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BCC Minutes 04/24/2007 Closed Session (#12A-Litsinger) MINUTES Litsinger April 24 , 2007 Printer Friendly Version Page 1 of 4 • Collier County print Pao@ Close Window Cox OF THE CIRCUIT COURT Case Information Style:WILLIAM S LITSINGER vs COWER COUNTY Fl, Uniform Case Number 112006CA0004320001XX Filed:03/17/2006 Clerks Case Number; 0600432CA Court Types CIRCUIT CIVIL Disposition Judges CARLTON,CHARLES T Case Type:OTHER CIRCUIT CIVIL WRIT Disposed:08/29/2007 Judge:CARLTON,CHARLES T Reopen Reason: Case Status:DISPOSED Reopened: Neat Court Date:00/00/0000 Reopen Close: Last Docket Date:08/29/2007 Appeal; Parties Name TyPe DOB City,State,Zip LITSINGER,WILLIAM S PLAINTIFF COWER COUNTY FL DEFENDANT COYLE INDIVIDUALLY,FRED W DEFENDANT HUBBARD,JACQUELINE WILLIAMS DEFENDANT'S ATTORNEY NAPLES,FL 34112 GOLD,SAMUEL C PLAINTIFF'S ATTORNEY NAPLES,FL 34107 POTANOVIC,JOHN F DEFENDANT'S ATTORNEY FT MYERS,FL 33902 Dockets Date Text 02/22/2006 NOTICE OF TAKING DEPOSIRON OF JEAN MERRITT 02/22/2006 NOTICE OF TAKING DEPOSITION OF AMY PATTERSON 02/22/2006 NOTICE OF TAKING DEPOSITION OF LEO OCHS 03/17/2006 CORRESPONDENCE FROM COUNSEL TO CLERK 03/17/2006 CIVIL COVER SHEET 03/17/2006 COMPLAINT,DEMAND FOR JURY TRIAL 03/22/2006 SUMMONS ISSUED(2)COWER COUNTY FLORIDA&FRED W COLEY SENT TO COLLIER COUNTY SHERIFF 03/31/2006 UNEXECUTED SHERIFF'S RETURN SUMMONS FRED COYLE 03/31/200° UNEXECUTED SHERIFF'S RETURN SUMMONS COLLIER COUNTY BOARD OF COMMISSIONERS 05/01/Z006 DIVISION JUDGE REASSIGNMENT ORDER FROM:TED H BROUSSEAU TO: FREDERICK HARDT ORDERED BY HUGH D HAYES ON 04/18/2006 05/03/2006 ANSWER&AFFIRMATIVE DEFENSES FRED W COYLE 05/03/2006 MOTION TO DISMISS AS TO COUNT III/FRED W COYLE WAIVER OF SERVICE OF PROCESS BY JACQUELINE WILLIAMS HUBBARD ESQ FOR 05/04/2006 COLLIER COUNTY 05/30/2006 MOTION TO DISMISS BY COLLIER COUNTY FLORIDA 06/08/2006 MOTION FOR PARTIAL SUMMARY JUDGMENT PLAINTIFFS 06/08/2006 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGME PARTIAL 06!22/2006 NOTICE OF UNAVAILABILITY OF JACQUELINE W HUBBARD ESQ FROM 6/28/06- 7/4/06 06/26/2006 NOTICE OF TAKING DEPOSITION JAMES MUDD 06/26/2006 NOTICE OF TAKING DEPOSITION JAMES MUDD 06/27/2006 NOTICE OF TAKING DEPOSITION JAMES COLETTA http://apps.collierclerk.com/public inquiry/Case.as px7UCN=112006CA0004320001XX&... 4/18/2013 Printer Friendly Version Page 2 of 4 07/01/2006 DIVISION JUDGE REASSIGNMENT ORDER FROM:FREDERICK HARDT TO:CYNTHIA A ELLIS ORDERED BY HUGH D HAYES ON 04/18/2006 07/06/2006 RESPONSE TO REQUEST FOR ADMISSIONS BY FRED W COYLES 07/06/2006 NOTICE OF SERVICE OF ANSWERED INTERROGATORIES(1ST)BY FRED W COYLES 07/06/2006 REPLY TO REQUEST FOR PRODUCTION BY FRED W COYLES 07/06/2006 MOTION FOR PROTECTIVE ORDER BY FRED W COYLE 07/06/2006 NOTICE OF SERVICE OF ANSWERED INTERROGATORIES BY COLLIER COUNTY 07/07/2006 NOTICE OF ADOPTION OF MOTION FOR PROTECTIVE ORDER/COLLIER COUNTY 07/10/2006 MEMORANDUM OF LAW IN OPPOSITION TO MOTION FOR PROTECTIVE ORDER BY PLTF 07/10/2006 PROCEEDING MOTION HEARING ON: 07/10/2006®1 13:00 07/10/2006 PRESIDING JUDGE: PIVACEK,CYNTHIA A 07/10/2006 PLAINTIFFS ATTY DEES&DEFENDANTS ATTYS POTANOVIC&HUBBARD ALL 07/10/2006 PRESENT TELEPHONICALLY/MOTION FOR PROTECTIVE ORDER REGARDING THE 07/10/2006 DEPOSITIONS OF JAMES MUDD&JAMES COLETTA GRANTED/THE DEPOSITIONS 07/10/2006 WILL BE SCHEDULED AFTER SEPTEMBER 7Th,2006/ATTY POTANOVIC WILL 07/10/2006 PREPARE THE ORDER-THE ATTYS WILL COORDINATE THE DEPOSITIONS WHICH 07/10/2006 WILL BE PUT IN THE ORDER 07/10/2006 FAX CORRESPONDENCE COVER SHEET 07/10/2006 NOTICE OF HEARING;CERTIFICATE OF SERVICE MOTION FOR PROTECTIVE ORDER 7/10/6 AT 1 PM 07/10/2006 MOTION FOR PROTECTIVE ORDER 0/B/0 DEFENDANT FRED W COYLE 07/13/2006 CORRESPONDENCE FROM COUNSEL TO JUDGE 07/13 2006 ORDER GRANTING DISMISSAL OF APPEAL FOR PROTECTIVE ORDER S/ELLIS 7/13/06 07/13/2006 NOTICE OF FILING AFFIDAVIT OF SUPPORT OF MOTION FOR PROTECTIVE ORDER 07/13/2006 AFFIDAVIT IN SUPPORT OF MOTION FOR PROTECTIVE ORDER 08/22/2006 CORRESPONDENCE FROM COURT REPORTER 08/22/2006 MOTION FOR LEAVE TO AMEND COMPLAINT WILLIAM S UTSINGER 08/22/2006 NOTICE OF FILING DEPOSITION OF JOSEPH K SCHMITT 08/22/2006 DEPOSITION OF JOSEPH SCHMITT 09/15/2006 NOTICE OF HEARING 10/9/06 0 1:00 ON PLAINTIFFS NOTICE OF SUMMARY JUDGMENT HEARING 10/06/2006 NOTICE OF UNAVAILABILITY COLLIER COUNTY 10/13/06-10/17/06 10/09/2006 PROCEEDING MOTION HEARING ON: 10/09/2006 0 13:00 10/09/2006 PRESIDING JUDGE:PIVACEK,CYNTHIA A 10/09/2006 PLAINTIFFS ATTY GOLD PRESENT/DEFENANT COLLIER COUNTYS ATTY HUBBARD 10/09/2006 PRESENT/DEFENDANT FRED W COYLE&ATTY POTANOVIC NOT PRESENT/MOTION FOR 10/09/2006 SUMMARY JUDGMENT HEARING WILL BE POSTPONE IN ORDER TO HAVE DEFENDANTS 10/09/2006 ATTY POTANOVIC PRESENT/ATTY GOLD WILL RESET THE HEARING 10/23/2006 NOTICE OF TAKING DEPOSITION WILLIAM S LITSINGER 12/14/006 9:00AM BY DEFENDANT COYLES 11/13/2006 MOTION TO DISMISS SUPPLEMENTAL/OR TO STRIKE CLAIM FOR PUNITIVE DAMAGES BY COLLIER COUNTY 12/14/2006 RENOTICE OF TAKING DEPOSITION WILLIAM S LITSINGER 01/04/2007 RENOTICE OF TAKING DEPOSITION(2ND)OF WILLIAM S LITSINGER 01/18/2007 NOTICE OF FILING DEPOSITION OF FRED COYLE 01/18/2007 DEPOSITION OF FRED COYLE 11/2/06 01/19/2007 AFFIDAVIT IN OPPOSITION TO MOTION FOR SUMMARY JUDG PARTIAL 01/19/2007 NOTICE OF FILING DEPOSITION OF JOSEPH SCHMITT http://apps.callierclerk.com/public inquiry/Case.aspx?UCN=112006CA0004320001XX&... 4/18/2013 Printer Friendly Version Page 3 of 4 01/19/2007 MEMORANDUM OF LAW IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT BY FRED W COYLE 01/22/2007 MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES BY COLLIER COUNTY 01/22/2007 NOTICE OF HEARING 1/22/07 0 2:00 MOT TO DISMISS 01/22/2007 PROCEEDING MOTION HEARING ON:01/22/2007 0 14:00 01/22/2007 PRESIDING JUDGE: PIVACEK,CYNTHIA A _ 01/22/2007 PLAINTIFFS&ATTORNEY GOLD PRESENT/DEFENDANTS ATTORNEYS HUBBARD& 01/22/2007 POTANOVIC PRESENT/PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT- 01/22/2007 RESERVED TO REVIEW MEMORANDUM OF LAW IN RESPONSE/DEFENDANTS MOTION TO 01/22/2007 STRIKE COUNT 2 PUNITIVE DAMAGES-GRANTED-ATTORNEY HUBBARD TO SUBMIT 01/22/2007 ORDER/ATTORNEY GOLD TO SUBMIT A PROPOSED ORDER FOR SUMMARY JUDGMENT/ 01/22/2007 PLAINTIFFS MOTION FOR LEAVE TO AMEND PUNITIVE DAMAGES-NOT HEARD TODAY 01/22/2007 (RAN OUT OF TIME ALLOTED)/COURT REPORTER KAY GRAY OF GREGORY COURT 01/22/2007 REPORTING PRESENT 01/22/2007 NOTICE OF HEARING FAX COPY 1/22/07 0 2:00 ON DEFENDANTS MOTION TO DISMISS OR ALTERNATIVELY TO STRIKE CLAIM FOR PUNITIVE DAMAGES 01/22/2007 AMENDED NOTICE OF HEARING FAX COPY 1/22/07 r•. 2:00 ON PLAINTIFFS MOTION FOR LEAVE TO AMEND TO CLAIM FOR PUNITIVE DAMAGES 01/29/2007 CORRESPONDENCE FROM COUNSEL TO JUDGE 01/29/2007 ORDER GRANTING MOTION TO STRIKE NO PUNITIVE DAMAGES MAY BE ASSESSED AGAINST COLDER COUNTY S/ELLIS 1/29/07 02/20/2007 NOTICE OF HEARING;CERTIFICATE OF SERVICE 05/07/07 0 3:00 MOTION TO DISMISS 02/27/2007 NOTICE OF UNAVAILABILITY FOR JACQUELINE W HUBBARD 6/13/07-6/15/07 02/27/2007 NOTICE OF UNAVAILABILITY FOR JACQUELINE W HUBBARD 5/10/07-5/11/07 02/28/2007 NOTICE OF HEARING AMENDED 5/7/07 0 3:00(30 MIN)ON DEFENDANTS MOTION TO DISMISS 02/28/2007 NOTICE OF HEARING(AMENDED)5/7/07 0 3:00(30 MINUTES)ON DEFENDANTS MOTION TO DISMISS 02/28/2007 ORDER DENYING MOTION FOR SUMMARY JUDGMENT PARTIAL S/ELLIS 2/27/07 02/28/2007 CORRESPONDENCE FROM COUNSEL TO JUDGE WITH ATTACHMENT 02/28/2007 CORRESPONDENCE FROM COUNSEL TO JUDGE WITH ATTACHMENT 03/02/2007 NOTICE OF PRODUCTION FROM NON PARTIES DIRECTED RC ELTON WILTON LE HEW JR MD 03/09/2007 NOTICE OF UNAVAILABILITY COLLIER COUNTY 03/21/2007 MOTION FOR PARTIAL SUMMARY JUDGMENT&MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT BY FRED W COYLE 03/22/2007 ORDER OF REASSIGNMENT TO THE HONORABLE CHARLES T CARLTON S/MARTIN 3/22/07 03/22/2007 ORDER OF RECUSAL S/ELLIS 3/14/07 04/02/2007 MOTION FOR PROTECTIVE ORDER BY PLAINTIFF 04/23/2007 MOTION TO DISMISS AMENDED/BY COLLIER COUNTY 05/17/2007 NOTICE OF UNAVAILABILITY OF JACQUELINE W HUBBARD ESQ FROM 5/22/07- 5/28/07 08/29/2007 VOWNTARY DISMISSAL WITH PREJUDICE/FAXED COPY Events Docket Type Judge Court Date Court Time HEARING 01/22/2007 14:00 HEARING 10/09/2006 13:00 HEARING 07/10/2006 13:00 http://apps.collierolerk.cam/public inquiry/Case.aspx?UCN=112006CA0004320001XX&... 4/18/2013 Printer Friendly Version Page 4 014 Financials 'There are no Financials for this case. I httpi/apps.collierclerk.corn/public inquiry/Case.aspx?UCN=112006CA0004320001XX&... 4/18/2013 vV ttvp. at.; rY•1, r•Jvt�N aavYIY 1.nr i {t? . 143Q PAGE 2/003 reio, uv}Y®I• J17 • •faeIWw w�aa 1 ka ..$1 u ml a,f•{Nf f •/•vs•L• yy-gyp ' . . C 'V ,,, p, .., ,, t .. . . . ..,, , 6 ' ' i • .ik0166)611bleif ti . f • Q+ . = - x n a-i �r Ids f,, 'G. ,> • x '� ..a N n to 7GrT1 ) mil - J: Ci n t . •. • . . • t • . .,.4,t, ,, .:,.,,,,:ii : . , . Uf ' 'I ;, r - - _ t-• : Mr' I V— - r r Yf . 