, Van Ostenbridge initiated, with no advance public notice, a preliminary discussion seeking the termination of Coryea without cause.

At the conclusion of Thursday’s discussion, the newly-reconfigured county commission voted 4-3 in favor of putting Coryea on notice that her potential termination would be discussed at a special county commission meeting on Wednesday, Jan. 6. Baugh, Kruse, Satcher and Van Ostenbridge supported that action. Commissioners Reggie Bellamy, Misty Servia and Carol Whitmore opposed that action.

Sunshine Law expert investigating efforts to terminate county administrator
Commissioner Kevin Van Ostenbridge initiated Thursday’s termination discussion with no advance public notice. – Joe Hendricks | Sun

During Thursday’s discussion, Bellamy said the efforts to oust Coryea appeared to be “premeditated.” Whitmore said the efforts appeared to be “orchestrated.” Servia called the Van Ostenbridge-led efforts “reckless” and “dangerous.”

Records requests

According to the public records requests: “This is a request for records pursuant to Chapter 119, Florida Statutes, otherwise known as the Public Records Act of the Florida Constitution. We understand that a citizen is not required to make a written request to obtain public records under the act, but we want to be clear what we are seeking from you.”

The records requests pertain to the following records made, sent or received in connection with the transaction of official business, or the rendition of services on behalf of each of the four request recipients:

  • All emails sent or received from Nov. 3, 2020 to Nov. 20, 2020.
  • All text messages sent or received from November 3 to November 20.
  • All messages sent or received via any digital app or social media platform from Nov. 3 to Nov. 20.
  • A detailed phone log of all calls made or received between the period Nov. 3 and Nov. 20.
Sunshine Law expert investigating efforts to terminate county administrator
Commissioner James Satcher is the recipient of a public records request. – Joe Hendricks | Sun

According to the records requests, the term “record” or “public records” also includes responsive records in both digital and hard copy formats, including email, text, SMS, MMS, .doc and voicemail.

According to the requests, “This request for records further includes any responsive records sent or received by any individual or entity via any private, nongovernmental account, as well as those records maintained, stored or archived in the cloud, on a shared drive, on the Internet, via social media accounts or any other electronic device such as a cell phone, tablet, flash drive, that is capable of sending, receiving or storing digital information.”

The records requests are also directed to any individual or entity – including any other public or private agency, person, partnership, corporation or business entity – acting on their behalf of any of the records request recipients.

“If you contend that any record, or portion thereof, is exempt from inspection, please state in writing the basis for the exemption and include the applicable statutory exemption,” the records requests note.

The records requests state the requested records shall not be disposed of for a period of 30 days after the written records requests were submitted on Friday.

Sunshine Law expert investigating efforts to terminate county administrator
Commissioner George Kruse has received a public records request. – Joe Hendricks | Sun

Citing Florida Statutes, the records requests state: “If a civil action is instituted within the 30-day period to enforce the provisions of this section with respect to the requested record, the custodian of public records may not dispose of the record except by order of a court of competent jurisdiction after notice to all affected parties.

“The absence of a civil action instituted does not relieve the custodian of public records of the duty to maintain the record as a public record if the record is in fact a public record subject to public inspection and copying and does not otherwise excuse or exonerate the custodian of public records from any unauthorized or unlawful disposition of such record.

“We are requesting that you notify each and every individual and entity in possession of records responsive to this request, and that all such records be preserved on an immediate basis.

“Please produce all records responsive to this request as provided by 119.12(1)(b), Fla. Statute,” the public records requests say in conclusion.

According to Barfield, the three new commissioners – Kruse, Satcher and Van Ostenbridge – became subject to the Public Records Act and the Florida Sunshine Law at the conclusion of the Nov. 3 elections.

According to Barfield, the four commissioners have until early December to fulfill the public records requests.

Recent Sunshine case

While assisting the attorneys representing the city of Bradenton Beach, Barfield recently played a significant role in the city prevailing in a Sunshine Law lawsuit that resulted in two of the six defendants paying the city $350,000 on Friday.

