Loading...
BCC Minutes 12/02/2008 Closed Session (#12A-Brock) MINUTES Brock December 2 , 2008 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA SECOND DISTRICT, POST OFFICE BOX 327, LAKELAND, FL 33802-0327 -'r October 2, 2009 CASE NO.: 2D09-4526 -- L.T. No. : 07-1056-CA Dwight E. Brock, Clerk Of v. Board Of County Comm. Circuit Court Of Collier Of Collier County Appellant/Petitioner(s), Appellee/Respondent(s). BY ORDER OF THE COURT: 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 Illme. rgiratt r^.1411,1 aJernee Birkhold Clerk ',7^V\ , . or 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 COMNIISSIONERS 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- 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] •7 By: 2 / "`./ RI :,.O •ice- • • • : : No. 09 402 2 CERTIFICATE OF SEA CE, 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, 8s' 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- 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] By: 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 Roman 14-point RI : •• ' J.B AU7S$4.DOC 4 7s c- IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR 'i CIVIL ACTIQ? 14i { BOARD OF COUNTY COMMISSIONERS cr. OF COLLIER COUNTY,FLORIDA,on behalf of COLLIER COUNTY,a Political Subdivision of the State of Florida. •' 0 Plaintiff Ys. CASE NO. 07-CA-1056 DWIGHT E.BROCK,CLERK OF CIRCUIT COURT OF COLLIER COUNTY,FLORIDA, Defendant. —/ ORDER GRANTING PLAINTIFF/COUNTER DEFENDANT'S MOTION FOR SUMMARY JUDGMENT;DENYING DEFENDANTICOUNTBR PLAINTIFF'S AzalLiODAMWEIAISZAjaaMIAAILIJant THIS CAUSE came on before the Court upon the Motion for Sumnuuy Judgment filed on behalf of the Plaintiff/Courrter Dom,BOARD OF COUNTY COMMISSIONERS OF COLDER COUNTY,FLORIDA[hereinafter"COUNTY"),directed to the Counterchainos of the Defendant,DWIGHT E.BROCK,CLERK OF CIRCUIT COURT OF COLLIER COUNTY, FLORIDA[6croimEler"CLERKK"];and upon the CLERK'S Motion for Partial Summary Judgment on Count I of the Clerk's Amended Counterclaim. The Court having heard argot alt of counsel and being otherwise Mly advised in the premises,it is thereupon . ORDERED AND ADJUDGED as follows: 1. The Motion of the Plaintift7Counter Defendant.COUNTY,directed to the Counterclaims of the Defendant/Counter Plaintiff CLERIC,be and the acme is hereby granted. 2. The CLERK'S Motion for Partial Summary Judgment on Count I of the Cleric's Amended Counterclaim be and the same is hereby denied. C •1347275.1 ..• 3. The Court having granted mummy judgment in favor of the PlahiiIWCounter Defendant,COUNTY,on all claims which remain pending on the Counterclaim of Defendant/Counts.Plaintiff CLERK,judgment be and the same is rendered on the Counts rchd n of Defendant/Counter Plaintiff,CLERK,in favor of the Pleim iferounter Defendant,COUNTY, and against the Defendant/Counter Plaint;$CLERK,and DWIGHT E.BROCK shall take nothing by this action and the Plaintiff/Counter Defendant,COUNTY,shall go hence without dal. 4. The Court retains jurisdiction to assess omits upon proper motion. DONE AND ORDERED in Chambers at Napless,Collier County,Florida this day, of September,2009. � 2 a-CZ %5Z4/ IRCUIT COURT JUDGE Conformed copies finished to: THEODORE L.TRIPP,JR.,ESQUIRE JACQUELINE W.HUBBARD,ESQUIRE THOMAS R.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 at 6 day of September,2009. B r icial Assistant to Judge ca.a•t317273.I 2 December 2, 2008 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, December 2, 2008 CLOSED SESSION Item #12A - Dwight E. Brock, Clerk of Courts LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special district as has been created according to law and having conducted business herein, met on this date at 12:17 p.m., in CLOSED ATTORNEY-CLIENT SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Tom Henning Donna Fiala Jim Coletta Fred Coyle Frank Halas ALSO PRESENT: Jim Mudd, County Manager Jeffrey A. Klatzkow, County Attorney Jacqueline Hubbard, Assistant County Attorney Page 1 — Item #12A (Brock) December 2, 2008 Item #12A THE BOARD IN EXECUTIVE SESSION WILL DISCUSS: STRATEGY SESSION 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, NOW PENDING IN THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA. - CLOSED SESSION CHAIRMAN HENNING: I call the -- this closed-door session to order and pass it over to the County Attorney's Office. MR. KLATZKOW: I'm going to largely have Jackie talk to you since she is the day-to-day litigator on this, and I'm also going to talk to you about the audit issue. But before we get there, I just want to just remind people that there are two main issues in this case, and the first primary issue in this case is whether or not the clerk has post-audit powers, all right? COMMISSIONER FIALA: What, please? MR. KLATZKOW: Post-audit powers. Can he come in after the fact with his auditing team and go over our books. COMMISSIONER FIALA: First of all, could you please tell me what we're addressing? I mean, we're starting in the middle without starting at the beginning. This is a case from who against who? MR. KLATZKOW: This is the clerk's case. MS. HUBBARD: This is the last part of the clerk's case, right? The last pending lawsuit. MR. KLATZKOW: The last pending lawsuit after four years. MS. HUBBARD: Do you want me to pass these out? MR. KLATZKOW: Sure. MS. HUBBARD: Let me pass this agenda out to everyone. I think everyone has a copy now. And this is a closed session. If it will Page 2 — Item #12A (Brock) December 2, 2008 be easier for me to start the summary and then let Jeff take over after that. Where we are -- this first -- did you get a copy? MR. MUDD: Uh-uh. I'll share with Commissioner Coletta. MS. HUBBARD: Okay. Let me try to outline what has happened. If you look at the first page, and if you can follow me, I'm trying to outline for you as briefly as I can what has happened in this litigation since 2004. COMMISSIONER HALAS: 2004. MS. HUBBARD: 2004 is when the clerk sued the county for what happened at the Ochopee Fire District over a $21,000 donation that was the result of an agreement that was entered into between the fire chief, a developer, and the City of Everglades City. The only thing I want to bring to your attention about that matter is the fact that County Manager's Office investigated this situation, retrieved the $21,000 donation from the volunteer's bank, and actually turned that money over to the clerk on or about February 20th, which was a Friday, I believe. And on that following Tuesday it was placed on the agenda for the board to accept the donation and amend the budget; however, the day before you had your meeting, the clerk filed a lawsuit asking for the money that had already been turned over. And as you know, ultimately that lawsuit was dismissed. However, after you had an audit done -- which I think was a very good idea even though it resulted in having more of an accounting done than an audit -- it showed that the -- that there had been no misuse of the funds, that the funds had remained pretty much in the volunteer bank account from the day the $21,000 was delivered and that most of the other money in that account had been used for the volunteer firefighters, not for the Collier County Fire Department itself. Although the $21,000 donation was obviously for the county's fire department. Now, since that lawsuit was filed, dismissed, and re-filed, we've Page 3 — Item #12A (Brock) December 2, 2008 had a series of judges in the case. We're actually on judge number 11. Now, it's -- there's a long story regarding how we have all these different judges. But suffice it to say that the county has never, to my recollection anyway -- I don't believe we've ever moved to disqualify a judge. We just sort of like, if that was the judge we -- you know, we took it; however, there have been a number of judges that have been either motions to recuse them, motions to disqualify them, or they have sui sponte on their own motions recused themselves because of various matters involving the Clerk of Courts. Technically, because the Clerk of Courts is in Collier County, we can't really use a judge that's from Collier County or situated in Collier County, and none of them want to sit. I don't blame them, and so we have to get judges from Lee County or from some other county in our 20th Judicial Circuit. The last motion to disqualify came shortly after Judge Lundy ruled in the county's favor and basically wrote an order which -- you know, we'll talk about that in a little bit. But in any event, he entered an order saying the court could not extend, transfer or use interest earned on board money for the operation