Item Q1* 1:30 P.M. CLOSED SESSION *
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 9/21/12 - MAR Division: County Attorney
Bulk Item: Yes No X Staff Contact Person: Bob Shillinger. #3470
AGENDA ITEM WORDING: An Attorney -Client Closed Session of the Board of County
Commissioners in the matter of Echols v. Monroe County, et al., case no. 10-10085-CIV.
ITEM BACKGROUND: The County is involved in litigation with John and Gayle Echols who filed
suit against the County, its Planning and Code Enforcement Directors, and the Property Appraiser for
what they claim to be discriminatory treatment in permitting decisions when they owned the subject
property in comparison to how the subsequent owners were treated when they sought and obtained
development approvals.
Present at the meeting will be the Commissioners, County Administrator Roman Gastesi, County
Attorney Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger, Assistant County Attorney
Derek Howard, Assistant County Attorney Susan Grimsley, Assistant County Attorney Lisa Granger,
outside litigation counsel Michael T. Burke, Esq. and a certified Court Reporter.
PREVIOUS RELEVANT BOCC ACTION: 8/15/12 BOCC approved Closed Session on 9/21/12 at
1:30 P.M. in Marathon, FL
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
N/A
TOTAL COST: Est. 200 INDIRECT COST: BUDGETED: Yes X No
COST TO COUNTY: Est. $200 SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No X AMOUNT PER MONTH Year
APPROVED BY: County Atty X OMB/Purchasing Risk Management
DOCUMENTATION: Included Not Required X
DISPOSITION: AGENDA ITEM #
Revised 2/05
County of Monroe
The Florida. Keys
Robert B. Shillinger, County Attorney**
Pedro J. Mercado, Assistant County Attorney **
Susan M. Grimsley, Assistant County Attorney**
Natileene W. Cassel, Assistant County Attorney**
Cynthia L. Hall, Assistant County Attorney **
Christine Limbert-Barrows, Assistant County Attorney **
Derek V. Howard, Assistant County Attorney**
Lisa Granger, Assistant County Attorney
Steven T. Williams, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
January 9, 2014
Amy Heavilin, Clerk of the Circuit Court
Sixteenth Judicial Circuit, State of Florida
Monroe County Courthouse
500 Whitehead Street
Key West FL 33040
BOARD OF COUNTY COMMISSIONERS
Mayor Sylvia J. Murphy, District 5
Mayor Pro Tem, Danny L. Kolhage, District 1
George Neugent, District 2
Heather Carruthers, District 3
David Rice, District 4
Office of the County Attorney
1111 121s Street, Suite 408
Key West, FL 33040
(305) 292-3470 — Phone
(305) 292-3516 — Fax
In Re: Echols v. Monroe County, et al., Case No.: 10-cv-10085
Dear Ms. Heavilin:
Please find enclosed herewith the transcript of the September 21, 2012 closed attorney/client
session of the Monroe County 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
Monroe County Attorney
Enclosure
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BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
ATTORNEY -CLIENT CLOSED SESSION
FRIDAY, SEPTEMBER 21, 2012
Re: Echols v. Monroe County, et al. � owm
Case No. 10-10085-CIV
COUNTY COMMISSIONERS:
David Rice, Mayor
Heather Carruthers, County Commissioner
Kim Wigington, County Commissioner
George Neugent, County Commissioner
Sylvia J. Murphy, County Commissioner
STAFF:
Suzanne A. Hutton, County Attorney
Robert B. Shillinger, Chief Assistant County Attorney
Lisa Granger, Assistant County Attorney
Susan Grimsley, Assistant County Attorney
Roman Gastesi, County Administrator
TRANSCRIPT OF PROCEEDINGS
Proceedings of the Board of County Commissioners of
Monroe County Attorney -Client Closed Session, at the Marathon
Government Center, Marathon, Monroe County, Florida, on the
21st day of September, 2012, commencing at approximately 1:35
p.m. and concluding at approximately 1:47 p.m., as reported by
Susan L. McTaggart, Court Reporter and Notary Public, State of
Florida at Large.
All Keys Reporting
Olde Town Centre
9701 Overseas Highway
Marathon
305-289-1201
600 Whitehead Street
Suite 207
Key West
305-294-2601
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I�zwew��Do•IBW`s
MAYOR RICE: And we are going into closed session.
