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Agenda 04/08/2008 Item # 9A Page 1 of 1 Agenda Item No. 9A April 8, 2008 Page 1 of 1 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 9A This item to be heard on Wednesday, April 9, 2008 at 9:00 a.m., immediately following a coffee reception at 8:00 a.m. in the BGe Conference Room. Applicant interviews by Board of County Commissioners for the 5 finalists for the County Attorney position. Meeting Date: 4/812008 9:00:00 AM Prepared By Sue Filson Executive Manager to the BCe Date Board of County Commissioners Bce Office Approved By Leo E. Ochs, Jr. Deputy County Manager Date Board of County Commissioners County Manager's Office 312612008 11 :30 AM .._. file://C :IAgendaTestlExportl 1 04-April%208, %202008109, %20BOARD%200F%20COUNT... 4/2/2008 #./~:l-9A A,wi r qf2co~ MEMORANDUM DATE: February 29, 2008 FROM: Board of County Commissioners Sue Filson, Executive Manager to BCC ~ Candidate Questionnaire TO: RE: Attached please find the responses from Andrea Sims, Waters-Oldani Executive Recruitment in response to your questions concerning the candidate questionnaire as follows: . February 29, 2008 memorandum regarding Candidate Questionnaire . Due Diligence Questions . Department of Labor Notes I previously forwarded to you the 18 page questionnaire with the amendments (crissed out) she suggested, as well as the final 8 page document. Please let me know if you have any questions or need additional information. Page I of3 filson_s From: Andrea Sims [asims@watersconsulting.com] Sent: Friday, February 29, 2008 1 :05 PM To: filson_s Subject: Candidate Questionnaire Attachments: DueDiligenceQuestions.doc; Status2.2908.doc Hi Sue, I am enclosing a memo as well as a copy of the due diligence questions. Let me know if you have any further questions. Thanks. Andrea p.s., here are some notes with the citing from a Department of Labor Website that may be helpful, although I think most of this is already covered. The Successful Interview - What NOT to DO The following list is comprised of subject matter that is widely regarded as "off-limits" for discussion in an interview by employment experts. Most of these subjects relate directly to federal and state employment laws. Legislation covering equal employment opportunity is extensive and complex. Check not only federal laws, but also your own state's laws and guidelines. Remember, state laws vary! Consult an attorney for legal advice (before you begin the search process for a new employee). In an interview, or on an employment application, do not ask questions... ..concerning the age of the candidate. Be careful using the words "over qualified" with older candidates. ..about their arrest record (this is different from convictions - in most states, it is permissible to ask if the candidate has ever been convicted of a crime). 2/29/2008 Page 2 of3 ..about race or ethnicity ..concerning the candidate's citizenship of the U.S. prior to hiring (It is permissible to ask "Will you be able to provide proof of eligibility to work in the U.S. if hired?") ..concerning the candidate's ancestry, birthplace or native language (it is permissible to ask about their ability to speak English or a foreign language if required for the job). ..about religion or religious customs or holidays. ..concerning the candidate's height and weight if it does not affect their ability to perform the job. ..concerning the names and addresses of relatives (only those relatives employed by the organization are permitted). ..about whether or not the candidate owns or rents his/her home and who lives with them. (asking for their address for future contact is acceptable). ..concerning the candidate's credit history or financial situation. In some cases, credit history may be considered job-related, but proceed with extreme caution. ..concerning education or training that is not required to perform the job. ..concerning their sex or gender. Avoid any language or behavior that may be found inappropriate by the candidate. It's his/her standard of conduct that must be met. ..concerning pregnancy or medical history. Attendance records at a previous employer may be discussed in most situations as long as you ')non()()~ Page 3 of3 don't refer to illness or disability. ..concerning the candidate's family or marital status or child-care arrangements (it is permissible to if the candidate will be able to work the required hours for the job). ..concerning the candidate's membership in a non-professional organization or club that is not related to the job. ..concerning physical or mental disabilities (asking whether the candidate can perform the essential job duties is permitted.) The ADA allows you to ask the applicant to describe or demonstrate how they would perform an essential function (s) when certain specific conditions are met. Check the law or consult with an attorney before moving forward. Remember--When in doubt, ask yourself if the question is job-related; if not, don't ask! For more information: The U.S. Equal Employment Opportunity Commission homepage: http://www.eeoc.gov/The Americans with Disabilities Act (ADA) homepage: http://www.usdoj.gov/crt/ada/adahom1.htm I (National Women's Business Center, Washington, D.C., 6/97) ********************************************************************** Andrea B. Sims Waters-Oldani Executive Recruitment A Division of The Waters Consulting Group, Inc. 5050 Quorum Drive, Suite 625 Dallas, TX 75254 216.397.2971/direct 972.481.1950/main 972.481.1951/fax -Offices in Dallas - Austin - Seattle - Cleveland - ********************************************************************** 2/29/2008 To: Sue Filson Executive Manager, Board of County Commissioners From: Andrea Sims Waters-Oldani Executive Recruitment S ubj ect: Candidate Questionnaire Date: February 29,2008 I am sending you this update that goes through the original questionnaire, line by line, for clarity's sake. In my review, I am also removing information that is helpful not to have too many places due to concerns about identity theft, etc. I am also attaching the Due Diligence Questions that were asked of all semifinalists and provided in the Interview Notes earlier. GENERAL: Remove Social Security Number; we have that information from the candidates for the background checks that we perform. Remove Date of Birth, we have that information from the candidates for the background checks that we perform. Remove Section 7 - Marital Status, Spouse's Name/Occupation, and names/addresses of ex -spouses; illegal to ask. Remove Section 8 - Children, their addresses, occupation; illegal to ask. HEALTH: Questions 10, I la, lIb, 12a, 12b, 13, 14, 15, 16, 17, 18,20,21,22 are all addressed by the following questions from the Due Diligence Questions. All candidates' responses have been noted on the interview notes: 3. Have you ever been subject to disciplinary suspension or probation in your adult working career? If so, explain the circumstances. 4. Have you ever been dismissed from a position for cause? If so, explain the ci1'cumstances. 5. Have you ever been subject to civil or criminal lawsuits for whicb there wa's finding of fault, an out -of-court settlement, fine or other restitution granted? (This includes any EEO complaints, civil suits, or allegations of wrongdoing where your personal actions were the cause of a lawsuit.) 6. Have you been the subject of any EEO, sexual h:u;assment or discrimination complaint? What was the outcome of these allegations? 7. Is there any reason why you could not fully perform the duties of this specific position? COLLIER COUNTY COUNTY ATTORNEY SEARCH DUE DILIGENCE 1. Have you ever been subject to a question of ethics, malfeasance or misfeasance in the performance of duties? If so, explain the circumstances. 2. Have you ever been investigated or censored by a grand jury, board of inquiry or similar body? If so, explain the circumstances. 3. Have you ever been subject to disciplinary suspension or probation in your adult working career? I f so, explain the circumstances. 4. Have you ever been dismissed from a position for cause? If so, explain the circumstances. 5. Have you ever been subject to civil or criminal lawsuits for which there was fmding of fault, an out-of-court settlement, fme or other restitution granted? (This includes any EEO complaints, civil suits, or allegations of wrongdoing where your personal actions were the cause of a lawsuit.) 6. Have you been the subject of any EEO, sexual harassment or discrimination complaint? What was the outcome of these allegations? 7. Is there any reason why you could not fully perform the duties of this specific position? 8. After an offer of employment are you willing to undergo a pre-employment physical if one were required? After an offer of employment are you willing to undergo a pre-employment or random drug screening test if one were required? Are you willing to submit to testing by an organizational/industrial psychologist or management testing firm to determine fitness for duty? THE WATERS CONSULTING GROUP, INC. PAGE. E-l THIS DOCLJi\n~NT IS COPYRICJ-ITlm AND PROPRIET:\RY INFORMATION. TilL') DOCl'lvlr,NT OR I\NY PORTIONS OF THIS DOCUMr:,NT IS NOT TO HF REl'R(1)lTCED [.'OR l\NY REASON w'rTl IOL1T TilE WRITll\N r:ONShNT 0['" wee;, INC COLLIER COUNTY COUNTY ATTORNEY SEARCH DUE DILIGENCE 9. Have there been any accusations or charges made against you based on conflicts of interest, improper behavior or misuse of funds or equipment, or major violations of agency or company policy? (Conduct that is clearly prejudicial to the good order or discipline of your current or past agencies/companies) 10. Have you ever been convicted of a felony offense? 11. Have you ever been subject to bankruptcies, poor credit or financial insolvencies that would prevent you from being bonded or placed in a position of public trust with fiduciary responsibilities? 12. Are there any special interest groups, citizens, employee groups, collective bargaining groups/ unions or media organizations with which you have had adverse dealings? Would any of these groups be prone to discredit your candidacy if your dealings with tbem were to come to public light? 13. Is there anything in your background that could be construed as potentially embarrassing, unusual, controversial or disqualifying in nature to a public or non- profit sector employer regarding your past employment status or personal conduct? This would include behaviors, habits or practices that might disqualify you from consideration for this position. 14. Is there anything about you that could be potentially embarrassing or disruptive to the candidate evaluation process if it were learned at a later time? It is imperative that we hear this information from you now, rather tban from an outside source or a negative reference. You do understand that via your affirmative or negative responses, as the case may be, you arc declaring that you are free from any past practices, behaviors, legal encounters or actions that would tend to disqualify you, or inhibit further considcration of your candidacy. If information is omitted now and learned later with regard to these questions, your status as a candidate could be immediately terminated or relinquisbed. THE WATERS CONSULTING GROUP, INC. PAGE. B-2 1'1-IIS !)OCUi\'lENT IS COPYIUC;I-lnm AND PROPRTFTl\RY INFORMt\-nON. THIS DOClIlvll':NT OR i\NY l'UHTIONS OFTl-IlS DOCU..'!ENT IS NOTTO BE IU,PRODUCED FOR ANY REASON \\JTl10lT'['TIIE WIUI'll,:N C:ONSL':NT OJ,' \n:c, INC. PRESENTED TO COLLIER COUNTY, FL EXECUTIVE RECRUITME~T FOR THE DIRECTOR OF COUNTY A TTO~'\JEY IIFI WATERS~OLDANI ~ EXECUTIVE RECRUITMENT A Division of The Waters Consulting Group, Inc. ~ 5050 Quorum Drive, Suite 625 Dallas, Texas 75254 800.899.1669 www.watersconsulting.com TABLE OF CONTENTS SECTION I - INTRODUCTION . Introduction Legal Issues Summary of Protected Classes Suggested Questions Interviewing Techniques Additional Questions Other Considerations . . . . . . SECTION II - BROCHURE . County Attorney Brochure ~ SECTION III - INTERVIEW SCHEDULE . IntelTiew Schedule SECTION IV - CANDIDATE PROFILES . GARY GLASSMAN Candidate Summary Resume Organizational Chart '\fajor Accomplishments Critical Problem AnaIvsis Academic Verification Confidential References Suggested Intelyiew Questions . JEFFREY KLATZKOW Candidate Summary Resume Organizational Chart Major Accomplishments Critical Problem Analysis .-- The Waters Consulting Group, Inc ~ /fu->f9A- Ift;r;/ q/~ ~ 1 1 1 2 2 3 4 1 1 Page' 1 - Academic Verification Confidential References Suggested Interview Questions . THOMAS SPENCER Candidate Summary Resume Organizational Chart Major Accomplishments Critical Problem Analysis Academic Verification Confidential References Suggested Interview Questions . JOHN TURNER Candidate Summarv Resume Organizational Chart Major Accomplishments Critical Problem Analysis Academic Verification Confidential References Suggested Interview Questions - - The Waters Consulting Group, Inc A1a-.tb.. (~-./t.91, ~:t q, zco'? Page. 2 - SECTION. I INTRODUCTION - THE \V\TERS C:O"SL:LTI~G GROUP. I~C. 800.899. I 669 \X\\W.W"UERSCOl\:Sn;nNG.CO\1 SECTION. I INTRODCCTIO:-'; COLLIER COUNTY, FL EXECUTIVE RECRUITMENT FOR COUNTY ATTORNEY INTRODUCTION The structured interview can be the best tool for evaluating candidates for a position with the Organization, particularly in today's litigious society. This section has been prepared to assist interviewers with this most important process by providing guidance and suggestions for interview questions for candidates for County Anomey. The specific questions have been prepared based upon the profile and competency analysis developed for this position and are included in this booklet in each candidate's section. LEGAL ISSUES In preparing for the discussion with the candidate, it is important to remember the selection intclview is a very critical part of the elnplopnent process and is covered by anti-discrimination. SUMMARY OF PROTECTED CLASSES The purpose of state and federal laws regarding discrimination in employment is to ensure hiring decisions are based upon the applicant's ability to perform the job, not on arbitrary factors unrelated to job performance. In general, it is unlawful to base a decision to hire or not hire an applicant on any of the following cl1.teria: race, color, national origin, gender, marital status, age, religious beliefs, pregnancy status, children, disability not related to job performance, or family background. Questions based upon any of these elements may open the Organization to potentially costly claims for discrimination. It is illegal to base a decision 011 one of these criteria even if the information is obtained outside of the interview process, or inadvertently during the intervie'\v. - The \X'aters Consulting Group, loe. Page - 1 j'J Jl) D( lCLJ\ll-],T]) U 1I')1{1(;[1'j'1 J) \f\]) I'IU 11'RII 'T:\ln- 1-"']-( lRJ\t'\T]( IN j] II:' l)(){ ,L'ML"-'J (Jj{ \'-.;y]'( JRTIU".:." (lj II 11:-; [)( XTJ\H:-"''J 1:-; NOT 'J() Ill: ){I.I'){( ))A'C1D n.R \,\y 1t1\C:l)'\ \\TJlI( )['-1 nil: \\lUJ'J1 ',J ( ())'..:'l:l"T 1)1 \\n~, 1'\'( SECTION. I INTRODCCnO'-: - The development of specific interview questions not only assures all important aspects of the job are covered during the interview; it helps to ensure that interviewers avoid potentially dangerous subjects. SUGGESTED QUESTIONS As you prepare for the interview you may want to develop additional questions based upon your review of the candidate's resume or the background material. Those candidate-specific questions might probe subjects such as: . Explanation of voids in time; . Short tenure in a position; . Explanations of apparent weaknesses in experience or education/training; and . Clarifications for anything that is not clear. INTERVIEWING TECHNIQUES - In general, open-ended questions that require candidates to answer in sentences are preferable to closed-ended questions that can be answered with one word or yes or no answers. Open ended questions encourage the applicant to: . Express goals, values, qualifications, or feelings; . Exhibit Ius/her ability to commUlucate; . Provide additional information regarding experience and background; and . Probe "choice points". Limited use of directive (closed-ended) questions can be used to gather information dlat is factual and objective. . Examples of open ended questions: . How do you handle...' . What do you do if...' . How do you feel about...? . \,x/hat have you found to be successful in handling...? . \X/hat are some examples of success in...? The \\'aters Consulting Group, lnc. Page. 2 n Il~ Dr lCU\ll]\:T b COI'Y!{](;j J'j'IJ) .\'.:1) 1'1,( )j>1{ll'j'\f{\' 1'\1 (*1\1\'1:( Jr-.: ]'I [l~ ])(l(l'dl'"T (I1t \,-<y P( 11\1']( l'-.J:' ()J Tll].', Il( l(l'\'IJ:"r L"!\( l'j" T() H] ){IJ'!\( )I)Lr:!n H ii, \"''' iil.\:'(\.', \,'lllj( II'J i'lll, \\P.JIT]'\i (( "',<ISl {II \\U:, !'\I' SECTION. I INTRODUCTIO" - As the interview proceeds, it is important to observe how the candidate's answers are delivered as well as the content of the message. The new County Attorney will represent the Organization in the community. Body language and tone of voice are particularly important factors to notice. Probe for as many details as possible such as names, dates, and other verifw.ble information. It is also a good idea to ask candidates for their thoughts and feelings about a situation. ADDITIONAL QUESTIONS Often candidates may be somewhat brief in their responses. If you feel a need for additional information, the use of probing questions such as the following can draw out additional information: . Wl,y did you say that? . Can you think of an example of that situation) . Is there something noteworthy in your experience in this area? - OTHER CONSIDERATIONS Other considerations include how the candidate handles the stress of the interview and whether he or she appears to be avoiding some area(s) of inquiry. Immediately after the interview, it will be helpful to note your overall feeling about the discussion and how you feel about the candidate. Remember, the best predictor of success in any position is previous success in the same or a similar position. You are looking for information about actual accomplishments and things the applicant has actually performed. The \Vaters Consulting Group, Ine. Page. 3 n I]S ]){)(T~II:"''] j;; U )I'YHI(;II!'I[)\r\I) 1';\.(l]'ItII.I.\]{Y I~H.H\\L\ I'I( l" IIIL~ 1)( )(L [1.11,"";1 r 11{ ,\'\1' 1" )R1 j( '''-'' ()I'],I 11) 1>( JCL'f\1IST]:; '.:()j j () HI. HI,I'rn lj)l( J) 1.( )1(\"-' I{I .\:'( 1" \\ 1IIII 1111'111" \\IUrll:" (I )f'.."I~T( Ii, \\U;, 1'.,( ~ SECTION. II BROCHURE ~ THE W"\TERS CO'-:SULTII'G GROUP, Il'-:C. 800.899.1669 WWW.W"\TERSCO.-:SCLTING.CO~I Tm: COMMlNITY Collier County, in Southwest Florida, is a premier community in which to work, live and play. Bordered by the Everglades National Park on the east and the Gulf of Mexico on the west, it is home to two national parks, three state parks and many County and municipal parks in addition to its rich and beautiful beaches. When the State of Florida achieved statehood in 1821. this part of the state was largely unin- habited until developers came in and grew the community as a resort area. The County officially came into ex- istence in 1923, due to the hard work and efforts of the successful business magnate. Barron Gift Collier, Sr. He worked with the State in completing the construction of the Tamiami Trail and the supporting infrastructure by completing paving across the Everglades and link to Dade County, connecting the two coasts for the first time. Approximately i 00 miles from Miami, 160+ miles from Orlando, and 130+ miles from Tampa. this area has easy access via road and sky. The newly expanded Southwest Florida Airport in nearby Fort Myers provides high-quality and affordable international and domestic access that supplements the local area airports. With a total land area of 2,025 square m lies, and at least 80 percent of that dedicated as preserve lands, this County has many natural resources to explore. From Everglades National Park, the Conservancy of Southwest Florida, or Rookery Bay Research Reserves, wildlife abounds within this community. Its Zoo is a nationally ac- credited zoo and historic garden. This area has frequently been nationally recognized far and wide for its offer- ings. Conde Nast Traveler magazine named Naples in 2006 as possess- ing one of the 20 Best Beaches in America. There are numerous public access points to the Gulf of Mexico beaches throughout the area to enjoy the sun, surf and sand. Known as the Golf Capital of the World, Naples ha, the second most golf holes per capita in the United States. In 2005, Naples was named the number one Small Art Town in America with more than 130 art galleries in the area. In addition to the county seat of Col- lier County, the County includes Mar- co Island, Immokalee, the Town of Ave Maria, as well as a diverse group of resort and rural communities. With over IA million tourists annually, the area has a great number of visitors, as well as the part- and full-time resi- dents. The County has the designation of more millionaires per capita than any other area in the United States. Prospective residents and businesses have an excellent professional envi- ronment with a special emphasis on development, finance and banking The Collier County School System is County Attorney Asst to the County Manager Deputy County Manager Asst to the County Manager Asst to the County Manager Public Services Division Coastal Zone Facilities Management Management DomesticAnimal Fleet Management Services County Attorney Health Human Resources Housing & Human Services Information Technology Library Purchasing Museum Risk Management Parks & Recreation University Extension Service ~ Veteran Services Board of Commissioners Executive Manager to Bee County Manager Airport Authority Pelican Bay Services Management Office Bureall of Emergency Services Communications & Customer Relations Office of Mgmnt & Budget Community Development & EnvlronM mental Services DIvISion Building Review Engineering Traffic Operations & Permitting Code Enforcement Pollution Control Alternative Transportation Modes Comprehensive Solid Waste Transportation Engineering: Planning & Construction Mgmt Engineering Utility Finance Road Maintenance Operations & Stormwater Environmental Transportation Wastewater Services Planning/MPO Operatives Water Zoning & Land Development Review CJrer County -- ~-- - ':f thc arca's largest employer with over 5,000 staff members serving the 35 elementary. middle and high schools, totaling 38,000 students. In addition. there are a number of quality private and parochial schools offering the residents a wealth of options. Post-sec- ondary offerings abound including the Florida Gulf Coast University (FGCU), Hodges University and a 2-year college, Edison College as well as the newly created Ave Maria University. Superior, state-of-the-art health care facilities are available with North Collier Hospital (NCH) Healthcare System, Physicians Regional Medi- cal Center (formerly the Cleveland Clinic) and The Multiple Sclerosis Center of Southwest Florida offering services to residents and drawing visi- tors regionally to partake of these fine medical offerings. Local and regional cuitural offerings include the Naples Art Festival, the Great Dock Canoe Race. as well as classical and music concerts, The Philharmonic. museums, and Sugden Theater. Sports fans have a great number of professional and collegial sports offerings (football. basketball, baseball. hockey, soccer, etc.) - from Miami, Orlando and Tampa Bay. along with University of Florida, Uni- versity of Miami, and Florida State University. Florida is home to a num- ber of the training camps for baseball teams, offering residents and visitors the exciting spectator opportunities during their spring training. COUNTY ORGANIZATION The Board of County Commissioners (BCC) is comprised offive (5) elected officials serving as the chief legisla- tive body of the County, responsible for proving services to protect the health, safety, welfare, and quality of life of the citizens of Collier County. The Commissioners are elected by district every four years. They appoint a County Manager to administratively manage the forty departments/divi- sions as well as the County Attorney to serve as the legal advisor for the organization. The Board of County Commissioners adopted a ten-year strategic plan in 2006. Its guiding principles (values) include: Honesty and Integrity: We speak and act truthfully, acknowledging mistakes, keeping commitments and avoiding silence when it may be mis- leading. We do the right thing even when it is unpopular or nobody would know the difference; Service: We value and embrace the opportunity and responsibility to serve our community. OUf customers come first and wc will strive to serve them in a friendly, fair, respectful and efficient rnanner~ Accounting: We are individually and collectively responsible for our be- havior and performance. We conduct business in accordance with the high- est professional and ethical standards. Quality: We strive for continuous im. provement in OUf products, services, programs and facilities. We seek to do the entire job right the first time; Respect: We treat others with dignity and courtesy; Knowledge: We are a learning orga- nization. We encourage and promote continuous personal and professional development as a means of enhancing our team members' ability to plan for the future, make good decisions, and solve customer problems; Stewardship: We recognize that we are spending other people's hard- earned money. As such, we carefully manage the resources entrusted to us. We seek to control costs of opera- tions, improve efficiency and provide - the greatest value and return on invested funds; Collaboration: We realize that our success is interdependent on the suc- cess of other organizations, businesses and institutions of our County, Region and State. We seek, therefore, to work cooperatively with these agencies to allocate our collective resources to achieve mutual goals. The County's Strategic Focus Areas and Goals are as follows: - I. Neighborhood Preservations & Enhancement: To preserve and enhance the safety, quality, value, character, and heritage of our neigh- borhoods, communities and region. II. Growth Management: To responsibly manage community growth, development and rede- velopment, while enhancing the natural environment. .' "'1,'\1 ;'f. /'/,; j'y Ill. Community Health and Human Services: To improve the qual- ity of life and promote personal self-reliance and independence through improved access to com- munity health care and human services for those most in need. nity and the region while respect- ing and enhancing the character of our diverse neighborhoods; V. Economic Development: To help create a business climate that promotes a diversified, growing economy consistent with estab- lished growth management plans and community desires. IV. Mobility: To provide for the vari- ous mobility needs of the commu- ~i?3).,%j'it:' ~"" \ \ t~ VI. Local Governance: To sustain pubiic trust & confidence in County govemment through sound public policy decisions, expert professional management and active citizen participation. The Collier County Attorney's Office consists of: . The County Attorney . One Chief Assistant County Attomey . Twelve Assistant County Attorneys . Twenty Professional Support Staff positions The County Attorney works directly for the Collier County Board of Co un- ty Commissioners. It is the job of the County Attorney and his/her staff to represent the County in litigation cases filed by and against the County; to research, draft and provide legal review of ordinances, resolutions, agreements, contracts, and all other legally binding documents provided to the BCC for review; to attend meet- ings and workshops of the BCC and County staff; and to anticipate and facilitate in solving legal problems for the BCC and County staff. The County Attorney answers to and advises each of the five County Commissioners directly as individual Commissioners, and the BCC as a whole. The Assistant County Attor- neys have various areas of respon- sibility within the County structure such as litigation filed by and against the County, real property, land use, utilities, purchasing, human resources and transportation. All legally bind- ing documents, including, but not limited to. ordinances, resolutions, contracts, agreements, etc., which are to be signed by the Chairman of the BCC on behalf of the County, must be reviewed and approved for form and legal sufficiency by the County Attorney's office prior to action by the BCe. The County Attorney will adopt a proactive approach regard- ing the provision of legal advice anc' opinions concerning the creation and interpretation of local ordinances, state and federal law. In addition to the above, the County Attorney's office is called upon to respond to questions from the public, media, private attorneys, constitutional officers, municipal em- ployees, employees of the State and employees from other counties with reference to every aspect of Collier County government and actions taken by the BCC and County staff. When warranted, the County Attorney may contract with outside legal counsel for specialized expertise and services. The legal department also provides advice to numerous Boards and Com- ~ nissions, which supplement local government operations. The County Attorney's office, however, does not provide legal advice to private indi- viduals on private matters. POSITION PROFILE The County Attorney is responsible for providing dynamic leadership, direction, supervIsIon, oversight, and on-going development of the County Attorney's Office (CAO) as a high-caliber public law practice. This office functions as an independent office responsible directly to the BCC handling a diverse mixture of legal matters on behalf of the County. This includes local, state, and federal law, personnel matters, intergovernmen- tal agreements, public utilities and , services, finance. transportation, land use, environmental law, code and policy compliance issues, consumer protection, open government, alcohol and substance abuse, HIV/AIDS pro- grams, the medical examiner, library operations, business licensing, disas- ter planning, illegal immigration, and emergency management services. The County Attorney is responsible for effective and efficient administra- tion of the CAO needed to fulfill its functions: . Provide proactive leadership to staff; . Develop, oversee and manage a cost-effective departmental budget; . Develop and implement departmen- tal goals and objectives; evaluate and report on goal achievement; . Develop and manage staff in- cluding oversight of the hiring, supervising, education, training, discipline, and termination of all CAO personnel and contractors; . Oversee internal department activi- ties and coordinate activities of the Department with external entities; . Participate on boards, comm ittees, professional groups and activities; . Maintain the human relations philos- ophy and standards of the County. CURRENT ISSlJES The following issues were developed after discussions with the Board of County Commissioners, County Manager, Human Resources Director, :#$ii&'iJ'1i' Purchasing Director, Law Department staff, and the Director of Risk Man- agement. These issues expressed are not designed to establish fixed man- agement priorities, but are intended to represent the types of projects and programs that the next County Attor- ney will encounter in his/her first six to eighteen months of employment: Employee Relations The next County Attorney will be following the leadership of a long- term employee who possessed a solid reputation in the organization and community. With the potential for hiring an external leader, the staff is naturally apprehensive about what type of changes will be forthcoming. A leader who is comfortable with learning the organization prior to rec- ommending far-reaching change will be the most successful, as well as a person accustomed to exhibiting self- confidence without being overbearing in establishing himself/herself as the new County Attorney. He/she will be encouraged to focus on account- ability and customer outcomes, with ideas about strong mechanisms for feedback from internal clients and key external contacts. Periodic assess- ment and evaluation of performance indicators allows the County Attorney to create additional training/develop- ment programs for staff members, as well as factor in the overall evaluation of individual performance. Comm u n ications/Reporting The next County Attorney must have a reputation for being proactive as a communicator, providing clear and concise advice that will address the issues facing the BCC and County, while working with the organization to meet the pressing needs. A record of providing Stewardship Reporting, sharing with the BCC and Department Directors, and citizenry, input on the hours spent in the delivery of service, making sure that the services provided are timely and accurate in meeting the needs of the organization. There is a process in place, the Request for Le- gal Services, which can be the start- ing point for service reporting, where time and issue resolution status can be the basis for effective workflow management. Other communications opportunities are sharing results from federal, state or regional conferences so as to inform/educate personnel on updates to case law affecting local governments. Economic and Legislative Changes The economy in Collier County is good; however the national trends af- fecting the housing and development community will ultimately affect this robust community as well. The State Legislators have approved a number of referendums that will affect thr County's budget. There are state- mandated cutbacks that will neces- sitate future budget reductions, and may cause personnel reductions in a number of key areas. The next County Attorney will be an advisor for the BCC and County Manager in leading any cutbacks/layoffs, ensuring that personnel are evaluated and assessed fairly and any cutbacks are handled legally, equitably and humanely. Any cuts that must occur in the County Attorney's office must ensure that existing staff is treated fairly while making sure that the business of the County can be effectively performed. Among the state mandates affect- ing the County's Budget is the Bert J. Harris Act, the Private Properly Rights Protection Act. It is an exarr pie of recent legislation that provides citizens the ability to sue local gov- ernments for a reduction in property values caused by government land use decisions. It is a law that must be evaluated and managed to minimize the risk to Collier County while treat- ing taxpayers and citizens fairly. CANDIDATE PROFILE The County Attorney's position is a highly visible job that will require a person with well-developed manage- ment, strategic planning and excep- tional analytical and outstanding communications/presentation skills. He/she must have a positive presence and be an individual who will com- ~ nand the respect of those in the CAO and in the County's legal community. Team Leadership: Possesses the ability to direct the staff of the County Attorney's Office with great effectiveness. He/she must provide both direction and focus, but delegate authority appropriately. The person holding this position must understand and appreciate the critical relationship with the BCC; he/she has the ability to make and hold firm positions on potentially controversial decisions, while affirming the staff's right to dis- agree. The successful candidate must be truly interested in maintaining a strong team and dedicated to provid- ing the citizens and employees of the County with the best possible legal services. He/she must have the self- confidence needed to motivate and lead a high-performing team, guiding and improving their effectiveness in a manner that is non-threatening, yet gets the desired results. The strong team orientation must be coupled with positive client relations. Legal Effectiveness: The County will exhibit outstanding professional skills, with the ability to lead and take strong action on initiatives while ensuring complete follow-through. The successful candidate will have extensive experience in land use and development law and issues, with significant experience associated in civil law with litigation experience. He/she must have knowledge of municipal, county and/or state laws and ordinances, as well as in-depth understanding of federal procedures 'f'\, and substantive law issues. The liti- gation experience will include mo- tions and trials, as well as settlement conferences. The advice and actions from the CAO must always be based on the highest level of integrity and legal precedent. Communications: The County At- torney will be highly effective in both spoken and written communications. He/she must possess outstanding skills as a public speaker, present- ing cases before judicial bodies and providing well-researched briefs and opinions, with the ability to state and explain his/her position clearly. Besides being personable and ap- proachable, the ideal candidate must be consistent in the presentation of information to BCC, Commissions and Boards, as well as to Department heads and employees. The advice offered to BCC must be objective and free from political posturing, as well as reflecting current case law. The County Attorney must provide a balanced presentation, complete with alternative courses of action and clear definition of the probable outcomes. The BCC does not expect the person to be a "yes person" but to approach the Commissioners' re- quests with openness, enthusiasm and candor while conducting business in a straight-forward manner. The person should find innovative and creative means for communications with County staff, citizens and representa- tives throughout the community. (~ Staff Management: The County At- torney manages the resources of the Attorney's Office with a high level of effectiveness. and reflects strong philosophies in regards to enlightened supervision and professional develop- ment as vital management concerns. The County Attorney must create an environment that maximizes the abil- ity of others to succeed by utilizing well-developed coaching skills and creating an environment in which everyone is encouraged to reach their fullest professional potential. EDlJCATION & EXPERIENCE This position requires a Juris Doctor- ate degree or equivalent from an American Bar Association accredited law school. In addition, the successful individual will have practiced law for a minimum of seven to ten years with senior management/legal experience, preferably in a municipal, county or state law office. Experience at a senior management level in a large private practice will be viewed favorably, but must be accompanied by extensive knowledge of land use and develop- ment law, development/interpretation of codes and ordinances, legislative r- 'rocesses, constitutional and employ- ment law. Superior litigation skills and the ability to guide other counsel must be demonstrated. The preferred candi- date will possess at least five years of experience in the practice of civil law in the public sector within the State of Florida (municipal, state or county), preferably in a community experienc- ing significant growth. The County Attorney will be required to provide accurate/correct legal opinions in a public/highly visible environment and must have a reputation for objectivity and success as an administrator/man- ager. He/she is expected to work in a highly collaborative and team-oriented manner with the BCC, County Man- ager, Department Directors, the de- velopment community and with peers within the State of Florida, as well as vendor/contractors, representatives of other governmental agencies and a variety of other citizen and business interest groups. COMPENSATION & BENEFITS The starting salary and benefits are highly competitive and negotiable, starting in the high $lOO's to low $200's depending upon the experience and qualifications of the successful can- didate. An automobile allowance and relocation assistance will be provided. r SECTION. III INTERVIEW SCHEDULE ~ ~ THE W"HERS CO"SULTI~G GROUP, INC. 800.899.1669 W\VW.W_\ TERSCO~SULT]NG.COM MEMORANDUM DATE: March 5, 2008 TO: Board of County Commissioners FROM: Sue Filson, Executive Manager to BCC RE: Applicant Interviews - April 9, 2008 As you know, the interview schedule for the 5 finalists for the County Attorney position in scheduled for Wednesday, April 9, 2008, I have placed Item 9E on the Commissioners' agenda for the Tuesday, March I I, 2008 meeting to finalize the interview process prior to sending out the packets to the applicants. Attached please find a copy of the final legal opinion from Gregory T. Stewart of Nabors and Giblin & Nickerson regarding the process of applicant interviews before the Board of County Commissioners. Please let me know if you have any questions. Attachment TALLAHASSEE Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (850) 2244070 Tel (850) 2244073 Fax Nabors Giblin & NickersonPA FORT LAUDERDALE 1225 S.E. Second Avenue Fort Lauderdale, Florida 33316 (954) 52S...so00 Tel (954) 525-8331 Fax ATTORNEYS A, l' tft.\!if TAMPA Suite 1060 2502 Rocky Point Drive Tampa, Florida 33607 (81.3) 281-2222 Tel (813) 28H>129 Fax Reply to Tallahassee March 4, 2008 Via Electronic and U.S. Mail Scott R. Teach Managing Assistant County Attorney Collier County 3301 E. Tamiami Trail Naples, Florida 34112 Re: Applicant Interviews before the Board of County Commissioners Dear Mr. Teach: You have requested an opinion from our firm concerning the application of the Sunshine Law to a meeting of the Board of County Commissioners at which interviews of applicants for the position of County Attorney are proposed to be conducted. It is my understanding that various applicants for the position of Collier County Attorney will be interviewed by the Board of County Commissioners, as a group, in a public meeting. You have requested an opinion as to whether the Board of County Commissioners may lawfully exclude other applicants from the meeting while the other applicants are being interviewed or, in the alternative, may they request them to voluntarily absent themselves from the interview of other applicants. Under the provisions of section 286.011, Florida Statutes, all meetings of public boards and commissions, including the Board of County Commissioners, are required to be public meetings and open to the public. These generally apply in all circumstances, except for extremely limited circumstances which Scott R. Teach Managing Assistant County Attorney March 4, 2008 Page 2 are not applicable in the present case. Initially, as the Board will be interviewing applicants as a group and obtaining information that will be utilized in the selection process of the County Attorney, it is my opinion that the meetings is subject to the Sunshine Law and open to the public. The Attorney General has similarly opined on several occasions in the past that such meetings were subj ect to the Sunshine Law. See AGO 89-37, AGO 75-37 and AGO 71-389. The next issue is whether the Board may exclude applicants from the meeting during the interview of other applicants. Though there may be a reasonable basis for the exclusion of those applicants, they are also members of the public and have a right to be present. As such, the Board of County Commissioners may not require applicants to leave the meeting during the interviews of the other applicants. See AGO 99-53. Finally, you ask whether it is permissible for the Board to ask applicants to voluntarily exclude themselves during the interviews of other applicants. These circumstances have been previously addressed by the Courts and found to constitute a violation of the Sunshine Law. In Port Everglades Authority v. Int'l Longshoremen's Association, Local 1922-1, 652 So. 2d 1169 (Fla. 4th DCA 1995), the Port Everglades Authority requested competing bidders to voluntarily exclude themselves during the presentations by competitors. An unsuccessful bidder sued claiming that the request that they voluntarily exclude themselves was a violation of the Sunshine Law. The trial court held that the request that they voluntarily exclude themselves amounted to a de facto exclusion, particularly since the request was made by an official directly involved in the procurement process. The rationale being that merely by requesting that an applicant voluntarily exclude themselves implicitly puts pressure on that applicant to do so. Based upon this decision, it is our opinion that the Board may not request that applicants voluntarily exclude themselves during the interview of other applicants. Scott R. Teach Managing Assistant County Attorney March 4, 2008 Page 3 Should you require a free to contact me. additional information, please feel Sincerel Gr~~; ."~tewart GTS:pad .-../ ~ SECTION. IV CANDIDATE PROFILES ~ THE W \TERS COC\iSCLTI;-;:G GROCP, I;-;:C 800.899.1669 \V\V,'CW,\ TERSCOC\iSCLTIl\iG.COM - GARY GLASSMAN ~ - THE \V,HERS COl\Sl'LTIl\G GROCP, Il\iC 800,899.1669 \V,VW,WXrERSCOl\Sn,'J]l\G.CO~l -- COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY Gary Glassman 10126 South Fulton Court Orlando, Florida 32836 Home phone: 407.903.5876 Business phone: 813.274.8414 Mobile phone: 407.721.2248 Home E-mail: ggnlawgary@yahoo.com Work E-mail: Gary.Glassman@tampagov.net - CURRENT TITLE AND Senior Assistant City Attorney ORGANIZATION NAME City Attorney's Office Tampa, Florida Since 2006 Admitted to Practice in Florida and New York REPORTS TO (TITLE) City Attorney POPULATION SERVED 350,000 SCOPE OF AUTHORITY . Litigation and Support for the following City departments: Human Resources, Community Affairs, Audit, Minority Business Affairs, Construction Services, Purchasing, Zoning and Land Development, Police and Fire Departments . Department is comprised of25 Attorneys, 10 Legal Assistants with a Budget of $3 million; Candidate manages 3 Attorneys, serves as a member of the Senior Management Team for budget and management matters REASON(S) FOR INTEREST IN POSITION Glassman is seeking this position as a result of his ambition to become either a City or County Attorney. He has sought to continue to grow professionally in local government legal management and this would be the culmination of his career. In addition to the professional challenge, he is quite attracted to the beauty and cultural amenities in Collier County. STRENGTHS Gary is an accomplished local government attorney and manager with experience at both the city and county levels. His management and case law experience primarily are with land use, growth management and zoning matters, with extensive direct department support for comparable areas - Human Resources, Land Use and Zoning, etc. He is an accomplished litigator and mentor to others in local government law. While he has a small staff, he is a resource and advisor to others in the Law Department as well as the Department Directors under his responsibility. He has been very interested - WATERS,OLDANI EXECUTIVE RECRUITMENT PAGE 1 20060TIUS DOCUMENT IS COPYRIGHTED AND IS CONSIDERED PROPRIETARY INFORMATION. nus DOCUMENT GRAN\' PORTIONS OFlliIS DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON WfIHOlJfTI!E WRITI'EN CONSENT OFTIIE WAlERS CONSULTING GROUP, INC. WATERS-OLDANI EXECUTIVE RECRUITMENT rs A DIVISION OFTIIE WATERS CONSULTING GROUP, INC. 800_899_1669 - COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY III upward mobility, volunteering for additional responsibilities in conjunction with the increased responsibilities when he joined the City of Tampa. As part of the City Attorney's Management Committee, he is involved in addressing the current budget crisis, similar to what Collier County is facing as well as assisting in the recruitment process for interns, etc. He also asked to be a part of the Risk Management Committee, the first member of the law office to do so. His new perspective offers insight to the other committee members, in a constructive instead of "hard-nosed" fashion as the attorney's representative. Gary has significant experience advising municipalities through budget cutting processes, working with Human Resources and Budget Departments to ensure any actions taken are applied in fair and equitable marmer. He uses his expertise to address the business and equity issues, applying rules for identifYing persons affected in a non-political marmer that will ensure that the most critical work of the public entity is completed, He enjoys serving as a speaker in professional organizations across the State, and will continue to keep open and consultative relations in the field. AREAS OF CONCERN - Moderate to High with this Candidate. Although Gary has a reputation for excellence in performance in the Tampa Law Department, his role on the senior management team is more advisory/mentor with a smaller scope of direct management of experience. He is active in an advisory role to the budget matters, but will have to be more directive and action-oriented in a fairly short period of time if he were to join Collier County. He shows great potential and will be able to move forward with the dedication that he shows to his caseload and involvement in growing the Tampa Law office with quality staff. In his current role, he has limited regular exposure to the City CounciVCounty Commissioners although he is recognized as an excellent resource and litigator. The on-going support of the Commissioners, County Manager and Department Directors will be a major increase in responsibility, one that he shows the potential to do, but will be during a difficult time in the County with the budget and staffing concerns that will be faced in the coming months. MANAGEMENTILEADERSHIP PROFILE Glassman began his legal career in the private sector in New York, in a private law firm, as an in- house counsel, then moving to Florida and working as a sole practitioner and growing his practice with others. Upon joining Orange County, he found that he was quite challenged and excited by the diversity of the law practiced in the public sector. He used all of his legal experience and expertise in matters of land use, environmental law, constitutional law, zoning, etc. Gary appeared before the County Commission as well as the Boards of Code Enforcement and Zoning. While he found that he enjoyed the public sector, Gary also sought upward mobility. Orange County had a stable management team and he moved to the City of Tampa as a means of growth. Since joining the City, he has found that he continues to learn and help professionalize the office through his superb litigation skills, offering innovative, creativity and tenacity in the handling of its caseload. Of special note was ,- WATERS,OLDANI EXECUTIVE RECRUITMENT PAGE 2 2006CllliIS DOCUMENT IS COPYRIGHTED AND IS CONSIDERED PROPRIETARY INFORMATION. TIllS DOCUM:E.!\,"T OR ANY PORTIONS OF lliIS DOCUME."IT IS NOT TO BE REPRODUCED FOR ANY REASON WfIH01..IT TIlE WRITTEN CONSENT OFTIlE WATERS CONSULTThJG GROUP, INe. WATER$.-OLDANI EXECUTIVE RECRUITMENT IS A DIVISION OFTIIE WATERS CONSULTING GROUP, me. 800.899.1669 - COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY the case associated with residential land use and zoning case dealing with matters of religious freedom, first amendment rights, etc. He personally develops regular reporting for the City Council on the status of litigation and would seek to institutionalize more regular reporting a more transparent legal support process if he were to become the next County Attorney. His openness and consultative style will lend itself to gathering and consolidating input from the Commissioners, Department Directors and the members of the Attorney's office in establishing the best way to provide quality legal services to the County. He regularly attends meetings of the departments he supports and coaches others to do the same. Glassman's expert litigation experience will be a welcome addition to improve the reputation of this divisions' area in the County. SALARY INFORMATION Gary is currently earning $123,000 with a generous benefits package including pension and health insurance in his current role as the Senior Assistant City Attorney. The advertised salary range is attractive; he will be seeking to manage the transition of the caseload to other attorneys in order to join Collier County. He is very interested in making a long-term contribution to Collier County and have a major impact, offering the best advice from the County Attorney's office to the Board of County Commissioners, Department Directors and the public. - ABS/March 2008 .~ WATERS,OLDANI EXECUTIVE RECRUITMENT PAGE 3 20060 THIS DOCUMENT IS CQPYRIGlITED AND IS CONSIDERED PROPRIETARY INFORMATION. TIllS DOCUMENT OR ANY PORTIONS OF TIllS DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON WIrnOUT THE WRITTEN CONSENT OF THE WATERS CONSULTING GROUP INC. WATERS-OLDANI EXECl.JfIVE RECRlJITMEi'.<. IS A DIVISION OFTIlE WATERS CONSULTING GROUP, INC. 800.899.1669 ' ,- Gary M. Glassman, Esq. Admitted to Practice in Florida and New York 10126 South Fulton Court Orlando, Florida 32836 (407)-903-5876 - Home (407)-721-2248 - Cell EDUCATION 1971-1975 B.A., University of Rochester, Rochester, New York 1975 - 1978 J.D., Syracuse University College of Law, Syracuse, New York WORK EXPERIENCE 2006 - Senior Assistant City Attorney, City of Tampa, Florida Represent the City in federal and state trial and appellate courts in cases concerning land use and zoning, inverse condemnation, civil rights claims, employment discrimination matters, environmental issues, contract and tort claims, and other litigation matters ~ Advise City Departments in land use and zoning matters, construction and minority business affairs, procurement of goods and services, compliance with ADA and other regulatory acts, Represent the City Human Resources, Community Affairs, and Audit Departments Supervise the work of several Assistant City Attorneys in litigation and preparation of ordinances 2001 - 2006 Assistant County Attorney IV, Orange County, Florida Represented the County in federal and state trial and appellate courts in cases concerning land use and zoning, civil rights claims, employment & labor matters, environmental issues, contract claims, and other litigation Appeared before the County Commission, and the Boards of Code Enforcement and Zoning Adjustment - Legal Department Representative to the County's Risk Management Committee ~ Chaired the Summer Intern Committee and Assisted Younger Attorneys 1992 - 2000 Partner, Glassman & Golden Norris, Sarasota, Florida 1990 - 1992 Associate, Becker & Poliakoff, P,A., Sarasota, Florida 1988 -1990 Sole Practitioner, Gary M. Glassman, Orlando, Florida 1982 -1987 Associate General Counsel, Fay's Drug Company, Inc., Liverpool, New York 1979 -1982 Associate, Bersani & Marshall, Syracuse, New York ACTIVITIES Speaker, Florida Association of Code Enforcement Annual Conference, June, 2007 - Speaker, Florida Association of Code Enforcement Annual Conference, June, 2006 Speaker, Florida Bar Seminar, Land Use and Section 1983 Cases Speaker, Florida Bar Seminar, Attorney's Fees and Section 1983 Actions Coach, Youth Soccer, Dr. Phillips YMCA, Orlando, Florida Instructor, Legal Assistant's Program, Syracuse University, Syracuse, New York CASES Some of the cases in which I have been lead counsel for the City of Tampa or Orange County are as follows: Konikov v. Orange County, 302 F. Supp.2d 1328 (M.D. Fla. 2003), affd in part and rev'd in part and remanded, 410 F.3d 1317 (11th Cir. 2005) [first amendment exercise of religion and zoning] Beeline Entertainment Partners, Ltd. v. Orange County, 243 F. Supp.2d 1333 (M.D. Fla, 2003) [adult entertainment] .~ Morgran v. Orange County 818 So.2d 640 (Fla, 5th DCA), rev. denied, 839 So.2d 699 (Fla. 2003) [land use] - Walk v, Orange County, et. al., 97 Fed Appx 909 (II th Cir. 2004) [land use and civil rights] Open Homes Fellowship, Inc. v. Orange County, 325 F. Supp.2d 1349 (M.D. Fla. 2004) [first amendment exercise of religion and zoning] Lorenzo v. City a/Tampa, et. ana., 2007 WL 4374288 (11th Cir. Dec. 17,2007) [civil rights] Ellis v. Todd, U.S. Dist. Ct., M.D. Fla., 8:05-CY-828-T-30 MSS [civil rights] Williams v. Orange County, U.S. Dist. Ct., M.D. Fla., 6:05-CY-00672-JA-JGG [employment discrimination] Burdge v. City a/Tampa, Cir. Ct., 13th Jud. Cir., Case No.05-CA-2080 [land use and civil rights] Soliman v. City 0/ Tampa, U,S. Dist. Ct., M.D. Fla., 8:06-CY-2039-T [employment discrimination] ~ Smith v. City a/Tampa, Cir. Ct., 13th Jud. Cir., Case No. 07-003388 [land use and inverse condemnation] Smith v. Lowry Park Zoo and City a/Tampa, U.S. Dist. Ct., M.D. Fla., Case No. 8:07-CY-333-T [ADA] Creative Housing v. City 0/ Tampa, Cir. Ct., 13th Jud. Cir., Case No. 06-06923 [land use and zoning] Thompson v. City 0/ Tampa, Cir. Ct., 13th Jud. Cir., Case No. 00-01147 [civil rights] Stover v. City a/Tampa, Cir. Ct., 13th Jud. Cir., Case No. 07-01541 [land use] Silveus v. City a/Tampa, Cir. Ct., 13th Jud. Cir., Case No. 06-003641 [land use] Herron v. City a/Tampa, Cir. Ct., 13th Jud. Cir., Case No. 07-10540 [employment discrimination] Ruella v. City a/Tampa, Cir. Ct., 13th Jud. Cir., Case No. 04-9125 [employment discrimination] ,- -- ~~ 82-07-'08 14:14 FROM-Gity Attorney Office 8132745908 T-204 P002/802 F-744 nUl. IItl! if II Pit ~!, f. 1 it $; s: ii' ; ~ ~ . ~ ,. iI ~ !- J .' II f Ii ri~nnn'T".. i r I i JH IU ~ o 21.... on a~;:; ......", \Ili~ Bn~ ~~ - Accomplishments/Achievements Gary M. Glassman 1. One accomplishment was expanding the summer intern and law clerk programs at Orange County. The summer internship program offered internships to first and second year law students who expressed an interest in government law. I became the chairman of the committee in my second year at the County, and immediately tried to expand the pool of candidates by offering the program to law schools nation wide (previously it was limited to Florida law schools). By doing so, we hoped to draw from a more diverse group of students. In addition, I worked with our in house computer people to prepare a brochure about the office, its responsibilities and activities, and provide comments from some of the people who had previously held the internships. Copies of the brochure, together with a cover letter, was sent to approximately fifty law schools with instructions to hand out the brochures to interested students. This highlighted our program, and gave the students something more than the usual paper notice. The law clerk program was offered to students at the local Orlando law schools for grade credit, and was offered during the school year. ,- Both programs were very successful. We increased the number of applicants, and were able to bring in highly motivated students who were interested in government work. We expanded the program activities to include more contact with county commissioners, department heads, and took the students with us to court hearings, mediations, etc. We felt that program offered more than just the standard "doing research" found in most private law firms. The overall response from the students was very positive. 2. For approximately the last two and a half years at the County, I served on the County's Risk Management Committee. The purpose of the committee was to review all pending litigation, approve recommendations for settlement, and discuss ways to decrease risk to the County. The committee was comprised of various members from the different County departments, but, for some unknown reason, did not contain a member of the legal department. As the committee's first lawyer, I tried to offer comments and recommendations that would be helpful, but not overplay my role as the committee's legal representative. It was always interesting to me to see how representatives from the different departments evaluated the cases, and how they arrived at their conclusions. I tried to provide good counsel to the committee without being seen as someone who wanted to dominate the proceedings. - I believe that as the committee's first legal representative, I was able to incorporate sound legal reasoning and my litigation experience with the very practical views of the committee's other members. The committee was, and remains very successful. - 3. I am proud of the community work that I have been able to perform despite a very busy schedule. I was a youth soccer coach at the Dr. Phillips YMCA in Orlando for six years. My daughter was on the team at the time, and while neither of us were particularly good soccer players, we enjoyed the experience and having some time together. In 2004, the Central Florida area was devastated by three hurricanes in a two month span. After each hurricane, I volunteered to hand out water and other supplies to people who were hard hit by the hurricanes for several days in areas around the county. Being able to assist was very rewarding, and made you appreciate the importance of community. I have been asked to speak at several conventions and seminars for the Florida Association of Code Enforcement and the Florida Bar. I enjoy speaking, and interacting with the attendees. It has given me the opportunity to learn more about local govemment not only from lawyers, but non-lawyers as well. - - ,"-"" Critical Problem Analysis and Response Gary M. Glassman Without question, the most critical problem facing the legal department is how the office will function in light of the budget cuts resulting from the overall property tax reductions. Put another way, how can the legal department continue to provide first rate legal services to the City administration, City Council, and departments with less financial resources, and fewer attorneys and staff. To solve this problem, it will be necessary to re-think how the entire office functions. First, given the office budget, it is necessary to determine how many attorneys, legal assistants, and support staff are needed to provide competent and timely legal services. Currently, the office has twenty full time attorneys, three legal assistants, and eight support staff. We also have four part time attorneys, and engage outside counsel for selected matters (approximately $1.5 million a year). - The first goal is to reduce the use of outside counsel to a bear minimum. Outside counsel only should be used in the rare occasion when the office does not have an expertise in a certain legal matter. Even then, an assistant attorney should work with the outside counsel to use the opportunity to learn the subject matter to avoid use of outside counsel in the future. One area that has been targeted for reduction of outside counsel is employment law cases, civil service hearings, and day to day labor and employment issues, There are two attorneys in the office who have considerable experience in these matters, are willing to undertake the work, and it is anticipated that approximately $200,000.00 can be saved yearly. If the outside counsel budget is reduced, even by half, at least one or two additional full time attorneys can be hired. The second goal is to eliminate the use of part time attorneys. The total salary for three of the part time attorneys, without benefits, is approximately $250,000.00. By eliminating the three, one experienced full time attorney can be hired, and a cost savings can still be realized. My preference is to employ full time attorneys only with minimal use of outside counsel. In addition to the cost savings, full time attorneys can be supervised to a greater degree than part time attorneys or outside counsel. This will give the city attorney more control over how the office functions and provide increased accountability by the assistant attorneys. But cost savings are not enough. To insure that the office continues to operate effectively, the remaining attorneys will need to work more efficiently. For example, the office currently does not have a data base of litigation pleadings. There probably are hundreds of different pleadings (motions, briefs, etc.) that have been previously filed in the numerous cases over the years. An organized data base containing these pleadings would forgo the need to "reinvent the wheel" each time a particular pleading is need in a new case. This is but one small example of working more efficiently. We will know that the financial problems have been resolved as we review armual expenditures and projected budgets for each year. If savings are demonstrated, we know we were successful. - COLLIER COUNTY, FL EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY EDUCATION VERIFICATION Gary Glassman Academics J.D. Syracuse University Syracuse, N Y Confirmation by: National Student Clearinghouse B. A. University of Rochester Rochester, NY ~ Confirmation by: National Student Clearinghouse - THE W"\TERS CONSULTING GROUP, INC TIUS DOCUMENT IS COPYRlGI-ITED AND PROPRJETARY INFORMATION. THIS DOCUMENT OR ANY PORTIONS OF THIS DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON 'il>lTHOLTT THE \1;"RfITEN CONSENT OF wee, INC. , ^, " :' ". - -- FILED .