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Palm Bay: City Council Thinks Laws Don’t Apply To Them And Are Councilman Holton’s Pants On Fire?

It’s never boring in the City that is “Great to Grow In” and last Thursday’s City Council meeting was no exception.

Probably the “big item” for the meeting was agenda item #5 in the Public Hearings section which read:

Request by D.R. Horton, Inc. and Waterstone Farms, LLC for final development plan and preliminary plat approval for a proposed single-family residential development to be known as The Gardens of Waterstone at Palm Bay, which property is located south of and adjacent to the Melbourne-Tillman Water Control District Canal No. 38, in the vicinity west of Babcock Street (96.66 acres)(Case No. PUD-6-2018).

This was a “quasi-judicial hearing,” which means that the Council was sitting in place of a magistrate / judge to decide an issue over which they have intimate knowledge. It also means that a whole set of rules and laws kick in, several of which we will discuss in a moment. Essentially, the thing to remember is that this hearing is a trial with a little less formality.

The item was contentious as one might expect but that is not what we wish to focus upon.

After the initial presentations, questions and banter, Mayor Capote opened up the floor for comments by citizens. One of the people that spoke was Thomas Gaume, who is a candidate for the City Council Seat 4 and is running against incumbent Calvin “Tres” Holton, and Kenneth Brian Johnson II. Gaume stepped up to the microphone at 42:25 of the video below.


Prior to his actual comments, Gaume asked the Council to give their “disclosures.” “Disclosures” are statements by the Council which are required by both City and State law where Council members are required to state any meetings they had with the parties that are considered to be “ex parte” or where only one party is present at the meeting.

Palm Bay’s Ordinance Code covers ex parte communications:

§ 59.06 EX PARTE COMMUNICATION.

(B) The following process is hereby established for ex parte communications with any Local Public Official:
(1) Disclosure.
(a) The Local Public Official shall disclose the occurrence of all ex parte communications involving said official that relate to the quasi-judicial matter pending before the quasi-judicial body on which the Local Public Official serves.
(b) The disclosure shall occur by no later than the commencement of the final public hearing, or if no formal public hearing is held, then at the commencement of any hearing at which the final decision regarding the quasi-judicial matter is made. The Local Public Official shall disclose the ex parte communication orally or in writing. Any such writing disclosing the occurrence of the ex parte communication shall be placed in the official file regarding the pending quasi-judicial matter which file shall be maintained by the City and shall be made a part of the record.
(c) At the time of disclosure, the Local Public Official shall identify the person, group, or entity with whom the ex parte communication took place, the general substance of the ex parte communication, and any matters discussed which are considered by said official to be material to said member’s decision in the pending quasi-judicial matter.

The Council, starting with Mayor Capote, gave their answers at 42:40 of the video.

If you are following along, right off the bat, there are issues between the disclosure statements and the City Code:

(b) The disclosure shall occur by no later than the commencement of the final public hearing, or if no formal public hearing is held, then at the commencement of any hearing at which the final decision regarding the quasi-judicial matter is made. (emphasis ours)

It’s somewhat interesting to see that Councilman Santiago stated “we usually do this at the beginning of our discussion” when the City’s Code demands that the Council makes their disclosures are the start of the hearing – not in the middle of it as Santiago said.

In fact, in the other quasi-judicial hearings that night, there were cases where no disclosures were made. None. Zero. Nada. Zip.

We don’t think that it is too much that the City Council follow the laws. We really don’t. There is great concern throughout the City about corruption, wrong doings, misdeeds, etc., and in our mind, one of the first steps in addressing and fixing these things is to have a City Council that is not above the law.

As the Council members stated their disclosures, another issue arose. They are disclosing some of the people they met with, but that doesn’t meet the requirements of the law either.

(c) At the time of disclosure, the Local Public Official shall identify the person, group, or entity with whom the ex parte communication took place, the general substance of the ex parte communication, and any matters discussed which are considered by said official to be material to said member’s decision in the pending quasi-judicial matter. (emphasis ours)

One by one, Mayor Capote, Councilman Anderson, Councilman Bailey and Councilman Santiago make statements, none of which comply with the law.



SIDE NOTE ONE: What makes this lack of compliance so strange to us is that the Ordinance establishing this part of the code was written or updated in May of 2015 – just 3 years ago.

