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BCC Minutes 06/26/2007 Closed Session (#12A-Brock) MINUTES Brock June 26 , 2007 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA SECOND DISTRICT, POST OFFICE BOX 327, LAKELAND, FL 33802-0327 October 2, 2009 CASE NO.: 2D09-4526 -- L.T. No. : 07-1056-CA Dwight E. Brock, Clerk Of v. Board Of County Comm. G') Circuit Court Of Collier Of Collier County Appellant/Petitioner(s), Appellee/Respondent(s). BY ORDER OF THE COURT: i I' Pursuant to the notice of voluntary dismissal filed herein,this appeal is dismissed. I HEREBY CERTIFY that the foregoing is a true copy of the original court order. Served: Richard J. Brener, Esq. Thomas R. Grady, Esq. Theodore L.Tripp, Esq. Jacqueline Williams Hubbard, Esq. Dwight E. Brock, Clerk me N 1 Aft1./ rte/ 4. 11, �t r� R James Birkheld L P''') s'",- w`' Clerk \'1 OP :ICS; . I. IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, SECOND DISTRICT DWIGHT E. BROCK,CLERK OF THE CIRCUIT COURT OF COLLIER COUNTY,FLORIDA, Case No. Appellant, L.T. Case No. 07-1056-CA vs. BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY,FLORIDA on behalf of COLLIER COUNTY, a Political Subdivision of the State of Florida, Appellee. / THE CLERK'S VOLUNTARY DISMISSAL OF APPEAL WITH PREJUDICE, Appellant Dwight E. Brock, Clerk of the Circuit Court of Collier County, Florida,pursuant to Florida Rule of Appellate Procedure 9.350(b),and as a result of a settlement agreement reached late in the evening of September 29, 2009, hereby voluntarily dismisses the above-captioned appeal with prejudice. 1 Dated: September 30, 2009. Respectfully submitted, THOMAS R. GRADY,P.A. Of Counsel, Ackerman,Link& Sartory,P.A. Attorneys for Appellant 222 Lakeview Avenue, Suite 1250 West Palm Beach,Florida 33401 (561) 838-4100; (561) 838-5305 [fax] -and- ACICERMAN,LINK& SARTORY,P.A. Attorneys for Appellant 222 Lakeview Avenue, Suite 1250 West Palm Beach,Florida 33401 (561) 838-4100; (561) 838-5305 [fax] By • •� •ri• '4: No. 09 402 2 • CERTIFICATE OF SERVICE, I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by e-mail and U. S. Mail to Jacqueline Williams Hubbard, Office of the County Attorney, 3301 East Tamiami Trail, 8th Floor, Naples, FL 34112; and Theodore L. Tripp, Jr., Hahn Loeser, 2532 East First Street, Fort Myers, FL 33901-2431,this 30th day of September,2009. THOMAS R. GRADY,P.A. Of Counsel, Ackerman,Link& Sartory,P.A. Attorneys for Appellant 222 Lakeview Avenue, Suite 1250 West Palm Beach, Florida 33401 (561) 838-4100; (561) 838-5305 (fax] -and- ACKCRMAN, LINK& SARTORY,P.A. Attorneys for Appellant 222 Lakeview Avenue, Suite 1250 West Palm Beach, Florida 33401 (561) 838-4100; (561) 838-5305 [fax] By: • :e. • 1 J.B R ,,Florida Bar No. 0957402 3 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing complies with the font requirements of Florida Rule of Appellate Procedure 9.100(1). The font is Times New Ro an 14-point. RI +' ' J.B AU7584.DOC /' 4 -- QG IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR n CIS,ACTJQN ,= BOARD OF COUNTY COMMISSIONERSGr OP COLLIER COUNTY,FLORIDA,on behalf of COLLIER COUNTY,a Political, Subdivision of the State of Florida. • nt 0 Plai vs. CASE NO. 07-CA•1056 DWIGHT E.BROCK,CLERK OF CIRCUIT COURT OF COLLIER COUNTY,FLORIDA, • Defendant. I ORDER GRANTING PLAINTIFF/COUNTER DEFENDANT'S MOTION FOR SUMMARY JUDGMENT;DENYING DEFENDANT/COUNTER PLAINTIFF'S OOTION FOR SUMMARY GMENT:AND FIN if J THIS CAUSE came on before the Court upon the Motion for Summary Judgment filed on behalf of the PlaintifflCounter Defendant,BOARD OF COUNTY COMMISSIONERS OF . COLLIER COUNTY,FLORIDA[hereinafter"COUNTY"],directed to the Counterclaims of the Defendant,DWIGHT E.BROCK,CLERK OF CIRCUIT COURT OF COLLIER COUNTY, FLORIDA[hereinafter"CLERK"];and upon the CLERK'S Motion for Partial Summary Judgment on Count I of the Clerk's Amended Counterclaim. The Court having heard argument of counsel and being otherwise folly advised in the premises,it is thereupon ORDERED AND ADJUDGED as follows: 1. The Motion of the Plaintif lCounter Defendant,COUNTY,directed to the Counterclaims of the Defendant/Counter Plaintlff CLERK,be and the same is hereby granted. 2. The CLERK'S Motion for Partial Summary Judgment on Count I of the Clerk's Amended Counterclaim be and the same is hereby denied. az•1347275.1 • 3. The Court having granted surnznary judgment in favor of the Plainu/Co me r Defendant,COUNTY,on all claims which remain pending on the Counterclaim of Defendant/Counter Plaintiff,CLERK,Judgment be and the same is rendered on the Counterclaim of Defendant/Ccamter Plaintiff,CLERK,in favor of the Plaintiff/Counter Defendant,COUNTY, and against the Defendant/Counter Plaintiff,CLERK,and DWIGHT E.BROCIK shall take nothing by this action and the Plaintiff/Counter Defendant,COUNTY,shall go hence without day. i 4. The Court retains jurisdiction to assess WAS upon proper motion. DONE AND ORDERED in Chambers at Naples,Collier County,Florida this day of September,2009. 