- IN THE UNITED STATES D1STRICf COURT MIDDLE DISTRICT OF FLORIDA 03 DEe 29 AM II: 09 ORLANDO DIVISION Plaintiff, CLCi..'.." . ,.J ~1!W~C l'". i. , 9Jl~'iJA OfiL'\:':'.:.f ~~ JOSEPH KONIKOV, Individually, UNITED STATES OF AMERICA, Intervener, Case No. 6,02-CY-376-0RL-28-JGG v. ORANGE COUNTY, FLORIDA, a polItical subdivision of the State of Florida, JOEL HAMMOCK, as an individual and/or agent! employee of ORANGE COUNTY, FLORIDA, JIM POWERS, as an individual and/or agent! employee of ORANGE COUNTY, FLORIDA, ROBERT BURNS, as an individual and/or agent! employee of ORANGE COUNTY, FLORIDA, - ROBERT IDGH, as an individnal and/or agent! employee of ORANGE COUNTY, FLORIDA, Defendants, / DEFENDANTS. ORANGE COUNTY. FLORIDA. JOEL HAMMOCK. JIM POWERS. ROBERT BURNS. AND ROBERT IDGH'S. TRIAL BRIEF Defendants, ORANGE COUNTY, FLORIDA, JOEL HAMMOCK, JIM POWERS, ROBERT BURNS, and ROBERT IDGH, by and through their undersigned attorneys, hereby file this Trial Brief. I. INTRODUCTION This is an action brought by the Plaintiff, JOSEPH KONIKOV, (hereinafter referred to as 1 - l-k.v ........- '" .- - - '" '-' -- "KonikoV' or "Plaintiff") against Defendants, ORANGE COUNTY, FLORIDA. JOEL HAMMOCK, JIM POWERS, ROBERT BURNS, and ROBERT IDGB.' The Complaint (hereinafter referred to as "Complaint") alleges nine (9) causes of action. Count I alleges a violation of the free exercise clauses of the first amendment to the United States Constitution and Article I, ~ 3 of the Florida Constitution. Count II alleges a violation of the equal protection clause of the fourteenth amendment to the United States Constitution and Article 1, ~ 2 of the Florida Constitution, Count ill alleges a violation of the establishment clauses of the first amendment to the United States Constitution and Article 1, ~ 3 of the Florida Constitution. Count IV alleges a violation of the Religious Land Use and Institutionalized Persons Act of2oo0, 42 U.S.C. ~ 2000cc, etc. CountY alleges a violation to the Florida Religious Freedom Restoration Act ofl998, 9 761.01, Fla. Stat. Count VI alleges a violation of the free speech and assembly clauses of the first amendment to the United States Constitution and Article 1, 99 4 and 5 of the Florida Constitution. Count VII alleges a violation to the right of privacy of the first amendment to the United States Constitution and Article 1, 9 23 of the Florida Constitution. Count VIII alleges a violation to the due process clauses of the fifth amendment to the United States Constitution and Article 1, 9 9 of the Florida Constitution. Count IX alleges a state law claim of civil conspiracy. This Trial Brief is submitted by the Defendants in support of its request to dismiss the Plaintiff's Complaint in its entirety, and to address several anticipated evidentiary matters. In this Trial Brief, Orange COWlty, Florida, shall be referred to as "County", Joel Hammock, Jim Powers, Robert Burns, and Robert High shall be referred to either as '1Iammock", "Powers", "Burns", and High" respectively, or as "CEB Members" collectively. All Defendants shall collectively be referred to as "Defendants". 2 ,- .- ~ ':" "-' -- n. FACTS' The subject property is located at 6756 Tamarind Circle, Orlando, Florida 32819 (hereinafter referred to as "Property"). From July 20,1999, to March 7, 2002, the Property was owned by Carl W. Hall, Jr. and Danae Hall (hereinafter referred to as "Hall"), On March 7, 2002, the Property was sold by Hall to the Plaintiff and Chani Konikov. Prior to March 7, 2002, and at least as far back as July 31, 2001, the Plaintiff was a tenant at the Property. The Property is a single family home with a gross square footage of2,482 square feet, sitting on approximately a one quarter acre lot, and is located in the Sand Lake Hills Section Two Subdivision (hereinafter referred to as "Subdivision'') in the southwest area of unincorporated Orange County, Florida. The Subdivision, including the Property, is zoned R-1A under Chapter 38 (Zoning) of the Orange County Code (hereinafter referred to as "Code''), Section 38-77 of the Code establishes a Use Table for land in unincorporated Orange County. The top of the Use Table lists each of the zoning classifications used by the County. Along the side of the Use Table, land uses are listed by category. The columns under each zoning classification determine what land uses can be had for each zoning classification. Section 38-74(\1) of the Code provides that when reviewing the Use Table to determine what uses can be had under a zoning classification, the following letter system is employed: a "P" indicates a permitted use of the land under a zoning classification; an "S" indicates a permitted use 2 The facts set forth herein are taken from the Defendants' Alternative Motion for Summary Judgment (Ok 203), and are therefore limited to the evidence and testimony heam before the Code Enforcement Board on March 20, 2002. 3 - - - 'r '- ...." provided that a special exception is obtained from the COWlty prior to the establishment of the use; and no letter indicates that the use is prohibited. According to the Use Table, single family residential homes are permitted under the R-lA zoning classification. There are several uses that are permitted with a "special exception" under the R-IA zoning classification including "religious organizations". There are approximately 350 uses that are prohibited in the R-IA zoning classification. A "special exception" is obtained by making an application for same to the Orange County Board of Zoning Adjustment, and payment of the applicable fee. Rabbi Sholom Dubov ("Dubov")is the Executive Director of the Chabad of Greater Orlando and the founder of Chabad Organizations of Central Florida. There are six Chabad in the greater Orlando area The term "Chabad" is a Hebrew word, and an acronym, in English, for concept, comprehension. and concentration. The purpose of a Chabad is to provide for whatever is needed for Jewish brethren, and to provide love and tolerance and whatever the Jewish community may need. The Plaintiff is the leader of one of the six Chabad in the greater Orlando area. The Chabad for which the Plaintiff is the leader is known as the Chabad of South Orlando, The address for the Chabad of South Orlando is that of the Property. One of the activities conducted by the Plaintiff for the Chabad of South Orlando at the Property is religious services: (a) Jeffrey Lessel testified at the hearing that he attended the Plaintiff's prayer services and had been doing so for a year and a half. He further testi fied that on Friday nights approximately 15 or 18 people attend and that on Saturday mornings approximately 4 -, - ,- - - -- (e) of South Orlando and the Plaintiff's name, A fourth Internet website, jewishorlando.com, listed the Chabad of South Orlando, the address of the Property, and the name and telephone number of the Plaintiff. The jewishorlando.com Internetwebsite advertised "Shabbos" (Sabbath) services for Friday nights at 7 ;00 pm at the Property and for Saturday mornings at 9;30 am at the Property. (h) The jewishorlando.com Internet website advertised a "Minyan" on Mondays and (f) (g) Thursdays at 9:30 am. and on certain weeks, every morning at 9:30 am at the Property. (A "Minyan" is a quorum often JewishmaJes required, under Jewish law, for a prayer service_) (i) On the front door of the Property was a sign that stated: "Kindly use the side entrance 5 - - - '" '- - fOT the Shur. The word "Shul" means synagogue in English. (j) The Plaintiffpublished a brochure listing dates, time, and places for various religious services. The Chabad of South Orlando held Rosh Hashana (Jewish New Year) Services and Yom Kippur (Day of Atonement) Services at the Wyndham Orlando Hotel in Orlando, Florida. Sukkot (Jewish festival celebrating the harvest) Services were held at an undisclosed location. Shmini Atzeret and Simchat Torah (celebrating the completion and beginning of the reading of the Torah) Services were advertised as being held at the Plaintiff's "residence: 6756 Tamarind Circle", the Property. In addition to the religious services held at the Property, the Plaintiff advertised, on the jewishorIando.com Internet website, and by a separate brochure, a Torah study class held weekly at the Property, and a Hebrew School held at the Property from 10:00 am to 12:30 pm on Sundays and an optional class on Wednesdays. The religious services, Torah study classes, and Hebrew School drew people to the Property other than the Plaintiff's family members. People who came to the Property to attend the religious services, Torah study classes, and Hebrew School did so by driving their cars, and parking on the streets of the Subdivision. In 2000, the Orange County Code Enforcement Division (hereinafter referred to as "Division") received complaints from residents of the Subdivision concerning a structure that had been built on the Property. Thereafter, further complaints were received by the Division that the Property was being used for religious services, and that the services were causing traffic problems in the vicinity of the Property. An investigation was conducted by the Division. Under Caneda's direction, Orange County 6 - ~ ~ ..,. - -- Code Enforcement Officers, George LaPorte ("LaPorte") and Michael Scott ("Scott'') conducted the investigation, and took numerous photographs showing an excessive number of vehicles parked at the Property. Caneda, LaPorte, and Scott conducted an activity study of the Property. During sixty-eight (68) visits to the Property, activity was observed on forty-nine (49) days and no activity was observed on nineteen (19) days, During the forty-nine (49) days of activity, the officers observed five hundred and ten (510) people enter the Property and three hundred seventy-three (373) cars (excluding the Plaintiff's cars) parked at or near the Property from which people went into the Property, Based upon all of the information obtained by the Division, Caneda issued a Code Violation Notice dated Februmy 4, 2002, directed to HalJ and the Plaintiff. The violation was described as "Religious organization operating from a residential property without special exception approval in violation of Sections 38-3, 38-74, & 38-77 of the Orange County Code. Hall and Konikov were given seven (7) days to correct the violation, or the matter would be referred to the CEB. Caneda determined that the violation in the Code Violation Notice had not been corrected, and on or about February 22, 2002, filed and served a Notice of Hearing dated February 14, 2002 before the CEB on Hall and Konikov. The hearing date was scheduled for March 20, 2002. Kevin Urichko ("Urichko'') is the Pastor at Northland Church. The Church sponsored study groups in private homes in Orange County that met weekly. Joel Hunter ("Hunter") submitted an affidavit that was read into the record at the hearing. Hunter is the senior Pastor at Northland Church. The Chm:ch sponsored home groups that met in Orange County weekly. The affidavit of Pastor Wayne Brooks ("Brooks'') of the Metro Life Church was submitted but not read at the 7 -- ,~ -- ~ '- - hearing. The affidavit states that the Church sponsored home groups that met weekly in Orange County. Kenneth Bogle ("Bogle") is the associate Pastor of the Trinity Baptist Church in Apopka, Florida. The Church had Bible study classes in private homes that met once per week.. Daniel Brads ('.Brads"), a neighbor of the Plaintiff, testified that he bad to replace eight sprinkler heads on his property due to cars parked on his property by people who attend the Plaintiff's religious services. When asked on cross-examination if he had any pictures of the damaged sprinkler heads, Brads replied that he did nol, but that he did have pictures of cars on lop of the sprinklers. Ted McDonald ("McDonald"), a neighbor of the Plaintiff and president of the homeowner's association, testified that the Subdivision consisted of single family homes and that the Property was not on a thoroughfare near a commercial or business environment. He further testified that he researched the Internet and found eleven scheduled and eight possible meetings at.the Properly, and that the Property had a sign on the front door that read "Kindly use the side entrance for the Shul." McDonald stated that there was a "great deal of non-resident, pedestrian traffic through the neighborhood", and a loi of traffic in general generated by the activities at the Property. Lastly, McDonald submitted 300 petitions on behalf of residents of the Subdivision in support of the Code Enforcement Division's action. The Plaintiff, at no time, sought or obtained a special exception for the Property as required by the Code. After hearing all of the above testimony and evidence, the CBB founl! the Plaintiff in violation of the Code as set forth in the Code Violation Notice. The CEB gave the Plaintiff until May 19, 2002, to correct the violation by either ceasing to operate the Chabad synagogue or applying 8 - - - .,. '-' '-' for a special exception, or a fine of $50.00 per day would be imposed. III. ARGUMENT A. Count I Of The Comnlaint Should Be Dismissed Count I of the Complaint alleges a cause of action based on a violation of the federal and state Free Exercise of religion clauses.) The First Amendment, applicable to the states through the Fourteenth Amendment: provides, in part, that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof..." In determining free exercise violations, the Supreme Court, prior to 1990, had applied a "strict scrutiny" standard to determine the validity onaws allegedly having a negative impact on the free exercise of religion. Sherbertv. Verner, 374 U,S, 398 (1963); Wisconsinv. Yoder, 406 U,S.205 (1972). In 1990, the Supreme Court declared that a neutral law of general applicability represents no free exercise violation. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). In Smith, two former employees of admg rehabilitation center were dismissed because they ingested peyote for sacramental purposes. Id. at 874. Theywere denied unemployment compensation when it was determined that their discharge was for work-related "misconduct". Under Oregon law, peyote is a controlled, and thus prohibited, substance. Id. The Oregon Supreme ) This Court has previously held that it "is bound by the Eleventh Circuit's interpretation of the Constitution, and in a strikingly similar case, Grosz v, City of Miami, 721 F.2d 729 (11th Cir, 1983), the Eleventh Circuit upheld the constitutionality ofa Miami Beach, Florida ordinance, which prohibited organized religious services in residential areas, In Grosz. the Eleventh Circuit held that the city's zoning interest outweighed the burden on theplaintiff's Free Exercise rights". (Order dated June 14, 2002, Doc. 58,) 4 See Cantwell v. State of Connecticut, 310 U.S. 296 (1940). 9 - ,- - . --- -....,I Court reasoned that the criminality of peyote was irrelevant. The purpose of the "misconduct" provision was to protect the financial integrity of the compensation fund, and as such, was inadequate to justifY the burden that disqualification imposed on the employees' religious practice. Id, at 875. The Oregon Supreme Court, relying on Sherbert, supra., concluded that the employees were entitled to payment of unemployment benefits, Id. In reversing the Oregon Supreme Court, Justice Scalia, writing for the majority, stated that an individual's beliefs do not excuse him "from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. Id. at 878-79. Quoting Justice Frankfurter in Minersville School District v, Gobitis, 310 U.S. 586, 594-595 (1940), Justice Scalia opined: "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from discharge of political responsibilities (footnote omitted)." Id. at 879. As for the Sherbert test, Justice Scalia noted that "[i]n recent years we have abstained from applying the Sherbert test (outside the employment compensation field) at al1." [d. at 883. "We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the [Sherbert] test inapplicable to such challenges." Id. at 885. The Court concluded that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interesL." Id. at 886. Four years later in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 10 ~~ .- - ... - '-' 531 (1993), the Supreme Court reaffirmed Smith, and held that a "law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Neutrality, the Court wrote, is detennined three ways. First, a law must "not discriminate on its face. A law lacks facial neutra1ity if it refers to a religious practice without a secular meaning discemable from the language or context. ld. at 533, Second, a court "must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders." (citation omitted) ld. at 534. 1bird, an equal protection analysis which takes into consideration the history of the ordinance and the events leading to the enactment of the ordinance must be applied. ld. at 540. General applicability was not precisely defined by the Hialeah Court. ld, at 543, However, the Court stated that government "in pursuit oflegitimate interests cannot in a selective manner impose burdens only on conduct motivated by religious belief." ld. In the present case, the P1aintiffwas found in violation of~9 38-3, 38-74, and 38-77 of the Code by the CBB. These Sections do not implicate the Free Exercise Clause. The Sections are content neutraL They do not discriminate against religion on their face, do not create religious gerrymandering, and do not treat religious groups differently. Likewise, the Sections are generally applicable in that they do not impose burdens upon religious conduct that are not imposed on other conduct. For example, there are approximately 350 land uses that are completely prohibited in the R-1A zoning classification while places of worship are pennitted in an R-lA zoning area with a special exception. The three (3) zoning ordinances are neutral and of general applicability, and there is no facial challenge to the Code Sections. 11 - - - . "-' -- The facts, likewise, do not support an as applied challenge either. In Grosz v. City of Miami Beach. Florida, 721 F.2d 729 (11'h Cir. 1983), cert. denied, 469 U.S. 827 (1984), the Eleventh Circuit upheld the constitutionalityofa Miami Beach, Florida ordinance, which prohibited organized religious services in residential areas. Following Grosz, , the Eleventh Circuit decided First Assembly ofOod of Naples. Florida. Inc. v. Collier County, Florida, 20 F.3d 419 (Il'h Cir. 1994), reh. denied, 27 F.3d 526 (11"' Cif. 1994), cert. denied, 513 U.S. 1080 (1995) which presents another situation similar to the case at bar. In First Assembly, the County enacted ordinance 82-2 which imposed a zoning regulation on unincorporated Collier County, and placed First Assembly in the RMF-6 classification,multi-farnily residential uses including churches and their customary accessory uses. ld. at 420, In 1989, First Assembly converted an existing day care center into a homeless shelter. !d. In 1991, the County enacted ordinance 91-34 which concerned the operation of homeless shelters. The ordinance did not prohibit such shelters, but defined areas where the shelters may operate and the regulations for same. ld, at 423. The County cited First Assembly for operating a homeless shelter in violation of ordinance 91-34, and the code enforcement board required the closing of the shelter or a fine would be imposed. First Assembly closed the shelter, and then brought suit against the County. ld. at 420. The district court granted summary judgment to the County, and on appeal, the Eleventh Circuit affirmed, and held that ordinance 82-2 "simply does not implicate the Free Exercise Clause", ld. at 423. As to ordinance 91-34, the Court held that the ordinance was neutral and of general applicability. ld. The ordinance applied to any homeless shelter, regardless of who operated it. The regulations applied to all group homes regardless of ownership, and "were motivated by wholly 12 '-" '-' - secular concerns. The fact that First Assembly was affected was incidental." Id. The Court also relied upon its holding in Grosz v. City of Miami Beach, Florida,721 F.2d 729 (11"' Cir. 1983), ceIl. denied, 469 U.S, 827 (1984). Other cases with fact patterns similar to the case at bar have likewise held that zoning ordinances do not burden religious practices. In Daytona Rescue Mission, Inc. v, City of Daytona Beach, 885 F, Supp. 1554 (M.D. Fla. ]995, the city denied a church's request to allow for a semi- public use to operate a homeless shelter and food bank. Id. at 1556. In evaluating whether the church had established a substantial burden under the Religious Freedom Restoration Act', the Court found it had not. Id. at 1560. See also: First Baptist Church of Perrine v. Miami-Dade County, 768 So.2d I] 14 (Fla. 3d DCA 2000), cm. denied, 2001 Fla. Lexis 1148; Town v. State, 377 So.2d 648, 651-52 (pIa. 1979), cert. denied, 229U.S, 803 (1979); Miami Beach United Lutheran Church v. City _ . of Miami Beach, 82 So.2d 880, 882 (pIa. 1955). In the case at bar, the CEB did not apply the Free Exercise clauses unconstitutionally. Under ~ 38-1 of the Code, a religious institution is defmed as a premises or site which is used primarily or exclusively for religious worship and related religious activities. The undisputed evidence and testimony before the CEB established that the Property was located in an R-IA zoned area, and that the Plaintiff used the Property primarily as a religious institution or organization. The Plaintiffwas appointed the leader of the Chabad of South Orlando by Dubav. The purpose of a Chabad was to provide needed Jewish activities to a geographical area, , The Religious Freedom Restoration Act ("RFRA"), like RLUIP A, required that the plaintiff first demonstrate a substantial burden to religious exercise, RFRA was, as applied to state and local government, found unconstitutional in City ofBoerne v, Flores, 521 U.S. 507 (1997). 13 .- -- - .- " -- - The Chabad of South Orlando listed and advertised its address and telephone number as that of the Property, Three of the activities that the Plaintiff provided for the Chabad of South Orlando at the Property were religious services, a Torah study group, and a Hebrew SchooL The religious services were held, at a minimum, on Friday evenings, Saturday mornings, Monday mornings, Thursday mornings, certain Jewish holidays, and on certain weeks, every morning, The Torah study group was held on Wednesday evenings, and the Hebrew School was conducted on Sundays and possibly on Wednesdays. These activities were advertised on the Internet and a brochure distributed by the Plaintiff and the Chabad of South Orlando. The CBB heard overwhelming evidence that the activities at the Property created traffic problems. McDonald, a neighbor of the Plaintiff and president of the homeowner's association, testified to the increased traffic as a result of the Plaintiff's activities at the Property. Caneda presented the investigation conducted by the Division, and stated that in a 68 day period, there were 48 days on which a total of 510 people entered the Property and 373 cars (excluding the Plaintiff's) that were parlced outside the Property. In addition, Caneda presented photographs showing the cars parked near or at the Property that were documented in the investigation. Brads, also a neighbor of the Plaintiff; testified that he had to replace eight sprinkler heads due to the cars parked on his property by people who attended the Plaintiff's religious services.. Under the Code, in order to operate the ChabadofSouth Orlando at the Property, the Plaintiff . The Lerman affidavit did state: ''During the times he (plaintifl) holds prayer meetings I have never observed traffic problems or parlcing disruptions.>> However, Lerman did not state with any specificity the dates and times he observed the traffic at the prayer meetings, and the number of vehicles he observed. Lerman did not appear in person at the hearing, and, therefore, cross- examination was not possible. 14 - - .- ~ '-' - was required to obtain a special exception. There is no dispute that the Plaintiff did not seek nor obtain a special exception. At the CEB hearing, the Plaintiff offered no evidence or testimony that disputed or negated any of the above facts. The Internet websites, the brochure, the Activity Report, the photographs, the testimony ofMcDonald and Brads all went unchallenged by the Plaintiff. In fact, the above evidence and testimony was corroborated by two witnesses, Lessel and Lerman, who testified on behalf of the Plaintiff, and stated that they either attended religious services at the Property or knew of religious services at the Property. Based upon all of the evidence before the CBB as set forth above, and the absolute lack of any evidence that disputes the above evidence, the application of the Code by the CEB did not violate the Free Exercise clauses of either the federal or state constitutions, and Count I should be dismissed. B. Count II OfTbe Comulaint Should Be Dismissed Count n ofthe Complaint alleges a cause of action based on a violation of federal and state Equal Protection clauses.' 'The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that aU persons similarly situated should be treated alike." City ofCleburne. Texas v. Clebume Living Center, Inc., 473 U.S. 432, 439 (1985). In order "to prevail on a claim that defendant unequally applied a facially neutral statute, a plaintiff must show intentional discrimination." TheReserveLTDv. Town of Longboat Key, 17F.3d 1374, 1381 (1l"Cir.1994) , This Court previously held that there is no violation of the equal protection clause. (Order dated September II, 2002, Doc. 94.) 15 .- - ,- . ........ - (citations omitted). There was no evidence or testimony that the Code was applied unequally by the CEB. The only arguable evidence is that of the various Pastors who, either in person or by affidavit, described the activities of their churches with respect to Bible study groups. While the Defendants do not deny that Bible study groups do occur in private homes, the frequency of these meetings, as testified to by the Pastors, is significantly different from the activities condncted by the Plaintiff at the Property. Pastors Urichko, Hunter, Brooks, and Bogle stated that the Bible Study groups sponsored by their Churches met weekly. These situations were notthe same as the Plaintiff who publicized numerous religious services during the week, a Torah study group, and a Hebrew School at the Property. The Plaintiff offered no evidence or testimony before the CBB that any person or group met as frequently as the Plaintiff at the Property. The Plaintiff has not established any facts which demonstrate an as applied violation of the Equal Protection clause by the CEB, and Count II should be dismissed,' C. Count ill or The Complaint Should Be Dismissed Count ill ofthe Complaint alleges a cause of action based on a violation of the Establishment Clauses of the federal and state constitutions. In order to overcome a claim that a statute violates the federal Establishment Clause, the statute must pass the three-part test set out in Lemon v, Kurtzman, 403 U,S. 602 (1971). Under the Lemon test, to withstand a challenge under the establishment clause, a statute (1) must have a secular . ThePlaintiffhas sought to introduce other post-CBB Hearing evidence in support ofits equal protection claim. The Defendants have requested, elsewhere in this Trial Brief, that any post-CEB Hearing evidence be excluded based upon the Plaintiff's admission that all post-CEB Hearing evidence is "irrelevant" with respect to the as applied challenges, (See: Section ill.J, herein) 16 .._. .- .- '-' - purpose, (2) must not advance or inhibit the practice of religion, and (3) must not foster excessive government entanglement with religion, When considering an Establishment Clause claim under the Florida constitution, a fourth consideration has been added: "The statute must not authorize the use of public moneys, directly or indirectly, in aid of any sectarian institution. Rice v. Slale, 754 So.2d 881, 883 (Fla, 5'h DCA 2000), rev. denied, 779 So.2d 272 (Fla. 2000).ln the case at bar, there are simply no facts which support an as applied Establishment Clause violation by the CEB. Count ill should be dismissed. D. Count IV Of The Comnlaint Should Be Dismissed Count N of the Complaint alleges a cause of action based on the federal Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. ~ 2000cc, etc, (hereinafter referred to as RLUIPA). RLUIPA provides that the "government shall not impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person... unless the government demonstrates that imposition of a burden on that person ...is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest" 42 V.S.C. ~ 2000cc(aX1XA)&(B). 1. RLUlPA is Uncoustitutional a. History oCRLUIPA In the SlUIllUer of 2000, both houses ofthe United States Congress unanimously passed the Religious Land Use and Institutionalized Persons Act ("RLUIP A"), 42 U .s.C. ~ 2000cc, etc., Public Law No. 106-274. On September 22, 2000, President Bill Clinton signed RLUIP A into law. To understand RLUIP A's significance, however, wemust begin with an overview ofFree Exercise case law. 17 - - - - -- Prior to 1990, the Supreme Court had applied a "strict scrutiny" standard to determine the validity of laws allegedly having a negative impact on the free exercise of religion. Sherbert v. Vemp, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972). In 1990, the Supreme Court, altering the course of first amendment law, declared that a neutral law of general applicability represents no free exercise violation. Employment Division. Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). In response to Smith, Congress enacted the Religious Freedom Restoration Act, 42 U.S.C. ~ 2000bb, etc. ("RFRA") in 1993, There is no question that RFRA was an attempt by Congress to overrule the Smith decision, and restore the Sherbert and Yoder compelling interest test to free exercise jurisprudence. See: 42 US.C. ~ 2000bb(b)(I). RFRA provided that "government shall not substantially burden a person's exercise of religion even if that burden results from a rule of general applicability", unless the government "demonstrates that application of the burden to the person (1) is in furtherance of a compelling govenunental interest; and (2) is the least restrictive means of furthering that compelling govenunentaI interest, 42 US.C. ~ 2000bb-l(a)&(b), Congress based RFRA on Sections I and 5 of the Fourteenth Amendment, and its impact on state and local action was global and enormous. The Act applied to any branch, department, agency, instrumentality, and official of the United States as well as to any State or subdivision of a State. 42 U.S.C. ~ 2000bb-2(1). Furthermore, RFRA applied to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. 42 US.C. ~ 2000bb-3. In 1997, the Supreme Court found RFRA unconstitutional in City ofBoeme v. Flores, 521 U ,S. 507 (1997). Baeme involved a church located in ahistorically designated area in Berne, Texas. 18 -. ~ ~ '-' v The church sought a permit to demolish the existing building in order to build a larger structure. The city denied the permit request, and the church brought suit under RFRA claiming that the zoning ordinance imposed a substantial burden on the church's free exercise of religion, and was not supported by a compelling state interest accomplished in the least restrictive means. ld. at 511-512, In Boerne, the Supreme Court stated that Section 5 legislation may only be enacted to remedy an unconstitutional state of affairs when measured by the substantive standard set by the Court. ld. at 532. The Court will judge whether a Congressional act is properly remedial by inquiring whether it is congruent and proportional to the alleged violation, ld. at 530. In finding RFRA unconstitutional, the Supreme Court detennined that Congress' promulgation ofRFRA was not proportionate and congruent to any alleged violations, and therefore Congress had exceeded its enforcement power under Section 5 of the Fourteenth Amendment because it "contradicted] vital principles necessary to maintain separation of powers and the federal balance." ld. at 536, In a concurring opinion, Justice Stevens concluded that RFRA violated the Establishment Clause of the First Amendment by preferring organized religious groups over non- religious groups. Jd. at 537, After the Boorne decision, mindful of the need to attempt to create a sufficient record of religious discrimination, the House ofRepresentatives' Subcommittee on the Constitution conducted hearings to assess the need for federal protection of religious freedom. These hearings led to the introduction of the Religious Liberty ProtcctionAcls of1998 and 1999 ("RLP A") which., in essence, attempted to re-enact RFRA through the Commen:e and Spending Clauses. H.R. 4019, 105"' Congo (1989) and H.R. 1691, 106"' Cong, (1999). RLPA stalled in the Senate, and was never enacted into law, Congress, however, was not finished. Relying primarily on the legislative record created 19 --- - ~ '-" ....,I during the consideration ofRLP A, RLUIP A was enacted in 2000. b. The Act Unlike RFRA which was global in its approach, RLUIP A addresses two distinct, albeit unrelated areas, protection of]~d use as religious exercise, 42 U.S.c. ~200Occ, and protection of religious exercise of institutionalized persons, 42 U.s.C. ~ 200Occ-l, RLUIPAprovides that "[n]o goverrunent shall impose Dr implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. ~ 2000cc(a)(1)(A)&(B). RLUIP A has three jurisdictional provisions which provide the Act with an extremely broad reach and scope. 42 U.S.c. ~ 2000cc(a)(2). The first basis applies the Act's "substantial burden clause" to any "program Dr activity that receives Federal financial assistance, thus invoking the Spending Clause power. 42 U .S.C, ~ 200cc-( a)(2)(A). The seoond basis applies RLUlP A whenever a perceived effect on "commerce with foreign nations, among the several States, or with Indian tribes" exists invoking the Commerce Clause power. 42 U.S.C, ~ 2000cc-(a)(2)(B). The third basis applies RLUlP A to any "implementation of a land use regulation or system ofland use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make individualized assessments of the proposed uses for the property involved." 42 U.S.C. ~ 2000cc-(aX2)(C). Co Claims ofUnoonstitutionaUty 20 '-" -- .- i.. SeDaration of Powen "The structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches - - the Legislative, the Executive, and the Judicial - - placing both substantive and proceduraJlimitations on each." Metropolitan Washington Airports Authority v. Citizensfor the Abatement of Aircraft Noise. Inc., 501 u.s. 252,272 (1991). It is this very structure of the Constitution that exemplifies the concept of the separation of powers, Miller v. French, 530 U.S. 327, 341 (2000), citing, INS. V. Chadha, 462 U.S. 919, 946 (1983). 'The ultimate purpose ofthis separation of powers is 10 protect the liberty and security of the governed," Metropolitan, ld., and to act as a "defense against tyranny". Loving v. United States, 517 U.S. 748, 756 (1996). "The system of separated powers and checks and balances established in the Constitution was regarded by the Framers as a self-executing safeguard against encroachment or - aggrandizement of One brancb at the expense of the other." Buckley v. Vateo, 424 U.S. 1, 122 (1976). While the separation of powers doctrine does not create an impregnable wall between the three branches of govenunent, "it remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another". Loving, 517 U.S. at 757. The central prerogative of the Judicial department under Article ill of the Constitution is "to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), This core function of the Judicial department was made clear even before Marbury when Alexander Hamilton wrote: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law , It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act 21 .- '-' ....,I -- proceeding from the legislative body." The Federalist No. 78, at 492 (Alexander Hamilton) (Benjamin F, Wright ed., 1961). The constitutional scholar, Thomas Cooley, deScribed the Judicial department's power as prohibiting the Legislature from compelling "the courtS...to adopt a particular construction of a law [and] cannoLrequire of them a construction of the laws according to its own views." Thomas Cooley, ConstitutionalLimitations 94-95 (1868), The Supreme Court, and only the Supreme Court, is the "ultimate interpreter of the constitution." Balcer v. Carr, 369 U.S. 186, 211 (1962). Where the Legislative or Executive departments try to overtake this core judicial function, it violates the separation of powers. See also: United States v. Nixon, ,418 U.S. 683, 703 (1974); Plaut v. Spendthriji Farm. Inc., 514 U.S. 211, 239 (1995). In Smith, the Supreme Court's statement of the free exercise standard was stated in clear and unambiguous teIJIIS. The Court held that generally applicable, religion neutral laws that have the - effect ofburdening a particular religious practice need not be justified by a compelling governmental interest. Smith, 494 U.s, at 883-885. The Court reaffirmed its commitment to its free exercise doctrine announced in Smith with its decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). The opinion of the Court, written by Justice Kennedy, declared: "In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified.by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. Id. at 531. There is no question, though. that Congress' has attempted to override the Smith and Hialeah standard, and thus violate the separation of powers doctrine. First, Congress enacted RFRA, an act 22 - ......, ...., -- that was clearly intended to override Smith! See: 42 U.S.C. ~ 2000bb(b)(I) [The pUIpOses oflhis Act (RFRA) are-{1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 US, 398 (1963) and Wiscon:lin v. Yoder, 406 U,S. 205 (1972).] After the Supreme Court held RFRA unconstitutional in Boerne, Congress eventually passed RLUIP A. RLUIP A, however, is nothing more than a re-packaged version ofRFRA, Even though RLUIP A's scope is narrower than RFRA's, it remains that RLUIP A was enacted to dictate the standard of scrutiny to be employed in free exercise cases. RLUIP A is wrique. There are no other statutes enacted by Congress which dictate the standard of review for alleged constitutional violations." In direct contravention of Smith and Hialeah, Congress passed into law the compelling interest and least restrictive means test, a test that the Supreme Court had stated was not the traditional one employed in free exercise cases. In doing so, Congress has co-opted the Court's - interpretive role. RLUIP A violates the separation of powers doctrine, and is therefore unconstitutional. ii. Establishment Clause The Establishment Clause of the First Amendment states: "Congress shall make no law respecting an establishment of religion..." The purpose of the Establishment Clause, which is specifically addressed to Congress, is to prevent the wrion of Congress with organized religion. "The . As Congressman Henry J, Hyde pointed out during its enactment, RFRA' s very title hetrayed its constitutional violation: ''Congress writes laws - it does not and cannot overrule the Supreme Court's interpretation of the Constitution and thus it is unable to 'restore' a prior interpretation of thePirst Amendment." H,R. Rep. No. 88, 103d Cong., l"Sess. 15 n.3 (1993). 10 During oral argwnent on the Defendants' Motions for Summary Judgment, cOllllsel for the United States of America admitted as much. (Ok 223, p.5t, lines 13-25; p.52, lines 1-6) 23 ~ '-' -' - 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Govenunent can set up a church, Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another." Everson v. Board of Education, 330 U.S. 1, 15 (1947). In Texas Monthly, Inc. v. Bullock, 489 U .S, 1, 8-9 (1989), the Supreme Court held that "[ i]n proscribing all laws 'respecting an establishment of religion' , the Constitution prohibits, at the very least, legislation that constitutes an endorsement of one or another set of religious beliefs or of religioD geuera1ly. It is part of our settled jurisprudence that 'the Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization"'. (citations omitted) (emphasis added) "The core notion animating the requirement that a statute possess 'a secular - legislative purpose' and that 'its principal orprimary effect...be one that neither advances nor inhibits religion,' Lemon v. Kurtzman, 403 U.S., at 612, is not only that government may not be overtly hostile to religion but also that it may not place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general...and conveying the message that those who do not contribute gladly are less than full members of the community." Under the test in Lemon v. Kurtzman, 403 U,S. 602, 612-13 (1971), a statute (1) must have a secular purpose, (2) must not advance or inhibit the practice of religion, and (3) must not foster excessive govermnent entanglement with religion. RLUIP A does not satisfY this lest. There is no secular purpose in RLUIP A. The plain purpose is to provide statutory protection for all substantial land use burdens on religion, whether constitutionally protected or not. RLUIPA establishes an across-the-board scheme that deliberately singles out religious practices as a 24 - -- -- - congressionally favored class of activity in land use law. Congress has provided no secularrationale as to why such special treatment is necessary to justify RLUIP A- There is no neutral effect. Religious organizations, under RLUIP A, becOlpe privileged members of every community on land use matters. The sheer breadth and substantive strength of RLUIP A advances religion, both in absolute tenns and in relation to nonreligious forms ofbelief and practice. For example, under RLUIPA, a place of worship is given significant advantages not enjoyed by other, secular land owners, RLUIP A fails the entanglement prong by forcing every local governmental entity to become an expert on every religion. There is now necessary entanglement every time a local community seeks to enact a land use law, for it must investigate whether the law will be the means of accomplishing its goal that is the least restrictive means of every religion's requirements. That _ cannot be done without extensive investigation into the theological requirements of every religion. Unlike the procedure envisioned by the Supreme Court in Smith where a governmental entity must act neutrally and in a generally applicable way, and then may consider specific requests for accommodation, RLUIP A requires complete understanding of all religious tenets before acting. RLUIP A both entangles and strangles local lawmaking ability, In Lee Y. Weisman, 505 U.S. 577,587 (1992), the Supreme Court held that government may not endorse themessage of a particular religion. RLUIP A endorses a universal message: government favors religion. This message violates the fundamental constitutional requirement of neutrality on issues of conscience. See: Board of Education of Kiryas Joel Y. Grumet, 512 U.S. 687 (1994), By entangling religion and Government and byprivilegingreligion, RLUIP A violates the Establislnnent Clause. 25 - The Sixth Circuit Court of Appeals has recently held that RLUIP A is unconstitutional in that it violates the Establishment Clause ofthe First Amendment. Cutter v. Wilkinson, _ F 3d ~ 2003 -- U.s. App. LEXIS 22840 (6'" Cir. November 7,2003). Three United States District Courts have held that RLUIPA is unconstitutional. Madison v. Ritter, 240 F. Supp,2d 566 (W.o. Vir. 2003); Ghashiyah v. Department of Corrections, 250 F. Supp,2d 1016 (E.D. Wis. 2003), overruled by Charles v, Verhagen, 2003 U.S. App. LEXIS 22297 (7th Cir. October 30, 2003), and Elsinore Christian Center v. City afLake Elsinore, Case No. 01-04842-SVW-(RCX) (C.D. Calif. August 21, 2003). Finally, in City of Boeme v. Flores, 521 U.S. 507, 536-37 (1997), Justice Stevens, in a concurring opinion, stated: "In my opinion, the Religious Freedom Restoration Act of1993 (RFRA) is a 'law respecting an establishment of religion" that violates the First Amendment to the Constitution. If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it - is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutrallaw...the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This preference for religion, as opposed to irreligion, is forbidden by the First Amendment." Wallace v. Jaffree, 472 U.S. 38, 52-55 (1985). RLUIP A does not simply erase obstacles for those who seek free exercise protection. It gives those persons an unwarranted "leg up" over all others, and thus violates the Establishment Clause of the First Amendment. ill. Fourteeuth Amendment 26 -- -- -- -- -- '-' Section 1 of the Fourteenth Amendment provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person oflife, liberty, or property, without due process oflaw; nor deny to any person within its jurisdiction the equal protection of the laws." Section 5 of the Fourteenth Amendment provides: ''The Congress shall have power to enforce, by appropriate legislation, the provisions oftrus article." ill striking down RFRA, the Supreme Court in Soeme stated that while "it is for Congress in the first instance to determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment; and its conclusions are entitled to muchdeference."Congress' discretion is not unlimited, however, and the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution." 521 U.S. at 536, citing Katzenbach v, Morgan, 384 U.S, 641, 651 (1966), In defining those limits, the Court held: "Congress' power under ~ 5, however, extends only to enforcing the provisions of the Fourteenth Amendment. The Court has described this power as "remedial", The design of the Amendment and the text of ~ 5 are inconsistent with the suggestion that Congress has the power to decree the substance ofthe Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of tbe Free Exercise Clause cannot be said to be enforcing the Clanse. Congress does not enforce a constitutional right by changing wbat the right is. It has been given the power "to enforce', not the power to detennine what constitutes a constitutional violation." 521 U.S. at 519. (Emphasis added) The Court proposed the following test to determine whether a congressional enactment is constitutional under ~ 5: ''There must be a congruence and proportionality between the injury to be 27 - '-" .- prevented OT remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. n 521 U.S. at 520. In short, Boerne "continued that it falls to [the courts], not Congress, to define the substance of constitutional guarantees." Elsinore Christian Center v. City o/Lake Elsinore, Case No. CY-OI-04842, (Cn. Calif August 21,2003), citing, Nevada Department o/Human Resources v. Hibbs, 2003 U.s, Lexis 4272 (May 27,2003), In Elsinore, Judge Stephen Wilson analyzed the Legislative Findings supporting RLUlP A, and found that "the hearing record consists of a relatively small number of anecdotal instances in which religious assemblies were dissatisfied with zoning decisions or regulations, few of which constitute state or municipal action of a clearly unconstitutional character." (page 36.) Going beyond the scant legislative record, Judge Wilson determined that, even though RLUlP A is narrower in its focus, the land use area does not present a "landscape...so pervaded by -- religious bigotry that this blunderbuss of a remedy can be descnoed as 'congruent and proportional' to the perceived injury," (page 40.) "By vastly e"Panding the types of exercise protected by the most exacting standard of review, Congress has effectively redefined the First Amendment rights it is purporting to enforce. The result is likely to be...that many land use decisions risk being invalidated despite being legitimately motivated, simply because the aggrieved landowner is a religious actor." (page 39.) The Court determined that Section2(a) ofRLUlP A exceeds Congress' power under 9 5 of the Fourteenth Amendment. The analysis in Elsinore is persuasive. RLUIP A is an unconstitutional exercise of Congress' 9 5 authority because there is no convincing evidence of a widespread and persisting pattern of constitutional violations toward religious landowners, and even if such a pattern existed, RLUIP A is not congruent and proportional to such a pattern. 28 ~ - ~ - Zoning laws burden all landowners, and there is no evidence that religious actors have been or are being singled out by local governments for discriminatory action. Moreover, enacting RLUIP A to remedy whatever slight animus may exist is akin to shooting a mouse with an elephant gun, As discussed by the Court in Elsinore. employing the strict scrutiny and least restrictive means test and defining religious exercise as broadly as RLUIP A does, means that all governmental land use decisions under RLUIP A are subject "to the single most searching standard of judicial inquiry and one historically reserved for restrictions on the core exercise of fl.Uldamental constitutional rights." (page 39.) In sum, RLUIPA is so thoroughly disproportionate and incongruent to what it wants to achieve that it violates the Fourteenth Amendment, and is l.Ulconstitutional.' Iv. Commerce Clause In United States v. Lopez, 514 U.S. 549, 558 (1995), the SuprCllle Court reviewed the .- Commerce Clause, and found that modem Commerce Clause jurisprudence has "identified three broad categories of activity that Congress may regulate under its commerce power. n "First, Congress may regulate the use of the channels of interstate conunerce...Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce even though the threat may come only from intrastate activities...Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce,mi.e., those activities that substantially affect interstate commerce." ld. at 558- 559. In Lopez, the Gun-Free School Zones Act of1990 ("GFSZA"), 18U.S.C. ~ 922, which made it a federal crime to knowingly possess a firearm in a school zone, was held 1ll1constitutional as exceeding Congress' authority under the Commerce Clause. ld. at 551. The Court's central focus 29 - -- -....I - was that a criminal statute had nothing to do with commerce or any sort of economic enterprise. Id. at 561. In addition, the Court held that the Act contained "no express jurisdictional element which might limit its reach to a discrete set of fireann possessions that additionally have an explicit connection with or effect on interstate commerce. ld. at 562, The Court noted that neither the Act or its legislative history contain express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone, and that the link between gun possession and a substantial effect on interstate commerce was attenuated. !d. at 563-567. Five years later, the Supreme Court continued to narrow Congress' Commerce Clause power. In United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court struck down 42 U.S.C. 9 13981, part of the Violence Against Women Act of 1994 ("VAWA''), Based upon the Lopez - decision, the Court found that gender motivated crimes are not economic activity, ~ 13981 contained no jurisdictional element, and the existence of congressional findings, though more numerous than those in Lopez, was still insufficient, by itself, to sustain the constitutionality of Commerce Clause legislation, ld, at 613-616. The Court specifically noted that if the Acts in Lopez and Morrison were constitutional, Congress may then legislate in areas of traditional state regulation. ld. at 616-617. "The Constitution requires a distinction between what is truly national and what is truly local." ld. at 61 7- 618, citing Lopez, 514 U.S. at 568. Based upon the Supreme Court decisions in Lopez and Morrison, RLUJP A is unconstitutional. Land use regulation is the activity a court must look at to determine whether RLUJP A is valid under the Commerce Clause. Under Lopez and Morrison, a regulated activity must 30 - -- '-' .- constitute economic activity by involving economic enterprise and commercial transactions. Land use regulation does neither. Land use regulation, by itself, is not an economic endeavor nor does it involve a transaction or the buying or selIing of goods. While land use regulation might encourage or discourage future land sales, it is the nature of the economic activity that is the key to the determination, not the economic effects. Future impacts on a commercial transaction do not bring land use regulation with the Court's narrow definition of economic activity. Further, Congress failed to set forth legislative findings regarding the effect of land use regulation that allegedly burden religion on interstate commerce, Congress passed RLUIP A based on the legislative history of the failed RLPA. See: 146 Congo Rec. S7775 (July 27,2000). The history dealt with alleged burdens placed on religious actors by land use regulators, See: H.R. Rep, No.1 06-219, at 18-24 (1999). Little, ifany, ofthe history focused on the potential economic impact ,.-.. land use decisions might have on the interstate economy. See: H.R. Rep. No. 106-219, at 18-24 (1999). The link between land use regulation and its effect on interstate commerce is far too attenuated to provide Congress with authority to regulate land use under the Commerce Clause. In Lopez and Morrison, the Court rejected the "but-for causal chain" approach that Congress had employed with the GFSZA and VA W A as "piling inference upon inference". Lopez, 514 U.S. at 563-568; Morrison, 529 U.S. at 615-616. RLUIPA, too, requires the same piling of inference upon inference to connect land use regulation to interstate economy. Finally, land use regulation, similar to police protection, has always been a province of the state and local governments. The Framers of the Constitution never gave Congress the anthority to legislate zoning or land use. The Commerce Clause did not give Congress the authority to enact 31 - - -....I _. RLUlP A, and it is therefore unconstitutional. 2. Even Assuming RLUlPA Is ConstitutionaJ. ThePlaintifi'Has Not Demonstrated A Meritorious Claim Thereunder a. Substantial Burden In the RLUlP A analysis, the first step is for the Plaintiff to establish a "substantial burden". RLUIP A does not define "substantial burden" however, two decisions of the Middle District of Florida, relying on the Ninth Circuit decision in Vernon v. City of Los Angeles, 27 F.3d 1385, 1393 (9" eir, 1994) have defined substantial burden as: "the obligation to prove that a governmental [action] burdens the adherent's practice ofhis or her religion by pressuring him or her to conimit an act forbidden by the religion or by preventing him or her from engaging in conduct or having a religious experience which the faith mandates. This interference must be more than an inconvenience; the burden must be substantiaL" Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995); Daytona Rescue Mission. Inc. v. Varga, 885 F. Supp. 1554, 1559-60 (M.D. FIn. 1995). - The Supreme Court has consistently held that not every burden on religious practice triggers a free exercise violation. Prince v. Massachusetts, 321 U.S. 158, 166 (1944) [prohibiting children from "street preaching" was not a substantial burden on religious practice]; Braunfeld v. Brown, 366 U.S. 599, 603 (1961) [prohibiting Orthodox Jews from opening place ofbusiness on Sunday to allow for religious observance on Saturday was not a substantial burden on religion]; U.S, v. Lee, 455 U. S, 252, 260 (1982) [payment of social security tax does not place substantial burden on religious practice of Amish]; Goldman v. Weinberger, 475 U,S. 503 (1986) [inability for Orthodox Jew to wear skull cap as part of Air Force unifonn not a substantial burden on religious practice]; Bowen v. Roy, 476 U.S. 693, 696 (1986) [requirement to obtain social security nwnber did not impose substantial burden on religious practice]; Lying v, Northwest Indian Cemetery Protective 32 --- '-' -...I - Association, 485 U.S. 439 (1988) [building of road over sacred ground not a substantial burden on religious practice]; Hernandez v. Commissioner of IRS, 490 U.S. 680, 698-99 (1989) [disallowance of religious tax deduction does not place substantial burden on religion). fu the present case, the Plaintiff offered no evidence before the CEB that the Code substantially bW'dened his religious practice. Not one person testified that the religious services, Torah study group, or Hebrew School had to be conducted at the Property or the Plaintiff would be in violation ofhis religious practices. fu fact, the opposite was lnle. The CEB heard evidence that the Plaintiff conducted religious services away from the Property at the Wyndham Orlando Resort for the Jewish holidays of Rosh Hashana and Yom Kippur. There were no facts before the CEB to support a substantial burden on the Plaintiff, and RLUIP A is, therefore, inapplicable. See: Vineyard Christian Fellowship of Evanston. Inc, v. City of Evanston, 250 F, Supp.2d 961,991-93 (N.D. ill. ~ 2003). The Plaintiff has never (and still has not) applied for a special exception under the Code. RLUlPA does not relieve a land owner from doing so. The sponsors ofRLUlPA., Senators Orin Hatch and Ted Kennedy, in a joint statement filed in the Congressional Record, stated: "This Act, RLUIP A, does not provide religious institutions with iliununity from land-use regulation, nor does it relieve religious institutions from applying for variances, special permits or exceptions, hardship approval, or otherreliefprovisions in land-use regulations, where available, without discrimination or llllfair delay", By failing to apply for a special exception, the Plaintiff cannot demonstrate that he has been substantially burdened. b. Compelling Governmental Interest Assuming, arguendo, the Plaintiff established a "substantial burden", then it is without 33 - - '-' - question that the CEB had a compelling governmental interest in enforcing the Coile against the Plaintiff. "[T)he power oflocal governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities..." Schadv. Borough of Mount Ephraim, 452 U.S. 61,68 (1981). "Municipalities may zone land to pursue any number of legitimate objectives related to health, safety, morals, or general welfare of the community." Scurlock v. City ofLynn Haven, 858 F.2d 1521, 1525 (11" Cir. 1988). ''lt is well settled that both traffic safety and aesthetics are substantial governmental goals." Members of City Council v. Taxpayersfor Vincent, 466 U.S. 789, 807 (1984). The purpose of residential zoning is to prevent against commercial and industrial intrusion. AJ; the Supreme Court stated in the landmark case of Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 391 (1926): - . .....the exclusion of buildings devoted to business, trade, etc. from residential districts bears a rational relation to the health and safety of community. Some of the grounds for this conclusion are promotion of the health and security from injury of children and others by separating dwelling houses from territory devoted to trade and industry; suppression and prevention of disorder; facilitating the extinguishment of fires, and enforcement of street traffic regulations and other general welfare ordinances..." In the case at bar, the Code is based on safety concerns (keeping the streets open for emergency vehicles), aesthetic concerns (keeping the streets free of the clutter and eye sore of parked vehicles), and welfare concerns (allowing residents of a subdivision easy access to homes without vehicular congestion and/or damage to property). There was a clear compelling interest on the part of the CEB to enforce the Code, and the Plaintiff can offer no evidence or testimony to the contrary. Co Least Restrictive Means 34 ~ c- ..-- - -- -...I The Code is the least restrictive means for government to accomplish its goal of keeping a subdivision's streets safe, open and aesthetically pleasing. There is no other way to .achieve these goals but to prolubit those activities in a residential subdivision that will reoeatedlv draw excessive and repeated numbers of vehicles into a subdivision. For example, the ticketing and/or towing of vehicles in violation of parking rules and regulations in a subdivision is expensive, cumbersome, impracticaI, and inefficient. It would require the County to maintain an ever present police force to mOnltor the daily activities at the Property. The County simply cannot (nor should it be required for the sole benefit of the Plaintiff) to do that. The least restrictive way of enforcing the compelling governmental interest is by prohibiting those ventures that create the problems to begin with. The Plaintiff can not put forth any evidence or testimony that there is a less restrictive means of accomplishing the compelling governmental interest. See: First Assembly of God of Naples, Florida, Inc. Y. Collier County, Florida, 20 F.3d 419 (11th Cir, 1994), reh. denied, 27 F.3d 526 (11th Cir. 1994), cert. denied,. 513 U,S, 1080 (1995); Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F, Supp. 1554 (MD. Fla. 1995); First Baptist Church of Perrine v. Miami-Dade County, 768 So.2d 1114 (Fla. 3d DCA 2000), cert. denied, 2001 Fla. Lexis 1148; Town v. State, 377 So.2d 648,651-52 (F1a. 1979), cert. denied, 229 U.S. 803 (1979); Miami Beach United Lutheran Church v. City of Miami Beach, 82 So.2d 880, 882 (F1a. 1955). d. Conclusion The Plaintiff did not demonstrate a substantial burden under RLUIP A. Even assuming one existed, the CEB received no evidence or testimony that disputed or negated the compelling governmental interest or that the County achieved its compelling governmental interest in the least restrictive means possible. The Plaintiff's claim under RLUlPA fails, and Count N should be 35 '-" -- - dismissed. E. Count V Of The ComDlaint Should Be Dismissed Count V of the Complaint alleges a cause of action based on the Florida Religious Freedom ReStoration Act of 1998, S 761.01, FIa. Stat. (hereinafter referred to as "FRFRA"). After the Supreme Court held the Federal RFRA unconstitutional at least as applied to the states in City ofBoeme v. Flores, 521 U.S. 507,536 (1997), the Florida Legislature passed FRFRA in 1998 which was modeled after the Federal RFRA, and like the Federal RFRA sought to establish the compelling interest test set forth in Sherbert. FRFRA provides that: (1) The government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, except that government may substantially burden a person's exercise of religion only ifit demonstrates that application of the burden to the pernon: .- (a) Is in furtherance of a compelling government interest; and (b) Is the least restrictive means of furthering that compelling governmental interest. As FRFRA is almost identical to RLUlP A, the Defendants adopt the argument set forth in m.D. above, and request that Count V be dismissed. F. Count VI Of The ComulBint Should Be Dismissed Count VI of the Complaint alleges B cause of action based on a violation of the Free Speech and Assembly clauses of the federal and state constitutions. 11 Assuming that the speech referred to in the Complaint comes within the ambit of the First Amendment, the next question is whether the 11 This Court previously beld that there is no evidence of a violation ofthe right of free speech. (Order dated September 11,2002, Doc, 94.) 