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Date of Issue: March 05, 2008

Judge orders city to pay $5,755 in records case

A Manatee County judge last week ordered the city of Bradenton Beach to pay The Islander newspaper $5,755 in legal fees in connection with a public records lawsuit.

The amount is almost $70,000 less than the newspaper sought.

The order, said Islander attorney Kendra Presswood, leaves no option other than to appeal. “The judicial system is supposed to be about justice and justice has not yet been accomplished.”

Bradenton Beach city attorney Ricinda Perry said otherwise: “We are pleased that the judge agreed with the city’s position as evidenced in it’s award of $5,600 in attorney’s fees to The Islander.”

She noted that Kevin Hennessy, another attorney for the city, previously said, “We feel the law is clear that recovery is going to be significantly less than the figure being sought by the paper.”

Still pending before Manatee County Circuit Court Judge Edward Nicholas is the city’s request to recover legal fees from the newspaper.

The legal dispute dates back to March 2007, when a city employee, Gail Garneau, filed a sexual harassment complaint against another employee, Ed McAdam. Both employees were put on paid leave pending an investigation into the complaint, but McAdam quickly resigned, a decision accepted by the city commission without discussion during an emergency meeting.

The lack of information and discussion in regards to the complaint and McAdam’s resignation prompted a series of public information requests from the newspaper to the city and eventually the lawsuit alleging the city violated the Public Records Act and the Government-in-the-Sunshine Law. The newspaper’s suit named then-Mayor John Chappie as the primary defendant.

Last fall, Judge Peter Dubensky ruled that the city did violate the Public Records Act, but that there was insufficient evidence in the Sunshine Law allegations.

Following Dubensky’s ruling, the legal wrangling turned to a dispute over paying attorney’s fees and costs, with both parties seeking restitution.

In a Feb. 22 order on the newspaper’s request for fees, Nicholas said he “considered the testimony and evidence introduced at the hearing(s) in this cause, the argument of counsel, the memorandums and case law provided by each.”

The judge said under Florida’s Public Records Act, if the court determines that an agency “refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorney’s fees.”

Nicholas acknowledged that the court found that Bradenton Beach withheld public records. Three documents were held back - a “confidential” memo dated Feb. 23, 2007, from Chappie to Ed McAdam advising him of the sexual harassment complaint, a March 9, 2007, fax from attorney Gregory Hootman to Perry requesting Perry to provide results of her investigation to the Florida League of Cities, and a March 12, 2007, letter from Hootman to Perry requesting the same material as sought in the fax.

“The question, therefore, is not whether fees are awardable here, but what amount is ‘reasonable’ given the facts in this cause,” Nicholas wrote.

The judge said the newspaper “was convinced that, because of the scant records here, there must have been private discussions held in violation of the Sunshine Law. Judge Dubensky, however, found that there was ‘insufficient evidence in the record to support’ that claim… . It appears to this court that the plaintiff went to great lengths to attempt to establish a violation, with what appears to be very little evidence to support such a belief.”

Nicholas said it was his task to decide “what is a reasonable fee for the discovery of what this court finds to be three relatively innocuous and diminimus documents” and that The Islander’s request for $75,000 “is clearly excessive.”

The judge also pointed out that the withheld documents were turned over to the newspaper on June 27, 2007, and that the city’s attorney had argued “all fees generated subsequent” to the release of the papers “were unnecessary.”

Nicholas then ordered that the city should pay the newspaper $5,600 in attorneys fees, based on 28 hours at $200 an hour, and $255 for a filing fee.

Commenting on the judge’s order, Presswood said, “Given that the city’s attorneys billed for twice as many hours as my firm did throughout this case, and have been paid in excess of $60,000, it is hard to imagine how an award of $5,600 could be considered fair or reasonable.

“The award amount is not supported by the law and thus we will ask the appellate court to review the case,” she continued.

Joy said the fees mounted in the case because of the “stubborn resistance by the Bradenton Beach city attorney to release records to the public.

“Realistically, based on past experience, we expected the attorneys to work out the release of records in this mater,” the publisher continued. “But the city attorney and the mayor fought the newspaper and its request for records at every juncture, including the payment of fees.”

Islander publisher Bonner Joy said The Islander successfully showed that the city “withheld records, that the city wrongly claimed an exemption to the release of records and only when faced with the judge’s order did the attorney release scant records. The city clearly violated the public records act … and the citizens have already paid the city’s attorneys to defend the city officials and themselves for their wrongdoing. It’s a travesty for the citizens.”