Filing of briefs with Second District Court of Appeal in Lakeland expected to be completed in November; oral arguments schedule uncertain
Although Sarasota Vice Mayor Shelli Freeland Eddie asked several questions about the potential expense, the City Commission by consensus this week agreed to allow attorneys to fight a nonprofit group’s appeal of a 12th Judicial Circuit Court ruling in a Sunshine Law case against Commissioner Susan Chapman.
“I think it’s important at this point to go forward because we’ve been in this now for three years … and I think we very much would like to get an answer to that question of when … meetings have to be noticed and where minutes have to be taken,” Attorney Robert Fournier told the city board on Sept. 6.
In response to a question from The Sarasota News Leader, Fournier wrote in a Sept. 8 email that the total of attorneys’ fees paid to defend Chapman in the suit filed by Citizens for Sunshine thus far is $353,563.28. The city will seek a reimbursement of $18,267 in costs for the Circuit Court trial, he told the City Commission.
In his July 8 decision, 12th Judicial Circuit Court Judge Brian Iten ruled in favor of Chapman in the case filed by Citizens for Sunshine in 2013. The nonprofit group says Chapman, Commissioner Suzanne Atwell and other city officials were invited by downtown merchants “to attend a meeting at a private restaurant to discuss ‘the transient issue’” on Oct. 3, 2013. Chapman, Atwell, City Manager Tom 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 continues.
Both Chapman and Atwell spoke “about the homeless/transient issue” at the meeting, the suit contends. 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.
Atwell settled the case without admitting any guilt; the city also reached an agreement with Citizens for Sunshine, but Chapman fought the allegations, saying she had done nothing wrong.
In his ruling, Iten found that Chapman “engaged in no ‘deliberation’ during her passive attendance [at the meeting].” He wrote, “The opportunity for deliberation does not constitute deliberation. To find otherwise would lead to an absurd result, which is what a court is compelled to avoid when applying the law.”
However, Iten pointed out that his ruling “should not be deemed an endorsement of Commissioner Chapman’s decision to attend the October 10, 2013 gathering at Tsunami with full knowledge that another commissioner would be in attendance. Those entrusted to hold public office should always endeavor to avoid even the appearance of impropriety.”
To sum up the ruling, Fournier said on Sept. 6, “I think that the court … didn’t believe that the gathering that occurred was a quote-unquote meeting for purposes of the Sunshine Law.”
Since the suit was filed, Fournier explained, “the city has been giving notices and taking minutes at certain privately sponsored gatherings or events” when it previously would not have done so.
Prior to the filing of the complaint, he continued, he basically asked three questions when his determination was sought on whether to provide notice of a meeting and have minutes taken:
- Would two or more city commissioners be present?
- Would discussion ensue of an issue that was reasonably foreseeable to come before the City Commission at some future time?
- Would the commissioners be in a situation during which they would be called upon to speak or act, or might they have the desire to do either?
“And if I could answer all three of the questions ‘Yes,’ I would say … we should give notice of this meeting … and have minutes taken and ensure it is open to the public,” he said, based on the provisions of the Sunshine Law. The key concern, he pointed out, would be the potential for deliberation between two or more board members.
In the view of Citizens for Sunshine, Fournier continued, only the first two of his questions needed to be answered affirmatively for a meeting to be noticed and minutes taken of the discussion.
The 12th Judicial Circuit Court found that Chapman and Atwell did not speak to each other at the 2013 meeting, and neither Barwin nor Brown acted as an intermediary between them to engage them in dialogue, Fournier noted.
“Much of our case was based on minutes of public meetings” during which homelessness issues were discussed, Chapman pointed out to her colleagues. “So that’s in the record.” The court decided “that that gathering [at Tsunami] had no real connection to the ultimate decision of the commissioners when they were acting,” she added.
Citizens for Sunshine — represented by Sarasota attorney Andrea Flynn Mogensen — based its argument heavily on the Florida Fifth District Court of Appeal ruling in Finch v. Seminole County School Board, Fournier explained. He was not aware of that decision prior to the filing of the Citizens for Sunshine complaint against Atwell, Chapman and the city, he continued, and apparently many other local government attorneys apparently joined him in that lack of knowledge. Otherwise, Fournier said, he felt sure he would have heard discussion of it before the complaint was filed.
In the Finch case, he noted, all five members of the school board were present at a gathering, and they made a decision on an issue on the basis of discussions during that meeting, for which no public notice had been provided in advance.
Fournier pointed out that Citizens for Sunshine filed its appeal “quite soon” after Iten issued his ruling.
“I don’t believe that the appellate proceedings should be nearly as expensive as the trial court proceedings,” he told the commissioners. The “best ‘guesstimate’” he and consultant Thomas D. Shults of the Kirk-Pinkerton firm in Sarasota had arrived at, Fournier said, was 10 to 15 percent of the total spent thus far; that would be a range between $35,000 and $50,000.
If it appeared the expense would exceed the 10-percent level, Fournier added, he would advise the board of the situation and ask for further direction.
Citizens for Sunshine’s brief in the case is due Sept. 20, Fournier continued. Then the brief for Chapman would have to be filed no later than 30 days after that. The Citizens for Sunshine reply would follow within another 20 days, he said. That would put the case into November, Fournier noted, adding that he felt it “highly likely” the Second District Court of Appeal in Lakeland would hold oral arguments. “That can happen anywhere from a few weeks to a few months after the briefs are in,” he pointed out.
As for when the ruling would come: The appellate court is “under no timeline or deadline,” Fournier said.
When Freeland Eddie asked about recovering attorney’s fees from Citizens for Sunshine, Fournier said that effort would be pursued after the appellate court ruling has been handed down.