36 - '-" -' - government conduct is neutral or content based. One World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1285-86 (1 I" Cir, 1999). Because the subject zoning ordinances do not address the subject matter of the speech, they are a content-neutral regulation of First Amendment activity, and must pass the time, place, and manner teslId at 1287. The government may impose reasonable restrictions on the time, place, and manner of protected speech, provided the restrictions (1) are justified without reference to the content of the speech, (2) are narrowly tailored to serve a significant government interest, and (3) leave open ample a1temative channels for communication of the information. fd,; Schadv. Borough of Mount Ephraim, 452 U.S. 61, 75-6 (1981). There were no facts before the CEB which established that the Code failed the time, place, and manner test. The Code was justified and narrowly tailored. Schneider v State of New Jersey, 308 U.S. 147,160 (1939). ["Municipal authorities, as trustees for the public, have the duty to keep their - communities' streets open and available for the movement of people and property...'l The Code left the Plaintiff ample alternative channels to communicate, a place of worship can be had in a properly zoned area or in a place that can accommodate the congregants. As the evidence demonstrated, the Plaintiffhad conducted religious services at places other than the Property. The Plaintiff offered no facts to support an as applied claim for violation of free speech, Therefore, Count VI should be dismissed. G. Count VII Of The Comnlamt Should Be Dismissed Count VII of the Complaint alleges a cause of action based on a violation of the right to pri vac;y Wlder the federal and state constitutions." The federal constitution does not mention a right 12 This Court previously held that there is no violation of the right to privacy. (Order dated September 11, 2002, Doc, 94,) 37 ~ '-' ....." - to privacy, however, the United States Supreme Court has recognized that one aspect of the "liberty" protected by the due process clause ofthe fourteenth amendment is ua right of personal privacy, OT a guarantee of certain areas or zones of privacy," Carey v. Population Services International, 431 U.S, 678, 684 (1977), citing, Roe v. Wade, 41 0 U.S. 113, 152 (1973). The federal right encompasses and protects "the personal intimacies of the home, the family, marriage, motbeIhood, procreation, and child rearing". State y, Conforti, 688 So.2d 350, 357 (Fla. 4th DCA 1997), rev. denied, 697 So.2d 509 (Fla. 1997). (Citation omitted). Florida's right to privacy is broader in scope than the right of privacy implied under the federal constitution. Winfield y, Division of Pari-Mutuel Wagering, Dept. of Business Regulation, 477 So.2d 544, 547 (1985), In Winfield, the Court held that "[t]he right of privacy is a fundamental right which we believe demands the compelling state interest standard," Id. However, the Court - noted, "before the right of privacy is attached and the delineated standard applied, a reasonable expectation of privacy must exist." [d.; City of North Miami. Florida v. Kurtz, 653 So.2d 1025, 1027-28(F1a.1995). Pottingerv. CityofMiami,8l0F.Supp.155I,1574(S.D.FIa. 1992). (citation omitted.) In determining whether a reasonable expectation of privacy exists, the court must consider all the circumstances to detennine whether an individual has a legitimate expectation of privacy. Pottinger, id, In the case at bar, there were no facts before the CEB which 'established that thePlaintiffhad an expectation of privacy. To the con1:ra:ry, the facts revealed that the Plaintiff advertised religious services, a Torah study group, and a Hebrew School on the Internet and in a brochure. By inviting the public into the Property for pwposes of conducting the above activities, the Plaintiff waived and forfeited any claim to an expectation of privacy in his home, Count vn should be dismissed. 38 ,~ '-' ......, - B. COllDt vm or Tbe Com{llaint Sbould Be Dismissed Count VITI of the Complaint alleges a cause of action based on a violation of the Due Process Clauses of the federal and state constitutions. " The test for determining whether a law is void for vagueness requires that the legislation give a person of ordinary intelligence notice of what conduct The Code is not vague, The ordinances clearly set out what types of uses may be made to is prohibited and that it provide explicit standards in order to avoid arbitrary and discriminatory enforcement. Grayned y, City of Rockford, 408 D.S, 104, 108-109 (1972). property located in an R-IA zoning classification, what types of land uses will require a special exception, and what types of land uses are strictly prohibited. The term "primarily" is a term that is readily understandable by people of reasonable intelligence, International Eateries of America, Inc. v. BriYWard COU1Ity, 726 F. Supp. 1568, 1578 - (S,D. Fla. 1989), aff'd, 941 F.2d 1157 (11" Cir. 1991), cert. denied, 503 U.S. 920 (1992) [The court held "that the term "church", although not specifically defmed, has a clear enough common meaning to provide adequate notice to those persons who may be subject to the provisions of the distance ordinances.]; L.B. v. State, 700 So.2d 370 (Fla. 1997). [The term "common pocketknife" was not unconstitutionally vague.] "[I]t is an established principle of our constitutional jurisprudence that a statute is considered vague if it 'does not give people of ordinary intelligence fair notice of what constitutes forbidden conduct'" Id. at 371. Life Concepts. Inc. y. Harden, 562 S02d 726 (Fla, 5" DCA 1990) [The Court held that the term "compatible", even though it was not defined, has a plain and ordinary meaning which could be readily understood.] 13 This Court previously held that there is no due process violation. (Order dated September 11,2002, Doc. 94.) 39 - -- -' - There was no evidence or testimony before the CEB that any of the Code provisions were vague or ill defined. The CEB applied the Code properly to facts before it, no due process violation occurred, and COImt VIII should be dismissed. I. Count IX or The Colt\PlaiDt Should Be Dismissed Count IX of the Complaint purports to allege a claim for civil conspiracy. 14 To establish a civil conspiracy, a plaintiff must show (a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy. Pezold Air Charters v. Phoenix Corporation, 192 F .R.D. 721, 726 (M.D, Fla. 20(0); Huntsman Packaging Corp, v. Kerry Packaging Corp., 992 F. Supp. 1439, 1447 (M.D, Fla. 1998). In the present case, other than the act of finding the Plaintiff in violation of the Code, the ~ Plaintiff knows of no other conspiratorial act conunitted by the CEB Members. Completely missing are any facts that would establish when the alleged conspiracy occurred, who participated in the alleged conspiracy, what the alleged conspiracy was actually intended to accomplish, and how the alleged conspiracy took place. Moreover, there are no facts that would notify the Defendants what unlawful act was allegedly accomplished, and how the Plaintiff was damaged by the alleged conspiracy. The only acts taken by the CEB Members were to hold a hearing on the violations charged against the Plaintiff pursuant to Chapter 162, Fla. Stal and Chapter II, Orange COlIDty Code. The CEB Members held a hearing on March 20, 2002, At the hearing, testimony was taken from 14 It appears from the face of the Complaint that this claim is against the CEB Members only. 40 .- - - - -- -- witnesses from both parties, evidence was entered into the record, and argument of counsel was heard by the CBB Members. The hearing was open to the public, and lasted approximately two and one halfhours. The Plaintiff had the opportunity to cross-examine all of the County's witnesses. Members of the media and press were in abundant attendance at the hearing. At the conclusion of the hearing, the Board voted four (4) to two (2) in favor offinding the Plaintiff in violation of the Code. It is difficult to imagine how any of these acts by the CEB members could rise to the level of a civil conspiracy. Count IX should be dismissed, J. Evidence And Testimony Relatinl!: to 'Paul Bosch. Dawn Bosch. Letter Dated June 21.2002 (plaintiff's Exhibit 1): Incident Summary (plaintiff's Exhibit 2): Letter Dated May 2. 2002 (plaintiff's Exhibit 3); Reports Relatinl!: To Model Homes Iu Horizon West Deyelonment (plaintiff's Exhibit 4): And Renorts Relatinl!: To Model Homes in Baldwin Park DeyeloDment (plaintiff's Exhibit 5) Should Be Excluded At Trial In the Joint Pretrial Statement (Dk 23 5), the Plaintiffhas listed Paul Bosch and Dawn Bosch as witnesses, and has listed as Exhibits a letter dated June 21,2002 (Exhibit 1); an Incident Summary conceming Paul Bosch and Dawn Bosch (Exhibit 2); a letter dated May 2, 2002 (Exhibit 3); Reports Relating to Model Homes in Horizon West Development (Exhibit 4); and Reports Relating to Model Homes in Baldwin Park Development (Exhibit 5). Defendants believe that the testimony of Paul Bosch and Dawn Bosch and the above Exhibits will be offered by the Plaintiff in support of the Plaintiff's alleged Equal Protection claim. For the following reasons, the Defendants request that the testimony of Paul Bosch, Dawn Bosch, and Exhibits I, 2, 3,4, and 5 be excluded from the trial of this action. 41 ,_. - -...J On or about February 24,2003, the Defendants filed a Motion for Summary Judgment (Dk 125), a Memorandmn of Law in Support of the Defendants' Motion for Summary Judgment (Dk126), and Exhibits in Support of the Defendants' Motion for Summary Judgment (Dk 127). On or about April 14, 2003, the Plaintiff filed his Opposition to Defendants' Motion fOT Summary Judgment ("Opposition") (Dk 168). In the Opposition, the Plaintiff claimed with respect to the "as-applied" constitutional challenge, the only evidence and testimony that may be considered is the evidence and testimony that was before the Orange County Code Enforcement Board ("CEB') on March 20, 2002, and that any other evidence and testimony obtained after March 20, 2002, is "irrelevant because the Board (CEB) did not rely upon this evidence when finding Plaintiff in violation of the Ordinance" (Opposition, Dk 168, pp.14-l5, 17), - The testimony of Paul Bosch and Dawn Bosh and Exhibits 1, 2, 3, 4, and 5 were never . presented to the CEB by either party, and, therefore, the Plaintiff should not be able to rely upon it for his Equal Protection claim or any other claim. The Plaintiff now seeks to introduce the testimony and exhibits at trial even though it was the Plaintiff who stated that all post March 20, 2002, testimony and evidence was "irrelevant". Based upon the Plaintiffs own admission that the testimony of Paul Bosch and Dawn Bosch and Exhibits I, 2, 3, 4, and 5 are irrelevant, the , Defendants respectfully request that the testimony and exhibits be excluded from the trial of this action. Rule401 of the Rules of Evidence provides that '''relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 402 ofthe Rules 42 - - v -- of Evidence states, in part: "Evidence which is not relevant is not admissible", The Plaintiff has stated in his pleadings that any evidence and testimony not before the eEB on March 20, 2002 is irrelevant. There is no question that the testimony of Paul Bosch and Dawn Bosh and Exhibits 1,2,3, 4, and 5 were never before the eBB, and therefore, such testimony and evidence should be excluded from the trial of this action as irrelevant K. Exclude Testlmonv And Evidence or And Concerniul! Monetary Damal!e5 Should Be Excluded At Trial In a ~ 1983 action, compensatory damages cannot be based on the "abstract value" or "importance" of constitutional rights, Memphis Community School Distn'ct v. Stachura, 477 U.S. 299, 310 (1986), but must be based on actual proof of injury. Carey v. Piphus, 435 U.S. 246,264 (1978). The Plaintiffhas not provided the Defendants with any actual proof of injury, and any such __ testimony or evidence should be excluded from the trial of this action. Rule 26(a)(I)(C), Federal Rules of Civil Procedure requires a plaintiff to provide the defendant with its computation of damages in the initial stages of the lawsuit. In response to this requirement, the Plaintiff made the following initial mandatory disclosure concerning damages: "Plaintiff's damages based upon civil rights violations are continuing in nature until resolution of the merits of the action. Ai; such, a calculation of all damages is not feasible until the time this case is decided because the damages will be calculated up to the point of final resolution by jury awards. These damages are based upon a jury determination of the amount necessary to compensate for the violation of Rabbi Konikov's rights and could additionally include payment of any fines levied upon Rabbi Konikov along with attorneys' fees and costs associated with his efforts to protect his activities." During discovery, the Defendants propoWlded timely Interrogatories to the Plaintiff which included the following Interrogatory concerning damages: "S. State the amount of damages claimed by you, and provide a computation for all 43 - - - - j' --' "-" -- damages claimed." The Plaintiff responded to Interrogatory #8 with the same answer as it provided in its Rule 26(a)(I)(C) initial mandatory disclosure. At the Plaintiffs deposition on December 9,2002, the Plaintiff was asked the following: Q. Well, let's, then talk about money damages. Is one of the requests that you are making money damages? A. Vb-huh. Q. Okay. How much do you want from the five defendants? A. Well, that's an amount I can't say. It will only be -the amount will only be known much later - at a much later date, Q. What's that date that it would be known? A. At the end of - of this -of this- this case. (Konikov Depo., Exln'bitl, p.2l, lines 11-22) The Plaintiff was questioned whether he could set an amount of the monetary damages that he had allegedly suffered to the date of the deposition: Q, Have you been able to quantifY, by that I mean put a dollar amount on the damages that you believe have taken place thus far? A. No. I believe that the jury will decide that. Q. Okay, Is there any range of dollars that you are thinking about at the moment? A. Nothing that I could - that I have in my mind right now to share with you. (Konikov Depo., Exhibit 1, p,22, lines 23-25; p.23, lines 1-6) The Plaintiff failed to provide the Defendants with any actual proof of damages claimed in 44 " -- '-' -" this matter either in its initial mandatory disclosure, the answer to Interrogatories, or at his deposition. Under Rule 26( e)(I), Federal Rules of Civil Procedure, a party is under a duty to supplement its disclosures under Rule 26(a)(I)(C), at appropriate intervals, "if the party learns'that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing". The Plaintiff has never complied with its duty to supplement under Rule 26( e)( I), has never provided actual proof of damages, and has never made the damages information known to the Defendants through some other discovery process or in writing. Under Rule 26(e)(2), Federal Rules of Civil Procedure, a party is under a duty, seasonably, to amend a prior response to an interrogatory, "if the party learns that the response is in some -- material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing". Again, the Plaintiffhas never amended the response to Interrogatory #8 to provide proof of actual damages, or provided the information through some other means. The failure to supplement under Rule 26( e Xl) or amend under Rule 26( e )(2) is addressed in Rule 37(c)(1), Federal Rules of Civil Procedure. Rule 37(c)(I) provides "a party that without substantial justification fails to disclose information required by Rule 26( a) or Rule 26( e)( 1), or to amend a prior response to discovery as required by Rule 26(e)(2) is not, unless such failure is hannless, permitted to use as evidence at a tria1...any witness or information not so disclosed." The sllll(;tion of exclusion is automatic and mandatory unless the party to be sanctioned can show that its violation was either justified or harmless. Fasten. United States of America, 130 F. Supp.2d 68, - 45 - - .' ........ '-" 70 (D.C.C. 2001) (citations omitted). The Plaintiff cannot show that he is substantially justified or that there is no harm to the Defendants for failing to supplement or amend, and therefore, any proof at trial of actual damages should be excluded. . 1. Substantial Justification "Substantial justification requires justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request." Chapple v. State of Alabama, 174 F.R.D. 698, 701 (M.D. Ala. 1997) There is no substantial justification for the Plaintiff failing to supplement the Rule 26(a)(1 )(C) initial mandatory disclosure or amend Interrogatory #8, The Plaintiff has had sufficient time from the filing of the Rule 26(a)(1)(C) disclosure and the answer to the hiterrogatory #8 to provide evidence of actual damages to be sought and the calculations for same. In fact, the Plaintiff had an additional opportunity to provide such information at his deposition. The Plaintiff has utterly failed to do so. should not now be able to claim that he was justified in such failure, 2. Harm The Plaintiff's failure to provide any information whatsoever about the actual proof of damages sought or the computation of same is harmful to the Defendants, as they have no way to defend against the Plaintiff's damages claims. Permitting the Plaintiff, at trial, to ask for a specific amount of damages is simply "trial by ambush". Likewise, permitting the Plaintiff to "leave it to the Court's discretion" is nothing more than a disingenuous end run around Rule 26(a)(1 )(C), and is not permitted under the holdings in Carey and Memphis. The pmpose of Rule 26(a)(1)(C) is to impose a duty on a party seeking damages to provide the amount and calculations for same at the earliest 46 - -- .....,. date possible in order to accelerate the exchange of basic information and to facilitate in the possibility of settlement. See: Advisory Committee Notes, Rule 26, 1993 Amendments. By providing no actual proof of damages, the Plaintiff has negated the pwpose and intent of Rule 26(aXl)(C), and should be prohibited from requesting any monetary damages at trial. L. Testimonv And Evidence Of And Concerninf! The Death Of The Plaintiff's Mother Should Be Excluded At Trial In opposition to the Defendant's Motion for Summary Judgment, the Plaintiff filed an Affidavit (Dk 169, Exhibit 9) dated April 14, 2003. In paragraph 13 of the Affidavit, the Plaintiff stated: "In 2002, my mother died. 1 am currently in the year of mourning for my mother. During Aveilut, the year of mourning for an immediate family member, it is more preferable to pray the Shacharit, Mincha and Maariv prayers with a minyan, in one's home than in a Synagogue. (See Nitei Gavriellaws of Aveilut, volume 2, chapter 53, par 23, footnote 37) (sic) and the affidavit of Rabbi J. Immanuel Schochet." The Affidavit was the first time that the Plaintiff made the claim that it was more preferable to pray at his home during the mourning period. It is anticipated, then, that the Plaintiff will attempt to argue at trial that due to the death of his mother, he was required by Jewish law to pray at home. Even assuming that this is a correct analysis of Jewish law, the Plaintiff should be precluded from offering such testimony, IS The Plaintiff, outside ofhis reference to the year "2002" in his Affidavit, has never provided ., The Defendants are mindful of the sensitive nature of this matter. However, since it appears that the Plaintiff intends to raise this issue at trial, the Defendants have no other choice but to address the matter. 47 - - -- ........ the Defendants with the date of the death of his mother or when the year of mourning commenced.'. Without this information, it is impossible to know whether the year of mourning commenced prior to March 20, 2002, the date of the hearing before the CEB, or at some other time in 2002." The Defendants contend that the sole purpose for which the Plaintiff intends to enter this evidence is to gain sympathy with the Court. It has no probative value to the issues in this case, and any testimony or evidence concerning the Plaintiff's mourning period should be excluded. Rule 401 of the Rules of Evidence provides that '''relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the detCnnination of the action more probable or less probable than it would be without the evidence." Rule 402 of the Rules of Evidence states, in part: "Evidence which is not relevant is not admissible", The Plaintiff has provided no evidence of when his mother passed away, nor, more ~, importantly, how this would effect the issues in this case. Therefore, the evidence is irrelevant, and should be excluded from the trial of this action. Even assuming, arguendo, there is some relevance to the evidence, any such evidence should I. In the State court action, Sandlalee Hills, Section II Homeowners' Association, Inc. Y. Konikov, Case No. CIO-02-4864, Circuit Court, Ninth Judicial Circuit, three hearings were held on the matter of a preliminary injunction. The first hearing was held on October 31, 2002, and the Rabbi was not in attendance. At the third hearing on March 31, 2003, Judge Russell, reflecting on the Rabbi's absence, stated: "Well, he should have been here the first time. That is when I wonld have liked to have heard..." Counsel for the Rabbi interrupted the Judge, and stated: "His mother passed away," (Hearing Transcript, Exhibit A attacbed to this Trial Brief, p,6, lines 11-14) Whether this statement by counsel thattbe Plaintiff's mother passed away on or about October 31, 2002 was accwate or not, Defendants in the present case should not be required to guess as to the date of the Plaintiff's mother's passing away. 17 There was no evidence before the CEB that the Plaintiff was in mourning at the time oftbe hearing. 48 - ~ '-" -- be excluded as its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues. Rule 403, Rules of Evidence. Rule 403 requires a Court to conduct a balancing test, on the one side, the evidence's probative value, and, on the other side, the evidence's dangers. United States Steel, u'Cv. TiecD, Inc., 261 F.3d 1275,1287 (II'" Cir. 2001). Again, since this evidence was not before the CEB on March 20, 2002, it has no probative value, and any such value is substantially outweighed by unfair prejudice to the Defendants, or confusion of the issues. The Defendants request that any evidence concerning the passing away of the Plaintiffs mother be excluded from the trial of this action. M. Testimonv And Evidence Of And Concerninl! Tbe Sufficiency Ofne Evidence Before Tbe Code Enforcement Board Should Be Excluded At Trial Throughout this litigation, the Plaintiff has alleged that there was insufficient evidence of a - violation of the Code before the CEB to find the Plaintiff in violation of the Code. (For example, see: Transcript of Summary Judgment Hearing, Dk 223, p.135, lines 9-25, p, 136, lines 1-25, p.137, lines 1-25, p.138, lines 1-25,p.139, lines 1-13). The issue of the' sufficiency of the evidence before the CEB is not an issue before this Court, and any evidence or testimony of same should be excluded at tria!. It is prejudicial and improper to hear and/or consider any testimony concerning the sufficiency of the evidence or testimony before the CEB. First, this is an action brought by the Plaintiff pursuant to 42 U.S.C. ~ 1983 for alleged constitutional violations by the Defendants. Section 1983 authorizes a court to grant relief when a party's federally protected rights have been violated by a state or local official or other person who acted under color of slate law, The overall questions presented in this case are whether pertinent sections of the Code are facially 49 - - "'-" -- unconstitutional or if the sections of the Code were applied by the Defendants to the Plaintiffin an unconstitutional manner. Determining whether the evidence presented to the CEB was sufficient is not at issue under a 9 1983 action.I' Second, the proper vehicle to test the sufficiency of the evidence before the CEB is an appeal to the State Circuit Court. !i 162.11, Fla Stat.; 9 11-40, Orange County Code, not a de novo rehearing before this Court. The Plaintiff did not take an appeal from the Order of the CBB, and, as such, the CEB's Order is not now subject to appellate review by this (or any other) Court. Kirby v, City of Archer, 790 So.2d 1214, 1215 (Fla. I" DCA 2001); City of Plantation v. Vermut,583 So.2d 393, 394 (Fla. 4th DCA 1991). Therefore, this Court should exclude any evidence concerning the sufficiency of the evidence or testimony before the CEB. N. The CEB Members Are Entitled To Oua1ified Immunity - The CEB Members move for dismissal of all claims against them on the basis of qualified immunity. Qualified immunity protects government actors performing discretionary functions from being sued in their individual capacities, Lassiterv. AlabamaA&M University Board of Trustees, 28 F.3d 1146, 1149 (11 th Cir. 1994) (en bane). The doctrine shields government officials from liability to the extent that ''their conduct does not violate clearly established...constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). Qualified immunity protects government officials from always "err[ing] on the side of caution" by shielding them both from liability "and the other burdens of litigation, including discovery". Lassiter, 28 F.3d at 1149. 11 None of the nine Counts in the Complaint address the issue of the sufficiency of the evidence before the CBB. 50 . '-' - In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court described the framework for analyzing qualified immunity claims. "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officers conduct violated a constitutional right. This must be the initial inquiry. In the course of determining whether a constitutional right was violated on tbe premises alleged, a court might find it necessary to set forth principles which will become the basis for holding that a right is clearly estahlished. This is the process for the law's elaboration from case to case, and it is one reason for OlD' insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry... Ifno constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, ifa violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask wbether the right was clearly established. This inquiry, it is vital to note, must be undertaken in lig!:tt of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable." 533 U.S. at 201 (citation omitted), For the eBB members to claim a qualified immunity defense, a two step analysis is required. First, the court must evaluate whether the alleged conduct violated a constitutional right. Ifso, then - the court must assess whether that right was clearly established. In the present case, the CBB Members are accused of nothing more than carrying out their responsibilities under the Code. The CEB Members met on March 20, 2002, for the hearing concerning the Plaintiff's Code violation, conducted a full and complete hearing, heard the testimony and evidence ofboth parties, pennitted the Plaintiff to cross-examine the County's witnesses, heard oral argwnent of counsel, and then voted on the alleged violation. By following the statutes and ordinances applicable to code enforcement hearings, the CEB Members were not knowingly violating any established constitutional right of the Plaintiff; but instead were carrying out their statutory rights and duties under the law. Williams v, Alabama State Untversity, 102 F.3d 1179, 1182 (11 th eir. 1997). It would not be clear to a reasonable CBB member "that his conduct was 51 - ~ --. -- -- unlawful in the situation he confronted", Saucier, 533 U.S. at 202. Therefore, qualified immunity would be appropriate for Hammock, Powers, Bums, and High. IV. CONCLUSION For the foregoing reasons, the Defendants, ORANGE COUNTY, FLORIDA, JOEL HAMMOCK, JIM POWERS, ROBERT BURNS and ROBERT HIGH, respectfully requests that this Court dismiss the Plaintiff's Complaint in its entirety, and enter Judgment in favor of the Defendants. CERTIFICATE OF SERVICE ~ I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to FrederickH. Nelson, Esq., American Liberties Institute, P.O, Box 547503, Orlando, Florida32854- 7503, John T. Sternberger, Esq., 4853 South Orange Avenue, Suite C, Orlando, Florida 32806, Tarnra Ulrich, Esq., U.S. Department ofJustice, Civil Division, P.O. Box 883, Washington, D.C. 200441" US. Mml "" 11" "'" ofD_b~, 2OO3~ ~ GAR . ~'ESQ Flori a Bar # 0825 86 Assistant County Attorney REBECCA S. SMITH, ESQ. Florida Bar # 0598828 Assistant County Attorney Orange County Attorney's Office 435 North Orange Avenue, 3" Floor Orlando, Florida 32801 (407) 836-2176 (407) 836-2178 (facsimile) S:\GGlass\Konikov\Trial brief.wpd 52 ~ .~ 11 th Circuit Case No.: 07-13420-1 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ANTHONY LORENZO, Plaintiff! Appellant, v. CITY OF TAMPA and STEPHEN PREBICH, Defendants/Appellees, / On Appeal From The United States District Court, Middle District of Florida, Tampa Division .- Answer Brieffor City of Tampa and Stephen Prebich '. DAVID L. SMITH CITY ATIORNEY, CITY OF TAMPA GARY M. GLASSMAN SENIOR ASSISTANT CITY ATIORNEY Florida Bar No.: 0825786 City Hall, 5th Floor 3 15 East Kennedy Boulevard Tampa, Florida 33602 813-274-8414 (Telephone) 813-274-8777 (Facsimile) Attorney for Defendants/Appellees - CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT The undersigned, counsel of record for the Defendants, CITY OF TAMPA and STEPHEN PREBICH, hereby discloses the following Certificate of Interested Persons and Corporate Disclosure Statement pursuant to Eleventh Circuit Rule 26.1-1: A. B. C. D. .- E. F. Gary M. Glassman, Attorney for City of Tampa and Stephen Prebich Anthony Lorenzo, Plaintiff Hon. James S. Moody, United States District Court Judge Stephen Prebich, Defendant City of Tampa, Defendant W, Thomas Wadley, Attorney for Anthony Lorenzo '. - STATEMENT REGARDING ORAL ARGUMENT Defendants respectfully request that this Court grant oral argument in this appeal to permit the Defendants to respond to questions the Court may have concerning the issues of arguable probable cause and qualified immunity that are present in this case. - '. ii --- TABLE OF CONTENTS Paee CERTIFICATE OF INTERESTED PERSONS '....................................................... i STATEMENT REGARDING ORAL ARGUMENT...............................................ii TABLE OF CONTENTS ,................,...............................................................,.......iii TABLE OF CITATIONS..............................,.................................,......................... v STATEMENT REGARDING ADOPTION OF BRIEFS .....................................viii STATEMENT OF JURISDICTION ......................................:.......,....................... viii STATEMENT OF THE ISSUES .........'................................................................. viii STATEMENT OF THE CASE................................................................................. I A. Statement of Proceedings Below.......................................................... 1 B. Statement of the Facts........................................................................... 2 C. Statement of the Standard or Scope of Review ................................... 6 '. SUMMARY OF THE ARGUMENT..,..,.................................................................. 8 ARGUMENT .........,..............,...,...............................,............,................................ 10 A. The District Court Correctly Concluded That Prebich Was Entitled To Qualified Immunity As He Had Arguable Probable Cause For The Arrest Of The Plaintiff........................................................................ 10 B. The District Court Correctly Decided That The City Was Not Liable For The Claim Of False Arrest As There Was Arguable Probable Cause To Arrest The Plaintiff ....................................................................... 18 iii ~ C. The Plaintiff Has Not Established A Genuine Dispute As To The Material Facts In The Case, And Summary Judgment Is Therefore Appropriate........................... 19 CONCLUSION ...........,...........................................................................................24 CERTIFICATE OF CO~LIANCE ......,......................,........................................ 25 CER11FICATE OF SERVICE ............,.................................................................25 ~ '. ,~ iv - TABLE OF CITATIONS Cases Paee Anderson v, Liberty Lobby, Inc" 477 U.S. 242 (1986) ......................................... 7, 8 Atwater v. City of La go Vista, 532 U.S. 318 (2001) ............................................... 13 Avirgan v, Hull, 932 F.2d 1572 (11 th Cir. 1991) .....................,................................. 7 Bailey v. Board of County Commissioners, 956 F.2d 1112 (11 th Cir. 1992) ..........................,.................................................................:........... 23 Bolanos v. Metropolitan Dade County, 677 So.2d 1005 (Fla. 3rd DCA 1996)..........................."..............................................................18, 19 Brosseau v. Haugen, 543 U.S. 194 (2004).............................................................. 17 .- Celotex Corp. v, Catrett, 477 U.S. 317 (1986) ..................................................... 6,7 City of St. Petersburg v. Austrino, 898 So.2d 955 (Fla. 2nd DCA 2005) .............................................................................................. 18 Durruthy v. Pastor, 351 FJd 1080 (11 th Cir. 2003) .............................................. 13 '. Edwards v. Acadia Realty Trust, Inc., 141 F. Supp.2d 1340 _ (M,D. Fla. 2001) .............................,..................................................................... 6,8 Gargiulo v, G,M Sales, Inc., 131 FJd 995 (11th Cir 1997) .................................... 7 Gerstein v. Pugh, 420 U.S, 103 (1975) ..................................................................13 Gold v, City of Miami, 121 F.3d 1442 (11 th Cir. 1997) ..........................................11 - GrijfinIndus[[ies, Inc, v. Irvin, _F.3d_, 2007 WL 2363343 (11 Cir. Aug. 21, 2007) ....,.................................................................... 10 Hardin v, Hayes, 957 F.2d 845 (11th Cir. 1992) ..................................................... 12 v ~. Harlow v. Fitzgerald, 457 U.S. 800 (1982) ........................................................... 11 Hope v. Pelzer, 536 U.S. 730 (2002) ......."......................"..".........."".....".....12, 17 Hutton v. Stricldand, 919 F,2d 1531 (11th Cir. 1990) ............................................11 Illinoisv. Gates, 462 U.S. 213 (1983) ..".."".........................."~".....................",,..18 Johnson v. Weiner, 19 So.2d 699,700 (1944) .................................................."....18 Kelly v. Serna, 87 F.3d 1235 (11th Cir. 1996) ........................................................ 22 Koch v. Rugg, 221 F.3d 1283 (II th Cir. 2000) ..."..................................................11 Konikov v, Orange County, 410 F.3d 1317 (11th Cir. 2005) :...................................6 Lans v, Stuckey, 203 Fed.Appx. 956 (11 th Cir, 2006) ...................."......................24 Lee v. Ferraro, 284 F.3d 1188 (11 th Cir. 2002) ...............................................19,23 .- Malley v. Briggs, 475 U.S. 335 (1986) ..................................................................11 Marsh v. Butler County, 268 F.3d 1014 (11th Cir. 2001) ........................"""..""... 17 Marx v. Gumbinner, 905 F.2d 1503 (11th Cir. 1990) .......................................14,22 '. Matsushita Elec. Indust, Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574 (1986) ..............."......."............................................................."........ 7 McCoy v, Webster, 47 F.3d 404 (11th Cir. 1995) ."............."......"......................".11 Ortega V. Christian, 85 F.3d 1521 (11th Cir. 1996) ....................".........................19 Rankin V. Evans, 133 F.3d 1425 (11 th Cir. 1998 ""..............""........"..."...13, 14,19 Redd v, City of Enterprise, 140 F.3 d 13 78 (II th Cir. 1998) ......"."....."....................""".."......."..........."...."...."..................... 13 Saucier V. Katz, 533 U.S. 194 (2001) .........................................."......................... 12 vi - Shortz v. City of Montgomery, 267 F .Supp.2d 1124 (M.D. Ala, 2003) ......................,.....,....................................................................... 22 Storck v. City of Coral Springs, 354 F,3d 1307 (11th Cir. 2003) ...............11, 12, 13 United States v. Saunders, 476 F.2d 5 (5th Cir, 1973) ...................................,....... 22 United States v. Seay, 432 F.2d 395 (5th Cir. 1970)................................................22 Whren v. United States, 517 U.S. 806 (1996) ........................................................13 Wood v. Kesler, 323 F.3d 872 (11 th Cir. 2003) ......................................................13 Statutes Section 6-4, City of Tampa Code ..................................................................'.......... 5 Section 6-211, City of Tampa Code ................................................................... 5,16 - 42 U.S.C. Section 1983 ......................................................................................1,10 First Amendment, United States Constitution .................................................17,20 Fourth Amendment, United States Constitution ..................................10, 13, 16, 17 Federal Rules of Civil Procedure 56(c) ..............................................................:: 1, 6 - vii - STATEMENT REGARDING ADOPTION OF BRIEFS The Defendants do not adopt any other Briefs in this case. STATEMENT OF JURISDICTION This Court has jurisdiction of this appeal pursuant to 28 U.S.C Section 1291, STATEMENT OF ISSUES - The issues in this case are: a) Whether Defendant, Stephen Prebich, is entitled to the defense of qualified immunity, and b) Whether probable cause existed. at the time of the arrest to defeat the claim of false arrest against the Defendant, City of Tampa. '. .- viii - STATEMENT OF THE CASE - A. Statement of Proceedings Below This is an action brought by the Plaintiff, ANTHONY LORENZO ("Plaintiff' or "Lorenzo"), against Defendants, CITY OF TAMPA ("City") and STEPHEN PREBICD ("Prebich"). The Complaint alleged two causes of action. Count I of the Complaint alleged a cause of action against the City for false arrest (Dk 2, pp.I-2). Count II of the Complaint alleged a cause of action against Prebich in his individual capacity for a violation of the Plaintiff's rights under the First (freedom of speech) and Fourth (freedom from false arrest) Amendments to the Constitution pursuant to 42 U.S,C. Section 1983 (Dk 2, pp. 2-4). The case was removed from the Circuit Court, Hillsborough County, State of Florida to the United States District Court, Middle District of Florida, Tampa Division, by the City and Prebich (Dk 1). Discovery closed on January 15,2007, and the City and Prebich filed a Motion for Summary Judgment Pursuant to Rule 56, Federal Rules of Civil Procedure on April 23, 2007(Dk 28), The Plaintiff filed a Response on May 10,2007 (Dk 34). On July 11, 2007, the District Court (Hon. James S. Moody, Jr.) entered an Order granting summary judgment to the City and Prebich on both counts of the Complaint (Dk 41). This appeal ensued. '. - 1 - B. Statement of the Facts The following material facts are undisputed: 1. The Florida Cannabis Action Network ("Network") is a not-for- profit corporation based in Melbourne, Florida, that advocates the taxation and regulation of cannabis (Lorenzo Depo., p.28, lines 18-21).1 2. The Plaintiff is a member and a board member of the Network (Lorenzo Depo" p,28, lines 15-25, p.29, lines 1-3). 3. On October 26, 2002, the Plaintiff and other persons, as members of the Network, participated in the Guavaween parade in the Ybor City Historic District section of the City of Tampa, Florida (Lorenzo Depo., - p.72, lines 24-25, p,9, lines 16-25, p.10, lines 1-23). 4. The Plaintiff and other persons of the Network constructed a float for the parade. The float consisted of a jail cell with barbed wire, pot '. beads, and a sign that read "Political Prisoners" (Lorenzo Depo., p.9, lines 19-22). 5. The float also contained a hand drawn picture of Uncle Sam urinating on the constitution, and three other signs reading "Drug war ending America with the DEA," a reference to the Book of Genesis concerning seed - I The Lorenzo Deposition and the Handbill can be found in the record as exhibits to the Defendants' Motion for Summary Judgment at Document # 28. The Prebich Deposition can be found in the record at Document # 36. 2 - ,- bearing plants to be used as food, and "My doctor agrees marijuana is medicine." On both sides of the float appeared the logo "Cannabis Action Network" and a website (Lorenzo Depo., p,9, lines 23-25, p.10, lines 1-7). 6, The float also contained a seven (7) foot paper mache marijuana joint (Lorenzo Depo" p.l 0, lines 13-17). 7. The Plaintiff and some other persons of the Network were dressed up as DEA agents, and wore black Tee-shirts with white letters that . spelled out "DEA" (Lorenzo Depo., p.lO, lines 8-10, p.37, lines 18-23). 8. After the parade, the Plaintiff started passing out handbills to persons walking by in the area of 15th, 16th or 17th Streets on 7'h Avenue in Ybor City (Lorenzo Depo., p.lO, lines 18-23, p.18, lines 2-3, p.53, lines 15- 17, p.63, lines 18-23; Handbill). 9. The handbill contained an advertisement for the Network, the Libertarian Party, and Chachi's Vejutopia (Lorenzo Depo., p.70, lines 18-25; Handbill). 10. Chachi's Vejutopia is a vegetarian catering company (Lorenzo Depo., p.30, lines 15-25; Handbill; Lorenzo Statement, p.4, line 23). 11. As they distributed the handbills, the Plaintiff and another individual engaged in shouting profanity including "Fuck the DEA" and "Legalize marijuana" (Prebich Depo. p.12, lines 12-16). '. 3 12. Prebich was a master patrol officer in the City's Street Anti- Crime Squad, and had been assigned to the parade in Ybor City (Prebich Depo" p.9, lines 3-6; p.lO, lines 3-24). At the time ofthe incident, Prebich . was in uniform (Prebich Depo., p,9, lines 6-7). 13. Prior to approaching the Plaintiff, Prebich and another officer observed the Plaintiff handing out the handbills (Lorenzo Depo., p.54, lines 4-6), and had received complaints about the profanity (Prebich Depo., p.12, lines 23-24). 14. The Plaintiff had passed out approximately 2,500 handbills (Lorenzo Depo., pA4, lines 17-23, p.69, lines 10-16), many of which were . ,,--- lying in the street (Lorenzo Depo., p.69, lines 17-22). 15. Prebich saw some of the handbills In the street before approaching the Plaintiff, and knew there was a picture of a marijuana leaf and restaunint on the handbill (Prebich Depo., p.16, lines 19-25; p.17, lines 1-22). 16. Prebich approached the Plaintiff, and asked him to stop passing out the handbills (Lorenzo Depo., p.69, lines 23-25, p,70, line 1; Lorenzo Statement, pA, line 6). 17. The Plaintiff refused to stop passing out the handbills, and when Prebich tried to remove the handbills from the Plaintiff, the Plaintiff '. 4 ~ pulled away (Lorenzo Depo., p.ll, lines 18-24, pA8, lines 2-10, p.50, lines 21-24; Prebich Depo., p.14, lines 5-8). 18. At that point, Prebich, who knew there was an ordinance concerning handbill distribution (prebich Depo., p.18, linesI6-19; p.24, lines 7-14), arrested the Plaintiff for a violation of Section 6-211 of the City of Tampa Code ("Code") and resisting arrest (Prebich Depo., p.28, lines 19-21; Lorenzo Depo" p.ll, line 25; Lorenzo Statement, pA, lines 1-7). Prebich did not arrest the Plaintiff because of the Plaintiffs political statements (Prebich Depo., p.28, lines 18-19). 19. Section 6-211 of the Code is an ordinance directed at .- preventing litter in Ybor City. The Ordinance prohibits "off-premises canvassing" without a permit, which is defined as the "distribution by a person for purposes of soliciting business or customers in the Ybor City Historic District on publicly owned property or public rights-of-way in connection with a business" (Code, Sections 6-211 and 6-4). 20, After the arrest, Prebich escorted the Plaintiff to a van operated by the Hillsborough County Sheriff's Department (Lorenzo Depo., p.12, lines 6-17; Lorenzo Statement, p.5, lines 17-22, p.6, lines 1-3). 21, While being escorted to the van, the Plaintiff and Prebich had a friendly conversation (Lorenzo Depo., p,12, lines 9-10, p.35, lines 14-22). '. - 5 - The Plaintiff apologized for his behavior, and stated that he wanted marijuana legalized, and needed to get the issue before the courts (prebich Depo., p.14, lines 18-24). 22. Prebich did not cause any injury to the Plaintiff (Lorenzo Depo., p.21, lines 1-9). 23. The Plaintiff did not file an internal affairs investigation against Prebich (Lorenzo Depo" p.21, lines 10-17), though he did file one against another officer (Lorenzo Depo., p.19, lines 14-17). C. Statement of the Standard or Scope of Review This Court reviews a grant of a motion for summary judgment de novo, applying the same legal standards that bind the District Court. Konikovv. Orange County, 410F.3d 1317, 1321 (lIth Cir. 2005). Summary judgment "shall be rendered forthwith if the pleadings, '. depositions, answers to interrogatories, admissions on flie, together with the affidavits, if any, show that there is no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure. The moving party bears the burden of establishing that no genuine issues of material fact remain. Celotex Corp. 'v, Catrett, 477 U.S, 317 (1986); Edwards v. Acadia Realty Trust, Inc., 141 F. Supp.2d 1340,1344-45 (M.D. Fla, 2001). _. 6 ~ ~ In order to prevail on a motion for summary judgment, the Defendants must show that the Plaintiff has no evidence to support his case or present affIrmative evidence that Plaintiff will be unable to prove his case at trial. Celotex, 477 US. at 322-23. If Defendants successfully negate an essential element of Plaintiffs case, burden shifts to Plaintiff to come forward with evidentiary material demonstrating a genuine issue of fact for trial. Id. The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 US, 242, 247-48 (1986), A fact is material if it "might affect the outcome of the suit under the governing law." /d. Further, Plaintiff must show more than the existence of a "metaphysical doubt" regarding the facts, Matsushita Elec, Indust. Co., Ltd. v. Zenith Radio Corp" 475 D,S, 574 (1986), and a "scintilla" of evidence or conclusory allegation is insuffIcient. Celotex, 477 US. at 324; Avirgan v. Hull, 932 F.2d 1572, 1577 (11 th Cir, 1991). Plaintiff must either point to evidence in the record or present additional evidence suffIcient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Celotex, Id.; Gargiulo v. G.M Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). '. 7 - The court construes the facts and all reasonable inferences in the light most favorable to the non-moving party, Anderson v. Liberty Lobby, Inc., 477 U.S, 242 (1986). In ruling on a motion for summary judgment, "the function of the court is not to 'weigh the evidence and determine the truth of the matter, but to determine whether there is an issue for trial.'" Edwards v. Acadia Realty Trust, 141 F. Supp,2d 1340, 1345 (MD. Fla. 2001). SUMMARY OF THE ARGUMENT - Prebich is entitled to qualified immunity. There was 'no constitutional violation of the Plaintiffs rights in that Prebich had arguable probable cause to arrest the Plaintiff, Prebich was sufficiently familiar with the Code, and had observed the Plaintiff violate the Code. Arguable probable cause was well established by the undisputed facts in this case. Even if there was a constitutional violation, Prebich did not have fair warning from previous, relevant case law that his actions would be considered unconstitutional, and therefore Prebich was entitled to qualified immunity. As Prebich had arguable probable cause to arrest the Plaintiff, the state claim of false arrest against the City must likewise be dismissed. None of the issues raised by the Plaintiff overcome the grant of summary judgment by the District Court. Even assuming the Plaintiff was engaged in some form of political speech, he was still subject to arrest for a '. - 8 violation of the City's Code. Prebich's testimony that he might not arrest the Plaintiff today is inconsequential. A dismissal of a charge or an acquittal does not negate the existence of probable cause at the time of the arrest, Prebich's unfamiliarity with the Code provision likewise does not negate the existence of probable cause to arrest the Plaintiff, The grant of summary judgment on both Counts of the Complaint should be affIrmed. '. 9 - ARGUMENT - A. The District Court Correctlv Concluded That Prebich Was Entitled To Qualified Immunity As He Had Areuable Probable Cause For The Arrest Of The Plaintiff Count II of the Complaint alleged a cause of action against Prebich in his individual capacity for a violation of the Plaintiff's rights under the First and Fourth amendments to the United States Constitution pursuant to 42 U.S.C. Section 1983. Prebich contends that he is entitled to the defense of qualified immunity, that summary judgment is appropriate, and the Count should be dismissed, "Allowing private citizens to bring suit against public officials requires a careful balance between two powerful and competing interests. The importance of vindicating constitutional rights in a court oflaw must be balanced against the social costs associated with burdening public officials with vexatious litigation and inhibiting them in the proper discharge of their official duties (citation omitted). To accommodate these conflicting interests, the Supreme Court has developed the doctrine of qualified '. immunity." Griffin Industries, Inc. v. Irvin, F.3d -' 2007 WL 2363343 (11 th Cir. Aug. 21, 2007). 10 ~ Qualified immunity protects government officials performing discretionary functions from liability "where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," Gold v, City of Miami, 121 F.3d 1442, 1445 (lIth Cir. 1997), quoting Harlow v. Fitzgerald, 457 U.S. 800,818 (1982); Storck v, City of Coral Springs, 354 F.3d 1307,1313 (lIth Cir. 2003). AB long as an official's conduct is not unlawful, the doctrine of qualified immunity exempts government officials from damage suits to enable them to perform their responsibilities without threats of liability. Hutton v, Strickland, 919 F.2d 1531, 1536 (11th Cir. 1990) (citations omitted). Qualified immunity is intended to protect "all but the plainly incompetent or those who knowingly violate the law," McCoy v. Webster, 47 F.3d 404, 407 (11th Cir, 1995), quotingMalleyv. Briggs, 475 U.S. 335, 341 (l986). '. A. government official's conduct is evaluated under an "objective legal reasonableness" standard, Koch v. Rugg, 221 F.3d 1283, 1295 (11th Cir. 2000) (citations omitted), Subjective intent is irrelevant to the issue. Id. Under the "objective legal reasonableness" standard, a government official performing discretionary functions is protected if "a reasonable official could have believed his or her conduct to be lawful in light of clearly - II ~ - established law and the information possessed by the official at the time the conduct occurred." Hardin v. Hayes, 957 F.2d 845,848 (11th Cir. 1992). The Supreme Court has set forth a two-part analysis to be applied to a defense of qualified immunity. Hope v. Pelzer, 536 U.S. 730, 736 (2002); Saucier v. Katz, 533 U.S. 194, 201 (2001), The threshold inquiry a court must undertake is whether the plaintiffs allegations, if true, establish a constitutional violation. If no constitutional right would have been violated were the allegations established, there is no necessity. for' further inquiries concerning qualified immunity. Saucier, 533 U.S. at 201. However, if a constitutional right would have been violated under the plaintiffs version of the facts, the next sequential step is to ask whether the right was clearly established. Jd.; Storck, 354 F.3dat 1314. In Saucier, the Supreme Court stated that the relevant query is '. whether it "would be clear, to a reasonable officer that his conduct was unlawful in the situation he confronted." Jd. In Hope, the Supreme Court refined the Saucier query, holding that the "... salient question. .. is whether the state of law gave [the officers) fair warning that their alleged treatment [of the plaintiff] was unconstitutional." The Hope Court emphasized that officers sued in a Section 1983 action have a "right to fair notice." 536 U.S. at 739. - 12 ~ 1. No Constitutional Violation While an arrest without probable cause violates the right to be free from an unreasonable search, Durruthy v. Pastor, 351 F.3d 1080, 1087 (11th Cir. 2003), an officer is entitled to qualified immunity on a Section 1983 claim of false arrest where the officer had "arguable probable cause," or where "reasonable officers in the same circumstances and possessing the same knowledge as the [d]efendants could have believed that probable cause existed to arrest" the plaintiff. Wood v. Kesler, 323 F.3d 872, 878 (11 th Cir. 2003); Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998); Rankin v. Evans, 133 F.3d 1425, 1433 (11 th Cir. 1998); Storck v. City of - Coral Springs, 354 F.3d 1307,1314-15 (11th Cir. 2003). An officer may arrest an individual even for a very minor offense committed in his presence without violating the Fourth Amendment. '. Atwater v. City of La go Vista, 532 U.S. 318,354 (2001). The key element in "arguable probable cause" is what information the officer knew or had at the time of the arrest to warrant a prudent person to believe that the suspect had committed an offense, Gerstein v. Pugh, 420 U.S. 103, 111 (1975); Storck, 354 F.3d at 1315; Rankin, 133 F.3d at 1435. Subjective intentions play no role in probable cause determinations. Rankin, 133 F.3d at 1434, citing Whren v, United States, 517 U.S. 806 (1996). Probable cause is "judged not - 13 - ~ with clinical detachment, but with a common sense view to the realities of normal life." Rankin, 133 F.3d at 1436, citing Marx v, Gumbinner, 905 F.2d 1503,1506 (11th Crr. 1990), Turning to the case at bar, it is clear that Prebich, knowing what he knew at the time of the arrest, had arguable probable cause to arrest the Plaintiff for a violation of the Code and resisting arrest. First, what did Prebich know about the Code at the time of the arrest? Prebich, a master patrol officer in the City's Street Anti-Crime Squad (Prebich Depo., p.9, lines 3-6), knew that the Code contained a provision regulating off premises canvassing of handbills in the Seventh Avenue area of Ybor City (Prebich Depo., p. 18, lines 16-25; p.24, lines 7-14; Code, Section 6-4, 6-210, 6-211), Though Prebich did not know the exact number of the Code Section at the time of the arrest, (Prebich Depo., p.20, lines lO- ll), he did confer with his sergeant about the Code (prebich Depo., p.20, lines 13-14), and only a week before the arrest, Prebich had been advised by his supervisor of complaints regarding handbills, and the need to more vigorously enforce the handbill ordinance (Prebich Depo., p.24, lines 7-25; p.25, lines 1-4), Therefore, at the time of the arrest, Prebich was sufficiently familiar with Code provision regulating handbill canvassing. '. 14 ~ Second, what did Prebich know about the Plaintiffs actions at the time of the arrest? Prebich had observed the Plaintiff distributing handbills in the 17th Street North and 7th Avenue area of Ybor City (prebich Depo., p.16, lines 12-14; Lorenzo Depo., p.54, lines 4-6). Prebich knew, from. observing numerous handbills lying in the street, that the handbills contained, in part, an advertisement for a food business and a solicitation for customers for Chachi's Vejutopia (prebich Depo., p.16, lines 19-25; p.17, lines 1-22; Lorenzo Depo, p.69, lines 17-22, p.70, lines 18-25; Handbill). Prebich knew that such handbills were prohibited by the Code. Third, what did Prebich do to effectuate the arrest? Armed with information concerning the handbill provision in the Code, and having observed the Plaintiff's actions and the handbill, Prebich approached the Plaintiff, and asked him to stop passing out the handbills (Lorenzo Depo., p.69, lines 23-25, p.70, line 1; Lorenzo Statement, pA, line 6), The Plaintiff, however, refused to cease distributing the handbills (Prebich Depo., p.14, lines 5-14; Lorenzo Depo., p.ll, lines 18-24, pA8, lines 2-10, p,50, lines 21- 24). Prebich then tried to take the handbills from the Plaintiff, and when the Plaintiff pulled away, Prebich arrested the Plaintiff for distributing the handbills and resisting arrest (prebich Depo., p.14, lines 5-14). '. ~ 15 ~ Prebich knew that the Plaintiff was distributing handbills containing a co=ercial advertisement on Seventh Avenue in the Ybor City Historic District of the City of Tampa, Florida, an area that prohibited off-premises canvassing of handbills. When requested to stop, the Plaintiff refused, and then pulled the handbills away from Prebich. Taking all of these facts and circumstances together, it is reasonable to conclude that Prebich or any other police officer would believe that the Plaintiff was in violation of Section 6- 211 of the Tampa City Code, and that probable cause existed to arrest the Plaintiff. Prebich had, at a minimum, arguable probable cause to arrest the Plaintiff. The arrest of the Plaintiff did not violate the Plaintiff's First and Fourth Amendment constitutional rights. Therefore, as no constitutional right of the Plaintiff was violated, it is unnecessary to proceed to the second step of the qualified i=unity analysis. Prebich is entitled to qualified immunity as a matter of law, and Count II of the Complaint should be dismissed. 2. Clearly Established Right Assuming, without conceding, that the Plaintiff establishes a constitutional violation, then the second step in the qualified i=unity analysis must be conducted, was the violation so clearly established. The '. ~ 16 ~ critical question is whether the law provided Prebich with "fair warning" that his conduct violated the First and Fourth Amendments. Hope, 536 U.S. at 741. In the Eleventh Circuit, a Court is constrained to look to only the decisions of the United States Supreme Court, the Eleventh Circuit Court of Appeals, and the Florida Supreme Court to determine if a clearly established right existed at the time of the arrest Marsh v. Butler CountY, 268 F.3d 1014,1032 n. 10 (11th Cir. 2001)(en banc). Prebich asserts that there is no pre-existing case law that provided him with a fair warning that his treatment of the Plaintiff under these facts was - unconstitutional? As noted by the United States Supreme Court, qualified immunity "shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the '. circumstances she confronted." Brosseau v. Haugen, 543 U.S. 194, 198 (2004). Prebich submits that he did not have fair warning at the time he arrested the Plaintiff that his actions would be considered unconstitutional, and that he is entitled to qualified immunity. - 2 The Plaintiff's Brief does not cite to any applicable decision that demonstrates Prebich had fair warning the arrest was unconstitutional. 17 - B. The District Court Correctlv Decided That The City Was Not Liable For The Claim Of False Arrest As There Was Are:uable Probable Cause To Arrest The Plaintiff Count I of the Complaint alleged a state cause of action against the City for false arrest.. The City contends that Count I should be dismissed based upon the defense that probable cause existed to arrest the Plaintiff. The gravamen of the tort of false arrest is the unlawful restraint of a person against that person's will, City of St. Petersburg 'V. Austrino, 898 So.2d 955, 957 (Fla. 2nd DCA 2005), citing Johnson v. Weiner, 19 So.2d 699, 700 (1944). In a false arrest action, probable cause is an affirmative defense to be proven by the defendant. Austrino, id., citing Bolanos v. Metropolitan Dade County, 677 So.2d 1005 (Fla. 3rd DCA 1996), In Illinois v, Gates, 462 U.S, 213, 238 (1983), the Supreme Court reaffirmed "the totality of the circumstances analysis that traditionally has informed probable cause determinations." Focusing on the totality of circumstances requires an assessment of probabilities in that particular factual context. Austrino, 898 So.2d at 958. These probabilities are "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act," !d., quoting Gates, 462 U.S. at 231. From these considerations, common sense conclusions regarding '. 18 -, human behavior can be reached. The facts and circumstances, based upon reasonably trustworthy information, must be such that "would cause a prudent person to believe" the suspect has co=itted a crime. ld, quoting Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir, 2002). As discussed above, Count II of the Complaint should be dismissed against Prebich individually because he had probable cause to arrest the Plaintiff. This same defense operates to bar a state law claim of false arrest against the City, Rankin v. Evans, 133 F.3d 1425, 1435(lltb Cir. 1998) (stating that probable cause constitutes an absolute bar to both state and section 1983 claims alleging false arrest), citing Ortega v. Christian, 85 F,3d .