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Item B1BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Closed Session Meeting Date: 1/18/2007 - KW Bulk Item: Yes _ No xx (TIME CERTAIN: 10:00 a.m. or as soon thereafter as may be heard) Division: County Attorney Staff Contact Person: Bob Shillinger AGENDA ITEM WORDING: An Attorney -Client Closed Executive Session of the Board of County Commissioners in the matter of Jennifer Franz v. Monroe County and J Jefferson Overby, CA P 06-475. ITEM BACKGROUND: Per F.S. 286.011(8), the subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. Present at the meeting will be the Commissioners, County Administrator Thomas J. Willi, County Attorney Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger, Assistant County Attorney Pedro J. Mercado, and a certified court reporter. PREVIOUS RELEVANT BOCC ACTION: On 12/20/06, the Board authorized this closed session. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: N/A TOTAL COST: @ $200.00 COST TO COUNTY: @ $200.00 BUDGETED: Yes xx No SOURCE OF FUNDS: REVENUE PRODUCING: Yes _ No xx AMOUNT PER MONTH Year APPROVED BY: County Atty — OMB/Purchasing Risk Management DIVISION DIRECTOR APPROVAL: I, p E A. T ON, COUN A TORNEY DOCUMENTATION: Included DISPOSITION: Revised 2/05 Not Required X AGENDA ITEM # OUNTYMONROE t(EV WEST RORIDA33040 (305)294-4541 Suzanne A. Hutton, County Attorney** Robert B. Shillinger, Chief Assistant County Attorney'* Pedro I Mercado, Assistant County Attorney Susan M. Crrimsley, Assistant County Attorney •' TY Natileene W. Cassel, Assistant County Attorney Cynthia Hall, Assistant County Attorney "Board Certified in City, Canty & Local Govt. Law March 2, 2007 The Honorable Danny Kolhage Monroe County Clerk of Court 500 Whitehead Street Key West, Florida 33040 Mayor Mario Di Gennaro, District 4 Mayor Pro Tern Dube M. Spehar, District 1 George Neugent, District 2 Charles "Sonny- McCoy, District 3 Sylvia J. Murphy, District 5 Office of the County Attorney PO Box 1026 Key West, FL 33041-1026 (305) 292-3470 — Phone (305) 292-3516 — Fax Re: Jennifer Franz v. Monroe County & J. Jefferson Overby, CA P 06475. Dear Mr. Kolhage: Enclosed please find the transcript of the January 18, 2007 closed attorney client session of the Board of County Commissioners regarding the above -referenced matter. Under F.S. 286.011(8), the transcript may be made part of the public record because the litigation has concluded. Thank you for your assistance with this matter. Please contact me should you have any questions. Sincerely, Robert B. Shillinger Chief Assistant County Attorney Enclosure 1 r MONROE COUNTY BOARD OF COUNTY COMMISSIONERS EXECUTIVE SESSION Jennifer Franz vs. Monroe County and J. Jefferson Overby CA-P-06-475 APPEARANCES: MAYOR MARIO DIGENNARO COMMISSIONER CHARLES "SONNY" MCCOY COMMISSIONER DIXIE SEPHAR COMMISSIONER GEORGE NEUGENT COMMISSIONER SYLVIA MURPHY THOMAS WILLI, COUNTY ADMINISTRATOR SUZANNE HUTTON, ESQ., COUNTY ATTORNEY ROBERT SHILLINGER, ESQ., CHIEF ASSISTANT COUNTY ATTORNEY The Harvey Government Center 1200 Truman Avenue Keay West, Florida Thursday, January 18, 2007 10:40 a.m. - 11:00 a.m. MONROE COUNTY COURT REPORTERS (305) 852-7344 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Closed Session.) MAYOR DIGENNARO: I call the closed session to order. MR. SHILLINGER: For the record this meeting is being held upon the request of the county attorney, announced at a prior meeting held on December 20th that she needed advice concerning the pending lawsuit, Jennifer Franz versus Monroe County and J. Jefferson Overby. At that meeting the board approved holding today's closed session. Public notice was given by publication in the Key West Citizen on January 5th, the Key Noter on January 4th and the Reporter on January 3, 2007. A copy of that notice will be given to the court reporter for inclusion in the record. For the record and the benefit of the court reporter each of is will state our names and the positions. If you'd like for speed I will name everybody. Commissioner McCoy, Commissioner Sephar, Mayor DiGennaro, Commissioner Neugent, Commissioner Murphy, the court reporter, I'm Bob Shillinger, County Attorney Suzanne Hutton, County Administrator Tom Willi. Did I miss anybody? Did I leave anybody out? We're only going to be discussing settlement negotiations and strategy related to this litigation. MONROE COUNTY COURT REPORTERS (305) 852-7344 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'll give you some background. We can't take any decisive action at this session. We have to go back into open session. This case is a lawsuit that was filed by a lawyer whose client has a case before the Code Enforcement Special Master Overby. He attempted to recuse Mr. Overby because of a longstanding conflict between the lawyer and Mr. Overby. Overby denied that recusal based on the timeliness. He felt that since the notices and everything had already stated that it was Overby's case and that