Item L2CLOSED SESSION
2:45 P.M. TIME CERTAIN
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 6/18/2008 - MAR
Bulk Item: Yes No xx
Division: County Attorney
Staff Contact Person: Bob Shl;linger x3470
AGENDA ITEM WORDING:
A closed executive session of the Board of County Commissioners in the matter of Celeste Bruno v.
Monroe County, CV 07-10117.
ITEM BACKGROUND:
On May 30, 2008, staff attended mediation which had been ordered by the Court in the above -
referenced matter. As a result of that mediation, Iegal staff desires direction from the Board on the
case. 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 Roman Gastesi, County
Attorney Suzanne Hutton, Assistant County Attorney Bob Shillinger, Mike Burke as special litigation
counsel in the pending litigation, and a certified court reporter.
PREVIOUS RELEVANT BOCC ACTION:
5/21/08 BOCC approved Closed Session for 6/18/08 a 3:00 p.m.
523/08 BOCC approved rescheduling Closed Session for 6/18/08 @ 2:45 p.m.
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: n/a
TOTAL COST: a,$100.00 BUDGETED: Yes xx No
COST TO COUNTY: @$1.00.00 SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No xx AMOUNT PER MONTH Year
APPROVED BY: County Atty xx OMB/Purchasing n/a Risk Management n/a
DOCUMENTATION: Included
DISPOSITION:
Revised 2/05
Not Required X
AGENDA )ITEM #
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
In Re: Bruno v. Monroe County, Case No.: 07-CV-10117
Dear Ms. Heavilin:
BOARD OF COUNTY COMMISSIONERS
Mayor Sylvia J. Murphy, District 5
Mayor Pro Tern, Danny L. Kolhage, District 1
George Neugent, District 2
Heather Carruthers, District 3
David Rice, District 4
Office of the County Attorney
1111 ffh Street, Suite 408
Key West, FL 33040
(305) 292-3470 — Phone
(305) 292-3516 — Fax
Please find enclosed herewith the transcript of the June 18, 2008 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,
obert . Shillinger
Monroe County Attorney
Enclosure
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BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
ATTORNEY -CLIENT CLOSED SESSION
WEDNESDAY, JUNE 18, 2008
Re: Celeste Bruno v. Monroe County
CV 07-10117
COUNTY COMMISSIONERS:
Mario DiGennaro, Mayor
Dixie M. Spehar, County Commissioner
Charles McCoy, County Commissioner
George Neugent, County Commissioner
Sylvia J. Murphy, County Commissioner
STAFF:
Suzanne Hutton, County Attorney
Robert B. Shillinger, Chief 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, 2798 Overseas Highway,
Marathon, Monroe County, Florida, on the 18th day of June
2008, commencing at approximately 2:58 p.m. and concluding
at approximately 3:18 p.m., as reported by Susan L.
McTaggart, Court Reporter and Notary Public, State of
Florida at Large.
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MS. HUTTON: A closed attorney -client session
pursuant to Section 286.011, Subsection (8), needs
to be held at this point in time. The meeting will
take approximately 30 minutes. It is in the matter
of Celeste Bruno v. Monroe County, CV 07-10117. The
persons attending the meeting will be the County
Commissioners, County Administrator Roman Gastesi,
County Attorney Suzanne Hutton, Assistant County
Attorney Bob Shillinger, and a certified court
reporter. Since the law prohibits any other person
from being present at the closed session -- I wanted
to make sure the PowerPoint was ready before I said
everybody had to get out of here. The persons I've
already mentioned will remain in the meeting, and
all other persons are required to leave the room.
When the closed session is over we will reconvene
and reopen the public meeting. If the Mayor will
now close the public meeting.
MAYOR DiGENNARO: The public meeting is closed.
The closed session is open.
MS. HUTTON: Thank you. For the record, this
meeting is being held upon the request of the County
Attorney, who announced at a prior public meeting on
5/21 that I needed advice concerning the pending
lawsuit, Bruno v. Monroe County, CV 07-10117. At
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that meeting the Board approved holding today's
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closed session. Public notice was given at the 5/21
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meeting and at the 5/23 special meeting and through
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publication of the agenda for the 6/18 BOCC regular
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meeting. For the record and the benefit of the
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court reporter each of us will state our name and
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position, starting with the Commission.
