Judge Brian Iten of the 12th Judicial Circuit sets final motions for April 5
A Sunshine Law case involving Sarasota City Commissioner Susan Chapman is headed to a non-jury trial starting on May 9, with two days set aside in the 12th Judicial Circuit in Sarasota, The Sarasota News Leader has learned.
The order for the trial came in late January, after Chapman and Andrea Flynn Mogensen, the attorney for Citizens for Sunshine — the plaintiff — signed a document declining mediation in the case, which dates to Oct. 18, 2013.
Judge Brian A. Iten will be the presiding judge, court records show. He is scheduled to hear final motions in the case on April 5.
In response to a News Leader request for information, Jan Thornburg, senior communications manager for the City of Sarasota, wrote in a Feb. 23 email that the total amount of Chapman’s legal fees paid by the city in the case was $250,335.33 through the end of January. The city had paid those fees through March 3, 2014, but the City Commission at the time declined to continue picking up the bill.
Then on Jan. 5, 2015 — with Stan Zimmerman and Eileen Normile having been appointed to the commission to fill out the unexpired terms of Commissioners Shannon Snyder and Paul Caragiulo, both of whom had run for County Commission — the board voted 3-1 to commence paying the fees again. Chapman abstained, and Commissioner Suzanne Atwell voted in the minority.
Atwell originally was a party to the Sunshine suit, as was the city. Atwell did not admit any wrongdoing, but she settled with Citizens for Sunshine by paying $500 to a charity.
The lawsuit alleges that Chapman and Atwell met with downtown merchants about issues relating to homelessness, but that the gathering was not noticed to the public, and no minutes were taken.
Citizens for Sunshine asserted in the lawsuit “that the public has a right to advance notice of these meetings to determine what its government is up to in addressing chronic homelessness within the community.”
The suit sought “a declaration that the two city commissioners, rather than the taxpayers, be held responsible for attorney’s fees and costs for their violation of the Sunshine Law.”
The facts, as presented in the suit, say that on Oct. 3, 2013, Mayor Willie Shaw and city officials were invited by downtown merchants “to attend a meeting at a private restaurant to discuss ‘the transient issue.’”
Shaw declined the invitation, the suit continues, but City Manager Tom Barwin accepted it, and, according to the complaint, said, “‘I am trying to build a coalition to support our homelessness efforts and therefore I should take advantage of any opportunity to build support.”
Then on Oct. 8, 2013, the suit says, the downtown merchants organizing the meeting were notified that at least one, and possibly two, city commissioners, would be present. On Oct. 10, the suit continues, Chapman, Atwell, Barwin and Deputy City Manager Marlon Brown appeared at the Tsunami restaurant in downtown Sarasota “with merchants associated with the Whole Foods Complex …”
The suit further alleges that both Chapman and Atwell spoke “about the homeless/transient issue” at the meeting.
Because the subject matter related to an issue that was “reasonably foreseeable” to come before the City Commission, the lack of notice and taking of minutes violated the Sunshine Law, the suit says.
Furthermore, the suit alleges that after that session with the merchants, Chapman “expressed a desire in writing to have more meetings of this nature in the future, ‘so we can make sure we share information, strategies, and solutions.’”
On Nov. 21, 2013, Chapman’s attorney filed a motion to dismiss the case against her. It said, “Under the facts alleged in the complaint, the mere attendance of two City Commissioners at the subject meeting is not a violation of the Sunshine Law.”
It added that the complaint contained no allegation that Chapman discussed anything with Atwell during the meeting or that they “communicated with each other at all” during the gathering.
“Stated differently,” the motion continued, “if the two City Commissioners had exchanged pleasantries upon seeing each other at the subject meeting, this would not qualify as a discussion prohibited by the Sunshine Law.”
Furthermore, the motion said, “It is not a violation of the Sunshine Law for a City Commissioner to listen to the concerns of the constituency in the presence of another City Commissioner. As it relates to the subject meeting and the persons who arranged it, the present case raises serious constitutional issues concerning the public’s right of assembly, free speech and access to government officials.”
On Nov. 13, 2013, the City of Sarasota settled the case with Citizens for Sunshine, admitting that its failure to provide notice of the Oct. 10 meeting and to take minutes were violations of the Sunshine Law “because it was known to the City that two or more City Commissioners would be present” and that city leaders accepted the invitation “to build support for a subject that was reasonably foreseeable to come before the City Commission for future action.”
The city paid $17,679.05 in attorney’s fees and costs.
Pre-trial matters
In an amended witness list filed on Aug. 12, 2015, Citizens for Sunshine attorney Mogensen named several people scheduled to testify about the discussions at the Oct. 10, 2013 meeting at Tsunami. Among them are Pat Westerhouse, vice president of Casto, which developed the Market Centre complex in downtown Sarasota that includes Whole Foods (Casto continues to lease and manage the property); Sarasota Police Capt. Pat Robinson; City Manager Barwin; and Deputy City Manager Brown.
Another witness on the list is Valerie Guillory of Sarasota, who operates the nonprofit organization Trinity Without Borders on a 4-acre parcel off U.S. 301 near Gillespie Park. The legal document Mogensen filed says Guillory “[w]ill testify that she requested her attorney to send a trespass warning notice to Susan Chapman after it was discovered that Ms. Chapman was hiding on property where Ms. Guillory was providing services to the homeless, taking photographs without permission.”
