HomeMy WebLinkAboutMinutes Executive Session 0706951
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CITY COUNCIL
CITY OF PALM BEACH GARDENS
SPECIAL SESSION
JULY 61 1995
7:50 p.m.
ATTENDEES:
VICE MAYOR FURTADO
COUNCILWOMAN MONROE
COUNCILMAN JABLIN
BOBBY HERAKOVICH
THOMAS BAIRD, ESQ., Town Attorney
ORIGINAL
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P R O C E E D I N G S
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- - -
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MR. BAIRD: We have mediation coming up on
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the 12th.
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Our expert economist says in the
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calculations that he's done, gives an amount of
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lost income that if there was liability the city
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could be required to pay back pay, and benefits.
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Of course, our motions for summary
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judgment that were filed argued that, and I
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think this is correct under the law, that there
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is no due process violation here. So they have
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no right to any compensation. They were at -will
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employees, and therefore, could have been
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dismissed without benefit of a hearing or
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benefit of any compensation beyond what they had
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earned.
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I believe the amounts are, approximately
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for Erbacher, about five months of her time she
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was out of employment, and five months, I am
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thinking that figure is about twelve to $14,000.
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MS. FURTADO: For Erbacher?
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MR. BAIRD: Byrd is more complicated, to
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the extent that her main claim seems to be the
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difference from the income she was receiving as
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the personal secretary of the city manager
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versus the income she made at the golf course.
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And there is a potential she could claim
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that she has -- although she hasn't alleged it
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in any amended complaint in any fashion, but it
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could come out during trial and the judge could
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determine to conform the evidence to or conform
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the pleadings to the evidence that comes outs --
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the bottom line is she could also ask for
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additional compensation for being underemployed
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after she got laid off when the golf course was
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taken over by Dubin.
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I think that's a more tenuous claim. I
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don't think that's a likely scenario for her,
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but it's possible.
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Her damages, I believe, were estimated in
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the neighborhood of $9,000. And obviously I
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don't have the reports here, but the economist
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takes a variety of factors and looks at those
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and winds up with a figure of lost earnings,
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includes in that typically lost benefits if he
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has the data.
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I believe he did have the data with Byrd
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but did not have it with Erbacher, so hers could
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be slightly higher.
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I don't have -- because no figure other
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than an unreasonable one has ever been proposed
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by either Erbacher or Byrd as to what they would
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settle their cases for.
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I have a feeling that their attorneys
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believe that they need to, they may need to
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settle cases because they haven't been going
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well for them, and they are on a contingent fee
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and there has been a lot of costs associated
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with the cases.
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When the case -- even before the case
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began when Bobby had retained me to look at the
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case while Mr. Brant was out of town,
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Mr. Gelston, Erbacher's attorney, at one point
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was willing to settle the case for $20,000
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before it was filed and there was a counter-
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proposal.
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MR. JABLIN: That's Erbacher?
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MR. BAIRD: Yes, Erbacher
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(Continuing) -- for about fourteen
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thousand, and that was at that time rejected,
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the twenty was, and the discussions broke off
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shortly thereafter.
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I don't know if twenty thousand would
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still settle it.
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I think what you need to take into
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consideration, although I don't -- I know you
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don't like the thought of attorney's fees, but
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if we go to trial there is certainly going to be
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some substantial attorney's fees involved in
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preparing for and conducting what the Plaintiffs
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are saying is going to be a week -long case,
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because there are three plaintiffs.
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Now, if Bullock settles out, there will
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only be two. But Bullock is just along for the
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ride. She's not a principal figure in this in
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any way.
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What that figure in attorney's fees would
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be could be as much as $10,000 for a week -long
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trial, including the preparation for it.
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Typically you go into a trial. You are
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in all weekend getting ready for the case. You
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are in trial, and although you may sleep some of
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the -- some of the day or evening, you basically
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are working from when you get up in the morning
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until when you go to bed at night, because
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you're getting up, getting ready for the day's
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testimony, going through the day's testimony.
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At night you come back and get ready for the
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next day.
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. It's a substantial investment of attorney
time to get ready for a case like that.
MS. HERAKOVICH: Does that not also
involve your paralegals, your secretaries, your
research staff and any other litigating counsel
that would also be involved?
