Residents question some of City of Sarasota’s legal fee payments in Big Pass case; city attorney provides updated figure for outside counsel’s expenses; mediation the new focus in North Beach Road lawsuit; judge schedules Oct. 22 hearing on motion for fees in Ramirez’s civil case; SKA and Condo Council urge members to attend Siesta Promenade Neighborhood Workshop; and two Florida House candidates set out their positions on Big Pass dredging
A number of Siesta residents have questioned the fact that the City of Sarasota has paid some of the expenses of the Lido Key Residents Association (LKRA) as that organization has fought the Siesta Key Association (SKA) and Save Our Siesta Sand 2 (SOSS2) in their efforts to prevent the dredging of Big Sarasota Pass.
Siesta businessman Michael Holderness sent an email on July 12 to the city commissioners, noting that, as of May 1, the city had paid $203,829.20 to the St. Petersburg firm of Lewis, Longman & Walker, which has represented the LKRA.
“Under what authority can a City use public funds to pay for the attorneys of private landowners?” Holderness wrote. “I think such expenditures may even be illegal.
“Did the City [Commissioners] approve this expenditure?
“Please investigate this use of funds.”
This spring, City Attorney Robert Fournier provided an explanation to the News Leader about those payments. He pointed out that the city’s outside counsel in the Big Pass cases — John R. Herin of GrayRobinson in Fort Lauderdale — would have had to have help from other people in his firm if Lewis, Longman & Walker had not handled certain aspects of preparation for the Florida Division of Administrative Hearings (DOAH) proceeding in December 2017, during which the SKA and Save Our Siesta Sand 2 fought the dredging proposal.
In a July 12 email, Fournier provided more details, replying to Holderness’ note to the commissioners.
“[T]he subject expenditure is certainly not ‘illegal,’ he wrote. “The fact that the Lido Key Residents Association (LKRA) is an organization composed of private citizens (all City residents) is not determinative as to the legality of the expense. There are two relevant questions in this regard. The first question is whether the expense was for a proper municipal purpose. I would answer this question affirmatively. The expense was necessary to obtain the permit from the Florida Department of Environmental Protection to nourish Lido Beach — a valuable City asset. The second question is the extent to which the interests of the City of Sarasota and the LKRA coincided or overlapped in the administrative proceedings before the Division of Administrative Hearings (DOAH). The answer to this question is that the interests of the City and the LKRA were identical.”
Fournier continued, “The City Commission did not specifically authorize this expense. But that is not unusual as the City Commission generally acknowledges that the management of litigation and the hiring of outside counsel and expert witnesses are included within the scope of my responsibilities. For example, the City Commission did not specifically approve the hiring of the Gray Robinson firm in the DOAH proceedings. The fact that this expense was not specifically authorized by the City Commission doesn’t mean that it was kept secret. I have sent out updates regarding the legal expenses of the DOAH proceedings, have mentioned this at public meetings and have spoken to Commissioners individually about this particular expense. Also, the City Manager has been aware of this expenditure from the outset as I believe the request for cost sharing was initially communicated to him. Both … City Manager [Tom Barwin] and I were well aware of the commitment to the restoration of Lido Beach on the part of the City Commission and viewed the expenditure as fully consistent with this commitment.”
Fournier added, “I would also note that this was a two way street. The City did not pay all of the attorney fees charged by the Lewis, Longman & Walker firm. The LKRA paid significant fees to that firm as well. The legal work that was paid for by LKRA also benefitted the City.”
Fournier concluded his letter with the following: “Finally, if you don’t know this already, Mr. Holderness was one of the individually named petitioners in one of the petitions filed with DOAH to challenge the issuance of the [FDEP] permit. (SKA was his co-petitioner). To the best of my knowledge, he is not a City resident. But for the unfounded petitions that were filed to challenge the issuance of the permit, the City would not have incurred any legal expenses in defending its right to obtain the permit in the first place.”
The email exchanges apparently caught the eye of Sarasota businessman Martin Hyde, who ran for City Commission in 2017. Hyde routinely appears before the board at its regular meetings, offering his views on a variety of issues. He also has indicated that he plans another run for a seat on the commission.
On Aug. 13, Hyde sent an email to Fournier in response to Fournier’s explanation.
“With all due respect,” Hyde wrote the city attorney, “you are glossing over a few highly relevant points as follows:
“1. The City commission had already authorized the hiring of its own counsel in the matter.
“2. There is NO letter of agreement between the City and this law firm,” he added. Therefore, “I’m at a loss to know how monies can disbursed to them?
“3. Subjectively by implication you are asserting that there is no limit or caveat on legal fees or the manner in which they are agreed to be paid.
“4. Even if the Commission doesn’t want to participate in substantial cash expenditures citizens are certainly entitled to know and this has absolutely been done out of the public domain.
“5. If there is no legal agreement between the City and this law firm does it not present an issue of disclosure to the defense and the court if the City has a de facto shadow counsel?
“6. Can I see the email today as a public record from the City manager to you that agrees [to] the amount of the payments or to whomever it was sent to authorize the disbursement of a check on behalf of another organization whose name was the only one on the invoice?
