TRANSPARENCY FOR FLORIDA, KALI CRUM and NICHOLAS PLUMMER, Appellants,
CITY OF PORT ST. LUCIE, RON BOWEN, JOANN FAIELLA, SHANNON MARTIN and ROGER ORR, Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; William L. Roby, Judge; L.T. Case No.
Lazenby of Lazenby Law LLC, Lakeland, James S. Benjamin of
Benjamin, Aaronson, Edinger & Patanzo, P.A., Fort
Lauderdale, and Andrea Flynn Mogensen of The Law Office of
Andrea Flynn Mogensen, P.A., Sarasota, for appellants.
Jeffrey A. Blaker of Conroy Simberg, West Palm Beach, and
Diane H. Tutt of Conroy Simberg, Hollywood, for appellees
City of Port St. Lucie, Ron Bowen, Shannon Martin and Roger
Cynthia G. Angelos of Cynthia G. Angelos, P.A., Port St.
Lucie for appellee Joann Faiella.
A. Wallace of Bentley & Bruning, P.A., Sarasota, for
Amicus Curiae First Amendment Foundation.
for Florida, Inc., appeals a final summary judgment in favor
of the City of Port St. Lucie, its council members, and city
attorney in a Sunshine Law violation case regarding the
termination of the city manager. The trial court did not
conclude that a Sunshine Law violation had occurred, but
determined that even if it did, any violation was cured by a
noticed special meeting of the council. We reverse, as
disputed issues of fact remain.
Transparency for Florida, Inc., sued the City of Port St.
Lucie, city council members (Ron Bowen, Shannon Martin), the
mayor (Joann Faiella), and city attorney (Roger Orr) alleging
that the council members violated the Sunshine Law in their
discussions regarding the dismissal of the City Manager, Greg
Oravec, and the negotiation of his severance agreement. It
alleged that the city attorney improperly polled council
members to determine their position on Oravec's
separation agreement, and the city attorney communicated the
polling results to other council members. After polling, the
council held a special meeting to vote on the agreement, and
the defendants provided the public with about twenty-one and
one-half hours' notice. Transparency contended the notice
was inadequate, and the subsequent meeting did not cure the
violation. It sought a declaration that the Sunshine Law had
been violated and the cure was inadequate. The defendants
answered, contending that no Sunshine Violation had occurred,
but if there was a violation, it was cured by the public
defendants moved for summary judgment, attaching depositions
and exhibits. The submissions showed that Port St. Lucie
Councilman Bowen had significant disputes with City Manager
Oravec, which ultimately culminated in Bowen's attempts
to remove the city manager. To that end, in December 2012, an
assistant city attorney told Oravec that the mayor asked to
pull his employment contract and explore the severance
provision because four out of five council members had lost
confidence in him. Oravec wondered how this no confidence
vote occurred outside of Sunshine. He questioned the mayor on
this, and the mayor relayed that the council was unhappy with
him. When questioned how she knew this without a meeting, the
mayor became defensive.
Super Bowl weekend in the beginning of February 2013, Bowen
called City Attorney Orr, and asked Orr to determine whether
there was interest in the council considering terminating
Oravec. Bowen also spoke to the mayor that morning. Orr
agreed to poll the council to determine whether there was any
interest in offering Oravec a severance in exchange for his
resignation. When Orr called Council Member Martin and asked
her about her interest, she told him that she could not
discuss this. Similarly, Council Member Berger told Orr that
she would not participate in any polling, because a possible
termination and severance should be discussed in the
Sunshine. Orr called Bowen to report back his finding that
there was not support to terminate Oravec. Orr had also
called Oravec to suggest his resignation with a severance
package, but Oravec turned him down.
that weekend, Oravec had a change of heart and determined
that he would negotiate an amicable separation agreement with
the city because his relationship with the council was
"irretrievably altered." Orr and Oravec then
negotiated the terms of the separation agreement. When they
got close, the council scheduled a special meeting to
consider Oravec's departure.
were three notices of the special meeting to consider
Oravec's separation from the city. The first notice, with
a hand-written "posted" date of February 06, 2013,
states that there will be a special meeting for the removal
of the city manager on February 07, 2013, at 9 a.m. at City
Hall. This notice was posted twenty-one hours, twenty-seven
minutes before the meeting. This notice was sent to the
media. The second, revised notice lists the "discussion
of a separation agreement for the city manager" on its
agenda. This notice was posted to the city's public
calendar on February 6 at 1:19 p.m. The notice also lists
discussion of the "cancellation of the city
manager's employment agreement" as an agenda item,
only to be discussed if the separation agreement was not
approved. The third notice lists the same date and time for
the meeting, but it only lists discussion of a separation
city attorney and his staff then worked on the separation
agreement until late the night before the meeting. The
assistant city attorney testified in deposition that she may
have had conversations about the city manager's
resignation with the individual council members. Prior to the
meeting, the council members were e-mailed one version of the
agreement. Then more changes were made, and on the morning
before the special meeting, the assistant city attorney
explained to the council members the changes and received
comments from them. At least two council members expressed
the desire to have no debate or discussion of the termination
at the meeting because of an unpleasant experience with a
prior termination of a city manager. ...