Legal Report, September 2015
General Counsel, Trela J. White
Asst. General Counsel, Jennifer G. Ashton
1. Contract Oversight Review; Review Number 2015-R-0001 of the Office of Inspector General, Palm Beach County. Municipal procurement policies
The Office of Inspector General (“OIG”) issued a report on September 18, 2015, that reviewed and analyzed the procurement ordinances, policies, and procedures for all municipalities in Palm Beach County. Municipalities were provided with summaries of the data analyzed and given the opportunity to provide additional information and feedback to ensure the accuracy of the report.
The report stated that the majority of municipalities in Palm Beach County (approximately 80%) have procurement ordinances, policies and procedures addressing the following areas: written guidance; competitive procurement; approval authority by the top administrator; emergency procurements; piggyback contracting; and sole source procurements. Only four of the thirty-eight municipalities in Palm Beach County (11%) have no written procurement guidance. The report concluded that the municipalities with best practices followed the American Bar Association and National Institute for Public Procurement’s best practices and guidance. The OIG intends to issue a subsequent Tips and Trends report to provide more information about this topic. If you would like to review the full report, please visit the OIG’s website at www.pbcgov.com/oig.
2. Informal AGO, August 27, 2015.Public Records—Settlement Demand
The Town of Miami Lakes asked the Florida Attorney General if a settlement demand sent by a plaintiff’s lawyer to the Town is a public record subject to disclosure under Chapter 119, Florida Statutes. The Attorney General concluded that a settlement demand as well as a settlement agreement are public records subject to disclosure even if they contain provisions requiring that the terms remain confidential. These disclosure requirements also apply even if another related case is pending, and there is a concern that disclosure of a settlement amount or other terms would have a detrimental impact on the government’s position in the related case. Many private sector attorneys will demand that the terms of settlement offers and settlement agreements remain confidential. This Informal AGO helps clarify that such confidentiality provisions do not trump the requirements of the public records laws.
3. Jeffrey Marcus Gray vs. Lutheran Social Services of Northeast Florida, Inc. (LSS); Case No. 1D14-5793 of the Florida First District Court of Appeal. Public Records
The full details of this case are contained in the January 2015 Legal Report. Gray is a self-described public activist, who earns part of his livelihood making public records requests on unsuspecting private entities that do business with public agencies and then suing them when they fail to provide the public records to Gray’s satisfaction. Joel Chandler helps Gray carry out his public records requests. In this case, the trial court ruled that the means utilized by Gray to seek records from LSS constituted a flagrant abuse of Chapter 119 and were designed to ambush unsuspecting private entities. The trial court denied Gray’s complaint, which sought attorney’s fees and costs. Gray filed an appeal with the First District Court of Appeal. The briefing is complete and the parties are waiting on an oral argument date. We will continue to monitor this case.
4. Parker et al. v. American Traffic Solutions, Inc. et al.; Case No. 1:14-cv-24010-FAM of the U.S. District Court for the Southern District of Florida. Red Light Cameras
As a result of the outcome of City of Hollywood, etc. v. Eric Arem case, which was reported in the June 2015 Legal Report, class action lawsuits were filed in the U.S. District Court for the Southern District of Florida against eighty-one towns, the Florida Department of Revenue, and private red light camera operators. The lawsuits were consolidated and Plaintiffs seek reimbursement of fines assessed against motorists by red light camera programs. Plaintiffs allege the fines were unlawful. At stake is over $200 million in fines.
Of note, the district court has held that the drivers’ claims of unjust enrichment (quasi-contract) are not barred by sovereign immunity. The local governments filed an appeal to the U.S. Circuit Court of Appeals for the Eleventh Circuit from the order determining that they were not entitled to sovereign immunity protections. The district court, on its own initiative, entered an order staying the proceedings pending resolution of the appeal. The local governments asked the court to reconsider its order, but were denied. The appeal is still pending. We will continue to monitor this case.
5. Town of Gulf Stream, et al. vs. Palm Beach County, et al.; Case No. 4D15-1753 of the Florida Fourth District Court of Appeal. Inspector General Funding Lawsuit
Fourteen municipalities sued Palm Beach County (the County) challenging the method of funding for the Office of Inspector General (the OIG Program). The current funding method authorizes the Board of County Commissioners to set an amount the municipalities must pay for the OIG Program and to bill municipalities for that amount. The municipalities contend that the current funding method is an unlawful tax and invades municipal home rule budgetary authority.
On March 16, 2015, the trial court entered a Final Judgment in favor of Palm Beach County. The case has been appealed. The municipalities’ initial brief is due on October 14, 2015. The Florida League of Cities considered the merits of the municipalities’ case and petitioned the appellate court for amicus curiae (friend of the court) status. The Florida League’s motion for amicus curiae status on behalf of the municipalities was granted in late-August. We will continue to monitor this case.