16- IR i�r .: / f i / 4/ CUTT COURT JUDGE Conformed copies Runiahed to: THEODORE L.TRIPP,JR.,ESQUIRE JACQUELINE W.HUBBARD,ESQUIRE THOMAS IL GRADY,ESQUIRE RICHARD BRENER,ESQUIRE Pursuant to Rule 1.080,Florida Rules of Civil Procedure,conformed copies have been mailed to the above addressees this c 6 _day of September,2009. By. , udioiai Assistant to Judge CIS-1347275.1 2 • June 26, 2007 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, June 26, 2007 CLOSED SESSION Item #12A — Dwight E. Brock Board of County Commissioners versus Dwight E. Brock Case No.: 07-1056-CA LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, met on this date at 12:00 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 Michael Pettit, Chief Assistant County Attorney Jacqueline Hubbard, Assistant County Attorney Theodore Tripp, Outside Counsel Page 1 — Item #12A (Brock) June 26, 2007 Item #12A THE BOARD IN EXECUTIVE SESSION WILL DISCUSS: STRATEGY RELATED TO LITIGATION EXPENDITURES IN THE PENDING LITIGATION CASE OF BOARD OF COUNTY COMMISSIONERS V. DWIGHT E. BROCK, CLERK OF COURTS CASE NO. 07-1056-CA — CLOSED SESSION MR. WEIGEL: So we're starting the closed session in regard to agenda item 12A, Board of County Commissioners' meeting of June 26, 2007. And this is in regard to litigation strategies related to expenditures for the case of Board of County Commissioners versus Dwight E. Brock, and it's case number 07-1056-CA. And with that, we will start the closed session. In attendance are County Attorney David Weigel, Chief Assistant Michael Pettit, Assistant County Attorney Jacqueline Hubbard, outside counsel of record, Theodore Tripp, and we have four commissioners here, not present is Commissioner Coyle. With that, I think we can turn it over and start our closed session. Jim Mudd is here, too, pardon me, the county manager, excuse me. MS. HUBBARD: For the record, good afternoon, Commissioners. I have to provide for you a copy of a letter that was sent from Tom Grady, who's an attorney for the clerk in both the declaratory action which we are discussing today and the underlying larger litigation that was initiated by the clerk. And I don't know if you've seen this or not. I know that yesterday at the deposition of Commissioner Coyle I was asked if I would distribute this to you, and I indicated to the attorney that I would, so -- MR. WEIGEL: Jackie, I will interject just to indicate that I have learned, and it can be confirmed by the commissioners present, that this letter was, in fact, distributed to the commissioners ostensibly by Crystal Kinzel on behalf of the clerk. Page 2 — Item #12A (Brock) June 26, 2007 MS. HUBBARD: Oh, okay. Well, for the record I have copies here for each commissioner in the event that you hadn't gotten a copy. I had heard that a copy was going around, but I wanted to make sure that you had a copy. I think the letter is important to our discussion because I think the letter indicates why we're having the closed session today, which is to ensure that you understand how the litigation is proceeding and what costs are associated with that with proceeding in this litigation in our request for declaratory relief. I want to make sure that you understand what's going on. If you have any questions, we can talk about it. The reason the letter is significant is because this is the type of correspondence, if you will, or actions by attorneys for the clerk that lead to matters that should be simple not being simple, because what it does is it serves to confuse the issues, and there's like five pages of it. If you have a copy -- if you've seen a copy, you obviously don't have it with you. So just for purposes of our discussion, the record will reflect that I am showing a copy to the members of the board who are present. And there's one copy that has my notes on it, okay. First of all -- does everyone have a copy? If you will recall, when we appeared before you some time ago, I believe it was in March, it was an event that was brought about because we had recently found out that as a result of the clerk's independent movement of over $1 million from general fund money, which is money that you appropriate and you as a board alone have the authority to see how it is to be spent, this money was moved by the clerk without bringing it to your attention. Now, the statutory rules regarding the actions that have to be taken on a budget by an elected Board of County Commissioners requires that you, at some point during the fiscal year -- and these dates are set out -- you have to approve a final budget. And when you vote to approve the final budget after a period of, I believe it's 90 days, that budget becomes final, and the items that you have appropriated -- Page 3 — Item #12A (Brock) June 26, 2007 let's say you appropriated a million dollars for affordable housing or you appropriated $5 million for the sheriff, or however you appropriated it, it's all revealed in that big binder, it becomes final for the year. And among those budgets that you approve is the budget for the clerk. And you had approved last year a sum of approximately $68,000 for attorney's fees. We requested a report from our independent auditors, KPMG, because the clerk returned a substantially less amount to the board than the clerk had indicated he would return to the board, and we didn't really know what created the problem. KPMG informed us that in spite of the public records request, and it being made by Commissioner Halas to the clerk asking the clerk to tell the board how much money you have expended in attorney's fees, the documents that came back indicate somewhere in the neighborhood of a little under $400,000. KPMG, however, when it traced the funds, it found that the clerk had extended, in one year, $1 million, and the prior year, a little under $300,000 without coming to the board and saying, I'm going to move this money, and that it was general fund money. That's my recollection of the letter from KPMG, which I did not bring with me today. So if I misstated any part of that particular letter, the letter is available. In any event, given the sum