We weren’t planning on doing this post today, but hey, why not?
There were two “interesting” things we noticed at the Cocoa Beach Commission meeting last night and we’ll take them in the order they happened.
During the Staff reports, City Attorney Skip Fowler reported on the litigation concerning the Ocean Dunes project.
Mr. Fowler reminded the Commission that the judge in the case had denied the City’s motion to dismiss based on failure to file in a timely manner. Fowler than gave an overview of the steps in the lawsuit (motions, counter motions, pleadings and answers) following which there would be a three judge panel seated to decide the case. While the date of the decision would be based on the Court’s schedule, Fowler said he expected the decision would be “maybe in April – probably in May.”
Then Fowler said something truly curious:
Assuming that you haven’t changed your minds and wish to do something different, then we’ll proceed in that direction.
“Haven’t changed your minds?” Who is this “you” and when were they asked about proceeding with defending the lawsuit?
Commissioner Skip Williams then asked:
COMMISSIONER WILLIAMS: When you say ‘you’ve not changed your minds,’ who specifically on this Board…..
CITY ATTORNEY SKIP FOWLER: The four who voted in favor of the variance.
WILLIAMS: So as far as expending additional City funds, basically to defend a rational from a property owner variance, the City is spending additional funds by having you help them defend their variance.
FOWLER: That’s largely correct. What we are defending is the Commission’s decision and that clearly is in accordance with the property owner’s desires.
WILLIAMS: Well, I would have thought that the burden of defending their rational would have fallen to the property owners and not required an incurrence of additional funding from the City Commission….
FOWLER: Well, they’re in there too, Commissioner. I didn’t mean to suggest that we are carrying all…
WILLIAMS: Well, I’m just saying it’s kind of a blindside to me that we are spending…..what do you think those costs will evolve to?
FOWLER: Well, that’s a good question. I could see it could easily go $15,000 to $20,000.
WILLIAMS: So I want to ask this Commission was it your expectation that the attorney would spend $15,999 – $20.000 to rationalize and to defend the rational for the variance on behalf of the property owner?
FOWLER: No, I expect the judge to….
WILLIAMS: I want to ask the Commission, sir.
FOWLER: I’m sorry. I thought you were speaking to me.
MAYOR MALIK: I’ll be happy to answer that. We are affirming the City’s three board process and the City is a named party in the lawsuit, so yes.
WILLIAMS: Was that an assumption on the part of the City Attorney or did other commissioners actually converse with him and give a thumbs up to expend the City funds?
MALIK: I can’t speak for them.
WILLIAMS: Did you give your thumbs up?
MALIK: I gave my thumbs up. Yes.
WILLIAMS: Commissioner Martinez?
COMMISSIONER MARTINEZ: Yeah, I spoke with Skip [Fowler] and he asked….
WILLIAMS: Commissioner Miller?
COMMISSIONER MILLER: Yeah, I would support this.
WILLIAMS: Did you get asked?
MILLER: I did.
WILLIAMS: Gave a thumbs up?
MILLER: I did. You might want to have shade meeting on this ….
WILLIAMS: It’s a little late for that.
FOWLER: Not to interrupt, but you can still have a shade meeting to discuss this.
NOTE: A shade meeting would not have helped this at all. In fact, a “shade meeting” would have been contrary to Florida Statute 286.011(8) which reads in part:
(8) Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity’s attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, provided that the following conditions are met:
(a) The entity’s attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation.
(b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.
Do not think that “litigation expenditures” means just the plain cost of litigation. It does not. According to the Florida Attorney General’s Office:
As an exception to the broader provisions of the Sunshine Law, section 286.011(8), Florida Statutes, should be read strictly or narrowly to accomplish the specific purpose of the exception. The purpose of this exemption is to put local governments and state agencies on an equal footing with the other parties in a lawsuit by allowing these governmental agencies to protect their theories of litigation strategy or settlement negotiations from the opposing party during the pendency of a lawsuit. Recognizing the public’s interest in this type of public business, however, this office will continue to read this exemption narrowly, as it would with any other specific exemption to the law.
The Commissioners were not being asked about settlement negotiations or even strategy in regards to litigation expenditures. They were being asked separately and away from the light of the public whether to go forward with the litigation. None of the Commissioners said they even discussed costs with Fowler, which means that by their own admission, the could not have had a “shade meeting.”