- 1521, 1525 (11th Cir. 1996) and Bolanos v, Metropolitan Dade County, 677 So.2d 1005 (Fla. 3rd DCA 1996). As the undisputed facts establish that Prebich had probable cause to arrest the Plaintiff, Count I of the Complaint against the City for the state law claim of false arrest should be dismissed as well. C. The Plaintiff Has Not Established A Genuine Dispute As To The Material Facts In The Case. And Summary Judl!:ment Is Therefore Appropriate The Plaintiff, in his Brief, attempts to raise several disputes in order to overcome summary judgment. However, an analysis of each scenario '. - 19 - - demonstrates that a genume dispute does not exist, and that summary judgment is appropriate, The Plaintiff contends, throughout his argument, that a reasonable officer would have knO\\lll that the handbills and the demonstration by the Plaintiff and the Network were aimed at legalizing marijuana, political speech, not commercial activity, and therefore the Plaintiff should not have been arrested. (plaintiff's Brief, p.8 [Here, the circumstances available to officer (sic) (prebich), were that he saw a float in a parade with a group of people involved in an obvious political protest".]; p,9 ["He (prebich) did not bother to ascertain that the primary and clear focus of the handbills was to promote the same political position as that of the float, attire and slogans".]; p.lO ["However, he (Prebich) most certainly should have been aware that Mr. Lorenzo was actively engaged in exercising his constitutional right of free speech".]; p.ll ["a reasonable officer would have known that Mr. Lorenzo and those around him were engaged in a peaceful First Amendment activity, a reasonable officer would have known the persons engaged in this activity have a right to speak, wave banners, chant slogans, and distribute literature supporting their cause. , ."J) The fallacy of this argument is that it incorrectly assumes that even if a person is engaged in a protected constitutional activity, they are free to ., - 20 ,- engage ill criminal behavior as well. Under the Plaintiffs theory, for example, the Plaintiff could have been firing an automatic rifle at passersby, but so long as he was engaging in political discussion, his criminal behavior was shielded from arrest. The core issue in this case is not whether the Plaintiff was promoting an unpopular political cause and thereby engaging in free speech, but whether an officer, given the facts and circumstances presented, reasonably believed that the Plaintiff was committing a violation of the Code, and thus subject to arrest. As set forth at length above, an officer, with the understanding of the facts and circumstances known to Prebich at the time of arrest, could reasonably conclude that probable cause existed to arrest the Plaintiff. Next, the Plaintiff argues that Prebich testified at his deposition that if given the opportunity again, he would not have arrested the Plaintiff (plaintiff's Brief, p.12). The testimony is as follows: Q: Okay. Faced with the same identical situation today would you arrest an individual distributing these now? Mr. Makholm: Object to form. Go ahead. The Deponent: Good question, I would have to say due to the fact that since then - - no. (prebich Depo., p.2S, lines 22-25; p.29, line 1) " - 21 - It is unclear from Prebich's answer why he stated he would not arrest the Plaintiff today for the identical situation. While the Plaintiff might wish this Court to believe that Prebich, at his deposition, was conceding that the arrest was improper, that conclusion is not supported by Prebich's answer or anywhere else in the record. The . answer was unspecific, and there are several reasonable interpretations why Prebich stated he might not make the same arrest today that have nothing to do with the sufficiency of the arrest. More importantly, it is inconsequential what anyone' would do today with respect to the Plaintiff's arrest. "That a defendant is subsequently acquitted or charges are dropped against the defendant is of no consequence in determining the validity of the arrest itself" Marx v. Gumbinner, 905 F.2d 1503, 1507 (11 tb Cir. 1990) (citations omitted); Shortz v. City of Montgomery, 267 F.Supp.2d 1124, 1128-29 (MD, Ala. 2003) [plaintiff's '. reliance on dismissal of charges to support contention that officers lacked probable cause to arrest him was misplaced; decision to dismiss charges did not mean that decision to arrest lacked legal basis], citing Kelly v. Serna, 87 F.3d 1235, 1241 (11th Cir. 1996) ["There is a substantial difference between the quantum of proof necessary to constitute sufficient evidence to support a conviction and that necessary to establish probable cause".]; United States v, Seay, 432 F.2d 395, 400 (5th Cir. 1970) [determination of whether - 22 ,- ,- probable cause to arrest existed does not depend upon whether defendants were eventually convicted). Therefore, whatever the reason behind Prebich's deposition testimony, the question is not whether the arrest would be made today by Prebich or whether it ended in a conviction, but whether arguable probable cause existed at the time of the actual arrest. As set forth above, Prebichhad sufficient facts and circumstances for arguable probable cause to arrest the Plaintiff. Finally, the Plaintiff argues that Prebich did not know what the Code prohibited, and thought that all handbills were illegal (plaintiffs Brief, p.8). As the District Court correctly held, though, "Prebich's lack of knowledge. regarding the provisions of the OPC Ordinance does not preclude the existence of arguable probable cause," citing United States v, Saunders, 476 F.2d 5, 7 (5th Cir. 1973) ["when an officer makes an arrest, which is properly supported by probable cause to arrest for a certain offense, neither his subjective reliance on an offense for which no probable cause exists nor his verbal announcement of the wrong offense vitiates the arrest"]. See also Bailey v. Board a/County Commissioners, 956 F.2d 1112; 1119, nA (11th Cir. 1992) ["The validity of an arrest does not turn on the offense announced by the officer at the time of the arrest]; Lee v. Ferraro, 284 F.ld 1188, 1195- '. ~ 23 - 96 (11th Cir. 2002); Lans v. Stuckey, 203 Fed.Appx. 956, 959 (11th Cir. 2006), None of the arguments made by the Plaintiff establish disputes of material fact. The Plaintiff has not raised any meritorious arguments to overcome the grant of summary judgment, and therefore, summary judgment on the Plaintiffs Complaint is appropriate. CONCLUSION Defendants, CITY OF TAMP A and STEPHEN PREBICH, respectfully request that this Court affIrm the Order of the District Court granting summary judgment to the Defendants on both counts of the - Complaint. Respectfully submitted, DAVID L. SMITH CITY A~AMPA' By: ii1 G M. SMAN Senior Assistant City Attorney Florida Bar No.: 0825786 Attorney for Defendants, City of Tampa and Stephen Prebich 5th Floor, City Hall 315 E. Kennedy Boulevard Tampa, Florida 33602 Phone: (813) 274-8414 Fax: (813) 274-5908 E-mail: Gary.Glassman@tamoagov.net ~ 24 -, CERTIFICATE OF COMPLIANCE This Brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this Brief contains 5,944 words, excluding the parts of the Brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This Brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requiremepts ofFed. R App. P. 32(a)(6) because this Brief has been prepared in a proportionally spaced typeface using Word in l4-point Times New Roman. ~ Y M. LASSMAN, ESQ. .- CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by first class U.S. Mail to W. Thomas Wadley, Esq., Yanchuck, Berman, Wadley & Zervos, P.A., 5453 Central Avenue, St. " Petersburg, Florida 33710 on the 5th day of October, 2007. i1~SQ - 25 .--. COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR TIIE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES GARY GLASSMAN CONFIDENTIAL REFERENCES Reference Relationship: 1. Subordinate 2. Former Superior 3. Colleague 4. Colleague 5. Former Supervisor 6. Colleal!ue Questious 1. What is your professional relationship to the candidate? How long have you known him? - 2. What do you consider to be his greatest strengths as a professional? -- Answers 1. I have known Gary for about 5 years. I worked with him on a number of cases. I am a subordinate of his. 2. I am his former employer; I took over in Orange County in 2002; so I have known him for 5 years. 3. I have known him for 6-7 years for the County Attorney's office. We were colleagues. 4. I was his superior (although not his direct supervisor). I have known him since 2002. 5. I was his supervisor at Orange County; I have known him about seven years. 6. I have known Garv for about 15 vears. We are collea<rnes. 1. I came from New York, the attorneys are aggressive when need be but know how to work a jury. He is a great trial attorney, but he can really work a jury. He is good with other attorney's, subordinates. He is very smart; good at what he does. Has a great personality and is a very caring person. I learned a lot from him. 2. He is extremely good with people; confident and competent as a lawyer. I want people in my litigation department to be confident 3. He is a very good litigator. He has the ability to marshal the facts and present them in court. Just before he left he was creating a practice area that did not exist in this department before. That saved the county some money. 4. He is very thorough; he is very intelligent He is personable- it is easy to interact with him. 5. He is a good communicator. He is very forthright and candid both with his client and those his client is dealing with. He doesn't mince words and does not engage in double speak. He is savvy enough to understand that he is working for governmental entities to know that he must weigh his pronouncements with his candidness. WATERS CONSULTING GROUP, INC. PAGE. 1 TIllS DUCCfvlENT IS COPYRlGl-ITED A.NO PROPIUETARY INFORM.l\TION. THIS DOCTJ\.l.E.h.JT OR -'\NY PORTIONS OF nns DOCUtviENT [$ NOT TO BE REPRODl'CED FOR ANY REASON \'\;''ITHOUT TI-IE \\".'RrITEN CONSENT OF \x':CG, INC. 3. What might we hear with regard to his weaknesses? Criticisms? COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES GARY GLASSMAN 6. His ability to persuade others. His ability to relate to people on whatever level he needs to be effective. 1. Some say that he has a New York sense of humor-some don't care for his style that way. Some people don't think you should form friendships-he is very personable. He is not straight- laced. 2. He lost a federal case while he was here. He won in the trail court and lost in the appellate leveL Those on the other side of the litigation criticized him for the case. 3. No major thing comes to mind. He has a strong will and expresses his opinion. Some may have a problem with that. 4. I don't know have any criticisms. He always did an outstanding job. 5. He may be too candid at times. As a litigator, he wants to litigate very zealously. Some clients may not want their litigator to be so "scorched earth" in style. 6. He is a bit of a procrastinator--<lf course it could have been more of his client's issues rather than him. 1. He listens to other people--he looks to people who may know more than he does. He seeks people out. He takes a problem head on. He always looked at a case from the point of view of what is the best decision for the county-not that he has to win the case. If settling it is best, he will do that He is very dedicated and very caring. 2. As a litigator, Gary had to analyze cases and narrow it down to the litigation issues. My experience with him was more of him doing the research himself 3. Like many litigators, they have the ability to absorb facts quickly and assimilate it in an argument Gary has the skill of listening to the employees and uses their information in the handling of the case. 4. He is a self starter; he would get into the case and flush out the issues, prepare a brief He was independent--didn't rely on me that much. He did his research but would forward things to me for review or feedback. He would make use of other attorneys or paralegals to assist when available. 5. He is fairly analyticaL He has the benefit of working both sides of a controversy and has the ability to let his client know what the other side is thinking. He does involve the department head in the decision making regarding litigation. 6. He is very analytical approach. He is very thorough and has a practical approach to his case. He asks very detailed questions and seems to be verv well prepared. I. Yes, he is an effective leader. His management style is more of a team approach. He listens to the paralegals as well as attorneys. His management style also one of teaching-he helps his emnlovees grow. - 4. Describe his problem-solving and decision making style and abilities? How does he involve others in the process? 5. How would you describe his management style and abilities? Do you consider him to be an effective leader? - WATERS CONSULTING GROUP. INC. PAGE. 2 llflS DOCL:r-.fENT IS COPYRJGHTED AND PROPRlET.....RY INFORMAll()N. TJU:;, DOCUMENT OR ANY PORTIONS ()J' nrrs OOCGi\1ENT IS NOT TO BE REPRODUCED H)R .ANY REASON \XTfHOLT THE \'I;:'RJ1TEN CONSENT OF \(ICG, INC - 6. How would you rate his communications skills, both oral and written? Do you consider him to be a good listener? Why or why not? 7. Tell me how well he manages relationships with professional colleagues outside his department WATERS CONSULTING GROUP, INC. COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES GARY GLASSMAN 2. My experience with Gary has been more as a team member than as a leader, so I can't really speak to that. In general terms, yes he is an effective leader. 3. Gary did not have defined management responsibility here. He worked effectively with his paralegal and was able to work well in a team environment. He was effective as a leader in that context. 4. He was not in a management role here. I do consider him to be an effective leader. I think he is very capable of managing other attorneys. 5. Outgoing is the word that comes to mind. He has an engaging personality. He is personable. The people in our section enjoyed his company and liked his mentoring skills. He enjoyed mentoring. 6. I have not known him as a manager. He managed his cases very efficiently. He didn't waste resources. 1. I have seen his writing-he is good. His oral skills are very good. He is good in negotiations. He listens to opinions. He recognizes the fact that he doesn't know everything. 2. Very good oral communication skills. Written skills are good. He has the ability to explain things to me and to the court-he did that well. Listening skills are excellent The people in other departments gave him high marks saying he listened to them and performed well. 3. Communication skills are solid. His presentation skills in a courtroom setting and in a county board meeting. He had the ability to explain things clearly to the board. Good listener and has the ability to assimilate that information quickly into a legal argument 4. Orally, his skills in the courtroom are very good. He knew when to argue forcefully and when to sit down and be quiet. His written skills are very good-very articulate and clear. He listens very well and is very respectful of those around him. 5. He is a good oral communicator and a good writer. He wrote a lot of briefs for us. His preference is to talk, but I have never known him not to listen. He never cuts people off. He loves the interaction of a good discussion with a lot of give and take. 6. He has excellent verbal and written skills in litigation. He is a great listener-however, being able to persuade him IS a different storv. 1. I think well. I have seen attorneys that have not had the trial experience that he had-they were openly belligerent He always handled it professionally and respectfully. 2. He has come back to Orange County for retirement parties and other events. People are always glad to see him and have a lot of respect for him. 3. Among County professional staff, Garv is well respected. He PAGE.3 "nns DOCU!\1ENT IS COPYRIGHTED .'\ND PROPIUETARY INFOR/'.i..'\TION TIllS DOCU/I,1ENT OR ANY PORTIONS (He nllS DOCUMENT IS NOTTO BE REPRODUCED FOR _!\NY RE-i\..'>ON WITHOL:]' THE WRlTIEl'-: CONSE}..;T OF \l\:CG, INC - 8. What type of image does he present to the community? What is the most significant contribution that he has made to the organization? 10. In your opinion, why is he looking to make a move at this time? COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES GARY GLASSMAN gets along with them and was effective in dealing with them. He is very well respected in the legal community as well. 4. I don't have a lot of personal knowledge of this. I am not aware of any problems between him and others. 5. He seems to get along with people welL He did strike up a lot of friendships with people in the office. He was very well thought of both professionally and socially. I never heard an attorney in town accusing him of unprofessional conduct. 6. I have vet to meet a person who doesn't like Garv Glassman. 1. Knowledgeable. He IS canng and that is evident to the community. He makes decisions that he believes are in the best interest of the county. He cared about the image being projected to the community. 2. Very positive; very professionaL 3. Very positive; he is involved locally and his family is as welL 4. He always came across very professional. He handled himself well. He is a very personable person. He has a good sense of humor and doesn't take himselftoo seriously. 5. He was professional but "down to earth" type personality. He prided himself on his communication skills. 6. A very good one to both the local community and to the legal community as welL He is very practical and straight forward in his annroach. 1. He was the best trial attorney we have had in the county. 2. Gary was selected to do a lot of our federal court matters. He also handled some of our labor law cases as welL 3. Developing the area of practice regarding Civil Rights and EEOC was probably the most significant. 4. The cases that he handled, I thought he projected a very good image for our office and was very professionaL He worked very hard. He was versatile and responded to all assignments welL 5. He did a very fine job of representing Orange County in an area of litigation that was very contentious (use of home as a synagogue). This had to be hard on Gary to be the lead litigator on this case for 4-5 years. It was a Jewish rabbi using his home as a synagogue. Gary was Jewish as well. That had to be difficult. 6. At the City of Tampa, he has been able to take on legal work internally and save them thousands of dollars. 1. I think with Tampa, he is ready to make a move to the top of the ladder. He is ready to spread his wings a little bit-to be in charge. 2. Gary is looking to move into a leadership position. 3. I think he is ambitious and desires to move up. It is the next 10l!ical steo. WATERS CONSULTING GROUP, INC. PAGE. 4 -nns DOCUi\iliNT IS COPYRlGlffED .AND PROPIUETb,RY INFORM..!\'llON. THIS DOCCMENT OR .ANY PORTIONS 01' THIS DOCUMENT IS NOT TO BE REPRODUCED fOR ANY RE.>\SON \\TnIOUT THE \\'R1TI'EN CONSE~T Of' \\.'CG, INC. - COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES GARY GLASSMAN 4. I think that he would like to be the head of the office--a career move upward. He is trying to maximize his potential. 5. I don't know. I think he wants to be in charge of a government attorney's office. 6. Professional growth. He is an achiever. He wants to be a leader. 11. Are you aware of anything in his background 1. No. that could be a problem to a prospective 2. No employer if it became public knowledge? 3. I truly am not. 4. No. 5. I am not. 6. No. 12. Would you work with him again in the future? L Yes, hands down. I almost left and went to Tampa because of him. 2. Yes. 3. I would. I like him and respect him. 4. Yes. 5. Yes. 6. Yes. - - WATERS CONSULTING GROUP, INC. PAGE. 5 "IlJlS DOCUr.iliNT IS COPYlUGJHED .;>'ND PROPRlETARY INFOIUvLA.-nON TI-US DOCU..IENT OR ANY PORTIONS ()F nns DOCU!\.1ENT IS NOT TO BE REPRODUCED FOR ANY Rb'\SON \"\:ITHOUT TilE \VRlITEN CONSENT OF \X'CG, INC 03-28-'08 13:32 FROM-City Attorney Office 8132745908 T-252 P002/012F~837 QUlS'!'lOlOl'Al~ tOR. COt7N'TX ATTOElNE'~ APPLICANTS (Please atta~h add1tional p~ges ~. needad to ~e~pond fully to que$tions. "ATE, ~ 17. 2008 Flo~idd Bar No.: 0825786 G&NElUIL' 500;. Sec. No.. 1l2-42-0835 1.. Name: Gar! M. Glassman E~"'ll-il: Garv.Gl8.ssman@t~~~,&QY.~e.t ~...t<ll p,&lit.t..eo to practice in F.!orida: October, 1989 City:Tamp& State: Florida ZIP, B602 , f ; , i . i 2.. State tit)~ currently held: incltiding ptotessional position ond any pl1bl.i.c;: 0' judicial office. Sr.. Assistant City Attorney Dusines:s address: 31 East Kenne.dv Blvd. J. ,. Tal.phone; 813-'274-84 I 4 Re:sidential acoJ;,es.si 10126" s. FAX:_ R 11_174_'j,(JOR Fulton Court City~ .Ol'lClndo S1nce: March. 2000 S'tate'_,P'lorida ZIP, 32836 Telepbone' 407-903-5876 s. plaea of birt.h.: Hta Vernon Hosnlral. Mt. Verl'lon, NeW' York net. ot birth, April It; 1953 Age' 54 . 6. Length ~f residence in State ,of 'Floridill: AOPTOX. 20 years ,. Hilitary service lineludin~ ~eserves) None Servic.@ Branch Hj.gnest. Ran};;: O~tes. Rank at time of dt,eharge: Type ot Di~cha1ge= Award or c~~~tion~: 1 , j } i Paget i ......----~..,..,.,...,.,.'....."....."'....~...,.,,' ,~,,_.._-~j 03-28-'08 13:33 FROM-City Attorney Office 8132745908 T-252 P003/012'F~837 8. Within tnl:! laSt five years, have YO;,1 ~vet bean fo:rtl'l~ll'l repl'ima.ndoad, d..moted, disciplined, cautioned, placed on prob~tion, suspended or ~ecmin~~~d Dy an cmploy~r? ~ Ii ~O. plQ~se s~at8 t~e ci~cum5;_n~~8 unde~ ~nlch 3UC~ action wo~ takenj th2 dat~(sl such actlon ~~~ t~7.~~. th~ l"iilJtlEi' (s) of any 1,)~t50C\5 who took' .!iUCO action, and the backq!ound J;"!d :esolutio~ of such action. . . ; I 1 ! I I I , , j l ) I \ I , i j ! ! i i . f , , l . .~ I . ! j I ! , I I j , ! ! ; , i ! I ! ! I f I \ , . I , , l , ,.,.....~,.........,...-..-.~,,,.....-,~.-...-I-..... _'._..........' 9. Itavoa any of YOI,I,t' c;u~:l".lInt ot' former co-wolkers, sobordinateS, superviso'C$; eu~tomers or clients ever filed ~ t~r~al complaint or accusation of n~$conduct ~gainst you with any ~e9u13tory or ~nv~~tLgatory agen~y I or '~lth your employ.x? No . It ~Q, plea3e ~~ace the date(s) of ~uch formal .~~sationls), a~d ~ecific form~l ~~cu3attonl$) $ade, And tha hacY-qrouno and reaolutio~ Qt ~uch action('l . -,:,,{ fO. ;'av~. ~oo !a~led' to. meet ijoy dead1in~ i~posed by court order or ,wc~iv~1 notice that you hav~ not co~lied witb sobstanti~e lequ~remeot~ of any busin~~' or con~Lactual ~rrangement? ~ It 50. please explain in lull . it. Ace yOU corren~lt th~ subject of ~n inv@~ti9Ation whlch could reo~l~ in civil, ~dm.inutrat:iy~ or criminal llct.ion 59aj,n..rt you? No . It yes, pl~~se st4te the n~t~ce of t~e inve,tiqation, ~he agency conductioq ~he inv~~ti9ation ~nd the .x~.ct.d eomp14tion date of tho investigation, Page 2 _.__...........'_.-___.'''-,"~''''~...r::__.r..........._._~......______~~.,______ 03-28-'08 13:33 FROM-City Attorney Office 8132745908 T-252 P004/012 F-837 Due Position ~rnployer ~ddn::S$ ! 1 ! , ! ! , ~ j NOY-LEGA!. EM~I.OfHE1iI'l' ~ !2~ List all previo~5 full-time non-legal jODS or 9oeit~ons held $inc~ 2l in chr~nolcgical orde: ~nd briefty de~c~ibe tham, 'None Position Name af FirM Addrou Date, , j . l , ! , , i ! I . . I ! ; 1 I l I f ! j .. ~ . , I I l , I i I I , I , ! , . ; l , ! ~aoFES$IONAL ADHISSIONS: 13. ~is~ ~11 cour~~ fincludinq ~tate b~r ~dmi3~ionS) and administrative oodLes havinQ speci~l admis$ion requi~ements to ~hich you bre pre~e~tly adMic:ed to p~3~tice, giving the datc3 of ~d~i$sion. tour~ or Administratiue ~ody Date ot ~mlss1on United States SuDreme Court Eleventh Circuit Court of ADueals United States District Court. Middle Dist./Fla. . . .F10r:id,a Bar . lIew York Bar U'f' PMC'UCI: 1.. State the nam6S, dates a"d addres~~s.for all tirm~ wi~h ~hich you have be~h a5soci~ted ~n practic~, qovernme~tal agencias QX ptivate bu~~ness O~9~ni~ation~ by ~hich you h~vo ~~n employed, periods yO~ have pra~ticed .45 a sole pr3ct~t~onec, law C~eIk~hip5 ~nd other prior emptoyme~~; See atUched. lS. Provide a detailed descrip~ion ot how ~he State Growth Managem~nt Law (SB- Page 3 , i ..~~---.-.........-::....,~...~\~",._....~.. ,,...., ,...., "..._r.,,,-...--J 03-28-'08 13:33 FROM-City Attorney Office 8132745908 'T-252 P005/012uF-837 J60j imp6ct3 local 9ove~nme~t ~i~h specific emphasis on Hom~ Rul~ Right~. COh~v~re~cy, q~ovth man~ge~ent ~nd budgeting lor cdpital imptoV~m@~~S. Att4~h ac least one ex~mple of legal wricinq ~hlch yov personall, ~~ote. If you haY~ not personally wdu.llo any hq.al documents rect:!l\tly. 'jor,; m"y ~tt~ch ~r1tin9 f~r which you hAd ~~b$t6nti~1 ~espon5ibillty Plc~se descIjb~ your deQ(ee of in~olveL~nt in prepaxing the writing you a~taCh. See attached. Writin~ samples have been sent under separate cover. i I i i i I , I I . I ! i i 1 16. ~~u~ you ~ver held or been a candidate {or any ~ublic office? If ~O, ~tat~ ~h~ office/ lo~ation and dateS of service or c~ndidaey. 'Nane 1i. H4~ a co~plaint About yO~ ever been ~Qde to the Ethi~3 Commission, or ~hY 83r As~oc~~tion? If ~Q, qive 04ce, describe copplaint and its r~$olution. See 8te~ched. ., Le. H~~~ you ever been held in contempt? If SOl tor each instance sta~e n~me ap~ro~im~te date and circumstance~. No BUS%tnr: SS INVOLVEMi:N'l" ~ Page 4 _~~.._......""':'......,............~..""".~~~,......., .u.........---=....__""'. ,. I ~ .....__.......'_"'.,,""'_.,""-..,.,'......_.,... "'m."-."~--} "~...-_.._..,..- T-252 P006/012F~831 03-28-'08 13:33 FBOM-Gity Attorney Office 8132745908 19. If ycu ~~e now .n oific~rJ direc~~r or other~!~R enq3g~ in the ~ar.aq~~nt of 4nv business enterprise~ 6cRte t~. name ot such enter?=i~8, the n3~~rp. Qf t~e bU8~n_S$, the naturQ of you~ duties, and whe~har yo~ intend ~~ re~l~ 5Ucn pO$i~ion immediately upon your appointment or election to jcdicial office. None 20. Si~~e bein9 ~dmitted ~o the Bar, h~v. you eve~ beQh ~nqaged in any occupation, business or profession other than the pr~c~i~Q ot law? Xl so, qive details. inc~udinq dates. See &ttached. 21. State ~hethe~ d~ring the P~$t five years you h~vQ received ar.y f~~s or compen~ation of ~ny kind, other thdn tor 1_9&1 ~ervtces tond~red. trom any' business soterp:ise, institution, org~nizat1on, or as~oci~tlo~ of any k1nd. If so, identify the ~ource of such compen~ation. th~ na~ut~ of th6 business enterp~ise, institution, organ~z~tion of ~~~oci8~iQn involved._nd th~ ddt~s e~~h com~Qnsatlon WAS pa1~ and the aroount~. None POS$XIlLE ilIAS Oil P1U:JUDICE: 22. The Ccl1llfth,s.ioll is lnte:cested in kno,",ing j.f thBre are certain t.ype3 of .c~sesl 9r90p~ of ~~titie6, or eX~end8Q ~el~tiQn$hip~ or associations which could pre~ent ~ p04sihle conflict of interest for the position you seek. Please Ii:"; all' type$ o~ <<=l;u~1'fiCliltions of cases or lit:i.~<ln.u tor which yo~ a= a 9Bneral proposition believe it ~ould be difficult to~ yo~ to pux&ue as the county a~torney. Ind~c~~~ th~ Ie~.on fox each sit~a~ion AS t~ why you believe you might be io conflic~, None 23. Have you ever til~d 3 personal pet1tion in ban~ruptcy or h~$ a petition in ban "ruptcy been f ilod ag'ilinst YOIl? No Page 5 . i 1 I j l i 1 , , I ! , . , -i 1 i ! ! '1 , I , I J I 1 I 1 ~ ~ i i i i ~ , I , l , . ~ ; 1 , " ;, ,-.-..-..,.,.--.-........,.._...-- -..........."...,.........--.,...._~ _......_~--_...._..............----...... .............--...,,--- 03-28-'08 13:33 FROH-City Attorney Office 8132745908 T-252 P007/012 FC831 ~'-'.._--~'" 141 SC:ELLANEOUS ; 24. Have you ever ~en CQnvic~~d fo~ violation of any ~ederal. state, coonty or m~nicip~l 1.w, requlatioo Qr ordinance? Ii so, qive det3ils. 00 nOL incl~de tr~f!ic violations for which ~ fine of SlOO or le~~ was imposed unless it also inclUd~d 3 jail seoten~e. No 25. ,Have y~u eVtlT been s\1ed l:)y a cHent, or .b.t1yone? If so, give pcu.ticulan incltidinQ n~me of client, date au~t tiled, court, ~a5e numb~x and di~pcs.ition. i ! I ~ I , , ~ l ~ . , i I I ! I I f, See. attached. z,. H~V8 you O~ your profes5ional lia~ili1:Y insurance c~rrier ever settled b '. dil~ <CI9.ain~t 'YO!.1_.fot: pro.eessiot\~.l. ~q..\pJ;~ctice? I.~ .3l">, 9~ye paq;,io::ula.r~.. inc1udinq Lhe,amountc involved. See abov.. , i l I ! '~ , ! I ~ ! ~ , \ ! i: , ! 21. H.~Q you ever been a pc~~y to a law~uit either as ~ plaint~ff or 3S a d~fend.nt~ It so, 'ple~se supply $tylel ce~e number, natura ot thQ lawsuit, whethQt you were Plalntiff or Defendan~ and it~ diopo5~tion. See attached. Page 6 -- ~_"_"",,,""'''''''''T'',..~,..."-,-,,_., ~.~,..~.,U__""'n,<--, 03-28-'0813:34 FROM-City Attorney OffiGe 8132745908 T-252 P008/012 F-837 28, H~5 there ever be~n a findin~ of prohable ca~se or other ci~~tlDn issued against you at are ~u p~e~eht!y under ih~esti9~tion fe, ~ b~~ach of etbi~s or uoprofessiona1 cofaducr. by any co~rt, ~dministrative 8qQncy, par association, or other profe~siQnal group. IE ~C, give the partic~13rs. No 19. Ha~e yOU f~lQd all pa~t tax retu~n$ as requited by federalJ ~tate, local ~Ad ot~er 9over~ment ~uthori~ios? te:s:)Ot No:____ 'if no, f!x~laif'i. n.$ a t~x lien ever been file aqainst you? Ye~; eJCplain. No XX If Yi;l:5, Paon:ss~ONA,L. Am>. O;t~~~ A~IVr:r,IE~: " 30. List ali bat associations ana professional societic~ of which yOU a~~ ~ memb~r and give the titlas and dates of any otfi~. which yo~ m4Y have held ~n sucn g~oups ~nd committees to which you belonge~. Florida Bar Sarasota County Ba~ Hili.borouRh County Bar Federa Bar Association New York Bar Oranp:e County Bar 31. list, in a fully identifiable fashion. all or9anizat~on3. other th~n t~o$e i-dentifiod in response to qUAstion No. 35, o! which you have b~~n a member since 9radQ~~inq flom la~ scnoQl. includinq the ti~l~s and dates of any Qf!~ces ~hic~ you have hel~ in ~ach such ~ruani2ation. NOlle Page 7 .----..-.------ --.-.,...........,,--.... --v""'__,.~,.-~<...~,.,....., __..'".,_~.._,_....,~.J 03-28-'08 13:34 FROM-City Attorney Office 8132745908 T-252 P009/012 F-837 32. Describe a~y pro Qono legal ~ork you have dcr.Q. Cive dat.s. S,ee attached.. StJPPuHENDL IlfFOIlMArION' 33. H~ve you a~tended any continuinQ l~qal education proqram~ during the past live years? If 50} in vhat 5ub~t&ntiv. ar.as? See attllcbed. 34, Have yOu t~ught any COUESBS on law ox loctur~Q Gt bAr b5SQcia~ion conferen~e~, law s~hool forums, or ~ontin~inq leqal ed~cation pro9x~ms? If so, in wh~t ~ubstbntive area5? See attached. 3S. D~5Cri.be. any addit.ional educ~t:i..ou or- othlH e}(perienc:e you have 'Iolhich could ~~~~.t ~ou in ho1din9 the off~c~ ot count~ attorney. 'Se~ at t.aehed_ 36. ~xpla~n the.par~ic~lar pote~tial contribu~ion you believe yo~X selaction would bri"9 to thi~ po,i~ion. See attached. Page 8 ----.--.. ..........__:,...,....,.._.""""\..__...... ,..~,........~._~.J' 03-28-'0813:34 FROM-City Attnrney Office 8132745908 T-252 P010/012 F-837 31. Give any o~her io!ormation you teel would be helpful to ~he Commission in eva1uating yo~r applieation. See a~ta<:hed, t , j i j l ; j j I , Page 9 , j I I I I l i . . ., j I I I I , ! . , , i j 1 I , I l ; i I ~ I 1 f , 1 ; , , , , t . .--_.~",",.-....,,,,.-<-.-J 03-28-'08 13:34 FROM-City Attorney Office 8132745908 T-252 P011/012 F-837 CJ!.~tI'FlCA1'E ! have read the foreqoinq que$tions ~4~efully and have ao,.cred them truthfully. fully and completely. I her~by waive notice by ond authori~e T~e Florida Bar or dny of it~ c~Ltt~es, educational and otbet institutions, the Judicial Qualifi~ation$ COmhission. tne flo.ida Board of aa~ Examiners or ~ny jL1dicial or proflusional disciplina.ry 01:' $up@rllisory bOdy or commi:lsioll, any ~eference5 tu~ni~hed by me. e~loyer&, bu~i~&s~ ~nd pro!~S5ional associa~~s. all qovernmsntal aqencie~ and instrumentalities &nd 011 conSUMQr and cr~dit ~~pgItin9 aqencies to relea3e to the r~3pective JUdieial NOMin~tinq Co(Nfti!~ion and ottice of the Governor a~y information. filesL recOtdS or cl~dit repcr~s reql1ested by 't.he cornroissioll il1 COllnectioh wi'th any con~ideration of m~ ~e possible nomine~ tQ~ appointment to jadicial oftice. Information xcl~tin9 to any Florida Ba~ ~i5ciplin~ry proceedings i~ to be made available in accordance with Ro!a 3-1.1(Q)(2), R~le$ Regulating Tn. Florid~ Bar. I recoqnite And agree ~hat, pursuant to the florida Constitution 4nd the Uniform k~le3 ot thi~ commi~sion. ~he contents of thi$ questionn~ire ~nd othQr iniormat~Qn receiued fro~ O~ ~oncernin9 me, and all interviews and praaeedings of the commission. except fQ~ d~lib~rations by the commi~~ion, shall be open ~o the public. Oah,d thill 17th day of March -A'20~~ '7'J ~i9n.(ture . PD::tsulIn't to Seet:ion 1l9.07{J)(U(U, f.$., ThQ hOlllQ addrees$s oiInd t.lephona rll.Ul'lber~ .of justic::u;. of t.h* Sllprerae.. Court, dist:ciet e.aut't.of appeal ju~es, circuit court judQe$. And county CQurt jUd9a.; the home addre~5e~, tele~one numbers. and place~ _or employment of the $pouoe~ and children of justj~O$ and jUdge9j and the names and locailoDs of ~chools and day c~re {~cilities att.nd*d by ~h@ children ot justicea and judges are eXemp~ from the prov!s!Qns of subsectio~ (1). dealing ~1th ~~blic rQcord~. j- Page 10 , , .-----,......,.....-........._"'~_..,..'"-_...~."'....... , , ~ , ~ I , ! " , ! I I ~ 03-28-'08 13:34 FROM-City Attorney Office 8132745908 T-252 P012/012 F-837 APPLICATION DATA RECORD The opplicatio~ sball in~lude a sepalatc page askin~ applicants to identify ~helr xace. ~t~nici~y ~nd 94nder. completion of ~bis page shalt be opticnal. an~ the pa~e st.all include an o~plAna~iQn tha~ the info~matioo is reques~ed tor data eollectlor. p~~po~e$ in order to ~ssess ~nd pro~ote div~rsity. !dephone ~_u, 407-903-5876 At:.tolney No. 082 Ii 7 Ali j , ! ~ ! ~ ! I \ ~ . I 1 i , '. t ~ i I I i ( ~ (Please Type or Pxintl Date: Hareh 17. 2008 JNC Submitting To: Nam~ (pl~s. pr1nt~; 'Current Occupation! 'Gar" J Attorne.v r\'\. GIM!oM&t(\ G&nde~ lcheck ona); ~ Male Felll...l. E.thnic Odq1a (check one}; xx _~hite, non Hispanic ~ His'panic - Blll.cl( American India"IA13$kan Native .~siz:",iPll(:if"'c ..I.::o_lanj~.~.. CO\lnty 01 a."idence: Orange I i ! ! t . ! ! I \ j ~ Page 11 i l , ---."~r_,_'_..""'A'-",.,..J f"lcf"- Answers to Questionnaire for County Attorney Applicants Gary M. Glassman 14. Sr. Assist. City Attorney City of Tampa 315 E. Kennedy Blvd. 5th Floor Tampa, Florida 33602 2006 to present Assist. County Attorney IV Orange County 201 S. Rosalind Ave. Orlando, Florida. 32801 2001 to 2006 Partner Glassman & 40 S. Osprey Avenue Golden Norris Sarasota, Florida 1992 - 2000 Associate Becker & 3111 Stirling Rd. Poliakoff Ft. Lauderdale, Florida 1990 - 1992 Sole Practitioner Gary M. Glassman Robinson Street Orlando, Florida 1988 - 1990 Assoc. Gen. Counsel Fay's Drug Co., Inc. Liverpool, New York 1982-1987 Associate Bersani & Marshall Syracuse, New York 1979 - 1982 15. The Local Government Comprehensive Planning and Land Development Regulation Act ("Act"), Section 163.3161, Fla. Stat. et. seq., is a statutorily mandated legislative plan to control and direct the use and development of property within a county. It has been considered a "constitution" for all future development within the county. The intent, at least from the State's perspective, was to strengthen a local government's role in the establishment and implementation of comprehensive planning to control development. For example, in Section 163.3161(5), Fla. Stat., the Act states: "It is the intent of this act that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with this act The Act provides, in enormous detail, the requirements for capital improvements, coordination with other counties and municipalities, when amendments can be made, numerous concurrency elements, and data collection. While it appears that the Act is designed to assist a county in its land development plan, it can be argued that that the Act is a usurpation of power by the State of one of local government's most important and historically held powers, the ability to plan for and implement land development. It is always necessary to be careful of attempts by the state and federal governments to take away these vital local government powers. 17, In or about 1997, after winning a lawsuit for a client, he refused to pay my legal fees. When I asked him to do so, he filed a complaint with the Florida Bar. The matter was reviewed by the Bar, and dismissed immediately. The client left the state, and never paid my fees. 20. For brief time in 1995, I was a partner in a business the purpose of which was to produce continuing education courses for condominium managers. The business was not successful, and after several months, it was terminated. There are no outstanding obligations or concerns of the business. 25. In 1997, I represented Linda Amin in a suit brought against her employer under the Private Sector Whistleblower's Act, Section 448.101, et. seq. CAct"). The Act was new at the time, and there was not much case law available. After a great deal of discovery, the case was dismissed on summary judgment. [appealed the case to the Second District Court of Appeal, and the Court affirmed the decision. Another case at the same time was being appealed to the Florida Supreme Court on the same issue. I did not appeal the case to the Supreme Court because I did not believe that a further appeal would be successful. Some time later, Ms. Amin disagreed with my decision, and filed suit for malpractice. The insurance carrier settled the case for a small amount that I cannot disclose due to confidentiality. 27. I was a Plaintiff in a divorce action in 1986 in the State of New York. 32, Throughout my legal career, I have represented numerous clients pro bono. Most recently, [ represented a young woman in a dissolution or marriage matter and related court proceedings. In 2006, [ represented, at the request of a federal judge, a man who wanted to sue a hospital for failure to treat (not medical malpractice). In past years, I have represented indigent criminal defendants in trials and appeals, as well as people seeking dissolution of marriage, custody matters, etc. who were unable to afford legal counsel. 33, I have attended numerous continuing legal education courses in the past five years. Some of the substantive legal areas include land use, zoning, environmental, local government, labor and employment, evidence, trial and appellate practice, and open government law. 34. Speaker, Florida Association of Code Enforcement Annual Conference, June, 2007 2 Speaker, Florida Association of Code Enforcement Annual Conference, June, 2006 Speaker, Florida Bar Seminar, Land Use and Section 1983 Cases Speaker, Florida Bar Seminar, Attorney's Fees and Section 1983 Actions I have been asked to speak at the Florida Association of Code Enforcement Annual Conference in June, 2008. 35. I attended Harvard University Law School's Summer Program for a week, and took courses in constitutional law, civil procedure, copyright law, and theory of law. 36. The key element I would bring to this position is an ability to work for and with people. The County Attorney position can be a catalyst in bringing about results that are in the best interests of Collier County. I can work with the County Commission and Staff to understand the desired results, and then determine the best legal avenues to achieve these results. I can be a strong influence and mentor to the County Attorney lawyers and staff, and guide them in their legal endeavors. The County Attorney position is not about the person who occupies it, but working with others to make Collier County even better than it is. 37. I am at the point in my career where I am ready to be County Attorney and work for the County Commission. My experience and training have prepared me well, and I am confident, if chosen, of a successful relationship. 3 - JEFFREY I<LA TZIZOW THE \V.\TERS CO~Sl'LTII'G GROCI', II'C 800.899.16(,9 \V'\VW.\'C\ TERSCO"SCLTING.CO~I COLLIER COUNTY, FL EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY EDUCATION VERIFICATION Jeffrev A. KIatzkow Academics Juris Doctor University of California at Davis Davis, CA Pending Conf'rrmation by: Registrar B.S. Cornell University Ithaca, NY Confirmation by: National Student Clearinghouse THE WATERS CONSULTING GROUP, INC. THIS DOCUMENT IS COPYRIGHTED AND PROPRIETARY INFORMATION. THIS DOCUMENT OR ANY PORTIONS OF THIS DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON WITHOUT THE WRITTEN CONSENT OF WCG, me .- COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY Jeffrev A. Klatzkow 14606 Indigo Lakes Circle Naples, Florida 34119 Home phone: 239.304.1658 Business phone: 239.252.8400 Mobile phone: 239.682.9940 Home E-mail: klatzkow@yahoo.com Work E-mail: ieffrevklatzdow(aJ.colliergov.net - CURRENT TITLE AND Chief Assistant County Attorney ORGANIZATION NAME Office of the County Attorney Collier County Naples, Florida Since 2007 With Department since 2002 serving as Legal Assistant (2002 - 2003 while obtaining Florida Bar), Assistant County Attorney (2003 - 2006) and Managing Assistant County Attorney (2006 - 2007) Admitted to the Florida Bar in 2003, U.S. District Court, Middle District, Florida Also admitted to the New York Bar, New Jersey Bar, practiced in the Eastern Districts of New York, District of New Jersey REPORTS TO (TITLE) County Attorney POPULATION SERVED 315,000 (permanent) 440,000 (peak season) SCOPE OF AUTHORITY . Staff of 34, Budget of $4 million REASON(S) FOR INTEREST IN POSITION Jeff is seeking the promotional opportunity after working in the County Attorney's office for the past 6 years. He is happy in his current role, and expressed a deep respect for the current County Attorney, but is interested in having the opportunity to run the office since the change will be taking place. With his experience with Collier County and the private sector, he feels comfortable in handling the challenges face the office. With his experience, he understands a number of them already and has confidence that he will need minimal "start-up" in the new role. .--. WATERS-OLDANI EXECUTIVE RECRUITMENT PAGE 1 20060 THIS DOCUMENT IS COPYRIGHTED AND IS CONSIDERED PROPRIETARY INFORMATION TIllS DOCUMENT OR ANY PORTIONS OF TIllS DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON wrrnOUT THE WRfITEN CONSENT OF THE WATERS CONSULTING GROUP, lNC. WATERS-OLDANI EXECUTIVE RECRUITMENT IS A DIVISJON OFTHE WATERS CONSULTING GROUP, lNC. 800.899.1669 COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY - STRENGTHS This Candidate has the insider understanding of the inner-workings in Collier County, working with the most labor intensive and high profile areas since he began with the organization in 2003. He has been active in the development of regulations, legislation and policy associated with growth management, land developrnent, the consolidated code enforcement, proportionate fair-share program, and All Terrain Vehicle (ATV) use. He has already been involved in addressing the rightsizing of the Horseshoe office from four (4) attorneys and four and a half (4.5) administrative staff to three (3) attorneys and two (2) administrative personnel as well as addressing performance issues throughout his career in both the public and private sector. Jeff recognizes some of the existing performance issues that are currently in the office and the pressing need to address the performance issues prior to dealing with the budget matters in order to preserve the higher quality staff and be able to support the County in a quality manner. Klatzkow understands management of a law office, where he has managed and been a part of the senior leadership team in the private sector as well as a senior team member in this law office. He has had to manage through very difficult fiscal times, including providing advice during corporate bankruptcy proceedings, economy downturns and times when significant management turnover was taking place. While he has not managed a large staff, his understanding of the issues facing this office provides him insight that will compensate for his learning curve in managing the office this size. - Jeff has the experience and exposure in presenting to the existing Board of County Commissioners, representing the County in specific projects in front of the State Legislation and responding to the news media. He has extensive litigation experience from his experience in the private sector, where he was in the court room handling litigation and complex cases as well as managing litigators. He brings a business focus and ernphasis, one that is focused on outcornes instead of activity. AREAS OF CONCERN Moderate with this Candidate, the familiarity with the existing team will provide both positive and negatives, and he will have to rnake the transition to manage former subordinates, peers and managers in a difficult budget environment. While reestablishing himself as the County Attorney with client Department Directors, the County Manager and the Board of County Commissioners, he will be charged with making the tough calls in a public arena, taking care to use his most objective views in the recommendations brought forth. He is aware of the challenge and the need to build strong relations within the County; he will have to do so with a significant amount of scrutiny. While the Candidate has over five (5) years experience in the public sector, it is limited to Collier County, where the legal opinions have been very conservative and will have to balance the need to respect the policies, goals and objectives associated with the Board of County Commissioners with the potential need to offer input/insight frorn other Florida cities counties that may be more able to bring ideas/suggestions of ways to assist the County in weathering the fiscal and legal challenges that will be faced for years to come. He has shown this initiative in the private sector, but will have to work with - WATERS-OLDANI EXECUTIVE RECRUITMENT PAGE 2 20060 1HIS DOCUMENT IS COPYRIGHTED AND IS CONSIDERED PROPRJETARY INFORMATION. THIS DOCUME."lT OR ANY PORTIONS OF 1HlS DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON WlTIIOUT TIre WRITIEN CONSENT OF THE WATERS CONSULTING GROUP, lNC. WATERS-OLDANI EXECIJITVE RECRUITMENT IS A DJV1SION GFTHE WATERS CONSULTING GROUP, INC. 8011.899.1669 - COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY the Commissioners as well as the Directors and the Attorney office staff in opening the mindset to rnove from a staid to a client-oriented and more responsive environment with the potential of a loss in staff. MANAGEMENT/LEADERSHIP PROFILE - Jeff has a diverse background, where he initially worked in the State Public Defender's Office in the State of California, before moving back to the Northeast, working in a private law firm handling commercial work, then moving to working as in-house counsel for private sector in the Northeast. In his in-house work, he moved up the ranks to Assistant Secretary with the Carvel Corporation where he oversaw the entire litigation docket, contract management/administration and compliance. He brought organization and efficiency to the office, managing the complexities of the franchise process, as well as dealing with internal and external counsel in all litigation. In his 11 years, he managed through the changing business model from company stores, to franchises to a supermarket distribution model. Klatzkow handled significant aspects of the transition, including class action suits with the transition from the new business model. He handled this transition on behalf of the corporation ably, getting a disrnissal of a class action suit by the franchisers. He moved to Cendant, serving as in-house counsel for their Hotel division, managing the commercial litigation docket, including bankruptcies, franchise issues. These two (2) in-house positions greatly prepared him to become part of the Collier County Attorney's office, where he joined in 2003, moving up the ranks fairly quickly. In each position he has held in this office, he has been a contributor, taking his responsibilities seriously and moving forward with the challenges faced with growth management and developer agreements. During his tenure with the County, he has served in a legal support role for the Departments of Transportation, Code Enforcement, Impact Fees, Affordable Housing, as well as the Community Development and Environmental Services Divisions. As previously discussed, he has been involved with office right-sizing and organizational effectiveness efforts. He has the experience working with a variety of developers in the negotiation of agreements, from the creation of a consortium to handle $50 million+ in road construction improvernents and traffic signals, supporting the County's Planning Commission, the Code Enforcement Board, the Metropolitan Planning Board and the Historic and Archaeological Preservation Board. With these types of client groups, he has addressed issues with significant interest and concern from the public, negotiating through the complexity of supporting the continued growth of the County while respecting the concerns of existing citizenry, the significant pending budgetary issue as a result of the state legislative changes. He is comfortable with being an agent for change, with the ability to view issues from multiple perspectives. While his assertiveness and pragmatisrn is helpful for being a leader in the County Attorney's office, it will have to be measured with the need to coach and mentor the entire Attorney's office through the necessary change through the transition to a new County Attorney. Jeff will have to take care to incorporate staff and other's concerns in the planning process so as to build the type of strong and effective team needed to support the needs of the Boards of County Commissioners through the coming years. - WATERS-OLDANI EXECUTIVE RECRUITMENT PAGE 3 20060TIUS DOCUMENT IS COPYRlGIITED AND IS CONSIDERED PROPRIETARY INFORMATION. THIS DOCUMENT OR ANY PORTIONS OF THIS DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON WITHom TIlE WRTITEN CONSENT OF THE WATERS CONSULTING GROUP, INC WATERS-OLDANI EXECUTIVE RECRUITMENT IS A D1VlSION OF THE WATERS CONSULTING GROUP, me. 800.899.1669 -- COLLlERCOUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY SALARY INFORMATION Jeff's salary is currently $120,000 and he is comfortable with the advertised salary range. Klatzkow will be seeking a fair and competitive salary for the significant increase in responsibility. He will be able to make the transition quickly, moving forward with the pressing issues facing the Board of County Commissioners and the employees and citizens of Collier County. ABS/March 2008 - - WATERS-OLDANI EXECUTIVE RECRUITMENT PAGE 4 20060 THIS DOCUMENT ISCOPYRlGHTED AND IS CONSIDERED PROPRIETARY INFORMATION TIllS DOCUMENT OR ANY PORTIONS OF THIS DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON WITHOUT THE WRITTEN CONSENT OFTHE WATERS CONSULTING GROUP, INC WATERS-OLDANI EXECUTIVE RECRUITMENT IS A DIVISION OF THE WATERS CONSULTING GROUP, INC 800.899.1669 -- Jeffrey A. K1atzkow 14606 Indigo Lakes Circle Naples, Florida 34119 (239) 304-1658 Klatzkow@Yahoo.com Experience Collier County - County Attorney's Office Legal Assistant: July 15, 2002 to June 29, 2003 Assistant County Attorney: June 30, 2003 to May 28, 2006 Managing Assistant County Attorney: May 29, 2006 to September 30,2007 Chief Assistant County Attorney: October 1, 2007 to present -- As a Legal Assistant, supported attorneys on erninent domain matters, tax deeds, tax surplus clairns and enforcement of code enforcement liens. Following admission to the Florida Bar, was elevated to Assistant County Attorney, where I took control of tax deeds and tax surplus claims, supported the Transportation Department, the Code Enforcement Department, the Impact Fee Department, and worked with the Canvassing Board and on state legislative matters. In December of2005 I was assigned to manage the satellite County Attorney's Office located in the Community Development and Environmental Services Division building following the sudden departure of two attorneys and a legal assistant After stabilizing the CDES office I streamlined productivity, reducing the office from four attorneys and four and a half administrative personnel to three attorneys and two administrative personnel. In recognition of these efforts, I was promoted to Managing Assisting County Attorney in May of 2006, a newly created senior level position. My duties managing the satellite office include helping support the Transportation Department, the Code Enforcement Department, the Impact Fee Department, the Affordable Housing Department, state legislative matters, and all land use matters, including plats, zoning, variances, conditional uses, working with the County's Growth Management Plan, and Land Development Code amendments. I was promoted to Chief Assistant County Attorney effective October 1, 2007, where I presently split time managing the satellite office and assisting the County Attorney with matters pertaining to the Board of County Commissioners. Over my tenure with the Office I have helped support the Collier County Planning Commission, the Code Enforcement Board, the Historic and Archaeological Preservation Board, the Canvassing Board, the Metropolitan Planning Organization (MPO) Board, and the Board of County Commissioners. Highlights during my career in the County Attorney's Office include: -- + Helped negotiate and draft numerous Developer Agreements, ranging from developer payments for traffic signals to creating a consortium of developers who will design, permit and construct over $50,000,000 in road improvements at virtually' no cost to the County. + Drafted and presented to the Board the County's Proportionate Fair Share Ordinance, as mandated by State legislative changes to the Growth Management Act. + Drafted and presented to the public and the Board a Planning Moratorium Ordinance. + Currently representing the County in litigation involving changes to boat speed limits on Naples Bay, which matter is scheduled for oral argument before an appellate court in early December. - Cendant Corporation, Parsippany, New Jersey Vice President and Assistant Secretary, Hotel Division 1997 - 2001 Senior level in-house counsel position supporting upper management in meeting business goals. Administered recurring franchise sales, transfer, renewal and compliance issues. Negotiated and drafted dornestic and international franchise and master license agreements. Drafted and filed Canadian offering circulars. Supported the marketing department. . Managed Division's 100+ bankruptcy docket, supervised outside counsel in 50+ case commercial litigation docket, and successfully mediated over a dozen franchise disputes, all within budget. . Created a new tier for existing hotel brand by converting over a dozen Hearthside Inns to Hearthside Extended Stay Studios by Villager Inns. . Trained franchise sales staff in legal matters. . Prornoted.twice during first three years, from Assistant General Counsel to Senior Counsel to Vice President. Carvel Corporation, Farmington, Connecticut In-House Counsel and Assistant Secretary 1986 - 1997 - Oversaw the cornpany's entire litigation docket, supervised the contract administration and compliance department, and periodically updated and filed the company's domestic Disclosure Documents (UFOC's). Varied corporate practice included real estate sales and closings, preparing corporate resolutions, and administering all trademark filings and renewals. . Automated the document preparation process, resulting in substantial cost savings through staff reduction. . Negotiated, drafted, and executed all franchise and retail lease agreements relating to over 450 franchise stores, and interviewed and qualified all franchisees as part of the Franchise Review Committee. . Managed all of the company's litigation, either as counsel of record or by supervising outside counsel, in rnatters ranging from landlord-tenant disputes to complex civil racketeering actions, insurance claims and bankruptcy filings. Personally prosecuted or defended hundreds of civil actions in New York and New Jersey state and federal courts, from initial pleadings through appeals, engaging in substantial pretrial motion and discovery work. American Career Schools, New Rochelle, New York New York State licensed instructor for evening paralegal classes. 1985 - 1988 . Developed curriculum and selected all course materials. . Taught legal research, legal writing, contracts, torts, business law, wills and trusts. .- - David Marcus and Associates, White Plains, New York Associate 1984-1986 . Represented commercial clients in administrative hearings, negotiating substantial tax assessment reductions with local municipalities and other taxing jurisdictions. + Conducted legal research and pretrial litigation in commercial disputes. . Drafted real estate contracts, commercialleases, wills and appellate briefs. State Public Defender's Office, Sacramento, CA Intern 1982 - 1983 + State certified law student responsible for the preparation of appellate briefs in felony cases under the direction of an attorney. Professional Status Admitted to New York Bar, 1984; New Jersey Bar, 1987; Florida Bar, 2003 US. District Court, Southern and Eastern Districts of New York; District of New Jersey, Middle District, Florida Education J.D., University of California at Davis, 1983 American Jurisprudence Award for Business Planning B.S., Cornell University, 1979 Major: Industrial and Labor Relations - - " . , o . < !!!<'O <l.: E-a; g", "'~:::: ~8'c~:i8~ :;:i~:;~s:g 3 ::l E :;;:5"0 ;, OE01l::Qi!!'" 2..!.'l1- l.i...~ o . ~ ~ o ~ m ~ - ~ oc ~ I ~ uoc u~ m_ .< 05~ c2~ gws = OIU ~'O . ' :J"'>. (/];::;;:::: .~ >n ""Ill 0, ~ -~ W. < - ,- - - Qi~ ~" il~~ HU ~::!:o L--- E~>. f- "'>g~ un . ~ ~ < ~ - ~ - - '- ~ u ~ .~ a!~ "'d ,. ~1!i j~~ ~E~ - . 5~ . . " o . . " "- ,~'E;:: a,g >. ~"5~ W<n _t. ~ 0 , 8~[ ~ <( . ~ ~ ~ iE ai.9 3::, n ~ $;: .0 00 u - ,.... ~ ~Lgg ~ :.1:;: <11.= l.i... ~O_:r: .~~ m.n ,,,-< ~E~ ;f~-~ ~ ~- Ir B ~ o ~ . E ~ , ~ '--,- ~ OC ~ ~ OC "~ .- a< ~~~ ~~- <si>.S 8~g o ou ~ ..GJ?;o<C On ~. . , o~ " ~ ~ "OC .~ ~~ .< ~~:::: ~~~ ~8[) D.~ ~=~ :~ :g2' < . ~ .- " ~ .U .- .~ ~8~ .~~~ ~~~ ~~ . 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"' 0 '" '" c '''06 '" ~~ ~ ~o~ ~w.'2g>~ :2 g N ~~8~ ~,82! ~ ~' ~~~ ~ ~~1~ u!Cl: ~ Cl::SU<DU",U ~~~~ ~~~ c... ~~~~~8~ ~~~~~~:i~~~E~~~j~~~ ~ 6'€ ~~ z.~ ~~ ~~ ~&~:ij:,;,en ~ :S~<(~I<I~~<(~<(oo!l~S~~~ ~~~~ ~:~ ~ ~~~~~2~ ~ 2>E2> g.-~g, !Z> _g,~g,~ g,~ g, ~::;8~ ::;5~ ::; ~ ::;~~ ::; 0<( <( <(I<( <( <( <(5<( <( N N I-- ", a.. I - 2 Z Cl: >'z U s: ~~~~"'~r~ :::c:::? 1Uc... Ea..eCl Cc...",Ne2 :?r:: &2 5G-52"o:~ IU~ :;;;,;.,,,,:,;,g: ~:>,::>,~ :::!; -e ~;:o:: ~c:::-5:t::ii z. ~~::e-;;lij~,g~3~:i~ E~i~~~@~a.~~~ ~ -~Li:~I!;f~ ~ ~a:: ~ .1 :1 .1-~ ~ ~ . rn . "- ~ o o N oi ~ o " o - Jeffrey A. Klatzkow 14606 Indigo Lakes Circle Naples, Florida 34119 (239) 304-1658 Klatzkow@Yahoo.com February 2, 2008 By Electronic Delivery Ms. Amanda Ross Project Manager- Executive Search Waters Consulting Group, Inc. 5050 Quorum Drive, Suite 625 Dallas, Texas 75254 Re: Collier County Attorney Position Requested Supplemental Information - Write-up of Accomplishments/Achievements - Dear Ms. Ross: Your electronic letter to me sent January 29, 2008, III part requested the following: "Please discuss three rnajor accornplishments/achievements. We would like you to discuss each accomplishment/achievement in four or five paragraphs. (Please include quantifiable information.)" The following are three of my professional accomplishments which I take the most pride in. Accomplishment One: Minimizing the legal risks to Carvel Corporation during its transition into a new business format. I was in-house counsel to Carvel Corporation from 1986 -1997. When I joined Carvel, it was a national chain of over 700 franchised ice cream stores, headquartered in Yonkers, New York. The company was acquired in 1989 by Investcorp, an international investment bank, and relocated to Connecticut in 1991. Of the 200 or so employees at the time of acquisition, I was one of four or so who were retained by the company and relocated to Connecticut. - -- At that time the business of Investcorp included purchasing well known brands that were perceived to be undervalued, putting a new management team in place, quickly building revenue streams, and in a few years time disposing of the company at a value significantly greater than their purchase price. Investcorp's acquisitions during that time period included Gucci, Color Tile and Saks Fifth Avenue. After an unsuccessful attempt of building profitable company stores, new management elected to increase the nurnber of distribution points for the sale of Carvel products, including a Supermarket Distribution Program. Previously, Carvel ice cream products could only be purchased at individually owned franchise stores. I advised management that if this route was taken, the company would face a class action suit from our franchisees, as it was our business practice prior to the acquisition to locate stores adjacent to supermarkets. I was informed that business realities dictated that this new direction be taken despite the litigation risk. I then took the initiative of amended all of the franchise agreements, as well as the Uniform Franchise Offering Circular, which is a federally required document which discloses all aspects of the franchisor's business and is given to all prospective franchisees. Both the new form agreements and the disclosure document clearly set forth that Carvel Corporation in the future planned to compete with franchised stores for business through alternative distribution points, including supermarkets. During the purchase and sale closings of all franchised stores, which I administered, I explained this new direction of the company to each new prospective franchisee, and had them sign an acknowledgement that they understood Carvel's intention. Doing this was not generally appreciated by management, as new franchise sales were negatively irnpacted by this disclosure, but I was supported by the General Counsel, Rand Mathieson in this effort, and continued to do so. It took several years before the company rolled out the Supermarket Distribution Program. During this time I rnanaged through new franchise sales and renewals and transfers of existing franchise agreements to turn over many of the existing franchise agreements to this new form agreement. When the first class action was filed against the company in New York, I successfully argued that the case had to be dismissed as many of the prospective members of the class were operating under the new form agreement, and were thus aware of the Supermarket Distribution Program at the tirne they entered into their franchise agreement. With the class action case dismissed, the franchisees were largely left with the prospect of bringing individual actions, which were easier to settle, or bringing together much smaller groups with old form agreements. Not long after the dismissal of this class action suit, I left Carvel to join HFS Inc. (later merging with another company to form Cendant), one of the world's largest publicly traded franchise company at the time. A few years later, Investcorp sold Carvel to a private equity group, who relocated the company to Atlanta, Georgia. - ..-. Accomplishment Two: Helping Steer Carvel Through Civil Racketeering Claims. Prior to my joining Carvel in 1986, the company had a large regional office located in Ft. Lauderdale, Florida. This office housed the president of the cornpany at the time, and was responsible for all domestic and international franchise sales outside of the northeast. The primary sales mechanism, which was then new to Carvel, was to sell regional master franchise rights, with the master franchisee then sublicensing these rights to individually owned franchised stores. Under this system, the company quickly spread though California, New Mexico, Arizona, Israel and elsewhere. This new business rnodel, however, proved to be inherently flawed, as there was simply not enough revenue produced to support this new layer (the master franchisee), especially given the increased cost of having to ship and then warehouse proprietary product to far flung locations. As the system was coming under pressure, decisions were made in Ft. Lauderdale that were not transmitted to corporate headquarters, and information was withheld. When the extent of the activity was discovered, the entire Ft. Lauderdale operation was closed down, with all employees summarily terminated. The master franchisees began going out of business, and the company was unable to adequately support the franchisees. As the lawsuits came in, more information surfaced about the activities in Ft. Lauderdale, and the company quickly found itself a defendant in a number of civil racketeering and fraud claims. My responsibilities included defending the Company against these claims. - My first action was to quickly move to settle with the New Mexico master franchisee and franchised stores before they became aware of what I knew had happened. With that done, I focused my efforts to greatly impede the progress of these cases, which were difficult to defend since all of the corporate employees involved had been summarily terminated and were hostile to us. Delaying these cases gave Mr. Carvel, the sole owner of Carvel Corporation and my client, the time to sell his company to Investcorp., which unlike Carvel had the resources to weather the storm, and whose great desire to purchase the company overcame whatever questions were raised concerning the true exposure they were buying into. Accomplishment Three: Stabilizing the Horseshoe Office. The County Attorney's Office has a satellite office in the Community Developrnent and Environmental Services Building on Horseshoe Drive, generally known as the Horseshoe Office. In December of 2005 the Horseshoe Office consisted of four attorneys, one and a half paralegals, and three secretaries. When two attorneys and a paralegal left the Horseshoe Office, I was asked by David if I would go there and stabilize the Office. I never say no to David. I did, however, insist in bringing my administrative assistant, Virginia Neet, with me. - With little background in the County's land use regulations, I took home the Collier County Land Development Code, the Collier County Growth Managernent Plan, and a treatise on land use law and spent much my evenings and weekends learning what I - needed to know. Ms. Neet and I quickly integrated ourselves into the day to day business of the Horseshoe Office, and the office was able to continue to service the client without any delays or interruption of quality legal services. After stabilizing the CDES office I streamlined productivity, quickly reducing the office from four attorneys and four and a half administrative personnel to its current three attorneys and two administrative personnel, where we service more clients than the Horseshoe Office serviced prior to my coming here. In recognition of these efforts, I was promoted to Managing Assisting County Attorney in May of 2006, a newly created senior level position. I have at this point kept this discussion strictly to professional achievements. I am more proud of what I have personally achieved, however. I have gone from the projects in Brooklyn to practicing law in Naples, Florida. My best decision in life was convincing my wife to marry me 27 years ago. Together we are raising three children, all of whom are doing well. And those are by far, and will always be, my biggest accomplishments. Sincerely, - Jeffrey A. Klatzkow - - Jeffrey A. Klatzkow 14606 Indigo Lakes Circle Naples, Florida 34119 (239) 304-1658 Klatzkow@Yahoo.com February 2,2008 By Electronic Delivery Ms. Amanda Ross Project Manager- Executive Search Waters Consulting Group, Inc. 5050 Quorum Drive, Suite 625 Dallas, Texas 75254 Re: Collier County Attorney Position Requested Supplemental Information - Critical Problem Analysis Dear Ms. Ross: - Your electronic letter to me sent January 29, 2008, III part requested the following: "A critical problem analysis and response. Please discuss a current problem within your organization (that has not been resolved); tell us how you plan to solve the problem and how you will know when the problem has been resolved. (One page only please.)" The most critical problem presently facing Collier County government is the budgetary constraints which we now live under. Prior to the last legislative session, local governments had the ability to manage their budget by raising whatever ad valorem revenue they deemed was needed, up to a permitted Constitutional ceiling. That ability has been largely taken away by the Legislature, which has reduced property taxes throughout Florida. Combined with the recent referendwn which increased the homestead exemption and created portability of the save our homes exemption, Collier County is faced with significant budget cuts. Additionally, construction in Collier County has greatly diminished, leading to a marked reduction in permit, land use application and impact fees. This will ultimately lead to budget cuts and staff reductions. - The Collier County Attorney's Office will not be immune from these budget cuts. - There are at this time a number of unfilled, open positions within the Office, including two attorney positions. Depending upon the decision of this Board with respect to the County Attorney position, that number could rise to three open attorney positions. These present, unfilled budgeted positions can be eliminated with no loss of level of service to the Board, together with all open administrative positions. Should additional cuts be necessary, other action will need to be taken, including termination of existing employees. As such budget cuts are at this time speculative, it is difficult to address the issue with any precision. I believe, however, that basing terminations on seniority, while easy to administer and not subjective in nature, does not help an organization if the junior employees, who generally make less, are more productive than other, more senior employees. Accordingly, those current employees who are not meeting expectations, and who have underperformed for some time, need to be dealt with now. This will be an ongoing problem for the County, which will likely take several years to resolve. c- Sincerely, Jeffrey A. Klatzkow - .