Question arises as to whether Citizens for Sunshine’s members could be forced to pay the fees
After the appeals process has ended in the Sunshine Laws case a nonprofit organization filed against City Commissioner Susan Chapman in 2013, the effort will begin in earnest to try to recoup attorney’s fees the city has paid for her defense, City Attorney Robert Fournier told the City Commission during its regular meeting on April 17.
However, Chapman’s attorney cautioned that winning any payments from Citizens for Sunshine might be a lengthy process, given the lack of documentation the nonprofit already has provided the court.
On April 5, Fournier pointed out, the Second District Court of Appeal upheld a 12th Judicial Circuit Court ruling for Chapman, but it did not offer a written opinion. Circuit Court Judge Brian Iten’s issued a decision in July 2016 that Chapman did not violate the Sunshine Law by attending a private meeting organized by downtown Sarasota merchants in October 2013. Commissioner Suzanne Atwell also attended the session, along with City Manager Tom Barwin and Deputy City Manager Marlon Brown, court records show. The meeting was planned for the business owners to discuss their frustrations with homelessness in the city, the court records also make clear. Citizens for Sunshine argued in its complaint that Chapman and Atwell should not have attended it, because no public notice of it was provided and they knew the issue of homelessness would come before them at the dais in the future.
In response to a request from The Sarasota News Leader, Fournier wrote in an April 5 email, “The total amount of Commissioner Chapman’s attorney fees paid to date is $390,493.22.”
April 20 is the deadline for Citizens for Sunshine to file for a rehearing, Fournier told the commissioners this week. “There’s a reasonably high probability that [the organization] would want to do that,” he continued, in an effort to obtain a written opinion from the Court of Appeal.
The April 5 order said only “Per curiam.” The Legal Information Institute at the Cornell University Law School defines a “per curiam” order as one delivered “in the name of the Court rather than specific judges. “Usually, though not always,” the Institute says, such opinions “deal with issues the Court views as relatively non-controversial.”
Fournier pointed out that, without a written opinion, the ruling “makes it impossible, really,” for Citizens for Sunshine to appeal the higher court’s decision to the Florida Supreme Court.
Michael Barfield, a paralegal who works with Andrea Mogensen of Sarasota — the attorney for Citizens for Sunshine — told the News Leader on April 5 that Mogensen would file a motion to ask the Court of Appeal for a “formal, written opinion.” He added, “We believe this issue is important to both parties, as well as to the City and taxpayers, and deserving of an opinion to provide clarity going forward. Without a written opinion it is not binding precedent and we could easily find ourselves in the same situation in the future.”
Tom Shults of the Kirk Pinkerton firm in Sarasota, who represented Chapman during the case, concurred with Fournier on April 17 — that without a written opinion, Citizens for Sunshine’s “ability to challenge the lower court’s judgment … is very limited and, as a practical matter, not existent.”
Motions for rehearing are not unusual in the appellate courts, Shults continued. At the same time, he pointed out, it also is not unusual for an appellate court to refuse to grant such a motion. Still, he said, “I’m not predicting what will happen in this case.”
If, as expected, Citizens for Sunshine does seek a rehearing, and the court allows it, Shults explained, Chapman will have 10 days to file a response, “which I certainly will do.”
If the Second District Court of Appeal denies the Citizens for Sunshine motion for a rehearing, Shults added, the court then will have its staff package up the record of proceedings at that level and send the materials to the 12th Judicial Circuit Court for further action.
The legal fees issue
In regard to recouping city expenses: After Iten ruled in favor of Chapman last year, Shults said on April 17, Shults filed for the award of attorney’s fees. Additionally, he has sought fees in regard to the appellate court proceedings.
Iten did award Chapman $9,238.16 in costs associated with the Citizens for Sunshine case, Shults noted. Interest is accruing at the statutory rate of 4.91%, the Nov. 28, 2016 order said.
He has three grounds for pursuing attorney’s fees in the case, Shults said.
First, the Sunshine Laws provide for such payment if the plaintiff instigating legal action does so in “bad faith.” In this case, Shults explained, various facts in the record point to the validity of the bad faith argument. For example, he noted, a representative of Citizens for Sunshine suggested that the complaint was filed “to exert political pressure.” A witness in the case reported that the Citizens for Sunshine representative had said, “‘This lawsuit will go away if [the city commissioners] approve the 12th Street [homeless] shelter,’ or words to that effect,” he told the commissioners.
(In the summer of 2013, the City and County Commissions hired a nationally known expert on homelessness who advocated for a shelter in or very close to the city limits.)
Further grounds for seeking attorney’s fees rest in the fact that Citizens for Sunshine refused to make a formal admission — at Shults’ request — that Chapman and Atwell “never had a discussion [or] talked to each other” during the October 2013 merchants meeting.
“At the [Circuit Court] trial,” he continued, Mogensen “produced no evidence that suggested [such discussion had occurred],” and Iten found that the two commissioners had not talked with each other.
Finally, Chapman can seek to recover attorney’s fees on the basis of the fact that Citizens for Sunshine’s claim that she had violated the Sunshine Laws had no factual merit, Shults said.
Pursuing the fees on the bad faith issue, he told the commissioners, would require an evidentiary hearing, while the other efforts would be based on the court record and arguments of the lawyers.
“You’re likely looking at a significant expenditure of time and cost” for the evidentiary hearing, he said. Yet, if Chapman prevails on the bad faith argument, he noted, he would expect that to result in a larger award of fees than the other grounds might produce.
Vice Mayor Shelli Freeland Eddie asked Shults how much time that hearing would take.
“I would believe that … [it] would be … at least one day. It’s difficult to give you an estimate beyond that,” Shults replied. Furthermore, he would need more than one day of preparation, he said, and Citizens for Sunshine would be entitled to undertake additional discovery prior to it.
“That helps,” Freeland Eddie told him.
The likelihood of getting the fees?
Commissioner Liz Alpert asked about the likelihood “of being able to collect anything from [Citizens for Sunshine].”
The nonprofit had to file a fact sheet in the case, which calls for details about bank statements, minutes of meetings and tax returns, Shults told her. “Essentially, nothing was produced. … The likelihood of collecting a judgment is at this point kind of hard to assess,” he added, without taking a step provided under law to “pierce the corporation.” That means he would need to try to find out who the members of Citizens for Sunshine are and try to collect any award of attorney’s fees from them, he explained.
Florida law does recognize that even “a nonprofit corporation veil can be pierced under appropriate circumstances,” Shults told the commissioners. However, he has not undertaken any discovery yet in accord with that state provision, he said.
After the case has been completed at the appellate level, Fournier pointed out, he will provide the city commissioners detailed information about the proceedings and the results and then they can discuss the issue, if they choose. Members of the public also will be able to comment on the case during a board meeting, Fournier added, but the documentation he will provide the commissioners should enable them to respond appropriately to any comments, Fournier indicated.
One city resident on April 17 thanked the commissioners for supporting Chapman as she pursued the case. Mike Lashe told them, “You settled a lot of uncertainty for the future,” in regard to the Sunshine Laws.