Judge rules for Bradenton Beach in Sunshine lawsuit

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Judge Edward Nicholas gives his ruling in the city versus citizens lawsuit. Islander Photo: 
ChrisAnn Silver Esformes

The trial is done and the city prevailed.

The July 15-19 trial for the case pitting the city of Bradenton Beach and ex-Mayor Jack Clarke against six former volunteer city board members, alleging violation of Florida’s Government-in-the-Sunshine Law, ended July 19 with Judge Edward Nicholas ruling in favor of the plaintiffs.

“The last two years have been difficult. I appreciate that,” Nicholas, of the 12th Judicial Circuit, said July 19 upon issuing his ruling. “And I’m hoping that, to some extent, the conclusion of this trial may help close the wound that has been so open and so raw, out in Bradenton Beach for so long.”

The suit, filed in August 2017 by Clarke and joined by the city, alleged Sunshine Law violations by former P&Z board members Reed Mapes, John Metz, Patty Shay and Bill Vincent, and Scenic Waves Partnership Committee members Tjet Martin and Rose Vincent, all of whom were members of the now-defunct grass-roots group Concerned Neighbors of Bradenton Beach.

‘This is not a close call. Even after being advised not to continue to do so, even after not getting any clarity via the Florida Ethics Commission letter, the defendants continued to meet, continued to discuss at length, issues.’
— Judge Edward Nicholas

All but Metz represented themselves as pro se defendants.

The city, represented by attorney Robert Watrous, alleged the board members violated Florida’s Government-in-the-Sunshine Law by discussing city matters at CNOBB meetings and through emails, texts and phone calls.

Opening statements

Watrous presented the judge with a timeline of events, including several CNOBB meetings that were not noticed or recorded, as well as transcripts and recordings of meetings that included discussions of land-use matters that he claimed either did or were likely to come before the defendants as board members.

He said the defendants were warned by city attorney Ricinda Perry, who had listened to recordings on the CNOBB website and determined the group’s discussions were placing the city at risk for a Sunshine Law violation, which could lead to a lawsuit against the city by outside interests.

That outsider turned out to be ex-Mayor Jack Clarke.

Additionally, Nichols noted that Bill Vincent, P&Z board member/CNOBB founder, sent letters to the Florida Attorney General’s Office and the Florida Commission on Ethics near the time Perry’s warnings were issued in late July 2017, asking for guidance on potential Sunshine Law issues and responses to his inquiries indicated he should consult with the city or county attorney.

He did not.

Shults argued that any discussions relating to city business were halted at CNOBB meetings when CNOBB/board members started veering into matters that could have come before them at city meetings, including discussions on a future parking garage.

Furthermore, Shults said mentions of a parking garage were made during CNOBB’s deliberation of possible charter amendment initiatives for the November 2017 ballot, which were being sought by the defendants as individuals through a process outlined by state statute, not the city process.

He said no one had applied to build a parking garage in the city, and such a structure was not permitted by the city’s comprehensive plan, so an application for a parking garage was not likely to come before the defendants as P&Z members.

He also said the defendants’ right to free speech was protected under the First Amendment of the U.S. Constitution.

Defendant, witness testimony

Bradenton Beach city planner Alan Garrett testified July 16 that the comprehensive plan did not prohibit parking garages in all areas of the city during the time Mapes brought the matter up at a CNOBB meeting. So, it was reasonably foreseeable to have come before the P&Z as an application, and the city’s comp plan would not necessarily need amending to accommodate a parking garage.

In April 2017, the P&Z reviewed an amended plan for the city’s community redevelopment district, which included a parking garage as a possible project. Even though the proposed parking facility died for lack of support, it remained a possibility for the CRA district in the future.

Additionally, when Watrous cross-examined Bill Vincent July 18, he asked Vincent if changes to the city’s comp plan go through the P&Z for review, to which Vincent responded, “Correct.”

Watrous asked Vincent if a charter amendment was passed prohibiting parking garages in the city, would the city have had to amend the comp plan to support the change to the charter, to which Vincent responded, “Probably, I guess.”

During Metz’s cross-examination, also July 18, Watrous asked him if he took the oath of office to be on the P&Z, to which Metz responded, “Yes.”

Watrous asked Metz if he understood that by taking that oath, he was putting himself in “a subject category different than the rest of the populous to some extent, correct?” to which Metz replied, “In an extremely limited sense.”

Watrous asked if one of those limitations was that Metz’s oath was to uphold the U.S. and state constitutions, to which Metz responded, “Yes.”

Watrous asked Metz if he was aware that the Sunshine Law is contained within the state constitution, to which Metz replied, “Yes.”

During his July 18 cross-examination of Mapes, Watrous asked why the defendants didn’t approach the city or county attorney for guidance after being warned their actions could be in violation of the Sunshine Law.

Mapes responded, “We were developing our initiatives to paragraph 166.031 of the Florida statutes, which had absolutely nothing to do with the city.”

Judgment

During the four-day trial, Nicholas heard testimony from defendants and witnesses, listened to recordings of CNOBB meetings and reviewed depositions.

Nicholas recounted the timeline of events leading up to the lawsuit, including CNOBB meetings and P&Z board meetings that included discussions of parking garages.

He read portions of the Sunshine Law from the Florida Constitution.

“… at which public business of a body is to be transacted or discussed,” he read, adding, “The court emphasizes ‘discussed.’”

“Clearly public business was discussed at many, and virtually all of the CNOBB meetings,” Nicholas said. “This is not a close call. Even after being advised not to continue to do so, even after not getting any clarity via the Florida Ethics Commission letter, the defendants continued to meet, continued to discuss at length, issues that not only have come before the planning and zoning board and Scenic Waves committee, but that were obviously certain to continue to come before planning and zoning and Scenic Waves.”

He said case law has determined that “when in doubt, the members of any board, agency, authority or commission, should follow the open meetings policy of the state.”

“Well, there was a doubt here,” he said.

He said the defendants continued to ignore warnings and concerns regarding compliance with the Sunshine Law in their “eagerness to attempt to thwart the possibility of a potential parking garage.”

He said the defendants’ use of a state statute to defend their ballot initiative process “seemed contrived and unpersuasive.”

“I find that the defendants’ efforts to characterize these meetings as ballot initiatives does not ameliorate the need that meetings of this nature, wherein planning and zoning members debate planning and zoning issues, need to be held in compliance with the Sunshine Law,” he said.

He said judgment is in favor of the city and found all defendants violated the Sunshine Law. He also said there will be post-trial proceedings to determine potential sanctions, including division of court costs and legal fees.

“Government in the sunshine is why we’re here — it’s as simple as that, and as important as that,” Bradenton Beach Mayor John Chappie said July 19. “It’s the foundation of what good government is built on. Openness, transparency and accountability. Anything less is not acceptable.”

He added, “Now is the time to heal.”

“You never know what to expect,” Mapes said following the ruling. “Nor do you know what to expect in the way of what comes next.”

One thought on “Judge rules for Bradenton Beach in Sunshine lawsuit

  1. Michael Harrington

    Seems funny that at the August 8th City Commission meeting, all of the defendants had resigned from their positions on P&Z and Scenic Waves yet the city chose to pursue this. And what did the city accomplish by this suit of volunteers. Absolutely nothing except to run up enormous legal fees.
    Committee volunteers beware, this could happen to you at Bradenton Beach.

    Reply

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