--. COLLIER COUNTY, FL EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY EDUCATION VERIFICATION Jeffrev A. KIatzkow Academics Juris Doctor University of California at Davis Tulsa, OK Pending Confirmation by: Registrar B.S. Cornell University Ithaca, NY - Pending Confirmation by: Registrar - THE WATERS CONSULTING GROUP, INC. THIS DOCl'11ENT IS COPYRIGHTED .'\ND PROPRJETARY INFORlv1:\1l0N. THIS DOCUMENT OR.'\NY PORTIONS OF THIS DOCLT/'.1ENT IS NOT TO BE REPRODlICFD FOR ANY RF.:\SON \\lTHOUT THE W1UTfEN CONSENT OF \"\'CG, INC ...- OUESTIONNAIRE FOR COUNTY ATTORNEY APPLICANTS (please attach additional pages as needed to respond fully to questions.) DATE: March 15, 2008 Florida Bar No.: 0644625 GENERAL: 1. Name: Jeffrey A. Klatzkow E-mail: klatzkowCalvahoo.com(home);ieffrevldatzkowCa1colliergov.net (business) Date Admitted to Practice in Florida: June 19,2003. 2. State title currently held; including professional position and any public or judicial office. Chief Assistant County Attorney. . 3. Business address: Office of tile County Attorney 3301 Tamiami Trail, East Harmon Turner Building, 8th Floor Naples, Florida 34112 -- Telephone: (239) 252-8400 FAX: (239) 774-0225 4. Residential address: 14606 Indigo Lakes Circle, Naples, Florida 34119 Since: September 2002 Telephone: (239) 304-1658 5. Place of birth: Brooklyn, New Yon Date of birth: March 15,1958 Age: 50 6. Length of residence in State of Florida: Answer: Since July 2002 7. Military Service (including Reserves): Answer: None ,.-. Page 1 --- 8. Within the last five years, have you ever been formally reprimanded, demoted, disciplined, cautioned, placed on probation, suspended or terminated by an employer? Answer: No. 9. Have any of your current or former co-workers, subordinates, supervisors, customers or clients ever filed a formal complaint or accusation of misconduct against you with any regulatory or investigatory agency, or with your employer? Answer: No. 10. Have you failed to meet any deadline imposed by court order or received notice that you have not complied with substantive requirements of any business or contractual arrangement? Answer: No. I 1. Are you currently the subject of an investigation which could result in civil, administrative or criminal action against you? Answer: No. NON-LEGAL EMPLOYMENT: 12. List all previous full-time non-legal jobs or positions held since 21 in chronological order and briefly describe them. -- Answer: After graduating college in 1979, I was employed as a Personnel Recruiter for an employment search film in downtown New York (Stanton Personnel) where I primarily recruited legal secretaries for downtown New York law films. I left the agency to go to law school in the summer of 1980. PROFESSIONAL ADMISSIONS: 13. List all courts (including state bar admissions) and administrative bodies having special admission requirements to which you are presently admitted to practice, giving the dates of admission. Court or Administrative Body Date of Admission - Admitted to practice in New York Admitted to practice in New Jersey Admitted to practice in Florida United States Court of Appeals (Second Circuit) United States Court of Appeals (Third Circuit) District Court, Southern District of New York District Court, District of New Jersey District Court, Middle District of Florida 1984 1987 2003 1992 1991 1987 1987 2003 Page 2 - I am likely admitted in several other courts as well, as in my litigator days I practiced throughout New York and New Jersey, with admission to many local courts having been automatically granted based upon my admission to one of the Courts set forth above. I am in the process of allowing my New Jersey bar to lapse, as I am no longer paying annual bar dues there. LAW PRACTICE: 14. State the names, dates and addresses for all firms with which you have been associated in practice, governmental agencies or private business. organizations by which you have been employed, periods you have practiced as a sole practitioner, law clerkships and other prior employment: Collier County - County Attorney's Office, Naples, Florida Legal Assistant: July IS, 2002 to JWle 29, 2003 Assistant COWlty Attorney: JWle 30, 2003 to May 28, 2006 Managing Assistant COWlty Attorney: May 29,2006 to September 30, 2007 Chief Assistant COWlty Attorney: October I, 2007 to present - Cendant Corporation, Parsippany, New Jersey 1997 - 2001 Vice President and Assistant Secretary, Hotel Division Carvel Corporation, Farmington, Connecticut 1986 - 1997 In-House Counsel and Assistant Secretary American Career Schools, New Rochelle, New York 1985 - 1988 New York State licensed instructor for evening paralegal classes. David Marcus and Associates, White Plains, New York 1984-1986 Associate State Public Defender's Office, Sacramento, CA 1982 - 1983 Intern IS. Provide a detailed description of how the State Growth Management Law (SB-360) impacts local government with specific emphasis on Home Rule Rights, concurrency, growth management and budgeting for capital improvements. Attach at least one example of legal writing which you personally wrote. If you have not personally written any legal documents -..- Page 3 - recently, you may attach writing for which you had substantial responsibility. Please describe your degree of involvement in preparing the writing you attach. Answer: In hindsight, SB-360 may turn out to be the first indication to local governments that the State Legislature began a movement to centra1ize legislative authority in Tallahassee to the detriment of Home Rule Power. A copy of a memorandum I prepared on this matter in December of2oo5 is attached, together with the Proportionate Fair Share Ordinance I prepared in an attempt to mitigate some of the effects ofSB-360. 16. Have you ever held or been a candidate for any public office? Answer: No. 17. Has a complaint about you ever been made to the Ethics Commission, or any Bar Association? Answer: No. 18. Have you ever been held in contempt? If so, for each instance state name approximate date and circumstances. Answer: No. BUSINESS INVOLVEMENT: - 19. If you are now an officer, director or otherwise engaged in the management of any business enterprise, state the name of such enterprise, the nature of the business, the nature of your duties, and whether you intend to resign such position immediately upon your appointment or election to judicial office. Answer: No. 20. Since being admitted to the Bar, have you ever been engaged in any occupation, business or profession other than the practice of law? Answer: No. 21. State whether during the past five years you have received any fees or compensation of any kind, other than for legal services rendered, from any business enterprise, institution, organization, or association of any kind. If so, identify the source of such compensation, the nature of the business enterprise, institution, organization or association involved and the dates such compensation was paid and the amounts. Answer: No. POssmLE BIAS OR PREJUDICE: 22. The Commission is interested in knowing if there are certain types of cases, groups of entities, or extended relationships or associations which could present a possible conflict of interest for the position you seek. Please list all types or classifications of cases or litigants .- Page 4 - for which you as a general proposition believe it would be difficult for you to pursue as the county attorney. Indicate the reason for each situation as to why you believe you might be in conflict. Answer: None. 23. Have you ever filed a personal petition in bankruptcy or has a petition in bankruptcy been filed against you? Answer: No. MISCELLANEOUS: 24. Have you ever been convicted for violation of any federal, state, county or municipal law , regulation or ordinance? If so, give details. Do not include traffic violations for which a fine of $1 00 or less was imposed unless it also included a jail sentence. Answer: Only for the following traffic violations: I. March 5, 2005: Cited for driving without headlights at twilight, Sarasota County. Paid $112.50 fine, uncontested. 2. December 28, 2006: Cited for failing to come to a full stop when making a right hand turn at a red light, Collier County. Paid $ I 8 I fine, uncontested. 3. April 20, 2007: Cited for failing to drive in single lane, Collier County. Paid $115.50 fine, uncontested. As an aside, I drove 20 years in New York, Connecticut and New Jersey without incurring a single traffic infraction there. Other than the above, my lone traffic infraction was for a minor speeding infraction in Coward County, South Carolina over a dozen years ago. 25. Have you ever been sued by a client, or anyone? Answer: No. Have you or your professional liability insurance carrier ever settled a claim against you for professional malpractice? Answer: No. 27. Have you ever been a party to a lawsuit either as a plaintiff or as a defendant? Answer: No. 28. Has there ever been a finding of probable cause or other citation issued against you or are you presently under investigation for a breach of ethics or unprofessional conduct by any court, administrative agency, bar association, or other professional group. - Answer: No. Page 5 ,--. 29. Have you filed all past tax returns as required by federal, state, local and other government authorities? Answer: Yes. Has a tax lien ever been file against you? Answer: No. PROFESSIONAL AND OTHER ACTMTIES: 30. List all bar associations and professional societies of which you are a member and give the titles and dates of any office which you may have held in such groups and committees to which you belonged. Answer: Over the years I have been a member of the American Bar Association, New York Bar Associaion, New Jersey Bar Association, Florida Bar Association, and Florida Association of County Attorneys. I have held no office with any of these entities. 31. List, in a fully identifiable fashion, all organizations, other than those identified in response to question No. 35, of which you have been a member since graduating from law school, including the titles and dates of any offices which you have held in each such organization. Answer: None that I can recalI. - 32. Describe any pro bono legal work you have done. Answer: None. SUPPLEMENTAL INFORMATION: 33. Have you attended any continuing legal education programs during the past five years? If so, in what substantive areas? Answer: I have attended numerous continuing legal education programs over the past five years, all of which are associated with Florida Local Government Law and Florida Land Use Law. 34. Have you taught any courses on law or lectured at bar association conferences, law school forums, or continuing legal education programs? If so, in what substantive areas? Answer: None. 35. Describe any additional education or other experience you have which could assist you in holding the office of county attorney. None; all relevant educational and experience has been disclosed. - Page 6 _. 36. Explain the particular potential contribution you believe your selection would bring to this position. I spent 15 years in the corporate legal world before coming to Collier County. I would instill in this Office the culture of an in-house corporate office, rather than the present government employee culture. 37. Give any other information you feel would be helpful to the Commission in evaluating your application. What I care about most, and what my entire adult life has revolved around. is work and family. That is who I am. At this moment in time, my desire is to finish my career with this Office, helping the Board of County Commissioners in the exciting but daunting task of building out Collier County while preserving its remarkable quality of life. .- - Page 7 -- CERTIFICATE I have read the foregoing questions carefully and have answered them truthfully, fully and completely. I hereby waive notice by and authorize The Florida Bar or any of its committees, educational and other institutions, the Judicial Qualifications Commission, the Florida Board of Bar Examiners or any judicial or professional disciplinary or supervisory body or commission, any references furnished by me, employers, business and professional associates, all governmental agencies and instrumentalities and all consumer and credit reporting agencies to release to the respective Judicial Nominating Commission and Office of the Governor any information, files, records or credit reports requested by the commission in connection with any consideration of me as possible nominee for appointment to judicial office. Information relating to any Florida Bar disciplinary proceedings is to be made available in accordance with Rule 3- 7.I(q)(2), Rules Regulating The Florida Bar. I recognize and agree that, pursuant to the Florida Constitution and the Uniform Rules of this commission, the contents of this questionnaire and other information received from or concerning me, and all interviews and proceedings of the commission, except for deliberations by the commission, shall be open to the public. Dated this 15th day of March, 2008. - Pursuant to Section 119.07(3)(i)(1), F.S., . . . The home addresses and te justices of the Supreme Court, district court of appeal judges, circuit co judges, and county court judges; the home addresses, telephone numbers, and places of employment of the spouses and children of justices and judges; and the names and locations of schools and day care facilities attended by the children of justices and judges are exempt from the provisions of subsection (I), dealing with public records. - Page 8 - APPLICATION DATA RECORD The application shall include a separate page asking applicants to identifY their race, ethnicity and gender. Completion of this page shall be optional, and the page shall include an explanation that the information is requested for data collection purposes in order to assess and promote diversity. (please Type or Print) Date: March 15,2008 JNC Submitting To: Waters-Oldani Executive Recruitment Name (please print): Jeffrey A. Klatzkow Current Occupation: Attorney Telephone Number: (239) 252-8400 Attorney No. 0644625 - Gender (check one): X Male Female Ethnic Origin (check one): X White, non Hispanic Hispanic Black American Indian/Alaskan Native AsianJPacific Islander County of Residence: Collier County - Page 9 - - - OFFICE OF THE COUNTY ATTORNEY INTEROFFICE MEMORANDUM TO: Mr. James Mudd, County Manager FROM: Jeffrey A. Klatzkow, Assistant County Attorney DATE: December 14,2005 RE: Review of Model Ordinance for Proportionate Fair Share You have asked me for an opinion of the Model Proportionate Fair-Share Ordinance. For the reasons set forth below, given the legislation, I do not believe that this "Model" Ordinance, in whole or as modified, is of any value as a means of maintaining concurrency. What is needed is to make the proportionate share payment the election of the local government, and not that of the Developer. The Model Proportionate Fair-Share Ordinance as written simply furthers the proportionate fair share mandates ofSB360, which when implemented will likely cripple Collier County's transportation concurrency management system. Senate Bill 360 requires that "In its transportation concurrency management system, a local government shall, by December I, 2006, include methodologies that will be applied to calculate proportionate fair-share mitigation. A developer may choose to satisfy all transportation concurrency requirements by contributing or paying proportionate fair-share mitigation if transportation facilities or facility segments identified as mitigation for traffic impacts are specifically identified for funding in the 5-year schedule of capital improvements in the capital improvements element of the local plan or the long-term concurrency management system or if such contributions or payments to such facilities or segments are reflected in the 5-year schedule of capital improvements in the next regularly scheduled update of the capital improvements element." Senate Bill 360 further requires that "By December I, 2006, each local government shall adopt by ordinance a methodology for assessing proportionate fair-share mitigation options." To aid local government in this effort, the bill provides that "By December 1,2005, the Department of Transportation shall develop a model transportation concurrency management ordinance with methodologies for assessing proportionate fair-share mitigation options." Lastly, Page 2 - the legislation provides that "Proportionate fair-share mitigation shall be applied as a credit against impact fees to the extent that all or a portion of the proportionate fair-share mitigation is used to address the same capital infrastructure improvements contemplated by the local government's impact fee ordinance." My reading of this legislation is that a Developer has been given the right to meet its transportation concurrency by writing a check to compensate local government for its cost in ultimately improving the road system to handle the impact of the Development. This cost is deducted from any transportation impact fees owed by the Developer. All the Proportionate Fair Share Ordinance does is to set forth the means to calculate this cost to the Developer. As I see it, this is just "pay and go." The actual impact on the transportation network is of no relevance. Since no local ordinance can "trump" a Florida statute (be it ''Model'' or otherwise), unless the statute is modified to make proportionate fair-share mitigation the local government's election, and not that of the Developer, the local government will always be playing catch-up on concurrency until development substantially slows. A13 a result, Collier County's transportation concurrency management system could very well be rendered - meaningless, resulting in the degradation of the road system below the adopted level of service. - - 1''lll3D3I_, ~ ...~ l ~...\ ': ~ """-~~, ORDINANCENO.281J6.~ :l ,..~'V AN ORDINANCE OF THE BOARD OF COUNTY COMMlSSIONJ!.llS 0 ';\~'? ~ ~ COLLIER COUNTY, FLORIDA, IMPLEMENTING THE LEGISLATIVE " tll+.<f>7 MANDATE OF 1163.3180(16), F.8. AND ADOPrlNG THE "COLLIER ._8ttl9~~ COUNTY PROPORTIONATE FAIR-8HARE PROGIIAM";' 'PROVIDE FOR CONFLICf AND SEVERABILITY; PROVIDE FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND PROVIDE FOR AN EFFECTIVE DATE. WHEREAS, the 2005 Legisla1ure. in enacting Senate Bill 360, amended the Local Government Comprehensive Planning and Land Development Regulation Act. which amendmeDU includcd the ~irement that "By December I. 2006, eoch local government Iha1l adopt by ordinance I methodology for l5SeSSing proportionate fair-share mitigation options." NOW THEREFORE, BE IT ORDAINED BY TIlE BOARD OF COUNTY COMMISSIONERS OF COI.LIER COUNTY, FLORIDA that: l--=: SECTION ONE: Collier County hereby adopts an Ordinance that reads IS t'9J!ows:,'~ -,~, ., ARTICLE I. GeIIeraI SeetIGN 75-1 _lib 74-99. Reserved. Sediool 75-101. Short Tille. -" .-~ ;'-. ., "::; , .-; .- This cbapIcr sba1l be Imown and may be cillld IS the "Collier County Proportionate Fair- Share Program. " Sediool 75-101 Parpwe IIIIlI Autborlty, The Board i. adopting this chapter in order 10 implemcnt the Legislative mandare of 1163.3180(16), F.S.. which was intended by the Legislatwe 10 "provide I method by which the impacts of ~ 0II1r111SpOrtati0ll facilities CIII be mitigated by the coopenttive efforts of the public and private sectors." Sediool75-103. &-aI DellaIlIoasllllll A........lallas.. When UJed in this chapter, the following terms sba1l have the following meanings. noless the con",.t clearly indicates olhcrwise. Board shall mean the Board of County Commiasioners of Collier County, Florida. C1E refers to the CapitaJlmprovement Element of the comprehensive plan. CMS refen to the Collier County Transportation Coacwrency M_t System. Comprehe1uiWl Pion shall mean the comprehensive plan of the County adopted and amended pUJSUant 10 the Loca1 Government Comprehensive Planning and Land Development Act IS contained in F.S. ch. 163, pt. n. or its successor in fimction. Cowuy shall mean Collier County, I political subdivision of the Sure of Florida. DeWliopu shall have the SlIIIIll meaning IS defined in 1163.3164, F.S. (2005). Deveiopmelll shsll have the SIUDC meaning IS 1380.04, F.S. (2005). - I100T meona the Florida Department ofTronsportation. ..... I of. - SlS means the Florida StrateBic Intennodal System as described in 1339.61, F.S. (2005). TIS means Transportation Impact SlaIemcDl. ~ 75-104. AppllcabilitJ, (1) Thi. chapter shall apply to the unincorporated IIRIl of Collier County. Florida, and to sll in<:orp<>nted __ of the County to tbc greatest estent authorized by tbe Florida Constitution or io any intergOvernmental or interlocal agn:emenll. (2) The Proportionate Fair-Shale Program shall only apply to the extent as mandated by 1163.3180(16), F.s.. which provides in part as follow&: "In ill tran.portation collCUmOl1C}l mansgcment s)'ltem, a local government shall, by """...bot- 1. 2006. include methodologies that will be applied to calculale proportionate fair-mate mitigation. A developer may cbllOle to satisfy all traosportatioa c:oncunency RlCj1Iiremeots by contributing or paying proportionate fair-shale mitigation if tran.portation facilities or facility segmenta identified as mitigation for lIaffic impacts ate specifically identified for funding in tbc S-year schedule of capital improvements in the capital improvements element of the local plan or the long-term coocunency management system or if such contributions or payments to such facilitiea or segments ate ref1ect.ed in the S-year schedule of capital improvements in the next regularly scbcduIed update of the capital improvements element." The Proportionate Fair-Shate Prognun does not apply to developments of regional impact (DIUJ) using proportionate fair-share under 1163.3180( 12). F.S., or to DevelopmenlS otbr:rwiae exempted from concurrency. (3) The Proportionate Fair-Shale Program is intended to apply to and include existing roadway link deficiencie.. If an intersection deficiency i. identified in the COl1CUI1a1Cy denisl detcnnination and the improvements required to remedy that insufficiency can be incorpontcd into a link improvement for which a proportiooate fair-share is being cslculated UDder Section 75-203, then IUch COlts may be included in the proportiOllate fair-share calculalion. The County may con.ider and approve major intersection improvements such as gnde separations, inten:banges. Intelligent Traffic Management Systems, and through movement capacity improvements as eligible for !be ProportiOllate Fair-Share Program. (4) Notwithstanding the above requiremnnts, upon the presentation of evidence by the County Manager or designee. and finding by tbc Iloorcl, that the proposed project. if approvnd. would compromise public heslth, safety or welfare by sllowing operationsl deficieDCies to exist prior to tbc COnstructiOll pIwe of fully funded improvements identified in the five year CIE. the proportionate fair-share eligibility may he denied unless !be applicant cures the operational deflCinnci.. prior to commencing DevelopmenL ~ 75-105. FindIJI&s. The County. adopting the findings of tbc Model Ordinance for Proportiooate Fair-Share Mitigation on Development Impacts On Tnmsportation Conidors (Final Edition - Febrwuy 14, 20(6), finds as follows: -- (I) The County fmds and dercrmi... that tranaportalion capacity bas a vslue to both the public and private sectors and that tbc County ProportionaIe Fair-Sh.... Program: (a) Provides a method by wbich !be impacu of developmeat on traosportation facilitiea can be mitigated by the cooperative efforts of tbc public and private seeton: (b) Allows Developers to proceed under certain conditioas, IlOlWithstancIing the failure of lTanIportation coocurrency. by conmbuting their proportionate fair-share of the COlt of a lnIDiportation facility; (c) Contributes to the provision of adequaIc public facilities for future growth and promotes a commibnont to compn:hensive facilitiea pllmning. thereby reducing the potential for moratoria or unacceptable levels of traffic congestion; (d) Maximiz.cs the .... of public funds for adequate lnuII.....totion facilities to serve future growth, sod may. in certain circumstanc:el. allow tbc County to expedite transportation improvements by suppIemoating the fundJ currently slJoc:aled for transportation improvements in the CIE; and Pqo 2 otl - (e) "consistent with t 163.3180(16), F.S., and supporu the policies of the Collier County Growth Management Plan and L.vld Development Code. ARTICLE n. Appllc:llbility. SedIoa 75-201. GeaeraI RequlreDMaIL Provided that a proposed Development is othoIwise fully consistent with the comprdJeusive plan and allapplicai>le land development regulatiOllJ, a Developer may choose 10 satisfy all transportation concurn:ncy requirements by contributing or paying proportionlle fair- share mitigation if lr.lnsportation facilities or facility segments identified os mitigation for uaffic impocts are specifically identified for funding in the 5-year scl10dule of capital improvements in the capital improvements element of the Comprehensive Plan or the Iong-tenn concurrency management system or jf such contributions or paymentl to such fKilities or segments are ref\ected in the 5-year schedule of capital improvements in the next regularly schodnled update of the capital improvements elemcnL The proposed project must be fully funded and financially feasible to qualify for the Proportionate Fair-Share Program. SedIoa 75-202. App!I-....n Proceu. (I) Upon notificltion of a lack of capacity 10 satisfy tnIIISportlltion concurrency, the applicant shall also be notified in writing of the opportunity to satisfy transportation concurrency through the l'roportiDlUlle Fair-8hare Program. (2) Prior to submitting an application for a Proportionate Fair-Share Agleement ("Agreement"), a pI'O-application meeting shall be held 10 discuss eligibility, application submittal requirements, potential mitigation options, and .dated issues. If the impacted facility is on the SIS. then FOOT will be notifocd and iovited to participate in the pre_ application meeting. - (3) Eligible applicants shall submit an application to the County that includes the requisite application fee and the following: - (0) Name. oddress aad phone number of owner(s), Developer and agent; (1)) Property location, including pan:el identification numbers; (c) Legal description and certified survey of property; (d) Project description. including type. intensity. density and amount of Developmont; (e) TraffIC Impact SlUdy perfomocd in accordance to the County's adopted TIS procedures; (f) Phasing schedule, if applicai>le; (g) ROIdway safety IUdit of significantiy impacted roadway segmeau and intersections as outlined in the Collier County TIS guidelines and procedures; (h) Approved abutters list and impacted stakeholders list; (i) List of all "vested developments" that impocts the segment that the proportionate shore is being applied for; (j) Analysis showing that all "vested traffIC" is included io the remaining roadway capacity calculation when the additiooa1 capacity is considered from the capital project being conoidcred for proponiOlllte share; (k) Description of requesbld proportionate fair-share mitigation method(s); (I) Copy of concurrency application; and (m)Such other information and data that the County deems necessary. (4) The County shall review the application and detcrmiDe whether the application is sufficient and complete withiD IS business days from submittal. If an application is determined to be iuufficient. incomplete or i_t with the general ""luiremenls of the Proportionate Fair-Share Program u set forth herein, then the applicant will be notified in writing of the reasons for such deficiencies within 20 business days of submittal of the application. If such deficiencies are not remedied by the applicant within 60 business days of receipt of the written Datification, then the app1ication will be deemed abandoned. The County may. in its discretion, grant an extension of time nor to exceed 60 business days to cure such deflCieocies, provided that the applicant hu shown good cause for the extension and has taken reasonable steps to effect a cure. PII..3011 ,- (5) Pumwlt 10 1163.318O(16)(e), F.S., proposed proporti_ fair-share mitigation for development impacts 10 facilities on the SIS n:quira the COIICUITeIICe of FOOT. The applicant shall submit evideace of III _t between the applicant and FOOT for inclusion in the I'roportionote Fair-Share A_I. (6) Wbeu ID application is deemed complete and suffICient for analysis, the appliclllt shall be advised in writing of eligibility for the Prognun. If eligible, a proposed ProportiOllIle Fllir-ShlIe Agreement wiD be prcpanld by the County Anomey, which Agreement will be delivered 10 the appropriate parties for review, including a copy 10 FOOT for any proposed proportionlle fllir-sh_ mitigation 011 a SIS facility. (7) Approval of a Proportionate Fllir-Sh_ Agreement shall n:qnire the completion of a public involvement and notification proccu thai shall include notification of potentially impacred parties to participate in a public workshop which mns\ be conducted in the same manner u a Neighborhood Information Meeting. The public worltshop will review the project impacts, the roadway safely audit, and identify improvemenll thai may be nccdcd 10 address any health, safely and welf_ operational improvements thai need to be completed prior ro commencement of Development The applicant shall be responsible for all costs usociated with the public involvement and notification process, including County professional staff time. legal advertisemcnll. and rental of facilities. - (g) Once finalized by the parties, the A_t will be brougbt before the Collier Cnunty Planning Commission for ill review and reconunendations. The Agreement and rcc:ornmendations of the Planning CommissioD will then be forwarded 10 the Board for final consideration dnring a regularly scheduled Board meeting. No Proportionate Fllir- Sh.... Agreement will be effective until approved by the Board. (9) Any documents, pi... or other information provided 10 the County as part of an application or _t for propurtionate share, including but nol limited to design pi..... shall lII: no COlt 10 the County become the property of the County, regardless of whether the application is approved or denied. SedIoa 75-283. IletermiDIDa ProponIoaate Fal...share Obllptlan. (1) All provided in 1163.3180(16)(c), F.s.. "Proportionate fair-sbare mitigation for concunency impacll includes, without limitation, separately or collectively, privlIe fUnds, contributions of land. and construction and contribution of facilities." Such mitigation mult _ to (a) 1raDSpOrtaIion facilities or facility segmcnll specifically idcnti/ied for funding in the S-yoM schedule of capital improVctllCllII in thc capital improvements element of the local plan: (b) transportaDon facilities or facility segmenll specifically identified for funding in thc long-Ienn concurrency managancnt system. should the County elect, in the future, \0 adopt a long-tenn coocnrrency IIIlIUgCUICIlt system; or (c) those focilities or segmenll specifically reflected in the S-yoM schedule of capital improvemenll in the next regularly scheduled update of thc capital improvements element. (2) All provided in 1163.3l80(16)(c), F.S., a Development shall not be required to pay more than ill proportionate fair-share. The fair markct value of the proportionate fair- share mitigalion for the impacted facilities shall nol differ regardless of the mc\hod of mitigation. - (3) The methodology used to calculate III applicant's proportionate fair-share obligaliOll shall be u provided for in t 1633180( 12), F.S., which states as follows: '"The culIllllative nwnber of trips from the proposed development expected to reach roadways during the peale boor from the complete build _ of a stage or phase being approved, divided by the change in thc peak hour maximum service volume of roadways resulting from COllStl1lcIiOll of an improvement necessary \0 maintain the adopted level of service, multiplied by the construction cost, at the time of developer payment, of the improvement necessary 10 maintain the adopted level of service." "Construction cost" includes all associated cos\s of the improvement. Pqc40fl - More specifically: ProportiOllllle Fair-Shan> a r [(Development Tri,,", )/ eSV __) . CoSlj) Where: Development Trips, = Those total project trips from the .tage 0< phase of Development UDder review that arc assigned to roadway segment Wi". Note: Total project trips from the cumulative impscts of all phases of Development shall be used to ct=nnioc impacted roadway segrDCnts, however mitigatiOll will only be raquired from those trips which have not previously obtained collC1llTOocy. The total development nips on a segment may exclude project nips for previous phases of a project if: I. A FmaI Certificllle of Concum:ncy wu issued fo< that phase of developmcot prior to !be effective dale of the Proportioollle Fair-Share Progrom; and 2. The project trips for the pnlYiously _ved phase(.) .iIDiflClllllly impa<:ted the segment IIld ...... reserved in the concum:ncy management .ystem 01\ the roadway segment SV Increase; = Service volume increase provided by tbc eligible improvement to roadway segment Wi"; Cost; = Adjusted cost of the improvement to segment "i". Cost shall include all improvements and asvv;.led costs, such as design, richt-of-way acquisition, planning, engi.-ring, inspection, utilities, mitigation, project financing and physical development costs directly llSIOCiMed with COII5lrUclioo at the anticipated cost io lbc year il will be incurred, including a 2S... contingency. As set forth below, costs will be adjusted to reflect the actual cost at time ot permitting. - e 4) For the purposes of delcrmining proponiOOllle fair-sbare obligationa, the County will accept improvement costs based upon one of lbc following lIlClbods: - eal Improvement costs based upon a ccI1ified IIld seaIcd engineer'. cost estimate bucd on tbc County's approved 60'10 plana. Such cost estimare will be consistent with tbc unit bid coats of n:cent similar unit bid ilmOS fo< public projects, within Collier County, and within the last twelve months. In the absence of a comparable Collier County project within the last twelve months,lbc County may elect to accept bid coats from an adjacent county or FOOT project An inflation factor consistent with the average localized increasea ~ within the last thnle years will be added to the base coats carried fOlWard to the anticipated conalrUclion year. This cost estimate will be ",viewed for reasonableness and approved/disapproved by the County. If disapproved, the grounds for the disapproval will be indicated to lbc applicant so that a ",vised cost estimare may be resubmiDed. (bl ImproVClllCDt costa based upon a ccI1ified IIld seaIcd engineer'. coal estimare similar to the development of "60 pcra:nl plans" for a project defined in a Proportion_ Fair- Share ~~~Il. The development of the estimate will follow the same procedures the County would follow in the proceoa of olllaining 60 percenl plana including bUl DOl limited to planning, design, right-of-way delemtination. mitigation. environmental pennitting review and public involvement. Such COlt estimarc. win be consiltcnt with unit bid costs of recent similar writ bid items for public projects. within Collier County, and within the last twelve months. In the absence of a comparable Collier County project within the Jasttwelve months, the County may eJect to accepl bid costs from an adjaa:ot county or FOOT projecL An inflation factor consistenl with the a_ loca1ized illCl1lUes reponed within the last tIuee years will be added to the base coats carried fOlWard to the anticipated COIISlIW:lion year. This coal estimare will be ",viewed for reasonableness and opprovcdldisapproved by the County. H Pqo' all - diaoppmved. the grounds for the disapproval will be indicated to the applicant so that a revised COlt estimate may be n:submined. (S) If the County has acccpt&d rislll-<>f-way dedication for all or part of the JlTOPO'lion... fair-slwe payment, =dit for the dedication shall be valued atlhe appraised fair _ value as or the date of the application. Right-of-way that has been dedicated as pert of the mitigation for site aa:ess opc:ruional impacts shall nOl be credited for fair- share calculations. The Developer shall ",imburse the County i.. full expense in acquiring the requisite independeut appraisals, together with all expenses lSIOCiated with tbe dedication, illCludinl but notlimit&d to surveying, legal, tide and """'nling expenses. (6) If the proposed Development applying for proportiOlUllC fair-share signiflClDtly impacts one or man: deficient segmen15 in a Transportation Concum:rn:y Management Area (TCMA), and lhe TCMA does not meet the adopted level of service standard. the method to calcu1... lhe proportion... fair-shate shall be consistent with this Section. SectIoa 75-204. Impad Foe Credit flll' Propm1Ioaate Falr-8bare Mlllpdoa. - (I) Proportio..... fair-share conlributions shall be applied as a credit against impact r- to the exleDt that all or a portiOll of the proportioaate fair-obate mitigation is used to address the same capital infnstnlClure improvements contemplated by the County'. Impact Fee Otdinance. (2) Impact fee credits for lhe proportion... fair-share contribution will be determined when the transporWion impact fee obligation is calculated for the proposed DevelopmenL Impact fees uwed by the appIicaut will be reduced per the Proportio..... Fair-Slwe AJRlCIIICIIt as they become due per the County Impact Fee Otdinance. If the applicant's JlTOPO'lionate fair-shue obligation is less than the Development's anticipated road impact fee for the specific stage or phase of Development under review, then the applicant ur its succeuor must pay the remaining impact fee: amount to the Count)' pursuant to the ""luiremen15 or tbe County Impact Fee Otdinance. (3) The proportioaate fair-sbue obligation is intended to mitigakl the ItlIIIsponation impacts of a proposed Development at a specific location. As a resulL any road impact fee credit based upon proportionate fair-sltare conlributions for a proposed Development cannot be transferred to any other location unless provided for within the hnpact Fee Ordinance. (4) If the actua1 costs associated witb lhe improvement identified in the Proportionate Fair-Sbare Agreement ue Ie.. than tItat paid by the Developer, Developer shall be given a correspooding impact fee crediL If \be number or unl15 set fOltb in the County certificate of CODCDITeDCy approval issued porsuant to \be Proportio.... Fair Share Agreement for the Development are substantially completed. sucb that giving additional impact fee credits would be insufficient, \be County will ",fund thU difference to the Developer. If the actua1 costs associated with the improvement identified in the Proportionate Fair-Sharc Agreement arc greaIcr than that paid by the Developer, then that difference will be deducted against any impact fee credits previously grant&d for the Devel_L If the actua1 costs exax:d the impact fee credits previously grant&d for the DeveloptDClll. or if impact fee credits have been utilized such that the remainiDg credits are insuffJCicnt to meet tbe increased actual ensll, then Developer shall bave 90 ca1endar clays from written demand by \be County to pay the diff....... to the Conoly, failing whicb the Counly may withhold funher development orders, including penni.. and certilicata or occupancy. for the DevelopmenL This obligation shall run with the land. SectIoa 75-:z05, ~te Falr-8b8ro A_a. (I) Upon execution of a Proportionate Fair-Share Agreement and receipt of payment. the applicant shall rcocivc a County certificlle of CODCllI'TCllCY approval. - (2) Unless expre&lly set fortb oIherwise in the "-t, payment of the proportiOllSlC fair_ conlribution is due in full withiD 90 calendar clays from the County's approval of !be Agreement, failing whicb on County's written notice to Pip 6 of8 .- Developer, the Agreement shall be dccmod terminated in all JeSpects. De.eloper h.. no right to cure this breach. (3) The AlIJ'OeD1eDt shall require the payment of the actua1 costs of impro.-ements. Should _011 uaoc:ialed with the Proponionare Fair-Sbare AJreement not occur within """ year of the adoption of the Agr==t, the llppIiCllll 011 request shall pro\'ide sufficient .-y in the fonn of a hood or leller of credit that shall be held until all actual COlts ha.e been _ned and the facility i. substantially completed. (4) All De.eloper sito re1a1ed and off-sile related improvements authorized under this Ordinance must be completed prior to oommeocing Development, (5) Dedication of necessary rigbt-of~w.y for facility improvements pIU'SIWlt to an A_t must be completed prior to issuance of the final development order or recording of the final plat. (6) Any roquealed change to a de.e1opment project subsequent to a de'lelnpment order may be subject to additional propottionare fair-share contribUtiOll' to the extent the change would genenlle additionallrlffic thlt would require mitigation. m Appliconta may submit a letter to withdraw from the Acrcement at any time prior to the execution of the A&rcement, The application fee and any associated COlts to the County. including advertising, will be nonrefundable. SectIna 75-206. Appropriatioa of Falr-Sbare _ - (I) Proponionare fair-share re_nes shall be placed in the appropriale project account for funding of scheduled impro'iemeDta in the County CIE, or .. otherwise established in the tenDS of the Agreement, At the _011 of the County. propor:tionale fair...harc revenues may be used for opc:rational improvcmcnt5 prior to construction of the capacity project from which the proportiOllIle fair-share l'Cl'enues wen> derived. Prnportionate fair-obarc re.enues may also be used .. the ~ local maIdt for funding under the FOOT Transportation Regionallncenti'le Program (l'RIP). (2) In the e'lent a scheduled facility impto\'ement is rcmo'ied from the CIE, then the re.enues collected for ita constnJction may be applied toward the COtlIlIUctiOll of another impro.emcnt within that same conidor or sector that would mitigate the impacta of de'lelnp..-r. SedIoa 75-7HT. ........v..........."" CGorlI-. Pursuant to policies in the Intergovemmental Coordination E1emeor of the County cotnpnlbensi'le plan and applicable policies in Southwest Florida Regional Planning Council, the County .hall coordinate with affected jurisdictions, including FOOT, regarding mitigation to impacted facilities not under the jUrisdictiOD of the local .covemmcnt receiving the application for proportionate fair-obarc mitigation. An interlocal agreement may be established witb other affected jurisdictions for thi. puTpoSe. SectIna 75-ZOI. Allemalive A_lL (I) A De'leloper who otherwise qualities for the Proportionate Fair-SIwe Program may, in lieu of entering into a Prnportionare Fair-Share Apoement, offer in writing that the County instead consider entering into (a) a ne.e1opment Apeement pursuant to the Florida Local Oo..",ment Development Act; (b) a Developer Contri-.... Agreement .. set forth in 17~20S of the Collier County Code of Laws and Ordinances; or (c) a Developer A~ pursuant to the County's Home Rule authority. 1be County shall have 10 business days from receipt of this offer to JeSpond. Nothing set forth herein shall preclude Developer from initiatin, a Proportionate Fair-Share Program application should the parties for any reason fail to enter into one: of tbc:se alternative agreements. - (2) Should the parties agree to enter into a Deve10pment Acrcemcnt pursuant to the Florida Local Go'ieltlment ne.elopment Act, they shall follow the process and pmcedure set fortb in Article N of Chapter J 06 of the Collier County Code of Laws and PIp 7 ofB - OrdiIll1lCOS. with the exception that the Development Agroement plI1'SlI8IIl to this Ordi....,.,. may cncompau all matters au1horized by Section. 1633220 - 1633243, F.S.. known u the Florida Local Government Development Agrccmcnt Act. SEcnON TWO: CoaftIct IIIId Sevenhilily, In the event thil OrdinlDCC conflicts with any other ordilllllCC of Collier County, the more restrictive shall apply. If any phrase or portion of thi. Ordinanc:c, or the particu1ar appIicotion thereof, shall be held invalid or unconstitutional by any court, administrative agency or other body with appropriate jurisdiction, the remaining section. subsection, scn_, clllUSCl or phrases and their applicll1ion shall not be affected _yo SECI10N THREE: __ in tho cod. 01l....1UId .........n_ 'The pIOVisions nf this Ordinance shin become and made I part of the Code of Law. and Ordinances of Collier County. Florida. 'The sections of the Onlinancc may be renumbered or relcttcrcd to sa:omplish such. and the word "ordinlllCC" may be clwlged to "section", "article". or other appropriate word. SEcnON FOUR: E1fectiv. Dale. This Ordinance shall become effective upon filing wilh the Florida Department of State. .- PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County,Floridalhis rftkdayof N'"~",-.b,r ,2006. ATrEST . DwightB:.B~.~ By: fi,/11A" ~t' . .' Clcrlc -.&... ... .t..... .10 . · ...." -;:.r:{J _ - . ", BOARD OF COUNTY COMMISSIONERS OFCOLLIBRCO~A ------ p'" .... --~ By: ~ .~-.l - FRANK HALAS, Chsirmsn A . "tofo_- and . iency: ~ ,; I ...".:... Jcffrct 'jl K1s1zkow Man"tinfi-Assislant County Attorney Pqc . orB This ordI_ filod with thO _,., of s~.~ Office tho ~dGyof.A J(.~ and _1odgo~2f. !hot "';~~~v: o! . flY 'i.-tC' STATE OF FLORIDA) COUNTY OF COLLIER) I, DWIGHT E. BROCK, Clerk of Courts in and for the Twentieth Judicial Circuit, Collier County, Florida, do hereby certify that the foregoing is a true copy of: ORDINANCE NO. 2006-51 Which was adopted by the Board of County Commissioners on - the 14th day of November 2006, during Regular Session. WITNESS my hand and the official seal of the Board of County Commissioners of Collier County, Florida, this 15th day of November 2006. DWIGHT E. BROCK Clerk of Courts and Clerk Ex-officio to Board of County Commissioners ~J./zr- By:Martha Vergara, Deputy Clerk < - THOMAS SPENCER .- ~. THE W.\TERS CO:--;SL.LTl"G GROl'P, I~C 800.899.1669 \V\vW.\V\TERSCO~SL'LTI:--;G.CO~I -. COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRillTMENT FOR THE COUNTY ATTORNEY Thomas E. Spencer 2717 Seville Boulevard Apartment 12304 Clearwater, Florida 33764 Business phone: 727.464.3354 Home E-mail: spencerte@earthlink.net Work E-rnail: tspencer@pinellascounty.org - CURRENT TITLE AND Managing Assistant Pinellas County Attorney ORGANIZATION NAME Pinellas County Attorney's Office Clearwater, Florida Since 2003 With Department since 2001 as the Senior Assistant County Attorney Assistant County Attorney Lee County Attorney's Office Ft. Meyers, Florida 1992 - 1997 Admitted to Bar in Florida and Michigan, U.S. Supreme County, 6th and 11 th U.S. Circuit Courts of Appeal, U.S. Middle District of Florida, Eastern and Western U.S. District Courts for Michigan REPORTS TO (TITLE) County Attorney POPULATION SERVED 1,000,000 SCOPE OF AUTHORITY . County Attorney's office has staff of 44, budget of $5.87 rnillion. Candidate manages 4 Attorneys, 3 paralegals, and 2 secretaries, managing all major litigation as well as the risk management function. This includes all personal injury and civil rights claims litigation against all County Constitutional Officers, with special emphasis upon the Board of County Commissioners and the Sheriff. Sheriff began with in-house representation at the beginning of 2008. Largest budget managed was $2 million for a private sector organization ,~ WATERS-OLDANI EXECUTIVE RECRUITMENT PAGE 1 20060 nus DOCUMENT IS COPYRIGHTED AND IS CONSIDERED PROPRIETARY INFORMATION. THIS DOCUMENT OR ANY PORTIONS OF THIS DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON Wm-IOlJT TIlE WRITTEN CONSENT OF TIlE WATERS CONSULTING GROUP, we. WATERS-OLDANI EXEClITIVE RECRUITMENT IS A DIVISION OFTI-IE WATERS CONSULTING GROUP, IN'c. 800.899.1669 - COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY REASON(S) FOR INTEREST IN POSITION Spencer is very interested in becoming a County Attorney; he has been seeking a move such as this since he got into the public sector in Lee County. The position in Collier County is one that he is very interested in, as this being the first time the process has been open to external hires in recent years. He is highly committed to the provision of excellence in legal support in the public sector, with experience in nearby Lee County, Pinellas County and in the private sector. While he expects there to be other vacancies in the upcorning years, this is one of the few that he is interested in. STRENGTHS Thomas is a proven commodity, with superior experience as a litigator in the public and private sector. He has been hired by the public entities to professionalize and improve the win record for the communities and has done so very successfully. In addition to this skillset, he is a proven manager and leader. He has fine-tuned these skills at both the public and private sector, making the transition from the public sector strategically to build his senior leadership skills. In serving as general counsel for two Florida-based corporations, he built his exposure/experience as a member of the senior leadership team that has continued to grow as he models and enforces a strong management rnodel for success. - AREAS OF CONCERN Moderate with this Candidate. He is an excellent attorney and litigator, noted for his winning record in the courtroom. It is noted that his aggressiveness in the courtroom needs to be moderated in his day- to-day interactions with staff, clients, etc. Spencer is able to get the job done, and needs to ensure that he uses well-honed and strong management style when necessary to address issues and not "use the big stick" when a rernediation and/or counseling session will suffice. His performance ratings are excellent and this matter will be followed up through the referencing process to ensure that he is as effective as possible with all constituencies. The stylistic fit with this Board of Commissioners rnust be assured before he could make a smooth transition and contribution that he has the potential to do. MANAGEMENT/LEADERSHIP PROFILE Thomas is a proven legal executive in the public and private sector, with one of the most focused approaches to the management of public sector law offices as expressed by the interviewed candidates. He has honed his skills set in the managernent of his own law practice, international and local private companies, as well as two (2) large counties in Florida. Thomas understands the role as the County Attorney fully, having worked for organizations during times of difficulty, seeing skilled legal and public executives have to resign over political matters that could have been avoided through the stricter use of the law as a protector of the Constitutional Officers and entity. -- WATERS-OLDANI EXECUTIVE RECRUITMENT PAGE 2 20060 lliIS DOCUMENT IS COPYRIGHTED AND IS CONSIDERED PROPRIETARY INFORMATION THIS DOCUMENT OR ANY PORTIONS OF TIns DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON WlTIIOlIT THE WRITTEN CONSENT OF THE WATERS CONSULTING GROUP, INe. WATERS-OLDANI EXECUTIVE RECRUITMENT IS A DMSION OF THE WATERS CONSULTING GROUP, INC. 800.899.1669 .- COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY If selected as the next County Attorney, Spencer would spend his initial days meeting with the Board of County Commissioners, County Manager in the identification of the goals and objectives of the County Attorney's office, understanding where there was a feeling of disconnect that led to the current situation. He'd spend time with the staff of the Attorney's office to get their input on how the goals can be met, and get their input on the strengths and weaknesses of the office that will supplement the in-depth assessment he'll be undertaking. While recognizing the need to meet the needs of the Board of County Commissioners, Thomas understands the tough budgetary challenges that will be faced by all offices, including his, and will address the staffing, retention, remediation plans with the reality of the expected budget. This Candidate is a generalist, with special skills in litigation, handling issues from growth managernent, roads and transportation management, code compliance, etc. He will continue to be proactive in seeking to forecast new trends/issues in the law, i.e., accessibility of electronic discovery during litigation, where he is looking at the consideration of electronic filing standards, working with the state and beyond in this issue. Spencer is looking to rnake a long-term contribution to Collier County. SALARY INFORMA nON - Candidate is earning $140,300 in his current role as the Managing Assistant Pinellas County Attorney. In addition, he is receiving Florida government benefits at the Senior Management classification. Spencer is comfortable with the advertised salary range. He is looking for the right fit with the organization, full support for his hiring, so that he can rnake the successful transition to Collier County. In keeping with his management style, he expects to be able to make the transition to the County in approximately 30 days, where he typically has at least 1 or 2 people trained and ready to assume his responsibilities. He is very excited about the chance to relocate to Collier County and become a part of the community. ABS/March 2008 - WATERS-OLDANI EXECUTIVE RECRUITMENT PAGE 3 2006Cl THIS DOCUMENT IS COPYRIGHTED AND IS CONSIDERED PROPRIETARY INFORMATION. THIS DOCUMENT OR ANY PORTIONS OF TIllS DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON wm-IOlJT nm WRITTEN CONSENT OF TIrE WATERS CONSULTING GROUP, INC. WATERS..QLDANI EXEClITIVE RECRUITMENT IS A DIVISION DFTIIE WATERS CONSULTING GROUP, INC. 800.899.1669 - THOMAS E, SPENCER, Esq. 315 Court Street Clearwater, Florida 33756 727-464-3354 SUMMARY OF CURRENT EXPERIENCE Experienced Governmental Defense Trial Counsel: 30 years experienced in trial and appellate representation of cities, counties, state agencies and local governmental bodies in matters involving personal injury, civil rights, law enforcement civil liability, construction litigation, labor and employment, intergovernmental litigation, land use and condemnation. Florida Bar Board Certifications: City, County and Local Government Law (1996 - present); Civil Trial (1995 - 2000) Bar Admissions: Florida (1991), Michigan (1977), U.S. Supreme Court, 6th and 11 th U.S. Circuit Courts of Appeal, U.S. Middle District of Florida, Eastern and Western U.S. District Courts for Michigan. - PROFESSIONAL EMPLOYMENT Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33765 Managing Assistant County Attorney (2003 - present). In addition to the duties of Senior Assistant County Attorney, duties of management of directly supervising and training all staff assigned to the Risk and Litigation Section of the Pinellas County Attorney's Office. Senior Assistant County Attorney (2001-2003). Supervisor of all Risk litigation for Pine lias County Constitutional Officers, with prirnary emphasis upon representation of the Pine lias County Sheriff and Pinellas County Board of County Commissioners. Duties include litigation and trial of complex matters, and supervising, training and mentoring of junior trial lawyers within the Pinellas County Attorney's office. 1 - Hallmark Properties, LLC Pasco Holdings, LLC International Project Partners, Inc. Southern Resources Management, Inc. Health Care Direct Services, Inc. 19235 U.S. Highway 41 North Lutz, Florida 33549 General Counsel (2000-2001). Commercial and govemmental trial and appellate practice, including supervision of outside litigation counsel. Personally handle selected litigation rnatters in state and federal courts, appear before governmental agencies as needed. Prepare corporate transactions, including transactions involving wireless international telecommunications/internet ventures and energy projects (international power purchase agreements, power plant licensing, financing agreements, joint ventures and partnerships), establish commercial/corporate entities and monitor/analyze SEC filings. Adjunct Professor, Stetson University College of Law (Fall 2000) Federal Administrative Law .-. Integrated Control Systems, Inc. 900 West Marion Avenue Punta Gorda, Florida 33950 General Counsel (1997 - 1998). Litigation responsibilities involved risk and litigation rnanagement, hiring and supervising outside counsel world-wide. Supervised services of 60+ trial and corporate law firms throughout the United States, Canada, Mexico, WestemlEastern Europe and the Pacific Rim. Trial responsibilities included arbitration and mediation participation and supervision involving complex commercial litigation, personal injury and employment claims, and Title VII litigation. Commercial responsibilities involved negotiating, drafting and closing rnulti-rnillion dollar domestic and international consulting agreements, commercial personal and real estate transactions, corporate record-keeping, corporate expansion, international transfer pricing valuations, trademark establishment and licensing, and general corporate legal matters. Labor responsibilities included managing all labor disputes and labor litigation, formulating labor/employment policies, preparing employment contracts (compliant with local labor laws of Americas, European and Asian nations), enforcing non-compete agreements, investigating and resolving employee grievances, advising corporate and regional management teams on employee recruitment, discipline and termination consistent with corporate policy, dornestic and international labor law. 2 - Lee County Attorney's Office 2115 Second Street Ft. Myers, Florida 33901 Assistant County Attorney (1992-1997). Trial and appellate counsel with a 16-member county government law office. Managed litigation teams in complex litigation. Supervised outside counsel, and served as co-trial counsel with outside counsel in rnajor case litigations. Routinely responsible for consultation, trial and appeal of federal and state claims involving all aspects of governmental and commercial operations of Lee County and the Lee County Port Authority (Southwest Florida International Airport). These clairns involved personal injury and complex commercial matters (eminent domain, inverse condemnation, business and land valuations, land title issues), labor litigation (Title VII, ADEA, ADA, 42 USC Sec. 1983), labor (PERC, FLSA), construction, commercial and general civil liability. Thomas E. Spencer 6886 Cascade Road, S.E. Grand Rapids, Michigan 49506 - Private Practice (1984-1992). Major case civil practice involved personal injury, police and sheriff federal civil rights, commercial, construction and governmental litigation. Civil trial experience included federal civil rights defense, wrongful death, severe personal injury, workers compensation and civil rights claims against commercial, state and local governmental entities. Represented Michigan State University as Special Assistant Attorney General (1980 - 1991). Adjunct Professor: American Paralegal Studies, Grand Rapids, MI. Hartford Insurance Company 3949 Sparks Drive, S.E. Grand Rapids, Michigan 49506 Staff Attorney (1980-1984). Trial and appeal of insured personal injury and civil rights clairns involving private and public sector clients before federal and state courts. Representative claims involved federal civil rights defense, general governmental civil liability, product liability, construction negligence, nursing and hospital malpractice, motor vehicle accidents, slip and falls, slander and libel, workers compensation and PIP claims. Trial and appeal ofworker's compensation against Hartford accounted for 20% of caseload. - 3 - EDUCATION THOMAS M. COOLEY LAW SCHOOL (1974-1977) Lansing, Michigan 48933 Juris Doctor, Cum Laude, Graduated 4th in class (4/61). MICHIGAN STATE UNIVERSITY (1966-68,1972-74) East Lansing, Michigan 48824 Bachelors of Arts with Honors. Television and Radio Continuing Collegiate Education: German (Skill Level: Basic conversational) - St. Petersburg Junior College (present) Spanish (Skill level: Elernentary) - University of Tampa (2002) .- French (Skill level: Conversational-Fluent; Reading and Writing-Intermediate)- University of South Florida (2000/2001 - Refresher); St. Petersburg Junior College (2003 Refresher) Patent & Trademark Law - Thomas M. Cooley Law School (1990) Bar Association Activities: Chairman, Civil Practice Committee, Clearwater Bar Association Barrister, Barney Masterson Inns of Court, Pinellas County, Florida Secretary, Federal Bar Association, 20th Judicial Circuit (1995-1996) Member, The Florida Bar Federal Practice Committee (1996-1997) .-. 4 Continuing Legal Education (Seminars) .- Date Course Name General Credits Ethics Credits 3/27/92 XI Annual Local Government 10.0 0.5 Seminar 4/24/92 Proposed Amendments to Florida 1.0 Rules 4/30/92 Pretrial Services 1.0 9/24/92 Federal Ethical Implications 1.0 5.0 1/21/93 Federal Civil Practice 5.0 5/1 0/93 Advanced Trial Advocacy 43.0 2.0 10/28/93 Taking The High Road 6.0 2.0 9/23/94 Brave New World of Jury Trials 8.0 10/7/94 Unlocking Mysteries of Federal 7.5 0.5 Court 10/14/94 Condemnation 7.5 1/20/95 Masters in Trial 9.0 2.0 3/2/95 Civil Trial Certification Review 15.0 1.5 1995 4/21/95 Next Step in Growth Managernent 7.5 5/5/95 18th Local Government Law 12.0 1.0 6/29/95 Federal Practice & Procedure 4.5 10/6/95 Balancing Private Property 4.0 Interests with Land Use Regulation 11/2/95 Basic Labor & Employment Law 8.0 11/3/95 Surviving the 20th Century 8.0 2/12/96 Civil Trial Certification Review 14.5 1.5 1996 2/16/96 Trying Cases To Win 15.5 1.5 4/26/96 Employment Practices Seminar 11.0 1996 5/2/96 City, County and Local 8.0 1.0 Government Certification '96 9/20/96 Annual Seminar 5.0 1.0 2/1 0/97 Civil Trial Certification Review 14.5 1.5 1997 8/20/98 Practicing Law in Year 2000 7.0 4/9/99 Attorney's Fees 6.0 0.5 4/9/99 Sexual Harassment 8.0 1.0 4/9/99 Government in Sunshine 8.0 4.0 4/15/99 City, County and Local 8.0 0.5 Government Law Certification Review Course 4/16/99 22 Annual Local Governmental 11.5 .5 5 - Law in Florida 2/5/01 Civil Trial Board Certification 11.5 1.5 Review 200 I 3/16/01 Technology in the Courtroom 3.5 3/23/01 Advanced Construction 3.0 4/20/01 24m Local Government Law 9.50 1.0 Seminar 4/19/01 2001 City County Certification 8.0 1.0 4/20/01 23'a Local Government Seminar 12.0 0.5 1/18/02 Government in the Sunshine 7.0 2.0 2/13/02 Sex, Laws and Government; 5.5 Adult Entertainment Law Symposium 2/14/02 Police Misconduct 6.5 2/18/02 2002 Civil Trial Certification 15.0 2.0 5/9/02 2002 City/County and Local 8.0 1.5 Certification 5/10/02 25'n Local Government Seminar 11.0 8/22/02 Public Contract Code and 7.0 Cornpetitive Public Bidding in FL 11/7/02 Florida Association of Police 11.0 1.0 Attorneys 2002 Legal Update Seminar 4/4/03 Opinion/Expert Testimony in 17.0 1.0 Federal and State Courts 4/30/03 Police Misconduct Litigation 6.0 Serninar 5/2/03 Section 1983 Civil Rights 12.50 Litigation Serninar 5/9/03 26m Annual Local Government 11.0 1.0 Seminar 8/6/03 Florida Police Liability 6.5 10/23/03 Probate/Guardianship 1.0 11/1/03 8m Annual International Moot 2.5 Court 11 /20/03 Risk Management 1.0 11/25/03 New Directions in Federal Civil 4.5 Practice 12/4/03 Ethical Considerations in Public 1.0 Sector Law 3/7/04 AMT A Intercollegiate 3.5 4/22/04 Law & Order 1.0 1.0 5/6/04 2004 City/County Cert Rev 8.0 1.5 5/7/04 27m Local Government Law 10.5 1.0 6/11/04 Practicing Before Supreme Court 10.0 1.0 _. 