The $350,00 payment was partial reimbursement for the attorney fees the city incurred as a result of a civil lawsuit the city filed against six former city advisory board members in 2017.

An extensive number of emails and other records and documents Barfield obtained from the defendants and others in that case factored into the judge’s 2019 ruling that Sunshine Law violations occurred.

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Sunshine lawsuit judge rules in favor of city recovering attorney fees

Sunshine lawsuit judge rules in favor of city recovering attorney fees

Written by Joe Hendricks on . Posted in Bradenton Beach, Community News.

BRADENTON – Manatee County Circuit Court Judge Edward Nicholas has granted the city of Bradenton Beach’s motion to recover attorney fees incurred in the Sunshine Law lawsuit the city and co-plaintiff Jack Clarke filed in 2017.

Nicholas has not yet determined how much former Planning and Zoning Board members Reed Mapes, John Metz, Patty Shay and Bill Vincent, and former Scenic WAVES Committee members Tjet Martin and Rose Vincent, as defendants, will be ordered to pay the city.

Nicholas granted the city’s motion during a Thursday, Nov. 7 hearing at the Manatee County Judicial Center in Bradenton.

In July, Nicholas ruled all six city advisory board members violated the Florida Sunshine Law in 2017 when they discussed public business at their Concerned Neighbors of Bradenton Beach (CNOBB) meetings. The defendants are appealing that July ruling.

According to City Treasurer Shayne Thompson, the city had incurred approximately $468,000 in attorney fees and legal costs as of last week, not including costs associated with attorney Robert Watrous, City Attorney Ricinda Perry and paralegal Michael Barfield’s preparation and appearances at Thursday’s hearing.

Attorneys Thomas Shults and Jodi Ruberg represented Metz and Nicholas noted the legal arguments Shults presented also applied to the five pro se defendants who no longer have attorneys.

Attorney arguments

When presenting the city’s request for attorney fees, Watrous said, “Who caused the situation that necessitated the city of Bradenton Beach and Jack Clarke to take action? That was the actions of the defendants. Was this a situation where they accidentally stepped over the line? From the clear reading of your honor’s judgment, the answer is emphatically no. This was an intentional and calculated effort by the defendants to get around Florida law and to not abide by the public records law,” Watrous said.

Shults’ legal arguments centered on whether a city can sue its own advisory board members. Shults argued the city must first sue itself.

“For the city to request the award of attorney fees against the individual they must first obtain an award of attorneys’ fees against itself or one of its agencies,” Shults argued.

Shults claimed this was the intent of the Florida Legislature when it adopted the Sunshine Law.

He also argued Chapter 286 of Florida Statutes does not provide for the award of attorney fees in a Sunshine Law case.

Shults noted CNOBB’s public meetings were open to the general public and the press.

“They said the Pledge of Allegiance at the beginning of these meetings and I think that’s wonderful,” he said.

In response, Watrous said, “Mr. Shults indicated the fact that these individuals said the Pledge of Allegiance before they started their CNOBB meetings. The problem is they didn’t follow that pledge.”

When appointed, city advisory board members swear to support, protect and uphold the Florida Constitution.

“They made a pledge to the State of Florida. They made a pledge to the government and they didn’t keep that pledge. That’s why the attorney fees should be awarded to my client,” Watrous said.

Judge’s ruling

When issuing his ruling, Nicholas noted all six defendants received Sunshine Law training.

“Once you chose to become a part of the city by choosing to be a member of a government advisory board the rules change. There are laws that apply. The defendants simply did not follow those rules,” Nicholas said regarding the defendants’ rights to assemble and discuss city matters.

“I’m not certain whether the Legislature intended individuals who clearly and unequivocally violated the Sunshine Law to be individually liable for attorney fees when sued by their own municipality. I do know that the purpose of the attorney fees provision is to discourage violations or potential violations of the Sunshine Law,” Nicholas said.

Nicholas referenced warnings and opinions the advisory board members received from Perry, Mayor Bill Shearon and others in 2017.

