PB: Redacted, Confusing and Clear

by SDM

Okay, SDM’s getting weary and frustrated reading the shade session transcripts.

Weary because they are redacted to such a degree that one has difficulty following the decision-making process. The village attorney offers very little justification of her unilateral decision to redact other than her public pronouncements (rejected by the Attorney General) that the discussions in the attorney-client sessions cover both a pending legal matter along with the Palmer appeal, which has concluded.

Here’s the question for the council: Have you been given an opportunity to determine if the redactions are valid? Certainly, Vice Mayor Dubois’s motion tonight to release all the shade session transcripts seems even more timely given the heavy hand Ms. Boutsis used to apply her gigantic magic marker.

The frustrating part is that SDM is coming to the conclusion that Ms. Boutsis has failed both the village and the council by not requiring them to stay within the strict boundaries of the sunshine law.

For example, by mid-2011 the council had suffered a couple of defeats at the hands of the appeals panel. The court told the council in clear terms that its decision to limit Palmer to 900 students was arbitrary and that they must correct themselves. Subsequently, Village Attorney Boutsis called for yet another shade session.

At the June 20, 2011 session, former Vice Mayor Brian Pariser – an attorney by trade and one who should know better – strayed wildly off-topic to essentially develop a game plan for bringing back the Palmer item and how the council should manage the public hearing:

MR. PARISER: The Order of Clarification, the only thing that struck me was, there is that Walt decision which has a severability clause in the resolution and ours didn’t. And this Circuit Court Appellate Panel said, I didn’t mean you have to have one, we are quashing it. It doesn’t mean you need to reopen the whole case. In my opinion, they spoke clearly about that.

They said you can’t reopen the whole case; it’s only on these two issues.

The question is, on these two issues how far can you go and whether it’s a full hearing de novo, which with that Irvine case, Florida Supreme Court case vs. the law in the case that you gave me recently, which said on remand, that’s the First District Court of Appeals case that you can only open the issues if there is a change of circumstances with different evidence. I think that it’s change of circumstances actually from what date, from the original way back date or from our most recent date?

[SDM Comment: Mr. Pariser is seeking legal counsel regarding "how far the council can go" with the Palmer re-hearing. Remember, the only permitted topics at these kinds of secret sessions is supposed to be settlement negotiations or strategy sessions on litigation expenses. Mr. Pariser is discussing neither here.]

MR. HOCHMAN: From the date that the quasi judicial proceedings evidence was taken.

MS. BOUTSIS: One year ago.

MR. PARISER: 2010.

MR. HOCHMAN: Just so you understand. The idea of law of the case is a kind of a practical doctrine that says, an Appellate Court makes a decision with all of the facts and decides something, and it sends you back down, you are kind of stuck within those parameters. And the exceptions are, unless the facts change so much that you are really dealing with a new set of facts, or unless the law has changed so much in that interim, that it would be manifestly unjust to stick with the old law that’s no longer the case.

MR. PARISER: The interesting thing on the law of the case, the First District’s Opinion was, there was an…

MR. BOUTSIS: The Family Parker Trust Case.

MR. PARISER: The Family Parker Trust Case where there was a concurring opinion which basically says , quasi judicial hearing, you better do it right the first time because a lot of people are not going to be able to do it. If you don’t dot all of your “i’s” and cross all your “t’s” and bring your experts, you are basically stuck with what’s there, and it goes back on remand, but they still left open whether there would be a substantial change of circumstances.

The only thing, I don’t know what somebody could say, but you probably have to open the hearing to have people express for a substantial change of circumstances.

As far as Raoul Cantero, what I would look for hi m, if anything, and I know Raoul, very straight guy, straight shooter, competent attorney, very smart guy, but short of an appeal, is just to run it by him and say, look Raoul, this is the situation.

A, do you think that we have an appeal? And the only appeal I see is whether this Appellate Court Panel and the Circuit Court is interpreting something that the Third DCA has said has to be a severability clause.

Yes or no, does there have to be a severability clause? And is this order at this point in time appealable? Well, Raoul, what do you think?

[SDM Comment: The discussion on whether to hire Cantero involves a litigation expense. This kind of discussion is permissible and wise.]

And if not, if it goes to hearing, do we open on these two issues. Because they only appealed the two, they’re probably stuck with the 80 that they agreed to.

So two, how much or to what extent can we solicit evidence, I guess would be the number of students. The other one, the 30-year prohibition would be no basis for that.

[SDM Comment: In the two preceding paragraphs, Pariser reverts to a discussion of how "we" (meaning the council as a group) will restrict public comment at a public hearing, which constitutes an impermissible taking of "decisive action in violation of the Sunshine Law." See Zorc v. City of Vero Beach, 722 So. 2d 891, 900 (Fla. 4th DCA 1998).]

MS. BOUTSIS: We have to strike it.

[SDM Comment: Ms. Boutsis fails to remind the council of the prohibition on deciding on how they will act together at the public hearing.]

MR. PARISER: That’s not even an issue. And ask him, is it worth his opinion. And he is a pretty good opinion, he is a well respected guy. And if he tells us or gives us some direction, at least we have a second opinion. Because I am afraid of going to the hearing, right at the beginning of the hearing there [are] arguments. You hear everything, you don’t hear everything, we have to, I guess, give some direction at the beginning of the hearing, what’s going to be allowed to be testified to by both sides.

I want to know going in, I don’t want to leave it to the day. I want to have an opinion that I can rely on from a reliable source, from a Village Attorney or a second opinion, what the parameters of the hearing are going to be.

[SDM: The purpose of the shade session is to discuss - on a very limited basis - the appellate case, not to decide how a public hearing will be conducted.]

MS. BOUTSIS: After the research I have done and all of the City Attorneys that I have talked to, I have also spoken to State Attorneys, County Attorneys, et cetera, I am inclined to be Harry Stewart.

MR. PARISER: Stewart says…

MS. BOUTSIS: It should be based upon the record that if you decide not to, the Broward case versus G.B.V, is the case to support that proposition . And if you do so, you should put on the record that what is the competent substantial evidence that shows that there is a change in circumstances or manifest injustice. That’s the safest route. That’s the clear cut safest route.

MR. PARISER: You have to open up the public hearing for somebody to at least put forth why there has been a change of circumstances. I think you just can’t say, “we don’t see it.” That’s what the public hearing is for.

MS. BOUTSIS: That would be for the public hearing portion, yes.

MR. PARISER: You would have to announce a standard. We are going to open this part of it up, but the standard is there has to be competent substantial change of circumstances significant since the last time, and people will say, A, B, C. It’s up to the Village Council to determine if there isn’t any competent substantial change of circumstances , then we are stuck with the record from before . Is that how it goes?

MS. BOUTSIS: Pretty much.

MS. STANCZYK: Pretty much we are going to be stuck with the record from before anyway.

[SDM Comment: Here, Mayor Stanczyk concedes to the public hearing plan Pariser and Boutsis have constructed in the secret meeting. The rest of the council goes along with their leaders, apparently thinking they are allowed to develop a decisive plan of action outside the public's view.]

SDM Says: Up to this point, SDM has been bouncing back and forth on whether Ms. Boutsis has done a satisfactory job representing the village. But these transcripts paint a very troubling picture when it comes to her willingness to stretch the definition of a shade session essentially to an opportunity to have lengthy, private legal strategy sessions where the council can develop plans of action outside the sunshine. Putting the village attorney’s contract out to bid gives the council an opportunity to quiz other lawyers on how they would handle these sessions.

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