of money involved and the responsibility of the board to approve the expenditures of taxpayer money from the general fund, you are left with a dilemma. You had approved a certain amount in your budget that became the final budget. That amount was both increased in terms of the expenditures and increased in terms of the revenues without it coming before you for approval. So -- now, we sent out for an opinion from Nabors Giblin. We thought, before we got the opinion, that a budget amendment could Page 4 — Item #12A (Brock) June 26, 2007 only occur with the concurrence of the board. The law was a little hazy because the Constitution of the State of Florida was amended to change the Article V provision, which is the -- which is the provision that deals directly with the Clerk of Courts. So it's only been two years that the Clerk of Courts has had to draft a budget in a new format. In the new format -- and we are solely dealing with these post Article V amendment budgets -- the clerk prepares two budgets. One is clerk to the Court, and it's clerk to the -- I think the record has to recognize that they came into the room and they're leaving. MR. WEIGEL: Stop. COMMISSIONER HALAS: All clear. MS. HUBBARD: The clerk now -- his budget is now, by constitutional amendment and statutory changes, separated into two parts. One part is the clerk as clerk to the Court over there in that building. We're not concerned with those duties. We're not concerned with any fees that he collects as clerk to the Court. The other half of the -- and the other hat the clerk wears is clerk to the board. And as clerk to the board, he also collects certain fees. These fees include things like marriage licenses, documentary stamps, and things that are not related to lawsuits. The clerk receives income from those fees, and the only part of the clerk's duties that we're concerned with are the clerk as clerk to the board. So just put out of your mind anything that's related to the court system because none of the litigation is related to the court system. Now, the statutes say quite clearly that if a Clerk of Courts is a fee officer, the board can only fund certain aspects of his office, and there are certain things that you cannot fund. And you can only fund those aspects of his office if the clerk comes to you and tells you there's a shortfall in his fee revenue. As a fee officer, the clerk has to -- this is our understanding of the Page 5 — Item #12A (Brock) June 26, 2007 law, this is why we're in court, we think, and our outside counsel thought, or thinks, that if the clerk is a fee officer, the clerk must operate his office, that is the operational aspects of his office, from his fees, and he collects a substantial sum of money, millions of dollars of fees that are not related to the court. The statutes say that if the clerk is a fee officer, the board cannot fund certain things. You can't -- you don't have the authority to fund it. And in order for you to fund certain aspects of a fee officer's office, the fee officer has to show you where the shortfall is. He has to come before and you say, I don't have enough money to pay for these certain items. Now, a person can remain a fee officer, and if there's a shortfall in their fees that they collect, they can come to the board and ask the board to pay for the salary of the fee officer, for the pension costs, the retirement funds, FRS for his employees, and for the social security benefits to the employees. And the statutes seem clear that the only three items you can pay for for a fee officer are those items. And we have a situation where approximately $1,200,000 has been taken and spent from money that belongs essentially to the board without the board's approval. Now, if the -- if the clerk is a budget officer, just as say, the Supervisor of Elections, supervising officer, or the sheriff, then you have the authority under the statutes to budget for that operation of that office in any way that you feel is fair and reasonable. And, of course, they'll generally uphold it as long as it is fair or reasonable. But if those budget officers feel that you've not funded them to the extent they feel fairly entitled to, they can appeal that up to the governor and the cabinet. So we don't know -- he says that he is a fee officer. We say we don't know if you are a fee officer or a budget officer, but we need to find the answer in order to move forward in the budgetary process, because if you are a fee officer and you are allowed to move money Page 6 — Item #12A (Brock) June 26, 2007 around without the board's consent or concurrence or whatever, then that seems to be contrary to what the statutes provide. But if you are a budget officer, you can spend money but you have to coming before the board and ask the board to approve it. On behalf of the clerk, I can understand that the Clerk of Courts might feel it to be unfair or something to have to come to you to spend money for his attorney's fees, but our auditor indicated that the money was moved -- most of the money was moved for attorney's fees. Some of the money was moved for other -- other things, and no amendment to the budget was sought for those items either. Now, the -- so we came before you and we said here's the issue. We need to know if the clerk's a budget officer or a fee officer. If he's a budget officer, then he can spend the money as long as it's proven. If he's a fee officer, he runs his office on his fees. We don't know -- he's sort of like in the middle -- he's acting as a fee officer