MS. HUTTON: Okay. A closed attorney -client session
pursuant to Section 286.011, Subsection 8, Florida
Statutes, will now be held. It is estimated this meeting
will take approximately thirty minutes. The persons
attending the meeting will be the County Commissioners,
County Administrator Roman Gastesi, County Attorney
Suzanne Hutton, Chief Assistant County Attorney Bob
Shillinger, Assistant County Attorney Susan Grimsley,
Assistant County Attorney Lisa Granger, and a certified
court reporter.
Since the law prohibits any other person from being
present at the closed session, the Commissioners, the
County Administrator, the attorneys for the County, and
the court reporter will now remain in this meeting room,
and all other persons are required to leave the room.
When the closed session is over we will re -convene and
reopen the public meeting.
Will the Mayor please close the public meeting?
MAYOR RICE: The public meeting is closed.
MS. HUTTON: If the Mayor will call the closed
session to order I will read the rest of the script.
MAYOR RICE: We will now call the closed session to
order.
Pool
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MS. HUTTON: For the record, this meeting is being
held upon the request of Chief Assistant County Attorney
Bob Shillinger, who announced at a prior BOCC meeting
held on August 15, 2012, that he needed advice in the
matter of Echols v. Monroe County, Townsley Schwab, Ronda
Norman, and Ervin Higgs, Case No.
10-10085-CIV-Martinez-McAliley. At that meeting, the
Board approved holding today's closed session and public
notice was given through public announcement of the
meeting at the August 15, 2012 BOCC meeting and through
publication of the September 21, 2012 BOCC meeting agenda
on the County's website.
For the record and the benefit of the court
reporter, each of us will state our name and position,
starting with the Commission.
COMMISSIONER CARRUTHERS: Heather Carruthers, Monroe
County Commissioner, District 3.
COMMISSIONER WIGINGTON: Kim Wigington, Monroe
County Commissioner, District 1.
MAYOR RICE: David Rice, Monroe County Commissioner,
District 4.
COMMISSIONER NEUGENT: George Neugent, Monroe County
Commissioner, District 2.
COMMISSIONER MURPHY: Sylvia Murphy, Monroe County
District 5.
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MS. HUTTON: Suzanne Hutton, County Attorney.
MR. GASTESI: Roman Gastesi, County Administrator.
MS. GRANGER: Lisa Granger, Assistant County
Attorney.
MS. GRIMSLEY: Susan Grimsley, Assistant County
Attorney.
MR. SHILLINGER: Bob Shillinger, Chief Assistant
County Attorney.
MS. HUTTON: As a reminder, we will only be
discussing settlement negotiations and strategy relating
to litigation expenditures. You cannot take any decisive
action at this meeting. We can only provide information
and you can provide direction to the attorneys. Any
decisions this Board makes concerning the case must be
done in a meeting open to the public.
And I'm going to turn this over to Mr. Shillinger.
MR. SHILLINGER: Good afternoon. We're here today
to talk about the Echols matter. Just a 30-second
refresher of what the case is. The Echols used to own a
piece of property down on Sugarloaf. They had sought a
ROGO exemption. They had been denied by staff that ROGO
exemption. They chose not to appeal that decision to the
Planning Commission. They then sold their property at a
low rate to a person who purchased it. The buyer,
Candice Aiken, pursued a ROGO exemption. Staff had
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changed, policy had changed, Planning Commission had
changed. Staff recommended approval of that ROGO
exemption.
Do I have those facts correct, Susan?
At any rate, they sued on the basis that the jilted
seller, the seller who had sold it at a lower rate sued
on the basis of that unequal treatment. They sued on an
equal protection claim, civil rights. We got that case
dismissed. Judge Martinez from the U.S. District Court
dismissed the case about the fourth or fifth time through
after they had been given several attempts to amend their
Complaint.
The question now is do we want to go after them for
our attorney's fees. They're willing to pay the costs.
It's about $2,800. Our attorney's fees have crossed over
the 100,000 threshold. What's that threshold from? That
threshold is once we get to 100,000 the rest of the money
is on the Florida League of Cities. And so we met our
deductible, our self-insurance retention limit. And so
the case the way it's postured right now, the case has
been dismissed, they've moved for rehearing. They said
if they're denied rehearing they're going to take an
appeal, but they'd be willing to not take the appeal and
walk away from it for something, a low number, that
they're certainly willing to pay our costs.
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COMMISSIONER CARRUTHERS: Up to a hundred to
thousand?
MR. SHILLINGER: No. They're willing to pay the
$2,800 in transcripts, in court reporter fees, those
types of things, but they're certainly not willing to pay
for attorney's fees.
COMMISSIONER MURPHY: How much are those?
MR. SHILLINGER: About a hundred and two, hundred
and three thousand dollars.