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COMMISSIONER SPEHAR: Dixie Spehar, District 1.
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COMMISSIONER McCOY: Charles McCoy, District 3.
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MAYOR DiGENNARO: Mario DiGennaro, District 4.
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COMMISSIONER NEUGENT: George Neugent, District
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2.
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COMMISSIONER MURPHY: Sylvia Murphy, District
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5.
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MS. HUTTON: Suzanne Hutton, County Attorney.
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ADMINISTRATOR GASTESI: Roman Gastesi, County
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Administrator.
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MR. SHILLINGER: Bob Shillinger, Assistant
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County Attorney.
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MS. HUTTON: Just as a reminder, we will only
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be discussing settlement negotiations and strategy
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relating to litigation expenditures. We cannot take
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decisive action. If there is any decision to be
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made it would have to be made at an open meeting.
25
And I'm going to turn this over to Bob, who has
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prepared a PowerPoint for you.
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MR. SHILLINGER: Good afternoon. We're having j
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a little technical difficulty with the PowerPoint,
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but we'll get our way through it. The federal court
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whenever a case is filed will order parties to go to
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mediation. The federal courts want to get their
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cases solved, so they do that. They ordered us to
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go to mediation in this case. We had mediation on
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Friday, May 30, in Fort Lauderdale. So we're here
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today to communicate the settlement offer that was
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tendered by Ms. Bruno and through her attorneys and
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to receive some sort of direction from you.
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Before we go further, though, I want to give
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the background on the case a little bit. Before we
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get to there, we're in an attorney -client session,
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so I've got to remind you that anything we say here
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is protected under the attorney -client privilege, so
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it's not admissible in court if I have this
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conversation with you. We need to, so you're
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reminded to keep things confidential here and that
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preserves the privilege. If you don't we may harm
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our position.
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Ms. Bruno's filed a two-part claim. The first
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part of her claim is a hostile environment, sexual
r 25
harassment claim.
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1 COMMISSIONER NEUGENT: Bob, I'm sorry, is this
2 a federal or a state?
3 MR. SHILLINGER: She filed it in state court.
4 The County as our defendant's right elected to
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5 remove it to federal court because she alleged a
6 federal claim. She sued under a federal statute and
7 a state statute, so that gave us the right to remove
8 it to federal court and we figured we would get a
9 quicker and better disposition in federal court than
10 we would in front of a state court judge.
11 COMMISSIONER NEUGENT: Are those federal trials
12 held here in Monroe County?
13 MR. SHILLINGER: Yes, they are.
14 COMMISSIONER NEUGENT: We can't request a
15 different venue?
16 MR. SHILLINGER: We could if we can't pick, if
17 a jury can't be selected here.
1_8 Her claim, first claim is the sexual harassment
19 claim. She claims that while she was working for
20 Commissioner McCoy he made statements to her that
21 included some offensive details. She also claimed
22 that he made other sexually inappropriate comments
23 to her. But she acknowledges that at no time did he
24 ever touch her or make any advances to her. So it's
25 just a comment case. The County's defenses,
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obviously our first one is he denies making these
statements. She never complained or requested that
Mr. McCoy alter his conduct. And this is important
to understand, that even if what she says is true,
assuming, we're not acknowledging it, but if you
assume it, it doesn't rise to the level of sexual
harassment. Fourthly, she failed to use the
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complaint procedures, and thus didn't give the
County an opportunity to provide her with a safe
working environment. And fifthly, once she did tell
us of a problem we gave her an alternate employment
that was free of that type of harassment and then
she provided no complaints regarding her treatment
after that point. So that's our defense to the
first claim. It doesn't rise to the level of sexual
harassment.
Her second claim is a retaliation and
constructive discharge claim. Basically she's
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saying that we retaliated against her and forced her
to leave her job. It has two components. Prior to
her leaving Commissioner McCoy's office she's saying
that the Commissioner treated her in a demeaning
manner because she had told him to stop telling her
these stories and he was, this was his way, he was
frustrated with her and he was treating her in a
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1 demeaning manner. Obviously we deny that
2 allegation. After that she left the Commissioner's
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3 office. She's saying that we retaliated against her
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4 in two ways. One, by taking away her supplemental
5 pay that she had received because she was the
6 Mayor's aide. Each of you have an aide. When it's
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7 your turn to be the mayor and your aide gets a lot
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8 more paperwork you get a five percent supplemental
9 pay. When she walked away from that position that
10 supplemental piece of pay was taken away from her. i
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11 So that wasn't done in retaliation. It was done
12 because she was no longer working as the Mayor's
13 aide.
