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Residents question some of City of Sarasota’s legal fee payments in Big Pass case

By Rachel Brown Hackney

A number of Siesta residents have questioned the fact that the City of Sarasota has paid some of the expenses of the Lido Key Residents Association (LKRA) as that organization has fought the Siesta Key Association (SKA) and Save Our Siesta Sand 2 (SOSS2) in their efforts to prevent the dredging of Big Sarasota Pass.

Siesta businessman Michael Holderness sent an email on July 12 to the city commissioners, noting that, as of May 1, the city had paid $203,829.20 to the St. Petersburg firm of Lewis, Longman & Walker, which has represented the LKRA.

“Under what authority can a City use public funds to pay for the attorneys of private landowners?” Holderness wrote. “I think such expenditures may even be illegal. “Did the City [Commissioners] approve this expenditure? “Please investigate this use of funds.”

This spring, City Attorney Robert Fournier provided an explanation about those payments. He pointed out that the city’s outside counsel in the Big Pass cases — John R. Herin of GrayRobinson in Fort Lauderdale — would have had to have help from other people in his firm if Lewis, Longman & Walker had not handled certain aspects of preparation for the Florida Division of Administrative Hearings (DOAH) proceeding in December 2017, during which the SKA and Save Our Siesta Sand 2 fought the dredging proposal.

In a July 12 email, Fournier provided more details, replying to Holderness’ note to the commissioners.

“[T]he subject expenditure is certainly not ‘illegal,’ he wrote. “The fact that the Lido Key Residents Association (LKRA) is an organization composed of private citizens (all City residents) is not determinative as to the legality of the expense. There are two relevant questions in this regard. The first question is whether the expense was for a proper municipal purpose. I would answer this question affirmatively. The expense was necessary to obtain the permit from the Florida Department of Environmental Protection to nourish Lido Beach — a valuable City asset. The second question is the extent to which the interests of the City of Sarasota and the LKRA coincided or overlapped in the administrative proceedings before the Division of Administrative Hearings (DOAH). The answer to this question is that the interests of the City and the LKRA were identical.”

Fournier continued, “The City Commission did not specifically authorize this expense. But that is not unusual as the City Commission generally acknowledges that the management of litigation and the hiring of outside counsel and expert witnesses are included within the scope of my responsibilities. For example, the City Commission did not specifically approve the hiring of the Gray Robinson firm in the DOAH proceedings. The fact that this expense was not specifically authorized by the City Commission doesn’t mean that it was kept secret. I have sent out updates regarding the legal expenses of the DOAH proceedings, have mentioned this at public meetings and have spoken to Commissioners individually about this particular expense. Also, the City Manager has been aware of this expenditure from the outset as I believe the request for cost sharing was initially communicated to him. Both … City Manager [Tom Barwin] and I were well aware of the commitment to the restoration of Lido Beach on the part of the City Commission and viewed the expenditure as fully consistent with this commitment.”

Fournier added, “I would also note that this was a two way street. The City did not pay all of the attorney fees charged by the Lewis, Longman & Walker firm. The LKRA paid significant fees to that firm as well. The legal work that was paid for by LKRA also benefitted the City.”

Fournier concluded his letter with the following: “Finally, if you don’t know this already, Mr. Holderness was one of the individually named petitioners in one of the petitions filed with DOAH to challenge the issuance of the [FDEP] permit. (SKA was his co-petitioner). To the best of my knowledge, he is not a City resident. But for the unfounded petitions that were filed to challenge the issuance of the permit, the City would not have incurred any legal expenses in defending its right to obtain the permit in the first place.”

The email exchanges apparently caught the eye of Sarasota businessman Martin Hyde, who ran for City Commission in 2017. Hyde routinely appears before the board at its regular meetings, offering his views on a variety of issues. He also has indicated that he plans another run for a seat on the commission.

On Aug. 13, Hyde sent an email to Fournier in response to Fournier’s explanation.

“With all due respect,” Hyde wrote the city attorney, “you are glossing over a few highly relevant points as follows:

“1. The City commission had already authorized the hiring of its own counsel in the matter.

“2. There is NO letter of agreement between the City and this law firm,” he added. Therefore, “I’m at a loss to know how monies can disbursed to them?

“3. Subjectively by implication you are asserting that there is no limit or caveat on legal fees or the manner in which they are agreed to be paid.

“4. Even if the Commission doesn’t want to participate in substantial cash expenditures citizens are certainly entitled to know and this has absolutely been done out of the public domain.

“5. If there is no legal agreement between the City and this law firm does it not present an issue of disclosure to the defense and the court if the City has a de facto shadow counsel?

“6. Can I see the email today as a public record from the City manager to you that agrees [to] the amount of the payments or to whomever it was sent to authorize the disbursement of a check on      behalf of another organization whose name was the only one on the invoice?

“7. Can someone confirm that the City is willing to pay invoices this haphazardly going forward i.e. without a direct bill in the City’s name and sans any direct Commission authorization?

“8. Is there any point at which the sums might be questioned? $200k would seem a significant level to warrant more formal arrangements but maybe I’m old fashioned.”

Finally, Hyde wrote, “I have a few bills I’d like the City to pay too. Can you tell me to whom I should forward them? They’re all for the common interest of the City so perhaps you could use the same system and slush fund as you did for this?”

City attorney provides updated figure for outside counsel’s expenses;

Sarasota City Attorney Robert Fournier has been prompt in responses over the past months when an inquiry was made about the city’s legal fees in the Big Pass cases. Recently, he wrote that the total amount the city has paid GrayRobinson — where its outside counsel practices in Fort Lauderdale — is $415,085.71.

In his previous update to a request, Fournier noted that the total paid to GrayRobinson as of July 10 was $392,595.25.

Fournier added in his Aug. 13 email that the latest sum for GrayRobinson “includes both the administrative proceedings and the Circuit Court case.”

The latter reference is to the SKA’s efforts — as detailed in the 2017 filing of a verified complaint — to show that the city must have approval of Sarasota County to dredge Big Pass, thanks to a county environmental policy in the county’s Comprehensive Plan. On July 24, Circuit Court Judge Andrea McHugh heard arguments relative to the city’s Motion to Dismiss that case. She allowed both sides to file supplemental material.

It could be early September, SKA Vice President Catherine Luckner told members during their Aug. 2 meeting, before McHugh rules on the motion.

In his Aug. 13 email, Fournier also noted, “The other totals are the same and will remain the same.” In that statement, he was referencing payments involving preparation for the DOAH proceeding and expert witnesses, as well as the fees to Lewis, Longman & Walker, which has been representing the Lido Key Residents Association.