CITY OF LAKE WORTH
CLOSED DOOR ATTORNEY-CLIENT SESSION
IN RE: GREATER BAY GROUP, LLC.
vs.
CITY OF LAKE WORTH
Tuesday, October 11, 2011
2:33 - 4:08 p.m.
7 North Dixie Highway
Lake Worth, Florida 33460
Reported by:
Kathleen Lusz, RPR
Job#341670
IN ATTENDANCE:
Rachel Waterman, Mayor
Suzanne Mulvehill, Vice Mayor
Jo-Ann Golden, Commissioner
Scott Maxwell, Commissioner
Christopher McVoy, Commissioner
Susan Stanton, City Manager
Elaine Humphreys, City Attorney
Brian Joslyn, Esquire
(The following proceeding was had:)
MS. LOPEZ: Mayor Waterman?
MAYOR WATERMAN: Here.
MS. LOPEZ: Vice Mayor Suzanne Mulvehill?
VICE MAYOR MULVEHILL: Here.
MS. LOPEZ: Commissioner Scott Maxwell?
COMMISSIONER MAXWELL: Here.
MS. LOPEZ: Commissioner Christopher McVoy?
COMMISSIONER MCVOY: Here.
MS. LOPEZ: Commissioner Jo-Ann Golden?
COMMISSIONER GOLDEN: Here.
MAYOR WATERMAN: Okay. We have a city attorney announcement?
MS. HUMPHREYS: Yes. Pursuant to Section 286 011(8) of the Florida Statutes I desire advice concerning pending litigation in the case of Greater Bay Group, LLC, versus The City of Lake Worth.
MAYOR WATERMAN: Okay. So pursuant to that same Florida Statute cite, we are going to commence a closed door attorney-client session for the purpose of discussing pending litigation regarding the case of Greater Bay Group, LLC, versus The City of Lake Worth. Shut the door at this point?
MS. LOPEZ: No.
MAYOR WATERMAN: No?
MS. LOPEZ: Then you have to state the estimated length.
MAYOR WATERMAN: Oh. The estimated length of this session is one-and-a-half hours. And the following individuals will be in attendance: Myself; the vice mayor; all city commissioners; city manager in her part, the designee; the city attorney, Brian Joslyn, Esquire, and our court reporter. And your name is?
COURT REPORTER: Kathy Lusz.
MAYOR WATERMAN: Thank you. Okay. So we have to recess now?
MS. LOPEZ: If you recess the special --
MAYOR WATERMAN: Recess the special meeting.
MS. LOPEZ: Yes. To go into the closed door.
MAYOR WATERMAN: Okay. So at this time I'll recess the special meeting. And I would like to reconvene a closed door attorney-client session.
MS. LOPEZ: When you reconvene, come get me. I'll come back.
MAYOR WATERMAN: Okay. 2:35. Thank you.
(Ms. Lopez exited the room.)
[FORWARD TO PAGE 75, LINE 7]
COMMISSIONER MCVOY: But anything that we've heard or discussed here today --
MR. JOSLYN: Correct.
COMMISSIONER MCVOY: -- is strictly verboten?
MS. HUMPHREYS: Yes. It is within the walls of this room at this time.
MAYOR WATERMAN: Verboten.
MS. HUMPHREYS: And you can talk to Susan or me about it no problem, but not each other or --
COMMISSIONER MCVOY: Or anybody else.
MS. HUMPHREYS: -- or anybody else. You know if somebody asks, one of your constituents asks a question, just say it's in pending litigation and you cannot discuss it under advice of counsel.
MR. JOSLYN: I would tell you this, I mean I'm not sitting here telling you I don't see that they -- I don't think -- I wouldn't be here telling you you have a good case if I didn't think you have a good case. Okay? I would be telling you something completely different, because it's not my job to blow sunshine at anybody. It's my job to explain what the probabilities are, how you can get there and take your goals into account, and tell you what your chance is.
MS. HUMPHREYS: Do you have a number probability that you see here, Brian, or is it really that fuzzy?