and a budget officer, and we aren't sure how to advise the board on the legalities of these expenditures. Now, before we came to you -- and I just want to remind you, before we came to you to file this lawsuit, we went everywhere we could to get the answer. We got our outside counsel opinion. He said, the clerk is a budget officer. The -- we sent that letter to the clerk. We said, we think you're a budget officer and you need to come before the board and get an amendment to your budget. The clerk's attorney wrote a letter saying our attorney's mistaken or wrong. He's not a budget officer; he's a fee officer. We did some research. We sent a letter to the -- to Alex Sink, who is the chief, you know, financial officer of the state, and we said, can you tell us, is the clerk a fee officer or a budget officer? They said, no, we don't know the answer to that question. You need to go to court. The auditor general -- we copied the auditor general with the letter we wrote to Alex Sink. The auditor general said, we think this isn't an issue for the court. Page 7 — Item #12A (Brock) June 26, 2007 We went to the attorney general. I called the Attorney General's Office, explained the whole situation. The attorney general said, well, I think this is an issue for the court. The best remedy is to go to court to let the court decide. Then it's done for the whole state. Everything's resolved. You know the answer. So after we had sought somebody's opinion on a state level to answer this question and everyone directed us to the court, we came to you and we asked for your permission to proceed in the litigation. At the time that we appeared before you, we really assumed that the matter would be something that the -- that the Clerk of Courts would want to find out as quickly as possible also. Now, getting back to the letter and the importance of this letter that was received to explain to you why this matter has become more complex, the first thing that I want to bring to your attention is the fact that all of your depositions have been set. Now, the law in the State of Florida essentially says that one commissioner cannot speak on behalf of the board. The board speaks by vote, majority vote. So if-- it's not really relevant to the issue of whether or not the Clerk of Courts -- and I don't mean Dwight Brock. I mean the Office of the Clerk of Courts. We're not talking about the particular person that's in that office. We're talking about the relationship of that office, which is a constitutional office, to the Board of County Commissioners irrespective of who's on the Board of County Commissioners. It needs to be resolved and you need to know if you control the funds or if others can control the funds without bringing that to your attention. So when the depositions were initially set, I communicated with the attorney for the clerk and asked him if-- that -- you know, why are we having these depositions? I don't think they're necessary. What the individual commissioners thought isn't really relevant to the issue. It's just a question of law whether or not he's a fee officer or a budget officer. Page 8 — Item #12A (Brock) June 26, 2007 The clerk did not agree that the depositions were not necessary, and we went back and forth, and finally, as you know we have dates. There have been two depositions taken so far, one of Mr. Mudd and one of Mr. Coyle. The deposition of Mr. Coyle was essentially centered around what Mr. Coyle thought about the vote to approve the litigation, and I don't see how that's relevant really to the issue of whether the clerk is a fee officer or a budget officer, but that's a struggle that will be fought another day. During Mr. Mudd's deposition, however, which was the first deposition, what occurred was pretty shocking. And what happened is, during the course of Mr. Mudd's deposition, he was handed three exhibits, and those exhibits were not what they purported to be. In other words, they looked the same at first glance, but they were, in fact, not the same. And what happened is -- COMMISSIONER HALAS: Not the same, how do you mean by that? MS. HUBBARD: Well, in exhibit number -- I'll look here at the -- I have with me a copy of the errata sheet from Mr. Brock. MR. WEIGEL: Jackie, I'm going to interject. MS. HUBBARD: I mean Mr. Mudd. MR. WEIGEL: Right. But in regard to the depositions, the essence of her point is is that the depositions would appear to be unnecessary in that the facts -- and the facts could apply to what we think is a legal position and the court could make a decision more easily than have a whole protracted time of depositions being taken finding out what people are thinking as opposed to the fact that there is a budget, it is approved on an annual basis, and it -- depending on how it's created and approved and the funds are moved or not brings into issue as to whether this person is a fee officer or not and the proper application of law and the stewardship of money both from the clerk's standpoint and the board's standpoint. Page 9 — Item #12A (Brock) June 26, 2007 And I'll be bringing this back to the fact that this is related to expenditures related to litigation, strategies related to litigation expenditures. And so two depositions are taken, and it appears that they're lending themselves to additional expense and time in response. And from that standpoint, the litigation may be longer rather than shorter. It's a little hard to tell right now. And additionally, this board even, in two days, will be making decisions relating to the constitutional