of his office without the permission of the board. The Clerk of Courts continued to -- he appealed that decision and continued to take the board's interest and use it for the operation of his office. The clerk seems to think, based upon his testimony yesterday, that he -- that the only option he really has is to shut down his office or take the interest money. He -- COMMISSIONER HALAS: Shut down his office or what? MS. HUBBARD: Or take the interest money on your earnings. And he was reminded yesterday that he does have a third option, which is that he could come to the board, if he doesn't have enough money, and ask the board to budget for his office. But -- he sort of conceded that, yeah, that might be an option. But his testimony was, I really don't have any other options. I either have to take the interest Page 4 — Item #12A (Brock) December 2, 2008 money or shut down. And we kept reminding him, no, there's a third way. In any event, so where we are is, on the first lawsuit that involved the audit there's -- Jeff was just beginning to explain to you that the county has prevailed in all of those lawsuits. There were three basically stemming out of that first suit filed out of court. We countersued a couple times. Now we're down to this one issue, which is fee versus budget officer which is rapidly outrunning the statute of limitations for recovery, perhaps, not on the civil side though. I think we have five years. And we have the use of board interest. Now, the post-audits we have prevailed. It's pending appeal. I think we're getting into our 15th month now since this matter was appealed. So the Second District Court of Appeals has taken a relatively lengthy time here to rule. Then we have the use of board interest without the permission of the board. We did prevail at the trial court level. Judge Lundy issued an order, and that order has been appealed to the Second District Court of Appeals. There's some decisions that -- well, I don't know if they're decisions, but we need to inform you of some of the costs involved in proceeding in the future and making a determination of how you wish to proceed, which is the purpose of this closed session. Now, the audit issue is currently before the Second District Court of Appeals. The briefs have been written, argue -- oral argument occurred in June of this year, and basically we are awaiting a ruling from the appellate court. We have no immediate costs; however, you need to be aware of, if the Second District Court of Appeals reverses the trial judge and brings this case back and says, go to trial on the audit issue, then you're probably looking at trial expenses that I think Jeff and I have estimated to be probably about $50,000 in trial costs. Page 5 — Item #12A (Brock) December 2, 2008 MR. KLATZKOW: Now, these are our costs. MS. HUBBARD: Yeah, these are our costs. We're not talking about the clerk's costs. MR. KLATZKOW: Keep in mind that the clerk is, in essence, using board money to fund his suit. So these are just our costs. MS. HUBBARD: Okay. So we'll have to wait and hit that road when we get to it. We just don't know what the District Court of Appeals is going to do. The other thing is, the District Court of Appeals may uphold the trial judge's decision. If the District Court of Appeals upholds the trial judge's decision on the audit, then it is expected that the clerk will appeal that decision, which means that if he can get the Florida Supreme Court to entertain the appeal -- and they may, because it involves a constitutional issue between two constitutional officers -- then there will be costs involved in terms of, you know, writing an appeal brief and appearing at the oral argument. In my opinion, those costs will be relatively minimal. I think you're looking at maybe 10-, maybe 15,000, if it goes to the Supreme Court. We don't -- we won't know until we hear from the Second District Court of Appeals. Now, the remaining issue -- and then I'll just turn it over to Jeffrey -- is the use of board interest without the permission of the board. This is a -- this has turned into an extremely interesting issue if you're an attorney. Maybe not as interesting to you guys as the -- being the political arm. But basically, the county has prevailed at the trial court level. And Judge Lundy issued an order. Now, I wanted to remind you that because of a little altercation that occurred the afternoon that Judge Lundy issued the written order between Judge Lundy and the clerk's attorney that was a little heated -- COMMISSIONER HALAS: Which clerk attorney? MS. HUBBARD: Tom Grady. Page 6 — Item #12A (Brock) December 2, 2008 COMMISSIONER HALAS: Okay. MS. HUBBARD: The judge, in the morning before we broke, indicated that we would -- we pointed out to him that there was some typographical and grammatical errors in his written order and that we needed to correct those before it went up to the Second District Court of Appeals. For example, he put deny when we know he meant derived from. You know, things like that are -- can be significant. And so the judge asked us at the break to go and meet, you know, the two opposing attorneys, and come back with a proposed order that both could agree on. Obviously we couldn't get an agreement on the language, not evening to correct the typographical errors only. We were hoping that if we couldn't agree on it that the judge would acknowledge that these typographical errors were in the order and that he would just do it himself. Instead what happened was, when we came back, we basically told the judge we didn't have an agreement, and the judge debated that for a while. There was a, sort of tatter-tat between Mr. Grady and the judge, and the judge -- Grady wanted to proceed on a motion for sanctions against me for withdrawing a motion that I had filed for a gag order earlier that the judge had never really ruled on. But I figured since we won summary judgment, in the gesture of, you know, good faith, let's get rid of one more thing we're arguing about. I withdrew it. And as soon as I withdrew it, a motion for sanctions was filed against me. So that was one of the remaining items before the Court. The judge basically asked Mr. Grady, you know, do you want to proceed on this motion, sort of incredulously. And Tom Grady indicated that he did, indeed, want to proceed on it, and the judge kind of-- well, he was a little angry and he basically said that he hadn't ruled on the gag motion and -- but obviously since it had been filed, there had been a lot less newspaper articles about the case and that we had both argued the case, briefed the case, had a hearing on the case, so he couldn't see Page 7 — Item #12A (Brock) December 2, 2008 how there would be any sanctions against the county for -- you know, for anything. And then he basically stated that that had been his pattern in this lawsuit, which was to file paper after paper and motion after motion and do anything he could to keep the case from going to trial and so forth and so on. That went on. And then shortly thereafter a motion to disqualify the judge was filed because Mr. Grady felt he couldn't get a fair hearing in front of that judge in the future. As a result of the order, it sort of got lost in the process, you know. There were -- we were talking about the order and then we shifted over to this, and then finally what happened is the judge says, well, I'm just going to handwrite in what this order says and make it final and then, Mr. Grady, you can appeal it, okay. So that's what happened. So that order is now before the Second District Court of Appeals, and oral argument is tomorrow. So when we finish this session, I have to drive up to Lakeland for oral argument. But bear in mind that the typographical and grammatical errors are still in that document. And I'm not certain how -- what the Second District Court is going to do. Now, the cost involved in going up to the Second DC are obviously mainly travel expenses, and I estimate those to be about $500. If the Second District Court of appeals returns that case to the trial court -- and we're on our eleventh judge, so we have a new judge now, and it goes to trial, same amount, we estimate that it will probably be about $50,000 to $75,000 if the case goes to trial. If it's returned for a clarification order, that is, if he returns it to the judge and says, you know, look at the record and you tell me what this order should say since we can't make heads or tails of it, then I estimated and Jeff estimated that that hearing might cost up to $10,000, maybe less. Maybe half that. MR. KLATZKOW: Keep in mind again, it is the clerk's position Page 8 — Item #12A (Brock) December 2, 2008 that he has the statutory right to utilize the board's interest as his income. And until we get a ruling from the Second District Court of Appeals to the contrary, he will be utilizing those monies to defend against these -- whatever we do, so -- CHAIRMAN HENNING: Yeah. Before we go any further, just a procedural question. We talked about two separate cases, two different cases. Same parties, two different cases. Was it advertised for those two cases? MS. HUBBARD: I don't know how it was advertised. I'm assuming -- these cases are so connected. MR. KLATZKOW: In the notice of the hearing. MS. HUBBARD: I don't know. CHAIRMAN HENNING: This closed door? MS. HUBBARD: I don't remember. MR. KLATZKOW: Okay. I'll give it to you. You wrote it. MS. HUBBARD: Yeah. But let me just tell you that in my opinion anyway the two cases are so intricately connected that when we talk about the -- when I talk about the Clerk of the Courts, and my role is to inform you and bring you up to date on the litigation involving the Clerk of Courts, I feel it imperative to remind you how interrelated these cases are. The decisions that were reached in the post-audit case as a separate group of cases are very relevant to the pending issue in the interest case, and those rulings we cite repeatedly in all of our briefs and memorandum. So I mean, I could sit here and just talk about the interest case, but you wouldn't get the full picture unless I talked about the other one also, because they're interrelated. CHAIRMAN HENNING: Well, I know this could be a sunshine issue, and I don't want to jeopardize another case against the Board of Commissioners or whatever because of a procedural matter. MS. HUBBARD: Okay. I don't think -- I don't see any sunshine issue. I mean, I think they're both interconnected whether you said Page 9 — Item #12A (Brock) December 2, 2008 two or you said one. MR. KLATZKOW: We're going to be asking direction not on this but on the broader issue. This is just to give you a full flavor of everything. MS. HUBBARD: This is just an overview. CHAIRMAN HENNING: Okay. Commissioner Halas had a question. MS. HUBBARD: I haven't finished yet though. Go ahead. COMMISSIONER HALAS: No, go ahead. Go ahead and finish. I thought you were. Go ahead. MS. HUBBARD: No. The next issue is remedies, and this -- this particular portion of our meeting is extremely confidential. No action can be taken on any of these -- any of this at this closed session, but it's just to make you aware of certain actions that have been taken by the Clerk of Courts which, in our legal opinion anyway, we believe there's probable cause to believe that there have been criminal violations -- MR. KLATZKOW: Let's talk about the audit issue before we get into that. MS. HUBBARD: You want to go back to the audit issue? MR. KLATZKOW: Yes, because that's the crux. This started because we hired an auditor to do a forensic audit. MS. HUBBARD: I haven't even gotten to that one. I thought you meant the audit. MR. MUDD: The Rachlin audit. COMMISSIONER COLETTA: You need to speak up just a little bit. MS. HUBBARD: The Rachlin audit? MR. KLATZKOW: Let's talk about the Rachlin audit, because that's what really precipitated this meeting. MS. HUBBARD: Okay. MR. KLATZKOW: All right. We hired this firm to conduct a Page 10 — Item #12A (Brock) December 2, 2008 forensic audit. The woman came back to us and she said, I can't do my job because of certain actions of the clerk, all right. And you all heard that, and we had a discussion, and I asked that we do this closed session. In my opinion, there are five alternatives that the board can do with respect to this audit, all right. One of those is simply to comply with the clerk's conditions for the conclusion of the audit. And Jackie, those conditions were? MS. HUBBARD: I've attached a letter that was received today from the auditor. It's Exhibit C in your packet with the two resolutions that are up for discussion today. MR. MUDD: The last page? MR. KLATZKOW: The last page. COMMISSIONER COYLE: Well, this is stuff we've already -- MR. KLATZKOW: The clerk has set certain conditions to the audit; otherwise, he's not going to cooperate. And one of the conditions, he wants one of his employees in attendance. I don't have an issue with that. I know our auditor's not happy with that but, quite frankly, whenever I've produced documents, I've always had an employee in the room just to make sure that documents weren't abused. COMMISSIONER HALAS: If there's questions by the auditor then -- MR. KLATZKOW: You have somebody in that room that could then respond. COMMISSIONER HALAS: But he's got this idea that he doesn't have to respond. MR. KLATZKOW: Well, that's one of the issues, all right. My understanding is that if you're going to conduct a full forensic audit, you need to be able to ask questions and get responses. What does this mean? What does that mean? Do you have any back-up documents? Page 11 — Item #12A (Brock) December 2, 2008 And the clerk has taken the position that because of this lawsuit, he is not going to allow his employees to be questioned on this, okay. He's also charging us a dollar per page. He has some statutory argument for that. We have some statutory argument that we're being overcharged and it should be no more than 15 cents a page. MS. HUBBARD: Or no charge at all. MR. KLATZKOW: Or no charge at all. So the questions is, we can proceed under the clerk's positions. You will get some sort of feedback back from your auditor. It will not be a full forensic audit, all right. COMMISSIONER HALAS: That's what we have required. MR. KLATZKOW: That's what you requested. I do not know what the value of it will be to you. I just don't know. All right. The second alternative is we can simply abandon the audit saying that at this point in time it's not worth the expense of continuing and simply -- from expenses, they're simply not worth fighting over it. A third possibility is that you can direct us to go to court for an order to compel the clerk to comply with a full forensic audit, including answering our questions. That's probably going to run us, I don't know, 10- to $15,000 for the hearing, no more than that. I will assure you that the clerk will appeal any adverse decision. We will not get a decision of that for at least a year and a half to two years, so it puts on hold whatever results you're going to get for at least a year and a half to two years. A fourth possibility -- and we tried this once before but were rebuffed, is we can ask the joint Legislative Audit Committee to send a state auditor down here, someone who's independent, to review the books. Now the last time we tried that, the state told us, go to court. Okay. MS. HUBBARD: Go to court. MR. KLATZKOW: They may tell us to go to court again or they may send somebody down. We're of the belief that if they were to Page 12 — Item #12A (Brock) December 2, 2008 send somebody down, you may be looking at a two-year delay, okay. So it's not something you're going to get relatively quickly. And the last possibility, and it's one I am not making, but it is out there and it is your decision, because we can ask the governor to appoint a special prosecutor. A special prosecutor has forensic powers, okay. It would not be a two-year delay. We have -- we are of the belief that the clerk may have committed a, what, two or three misdemeanors. I personally think it's ticky-tacky. I don't think you will ever get a special prosecutor on that, and I think if you ask for one and one's not appointed, it could blow up in our faces. It also takes this from a litigation where we're just trying to figure out who has the powers to do what to being very, very personal if you would go after the clerk in a criminal matter. And I don't know from a political standpoint that that's what you want, but it's out there. Now, those costs to us, Jackie, what would you figure they'd be? MS. HUBBARD: Well, the -- the resolution to the Legislative Audit Committee to have the auditor general look into this would be relatively minimal; however, if the auditor general says, okay, we're going to perform the audit, then the county would be responsible for the cost of the audit, and that could be expensive. I can't tell you how much that will cost, but I would assume that if-- if you're asking for an audit with the scope of the forensic audit that you just requested, which we got a price of 25,000, I would assume it might be that or more than that. How much more than that I couldn't tell