PB: Shade Session Politics

by SDM

If you didn’t catch the fiasco at the end of the July 11 Village Council meeting, you really owe it to yourself to watch here starting at 3:37:00. It will drag on, but the denouement is really something to behold.

To Release or Not to Release, That is the Question

This blog has written extensively regarding our opinion that the transcripts of the village council’s private meetings with the village attorney regarding the lawsuit known as Palmer Trinity Private School, Inc. v. Palmetto Bay, also known as “shade sessions,” must be released to the public by law. Well, last week, Vice Mayor John Dubois placed an item on the agenda to release the transcripts and (drumroll) it finally passed!

Before we get to congratulations, we think it’s important to rebut some of the absurd comments made by some members of the council and by some of the usual suspects in the audience, including the odious Gary Pastorella.

Myths about releasing the shade sessions:

  • Previous councils worked in shade sessions thinking they were private; now you’re changing the rules. The village council can’t change the “rules” governing shade sessions because they come directly from state law, specifically Chapter 286, Florida Statutes. Any prior council member was bound to the state law by virtue of holding her office regardless of whether they understood or complied with Florida law on the subject. The fact is that any council has the option to release shade sessions or to avoid even holding the meetings in the first place.
  • Releasing the Third DCA sessions governing the Palmer case  means you have to release future shade sessions. Nonsense: see previous bullet.
  • Releasing a shade session is like showing your hand in poker. Certainly, if a shade session discussion regarding settlement negotiations would tip off the other side, a council has a limited right to withhold that information, but only until a final judgment is rendered. The village attorney has opined that the council can extend this limited privilege to another case. In fact, she asked the Florida Attorney General whether the council could do so, but the A.G. demurred. There is no authority in law or in A.G. opinions supporting the council’s decision to withhold the records from the public.
  • A shade session is like mediation. No, it is not. Mediation discussions remain confidential under separate authority and court rules. They are totally different animals.

In fact, the only question that should have been before the council was whether the shade sessions for the Palmer case decided by the Third DCA must be released now given that the case has been resolved.

To find the answer one can consult the Government in the Sunshine manual (2012) published by the Office of the Attorney General, which is the sunshine law bible for municipal attorneys. The manual posed the following question regarding privileged communications between a council and their attorneys:

When is litigation “concluded” for purposes of s. 286.011(8)(e) [Fla. Stat.]?
An action or lawsuit is “pending” from its inception until the rendition of a final judgment. AGO 06-03.

The Palmer case resulted in a trial court order (or “mandate”) related to a zoning decision. SDM could argue that the mandate itself was akin to a final judgment, which would mean that the village council should have released the session transcripts back in December, 2011.

But the fact that the Third District Court of Appeal denied the village’s appeal of the mandate in July, 2012 – and the village declined to undertake further appeals – certainly meets the test of whether the court’s mandate was a final judgment. It was final because the case was terminated at that point, except for cleanup motions related to attorney’s fees, etc.

Thus, the only question before the village council on July 11, 2013 was whether to finally follow state law.

SDM Says: Kudos to Vice Mayor Dubois for bringing the matter forward. Councilmen Fiore and Schaffer are also due an attaboy for declining to be bullied by the fools sitting in the back of the chamber.

Aside to Mayor Stanczyk: SDM heard you chastise your colleagues after the vote for making the village a laughingstock. The Marathon Man was right to call you out, but he missed the key reply: you have already made the village a laughingstock – just ask around.

The Ugly Repercussions

After the courageous vote by Dubois, Fiore and Schaffer, many of the usual suspects rose to exit the council chamber. On the way out, Councilwoman Joan Lindsay’s husband, Jerry Templer, flipped the bird at his wife and the rest of the council. What a charmer. Of course, the Mayor said nothing…again.

SDM Says: Joan, you may want to tell your boy to behave like a man. He is a public embarrassment and, though you don’t appear to be ashamed of his behavior, SDM is getting mighty sick of his privileged status.

Blog notes: Don’t worry, SDM will get to the AIPP, eventually…it’s still summer break you know.

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