officers, including the clerk, relating to the budget and will be making a statement of the clerk as to whether he's a fee officer or budget officer and the recommendations that come from the county manager in that regard and the responses that he and the clerk have had heretofore in preparation for these hearings. Ultimately -- and again, Jackie, I'll turn it back over to you and Ted in a moment. But ultimately the County Attorney Office serves at your pleasure in regard to the determination, in this case, the determination of whether the clerk is a fee officer and a budget officer, and the baseline aspects of this are, there are significant fiscal issues in regards to your stewardship of funds as well as the clerk's stewardship and utilization of funds, as well as what your county manager tells you and advises you relating to the availability of funds, whether we have tax reform affecting us or not, the issue is already there. But what I'm telling you is that this will proceed. The case has been moved over to Judge Geiger, who has these other two cases that we have with the clerk. We know from that experience that it's been very slow in getting Judge Geiger to have hearings and final disposition of those matters, and he has been a judge that has allowed a lot to be -- a lot to go forward and a lot to go in on the record. So from that -- from that standpoint, this particular case that we're talking about today, is in the Judge -- in the Judge Geiger court, it's in the Judge Geiger practice and procedure, and from that Page 10 — Item #12A (Brock) June 26, 2007 standpoint, part of the litigation strategy discussion is to let you know and to check you -- check with you to see if you wish for us to continue to go forward as we are, and that is to find out, yes or no, whether the clerk is a budget officer or a fee officer in his application in his interaction with you in the budgets that are created both in the past and in the future. And, again, I don't know if Jim Mudd, county manager, wishes to talk in regard to -- MR. MUDD: Sure. MR. WEIGEL: -- the budget aspects themselves. But, again, we, as the attorneys, don't create policy. We attempt to implement getting to court in the best and efficacious, efficient way possible to get a decision for you. And we don't have a court date yet for this. There are some motions that are filed. We're still waiting for court dates on those as well. And to the extent that depositions are being asked for by the clerk's side of things, to the extent that they are either appropriately attempted to be stopped from being held or if being held, being minimized, our counsel is working hard to take care of that and look after the interests of the board and the interests of the taxpayers in this regard to reduce the costs of this lawsuit. But it looks like, you know, we don't have court dates yet on this. One would think that the board's actions relative to the budget in a couple days may have, I'll call it, an accelerative effect in regards to the positions of the parties in regard to this lawsuit. Because if the board makes certain determinations relative to the clerk, he may wish, as dearly as we do, to get to a judge quicker rather than more slowly to find the answer. He'll want the answer he wants. We want the answer, whatever the answer is. COMMISSIONER HALAS: Now to get back on my question. You said that some information was presented in the deposition. Can you elaborate on -- Page 11 — Item #12A (Brock) June 26, 2007 MS. HUBBARD: Yes. COMMISSIONER HALAS: -- what took place or -- MS. HUBBARD: Right. I'm trying to -- and I will. I'm basically trying to explain how the case gets more complex because of what happens. In Mr. Mudd's deposition, for instance, Mr. Mudd was shown a document that appeared to be a budget that was submitted to the board. I mean, the cover looked the same. You know, a budget is pretty thick. And there were actually three documents presented during the deposition. Most -- never mind about the objections, they were done, and everything that was done in terms of trying to protect the county's interest nonetheless. The documents that were actually presented to Mr. Mudd were not the documents that had been presented to the board and approved by the board. And Mr. Mudd was asked to look at a certain page in the document, and in that page in the document, there was language in the version that was shown to Mr. Mudd that was not in the version that you approved. And the language, my recollection of it, is that the clerk basically said, I am -- I function as a fee officer. That was the language that the -- that his attorney kept pointing to Mr. Mudd and saying, isn't that on page, you know, page X of this budget and isn't this the budget that went to the board, sort of. But that budget didn't go to the board. It turned out that was an unsigned draft budget. And the same thing happened with two other exhibits. Now, after the deposition was taken, Mr. Mudd was then -- he then had to prepare an errata sheet. And in that errata sheet, Mr. Mudd had to correct his responses to those documents because he clearly assumed or thought those documents were what they looked like they were, but they weren't. So you have to be careful. That resulted in a motion being filed by me for a protective order because there are certain procedures that the court can invoke to prevent depositions from taking place in which things of that nature Page 12 — Item #12A (Brock) June 26, 2007 occur. And one of the things that can happen