4. to • • i ' liuu L(4 411111 1M 8iiIa�Le iI aiUA$34 pis 51409 P,ai. uaa�► MO IN 11111111 1•14 44s P:k •• 0 n. • • • • Y • • • • • d • • • • • • S • . • Y . • April 24, 2007 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, April 24, 2007 CLOSED SESSION Item #12A — William Litsinger Case Number 06-432-CA - William Litsinger versus Board of County Commissioners and Fred Coyle, Individually. LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, met on this date at 12:21 p.m., in CLOSED SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Jim Coletta Tom Henning Frank Halas Fred W. Coyle Donna Fiala ALSO PRESENT: Jim Mudd, County Manager David Weigel, County Attorney Jaqueline Hubbard, Assistant County Attorney Page 1 — Item #12A (William Litsinger) April 24, 2007 Item #12A THE BOARD IN CLOSED EXECUTIVE SESSION WILL DISCUSS: SETTLEMENT NEGOTIATIONS AND STRATEGY RELATING TO LITIGATION EXPENDITURES IN WILLIAM LITSINGER V. COLLIER COUNTY, FLORIDA AND FRED COYLE, INDIVIDUALLY, CASE NO. 06-432-CA, NOW PENDING IN THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA. — CLOSED SESSION MR. WEIGEL: I, the County Attorney for Collier County, requested this closed session meeting in regard to the case of William Litsinger versus Board of County Commissioners and Fred Coyle, Individually, in Case Number 06-432-CA. And the reason for the meeting is to discuss, pursuant to the Sunshine Law, Section 286.011(8) Florida Statutes, closed session relating to strategies related to litigation expenditures and negotiating settlements. Jackie, who is the principal attorney on behalf of Collier County as a defendant in the case, is going to give a, kind of an informational presentation, and particularly indicating several different aspects relating to our considerations today, and I think Mr. Coyle may have an opportunity to speak as well. Of course, all commissioners will have an opportunity to speak. Part of the context of our discussion today is, in initiating a discussion about settlement, is the fact that settlement can take a form of either settlement for one party or the other party or a global settlement. And, again, Jackie will be talking as well about the insurance considerations that come into play. Both defendants are insured at this point in time, and we've been working and discussing with the insurer issues regarding a global settlement to make -- potentially make the case go away entirely. So with that, I'll turn it over to Jackie. And, of course, at any Page 2 — Item #12A (William Litsinger) April 24, 2007 point anyone can ask any questions. If I note that the discussion seems to go astray from the requirements of the closed session, which, again, is strategy related -- strategy related to litigation expenditures and settlement, I'll speak up at that point in time and try to direct us back to the point in order. So Jackie? CHAIRMAN COLETTA: One question? MR. WEIGEL: Sure. CHAIRMAN COLETTA: Shouldn't Commissioner Coyle's attorney be here? COMMISSIONER COYLE: He can't be. MR. WEIGEL: No. In fact, Commissioner Coyle's attorney cannot be here. Mr. Coyle's here, of course, as part -- COMMISSIONER COYLE: That's why I want to make a brief statement because I'm not going to be able to vote, but I can address the issue. But I cannot vote. MS. HUBBARD: Correct. MR. WEIGEL: That's right. MS. HUBBARD: My name is Jacqueline Hubbard. I'm an Assistant County Attorney, for the record. May the record reflect that we are in Closed Session and all five commissioners are present along with Mr. Weigel and the County Manager, Mr. Mudd. No other persons other than the court reporter are present. Regarding the Litsinger matter, let me just say that I have prepared some talking points which I will share with all parties present. Mr. Stan Litsinger filed a tort -- four-count tort complaint against the County and Commissioner Coyle in his independent capacity, and essentially Litsinger has alleged that the County Manager and the Commissioners conspired to violate the County Administrator Ordinance because of a letter that was sent to the County Manager by the Commissioner after a legislative workshop. Mr. Litsinger has Page 3 — Item #12A (William Litsinger) April 24, 2007 alleged that the only reason he was demoted was because the letter was sent. There are two counts of complaint that concern the County only. Count two, the County is alleged to have conspired to tortiously interfere with the employment relationship that Mr. Litsinger had with the County. And in count three, the County is alleged to have been involved in a civil conspiracy to violate the County Administrative Ordinance. In both of these matters, the actions alleged to have taken place are considered to be intentional acts with a specific intent, which are legal terms that means that the parties had to be of a mind to violate the ordinance. Litsinger accuses the County and the Commissioner of maliciously conspiring -- to conspire to tortiously interfere with his employment by demoting him and also conspiring to violate the County Administrative Ordinance. There was a question that arose regarding whether or not maliciousness was a necessary element of the counts against the County. My research has led me to conclude that Mr. Litsinger will have to show maliciousness as a necessary element of his causes of action against the County. Now, do we have defenses? We obviously have defenses. We have witnesses who will testify that they were very disappointed in Mr. Litsinger's performance at the legislative meeting, that Mr. Litsinger agreed to present in a verbal form the criticisms of the legislation that he had previously placed in a written memorandum. The memorandum that he had written was distributed to the participants at the workshop. It was not, however, copied and made available to the general public. These witnesses will testify that Mr. Litsinger did not perform as he had promised to perform and that several staff members were quite surprised at the tenor and tone of his presentation. Page 4 — Item #12A (William Litsinger) April 24, 2007 I don't know -- you were all present. The only thing I can say after reviewing the tape is that the only thing that Mr. Litsinger actually presented verbally at that workshop was a very brief overall description of the legislation itself. It did not -- his comments did not contain the criticisms that were in his memorandum and that he had written of in previous occasions. COMMISSIONER COYLE: Jackie, could I just interject something here? MS. HUBBARD: Yes, sir, of course. COMMISSIONER COYLE: Anyone who was not in the preparatory meetings with Mr. Litsinger and other staff members cannot make any judgments about whether he did what he was told to do or not. You can't look at his presentation and say he did anything wrong without understanding what he was instructed to do and what he said he was going to do at the meetings prior to the presentation. MS. HUBBARD: Correct. COMMISSIONER COYLE: So there's never any dissatisfaction about his presentation per se. It is the fact that he disobeyed the County Manager by refusing to do what he, Litsinger, said he was going to do. MS. HUBBARD: That's correct. And there were other staff members who were present at those meetings who verify that Mr. Litsinger's promise to perform consistent with his memorandum did not occur at the workshop. There have been some cases on this point. And obviously, to prove maliciousness, it -- a number of things become involved. First of all, in the complaint itself, Stan Litsinger alleges that both the Commissioner and the County, through the County Manager, acted in a malicious manner. That brings into play a very important issue to the Board and to our office, which is whether or not under the sovereign immunity statute that currently exists in the State of Florida, whether or not the Page 5 — Item #12A (William Litsinger) April 24, 2007 county is even subject to any liability because there's case law to the effect that a malicious act does not waive the County's sovereign immunity. That is an issue that has been placed before the court in a motion to dismiss, and that motion was scheduled to be heard on May 14th; however, our original judge recused herself from the case and we have been assigned a senior judge and we have been unable to set a date. And as soon as we're able to get a date for the motion to dismiss, that issue will be front and center. In the event the motion to dismiss is not granted, the county will proceed to prepare a motion for summary judgment on that very issue. Now, in terms of settlement, which leads to this conclusion, which is what I'm trying to make sure: Mr. Litsinger has essentially said that the County -- now, the County is like a corporation so it can be thought of as a person for legal matters. But a county only operates through delegated authority or through the affirmative actions of its board. The Board, through an affirmative vote, put into place the County Administrator's Ordinance, and in that ordinance, the Board, as a matter of policy, stated that a commissioner could not directly interfere by directing the county manager to take adverse employment actions against an employee. So in his lawsuit he has got to show in what manner the County, this entity that's run by five people, somehow engaged in a conspiracy with a single commissioner to commit an act that was violative of the County policy. And our position in our office is that -- is that that's an impossibility, that the County itself cannot conspire with itself or with an employee or public official with the county to do damage to its own policies. So obviously there are legal issues that will have to be determined by a trial judge in this matter. Page 6 — Item #12A (William Litsinger) April 24, 2007 MR. WEIGEL: As an aside, I'll mention that although this has been raised by Mr. Litsinger, the County Manager Ordinance, in the context of his civil lawsuit, that the County Manager Ordinance itself does provide for a penalty in case there is a violation, and that penalty would be handled