Town Commission - Special Meeting

We're going to call this meeting to order. Sid, could you give us a roll call?

sure thing mayor allison dennington is absent vice mayor terry cronin here commissioner anna butler here commissioner tim reed here commissioner sherry corey here town manager amy smith here town attorney ryan knight is joining us via teams and interim town clerk sid jones is also present all right we'll stand for the pledge of allegiance

and to the Republic for which it stands, one nation, under God, indivisible, with liberty and justice for all. All right, we're going to recognize a moment of silence. All right. Um, now, uh, I will recite the civility pledge, the commission and staff of the town of Melbourne beach pledge to conduct all public discourse in a civil manner. The mayor and all members of the commission will treat one another with courtesy and respect and ask the public to do the same toward the commission, each other and towards staff. We will be respectful of one another even when we disagree. We will direct all comments toward the issues and we will avoid personal attacks. Okay. So before we get into the new business, we have a time for public comment. Is there public comment? Not seeing any. We're gonna move on to the approval for Elizabeth Siano Harris to represent the town of Melbourne Beach as counsel for the case against Funo LLC in filing 252-571-329. Ms. Smith.

As you know, Elizabeth Harris represented the town of Melbourne Beach in a previous case. The Faneuil LLC filed in a ruling in a case involving a shed. They filed an appeal in the circuit court and it was denied. So Faneuil on July 15th filed an appeal to the Fifth District Court of Appeal, which is a higher court. And so since this now has a new case number, It's considered a new case by Ms. Harris and requires a separate contract. She estimates the work for this case will be between $18,000 and $28,000 depending on if there's much back and forth and maybe ongoing for another year to year and a half. Her hourly rate is $375. When we hired her, I think it was over two years ago, it was $350. So she's just raised it a little bit. She told me that her normal rate is $475, but she's giving us a discount on that. So I recommend that we approve the funding because we have... 20 days to respond according to Ms. Harris from the notice that she received. And she wants to ask for an extension of time. She does not know whether or not the court will give it, but we at least need to have her put something in there for the record.

So this is a appeal filing in the circuit court. Uh, and it's a petition for writ of certiorari. Um, is there any comments from the commissioners?

Oh, it's in the district court.

District court?

It was in the circuit court, and that was denied, so it's now in the district court. So it's moved up? Yes.

Moved up, okay. So now it's in the, so the writ of certiorari is in the district court of appeal, the fifth district court of appeal.

Exactly.

Okay, perfect. Is there any comments from the commissioners?

Any thoughts?

Any questions for Ryan?

Maybe I do have a couple couple thoughts on her on the next. The next page down then acknowledge him in a new case, which is her looks like her form. There's a filing before we do that, so she's asking that her first action is she wants to ask for more time. Is that what you were saying?

Yeah, she's going to see if she can get a little more time so that she can write a rebuttal.

All right. So in her form here, this acknowledgment of new case, there's a filing fee of $300, I guess, that she's going to nick us, nick the town for as well. I'm wondering if we can ask for that to be BE WAIVED SINCE WE'RE TECHNICALLY A REPEAT CUSTOMER AND THIS IS REALLY NOT A NEW CASE. SHE'S BEEN INVOLVED WITH IT ALL ALONG. SHE KNOWS ALL THE PARTICULARS OF IT. THE FACT THAT THEY'RE CALLING IT A NEW CASE AND A NUMBER, THAT'S A CLERICAL THING. SO, I MEAN, WE'RE ALREADY GOING TO INCUR THE ADDITIONAL HOURLY FEE AND I WONDER IF WE CAN GET RELIEF THERE.

I believe that the 300 filing fees is something that the court requests. It's not something that Ms. Harris requests. And with respect to court case numbers, it's in a district court versus a circuit court. But, I'm sorry, Mr. Knight, do you think you could explain that a little bit better, why this is a different case?

Sure, so first off, the acknowledgement of new case, that's not from Elizabeth Harris, that's from the 5th District Court of Appeals. It's just instructions for the parties, essentially. The $300 filing fee would be paid by the know, not the town. So the town would have no obligation to pay for any filing fees. As Vice Mayor Cronin mentioned, this is a writ of certiorari. That's essentially a Latin term, which means to be fully informed. It's a process to seek judicial review of a decision of the circuit court. So the case previously was in circuit court. The circuit court judge dismissed it, and then Sanu filed the appeal to the 5th District Court of Appeal. So starting off, we don't have any filing fees that are due. Moving forward, it would just be Ms. Harris's.