is that a deposition can occur under the supervision of a magistrate, or we can ask the Court to at least be present by telephone and available during the course of the deposition, so if we get into an argument like we did at Mr. Mudd's, we can call the Court and have the Court give us direction which way to proceed. We did not have that protection at Mr. Mudd's deposition, and, frankly, I don't think you would want to be subjected to things of that nature. Because, I mean, first of all, if you saw something that looked like a budget, said it was a budget, you'd probably think it was a budget, too, one that you looked at. But these turned out not to be the case. COMMISSIONER HALAS: So they were fraudulent? MS. HUBBARD: Well, you know, did the attorney say, this is the budget that was submitted to the board? Did he actually say that? No. What he said was, take a look at this. Do you recall reading that before, you know, Mr. Mudd has an opportunity to really read it? I mean, it's a thick document. It looks -- the cover and the covers look very -- they look like the same. If you went through there, you would see that it was unsigned and you would also see that it had other little markings on it, but you wouldn't at first. You wouldn't expect to receive a document that wasn't a document that went to the board. CHAIRMAN COLETTA: Why would they do this, Jackie? MS. HUBBARD: Well, my opinion is it was done to get the language in the record, and the reason -- and this is why we come back again to this letter. And I would like very briefly to explain to you why this letter's important to this discussion because this is typical of what creates issues that probably should not be there. First of all, of all the numbered paragraphs in this letter, most of them are not correct. The first paragraph, for instance, says -- I'm sorry -- says that -- that counsel for Mr. Brock -- I stated that counsel Page 13 — Item #12A (Brock) June 26, 2007 for Mr. Brock refused to stipulate to a set of facts in order to place this matter before the Court for a decision on summary judgment, and he says this is not true. But, in fact, I have a copy of the letter that I sent to counsel on September 30th where I specifically asked him to forego any depositions; let's don't have any depositions. In the event you say there are facts in dispute, tell me what those are. And if the record supports your statement of the facts, we'll stipulate to them. And if they don't, I'll get back to you within 10 days so we can try and resolve those issues. This was refused by the attorney for the clerk. The attorney for the clerk also says that we could get a quick and efficient outcome by, I guess, stipulating to his motion for summary judgment. And I can't believe that that's a serious suggestion given that the motion for summary judgment was attached to his answer to our complaint in which he alleged three affirmative defenses which are allegations -- new allegations of fact. He says that we have to attach a written agreement before the clerk can be a budget officer. Now, the statute itself does not require a written agreement. The statute says that the board -- but this is another issue that we wind up -- we will wind up litigating that will cost more money. MR. WEIGEL: Jackie, I'm going to jump in again, and that is, our closed session here is, you know, to talk about matters relating to litigation expenditures, and the point she's making is, is that even through this letter and other practices prior to this letter, are practices being imposed upon this court proceeding that we have, which make it protracted or extensive, and it requires significant response and counter response and things of that nature. And is it in good faith? That's something left to be determined, perhaps, in how this is going forward. Does it have an expense and a use of resources? Yes, it does. To the extent that I report to you as to utilization of the resources that we have in this lawsuit and the others? Page 14 — Item #12A (Brock) June 26, 2007 I, of course, will be continuing to do that, and that's part of the reason for this closed session today. But part -- and so, therefore, the question is, we will continue as you tell us to continue to get to the answer here, which -- Mr. Mudd has not spoken yet, but he probably, if he were to, would tell you, this has multi-million-dollar consequences in terms of your budget process for this year and future years relative to treating the clerk as a fee officer or a budget officer. So there are big dollars involved as well as just calling it operational dollars that we have in an attempt to get to a determination through a court process. We do have some limited time -- MS. HUBBARD: A lot of-- MR. WEIGEL: We have some limited time here, Jackie. MR. MUDD: Can I interject here? Okay. Commissioner, just so you know, since FY-'91 through FY-'06, general fund expense transfer from the board has been $78 million. The clerk turnback on that general fund money has been $28 million. I'm not talking about interest turnback, because that was an agreement made in 2002 whereby he would launder interest monies from impact fees, Tourist Development Council, and then basically bring it back into the board as general fund monies for the road program. And that interest turnback since 2002 has equated to $65 million. So your general fund expense transfer in the clerk turnback, 78 versus 28, has cost the county some $50 million. I believe that in every one of those situations the clerk has acted, by receiving