IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR MANATEE COUNTY, FLORIDA ROBERT CHANDLER, Plaintiff, 1 v. CASE NO.: BOARD OF TRUSTEES OF STATE COLLEGE OF FLORIDA, re: N, fl Defendant. 573? 35'" VERIFIED EMERGENCY MOTION FOR TEMPORARY INJUNCTIGN :13 Plaintiff, ROBERT CHANDLER, through counsel, and pursuant to Rule . an Civ. P., and Fla. Stat., moves for a temporary injunction against %eflei'r"idant, BOARD OF TRUSTEES OF STATE COLLEGE OF FLORIDA, and in support would show: Introduction The Board of Trustees of State College of Florida delegated the authority to negotiate an out-of-the-Sunshine severance agreement with its President, Dr. Lars Hafner, which provides benefits far greater than allowed by law. The board is scheduled to vote on the negotiated severance package at a public meeting on Tuesday, October 30th, 2012, necessitating emergency relief from the Court. FACTS 1. Plaintiff is a citizen within the State of Florida within the meaning of 286.011, Florida Statutes. The statute vindicates a public policy and Plaintiffs interest lies in protection of Florida's open government laws. No special injury is required for standing to maintain an action under 286.011, Florida Statutes. See Godheim v. City of Tampa, 426 So. 2d 1084, 1088 (Fla. 2d DCA 1933). I I 4 .v2. On October 23, 2012, the Board held a special meeting ("special meeting") and took two actions. 3. At the beginning of the special meeting, the Chair immediately made a motion to approve the engagement of the Sarasota law firm of Kunkel Miller Hament as special legal counsel for the purpose of advising and representing the board on issues relating to SCF President Dr. Lars A. Hafner's Hafner") employment status. See Exhibit 1, attached hereto. 4. The second motion directed the special legal counsel to explore options with Dr. Hafner's legal representative to obtain a mutually acceptable agreement and report back to the board by Oct. 30, 2012. Id. 5. An audiotape of the special meeting is on the website of the State College and is available 6. During the board meeting, a board member inquired whether this process was "at the request of the Board and Dr. Hafner." In response to that question, Chair Beruff stated that "there have been some mutual discussions." 7. Additionally, reference was made to a settlement "dialogue" between the parties, but the Board was directed not to discuss that matter at an open meeting. 8. The Board approved both motions at the special meeting. 9. Since the special meeting, attorneys from the law firm of Kunkel Miller Hament, including Michael Miller and Nikhil Joshi, have assisted and participated in and conducted negotiations with counsel for President Hafner ("the negotiations"). 10. The Chair of the Board, Carlos Beruff, has directly participated in and conducted those meetings and negotiations. 11. None of the meetings, discussions and exchanges of the individuals participating in and conducting the negotiations has been noticed to the public in advance. 12. Plaintiff has no other adequate remedy at law. 13. By failing to provide the public with reasonable notice, the discussions and negotiations by attorneys from the law firm of Kunkel Miller Hament, including Michael Miller and Nikhil Joshi, and Board Chair Carlos Beruff constitute a de facto delegation of Board authority and violate the Sunshine Law. 14. Plaintiff has a substantial likelihood of success on the merits. 15. Plaintiff has no other adequate remedy at law. 16. The requested injunction serves the public interest. 17. Plaintiff has retained the undersigned to bring this action and has agreed to pay a reasonable attorneys fee for same. 18. Plaintiff has incurred costs for bringing this action. 19. Plaintiff is entitled to an award of attorney fees and costs for bringing this action. WHEREFORE, Plaintiff prays for the following relief: A. A declaration that all unnoticed meetings and discussions of the individuals participating in and conducting the negotiations are void ab initio; B. A declaration that the recommendations of the individuals participating in and conducting the negotiations are void ab initio, and that any reliance by the Board on those recommendations are void ab initio; C. An Order enjoining the Board from expending any public funds in connection with any action taken that is based on the activities and recommendations of the individuals participating in and conducting the negotiations; D. Reasonable costs and attorneys' fees; and E. Such other relief as may be just and proper. MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR TEMPORARY INJUNCTION The Florida Government-In-The-Sunshine law was enacted "to protect the public from 'closed door' politics." Pinellas County School Board v. Suncam, Inc, 829 So. 2d 989, 990 (Fla. 2d DCA 2002). Consequently, "the law must be broadly construed to effect its remedial and protective purpose. The breadth of such right is virtually unfettered." Id. (citation and intemal quotation marks omitted). The statute should be construed "to frustrate all evasive devices." Monroe County v. Pigeon Key Historical Park, Inc, 647 So. 2d 857, 860 (Fla. 3d DCA 1994). The key provision of chapter 286, section 286.01 Fla. Stat., provides that: [a]ll meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings. I. Issuance of Injunction Section Fla. Stat., expressly provides that "[t]he circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state." Under Rule 1.610, Fla. R. Civ. P., a temporary injunction may be granted only if the movant establishes: (1) a likelihood of irreparable harm; (2) unavailability of an adequate legal remedy; (3) a substantial likelihood of succeeding on the merits; and (4) considerations of the public interest which support the entry of the injunction. Masters Freight, Inc. v. Servco, Inc., 915 So. 2d 666 (Fla. 2d DCA 2005). As will be demonstrated below, Plaintiff has met the requirements for entry of the requested injunction. A. Irreparable Injury Violation of the statute itself constitutes irreparable injury. In Times Publishing Co. v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved on other grounds by Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1985), the Second District Court of Appeal construed chapter 286 and stated that the statute "is the equivalent of a legislative declaration that a violation of the statutory mandate constitutes an irreparable public injury." Id. at 476. mere showing that the statute has been or is clearly about to be violated fully satisfies" the requirement of showing irreparable injury. Id. See also Hobbs v. Weinkaufi 940 So. 2d 1151, 1153 (Fla. 2d DCA 2006) (statute which provides remedy of injunction upon violation "requires no additional showing of harm"). Likewise, the Florida Supreme Court expressly approved of the relevant portion of the Second District's decision in Williams in Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974), and stated that the "[m]ere showing that the government in the sunshine law has been violated constitutes an irreparable public injury so that the ordinance is void Ab initio." Id. at 477. See also Silver Express Co. v. District Board of Lower Tribunal Trustees of Miami-Dade Community College, 691 So. 2d 1099, 1100 (Fla. 3d DCA 1997) (action taken at meeting in violation of Sunshine Law are void ab initio). Accordingly, Plaintiff has clearly established irreparable injury. B. No Legal Remedy The Second District, in Williams, determined long ago that there is no legal remedy for violations of chapter 286 other than an injunction. 222 So. 2d at 477 ("there obviously is no adequate remedy at law" for meetings that do not comply with the Sunshine Law). Because the actions of the School Board and the individual defendants were without notice to the public, Plaintiff has no other adequate remedy at law than the entry of the requested injunction to prevent governmental action taken in violation of the Sunshine Law. C. Likelihood of Success Plaintiff has demonstrated a substantial likelihood of success on the merits. The Board violated the Sunshine Law when it delegated the authority to conduct negotiations "to obtain a mutually acceptable agreement" with Dr. Hafner out-of-the-Sunshine. It is undisputed that these negotiations were not noticed to the public. In Sarasota Citizens For Responsible Gov't v. City of Sarasota, 48 So. 3d 755 (Fla. 2010), the Florida Supreme Court laid out the framework for when the Sunshine Law applies in the context of delegated authority by a board. In that case, it was alleged that a committee conducting negotiations with a baseball team for a spring training stadium failed to comply with the Sunshine Law. The Court first noted that: the dispositive question is whether "decision-making authority" has been delegated to the committee. Where the committee has been delegated decision- making authority, the committee's meetings must be open to public scrutiny, regardless of the review procedures eventually used by the traditional governmental body. In contrast, a committee is not subject to the Sunshine Law if the committee has only been delegated informatiomgathering or fact-finding authority and only conducts such activities. Whether, in fact, the delegation is a delegation of decision-making authority or fact-finding authority is evaluated according to the nature of the act performed, not on the make-up of the committee or the proximity of the act to the final decision. Id. at 762-63 (internal citations and quotation marks omitted). The Court ultimately determined that the committee conducting the baseball negotiations was not subject to the Sunshine Law because its individual members "were not delegated any authority to negotiate with the Orioles" and only provided a consulting role to the Deputy County Administrator. Id. at 763. In contrast to Sarasota Citizens, this case involves an express delegation to a law firm "to obtain a mutually acceptable agreement and report back to the board by Oct. 30, 2012." See Exhibit 1. More significant, the Chair of the Board is participating directly in the negotiations with Dr. Hafner's legal representative. Plaintiff relies on two cases that demonstrate the negotiations being conducted here violate the Sunshine Law. The first case is News--Press Publishing Co. v. Carlson, 410 So. 2d 546 (Fla. 2d DCA 1982). In Carlson, a public hospital in Lee County delegated the responsibility to prepare the proposed budget to the president of the hospital and his staff. 