he waited to long to file the motion to recuse that it was untimely and he denied it. So, the next step, the property owner; Ms. Franz filed what's known as a writ of prohibition in the circuit court, and that's basically asking the circuit court judge to remove Overby from this administrative hearing. He raises two points in his appeal. One, that it was untimely -- the denial was improper for that case in particular because it wasn't untimely. The second point that he raises -- and this is really why we're here. There's a larger issue at stake. Mr. Overby in serving as our code enforcement special master also serves as the chief assist state attorney, so Mr. MONROE COUNTY COURT REPORTERS (305) 852-7344 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Tobin has alleged that there is an inherent conflict in having our judge, for simplistic terms -- our hearing officer on one day be a prosecutor every other day. Now, there are some procedural defenses I can raise to the argument and I can probably make some substantive, but in doing so I will probably open up us to even a greater conflict if I defended this case honestly. Here is the situation. Overby, as I've told you works in the state attorney's office. He is one of the chief assistant state attorneys. The allegation is that these code violations can also be prosecuted criminally by the state attorney's office. Well, our state attorney Mr. Cole has indicated that he's not going to prosecute county and city ordinance violations. He's left it to the local governments to prosecute those. That's fine for the municipalities. They have an independent constitutional basis to do that, and they have an independent statutory basis for doing that. Counties, as political subdivisions of the state don't have that actual authority. I can't go into county court as an assistant county attorney and try to put somebody in jail for violating a county ordinance. Dumb as that seems MONROE COUNTY COURT REPORTERS (305) 852-7344 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's the status of the law. So, in order for us to prosecute these ordinances Mr. Cole has acknowledged this status in the law, and he's sworn every member of the county attorney's office as a special assistant state attorney for the sole purpose of prosecuting these county ordinance violations. That technically makes us members of that law firm; the state attorney's office. So, we're appearing in front of another member of our own law firm. It's an inherent conflict. MAYOR DIGENNARO: How do we get out of the conflict? MR. SHILLINGER: We get rid of Overby as our hearing officer. COMMISSIONER MCCOY: There's an appearance of impropriety here. That should be enough. MR. SHILLINGER: In the past the Commission has authorized prior county attorneys to litigate up to the Third D.C.A. trying to keep Jeff Overby as our hearing officer -- the Dorothy Abbott case. Before we'll move to terminate the contract -- COMMISSIONER MCCOY: That was strongly challenged. MR. SHILLINGER: Right. The circumstances have changed since then. He was not in the state MONROE COUNTY COURT REPORTERS (305) 852-7344 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attorney's office at that time. My recommendation is to solve the conflict is we go to a different hearing officer and bring you back a proposal on how we wish to do that and how we would propose settling this litigation. COMMISSIONER MCCOY: You want to go back in open session now or wait until the end? MR. SHILLINGER: Does anybody have any questions before we go back into open session or any other discussion? COMMISSIONER SEPHAR: Your recommendation is to go to another hearing officer? MR. SHILLINGER: Yes. COMMISSIONER SEPHAR: Wasn't there a question of time by doing that? MR. SHILLINGER: By time what do you mean? COMMISSIONER SEPHAR: Originally didn't -- in asking Judge Overby be removed there was a time element he rejected because it would delay? MR. SHILLINGER: Right. If we were in court -- in real court; circuit court or county court -- they'd have ten days to file the motion. In code enforcement there's no set rules. Our own code says in other types of hearings you recuse the hearing officer at the beginning of the hearing, the first time you get MONROE COUNTY COURT REPORTERS (305) 852-7344 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 up in front of the hearing. So, there's a grey area on the time issue. COMMISSIONER SEPHAR: Okay, thank you. MR. SHILLINGER: What I'm suggesting, just so I'm clear that you understand it, to resolve this conflict for good we would have to remove Overby as our hearing officer -- terminate his contract and go with another hearing office on a permanent basis. COMMISSIONER MCCOY: Or just when he's challenged. MR. SHILLINGER: Well, that's what I'm looking for discussion on. It's a conflict regardless. COMMISSIONER MCCOY: The defending attorney may not see this as a problem and may feel that Judge Overby is