those dollars, as a budget officer. As a true fee officer, you wouldn't have given him anything outside of those things that are statutorily required. COMMISSIONER HENNING: I have a question. MR. MUDD: Can I finish, sir? COMMISSIONER HALAS: Let him finish. Page 15 — Item #12A (Brock) June 26, 2007 COMMISSIONER HENNING: Why are we here? CHAIRMAN COLETTA: Just to be able to determine whether we're going to continue or not continue. I think we're pretty close to making that decision. We've got -- Commissioner Henning is bringing up something. We know all these facts. We've been repeating them over and over again. I, for one, think that there's enough merit to this case to continue this case -- COMMISSIONER HALAS: I'm for it, too. CHAIRMAN COLETTA: -- for a fee officer or a budget officer. COMMISSIONER HALAS: Yep. MS. HUBBARD: We'll have to go out. In this closed session, I just wanted to make sure that you were onboard before we continue. COMMISSIONER HENNING: Well, I have some questions. MS. HUBBARD: Okay. COMMISSIONER HENNING: Now, you said that he collects fees for issuing marriage license and other ones that -- and I forget what that is. MS. HUBBARD: Let's see. I may have a list here. He collects two types of fees. He collects fess that are related to court filings, juvenile filings, and filing of complaints and things of that nature. COMMISSIONER HENNING: Right. MS. HUBBARD: And then he collects noncourt-related fees. COMMISSIONER HENNING: Right. MS. HUBBARD: They're usually things like documentary stamps and people buying homes, wanting to sell homes. COMMISSIONER HENNING: Okay. Transaction types. MS. HUBBARD: Right. And deeds -- recording deeds. COMMISSIONER HENNING: Right. MS. HUBBARD: Recording plat, recording -- just about anything you want to record; records. And he receives a fee for those. Page 16 — Item #12A (Brock) June 26, 2007 COMMISSIONER HENNING: Now, can you tell me -- and that's in the statute 125. That's the responsibility of the Board of Commissioners? MS. HUBBARD: No, no. I'm not saying that. There's a Florida statute that sets out the very types of fees the clerk can collect. COMMISSIONER HENNING: Okay. MS. HUBBARD: And if-- this typically says the Clerk of Court collects, you know, X types of fees, but I don't have the list here. It's a very long list. COMMISSIONER HENNING: Now, in those letters -- actually I think it was the county manager's letters to the Alex Sink. MS. HUBBARD: Oh, those letters. COMMISSIONER HENNING: Those are the letters you were talking about, right? MS. HUBBARD: The prelitigation letters, yes. COMMISSIONER HENNING: Right, right. MS. HUBBARD: I think you were copied. Hopefully you were on all of those times. COMMISSIONER HENNING: Right, right. But I remember some of those correspondence recommendations was, go seek an attorney general opinion. MS. HUBBARD: Correct. COMMISSIONER HENNING: Okay. MS. HUBBARD: And I called the Attorney General's Office and spoke to the woman -- I think she left. She used to be head of the opinion's section. And I explained the situation to her, and she -- this is what she essentially said. She said, if you, you know, we don't like to get involved in these local governmental bodies. And if you can't agree on the matter, which we can't -- and I asked her, what shall we do? And she said, my suggestion is that if you want a definitive answer, you need to go to the court, go to court. Page 17 — Item #12A (Brock) June 26, 2007 COMMISSIONER HENNING: Okay. MS. HUBBARD: It's true. COMMISSIONER HENNING: Pardon me? MS. HUBBARD: It's true. The attorney general opinion, although we use it a lot, it's really not the same as the judge saying -- COMMISSIONER HENNING: Right. MS. HUBBARD: -- this is the law. COMMISSIONER HENNING: You know, I remember you telling me. MS. HUBBARD: Well, we all use them. We use them, especially if there's no judge opinion -- (Commissioner Coyle entered the hearing room.) COMMISSIONER HENNING: Hopefully it's not for convenience sake. Now, you said that KPMG found that over a million dollars of the general fund money was transferred into another account? MS. HUBBARD: No. My understanding was -- and I have a copy of the letter, and the letter probably is the best evidence of what KPMG said. My recollection of it is that what they said was, in the year preceding the last one, the clerk had moved under $300,000. COMMISSIONER HENNING: Under 300,000? MS. HUBBARD: Uh-huh, the first time it was moved. The clerk increased revenues and increased expenditures to that amount. And then the second time, it was approximately a million dollars, most of which went into the attorney fee cost. COMMISSIONER HENNING: Now, you said these were general fund monies that were transferred. MS. HUBBARD: Let me put it this way. I'm not an accountant, but my understanding of the letter was that this was money under the control of the board, not the clerk. COMMISSIONER HENNING: Okay. So -- but we don't -- we don't have that letter, the Board of Commissioners? Page 18 — Item #12A (Brock) June 26, 2007 MS. HUBBARD: I believe -- don't you have a copy of that letter? It was attached to all the letters that went to the Attorney General's Office -- the auditor general and Alex Sink. We attached that letter from KPMG as an exhibit, but I can certainly get you a copy this afternoon. COMMISSIONER HENNING: Okay. MS. HUBBARD: I'll get you a copy this afternoon if you want it. But that we kind of sent around to everyone the same set of letters. This is the one from KPMG. This is the one from our outside