you. But I'm sure the auditor general would sit down and discuss all of those issues with the board if they decided to conduct an audit of the past year. MR. KLATZKOW: Now, keep in mind though that the central issues of this case are the clerk's -- whether or not the clerk has post-audit authority over the board and whether or not the clerk can utilize board's interest as income. Page 13 — Item #12A (Brock) December 2, 2008 If the clerk -- if the Second District holds that the clerk cannot use your income -- he cannot use your interest as income, my opinion is this case is over because he's going to have no alternative but to come to the board and be a budget officer again. I don't think he can run his office simply on his fees, all right. And I think all this goes away at that point in time and you'll have a settlement. That's just -- COMMISSIONER HALAS: I don't think we will have a settlement. MR. KLATZKOW: If he can't utilize your interest as income, I don't know what he's going to do. COMMISSIONER COLETTA: He'll appeal. MR. KLATZKOW: No. This is after the appeal when we're all done, okay. And if the final unappealable order is, Clerk, you cannot touch the board's interest as income, all right, he can't run his shop without it. He's going to have to come back -- in my opinion he'll have to come back to the board as a budget officer at that point in time. And a lot of these other issues, I think, then go away. But that might not be for a while. We've been up on appeal for the post-audit for a year and a half now. MS. HUBBARD: Almost fifteen months -- MR. KLATZKOW: You may be looking at two years before you get a decision on this interest thing. MS. HUBBARD: -- lwell, they said they would expedite it, whatever that means. We don't know what that means. MR. KLATZKOW: We don't know. It took me a long time to get a decision out of them in the Naples speedboat case, and that was just a small matter. MS. HUBBARD: How long did that take? MR. KLATZKOW: Over a year. MS. HUBBARD: Over a year. Page 14 — Item #12A (Brock) December 2, 2008 MR. MUDD: What they did mention yesterday in the courtroom -- that's why I'm sitting at this table. MS. HUBBARD: Oh, yeah. We didn't tell you what happened. MR. MUDD: What they did talk about was that the fee versus budget officer case would be heard in June -- MS. HUBBARD: Estimated. MR. MUDD: And they're trying to tie down the different calendars. In particular this has to do with Mr. Grady, because there is a stipulation post leg- -- when he's in legislative session, they basically tolled his time where he can't be divided in between things. So -- and he said he needed some time after the first week of May. They were talking about April, and I had to stand up and say, wait a minute, I've been down this before. Real quick, let's just make sure we understand when session is. Session starts the first week of March and ends the first week in June. So scheduling something in April doesn't solve the problem with Mr. Grady. So they were talking about the first week of June yesterday, and they will de-conflict the calendars in order to set that hearing. MS. HUBBARD: For trial. MR. MUDD: For trial. MS. HUBBARD: In the event they come down and we have to go to trial. COMMISSIONER FIALA: But they keep postponing it anyway. Can it be a definite firm date and not postponed anymore, or can Mr. Grady come back and change that again? MS. HUBBARD: That's what the judge said. He said he wanted a firm date. CHAIRMAN HENNING: Commissioner Halas? COMMISSIONER HALAS: What do the lawyers charge us, our lawyers that we have on the outside, what do they charge us? MS. HUBBARD: Three sixty-three an hour. Page 15 — Item #12A (Brock) December 2, 2008 COMMISSIONER HALAS: Three thirty-six an hour. And what's Grady charging the clerk? COMMISSIONER COYLE: Six hundred. MS. HUBBARD: He was charging 640 the last time we checked, an hour, but we don't know what he's charging now because we haven't gotten a -- you know, we haven't gotten any information from the clerk. COMMISSIONER HALAS: I think he's got a conflict here. He's a representative of the people but yet he's there representing the Clerk of the Courts for Collier County. I've got a real problem with this, and I got a real problem with him charging as much as he has. And what's the cost -- you basically came up with a cost of what it's costing us, the Board of Commissioners. What is it costing the taxpayers for what the clerk is doing? MS. HUBBARD: The clerk has always had a lot of, lot of lawyers. He doesn't -- he doesn't -- you know, he doesn't just have one. COMMISSIONER HALAS: What's it cost him a year? MS. HUBBARD: We estimated he's spending close to a million dollars a year since 2004. COMMISSIONER HALAS: And what's it cost us a year? MS. HUBBARD: We've been spending about 200. COMMISSIONER HALAS: I've got a real problem with this, that this guy's taking advantage of the citizens in this county. That's just -- MR. KLATZKOW: We aren't spending 200,000. MS. HUBBARD: Aren't we spending 200? MR. KLATZKOW: We've spent 800,000 on this? MS. HUBBARD: Oh, no, no. No, we haven't. I agree. We've spent a total of about 450-, but remember there were two other defendants. MR. KLATZKOW: Okay, okay. So we're -- Page 16 — Item #12A (Brock) December 2, 2008 MS. HUBBARD: Yeah, we're -- he's outspending -- he usually outspends us by about 8-1 . But it's difficult to explain those costs to the public. We don't have a means of getting that information out really. Now, what you should know about yesterday, however, is that the clerk was ordered -- the clerk was ordered yesterday to return the $3.2 million to the board that he took out of your interest to use to post the bond. COMMISSIONER HALAS: And when is this going to be returned to us? MS. HUBBARD: Well, he said he's going to return it right away. MR. MUDD: He said as soon as he got a court order that was signed, he would return it as soon as possible. MS. HUBBARD: So that was the good news. The next news is that the -- so that's -- that 3.2 million will be returned to you. The order's going to have to be drafted. Our understanding of the order -- COMMISSIONER HALAS: So that's two years from now, three years? MS. HUBBARD: No, no, no, immediately. That's immediately. MR. KLATZKOW: That's a week or so. MS. HUBBARD: The judge made it very clear that he's to immediately return that money. COMMISSIONER COLETTA: Yeah, question. Where's he going to get 3.2 million? MS. HUBBARD: It's in the registry of the court. COMMISSIONER COYLE: He took it from us. COMMISSIONER COLETTA: So that was our -- from our interest to begin with? MS. HUBBARD: Right. MR. KLATZKOW: He took $3.2 million of your interest and posted a bond. Page 17 — Item #12A (Brock) December 2, 2008 MS. HUBBARD: And has resisted returning it, but now it's being returned. MR. KLATZKOW: It's a most remarkable case. I've never been involved in a case before -- it's sort of like playing a poker game when the other guy can take your chips. COMMISSIONER COLETTA: Or he can see your cards. MR. KLATZKOW: Well, not see your cards, but use your chips. It's -- COMMISSIONER COYLE: He's seeing the cards, too. MR. MUDD: The other part of the ruling that came out yesterday was on -- everything is stayed past yesterday's date, okay. So it's on hold. There's no collection of dollars that were spent, whatever. It's stayed until the court -- the appellate court rules. Everything going forward of yesterday's date as far as your interest is concerned, the clerk will hold one-third of our interest terest as he did last year, okay, and if he continues to spend it as a fee, then it's something you'll have to resolve. But two-thirds of the interest will come to you on a monthly basis and get put into your reserve general fund or whatever in that process, so it won't be held until the end of the year. You will receive a monthly allocation true-up, whatever you want, as far as the books are concerned so that you'll be able to see that on a monthly basis. And that's what the judge decided. That will stay in effect until the appellate court case is over, okay, and at some ruling. MS. HUBBARD: Ruling. COMMISSIONER COYLE: That's not a very favorable result. MS. HUBBARD: No. You've got the other issue -- COMMISSIONER COYLE: What did we do wrong? Why doesn't the judge understand the problem with that? MS. HUBBARD: Because there's a statute that the clerk relies upon, which is Florida Statute 28.33, that says, the clerk will invest the board's interest, and the interest earned will be income to the clerk. Page 18 — Item #12A (Brock) December 2, 2008 