The, to go further in the case, we would get
reimbursed dollar for dollar. So there's really no risk
to us to going further until the Florida League, at this
point the case would be the League's claim, and the
League has said that they're not going to oppose going
forward, but they would like to see the case wrapped up.
The analysis on whether we would actually get our
fees back, because it's not a certainty, understand that
when you win a case in dismissal you get your taxable
costs, your court reporter fees, your transcript fees,
those types of things, but attorney's fees are only
awarded in this type of case if you can show that the
case that was filed was frivolous. Outside counsel Mike
Burke, who is the carrier counsel, believes we have
probably about a 25-percent chance at best of getting the
court to award attorney's fees in this case.
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COMMISSIONER CARRUTHERS: Why?
MR. SHILLINGER: Because it is a civil rights case,
and civil rights cases are difficult to get awarded fees
on behalf of the government entity because they want to
encourage people to file them when appropriate.
The other thing is that the court did not
immediately dismiss it, so the court -- with prejudice.
What the court did was gave them several opportunities to
try and articulate a claim. And he believes that that
indicates that the court, had the court just dismissed it
the first time out and said you can't even recover on
that basis, we'd have a better shot at getting the fees
because we'd have a better articulable record that the
case was frivolous from the outset, but because they were
at least able to wiggle around enough on each succeeding
motion to dismiss three times to get leave to file and
amend it, he believes our position is somewhat weakened.
So the question is, how much money do we want to
spend to go after this.
Now, a second complication which I just learned of
this morning is that the Property Appraiser, we've known
all along they've been sued, they're covered under our
policy, but they haven't sought reimbursement for their
fees yet, so our 100,000 that we've put in could easily
become 200,000 if the Property Appraiser's Office seeks
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to recoup some of those funds, because they're covered
under our Florida League of Cities policy. We cover all
the constitutional officers for this type of a civil
rights action. So our skin in the game, we met our
hundred. The League's exposure may have gone from about
$5,000 to 105. So I need to reevaluate that.
But my recommendation to you today and what I'd be
asking you is the authority to at least negotiate the
best deal possible and come back with a settlement
agreement. I think it's going to be somewhere above the
2,800 in costs, because obviously we're entitled to that,
but I don't want to leave you with any illusions that we
have a strong claim to recoup that 100,000. So the
bottom line question, how much resources and effort do
you want to put into chasing down, recovering our
100,000?
COMMISSIONER NEUGENT: As little as possible.
COMMISSIONER WIGINGTON: It's really not our costs.
MR. GASTESI: Yeah. That's what I was going to ask.
Isn't that outside counsel costs?
MR. SHILLINGER: Yes. It would be outside counsel
costs. But we will be getting reimbursed, we potentially
will be getting reimbursed for those fees, we should get
reimbursed for those fees that we spend from this point
forward, because again, we met our deductible. So we
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might be spending the League's money, but we don't know
long they'll be in it. At some point the League could
say we've put enough money into it, we don't want to
litigate this anymore, we don't want to spend any more
money on it, it's on your own nickel.
MAYOR RICE: Bob, it sounds to me like you're, what
you're asking is, what we're discussing is consideration
for our next meeting when you come back to us with your
best offer?
MR. SHILLINGER: Yeah. It might not be the next
meeting. It might be one down the road or two, but I'm
at least --
MAYOR RICE: But today we're not quite there yet?
MR. SHILLINGER: You're not quite there yet. But I
at least want to get some feedback from you. Are you
willing to, us to spend the effort and spend the
resources and fronting the money to outside counsel to
consider, to pursue trying to recoup our 100,000 that
we've put into it?
COMMISSIONER NEUGENT: With a 25-percent chance?
MR. SHILLINGER: With a 25-percent chance.
COMMISSIONER NEUGENT: No. No, thank you.
COMMISSIONER MURPHY: As little as possible.
MR. SHILLINGER: Okay. So cut the best deal and
come back. I think I've got the direction that I need.
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Okay. Well, I have the direction I need, then. Thank
you.
MS. HUTTON: You can close the closed session and
we'll go back into the public session.
MAYOR RICE: We will close the closed session.
(Proceedings concluded at 1:47 p.m.)
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C E R T I F I C A T E
STATE OF FLORIDA )
COUNTY OF MONROE )
I, Susan L. McTaggart, Court Reporter and Notary
Public, State of Florida at Large, do hereby certify that
I was authorized to and did report by stenotype the
proceedings in the above -entitled matter, and that the
transcript is a true record of said proceedings.
Dated this 30th day of September, 2012.
Susan L. McTaggart, Court Reporter
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