Item I1
** CLOSED SESSION **
** 2:00 P.M. TIME CERTAIN 1o*
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
12/17/2008 - MAR
Division:
County Attorney
Bulk Item: Yes
No~
Staff' Contact Person: Bob Shillinger x3470
AGENDA ITEM WORDING:
An Attorney-Client Closed Session of the Board of County Commissioners in the matter of Celeste
Bruno v. Monroe County, CV 07-10117.
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 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:
10/15/08 BOCC approved Closed Session for 11/19/08 @ 2:00 p.m.
11/19/08 BOCC tabled Closed Session to 12/17/08 @ 2:00 p.m.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
N/A
TOTAL COST:
@$200.00
BUDGETED: Yes ~ No
COST TO COUNTY:
@$200.00
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No xx
AMOUNTPERMONTH_ Year
APPROVED BY: County Atty ~ OMBlPurchasing n/a
Risk Management n/a
DOCUMENTATION:
Included
Not Required X
DISPOSITION:
AGENDA ITEM #
Revised 2/05
BOARD OF COUNTY COMMISSIONERS
CountyNl�lN:ou IN,IIImc 11111c,11 le Collailliiiivon'D)q i ua°ll 2
,- h Florida e ��� PPP II i�,�utm,III uu mui III�,'iiu a^ II)ui 'uu,u�:il,.p.
" +r� (�r� Craig Cates kl'ii' I
F�ddic Mauiruiin e_ uui �1
� � u"ulllu�a i•uut.�d4Mu l)ii�ouiva.°u :�
Z
Robert B.Shillinger,County Attorney*"
Pedro J.Mercado,Assistant County Attorneys" Office of the County Attorney
Cynthia L,Hall,Assistant County Attorney""' 11 11126'Street,Suite 408
Christine Limbert Barrows,Assistant County Attorney"' Key West,FL 33040
Derek V.Howard,Assistant County Attorney" (305)292-3470 Phone
Peter H.Morris,Assistant County Attorney (305)292 3516, Fax
Patricia Fables,Assistant County Attorney
Kelly Dugan,Assistant County Attorney
Joseph X.DiNovo,Assistant County Attorney""
James Molenaar,Assistant County Attorney
**Board Certified in City,County&Local Govt..Law
Date: April 21, 2022
Kevin Madok, CPA
Clerk of Court, 16'Judicial Circuit
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040
In Re: Bruno. v. Monroe County
Case No.: 07-CA-1602-K
Dear Mr. Madok:
Please find attached a scan of the transcript of the December 17,2008 closed attorney-client session
of the Monroe County Board of County Commissioners, regarding the above-referenced matter.
Under F.S. 286.011(8), because the litigation has concluded, the transcript may be made part of
the public record.
Thank you for your assistance with this matter. Please contact me should you have any questions.
Sincerely,
Robert B. Shillinger
Monroe County Attorney
Attachment: 12-17-2008 CIosed Session Transcript
�SIw/ IIIIIdMn I% �Po J�1pp y�f�f{1, f�
W'�Il�luii ,��IIIVWS'Illlu..
2 MEETING OF THE
3 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
4 ATTORNEY-CLIENT CLOSED SESSION
5 RE : BRUNO VS . MONROE COUNTY
6 HELD AT THE
7 COMMISSION CHAMBERS
8 2798 OVERSEAS HIGHWAY
9 MARATHON, FLORIDA 33050
10 DECEBER 17 , 2008
11 1 : 56 P . M. - 2 : 13 P . M .
