Florida v. City of Port St. Lucie

• Decision Date: 18 April 2018
• Docket Number: No. 4D16–3976,4D16–3976
• Citation: 240 So.3d 780
• Parties: TRANSPARENCY FOR FLORIDA, Kali Crum and Nicholas Plummer, Appellants, v. CITY OF PORT ST. LUCIE, Ron Bowen, Joann Faiella, Shannon Martin and Roger Orr, Appellees.
• Court: Florida District Court of Appeals

240 So.3d 780

TRANSPARENCY FOR FLORIDA, Kali Crum and Nicholas Plummer, Appellants,

v.CITY OF PORT ST. LUCIE, Ron Bowen, Joann Faiella, Shannon Martin and Roger Orr, Appellees.

No. 4D16–3976

District Court of Appeal of Florida, Fourth District.

[April 18, 2018]

Megan Lazenby of Lazenby Law LLC, Lakeland, James S. Benjamin of Benjamin, Aaronson, Edinger & Patanzo, P.A., Fort Lauderdale, and Andrea Flynn Mogensen of The Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for appellants.

Jeffrey A. Blaker of Conroy Simberg, West Palm Beach, and Diane H. Tutt of Conroy Simberg, Hollywood, for appellees City of Port St. Lucie, Ron Bowen, Shannon Martin and Roger Orr.

Cynthia G. Angelos of Cynthia G. Angelos, P.A., Port St. Lucie for appellee Joann Faiella.

David A. Wallace of Bentley & Bruning, P.A., Sarasota, for Amicus Curiae First Amendment Foundation.

Warner, J.

Transparency for Florida, Inc., appeals a final summary judgment in favor of the City of Port St. Lucie, its council members, and city attorney in a Sunshine Law violation case regarding the termination of the city manager. The trial court did not conclude that a Sunshine Law violation had occurred, but determined that even if it did, any violation was cured by a noticed special meeting of the council. We reverse, as disputed issues of fact remain.

Appellant, Transparency for Florida, Inc., sued the City of Port St. Lucie, city council members (Ron Bowen, Shannon Martin), the mayor (Joann Faiella), and city attorney (Roger Orr) alleging that the council members violated the Sunshine Law in their discussions regarding the dismissal of the City Manager, Greg Oravec, and the negotiation of his severance agreement. It alleged that the city attorney improperly polled council members to determine their position on Oravec's separation agreement, and the city attorney communicated the polling results to other council members. After polling, the council held a special meeting to vote on the agreement, and the defendants provided the public with about twenty-one and one-half hours' notice. Transparency contended the notice was inadequate, and the subsequent meeting did not cure the violation. It sought a declaration that the Sunshine Law had been violated and the cure was inadequate. The defendants answered, contending that no Sunshine Violation had occurred, but if there was a violation, it was cured by the public meeting.

The defendants moved for summary judgment, attaching depositions and exhibits. The submissions showed that Port St. Lucie Councilman Bowen had significant disputes with City Manager Oravec, which ultimately culminated in Bowen's attempts to remove the city manager. To that end, in December 2012, an assistant city attorney told Oravec that the mayor asked to pull his employment contract and explore the severance provision because four out of five council members had lost confidence in him. Oravec wondered how this no confidence vote occurred outside of Sunshine. He questioned the mayor on this, and the mayor relayed that the council was unhappy with him. When questioned how she knew this without a meeting, the mayor became defensive.

On Super Bowl weekend in the beginning of February 2013, Bowen called City Attorney Orr, and asked Orr to determine whether there was interest in the council considering terminating Oravec. Bowen also spoke to the mayor that morning. Orr agreed to poll the council to determine whether there was any interest in offering Oravec a severance in exchange for his resignation. When Orr called Council Member Martin and asked her about her interest, she told him that she could not discuss this. Similarly, Council Member Berger told Orr that she would not participate in any polling, because a possible termination and severance should be discussed in the Sunshine. Orr called Bowen to report back his finding that there was not support to terminate Oravec. Orr had also called Oravec to suggest his resignation with a severance package, but Oravec turned him down.