Ryan, I have a question regarding the writ of certiorari. Just in my research, they said that success rates of trying to overturn code enforcement via the writ of certiorari is very low. That most of the time, this court does not OVERTURN CODE ENFORCEMENT UNLESS THERE'S SOME IMPROPER FINE CALCULATION OR ORDINANCE MISAPPLICATION OR A LACK OF NOTICE IF THERE'S LIKE A TECHNICAL LEGAL ERROR. WERE THERE ANY TECHNICAL LEGAL ERRORS IN THIS CASE?

I REALLY CAN'T COMMENT ON THAT. SECOND, I HAVE NOT BEEN INVOLVED IN THIS CASE WHATSOEVER.

Thank you.

Kind of piggybacking on that, Mr. Knight, so is there a possibility that this judge could kind of squash this relatively early, that this wouldn't be a long process, that they could maybe see no reason for it to have been elevated to that level?

No, because once you get up to the Fifth District Court of Appeals, it's not just one judge you're in front of, it's a panel of judges. Oh, I see. So it doesn't really proceed as a normal court case. Okay. You have to send all of the records from the circuit court case to the Fifth DCA. You have to send the transcripts of any proceedings. You file your briefs, and then essentially the judges and the law clerks coming through the pleadings, coming through the cases. And at that point, they then decide if they would like to have an oral argument or not. So it's not meant to be a streamlined process, and it's certainly not a streamlined process. The recent appeals I've been involved in has taken about anywhere from a year to a year and a half to actually get an opinion.

So there's no opportunity in these, I'm sorry, I didn't mean to interrupt you, for the judge to say I'm not gonna entertain this or there's no, okay, we're in. Okay, thank you.

If I may.

Yes, Commissioner Quarry, please.

So Attorney Knight, when we win this one, is there another avenue for them to re-approach this case again above this court?

So if we were to, for example, have a fifth DCA, the other option that they would have would be to appeal to the fourth Supreme Court.

So if they appeal to the Supreme Court after losing this, we would still be out all of the legal fees, or would we still have to incur our own legal fees?

The town would still have to incur its own legal fees.

Thank you.

That's because under Florida law, attorney fee provisions are only by statute or contract, and there is no statute that would allow us to provide for attorney's fees for this case.

Thank you.

Commissioner Reed, did you have another question?

So the term of the contract is for this case. It's not a calendar time frame. It's for the duration of this case.

Yes, it would have to be for the duration of this case, since we don't know how long it's actually going to take.

Yeah, that was my only note.

That was the same as the last contract we had with her, even though it went on for over two years.

So Mr. Knight, one other thing about the writ of certiorari. I was reading that it acts as a legal filter, ensuring that only cases of national importance or conflicting interpretations of law reach the highest judicial level. Is that what it's for? Is that a true representation of what this is for? National importance or conflicting interpretation?

That's probably a technical definition for it. But what it boils down to is just somebody asking a higher court to review a decision of a lower court for an abuse of discretion or a clear error in the application of the principle.

So they wouldn't disqualify it if it actually wasn't of national importance or a change in legal standards? No. OK.

Thank you.

All right, so are there any other comments? If not, we could have public comment. Seeing none, I would like to hear a motion.

As difficult as it is for me to swallow this pill, I make a motion because I think this is the choice we have to hire Elizabeth Harris to represent Melbourne Beach in this appellate fifth district case for the duration of the case. And that the, with fees not to exceed 28,000.

Sir second.

Second but I don't know about the dollar amount. If she would like to change that because it's going to be what it's going to be.

Or do we need. Yeah because.

what would happen is if she reaches that cap, say the case goes on for over two years, she reaches that cap, then we would have to bring essentially another motion in front of you to approve going over that amount.

Okay.

Perhaps it would be wiser to- It's normally not something that I would recommend just because you don't know at this point.

I would like to make an amendment, a friendly amendment, as you would say, to omit the cap of cost. There will be no financial cap cost in the motion.

CONFIRM THE SECOND.

OK.

SO WE CAN STILL HAVE SOME DISCUSSION AND JUST A DISCUSSION HERE.