6 - 6/22/04 CMlECF Attorney Training 3.5 1017104 Legal Update Seminar 13.0 2.0 3/12/05 Mock Trial Competition 25.0 4/6/05 Section 1983 Litigation 3.5 417105 Section 1983: Civil Rights 11.5 5/27/05 Winning Trial Strategies 6.0 6/22/05 F ACA 2005 Conference 3.0 1.0 7/21/05 24th Annual Seminar FMAA 14.0 2.0 10/1105 Preeminent Trial Lawyer 31.5 1.0 10121/05 Legal Update Seminar 11.0 2.0 10/26/05 05 Int'I Env'l Moot Court 3.0 10/27/05 Pretrial Practice 1.0 10/28/05 Presentation Skills 8.0 2/23/06 Good Cop Bad Cop 7.5 3/11/06 American Mock Trial 25.0 Competition 4/2/07 Police Medico-Legal 43.0 Investigation of Death ..-. - 7 Significant Civil Cases Tried! (Client Underlined) Larry Hall v. Pinellas County Sheriff, 6th Judicial Circuit for Florida (2007), case no. 05- 3990-CI-13. 2d Chair. 3 days. Excessive force claim. Jury verdict for Defendant. Shaun Stevens v. Pinellas County Sheriff, 6th Judicial Circuit for Florida (2006), case no. Case No. 02-8900-CI-08. 1st Chair. 2 days. Excessive force claim. Directed verdict for Defendant. City of Pine lias Park, et al. v. Pinellas County, Pinellas County Supervisor of Elections and Pinellas Countv Charter Review Commission, 6th Judicial Circuit for Florida (2006), case no. 06-5975-CI-l1. 1st Chair. 3 days. Permanent injunctive action by 21 cities seeking to remove charter initiatives from the November ballot, or to suppress vote counts upon such initiatives. All injunctive relief denied. Elliott Campbell v. Pinellas County Sheriff, 6th Judicial Circuit for Florida (2006), case no. 02- 7256-CI -19. 2d Chair. 3 days. Excessive force claim through inappropriate use of pro-straint chair. Jury verdict for Defendant. Todd Darland v. Pinellas County Sheriff, 6th Judicial Circuit for Florida (2006), case no. 02-912-CI-8. 2d Chair. 3 days. False arrest, excessive force claim. Jury verdict for Defendant. Est. of John Patterson v. Pinellas County, Pinellas County Sheriff and Deputy Mark Ondrey, 6th Judicial Circuit for Florida, (2006), case no. 01-3636-CI-13. 1 st Chair. 4 weeks. Federal Civil Rights & Wrongful death claim arising fromjail suicide. Jury verdict for all defendants. No liability on negligence claims against Pinellas County and Pine lias County Sheriff. Jury verdict for Defendant Ondrey on civil rights claims and on willful and wanton negligence claims. .- 1 Intentionally omitted are all Federal and State crirninal defense trials and appeals, all civil appellate experience and other matters such as miscellaneous administrative (such as worker's compensation cases) and domestic proceedings. 8 - George M. Miller v. Everett S. Rice. as Sheriff of Pine lias County. in his official capacity; and Deputy Charles Street. Individually, U.S. District Court, Middle District of Florida, Tampa Division, (2004), case no. 8:02-CV-I080-T-24MSS. 1st Chair. 4 days. Directed verdict for Defendant Rice. Jury verdict for Defendant Street. 4th Amendment excessive force case under 42 U.S.c. 91983 brought by escaped convict for severe gunshot wounds during pursuit and caIjacking. Camposeco v Pinellas County, 6th Judicial Circuit for Florida, (2003) case no. 97-505- CI-7. 2d Chair. 5 days. Common law negligence claim for trip and fall upon public sidewalk resulting in knee replacement, aggravation of substantial prior cervical injuries. Jury verdict for Defendant. Alexis v Pinellas County Sheriff, U.S. Districe Court for Middle District of Florida (2002), case no. 98-672-Civ-T-26e. 1st Chair. 7 days. 42 U.S.C. Section 1983 claim asserting 1 st Amendment violations arising from practices of Sheriff to conduct full custodial arrests of dancers engaging in conduct proscribed by local ordinance. Jury verdict for Defendant, affirmed on appeal. - Medisys v Phillips. et al., U.S. District Court for Central Division of Utah, Salt Lake City, UT (2001), case no. 2:00 CV 00677 ST. 1st Chair. 2 days. Action to set aside ex parte Temporary Restraining Order obtained per 10b(5) SEC claim, and defending request for preliminary injunction, restraining sale of Regulation 144 stock. TRO ordered dissolved and preliminary injunction denied. Medisys v Interstate and Anderson et al., Utah State District Court, Salt Lake City, UT (2001), case no. 000904474. 1st Chair. 1 day. Action to set aside ex parte injunction restraining sale of Regulation 144 stock. Judgment for Anderson, et al finding wrongful injunction with award of costs and actual attorney fees. Anderson et al. v Kiesel, et aI., U.S. Middle District Court, Tampa, FL (2001), case no. 8:00-CV-905-T-24F. 1st Chair. 1 day. Derivative shareholder action for excessive compensation and corporate bonuses, dismissed without prejudice pending resolution of collateral litigation. Bramco v Integrated Control Systems, Federal Arbitration, Louisville, KY (1998). 2d Chair. 1 day. $340,000 consulting contract guarantee dispute. Judgrnent for Defendant. 9 .- Postiljon v IMPAC Espan1!, International Arbitration, Amsterdam, Netherlands (1997- 1998). 2d Chair. 2 weeks. $800,000 consulting contract guarantee dispute. Judgment for Defendant. Cavalier Carpets v IMPAC Australia Pty, International Arbitration, Auckland, New Zealand (1997). 2d Chair. 3 weeks. $705,000 consulting contract guarantee dispute. Judgment for Plaintiff. Pavan v IMPAC (Ireland), Ltd., International Arbitration, Milan, Italy (1997). 2d Chair. 2 weeks. $204,000 consulting contract guarantee dispute. Judgment for Plaintiff. Lee County v Easy Way, Inc., 20th Judicial Circuit. 1st Chair. 3 days. Non-jury. Action to abate public nuisance. Injunction order entered against owner. Ft. Myers Airway v Lee County Port Authority, 20th Judicial Circuit. 1st Chair. 1 day. Non-jury. Action to enjoin purchase of business. Injunction denied. Adams v Lee County, U.S. Middle District of Florida. 2d Chair. 2 weeks. Non-jury. $6M FSLA claim for overtime wages. Partial judgment for Plaintiffs for $2M against demand of $6M. Lee County v Black, 20th Judicial Circuit, 92-3060 CA. 2d Chair. 2 days. Jury. Eminent Domain. Case tried to verdict of $18K against demand of $68.5K. Susanno v Lee County, U.S. Middle District of Florida, 93-188 Civ FtM 25D. 1st Chair. 3 days. Jury. $500,000 Public Employment/Civil Rights claim. Judgment for Lee County at close of Plaintiff's proofs, affirmed on appeal. Francisco v Lee County, U.S. Middle District of Florida, 91-114 Civ FtM 25D. & 91-327 FtM 25D, 1 st Chair. 3 days. Jury. $28M Civil Rights/Inverse Condemnation/Land Use/Commercial Loss. Judgment for Lee County at close of Plaintiffs proofs. Lee County awarded $592K attorney fees. Judgment of no liability affirmed on appeal, order refusing to disqualify Plaintiff's counsel vacated. - Francisco v Lee County, U.S. Middle District of Florida, 91-327 FtM 25D., 1st Chair. 3 days. Non-jury. $9M Inverse Condemnation claim asserting a private waterline taking. Judgment for Lee County. AffIrmed on appeal. 10 - Lee County v Digital Equipment Corp., 20th Judicial Circuit, 93-81 CA. 2d Chair. 1 day. Non-jury. Declaratory Judgment Action, Public Records Law access dispute. Judgment for Lee County. Lee County v Ryan, 20th Judicial Circuit, 92-5656 CA. 2d Chair. 2 days. Jury. Eminent Domain. Tried to verdict. Nease Construction v Lee County, 20th Judicial Circuit, 92-6543 CA. 1 st Chair. 2 days. Non-jury. Declaratory Judgment Action, Construction Contract dispute. Judgment for Plaintiff extending time to remove houses from right of way. Adams v Weld, Kent County Court, Kentwood, Michigan (1992). 1st Chair. 1 day. Non- jury. Concealment of latent building drainage defect in home sale. Judgment for Defendant. Rinkus v Kempf, Ottawa County Circuit Court, Michigan, 84-42573-NM. 1 sl Chair. 4 weeks. Jury. Medical malpractice, birth trauma, neurological injury. Judgment for Defendant. - Goller v Hanlon, Kent County Court, Kentwood, Michigan. (1985) 1st Chair. 1 day. Non-jury. Breach of contract claim, collection of plumbing contractor fees. Judgment for Plaintiff. Markham v Ohler, Kent County Circuit Court, Michigan, 85-48057-NI. Jury. 1 week. Auto negligence, orthopedic personal injury. 1 st Chair. Judgment for Plaintiff. McBride v West Michigan Construction, Kent County Circuit Court, Michigan, 85-48894 CK. 1 st Chair. 2 weeks. Jury. Construction negligence during roofing, property water damage. Judgment for Defendant. Hickey v MSU, Court of Claims, Ingham County, Michigan, 83-8859-CM. 1 st Chair. 4 weeks. Non-jury. Defective construction/design, wrongful death, jail suicide. Judgrnent for Plaintiff, reversed by Michigan Supreme Court and Judgment entered for Defendant. - 11 - Hickey v ZezuIk1!, Ingham County Circuit Court, Michigan, 83-35117-NO. 1st Chair. 4 weeks. Jury. Wrongful death, jail suicide, police negligence. Judgment for Plaintiff for $IM, reversed by Michigan Supreme Court,judgrnent for Plaintiff for $ lOOK on retrial by successor counsel. Mshar v Oole, Kent County Circuit Court, Michigan, 81-32506-NO. 1st Chair. 4 weeks. Jury. Improper heating systern repairs, wrongful death and neurologic injuries. Judgment for Defendant. Anderson v T.A. Forsberg, Ingham County Circuit Court, Michigan, 82-30625-NI. 1st Chair. 1 week. Jury. Construction site accident, personal injury. Judgment for Defendant. Narcy v MSU, Court of Claims, Ingham County, Michigan, 83-9012. Non-jury. 1 week. Defective premises, racquetball court injury. 1 st Chair. Judgment for Plaintiff for $48K against demand of $200K. Carter v City of Walker, Kent County Circuit Court, Michigan, 82-37913-NI. 1st Chair. 4 weeks. Jury. Improper highway design, personal injury. Judgment for Defendant. Magnuson v Kent County Road Commission, Kent County Circuit Court, Grand Rapids, Michigan (1985). 1 st Chair. 3 weeks. Jury. Improper highway design and maintenance, wrongful death. Judgment for Defendant. Yenny v Grand Rapids Asphalt, Kent County Circuit Court, Grand Rapids, Michigan (1984). 1st Chair. 1 week. Jury. Defectively designed access gate, crushed hand. Judgment for Defendant. Affirmed on appeal. Secrist v Corss, Cass County Circuit Court, Cassopolis, Michigan (1984). 1st Chair. 1 week. Jury. Negligence, tree falling, neurologic injury. Judgment for Defendant. Mitchell v Walt Plant Appliance, Kent County Circuit Court, Grand Rapids, Michigan (1984). 1st Chair. 1 week. Jury. False arrest, rnalicious prosecution. Judgment for Defendant. - Moultrup v Little Harbor Club, Charlevoix County Court, Petosky, Michigan (1983). 1 st Chair. 3 days. Jury. False arrest, malicious prosecution. Judgment for Defendant.c 12 .- Ace Rental v Moultie, Lansing 54-A District Court, Lansing, Michigan (1981). 1 st Chair. 5 days. Jury. Improperly constructed cold process roof construction. Judgment for Defendant. Vanderkolk v Spee-dee-Gas Co., Ottawa County Circuit Court, Grand Haven, Michigan (1982). 1 st Chair. 1 week. Jury. Improperly constructed natural gas line, wrongful death. Judgment for Defendant. Fritz v Schoolcraft Farms, Kalamazoo County Court, Kalamazoo, Michigan (1981). 1 st Chair. 2 days. Jury. Negligent farm spraying, crop loss. Judgment for Defendant. Michaels v Rensselear Auto Body, Van Buren County Circuit Court, Paw Paw, Michigan. (1981) 1st Chair. 1 day. Non-jury. Vehicular damage caused to semi-truck during repainting. Judgment for Plaintiff. - Auto Owners v Remus Electric, Mecosta County Court, Big Rapids, Michigan (1981). 1 st Chair. 3 days. Jury. Fire loss due to alleged defective wiring. Judgment for Defendant. H:\USERS\Atykb46\Wpdocs\Miscellaneous Files\Pinellas Resume - The Florida Bar.002.doc 13 .- w U .... L&. L&. o II) . > w Z ~ o 5 ~ z :::;) o u II) 5 ...I W Z .... a. ... .. z z h - ~~ ..... oiil .. I:i .. ... .. - ~ ~ ... iil ... C ~ ~ z .. ~ ~ Z Z Z Q ~ Qf-CI) I- I-ZZ !C:::l~W~ .:t Ul C)~~5l~;!:1- g ~i::l~9~~ic(l) a:: ..J5~oO~i'Ecj~~~lQ~ !l~5!~'e:~~~=ir~O i~""~~5~~t:~ ~ w.;;::o..:E<~(f.I u oCow-~cj~i5 It: iO~8;:::J::I: VJ S ~w(,) ~ " " ~ U fil 2 o Z ~ OC/) fJ)UJ 8S~~lZ~~ r- li!i55~ffi~ lIiG'Jwziii00 J::!!Il~~?;" $' o:il~ oi~ lJ..jW ::1(.) ::1:2 ~ in :< ~ ~ o Z~ O~ ..~~ C 0 II: ~ ::!80l 5:!~~ D::t-u J:::I~ i~1- ..'" 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The prirnary purpose for which I was hired in 2001 by Susan Churuti, Pinellas County Attorney, was to establish a cornpetent civil trial section for the Pinellas County Attorney's Office. Since then, I have trained six attorneys in the fundamentals of modem trial advocacy, case and trial preparation, courtroom organization, use of technology in the courtroom, and trial presentation. All attorneys are skilled in federal and state court, including the appellate courts. We have not lost any cases since 2001. We average 3-4 high stakes trials per year, with the longest case lasting about 4 weeks. (2) Established an effective case reporting system. - When I began employment with the Pinellas County Attorney's Office, the case evaluation system was ineffective for use by clients, risk management, staff counsel, supervisors and claims committees. Based upon rny past experience managing outside counsel, I developed two basic reports. One is a Case Report which primarily permits a skilled trial lawyer to quickly join a trial team, become briefed on the key aspects of the case, the case trial strategy, and the evidence in order to go forward at trial promptly. The same instrument serves as a briefing document for the client, risk management, supervisors and claims committees. The second document is a spreadsheet that weights cases. This permits a qualitative understanding of the significance of pending cases and the workload actually demanded by that case. (3) Established an effective managerial system (staff and outside counsel). As with staff counsel, outside counsel are required to complete the Case Report periodically. This instrument permits direct oversight of outside counsel, without directing the day-to-day activities of such attorneys. In addition, a detailed outside counsel contract was developed in order to fiscally manage who outside counsel assigns to work on a case. This contract provides for controls over outside counsel's fiscal managernent of the case by requiring appropriately skilled staff to perform relevant, commensurate services. C. A critical problem analysis and response. 1 (1) Budget reduction. By virtue of mandated tax cuts last year and this year, all levels of government have had to reduce budgets, impose financial controls, and develop efficiencies and productivity. By virtue of additional anticipated tax cuts, the County Attorney must now plan to reduce staff and increase productivity. This is a work in progress and all managers are contributing to the solution. The most significant budget cuts in a law practice invariably involve the elimination of positions, first by attrition, second by furlough if cuts are short term, and then by elirninating positions. The challenge has been to find solutions that avoid elimination of needed positions and assuring qualified staff are retained. We have eliminated unnecessary office space, equiprnent, libraries and trimmed training budgets by resorting to webcast training when available. In addition, we are eliminating, when possible, the use of outside counsel based upon case screening criteria I have established. Cases are not referred to outside counsel unless a conflict of interest exists, we lack the specialization required, or we lack the staffing required for the position. We anticipate the prospects of saving the government close to $400,000 with this measure. _. We anticipate approval of the process on March 14, 2008, with proof of the plan by next February. - 2 - COLLIER COUNTY, FL EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY A TIORNEY EDUCA nON VERIFICA nON Thomas E. Spencer Academics Juris Doctor Thomas M. Cooley Law School Lansing, MI Pending Confirmation by: National Student Clearinghouse Bachelor of Arts Michigan State University East Lansing, MI - Confirmation by: National Student Clearinghouse THE WATERS CONSULTING GROUP, INC. THIS DOCl'!;.fENT IS COPYRIGHTED AND PROPRIETARY INFOR1LA.TION. THIS DOClTt\.IENT OR Al\.'Y PORTIONS OF TI-nS DOCl'!\.!ENT IS NOT TO BE REPRODUCED FOR ANY RE.-\SON V;lTHOCT TIlE \l:''RITIEN CONSENT OF ",;reG, INC ~ QUESTIONNAIRE FOR COUNTY ATTORNEY APPLICANTS DATE: March 17,2008 Florida Bar No.: 0897159 GENERAL: 1. Name: Thomas Eugene Spencer E-mail: tspencer@pinellascounty.org Date Admitted to Practice in Florida: September 30, 1991 2. State title currently held; including professional position and any public or judicial office. Managing Assistant Pinellas County Attorney - 3. Business address: 315 Court Street, Sixth Floor City: Clearwater State: Florida ZIP: 33764 Telephone: 727-464-3354 FAX: 727-464-4147 4. Residential address: P.O. Box 5917 City: Clearwater State: FL ZIP: 33758-5917 Since: @ January, 2004 Telephone: Unlisted 5. Place of birth: Stark.ville, Mississippi Date of birth: November 29, 1948 Age: 59 6. Length of residence in State of Florida: 16 years 7. Military Service (including Reserves): 1969-1975 - U.S. Army (Regular) -- Page 1 .- Service Branch Highest Rank Dates U.S. Army Armor Sgt. Active duty: 1969-71 Rank at time of discharge: Sgt. Type of Discharge: Honorable Award or citations: National Defense Service Medal, Soldier of the Month (July 1969); Vietnam Service Medal with two Bronze Service Stars, Republic of Vietnam Campaign Medal, Marksman (Rifle). 8. Within the last five years, have you ever been formally reprimanded, demoted, disciplined, cautioned, placed on probation, suspended or terminated by an employer? No. - 9, Have any of your current or former co-workers, subordinates, supervisors, customers or clients ever filed a formal complaint or accusation of misconduct against you with any regulatory or investigatory agency, or with your employer? No. 10. Have you failed to meet any deadline imposed by court order or received notice that you have not complied with substantive requirements of any business or contractual arrangement? No. 11. Are you currently the subject of an investigation which could result in civil, administrative or criminal action against you? No. - Page 2 - NON-LEGAL EMPLOYMENT: 12, List aU previous full-time non-legal jobs or positions held since 21 in chronological order and briefly describe them. Date Position Employer Address 1969-71 Armor U.S. Army RVN, CONUS 1973 Director, Service to Military Families American Red Cross, Lansing, MI PROFESSIONAL ADMISSIONS: 13, List all courts (including state bar admissions) and administrative bodies having special admission requirements to which you are presently admitted to practice, giving the dates of admission. Court or Administrative Body Date of Admission Michigan Bar Association October 24, 1977 The Florida Bar Septernber30,I991 Michigan Supreme Court October 24,1977 Florida Supreme Court Septernber 30, 1991 U.S. District Courts: Middle District of Florida April 3, 1992 Eastern District of Michigan January 22, 1980 Western District of Michigan January 17, 1978 U.S. Courts of Appeal: 6th Circuit November 20, 1987 11th Circuit April 10, 1992 U.S. Supreme Court January 8, 1990 Page 3 All of the foregoing admissions are active and in good standing. LAW PRACTICE: 14. State the names, dates and addresses for all firms with which you have been associated in practice, governmental agencies or private business organizations by which you have been employed, periods you have practiced as a sole practitioner, law c1erkships and other prior employment: Position Name of Firm Address Dates Pinellas County Attorney's Office 200l-present 315 Court Street Clearwater, Florida 33765 Hallmark Properties, LLC 2000-2001 Pasco Holdings, LLC International Project Partners, Inc. Southern Resources Management, Inc. Health Care Direct Services, Inc. 19235 U.S. Highway 41 North Lutz, Florida 33549 Stetson University College of Law Fall 2000 Integrated Control Systerns, Inc. 1997-1998 900 West Marion Avenue Punta Gorda, Florida 33950 Lee County Attorney's Office 1992-1997 2 I 15 Second Street Ft. Myers, Florida 33901 Thomas E. Spencer 1984-1992 6886 Cascade Road, S.E. Grand Rapids, Michigan 49506 Special Attorney General 1980-1992 State of Michigan ~ Page 4 - American Paralegal Studies Grand Rapids, Michigan 1991 Hartford Insurance Company 3949 Sparks Drive, S.E. Grand Rapids, Michigan 49506 1980-1984 Bernard Freid & Associates 714 E. Jefferson Saginaw, MI 1/1980-6/1980 Warner, Hart, Morgan & Fuzak 503 South Capitol Avenue Lansing, MI 48933 1977-1980 - 15. Provide a detailed description of how the State Growth Management Law (SB-360) impacts local government with specific emphasis on Hnme Rule Rights, concurrency, growth management and budgeting for capital improvements. Attach at least one example of legal writing which you personally wrote, Uyou have not personally written any legal documents recently, you may attach writing for which you had substantial responsibility. Please describe your degree of involvement in preparing the writing you attach. a. The "Local Government Cornprehensive Planning and Land Development Regulation Act", also known as the "Growth Management Act," directly impacts a major portion of the administrative business of County Administrations, the governance by County Commissions, County Attorneys, land owners and developers, and ultimately the public who may be benefited or materially adversely affected. The Growth Managernent Act, in essence, requires advance comprehensive planning by local governments for present and future development via regulation of land uses within their jurisdiction. Because of the risk of inconsistencies within and without such jurisdictions, coordination is required with local governments and regional agencies. That coordination is controlled by the State of Florida through the Department of Community Affairs. The Act is primarily known for regulating the intensity and density ofland uses consistent with a comprehensive plan, reflected in a future land use map (FLUM), for all present and future land uses in the government's jurisdiction. This planning requires consideration and coordination of interrelated statutes and elernents, such as wildlife preservation laws, affordable housing, the right to farm act and costal management. The Growth Management Act is a source of significant tension between the rights of the public at large vs. those of property owners. The Act calls for comprehensive regulation for the public well-being, but that such regulation must be sensitive to the constitutional rights of property Page 5 .- owners. In short, such regulation rnust not serve to "take" property rights from property owners. The Act is augmented by a separate statute, F.S. 70.001, et seq., which is commonly known as the "Bert J. Harris Private Property Protection Act" which enables property owners to seek cornpensation short of a constitutional "taking" if property rights have been "inordinately burdened" as a result of governmental regulation. Thus, comprehensive land use planning can have major financial consequences should a regulatory scherne adversely affect property rights under the constitution or the Bert Harris Act. The goal of the Growth Management Act is to balance the needs of present and future land use planning and developrnent without unnecessarily impinging upon the rights of individual property owners, while at the same time providing for infrastructure concurrent with development. This planning and regulatory process impacts capital improvements planned and implemented by local governments, such as the construction of public utilities and roads. The concept of concurrency requires that local development go forward, as permitted by local government, in a manner that the infrastructures that will be need or burdened by such development are created or improved in advance of, or concurrent with, such developrnent. Such concurrency includes the consideration of the preservation of water, environmental and other resources. It requires consideration of the impacts upon available of services, such as local school systems, public transportation, recreation facilities, public utilities, sewer and waste management. The planning process also involves the rehabilitation of blighted areas and contaminated sites, such as "brownfields." The planning and regulation process is governed by "local planning commissions" whose members are appointed by the governing body of the local government, should the local government's governing body choose not to act as the local planning commission itself. The planning and regulation process is cyclical and continuous. Local planning commissioners review and recommend for adoption to the County Commission land development regulations and proposed comprehensive plan amendments. As generally set forth in F.S. 163.3187, the majority of changes are typically made to the future land use map (FLUM), which can be amended only twice a year on regular changes subrnitted to the Department of Community Affairs for the State of Florida. Small scale changes to the FLUM, which involve 10 acres or less, are permitted outside this process. Development orders issued for the developrnent ofland may be challenged by rnembers of the public, or other local governments, as inconsistent with the comprehensive land use plan. As a very general proposition, the challenging party must be aggrieved or adversely affected as outlined in F.S. 163.3215. FLUM amendments are considered legislative acts and are not subject to this litigation process. However, when developrnent order disputes are reviewed by the Board of County Commissioners, the process is quasi-judicial and involved substantial restrictions limiting ex parte communications to the Board when such disputes are under consideration. This latter process is subject to judicial review under F.S. 163.3215. Page 6 Capital improvernents identified or mandated by the comprehensive plan must be planned and budgeted on a prospective 5-year basis via a variety offmancial resources, including taxation, bonds, grants, impact fees and developer contributions, in order to assure a "level of service" consistent with concurrency needs and projected service needs. The Capital Irnprovernent elernent must be reviewed annually and modified as needed in order to maintain financial feasibility with the 5-year capital improvement plan. The adoption of a long-term concurrency plan requires a long-term capital improvement plan. The comprehensive plan, which originates at the local government through its Home Rule powers, must be submitted to the DCA for review and approval, which begins as a negotiation process and rnay end as a litigation process in case of irreconcilable differences. The litigation process is administrative under Chapter 120 of the Florida Laws, and is subject to judicial appellate review. Within the land use designations, further refmements of are exercised by Home Rule through zoning regulation. Thus, land uses designated within the FLUM can be broken down into more discreet classifications, residential, residential multi-family, etc. b. I am the primary author of the attached appellate brief in the case of 126th A venue Landfill v. Pinellas County. The tirneline contained in the brief was outline by Catherine Petrovich, J.D. who was my paralegal. That outline was then incorporated and revised by me. The brief was then re-written at least eight tirnes as I always subject appellate briefs to peer review by rny legal colleagues, paralegals and my secretary. In this case, this review process was substantially critical as the amount in controversy exceeds $14,000,000 with the cornpounded risk that ownership of this property could also result in a superfund environmental cleanup expense chargeable to the owner. 16. Have you ever held or heen a candidate for any public office? Yes. If so, state the office, location and dates of service or candidacy. Circuit Judge, 20th Judicial Circuit. 1996 17. Has a complaint about you ever been made to the Ethics Commission, or any Bar Association? If so, give date, describe complaint and its resolution. Yes. All Bar Complaints have been dismissed for lack of probable cause for any discipline. Most Bar Complaints were lodged by opposing lawyers who lost the actions they prosecuted, by business associates of the opposing party who lost, or on one occasion, by an "expert" witness who Page 7 - was retained by the opposing party, who eventually failed to achieve a positive outcome. One complaint was filed by a judicial candidate who was not elected. I have no permanent records of these complaints and with the exception of perhaps one file, I believe no public records with The Florida Bar remain as such records are kept for only one year. My recollection of these complaints are as follows: Three complaints arose in the course of representing Lee County in the case of Francisco v. Lee County. Attached to this questionnaire is the opinion of the U.S. District Court that confirmed my professionalism in defending that case and the lack of professionalism of the attorneys who represented Mr. Francisco. - 1. Frederick J. Postill, Cornplainant (1985): Adversary's "expert" witness. In an apparent effort to obtain my investigative materials acquired as a Special Attorney General for the State of Michigan regarding evidence of his peIjury in a major civil case, he complained to the Michigan Bar Association. Complaint was filed after I filed a motion for new trial that reflected I uncovered evidence he had falsely testified regarding his education experience and degree, and his experience injailoperations. The civil case was ultimately reverse with a new trial on damages. No probable cause found upon his complaint and it was dismissed. 2. Patrick E. Geraghty, Complainant (1992): Adversary. Diverse allegations arising from a public presentation to the Lee County BOCC. The presentation involved a request for Board to seek disqualification of Mr. Geraghty who sued Lee County while also representing Lee County. He failed to obtain consent from Lee County to do so, which is a fundamental violation of professional ethics for all attorneys. No probable cause found, cornplaint dismissed. 3. Carl Joseph Coleman, Complainant (1993): Adversary. Complained in response to my report to The Florida Bar that Mr. Geraghty's conflict of interest was irnputed to Mr. Coleman who was Mr. Geraghty's partner and co-counsel in the same case. No probable cause found, complaint dismissed. 4. Business affiliate of Plaintiff in case of Francisco v. Lee County (@1993): I don't recall the name of this complainant. After two Francisco sponsored Bar Complaints were dismissed, Mr. Francisco's business affiliate complained because I was unwilling to allow the witness's attorney to obstruct an examination during deposition and because I adjourned the deposition to seek court intervention to stop the obstructive behavior. No probable cause found, cornplaint dismissed. 5. A complaint was filed a rnember of the public sornetime in 1996. I do not recall the substance of the matter as The Florida Bar never sent the complaint to me, but instead dismissed it immediately. I read about this sununary dismissal in the Ft. Myers News-Press. Due to unprovoked, inappropriate political comments of Staff Counsel of The Florida Bar concerning his opinion of the Republican Party that were published by the News-Press in connection with that Page 8 - dismissal, and his failure to follow the notification procedures of The Florida Bar, The Florida Bar removed Staff Counsel, as well as the local 20th Judicial Grievance Committee, from considering any future complaints conceming me. 6. Angela Poe (Complainant) (1996): Adversary. She complained that I was allegedly impolite to her and that she was offended because I refused to fetch for her a legal reference book upon demand during a deposition. Her client's case was dismissed by the Court. No probable cause found, complaint dismissed. 7. Randy Merrill (Complainant) (I 996): Judicial candidate. In response to a cornplaint I filed with The Florida Bar regarding Mr. Merrill openly campaigning as a political partisan in a judicial non-partisan race, Mr. Merrill accused rne of illegal gambling. No probable cause found, complaint dismissed. 8. Roy L. Glass (Cornplainant) (2006): Adversary. Diverse allegations arising from the case of Estate of Patterson v. Pinellas County, essentially claiming an expert witness employed by him was upset because I confronted him with the fact that his own testimony directly implicated the expert in causing the death of Mr. Patterson. Mr. Glass's client lost this lawsuit after a month long trial. No probable cause found regarding Mr. Glass's cornplaint and it was dismissed. - 18. Have you ever been held in contempt? If so, for each instance state name approximate date and circumstances. No, nor have I ever been sanctioned for any conduct in my handling of any litigation. BUSINESS INVOLVEMENT: 19. If you are now an officer, director or otherwise engaged in tbe management of any business enterprise, state the name of such enterprise, the nature of the business, the nature of your duties, and whether you intend to resign such position immediately upon your appointment or election to judicial office. No. 20. Since being admitted to the Bar, have you ever been engaged in any occupation, business or profession other than the practice of law? If so, give details, including dates. No. Page 9 - 21. State whether during the past five years you have received any fees or compensation of any kind, other than for legal services rendered, from any business enterprise, institution, organization, or association of any kind. If so, identify the sonrce of such compensation, the nature of the business enterprise, institution, organization or association involved and the dates such compensation was paid and the amounts. No. PossmLE BIAS OR PREJUDICE: 22. The Commission is interested in knowing if there are certain types of cases, groups of entities, or extended relationships or associations which could present a possible conflict of interest for the position you seek. Please list all types or classifications of cases or litigants for which you as a general proposition believe it would be difficult for you to pursue as the county attorney, Indicate the reason for each situation as to why you believe you might be in conflict. None. - 23, Have you ever filed a personal petition in bankruptcy or has a petition in bankruptcy been fIled against you? No. MISCELLANEOUS: 24, Have you ever been convicted for violation of any federal, state, county or municipal law, regulation or ordinance? If so, give details. Do not include traffic violations for which a fme of $100 or less was imposed unless it also included a jail sentence. No. 25. Have you ever been sued by a client, nr anyone? If so, give particulars including name of client, date suit filed, court, case number and disposition. Yes. Integrated Control Systems, Inc. d/b/a IMPAC v. Thomas E. Spencer, Case No. 00-415 CA WLB, 20th Judicial Circuit, Punta Gorda, FL Based upon a Florida Bar Staff Attorney Opinion secured at my request, I am limited to some degree in discussing the substance of the facts that led to this lawsuit since some elernents of the attorney-client privilege are involved. Ifnecessary, I am Page 10 - prepared to present some disclosures within the scope of that advice from The Florida Bar during the intervi ew process. At issue was the right to possession and control of business records concerning my duties as the Managing Director of IMP AC Ireland and IMP AC Espana, and rny legal files as General Counsel to IMP AC. The Court ordered that my file copies be given to IMP AC and that another set of these copies be secured in a sealed court file, with access to me, the U.S. Attorney and the FBI upon proper motion. 26. Have you or your professional liability insurance carrier ever settled a claim against you for professional malpractice? If so, give particulars, including tbe amounts involved, No. Nor have I ever been the subject of a claim or suit for malpractice. 27. Have you ever been a party to a lawsuit either as a plaintiff or as a defendant? If so, please supply style, case number, nature of the lawsuit, whether you were Plaintiff or Defendant and its disposition. Yes. See answer to number 25. 28. Has there ever been a f"mding of probable cause or other citation issued against you or are you presently under investigation for a breacb of etbics or unprofessional conduct by any court, administrative agency, bar association, or other professional group. If so, give the particulars. No. 29. Have you f1Ied all past tax returns as required by federal, state, local and other government authorities? Yes. Has a tax lien ever been file against you? No. PROFESSIONAL AND OTHER ACTIVITIES: - Page 11 - 30. List all bar associations and professional societies of which you are a member and give the titles and dates of any office which you may have held in such groups and committees to which you belonged. Michigan Bar Association The Florida Bar Federal Practice Committee: 1996-1998 Clearwater Bar Association Chairman, Civil Practice Committee: 2006-present. Federal Bar Association Secretary (Southwest Florida Chapter) - 1995 Florida Association of County Attorneys ~ The Defense Research Institute 31. List, in a fully identifiable fashion, all organizations, other than those identified in response to question No. 35, of which you have been a member since graduating from law school, including the titles and dates of any offices which you have held in each such organization. Veterans of Foreign Wars; American Legion, Vietnam Veterans of America. 32. Describe any pro bono legal work you have done. Give dates. Too numerous to list or remember. Some examples are provided. Generally, from 1987-1992 I accepted numerous pro bono appointments to represent indigent civil litigants before the U.S. Court of Appeals in Cincinnati, Ohio. While ernployed with the Lee County Attorney's Office, I prepared a uniform motion for sentence reduction for federal prisoners incarcerated in London, Kentucky and successfully represented one such prisoner before the U.S. District Court for the Eastern District Michigan. While employed by the Pinellas County Attorney's Office, I have provided free representation to - the 6th District Medical Examiner's Office and to one of his associate medical examiners involving Page 12 - .-. a dispute with Plaintiffs Counsel in the case of Estate of Patterson v. Pinellas County. The Pinellas County Attorney's Office does not represent the Medical Examiner and my representation has been provided by personal request. I presently represent for free a civil litigant minor whose nose was broken in an auto accident. SUPPLEMENTAL INFORMATION: 33. Have you attended any continuing legal education programs during the past five years? If so, in what substantive areas? Yes. Date Course General Credits Ethics Credits 4/4/03 Opinion/Expert Testimony in 17.0 1.0 Federal and State Courts 4/30/03 Police Misconduct Litigation 6.0 Seminar 5/2/03 Section 1983 Civil Rights 12.50 Litigation Seminar 5/9/03 26th Annual Local Government 11.0 1.0 Seminar 8/6/03 Florida Police Liabilitv 6.5 10/23/03 Probate/Guardianship 1.0 11/1/03 8th Annual international Moot 2.5 Court 11/20/03 Risk Manaaement 1.0 11/25/03 New Directions in Federal Civil 4.5 Practice 12/4/03 Ethical Considerations in Public 1.0 Sector Law 3/7/04 AMT A intercollegiate 3.5 4/22/04 Law & Order 1.0 1.0 5/6/04 2004 City/County Cert Rev 8.0 1.5 5/7/04 27th Local Government Law 10.5 1.0 6/11/04 Practicing Before Suprerne Court 10.0 1.0 6/22/04 CM/ECF Attornev Trainina 3.5 10/7/04 Leaal Update Seminar 13.0 2.0 3/12/05 Mock Trial Competition 25.0 4/6/05 Section 1983 Litigation 3.5 Page 13 - 417105 Section 1983: Civil Riiilits 11.5 5/27/05 Winninl! Trial Stratel!ies 6.0 6/22/05 F ACA 2005 Conference 3.0 1.0 7/21/05 24th Annual Seminar FMAA 14.0 2.0 10/1/05 Preeminent Trial Lawver 31.5 1.0 10/21/05 Lel!al Uodate Seminar 11.0 2.0 10/26/05 05 Int'l Env'l Moot Court 3.0 10/27/05 Pretrial Practice 1.0 10/28/05 Presentation Skills 8.0 2/23/06 Good COD Bad COP 7.5 3/11/06 American Mock Trial 25.0 Comnetition 4/2/07 Police Medico-Legal Investigation 43.0 of Death 34. Have you taught any courses on law or lectured at bar association conferences, law school forums, or continuing legal education programs? If so, in what substantive areas? Yes. - Clearwater Bar Association: Civil Rights/Florida Governmental Law, Constitutional Law. Stetson Law School: Administrative Law, Trial Advocacy/Use of Courtroom Technology. American Paralegal Institute, Grand Rapids, MI: Paralegal studies (Tort Law). 35. Describe any additional education or other experience you have which could assist you in holding the office of county attorney, I have completed management training with Pinellas County as part of my promotion to Managing Assistant County Attorney. That training includes diversity training, human relations, team building, conflict resolution, human relations and effective communication, employee selection, supervisor styles, ernployee coaching and counseling, labor relations and labor laws, performance appraisals, grievance procedures, work place violence and Family Medical Leave Act. I am also a mernber of Pine lias County's Ernergency Operations Center and have completed rnandatory National Incident Managernent Systems training. I have participated in combat operations from 1970-1971. That experience taught me how to handle extremely stressful situations and developed my ability to quickly make command decisions with limited information. - Page 14 - 36. Explain the particular potential contribution you believe your selection would bring to this position. I believe I can reorganize an office to achieve efficiency and value for the Board of County Commissioners, while building esprit de corps. I have achieved that for Pinellas County in my direct management of its litigation section. My strengths are effective client communications and counseling, managernent of law office operations (fiscal and staff), government law (torts, land use, growth management, regulation, construction) and litigation (trial and appeal). My rnanagerial philosophy enhances the relationship of the County Commission to the Public. This philosophy is outlined below: These are the key points of rny governmental law managernent philosophy. I inculcate my legal staff with these basic principles: a. All litigants, including their lawyers, are ultimately taxpayers and thus, indirectly, our clients. Regardless of how we are treated, we must deal with them fairly and must not use the power of government unwisely in defending or prosecuting lawsuits. b. Litigation lawyers have the direct rneans of spending public money through the lawsuit settlements we negotiate and recommend to the Board of County Commissioners and County Administration. We rnust never become complacent with the taxpayers rnoney. All settlements are paid by the taxpayers. An unjustified or excessive settlement costs the taxpayers in unwarranted taxes, it effectively reduces funds that can put to worthy purposes of the taxpayers, and can undermine the mission of the Board of County Commissioners. Settlernents must be warranted. Unjustified cases should be tried. c. On occasion, judicial officers inquire of my staff what position the County Commission mayor may not take regarding various policy matters. My attorneys are cautioned that they are not the County Commission and that legal staff do not rnake policy declarations inside or outside the courtroom. They are not permitted to assert policy positions of the Board of County Commissioners unless such policies have been clearly established by the Board. d. My staff is directed to avoid publicity regarding the business of the County Commissioners and County Administration. Staff contributions to publicity should be limited to their pleadings and their public presentations before the Commissioners or the Court. The purpose of these instructions is to prevent undue prejudice to the litigants and to avoid commenting regarding policy matters that are the responsibility of the elected Commissioners and County Administration. On matters that may be appropriate for rnedia comment, they are directed to refer media inquiries to the County Attorney, who is ultimately responsible for public comment on the - Page 15 - legal business of the County Commission. Media contacts are promptly reported to the County Commissioners in order to keep each Commissioner timely informed. e. My staff is inculcated with the concept that their duty of loyalty is to the public who are directly represented by elect County Commissioners. Their duty ofloyalty is to the institution of the County Attorney's Office, and not specifically to me as person. They are inculcated with the principle that their recognition and fulfillment of this duty to the County Attorney's Office, through the exercise of common sense and goodjudgrnent, usually translates to effective fulfillment of their ultimate duties to the public. 37. Give any other information you feel would be helpful to the Commission in evaluating your application. a Like most established County Attorneys, I maintain a peer network of Assistant County Attorneys and County Attorneys. This is partly social and partly professional. Whenever I need to fmd a short answer to a new problem or identify best practices to solve a problem, I network to save time and money for my clients when staff resources are without experience or otherwise unavailable. b. I have organized and am presently engaged in a long term project of developing an Electronic Storage Information (ESI) inventory schedule with the Information Technology and Information System staff of all Pinellas County Constitutional Officer other than the Sheriff. This project began in September 2006. Amendments to the Federal Rules of Civil Procedure in December 2006 have imposed substantial burdens upon anyone who secures information electronically to timely produce that information upon proper request. All lawyers, including governmental lawyers, have an ongoing duty to advise clients to hold ESI that may be lost through normal destruction schedules and to advise clients what sources ofESI need to be investigated and secured. The failure to do so can result in devastating adverse decisions in litigation. c. I, together with Managing Assistant Pinellas County Attorney Dennis Long, have cornpleted a cornprehensive conflicts of interest policy for the Pinellas County Attorney's Office. This policy addresses the potential for conflicts of interest in the office's representation of the Board of County Commissioners, the Pinellas County Sheriff, the Tax Collector, the Supervisor of Elections and the Property Appraiser. d. Finally, the Commission should be aware that serious taxation and litigation challenges to all local government may occur in the future. Quite recently, a Senate Bill 2922 was introduced by Senator Villalobos of Miami to eliminate sovereign immunity financial limits for all local government, but not the State of Florida. If this Bill is successful, a former lack of incentive Page 16 of attorneys to initiate litigation against the County would be eliminated. Measures that control the amount of attorney's fees would be effectively eliminated in view of current case decisions that are based upon these statutory caps. In turn, current legal staffing may have to be reshufiled, retrained, replace or increased to meet these new challenges. The number of meritorious cases, that rnight not have been prosecuted, would increase the indemnity payouts of County Government. The effective use of in-house legal staff will becorne an imperative. The burden upon the taxpayers, and thus the Commissioners, will be how to effectively meet this challenge given the shrinking of resources caused by recent tax reforms. The County Commission must assess the likely success of this recent initiative because the foreseeable consequences directly impact the taxpayers, the Commission and the mission of the next County Attorney. Should such a measure be adopted by the legislature, I believe my demonstrated management and litigation skills (as a mentor and trainer) will be of great service to any government with which I am employed. CERTIFICATE I have read the foregoing questions carefully and have answered them truthfully, fully and cornpletely. I hereby waive notice by and authorize The Florida Bar or any of its committees, educational and other institutions, the Judicial Qualifications Commission, the Florida Board of Bar Examiners or any judicial or professional disciplinary or supervisory body or commission, any references furnished by me, employers, business and professional associates, all governmental agencies and instrumentalities and all consumer and credit reporting agencies to release to the respective Judicial Nominating Commission and Office of the Governor any information, files, records or credit reports requested by the commission in connection with any consideration of me as possible nominee for appointment to judicial office. Information relating to any Florida Bar disciplinary proceedings is to be made available in accordance with Rule 3-7.1 (q)(2), Rules Regulating The Florida Bar. I recognize and agree that, pursuant to the Florida Constitution and the Uniform Rules of this commission, the contents of this questionnaire and other information received from or concerning rne, and all interviews and proceedings of the commission, except for deliberations by the commission, shall be open to the public. Dated this 17th day of March, 2008. ~.~~ Page 17 - - - Pursuant to Section 119.07(3)(i)(I), F.S.,. . . The home addresses and telephone numbers of justices of the Supreme Court, district court of appeal judges, circuit court judges, and county court judges; the home addresses, telephone numbers, and places of employment of the spouses and children of justices and judges; and the names and locations of schools and day care facilities attended by the children of justices and judges are exempt from the provisions of subsection (1), dealing with public records. Page 18 .- APPLICATION DATA RECORD The application shall include a separate page asking applicants to identify their race, ethnicity and gender. Completion of this page shall be optional, and the page shall include an explanation that the information is requested for data collection purposes in order to assess and promote diversity. (please Type or Print) Date: March 17,2008 JNC Submitting To: Name (please print): Thomas E. Spencer Current Occupation: Managing Assistant Pinellas County Attorney Telephone Number: 727-464-3354 Attorney No. 0897159 Gender (check one): X Male Female Ethnic Origin (check one): X White, non Hispanic Hispanic Black American Indian/Alaskan Native Asian/Pacific Islander County of Residence: Pinellas County .- Page 19 - STATE OF FLORIDA SECOND DISTRICT COURT OF APPEAL 126th Avenue Landfill, Inc., a Florida Corporation, and Richard L. Hain, Sr., Appellants, v. Pinellas County, Florida, a political subdivision of the State of Florida, Appellee. 2D07 -4484 LT No. 94-4486-CI-13 / ANSWER BRIEF THOMAS E. SPENCER Managing Assistant County Attorney Pinellas County Attorney's Office FL BAR# 0897159 315 Court Street Clearwater, Florida 33756 Tel: 727- 464-3354 Fax: 727-464-4147 Attorney for Pinellas County TABLE OF CONTENTS Issues Presented: I Whether the denial of Appellants' permit renewal for the continued operation of a Class III landfill by the Pinellas County Board of County Commissioners halted all viable economic use of Appellants' real property and created an immediate "categorical taking" by Pinellas County of Appellants' business and real property; and, whether the Appellants had a vested economic right to continue the operation and development of the landfill, and Appellee is estopped from denying such right?......................23 II - Whether the Trial Court's reliance on Osceola County vs. Best Diversfiedwas misplaced in its application ofthis case?..............35 III Whether the Trial Court erred in failing to grant Appellants' motion for partial summary judgment as to the claim of a categorical taking on February 23, 1993 and as to Appellee's affirmative defense of nuisance? .............................. .................. ......39 IV Whether the Trial Court erred in granting Appellee's motion for summary judgment?........................ ...............,...,........................... .41 - Table of Citations.......................................... ................. .............. ..iii Statement of the Case and Facts.........................................................l Summary of the Argument....................... ....... ............. ... ................... ..... ....... ......20 Arguments.................................................................................. .23 Conclusion................................................................................ ...42 Certificate of Service............................................ ....................... ....43 - - ii TABLE OF CITATIONS Cases 126th Avenue Landfill, Inc. v. Pinel/as County, 138 F.3d 955 (11th Cir.1998)....................................................................................................2, 17 126th Avenue Landfill, Inc. v. Pinel/as County, 758 So.2d 721 (Fla. 2dDCA 2000)............................ .........................2, 7,16,17,18,40 City of Miami v. Stekloff, 111 So.2d 46 (Fla. 1959).................................. ..34 Florida First Nat. Bank of Jacksonville v. Dent, 350 So.2d 481 (Fla. 1st DCA 1977)................................................... ................... ..34 Griffin v. State, 775 A.2d 54 (N.J. Super A.D. 2001)..................................33 _. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992).. ........................................................................ ..21 Osceola County v. Best Diversified, Inc., 936 So.2d 55 (Fla. 5th DCA 2006)...........................................................21,24,27,28, 30, 33, 38, 43 Town of Esop us v. State, 631 NY.S.2d 213 (N.Y. Ct. Cl. 1995)......................33 - iii - STATEMENT OF THE CASE AND FACTS Nature ofthe Case This is an action for inverse condemnation involving a Class III landfill formerly operated by Appellants in Pinellas County, Florida. R 61- 69; Appellants' Fifth Amended Complaint. It is undisputed that on August 16,2005, Pinellas County granted Appellants a two-year permit for their landfill operations. R 224-229; Conditional Permit. Appellants claim the issuance of this two-year permit constitutes a "categorical" inverse condemnation of their property. Course of the Proceedinl!s The current inverse condemnation action began on August 2, 1994 in the Pinellas County Circuit Court.l The action was removed and tried before 1 Before undertaking this action, Appellants petitioned the Pinellas County Circuit Court for a Writ of Certiorari. They sought review of Pine lIas County's denial of their application for a five-year renewal of their landfill permit and Pinellas County's tender of a conditional one-year permit. The Circuit Court denied that Writ of Certiorari and Appellants did not pursue further review. Thus, Appellants have previously litigated to conclusion, and without success, the propriety of Pinellas County's original tender of a one-year permit in 1993, as well as Pinellas County's refusal to grant Appellants a conditional five-year permit. R 159-222 (Public hearing records; Order deny Writ of Certiorari) In a separate action, the State of Florida sued the Appellants in the Pinellas County Circuit Court to enforce the state's order of closure of the 1 #- the U.S. District Court, Middle District of Florida. 126th Avenue Landfill, Inc. v. Pinellas County, Case Number 94-13 72-Civ- T-17C. After a judgment on the merits for Pinellas County, the U.S. Court of Appeal, 11th Circuit, reversed and vacated the judgment due to lack of subject matter jurisdiction and directed the U.S. District Court to remand the case. 126th Avenue Landfill, Inc. v. Pinellas County, 138 F.3d 955 (11th Cir. 1998). Upon remand, Pinellas County moved to dismiss the action because Appellants' takings claim was not ripe and Appellants had not exhausted administrative remedies, namely, they had not complied with the County's anti-takings ordinance. Pinellas County Land Development Code, Sec. 134- .- 121, et seq. (Pinellas County Ordinance Number 90-66; R 237-253). The Circuit Court dismissed the action. On April 19, 2000, this Court reversed and remanded, holding the Appellants must first exhaust their administrative remedies under Pinellas County's anti-takings ordinance for review and remedy of their inverse condemnation claim.2 Upon remand, the action was landfill. Ultimately, summary judgment was granted to the State of Florida. On July 1,2005, the Pinellas County Circuit Court ordered Appellants to provide the State of Florida with a closure plan. That order has not been obeyed. R 223 (Order); R 1163-1166 (Hauser Affidavit). 2 126th Avenue Landfill, Inc. v. Pinellas County, 758 So.2d 721 (Fla. 2d DCA 2000). 2 stayed pending Appellants' compliance with Pinellas County's anti-takings ordinance. R 3-5. Appellants then filed an application for permit renewal on November 15,2000. Although Appellants were notified the application was incomplete and that further information was needed to process that application under the anti-takings ordinance, Appellants failed to prosecute the application. R 1163-1166 (Hauser Affidavit). Thereafter, neither party took any action on the incomplete application.3 Four years later, on December 21, 2004, Appellants filed a motion to lift the Circuit Court stay demanding that Pinellas County act upon whatever - application materials they had submitted. R 5-7. The stay of action was lifted on June 21, 2005. Pinellas County, at its expense, then hired engineers to develop the needed information that Appellants refused to provide in their application, namely, the volume of space remaining in the landfill and the estimated time it would take to fill that space. R 1163-1166 (Hauser Affidavit). On August 16,2005, Pinellas County issued Appellants a two-year permit to operate a .- 3 Richard Hairr chose not to pursue this application from 2000 through 2005 because he had cancer. R 1255-1265 (Hain Deposition). 3 - Class III landfill conditioned upon any permit requirements issued by the State of Florida for its state landfill permit. R 224-236 (Conditional Permit). After receiving this renewal permit, Appellants then filed a Fifth Amended Complaint on September 29,2005 asserting a claim of inverse condemnation. R 61-69. - Lower Tribunal Disposition In response to Appellants' Fifth Amended Complaint, Pinellas County ultimately filed a motion for summary judgment, supported by exhibits, affidavits and depositions. The Circuit Court granted summary judgment to Pinellas County on August 16,2007. A motion for rehearing was denied on September 6, 2007. R 741-749,872 (Final Summary Judgment, Order Denying Rehearing). Statement of the Facts Factual Overview Three events are important to an understanding of the facts in this case. The first event is the original permitting by Pinellas County of Appellants' Class III landfill in 1987. 4 .- The second event is the refusal of Pin ell as County to issue another five-year permit to Appellants, offering instead, a one-year permit. This occurred in late 1992 and early 1993. The third event is the issuance of a two-year permit on August 16, 2005. These three events are discussed in the form of a time line in order to provide an understanding of what has happened in the last twenty years. In 1987, Pine lias County granted Appellants a five-year permit to operate a Class III construction and demolition debris landfill. Appellants had represented that all landfill operations could be completed by them within three years. R 230-236 (Original Permit); R 389-391 (Davis Affidavit). Upon expiration ofthe 1987 permit in 1992, it was extended until February 23, 1993. Despite the extensions, Appellants failed to timely submit a proper and complete renewal application. R 389-391 (Davis Affidavit); R 179-194 (Public Hearing Minutes of February 23, 1993). At that time, Pinellas County proposed to issue Appellants a one-year extension of their landfill operations conditioned upon: 1) Cessation of Appellants' air curtain incinerator (ACI) operations; 5 - 2) Posting a performance bond in the amount of $1,000,000.00. The $100,000 performance bond currently in place was determined unacceptable to Pinellas County because of inadequate capitalization of the funds necessary to close the facility. 3) Submission of approved leachate and odor control plans by Appellants; and, 4) Submission of an approved construction sequence plan that shows no further excavation of the landfill will take place. R 268-280 (Staff Recommendations to BOCC); R 389-391 (Davis Affidavit); R 179-194 (BOCC Public Hearing Minutes of February 23,1993). When Appellants refused to consider this proposed permit renewal, Pinellas County denied Appellants' requested five-year permit renewal. Without availing themselves of Pin ell as County's anti-takings ordinance, Appellants challenged the denial oftheir permit renewal in a Petition for Writ of Certiorari to the Circuit Court. That petition was denied. R 221-222 (Order denying Writ of Certiorari). Thereafter, Appellants sued on a claim of inverse condemnation in Circuit Court. Pinellas County removed the case to Federal Court. After Pinellas County prevailed upon the merits, an appeal by Appellants to the - 6 - - 11 th Circuit Court of Appeals resulted in a reversed and vacated judgment due to lack of subject matter jurisdiction. The case was remanded to state court. Pinellas County then moved to dismiss for lack of subject matter jurisdiction because Appellants' claim was not ripe and Appellants had not exhausted their administrative remedies under Pinellas County's anti-takings ordinance. The motion was granted. An appeal to the Second District Court of Appeals resulted in a reversal and a ruling that Appellants still must exhaust their administrative remedies pursuant to Pine lias County's anti-takings ordinance before advancing a takings claim before the Circuit Court. Upon the suggestion of Pin ell as County, the District Court of Appeal ordered a stay of proceedings pending exhaustion of administrative remedies. I 26th Avenue Landfill, Inc. v. Pinellas County, 758 So.2d 721 (Fla. 2d DCA 2000) In November 2000, despite being required to exhaust administrative remedies, Appellants effectively refused to do so. In the application process, they refused to supply Pinellas County with engineering drawings that would disclose precisely the remaining space in the landfill. This information was essential in order to assess how much material it would take to fill the existing landfill space, and also the time that would be needed to complete landfill operations. R 1163-1166 (Hauser Affidavit). 