12 COMMISSIONERS PRESENT :
13 MAYOR GEORGE NUGENT
14 MAYOR PRO TEM SYLVIA MURPHY
15 COMMISSIONER HEATHER CARRUTS
16 COMMISSIONER MARIO DEGNNARO
17 COMMISSIONER KIM WIGINGTON
18 ALSO PRESENT :
19 SUZANNE HUTTON, ESQ. , COUNTY ATTORNEY
20 ROBET B . SHILLINGER, ESQ . , ASSISTANT COUNTY ATTORNEY
21 ROMAN GASTESI , COUNTY ADMINISTRATOR
22
23 ALL KEYS REPORTING
24 Olde Towne Centre 600 Whitehead Street
9701 Overseas Highway Suite 206, 2nd Floor
25 Marathon, Florida Key West, Florida
305-289-1201 305-294-2601
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon&Key West
2
1 MS . HUTTON: Okay. Now, I -- if we ' re getting ready
2 to -- I I is a closed attorney-client session, pursuant
3 to Section 286 . 011 Subsection 8, Florida Statutes . Which
4 will be held, it is estimated this meeting will take 30
5 minutes . The persons attending this meeting will be the
6 county commissioners, County Administrator Roman Gastesi,
7 County Attorney Suzanne Hutton, Assistant County Bob
8 Shillinger and in -- we don' t have Mr. Burke here. Is
9 that correct?
10 MR. SHILLINGER: That ' s correct .
11 THE COURT : And the certified court reporter. The
12 law prohibits any other person from being present at the
13 closed session. So the commissioners, the county
14 administrator, the attorneys for the county, and the
15 court reporter will remain in this meeting and the other
16 persons are required to leave the room. When the closed
17 session is over, we will reconvene and reopen the public
18 meeting. If the Mayor will now close the open meeting .
19 MAYOR NUGENT: The opening meeting is closed.
20 MS . HUTTON: Thank you.
21 (Whereupon all persons not mentioned above exited the
22 commission chambers . )
23 S . HUTTON: All right . It appears that the people
24 have now left the room. If they Mayor will call the
25 closed section to order, please .
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon&Key West
3
1 MAYOR NUGENT : I call the closed session to order .
2 MS . HUTTON : Okay. For the record, this meeting is
3 being held per the request of, I believe this was
4 assistant -- Chief Assistant County Attorney Bob
5 Shillinger, who announced at a prior public meeting that
6 we needed to have direction in the pending lawsuit;
7 Celeste Bruno versus Monroe County. On October 15th the
8 board provided public notice of the closed session, which
9 would be held on November 19th, at 2 : 00 p.m. Due to the
10 time constraints at the November 19th meeting, public
11 notice was given, at that meeting, that the closed
12 session would be tabled to December 17 , today, and
13 further public notice was provided for publication of the
14 agenda for the December 17th BOCC meeting .
15 For the record and the benefit of the court
16 reporter, each of us need to state our name and our
17 position, starting with the commission, commissioner
18 Heather Carruthers --
19 COMMISSIONER CARRUTHERS : I got it .
20 MS . HUTTON : Sorry .
21 COMMISSIONER CARRUTHERS : Commissioner Heather
22 Carruthers, district three .
23 COMMISSIONER DEGENNARO: Commissioner DeGennaro,
24 district four .
25 MAYOR NUGENT : County Commissioner George Nugent,
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon&Key West
4
1 district two.
2 COMMISSIONER MURPHY : District five, Sylvia Murphy.
3 COMMISSIONER WIGINGTON : District one, Kim
4 Wigington .
5 MS . HUTTON : Suzanne Hutton, county attorney .
6 MR. GASTASI : Roman Gastesi, county administrator .
7 MR . SHILLINGER: Bob Shillinger, assistant county
8 attorney.
9 MS . HUTTON : Just as a reminder, we are of to be
10 discussing settlement negotiations and strategy relating
11 to litigation expenditures . No decisive action can be
12 taken during this meeting . If any decision is to be
13 made, it would have to be made in the public part of the
14 meeting, after this closed session is over . I am going
15 to turn this over to Bob Shillinger .
16 MR . SHILLINGER: All right . I think we are
17 wondering if the mikes are live, over the television . Is
18 that the question? You want to check with Jacon real
19 quick .