Yet another witness listed is former County Commissioner Joe Barbetta. The document says he “[w]ill rebut any suggestion that the site location of a homeless shelter was selected prior to receipt of Dr. Marbut’s report, which was not received until late November 2013, after [the Citizens for Sunshine lawsuit] was filed.”
Marbut is the consultant on homelessness issues hired by the city and county in 2013 to assist with addressing the community’s problems. Marbut’s top sites for a shelter, listed in a draft report he released on Nov. 20, 2013 and finalized on Nov. 29, 2013, all were in the city limits. Subsequently, city commissioners have refused to support the establishment of a facility on any parcel within the city limits.
I find it incredible that Mogensen and her assistant cherry pick their Sunshine Law “violators”. What a waste of time and money.
I hope the amendment to the Sunshine Law that passed this week is strong enough in allowing judicial discretion for the award of attorney fees to prevent this type of witch hunt in the future.$250,000+ and the meter is still running when Citizen’s for Sunshine knows darn well there were no back deals being cooked up at that business meeting and they could have dropped this lawsuit at any time.
I don’t know why Valerie Guillory would agree to provide testimony against Commissioner Chapman that has ZERO to do with the city’s proper notification of two Commissioners at a business meeting. Commissioner Chapman was one of the only Commissioners to vote against allowing an illegal homeless encampment to persist on 10th Street Way outside of enforcement of the city ordinance. One of my neighbors was murdered and found there and the following year homeless people from that same encampment were responsible for raping two of the women on Valerie Guillory’s adjoining leased land and threatening to set a couple on fire after dousing them with gasoline. As I recall, Commissioner Chapman led the discussions to break up that encampment when Ms. Guillory went to the police and came before the City Commission to plead for help for the people she was housing illegally on that site. Maybe she owes Mogenson money for those attorney fees. Somebody in the 4th estate should check all of those records carefully.
Susan Chapman did not roll over for the big money interests on keeping the homeless bottled up in Sarasota, getting the city to pay for the County Sheriff’s Department through a CAYA shelter or enabling the sale and transfer of properties using public money to locate a large “shelter” right in our neighborhoods next to railroad tracks. One of those properties is the 4 acres (off 301 and 11th) leased to Guillory for $1/month. Others are owned by churches whose parishioners hold Commission seats. So this should be a very interesting trial and I certainly hope one where Ms. Chapman’s attorneys earn those fees and one or more counter suits are issued on the grounds of relentless aggravation and mean-spirited stupidity.
Editor’s Note: It is important to point out that the Citizens For Sunshine lawsuit has nothing to do with the homeless issue in general or the CAYA shelter in particular. It has to do with ensuring compliance by the city government with the constitutional requirements of Florida’s Government in the Sunshine laws.
Throughout his relatively short tenure, the city manager has shown a clear disdain for our sunshine laws, so diligent efforts to require compliance are to the benefit of every Floridian who wants transparent government.
Two sitting commissioners attended an unadvertised meeting at which a topic certain to be addressed in future commission meetings was discussed, and the commissioners participated in that discussion. That should be considered a violation of Government in the Sunshine, and the lawsuit was filed in reaction to that.
Lawsuits and monetary damages in the form of attorney fees are the only devices available to the citizenry to demand compliance with open government laws. The City of Sarasota easily could avoid these lawsuits by complying with existing laws, but have shown a persistent refusal to obey the law.
A recent example is the city’s former homelessness director, who attended a mandatory week-long seminar on the open government laws at the start of his employment, then blithely carried on a secret correspondence with the city manager, using his personal email account on his personal computer, about unauthorized tactics for dealing with homelessness and circumventing the directives of the City Commission. An important element of this illicit correspondence was a plan to create an entity that, despite being organized and supported by a local government, potentially could avoid compliance with Government in the Sunshine laws … a prima facie indication of the continuing efforts by some city officials to circumvent the law.
If not for the diligence of organizations such as Citizens for Sunshine, neither the press nor the people of Sarasota would be aware of potentially improper acts carried out unilaterally by local government officials.
As for the pending state legislation — Senate Bill 1220 — several concessions have been made by the bill’s sponsor, Sen. Rene Garcia, R-Hialeah, in response to vigorous opposition to the legislation by the First Amendment Foundation, the Florida Press Association and other organizations advocating for open government. Under that revised bill, the only exception to the current provision for attorney fees would be if a judge determined that a public records request was “made primarily to harass the agency or cause a violation (of the law).” Given that the pending Chapman lawsuit arose out of a failure of the city to properly advertise the meeting in question, the language of SB 1220 — had it already been law — would have no impact on the awarding of attorney fees in this case.
Finally, it is important to note that the quarter million dollars in attorney fees referenced in our article are only the fees incurred by Commissioner Chapman in her efforts to prove she did not violate the Sunshine laws by attending an unadvertised meeting in an official capacity and taking part in the discussion. Should the courts rule against her at trial, that expenditure (which will be considerably larger after that trial) would represent a significant waste of taxpayer funds for no reason other than Chapman’s intransigence. And even if she does prevail at trial, it will be a Pyrrhic victory for the city’s taxpayers.
[Citizens For Sunshine] is a self appointed vigilante group that is not content to simply make a point or educate the public or even provide a front for the news outlets controlled by the moneyed interests in this city.
Editor’s Note: Are you implying that our publication is “… controlled by the moneyed interests in this city?” Apparently you haven’t seen our books.