7 _. At its own expense, however, Pinellas County then resolved this aspect of Appellants' business application by commissioning such engineering research. After doing so, Pinellas County then granted Appellants a conditional two-year solid waste permit on August 16,2005.4 R 224-236 (Conditional Permit). Upon being conferred this permit, Appellants then refused to undertake landfill operations. Instead, they sued claiming their property was inversely condemned. Undisputed Facts These undisputed facts are derived from a stipulation5 filed by the parties on August 15,2007 (R 734-740), the uncontested affidavits of Robert Hauser, William Davis, Deborah Bush, Exhibits A - Q that were filed in support of Pin ell as County's Motion for Summary Judgment and in 4 Appellants needed a State permit in addition to the County permit to operate a landfill. His prior State permit expired in 1995. The County permit was conditioned upon the Appellants acquiring the requisite permits from the State of Florida to operate a landfill. 5 Items 22,23,25 and 26 of the stipulation are depositions. However, as reflected in the hearing transcript at R 729-732, the testimony of these deponents was not stipulated as true or undisputed. The stipulation allowed the Appellants to file these depositions to oppose summary judgment. It was stipulated that Appellants' property in its present condition was of no economic beneficial value as the property has been wasted by Appellants and requires remediation to return it to a productive use. R 1033-1036; 1090-1091 (Hain Deposition). 8 - opposition to Appellants' Motion for Rehearing. (R 1163-1166; R 389-391; R 855-858; R 159-388) Pinellas County Resolution No. 82-423 was passed on August 31, 1982. It established a permitting process for the operation and maintenance of solid waste disposal systems in Pinellas County, Florida. The Resolution also restricted specified types of solid waste accepted into such facilities. R 734 (Stipulation). On December 7,1987, Appellants were granted a five-year Class III landfill permit by Pinellas County. R 61-69 (Fifth Amended Petition for Inverse Condemnation, paragraphs 8 and 9); R 230-236 (Pinellas County - Class III Landfill Permit No. SW-87-01). At that time, Appellants did not have any air curtain incinerator, nor did they advise Pinellas County that they intended to acquire an air curtain incinerator and divert any of their solid waste stream from the landfill to an air curtain incinerator. R 255-263; R 161-194 (Minutes of Board Hearings February 24, 1987; Minutes of Board Hearings during 1992-1993). Moreover, in securing this permit, Appellants led Pinellas County to believe that this landfill operation would be opened and closed within three years. R 260. 9 - 1993 Permit Renewal Timeline August 3. 1990: Pinellas County Ordinance No. 90-66 is passed. Generally, it establishes the administrative procedures for review and remedy of takings claims, such as those before the Court. R 237-253. December 8. 1992: Anticipating the expiration of Appellants' five-year permit, Pinellas County staff requests the Board of County Commissioners (hereafter "BOCC") grant a 90-day extension of the existing 1987 permit in order for Pinellas County staffto complete their review of Appellants' incomplete application renewal of their landfill permit, and to then schedule public hearing for consideration of Appellants' permit renewal. R 254 (BOCC Memorandum dated December 8, 1992). In response to this staff request, the BOCC granted a thirty day extension and directed a public hearing be scheduled. R 161-164 (Minutes of December 8,1992 BOCC meeting at R 164). During the course of this Board meeting, the staff and Commissioners expressed the view that Appellants had misled Pinellas County in their original permit public presentations, wherein they promised that the landfill would be filled within the time allotted in the original five-year permit. Specifically, in 1987 10 - Appellants' engineer, Douglas McBriarty, had represented the landfill could be filled in three years. R 160 (BOCC Meeting Minutes of February 24, 1987). However, as of December 8, 1992, the Appellants' landfill was only 40% filled. At that time, Pinellas County staff believed that 60% of the solid wasted accepted by the Appellants was being diverted from the landfill and was being incinerated through an air curtain incinerator (ACI).6 R 161-164 (BOCC Meeting Minutes of December 8, 1992). January 12. 1993: During the meeting of January 12, 1993, several neighbors of the landfill complained to the BOCC regarding problems with nuisance ash generated from the ACI, about odors from the landfill that were causing gagging and vomiting, and that all sorts of inappropriate material was going into the landfill. R 165-178. .-. 6 It was later learned through an investigation that Appellants were removing from the landfill concrete debris and transferring that solid waste elsewhere. In effect, three financial benefits accrued to the Appellants in so operating. First, the landfill site was being used as an unlicensed waste transfer station for profit. Second, the transfer operations involved non- burnable materials such as concrete. Removal of these materials extended the life of the landfill. Third, excavation and transfer activities served to avoid a standing obligation to build a very expensive lining for the landfill. The lining had to be built after the landfill was filled within approximately 22 feet of grade. By excavating the site and transferring waste elsewhere, this capital expense was avoided. See, e.g., R 594-598 (Hartsfield Deposition); R 855-858 (Affidavit of Deborah Bush and video of excavation oflandfill debris); R 1033-1036, 1090-1091 (Hain Deposition). 11 -. - Pinellas County staff recommends denial of Appellants' permit renewal application for an additional five years because Appellants have not complied with Section 6(1) of Resolution No. 82-423. Specifically, that recommended denial is based upon Appellants' failure to timely submit and update information required in the application for permit renewal. There is a substantial list of items Appellants have not provided. R 165 (BOCC Memorandum dated January 12, 1993). Appellants responded that they would provide all of the missing information within two weeks. R 170. (BOCC Meeting Minutes of January 12, 1993). The BOCC noted the fact that the landfill was not filled, and that it was supposed to have been filled within the original five-year permit. It was again estimated that 56% of the material coming into the landfill was being burned in the ACI, and as a result, the life of the landfill was being extended by Appellants' diversion of solid waste to an air curtain incinerator. R 166. Pinellas County Staff informed Appellants they would not support the continued ACI operation. Appellants' representative, Mr. Nick Bruno, took the position that the ACI brings in over half of the facility's revenue. The BOCC responded that instead of burning this yard waste, Appellants could 12 shred the yard waste and sell it or use it as landfill. 7 R 171. One of the Pinellas County commissioners stated that the landfill had been a problem for a long time and neighbors have complained. R 173. A decision on Appellants' application for a permit renewal was then temporarily deferred to February 23, 1993 to give stafftime to review the information Appellants promised to submit in the application for renewal. That extension of Appellants' permit was conditioned upon cessation of the operations of the ACI, and that an odor control plan and the required application information are submitted by the Appellants within two weeks. R 174,176-177. -. February 23. 1993: On February 23, 1993 Pinellas County staff recommended renewal of Appellants' landfill permit for one year conditioned upon: 1) Cessation of Appellants' ACI operations; 7 Appellants have since alleged in these litigation proceedings that state regulations precluded filling their landfill with such yard waste. See Initial Brief at page 27. State regulations adopted in 1990 precluded use of such materials in a lined landfill. Appellants operated at all times as an unlined landfill, and resisted efforts by the State to undertake any lining or closure of the landfill despite their permit requirements. R 223 (Summary Judgment Order). 13 - 2) Posting a performance bond in the amount of$I,OOO,OOO.OO because the current $100,000 performance bond was determined inadequate capitalization of the funds necessary to close the facility8; 3) Submission of approved leachate and odor control plans by Appellants; and, 4) Submission of an approved construction sequence plan that shows no further excavation of the landfill will take place. R 268-281 (Pinellas County Staff Memo); R 181-182 (BOCC Minutes dated February 23, 1993). In response, Appellants informed the BOCC that some of the _. conditions for renewal were unacceptable, namely the length oftime of the permit renewal and the $1,000,000 performance bond. R 179, 181-182 (BOCC Meeting Minutes of February 23, 1993). At the time, there were still major deficiencies in the application. Moreover, based on the considerations of the health, safety and welfare of the citizens of Pinellas County, Pinellas County staff could not find any basis to recommend approval of a five-year application as presented by the Appellants. R 180-181 (BOCC Meeting Minutes of February 23,1993). 8 While taking profits from the landfill operation from 1987 through 1993, Appellants neglected to establish any kind of sinking fund to pay for the considerable closure costs associated with sealing and monitoring a completed landfill. R 1083-1087 (Hain Deposition). 14 .- According to Appellants' subsequent complaint, all landfill and solid waste facility operations ceased on February 23, 1993. In their suit, Appellants claim they stopped accepting materials for storage, recycling and burning. Moreover, they claim that operation of the ACI also stopped. R 61-69 (Fifth Amended Petition for Inverse Condemnation of Property, paragraph 26).9 Subsequent to February 23, 1993, Appellants appear to have wasted, lost or concealed the liquid and capital assets of the landfill.10 March 23. 1993: Appellants file Petition for Writ of Certiorari in the Circuit Court seeking review of Pin ell as County's tendered one-year extension and its - denial of the demanded five-year extension. R 735 (Stipulation). 9 These allegations are disputed. For example, through pre-trial disclosures Appellants learned that Pinellas County has witnesses and videotapes that reveal Appellants continued operations illegally. However, Pinellas County will demonstrate that these allegations are not material. R 855-858 (Affidavit of Deborah Bush). - 10 Appellant Hain testified in his deposition that he did nothing to protect the equipment on site and essentially left them to the elements. R 1033-1036 (Deposition of Appellant Richard Hain). Appellant Hain also testified that he did not know what happened to the money set aside for construction of the slurry wall liner; whether or not he had permission from the State when he took the money out of an escrow account holding funds for closing the landfill, and that he did not know what happened to all of his landfill profits. R 1033-1036,1083-1087 and 1105-1106. 15 - June 9. 1993 Appellants file an Amended Petition for Writ of Certiorari. R 735 (Stipulation). October 19. 1993 Ordinance No. 93-93 was passed. It repealed Resolution No. 82-423. This ordinance broadened the scope of the former resolution in that it included provisions for exemptions from landfill permitting, revocation and enforcement of permits, right of entry, penalties, area embraced and severability. R 282-299. - October 21. 1993 The Circuit Court denies Appellants' Amended Petition for Writ of Certiorari. R 221-222. August 8.1994: Appellants ignore the administrative remedies created by Pinellas County Ordinance No. 90-66. Instead of exhausting their remedies under this anti-takings ordinance, Appellants file suit for inverse condemnation against Pinellas County. R 736 (Stipulation); 126'h Avenue Landfill, Inc. v. Pinellas County, 758 So. 2d 721 (Fla. 2d DCA 2000). 16 Subsequent to August 8, 1994 the case was removed to federal court. On May 18,2007, a trial on the merits ended with a judgment for Pinellas County. R 342-388 (Order of U.S. Magistrate Judge). May 7. 1998: U.S. District Court remands case to state court after reversal and order of remand by U.S. Court of Appeals. 126th Avenue Landfill, Inc. v. Pinel/as County, 138 F.3d 955 (11th Cir. 1998). April 20. 1999: Pinellas County's Motion to Dismiss asserting lack of subject matter jurisdiction is granted. The Circuit Court rules the takings claim is not ripe and that the court lacked subject matter jurisdiction. 126'h Avenue Landfill, Inc. v. Pinellas County, 758 So. 2d 721 (Fla. 2d DCA 2000). May 3.1999: Appellants file Notice of Appeal to the Second District Court of Appeal. - April 19. 2000: The Second District Court of Appeal orders Appellants to exhaust Pinellas County's administrative procedure for review and remedy of its 17 - takings claim. 126'h Avenue Landfill, Inc. v. Pinellas County, 758 So. 2d 721 (Fla. 2d DCA 2000). June 6. 2000: The Second District Court of Appeal issues Mandate. RIO. 2005 Renewal Permit TimeUne October 5. 2000 Appellants' inverse condemnation action is abated in order to allow Appellants to exhaust their administrative remedies. R 3 (Order of Stay) - November 2000 In November 2000, Appellants tender a renewal application. R 1163- 1166 (Hauser Affidavit). R 199-200 (BOCC Minutes of August 2,2005). In response, Pinellas County hires HDR Engineers to review the Appellants' application and determines that it has information deficiencies. R 1163- 1166 (Hauser Affidavit). June 21. 2005: The Circuit Court orders the stay lifted and issues an order mandating that Pinellas County make a decision in its administrative process on the application as tendered by Appellants, regardless of the adequacy of the Appellants' application. R 5 (Appellants' Motion to Lift Stay) ,._, 18 --- June 21-August 2.2005: Pinellas County then hires SCS Engineering to supplement Appellants' application because pertinent information regarding the existing unfilled volume of the landfill was not provided by the Appellants and because Pinellas County carmot evaluate the amount oftime needed by Appellants' to complete landfill operations. R 199-203 (BOCC Minutes of August 2, 2005); R 1163-1166 (Hauser Affidavit). Based on the site life analysis provided by SCS, it is estimated that it will take approximately 1.6 years, or 19 months, to fill the landfill. August 2. 2005: Staff recommends a permit renewal of two years upon the condition that Appellants also acquire the necessary federal and state permits to operate the landfill. Staff further recommends that the Board authorize all uses permitted in its M-1 zoning category that are compatible with a properly closed and maintained landfill, which includes semi-passive recreational uses. R 199-204 (BOCC Minutes of August 2, 2005). The BOCC conducts an evidentiary hearing, which includes consideration of arguments from Pinellas County staff and Appellants' attorney. R 195-220 (BOCC Minutes of August 2, 2005). --- 19 The BOCC approves Pinellas County staff s recommendation for a two-year permit. R 217 (BOCC Minutes of August 2,2005)). August 16.2005: The BOCC issues a two-year permit to the Appellants conditioned upon any permit conditions required by a State of Florida permit. 11 The BOCC requires that after proper closure, the property may be used for traditional semi-passive recreational uses or any other uses in the M-l zoning classification. R 224-236 (BOCC Final Order). September 29.2005: Appellants file Fifth Amended Petition for Inverse Condemnation. R 61). SUMMARY OF THE ARGUMENT As a matter oflaw, no taking of any property right occurs when a property owner is allowed economically beneficial uses of his property, even if such economic uses solely serve to ameliorate the expenses of 11 During the intervening years of 1993 and 2005, the State of Florida has reformed the regulatory schemes for landfill operations, including adequate performance bonding for closing such operations. Therefore, it was unnecessary for Pinellas County to set out parallel provisions in its tendered permit. 20 rehabilitating and closing a landfill. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992). The issuance of a landfill permit in 1987 to Appellants conveyed no vested right to a monopoly, an oligopoly, or to any guaranteed right to earn a profit. It conveyed no vested right to untold permit renewals. Whether Mr. Hain and 126th Avenue Landfill, Inc. made any profit from this venture was strictly a function of sound business planning, market conditions, and the risks they undertook in 1987. In 1987, Appellants induced Pinellas County to grant Appellants a five-year landfill permit by representing that all they really needed was three years to fill the site. However, the speed at which the landfill was filled was basically a function of how Appellants unilaterally chose to operate their landfill. A landfill operator does not have any vested right to operate a landfill beyond the terms of its permit, or in perpetuity, to assure profitability. Upon the expiration of a permit, a landfill operation may be required to close at its sole expense. That closure includes the expense of sealing the site and filling the site to develop it for alternative, economically viable uses. See, e.g., Osceola County v. Best Diversified, Inc., 936 So.2d 55 (Fla. 5th DCA 2006), review denied 945 So.2d 1289. 21 - A contrary holding would empower a landfill operator to run its business for maximum profitability irrespective of its legal and social responsibilities, with the consequences of a "takings" claim should government intercede or attempt to hold the landfill operator accountable for expectations it created when securing the landfill permit. Notwithstanding the power to close this landfill by denying any permit for continued operation, the Appellants have been granted a permit by Pinellas County to operate a Class III landfill for at least two years. In effect, Appellants have been given a permit that allows them to ameliorate the expenses of closing this landfill, in lieu of incurring those expenses without some off-setting incomes. 22 - ARGUMENTS I There was no denial of Appellants' permit renewal for the continued operation of a Class III landfill by the Pinellas County Board of County Commissioners. The use of Appellants' property came to a halt because the Appellants did not have a permit for landfill operations and because the Appellants failed to timely exhaust their available administrative remedies in order to continue landfill operations. Contrary to the claims of the Appellants, they had no "vested" rights to continue a landfill beyond 1992, no estoppel has been pled or previously argued in this case, and Pinellas County had done nothing to justify Appellants' claim of estoppel. To begin, Appellants' Fifth Amended Petition for Inverse - Condemnation does not plead or claim any cause of action based upon estoppel. Nor does the Petition assert any claim of some "vested" right, how that right became vested, and how Pinellas County took that vested right from the Appellants. Further, it claims no temporary taking. The Statement of the Facts tendered by the Appellants clearly disregards the undisputed facts in this case. The essence of those facts are quite simple. In 1987, Appellants persuaded Pinellas County to permit them to convert a barrow pit into a Class III landfill. To overcome objections by neighbors, Appellants represented they had the skills to operate a landfill - and that this landfill would be filled in three years. Against these claims, 23 - - - Pinellas County granted the Appellants a five-year permit. R 230-236, 260 (permit No. SW 87-01; BOCC Meeting Minutes of February 24,1987) That permit provided no guarantees to the Appellants that their business venture would succeed, that the markets would always be favorable to them, that they were getting a monopolistic or oligopolistic solid waste franchise, or that they had any right or expectation of permit renewal or extension. The Appellants undertook the risks of failure and the certainty that they would have to bear the expenses of closing this landfill within five years as a worst-case scenario. Those were the reasonable expectations of Mr. Hain and 126th Avenue Landfill, Inc. in 1987. The refusal to grant a new permit for landfill operations upon the expiration of an existing landfill permit does not constitute a taking as a matter of law. Osceola County, et al. v. Best Diversified, et al., 936 So.2d 55 (Fla. 5th DCA 2006). The relevant facts of Best are as follows. Best Diversified operated a 40 acre construction and demolition debris landfill in Osceola County. This landfill was operated for nearly 30 years without any regulation. However, in the 1990's it became regulated by Osceola County and the Florida Department of Environmental Protection (FDEP). 24 - In 1991, a five-year permit was issued by the FDEP to operate a construction and demolition landfill at this site. A concomitant request for a permit made to Osceola County was granted, subject to conditions. Within four years thereafter, local residents began to complain about odors emanating from the landfill. Although Best attempted to ameliorate these odors, the odor complaints continued.12 In March 1996, Best applied to the FDEP for a permit to continue landfill operations. Shortly afterwards, Best applied to Osceola County for a permit renewal. In November 1996, the FDEP denied the requested permit renewal because of the odor complaints which the FDEP attributed to the landfill operations and because Best had failed to demonstrate it would operate the landfill in a manner to control those odors. The FDEP specifically found the current operation to be a nuisance. In February 1997, and without any formal findings that the landfill was operating as a nuisance. Osceola County denied Best's application for a 12 Appellants repeatedly attempt to distinguish Best based upon the disingenuous assertion that Pinellas County Staff had no problems with Appellants' operations, that is, Staff had no objections based upon nuisance. However, the record is replete with undisputed evidence of public record complaints regarding multiple nuisances that continuously emanated from this landfill, despite consent decrees under which Appellants agree to address and resolve these nuisance complaints. See, e.g., R 167,174-175, 185-188). 25 - renewal permit. A subsequent reapplication in 1998 to Osceola County was again denied. Best then filed suit against Osceola County and the FDEP claiming inverse condemnation. Meanwhile, Best withdrew his request for administrative review of the denial of a renewal request by the FDEP, while "reserving" the right to sue for inverse condemnation. The Fifth District Court of Appeals reversed a finding of the trial court that a taking had occurred. Two issues were addressed. First, the Court determined that the FDEP and Osceola County had every right to deny a permit renewal to a landfill that operated with noxious - odors offensive to local residents. In this respect, the Best Court imposed no obligation upon local government to undertake a separate civil action to plead and prove any nuisance as a condition to denying a renewal permit. Second, the Court rejected Best's claim that a taking occurred when Osceola County refused to allow Best to continue to fill the landfill for profit in order to close the site in accordance with FDEP requirements. In determining no taking occurred from a denial of a permit due to noxious odors attributed to the landfill's operations, the Court required no formal adjudication that a nuisance exist. Indeed, the denial based upon "concerns" was sufficient: 26 The threshold issue on appeal is whether Huff was entitled to compensation from the County and DEP when his request for a conditional use and permit were denied based on their determination the facility was the cause of noxious odors and constituted a public nuisance. The answer is clearly no. Lucas v. South Carolina Coastal Council, 505 u.s. 1003, 112 S. Ct. 2886, 120 L. Ed 2d 798 (1992) (harmful or noxious uses of property may be proscribed by government regulation without the requirement of compensation); Keshbro, Inc. v. City of Miami, 801 So. 2d 864 (Fla. 2001) (regulation eliminating the value of private property effects a taking unless the purpose of the regulation is to control a public nuisance); State, Department of Environmental Protection v. Burgess, 667 So. 2d 267 (Fla. 1st DCA 1995) (if landowner's proposed use of property constituted a nuisance, use was not part of landowner's property interests and compensation for denial of ftll and dredge permit required for such use would not be due landowner on a theory of a constitutional taking). .-. In making this determination, we note that the trial court erred in reviewing the propriety of the County's action in denying Huffs application for conditional use approval and the DEP's action in denying him a permit. The Board of County Commissioners denied Huffs application for conditional use approval because of concerns about past violations at the landfill and the continuing odor problems. The DEP denied Huff a permit based on odor complaints. specificallv finding that the current operation of the facility constituted a public nuisance. Best Diversified, 936 So.2d at 59. (Emphasis supplied.) The 5th District Court of Appeal went on: - If the County or the DEP acted improperly, Huff should have sought appropriate administrative and judicial review of those actions. Huff did not do so. He dismissed his administrative appeal of the DEP's decision to deny him a permit and did not seek administrative or judicial review of the County's decision 27 .- to deny his application for conditional use approval. Furthermore, Huff filed a notice specifically accepting the actions of the County and DEP and waiving any right to further challenge those actions. In these circumstances, Huff may no longer challenge the propriety of the actions of the County and DEP in denying the conditional use approval and a permit. Ibid at page 59. Having decided the government could not be charged with a taking when proscribing land uses that were harmful or noxious, the Court then examined Best's independent claim that Osceola County had taken its property. ,- The plaintiffs theory was that the County kept telling Huff that his proposals for the landfill after the permit and conditional use expired had to be part of a closure plan approved by DEP, but because the movement and placement of clean fill is not regulated by DEP, if Huff had asked DEP for its approval to deposit clean fill, he wouldn't have been able to get it. He asserted that by requiring this impossible task, the County prevented him from placing the required dirt on the landfill and restoring his property to any beneficial use. Ibid at 60. The Court rejected this theory as "an entirely bogus claim." The Court noted the FDEP had the responsibility to regulate the closure of construction and debris landfill, citing 9403.704(15), Fla. Stat. (1997); Fla. Admin. Code R. 62-701.730(1). Noting this was the law, the Court then examined whether Osceola County had obstructed Best's ability to do what - 28 it was entitled to do, that is, close the landfill in accordance with Fla. Admin. Code R.62-701.730(9). After reciting extensive correspondence on the point, the Court summarized Best's position for claiming a taking had occurred: - The remaining question is whether the DEP and/or the County effected a compensable taking by refusing to allow Huff to close the landfill in accordance with DEP requirements in order to put the property to other non-landfill uses. There is simply no evidence that the County kept Huff from closing the landfill in accordance with law or engaged in any conduct amounting to a taking. Inverse condemnation is a cause of action by a property owner to recover the value of property that has been de facto taken by an agency having the power of eminent domain where no formal exercise of that power has been undertaken. Rubano v. Department of Transportation, 656 So. 2d 1264 (Fla. 1995); Sarasota Welfare Home, Inc. v. City of Sarasota, 666 So. 2d 171 (Fla. 2d DCA 1995). A "taking" occurs when an owner is denied substantially all economically beneficial or productive use of the land. Huffs position on appeal was that the County inversely condemned the landfill by "preventing him from opening-to-close," but as a matter of law Huff had no right to open the landfill to close it. He only had the duty to close - to place a fmal cover of a twenty-four-inch thick soil layer, the upper six inches of which had to be capable of supporting vegetation, graded and compacted as necessary to eliminate ponding, promote drainage and minimize erosion. See Fla. Admin. Code R. 62-701.730(9). *** Clearly, after the expiration of his conditional use permit and the denial of his subsequent application to renew his conditional use permit in February 1997, Huffno longer had the right under the zoning laws of Osceola County to operate a landfill. Moreover, having ceased to operate a landfill under DEP regulations, he had an affirmative duty to close the landfill in 29 accordance with DEP's regulations. Huff repeatedly offered to open the landfill in order to generate funds to "eventually" close it; he sought to dump more construction and demolition debris on the landfill to "improve its drainage." He informed the County on one occasion that he wanted to bring in crushed concrete. His final proposal appears to have been to operate as a "clean fill" landfill, challenging the County to explain why, if he could bring dirt on to close the landfill, he couldn't open it to generate revenue by accepting clean fill. Ibid at 65. In this case, and unlike the case in Best Diversified, Pine lias County repeatedly offered the Appellants opportunities to continue operations in order to efficaciously close this landfill. Those offers were rejected by the Appellants in 1993 and in 2005. R 181-185,210-212 (BOCC Meeting - Minutes, February 23, 1993 and August 2, 2005). Moreover, these offers for permit renewals were tendered by Pinellas County despite complaints of neighbors that Mr. Hain and 126th Avenue Landfill were, in fact, operating as a public nuisance. Appellants also contend that without a permit renewal, the task of closure is now economically non-beneficial. R 61-69 (Fifth Amended Petition for Inverse Condemnation, paragraph 18(D); R 211 (Verbatim Transcript of August 2, 2005 BOCC Meeting). However, Appellants claim of financial detriment is irrelevant to any takings claim. Appellants have been aware from the inception of their 30 - permit that they had an absolute obligation to close the landfill upon the expiration of the permit. R 232 (pinellas County Class III Landfill Permit No. SW 87-01). Unlike Osceola County's disposition of Best Diversified's request for a renewal to ameliorate the economic costs of closing the landfill, Pinellas County offered that accommodation to the Appellants. In 1993, Pinellas County offered a one-year extension to the Appellants so that Appellants could fill and close the landfill. Appellants, however, balked at the idea of a one-year renewal and instead, chose to institute this action, waste the assets of 126th Avenue Landfill, Inc. and then to eventually abandon the property. Moreover, when Appellants' Florida Department of Environmental Permitting (FDEP) permit expired, they refused to comply with an order of the Pinellas County Circuit Court to provide the FDEP with a closure plan for the landfill. By the time Appellants exhausted their administrative remedies in 2005, the landfill had filled with water and Appellants claimed to be on the verge of bankruptcy. In response to Appellants' final "application" for a permit renewal for the landfill in 2005, Pinellas County granted Appellants a two-year permit so that again, Appellants could properly fill and close the 31 - landfill. Notwithstanding, Appellants chose litigation in lieu of operating their landfill to close the site. Appellants have no property interest in a future permit, and hence, cannot assert a takings claim for denial of aD application for such permit when Pinellas County did not prevent Appellants from closing his landfill in order to put the site to beneficial uses. I 26th Avenue Landfill, Inc. had no property right in the renewal of its landfill permit. In short, Appellants undertook a business risk when they decided to put their land to use as a landfill. That risk included successfully completing operations and closing the landfill in advance of the conclusion .- of the permit. Alternatively, that risk included unsuccessfully completing operations and having to invest further capital to close the site. They were not entitled, legally or otherwise, to continue landfill operations with a renewal permit on the basis that their financial or business aspirations were unsuccessful or not achieved. Indeed, this was clear from the very inception of the business venture from the terms of the 5-year permit itself. Pinellas County Resolution 82- 423, section 6(1), titled "Permit Renewals," states that "Permits issued pursuant to this Resolution shall not be deemed to be renewed automatically, but shall require submittal of an application for renewal by the applicant in the manner set forth in subsection (1) of Section 5." 32 Therefore, it is clear a taking cannot be asserted from the denial of a permit renewal under these circumstances. Best Diversified, 936 So.2d at 65. (After the expiration of his conditional use permit and denial of his subsequent application to renew his conditional use permit. . ., Huff no longer had the right. . . to operate a landfill.) See, also, Town of Esop us v. State, 631 N.Y.S.2d 213, 214 (N.Y. Ct. Cl. 1995) (no unconstitutional taking when state closed municipal landfill for environmental problems as town had no absolute right to have its license renewed and its right to use property as landfill was contingent on receiving the appropriate licenses.); Griffin v. State, 775 A2d 54, 63 (N.J. Super AD. - 2001) ("We agree. . . that the requirement that a permit be obtained before development does not itself constitute a taking. That indeed is the law of the land.") To be sure, in the federal decision that originally disposed of this case, but which was later reverse and vacated, U.S. Magistrate Judge Elizabeth A Jenkins commented upon the undisputed facts on this point: Plaintiffs knew that the Class III landfill permit issued by the county in 1987 was for a five-year period. Plaintiffs also represented to the county during the permit application process that the landfill could be filled and closed within that five-year period. Because Resolution 82-423 was in force at the time, plaintiffs also were aware that landfill permits would not be renewed automatically but would be evaluated under the same criteria for issuance of an initial permit and the additional factor 33 of whether the applicant had operated the facility in compliance with the conditions in the previously approved permit. Further, plaintiffs knew, prior to embarking on the substantial investment in converting property to a landfill site, that the property used for a Class III landfill had to be properly closed and maintained for a period of twenty years. R 376-377 (Order, 126'h Avenue Landfill, Inc., v. Pinellas County, U.S. District Court, Middle District of Florida, Tampa Division, Case No.: 94- 1372-Civ-T-17C). The foregoing facts noted by U.S. Magistrate Judge Elizabeth A. Jenkins are undisputed in this record. As such, Appellants cannot now claim that they have a "vested right to continue the development" as asserted in - their Initial Brief at page 20. Finally, Appellants claim of "estoppel" is without merit. The Fifth Amended Petition for Inverse Condemnation contains no claim of estoppel. Appellants cite no factual predicate for any claim of estoppel. And, their Initial Brief presents no discussion of their "estoppel" claim. The failure to brief this issue constitutes an abandonment or waiver of this claim on appeal. City of Miami v. Stekloff, 111 So.2d 46 (Fla. 1959); Florida First Nat. Bank of Jacksonville v. Dent, 350 So.2d 481 (Fla. 1 st DCA 1977). 34 - II The Trial Court's properly relied upon Osceola County vs. Best Diversfied in this case. Appellants' premise their argument with a claim that, "Appellee has conceded that its action in denying the renewal of Appellants' operational permit denied them all economic beneficial use of their property." See Initial Brief at page 30. No such concession has occurred and the claim that all economical beneficial use was denied is untrue. Appellants' have taken illiberal literary license with the record as Pinellas County made no such concessions. R 720-732. Pinellas County's - factual position, and the application of Best Diversified to it, is quite clear. First, Appellants' were tendered a permit renewal options in 1993 as well as granted a permit in 2005. Pinellas County has declined to issue a permit renewal on terms as demanded by the Appellants. Second, the present condition of Appellants' property is the result of wasting of the property by Appellants. R 1008-1142 (Appellant Hain's Deposition). As a result of that wasting, the land is presently useless. That wasting needs remediation in order to: a. Refit the property for landfill operations under the 2005 renewal permit; or, .- 35 b. Simply closing the landfill and proceeding to uses permitted under the M -1 zoning classification. Third, Appellants undertook the risks associated with a five-year permitted landfill operation in 1987. Those risks included a risk offailure as a business and the insistence of Pin ell as County that Appellants expeditiously close this landfill within the term of that permit. Fourth, it is undisputed that Appellants' landfill operations generated ash from the ACI and that the landfill generated noxious odors that adversely affected residential neighboring properties. These complaints were presented in public hearings on Appellants request for a five-year permit renewal. Best Diversified does not require any particular adjudication, fact fmding or other formal predicate that a nuisance exists before a permit renewal application by a landfill can be denied, modified or extended. Indeed, one may question whether Best Diversified requires any evidence of an existent nuisance in order to justify denying a landfill renewal permit application, especially under the facts of this case. Here, Appellants obtained a five-year permit by presenting a claim that this landfill would be completed and closed in three years. Instead of conducting their business affairs to achieve that goal, after securing a permit from Pinellas County, the Appellants elected to operate the 36 .- landfill in a fashion that maximized profitability. And that plan did not include filling the landfill within the five-year permit or closing the landfill whatsoever. Once again, Best Diversified demonstrates that Pinellas County could have simply denied any new landfill permit sought by Appellants: The remaining question is whether the DEP and/or the County effected a compensable taking by refusing to allow Huff to close the landfill in accordance with DEP requirements in order to put the property to other non-landfill uses. There is simply no evidence that the County kept Huff from closing the landfill in accordance with law or engaged in any conduct amounting to a taking. Inverse condemnation is a cause of action by a property owner to recover the value of property that has been de facto taken by an agency having the power of eminent domain where no formal exercise of that power has been undertaken. Rubano v. Department of Transportation, 656 So. 2d 1264 (Fla. 1995); Sarasota Welfare Home, Inc. v. City of Sarasota, 666 So. 2d 171 (Fla. 2d DCA 1995). A "taking" occurs when an owner is denied substantially all economically beneficial or productive use of the land. Huff's position on appeal was that the County inversely condemned the landfill by "preventing him from opening-to-close," but as a matter of law Huff had no right to open the landfill to close it. He only had the duty to close - to place a final cover of a twenty-four-inch thick soil layer, the upper six inches of which had to be capable of supporting vegetation, graded and compacted as necessary to eliminate ponding, promote drainage and minimize erosion. See Fla. Admin. Code R. 62-70 I. 730(9). *** Clearly, after the expiration of his conditional use permit and the denial of his subsequent application to renew his conditional use permit in February 1997, Huffno longer had the right under the zoning laws of Osceola County to operate a landfill. 37 Moreover, having ceased to operate a landfill under DEP regulations, he had an affirmative duty to close the landfill in accordance with DEP's regulations. Huff repeatedly offered to open the landfill in order to generate funds to "eventually" close it; he sought to dump more construction and demolition debris on the landfill to "improve its drainage." He informed the County on one occasion that he wanted to bring in crushed concrete. His fmal proposal appears to have been to operate as a "clean fill" landfill, challenging the County to explain why, if he could bring dirt on to close the landfill, he couldn't open it to generate revenue by accepting clean fill. Ibid at 65. Although Appellants have no right to demand a permit that allows them to "open" the landfill to "close" it, Pinellas County has nevertheless allowed them to do so under the permit extended to the Appellants in 1993 - and in 2005. Depending upon the efficiencies of the Appellants, this extension may prove profitable or may only result in the amelioration of the inevitable closing costs for which the Appellants should have reserved funds since 1987, but did not. Appellants' bad business planning and judgments are not a legitimate basis to claim a taking has occurred. The permit renewal tendered by Pinellas County has clear economic benefits to the Appellants. In sum, the Trial Court properly disposed of the Appellants' claims based upon Best Diversified. 38 "- III The Trial Court properly denied Appellants' motion for partial summary judgment as to the claim of a categorical taking on February 23, 1993 and as to Appellee's affirmative defense of nuisance.13 Central to this claimed issue identified by the Appellants' is the contention that they were not operating as a nuisance. The evidence was clearly to the contrary. That evidence included public hearing complaints of neighboring property owners to the BOCC. R 185-188 (BOCC Meeting Minutes of February 23, 1993). It included historic nuisance complaints that led to consent decrees. R 167 (BOCC Meeting Minutes of January 12, - 1993). It included direct observations by Pinellas County Staff. R 181 (BOCC Meeting Minutes of February 23, 1993). In sum, Appellants' claim that they were not operating a nuisance is disingenuous at best. Nevertheless, any motion for partial summary judgment of a "nuisance" defense would have been improper since a record of evidence existed to support that claim as well as the actions of Pine lias 13 While raising this issue in its Table of Contents, Appellants' Initial Brief fails to delineate the issue in its brief. Indeed, the Initial Brief raises and briefs "Points" 1,2 and 4 only. A reading of the Initial Brief, "Point" 2 suggests some attempt was made by Appellants to discuss what they formerly set down as a discreet issue. Notwithstanding, Pinellas County addresses this as a discreet issue. 39 -. County in issuing a permit that would have required Appellants to conclude the operations of the landfill within two years. In closing their analysis of "Point" 2, Appellants seek a ruling that a temporary taking occurred on February 23, 1993 and continued until Pinellas County "lifted" the offending governmental action on August 16, 2005. See Initial Brief, page 34.14 Appellants appear oblivious to the undisputed fact that they chose litigation over exhausting their administrative remedies and that their attorneys took them on an Alice in Wonderland odyssey that lasted 12 years before getting a permit. Tactical legal decisions that prejudice the interests of a client are not grounds to claim compensation from an opposing party who was equally victimized by such unwarranted litigation. 126th Avenue Landfill, Inc. v. Pinellas County, 758 So.2d 721 (Fla. 2d DCA 2000). Appellants argued to the BOCC that remediation of the property they wasted through willful neglect and as a result of their litigation odyssey will now be costly, and that this need for remediation has rendered their property valueless. Initial Brief, page 36. That may well be, but then again, perhaps not. Appellants offered no evidence to the BOCC or the Circuit Court such was the case. What is clear, however, is that from day one in this litigation 14 Appellants have not pled a temporary taking. R 61-69 (Appellants' Fifth Amended Petition for Inverse Condemnation of Property). 40 - odyssey, Appellants failed to exhaust their administrative remedies and essentially thumbed their noses to that obligation. IV The Trial Court erred in granting Pinellas County's motion for summary judgment. Appellants claim there were genuine issues of fact that precluded summary judgment. The claim there was evidence that Pinellas County prevented them from "closing the landfill in the initial five year" period, Le., the 1987 five-year landfill permit. They then claim that an issue of fact exists as to whether that "five year" period was "truly limited." Initial Brief, page 45. Appellants cite no evidence that Pinellas County did anything that prevented them from closing this landfill at anytime. Indeed, Appellants have never even alleged that they attempted to close the site but were obstructed by Pinellas County in doing so. Moreover, Pinellas County has not prevented the Appellants from closing this site under the regulations of the State of Florida. It is undisputed that Appellants have been ordered by the Circuit Court for Pinellas County to provide the State of Florida with a closure plan... .and that the Appellants have refused to obey that order. -- 41 In sum, Appellants offered no evidence that precluded summary judgment for Pinellas County. CONCLUSION Typical of perhaps too many business ventures that deal with government, Appellants induced Pinellas County to permit a landfill operation adjacent to residential neighborhoods based upon a presentation that this operation would conclude in three years. Pinellas County generously tendered a permit that allowed room for error, a permit for five years. After securing this permit, Appellants altered their business plans unilaterally to maximize profits. Those altered business plans reduced the rate the landfill was being filled. At the end of five years, closure of this landfill was nowhere in sight. Moreover, the landfill operations had become a public nuisance and an outcry developed over the prospect of extending these operations. Pinellas County rightfully refused a renewal of this altered business operation and required Appellants to expeditiously close this landfill. Pinellas County allowed, via permit, Appellants the economic benefit of ameliorating the costs of closure by allowing the landfill sufficient time to fill the site while charging customers, i.e., opening the landfill to close it. - 42 Appellants did not have a right to "open the landfill to close it." Best Diversified at page 65. None of the actions of Pin ell as County resulted in any taking of Appellants' property. THOMAS E. SPENCER Managing Assistant County Attorney Pinellas County Attorney's Office FL BAR# 0897159 315 Court Street Clearwater, Florida 33756 Tel: 727- 464-3354 Fax: 727-464-4147 Attorney for Pinellas County CERTIFICATE OF COMPLIANCE Pursuant to Fla.R.App.P. 9.210(a)(2), I hereby certify that the font size used in the foregoing brief is Times New Roman, 14 point. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of Appellee Pinellas County's Answer Brief was served via U.S. mail to: Daniel B. Schuh, Esq., 248 Mirror Lake Drive North, St. Petersburg, Florida 33701 and Patrick T. 43 - Maguire, Esq., 1104 East Twiggs Street, Suite 300, Tampa, Florida 33602 by mail on the 6th of March 2008. THOMAS E. SPENCER Managing Assistant County Attorney Pinellas County Attorney's Office FL BAR# 0897159 315 Court Street Clearwater, Florida 33756 Tel: 727- 464-3354 Fax: 727-464-4147 Attorney for Pinellas County H:\USERS\A TYKB02\WPDOCS\LITIGA nON - TES\Hain\Appellate Briefs\Answer Brief 2007-4484AB.doc - 44 ~ \ .. -. . ~ . . ::"''7~C''l\./C''n . .. '0_.1 . ._.~. .. . ~sn~DffiTIUcrCO~T MIDDLE DffiTIUcr OF FLORIDA ~', ,!'::! IS PH {: 40 FORT MYERS DIVISION RONALD C. FRANCffiCO vs. No. 91-1l4-Civ-FIM-25D 91-327-Civ-FIM-2SD LEE COUNTY, a political subdivision of the State of Florida ORDER This was a lawsuit instituted for the sake of suing. It had no objectively reasonable likelihood of success, and it was conducted without even a poor attempt to establish the prima facie elements of the claims. The defendant's repeated attempts to focus on the issues were countered with smoke and mirrors, wide-mouthed posturing and broad gestures, as it were. The plaintiffs strategy was to intimidate the county into a settlement with outrageous public allegations, and when the case went to trial the plaintiff found himself in the uncomfortable position of trying the case on the same noisy terms. This court dismissed the case after the plaintiff put on only six witnesses. This case is referred to the U.S. Magistrate for a determination and recommendation as to the reasonable hours and costs to be recovered and .~ , ,.".", \1:< y . '. -. . -. . . .. whether apportionment between the plaintiff and his attorney is proper. It is so ORDERED. /" 1(' j , \'CLLdl~vl L. CLURE MORTON' SENIOR U.S. DISTRIcr JUDGE 2 v , COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES THOMAS SPENCER CONFIDENTIAL REFERENCES Reference Relationship: 1. Colleague 2. Subordinate 3. Superior 4. Former Subordinate 5. Colleague 6. Collea!!ue Questions Answers 1. What is your professional relationship to the 1. We were both assistant county attorney in the 1990's in Lee candidate? How long have you known him? County. We were colleagues. 2. 1 have known him for 6 years. We were co-workers for the first year. Then for the last five years he is my manager. 3. I hired him in 2001 as an assistant county Attorney. I have known him for seven years. 4. 1 have known Tom since 1997; he was my boss for about one - year at IMP AC. 5. 1 am a former assistant county attorney in Lee County. I worked with Tom there. I have known him since 1993. 6. I work in the same office with him; we are colleagues. I have known him for 5-6 vears. 2. What do you consider to be his greatest 1. Excellent trial skills. strengths as a professional? 2. The depth and breadth of his knowledge and skill. I have never taken a problem or situation to him that he could not handle. If he doesn't know the answer, he knows how to get the answer. 3. His litigation experience. He was the person I went to in the office to manage our trial lawyers and try our big cases. 4. I have always thought he had a tremendous amount of integrity and was able to communicate with non-lawyers in a way that they could understand. People felt comfortable talking with him and felt he could and would use their information. 5. He is an ardent advocate on behalf of his client. He has strong opinions. He understands office management and office structure. 6. He has great experience doing litigation. He is a great resource to my attorney's. He has great knowledge in how to dig into a case. He has a lot of tenacity. 3. What might we hear with regard to his 1. He was vel)' aggressive in litigation and that caused some weaknesses? Criticisms? complaints filed against him but 1 don't think anything ever happened with them. - 2. The one criticism that I have heard is that he tends to talk a WATERS CONSULTING GROUP, INC. PAGE. 1 TI:I1S Docm.fENT IS COPYRIGJ-ITED AND PROPRIETARY INFOIU\1}\.I10N. THIS DoeD.tENT OR ANY PORTIONS OF 11-115 DOCU!'v[ENT IS NOT TO BE REPRODUCED FOR ANY REASON \TlTHOUl' TI-IE \VRlTIEN CONSENT OF WCG, INC. ~ 4. Describe his problem-solving and decision making style and abilities? How does he involve others in the process? - 5. How would you describe his management style and abilities? Do you consider him to be an effective leader? WATERS CONSULTING GROUP, INC. COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES THOMAS SPENCER lot. If you listen, it is important. He doesn't gossip. He talks about important things. 3. When I hired him from Lee County, they said the only thing you have to do is to hold him back. He is a self starter and very active. [didn't see that as a negative. 4. To some degree, he is a perfectionist. He is able to delegate, but he has very high standards and expects that same level of output from those he works with. 5. Tom has strong opinions at times. He might not be as diplomatic at times when there are other opinions out there. 6. He can be kind of consuming when you ask him something. This is one of those things that is a strength, but taken to the extreme, it can be a weakness. L We were both assistants-he was very well organized. He was very effective in discovering matters. Yes, he included others in gathering advice and used others as a sounding board about litigation strategies. He would discuss matters with other litigation attorney's strategies and themes. 2. He approaches everything from a goal oriented perspective. When a client comes to him wanting to do something, he helps to evaluate that from the overall goal perspective. He does bounce things off of others for different perspectives. He is very goal driven and sets a plan to deliver that goal. 3. He is very collaborative. He got his people together, had staff meetings. Very conscientious about involving everyone in the office. He was very good at mentoring junior trial attorneys. 4. The company we worked for did business in other countries and he traveled a lot. He participated in decision making in multiple cases in various parts of the world. He gathered as much information from affected stakeholders as he could. He involved the stakeholders in the decision making process. He was willing to revisit the decision if it turned out not to be the best decision. 5. Very analytical; he does work well with others. Others need to be forceful in expressing their opinions. If you push, he does listen. 6. He is a litigator. He has a good team approach to preparing a case. He has a great team, but he also knows when to bring in other attorneys who have expertise in the area of the case. He is a great team nlaver and an innate sense of fairness. L 1 can't speak to that. He wasn't a manager when I knew him. Yes, 1 consider him to be an effective leader. 2. Yes, he is a very effective leader. 1 have reported to him for the past 5 years. He allows me to work independently in the areas where 1 am competent and proficient. He uses a team process. He constantly reevaluates himself, his units, the teams and our effectiveness. He Q:ives uuarterlv evaluations with his PAGE.2 THIS DOCUt-.lliNT IS COPYRlGIITED AND PROPRlEHJtY INFORl\.1i\1l0N THIS DOCU.tENT ORANY PORTIONS OF TIns DOCL:ivCENT IS NOTTO BE REPRODUCED FOR ANY REASON \"'nTHOCT THE \X'RlTTEN CONSENT OF \l/CG, lNC ~ 6. How would you rate his communications skills, both oral and written? Do you consider him to be a good listener? Why or why not? COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES THOMAS SPENCER employees. As an employee you always know where you stand with him. He has an open door policy. He leads by example. 3. Yes, he was an effective leader. He was collaborative. He took suggestions well from his subordinates. He worked well with the board of commissioners as well. 4. He is an effective leader. The company we worked for was very diverse. Tom was able to relate on a sincere level to whomever he was dealing with no matter what level that was. He is empowering in style and provides good constructive feedback to those around him. He is a decent, comforting mentor. He doesn't always have to be out in the front-he can lead from within. 5. I think he is a very effective leader-however I have never been managed by him. He does follow authority. 6. He has his hand on everything that is going on, but he has a style that allows everyone to playa role and be accountab Ie about it. He is very good about mentoring the less experienced attornevs. 1. He was very effective in his pleadings. He did most of the federal practice in our office which required briefings. His written and oral skills were very effective. You have to be a good listener to be an effective trial lawyer. 2. Yes, he is a good listener. As a skilled litigation lawyer, he is top notch. He constantly pays attention to his audience both verbal and non-verbal and adjusts his presentation by that. He is a very clear and effective communicator both oral and written. 3. Yes, he is a good listener. His subordinates were very pleased with his interest in their development. He was good at team building. His communication skills were good. He is also very well organized and provided written reports on the status of litigation. 4. His communication style is direct and sincere. His written communication is excellent. He is a first rate attorney and the quality of his legal writing is superior. He takes the time to listen to people to make sure he understands what they are saymg. He listens for both legal things-but he listens for personal things as welL He is a thoughtful listener. 5. His oral skills are excellent. 1 think he is one of the best orators 1 know. He is a good listener. 1 can't speak to his written skills other than to say he gets to the point as opposed to a more wordy style. 6. Oral skills are fantastic. I can't really speak to his written work. He is clear and concise. He is a very good orator. He has a clear way of getting his point across. His listening skills are also very good. He can sometime get ahead of you and anticipates where vou are l!oinl!. WATERS CONSULTING GROUP, INC. PAGE. 3 THIS DOCU/'.{l:.NT IS COPYRIGI-ITED AND PROPRlET.-\RY INFOR!\tl\.110N '1'] n~ DOCCt\1ENT OR .ANY PORTIONS OF THIS DOCG/I.{J::NT IS NOT TO BE REPRODCCED FOR ANY REASON \l;TfHOlT THE W!U'ITEN CONSENT OF V;:CG, INC. What type of image does he present to the community? COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES THOMAS SPENCER 1. He had a problem in managing relationships in Fr. Meyers. He wasn't very popular with the local bar because of his aggressive litigation style. He was, however, a very effective attorney. 2. He manages relationships very well. Tom is always very perceptive about what is going on and addresses things very straight forward. He gets along with people pretty well. People respect him for his work ethic. 3. Very well. Tom is active in the Clearwater Bar Association. He is always willing to help others. He is well regarded by the Bar Association. He had some conflicts with the Sheriffs department attorney-but it was more of a turf issue. Tom was more experienced and was correct in the issue. 4. He is a big believer in fostering a healthy, active, enthusiastic work environment. He was good at team building. He liked to provide another context in which to meet and get to know his co-workers better. He keeps in touch with people he has worked with and opposed in litigation. 5. Tom does not suffer fools. He does have problems with people who are being unethical or have poor behavior. He can be diplomatic. He expects people to do their work. 6. I don't have a lot of insight into this. He seems to have a really good rapport with other people in the county and expert witnesses. 1. That would depend on which perspective you looked at him from. He was extremely aggressive-some didn't like that. He was doing his job and was very effective-I liked that. 2. He is very involved in bar related activities. He is very concerned about his legal reputation. He doesn't have a job that causes him to interact with the citizens. But, he always conducts himself in a manner that does not reflect poorly on the county. 3. A good image. His work is very important to him. He is active in Bar activities and other community events. 4. I know him as a kind, loyal husband. He is civic minded. He presents as someone who recognizes issues and the impact they have on people. He is a very decent person. 5. Very civil and very pleasant. He is former military. He may look unassuming at first but can have a strong presence. 6. Very serious person. A very professional person~he exudes what you would expect from a trial attorney. He is the consummate professional. You always know where you stand with him. 1. He won one of the biggest damage cases, a condemnation case, against a blind trust. He won the case and got the attorneys fees awarded as well. 2. He saved the county significant amounts of money by realizing that any advice he gives he has to back up bv winning in court. ~ 7. Tell me how well he manages relationships with professional colleagues outside his department. 9. What is the most significant contribution that he has made to the organization? WATERS CONSULTING GROUP, INC. PAGE. 4 THIS DOCCtvfENT IS COPYRlGln"ED AND PROPRJET.\RY INFOR1\iA.TlON TI-W; DOCL'fI,ll.:.NT OR ANY PORTJONS OF nus DOCC!\1ENT IS NOT TO BE REPRODUCED FOR ANY REASON \-";;'ITHOL'T THE \VRlTIEN CONSENT OF \'l;.'CG, INC 10. In your opinion, why is he looking to make a move at this time? . ,. Are you aware of anything in his background that could be a problem to a prospective employer if it became public knowledge? 12. Would you work with him again in the future? COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES THOMAS SPENCER 3. The most significant contribution was shouldering the litigation workload with an amazing success record. 4. 1 would say he set the tone for how we were going to treat our employees all across the organization. He made a point to make sure that employees in the legal department were to be treated with respect. 5. Lee County had a habit of doing business in a "good old boy" style-Tom took us out of that into a more professional environment. 6. The training that he has implemented to bring along the younger lawyers in the department. He also brought in some skills in how we deal with our SUDDort staff. L 1 don't know. 2. Because he has the skills and the qualifications to move up. Career advancement. 3. He IS interested in moving up the career ladder. He IS interesting in running his own office. 4. Tom is ready to be a county attorney. 1 think he is looking for new responsibilities and a new challenge. 5. He enjoys the area and the job has considerable potential. 6. Probably for the challenge. Pinellas County has had a bit of a rocky road and we have a new county attorney. He would like to be a county attornev some dav. 1. No. Other than those complaints that were filed. No disciplined resulted from those complaints. 2. No. He has had some bar grievances filed against him. However, any good attorney could have that occur. He is very careful about how he conducts himself because he knows it could reflect on his employer. 3. No. 4. No. 5. No, only that he is aggressive and people may attack him for that. 6. I don't think so. He may have some bar grievances-but they are Dub lie record. 1. 1 wouldn't have a problem at all. 2. Yes. 3. Absolutely. 4. Yes, in a heartbeat. 