HomeMy WebLinkAboutItem P07 P7
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE Mayor James K.Scholl,District 3
The Florida Keys Mayor Pro Tern Michelle Lincoln,District 2
Craig Cates,District 1
David Rice,District 4
Holly Merrill Raschein,District 5
Board of County Commissioners Meeting
April 16, 2025
Agenda Item Number: P7
2023-3886
BULK ITEM: No DEPARTMENT: County Attorney
TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger
no.
AGENDA ITEM WORDING: Approval of a resolution authorizing the waiver of the attorney client
and work product privileges and the duty of confidentiality with respect to qualifying confidential
communications with retired Senior Assistant County Attorney to allow her to testify in the matter of
State of Florida v. Roman Gastesi, 24-CF-917-K.
ITEM BACKGROUND:
Ramon de la Cabada, the attorney defending former County Administrator Roman Gastesi, subpoenaed
retired Senior Assistant County Attorney Cynthia Hall to testify at a deposition regarding her
knowledge regarding the underlying facts of the employment investigation arising from the diversion of
drugs from the Trauma Star program. Mr. Gastesi's handling of that investigation led the Grand Jury to
indict him on one count of official misconduct. Mr. Gastesi has pled not guilty to the charge. His
counsel is conducting discovery to prepare his defense.
Ms. Hall testified regarding unprivileged matters during her deposition but asserted the attorney-client
privilege as to certain qualifying communications. Mr. de la Cabada has requested that the attorney
client and work product privileges be waived so he can finish Ms. Hall's deposition.
Under the attorney-client privilege, conversations between a client or clients and their attorney are
privileged in certain circumstances. The privilege belongs to the client, not the attorney so the attorney
must assert it unless and until the client(s)waive the privilege. The work product privilege is related
but distinct from the attorney client privilege. The work product privilege protects from disclosure
information that is gathered in anticipation of litigation, as well as mental impressions, conclusions,
opinions, and theories of counsel. The resolution also authorizes a waiver of Ms. Hall's duty of
confidentiality under Rule 4-1.6 of the Florida Rules of Professional Conduct, which requires attorneys
to keep the confidences of their clients.
Ms. Hall participated in a conversation with Mr. Gastesi and county staff as part of the investigation
into the theft of drugs from Trauma Star. She also participated in a separate conversation on the same
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topic with Commissioner Lincoln and Mr. Gastesi. As an organizational entity, the privilege is held by
the organization as well as the individual participants. As the governing body for the organization, the
BOCC is the entity which must waive the privilege to the extent it extends to the County as an entity.
Each individual participating in the conversations will need to or has already waived the privilege with
respect to himself or herself.
The proposed resolution would, if passed, waive the attorney client privilege, the work product
privilege, and release Ms. Hall from her duty of confidentiality with respect to matters related to Mr.
Gastesi's criminal case. The waiver would permit Ms. Hall to testify at her continued deposition and at
trial if called by either the prosecution or the defense. Counsel for prosecution and the defense have
reviewed the draft resolution and been provided with an opportunity for input on its content.
PREVIOUS RELEVANT BOCC ACTION:
None.
INSURANCE REQUIRED:
No
CONTRACT/AGREEMENT CHANGES:
n/a
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Resolution authorizing the waiver of the attorney client and work product privileges and duty of
confidentiality in Gastesi criminal case final ver.pdf
FINANCIAL IMPACT:
n/a
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MONROE COUNTY, FLORIDA
BOARD OF COUNTY COMMISSIONERS
RESOLUTION NO. -2025
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
AUTHORIZING THE WAIVER OF THE
ATTORNEY CLIENT AND WORK PRODUCT
PRIVILEGES AND DUTY OF
CONFIDENTIALITY ON BEHALF OF THE
COUNTY AS AN ENTITY , WITH RESPECT TO
CONFIDENTIAL COMMUNICATIONS WITH
RETIRED SENIOR ASSISTANT COUNTY
ATTORNEY CYNTHIA HALL TO ALLOW HER
TO TESTIFY IN THE MATTER OF STATE OF
FLORIDA V. ROMAN GASTESI, 24 - CF - 917 - K .