410 So. 2d at 547. This delegation resulted in the creation of "an ad hoc committee known as the internal budget committee." Id. The internal budget committee met during a period of several months and created the proposed budget, which was comprised of 4,700 line items which totals about $35 million. Id. The hospital board's finance committee "accepted the budget with very little discussion." Id. The Second District Court of Appeal rejected the hospital's argument that the ad hoc internal budget committee was not subject to the Sunshine law. Id The court explained that: When public officials delegate de facto authority to act on their behalf in the formulation, preparation, and promulgation of plans on which foreseeable action will be taken by those public officials, those delegated that authority stand in the shoes of such public officials insofar as the application of the Government in the Sunshine Law is concerned. Id. at 547-48 (citing IDS Properties, inc. v. Town of Palm Beach, 279 So. 2d 353 (Fla. 4th DCA 1973)). The court also rejected a claim that because the ad hoc internal budget committee was made up of staff members the committee was not subject to the Sunshine law. Id. at 548. Instead of looking at who was on the committee, the court looked to the purpose of the committee. Id. [W]hen a member of the staff ceases to function in his capacity as a member of the staff and is appointed to a committee which is delegated authority normally within the governing body, he loses his identify as staff while operating on that committee and is accordingly included within the Sunshine Law. Id. "In this case, the staff became the public body." Id The second case that supports Plaintiffs position is Wood v. Marston, 442 So. 2d 934 (Fla. 1983), where the Florida Supreme Court reached the same conclusion as the Second District did in Carlson in regards to a search-and-screen committee in a law school. 442 So. 2d at 936-37. The search-and-screen committee was made up of seven members of the law school's faculty, a prominent attorney, and two non-voting members of the law school's student body. Id. at 937. "The purpose of the committee was to solicit and screen applications for the deanship and to submit for faculty approval a list of the best qualified applicants before forwarding the list of [the university's president] for the final selection." Id The Florida Supreme Court explained that "the evaluation process was to take place 'out of the sunshine."' Id. A group of local media entities sued for declaratory and injunctive relief so that the meetings of the search-and-screen committee would be open to the public. Id. The Court rejected the university's position of secrecy. Although the committee in Wood clearly had a fact--gathering purpose, had an equally undisputed decision-making function in screening the applicants." Id. at 938. It did not matter that neither the law school's faculty nor the university's president retained the right to reject the recommendations of the committee. Id. at 939. "Review is a second--hand retrospective reflection upon the decision-making process, not the first-hand observation to which the public is entitled." Id. The court also rejected two other defenses raised by the university. Like in Carlson, the Wood court rejected the notion that the Sunshine law did not apply because of a "remoteness from the decision-making process" argument. Id. at 940-41. "No official act which is in and of itself decision-making can be 'remote' from the decision-making process, regardless of how many decision-making steps go into the ultimate decision." Id at 941. As a result, the search-and-screen committee was subject to the Sunshine law. Additionally, the Court rejected the argument that there was no Sunshine Law violation because the faculty retained the right to approve or disapprove of the committee's recommendations, stating: the power of the faculty as a whole to review and reject the decisions of the committee does not alter the fact that those decisions were made. Those decisions are official acts which must be made in the sunshine. Id. at 939. Two opinions of the Florida Attomey General relating to negotiations are also instructive. In Fla. Att'y Gen. Op. 95-06 (1995), the question was asked whether a delegation to an individual to conduct negotiations on behalf of a hospital board for the purpose of purchasing property had to be in the Sunshine. The Attorney General answered as follows: if the designee is authorized, either formally or informally, to exercise any decision-making authority on behalf of the council, to reject or approve certain contract provisions or terms, that person would be acting on behalf of the council or the board and any such meetings are subject to s. 286.011, Florida Statutes. Id. (Emphasis added). The Attorney General stated: It is only after these negotiations have been concluded that the final purchase price is presented to the city council for approval. In line with the decision in Carlson, these private negotiations from which the public is excluded would violate the provisions of the Government in the Sunshine Law. Id. Similarly, in 1994, the City of Miami