MR. BAIRD: Well, the way we would try the
case "would be, we would have lead trial
attorney, which at this point is probably going
to be Terry Watterson, and then what's called
second chair, and the second chair is the second
attorney who keeps track of the law, keeps track
of the exhibits, keeps track of the lead
attorney, frankly, in these cases.
And we haven't really made a decision
whether that would be me or whether that would
be one of our associates. It's more likely to
be one of our litigation associates.
So there is -- that is part of that cost.
And obviously during a trial you may have
motions that are heard, the judge may ask you to
look at the law. The Simpson trial is certainly
no barometer for what goes on, but there are
legal issues that come up regarding the
admissibility of testimony during a proceeding
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and sometimes those issues have to be briefed
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and argued.
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So I feel pretty fairly comfortable that a
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figure of $10,000 takes care of just five days
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-- I think it's unlikely that it's just five
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days -- if the case is going to go five days,
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that is what the cost and fees are going to be
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involved in this.
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MR. JABLIN: Is that all three cases or
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one?
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MR. BAIRD: Yes, I think it's more likely
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-- well, the cases have been consolidated. So
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it's all three of them in one proceeding.
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MR. JABLIN: That's what we're talking
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about.
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MR. BAIRD: If it's an estimate of a week,
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it's almost invariably a two -week trial. If
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that's the case, then you are looking at the
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preparation time, and I think you're easily
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getting to ten, to twenty, to possibly as much
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as $30,000 to get all the way through the
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proceedings, those fees -- no offense, Jane --
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legal fees, expert witness fees, and of course
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just the time that some of your staff will be
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taken away from their jobs here, which of course
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takes away productivity over here on some of the
other important issues that you've got.
So honestly, $30,000 is not an
unreasonable figure for something of that
magnitude.
Now, that figure, you know, how that pales
in comparison to the exposure of damages is, of
course, the other issue.
What they are asking for in Erbacher's
case is something like $250,000. It would be a
travesty of justice if a figure like that came
in from a jury, but juries do what juries want.
Byrd's figure is like $250,000.
Those figures are based on the theory that
they will -- are unemployable; that because they
left the city under whatever circumstances they
are going to contend they left, which are
essentially going to be unconstitutional
circumstances, they are saying, "I can't work
again, and this is what the value of my earnings
would be over the remainder of my working
lifetime."
Now, our experts say, first of all, with
Erbacher: Wait a minute. Five months after she
left the city she got a job at the City of
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Greenacres. That stops the period of time
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during which there is an exposure to damages.
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Now, a judge and a jury is going to have
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to buy that argument, and I think they will.
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There is a difference in pay that she made
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in Greenacres versus the Gardens, and that could
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factor into any jury award.
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MS. FURTADO: Is she still with
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Greenacres?
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MR. BAIRD: No. She quit without giving
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them adequate notice.
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Our expert says that now makes her
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unemployable by municipality because of the way
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she treated Greenacres.
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Not only that, but she has changed
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careers. Now she wants to be a teacher, be
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involved in education.
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So our vocational expert again says, you
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know, that this is just not a viable claim in
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terms of her unemployability.
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Julia Byrd claims that because she is 50,
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she is -- no one is going to take a chance on
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someone in the market for a secretary. And our
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vocational expert says, geez, there is a whole
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slew of jobs out there for qualified people.
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Of course, the testimony of the city is,
yes, she was a qualified secretary; she just
wasn't appropriate to be in the city manager's
office, given the change in administrations.
So, again, our experts are saying, you're
going to tell a jury these people are
employable. They don't have hundreds of
thousands of dollars of damages.
So the question for you all really is one
of: If you want to put anything on the table,
how much are you willing to put on the table,
recognizing the costs of litigation and the cost
of potential liability to the city, versus can
you cut this off and be done with it.
MS. FURTADO: You said Erbacher, twelve to
$14,000 and then Byrd $9,000 as far as --
MR. BAIRD: Those are, give or take a few
thousand, those are the figures.
MS. FURTADO: What was Bullock?
MR. BAIRD: We said up to five. We
believe she --
MS. FURTADO: So even going on those top
figures, if you are talking the possibility of
$28,000, that might be --
MR. JABLIN: That's what our economic
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expert --
MS. FURTADO: I am saying whatever the
economic expert said, and you are talking up to
$30,000, if it went two or three weeks for
litigation -- correct?