on the criminal side of litigation. And a violation of an ordinance under State Law 125.69 is that the violation of an ordinance is to be handled as a -- it doesn't say it is -- but as a second degree misdemeanor, which are the same penalties which are placed in the County Manager Ordinance. So it's a rather novel approach that Mr. Litsinger has in his complaint as well, as to try to prove a civil violation of the ordinance. So Jackie's working through that very closely as well. MS. HUBBARD: Right. Now, so where we are now is, since there was a break between proceeding forward with our depositions and getting trial dates because the judge, for reasons of her own, recused herself, it seemed a good opportunity to meet with the opposing counsel for purposes of trying to determine if any reasonable settlement were possible. Additionally, it came to my attention from Commissioner Coletta that there were some issues that needed to be brought to the Board for discussion that he felt quite strongly about, and this is an opportunity for him to do this without violating the Sunshine Law. Now, let me give you some of the considerations for settlement. It is expected that the outside counsel costs, that is to represent Commissioner Coyle, may exceed $150,000 from this point to trial. So that's $150,000 that's already on the table. So bear that in mind. COMMISSIONER HENNING: That's cheap. MS. HUBBARD: And all those -- this settlement should not be characterized as a nuisance settlement, if you think about the fact that Litsinger is currently employed at the County with salary and benefits that total about a $100,000 a year and who, under his own testimony at his deposition, it appears that he has really checked out of-- Page 7 — Item #12A (William Litsinger) April 24, 2007 efficiently working for the County anyways, and so he's basically in a position. I'm not quite sure how useful he is to the County in that position. And so one of the things that we have suggested during the settlement discussions is that Mr. Litsinger resign from his employment immediately if any settlement is agreed to. And so the County could possibly either re-hire someone else or leave the position vacant and save, you know, an additional $100,000 a year. He's indicated in his deposition that he wants to be employed by the County only until he reaches the age of 62, at which time it's his intention to leave the services of the County, and that's a little over two years from now. So you have an option, if there's a settlement, to get rid of probably an unproductive employee. And additionally, he has filed a complaint with the Equal Employment Opportunity Commission against the County because he applied for a promotion which he did not get, and he's alleging that the reason he did not get the promotion is because of his retaliation -- because of retaliation against him for filing his lawsuit and also because of his age. So he's alleged two grounds for his EEOC complaint. As part of our discussions for settlement, the settlement was to be global. In other words, he is to be no longer employed, he is to dismiss this lawsuit, he is to dismiss his EEOC claim, and he's to go about his business. Now, Mr. -- go ahead, Commissioner. COMMISSIONER HALAS: In regards to removing him from employment with the County, obviously we've taken the proper steps to inform him that his performance is not up to par; is that correct? MS. HUBBARD: I would hope so. I have not investigated that personally. COMMISSIONER HALAS: I think that's something we ought to clarify, that there's been steps put into place that he's been Page 8 — Item #12A (William Litsinger) April 24, 2007 counseled in regards to his effectiveness and efficiency in the position that he is presently in. MS. HUBBARD: Right, I agree. I'm just saying, from his deposition testimony, it appears quite clear that, in his mind anyway, he's sort of just sitting there waiting till he can get to his retirement date. MR. WEIGEL: I guess the distinction may be here that he may be uninspired in his work. We, County Attorney Office, does not know his specific performance evaluations in the -- COMMISSIONER HALAS: You've got to cover yourself on that aspect of it. MR. WEIGEL: But -- and the concept that Jackie is talking about is whether this is a make-work position or not, and that's some of the justification of management. To the extent that he is an employee that has sued the County and -- under the contentious issues that he has raised, et cetera, that are ongoing, to the extent that that is ongoing may tend to affect, one might think, the relationship that he has with the County and those around him in any event to the extent that that perseveres over time. Jackie, you may go ahead. MS. HUBBARD: Okay. Now, in terms of our insurance coverage -- because the County does have an insurance policy -- the county has a $100,000 deductible, and as of today's date, defense costs have exceeded $71,000. We're talking out-of-pocket costs. We're not talking about any costs associated with our office. Discovery's about halfway completed. I anticipate maybe five, maybe six more depositions will be taken. I can imagine three right off the top of my head. The County's -- now, bear in mind that the insurance policy defines certain terms a little bit differently than we ordinarily would. And under our policy, which I have read, the County's insurance . policy will not pay for personal injury matters. And under the policy's Page 9 — Item #12A (William Litsinger) April 24, 2007 definition of personal injury, defamation is one of those matters that they consider to be a personnel injury; therefore, in the event -- there's one count against the Commissioner individually which is defined as a personal injury matter under our insurance policy, and that is defamation. So in the event liability is found under that count, our insurance policy will not pay for it. Additionally, the policy will not cover any damages resulting from a, quote, malicious act of a county employee. Now, that's important because we don't know what position the insurance policy will take -- the insurers will take on those issues. So maliciousness is alleged in every single count of the complaint, and the insurance company has been asked in writing to inform us of the amount it would be willing to pay to settle the case. And I can tell you that I have not received an answer from the insurance company. And I have been told as recently as yesterday that a reply to that question will be forwarded to us within about a week. I have asked the insurance company to agree to fund liability coverage up to $400,000, and I don't know if they're going to or not. So we'll have to wait a week to find that out. MR. WEIGEL: And let's be clear about that, Jackie. The $400,000 figure is not merely funding liability coverage, but to be contemplating, for instance, a settlement up to a $400,000 amount, and that -- and which would kick in insurance at any amount over the $100,000, which is the deductible threshold. So they have that to consider at this point in time. And Jackie will tell you a little bit further about the risk manager, I know, as well. MS. HUBBARD: Does anybody have any questions about that? Because that is a fairly little tricky issue there, and I wanted to make sure everybody's following me on that one. COMMISSIONER FIALA: Maybe I can just ask. Excuse me. So that means if the insurance company would fund up to $400,000, Page 10 — Item #12A (William Litsinger) April 24, 2007 does that cover all the legal expenses and everything that we would incur, or just money to give him? MS. HUBBARD: No. We are asking for them to fund up to $400,000 to settle the matter. Not -- we have to pay up to $100,000. That's our deductible. Once that's reached, then the insurance company will fund the rest unless -- they will fund the defense costs no matter what, but -- so they will pay for the outside attorney. However, if the jury -- if it goes to a jury and a jury finds that the County is liable or it finds that the Commissioner is liable or both are liable, the insurance company will not pay the damages if the damages result from a finding of personal injury, which is defamation, one count, or from any offense that has as an element malicious acts on the part of an employee. So that means that the money would have to be funded from somewhere else. Okay? Now, in terms of the -- do you have any other questions about that? COMMISSIONER FIALA: Uh-uh. MS. HUBBARD: Now -- (Commissioner Henning left the hearing room.) MR. WEIGEL: I'll jump in for a second. So what we have here is kind of a -- it's a little bit strange situation that the insurance is good for a settlement because they would be reducing their own risk of the costs of trial. If there is a -- if there is a trial and the plaintiff, Mr. Litsinger, does not -- does not win on any of the counts, the insurer would pay for the cost of trial and the cost of outside counsel and things of that nature. If, in fact, we went to trial and, based on the provisions of the policy, a count was found awarding a verdict to the -- to Litsinger, based on malicious or specific intent and including, for instance, for Mr. Coyle, the element of defamation, which is a separate count from those in the county, then the insurance company would claim under its Page 11 — Item #12A (William Litsinger) April 24, 2007 own policy that it is not liable for those awards of damage