“Recall on July 25th, the city attorney sent them an email saying stop meeting. Ms. Perry, on July 25th, said these meetings are in violation of the Sunshine Law. Recall that on July 27th, Mayor Shearon CC’d to all the defendants the fact that their continued CNOBB meetings could be a violation of the Sunshine Law. Recall that the defendants sent a letter to the Florida Ethics Commission seeking advice about whether those meetings were violations of Sunshine Law. Recall that they made an inquiry to the Attorney General’s Office inquiring as to whether or not those meetings were a violation of the Sunshine Law,” Nicholas said.

“Even after being warned in two emails and not being able to be told by the Florida Ethics Commission and the Attorney General that ‘Yes, feel free to continue to meet,’ they did so on August 3rd,” Nicholas said.

“All the meetings were violations of the Sunshine Law, but it’s that August 3rd meeting that’s so problematic. It was this meeting that the city attempted to prevent. It was that continued meeting, after being put on notice that these meetings are in violation of the Sunshine Law,” Nicholas said.

“The city should not have had to bring this action. Once the defendants continued to meet after being warned not to do so, their continued meeting was at their own peril,” Nicholas said.

“I will grant the city’s motion for attorneys’ fees and costs and reserve jurisdiction for purposes of determining that amount,” Nicholas concluded.

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Written by Joe Hendricks on . Posted in Bradenton Beach, Community News.

BRADENTON – Twelfth Judicial Circuit Court Judge Edward Nicholas has ruled in favor of the city of Bradenton Beach regarding the reasonable foreseeability of a parking garage being something that would come before the city’s Planning and Zoning Board.

Nicholas’s ruling came in response to a partial summary judgment requested by the city and presented on Thursday, June 20, at the Manatee County Judicial Center in Bradenton.

Reasonable foreseeability is a central argument in the civil lawsuit filed by the city and co-plaintiff Jack Clarke in 2017. The trial is scheduled to begin on Monday, July 15.

After hearing from both sides during last week’s hearing, Nicholas said denying the city’s request for partial summary judgment would be the safe and easy thing to do.

“However, there is no universe wherein the issue of whether a parking garage should be permitted or approved in a small community would not come before a planning and zoning board. If that’s the issue before the court today, that is not a close call,” Nicholas said.

The lawsuit alleges former Planning and Zoning Board members Reed Mapes, John Metz, Patty Shay and Bill Vincent violated the Florida Sunshine Law by discussing parking garage prohibitions and other potential board business at Concerned Neighbors of Bradenton Beach (CNOBB) meetings in 2017. Former Scenic WAVES Committee members Tjet Martin and Rose Vincent are also named as defendants.

Judgment sought

Attorney Robert Watrous represented the city at last week’s hearing, accompanied by City Attorney Ricinda Perry and paralegal Michael Barfield.

“We have provided the court with voluminous information that parking garages were discussed at CNOBB meetings and they sent correspondence that this was on their written agendas,” Watrous told the judge.

“This is a classic example of individuals who were appointed to a city board, chose to form an organization and chose to discuss the same topics in their CNOBB meetings as they had been discussing at their P&Z meetings,” Watrous said.

“The Florida Government in the Sunshine Law was enacted to protect the public from closed-door politics,” Watrous said, noting the law is “construed to frustrate all evasive devices.”

“Not only was it reasonably foreseeable, but if one looks just at the April 12th and 19th (2017) P&Z meetings an issue of parking and parking garages did occur and was subsequently discussed weeks later in CNOBB meetings,” Watrous said.

“There’s been an argument made that there was a cure of this situation by the resignation of the P&Z members. That is only a partial cure. Case law is very clear that the cure can’t un-ring the bell and the plaintiff is still entitled to a determination or a declaration of the fact that there was a wrongful act,” Watrous concluded.

Shults’s response

Metz’s attorney, Thomas Shults, questioned whether the request for summary judgment was facially insufficient. He noted the request did not pertain specifically to the July 25 CNOBB meeting that included discussion on a potential petition-initiated charter amendment that would have banned parking garages.