14 Our other defense is, or her other allegation
15 is that we failed to protect her from John Milo
16 Reese. That's the famed pizza pilot, the lunatic
17 that read something in the paper and kept trying to
18 communicate with her about the claim. So those are
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19 her allegations. j
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20 Our defenses to the second claim, obviously she
21 was not subjected to any adverse personnel action
22 while she worked for Commissioner McCoy. He didn't
23 treat her in a demeaning manner. In fact, he gave
24 her outstanding reviews. The loss of pay, as I
25 said, occurred because she was no longer the Mayor's
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aide. She, and the County took reasonable means to
protect her from Mr. Reese and to provide her with a
safe working environment. We went to extraordinary
measures. Commissioner Spehar even offered, when
she was placed in her office even offered to have a
security door put in that would allow her to buzz
people in and out. And nothing was good enough for
Ms. Bruno. And it's important to know that during
her deposition she acknowledged that there probably
wasn't anything the County could do to make her feel
safe.
MAYOR DiGENNARO: I have a question to ask you
in the meantime.
MR. SHILLINGER: Sure.
MAYOR DiGENNARO: Was Commissioner Spehar
deposed in this case?
MR. SHILLINGER: No. Mike Burke has been
representing the County in this case. He has
represented the County and other local governments
through the Florida League of Cities, their
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Municipal Insurance Trust Fund, for over 20 years.
He's board certified in appellate practice and civil
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trial law. He's given us some estimates and
percentages, but I want you to understand, that's
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what they are. They're estimates. They're not
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mathematical certainties. This information I'm
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giving you is based on Mike's assessment of the
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case.
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Our first step that we're going to file, we're
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about ready to file it, is a motion for summary
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judgment, and that argues that even if you assume
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what she's saying is true, she's not entitled to
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victory as a matter of law. On the first claim Mike
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estimates that we have a 60 to 70 percent chance of
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winning on summary judgment. On the retaliation
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claim he's estimating even higher, 80 percent chance
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of winning on summary judgment.
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If we get beyond summary judgment obviously
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those numbers start going down, and this second
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slide assumes that we've gone beyond summary
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judgment, it's been denied, and that a jury panel's
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And this gets back to what you were asking, Mr.
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Neugent. In federal court the jury panel is
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selected county -wide. We're in the Key West
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division of the Southern District Court, so they
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will pick their jury county -wide, as opposed to
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state court they divide it up into the three areas
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that we have. And you won't know until you actually
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get that panel in there, you would be able to get a
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to
1 better understanding once you know who your jurors
2 are, at least what the potential panel are, what
3 kind of chances you have. But even so, Mike places
4 the hostile workforce claim at 50 percent and the
5 retaliation claim our chances of victory at 80
6 percent. So we'd still have very good arguments and
7 very good chances of prevailing at trial, especially
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8 j on the retaliation claim.
9 COMMISSIONER NEUGENT: Back up a second on the,
10 explain the hostile, I understand the hostile
11 environment part, but explain the retaliation part
12 of that, the component to that.
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13 MR. SHILLINGER: Which one don't you
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14 understand?
15 COMMISSIONER NEUGENT: Retaliation claim.
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16 MR. SHILLINGER: The retaliation claim is he
17 treated her demeaning while she was working for him
i8 and we took away her supplemental pay and we didn't
19 adequately protect her from the pizza pilot. That's
20 what her retaliation claim is. And our defenses are
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21 obviously we didn't treat her in a demeaning way,
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22 the five percent pay came about because of the
23 policies when she changed positions, and we provided
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24 as much security, we provided more than reasonable
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25 measures to keep her safe.
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I COMMISSIONER NEUGENT: Okay.
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2 MR. SHILLINGER: So the next slide --
3 MAYOR DiGENNARO: Commissioner Spehar?
4 COMMISSIONER SPEHAR: You also gave her
5 assistance through medical mental.