that come from those specific intent or malicious counts that were found in favor of the plaintiff and they would deny coverage at that point in time and ostensibly even possibly -- (Commissioner Henning entered the hearing room.) MS. HUBBARD: Attorney's. MR. WEIGEL: Deny the attorney -- the attorney payment that they have made for Mr. -- or would ultimately be responsible for Mr. Coyle in the normal course of things. COMMISSIONER HALAS: So then it would come out of the County budget then? MR. WEIGEL: Potentially so. MS. HUBBARD: Well, there's a problem there that you need to be aware of also. MR. WEIGEL: Go ahead, Jackie. MS. HUBBARD: And the problem there is that under your resolution for providing legal representation to County officials, there's a provision that says that the Board cannot fund for intentional -- what is the language exactly? Is it intentional acts? MR. WEIGEL: Intentional acts, yeah. MS. HUBBARD: So it puts Commissioner Coyle in a very uncomfortable position, I'm sure, because the matter in which the complaint has been drafted, and if it goes to the jury in that format and there is a finding, not only -- not only does he face the possibility that he may have to fund the cost of his outside counsel himself, but he may also have to fund any damages that may result if liability is found. Now, that's important because the position he's in in this case -- but ifs obviously a position any other commissioner could be in in any other case, and I just wanted to be sure everyone was aware of that. Oh, go ahead, Commissioner. COMMISSIONER HENNING: Can't the Board -- I mean, that's Page 12 — Item #12A (William Litsinger) April 24, 2007 through a resolution. MS. HUBBARD: I believe so. MR. WEIGEL: That's correct. COMMISSIONER HENNING: Well, can't the board have another resolution? MR. WEIGEL: That is correct. COMMISSIONER HENNING: So that's not really an issue then. MR. WEIGEL: Well, if the Board, as a board, were to come off the policy, then it could do so. MS. HUBBARD: Change the policy. MR. WEIGEL: That's true. MS. HUBBARD: I mean, we have time. COMMISSIONER HENNING: It's a policy through a reso.? MR. WEIGEL: That's exactly right. COMMISSIONER HENNING: Okay. What's the reso. number? MR. WEIGEL: It's like 95 -- COMMISSIONER HENNING: Well, you know, you can answer the question later. Just give it to me. MR. WEIGEL: All right. Be happy to do that. MS. HUBBARD: All right. Well, okay, that's interesting. COMMISSIONER HENNING: Yeah. I don't want to tie the hands of a commissioner. And based upon what I know, I don't see any malicious act, and based upon a commissioner representing and might want to continue to represent this or any action of-- particularly this lawsuit, may enter into a discussion during a debate or something for reelection or whatever, and it shouldn't. So, you know, we need to allow the Commissioner to defend himself as he sees fit. MS. HUBBARD: Fine. And that's an issue that we can certainly take up out in the sunshine. Now, prior settlement discussions. We did meet -- because of this break between the new judge coming on and the old judge leaving Page 13 — Item #12A (William Litsinger) April 24, 2007 and not having a trial date set, we did meet, all counsel, no parties, met last week along with the County's Risk Manager, Jeff Walker, and discussed a global settlement at that time. And just tossing numbers out, essentially the number that was -- that I put on the table was based upon the following facts: Mr. Litsinger has suffered probably a total of approximately $37,000 a year in lost income benefits for two years and he currently earns a salary of about 60-, 65,000 for two years before he retires. And so I suggested that, perhaps, in exchange for everything being dismissed, he paying his own attorney's fees and everything else, that perhaps I could recommend to the Board a settlement in the amount of those two years which is like 37, 37,000, plus the two years to 65-, which is about -- came to approximately $218,000. And everyone at that meeting was aware that this was not an offer because I don't have the authority to make an offer. It's just a number that we discussed at the table. And Mr. Litsinger's attorney indicated that he thought that was a very reasonable number and that he would go back and talk to his client. Yesterday I did receive from Mr. Litsinger's attorney Mr. Litsinger's response. His response was that he would like to receive $250,000 to be paid immediately for non-economic compensatory damages, which I think is ridiculous, and $390,000 for lost earnings and lifetime retirement benefits and social security to be paid as follows: $195,000 to be paid before June 30th that will be reflected on his Florida Retirement System contract and 195,000 to be paid in January of 2008. COMMISSIONER HALAS: Is he a property appraiser? MS. HUBBARD: This is because, he says, the State is on a June 30 fiscal year for annual FRS earnings. And he would like to remain as an employee of the County but not separate from the County any earlier than July 2, 2008. I informed Mr. Litsinger's attorney that I felt that was very Page 14 — Item #12A (William Litsinger) • April 24, 2007 unreasonable and I could not personally make that recommendation to the Board, and continue to feel that, and -- but I would relate to the Board Mr. Litsinger's offer. This is his offer to settle. COMMISSIONER FIALA: Poor performance and continued poor performance, I want you to give me over a half a million dollars. COMMISSIONER HALAS: But you've got to make sure it's well documented so that we don't have loopholes that he could come back and get us, okay? Because this could end up in federal eventually. MS. HUBBARD: Well, it was in federal court, and he had to dismissed it. So it's been dismissed. It's dead. COMMISSIONER HALAS: It won't go back to federal court again, okay. Because there is some guidelines there that we could get ourselves in, so that's why I wanted to make sure that it was well documented. MS. HUBBARD: Right. He voluntarily dismissed the same lawsuit though in court and decided to proceed in state court. Now -- COMMISSIONER HALAS: And it can never be re-entered into the federal court? MS. HUBBARD: If we go to trial, it can. COMMISSIONER HALAS: Okay. MS. HUBBARD: And we're on our way to trial. COMMISSIONER HALAS: Okay. MS. HUBBARD: We consider immediate -- our recommendation was that immediate resignation by Mr. Litsinger would be in order as well as a global settlement of all of his claims. I think David and I have talked about this. Our feeling is that a settlement in the realm of 218-, 250- would be reasonable. COMMISSIONER HALAS: Two fifty and see if we can get rid of it. MS. HUBBARD: Yeah. I have requested settlement authority from the insurance company of up to 400,000. And I can tell you that Page 15 — Item #12A (William Litsinger) April 24, 2007 our risk manager -- and I spoke to him, and he agreed that I could relay this information to you -- is that our risk manager has performed his own calculation of the economic loss to Mr. Litsinger, and he believes it's in the realm of$400,000 or more. He feels that a settlement in the range of$350,000 would be more than reasonable. MR. WEIGEL: Let me jump in to say that these are estimates based upon a consideration of, call it, a type of validation of economic loss, and in no way is the risk manager or any of us at this point saying that is his loss -- MS. HUBBARD: No. MR. WEIGEL: -- for the record and in any other context. This is a type of calculation for a settlement discussion only. COMMISSIONER COYLE: These calculations are not based upon the likelihood of being able to prove anything. MS. HUBBARD: Right. COMMISSIONER COYLE: They're merely based upon how much time and effort it is likely to cost us to go through the -- or jump through the hoops to do depositions and go to court and that sort of thing. MS. HUBBARD: Well -- COMMISSIONER COYLE: There is no judgment whatsoever concerning the likelihood that Mr. Litsinger has a claim at all. MS. HUBBARD: Correct. Now, frankly -- COMMISSIONER COYLE: In fact, most -- all the legal decision we've had so far is that Mr. Litsinger has no claim whatsoever here. MS. HUBBARD: Right. He has -- well, let's put it this way. He has -- I would say -- and I think Mr. -- Commissioner Coletta would share with you some information that we did not have when we initially began defending the lawsuit, and I'll turn that over to Mr. Coletta. CHAIRMAN COLETTA: Thank you. And the reason we're Page 16 — Item #12A (William Litsinger) April 24, 2007 here today is that we, thank God, had a pre -- what do you call it? MS. HUBBARD: Pre-deposition conference. CHAIRMAN COLETTA: Yes. And we got together and we went through the scenario of events that took place, my own personnel view on it, and that's the reason we're here today. And here's where the whole thing lies. There's certain -- now, I got to be up front. Originally the way my decisions were based and everything was an experience I had with Mr. Mudd about four years ago when I had a problem with the Chief of the Okeechobee Fire Department. He was extremely disrespectful. I never had a county employee treat me like that. I brought it to Mr. Mudd, and Mr. Mudd, when I first mentioned it to him, he cut me off and he says, violation of the Collier -- of the Manager's Ordinance. Don't tell me any more. I said, okay, fine, the end of it. MS. HUBBARD: Commissioner Coletta, I feel an