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Judge orders three Sunshine Law defendants to reimburse city

Judge orders three Sunshine Law defendants to reimburse city

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

BRADENTON BEACH – Twelfth Judicial Circuit Court Judge Edward Nicholas has issued an order calling for Sunshine Law lawsuit defendants Reed Mapes, Tjet Martin and John Metz to potentially pay the city of Bradenton Beach at least $369,498 for attorney’s fees.

In the eight-page written order on the amount of fees and costs that Nicholas issued Wednesday morning, the judge relieved co-defendants Patty Shay, Bill Vincent and his wife, Rose Vincent, of any financial responsibilities regarding the city’s efforts to recover attorney fees and additional legal costs for the civil lawsuit the city filed in August 2017.

The lawsuit sought a judge’s ruling as to whether six former city advisory board members violated the Florida Sunshine Law, which pertains to open meetings and public records.

On July 19, 2019, Nicholas ruled that Mapes, Martin, Metz, Shay, Bill Vincent and Rose Vincent each violated the Florida Sunshine Law in the spring and early summer of 2017 when discussing public business at their non-city-affiliated Concerned Neighbors of Bradenton Beach (CNOBB) meetings. At the time the violations occurred, Mapes, Metz, Shay and Bill Vincent served as Planning and Zoning Board members. Martin and Rose Vincent served as Scenic WAVES Committee members.

“It is hereby ordered and adjudged that the attorney’s fee award, as applied to defendants Patricia Shay, William Vincent and Rose Vincent is stricken,” Nicholas stated in his most recent order.

Nicholas relieved Shay and the Vincents of their financial liabilities after learning earlier this year that they signed settlement agreements with the city shortly before the July 2019 trial began. The commission then rejected the settlement agreements initiated on the city’s behalf because Mapes, Martin and Metz had not expressed interest in entering into similar pre-trial settlement agreements.

Judge orders three Sunshine Law defendants to reimburse city for attorney's fees
From left, Reed Mapes, Patty Shay and Tjet Martin were among the six defendants in the 2017 lawsuit that resulted in Mapes and Martin and John Metz (not shown) being ordered to reimburse the city for attorney’s fees. – Joe Hendricks | Sun

“It is further ordered and adjudged that the plaintiffs (the city of Bradenton Beach) shall have and recover from the remaining defendants John Metz, Reed Mapes and Tjet Martin attorney’s fees in the amount of $369,498,” Nicholas stated in his order.

The order also addresses approximately $31,000 in additional non-attorney-related legal costs that include court reporter fees and filing fees also sought by the city.

“The court also reserves jurisdiction to resolve the issue regarding the city’s costs to determine if they too should be imposed upon defendants Metz, Mapes and Martin,” the order says.

“The court anticipates that one additional hearing will be necessary to resolve the outstanding issues of apportionment, joint and several liability and to again determine the amount of the costs and whether they should be awarded in addition to the attorney’s fees awarded herein,” the order says.

Nicholas’ ruling was the result of hearings that took place via Zoom video conferencing on June 10 and Aug. 13.

Pre-trial settlement offers

The fee recovery proceedings took an unanticipated turn during the June 10 hearing when Shay, representing herself as a pro se defendant, presented the argument that she should not be ordered to pay more than the $500 she agreed to pay in the settlement offer that Watrous and Barfield presented to her before the trial began.

Nicholas said he was not aware that Shay had agreed to settle with the city.

“Why should Ms. Shay bear the cost of a trial that she did not want to have?” Nicholas said on more than one occasion that day.

The Vincents then presented similar arguments regarding their rejected settlement agreements. Nicholas said he was not aware of the Vincents’ settlement offers either.

He learned that on June 28, 2019, the city commission rejected the three settlement agreements that acknowledged Sunshine Law compliance failures. He also learned that each of the three defendants provided the city with $500 settlement checks that were returned uncashed.