Furthermore, the City Charter doesn’t allow the Commissioners to be “polled” in private in cases like this. It take a Commission meeting and a vote.
Section 3.04 – City Attorney
The commission shall have the power and authority to employ or contract for other legal services when necessary to carry out the duties and responsibilities of the city government.
Williams then said there was no point in holding a shade meeting as there were three votes to go ahead. The banter continued and then Commissioner Woulas, who was attending the meeting by phone, spoke up and said:
COMMISSIONER WOULAS: I actually gave my thumbs up. I was asked too.
With his voice dripping in sarcasm, Williams then said:
WILLIAMS: Nobody asked me. Isn’t that kind of strange.
Williams is right. Why were the other Commissioners asked about spending the funds but not him?
Fowler supplied the “answer:”
FOWLER: Well, Commissioner, that was probably my fault. I probably should have said something to you but given your vote, I didn’t want to put you on the “spot” so to speak.
WILLIAMS: I have thicker skin than that, [Mr.] Attorney.
FOWLER: Well, I apologize. No disrespect intended, truthfully.
This whole exchange was bizarre. First, we want to say that the City had to defend this lawsuit. The lawsuit does name the City as a defendant. The City was faced with either defending their decision in granting the variance, or pulling back the variance and facing a lawsuit from the developer.
(The good news is that it is possible that the Court will find that not only the process was flawed, but that the Commission and Boards ignored the Charter and City Codes. That could be a big win for people who believe the City ignored the height limits within the City.)
Defending the lawsuit is but one problem.
The City Attorney said that his decision to not ask Williams was based on Williams’ vote.
If the Attorney was basing his initiating conversations with Commissioners based on who voted for the variance, can someone please show us where Commissioner Woulas voted for the variance? What meeting?
Can someone show us Commissioner Woulas’ remarks from the dais on the issue?
You won’t find them because Woulas wasn’t even elected when the vote on the variance took place.
So if Fowler avoided Williams because of his vote, shouldn’t Fowler avoided Woulas because of her (not) vote as well?
This whole scenario reeks. It is clear that the City Attorney, either on his own or under the direction of someone, “polled” Commission members outside of the public light where people could have voiced an opinion on the matter. The law and City Charter didn’t matter to the City Attorney or the other Commissioners.
Once again, we see the a lack of commitment to the laws of the state by elected officials and City Staff.
During his comments, Mayor Malik said the following:
We attended the League of Cities meeting. There is a lot of things that the State is working on that we need to keep an eye on – one of them being Senate Bill 330 which precludes our ability to charge a business tax receipt in excess of $25.00. While that sounds great, the cost to our City is about $140,000 unfunded mandate that the State would dictate to us. So I really hope we can work with the league on this to insure that we have home rule over this item.
“Home rule” and “unfunded mandates” are buzzwords these days.
The right to local self-government including the powers to regulate for the protection of the public health, safety, morals, and welfare; to license; to tax; and to incur debt.
Fundamentally, we agree with the idea of “home rule.” We think that governments closest to the people should be the ones setting the laws under which the people live.
Unfortunately, home rule as applied by politicians and elected officials is dependent on whose ox is being gored. When a city or county disagrees with a state law, the elected officials will cry “home rule!” When they agree with the idea behind a proposed state law, they will send delegations and lobbyists to the capital to lobby for that law. They will then cite the supremacy of state laws over laws in their towns and county to get what they want. Elected official have no loyalty to “home rule” and only pull it out when it suits their purpose.
However, what really caught our ear was Malik’s claim this was an “unfunded mandate.”
That’s a lie.
An unfunded mandate is a statute or regulation that requires a state or local government to perform certain actions, with no money provided for fulfilling the requirements. Public individuals or organizations can also be required to fulfill public mandates.
The State of Florida is not telling the City they have to do anything. They aren’t requiring the City to spend any money on any actions, projects or programs.
What the proposed bill does is to say how much money the government can take in taxes. Limiting the government’s reach into the pockets of people is not an “unfunded mandate.”
As a banker, one would have thought that Malik would have known that.
BONUS COMMENT: Commissioner Woulas said she was out in Vertura, California which is “a town a lot like Cocoa Beach.”
Sorry Commissioner Woulas, “scalabilty” doesn’t apply to rockets and it doesn’t apply to cities.
We’re stopping here now.
We are so tired of stupid comments and the willful breaking of the laws by elected officials.