obligation just to advise you, and everyone else here, that although this is a closed session -- CHAIRMAN COLETTA: Yes. MS. HUBBARD: -- it's being recorded. When the litigation is over, the transcript will be available. CHAIRMAN COLETTA: Okay. I understand, I understand. MS. HUBBARD: Okay. CHAIRMAN COLETTA: Based upon Mr. Mudd's saying, you know, stop, I stopped and I ceased and everything. So at that point in time my judgment of what the County Ordinance was was based upon that one-time occurrence with Mr. Mudd. MR. MUDD: Sir, just for clarification. I was not the disrespectful one. Chief Wilson was. CHAIRMAN COLETTA: No, you weren't. No, I'm sorry. Clarification. I'm so sorry. You just did interrupt me though. Page 17 — Item #12A (William Litsinger) April 24, 2007 MR. MUDD: I'm sorry. CHAIRMAN COLETTA: No. But the thing was, is that based upon that -- so when this whole scenario of events came down and the letter took place that Commissioner Coyle wrote -- I'm going back from that one brief experience and I'm saying, my God, here's a case where he put it in writing. Where are we with this whole thing? So of course, I'm going by that one experience. It wasn't until a month or so later in talking with Burt Saunders that he explained to me what the Collier County Manager Ordinance was, and it has nothing to do with what Commissioner Coyle did. He expressed an opinion. He did not give directions for any kind of action to be taken; however, with that said, you know, that was something that came up. But here's the stickler -- and it doesn't mean that the question will ever come up from the opposing side, but if it does it could be very damaging to our case. You know I won't lie. If somebody asks me the right question in the direct way, I'm going to tell -- I'm going to answer that question. In my conversation with Mr. Mudd when this thing took place, the letter, and I was quite upset with the whole thing based upon my previous experience -- and he came down to my office, and I was pretty livid about how the whole thing was coming down. And I -- he came, and he -- I told him how mad I was, he said to me -- and this is not quite the exact words, and he doesn't remember it and I understand that -- is the fact, what was I supposed to do, Commissioner? This is a commissioner that more or less put down the death sentence on this man. What am I supposed to do? Beginning and end of it. If they could ever extort that -- ask the right question and get that comment from me, at that point in time, our case would be damaging. Now, what is also concerning -- and I don't have the answer to this, what might have happened in the deposition or pre-deposition -- Page 18 Item #12A (William Litsinger) April 24, 2007 with certain other events that took place, the fact that we had our representatives there, we had all sorts of people that are going to probably be disposed (sic). It's going to be a high-profile trial with representatives, former, with the senator, with Dudley Goodlette and everybody else coming to give testimony. It's not going to reflect well on the County as we go into those kind of testimonies. People are going to be looking -- especially the press. They're going to be looking for a negative aspect to be able to attack us. Now, could we win? Very possibly we could, but it's not going to -- going to that point, it's not going to be good for the county. It's not going to be good for the Collier County Commissioners. It's going to be a negative aspect going into the whole thing. Have I missed something Jackie? There was more to it, wasn't there, or I just summed it up extremely short? MS. HUBBARD: Uh-huh. CHAIRMAN COLETTA: That's where we are. I was extremely concerned what our chances were to be able not only to win it, but what kind of exposure we're going to get with this trial. So I thought it would be a good idea if we had a meeting to be able to discuss this, and the commission can give direction to the attorney where to go. However, with that said, I don't want to do anything that's going to leave a commissioner out on the hook. That's why I was kind of upset when I didn't see Commissioner Coyle's attorney here today. Under no circumstances. If somebody's going to take a fall on this -- and I hope nobody does -- I'd rather it be the County than an individual commissioner, and I feel very strongly about it. You acted within the capacity of your office to do the right thing. You know, maybe you were a little bit exuberant, I don't know. But somebody, after the fact's, going to make a judgment decision on you, they're going to do it on every one of us. So I think whatever we do, we have to make sure that we protect Page 19 — Item #12A (William Litsinger) April 24, 2007 not only the integrity of one commissioner, but the integrity of five commissioners. And that's why if we could get a reasonable settlement and the man leaves immediately, then I would -- I would be agreeable to that. MS. HUBBARD: I will tell you that after I sent my response back to Mr. Gold where I said I could not -- COMMISSIONER HALAS: Who's Mr. Gold? MS. HUBBARD: He's the attorney for Mr. Litsinger. He sent me another email late yesterday and he said that he was starting a federal trial in the Denise Blanton matter, I believe -- MR. WEIGEL: That's right. MS. HUBBARD: -- but that he wanted the settlement discussions to remain alive. And I get the feeling that he still -- he certainly said that he thought the 218- figure was a reasonable figure. I indicated to him that I would try to find out what the benefit amount would be for those two years of Mr. Litsinger earning about 65,000, which is what he makes now, and Mr. Walker indicated that would be about 8- -- and additional 8- to 12,000 dollars. COMMISSIONER HALAS: In his FRS account? MS. HUBBARD: Right. Now -- COMMISSIONER HALAS: I think we ought to look at that, take that into consideration. I think what you need to do is look at this and I think we need to make sure that we look at this in a manner that we want to get rid of this problem. CHAIRMAN COLETTA: Realistically. COMMISSIONER HALAS: Realistically, yeah, and get this taken care of and wash our hands of it so it doesn't become -- MS. HUBBARD: Worse. COMMISSIONER HALAS: -- worse and real dirty. COMMISSIONER COYLE: Could -- let me take a few minutes to go over the essential elements of the case from my standpoint. Now, there are two lawsuits that are likely to continue against the Page 20 — Item #12A (William Litsinger) April 24, 2007 county no matter what he does with the lawsuit against me. Is that not true? Doesn't he have two other lawsuits? MS. HUBBARD: Yeah. We want all of those to be -- COMMISSIONER COYLE: I'm not talking about settlements. MR. WEIGEL: No, counts. COMMISSIONER COYLE: I'm just saying, right now -- MS. HUBBARD: One lawsuit, two counts -- four counts. COMMISSIONER COYLE: Okay. One lawsuit and four counts against the County. MS. HUBBARD: Two against the County and four against -- COMMISSIONER COYLE: Wait a minute. There's an EEOC complaint. MS. HUBBARD: That's a separate one, so there are two of them. COMMISSIONER COYLE: That's what I'm saying. COMMISSIONER FIALA: He's got another? COMMISSIONER COYLE: Yeah, he's got two more. MS. HUBBARD: It's not a lawsuit. It's a complaint. MR. WEIGEL: An EEOC complaint is a complaint filed with a federal commission. COMMISSIONER COYLE: So he's filed two other complaints against the County that have nothing to do with this situation. MS. HUBBARD: One other. COMMISSIONER COYLE: Okay, one other. MS. HUBBARD: One other. COMMISSIONER COYLE: Isn't there another one coming up? I was told he's planning on filing another one. MS. HUBBARD: No. The only one I'm aware of is the EEOC complaint where he's filed a complaint and has asked for permission to file a lawsuit, which hasn't been given yet. COMMISSIONER COYLE: Okay. MS. HUBBARD: And this lawsuit. In this lawsuit there's four Page 21 — Item #12A (William Litsinger) April 24, 2007 counts -- four involving Commissioner Coyle, and two involving the County and Commissioner Coyle. MR. WEIGEL: As Jackie indicated, that EEOC complaint, Equal Employment Opportunities Commission complaint, that's based upon something totally separate from this activity here. It had to do with his applying for a position that was vacant up in CDES that he did not receive, and so that is not part of-- COMMISSIONER HALAS: How has he got grounds for that at all? That doesn't -- MR. WEIGEL: Well -- COMMISSIONER FIALA: Do you know, it sounds like he's going to make a practice over the rest of his time suing us. COMMISSIONER COYLE: That's the point. MS. HUBBARD: I think he will. MR. WEIGEL: In handling these things, as we say globally, we make them all go away. What we would probably advise to do is, we may as well get rid of them all if we're going to get rid of this -- COMMISSIONER COYLE: Yeah. It's just not this complaint about -- MS. HUBBARD: No. COMMISSIONER COYLE: And you see, it's about other things, too. Let me go through these issues because you need to understand all the elements of the case and what we have discovered so far during the deposition process, largely from Mr. Litsinger himself. On April of 2005, the Board authorized me to be the point person on working with our legislators about Senate Bill 360. You took a vote, said you're it, go talk with them. County Manager organized a staff team to work together on an analysis of impacts of SB360. Litsinger was a member of