Representing the city, attorney Robert Watrous told Nicholas the city commission rejected those three settlement agreements because Mapes, Martin and Metz had not agreed to similar settlement agreements. Watrous said anything less than six settlement agreements would have still subjected the city and its taxpayers to the costs of a trial.

During the August hearing, Mapes, Martin and Metz’s attorney, Thomas Shults, claimed they never received the same pre-trial settlement offers presented to Shay and the Vincents.

Reactions to order

When contacted Wednesday morning, Shay commented on Nicholas’ order.

“I am grateful and so relieved. I’m just happy that it’s over. It’s been three tough years. As I stated in court, I was willing to settle this from the very beginning and on numerous occasions, when offers were made, I was willing to accept them. But as I said in the hearing on June 10th, I didn’t have the power or ability to convince the other pro se defendants to do that,” Shay said.

When contacted via email Wednesday afternoon and asked if he wished to comment on the ruling, Mapes said, “No.”

As of Wednesday evening, Martin, Metz, Shults and the Vincents had not responded to The Sun’s email requests for comment.

When contacted Wednesday afternoon, City Attorney Ricinda Perry said, “I am pleased with the detailed order from Judge Nicholas that serves to make the taxpayers whole and we look forward to obtaining a judgment to award the costs as well. The order clearly stands behind the transparency required of government so as to prevent the erosion of trust and integrity by those who serve the public. Government is called to serve the people; not the people who form the government.”

What next?

Sarasota-based paralegal and Sunshine Law expert Michael Barfield has been assisting the city with this case since its inception in 2017.

“It’s not over yet, but I think this is a significant victory that will go a long way towards making the city whole and healing its treasury,” Barfield said Wednesday afternoon in response to Nicholas’ order.

Barfield is now assisting attorney Mark Caramanica and Perry in the city’s defense of the appeals filed by five of the six defendants regarding Nicholas’ 2019 ruling that they violated the Sunshine Law – an appeal process Shay is not participating in.

Judge orders three Sunshine Law defendants to reimburse city for attorney's fees
From left, City Attorney Ricinda Perry, attorney Robert Watrous and paralegal Michael Barfield served as the city’s legal team during the 2019 trial and the attorney’s fees hearings that followed. – Joe Hendricks | Sun

According to Barfield, “The payment of $369,498 in attorney fees, and any additional legal costs ordered by Nicholas must be paid by the three defendants in full or by posting a bond. Only if the defendants prevail in the appeals process that is currently proceeding through the Second District Court of Appeal in Lakeland would the monies be returned.”

Regarding Nicholas’ latest order, Barfield said, “The order is not final yet in terms of it being subject to appeal. And there’s still some steps that need to be taken on the costs, as well as apportionment among the three defendants that Judge Nicholas saddled with the fees. When that happens, the city will then take the position that they (Mapes, Martin and Metz) need to obtain a supersedeas bond. If they lose the appeal, then there’s no further fighting. The city gets its money. That’s the position we’ll take and the city will insist that they post a supersedeas bond,” Barfield said.

According to the Colonial Bonds & Insurance website, “A supersedeas bond, also known as a defendant’s appeal bond, is a type of surety bond that a court requires from an appellant who wants to delay payment of a judgment until an appeal is over.”

Previous settlement offers

On Sept. 5, 2017 – less than one month after the city filed the civil lawsuit – attorney Jim Dye submitted to Watrous a settlement offer proposed on behalf of the five defendants he represented at the time: Mapes, Martin, Shay and the Vincents.

Dye’s letter noted the five defendants he represented had all resigned from their city board positions and were each willing to pay the city $100 toward the city and co-plaintiff Jack Clarke’s legal fees. That offer stated there would be no admission or denial of liability or fault regarding the alleged Sunshine Law violations. The city commission rejected that offer because it contained no acknowledgment of violating the Sunshine Law.

In March 2019, the defendants collectively rejected a settlement offer proposed by the city that requested each defendant pay the city $500 each, or $3,000 collectively, and the defendants collectively acknowledge errors were made regarding Sunshine Law compliance. The city’s settlement offer was contingent on all six defendants’ acceptance.

