BRADENTON – Manatee County 12th Circuit Judge Edward Nicholas ruled Friday that former Planning and Zoning Board members Reed Mapes, John Metz, Patty Shay and Bill Vincent, and former Scenic WAVES Committee members Tjet Martin and Rose Vincent violated the Florida Sunshine Law.
The Sunshine Law violations occurred at Concerned Neighbors of Bradenton Beach (CNOBB) meetings in June, July and August of 2017.
The potential Sunshine Law violations were first reported by The Sun on Aug. 2, 2017.
The city of Bradenton Beach and co-plaintiff Jack Clarke filed the civil lawsuit on Aug. 11, 2017. The lawsuit sought a judge’s determination as to whether the advisory board members violated the Sunshine Law by discussing advisory board business at CNOBB meetings.
The non-jury trial took place at the Manatee County Judicial Center in downtown Bradenton and began on Monday, July 15. When the testimony and legal arguments concluded on Thursday, July 18, Nicholas said he’d issue his ruling Friday morning.
Attorney Robert Watrous represented the city and Clarke in the case, assisted by paralegal Michael Barfield and City Attorney Ricinda Perry.
Attorneys Thomas Shults and Jodi Ruberg represented Metz – and to a lesser degree the five pro se defendants who previously discontinued the services of their shared attorney.
“I am hoping to some extent the conclusion of this trial may help close the wound that has been so open and so raw out in Bradenton Beach for so long,” Nicholas said before issuing his ruling.
Judge’s ruling
When issuing his detailed ruling, Nicholas first cited the Florida Constitution and the Sunshine Law contained within it.
“We begin with Article 1, Section 24 of the Florida Constitution that reads: ‘All meetings of any collegial body of the executive branch of the state government, or of any collegial body of any county, municipality, school district or special district at which official acts are to be taken, or at which public business of such body is to be transacted or discussed shall be open and noticed to the public,’” Nicholas said.
Nicholas noted the defendants were all duly sworn advisory board members who acknowledged participating in Sunshine Law training.
During the trial, Watrous established that each defendant took an oath of office as an advisory board member and swore to protect the United States Constitution and the Florida Constitution. Watrous said those oaths followed the advisory board members wherever they went, including CNOBB meetings.
“The Sunshine Law prohibits discussions of public business. Public business was discussed at every CNOBB meeting.” – Edward Nicholas, Manatee County 12th Circuit Court Judge
In their testimony and/or pre-trial depositions, Metz, Mapes, Shay and Bill Vincent expressed their beliefs that CNOBB’s parking garage discussions did not violate the Sunshine Law because the city’s comprehensive plan prohibited parking garages and it was not reasonably foreseeable that one could ever be built.
Nicholas noted City Planner Alan Garrett testified the comp plan only prohibited parking garages in two of the city’s 11 zone district designations in 2017.
“A parking garage could theoretically be built in nine designated areas within the city,” Nicholas said of the comp plan as it existed in 2017.
Compliance concerns
Nicholas noted Perry sent an email to the Planning and Zoning board members on July 25, 2017, notifying them of the potential Sunshine Law implications of their CNOBB meetings and email exchanges.
Nicholas noted Perry also emailed then-Mayor Bill Shearon two days later, and Shearon forwarded that email to the planning board members. That email also expressed concerns about advisory board members attending CNOBB meetings in violation of the Sunshine Law.
The trial included extensive discussion about the 2017 correspondence Bill Vincent had with the Florida Commission on Ethics and the Florida Office of the Attorney General regarding advisory board members participating in CNOBB meetings.
The Commission on Ethics response advised Vincent to review the Sunshine Law manual at the Attorney General’s website and possibly consult with private counsel. The Attorney General Office’s response advised Vincent to consult with the city attorney.
“The defendants never got answers to those questions. The defendants continued to meet despite their concerns, despite not getting answers to these very important questions. Had they contacted Ricinda Perry, she would have answered: ‘Yes, the Sunshine Law applies.’ Had they contacted any attorney in the state of Florida they would have said, ‘Yes, the Sunshine Law applies,’ ” Nicholas said.
Constitutional rights
During the trial, Shults, Metz, Mapes and Vincent expressed their opinions that state law allowed the advisory board members to discuss city issues that pertained to the possible pursuit of citizens’ initiatives.
“The defendants attempt to characterize these violative meetings as ballot initiative meetings pursuant to Section 166.031 (Florida Statute) is simply not persuasive. This ballot initiative defense strikes this court as an after-the-fact attempt to justify or otherwise rationalize what were otherwise clear and unequivocal violations of the Sunshine Law. It is a clever explanation for such violations, but it is not a compelling or persuasive one,” Nicholas said.