that team and he prepared an analysis. He distributed his analysis to the County Manager's staff and all the commissioners and -- I think maybe around Page 22 — Item #12A (William Litsinger) April 24, 2007 March the 17th of 2005. In May 2005 during a board meeting, Commissioner Coletta asked that we have a post-legislative workshop. We agreed -- after some debate, we agreed to do that. County Manager Mudd scheduled it for June the 8th. County Manager called the work -- this team -- COMMISSIONER HALAS: Work group. COMMISSIONER COYLE: -- this project team together, and I was present and County Manager provided certain instructions to staff and asked them to make presentations. And Stan Litsinger was asked to make his presentation of his analysis. Nobody told him what to say. He had prepared an analysis. Said, you're going to present your analysis, right, Stan? Yes, that's right. We assembled the project team again on June the 6th, the day before the workshop, and we were very clear, both the County Manager and I, asked the members of the team, have you changed your mind? Is there anything about your analysis that is different than it was before? Because we had used that to develop our position, our official position on the Senate Bill 360. And all the staff members said no, everything's the same. We're going to present our stated positions. County Manager Mudd then specifically asked Litsinger to make the introductory comments and then at the end provide specific recommended changes for a glitch bill for SB360. And we both, Jim Mudd and I both, said to Stan Litsinger, please be specific so that they understand what you're talking about. At the workshop he didn't do that. He failed to present the -- he didn't make -- he told Jim, to Jim's surprise, I'm not going to make any closing comments. I don't have any closing comments to make. He didn't cover his remarks in his introductory comments. And the result was that the legislators left that meeting not believing that there was anything wrong with Senate Bill 360, that Page 23 — Item #12A (William Litsinger) April 24, 2007 they truly believed that -- COMMISSIONER HALAS: We were satisfied. COMMISSIONER COYLE: -- that we were satisfied. There really wasn't much required that way. Now, shortly after this workshop, Representative Davis approached the County Manager and said something about congratulating Litsinger on his presentation, then the County Manager said, yeah, and it might have cost him his job. Representative Davis has verified that statement. He has said that it occurred right after the workshop or very, very shortly after the workshop, before my letter was written. MS. HUBBARD: He's not sure about that. But he thinks it was before -- I did meet with both elected officials, Goodlette and Davis. And Davis said that he does recall the conversation with Mr. Mudd. He thinks that that conversation occurred the day after the workshop. He thinks it was before he received a letter, but he's not positively -- positive about that. He thinks he found out about the letter by reading it in the newspaper, and it was either the day after the meeting or maybe a day or two after that, but it was very close to the day of the meeting, COMMISSIONER COYLE: Okay. The point though is that the meeting was on the 6th. The letter was not received in the County Manager's Office until the 10th. Four days elapsed. MS. HUBBARD: Okay. COMMISSIONER COYLE: So it is very clear that that statement was made before my letter arrived for the County Manager. Now, on the day after the workshop, the 7th, okay, on the 7th my aide received an email from Litsinger saying, I understand Commissioner Coyle wants to get me fired. I'd like to talk with him. And I said, what? I said, I can't sit down and talk with an employee about whether or not he's going to be fired. And I said, no, I'm not going to schedule a meeting with him, but I'll send a letter to the Page 24 — Item #12A (William Litsinger) April 24, 2007 County Manager. So the night of the 7th, the day after the workshop, I prepared a letter. I sent an email, it's very clearly time tagged, to my aide. She typed up the letter the next day, which would have been the 8th, I think -- 8th or 9th. And I -- my feeling was that if I was going to have a communication, I wanted Mr. Litsinger to know about it. I did not want to hide anything from Mr. Litsinger. So I sent the letter to the County Manager which said two things. I considered his actions to be dishonest and disloyal, and I didn't want him working with me on any future project because of it. I didn't say I didn't want him working for the County. I didn't say I wanted him fired. I said, I don't want him assigned to me on another project that I'm working on. Anybody else could have been assigned to do that. So -- now, with respect to whether or not that is a violation of the County Manager's Ordinance, everyone has opined that it is not. As a matter of fact, if you go back to the minutes of 1995 when the commissioners at that time were talking about a modification to the County Manager's Ordinance, Commissioner Hancock raised the question. He said, wait a minute. If I've made several inquiries to an employee and I think their performance has not been satisfactory and I write a letter to the County Manager complaining about this employ, will I be in violation of the County's ordinance? David Weigel said, I certainly don't think so. And so everybody was happy with that and they proceeded with the process. So this -- the County Commissioners have an obligation to inform the County Manager if they're dissatisfied with the performance of staff, otherwise, how is he going to be able to provide us and the public acceptable levels of service? So then at some point in time, I guess sometime in July, County Manager demoted and transferred Litsinger. Now, during the depositions, here's what we've found from Mr. Page 25 — Item #12A (William Litsinger) April 24, 2007 Litsinger himself. He has been disciplined twice for similar insubordination. One is that he defied his supervisor's instructions and left the workplace at a time when he was needed there. Number two, he threatened his supervisor. He says his supervisor thought that he said he was going to kill him but, in fact, he said he was only going to assault him. So he was twice disciplined for that reason. He has admitted in his deposition that he, himself, made the decision consciously without telling anybody that he was not going to make this presentation that he was requested to do. MS. HUBBARD: Right. COMMISSIONER COYLE: He very -- he admitted to that, and he was proud of that. And something that we did not know until his deposition is that while we were planning the workshop meeting, Litsinger was secretly meeting with the legislators. MS. HUBBARD: He was communicating with them, yes. COMMISSIONER COYLE: And he met with them. He had a meeting with one of the legislators, and he was corresponding with another one, and he -- the County Manager did not know about it, his Supervisor, Joe Schmitt, did not know about it, none of us knew about it, thus the reason I said he had been disloyal. So these things are beginning to fall into place. He has been undergoing psychiatric treatment for five years and he has admitted in his deposition that he was told before my letter was received by anybody that he might lose his job, okay? So I believe there is ample defense that my letter had nothing to do with this. Now, let's get to the bottom line. This lawyer, Gold, is smarter than I gave him credit for. It's really very obvious to me that he has taken our insurance policies and he has used the words that will somehow isolate me, malicious, conspiracy, deliberate acts, things of that nature, and I think what he's going to probably do is he's not going to oppose dismissing the charges against the County and isolate Page 26 — Item #12A (William Litsinger) April 24, 2007 the entire lawsuit against me personally. So -- MS. HUBBARD: Well, we've said it would be a global settlement. COMMISSIONER COYLE: Yeah, well, okay. That's -- let me make this point. MS. HUBBARD: Okay. COMMISSIONER COYLE: This same lawyer has just lost a lawsuit against the County. MS. HUBBARD: Correct. COMMISSIONER COYLE: He has lost part of a lawsuit against the School Board, I think. He's still continuing it, but there's something else involved there. He is a person who specializes in representing disgruntled employees against governmental agencies. He will not stop. He will continue to do this every time we have a disgruntled employee who wants to get some money from Collier County government. You can make sure that Samuel Gold is going to be there. MR. WEIGEL: Again, I may caution you in your discussion here in the sense that we will have a public record that's available later on. It's a thought. I think, perhaps, the thought is made. Commissioner, if I can jump in one second. And I apologize. The one thing is that, yes, we do have a motion to dismiss, and we think it's a very viable motion to dismiss. I would suggest, however, that if, in fact, there's a strategy on behalf of Mr. Gold thinking that he has more leverage in a courtroom, in a court of law, without the County being a party and pursuing singularly Mr. Coyle, I would tend to think that -- my thought is that that may well not be the case because these elements of conspiracy require multiple parties. Already, Mr. Mudd, who was initially a