MR. JOSLYN: I think we're -- I really think we're around 60 percent probability of success on this. And the Perry Mason slam dunk case I would put at 80 percent. So it's --
COMMISSIONER MCVOY: It's getting up there.
MR. JOSLYN: I'd rather have our case by far than have their case.
MAYOR WATERMAN: But with all due respect, you understand our current condition is we just lost two big cases that we were told there was no problem.
MR. JOSLYN: I'm not telling you there is no problem.
MAYOR WATERMAN: I know you weren't the lawyer on those cases. But, you know, we as commissioners our somewhat brought in, you know, further along in the process. Unlike the city manager, I have not read through every single page of those books. So we have to sort of take --
MR. JOSLYN: Sure.
MAYOR WATERMAN: -- take the information we are getting and --
MR. JOSLYN: Yeah. I'm not telling you that this is a slam drunk. Okay. I'm not telling you that there is no way you are not going to lose.
You're right, or whoever it was that said it, if you get a jury of people who have had bad experiences with Lake Worth or bad experiences with their towns, you could have a problem. There is no doubt. I think we do everything we can to minimize it and certainly know how to do those things. But, yeah, you could get a person on that jury that slips through the cracks or something.
MAYOR WATERMAN: Well, it's been in the paper. We've had two very visible cases in the paper within the last months of -- you know, that really made the city look bad and poorly prepared and arbitrary.
COMMISSIONER MCVOY: Is it fair to ask – Let's say all of that is accurate and that maybe the 60 is optimistic, and it's really 50.
MR. JOSLYN: Uh-huh.
COMMISSIONER MCVOY: Does any of that influence the number that we should go into the mediation with?
COMMISSIONER GOLDEN: No.
MR. JOSLYN: Not at this point for me, no.
COMMISSIONER GOLDEN: You have not seen our bank account.
MR. JOSLYN: Assuming you had the money, I wouldn't be recommending anything more than the nuisance value at this point. Okay?
VICE MAYOR MULVEHILL: Okay.
COMMISSIONER MAXWELL: If I might, I understand the concept of the nuisance value, but this has been dragging on for how long?
MAYOR WATERMAN: Two years.
MR. JOSLYN: Two years.
COMMISSIONER MAXWELL: Plus whatever he thinks he's out of pocket leading up to the suit. I don't think -- If it were me, just playing devil's advocate, see you in court offering $300,000.
MAYOR WATERMAN: That's right. That is going to be the answer. That is going to be the answer.
MR. JOSLYN: We know that.
MAYOR WATERMAN: That's why it's not a good faith value.
MR. JOSLYN: That's why the mediation is occurring early, and we're both certain -- I shouldn't say certain. I'm pretty darn sure that we're not going to settle. I mean I've seen stranger things happen, but not on 40,000 -- or 40 million, 300,000 split.
MAYOR WATERMAN: Okay. Just for purposes of discussion: If the number were a million, do you think they would settle?
MR. JOSLYN: Maybe. Maybe. It's a round number.
COMMISSIONER MAXWELL: It is a round number.
MS. HUMPHREYS: It's a long number.
VICE MAYOR MULVEHILL: They take their chance, because that number could go down I mean in the next time around. But we don't have a million. The problem is we don't have that kind of money.
COMMISSIONER MAXWELL: And can you call it a nuisance --
MAYOR WATERMAN: Well, you're also not calculating the expense. We have 300,000 in our legal defense for this case, but we're also not calculating the money in Elaine's salary and in Susan's salary that's being spent on this case, not to mention the 61 cents an hour for us sitting here.
MS. HUMPHREYS: And also the city clerk's office has had to come up with all the departments to help put all the documents together for the discovery, not just for our side and Brian's office but also to respond to the other side.
MAYOR WATERMAN: So we're really looking at a half a million in expenses.
MR. JOSLYN: A 2,000 page index.