It doesn't make any sense, but that's what it says, and that's what the clerk relies upon to claim as much of that interest as he needs to operate his office. So that is the unfortunate situation. Now, we've been able to convince the trial judge that this provision is inconsistent with a number of other provisions, and that it is contrary to the common law that interest follows principal. You own the money; therefore, you should own the interest. And it remains to be seen how the Second District Court of Appeals reviews that, because obviously at some point some thought needs to be given regarding whether or not you want to challenge the clerk's assertion that only the clerk can invest your money, so -- COMMISSIONER COYLE: Well, is the law fairly clear that the clerk has the statutory right to invest our money; we don't have a choice about that? MS. HUBBARD: No. The statutory -- statute is not here. It's here that the clerk can do your investments. It doesn't say that he's the only party that can handle investments for the county. COMMISSIONER COYLE: Have we explored the possibility of getting someone else to invest our money? MS. HUBBARD: Not to my knowledge, although in 2002 -- I don't know if everyone here was on that board or not -- there was quite a to-do about this whole issue, but anyway. COMMISSIONER FIALA: Is that when I asked -- MS. HUBBARD: Yes, you did. COMMISSIONER FIALA: Okay. When the clerk -- actually the clerk had come to me in my office and said something about, if we could give -- you know, if you would give this interest money to me to invest, then you can bring it back and you can put it back in your general fund account and use it for whatever purposes you want rather than it going back to each of the different departments. And I brought it to the commissioners and said, well, what do you think about this? And my question to him was, are you sure we're Page 19 — Item #12A (Brock) December 2, 2008 going to get all of this interest money back? And he said, every penny. MS. HUBBARD: Yes, he did. And I want you to know that at that hearing yesterday, his position -- and I don't have the transcript -- was quite different. His position though was, when he came over and told you that he wouldn't take a penny of that interest, he was talking about the 10 percent interest in the registry of the court. COMMISSIONER COYLE: Lies. MS. HUBBARD: I'm just letting you know that's what happened yesterday. COMMISSIONER FIALA: He never said that at all. MS. HUBBARD: I know. And the transcript is pretty self-evident, but nevertheless, that was what he said under oath yesterday. So I don't know if you wish to even discuss the two resolutions, because the two resolutions would be the only matter -- MR. MUDD: There is another piece of this, and you're -- and we're talking about the interest being income to the clerk. There's another piece of this particular item -- CHAIRMAN HENNING: Wait a minute, wait a minute. Commissioner Coyle? COMMISSIONER COYLE: You've got a quorum. CHAIRMAN HENNING: Well, I'm not sure if you can leave. MS. HUBBARD: If you leave we'd be -- COMMISSIONER COYLE: Hey, watch me. MS. HUBBARD: Oh, you don't want to hear the rest of the -- COMMISSIONER FIALA: We had to stop the meeting the last time. MS. HUBBARD: We do. I think when you exit temporarily, we have to record when you went out and when you came back. COMMISSIONER COYLE: Well, that's okay. MS. HUBBARD: Okay. So we can -- Page 20 — Item #12A (Brock) December 2, 2008 COMMISSIONER COYLE: Let's do that. MS. HUBBARD: Well, we can't -- I mean, you aren't supposed to really -- COMMISSIONER COYLE: You're telling me I can't leave a session, a closed-door session? MS. HUBBARD: Normally -- normally you don't, but if you absolutely have to, I guess we just record when you left and when you came back in. COMMISSIONER HALAS: We have to stop the meeting anyway. MS. HUBBARD: No, we have a quorum. I think we could continue with the meeting, but I'm not positive. COMMISSIONER COYLE: That's all right. MS. HUBBARD: Are you positive? MR. KLATZKOW: I don't see the issue, but okay. MS. HUBBARD: Okay. I'm not positive about that, but we -- MR. MUDD: There's the other piece that came out yesterday, is can the -- can the clerk spend the interest income on his operation, and the lack of vouchers for last year that he did not present to you and took the money anyway causes some grave concern, because even the vouchers say pay on receipt. You never received, except for one voucher -- and that happened, the discussion was in December 11th, 2007, and you told the clerk -- and Ms. Kinzel was on the dais -- to please come back -- you denied the payment. Please come back with the details that basically support this particular charge, and that never -- and that meeting, based on sworn testimony by the clerk in court yesterday, seems to have been lost between you, Crystal Kinzel, and the clerk, because the clerk has no recollection and basically said your denial of that fund basically put him in an untenable position so he took your money anyway. And he said that on the stand yesterday. So there is another aspect as far as the lawful taking of those Page 21 — Item #12A (Brock) December 2, 2008 funds to pay fees for his office. That's where I'll -- that one did come up, and it was of concern yesterday in the courtroom. CHAIRMAN HENNING: Commissioner Halas? COMMISSIONER HALAS: So there's no real way to get to some sort of a quick resolution on this issue, that we can take it anyplace else but in court? We can't take it up to the state? MS. HUBBARD: Yes. You've got two packets and two resolutions, which Jeff discussed briefly. MR. KLATZKOW: Yeah, but that depends upon what your direction's going to be as far as the Rachlin audit goes. You've got a resolution -- if you want to get a state order down here, we've got a resolution if you want to appoint the special prosecutor; otherwise, Commissioner, this is a very slow and painful and expensive process, and it's not going to get any better. COMMISSIONER COLETTA: It's going to delay action forever. MR. KLATZKOW: It's not going to get any better. And, quite frankly, I would expect a legislative effort by the clerk, you know, to solidify his position in this session. MS. HUBBARD: But remember, it's been four years, so you're getting toward the end on the audit one. It may come back or, you look at a more positive note, it may remain and go up to the -- MR. KLATZKOW: To get back to the core issue of this meeting, I need direction as to what you want to do with the Rachlin audit, and that's -- COMMISSIONER COYLE: What? MR. MUDD: Rachlin audit. MR. KLATZKOW: With the Rachlin audit, and that is, do we simply continue the audit based on -- and abide by the clerk's conditions, do we abandon the audit, do we go to court for an order to compel the forensic audit, or do we go to -- do we try to get a state order or do we try to seek a special prosecutor? Page 22 — Item #12A (Brock) December 2, 2008 COMMISSIONER COYLE: Well, you know, I've got a question on all this. Why is it that if we violate the law that we're subject to legal action, not lawsuit, but legal action? Why isn't the clerk subject to legal action by the state's attorney or anybody else if a complaint is filed against him for violation of state statutes? MS. HUBBARD: Well, that's one of the suggestions. MR. KLATZKOW: We could do that, but this is a political decision. This isn't a legal decision. COMMISSIONER COYLE: Yeah. MR. KLATZKOW: I mean, these are misdemeanors. Jackie, why don't you just spell out what these alleged misdemeanors are. MS. HUBBARD: Yeah. They're misdemeanors. And it's not like the clerk has apparently committed any kind of felony. I set them out, and if you'd like, I'd like to go through them with you so you understand the nature of the criminal violations for which we believe there's probable cause -- COMMISSIONER HALAS: Okay. MS. HUBBARD: -- that the clerk committed. COMMISSIONER HALAS: Maybe you could just wrap it up, you know, each one of them. MS. HUBBARD: Okay. We believe that -- well, we know that he did not abide by the statute that requires him to submit an annual sworn statement to the board of how he collected his fees and how he spent his money every year. That's a misdemeanor of the first degree, which I guess the legislature felt it was that important because they made it a misdemeanor of the first degree. He is required under the fiscal reporting statutes to report by the 31st of December of every year to the state Department of Finance or -- COMMISSIONER HALAS: Has he done that in the