Shults argued the defendants, as private citizens, had the constitutional right to assemble and discuss potential amendments to the city charter.

Shults acknowledged that in 2018 the current planning board members reviewed comprehensive plan amendments that now prohibit parking garages citywide.

At one point, Bill Vincent stood up and told Nicholas it was not reasonably foreseeable that a parking garage would come before the planning board because it would have been inconsistent with the city’s comprehensive plan.

When those 2017 CNOBB meeting discussions took place, the comp plan still allowed parking garages in several zoning districts.

“I can say with 100 percent certainty – not reasonably foreseeability, but absolute certainty – that this is a very issue that should and would come before a planning and zoning board. I feel like I’m missing something, it’s so obvious to me,” Nicholas said.

“Whether or not there is a Sunshine violation here, that remains to be seen,” he added.

Nicholas said he didn’t know how his ruling would impact the trial. He said he would not limit any arguments made by the defendants but said there is no need to further litigate reasonable foreseeability.

Shults questioned Nicholas’s ruling and suggested he refrain from issuing a written order because there were more hearings scheduled. In response, Nicholas told Shults the court was in recess.

Afterward, Watrous said he agreed with the judge’s ruling and he appreciated it.

Perry said the city must now prove at the trial that the CNOBB discussions and email exchanges occurred and that those actions violated the Sunshine Law. CNOBB meetings were recorded and posted at the CNOBB website. The recording of the July 25 parking garage discussion and several parking-related emails and documents will be presented as evidence.

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Sunshine defendants make offers to compromise

Sunshine defendants make offers to compromise

Written by Joe Hendricks on . Posted in Bradenton Beach, Community News.

BRADENTON BEACH – The six defendants in the Sunshine Law lawsuit have proposed compromise offers that seek financial reimbursement from the city of Bradenton Beach and co-plaintiff Jack Clarke.

Collectively, the six defendants seek $60,902 from the city and $24,444 from Clarke.

The offers to compromise include no admission of wrongdoing or errors made regarding compliance with the Florida Sunshine Law, which is at the center of the civil lawsuit the city and Clarke filed in 2017.

Defendant and former Planning and Zoning Board member John Metz was the first to present his offer to attorney Robert Watrous and others last week. Watrous represents the city and Clarke.

Metz is the only defendant still retaining legal counsel. His offer was prepared by attorney Thomas Shults and dated May 28.

Metz’s offer was followed by similarly worded offers from the other five defendants: former Planning and Zoning Board members Reed Mapes, Patty Shay and Bill Vincent and former Scenic WAVES Committee members Tjet Martin and Rose Vincent.

The financial reimbursements sought differ for each defendant.

“Mr. Metz will settle with the city and Clarke only if they dismiss this lawsuit against all defendants with prejudice. The city must pay Mr. Metz the amount of $42,000 and Clarke must pay Mr. Metz the amount of $14,000. The total of these sums represents approximately 40 percent of Mr. Metz’s attorney fees and costs as of the end of April. This offer shall remain open until 5 p.m. on June, 7. Unless the case is resolved by that date, any future proposals by Mr. Metz shall require the city and Clarke to play a higher percentage of his attorney’s fees incurred,” Metz’s written offer says.

Attorney Jim Dye had been representing Mapes, but Mapes discontinued those legal services in March. Mapes’s offer seeks similar settlement terms and $14,000 from the city and $8,400 from Clarke.

The other defendants discontinued Dye’s legal services in early 2018. Martin seeks $1,000 from the city and $600 from Clarke. Shay seeks $901.52 from the city and $444 from Clarke. The Vincents seek $3,000 from the city and $1,000 from Clarke.

At press time on Monday, the city and Clarke had not responded to the offers. The city commission will meet at 6 p.m. on Thursday, June 6, and it’s possible the defendants’ offers may be discussed at that meeting.

Settlement language

“It appears to be lost on the city commission and Mr. Clarke that they are exposed to substantial monetary liability in this case. This liability consists of not just the attorney’s fees and cost the city will expend for the trial and the appeals thereafter, but also the attorney’s fees and costs incurred by all defendants,” Metz’s offer says.