The defendants collectively rejected that offer and responded with a counteroffer that proposed they make a $10,000 donation to the Annie Silver Community Center and contained alternative language that said “errors may have occurred” rather than “errors did occur” regarding Sunshine Law compliance.

In April 2019, the city commission offered to accept a settlement offer that stated “errors may have occurred” if the defendants agreed to pay the city’s attorney’s fees and legal costs to date, which at that time totaled approximately $203,000.The defendants rejected that offer.

In late May of 2019, the defendants presented the city with individual settlement counteroffers that collectively sought a total of $60,902 in attorney fee reimbursements from the city and an additional $24,444 from Clarke.

Judge orders three Sunshine Law defendants to reimburse city for attorney's fees
John Metz is one of three defendants facing a possible shared financial obligation to the city of Bradenton Beach of more than $369,000. – Joe Hendricks | Sun

“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,” said the offer Shults prepared on Metz’s behalf.

“The open meetings law permits the award of attorney’s 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 said.

The city commission rejected all of those counteroffers and instructed the city’s legal team to continue preparing for the trial.

Judge rules CNOBB members violated Sunshine Law

Judge rules CNOBB members violated Sunshine Law

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

BRADENTON – Manatee County 12th Circuit Judge Edward Nicholas ruled Friday that 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 violated the Florida Sunshine Law.

The Sunshine Law violations occurred at Concerned Neighbors of Bradenton Beach (CNOBB) meetings in June, July and August of 2017.

The potential Sunshine Law violations were first reported by The Sun on Aug. 2, 2017.

The city of Bradenton Beach and co-plaintiff Jack Clarke filed the civil lawsuit on Aug. 11, 2017. The lawsuit sought a judge’s determination as to whether the advisory board members violated the Sunshine Law by discussing advisory board business at CNOBB meetings.

The non-jury trial took place at the Manatee County Judicial Center in downtown Bradenton and began on Monday, July 15. When the testimony and legal arguments concluded on Thursday, July 18, Nicholas said he’d issue his ruling Friday morning.

Judge rules CNOBB members violated Sunshine Law
The defendants and defense attorneys awaited the judge’s ruling Friday morning. – Joe Hendricks | Sun

Attorney Robert Watrous represented the city and Clarke in the case, assisted by paralegal Michael Barfield and City Attorney Ricinda Perry.

Attorneys Thomas Shults and Jodi Ruberg represented Metz – and to a lesser degree the five pro se defendants who previously discontinued the services of their shared attorney.

“I am hoping to some extent the conclusion of this trial may help close the wound that has been so open and so raw out in Bradenton Beach for so long,” Nicholas said before issuing his ruling.

Judge’s ruling

When issuing his detailed ruling, Nicholas first cited the Florida Constitution and the Sunshine Law contained within it.

“We begin with Article 1, Section 24 of the Florida Constitution that reads: ‘All meetings of any collegial body of the executive branch of the state government, or of any collegial body of any county, municipality, school district or special district at which official acts are to be taken, or at which public business of such body is to be transacted or discussed shall be open and noticed to the public,’” Nicholas said.

Judge rules CNOBB members violated Sunshine Law
Judge Edward Nicholas ruled all six former advisory board members violated the Florida Sunshine Law. – Joe Hendricks | Sun

Nicholas noted the defendants were all duly sworn advisory board members who acknowledged participating in Sunshine Law training.

During the trial, Watrous established that each defendant took an oath of office as an advisory board member and swore to protect the United States Constitution and the Florida Constitution. Watrous said those oaths followed the advisory board members wherever they went, including CNOBB meetings.

“The Sunshine Law prohibits discussions of public business. Public business was discussed at every CNOBB meeting.” – Edward Nicholas, Manatee County 12th Circuit Court Judge

In their testimony and/or pre-trial depositions, Metz, Mapes, Shay and Bill Vincent expressed their beliefs that CNOBB’s parking garage discussions did not violate the Sunshine Law because the city’s comprehensive plan prohibited parking garages and it was not reasonably foreseeable that one could ever be built.