20 MS . HUTTON : We ' ll double-check . Usually, he leaves
21 the picture running, but -- so .
22 MS . HUTTON : We ' re off the air .
23 MR . SHILLINGER: The reason we asked for this closed
24 session, the Bruno case is the sexual harassment case
25 that was filed against the county by former Commissioner
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo, Marathon&Key West
5
1 McCoy ' s, former aid. In October, we went to jury trial .
2 We had a judgment against the county in the amount of
3 $48 , 400 . The county, as outside counsel, we filed
4 posttrial motions, which we ' ve just finished the briefing
5 on, and now waiting for a decision from the court . If we
6 win those posttrial motions, we win -- the first one we
7 filed, which is a Motion for Judgment, not withstanding
8 the verdict, then judgment would be entered in our favor,
9 and she will likely appeal . If we win the alternate
10 motion, the Motion For New Trial, then we ' ll go back to
11 trial . Maybe we ' ll negotiate something, at that point .
12 If we lose both posttrial motions, then we would have 30
13 days, from the date the judgment is entered, to file a
14 notice of appeal .
15 So we wanted to get in front of you to get some
16 direction on the issue of a notice of appeal, and I
17 wanted to give you some of the financial issues that were
18 involved, so you can make an informed decision . The
19 judgment doesn ' t include just the $48 , 400, but also
20 includes her attorney ' s fees . She is seeking $260, 000,
21 almost $261, 000 in attorney ' s fees . We ' ve just filed our
22 response to that, which seeks to knock that number down
23 to about 113, $114 , 000, based on the rate they were
24 charging and the different items that they were charging
25 for . We are seeking to discount some of the items that
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo, Marathon&Key West
6
1 she ' s included in the bill .
2 Now, the county does have insurance for this type of
3 claim, through the Florida League of Cities . I have had
4 conversations with John Morrison, the adjustor that ' s
5 responsible for this file . And he indicated that the
6 League of Cities wants to go forward with an appeal . So,
7 why is that important to you . The county' s insurance
8 policy has, basically, $100, 000, called a self-insurance
9 retention level, that ' s its deductible . We spend
10 $100, 000 in defense costs, or paying a judgment, however
11 we get to $100, 000, the first 100, 000 is on the county,
12 and then everything beyond that is on the league, up to
13 like, five --
14 COMMISSIONER DEGENNARO: George -- we are already
15 there?
16 MR . SHILLINGER: We are there .
17 COMMISSIONER DEGENNARO: We are already there .
18 Topped out .
19 MR. SHILLINGER: We ' re there . So we are into the
20 league ' s money. It is not the county' s money . We would
21 have to front it and then we get reimbursed dollar for
22 dollar for it .
23 COMMISSIONER DEGENNARO: So, basically, we ' re there?
24 MR. SHILLINGER: Right .
25 COMMISSIONER DEGENNARO: And so it can ' t cost us any
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon&Key West
7
1 more money?
' 2 MR. SHILLINGER: Right . Now, the league has
3 indicated that they want to go forward with an appeal .
4 Here ' s where it becomes a little tricky. If the county
decided that it wanted to just get the matter over, and
6 directed that no appeal be taken, or took steps to
7 prejudice the league ' s ability to defend the claim, under
8 the -- we would be violating the terms of our insurance
9 contract with Florida League of Cities, and they could
10 deny coverage completely. So the whole enchilada, the
11 $48, 000 judgment, the 260, 000 -- up to $260, 000 in
12 attorney ' s fees, plus what we ' ve spent out, beyond that,
13 beyond the $100, 000 defense costs, and we ' re over that,
14 would then likely fall to the county taxpayers to pay .
15 So, you know, as long as the insurance --- our
16 recommendation is, as long as the insurance company wants
17 to go forward with an appeal, we do nothing to interfere
18 with the insurance company' s rights, ability to protect
19 its right to challenge the claim.