“7. Can someone confirm that the City is willing to pay invoices this haphazardly going forward i.e. without a direct bill in the City’s name and sans any direct Commission authorization?
“8. Is there any point at which the sums might be questioned? $200k would seem a significant level to warrant more formal arrangements but maybe I’m old fashioned.”
Finally, Hyde wrote, “I have a few bills I’d like the City to pay too. Can you tell me to whom I should forward them? They’re all for the common interest of the City so perhaps you could use the same system and slush fund as you did for this?”
And speaking of the city’s legal fees …
Sarasota City Attorney Robert Fournier has been prompt in responses to the News Leader over the past months when the News Leader has inquired about the city’s legal fees in the Big Pass cases. This week, he wrote that the total amount the city has paid GrayRobinson — where its outside counsel practices in Fort Lauderdale — is $415,085.71.
In his previous update at the News Leader’s request, Fournier noted that the total paid to GrayRobinson as of July 10 was $392,595.25.
Fournier added in his Aug. 13 email that the latest sum for GrayRobinson “includes both the administrative proceedings and the Circuit Court case.”
The latter reference is to the SKA’s efforts — as detailed in the 2017 filing of a verified complaint — to show that the city must have approval of Sarasota County to dredge Big Pass, thanks to a county environmental policy in the county’s Comprehensive Plan. On July 24, 12th Judicial Circuit Court Judge Andrea McHugh heard arguments relative to the city’s Motion to Dismiss that case. She allowed both sides to file supplemental material.
It could be early September, SKA Vice President Catherine Luckner told members during their Aug. 2 meeting, before McHugh rules on the motion.
In his Aug. 13 email to the News Leader, Fournier also noted, “The other totals are the same and will remain the same.” In that statement, he was referencing payments involving preparation for the DOAH proceeding and expert witnesses, as well as the fees to Lewis, Longman & Walker, which has been representing the Lido Key Residents Association.
Speaking of court cases …
The complaint Siesta resident Mike Cosentino filed against Sarasota County in June 2016 regarding the County Commission’s vacation of a 357-foot-long segment of North Beach Road also remains unresolved.
Although the complaint was filed only about a month after the board vote, it was not served on the county until right at the 90-day deadline required by the state for such service. Therefore, the case got off to a slow start, one might say, in the 12th Judicial Circuit Court.
On July 24, Judge Frederick Mercurio heard more motions in the case, which not only involves the county and Cosentino but also North Beach Road property owners Dennis and Wendy Madden. The Maddens were among three sets of petitioners in 2016 who had sought the road segment vacation. They want to tear down old rental structures they own on property landward of the road segment so they can construct fewer new dwelling units that will conform to modern building codes. The County Commission in May 2016 granted them a Coastal Setback Variance for that work, but they have not begun the project as the Cosentino case has continued.
On Aug. 7, a document filed in the Circuit Court says Cosentino and the Maddens stipulated to a motion for a temporary abeyance of the case “in order to pursue settlement negotiations and formal mediation …”
That motion points out that, following the July 24 hearing, “the above-named parties expressed an interest in pursuing formal mediation as soon as possible. … The parties will need a temporary abeyance of these proceedings in order to give the mediation process a chance to resolve all outstanding issues. Due to the schedules and obligations of all concerned, the parties request more time than was originally requested …”
The motion indicated that the Maddens and Cosentino hoped to conclude mediation by 5 p.m. on Aug. 9.
Then an Aug. 10 motion from Cosentino notes the “voluntary, preliminary mediation” was held on Aug. 9 at the offices of the Williams Parker law firm in Sarasota. (Williams Parker has been representing the Maddens.)
That motion points out that the county declined to send counsel to the session, and an intervening party in the case, William H. Caflisch — one of the other petitioners for the road vacation — never responded to emails from attorneys for Cosentino or the Maddens regarding his attendance at the mediation session. The motion adds, “Resolution of the complex issues involved in this cause require all parties to attend mediation to reach a viable and binding settlement.”
Therefore, Cosentino asked the court to compel mediation and issue an order requiring that it be held within 60 days of the date of that order.
In the meantime — as detailed in another motion filed on Aug. 9 — Cosentino’s attorney, Lee Robert Rohe of Big Pine Key, asked for a continuance of any hearings scheduled between Sept. 4 and Oct. 4 because the Florida Supreme Court had suspended Rohe from practicing law for 30 days beginning on Sept. 4 and ending on Oct. 4. “No petition for reinstatement [to the Florida Bar] will be necessary,” Rohe added.
“The suspension arises from an October 2015 complaint to the Florida Bar by a nonparty, out of state witness,” the motion says. Rohe had served a subpoena on that witness in Michigan. However, the motion explains, “The subpoena did not comply with Florida’s Uniform Foreign Depositions law, nor with the Michigan Uniform Interstate Depositions and Discovery Act. Thus, there was no compulsion for the witness to appear.”