Nicholas noted City Planner Alan Garrett testified the comp plan only prohibited parking garages in two of the city’s 11 zone district designations in 2017.

“A parking garage could theoretically be built in nine designated areas within the city,” Nicholas said of the comp plan as it existed in 2017.

Compliance concerns

Nicholas noted Perry sent an email to the Planning and Zoning board members on July 25, 2017, notifying them of the potential Sunshine Law implications of their CNOBB meetings and email exchanges.

Nicholas noted Perry also emailed then-Mayor Bill Shearon two days later, and Shearon forwarded that email to the planning board members. That email also expressed concerns about advisory board members attending CNOBB meetings in violation of the Sunshine Law.

Judge rules CNOBB members violated Sunshine Law
City Attorney Ricinda Perry, paralegal Michael Barfield and attorney Robert Watrous successfully presented the city’s case.

The trial included extensive discussion about the 2017 correspondence Bill Vincent had with the Florida Commission on Ethics and the Florida Office of the Attorney General regarding advisory board members participating in CNOBB meetings.

The Commission on Ethics response advised Vincent to review the Sunshine Law manual at the Attorney General’s website and possibly consult with private counsel. The Attorney General Office’s response advised Vincent to consult with the city attorney.

“The defendants never got answers to those questions. The defendants continued to meet despite their concerns, despite not getting answers to these very important questions. Had they contacted Ricinda Perry, she would have answered: ‘Yes, the Sunshine Law applies.’ Had they contacted any attorney in the state of Florida they would have said, ‘Yes, the Sunshine Law applies,’ ” Nicholas said.

Constitutional rights

During the trial, Shults, Metz, Mapes and Vincent expressed their opinions that state law allowed the advisory board members to discuss city issues that pertained to the possible pursuit of citizens’ initiatives.

Judge rules CNOBB members violated Sunshine Law
Attorney Thomas Shults, left, was unsuccessful in his defense of John Metz and the five pro se defendants. – Joe Hendricks | Sun

“The defendants attempt to characterize these violative meetings as ballot initiative meetings pursuant to Section 166.031 (Florida Statute) is simply not persuasive. This ballot initiative defense strikes this court as an after-the-fact attempt to justify or otherwise rationalize what were otherwise clear and unequivocal violations of the Sunshine Law. It is a clever explanation for such violations, but it is not a compelling or persuasive one,” Nicholas said.

“The efforts to characterize their violative meetings as the right to assemble and speak freely as guaranteed by the First Amendment also is not persuasive. Every citizen has the right to assemble and has the right to free speech. However, when an individual joins a government advisory board the Sunshine Law still applies. If that were not the case, every county commission, every city council, every advisory board could hold secret meetings and simply say I have a First Amendment right to do so. That would largely make the Sunshine Law meaningless and void,” Nicholas said.

Meeting recordings

During the trial, Nicholas heard audio recordings of entire CNOBB meetings and audio excerpts from CNOBB meetings.

“It’s certainly unusual that we have tapes of at least some of the meetings that took place outside of the Sunshine,” Nicholas said.

He then recited some of the statements made at CNOBB meetings:

  • “I have concerns about how the CRA (Community Redevelopment Agency) is functioning;”
  • “We need to prohibit the construction of a parking garage in the city of Bradenton Beach;”
  • “It is on the CRA list;”
  • “Parking garage could easily come before Planning and Zoning;”
  • “That whole strip over there would be a parking garage;”
  • “We need to specify a municipal parking garage;”
  • “It would be a huge building;”
  • “We need to prohibit construction of a parking garage in Bradenton Beach, it doesn’t matter if it’s by a municipality or a huge corporation;”
  • “Horrendous traffic problems with a parking garage.”