20 COMMISSIONER DEGENNARO: So then that ' s a
21 no-brainer .
22 MR. SHILLINGER: It seems like a no-brainer to me,
23 but I know that it ' s -- you know, it ' s an issue that the
24 board needs to, you know, give us some affirmation on it .
25 MAYOR NUGENT : Any other commissioners have --
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon& Key West
8
1 COMMISSIONER CARRUTHERS : I just have a question .
2 Should we -- you know, if we appeal, and if we lose the
3 appeal, does this in any way jeopardize us with our
future insurance, with future cases, is it --
5 MR. SHILLINGER: It goes into a rating, obviously --
COMMISSIONER CARRUTHERS : Yeah .
7 MR . SHILLINGER: -- when you have claims . But
S that ' s the reason you have insurance, is to have this .
9 And are you willing to write the -- make the business
10 decision that we ' re willing to write a check to, looks
11 like, 300 -- up to 300, 000 .
12 COMMISSIONER CARRUTHERS : We ' re already at 300, 000
13 anyway, so we ' re talking about saving ourselves --
4 COMMISSIONER WIGINGTON : You no longer have the
5 risk . You no longer are in that position, are you?
16 COMMISSIONER CARRUTHERS : Say that again.
17 COMMISSIONER WIGINGTON : You no longer have a risk .
18 COMMISSIONER CARRUTHERS : Well, that ' s true .
19 MR. SHILLINGER: Right . And just to comment on
0 that issue . We have the other commissioners, who may not
21 be aware . For the two new commissioners that have come
22 in, they have new aids, and we have employment contracts
23 with them that specifically make them at-will employees .
24 Which, under the title seven action -- under the sexual
25 harassment and other harassment laws, if the aid, it
A!1 Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon&Key West
9
1 serves as the personal assistant at the -- you know, as a
2 political appointee of an elected official, there ' s a
3 test you go through and we structured it so they would
4 meet this test . There is an exception, they don ' t get
5 the same title seven benefits . And we ' re going to keep
6 the existing aids in their positions as career service .
7 And we are transitioning . You know, for any time there
8 is a new aid, we would then move to the other things . So
9 that way we have the -- we ' re trying to prevent this
10 situation from even occurring in the future, where we
11 would have a different situation come up .
12 COMMISSIONER MURPHY : Go for it .
13 MR. SHILLINGER: So our intention is to go ahead and
14 continue the appeal, unless we get some direction to the
15 contrary . Do you want us to take a formal vote out in
16 public or --
17 MS . HUTTON : I don ' t think we need to . I mean, at
18 this point we ' re just following the coattails of the
19 insurance company. And then until and unless -- unless
20 and until you want us to take a different direction, I
21 don ' t think we need a specific vote .
22 MR. SHILLINGER: Okay .
23 COMMISSIONER CARRUTHERS : I have sort of a question
24 about the going forward. It sounds like we ' re preventing
25 ourselves from getting into this position again, is by
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon&Key West
10
1 this -- us not having aids, then?
d� 2 MAYOR NUGENT : The rest of them.
3 COMMISSIONER CARRUTHERS : Us having aids, but --
4 MR. SHILLINGER: Don ' t have the same protections .
5 COMMISSIONER CARRUTHERS : Don ' t have the same
6 protections .
7 MR. SHILLINGER: Yes .
8 MAYOR NUGENT : You could sue personally.
9 COMMISSIONER CARRUTHERS : The way I hold it, making
10 sure that sexual harassment education, a policy, to
11 everybody in the county.
12 MR . SHILLINGER: Well, the problem we have with
13 applying it to commissioners is, what happens when you
14 violate it . How can we, as staff, discipline you? There
15 is nothing in the -- your terms of office are set by the
16 constitution . And so anything that we attempt to do
17 that -- that adds additional conditions, you must -- you
18 know, if you ' re a commissioner -- if you ' re an elected
19 commissioner, you must go to training and you must abide
20 by the discipline . We can ' t force you to do that .
