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Transparency for Florida v. City of Port St. Lucie

Florida Court of Appeals, Fourth District

April 18, 2018

TRANSPARENCY FOR FLORIDA, KALI CRUM and NICHOLAS PLUMMER, Appellants,
v.
CITY OF PORT ST. LUCIE, RON BOWEN, JOANN FAIELLA, SHANNON MARTIN and ROGER ORR, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; William L. Roby, Judge; L.T. Case No. 56-2013-CA-3295.

          Megan 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 Orr.

          Cynthia G. Angelos of Cynthia G. Angelos, P.A., Port St. Lucie for appellee Joann Faiella.

          David A. Wallace of Bentley & Bruning, P.A., Sarasota, for Amicus Curiae First Amendment Foundation.

          WARNER, J.

         Transparency 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.

         Appellant, 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 meeting.

         The 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.

         On 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.

         After 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.

         There 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 agreement.

         The 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. ...


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