years past? MS. HUBBARD: No, he's never done it. And -- or submit by the end of the fiscal year a sworn statement to the Board of County Commissioners. We brought it to his attention this year after the end Page 23 — Item #12A (Brock) December 2, 2008 of the fiscal year, and he wrote back and said, oh, you're right. I made a mistake. Here's the sworn statement. COMMISSIONER HALAS: What did he do about the other years that he didn't? MS. HUBBARD: Nothing. COMMISSIONER HALAS: Doesn't the state follow up on this? MS. HUBBARD: I called the state and they basically said, because he has the option of reporting the sworn statement to the board, we just assume when we don't get anything, that the sworn statement had been submitted to the board, all boards. COMMISSIONER COYLE: If it hasn't, what is the penalty? MS. HUBBARD: First degree misdemeanor, which is a thousand-dollar fine and a year in jail, up to, up to. That's the most serious one. MR. KLATZKOW: But he did submit a sworn. MS. HUBBARD: He submitted it late, correct. MR. KLATZKOW: Okay. MS. HUBBARD: And by the way, the statute of limitation on a misdemeanor is two years. So submitted this one late, but it's sworn. COMMISSIONER HALAS: Never since he's been in office, he's never submitted one of these to the state that you could find out? MS. HUBBARD: That's what I've been told by county staff. No, the state's already told me -- MR. MUDD: The state's already told her -- MS. HUBBARD: -- never. MR. MUDD: -- vis-a-vis email that's it's never been submitted. COMMISSIONER COLETTA: We're talking about nickels and dimes. MS. HUBBARD: We're talking about millions. COMMISSIONER COLETTA: I know that, but in this case here, going through this with a misdemeanor against the clerk and the expense to get there -- and in the end they might do nothing more than Page 24 — Item #12A (Brock) December 2, 2008 acknowledge the fact that he's guilty, assign him a $50 fine, and that's it. I mean, is there more to it that I don't know? I mean, if he's found guilty on it, does he -- is he put out of office, or is a misdemeanor just what is something of a minor consequence? MS. HUBBARD: No. It's something that has to be reported -- some of these offenses have to be reported to the governor, and the governor then decides what he is going to do about it. COMMISSIONER COLETTA: Okay. And what has the governor done in the past? There must be some proforma out there. MS. HUBBARD: Normally in my experience -- I can't tell you what the governors have done throughout the years, but generally what the governors do -- well, you know what happened in Collier County. In Collier County there were -- COMMISSIONER HALAS: Stadium Naples. MS. HUBBARD: -- there was Stadium Naples, and there was a special prosecutor appointed who prosecuted members of this commission and other public officials. COMMISSIONER COLETTA: No offense. They're worlds apart. Those people were going to make a personal gain. The clerk is doing something that isn't exactly the smartest thing in the world, but it's not for a personal gain that I know of. MS. HUBBARD: No. COMMISSIONER COLETTA: Tell me what the difference -- you know, if there's something I'm missing here. MS. HUBBARD: No, I don't -- you know, all I can tell you is, this is a decision that you have to make. COMMISSIONER COLETTA: I know that. MS. HUBBARD: All I'm reporting to you is the offenses that we have discovered are misdemeanor offenses. They are criminal acts, but they are not, you know, felonies, okay? COMMISSIONER COLETTA: Okay. But Jackie, help me with this. Have you looked into anyone ever doing something like this Page 25 — Item #12A (Brock) December 2, 2008 before where they've brought misdemeanors that were not criminal acts where the person didn't gain anything personally and what the results of those findings were, or is this just something that's all brand new? MS. HUBBARD: No, it's not all brand new, and we have discussed it with a few people. But in terms of researching every time the governor's done this, I can only tell you what the statute -- COMMISSIONER COLETTA: Has the governor ever done it? MS. HUBBARD: Oh, yeah. The governors have definitely removed people from office -- COMMISSIONER COLETTA: Misdemeanors. MS. HUBBARD: -- and definitely -- they have conducted investigations on any criminal -- on criminal activity. It just depends. Normally what happens that you should be aware of though is that public officials, if they are charged -- if someone files a complaint against a public official based upon probably cause -- now all of these are based upon probable cause. In this particular instance, the county's white-collar division is headed by the clerk's brother who may or may not -- even if it weren't the clerk, may or may not decide to do anything about a first-degree misdemeanor. I mean, I don't know how seriously they take it. CHAIRMAN HENNING: His brother retired. MS. HUBBARD: Oh, he's gone now. I wasn't aware of that. So it's up to you. That's one of them. MR. KLATZKOW: What's the second one, Jackie? MS. HUBBARD: The next one is, according to our budget director, on October 23rd the clerk violated Florida Statute 136.05 by overdrawing your general fund by $1.5 million. Now, it's unlawful to overdraft and it's unlawful to sign a warrant for any payment that -- in excess of the expenditure permitted by law. Now, the law says that you determine a budget and a budgetary amount for each fund. And so if a check is drawn on your budget for Page 26 — Item #12A (Brock) December 2, 2008 $1.5 million more than what you've budgeted, than according to Chapter 129, that is a second-degree misdemeanor. COMMISSIONER HALAS: So he made a check out for funds that he didn't have there? MS. HUBBARD: Well, that's what we say. Of course, he says that's not true. So all of these -- you know, like any other issue, there's going to be an issue of fact. COMMISSIONER HALAS: How can we prove that there was no funds there? MS. HUBBARD: Well, I mean, I've seen the documents that our budget director has prepared that shows that the funds were not there. COMMISSIONER HALAS: Okay. So our budget director has up-to-date knowledge of the money that is in, let's say in this case, the checking account. MS. HUBBARD: It was the general fund account, I believe, yes. COMMISSIONER HALAS: Okay. And so our budget director realized that the funds weren't there, but the clerk made a check out for those funds that weren't in there? MS. HUBBARD: He overspent, according to our budget director, by $1.5 million, which he managed to do because -- COMMISSIONER HALAS: Now, again, this is a misdemeanor? MS. HUBBARD: All misdemeanors. MR. KLATZKOW: Did the check clear? MS. HUBBARD: The check cleared, we believe, because it was in a pooled cash account. So although he overdrew one fund, there was sufficient money in the pooled cash account to cover any check. It's just that you're supposed to -- if you have a general fund amount, you're supposed to only spend up to that amount even if it is in a pooled cash account, so obviously money was taken from some other fund. COMMISSIONER COLETTA: Okay. Jackie, let's play a little with this whole darn thing. We're going with something where we Page 27 — Item #12A (Brock) December 2, 2008 have no idea what the success ratio has been out there on these types of charges in the past. MS. HUBBARD: Right. COMMISSIONER COLETTA: Never been researched. And to allow you to go forward with it and start spending the money and go through it, we have no idea what we're going to get at the end. Even if they find him guilty on the whole thing, it might be a slap on the wrist and off he goes, and a lot of money and time is spent. The other part of this is, is the complexity of the county government being what it is and the clerk's ability to be able to start tearing things apart, is he going to find similar things in county government where all of a sudden we're going to have this thing for years afterwards, misdemeanors going back and forth between two entities of government? MS. HUBBARD: All I know is this. My job was to inform you of what has occurred. I don't really have an axe to grind one way or the other. So it's up to you to decide whether you want to take the violations any further. And in my opinion, anyway, and I think Jeff agrees with me, you only have a couple of ways to go. You can ignore the violations, you can take them to the State Attorney's Office, or you can petition the governor to come down and look at them. That's the only options that you have. COMMISSIONER COLETTA: Well, once again, now, to petition