Concern about the Sunshine Laws’ effect on the proceeding led to the plaintiffs’ request for clarification
Mediation in a lawsuit the American Civil Liberties Union (ACLU) filed against the City of Sarasota last fall on behalf of eight homeless individuals has been postponed until May 16, The Sarasota News Leader has learned.
The daylong session originally was set for March 18. However, concern over whether the proceeding would have to be open to the public under the state’s Sunshine Laws was the primary reason for the postponement, Sarasota City Attorney Robert Fournier and Michael Barfield, vice president of the ACLU Foundation of Florida, told the News Leader this week.
“It was [also] just a major scheduling conflict,” Barfield added of the delay.
The ACLU filed suit against the city on Sept. 30, 2015, arguing that the city has inadequate lodging facilities for homeless people, which results in many of them sleeping outdoors. Yet, the complaint says, the city criminalizes that behavior through Section 34-41 of the City Code.
The ACLU originally filed the action in the 12 Judicial Circuit Court in Sarasota. However, city attorneys asked that the case be moved to U.S. District Court for the Middle District of Florida, in Tampa.
On March 11, Andrea Flynn Mogensen of Sarasota, the lead attorney for the plaintiffs, filed a motion for clarification regarding which parties had to be present for the mediation, and she requested an extension of the mediation deadline.
The Local Rules for the U.S. District Court Middle District of Florida, she argued, provide that “‘all parties [her emphasis], corporate representatives and any other required claims professionals (insurance adjusters, etc.), shall be present at the Mediation Conference with full authority to negotiate a settlement.’” The lawsuit was filed against the City of Sarasota, she continued, which can act only through its five elected city commissioners “in the Sunshine” as required by state statutes.
City counsel had advised the plaintiffs’ attorneys, Mogensen wrote, that the city commissioners would not be present at the mediation, “but that a representative with full authority to settle” would be there.
Because the plaintiffs were uncertain about whether the city commissioners could send a representative to act in their stead “and because a recent state decision invalidated and voided a settlement agreement reached as a result of a federal mediation involving a municipal government,” she added, the plaintiffs were seeking clarification from the court.
The case to which she referred was Brown v. Denton, which was heard by the First District Court of Appeal in Florida. It involved the Board of Trustees of the Jacksonville Police & Fire Pension Fund. “The Brown decision specifically noted that ‘[w]e cannot condone hiding behind federal mediation, whether intentionally or unintentionally, in an effort to thwart the requirements of the Sunshine Law,’” Mogensen wrote.
Therefore, she continued, her clients had “substantial concern” that any potential agreement reached during mediation of the ACLU lawsuit against the City of Sarasota “may be nullified for violation of Florida’s Sunshine Law.”
On March 14, Judge Elizabeth A. Kovachevich issued an order saying that the city could be represented at the mediation “by the appointed representative with full settlement authority,” and she granted the time extension.
During an April 19 telephone interview with the News Leader, City Attorney Fournier pointed out, “You would never get anything done” if a mediation had to be open to the public. Therefore, the city took issue with the concern expressed by Mogensen, he added.
It is normal procedure for the city to send a representative to mediation who is authorized to act on behalf of the City Commission, he pointed out, characterizing the matter of the clarification as “a kerfluffle.”
Additionally, although the city filed a motion on Nov. 23, 2015, asking the court to dismiss the case, Fournier said he would not expect any ruling on that motion until after the mediation has been held.
In the meantime, he told the News Leader, he may schedule another “shade” meeting with the City Commission shortly after the mediation, in the event the board needs to act on a decision resulting from that proceeding. Such discussions can be held privately under the guidelines of the Sunshine Laws.
Barfield pointed out to the News Leader on April 19 that while the mediation is “still scheduled for [May 18] right now … a lot can change in 30 days,” including a request by Bradley S. Bell and Douglas J. Collins of the Bell Law Group in Tampa — who are representing the city — to seek a delay.
A News Leader check of U.S. District Court records on April 21 found no filing later than the March 16 notice that the mediation would be held on May 18. That session is set to begin at 9 a.m. in Sarasota.
Along with Mogensen, the team representing the plaintiffs comprises Tracy Pratt, Nancy Abudu and Adam Tebrugge of the ACLU Foundation of Florida. Tebrugge is the former public defender of Sarasota County.