And in another court case
Regular readers may recall from the News Leader’s Aug. 10 edition that Siesta Key resident Lourdes Ramirez lost a years-long civil case against her fellow Siesta resident, Robert Waechter, involving his admitted theft of her identity information to provide contributions to Democratic candidates for office in 2012.
As Ramirez is a Republican, her receipt of a thank-you note from one of those candidates prompted her to speak to an officer at the Sarasota County Sheriff’s Office. That led to charges against Waechter and, eventually, a 2013 plea deal.
At the conclusion of the civil case this month, Waechter’s attorney, Morgan Bentley of Bentley & Bruning in Sarasota, filed a motion seeking close to $40,000 in attorneys’ fees and costs.
On Aug. 14, Circuit Judge Andrea McHugh — who, on Aug. 2, granted Waechter’s motion to dismiss the case — set a hearing for 10 a.m. on Oct. 22 on Bentley’s motion.
A distinct decline
During the Aug. 2 Siesta Key Association (SKA) meeting, long-time member Margaret Jean Cannon mentioned at one point that the number of registered voters on the island has been decreasing. She cited that fact in the context of the increasing number of multi-story houses being constructed for tourists, indicating that fewer property owners actually live on the Key.
This week, the News Leader contacted Rachel Denton, communications and voter outreach manager for the Sarasota County Supervisor of Elections Office. The News Leader asked Denton for the numbers of registered voters on Siesta Key for 2008, 2013 and 2018. The statistics Denton provided prove Cannon is correct. The figures follow:
- 2008 — 8,202 registered voters as of 12/1/2008.
- 2013 — 7,739 as of 11/1/2013.
- 2018 — 7,136 as of 8/1/2018.
SKA, Condo Council members encouraged to attend workshop
Both the Siesta Key Association and the Siesta Key Condominium Council are encouraging their members to attend a required workshop next week as Benderson Development seeks county approval for its Siesta Promenade project.
The proposed mixed-use development — with 414 condominiums/apartments, a 160-room hotel and 140,000 square feet of office/retail space — would stand on about 23 acres at the intersection of U.S. 41 and Stickney Point Road.
The email blasts the two nonprofit organizations sent to members last week point out that Todd Mathes, Benderson Development’s project manager for Siesta Promenade, has scheduled the Neighborhood Workshop for Thursday, Aug. 23, at 6 p.m. at the Pine Shores Presbyterian Church, located at 6135 Beechwood Ave. in Sarasota.
The formal listing on the county webpage for such workshops says the one for Siesta Promenade is scheduled to end at 7 p.m. It also lists the phone number for Mathes: 941-360-7266.
“This is the one and only meeting that Benderson is required to hold to present the project and to ‘hear Sarasota residents’ concerns,” the SKA email blast says. “County staff will be in attendance.”
The message adds, “If you are concerned about the effects of this project on Siesta Key, please make every effort to be there. Paved parking is located off of Crestwood and also Beechwood, next to the sanctuary, and overflow grass parking [is] at the intersection of Crestwood [Avenue] and Glencoe [Avenue].”
The Condo Council email blast notes, “It may be that Benderson is trying to fast track the application to get it heard prior to the election, or at least before the new commissioners start their terms.”
At least one member of the County Commission — Paul Caragiulo — is not seeking re-election. Three newcomers are vying for his District 2 seat. (See the related story in this issue.) However, in the District 4 race, Commissioner Alan Maio is running for a second term on the board.
“[V]isit our Siesta Promenade Project Page for more information from SKA,” the SKA email blast says.
Good, Pilon oppose USACE plans for Big Pass
This week, SKA Vice President Catherine Luckner and her husband, Robert — a member of the nonprofit’s Environmental Committee — let the News Leader know that they had been in communication with two of the candidates for the Florida House District 72 seat about the SKA’s opposition to plans for dredging Big Sarasota Pass to renourish South Lido Key Beach.
Both Luckners have undertaken considerable research on behalf of the SKA to underscore the nonprofit’s concerns about the potential for damage not only to the waterway but also to Siesta Key if millions of cubic yards of sand are removed from Big Pass over the proposed 50-year lifetime of the renourishment initiative.
The candidates are Democrat Margaret Good of Siesta Key, the incumbent, who is unopposed; and Ray Pilon of Sarasota, a former House member who is facing Jason Miller of Sarasota in the Aug. 28 Republican Primary.
During a meeting with Good, Robert Luckner told the News Leader, he and Catherine explained why the SKA believes the project should not proceed without an in-depth environmental analysis having been undertaken. (See the related story in this issue about Save Our Siesta Sand 2.) They also believe the City of Sarasota — which is a joint applicant with the U.S. Army Corps of Engineers for the project permit — needs Sarasota County permission to dredge the pass.
Good responded in an Aug. 8 email, “Thank you for meeting with me. Issues surrounding the health of our coastal waters and Sarasota Bay are of upmost interest to me. Once I have studied the issue further, I can then determine what role, if any, I can contribute to the conversation.
“Again, thank you for your level in engagement in such an important issue to our community,” Good added.
In an Aug. 14 email, Pilon wrote the Luckners, “I support your stance 100 [percent].”