appropriate. MR. SHILLINGER: Don't get me wrong. He's a fine hearing officer. COMMISSIONER MCCOY: I think so too. So I say it doesn't have to be challenged. We can go ahead and do it in the instances when the defending attorney says this is a major challenge. MR. SHILLINGER: Okay. COMMISSIONER SEPHAR: Don't we have an alternate? MR. SHILLINGER: We do. COMMISSIONER SEPHAR: So, when he's challenged MONROE COUNTY COURT REPORTERS (305) 852-7344 Q 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 could we not just have the alternate and that way we're not terminating any contracts. We're just -- when he's challenged then we move to the alternate. MR. SHILLINGER: And we do have that in place. Now, having that in place requires that you basically have two special masters that you're paying every month $2,000 a month to be available to hear cases and the backup -- we have a contract with Tom Wright as the backup, and that pays him $2,000 a month to be available whether we use him or not. So, that's $4,000 a month for hearing officers, and these hearings at this point are taking approximately two to three hours a month to get through. So, we're paying a lot of money for very little time. MAYOR DIGENNARO: I have a question. If we use this particular hearing officer and we win the first round, would it be grounds for appeal if then he represented that and the same thing because of that, that gives grounds for appeal, and we go to the appeal and your thought is we'll lose it? MR. SHILLINGER: Yes. MAYOR DIGENNARO: We have a little problem here. Legally we just might get caught up. MR. SHILLINGER: We're setting ourselves us up MONROE COUNTY COURT REPORTERS (305) 852-7344 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for more litigation on this issue again and again. MAYOR DIGENNARO: Explain to me so that I really understand. Basically not only did we set ourselves up with the appeal but our chances to win the appeal have really narrowed down because we have that exposure. MR. SHILLINGER: Right. We're not talking money here. We're just talking -- I mean, other than the time it takes to litigate these. It's not someone's going to get a judgment against us. We're going to end up getting an order to rehear the case with a different hearing officer, and that's going to cost us money to do that. It's not like we're going to write a check to a property owner at the end of the case, but yeah, we are going to spend time and money fighting over something that we know the outcome -- at least I would predict the outcome that we're going to lose. MAYOR DIGENNARO: The cat gets out of the bag and then every one of our cases can be appealed. MR. SHILLINGER: That's right if they raise the objection. Now, another option, instead of having our current system where we have Mr. Overby and Mr. Wright as our backup and paying $4,000 a month is to explore a contract with the Division of Administrative MONROE COUNTY COURT REPORTERS (305) 852-7344 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Hearings -- DOAH -- to send a hearing officer down here once a month to hear these cases. They charge $138 an hour. They bill for their travel time, but they do have hearing officers in south Florida, and they do come down here. I've spoken with the chief judge of DOAH, and he's indicated that they do this for other counties for their code enforcement process. COMMISSIONER SEPHAR: Isn't that as expensive than what we're doing now? MR. SHILLINGER: It would be, but then you're not having a local person hear this. You'll be having a state hearing officer. COMMISSIONER SEPHAR: Isn't the problem that the local person would have conflicts? MR. SHILLINGER: Right. It would be a cleaner way to do it to go to DOAH and do that. COMMISSIONER NEUGENT: The other thing that seems to be an extension of time here, Bob, is that we also have a hearing officer, Mr. Overby -- let me back up. Does Judge Overby at this point in time recognize the conflict or is he still arguing? MR. SHILLINGER: He believes there's no conflict. There's two to discuss. He does not believe that he has an ongoing conflict with Mr. Tobin and Mr. Mattson MONROE COUNTY COURT REPORTERS (305) 852-7344 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which would prevent him from sitting as a hearing officer. He also does not believe that -- he things that that's been -- a Chinese wall has been created around him with respect to these ordinance prosecutions because they don't handle them he doesn't see it as a conflict. COMMISSIONER NEUGENT: Based upon what I'm hearing from my colleagues is that we see the conflict that you're describing. MR. SHILLINGER: Yes. COMMISSIONER NEUGENT: So, having said that it would seem to me that coming to that conclusion in agreement with what I'm hearing you saying that you recognize it as a conflict then we can move on. So, I would say that the simple answer to this would be two fold. Judge Overby has a choice he needs to make on which master he's going