“The Open Meetings Law permits the award of attorneys fees and costs against the city and Clarke if the court finds this suit was filed in bad faith or was frivolous. The city and Clarke can rest assured that Mr. Metz will pursue his right to such award if this matter is not resolved,” Metz’s offer says.

The defendants’ latest offers were in response to a settlement offer the city commission made on April 23. That offer proposed the defendants collectively pay the city $203,118 to settle the lawsuit with an acknowledgment that errors may have been made as it related to the Sunshine Law. The $203,118 represented the city’s attorney fees and legal costs to date.

Metz’s offer to compromise says it’s puzzling that the city commission would make a proposal they knew he would never accept.

The city’s previous March 1 settlement offer included language that said errors were made regarding Sunshine Law compliance and sought $500 from each of the defendants.

The defendants rejected that offer and proposed a counteroffer that instead said errors may have been made. They also offered to donate $10,000 to the Annie Silver Community Center. The city commission rejected that offer because it did not include an admission of errors made.

The case is scheduled for a nonjury trial beginning July 15, to be preceded by a city-requested summary judgment hearing on June 20.

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Written by Joe Hendricks on . Posted in Bradenton Beach, Community News.

BRADENTON BEACH – Several court filings have been made recently regarding the Sunshine Law lawsuit filed against six former city advisory board members.

On Friday, March 21, one day after deposing City Attorney Ricinda Perry, defendant John Metz’s attorney, Thomas Shults, filed a motion to dismiss Perry as the co-counsel representing the city of Bradenton Beach in the Sunshine Law lawsuit. The filing notes Perry is listed as a witness for the city.

Citing rules regulating the Florida Bar, Shults’ motion to dismiss says, “Ricinda Perry cannot serve both as an advocate at trial for the city and a witness on the city’s behalf.”

Attorney Robert Watrous is the lead attorney for the city of Bradenton Beach and co-plaintiff Jack Clarke in the efforts to determine if six former city board members violated the Florida Sunshine Law in 2017. Perry serves as co-counsel and paralegal Michael Barfield is providing Watrous and Perry with additional legal assistance.

Right after Perry’s March 20 deposition, Watrous said he has not yet decided whether he will call Perry as a witness in the trial currently scheduled to take place in July.

On Friday afternoon, Barfield and Watrous were asked if they thought the motion to dismiss Perry had legal merit.

“We don’t think so. Motions to disqualify one’s counsel is one of the most disfavored motions there is,” Barfield said. “The citizens of Bradenton Beach wisely rejected Mr. Metz as a candidate for elected office. Mr. Metz is free to be frivolous with his own funds, but it’s sad when he wastes taxpayer resources in his personal crusade against the city attorney.”

Sunshine Law questioned

On March 15, Shults filed a notice of filing return of service of constitutional question on Florida’s Office of the Attorney General. The court document includes a copy of the certified mail receipt sent to Attorney General Pam Bondi in Tallahassee.

On Oct. 10, 2017, Shults previously filed a notice of constitutional question that questions whether the Florida Sunshine Law enacted by the Florida Legislature in 1995 infringes on an individual’s First Amendment rights regarding free speech, assembly, association and petition rights. The 2017 filing also questions whether the Florida Sunshine Law is “vague and overbroad.” The 2017 filing was sent to Bondi’s office when it was filed.

According to Perry and Barfield, representatives of the Attorney General’s Office have expressed interest in potentially joining the city and Clarke as co-plaintiffs in this case.

Mapes going pro se

On March 14, defendant Reed Mapes’ attorney, Jim Dye, filed a motion for withdrawal of counsel informing the 12th Judicial Circuit Court that he would no longer be representing Mapes. On Friday, March 21, Judge Edward Nicholas issued an order approving that request. Mapes now joins Tjet Martin, Patty Shay, Bill Vincent and Rose Vincent as pro se defendants who are representing themselves.