21 That ' s been -- that was the rock and a hard place we were
22 at, at trial . Yes, sir .
23 COMMISSIONER DEGENNARO: We could put something in
24 that the commissioners --- the commissioners could
25 sanction a commissioner if they violate it .
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo, Marathon&Key West
ll
1 MS . HUTTON : I think that you could impose on
2 yourselves a disciplinary authority, but we can ' t do
that .
COMMISSIONER WIGINGTON : But then you get into a --
5 COMMISSIONER DEGENNARO: If we do it then the --
with the --
7 COMMISSIONER CARRUTHERS : It would be --
S COMMISSIONER WIGINGTON : It becomes political .
MR. SHILLINGER: And there is -- the remedy is, if
10 you are miss -- when I say you, I mean, I am not pointing
11 at any individual . If a commissioner misuses the office
2 for their own personal benefit, which is what the case
13 the courts have treated sexual harassment claims or
14 misusing your office for your own -- it doesn ' t serve a
15 public purpose, you are subject to discipline by the
16 ethics commission . So there is a disciplinary mechanism
17 built in .
18 MS . HUTTON : And then there is the electorate .
19 MR. SHILLINGER: Miss Bruno chose not to follow
20 that .
21 COMMISSIONER WIGINGTON : The electorate?
22 MR. SHILLINGER: Yes . The electorate, obviously .
23 COMMISSIONER DEG NNARO: What are the --
24 COMMISSIONER WIGINGTON : Miss Bruno had recourse, as
25 we ' re finding out .
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo, Marathon&Key West
12
1 MR. SHILLINGER: Yes .
2 MS . HUTTON : And if I may, this is kind of off
3 track. Part of the reason we ' re moving to the contracts
4 is not so much for the issue of the sexual harassment,
5 but the fact is that some new commissioners do not want
6 to be saddled with the aids of the past . And if they ' re
7 career service, then they -- we have to pretty much find
8 them another spot, while we allow the commissioner to
9 make that appointment . And so I think this is more a
10 political issue for commissioners, than it is a sexual
11 harassment . What it actually is --
12 COMMISSIONER 'DEGENNARO: What happens if the aid
13 harasses the commissioner?
14 COMMISSIONER MURPHY : You wish .
15 MAYOR NUGENT : This becomes public records, guys .
16 R. SHILLINGER: Yes . This does become public
17 record at the end of the lawsuit .
18 MS . HUTTON: And they ' re not going to pickup on our
19 laughing .
20 MAYOR NUGENT : Now, the question I would have is
21 that in -- in going under these contracts, it -- it puts
22 a little more pressure, I would think, onto the
23 commissioner themselves, in that they become the first
24 line of -- whereas, they were employees of the county,
25 now they ' re, essentially, employees of the county
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon&Key West
13
1 commissioner .
2 COMMISSIONER WIGINGTON : No .
3 MR. SHILLINGER : No . They ' re contract employees of
4 the county. But your supervisor is -- a clear line of
5 authority is the commission .
6 MAYOR NUGENT : The county commission .
7 MR. SHILLINGER: Yes .
8 MAYOR NUGENT : So -- so if -- and -- and would then
9 the aid, in trying to make a case, have to file a
10 complaint with the county commission?
11 MR. SHILLINGER: They wouldn ' t have --
12 MAYOR NUGENT : That I 'm in a --
13 MS . HUTTON : They don ' t have the same title seven
P^
14 entitlement . However, if they wanted to pursue
15 something, they would have to file a -- lodge a complaint
16 with some authority, presumably, the county.
17 MAYOR NUGENT : Well, doesn ' t it make, in doing this,
18 a much more clear interpretation that the commissioner is
19 some -- maybe not your employer, but you work for him and
20 are obligated to her, that person, that county
21 commissioner . And I would think that the first -- first
22 complaint would have to go against -- and two, in a
23 formal written document --
24 MR. SHILLINGER: To the supervisor .
25 MAYOR NUGENT : To the county commissioner and cc the
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo, Marathon&Key West
14
1 county administrator .