asked the Florida Attorney General the following question: Are the meetings of a negotiating team created by resolution of the city commission which reports the results of negotiations to the city commission for final approval subject to the Sunshine law? Fla. Att'y Gen. Op. 94-21 (1994). At the time, Miami was beginning negotiations with the NBA's Miami Heat (the "Heat") to keep the team in town. Id The city commission delegated authority to negotiate with the Heat to a negotiating team that was comprised of "the mayor, a person designated by the city manager, and a person designated by the Miami Sports and Exhibition Authority." Id. Although the city commission did not provide specific parameters for its negotiating team, the city commission retained the right to approve the deal struck with the Heat by the negotiating team. Id. The Attorney General held that Miami's negotiating team was subject to the Sunshine law. Id. "The Florida courts have clearly stated that governmental entities may not carry out decision-making functions outside of the Sunshine law by delegating such authority." Id The opinion discussed the distinction between advisory committees with the authority to make recommendations to the public body with final authority to bind the agency and fact-finding committees charged only with information gathering and reporting. Id. The former is subject to the Sunshine law whereas the latter are not. Id. The Miami negotiating team was an advisory committee subject to the Sunshine law because it was "charged with more than conducting mere fact-finding but rather during negotiations will be participating in the decision--making process by accepting some options while rejecting others for presentment of the final negotiations to the city commission." Id. 10 The instant case falls within the framework discussed in Wood, Carlson, and the two Florida Attorney General opinions. The Board has made a de facto delegation of authority "to obtain a mutually acceptable agreement" with Dr. Hafner to the Chair of the Board and an outside law firm. In so doing, those individuals became subject to the Sunshine law because the Board delegated the responsibility to negotiate a deal with Dr. Hafner. The negotiations are not limited to fact-finding. Rather, decisions rejecting or accepting certain terms have been made which ultimately will be presented to the Board for approval or disapproval. The Sunshine law must be interpreted so that all evasive devices can be frustrated. subordinate group or committee selected by the governmental authority should not feel free to meet in private." Gradison, 296 So. 2d at 476. To allow otherwise would be to eviscerate the Sunshine law and provide a template for future public agencies to use negotiations leading to board consideration of an agreement away from the public - the very people who the Sunshine law is meant to protect. It is every step in the decisional process that is covered by the Sunshine Law, not just the final ceremonial meeting and vote. D. Public Interest If ever there were a case which compels the conclusion that the granting of the requested injunction serves the public interest, violations of chapter 286 clearly present the issue. The statute was specifically enacted to protect the public interest in requiring that the Government operate in the Sunshine. Zorc v. City of Vero Beach, 722 So. 2d 891, 897 (Fla. DCA 1998) (the Sunshine Law was "enacted for the public benefit"). A 1992 amendment to the Florida Constitution "elevated the public's right to government in the sunshine to constitutional proportions." Id. at 896. As stated in Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. DCA 2001): ll Id. at 205. when the Legislature provides for an injunction in these circumstances, it has deliberately made the new public duty and its corresponding right of enforcement an integrated statutory prescription. By specifying that the public interest requires that a certain duty be vindicated in the courts and not primarily within other branches of government, the Legislature is well within its powers. Based on the foregoing, granting the requested injunction serves a public interest of the highest order. Respectfully submitted, LUKE LIROT, Esq. LUKE CHARLES LIROT, P.A. Florida Bar No. 714836 2240 Belleair Rd., Suite 190 Clearwater, FL 33764 727-536-2100 Telephone 727-536-2110 Facsimile 12 VERIFICATION 1, ROBERT CHANDLER, under penalty of perjury, state that I have read the foregoing and that the facts and matters stated herein are true and correct. ROBERT CHANDLER ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF SARASOTA The foregoing instrument was acknowledged before me this Z4 day of October 2012, by ROBERT CHANDLER, who is: Personally known by me OR produced identification .Type of Identification Produced(Signature of Notary Public- State of Florida . . . . 3 4' '4 My commisslon expires: (Stamp Commissioned Name of Notary Public) 7' 9 $51' 13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished via e-mail to Board of Trustees of State College of Florida, c/o Steven Wayne Prouty, proutys@scf.edu, General Counsel, 5840 26th St W., Bradenton, FL 34207-3522 on Octobet 29, 2012. LUKE LIROT, Esq.