City Commission agrees to legal fees in Sunshine case

Norman Schimmel photo

With a Sarasota citizens group having won a Sunshine Laws case in February that involved the Sarasota Civil Service Board, the Sarasota City Commission agreed unanimously April 16 to pay the group’s attorney the $90,173.18 in legal fees she was seeking for her work in the case.

The City Commission in January had decided to forgo a settlement offer by the attorney, Andrea Mogensen, when the reimbursement would have totaled $56,750.

However, City Attorney Robert Fournier explained during the April 16 commission meeting that, with the case not closed in January, the city could have ended up paying even more than the $90,173.18.

“At the end of the day,” he said, “it all worked out.”

Two city commissioners — Vice Mayor Terry Turner and Paul Caragiulo — questioned the total of Mogensen’s bill April 16, but City Commissioner Shannon Snyder voiced more concern about making sure people serving on city boards understood the gravity of their responsibilities.

“Our problem is that we have people that are volunteering on our boards and we have employees that don’t realize the cost of government,” Snyder said.

When Turner asked Fournier whether “the only way to get (Mogensen’s fees) billed down (was) to go to court,” Fournier responded that Mogensen might be willing to reduce the total “as a gesture of goodwill.”

However, Fournier explained that the amount she had submitted in January “was more or less in line for the work I felt had been done up to that point.” He added that he had anticipated another $20,000 to $25,000 if the Sunshine Laws case had gone to trial, which was what had happened.

Even though the total was higher than his estimate, Fournier said, it was “not shockingly so.”

Fournier added that he had gone through the bill and “there were no red flags.”

Fournier pointed out that Mogensen’s billing rate was $400 per hour, adding, “That’s roughly market.”

In response to another question, Fournier said he bills the city at $175 an hour, “but local government attorneys typically discount for the volume of work.”

If the City Commission chose to take the matter to court, to try to get Mogensen’s bill lowered, Fournier said, “you could incur more costs.”

Mogensen pointed out that when Citizens for Sunshine brought suit several years ago against the Town of Venice for a Sunshine Laws violation, that case covered a 10-month period, and the cost in legal fees for her office was about $800,000.

The Sunshine case involving the City of Sarasota had covered two years of litigation, and it was more complicated, she said, adding that she had taken every possible measure to keep her costs low.

The Sunshine lawsuit, Fournier explained, was filed a day after the Civil Service Board began an April 20, 2010, hearing on the appeal by former Sarasota Police Officer Christopher Childers over his firing by former City Manager Robert Bartolotta. The firing had followed the public airing of a videotape recorded at the Sarasota County Jail, in downtown Sarasota. The tape showed Childers kicking an arrestee who had managed to climb out of Childers’ patrol car through a backseat window.

Childers had arrested the man on a drunk and disorderly charge.

Fournier told the City Commission April 16 that two members of the Civil Service Board were overheard discussing Childers’ appeal before the board began hearing the case.

The attorney representing the city learned of the men’s inappropriate action, Fournier said, so she asked the board to dismiss both of them. However, that would have left the board without a quorum. Therefore, the board chairman chose to dismiss only one of the men, and the hearing proceeded.

As a result of the first day’s discussions, Fournier said, the board chose to dismiss two of the charges against Childers: use of excessive force and exhibiting conduct demeaning to the reputation of the Sarasota Police Department.

The hearing was not to resume until two days later, Fournier said. On April 21, 2010, the Sarasota Herald-Tribune carried an article about the Civil Service Board member having been disqualified for a Sunshine Laws violation. After the story appeared, Fournier said, he received a phone call from Mogensen, saying her clients, Citizens for Sunshine, were going to file suit against the city for the Sunshine Laws violation and ask the court to void the two decisions the Civil Service Board had made on April 20, 2010.

After watching a video of the board’s proceedings, Fournier said, he called Mogensen back and told her he agreed with her about the Sunshine Laws violation. However, he said, the two of them could not agree on a remedy.

Mogensen proceeded to file the lawsuit, he said, and she obtained a temporary injunction to stop the board hearing from continuing.

The city and Citizens for Sunshine probably could have resolved the issue with relatively little city expense at that point, Fournier said — perhaps for $5,000 — but the Southwest Florida Police Benevolent Association filed a motion to intervene in the case. A judge granted that motion.

Mogensen filed a petition with the Second District Court of Appeal in Lakeland to try to get the PBA intervention dismissed, Fournier said, but the appeals court ruled that the case should proceed in the 12th Judicial Circuit Court in Sarasota. Then, an appeal could be filed, if the losing party so desired, the appeals court ruled.

“So there was a lot of time and dollars spent,” Fournier said.

Ultimately, 12th Judicial Circuit Court Judge Lee Haworth ruled the PBA could not intervene in the case, Fournier said.

“Unquestionably, that intervention complicated the case,” Fournier said, “and resulted in a whole lot more dollars being spent.”

On Feb. 27, Haworth issued a Final Judgment declaring the Civil Service Board’s actions null and void and making Citizens for Sunshine, as the prevailing party, eligible for the reimbursement of legal fees, Fournier explained in a memo to the City Commission.

Commissioner Willie Charles Shaw made the motion to pay Mogensen’s firm’s fees and took the opportunity to thank both Mogensen and Fournier for their efforts in the matter.

“I think we’ve been briefed continually and extraordinarily well by our city attorney and all the players involved,” Mayor Suzanne Atwell said. “So I think this is a good and decent solution.”