6 MR. SHILLINGER: Absolutely. She went through
7 the employee assistance program. And we'll get into j
8 a little bit of that with the damages. But there
9 was a lot of efforts made. At some point whenever
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10 she had a problem she would pick up the phone, she
11 would call our office, Ms. Hutton and I responded on
12 more than a couple of occasions to the office. She
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13 had the assistance of the buzzer that she had under
14 her desk which summoned the deputies at the
15 courthouse next -door, she had the ability to access
16 911. There was extraordinary measures taken to make i
17 her feel comfortable in this position, and yet her
18 own testimony is nothing would make her feel safe.
19 The next slide, assuming, this next slide
20 assumes we lost on summary judgment and the jury
21 ruled in her favor on at least one of her two
22 claims. You're getting farther out from where you
23 are right now and the projections get even more
24 speculative. But Mike put a number on it for us.
25 He says it's about a 25 percent chance if we found
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ourselves in this position of prevailing on appeal.
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So obviously if you lost at summary judgment and you
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lost at trial you're not standing very good when you
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go up on appeal. But we wanted to give you those
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projections.
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Her claim, this is what she's asking for. This
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is an overview. Her claim ranges in value from
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about 155 to about 580, and that's based on what
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we've been able to determine from her damages. Her
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economic damages, lost wages, range between five and
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45,000. Her non -economic damages, pain and
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suffering, that's capped at 300,000 by federal law.
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Her attorney's fees and costs if she prevailed all
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the way through h and we were ordered to pay we figure
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would be between 150 and 235.
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And I've broken these down. Again, the
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economic damages, lost wages. The 2,000 is the lost
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five percent pay bump that she had. The 40,000 is
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if she was able to recover wages from the time she
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left Monroe County until she started her new job in
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Massachusetts, which incidentally pays more than she
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was making for us, so she's going to have a very
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difficult time proving to a court that she was
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damaged by the job change. She had some healthcare
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expenses, minimal amount, $600. Out-of-pocket I
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expenses for moving expenses, she's attributing
about 2,500. So that's where we came up with that.
The non -economic damages, the pain and
suffering, there's really no way to quantify it
other than to tell you it's capped at law at
300,000.
Attorney's fees, this again is an estimate on
where her range would be, 150 to 200 after trial and
you add another 20 to 35 on an appeal. So there's,
and that's how we got down to our ranges to the
total claim.
The County's exposure is limited to $100,000.
We're insured through the Florida League of Cities,
so they have an insurance policy that we participate
in. It's the Florida Municipal Insurance Trust.
The first $100,000 the County pays. Everything
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beyond that gets reimbursed by the Florida League.
Now, that includes the County's own defense costs
and fees that we've incurred so far, so whatever we
spend on the case, whether it's a judgment, whether
it's her attorney's fees, whether it's ours, once
you meet that hundred -thousand -dollar threshold it's
the League's money that's getting spent, not the
County's. We've been billed roughly $42,000 for the
attorney's fees and costs by our firm and by Mike
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1 Burke's firm working through May. It's probably a
2 little bit more than that here in June.
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3 COMMISSIONER NEUGENT: Bob, have we been, are
4 we obligated to talk to the League and say, look,
5 we're in this?
6 MR. SHILLINGER: We've notified the League.
7 The League is fully aware of every material stage in
8 the event. We've had a couple of conversations with
9 the adjuster. The first thing you do in risk
10 management when you get a claim is notify your
11 insurance carrier. Obviously these are hard costs
12 at 42,000. That excludes the staff costs and time
13 from our folks. It's funded out of the risk
14 management budget.
15 Future expenditures. To get ready to go to
16 trial and to try the case, we're probably looking at
17 another 50 to 75,000.
18 MAYOR DiGENNARO: But our maximum is only a
19 hundred thousand?
20 MR. SHILLINGER: Right.
21 MAYOR DiGENNARO: So --
22 MR. SHILLINGER: I know. That would get us up
23 to the limit.
24 MAYOR DiGENNARO: Why are we even discussing
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25 that?
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1 MR. SHILLINGER: Well, I at least need to give
2 you where we are.
3 An appeal would cost another 20 to 35. Again,
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4 once we reach the hundred it becomes the League's
5 money. Now, the important thing to understand,
6 though, is once it becomes the League's money they
7 have the right to settle the claim even without our
8 consent.
9 MAYOR DiGENNARO: I have one question, though.
10 Do they have the right to settle it except that we
11 would refuse to but then we're on our own? They'll
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12 only go to a certain amount?
