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.