More depositions scheduled

On March 14, Watrous filed notice of taking depositions for defendant Rose Vincent and former CNOBB member Mike Bazzy on May 8, former CNOBB member Carol Harrington and continued deposition for former CNOBB webmaster Michael Harrington on May 14, former CNOBB members Connie Morrow and Janie Robertson on May 20 and former Bradenton Beach Mayor Bill Shearon on May 24.

On March 14, Shults filed a notice of taking depositions for Mayor John Chappie and Commissioner Ralph Cole on May 31, City Planner Alan Garrett on June 12, Building Official Steve Gilbert and Commissioner Jake Spooner on June 13 and Commissioner Marilyn Maro on June 18.

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Written by Joe Hendricks on . Posted in Bradenton Beach, Community News.

BRADENTON BEACH – Former mayor Jack Clarke and current City Clerk Terri Sanclemente have been deposed in the city’s ongoing Sunshine Law lawsuit.

On Monday, Jan. 7, Clarke was the first person deposed by the attorneys representing two of the six defendants.

Clarke is a co-plaintiff with the city of Bradenton Beach in the civil lawsuit that seeks a circuit court judge’s determination as to whether six former city advisory board members violated the Florida Sunshine Law that requires elected commission members and appointed advisory board members to conduct their official city business in properly noticed public meetings.

Clarke’s deposition revealed a defense strategy being pursued by attorney Thomas Shults, who is representing former Planning and Zoning Board member John Metz.

Early in the seven-hour deposition, Shults asked Clarke if he’s familiar with the phrase “acting in bad faith.” Shults spent much of the day trying to establish that Clarke, City Attorney Ricinda Perry and the City Commission acted in bad faith when filing the lawsuit against Metz, Reed Mapes, Tjet Martin, Patty Shay, Bill Vincent and Rose Vincent in August 2017.

The allegations stem from the Concerned Neighbors of Bradenton Beach (CNOBB) meetings that took place that summer when all six defendants served as city board members while participating in CNOBB meetings that were not conducted at city hall.

Shults’s defense strategy is partially based on the contentious relationship Clarke and Metz have had in recent years. Shults questioned email exchanges that occurred between Clarke, as a private citizen, and The Sun reporter who first reported the alleged violations. Several of those emails pertained to letters to the editor Clarke penned regarding Metz’s actions.

These actions included lawsuits Metz filed against the city and the 2015 lawsuit Metz filed against Clarke personally in hopes of keeping him off the special election recall ballot that resulted in Mayor Bill Shearon being removed from office.

Shults noted that one of Clarke’s letters was critical of the legal fees Metz has subjected city taxpayers to and how that differs from the cost of the Sunshine lawsuit in which the city is now involved.

Clarke acknowledged that he has not yet been billed for any of the more than $116,000 in legal fees the city has accrued so far. He also said he’s aware that Metz could come after him for his legal fees if it’s proven the lawsuit was filed in bad faith.

When asked why he agreed to be a co-plaintiff, Clarke said, “They broke the law. It’s that simple.”

Sanclemente deposition

Shults spent much of Sanclemente’s Jan. 9 deposition discussing her responsibilities as the city’s official records keeper. He asked about her training and certification and the duties placed on her staff.

He questioned the role Sanclemente played in preparing the signed affidavit and exhibits attorney Robert Watrous filed in support of the city’s lawsuit.

Shults noted one of those exhibits was the oath of office Metz took when he joined the Planning Board in 2014. Shults questioned why that document was not stamped as being notarized. Sanclemente said that occurred before her time and that would have been the responsibility of then-deputy clerks Tammy Johnson or Audra Lanzaro.

Shults asked if the city’s Land Development Code (LDC) is posted on the city website. Sanclemente said it is, but the city’s website currently is shut down while being upgraded. Shults asked if the LDC is posted at the city’s Municode page. When Sanclemente said it was, Shults produced a screenshot that indicated otherwise.

Perry and City Planner Alan Garrett are scheduled to be deposed next. The case is scheduled for a March trial.

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