Bradenton Beach Commissioner Janie Robertson wonders whether the city’s negotiations with Anna Maria Oyster Bar owner John Horne were conducted legally.
If Robertson is right and the negotiations — which were supposed to result in the commission’s approval of an agreement — were not legal, the lease may be in jeopardy.
Robertson said in a memo to the city that the pier negotiations should be conducted at a public meeting to avoid violating Florida’s Government-in-the-Sunshine Laws.
Mayor Jack Clarke announced at the city’s July 23 meeting after the commission selected Anna Maria Oyster Bar’s bid for the pier that he and city attorney Ricinda Perry would immediately take over the pier lease negotiations.
With no one questioning Clarke’s authority, Horne followed requests to meet with the mayor and city attorney.
Clarke then told pier team members Aug. 5 that two meetings with Horne had produced “no result,” before Police Chief Sam Speciale, the pier team facilitator, asked him not to discuss the lease negotiations.
One day later — following another meeting with Horne Aug. 6 at city hall, just prior to a city commission meeting — Perry told commissioners the lease agreement with Anna Maria Oyster Bar was prepared, but it awaited a review by Horne’s attorney.
Commissioners agreed to consider the lease terms at their noon Thursday, Aug. 20, meeting at city hall, 107 Gulf Drive N., Bradenton Beach.
Robertson included in her packet a 1974 Florida attorney general’s opinion which states, “A single member of a board or commission to whom the authority has to act on behalf of the board or commission in matters such as lease of land, etc., has been delegated is subject to the Sunshine Law and, therefore, cannot negotiate for such a lease in secret.”
In response to Robertson’s query, in an Aug. 10 email to commissioners, Perry argued that the AG opinion does not apply to her because she is not a member of the commission. She also states that she was not negotiating, she was merely “advising the potential tenant on what the city commission had already approved.”
However, according to Barbara Peterson, president of the First Amendment Foundation in Tallahassee, if the mayor and attorney — or just the attorney — are meeting with the restaurant owner to negotiate the lease, and the lease must be approved by the city commission, even if only by consensus or the lack of a no vote, then the Sunshine Law applies to the negotiations.
Peterson said if the attorney negotiated the lease on behalf of the commission and those negotiations were not properly noticed under the Sunshine Law, the lease is at risk of being voided by a court — any action taken in violation of the Sunshine Law is “void ab initio,” as if it never happened.
“The commission can protect the lease through an effective cure,” Peterson said. “This would require the attorney and/or mayor to renegotiate the lease in meetings held in compliance with the Sunshine Law. That would ‘cure’ the action and protect the lease, but it does not cure the violation.”
Meanwhile, Robertson said she takes exception to Clarke’s decision to tell commissioners he and Perry would negotiate the lease — rather than seek consensus to negotiate.
After commissioners selected Anna Maria Oyster Bar July 23 as the new pier concessionaire, commissioners likely would have given permission for the mayor and/or Perry to negotiate with Horne or Horne’s lawyer.
It was up to Perry to write the lease, but conversations on the lease terms should have taken place in open negotiations.
The Islander requested attendance at lease negotiations — meetings with Horne by Clarke and/or Perry — but received no reply.
Efforts to reach Clarke Aug. 14 were unsuccessful.