2 MR. SHILLINGER: We may have to adjust the policy to
3 do that because this is -- you know, we ' re trying to
4 adjust the policy --
5 MAYOR NUGENT : Because this -- this, I think we ' re
6 all in agreement, based upon the case that we ' re dealing
7 with, is that Miss Bruno never filed a complaint with --
8 a written complaint, a formal complaint --
9 MS . HUTTON : Or even a verbal complaint .
10 MAYOR NUGENT : Even a verbal --
11 MR. SHILLINGER: There is disputed testimony to
12 that . She ' s saying she told Commissioner McCoy to stop .
13 MAYOR NUGENT : Well, but she never filed a formal --
14 formal written complaint to the county.
15 MR. SHILLINGER: That ' s is right .
16 MS . HUTTON : Right .
17 M . SHILLINGER: That is very true .
18 COMMISSIONER CARRUTHERS : But isn ' t that because her
19 attorneys told her that she needed to go to employment
20 commission?
21 MS . HUTTON : She didn ' t really have the attorneys
22 until --
23 MR. SHILLINGER: After .
24 MS . HUTTON : Until after she walked off --
25 MAYOR NUGENT : But Heather -- Commissioner
Al! Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon&Key West
15
1 Carruthers, I wold say, and I have talked with a lot of
2 people after this; female employees, and also having
3 worked in the private sector . There is some
4 responsibility and obligation on the part of the person
5 who feels like they have been wronged, to reach out --
6 MS . HUTTON : To bring --
7 MAYOR NUGENT : -- tell somebody that this person has
8 harassed me .
9 COMMISSIONER CARRUTHERS : I completely agree .
10 MR. SHILLINGER: And -- and --
11 MAYOR NUGENT : And as far as I know, based upon the
12 information I have, Miss Bruno never did that .
13 MR. SHILLINGER: And that is the undisputed
14 testimony at trial . She never told her husband . She
15 never told anybody in the county.
16 COMMISSIONER DEGENNARO: Aren ' t we getting away from
17 what the closed session --
18 MR. SHILLINGER: Well, I 'm just giving you the
19 facts .
20 COMMISSIONER DEGENNARO: Sure .
21 MR. SHILLINGER: Yes, we are . But I 'm just giving
22 you the facts that -- you know, with respect to this
23 case . You ' re absolutely correct, she never put the
24 county on notice until she walked out . So -- but in
25 terms of this, I think I have the understanding of the
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo, Marathon&Key West
16
1 commission, but please, correct me if I don ' t, and I
2 intend to authorize our outside counsel, let them know
3 that the county is fully supportive of an appeal . If I
4 need to take any kind of other direction, speak now and
5 we ' ll talk about that .
COMMISSIONER WIGINGTON : I don ' t think there ' s
7 anything .
8 MR. SHILLINGER: No . Okay.
9 MS . HUTTON : If you want to close the closed
10 session, then we can call the open session back together .
11 MAYOR NUGENT : Closed session is open .
12 (The Closed session was concluded at 2 : 13 p .m. )
13
14
15
1
17
1
1
20
21
22
23
2
25
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo, Marathon&Key West
17
1 CERTIFICATE
2 STATE OF FLORIDA,
3 COUNTY OF MONROE
4 I , Patricia A. Zischka, certify that I was
authorized to and did stenographically report the
5 foregoing proceedings and the transcript is a true
record .
6 Dated this 22nd day of December, 2008 .
10
Patricia A . Zischka
8
9
10
11
12
13
14
15
16
17
18
19
20
21
i
22
23
24
25
All Keys Reporting-Court Reporters-(305)289-1201
Locations in Key Largo,Marathon& Key West