District Court of Appeal upholds Circuit Court decision in Chapman Sunshine Law case

The plaintiff, Citizens for Sunshine, plans to file a motion seeking a full written opinion, as the appeal court did not provide one

City Commissioner Susan Chapman. File photo

In an opinion released on April 5, Florida’s Second District Court of Appeal has affirmed a lower court’s decision that Sarasota City Commissioner Susan Chapman did not violate the state’s Sunshine Law when she attended a private meeting in October 2013 that was organized by downtown business owners to discuss issues relating to homelessness.

The ruling 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.”

Because of the nature of the order, a paralegal in the law firm representing the plaintiff in the case told The Sarasota News Leader on April 5, “We will be filing a motion to ask the Court to provide us with a formal, written opinion.”

Michael Barfield 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 Without a written opinion it is not binding precedent and we could easily find ourselves in the same situation in the future.”

The plaintiff is Citizens for Sunshine. The nonprofit’s attorney is Andrea Mogensen of Sarasota.

“I knew it was a frivolous case from the beginning,” Chapman told the News Leader in an April 5 telephone interview. When she attended the downtown meeting in October 2013, she stressed, “I was following the Sunshine Law manual to a T.” Moreover, she pointed out, she had been a practicing attorney for 35 years when she was elected to the City Commission in 2013, so she was well acquainted with open meetings regulations.

“This is a good day for the First Amendment and the Sunshine Law,” Chapman’s attorney, Thomas Shults of the Kirk Pinkerton firm in Sarasota, said in an April 5 telephone interview with the News Leader. “The Sunshine Law was never intended to interfere with the right of citizens to assemble and speak to their representative.”

Thomas Shults. Image from the Kirk Pinkerton website

Chapman made a similar comment to the News Leader, noting that in fighting the case, she “was standing up for the rights of the citizens” to be able to talk with their elected officials.

Asked if they were surprised the court ruled so quickly after the oral arguments were held on March 22, both Chapman and Shults told the News Leader they were not. However, Shults was quick to note that he had had no intention of predicting when the decision would be issued. “I thought that the oral arguments went very well,” he said. The judges seemed to be well versed in the case, he added. “The questions they asked were right on point.”

The Florida League of Cities had filed a “friend of the court” brief on Dec. 12, 2016, supporting Chapman.

In the original Citizens for Sunshine complaint, Commissioner Suzanne Atwell and the City of Sarasota also were defendants. Atwell and the city both settled with the organization, though Atwell did not admit any guilt.

The gist of the complaint

Citizens for Sunshine argued in its complaint — filed on Oct. 18, 2013 — that Chapman, 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 complaint said.

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 complaint said.

The Tsunami restaurant is located on Central Avenue in downtown Sarasota. Image from the restaurant’s website

In his July 8, 2016 order, 12th Judicial Circuit Court Judge Brian 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.”

In summing up the Circuit Court decision for the City Commission on Sept. 6, 2016, City Attorney Robert Fournier said, “I think that the court … didn’t believe that the gathering that occurred was a quote-unquote meeting for purposes of the Sunshine Law.”

Andrea Flynn Mogensen. Image from her law firm website

As a stipulation of its settlement of the case in November 2013, the city did admit that its “failure to provide notice” of the meeting at the Tsunami, as well as its failure to take minutes of the proceedings, violated the Sunshine Law “because it was known to the City that two or more City Commissioners would be present; and because the City accepted the invitation to the meeting intending ‘to build a coalition to support our homeless efforts’ and to build support for a subject that was reasonably foreseeable to come before the City Commission for future action.”

Expenses of the case
In response to a question from the 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.”

On Nov. 28, 2016, Judge Iten awarded Chapman $9,238.16 in costs associated with the Citizens for Sunshine case, with interest to be accrued at the statutory rate of 4.91% as the case continued at the appeal level.

On Nov. 9, 2016, Shults had filed an affidavit with the court, showing the total of his costs incurred representing Chapman at that time was $20,348.26.

He also filed a motion with the court on Aug. 8, 2016, citing state statutes in seeking attorneys’ fees and costs. Among the provisions of law to which he pointed, Shults wrote that Florida Statute 286.011 allows a court to assess “a reasonable attorney’s fee against the individual filing [an action …] if the court finds it was filed in bad faith or was frivolous.” Shults added that the facts in the case established that Citizens for Sunshine’s lawsuit “was politically motivated and pursued in bad faith.” He wrote that the nonprofit had continued “to maintain that there was a discussion between Susan Chapman and Suzanne Atwell about the ‘homeless/transient issue’ at the [Tsunami] gathering without any support for that position whatsoever.”

Going forward

Chapman told the News Leader on April 5 that she would not feel comfortable celebrating the appeal court’s decision until the case was final.

The Court of Appeal order states, “Not final until time expires to file rehearing motion,” and, if one is filed, the court has made a determination on it.

Nonetheless, Chapman remained hopeful, she said, that she will not have to “live under a cloud” in her private life.

On March 21, she lost her bid for re-election to the at-large City Commission seat she won in 2013. Candidate Martin Hyde won the third runoff spot by collecting 55 more votes than Chapman. The runoff is set for May 9.

Hyde has been a vocal critic of Chapman’s decision to fight the case.