COMMENT I WANTED TO SAY, AND OF COURSE I'LL RECOGNIZE COMMISSIONER REED AS WELL, BUT YOU KNOW, IT'S WEIRD. THIS WHOLE THING IS WEIRD THAT WE'RE HAVING TO FIGHT OUR OWN MAYOR WHO REPRESENTS OUR TOWN. in this kind of situation but that's not always going to be the case she's not running for re-election in november as far as i know and perhaps there could be a time constraint if if miss harris hits the year mark or the year and a half mark it might be nice to bring it back for a strategy among the commission because it would be a different commission You know what and and and we might be able to have private conversations regarding litigation. Is that right Ryan? Yeah So it'd be a different it's a different Commission and a different way to handle it So I would offer I would offer maybe a friendly amendment that that at one year We bring this before the commission again just to update and see where we're at so that we can make decisions regarding strategy.

Brian, are we allowed to bring back something that's going to be under a new commission effectively?

So you've got, yes. so you could essentially just bring it back for a year for litigation update um and then it would probably be with miss harris and then she can assign you the total cost what's left to do um or whoever up is on the commission at that time

So the amendment, just for my own clarity, I'm sorry if I didn't understand it fully, is not to, at that year mark, decide whether or not we're going to continue retaining her. It's more of this update, kind of where are we. It's an update.

We may decide not to go any further, or we may decide to keep going. But obviously, we'd need an update and a better understanding. But we could, if it's not going in the direction we should, we certainly have the ability to stop it, right?

I disagree with that philosophy because I think that once the train starts going out of the station, that it has to reach its destination.

I mean, I agree with you in part, but the reason I'm bringing it up in this way is that we're in a weird situation where we're talking about this openly, publicly, right? Well, we have to. There's no other way. There is no other way. No, but there is a way. You could have a shade meeting where you talk strategy with your attorneys and represent the town in a full-throated kind of carefully constructed strategy that doesn't have to be, you know, I mean we're we're watching our P's and Q's up here at the commission but having a shade meeting when one of the members of the commission is the adversary. It doesn't work right, you know so it's it's a bit also becomes public and that because what definitely becomes public yeah, but at the time I don't know maybe maybe it's not even worth advancing that idea and a commissioner you have any thoughts.

I don't understand the goal of that. I think we can ask at any time to get an update. It doesn't have to be a year from now. So any time? From the attorney, I think we can. Yeah, I'm sure he'll bill us. But we can get updated on that. And I think, yeah, once we embark on the case, I didn't mean... MAYBE RYAN CAN EXPOUND, BUT IF WE EMBARK IN THE CASE AND START INTO IT AND THEN WE DECIDE WE'RE TAKING THE BALL AND GOING HOME, I DON'T KNOW WHAT THAT MEANS OR DOES OR RESULTS IN.

SO WITH THESE APPELET CASES AND ONCE IT REACHES THE FIFTH DCA, ESSENTIALLY MOST OF THE WORK IS ON THE FRONT END, AND THAT'S ANSWERING THE PETITION FOR THE for the most amount of time. Once the town does that, then FNU will have an opportunity to file a reply. And normally at that point, it's a waiting game. You're just waiting to see when the judges can actually take a look at it, if they want to have oral argument or not. So as far as an update goes, there's probably not going to be a lot of updates, a lot of necessary updates. i would imagine the only updates would be um you know something like settlement discussions which even though this is in the fifth bca those can happen any time and the parties can still agree to settle the case at any time my preference would be to settle this before the town has to start doing all the work um incurring all the fees So on my end, I'll be assisting or me and Elizabeth will be working together to see if we can get this settled before we have to start incurring all these fees.

Okay. So I withdraw my friendly amendment and we'd keep it as, as, as such, as such, uh, all in favor.

Oh, I'm sorry. We could have the, uh, the, the clerk read back the, um, the motion. Sure.

So the motion was to have hire Elizabeth Harris to represent the town of Melbourne beach, um, for the duration of the case.

and the we emitted the portion about a cap of the cost okay thank you thank you all in favor aye aye aye okay so that i'll pass 4-0 Is there any other things we need to discuss at this meeting? Mr. Knight? Anything else we need to discuss at this point?

Nothing from me. I'll just let you know if I do have any updates regarding potential resolutions. I will let you know as soon as I can.

Thank you.

Thank you.

Okay. I'd like to hear a motion to adjourn.

Motion to adjourn. Second.

All in favor? Aye. Aye. Thank you all. Great job.

Thank you.