WHEREAS, the County Commission, the County Administrator, and county
staff are represented on county business by the Monroe County Attorney and
the Assistant County Attorneys employed by the County Attorney's Office
pursuant to Section 2-179(a) of the Monroe County Code; and
WHEREAS, former County Administrator Roman Gastesi is the defendant
in the matter of State of Florida v. Roman Gastesi, 24-CF-917-K which is
pending in the 16t" Judicial Circuit of Florida; and
WHEREAS, Mr. Gastesi, through counsel, is seeking to depose retired
Senior Assistant County Attorney Cynthia Hall regarding conversations she
participated in with Commissioner Michelle Lincoln, Mr. Gastesi, and county
staff which are relevant to Mr. Gastesi's case, but which also qualify for
protections under the attorney client privilege, work product doctrine, and
confidentiality rules in the Florida Rules of Professional Conduct applicable to
attorneys; and
WHEREAS, during her initial deposition, Ms. Hall asserted the attorney-
client privilege, work product doctrine, and confidentiality rules with respect to
those conversations and declined to answer questions related to those
conversations; and
WHEREAS, Ms. Hall's deposition was continued so that the question of
privilege could be resolved; and
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WHEREAS, under F.S. 90.502, the attorney-client privilege belongs to
the client, not the attorney, and
WHEREAS, the "privilege extends not only to communications from a
client, but also to statements made by an attorney to a client, because
disclosure of an attorney's communications or advice to a client will effectively
reveal the substance of the client's confidential communication." Cunningham
v. Appel, 831 So.2d 214, 216 (Fla. 5t" DCA 2002); and
WHEREAS, it is well settled that the attorney-client privilege exists for
organizational clients such as the County Commission; see, Rogan v. Oliver,
110 So.3d 980, 983 (Fla. 2013), citing Upjohn Co. v. United States, 449 U.S.
383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981 ); and
WHEREAS, the waiver of the attorney-client privilege for organizational
clients requires the consent of that entity's governing body, i.e., the Board of
County Commissioners; see Rogan, 110 So.3d at 983; and
WHEREAS, because multiple people participated in the subject
conversations, each party to those conversations must waive the attorney-client
privilege; see, Cone v. Culverhouse, 687 So.2d 888, 889 (Fla. 2d DCA 1997)
and Cunningham, 831 So.2d at 216; and
WHEREAS, Rule 4-1 .6 of the Florida Rules of Professional Conduct, "a
lawyer must not reveal information relating to a client's representation . . .
unless the client gives informed consent"; see, Coffey-Garcia v. South Miami Hosp.,
Inc.,. 194 So.3d 533, 536 (2016); see also, Comment to Rule 4-1.6, R. Reg. The Fla. Bar;
and
WHEREAS, the work product doctrine protects information that is
gathered in anticipation of litigation, as well as mental impressions,
conclusions, opinions, and theories of counsel; and
WHEREAS, under the work product doctrine, materials prepared in
anticipation of litigation by or for a party or its attorney are protected from
disclosure unless a party seeking disclosure demonstrates a need for the
material and an inability to object to the substantial equivalent without undue
hardship; and
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WHEREAS, Mr. Gastesi's counsel has presented to the County Attorney
that Ms. Hall's work product is necessary for him to prepare a proper defense
of his client; and
WHEREAS, the Board finds that waiving the attorney client privilege, the
work product privilege, and releasing Ms. Hall from her duty of confidentiality
serves the paramount public importance of transparency in County government;
and
WHEREAS, by adopting this resolution, the Board waives the attorney-
client privilege, authorizes Ms. Hall to discuss matters covered by the work
product doctrine, and also consents to releasing Ms. Hall from her duty of
confidentiality with respect to her representation of the County as an entity to
the extent necessary to answer counsels' questions at her deposition, at trial,
and any related proceedings in 24-CF-917-K; and
WHEREAS, the waivers of the attorney client privilege, work product
privilege, and duty of confidentiality effectuated by this resolution shall be
limited to Monroe County as an entity, and that individual participants in the
subject conversations either have or will have to waive the privilege individually
in addition to the Board's waivers.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA THAT:
1. The above-stated recitations are incorporated as factual findings of the
Board.
2. The Board expressly waives the attorney client privilege and work
product privilege on behalf of Monroe County to the extent that those
privileges extend to the County government as an entity.
3. The Board expressly releases retired Senior Assistant County
Attorney Cynthia Hall from her duty of confidentiality under Rule 4-1.6
of the Florida Rules of Professional Conduct with respect to her
representation of the County as an entity to the extent necessary to
answer counsels' questions at her deposition, at trial, and any related
proceedings in 24-CF-917-K.
4. The Clerk is directed to email a copy of this resolution to:
• Assistant State Attorney Colleen Dunne via
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• Ramon de la Cabada, Counsel for Defendant Roman Gastesi,
via : . ,araiiTy,rioinidcllacalk�ada.coiiTT'ri.
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PASSED AND ADOPTED at a regular meeting held on the 161h day of April, 2025 in Marathon,
Florida.
Mayor James K. Scholl
Mayor Pro Tem Michelle Lincoln
Commissioner Craig Cates
Commissioner David Rice
Commissioner Holly Merrill Raschein
ATTEST: KEVIN MADOK, CLERK BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
As Deputy Clerk Mayor James K. Scholl
Approved for form and legal sufficiency:
Robert B. Shillinger, Jr.
Monroe County Attorney
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