5. Yes. 6. Absolutelv WATERS CONSULTING GROUP, INC. PAGE. 5 THIS D<X:UfI,O-:NT IS COPYRIGlfTED .AND PROPIUET;\RY INFORl\ii\TION. TlrIS DOCL"11ENT OR ANY POR110NS OF nHS DOCU/l.fENT IS NOT TO BE REPRODUCED FOR ANY RE.,o"sON \\;.1THOCT Tl-:IE W'RlTrEN CONSENT OF 'il:/CG, lNC MEMORANDUM DATE: March 10, 2008 TO: Tom Henning, Chairman Donna Fiala, Vice Chairman Frank Halas, Commissioner District 2 Fred Coyle. Commissioner District 4 James Coletta, Commissioner District 5 FROM: Sue Filson, Executive Manager to BCC RE: Video Interview Questions - Thomas Spencer Attached to this memorandum is a copy of the video interview questions that were completed by Andrea Sims, Waters-Oldani Executive Recruitment Firm on March 5, 2008 for Thomas Spencer. Mr. Spencer was included as one of the five finalists for the County Attorney position by the Board of County Commissioners during the February 26, 2008 meeting. I have 3-hole punched the document so that after your review it can be inserted in your black book under the tab: Thomas Spencer. Please advise if you require additional information. Thomas Spencer 3/5/08 COLLIER COUNTY ATTORNEY SEARCH Video Interview Questions 1 . Describe the elements of your experience and professional training that make you the best and most qualified individual to become (remain) the Collier County Attorney. What distinguishes you as the best candidate? Explain your job moves, especially those in the public sector? Candidate has run own law practice, experienced in litigation in federal courts, major land use cases. After moving to Florida, coming to Lee County, he found there was an experienced management staff. After there was no turnover in the 5 yrs, he realized there were limited prospects to move up. He then took more of a lateral role to reestablish himself as a manger to meet the ultimate goal of being a County Attorney. In Candidate's estimate, he currently expects County Attorney positions to become available in about 9 FL counties, wants to be in a desirable location, only 2 he's interested in. One has already made their decision, Collier is the other. He's been interested in this one for a long time, first time it's been available. Chose not to apply for Pinallas. The Chief Assistant is currently the Interim and is doing a good job; does not want to be questioned as being insubordinate, putting his personal interest/ambition over that of the org. The opportunity in Collier didn't present itself before. Over the years, Candidate has acquired a full array of govt experience, i.e. lawsuits involving injury, land use, taxes, done all at the litigation, non-litigation level. He has spent a lot of time in litigation because of his expertise, his litigation experience is reflective ofthe value added ability to make adversarial presentations in govt. 2. What special programs or resources would you suggest the District investigate to enhance departmental activities? Shown on white board in FL: Goal, evaluation (evaluate the practicality of the goal, plan, implementation), plan, implementation - is the top goal in the cycle. As part of his research regarding Collier County, he is contacting colleagues that had worked there before, i.e., the City Attorney for Bonita Springs, get their impressions of why David's situation occurred, why he had the impression that he would be retained. His impression - the County Attorney's office needs to be reevaluated from top to bottom. Communicate with Commissioners and County Manager; find out their goals/expectations for the office. Ask about the disconnect between what they want from the County Attorney's Office and what they are getting from the Office. Key is to understand the goals of the client. Ask both County Manager's and BCe's to identify their goals. Start to evaluate the staff (software), hardware (office, materials). Can they be improved - choices are to retain and retrain; fire and recruit. Find out the deficiencies in the staff - analysis and how things are being implemented - analogy, to engage in a war in Iraq, one needs an army. If one doesn't have a fully staffed army, changes have to be made. 3. What do you feel the primary role of the County Attorney should be, relative to the County Commissioners? The County Manager? Department Directors? Suggested Interview Questions - Video Collier County Attorney Search Page20f7 County Manager and County Attorney need to be working towards same goal; BCC cannot be harmed in any way. County must be effectively managed in all times. Rare exceptions where disagree, wiser course of action is to resolve, present differences w/o using wording "I disagree with you". Rejecting people's ideas is a bad management practice. Don't tell client department's attorney that they disagree with the County Attorney's office, see if differences are reconcilable, and let the BCC decide the policy. For example, Lee County and the former County Attorney, a great attorney, could have improved reputation of the County Attorney's office, having regular meetings with County Administrator and County Attorney staff, didn't have the skill to correct the issue. Involving a land deal, cost both their jobs. Need good teamwork to be effective. 4. What do you feel are your most significant achievements or accomplishments to date? How would these achievements apply to the Collier County and its operation? Training staff for trial work was significant. Moving forward on accomplishments/work in progress. Just completed comprehensive conflict of interest policy. Unique to them (county), representing the BCC, tax collector, sheriff, their interests can come into conflict, stressful if in the middle. Issue led to both the County Administrator, County Attorney being let go. More often than not, there are not real conflicts, finding ways to work cooperatively with the biz of govt benefiting the public, no more loss of stature. Federal court system, electronic discovery has to be accessible in litigation; readily at the expense of the entity that creates it. Sunshine Law ~ it's an issue, no counties have a standard filing system. Federal court wants it accessible, has massive amounts of data that has never been cataloged, organized, or discerned if accessible, active files, passive files. Court system is indifferent, if costs $IOOK it's your issue. Work in progress for I yr+, some counties may not have awakened to this being an issue as of yet. Federal judge has told him that he is way ahead of the curve on this. With the Florida budget cuts across the state, the management group is looking at what to do, looking at training budget (his responsibility), finding efficiencies for developing training for all persons in the office. Look at the costs associated with the current cadre of staff and where they stand with training, how to maintain economic efficiency. Historically, collect money in litigation per the direction of client, recovery costs for attorney fees; BCC didn't have a way to receive it initially. Candidate needed to develop systems to operate in a more biz type manner, documenting the time to recover fees, and return them to govt. 5. If you were selected/promoted/retained as County Attorney, how would you spend your first 100 days? He envisions this happening in the first 60 days - get acquainted w/staff from that side of ledger, reviewing their personnel files, and identifying their strengths/weaknesses. Interview all constituencies from top to bottom, discern reality from perception, what can be done to improve. Get feedback on what they feel they can do to improve the office. Easier to get buy-in from staff with needed changes if they initiatelidentifY what's needed. Devise a plan for the County Attorney's Office, review with the client, and see if it's acceptable. Are there the resources, i.e., budget, to do what's needed. Candidate feels that most times, the County Attorney's offices use budget to retain status quo; he'd like to develop goals, and see if Suggested Interview Questions - Video Collier County Attorney Search Page 3 of? budget can support the goals. Goal-setting in FI going on right now, reality in this case. Set goals in future with the clients, to engineer the budget to achieve the goals. Understand why BCC question the county attorney's budget, process stagnant, b/c complacent, reactive views. Become more proactive. 6. What do you consider to be your primary personal attributes, aside from education and experience, that suit you for the challenges of this job? See above 7. Describe your ability and experience in handling sensitive political issues and problems. Use specific examples. One of problems, the county's properly values have risen to the point, where the average blue collar person has to drive 30 miles to get to work. Certain professions, i.e., waitress, etc. cannot live in county affordably. Looking at affordable housing in Pinellas County. Commission has been working on for several years, embracing proposals from developers. Those proposals went sour; BCC may have been led to act imprudently. How to recover $3.5 mm, w/o embarrassing certain members of the administration in an election year. Work creatively and with tempered aggressiveness to bring to the table to get resolved. Have litigation on-going, use as a lever to get to a settlement ultimately. Able to keep progressively optimistic, achieve more optimistically than started. Multifaceted, county dept head, county administrator, I or more of the BCC that went forward, those neutral, cost people their employment and/or political careers. Going into the courtroom may be unwise. 8. Describe the single most significant case that you have handled for your organization. What was the disposition of the case? At what level was it appealed? What was the net operating outcome to your organization? Involved with a person presenting as a land developer, used monies to support financial interests politically. Media viewed BCC was being inappropriately influenced, if lost litigation, 3 out of 5 BCC would not stand for reelection, County Admin and County Attorney would be fired. Highest political issue viewed by the Lee County newspapers, $27 mm, land use decision. Taint would have affected people. Adversary knew if case would be tried, would be lost for the plaintiff. Trial team, 20d chair, John Turner, 3cd chair, pres of FI Bar, trial lasted 4.5 days, won, court saw was frivolous, recovered monies, every nickel spent on the case. Don't compensate on basis on what was actually spent, a profit center, what's reasonable to pay on hourly basis. 9. Describe your management style or the style that suits your best. Have you ever had to manage during a budget reduction? What reductions have you personally had to manage? How did you determine the persons affected in your office? How did you advise the Human Resources organization and Budget Office in handling throughout the organization? I RlF at Lee County; currently at Pinellas - attrition, economize on expenses, so won't miss goals. Manage by goals, lead by example, training trial attorneys, tell/show/explain principals of what doing. Delegate; look for competent people that can be trusted, loyal to the org and goals. Monitor vs. dictate details of what they do. Enables to become creative, excel, great success in doing so. Suggested Interview Questions - Video Collier County Attorney Search Page 4 of? 10. What specific areas of local government law do you consider to be your primary strengths? Weaknesses? Most complex/difficult ever seen. Most attorneys go to specialization. County attorney has to understand specialties, manager, generalist, acumen to understand the issues, courtroom verdict. Typical attorney settles 95% of suits, only 3 - 5 cases go to court annually. Can never be a total expert on everything. Point of expertise - land use, work with team, and brush up, re-immerse, then back away after trials. Taxation issue, go back and brush up. Understand what's changed. Hands on all things, recognize when ramp up. Always look for weaknesses to address own. I" to deal with certifications, maintain currency, look at where can develop/maintain skills, process. Management, most attorneys don't get in law school, don't tell how to set up a law practice. Bring skills forward into govt, when saw Yeager's job was that difficult, went back to school on mgmt skills, in-house counsel, look at where not the strongest, educate self. II. Describe your role in establishing your organization's philosophy on matters of labor law, land use, environmental issues, litigation and appeals. Pinellas - any litigation, he's directly involved, principally resp for managing. May do as a team, Bennett is prudent, once in litigation; he goes to his bench strength. All subjects covered. 12. How do you manage the timeliness of your offices work? How do you gauge what other Department Directors/County Commissioners feel about the quality of your office's work? BCC view and Admin view, don't lose any cases, they're happy. Can't win them all, try to be selective, settle when needed. Guiding principal works well with all - not betting company store, govt will be there regardless of the outcome. Constituents bring lawsuit, treat fairly, end of day, regardless of outcome, if fairly tried, if fairly treated. Philosophy commissioners can live with. His goal is to get a fair trial, fair outcome, drum into his attorneys. Not there for win, personal glory, resonates well. 13. What innovative or special programs has your organization created? What legal challenges have been mounted toward these programs? See above 14. On what major projects or cases are you now working? What is/are the disposition of the cases/issues? Affordable housing. Industrial opp next to residential neighborhood, noise, vibrations and dust, public nuisance. BCC called are being called, 200 residents affected, immediate relief for the persons, prop values dropped. Sick building - sewer work, responsibility for accident in the mgmt of the work, dealing with that - ill health, building should be destroyed, potential cascade if unreasonable case succeeds, starts trial on Monday. Suggested Interview Questions - Video Collier County Attorney Search Page 5 of? 15. Estimate your use of external counsel by both dollar volume and case area. What is your philosophy on the use of outside counsel? What policies or procedures have been established to regulate the use of outside counsel? Spent $1.5 mm, his view - repetitive scenarios, have specialization, have the resources to the time to handle, nothing political that drives the conflict of interest. Should be brought to staff counsel for the govt. If lasting for years, can spare the staff, plan for turnover. If cost of outside counsel will drive cost of diminishing case than worth, make hard decisions. Built medical wing for jail, construction attorneys cost $200K, will take away from them, he's done that type of work, feasible to do in-house. 16. To what degree are you called upon by your organization to meet with outside organizations such as developers, commercial associations, etc.? What significant items have caused you to be utilized in that/those instance( s)? Head off lawsuits, get to the bottom of the merits of it. Trial attorney, look at the problem, what would a judge allow a judge/attorney, deconstruct a false perception, focus people, want to avoid a lawsuit, avoid posturing. 17. What, in your opinion, will be the major legal challenges facing today's local government legal offices? How do these conditions apply to your organization? How might they apply to the Collier County? Collier - growth - pancake - vertical. Horizontal - lots of reserve. Reduced resources to get done, governor wants more tax relief, where it can be more efficient. Attorneys look for status quo, in the past, county attorneys got by recruiting anyone, reducing resources' effectiveness. County Attorney's offices need the best available, and retaining the best. Know that some of staff need to improve, hard decisions will have to be made in the next I - 5 years. 18. Are there new trends, programs or philosophies within local government law that you would like to explore or utilize? Please describe. See above 19. What is your degree of interest in the job of County Attorney? Only one interested in, happy where is, recruited in Lee County, and passed on that one. Orange County - highly dense, growth issues, provide challenging opps. 20. What are your salary expectations for this position? Acceptable salary range. When at Lee County, County Attorney - had to terminate an attorney, undercutting attorney, issues with decision makers, may have to deal with these issues, and may have to release someone. Knows another applicant, have discussed the issues, i.e., when attorney retires, recruiting is easy, when termination is a result of a split vote, trepidation, what it will take to pay, mitigate risk. People out there can be unpleasant. Want full backing of BCC, why change jobs to go with a failure factor. 21. If you were be selected as the next County Attorney, what would be your availability? Are there any other searches you are involved in that will be coming to a decision before the end of March? Suggested Interview Questions - Video Collier County Attorney Search Page60f7 Probably 30 days, he trains his successors, would do the same at Collier - want them to have a choice in that matter. Due Diligence Questions 22. Have you ever been subject to a question of ethics, malfeasance or misfeasance in the performance of duties? If so, explain the circumstances. N, one of the difficult situations already discussed, a person filed but all were dismissed without merit. 23. Have you ever been investigated or censored by a grand jury, board of inquiry or similar body? If so, explain the circumstances. N 24. Have you ever been subject to disciplinary suspension or probation in your adult working career? If so, explain the circumstances. N 25. Have you ever been dismissed from a position for cause? If so, explain the circumstances. N 26. Have you ever been subject to civil or criminal lawsuits for which there was finding of fault, an out- of-court settlement, fine or other restitution granted? (This includes any EEO complaints, civil suits, or allegations of wrongdoing where your personal actions were the cause of a lawsuit.) Records possession dispute, Integrated Control Solution, had to be placed in the record sealed. That arose from certain transactions involving foreign transactions, had to preserve records, court agreed. 27. Have you been the subject of any EEO, sexual harassment or discrimination complaint? What was the outcome of these allegations? N 28. Is there any reason why you could not fully perform the duties of this specific position? N 29. After an offer of employment are you willing to undergo a pre-employment physical if one were required? After an offer of employment are you willing to undergo a pre-employment or random drug screening test if one were required? Are you willing to submit to testing by an organizational/industrial psychologist or management testing firm to determine fitness for duty? Y 30. Have there been any accusations or charges made against you based on conflicts of interest, improper behavior or misuse of funds or equipment, or major violations of agency or company policy? (Conduct that is clearly prejudicial to the good order or discipline of your current or past agencies/companies) N 31. Have you ever been convicted of a felony offense? N Suggested Interview Questions - Video Collier County Attorney Search Page70f7 32. Have you ever been subject to bankruptcies, poor credit or financial insolvency's that would prevent you from being bonded or placed in a position of public trust with fiduciary responsibilities? N 33. Are there any special interest groups, citizens, employee groups, collective bargaining groups/ unions or media organizations with which you have had adverse dealings? Would any of these groups be prone to discredit your candidacy if your dealings with them were to come to public light? N. But when he defends a case as part of the County Attorney's office, it may be unpopular. Le., building inspectors approved work of construction firm, building started collapsing, and county was sued. As reflected on the law, the position of the county is that they cannot be held liable for the building collapse. No popular, but legal. 34. Is there anything in your background that could be construed as potentially embarrassing, unusual, controversial or disqualifying in nature to a public or non-profit sector employer regarding your past employment status or personal conduct? This would include behaviors, habits or practices that might disqualify you from consideration for this position. N 35. Is there anything about you that could be potentially embarrassing or disruptive to the candidate evaluation process if it were learned at a later time? It is imperative that we hear this information from you now, rather than from an outside source or a negative reference. N You do understand that via your affirmative or negative responses, as the case may be, you are declaring that you are free from any past practices, behaviors, legal encounters or actions that would tend to disqualify you, or inhibit further consideration of your candidacy. If information is omitted now and learned later with regard to these questions, your status as a candidate could be immediately terminated or relinquished. JOHN TURNER THE \\',HERS CO:\SL:LTI:\G GROUP, Il"C. 800.899.1669 W\\\\'.\\', \n:RSCOl"Sn .TI:\G .CO'\! - COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY John D. Turner P.o. Box 92 Fort Myers, Florida 33902 Business phone: 239.533.2236 Work E-mail: turneris@leegov.com CURRENT TITLE AND Assistant County Attorney ORGANIZATION NAME Lee County Attorney's Office Fort Myers, Florida Since 1991 Licensed to practice law in Florida and Oklahoma, U.S. District Court Middle District of Florida, U.S. 11 th Circuit Court of Appeals, U.S. Supreme Court Certified in City, County and Local Government Law REPORTS TO (TITLE) County Attorney POPULATION SERVED 600,000 SCOPE OF AUTHORITY . County Attorney's office is comprised of a Staff of 31, Budget of$3.9 million; Candidate manages 50+ cases on average - REASON(S) FOR INTEREST IN POSITION John is seeking the chance to come to Collier County at the head of the Attorney's office. His extensive legal background includes private and public sector law in Oklahoma, including experience as a judge, and 17+ years of experience in the Lee County office with his extensive trial attorney experience. With its close proximity to Lee County, Collier County shares a lot of the same challenges as both being among the fastest growing in the State of Florida and in the country. Turner is vested in the area oflocal government law, and will be interested in making a long-term commitment to the next organization served. STRENGTHS Turner has extensive trial and litigation in both the public and private sector, and is an advocate for the experience of a trial attorney, and the winning record in Lee County and the private sector in business litigation. His caseload at Lee County has focused on eminent domain, contract and commercial litigation as well as land use, zoning and environmental issues. John has proven experience in mentoring and coaching others in improving their legal skills and expertise at Lee County and in private law firms, where he was regularly called upon to share his skillset. - WATERS-OLDANI EXECUTIVE RECRUITMENT PAGE 1 20060 THIS DOCUMENT IS COP'l1UGHTED AND IS CONSIDERED PROPRIETARY INFORMATION. TIllS DOCUMEl'<'T OR ANY PORTIONS OF nus DOCL'MENT IS NOT TO BE REPRODUCED FOR ANY REASON WITHom THE WRI'ITE.'1 CONSENT OF TIlE WATERS CONSULTING GROUP, INC WATERS-OWANI EXECUTIVE RECRUITMENT IS A DIVISION GFTHE WATERS CONSULTING GROUP, me. 800.899.1669 - COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY AREAS OF CONCERN Moderate to High with this Candidate. He has less direct management of attorneys than other candidates, but he has extensive experience managing complex cases involving land use, zoning, and growth management with an excellent record of success. His current role gives insight into the running of this law office and he has been mentored by excellent County Attorneys over his public sector career. Turner's current high level of job satisfaction may dissuade him from aggressively pursuing this role, where he is less comfortable with the idea of coming into an environment where there is the expectation for significant staffing change and potential cutbacks. His natural level of competiveness will cause him to "step up" to the challenge, but he has expressed concerns about making some of the difficult management changes that may be called upon due to the fiscal challenges the County will be facing. Turner's involvement with high profile cases, i.e., land trusts, eminent domain, airport, etc., cause him to have more exposure than most at his level with the Board of County Commissioners. The on-going report to this entity will be an adjustment, one that will test his political and business acumen greatly. He is higWy regarded and rated as a member of the Lee County Attorney's office, and he will have to show that he is ready to deal with the higWy level of accessibility and accountability in this new role. MANAGEMENT/LEADERSHIP PROFILE - John is a solid and trial attorney, one with experience in the public and private sector in handling complex cases in growth communities in Florida. His management of his caseload involves extensive coordination, organization and delegation of duties, he works a viewpoint that persons are assumed to be higWy qualified and able until they are shown not to be. Turner is highly organized and disciplined and expects the same of others. Because he believes in being organized and thorough, he is able to mentor/coach others to follow his lead. With the Lee County's Attorney's office, the culture is collegial with a strong consultative culture with the client Department Directors. He enjoys the hard work and challenge and the team orientation of the leadership team. He is comfortable with the emphasis on managing the growth. environmental, land use, and road expansion/transportation matters. John is comfortable with the balancing act, challenge of managing the expectations of the County Commissioners, Department Directors and public in the growth/development-friendly culture, while maintaining the high quality of life for the existing residents and businesses. He is an advocate for sharing information with the Commissioners, Department Directors, and County Manager that will ensure the county is run well. At Lee County, the Deputy County Attorney is a regular participant in the County Manager's leadership team meetings; there he can keep abreast of issues affecting the county as a whole, and keep the Attorney's office aware so as to handle issues proactively. The expectation of camaraderie and teamwork is one that is enviable, but may be naive given the concerns that predicated the change in leadership. With his investigative and consultative WATERS.OLDANI EXECUTIVE RECRUITMENT PAGE 2 20060 1HIS DOCUMENT IS COPYRIGHTED AND IS CONSIDERED PROPRlETARY INFORMATION. THIS DOCUMENT OR ANY PORTIONS OF nus DOCUMENT IS NOT TO BE REPRODUCED FOR ANY REASON WITHom THE WRlTI'EN CONSENT OF THE WATERS CONSULTING GROUP, INC. WATERS-OIDANI EXEClJIlVE RECRUITMENT IS ^ DIVISION OF THE WATERS CONSULTING GROUP, INC. 800.899.1669 - COLLIER COUNTY CANDIDATE PROFILE EXECUTIVE RECRUITMENT FOR THE COUNTY ATTORNEY data gathering approach, he will be able to ascertain the expectations of the Commissioners if he were to join as the next County Attorney. SALARY INFORMATION Candidate is currently earning $128,000 in his role as the Assistant County Attorney at Lee County. He is comfortable with the advertised salary range and will be seeking a salary of $175,000 - $185,000 with contract provisions for increases with the attainment of mutually agreed upon goals. With his current caseload, he would not be able to make the transition until after the trials are completed, expected to be in the June timefrarne. ABS/March 2008 - WATERS-OLDANI EXECUTIVE RECRUITMENT PAGE 3 200610 TIllS DOCUMENT IS COPYRlGI-ITED AND IS CONSIDERED PROPRIETARY INFORMATION. nus DOCUMENT OR ANY PORTIONS OF nns DOCUMENT IS NOT TO BE REPRODUCED FOR ANY RE.A50N WTTIIOUT THE WRIITEN CONSENT OF THE WATERS CONSULTING GROUP, INC WATERS-OLDANI EXECUTIVE RECRUITMFNrIS A DIVISION OF THE WA1F..RS CONSULTING GROUP, INC 8013-899.1669 - JOHN S. TURNER, ESQ. Lee County Attorney's Office 2115 Second Street P.O. Box 398 Fort Myers, FL 33902-0398 (239) 533-2236 PROFESSIONAL EMPLOYMENT ASSIST ANT COUNTY A lTORNEY - Lee County Attorney's Office, Trial Section, Fort Myers, Florida. Responsible for trial and appeal of federal and state claims involving eminent domain, inverse condemnation/due process land takings, employment law, contract/commercial litigation, Florida Public Records and Open Meetings Acts, constitutional law, environmental, zoning and land use issues. Attend Board of County Commission meetings, advise Board and staff members on pending litigation, ordinances, land use and comprehensive plan challenges. (1991 - present). ATTORNEY - Associated with the Firm of Guthery & Smith, 2502 East 21 st, Tulsa, Oklahoma. Emphasis in the area of civil and business litigation. (1989 - 1991). ATTORNEY - Partner in law firm of Martin & Turner, 1023 West 23rd Street, Tulsa, Oklahoma. Practice consisted of civil and criminal litigation, real estate (purchase contracts, title opinions, development and zoning), oil and gas (title opinions, drilling and division order opinions, farm-out agreements, gas contracts), and franchising. (1984 - 1989). JUDGE OF THE MUNICIPAL COURT - City of Tulsa, Oklahoma (population of 500,000). A state court of record that processed misdemeanor and traffic cases with three full time judges. Responsible for supervising staff and issuing written opinions on questions of criminal law and application of State Statutes to City Ordinances. Presided over more than 100 jury trials. Completed the Special Court Jurisdiction Session conducted by the National Judicial College at the University of Nevada in Reno. Served as one of three delegates from Oklahoma to the American Bar Association, Special Courts Section. Membership in the Oklahoma Municipal Court Judges Association. (Alternate Judge: 1977 - 1980; full time capacity: 1980 - 1984). ATTORNEY - Firm of Malloy, Thompson, Malloy, Turner & Athens. Concentrated in the areas of business corporate law, franchising law for several major franchising companies, real estate commercial law, oil & gas law for local independent oil companies, and litigation (1976 - 1980). - JOHN S. TURNER, ESQUIRE Page 2 ASSOCIATE ATIORNEY - Firm of Rosenstein, Fist & Ringold, Tulsa, Oklahoma General civil practice of law. Also served as this firm's legal intern while attending law school. (1972 - 1976). REPRESENT A TIVE TRANSACTIONS LITIGATION - Relevant trial and appellate experience includes "first chair" injury and non-jury trials and appeals in federal and state courts involving eminent domain and inverse condemnation actions, defense of federal due process and equal protection claims, employment discrimination claims for age, disability, race, and sexual harassment, defense of personal injury and wrongful death claims, defense of workers' compensation and liability, special assessments cases, land use and development law issues including consistency challenges, zoning, and building code cases, and defense of public records and sunshine law violations. Specific examples of recent litigation matters that demonstrate the applicant's significant experience in civil law and the experience necessary for the position of County Attorney are: .- . Applicant was recently assigned all workers' compensation and litigation cases to reduce costs for outside counsel. (Current) . Currently litigating 17 personal injury and wrongful death cases in state courts. . Assisting in defense of the school impact fee ordinance adopted by the Board of County Commissioners including appeal to Second District Court of Appeal. (Current) . Defending claims by taxicab operators and courtesy vehicle companies against the Port Authority for breach of contract, substantive due process, and equal protection claims in federal court. (Current) Defending claims by property owners for illegal destruction of property from application of unconstitutional ordinance and in violation of due process in federal court. (Current) . Defending water service franchise agreement in action by municipality concerning coverage and terms including appeal to Second District Court of Appeal. (CtnTent) . Defense of ADA claims for lack of accommodations in 11 public parks and buildings in federal court - - JOHN S. TURNER, ESQUIRE Page 3 Successfully defended inverse condemnation claim in road construction project for taking of access, injunctive relief, and denial of due process in federal and state courts. (2005-2006) . Successfully defended breach of contract and injunctive relief claims bymunicipality to prevent construction of new bridges and causeway in state court. (2006) . Prosecution of an abandonment proceeding before the Surface Transportation Board, Washington, D.C., against local railroad in an effort to save construction costs on a crossing system. (2006) . Successfully defended two claims for over $16 million by a telecommunications company for violation of The Telecommunications Act, substantive and procedural due process violations in federal court and on appeal to 11 th Circuit Court of Appeals. (2002-2004) . Successfully tried eminent domain action for property necessary for expansion of Southwest Florida International Airport. Property owner demanded $1 million for subject property and jury awarded $240,000.00. (2002-2003) - . Successfully defended in United States Middle District Court, two claims of retaliation involving a hostile work environment against the County Manager. Tried the third claim for retaliation for exercising free speech rights which resulted in a mistrial. Total claim by Plaintiff was $350,000.00. The case was settled by the Board of County Commissioners after meeting in executive session and prior to re- trial. (2000-2002) . Successfully tried and defended an age discrimination claim in United States Middle District Court wherein the Plaintiff claimed damages of$600,000.00. (1996-1997) . Successfully tried and defended a medical disability claim under the ADA in the United States Middle District Court wherein the Plaintiff claimed damages of $400,000.00. (1996-1997) . After initiating litigation against the consultant and designers of the supporting structure for a 16" waterline installed under the Edison Bridge, obtained a $95,000.00 settlement from Florida Department of Transportation and consulting engineers for faulty design and fabrication. (1999) - - JOHN S. TURNER, ESQUIRE Page 4 Assisted in trial and successful defense of a race discrimination claim in the United States Middle District Court wherein the Plaintiff claimed damages of$400,000.00. (1995-1996) Successfully defended in Circuit Court and on appeal to Second District Court of Appeal a challenge to the Lee County Charter which was adopted in 1996 on the basis of improper notice, ambiguity of ballot question and alteration of ballot. . Assisted in trial and successful defense of $28 million inverse condemnation/civil rights claim in the Middle District Federal Court and on appeal to the II th Circuit Court of Appeals. Subsequently was successful in obtaining a judgment for attorney's fees and costs and collecting $320,000.00 for the client. (1991-1995) Successfully tried inverse condemnation claims and eminent domain cases for roadway and utility projects involving millions of dollars in valuations. Have successfully defended claims by property owners for denial of access, severance damages, and business damages. . Local projects include right-of-way acquisitions for Daniels Parkway, Alico Road, Gladiolus Road, Old 41 Bonita Springs, Bonita Beach Road, Livingston Road, Winkler Road, Bayshore & Coon Roads; land acquisition for expansion of the Southwest Florida International Ai:rport; and utility projects for the 10na-McGregor Sewer District, Six Mile Water Main, Edison/Fowler Water Main, and Ten Mile Linear Park. . Conducted dispute resolution negotiations pursuant to Chp. 164, Florida Statutes with other governmental entities. . Participated in private meetings with the Board ofCountyCornmissioners to discuss pending litigation pursuant to Chp. 286, Florida Statutes. . Conducted numerous civil trial mediation conferences. . Have defended numerous challenges to the Lee County Comprehensive Plan and Land Development Code on appeal to the Circuit Court as well as Second District Court of Appeal, State of Florida. In addition to trial activities, have argued over 20 appellate cases in Federal and State courts. - LOCAL GOVERNMENT - Advise Board of County Cornmissioners and staff on government-in- the-sunshine issues and public records requirements; handle compliance challenges to - JOHN S. TURNER, ESQUIRE Page 5 comprehensive plan; assist when requested on special assessment issues and bankruptcy matters that involve county government; advise staff on litigation issues in local government finance and tax matters; advise and defend claims to proposed county charter; and appear before Board of County Commissioners on matters assigned and recommend appropriate action. Work closely with staff and experts on real estate appraisals, environmental issues, land planners, certified public accountants for business damage claims, and engineers. REAL ESTATE - Examined an untold number of abstracts for buyers and lending institutions, handled closings on residential and commercial properties, prepared numerous commercial leases including four in the U.S. Virgin Islands for clients investing in the Caribbean, and mortgage foreclosure actions. BUSINESS AND CORPORATE - Acted as corporate counsel for businesses and have prepared numerous incorporation documents, bylaws, minutes, buy-sell agreements, mergers, stock option plans, pension plans, and advised clients on securities and tax laws. FRANCHISING - Established restaurant franchising concept and plan which developed 30 stores - throughout the country including Hawaii. Represented major restaurant franchisee with over 200 stores; negotiated major revisions in national franchise agreement. Represented franchisees in establishing operations in the Midwest and U.S. Virgin Islands. EDUCATION LEGAL Juris Doctor degree, 1972, the University of Tulsa College of Law, Tulsa, Oklahoma. Graduated in upper 10% of class. UNDERGRADUATE B.S. in Business Administration, 1969, University of Tulsa, Tulsa, Oklahoma. Transferred in 1967 from the University of Arkansas, Fayetteville, Arkansas. DESIGNA TIONS/MEMBERSffiPS . Certified by The Florida Bar in City, County and Local Government Law . A V rating by Martindale-Hubbell Oklahoma Bar Association (1972) . Florida Bar Association (1990) - - JOHN S. TURNER, ESQUIRE Page 6 . Calusa Inn of Court - Barrister . Lee County Bar Association (Chairman of Long Range Planning Committee) . U.S. Supreme Court . Eleventh Circuit Court of Appeals . Tenth Circuit Court of Appeals . United States District Court for the Northern District of Oklahoma and Middle District of Florida. - C n i '" ,. ,. ,. ,. ! I; ..- "," " o. 0''' ~ ~~ II . II .!'l ,. " ~n ~n ~~ .. ~ iin c "0 .0 "ll 0 N co= ..= Ii ",n .. .. '2.' i~ !a ~o .. "' o.::r ~'< ~= 0 Ii 11 i?i n?i i~ 0 .. h ,. ,i !~ il' ?i . .. ~ 0 . '< '< '< i ~~ '< r~ ;:.::r Gl . .. n !I ~if '" ,. ,. ,. ! It 3 ~.. " .. . Itfl f!'l II .,1: !!!. '" co. "'n ~g on H .. 00 !Og .. li= * ,,~ ~a na ~ 0 '"'< g'< "'5 co Ii .. 0" <,. .8.::r .. sif ." "Q !~ .... g ~ , , ~; ~ . Q CD '< '< , . '" CD ;ii {i 0.... il 91; 5'i i.... ~.... .... 0 ..3 ...'! ,.'! .. " I~ .. oj!!. ii!!. .. " . " . d'!!. r- i"~ 0 ,,!!. i. 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Organizational Chart - attached. B. Three major accomplishments/achievements: 1. One of the first attorneys in Lee County Attorney's Office to earn Florida Bar certification in City, County and Local Government Law in 1997, which involved peer review and testing. Also received a rating of "A V" from the attorney rating firm of Martindale-HubbelL The "A V" rating identifies a lawyer with very high to preeminent legal abilities, and reflects expertise, experience, integrity and overall professional excellence. 2. Represented Lee County in an action filed by a land speculator for civil rights violations, inverse condemnation, trespass, and injunctive relief. The distinguishing characteristic of this litigation was the plaintiffs social and business position in the community. He was well known and had close ties to many prominent business leaders, doctors, and elected officials. .- The plaintiff in this case through his land trust which was composed primarily of members of the medical profession, owned a large parcel abutting the main entrance to the large airport in Lee County. The Lee County Dept. of Transportation, in order to save costs and expenses to acquire a portion of this parcel to widen the roadway, decided to relocate the road and redesigned to avoid the plaintiffs property. The plaintiff did not appreciate this cost saving move and claimed the road was moved strictly in spite and he lost valuable access and his civil rights were violated. This case turned out to be the highest profile civil case in Lee County's history. The case had many twists and turns including the fact the plaintiff married the chief of the trial section for the County Attorney's Office, who resigned from the office, and hired the most prominent trial attorney in the area to prosecute his case. Lee County, in order to protect itselffrom threats of the plaintiff to name individual members of the County Administrator's office as defendants, and from a claim of conflict due to the County Attorney's office, also hired outside counsel to defend the claims. I was hired to handle the case in conjunction with outside counseL The case passed through the hands of seven different federal judges before it was tried in Tampa. At conclusion of the plaintiffs case, the trial court entered judgment for Lee County. Lee County then obtained a judgment against the plaintiff for its costs and attorneys fees and eventually collected over $300,000. - 3. The City of Sanibel sued Lee County to prevent it from constructing three new bridges on the causeway connecting Lee County to the islands of Sanibel and Captiva. Sanibel claimed Lee County was required to first obtain its approval to construct or recondition the bridges under the terms - of an interlocal agreement. Lee County knew this position was frivolous and after the City filed a case to stop Lee County from constructing the bridges, had the City's claim dismissed. The County has since constructed the new facilities and proceeded with payment of the bonding indebtedness. C. Critical problem analysis and response: As is the case in all of Florida, Lee County is experiencing reduced budgets and cost cutting. The Lee County Attorney's Office has looked for numerous ways to reduce its budget and increase revenue. As a result, all personal injury defense work has been brought inhouse including defense of all workers' compensation cases, which will result in a savings to the County of over $100,000 for the next fiscal year. The office is cognizant of the restrictions in its budget for next year and currently is reviewing all expenses and examining ways to increase revenue. - COLLIER COUNTY, FL EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY EDUCATION VERlFICA TlON John S. Turner Academics Juris Doctor University of Tulsa College of Law Tulsa, OK Pending Confirmation by: National Student Clearinghouse B.S. in Business Administration University of Tulsa Tulsa, OK -- Pending Confirmation by: National Student Clearinghouse - THE WATERS CONSULTING GROUP, INC. THIS DOClJtvlENT IS COPYRIGHTED AND PROPRIETARY INFOJU...l'\TION_ THIS DOCnvJENT OR ANY PORTIONS OF THIS DOCl~11ENT IS NOT TO BE REPRODUCED FOR ANY REASON \~lTHOCT THE WltITTEN CONSENT OF \,'CG. TNC - COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES JOHN TURNER CONFIDENTIAL REFERENCES Reference Relationship: 1. Colleague 2. Colleague 3. Colleague 4. Colleague 5. Colleague 6. Former SUDervisor Questions Answers 1. What is your professional relationship to the 1. I have known him since 1991. We were colleagues in the trial candidate? How long have you known him? section of the Lee County Attorney's office. 2. We worked together in Lee County since 1991-we were colleagues. 3. Weare colleagues in the same office and 1 have known him since 1993. 4. I have known John for 15 years; we are colleagues. - 5. 1 have known John since 1990; we were colleagues. 6. 1 was his boss in Lee County. 1 knew him about 15 vears. L. What do you consider to be his greatest 1. He is vel)' competent and good trial skills. A vel)' personable strengths as a professional? man. Good people skills. 2. Perseverance and concentration and dedication to getting the job done. 3. Thoroughness. Nobody knows a case better than Turner, by the time it goes to triaL 4. He is extremely well versed in the law; he is vel)' thorough in case preparation; always willing to help other attorneys in the office. 5. He is a calm guy-as a litigator that is rare. He pulls facts from everywhere and understands the consequences. 6. He is vel)' professionaL He was on my litigation staff. He was vel)' independent. He worked well with staff. His court skills were good and he worked well with the client. 3. What might we hear with regard to his 1. 1 have never heard anyone say a bad thing about John Turner. weaknesses? Criticisms? 2. You might hear that he is a bit outspoken about the actions of the City CounciL He is a bit of a watchdog of how the city is functioning. 3. He has high expectations for the opposing professionals. He expects the professionals on the other side to have as high of morals and expectations. When they don't meet that standard, it changes his approach-he becomes more tenacious. 4. 1 honestlv cannot think of a weakness. When he is preparing WATERS CONSULTING GROUP, INC. PAGE. 1 THIS DOCUtvlGVr IS COPY1UGH"IED AND PROPRIETARY INFOR./I.1.'\TION "[HIS DOCUi\lliNT OR ANY PORTiONS OF THiS DOCUl\IIl."T [S NOT TO BE REPRODUCED f..OR ANY REASON \"'\"ITHOlT TI-IE \VRlTrEN CONSENT OF \VCG, INC 4. Describe his problem-solving and decision making style and abilities? How does he involve others in the process? ,- 5. How would you describe his management style and abilities? Do you consider him to be an effective leader? - COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES JOHN TURNER for a trial he is very focused on that and tunes out other things-some complain about that. 5. 1 don't really have any, 6, 1 don't know that vou would hear any, 1, He was well organized; a good litigator. He did employment law and condemnation, He was not so aggressive. He had more of a personal relationship with other attorney's, John is outgoing, friendly and easy to deal with, 2. Studying the problem; gathering the facts; breaking down the issues; and determining the strengths and weaknesses of the facts and issues, He is good at recognizing when he needs other expert insight. 3, It begins with a general workout of the issues of the case as he sees them (we only do litigation). He identifies the main areas of contention. He begins with the law aspect, From there he begins talking with employees understanding their piece of the puzzk He is very good at convincing employees to tell him what really happened-- not what they think he wants them to say, 4. He is very thorough and deliberate; he seeks input from others; he works well with others, He gets all of the facts before he makes any decisions, 5, He goes and seeks out each of the participants and gets their perspective-not just wait for the depositions, He keeps them involved, He has good personal rapport with the people there at the county. 6. He works very well independently, He kept me informed of the status of the litigation, He coordinates well with the commissioners and understands the nolitical end ofthings, 1. He wasn't a manager when 1 knew. He is an effective leader. 2, 1 consider him to be an effective leader. He. isn't III a managerial position, so 1 can't really speak to that. 3. Very accommodating in the sense that he understands and appreciates the daily grind, He doesn't make unnecessary demands. However, he does expect a team approach and quality work in the process. He gets quality work from his employees, He definitely is an effective leader- He is the lawyer' lawyer in this office. 4. He is most definitely an effective leader because of his extreme professionalism, His management style is -he works well with everyone in the office, He clearly communicates what he needs and what he expects, He expects no less. 5. Yes he is an effective leader- Those who work for him never have any complaints. 6, 1 would say he is an effective leader although he was not in a management position. His working relationship with staff was very good, WATERS CONSULTING GROUP, INC. PAGE. 2 THIS DOCUl\fENT IS COPYRIGHl1::0 AND PROPRlETARy-INFORMAT10N THIS DUCCr-.U~NT OR ANY PORTIONS OF nus DOCUI\ffiNT IS NOTTO BE REPRODUCED FOR .'\NY REASON \':ITHOUT THE WRITTEN CONSENT OF \1i:CG, INC .- 6. How would you rate his communications skills, both oral and written? Do you consider him to be a good listener? Why or why not? 7. Tell me how well he manages relationships with professional colleagues outside his department 8. What type of image does he present to the community? - WATERS CONSULTING GROUP, INC. COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES JOHN TURNER 1. Very high rating of his communication skills. Both oral and written. Yes, he is a good listener. 2. Excellent oral and written skills. He is defmitely a good listener. He has to be to be effective as a litigator. He has to be able to present information to the judge and jury to get them to act in the best manner. 3. I think he is a good listener-my previous answer about listening to employees would be the example. He is very clear and direct Written skills are clear and concise. His pleadings are excellent He can synthesize the issue so that elected officials can understand the legal issues. 4. His oral and written skills are superb. He is an excellent listener; he has to be to get all of the facts. He stops what he is doing to listen to you and deliberates before giving an answer. 5. He is very efficient in the way he communicates with people- he doesn't waste your time. He is great at writing and is a good listener. 6. He has good communication skills. He wrote legal briefs and pleadings and did very well. He was a good listener. He was onen to other points of view. 1. He does a great job managing relationships with his colleagues. He is a social person. He has a wide circle of friends socially and professionally. 2. He does an excellent job working with everyone in the bar- including all of our adversaries. He maintains a good professional relationship with everyone. 3. He has to keep department heads appraised of the status of litigation-not only on timelines, but also our ability to prevail. He gets along well with the directors and they respect him. 4. Excellent; he has a top notch reputation. He has high standard and ethics. In this office there is no one who would hesitate to go to him with a question. Everyone respects him and respects his wealth of knowledge. 5. The county employees all have respect for him. All the attorneys 1 know respect him and get along with him. 6. Part of the job of litigation was working with other county personnel. He did that very well. I never had any complaints from anv of the county staff about him. 1. He is a good man; competent and professional. 2. Polished; professional; knowledgeable. 3. He is a professional and he is a lawyer. He dresses coat and tie every day. The bar association all knows him and knows what he does. 4. Extremely ethical, professional, above board. He has an excellent reputation. He is highly regarded. 5. Very professional. Very diligent about his approach to his job. 6. Good. He presented himselfverv well. Well dressed and well PAGE.3 TIllS DOCUt\1ENT IS COPYRlGJ ffED AND PROPRIET;\RY INFORI\1A.TION TI-[[S DOCU...fENT OR ANY PORTIONS OF Tl IIS DOCL:t.fENT IS NOT TO BE REPRODUCED FOR ANY REASON \\TfHOl.:T 'HIE 'J;'RlTfEN CONSENT OF V;:CG, INC. - COLLIER COUNTY, FLORIDA EXECUTIVE RECRUITMENT FOR THE POSITION OF COUNTY ATTORNEY CONFIDENTIAL REFERENCES JOHN TURNER sooken. Good oresentation. 9. What is the most significant contribution that 1. He did a lot of the federal jury trials. His knowledge and he has made to the organization? experience in federal court was probably the most significant. 2. It is significant that he has carried out his responsibilities well and has helped to build and maintain rapport between the attorney's office and the other county employees. 3. The level of professionalism that he brings to the office. Also, the mentoring he does with the younger members of the staff. 4. His excellent ability to try cases. He is a superb litigation attorney and a superb attorney. Which I think equals excellent problem solving skills. 5. 1 hear results of his cases and I know he has done well; very capable. 6. He was very successful in the litigation that he handled. He was one of the main trial attornevs. 10. In your opinion, why is he looking to make a 1. I don't know. Wants to move up career wise. move at this time? 2. 1 think he sees this position as a natural progression and growth of his career and abilities. 3. 1 think John wants to put a cap of a long legal career by serving as the head of the office. 4. He loves challenges. 1 see it as a way for him to use all of the - skills he has acquired over his career to manage a county attorney's office. 5. 1 don't know. He really enjoys public law. 6. 1 don't know. He is orobablv looking for a new challenge. 11. Are you aware of anything in his background 1. No. that could be a problem to a prospective 2. No. employer if it became public knowledge? 3. No. 4. Not a thing. 5. Nothing at aIL 6. No. 12. Would you work with him again in the future? 1. Yes. 2. Absolutely. 3. Sure. 4. Absolutely. 5. Absolutely. 6. Yes. - WATERS CONSULTING GROUP, INC. PAGE. 4 nns DOCU!\fr:NT IS COPYlUGIITED AND PROPRIETARY INFOR}.{All0N. TJ us DOCU!viENT OR ANY PORTIONS OF TIns DOCU!\iENT lS NOT TO BE REPRODCC..ED FOR ,\-"'Iy REi\SON \'\TfHOlT THE \'\.'RITTEN CONSENT OF WCG, INC Illf K QUESTIONNAIRE FOR COUNTY ATTORNEY APPLICANTS (Please attach additional pages as needed to respond fully to questions.) DATE: March 31,2008 Florida Bar No.: 869570 GENERAL: Soc. Sec. No.: 1. Name: John S. Turner E-mail: Date Admitted to Practice in Florida: See Resume 2. State title currently held; including professional position and any public or judicial office. See Resume 3. Business address: See Resume City: State: ZIP: Telephone: FAX: 4. Residential address: N/A City: State: ZIP: Since: Telephone: 5. Place of birth: See Resume Date of birth: Age: 6. Length of residence in State of Florida: See Resume 7. Military Service (including Reserves) See Resume Service Branch Highest Rank Dates Rank at time of discharge: Type of Discharge: Award or citations: 8. Within the last five years, have you ever been formally reprimanded, demoted, disciplined, cautioned, placed on probation, suspended or terminated by an employer? If so, please state the circumstances under which such action was~taken, the date(s) such action was taken, the name(s) of any persons who took such action, and the background and resolution of such action. No (_,cJ--____ ~ 9. Have any of your current or former co-workers, subordinates, supervisors, customers or clients ever filed a formal complaint or accusation of misconduct against you with any regulatory or investigatory agency, or with your employer? If so, please state the date( s) of such formal accusation( s), and the specific formal accusation( s) made, and the background and resolution of such action(s). no 10. Have you failed to meet any deadline imposed by court order or received notice that you have not complied with substantive requirements of any business or contractual arrangement? _______ If so, please explain in full. no 11. Are you currently the subject of an investigation which could result in civil, administrative or criminal action against you? If yes, please state the nature of the investigation, the agency conducting the investigation and the expected completion date of the investigation. no NON- LEGAL EMPLOYMENT: 12. List all previous full-time non-legal jobs or positions held since 21 in chronological order and briefly describe them. Date Position Employer Address (,d-_... QJJ see resume PROFESSIONAL ADMISSIONS: 13. List all courts (including state bar admissions) and administrative bodies having special admission requirements to which you are presently admitted to practice, giving the dates of admission. Court or Administrative Body Date of Admission see resume LAW PRACTICE: 14. State the names, dates and addresses for all firms with which you have been associated in practice, governmental agencies or private business organizations by which you have been employed, periods you have practiced as a sole practitioner, law clerkships and other prior employment: Position Name of Firm Address Dates see resume 15. Provide a detailed description of how the State Growth Management Law (SB-360) impacts local government with specific emphasis on Home Rule Rights, concurrency, growth management and budgeting for capital improvements. Attach at least one example of legal writing which you personally wrote. If you have not personally written any legal documents recently, you may attach writing for which you had substantial responsibility. Please describe your degree of involvement in preparing the writing you attach. ')c}-n__ CB Unknown. Writing exemplars will be provided on April 9. 16. Have you ever held or been a candidate for any public office? If so, state the office, location and dates of service or candidacy. see resume 17. Has a complaint about you ever been made to the Ethics Commission, or any Bar Association? If so, give date, describe complaint and its resolution. No 18. Have you ever been held in contempt? If so, for each instance state name approximate date and circumstances. no BUSINESS INVOLVEMENT: 19. If you are now an officer, director or otherwise engaged in the management of any business enterprise, state the name of such enterprise, the nature of the business, the nature of your duties, and whether you intend to resign such position immediately upon your appointment or election to '-,.".:;,1--.____8 judicial office. See resume 20. Since being admitted to the Bar, have you ever been engaged in any occupation, business or profession other than the practice of law? If so, give details, including dates. See resume. 21. State whether during the past five years you have received any fees or compensation of any kind, other than for legal services rendered, from any business enterprise, institution, organization, or association of any kind. If so, identify the source of such compensation, the nature of the business enterprise, institution, organization or association involved and the dates such compensation was paid and the amounts. No POSSIBLE BIAS OR PREJUDICE: 22. The Commission is interested in knowing if there are certain types of cases, groups of entities, or extended relationships or associations which could present a possible conflict of interest for the position you seek. Please list all types or classifications of cases or litigants for which you as a general proposition believe it would be difficult for you to pursue as the county attorney. Indicate the reason for each situation as to why you believe you might be in conflict. none 23. Have you ever filed a personal petition in bankruptcy or has a petition in bankruptcy been filed against you? no MISCELLANEOUS: 24. Have you ever been convicted for violation of any federal, state, county or municipal law, regulation or ordinance? If so, give details. Do not ()-c:J---.... B include traffic violations for which a fine of $100 or less was imposed unless it also included a jail sentence. no 25. Have you ever been sued by a client, or anyone? If SOl give particulars including name of client, date suit filedl court, case number and disposition. no 26. Have you or your professional liability insurance carrier ever settled a claim against you for professional malpractice? If so, give particulars, including the amounts involved. no 27. Have you ever been a party to a lawsuit either as a plaintiff or as a defendant? If SOl please supply style, case number, nature of the lawsuit, whether you were Plaintiff or Defendant and its disposition. see resume 28. Has there ever been a finding of probable cause or other citation issued against you or are you presently under investigation for a breach of ethics or unprofessional conduct by any court, administrative agencYI bar association, or other professional group. If SOl give the particulars. No (,c1----.- B 29. Have you filed all past tax returns as required by federal, state, local and other government authorities? Yes: X No: If no, explain. Has a tax lien ever been file against you? Yes: explain. No If ye s , PROFESSIONAL AND OTHER ACTIVITIES: 30. List all bar associations and professional societies of which you are a member and give the titles and dates of any office which you may have held in such groups and committees to which you belonged. See resume 31. List, in a fully identifiable fashion, all organizations, other than those identified in response to question No. 45, of which you have been a member since graduating from law school, including the titles and dates of any offices which you have held in each such organization. See resume 32. Describe any pro bono legal work you have done. Give dates. see resume SUPPLEMENTAL INFORMATION: c. ,cJ--- -* '~ 33. Have you attended any continuing legal education programs during the past five years? If so, in what substantive areas? See resume 34. Have you taught any courses on law or lectured at bar association conferences, law school forums, or continuing legal education programs? If so, in what substantive areas? See resume 35. Describe any additional education or other experience you have which could assist you in holding the office of county attorney. See resume 36. Explain the particular potential contribution you believe your selection would bring to this position. See questionnaire and resume 37. Give any other information you feel would be helpful to the Commission in evaluating your application. Respectfully, this questionnaire is overly burdensome and unnecessary. It has been crafted from the judicial applicants' questionnaire, and I can't see it being much benefit to the Bee. If you don't know the candidates background in detail by this time, then something is wrong. Moreover, due to my trial schedule for March and April, I don't have the extra hours available to answer the questions. c,c:J-- __ ~ CERTIFICATE I have read the foregoing questions carefully and have answered them truthfully, fully and completely. I hereby waive notice by and authorize The Florida Bar or any of its committees, educational and other institutions, the Judicial Qualifications Commission, the Florida Board of Bar Examiners or any judicial or professional disciplinary or supervisory body or commission, any references furnished by me, employers, business and professional associates, all governmental agencies and instrumentalities and all consumer and credit reporting agencies to release to the respective Judicial Nominating Commission and Office of the Governor any information, files, records or credit reports requested by the commission in connection with any consideration of me as possible nominee for appointment to judicial office. Information relating to any Florida Bar disciplinary proceedings is to be made available in accordance with Rule 3-7.1(q) (2), Rules Regulating The Florida Bar. I recognize and agree that, pursuant to the Florida Constitution and the Uniform Rules of this commission, the contents of this questionnaire and other information received from or concerning me, and all interviews and proceedings of the commission, except for deliberations by the commission, shall be open to the public. day of 20 Dated this Signature Pursuant to Section 119.07 (3) (i) (1), F.S., . The home addresses and telephone numbers of justices of the Supreme Court, district court of appeal judges, circuit court judges, and county court judges; the home addresses, telephone numbers, and places of employment of the spouses and children of justices and judges; and the names and locations of schools and day care facilities attended by the children of justices and judges are exempt from the provisions of subsection (1), dealing with public records. ,,<:::::J--__ .~ APPLICATION DATA RECORD The application shall include a separate page asking applicants to identify their race, ethnicity and gender. Completion of this page shall be optional, and the page shall include an explanation that the information is requested for data collection purposes in order to assess and promote diversity. (Please Type or Print) Date: JNC Submitting To: Name (please print) : Current Occupation: Telephone Number: Attorney No. Gender (check one) Male Female Ethnic Origin (check one) White, non Hispanic Hispanic Black ~~ American Indian/Alaskan Native Asian/Pacific Islander County of Residence: ,_,-cJ---_ ,~.