COMMISSIONER MCVOY: I mean I understand somewhat the logic of saying, well, should we go up in our mediation our proposal on the risk that we might go to trial and we might lose. But there is also a counterforce in this it seems to me is if it's true that these guys basically never had any intention of building much of anything and were setting the whole thing up as a money-making scheme, do we not have a responsibility as commissioners and as city officials or city staff to our residents? We're giving away taxpayer money, a million dollars, because somebody is harassing us.
If it is pretty clear that, you know, their track record is pretty poor, and we breach -- we didn't breach the contract, we canceled the contract for pretty legitimate reasons, it seems to me hard to argue that we should from a position of fear say here is a million dollars, go away, don't bother us. And by the way, it's not our money. It's our taxpayer money.
MAYOR WATERMAN: Well, I need to say I'm not coming from a position of fear. I'm coming from a position of, you know –
COMMISSIONER GOLDEN: Pragmatism.
MAYOR WATERMAN: Pragmatism so...
COMMISSIONER MCVOY: Have another jelly bean.
MR. JOSLYN: I think I have to go. But I will say this to your comment, Mr. McVoy. Establishing intent of the jury's mind, if that's the proper legal process, good point. The other side of that is they could also establish the intent on the city to have scuttled the project in the first place.
And that's really what we are talking about here. It's a grey area. It could go either way. And I'm scared.
MAYOR WATERMAN: Regardless of what the truth is.
MR. JOSLYN: Oh, sure.
COMMISSIONER MCVOY: They certainly will go that route.
MR. JOSLYN: It doesn't have anything to do with truth.
MAYOR WATERMAN: Nothing to do with truth.
COMMISSIONER MCVOY: Right. Right.
MR. JOSLYN: Okay. It has to do with what you can prove in court.
MAYOR WATERMAN: That's right. And we are not Boca.
COMMISSIONER MCVOY: And here would be a legal opinion question for you. There's no question that we had a commissioner who ran on the platform that related to the beach. Exactly what the platform was there might be some interpretation but save the building or whatever. But how persuasively is somebody going to be able to argue that the fact that you had a commissioner who chose to run and that was part of their platform that that constituted intent on the part of the whole city to do whatever? It seems to me that's --
MR. JOSLYN: I don't think it does.
COMMISSIONER MCVOY: -- a strong argument.
MR. JOSLYN: Look, it's the same thing as, you know, the congress passes the health care reform in one year, and then two years later you've got a new slate of people in and the trend reverses. I mean it's no different than that.
COMMISSIONER MCVOY: Right. Right. And you can't say that that was intent over --
MR. JOSLYN: Right.
COMMISSIONER MCVOY: -- a period of five years of some, you know, organized plan.
MR. JOSLYN: Right. We also we think have a argument to make that when people -- when commissioners or governmental people sit as legislators to make a legislative decision, which is sort of what you were doing, that their intent isn't relevant to any issue of the case. So really the deal here is was the city in default of the contract on December 4th. If not, you get to terminate the contract. So the rest of it is all --
MS. HUMPHREYS: Smoke and mirrors.
MR. JOSLYN: The rest of the stuff we're talking about is to counteract their arguments. But it really does come down to something that simple.
But I mean if you have 300,000, 300,000. If you have 500,000, I would say the limit should be $500,000. If you had a million bucks, I might recommend a million dollars just for the certainty and peace of mind that comes with no appeals down the road, no judgments, nobody trying to levy on your firetrucks or whatever I mean, you know, if they win the case. There is a premium I think to peace of mind in a case like that.
But given that you don't have that, the maximum authority I think you can give the city manager is what should be given, because we don't really see a huge chance of settling the case.
MS. HUMPHREYS: I guess the city manager -- You know, I know I have $300,000 in my budget to pay for the litigation. And, you know, subtracting off what Brian has done to date from that. So I don't know what else can be found in other funds.
MS. STANTON: If we have to find it, we find it but --
COMMISSIONER MCVOY: At this point it's going to be squeezing it out of something else. It's not that there is money just laying around.
MS. STANTON: I don't think the timing is right to put a ton of money on the table at this point anyway.
COMMISSIONER GOLDEN: Right. You can always do it later.
MR. JOSLYN: You can always do it later.
