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Date of Issue: January 16, 2008

Islander, city back in court

An open government dispute between The Islander newspaper and the city of Bradenton Beach returned to a Manatee County courtroom Jan. 8.

The hearing focused on the awarding of attorney’s fees and costs in the newspaper’s 2007 suit against the city over public records laws and the Government-in-the-Sunshine law in connection with a sexual harassment investigation.

The newspaper sued the city in April 2007, naming then-Mayor John Chappie as the chief defendant, over the handling of city attorney Ricinda Perry’s investigation into a sexual harassment complaint made by employee Gail Garneau against another employee, Ed McAdam.

McAdam resigned soon after an investigation into the complaint began, but there was little public record of the investigation, as well as the handling of McAdam’s resignation by the city commission.

The minimal record prompted The Islander suit, in which the newspaper alleged that the city withheld public records and circumvented the Sunshine law, which requires government officials to meet in the open.

Last fall, Manatee County Circuit Court Judge Peter Dubensky settled the suit, ruling that the city did violate the public records law by withholding several documents from the press for months. However, Dubensky found “insufficient evidence” to fault the city for violating the Sunshine law. The judge wrote that the court “grants in part and denies in part” the newspaper’s claims.

Now the dispute between the newspaper and the city is over attorney’s fees for the costly litigation.

Both parties have filed with the court to recover fees and costs in the case. Islander attorney Kendra Presswood, daughter of newspaper publisher Bonner Joy, requested $59,448 in fees and costs. Perry, representing the city, requested $49,956 in fees and $3,516 in costs.

On Jan. 8, Manatee County Circuit Court Judge Edward Nicholas heard more than two hours of testimony and some arguments over The Islander’s motion for the city to pay Presswood’s fees.

Presswood testified, as well as called expert witness and attorney Richard G. Groff, to justify her request.

Presswood said before filing she had reduced her billing in several ways - a discounted fee because her client is a relative; the elimination of some billed hours because they pertained to Sunshine claims; and reduced billing hours to soften the burden of expense.

“There are a considerable amount of deductions,” Presswood said. “If anything, the bills reflect less time.”

Presswood also observed that The Islander made several settlement offers and would have preferred not to initially have had to go to court. She said the paper proceeded because the city continued to claim records were not wrongfully withheld.

“It was necessary to go forward,” she said.

Groff said he reviewed Presswood’s billing records and aspects of the case and found her fee request “reasonable under the circumstances.”

Representing the city in the hearing last week, attorney Kevin Hennessy acknowledged that the newspaper is entitled to recover fees, but he suggested that the paper should not recover the full amount requested.

Hennessy said Dubensky found that the city documents “should have been released sooner than they were,” but that the ruling was “a minor favorable finding for the paper” and that under the law it provides for payment of some reasonable costs including attorneys fees.”

However, he added, “We feel the law is clear that that recovery is going to be significantly less than the figure being sought by the paper.”

Presswood took issue with Hennessy’s interpretation of the court’s order. “Mr. Hennessy’s view of Judge Dubensky’s order is self-serving, to put it kindly,” she said.

“The court found against the city, finding they violated the public records law by withholding the records,” Presswood continued. “As a result, The Islander is entitled to recover all the attorney’s fees and costs it incurred in proving that the city did, in fact, violate the law and public policy of the state of Florida by not disclosing public records. Unfortunately for the citizens of the city, however, the city and its attorneys continue to increase the expense of the litigation, which ultimately only the citizens will pay for.”

The hearing did not conclude last week and will resume at 9 a.m. Friday, Feb. 8. Hennessy said he plans to call witnesses that day.

Also still before the court is the city’s motion for fees and costs and Presswood’s responding motion that the city is not entitled to recover its legal expenses from the newspaper.

Florida law, said Presswood, “does not authorize the award of fees against an individual bringing suit pursuant to Florida’s Government-in-the-Sunshine laws.”

Days prior to last week’s hearing, Presswood again offered to resolve the dispute over attorney’s fees if the city would stipulate that the newspaper was entitled to recover the like amount of fees - $53,472.97 - the city’s firm incurred in the case, and that the city was not entitled to recover fees and costs against The Islander.

Hennessy said that offer was made in a Jan. 4 letter responding to his request “that we work on streamlining the  issues for hearing. Her letter was not a productive effort toward that goal.”

Presswood said her most recent offer should have been relayed to city officials. “It doesn’t matter what form a settlement proposal is in ... I believe it is the attorney’s obligation to ensure his client is informed of the proposal to settle and to advise the client of the potential benefits and risks involved in deciding whether to settle the matter.”