Nicholas then said, “Those were all quotes. That is the very definition of a discussion about public business. And it wasn’t just parking garage discussions: CNOBB discussed ropes and bollards, sidewalks, parking issues, the Bridge Tender (Inn) land swap, Bridge Street planters – all issues that had come before Planning and Zoning or Scenic WAVES.”

Judge rules CNOBB members violated Sunshine Law
The judge ruled that former Planning and Zoning Board members Reed Mapes and Bill Vincent violated the Sunshine Law. – Joe Hendricks | Sun

“The Sunshine Law prohibits discussions of public business. Public business was discussed at every CNOBB meeting. Public business was discussed every time CNOBB met. That was largely the point of the organization,” Nicholas said.

“Also, there were at least four CNOBB meetings that were not recorded early on as the group was becoming organized. What was discussed at those meetings? Who attended those meetings? These questions point to the obvious need for Sunshine Law compliance,” Nicholas said.

Nicholas said the defendants’ passionate and firmly held beliefs regarding city issues caused them to abdicate their obligation to follow the law.

“My finding that all the defendants clearly and unequivocally violated the Sunshine Law does not in any way suggest that they are bad people. I do not agree with the suggestion that the defendants attempted to form a secret government or a shadow government, or that their meetings were surreptitious or clandestine in any way,” Nicholas said.

Judge rules CNOBB members violated Sunshine Law
The judge ruled that former advisory board members Rose Vincent, Patty Shay and Tjet Martin violated the Sunshine Law. – Joe Hendricks | Sun

“Do these individuals have a right to assemble? Absolutely. Do these individuals have a right to free speech? Absolutely. Do these individuals have a right to be concerned about their beloved city? Of course. But once you choose to become part of the government by becoming a member of a government advisory board you are no longer just a spectator. Rules apply, laws apply. The defendants simply did not follow those rules. The defendants simply did not follow those laws. This is not a close call,” Nicholas said.

“Judgment is in favor of the city. The court finds that all the defendants, as members of Planning and Zoning and members of the Scenic WAVES Partnership Committee were subject to Article 1, Section 24 of the Florida Constitution and Section 286.011 of Florida Statute,” Nicholas ruled.

Additional comments

Nicholas said a post-trial hearing will be scheduled to address potential sanctions. These include the city’s request to be reimbursed for a portion of its legal fees that now exceed $250,000.

“We agree with everything the judge said,” Watrous said after he left the courtroom.

“The Sunshine Law has been vindicated,” Barfield said.

“We agree with the judgment and look forward to the city moving forward and healing. The city does not wish to sue any of its board members, and it’s unfortunate this wasn’t settled earlier, but the Sunshine Law is important. It provides the city and its citizens with an open government,” Perry said,

“Obviously, I’m pleased with the verdict,” Clarke said.

“Government in the sunshine is why we are here. It’s as simple as that, it’s as important as that. It’s the foundation of what good government is built on; openness, transparency and accountability. Anything less is just not acceptable and now’s the time to heal,” Mayor John Chappie said.

“I’m very pleased with the judge’s ruling and I would like to thank everyone involved for presenting a clear case to the court. This was an unfortunate circumstance the city commission was put in to uphold our oaths to protect the laws of the state and to protect the city from litigation. I wish this would’ve been resolved through our previous settlement offers for a less expensive and earlier conclusion,” Vice Mayor Jake Spooner said.

Judge rules CNOBB members violated Sunshine Law
Co-plaintiff Jack Clarke, Vice Mayor Jake Spooner (second row), Mayor John Chappie, City Attorney Ricinda Perry, paralegal Michael Barfield and attorney Robert Watrous await the judge’s arrival Friday morning. – Joe Hendricks | Sun

In March, all six defendants rejected a settlement offer from the city that proposed a collective admission that mistakes were made regarding Sunshine Law compliance and a $500 payment from each defendant. The defendants rejected the settlement offer that required them to acknowledge non-compliance with the Sunshine Law.

In May, Metz and the other defendants submitted counter proposals that sought significant financial reimbursement from the city. Metz’s offer also expressed a willingness to subject the city to a future appeals process.