defendant, has been dismissed from the case. And to the extent that the County will be dismissed from the count and not have an attempt for the deep-pocket Page 27 — Item #12A (William Litsinger) April 24, 2007 County to be found liable for conspiracy, I think, would be in opposite to what he's attempting to pull off, to achieve. If there is a conspiracy, that both parties are violative and, therefore, subject to, you know, potential award by a jury. But, again, that's a different concept of what he may be attempting to do, and I can't know what he's attempting to do. COMMISSIONER COYLE: The point I was trying to get at though, David, was essentially this: There is a public purpose for continuing to defend -- for the County to continue to defend against this case because if you don't defend against it, then you leave any commissioner hanging out to dry, and the commissioner is probably going to be more inclined to settle in some way than to continue piling up legal bills. So Commissioner Henning's thought, I think, is an appropriate one. It serves a public purpose for the County to defend commissioners when they are targeted in that manner because, otherwise, it inhibits a commissioner from doing their job. MS. HUBBARD: I agree. COMMISSIONER COYLE: Now, if-- now to finalize my position, is that it would be better to reach a reasonable settlement, because we'll all be spending money on legal fees, but it is terrible to see this guy profit from a situation like this. But -- so my position really is this: I think we've got a good case. I think we can win it. But when you get in front of a jury, I'm not sure what's going to happen. If we can get a -- if we can get a reasonable settlement, we get a reasonable settlement. If-- but in any event, however that happens, I think we should change the ordinance MS. HUBBARD: The resolution. COMMISSIONER COYLE: -- the resolution to assure that no other commissioner gets put in this position in the future; otherwise, these guys are going to just drain you dry. That's what they're going Page 28 — Item #12A (William Litsinger) April 24, 2007 to do. And so with that, that's -- CHAIRMAN COLETTA: And if I may, I'm going to jump in here just a little bit. Because I'm very, very concerned that before we get to a point we make a settlement that they dispose (sic) me and go through the deposition process, and they may think that they have more of a case than they had before. That's my concern. And if I can keep away from that, until that point in time, at least we get a chance. I don't know for sure if they're going to ask the right questions, but some of the things that I observed -- I mean, you made it clear what happened outside of the commission as far as what Litsinger did or didn't do. It happened behind doors with meetings that you had. The observations that I had -- and I still got today -- is that he made a wonderful presentation, and I watched the tape -- COMMISSIONER COYLE: That's not the point. CHAIRMAN COLETTA: I know. But I watched the tape. This is something that they may do too. I watched the tape two different times to be able to follow it, and I didn't see any distress in anybody's face. I didn't see anybody jumping in to correct him about omissions of testimony. Now, you know, many things happened to lead to that point. I just want to make sure we do everything possible to limit our liability, and especially one commissioner being up there and receiving -- and even if we win, it's all that negative stuff that goes to that end too that's not going to be good. COMMISSIONER COYLE: Well, let me just say -- and I know Commissioner Halas wants to talk about something. The point is that all any of us can do is testify about things we know. It serves no purpose to speculate about things that you don't know about. So if you don't know what Litsinger was told to say, you can't judge his presentation. It's that simple. You know, you can't possibly judge his presentation unless you knew what he had said he Page 29 — Item #12A (William Litsinger) April 24, 2007 was going to do. Now, lacking that information, you can't possibly draw a conclusion; you can't possibly testify so -- on that issue. CHAIRMAN COLETTA: Yeah. I'm just sharing with you my concerns. COMMISSIONER COYLE: And as far as County Manager Mudd's remarks, I don't know how many days after all this happened CHAIRMAN COLETTA: Right after the letter came out. COMMISSIONER COYLE: Okay. But the point is that I never had a discussion with the County Manager. That's why I chose to communicate in a letter. It is -- CHAIRMAN COLETTA: I explained the circumstances related to it. I mean, if I knew what I knew going into that, I wouldn't have called him down even to talk to him. COMMISSIONER COYLE: Yeah. CHAIRMAN COLETTA: There's a need to explain how things came together at a certain point in time. COMMISSIONER COYLE: Well, the record is the record, and I think we've got a pretty clear record of exactly what happened, and we've got -- and not only that, but there is absolutely nothing wrong with a county manager taking into consideration the input they get from commissioners. I mean, that's what he's supposed to do. That's his job. CHAIRMAN COLETTA: We said. The judge and the jury might not. COMMISSIONER COYLE: I don't think so. I think the County Manager's Ordinance permits it. The thing is, had I gone to the County Manager and said, listen, if you don't fire this guy, I'm not going to vote for the renewal of your contract, I would have been in violation. There's no question about that. Jim Mudd wouldn't let me get away with that, just like he wouldn't let you get away -- CHAIRMAN COLETTA: He wouldn't let me get more than a Page 30 — Item #12A (William Litsinger) April 24, 2007 sentence out of my mouth. COMMISSIONER COYLE: -- with doing anything with the fire chief or somebody. So those things didn't happen. And I very clearly said, I don't want to -- I'm not trying to get the guy fired. So the record is the record and we've got it there. It's probably not worthwhile to speculate about something you don't have personal knowledge about. But -- so I'm not -- you've got your view, and that's okay. You've got to tell the truth. CHAIRMAN COLETTA: Let's go ahead and get direction and MR. WEIGEL: I'd like to say one thing, and that is, you know, we're ultimately looking at timing, and even Commissioner Coletta's a little bit concerned about the timing of when he may have a deposition. Deposition has not been set yet. But rest assured, any commissioner here, is that -- or person that's deposed on behalf of the County, and that is, that if, in fact, questions are asked which would seem problematical on their face, that is the intent of the other side, is to raise questions to get to a direction that they want -- a statement. COMMISSIONER COYLE: Yes, sir. MR. WEIGEL: But the ability of attorneys working with you to cross-examine and show the limitations of the knowledge and statement that you had, for instance, in the context of, did you know that Mr. Litsinger had done such and such ahead of time and promised such and such, and the answers, I think, would defuse significant aspects of what might otherwise appear initially to be damaging testimony. COMMISSIONER COYLE: That's right. COMMISSIONER HALAS: I want to bring something else in that was brought up as we were going -- as Commissioner Coyle was going through the discussion on this thing. Obviously we're all -- in the back of our mind, we've got the Page 31 — Item #12A (William Litsinger) April 24, 2007 events of what took place on the campus of Virginia Tech. Obviously if this gentleman has threatened his workers and he realizes that there's forces that he feels that are against him, that puts us all in harm's way. I think what we need to do is make sure -- there's other things that come into this equation, so I think what we need to do is sit down and figure out the best move that we can do to make sure that we alleviate this type of pressure that could be put on us, whether we're threatened here on the premises or whether we're threatened as we travel through the community. So I think that we also would like to put that on the table and make sure that there's some way or another that we can address all this so that hopefully it won't get to a point that it spins out of control and he takes matters into his own hands. MS. HUBBARD: That's an interesting perspective, yes. COMMISSIONER HALAS: Okay? MR. WEIGEL: Well, ultimately -- COMMISSIONER COYLE: Let me add to that. It's a very appropriate perspective. You've seen his irrationality -- MS. HUBBARD: I have. COMMISSIONER COYLE: -- in the deposition. He goes way, way off. MS. HUBBARD: He does, anger. COMMISSIONER COYLE: He's very angry. This is his way of punishing people, to be able to sit down across that table and say nasty things about you, okay. And for most of the people who have testified against him, that's what he does. The minute he no longer has that as an avenue to vent his anger, if we somehow win, I think he's going to blow. MS. HUBBARD: Right. COMMISSIONER COYLE: Okay? The pressure's got to go somewhere, and I think it's an important issue. CHAIRMAN COLETTA: Okay. So let's try to get direction Page 32 — Item #12A (William Litsinger) April 24, 2007 here. COMMISSIONER HENNING: And I'm ready to -- when I go out there, to make a motion for settlement. MS. HUBBARD: I have a -- Commissioner, there's one thing -- don't forget. COMMISSIONER