to serve, and then the other choice would be for us to go out for an R.F.Q. and find another special master. MAYOR DIGENNARO: I just have maybe a third option. I'd like you to listen to this. Or we go to the wall with this case and then a precedence will be set whether he wins or whether he loses. COMMISSIONER MCCOY: No precedence will be set. Everyone can be challenged. MONROE COUNTY COURT REPORTERS (305) 852-7344 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR DIGENNARO: But it's already been -- I don't know how you say it. MR. SHILLINGER: If it's been decided by an appellate court that his position with the state attorney's office represents an inherent conflict with his position as special master that would be a precedent that everybody -- that we would automatically have to follow. MAYOR DIGENNARO: Right. MR. SHILLINGER: So, we would get a Court to tell what we think we already know. MAYOR DIGENNARO: Maybe it would be better to move it up there. The gentleman has been with us a long time. He's the special master. It might be to go to the appellate court. We're in there right now, right or wrong? MR. SHILLINGER: We're n the first step. We're in the circuit court level which is the trial court sitting as an -- the circuit court level sitting as an appellate court. To get an actual binding case we'd have to take it one more step to the Third District Court of Appeal. MAYOR DIGENNARO: Do you see that as an option? MR. SHILLINGER: It's one option to go. MAYOR DIGENNARO: I don't know the cost. I don't MONROE COUNTY COURT REPORTERS (305) 852-7344 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know the complications. MR. SHILLINGER: You're probably talking about 100 hours of my time to do that. COMMISSIONER NEUGENT: I don't see that as being an option because it seems like the decision is obvious, and again, if every case and every attorney in the future that wanted to challenge that took that position we'd be right back where we are in dealing with this. MAYOR DIGENNARO: Is that correct? MR. SHILLINGER: Yes. If we took it and won, and we won in the Third D.C.A. level then it wouldn't be grounds for that. MAYOR DIGENNARO: That's the question. MR. SHILLINGER: Unless they frame the argument a little bit differently. MAYOR DIGENNARO: Okay. COMMISSIONER MCCOY: This is what the case is all the time, frame it a little bit different and it's a whole new case and everything will be challenged. COMMISSIONER NEUGENT: It's clear to me Mr. Overby's got two choices. He can work for us or he can work for Mark Cole, or we can go out for an R.F.Q. and find another special master. COMMISSIONER SEPHAR: By going outside of the MONROE COUNTY COURT REPORTERS (305) 852-7344 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 county we don't have the conflicts that come up as to this person works for this person, or this person has been a judge and had somebody appear before them and some on. If we go outside of the county do you see -- I know there's always the probability of anybody challenging. Do you see as many possibilities? MR. SHILLINGER: For conflicts? COMMISSIONER SEPHAR: Yes. MR. SHILLINGER: The changes for a conflict with an outside hearing officer -- someone outside the county -- reduce to almost nil. I won't say every there is a possibility that somebody represents somebody. COMMISSIONER NEUGENT: The conflict is created because he's working for the state attorney. COMMISSIONER SEPHAR: If we go out in Monroe County because we're a small county, some attorney is going to have a difference of opinion with whomever. COMMISSIONER NEUGENT: No. Only if they work for the state attorney. MR. SHILLINGER: Let me make sure that I'm clear on this. There is the conflict he has in his position as being an assistant state attorney and our hearing officer. MONROE COUNTY COURT REPORTERS (305) 852-7344 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR DIGENNARO: That's the conflict. MR. SHILLINGER: That's a conflict on every case that he sits on. MAYOR DIGENNARO: That's the one we're really concerned about. MR. SHILLINGER: That's the one we're really concerned about. Then there is the small conflict -- the individual that's been upheld by the appellate court that Mr. Overby has with Mr. Tobin and Mr. Mattson because of some dealings between those three individuals when Mr. Overby was on the bench, and we've litigated that conflict and lost back in the late nineties and that was the Abbott case. MAYOR DIGENNARO: I think we're pretty well clear on what you've explained to us. Do we want to go back to an open meeting now? MR. SHILLINGER: Yes. (Time noted: 11:00 a.m.) MONROE COUNTY COURT REPORTERS (305) 852-7344 CERTIFICATE I, BARBARA J. PRINDLE, Registered Professional Reporter, do hereby certify that I was authorized to and did stenographically report the foregoing proceedings, and that the transcript is a true record. Dated this � day of 2007. ARBARA J NDLE, RP MONROE COUNTY COURT REPORTERS (305) 852-7344