At the time, the Palm Bay City Council consisted of:

MAYOR: William Capote *
DEPUTY MAYOR: Harry Santiago, Jr.*
COUNCILMEMBER: Michele Paccione
COUNCILMEMBER: Tres Holton*
COUNCILMEMBER: Jeff Bailey *

* – still sitting on the City Council.

Is it really too much to ask that the four members of the City Council that passed the ordinance in 2015 remember it? It is too much for the citizens of Palm Bay to agree to the idea that the City Council is not above the law, especially the laws that they pass that apply only to them? Shouldn’t the Council hold themselves accountable for the laws they pass?


Finally, Deputy Mayor Calvin “Tres” Holton made his statement. He fared no better than the others in compliance with the law. Like the others on the dais, his statement was not complete. Here’s what Holton said (starting at 44:25 of the video)

(His statement is a little disjointed, but to be fair it is not always easy to make extemporaneous statements like this. We won’t fault him for that.)

We have transcribed what he said:

Like pretty much everyone, I did also in addition I tried to meet with Scott Knox but he disclosed to me that he was representing someone opposed so that pretty much ceased that conversation. I had a conversation with Mr. Buchanan; pretty much everyone that everyone already discussed. I did want to meet actually with the applicant and responded back to the Clerk asking for dates for us to meet but I never heard back from there. I really truly wanted to meet with them but I didn’t get that opportunity; they didn’t follow up. And just because of what happened last meeting, I did provide professional services to the applicant nine years ago.


SIDE NOTE TWO: (We want to take casual note that Holton reached out to one of the parties. That seems to be a violation in principle of the City Code which states:

Bookmark§ 59.06 EX PARTE COMMUNICATION.

(A) Ex parte communications, while not prohibited, are improper and greatly discouraged.

It is one thing when someone wants to meet with you and another thing when you as a Council member reach out to them. As we said, Holton reaching out seems to be in violation of the spirit of the law.)


After Holton’s statement, Gaume responded, starting at 45:20 of the video.

Gaume showed a picture – this picture –

Left to right: Scott Know, Calvin “Tres” Holton, Stuart Buchanan.
(click for larger image in new window.)

– – to the Council of a meeting with Holton and two people who are parties to the item at hand, Stuart Buchanan and attorney Scott Knox.

The image was taken on Wednesday night after a Planning and Zoning Board meeting by someone and forwarded it to Gaume.

Capote asked if Holton would “like to respond,” and Holton did starting at 46:50 of the video, saying:

Pictures from around corners get a little creepy. It’s like a “peeping Tom,” At any rate, as I stated in my disclosure, I said that I had spoken with them. Just as you guys have spoken with the other side, I think we’ve all met with both sides.

We want to break down Holton’s statement as it doesn’t make any sense to us and may not be truthful.

First, the snarky comment about “pictures around corners” is a poor attempt at deflection. Courts around the country have stated that there is no “expectation of privacy” when one is in public. If it were, the City’s own cameras would be in violation of some unknown and unidentified law. (It is also why if you are out and about and a photographer takes a photo of you in the background for an advertisement, you have no claim to usage rights.) To claim the image was taken by a “peeping Tom” is ludicrous but it is in keeping with a strategy that Holton has adopted: when caught, attack the messenger. In this case, he tried to make a connection between an illegal, sordid activity and someone snapping a perfectly legal picture. We aren’t sure that a Council member should be attacking a citizen for a legal activity, but that is our opinion. Sadly, Holton knows that no one on the Council will even inquire into the image – not when or where it was taken, who is in it, etc. Everyone just seemed to look away as if to say “nothing to see here, move along.”

The next question that needs to be answered is “did Holton have to disclose his Wednesday meeting with Knox and Buchanan?”

The answer in a general sense is “perhaps.”

The City Code defines ex parte communication as:

§ 59.02 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

EX PARTE COMMUNICATION. Communication involving a Local Public Official and a member of the public regarding a quasi-judicial matter pending before the City Council or other Quasi-Judicial Body on which the quasi-judicial member serves.

If the three were casually and briefly talking about something like fishing, the weather, etc, the meeting need not be disclosed in all cases.

However, courts have taken a slightly more aggressive approach to even “casual contact.” In general, the Courts have said there is nothing wrong with seeing someone in a hallway and saying “hello,” or seeing someone at a restaurant and acknowledging their presence. Those types of meetings and encounters need not be disclosed. Courts have ruled that the disclosure of contacts and meetings are to provide all parties with the assurance that nothing happened and even the appearance of having an ex parte communications must be avoided.

The image in question was of a meeting that was over five minutes in length – far too long for the “casual meeting” exception.

