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Date of Issue: December 13, 2007

Islander attorney seeks fees in records suit

The attorney for The Islander last week filed a motion for the city of Bradenton Beach to pay the newspaper’s legal fees and court costs.

“We prevailed on the public records count,” said Islander attorney Kendra Presswood, who also is the daughter of newspaper publisher Bonner Joy.

Presswood’s motion, filed Dec. 5, asked the court to award $59,448 in fees and costs. A hearing was scheduled for Jan. 8 at the courthouse in Bradenton.

The city also is expected to seek an award of fees and court costs in the case, but Presswood says the city is not entitled to fees or costs.

Last month, Circuit Court Judge Peter Dubensky issued a ruling in the case that “grants in part and denies in part” The Islander’s claims against the city in a public records suit.

Both parties declared a victory in the case, a dispute over the city’s operation under the state’s public records and Government-in-the-Sunshine laws.

The newspaper sued the city in April - naming John Chappie, who was mayor at the time, as defendant - seeking the release of records involving administrative leave orders for two employees, as well as the investigation of the personnel matter and a public meeting on the issue.

The suit stemmed from the city’s handling of a sexual harassment complaint filed by Gail Garneau, a Bradenton Beach code enforcement officer and building department staff member, against Ed McAdam, who headed the city’s building department. McAdam resigned soon after he learned of the complaint against him.

Garneau made her complaint against McAdam in late February, informing Chappie verbally and then formalizing the complaint in an undated letter.

The complaint prompted Chappie to order an investigation by city attorney Ricinda Perry. Meetings ensued between Garneau, Perry and Chappie; meetings between McAdam, Perry and Chappie; telephone calls between Perry and city commissioners and an “emergency” city commission meeting at which McAdam’s resignation was accepted on March 8.

The Islander filed the suit April 11 because, despite the series of quick actions by the city in late February and early March to respond to the sexual harassment complaint, the public record was scant and there was no public discussion on the matter or on the acceptance of McAdam’s resignation.

In August and September, Dubensky presided over hearings on the newspaper’s allegations.

On Nov. 5, Dubensky ruled on several claims in the suit.

In one count, The Islander alleged the city violated the public records law by withholding records related to the sexual harassment complaint without citing a valid reason or the legally required exemption to do so.

City officials withheld some records, claiming through Perry in letters to Presswood that they could not be released under the whistleblower protections.

The Islander said the whistleblower exemption did not apply to the case, and Dubensky agreed, writing, “The city improperly relied upon Chapter 112 (the whistleblower exemption) to withhold records from The Islander.”

Dubensky found that it “is obvious” a memo dated Feb. 23 was withheld from reporter Paul Roat, who requested records March 7 and from Joy, who requested records March 9. The memo was not turned over to the newspaper for about three months. Dubenksy drew the same conclusion in regards to two other documents.

He also observed that city officials did not claim a statutory exemption for withholding records until March 20, several weeks after the newspaper requested records.

Still, Dubensky wrote, “The Islander fails to show a reasonable probability that the city’s failure to promptly cite a valid exemption for withholding documents will continue in the future.”

The judge’s order also stated, “The court finds the city demonstrated a prompt and diligent interest in releasing records within a reasonable time, except for the delay in responding to Roat’s March 7 request.”

Dubensky determined that records in Perry’s possession were not public records, but rather attorney notes, and that Garneau’s journal containing notes that she read to Perry during the investigation were not a public record.

In another claim, The Islander sought relief forcing the city to comply with Florida’s Sunshine Laws and alleged that city officials circumvented the open government laws to discuss Garneau’s complaint and that the mayor improperly assigned Perry the task of investigating the sexual harassment complaint.

Dubensky wrote, “The court ... finds insufficient evidence to support these claims.”

The judge also stated that no public meeting was required to reveal Garneau’s complaint, that “Perry was not required to conduct her preliminary investigation before the public” and that the mayor did not use Perry “as a liaison to communicate with the commissioners outside of the sunshine.”

Dubensky also issued an order sealing Perry’s file in the Garneau case in the event of future court proceedings in the case.