Thursday, April 8, 2010


Sunshine law used as weapon

LAWSUITS: Groups seeking to overturn votes have taken their fights to court

By Todd Ruger

Published: Thursday, April 8, 2010 at 1:00 a.m.
Last Modified: Wednesday, April 7, 2010 at 9:46 p.m.
SARASOTA COUNTY - A new strategy has emerged for civic groups on the losing end of government votes: Use the state's open records laws to sue the agency and try to block or overturn the decisions.

And if a violation is found, taxpayers can be forced to pick up the legal fees.
At the center of the strategy is a small Sarasota law firm led by attorney Andrea Mogensen, who was hired to use Florida's Sunshine Law to challenge positions on two of Sarasota County's biggest ongoing issues -- a $31 million project to return spring training baseball to Sarasota, and a referendum to help fund the Sarasota County schools.
After winning an open government case against city officials in Venice last year, and winning $750,000 in legal fees, Mogensen's firm has been enlisted to help opponents of the spring training project and the school referendum.
But the civic groups here are pushing for more than access to government meetings and records. The suits seek instead to undo the actions of elected officials, and have been filed in a way that aims to disrupt those actions.
Legal experts say the latest lawsuit from the Venice Taxpayers League is unlikely to accomplish that group's goal of having a judge throw out the results of the school tax referendum, which passed by a large margin on March 16.
Richard A. Harrison, a Tampa attorney who specializes in government law, called the legal theory behind the lawsuit -- that unnoticed meetings from an advisory committee could negate the results of a referendum -- "an enormous legal stretch."
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Mogensen is undefeated so far in Sunshine Law battles, and is confident the law is on her side. She took the school case with the taxpayers' league only needing to cover the $300 filing fee.
Yet all taxpayers could be forced to pay any legal fees for the school fight -- up to $30,000 in that case -- because the group couches the issue as a violation of the state's open meetings laws. Taxpayers could also cover some of the the legal fees for the lawsuit against Sarsota County for the baseball deal. Sarasota Citizens for Responsible Government has already demanded the county pay the $50,000 legal bill.
Mogensen is one of the few attorneys willing to take Sunshine Law cases without an upfront fee, because the law entitles her to collect attorney fees from a government body that is proven to break the Sunshine Law, willingly or by mistake.
Mogensen said she does not care what political agenda a citizen or civic group might have, only whether she can prove the government did not follow the Sunshine law, which ensures citizens can oversee government actions.
"We are concerned with helping individuals protect their constitutional rights, and if I get paid for it, good for me," Mogensen said. "This community is waking up and starting to realize they can vindicate their constitutional rights."
The targets of her lawsuits see it a different way.
Sarasota School Board Attorney Art Hardy says he does not see a connection between any Sunshine Law violation of an advisory committee and the School Board's later decision, made in a properly held meeting, to hold a referendum on the school tax.
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"The Sunshine Law is a law of procedure, how do you do things," Hardy said. "It seems like it's being used to drive policy, as opposed to procedure."
Lawyer Daniel DeLeo, who is on the volunteer school board advisory committee that was meeting without publicly noticing the meetings, said Mogensen and her paralegal, Michael Barfield, are stirring up litigation for profit.
"This tendency for people to sue if they lose a public debate needs to be shouted down," De Leo said. "This lawsuit is a junk lawsuit."
Mogensen says the focus should be on how the government did not follow the law, not on the citizens fighting to hold them accountable for it.
Mogensen's victory last year in a Sunshine Law fight against the Venice City Council has awakened citizens to the idea they can make sure the government follows the law. And the $750,000 of taxpayer money Mogensen collected in fees for handling the case has sparked the interest of other attorneys.
"I think we will see more willingness of lawyers to take these cases," said Daytona Beach lawyer John Kaney, an expert in Florida's Sunshine Law.
The Venice Taxpayers League was not a fan of Mogensen and Barfield after the duo battled with the city in 2009 over improper commissioner e-mails and took in a big payday. But taxpayer league president Gary Budway said they went to Mogensen because of her reputation.
"People are saying, 'My God, what are you doing with those people?'" Budway said. "Who do you want to hire? The person who wins."
Budway described a "win" in the lawsuit as having a judge throw out the referendum results, which would stop the county from collecting the tax in July.
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He said it would not be a win to have a judge decide that the School Board violated the Sunshine Law and punish it by having to pay legal fees, but then let the referendum results stand.
His group's lawsuit does not ask for any relief directly related to the Sunshine Law, such as an injunction instructing the School Board to follow the law in the future.
The sole allegation of potential Sunshine Law violations -- failing to give public notice for the advisory committee meetings -- has already been resolved. The School Board changed its policy to correct this even before the lawsuit was filed.
"That doesn't make his lawsuit moot," said Barbara Peterson, president of the Florida First Amendment Foundation. "They still violated the law. And sometimes it's necessary to make a point."
The lawsuit demands tossing out the results of the referendum as a punishment for any violations of the Sunshine law. The School Board is likely to fight that, since it spent about $500,000 to hold the special election and the referendum allows it to collect an estimated $40 million to $50 million each year.
There is no allegation of an open meetings violation at the time the School Board met to approve holding the referendum, said Harrison.
"I can't see any judge leapfrogging over that proper meeting," Harrison said. "Mogensen's theory, in my mind, is an enormous legal stretch and I think it is highly unlikely the court on that argument is going to overturn the result of a properly conducted citizen referendum."

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