MAYOR WATERMAN: Okay.
MS. STANTON: We come to mediation. We have a nuisance value of $300,000.
MR. JOSLYN: Well, he's the one who wanted to push for an early mediation as opposed to one later --
VICE MAYOR MULVEHILL: Okay.
MR. JOSLYN: -- where we know all the story from all the witnesses. I think there is a peril to that, and the peril is I think at this point that he's going to get a low number.
MS. STANTON: And I've settled cases. After this election clearly think, oh, gosh, it's time to settle.
COMMISSIONER GOLDEN: The day before.
MS. STANTON: So there is plenty of time to ultimately do what the mayor is suggesting if we get to that point.
VICE MAYOR MULVEHILL: Okay.
MS. STANTON: We're not there yet. We're not there yet.
VICE MAYOR MULVEHILL: So 300,000?
MR. JOSLYN: It's a very good point to start.
VICE MAYOR MULVEHILL: Okay.
COMMISSIONER GOLDEN: And, Brian, make yourself feel better before that happens.
MR. JOSLYN: Oh, no, I'll be fine.
MS. STANTON: Because of how important this thing is, I am spending a lot of time with them. I'm reading those books. I'm trying to --
MR. JOSLYN: Believe me, what you need to know 12 volumes of this, I think I'll go with War and Peace.
MS. HUMPHREYS: It might be shorter.
MS. STANTON: It's an important case.
MR. JOSLYN: No, there is no doubt about it. It is. And we are taking it as seriously as it deserves to be taken that's for sure. All right.
COMMISSIONER MCVOY: Thank you.
COMMISSIONER GOLDEN: Thank you.
MR. JOSLYN: Nice to meet those of you I have never met, those of you I have sued and never met.
VICE MAYOR MULVEHILL: Did we take consensus? I don't think we did.
MAYOR WATERMAN: I think the consensus was 300,000.
VICE MAYOR MULVEHILL: Okay.
MAYOR WATERMAN: Is that a consensus with everybody?
VICE MAYOR MULVEHILL: Everybody --
MAYOR WATERMAN: Was it 300,000 minus what's been spent to date? Or was it 300,000?
COMMISSIONER MCVOY: 300.
COMMISSIONER MAXWELL: 300.
COMMISSIONER GOLDEN: 300.
VICE MAYOR MULVEHILL: 300.
MAYOR WATERMAN: And I have to reconvene the special meeting.
MS. HUMPHREYS: Yes. Let me get Mary to call Pam back in to close the meeting.
COMMISSIONER MCVOY: We are now at step five.
MAYOR WATERMAN: We are about to jump into step five, yeah.
(A short recess was had in the proceedings, and Ms. Lopez entered the room.)
MAYOR WATERMAN: I'd like to reconvene the special meeting.
MS. LOPEZ: Okay.
MAYOR WATERMAN: Okay.
MS. LOPEZ: At 4:08 p.m.
MAYOR WATERMAN: All right. And now I take a motion to adjourn.
COMMISSIONER MCVOY: So moved.
COMMISSIONER GOLDEN: Second.
MS. LOPEZ: I'm sorry. I didn't hear who made the motion and second.
MAYOR WATERMAN: Commissioner McVoy.
MS. LOPEZ: Thank you.
MAYOR WATERMAN: And seconded by Commissioner Golden. And anybody not in favor? Okay. All in favor.
VICE MAYOR MULVEHILL: Aye.
COMMISSIONER MAXWELL: Aye.
(The proceeding was adjourned at 4:08 p.m.)
![Dr. W. H. Cotton’s ode: “Oh, My Lake Worth, Florida!” [circa 1920].](https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjUL75cv6zJQFjX15ojOIIz9AjnbqH4asHJTYSDhnGnYr7rJZRha1NcNTirj2xPcId158vkz5Hw-wXgOfrlztj8Zr8jLFFCfuEN6PyV44ZlpMRmJ68xbtFL9vzxNiG7xDs_HJvm/s1600/LakeWorthPioneers.JPG)
