Submitted by Adam Kaufman, Legal Analyst
October 27, 2014 10:00 a.m.
Editor’s Note: The following letter was sent to City Manager Joe Gerrity after a previous request from the Fernandina Observer to City Clerk Caroline Best to release the tentative settlement agreement whether draft or in final form in the matters of the City of Fernandina v. State of Florida and/or Conlon v. City of Fernandina Beach was denied by City Attorney Tammi Bach.
” . . . the Observer informed the City that it was consulting with Florida’s First Amendment Foundation and that its General Counsel had advised that there is no blanket rule excluding drafts or other non-final document from public records access.”
October 27, 2014
Dear City Manager Gerrity,
The Fernandina Observer renews its request for the most current copy of the tentative settlement agreement whether draft or in final form in the matters of the City of Fernandina Beach v. State of Florida and/or Conlon v. City of Fernandina Beach. The cases in which now Federal Court Judge Brian Davis ruled against the City regarding its imposition of water utility impacts fees assessed as a result of the City’s purchase of that facility.
On October 7, 2014 attorneys for the City, outside counsel, informed the Florida Supreme Court that they entered into a tentative settlement agreement which by its terms would settle the impact fee litigation. The Supreme Court acknowledged this submission on October 9, 2014. The City Attorney subsequently informed the Observer that the statement by the City’s outside counsel was in error and pre-mature. The Observer is unaware of any communication to the Supreme Court correcting this “inaccuracy.”
On October 20, 2014 the Observer made a public records request directed to the City Clerk for the tentative settlement agreement whether in draft or final form. As part of that request the Observer informed the City that it was consulting with Florida’s First Amendment Foundation and that its General Counsel had advised that there is no blanket rule excluding drafts or other non-final document from public records access. The Foundation’s Counsel cited, and the Observer provided that reference to the City, an Attorney General’s Opinion supported by a Supreme Court decision indicating that any record, if circulated for review, comment, or information is a public record regardless whether it is marked “preliminary” or “working draft.”
On October 22, 2014 the City Attorney denied the Observer’s public records request without citing case law in support of that denial.
Clearly, there has been an exchange of draft settlement agreements between the City and the attorneys for Conlon. The City Attorney confirmed that fact when she informed the Observer that outside counsel was “pre-mature” in informing the Supreme Court of settlement. The Observer believes that such draft settlement documents have been circulated to city officials and employees.
Florida courts have specifically held that draft litigation settlement agreements furnished to a state agency by a federal agency were public records and subject to production despite an agreement with the federal agency to keep such documents confidential and, further, that technical documents or data which were not prepared for the purpose of carrying litigation forward but rather were jointly authored among adversaries to promote settlement are not exempted as attorney work product.
The Observer recognizes that you are aware of the significance of the water utility impact fee litigation to members of this community as you were Mayor at the time of the purchase of the facility and the imposition of those fees and you were deposed by attorneys and testified in the Conlon case.
The Observer requests that you act upon its public records request and expedite the release of the draft or final settlement agreement.
The Observer also requests that at the conclusion of the attorney/client session scheduled for October 28, 2014 and before ending the public special meeting that you advise the citizens and taxpayers of the City as to whether and when the City Commission will act to approve settlement in the impact fee litigation.
The Fernandina Observer
Click here for previous article “Do the attorneys in the impact fee case suffer from premature announcement?”
Adam Kaufman is a semi-retired mediator and attorney. A graduate of Northwestern University School of Law, he was born and raised in the Bronx, NY. and attended NYC public schools, including Stuyvesant High School. He still serves on the American Arbitration Association Labor Panel. From 1994 – 2005, he was Regional Director for the New York State Public Employment Relations Board