13 MR. SHILLINGER: They will pay something to get
14 out of the claim.
15 MAYOR DiGENNARO: Pay to get out of the claim,
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16 but it doesn't stop us from going forward?
17 MR. SHILLINGER: If we wanted to fund it on our
18 own. They have the right to buy their way out of
19 the claim.
20 MAYOR DiGENNARO: To buy their way out of the
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21 claim. Okay.
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22 COMMISSIONER NEUGENT: And the other thing that
23 was pointed out was that you go on appeal to a 25
24 percent.
25 MR. SHILLINGER: If you've lost all the way and
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1 you get it on appeal you obviously are standing in a
2 much worse position than if you won earlier in the
3 case.
4 The League is made up of members of local
5 government, so they are very adaptive and respectful
6 of the wishes of a commission. I don't think that
7 for this type of case they're going to take over the
8 claim and settle it out from under you. But you
9 just need to know that that is a potential if things
10 continue to, if things look like they're going to
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11 get out of control. j
12 MAYOR DiGENNARO: Let me ask you this question.
13 If she was to settle tomorrow for $50,000 or $20,000
14 above our hundred, is this a decision that they
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15 would make, or would they still stand up for what's
16 right?
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17 MR. SHILLINGER: I'm sorry? I don't
18 understand. Back it up a second.
19 MAYOR DiGENNARO: If there was a settlement
20 negotiation.
I,
21 MR. SHILLINGER: Okay.
22 MAYOR DiGENNARO: In the settlement negotiation
23 let's say we're responsible for the first hundred
24 thousand and she reduced her settlement --
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25 MR. SHILLINGER: Down to 120?
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MAYOR DiGENNARO: To 120,
and they're
saying,
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well, 20,000 for us to get out
of it is a
good
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business decision, would they
do that, or
would they
4 still stand up for what's right?
5 MR. SHILLINGER: They would stand up until the
6 County wanted to -- for something small like that
7 they wouldn't cut the County loose.
8 MAYOR DiGENNARO: Okay. Thank you.
9 MR. SHILLINGER: And that's my understanding
10 based on my experience and conversations.
11 MAYOR DiGENNARO: Okay.
12 MR. SHILLINGER: Now, her settlement proposal,
13 at mediation she made an offer of $200,000. That's
14 everything. Taxes, tag, title, drive the car off l
15 the lot, even the floor mats, okay? Based on what
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16 we've spent so far we'd have to kick in about 55 for
17 that, and the balance would come from the Florida
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18 League. She also, as part of her settlement
19 proposal the Board would have to adopt a resolution
20 applying the County's existing sexual harassment
21 policy, making sure that it applies to the
22 Commissioners. We say it already does, they say
23 there's nothing explicit that says that, but that's
24 what she's asked that she's conditioned a settlement
25 on. Our recommendation, and this is in concurrence
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with Mr. Burke's, is that we reject the proposal, we
defend the case, we know where we're going on
summary judgment, we think we have a good chance on
that, and so we continue to defend the case and
reject her offer. We could always come back and
reassess our position after summary judgment is
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ruled on and prior to going to trial, which is
currently set to go to trial in the first week in
October.
So any questions?
MAYOR DiGENNARO: Just the one. Our exposure
right now would be another $45,000 and that's it?
MR. SHILLINGER: Yeah. Or 55.
MAYOR DiGENNARO: Whatever it is. Let's move
on.
MR. SHILLINGER: Okay. I have the direction I
need now. If somebody wants to do something
different I can, you know, we'd have to do that in
an open session, but I think we're good.
MAYOR DiGENNARO: Okay. Then we'll close the
session?
MR. SHILLINGER: Yes.
MAYOR DiGENNARO: The session is closed.
(This concludes the closed session.)
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1
C E R T I F I C A T E
2
STATE OF FLORIDA
)
3
COUNTY OF MONROE
)
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I, Susan
I
L. McTaggart, Court Reporter and Notary
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Public, State
of Florida at Large, do hereby certify that I
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was authorized
to and did report by stenotype the
proceedings in
the above -entitled matter, and that the j
8
transcript is
a true record of said proceedings.
9
Dated this
15th day of July 2008.
0
Susan L. McTaggart, Court Reporter
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All Keys Reporting - Court Reporters - (305) 289-1201
Locations in Key Largo, Marathon & Key West