MR. BAIRD: Yes. I think that.
MS. HERAKOVICH: Plus any award.
MS. FURTADO: Right.
What do you think, hypothetically going to
litigation -- and I realize you never know
exactly how a jury is going to go -- but in your
educated opinion, given the fact that you have
handled all their depositions and background
material and so forth that we are not
necessarily privy to, how do you feel about
litigation?
MR. BAIRD: Well, first of all, I feel
confident in the city's legal position. I feel
confident, more confident if Terry tries this
case, which he is committed to trying it,
because he is one of the best civil litigators
in this county and probably throughout South
Florida certainly.
And so that's a very good advantage that
you have. And those of you that know Terry know
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how tenacious he is, and that's difficult for
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witnesses to deal with. And so as you get
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closer to trial and you feel the pressure of a
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trial with a litigator like Terry in your face,
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there is more of a likelihood as you get closer
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to trial to settle.
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The legal issues are such that I feel like
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that we would win on both legal issues, and we
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should win on both of them at the summary
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judgment stage, where the judge has control of
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it. But many times a judge, particularly in a
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jury trial, is going to let the case go on to
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the jury because the judge feels that's what
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juries are to decide. You are supposed to get
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your cases tried by a jury of your peers.
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Particularly if the judge is unsure of
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which way he or she might go in a case, they'll
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let it go to a jury.
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If it goes to a jury, then I think that
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the jury is going to probably look to do some
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equity here. They are going to look at the case
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and they may say -- it depends on how much
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sympathy there is.
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Erbacher and Byrd could get beat up bad
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and the jury could say, geez, these are just two
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people trying to scam the city for some money.
And you know, our case is going to put
really the previous administration on trial,
because that's really what the case boils down
to. And the jury is going to look at that and
say, hey, either this city was being run
efficiently and effectively or it wasn't, and it
really in some ways pits old versus new in terms
of the administration.
But,I could see where asking for $350,000,
the jury could well come back with: Geez, it's
not really worth $350,000, but we've got to give
these people something. They went through all
of this. And unless they buy into these people
being total fools, they could award something.
Now, if they award something, then what
kicks in, which is expensive, is attorney's
fees, because they have filed saying deprivation
of constitutional rights. And under Section
1988 of the U.S. Code if you prove a
constitutional violation, you can get attorney's
fees.
MR. JABLIN: Which is going to be more
than the settlement.
MR. BAIRD: So the $30,000 that we are
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expending is going to be expended on the other
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side, at least, also. So you're looking at an
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exposure probably greater in attorney's fees if
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they win anything than you are in the actual
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value of the damages, potentially.
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MS. MONROE: Is it appropriate for us to
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ask you for your recommendation?
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MR. BAIRD: I am sure you can ask me
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anything you want.
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MS. MONROE: That's what I am looking for.
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We are policy - makers, but certainly we're here
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because you have the legal expertise that we do
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not have.
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And I would look to you, not necessarily.
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that I will agree with everything you say, but I
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will certainly look to you to provide some
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direction here.
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MR. BAIRD: My feeling, and I am certainly
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I think more conservative than others, but my
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feeling is that in a good faith attempt to
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settle the case in advance of trial that it
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would be acceptable to at least offer what our
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expert is saying the damages are if they win.
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If you offer less than that, then there is
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no real basis other than nuisance value to get
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rid of the case. And if you are going to offer
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nuisance value, you know, that's not $15,000
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necessarily. Although, I don't think they
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should get anything more than that.
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But you would have to make an offer that
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would be enough of an attraction --
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MR. JABLIN: Realistic.
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MR. BAIRD: -- to not go through with the
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litigation.
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MR. JABLIN: You mentioned in the Erbacher
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case that they rejected $14,000.
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Did we not make a $14,000 offer
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originally?
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MR. BAIRD: Bill Brant made an offer in
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the neighborhood of $14,000.
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MR. JABLIN: They have rejected that out
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of hand and that was many moons ago.
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MR. BAIRD: Yes. That was before there
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was even a lawsuit filed.
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MR. JABLIN: So there was no real attorney
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clock ticking at that point --
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MR. BAIRD: Right.
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MR. JABLIN: -- on their side.
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MR. BAIRD: Right.
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MR. JABLIN: So anything that we
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realistically look at is going to be appreciably
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over $14,000 in the Erbacher case.