Even if someone wanted to raise that the meeting between Holton, Knox and Buchanan was “casual,” we have proof that it wasn’t (and we weren’t even there to hear what was said that Wednesday night.)

That proof comes from the mouth of Holton himself.

In his rebuttal, Holton said:

At any rate, as I stated in my disclosure, I said that I had spoken with them….

Holton himself is saying that he had disclosed the Wednesday night meeting from which the image emerged. It is Holton himself who is saying that the meeting met the requirements for having to be disclosed. He tried to brush off Gaume’s point by simply saying “I did disclose that meeting.”

But there is a problem.

In the image, Holton is turned toward Scott Knox. They seem to be conversing and even if they were not, it is clearly a “meeting” of the two men.

This would be the same Scott Knox who in his disclosure statement, Holton said:

…in addition I tried to meet with Scott Knox but he disclosed to me that he was representing someone opposed so that pretty much ceased that conversation.

So which is it?

Did Holton meet not meet with Knox as he stated in his initial statement, or did he meet with Knox in a meeting that needed to be disclosed he said in his rebuttal statement?

We aren’t seeing much wiggle room for both statements to be true.

It appears to us that somewhere Holton is not being totally truthful and that is not a good thing.

This incident is troubling on so many fronts. You have Councilman Holton bouncing back and forth and either lying or misrepresenting the meeting with Knox and Buchanan.

Equally troubling is that no one on the dais cared.

Not one person.

At the same time, you had four of the Council members not complying with the very law they passed in 2015 and the fifth Councilman may not have been around back then, but he failed to comply with the law as well.

Palm Bay either has or is getting the reputation of being a government cesspool. We would argue that like a fish that rots from the head, the City Council is responsible for what is going on.

It is long past time for that to change and either get commitments and actions to uphold the laws, or get new people to sit in the Council’s chairs.

EDITOR’S NOTE: We made two corrections to this story based off comments below. We corrected the type of meeting on Wednesday and corrected our apparent mis-attribution of a comment to Mayor Capote when it appears that Councilman Santiago made the statement. Our apologies for the errors.




PS: Yeah, we went here too. It was a “moral imperative.”





4 Responses to “Palm Bay: City Council Thinks Laws Don’t Apply To Them And Are Councilman Holton’s Pants On Fire?”

  1. Thomas Gaume says:

    A few minor corrections.

    1.) It was Councilman Santiago who claimed they made the disclosures during their discussion, not the Mayor.

    2.) The picture of the ex-parte meeting was taken on Wednesday the 6th while the Planning and Zoning meeting that had agenda items involving the same developer(s) was taking place, and shown at the Council meeting on the 7th.

    3.) You’re absolutely right, disclosures were not proper and in keeping with the City Ordinance, and the Florida Statute, and once that was apparent still wasn’t discussed or corrected.

    • debra stoelzel says:

      The City of Palm Bay is now hiding from the public ,who they are partnered with on the City’s website.One of the organizations is ICLEI stands for International council of local environmental initiatives.This is right out of the UN.And it is Agenda 21 being implemented in our City

    • AAfterwit says:

      Thomas Gaume,

      Thank you for the comment.

      1) Yep. We somehow messed up the meeting after which the image was taken. We have corrected it in the original post. We were so concerned about getting other things right that we missed getting the meeting right. That is on us and for that we apologize.

      2) We were working off the video, which did not show the face of the person making the comment. It sounded to us like Capote and it followed directly in line with another comment he made, so we logically thought it was Capote. You were there staring at the dais, and so we will accept your word for that and have made the appropriate change.

      Thanks again.

      A. Afterwit.

  2. Third Dimension says:

    I am enthusiastic to see how we are helping one another while educating others who are paying attention.
    Politics can be about representation in a Republic, such as “Of the People, For the People, By the People” ~ A. Lincoln
    Where we have equal and separate powers of Government. Those three are active even at the City level. The Manager is the Executive branch, Council is Legislative, City Attorney is Judicial.
    OR we can have greed, corruption, and tyranny. Where those elected are all about the gain of Power and/or Money.
    “All tyranny needs to gain a foothold is for people of good conscience to remain silent.”
    ~ Edmund Burke

    We must stand strong, together!

    Albert Einstein is widely credited with saying, “The definition of insanity is doing the same thing over and over again, but expecting different results.”
    It is long past due for Justice, but we the People can change those who are elected, and replace them with honest, diligent, trustworthy representation.

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