After that weekend, Oravec had a change of heart and determined that he would negotiate an amicable separation agreement with the city because his relationship with the council was "irretrievably altered." Orr and Oravec then negotiated the terms of the separation agreement. When they got close, the council scheduled a special meeting to consider Oravec's departure.

There were three notices of the special meeting to consider Oravec's separation from the city. The first notice, with a hand-written "posted" date of February 06, 2013, states that there will be a special meeting for the removal of the city manager on February 07, 2013, at 9 a.m. at City Hall. This notice was posted twenty-one hours, twenty-seven minutes before the meeting. This notice was sent to the media. The second, revised notice lists the "discussion of a separation agreement for the city manager" on its agenda. This notice was posted to the city's public calendar on February 6 at 1:19 p.m. The notice also lists discussion of the "cancellation of the city manager's employment agreement" as an agenda item, only to be discussed if the separation agreement was not approved. The third notice lists the same date and time for the meeting, but it only lists discussion of a separation agreement.

The city attorney and his staff then worked on the separation agreement until late the night before the meeting. The assistant city attorney testified in deposition that she may have had conversations about the city manager's resignation with the individual council members. Prior to the meeting, the council members were e-mailed one version of the agreement. Then more changes were made, and on the morning before the special meeting, the assistant city attorney explained to the council members the changes and received comments from them. At least two council members expressed the desire to have no debate or discussion of the termination at the meeting because of an unpleasant experience with a prior termination of a city manager. They told the city attorney that they did not want to go "item by item to say we don't want you here because of A, B, C and for him to respond that's not true because of X, Y, and Z."

The meeting commenced at 9 a.m. A video of the meeting shows that many people attended, although nothing in the record indicates whether those attending were members of the public, city staff, or the media. The meeting was almost immediately recessed because the city attorney announced that more changes needed to be made to the separation agreement, because additional matters came up which needed to be dealt with. After about an hour, the meeting resumed at which time there was no discussion of the terms of the finalized agreement. A motion was made to approve the separation agreement. The council members had copies of the agreement. Although the previous drafts of the agreement were available in the city records, there is no indication that a copy of the final agreement was made available to the public. Several of the council members made statements of regret to the termination, stating that they all had great respect for Oravec. Some mention was made of failure to communicate and failure to agree on several matters, but the council never discussed any specific issues. Mayor Faiella stated that Oravec had made tremendous progress in bringing the city to a new level. Neither the terms of the severance agreement or the reasons for termination were discussed. The meeting lasted less than fifteen minutes.

After accusations of Sunshine Law violations by the council members appeared in the newspaper, the State Attorney's Office (SAO) investigated the matter. During the course of the investigation, the SAO subpoenaed phone records from the city council members' city-issued phones. Some of the council members deleted text messages and voicemails on their phones from the time period about which the subpoenas inquired. As a result of the investigation, Councilman Bowen pled nolo contendere to the noncriminal infraction of violating the Sunshine Law.

The trial court granted the defendants' motion for summary judgment, based upon the materials submitted. In its order, the court stated that it was "not convinced that [the discussions regarding the termination of Oravec and the severance agreement] were purposeful contraventions of the Sunshine law," but concluded that any violations were cured by the well-attended special meeting. The court found that the matter of the city manager's employment and potential severance was discussed "at length." The court rejected Transparency's contention that the meeting could not cure a prior Sunshine Law violation unless the prior violation was specifically addressed. It believed that any violation could be "cured where the substantive subject matter is addressed via formal, independent, public action." As the court found that was what occurred at the February 7th meeting, the court concluded that any violation was cured. The court also rejected Transparency's contention that the notice was insufficient because it gave less than twenty-four hours' notice. While the statute requires reasonable notice of a meeting, the statute does not further define what that may be. From these rulings, Transparency appeals.

This Court reviews a trial court's grant of summary judgment de novo. Soncoast Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Fla., Inc. , 981 So.2d 654, 655 (Fla. 4th DCA 2008).

[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact, and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. A summary judgment should not be granted unless the facts are so crystalized that nothing remains but questions of law.

Id. (citing Craven v. TRG–Boynton Beach, Ltd. , 925 So.2d 476, 479–80 (Fla. 4th DCA 2006) ). "Summary judgment is proper if there is no genuine issue of material fact and...