HENNING: I'm not done, but go ahead. Ladies first. MS. HUBBARD: We haven't heard from our insurer yet. We don't have an amount. You know, the -- COMMISSIONER HENNING: That's right, yeah; that's right. MS. HUBBARD: All right. COMMISSIONER HENNING: But we've got deep pockets. MS. HUBBARD: But you don't want to settle without the insurance paying for it, do you? COMMISSIONER HENNING: No, we don't, but -- COMMISSIONER HALAS: I think we should just say, give direction to find out what the insurance company -- CHAIRMAN COLETTA: Just continue negotiations. MS. HUBBARD: Yes. MR. WEIGEL: Yeah. We don't want the other side to think that we're working in jawing with insurance, even though that's what we do and they know that anyway, but to go on the record that way, because they may want to ratchet it up. This boils down to, these cases often do, to the business decision of cost and risk analysis and, as well as we indicated, perhaps some desire to no longer have this person in the employ of the county and that, you know, that again -- COMMISSIONER HALAS: Blow. MR. WEIGEL: You decide, what is the cost to remove -- have this person voluntarily remove himself from the party. CHAIRMAN COLETTA: As few words as possible. MR. WEIGEL: We know in the figures that they've provided us that they're trying to project way ahead some loss figures based on Page 33 — Item #12A (William Litsinger) April 24, 2007 retirement that he might otherwise not get if he was not working for the County. These things can all come into play in a very effective dialogue with the insurer. The insurer itself, of course, is concerned with their own risk analysis here knowing what may happen if it goes through an extensive trial and certain aspects come out where they spend more money than they are right now. I mean, don't lose sight that the County, of course, is on the hook for the first hundred thousand regardless. And the policy that the Board has relative to commissioners and/or other entities can be looked at very thoroughly, and I look forward to that dialogue as well, and that does need to be a part of the discussion today, of course. COMMISSIONER HENNING: Okay. I mean, what are we going back for, to give you direction to do? MS. HUBBARD: Continue negotiating. COMMISSIONER HENNING: Continue negotiating. You didn't negotiate. Give you direction to negotiate? MS. HUBBARD: Right. MR. WEIGEL: Give us direction to negotiate. COMMISSIONER HENNING: The reason I had a question before I let somebody else talk, is we have a policy when an employee is -- goes to a lower position that they receive the same pay, right? MR. MUDD: No, sir, but what -- MR. WEIGEL: Oh, I see what you're saying. MR. MUDD: I'm sorry. MR. WEIGEL: I didn't mean to interrupt you. I think what he's indicating is that if you can change a position, you don't have reduction in pay -- COMMISSIONER HENNING: Right. MR. WEIGEL: -- necessarily but you have a changed position. COMMISSIONER HENNING: You just have a changed position. You keep the same salary. Page 34 — Item #12A (William Litsinger) April 24, 2007 MR. MUDD: What I did in Mr. Litsinger's particular case, if you look at the County Manager's policies, the Board's policies that the County Manager does, there's an item in there -- I think it's item 25, it talks about insubordination. It talks about the part where the employee doesn't do what he's been directed to do. In this particular case, Mr. Litsinger didn't do that. COMMISSIONER HENNING: Okay. Is that 25 of-- MR. MUDD: Yeah, I can't remember the -- but it's number 25 of the area that talks about code of conduct, if you take a look. Number 25 talks about insubordination. It talks about punishment, and including dismissal. In this particular case, directors and administrators work at the will of the County through the County Manager. That's also written down there. And if you take a look at the County Manager's Ordinance, it also says that I'm your agent to enact your personnel policies. Mr. Litsinger, therefore, works at the will of the County Manager based on that particular issue. (Chairman Coletta left the hearing room.) COMMISSIONER HENNING: So he doesn't -- it's policy 25. MR. MUDD: It does. The reason that I basically demoted him. COMMISSIONER HENNING: Okay. It's under that policy? MR. MUDD: Yes, sir. COMMISSIONER HENNING: Is that the amended policy then, that's 2001? MR. MUDD: Sir, it's the most up-to-date one. COMMISSIONER HENNING: So the Board hasn't adopted that policy? The last policy we adopted is 2001. MR. MUDD: Yeah. Well, Commissioner, if that's the one that's there. I can go back and show it to you. It's on 25, if you take a look at insubordination, it still sits there. It hasn't changed. COMMISSIONER HENNING: So it hasn't changed, okay. Page 35 — Item #12A (William Litsinger) April 24, 2007 MS. HUBBARD: It's number 25. MR. MUDD: Number 25, it hasn't changed. MR. WEIGEL: I understand the issue we're bringing up, Mr. Henning. MR. MUDD: It was in the Thampton (sic) case, sir, and that's the one -- that's the court case that Mr. Gold just lost. COMMISSIONER FIALA: Oh, I was wondering. Who's your attorney? MR. MUDD: I saw that particular issue. MS. HUBBARD: Potanovic (phonetic). COMMISSIONER COYLE: John Potanovic, yeah. MR. MUDD: Okay. There's nothing that Mr. Coyle relayed to you based on depositions that is different than what I know, and he has summarized my deposition quite well. My conversation with Representative Davis was before I ever received the letter from Commissioner Coyle. I was thinking about his dismissal after his joint workshop and what he didn't do based on that workshop. COMMISSIONER HENNING: Jacqueline, would it be out of context for us to give you direction to settle but -- COMMISSIONER COYLE: Negotiate. COMMISSIONER HENNING: -- negotiate settlement but also that the parties agree there is no malicious intent? That has to be clear. MS. HUBBARD: You want to reject the offer that we just got, right, the 600,000? COMMISSIONER HENNING: Right. MS. HUBBARD: Okay. COMMISSIONER HENNING: I mean, there's -- so we can do that. MR. WEIGEL: Well, that is true. A settlement will not have any finding on any issue whatsoever. They all -- (Commissioner Coletta entered the hearing room.) Page 36 — Item #12A (William Litsinger) April 24, 2007 COMMISSIONER HENNING: It's just hanging out there. It hangs out there. Even though you have a settlement, if the County says, we're going to reject that offer, I want you to negotiate, it's out there in the world. Well, why do they want to do that? Is there something wrong? Some commissioner did anything wrong? I think that's very important for us to resolve, there was no malicious intent. MS. HUBBARD: Okay, sure. You want to go on the record saying that? COMMISSIONER HENNING: Yes. MS. HUBBARD: Yes. I think that's a good idea. COMMISSIONER FIALA: Because he's using that. COMMISSIONER HENNING: Well, it could be used later on, and it should not be used. COMMISSIONER HALAS: How soon can you bring back a new resolution to the board so that we can protect our fellow commissioners? MS. HUBBARD: Tomorrow. MR. WEIGEL: You know, it could come back very quickly. Probably you'd like to see a couple drafts of that particular paragraph that shows some -- a couple for-instances -- COMMISSIONER HALAS: I think you need to move in that manner so that we've got an umbrella for fellow commissioners, fellow commissioners. MR. WEIGEL: I would expect coordinating with the insurer, as well to the extent with Gold and Litsinger, that it would probably be two meetings before we would come back with a settlement figure. MS. HUBBARD: Resolution. COMMISSIONER HALAS: In the meantime Commissioner Henning is basically going to make a motion that we continue to work through this process. But as I said earlier, there's a lot of circumstances that we need to address here to make sure that we take care of the need if this person is let go. Six months later he can still Page 37 — Item #12A (William Litsinger) April 24, 2007 come back and really be upset and could cause bodily harm. MS. HUBBARD: So you definitely want something in the settlement agreement, if there is one, that he will not do that? COMMISSIONER HALAS: Well, you still -- I don't know how you can control it, but I'm just saying, you want to make sure some way or another that it's amicable so that he doesn't think back six months later that he was taken to the -- MS. HUBBARD: Right, right. COMMISSIONER HALAS: -- he was duped in regards to the amount of money that he felt he should have. So he has to -- we have to make sure that he feels comfortable at the time of the signature and that -- so that we're not put in a situation wherein we're in harm's way, County Manager's in harm's way, or any employee is in harm's way. CHAIRMAN COLETTA: And I think that we can save that for another day. I think we've got this pretty well set. You're going to make the motion? COMMISSIONER FIALA: But the resolution -- we're going to try and get the resolution together right away, right? MS. HUBBARD: Right. MR. WEIGEL: We'll get that right away. CHAIRMAN COLETTA: Okay. Let's go. COMMISSIONER FIALA: Okay. Because we've got to have that in place. (The closed session concluded.) ***** There being no further business for the closed session portion, the closed session was adjourned by order of the Chair at 1 :45 p.m. TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICES, INC., BY TERRI LEWIS. Page 38 — Item #12A (William Litsinger)