“The efforts to characterize their violative meetings as the right to assemble and speak freely as guaranteed by the First Amendment also is not persuasive. Every citizen has the right to assemble and has the right to free speech. However, when an individual joins a government advisory board the Sunshine Law still applies. If that were not the case, every county commission, every city council, every advisory board could hold secret meetings and simply say I have a First Amendment right to do so. That would largely make the Sunshine Law meaningless and void,” Nicholas said.
Meeting recordings
During the trial, Nicholas heard audio recordings of entire CNOBB meetings and audio excerpts from CNOBB meetings.
“It’s certainly unusual that we have tapes of at least some of the meetings that took place outside of the Sunshine,” Nicholas said.
He then recited some of the statements made at CNOBB meetings:
- “I have concerns about how the CRA (Community Redevelopment Agency) is functioning;”
- “We need to prohibit the construction of a parking garage in the city of Bradenton Beach;”
- “It is on the CRA list;”
- “Parking garage could easily come before Planning and Zoning;”
- “That whole strip over there would be a parking garage;”
- “We need to specify a municipal parking garage;”
- “It would be a huge building;”
- “We need to prohibit construction of a parking garage in Bradenton Beach, it doesn’t matter if it’s by a municipality or a huge corporation;”
- “Horrendous traffic problems with a parking garage.”
Nicholas then said, “Those were all quotes. That is the very definition of a discussion about public business. And it wasn’t just parking garage discussions: CNOBB discussed ropes and bollards, sidewalks, parking issues, the Bridge Tender (Inn) land swap, Bridge Street planters – all issues that had come before Planning and Zoning or Scenic WAVES.”
“The Sunshine Law prohibits discussions of public business. Public business was discussed at every CNOBB meeting. Public business was discussed every time CNOBB met. That was largely the point of the organization,” Nicholas said.
“Also, there were at least four CNOBB meetings that were not recorded early on as the group was becoming organized. What was discussed at those meetings? Who attended those meetings? These questions point to the obvious need for Sunshine Law compliance,” Nicholas said.
Nicholas said the defendants’ passionate and firmly held beliefs regarding city issues caused them to abdicate their obligation to follow the law.
“My finding that all the defendants clearly and unequivocally violated the Sunshine Law does not in any way suggest that they are bad people. I do not agree with the suggestion that the defendants attempted to form a secret government or a shadow government, or that their meetings were surreptitious or clandestine in any way,” Nicholas said.
“Do these individuals have a right to assemble? Absolutely. Do these individuals have a right to free speech? Absolutely. Do these individuals have a right to be concerned about their beloved city? Of course. But once you choose to become part of the government by becoming a member of a government advisory board you are no longer just a spectator. Rules apply, laws apply. The defendants simply did not follow those rules. The defendants simply did not follow those laws. This is not a close call,” Nicholas said.
“Judgment is in favor of the city. The court finds that all the defendants, as members of Planning and Zoning and members of the Scenic WAVES Partnership Committee were subject to Article 1, Section 24 of the Florida Constitution and Section 286.011 of Florida Statute,” Nicholas ruled.
Additional comments
Nicholas said a post-trial hearing will be scheduled to address potential sanctions. These include the city’s request to be reimbursed for a portion of its legal fees that now exceed $250,000.
“We agree with everything the judge said,” Watrous said after he left the courtroom.
“The Sunshine Law has been vindicated,” Barfield said.
“We agree with the judgment and look forward to the city moving forward and healing. The city does not wish to sue any of its board members, and it’s unfortunate this wasn’t settled earlier, but the Sunshine Law is important. It provides the city and its citizens with an open government,” Perry said,
“Obviously, I’m pleased with the verdict,” Clarke said.
“Government in the sunshine is why we are here. It’s as simple as that, it’s as important as that. It’s the foundation of what good government is built on; openness, transparency and accountability. Anything less is just not acceptable and now’s the time to heal,” Mayor John Chappie said.
“I’m very pleased with the judge’s ruling and I would like to thank everyone involved for presenting a clear case to the court. This was an unfortunate circumstance the city commission was put in to uphold our oaths to protect the laws of the state and to protect the city from litigation. I wish this would’ve been resolved through our previous settlement offers for a less expensive and earlier conclusion,” Vice Mayor Jake Spooner said.
In March, all six defendants rejected a settlement offer from the city that proposed a collective admission that mistakes were made regarding Sunshine Law compliance and a $500 payment from each defendant. The defendants rejected the settlement offer that required them to acknowledge non-compliance with the Sunshine Law.
In May, Metz and the other defendants submitted counter proposals that sought significant financial reimbursement from the city. Metz’s offer also expressed a willingness to subject the city to a future appeals process.
