Board also will be asked to consider whether to try to recover part or all of the city’s legal fees
Just as the Sarasota city attorney had predicted, the Second District Court of Appeal denied Citizens for Sunshine’s Motion for Issuance of a Written Opinion in the Sunshine Law case involving City Commissioner Susan Chapman.
That signals the end of litigation that began in the fall of 2013, City Attorney Robert Fournier pointed out in a May 5 email to all the city commissioners and City Manager Tom Barwin.
However, the vice president for the American Civil Liberties Union (ACLU) of Florida told The Sarasota News Leader in a May 10 interview that he felt the appellate court’s decision was a disservice to the taxpayers, who — through the city — have paid for Chapman’s defense. By declining to explain its reasons for upholding the 12th Judicial Circuit Court’s July 2016 decision in favor of Chapman, Michael Barfield said, “it was the equivalent of the appellate court punting, because there’s no binding decision. … We’re back to square one.”
Twelfth Judicial Circuit Court Judge Brian Iten ruled last year that Chapman did not violate the state’s Sunshine Law by attending an October 2013 meeting at a downtown restaurant that had been organized by business owners concerned about issues related to homelessness. The gathering — which Commissioner Suzanne Atwell, Barwin and Deputy City Manager Marlon Brown also attended — was not advertised to the public. Citizens for Sunshine filed suit against the two commissioners and the city on Oct. 18, 2013, saying the meeting was a violation of state requirements for public business to be conducted in the open. The two commissioners, the complaint argued, should have been well aware of the potential for “the homeless/transient” issue to come before them at a future City Commission session.
Atwell and the city subsequently settled with Citizens for Sunshine, though Atwell did not admit to any wrongdoing.
However, as the case unfolded, Chapman remained adamant that she had not violated the law. By continuing to fight the lawsuit, she told the News Leader last month, “I was standing up for the rights of citizens.”
She has blamed negative publicity over the litigation as one key factor in her failed bid this year to keep the at-large seat she won in 2013. As Barfield pointed out to the News Leader on May 10, Chapman has dealt with the case during the vast majority of her time on the board.
During an April 5 telephone interview with the News Leader — following the release of the Court of Appeal decision — she was optimistic the litigation was at an end, so “I don’t have to, in my private life, be under a cloud.”
The Court of Appeal issued a Per curiam order after hearing arguments in the case. The Legal Information Institute at the Cornell University Law School defines a “per curiam” ruling 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.”
Barfield, who also is a paralegal who works with Andrea Mogensen of Sarasota — the attorney for Citizens for Sunshine — told the News Leader on April 5 that the nonprofit would seek the formal, written opinion from the Second District Court because of the need for “clarity going forward.” Otherwise, he pointed out, a different Circuit Court judge in Florida could offer a different opinion if faced with a case involving a situation similar to the one that unfolded at the Tsunami restaurant in downtown Sarasota in October 2013.
“I don’t think it’s fair for [Chapman], really, that she got no binding precedent,” Barfield told the News Leader on May 10. “That was her entire argument” for fighting the lawsuit, he pointed out: to have the issue settled.
Even though Iten ruled in Chapman’s favor, he did chastise her, writing that that action “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.”
The city’s stance
Fournier disagreed with Barfield’s view of the appellate court’s decision not to issue a written opinion. “I think that the more important issue,” he told the News Leader in a May 10 telephone interview, is that the “precedent on interpretation of the [Sunshine] Law is undisturbed.”
“We’ve said at the outset,” he continued, that the Citizens for Sunshine litigation was an effort “for expansion of the scope of the Sunshine Law, which argument I think was rejected at both the circuit and appellate court levels.”
During the June 5 City Commission meeting, Fournier said, he plans to discuss with the board in-depth how it wants to proceed in the future with providing notices of meetings. In the wake of the filing of the Citizens for Sunshine complaint, the city began providing notices and taking minutes at some gatherings or events when it previously would not have done so. The key concern before the legal case began, Fournier told the commissioners during a September 2016 regular meeting, was whether two or more board members would be present at a gathering and whether the potential for deliberation between them existed.
The commissioners may want to revert to the procedure prior to the filing of the suit, he said, or “they may want to [provide] notice [of] some meetings. … I just think that discussion is warranted.”
In the May 5 email he sent to the board and Barwin, Fournier wrote that his focus would be on commission “policy with regard to the attendance of two or more Commissioners at privately sponsored events at which a matter that is reasonably foreseeable to come before the City Commission will be discussed. (Please note that this policy would also apply to City advisory boards.)”
For the time being, Fournier told the News Leader, “we will do more or less what we have been doing” since October 2013.
On June 5, Fournier told the News Leader, he also plans to gain the commissioners’ direction about whether to proceed with trying to collect attorneys’ fees in Chapman’s case. During the April 17 City Commission meeting, Thomas Shults of the Kirk Pinkerton firm in Sarasota — who represented Chapman — outlined the potential for recovering at least some of the $390,493.22 the city had spent on her defense at that point.
Fournier told the News Leader on May 10 that will provide a detailed report to the city board members in advance of the June 5 session, so they will be well aware of their alternatives and the potential expenses.
Members of the public also will have the opportunity to express their views on the issue, Fournier noted.