City prevails in preliminary Sunshine hearing

City prevails in preliminary Sunshine hearing
From left, City Attorney Ricinda Perry, paralegal Michael Barfield and attorney Robert Watrous enjoyed a moment of levity before the hearing began. - Joe Hendricks | Sun

BRADENTON – Twelfth Circuit Court Judge Edward Nicholas has ruled in favor of the city of Bradenton Beach, denying three legal actions sought by Sunshine Law lawsuit defendant John Metz.

Nicholas denied Metz’s request to disqualify City Attorney Ricinda Perry as the city’s co-counsel in this case. Nicholas also denied Metz’s request to make public the transcript and audio recording of the city’s private attorney-client shade meeting in September 2017.

In addition, the judge denied Metz’s request to be told what he said and heard during a Concerned Neighbors of Bradenton Beach (CNOBB) meeting discussion about parking garages.

Nicholas also denied Metz’s requests to be awarded attorney fees for the individual legal actions he sought during the Friday, May 3 hearing at the Manatee County Judicial Center in Bradenton.

The judge ruled in favor of the city’s proposed compromise regarding Metz’s request to continue and complete Perry’s pre-trial deposition.

Attorney Jodi Ruberg represented Metz at the hearing. His primary attorney, Thomas Shults, was on vacation. Attorney Robert Watrous represented the city and Perry was assisted by paralegal Michael Barfield.

The civil lawsuit filed in 2017 by the city and co-plaintiff Jack Clarke seeks a judge’s ruling as to whether Metz, Reed Mapes, Tjet Martin, Patty Shay, Bill Vincent and Rose Vincent violated the Florida Sunshine Law when discussing parking garage prohibitions and other city business during CNOBB meetings while serving as members of the city’s Planning and Zoning Board or Scenic WAVES Committee.

The case is scheduled for a non-jury trial before Nicholas beginning July 15.

Perry deposition

A deposition is testimony given under oath in the presence of a court reporter who provides a verbatim written transcript for the judge and others to review.

On March 20, Shults deposed Perry for more than five hours. He spent much of that asking Perry about her education, legal qualifications and another lawsuit filed against the city by the Keep Our Residential Neighbors (KORN) political action committee formed by Mapes and Metz.

When deposing Clarke in January, Shults alleged Clarke, Perry and the city acted in bad faith and filed the lawsuit because of Metz’s contentious history with the city and its officials. When deposing Perry, Shults did not pursue that line of questioning.

“Ms. Perry’s testimony will also be utilized for a bad faith component of this suit,” Ruberg said during Friday’s hearing.

Watrous said he originally objected to the deposition being continued but later offered to limit it to three additional hours.

“The entire morning of deposition was spent on items not relevant to this case. Why didn’t Mr. Shults ask the appropriate questions at the first deposition?” Watrous said.

“Mr. Shults is simply going to have to do the best that he can and focus his questions a bit more pointedly,” Nicholas said when issuing his ruling.

Perry disqualification

When seeking Perry’s disqualification as co-counsel, Ruberg cited case law and said, “Ms. Perry cannot be both an advocate and a witness.”

Watrous said Perry will not act as a trial attorney and will simply assist him during the trial. As a witness for the city, Perry will provide fact-based testimony regarding the type of issues presented to the Planning and Zoning Board – and whether parking and parking garages are something that could foreseeably come before that board.

“Reasonable foreseeability is the crux of the case,” Ruberg said.

When issuing his ruling, Nicholas agreed it’s highly unusual for an attorney also to be called as a witness. He said if this was going to be a jury trial he would be inclined to agree with the defense that jurors might have difficulty determining whether Perry was stating facts or her legal opinion.

Shade meeting request

Ruberg alleged compliance technicalities when arguing that the shade meeting transcript and recording be made public.

Watrous said the opening and closing portions of the shade meeting were conducted in public, the private session was conducted in compliance with state requirements and Metz and his attorneys already have the transcript for the public portions of that meeting.

“This is an attempt by Mr. Metz to invade attorney-client privilege,” Watrous said.

“The request for the transcript is not well-taken and is denied,” Nicholas said when issuing his ruling, noting this was not a close call for him to make.

CNOBB discussion

When contesting Metz’s request to be told exactly what he said and heard during the July 25 CNOBB meeting, Watrous said Metz has a copy of the meeting recording posted at the CNOBB website and the court reporter’s transcript.

“We’re going to play the actual tapes at the trial,” Watrous said.

During that July 25 meeting, Mapes proposed a charter amendment initiative seeking a prohibition on parking garages. Mapes asked CNOBB members if they shared his desire and whether such a prohibition would apply only to a city-owned paid parking garage and still allow a privately-owned parking garage.

In response to Mapes’ suggestion, Metz said, “I say that we do and that we put it more that no parking garage built for public paid parking or something like that. It doesn’t matter whether if it’s by the municipality or some huge corporation.”

Regarding Friday’s hearing, Barfield said, “Mr. Metz’s actions wasted approximately $15,000 of attorney time and taxpayer funds and three hours of court time. The city continues to urge the defendants to give due consideration to the favorable settlement offers made.”