Sunshine lawsuit judge rules in favor of city recovering attorney fees

Sunshine lawsuit judge rules in favor of city recovering attorney fees
City Attorney Ricinda Perry, attorney Robert Watrous and paralegal Michael Barfield served as the city's legal team at last week's hearing. - Joe Hendricks | Sun

BRADENTON – Manatee County Circuit Court Judge Edward Nicholas has granted the city of Bradenton Beach’s motion to recover attorney fees incurred in the Sunshine Law lawsuit the city and co-plaintiff Jack Clarke filed in 2017.

Nicholas has not yet determined how much 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, as defendants, will be ordered to pay the city.

Nicholas granted the city’s motion during a Thursday, Nov. 7 hearing at the Manatee County Judicial Center in Bradenton.

In July, Nicholas ruled all six city advisory board members violated the Florida Sunshine Law in 2017 when they discussed public business at their Concerned Neighbors of Bradenton Beach (CNOBB) meetings. The defendants are appealing that July ruling.

According to City Treasurer Shayne Thompson, the city had incurred approximately $468,000 in attorney fees and legal costs as of last week, not including costs associated with attorney Robert Watrous, City Attorney Ricinda Perry and paralegal Michael Barfield’s preparation and appearances at Thursday’s hearing.

Attorneys Thomas Shults and Jodi Ruberg represented Metz and Nicholas noted the legal arguments Shults presented also applied to the five pro se defendants who no longer have attorneys.

Attorney arguments

When presenting the city’s request for attorney fees, Watrous said, “Who caused the situation that necessitated the city of Bradenton Beach and Jack Clarke to take action? That was the actions of the defendants. Was this a situation where they accidentally stepped over the line? From the clear reading of your honor’s judgment, the answer is emphatically no. This was an intentional and calculated effort by the defendants to get around Florida law and to not abide by the public records law,” Watrous said.

Shults’ legal arguments centered on whether a city can sue its own advisory board members. Shults argued the city must first sue itself.

“For the city to request the award of attorney fees against the individual they must first obtain an award of attorneys’ fees against itself or one of its agencies,” Shults argued.

Shults claimed this was the intent of the Florida Legislature when it adopted the Sunshine Law.

He also argued Chapter 286 of Florida Statutes does not provide for the award of attorney fees in a Sunshine Law case.

Shults noted CNOBB’s public meetings were open to the general public and the press.

“They said the Pledge of Allegiance at the beginning of these meetings and I think that’s wonderful,” he said.

In response, Watrous said, “Mr. Shults indicated the fact that these individuals said the Pledge of Allegiance before they started their CNOBB meetings. The problem is they didn’t follow that pledge.”

When appointed, city advisory board members swear to support, protect and uphold the Florida Constitution.

“They made a pledge to the State of Florida. They made a pledge to the government and they didn’t keep that pledge. That’s why the attorney fees should be awarded to my client,” Watrous said.

Judge’s ruling

When issuing his ruling, Nicholas noted all six defendants received Sunshine Law training.

“Once you chose to become a part of the city by choosing to be a member of a government advisory board the rules change. There are laws that apply. The defendants simply did not follow those rules,” Nicholas said regarding the defendants’ rights to assemble and discuss city matters.

“I’m not certain whether the Legislature intended individuals who clearly and unequivocally violated the Sunshine Law to be individually liable for attorney fees when sued by their own municipality. I do know that the purpose of the attorney fees provision is to discourage violations or potential violations of the Sunshine Law,” Nicholas said.

Nicholas referenced warnings and opinions the advisory board members received from Perry, Mayor Bill Shearon and others in 2017.

“Recall on July 25th, the city attorney sent them an email saying stop meeting. Ms. Perry, on July 25th, said these meetings are in violation of the Sunshine Law. Recall that on July 27th, Mayor Shearon CC’d to all the defendants the fact that their continued CNOBB meetings could be a violation of the Sunshine Law. Recall that the defendants sent a letter to the Florida Ethics Commission seeking advice about whether those meetings were violations of Sunshine Law. Recall that they made an inquiry to the Attorney General’s Office inquiring as to whether or not those meetings were a violation of the Sunshine Law,” Nicholas said.

“Even after being warned in two emails and not being able to be told by the Florida Ethics Commission and the Attorney General that ‘Yes, feel free to continue to meet,’ they did so on August 3rd,” Nicholas said.

“All the meetings were violations of the Sunshine Law, but it’s that August 3rd meeting that’s so problematic. It was this meeting that the city attempted to prevent. It was that continued meeting, after being put on notice that these meetings are in violation of the Sunshine Law,” Nicholas said.

“The city should not have had to bring this action. Once the defendants continued to meet after being warned not to do so, their continued meeting was at their own peril,” Nicholas said.

“I will grant the city’s motion for attorneys’ fees and costs and reserve jurisdiction for purposes of determining that amount,” Nicholas concluded.

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