counsel. This is what Alex Sink said, and this one gets back to the need to go to court and this needs to be resolved. I will tell you that I had a verbal -- I had verbal communications on numerous occasions with the Auditor General's Office. In my last communication with them I was told that not only did the office, the Clerk of Courts have the opinion in our county that there was some sort of a hybrid constitutional officer, part fee officer and part budget officer, but that was totally incorrect. There are only two roles. Either you're a fee officer or you're a budget officer. There's no hiding it. So, you know, everyone -- we're in court trying to resolve that issue. MR. WEIGEL: Okay. If there are no -- if there are no further questions -- again, I'm trying to keep it concentrated toward the discussion of strategies related to litigation expenditures -- then I would recommend that we adjourn the closed session if there are no further questions. CHAIRMAN COLETTA: Yeah, the only question I've got is a procedural one. When we go back out there, do we go back to the agenda item we had or do we do this one? MR. WEIGEL: 12A is over. This is 12A conducted right here. CHAIRMAN COLETTA: Okay. MR. WEIGEL: So 12B is -- CHAIRMAN COLETTA: Well, I mean, do we have to make a Page 19 — Item #12A (Brock) June 26, 2007 decision out there in front of the public? MS. HUBBARD: Yes. CHAIRMAN COLETTA: Do you do it when we go right out? MR. WEIGEL: Well, you can -- you don't have to -- you mean as opposed to continuing with that other item that's out there, for instance? CHAIRMAN COLETTA: Yeah. The other item's going to take another half an hour to an hour. MR. WEIGEL: You can continue -- go with that other item if you wish, then come up to 12B after that. I would suggest that would be fine. CHAIRMAN COLETTA: Okay. MR. WEIGEL: However, your 12B may only take about a minute. MS. HUBBARD: Is this 12B? COMMISSIONER HALAS: Do 12B when we go back out. MR. WEIGEL: 12B is when you go back out there subsequent to the closed session. So if you wish to do 12B and it's not protracted -- but then who knows what it may be. You could do it right away or you can delay it. CHAIRMAN COLETTA: But why don't we -- so everything's fresh -- MR. WEIGEL: There's no time certain involved in 12B. CHAIRMAN COLETTA: Let's do this. Since it's all fresh in our minds, rather than drag it out, keep you here, get you out the door as quick as possible, let's just go right to 12B here and then go right back to the other agenda item. I don't think it's going to take more than 10 minutes to get through it. MS. HUBBARD: I'd certainly appreciate it. CHAIRMAN COLETTA: Okay. With that, too, I want to be able to allow enough time, too, for you to have lunch. Commissioner Coyle? Page 20 — Item #12A (Brock) June 26, 2007 COMMISSIONER COYLE: Just a question. It has nothing to do with the case, but I think everybody should understand that Tom Grady is running for Garrett Richter's House of Representatives seat. What bearing that has on any of this as far as developing some publicity and a track record, I don't know, but -- MS. HUBBARD: I hope it doesn't add to the expense. MR. WEIGEL: Well, again, that's really not relevant to this discussion, and we want to maintain the closed session and sunshine aspect of this. COMMISSIONER FIALA: Just one more question. I notice, we've been trying to get to court and get this taken care of. And according to this letter, they want to get to court. Are we going to be voting on that today? MS. HUBBARD: No. COMMISSIONER FIALA: Or just move ahead and get this thing to the courts? MS. HUBBARD: We do want to get to the court, but we want to get it to the court in an orderly fashion; and what happens is, things get set for dates. For instance, a court date has been set for tomorrow. Mr. Tripp's specifically asked that it be continued, not set for tomorrow because he wasn't available. I wrote three letters saying, let's not do it tomorrow, and we get a notice late yesterday saying, it's set for tomorrow, not only for this, but other motions that haven't even been filed. COMMISSIONER FIALA: It makes us look like we're trying to delay it by not wanting to go, and I thought we were all -- we all wanted to just move this thing forward and get it done. It doesn't look good for us to try and delay. MS. HUBBARD: Well, you can't -- that's why I'm saying, you can't take a letter like this and accept it at face value, because the letter has implications that are simply not correct, and it has statements that are simply not true, but to -- in order for me to disprove every one of Page 21 — Item #12A (Brock) June 26, 2007 these statements, I would have to -- you'd have to be here for another hour or so. CHAIRMAN COLETTA: No. MR. PETTIT: Commissioners, I think that the real purpose, just to sum up is, that we're here to ask about expenses related to litigation strategy. Our initial litigation strategy is just be quick, short, and inexpensive. We think because of responses we've received, it's not going to be as quick, short, or inexpensive as we thought, and we need to find out if you are willing to proceed forward given that the expenses and -- that have been dictated by that strategy. CHAIRMAN COLETTA: That's what we're going to do. COMMISSIONER HALAS: I want to get an answer to this until we get it all taken care of. CHAIRMAN COLETTA: Okay. Let's go. We're done. (The closed session concluded.) ***** TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICES, INC., BY TERRI LEWIS. Page 22 — Item #12A (Brock)