the governor to come down and take a look at it, a little bit different than the first part where we just send it to the special attorney. In other words, we -- MS. HUBBARD: State attorney? COMMISSIONER COLETTA: State attorney. MS. HUBBARD: We have talked about that, and we've estimated that our outside counsel could do that and talk to Steve Russell about these matters and make a report back, and we estimated Page 28 — Item #12A (Brock) December 2, 2008 that that would cost probably under $2,000. COMMISSIONER COLETTA: Okay. If we did that, then we know if we've got a chance in the world of going forward, at least an idea. MS. HUBBARD: I think that Steve Russell would be pretty straightforward with you about it and would probably give the board good advice. I would think so. I have no reason to believe that he wouldn't. COMMISSIONER COYLE: Well, there's no chance, absolutely no chance the governor is going to do anything about this. There is no chance the legislature is going to do anything about this. So unless you find another alternative -- MS. HUBBARD: I don't think there are any -- COMMISSIONER COYLE: -- there's nothing you can do. Now, that brings you back to the auditing case. If you can't compel the clerk to abide by the law and stop overcharging people for copies of documents they request, if you can't compel that he provide public records for review, then I don't know what we can do about that either. MR. KLATZKOW: Well, we can go for an order to do just that, compel him to cooperate in a forensic audit. COMMISSIONER COYLE: Okay. MR. KLATZKOW: I'm just saying by the time everything's said and done and you've got the final appeal of the audit, you're probably looking at two years. That's just the history of this case. I mean, I remember when we started, Commissioner, and you just said, I just want to know what the law is. That was four years ago. I mean, it's been a very frustrating and time-consuming and expensive endeavor. COMMISSIONER COYLE: So really the least costly alternative is to merely do nothing and wait for the appellate court to make a decision? Page 29 — Item #12A (Brock) December 2, 2008 MR. KLATZKOW: Yes. MS. HUBBARD: You could do that. COMMISSIONER COYLE: Or, number two, remove the clerk as the investing authority for our funds and find somebody else to do it. MS. HUBBARD: Well, at a minimum, I suppose, we could get an outside counsel not involved, as we are in this litigation, to give us an opinion about that. We don't have an opinion about that. MR. MUDD: I've talked to -- I've talked about this a little bit, okay, about the comptroller versus the clerk, and it's only happened in one county in the State of Florida, and I believe that's in Alachua. And in that particular case, the comptroller, they've separated the clerk function. The clerk for the courts does nothing but the court stuff, and the comptroller works for the Board of County Commissioners and only does board stuff. The -- outside of a charter, my read now -- and I'm going to need some kind of a legal opinion. My read has been, if you're a non-charter county, you have no other way to invest funds except through the Clerk of Courts, okay. I might -- from what I've read -- I could be proved wrong in that particular case, but I believe that is the case, in recent -- and it's been a recent legislative piece since 2000 where that's come about, so it's there. I will tell you that -- and, again, I'm not advocating one way or the other. I will bring you back to the Ochopee chief-- excuse me -- the Isles of Capri chief, okay. The clerk filed a claim -- an act, criminal act, whatever you want to call it, with the state attorney, and the state attorney took it to court, okay, and I believe there was a settlement that basically stated that Chief Rod committed a second-degree misdemeanor. And I remember the clerk coming, after that was over, to the board and said, your chief committed a crime, and that was in a boardroom at a podium. Page 30 — Item #12A (Brock) December 2, 2008 And so that was prosecuted by the state attorney, so they have prosecuted misdemeanors before. And I believe each one of the particular misdemeanors are prosecuted separately. They're not grouped. And I might be wrong. I'm not an attorney. So you do have that option if you -- if that's what the board's desire is. COMMISSIONER COYLE: Well, here's what bothers me. The complexity of these cases is such that if we can't -- if we cannot convince a judge that the clerk is not entitled to take our interest money even when he has said he will not take your interest money, if we can't make a convincing argument of that to a judge and get a judge to understand that, there's no way in hell we're going to get anybody convicted on a misdemeanor for overdrawing a bank account where really there was money in there. It just wasn't in the right account. It was paid by the bank so it clearly wasn't an overdraft. And so they're trying to pin him up on a failure to submit a sworn statement when it seems that nobody in the state really cares and that we apparently didn't really care and nobody was hurt as a result of it, there's no way in hell you're going to get anybody convicted on that stuff. MS. HUBBARD: I don't disagree with you. COMMISSIONER COYLE: You're going to look foolish in court trying to make those arguments. MS. HUBBARD: I don't disagree with you except for one thing. We did convince the trial court about the interest. I want to make sure you understand. COMMISSIONER COYLE: He's still getting a third of it. MS. HUBBARD: That has to do with a stay. What happens is, when a public official appeals a judgment, there's a whole line of law that says he is entitled to an automatic stay -- COMMISSIONER COYLE: Okay. These -- MS. HUBBARD: -- and the trial judge can determine the conditions of those stay -- of that stay. The issue before the trial judge Page 31 — Item #12A (Brock) December 2, 2008 yesterday was not whether or not the original judge was correct because the original judge -- that's before the second district. The issue before the judge yesterday was to determine what the conditions of the state, if any, should be, which is kind of left up to the judge's discretion. He decided to be more Solomon-like in terms of how he would enforce the conditions between the parties pending this decision before the first DCA that's going to be argued tomorrow. COMMISSIONER COYLE: But that legalizes the clerk's seizure of 30 percent of our funds during the interim. MS. HUBBARD: Uh-huh, yes. COMMISSIONER COYLE: Okay. There's absolutely nothing we can do to get them back. There's no way we can punish him for doing it. There's no way we can allege he violated the law. MR. KLATZKOW: You can't get back any of the money, sir, because it's all county money. It's not like it's a separate fund. That's -- it's like asking for a bond to be posted. He just takes county money to post the bond. It's a very unique case. COMMISSIONER HALAS: Who has the -- in a home-rule county, who has the authority over the constitutional officers? Do constitutional officers have over -- do they have the power over the commission or does the commission have the utmost authority? MR. KLATZKOW: My view is this. My view is that the Board of County Commissioners is the legislative body for the county. COMMISSIONER HALAS: Okay. MR. KLATZKOW: You also have separate constitutional officers, okay. They get, in my opinion, a budget from the county commission which allows transparency so that people could understand what was -- what is being spent -- COMMISSIONER HALAS: That's exactly right. MR. KLATZKOW: -- by each of the constitutionals, okay. The clerk is relying on a statute, all right? He didn't make this up. He's relying on a statute saying that I've got the right to utilize your Page 32 — Item #12A (Brock) December 2, 2008 interest as my income. Now, at the end of the day, I think that's bad government because it takes away -- it takes away the transparency from the entire system. The purpose of the constitutionals coming to the board for the budget is so that they have to tell the board, this is how much we need, this is what we're going to spend it on, and the board has the inherent power to audit them if they think there's any hanky-panky going on. COMMISSIONER HALAS: Exactly. MR. KLATZKOW: What the clerk is doing -- and it's based on statute -- is saying, I'm different, okay. I can utilize your interest as my income and I don't have to account to you. COMMISSIONER HALAS: But yet he has authority to come back and audit us if we wants. MS. HUBBARD: Not until -- MR. KLATZKOW: Well, that's what he argues. COMMISSIONER HALAS: Well, that's right. MR. KLATZKOW: That's right. MS. HUBBARD: Yeah. He lost that argument so far. MR. KLATZKOW: That's right. But that, in a nutshell, is what this case is really about, and we'll see. CHAIRMAN HENNING: Well, we're about 1 :50 -- 1 :15 right now. COMMISSIONER HALAS: Well, okay. MR. MUDD: The most pressing question that we've got in front of the board -- MR. KLATZKOW: Is the audit. MR. MUDD: -- to get an answer is, what do you want us to do with the Rachlin auditor. So you want to basically -- she's basically come up on that page and said, she cannot do a forensic audit. So you have to tell us, do you want us -- and there was $25,000 set aside for that particular case. Do you want us to continue to do something less than a forensic audit with the Rachlin auditor which becomes an Page 33 — Item #12A (Brock) December 2, 2008 accounting? The last time we did an accounting was for the Ochopee -- and since I've been the county manager, an accounting was the -- with an outside accountant was the Ochopee fire boat instance. And when we did that, it -- the clerk did not recognize it as an official audit, okay, in the court record. So you can get a forensic audit and get it -- excuse me. You can't do a forensic audit under the conditions that have been specified by the clerk's attorney. So you've got money that's spent out of the 25,000 because the auditor and her team have come to the county a number of times to try to get the audit done and have been turned back because the conditions weren't favorable, in their opinion, in order to get that done. So you can continue on that. And the second pieces of this is, the clerk has said if-- you are not going to do anything with my records until you pay -- MS. HUBBARD: Sixteen thousand. MR. MUDD: -- $16,000, okay, for copies. Now -- MS. HUBBARD: Which we believe violates the Sunshine Law. MR. MUDD: Now, Mr. Klatzkow mentioned that the clerk goes to a record that says, for court documents that he certifies, it's a dollar a copy. We go to a statute that says it's 15 cents, and any -- and some payment of staff time after an hour in order to get that done and that -- and we mirror that statute in your ordinance. And there is also a statute that says, because you are an agency, a county government, that the clerk can't charge you anything and, therefore, he can't charge you -- and that was argued in the hearing -- in that hearing yesterday -- COMMISSIONER HALAS: And what was the outcome of that? MR. MUDD: -- with the clerk on the stand. Well, it -- he didn't have a good answer based on the questions that Mr. Tripp gave him after he read him the statutes, had him read the statutes and referenced other issues. It's -- and you'll have to look Page 34 — Item #12A (Brock) December 2, 2008 at the court -- MS. HUBBARD: He was cross-examined on that. That wasn't an issue for the judge to decide. MR. MUDD: No. And so -- but the reason he was cross-examined on it was the board -- because the clerk said, this was the basis for the fees that he invoiced you for for 12 months, which he only presented 11 months of it, and charged you $4 million for. And so it was a point in the courtroom because it basically reinforced -- or was the structure by which those fees came about in the clerk's -- in the clerk's side of this equation. But he's not going to let you do anything unless you pay the $16,000. So if you're going to get a forensic -- if you're going to get something less than a forensic audit, it's still going to cost you 25,000 -- which you're not up to that point right now -- and it's going to cost you an additional 16,000 to get those copies, and that's before he'll even let you in the door. So you are now, as a board, up to $41,000 for this particular audit, and it's not really an audit. It's going to be an accounting, and it's not going to get what you wanted. COMMISSIONER HALAS: Something's not right, the way that this is loaded on one side and yet we had a commissioner that said she would be willing to give up her time to sit over there to watch the audit to make sure that it was done in the best interest of the citizens here in Collier County. MR. KLATZKOW: If you want the forensic audit, then what you need to do is direct us to compel one. If you just want an accounting, we can just go forward and, as Mr. Mudd said, it's going to run at least $41,000, or we can abandon the order. MS. HUBBARD: Well -- or think again about just sending it up to the legislative auditing committee for their review. I mean, that still costs -- that doesn't cost very much. MR. KLATZKOW: I don't think you're going to get a state Page 35 — Item #12A (Brock) December 2, 2008 auditor down here, Jackie, and -- COMMISSIONER HALAS: What about going to the state's attorney? MS. HUBBARD: That's the other option, is to direct your counsel to confer with -- COMMISSIONER HALAS: And then that way we can get some idea where it stands if we -- with the -- where we stand on that issue? MR. KLATZKOW: That's a different issue from the audit. COMMISSIONER HALAS: Yeah. MR. KLATZKOW: And we can do that if that's what you want. COMMISSIONER COYLE: Is it different from the audit? Is the violation in the Sunshine Law something that you would refer to the state's attorney? MS. HUBBARD: All of these are potential violations of misdemeanors. The Sunshine Law violation, I think, states that if you believe that a public officer has knowingly violated the Sunshine Law, that officer is subject to suspension, removal, or impeachment. That has to be -- I mean, the only obligation that I think we have as your attorneys is to bring information to your attention that we believe that these misdemeanors have considered. These are factual issues. The clerk, as I said, takes the position that the statement as interpreted by Commissioner Fiala as to not taking a penny of the interest money was misinterpreted and he was talking about the -- putting in the court -- you know, the court record at the courthouse, not your interest. The clerk is going to say that he did not withhold information from the auditor. The auditor is going to say that the clerk's office did. You have a letter from the auditor who says that she was prevented from performing an audit. You have a statutory right to have an audit performed. Chapter 125 says you as the board have the right to have an audit Page 36 — Item #12A (Brock) December 2, 2008 of any public officer. COMMISSIONER COYLE: Why don't we just ask you then to go talk with Steve and present this information and come back with his recommendations. MS. HUBBARD: If that's what you want to -- whatever you direct us to do, that's what we will do. COMMISSIONER COYLE: Well, that seems to be the only alternative. I mean, it's worthless going to Tallahassee. You're not going to get anything out of Tallahassee. You know, you have to remember that the people involved in this case helped get Governor Crist elected. COMMISSIONER HALAS: Especially his attorney. MS. HUBBARD: Well, you know, I don't know about that. COMMISSIONER FIALA: Oh, yeah, and Governor Crist came down here to support him in his campaign. He flew in just for that. MS. HUBBARD: It's just a remedy that -- it's a remedy on the books. One would hope that the remedies have some -- COMMISSIONER COYLE: Not in Tallahassee. MS. HUBBARD: They don't abide by the law. COMMISSIONER COYLE: No. MS. HUBBARD: All right. Whatever you guys decide to do. Let me have these back. Whatever you decide to -- COMMISSIONER COYLE: I'd rather see you go talk with the state's attorney and see what he'll do with it, if anything. And -- MS. HUBBARD: All right. What I would prefer, and I think Jeff would too, is to simply have that direction given to our outside counsel to confer -- since he can do it at very low cost and he's in Fort Myers -- to confer with Mr. Russell about possible misdemeanor violations. COMMISSIONER HALAS: And I would try to make sure that Mr. Russell understands the importance of this for the citizens of Collier County in regards to the shenanigans that have been going on Page 37 — Item #12A (Brock) December 2, 2008 for a number of years. CHAIRMAN HENNING: Okay. Well, wait a minute. Terri, you need to record the time of the ending of the closed-door session. (The closed session meeting concluded.) ***** There being no further business for the good of the County, the closed-door session was adjourned by order of the Chair at 1 :25 p.m. TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICES, INC., BY TERRI LEWIS. Page 38 — Item #12A (Brock)