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MS. FURTADO: No.
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MS. MONROE: No.
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MR. BAIRD: I can't speak for them, but I
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follow that logic.
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I think that if they rejected $14,000 two
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years ago --
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MR. JABLIN: They are not certainly going
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to take $14,000 today, unless they thought they
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were going to lose.
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MR. BAIRD: Yes. Well, if they think they
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are going to win, they are not going to take
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twenty.
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MR. JABLIN: They are having these same
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conversations, obviously.
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MR. BAIRD: Probably not with their
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attorney, though.
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MS. MONROE: When you talk about what was
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offered a couple of years ago versus now, would
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perhaps their mind thought be different, though,
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based on various issues that have been raised?
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MS. FURTADO: In depositions?
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MS. MONROE: Yes.
25
MR. BAIRD: Well, it seems to me that they
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are still very angry. And they were examined,
they were both examined by a psychiatrist, and
that was his conclusion.
His conclusion was, his nonprofessional
conclusion was that their cases were colossal
bull... -- Jane can fill that in -- but that
their motivation for the litigation was their
anger, and he did not believe that their anger
had subsided to a great degree. He still felt
that there was anger.
This was last October. There was anger.
Julia Byrd still comes to your meetings
and tape- records them.
MS. FURTADO: She's missing today.
MR. BAIRD: If they weren't getting paid
or enjoyed their work every Thursday night...
It is beyond me, but she's here.
So I think that says something a little
bit about her state of mind.
MS. FURTADO: She may be on salary.
MR. BAIRD: She could be.
It's also -- I think the important thing
to think about there is, as you get closer to
trial, the likelihood of settling gets greater.
What I might suggest is we need to have a
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figure for mediation, but the real test of their
resolve is going to come after the court renders
some judgment on the motion for summary
judgment.
If the court agrees with our legal
arguments, there won't be a trial. And they'll
wind up paying some attorney's fees.
If the court dismisses part of the case,
then you're at a point where, you know, both
sides have to go back and reevaluate the case in
terms of the offers that have been made.
So my suggestion would be, since Linda
asked me to provide one --
MS. MONROE: I am waiting.
MR. BAIRD: -- that you offer the figures,
that you authorize the manager or her designee
to offer up to whatever our economist says their
lost wages are.
That doesn't mean we offer that off the
bat in mediation. We may offer $5,000 apiece.
But it gives us a good faith posture to
negotiate within.
And if they really believe they don't have
much of a case here, they'll settle for one of
those figures.
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If they say no, the worst that we come out
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of it with: We made a good faith offer and they
3
rejected it.
4
Then we go to summary judgment. If we are
5
successful there, great. If we are partially
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successful, then we're still backed into that
7
number and we can change that number at that
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point and say, look, that was based on our
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thought that you might have a claim under due
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process, but now you don't have that. All
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you've got is this claim. So that figure is no
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longer acceptable, plus we have expended
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additional attorneys' fees.
14
MR. JABLIN: How much of this is driven by
15
their attorneys rather than their own anger?
16
MR. BAIRD: I think it's more driven by
17
them than it is their attorneys. Their
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attorneys would like to get out of this case.
19
MR. JABLIN: That's what I wanted to get
20
from you. I mean, you have interacted with
21
them.
22
MR. BAIRD: I have a sense they would like
23
to get out of this case.
24
MS. MONROE: How do we go about giving you
25
direction? Are you looking for consensus, is
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that the way we do it here?
MR. BAIRD: Yep.
MS. MONROE: I will accept your
recommendation.
MS. FURTADO: Same here.
MR. JABLIN: Okay.
MR. BAIRD: Like I say, I am estimating
those numbers, but they are not going to vary
much from what I have said.
The second one is Lake Catherine, Sun
Terrace at Lake Catherine.
MS. FURTADO: Yes.
MR. BAIRD: You have received a letter
from Mr. Sells. Bobby and her staff have
provided some information regarding costs
associated with the improvements that they are
requesting here.
MS. HERAKOVICH: That's this one
(indicating).
MR. BAIRD: Perhaps, taking a request from
Councilmember Monroe, I can cut to the chase in
terms of what I might recommend in terms of
Mr. Sells' (phonetic) letter.
MS. MONROE: So the record is clear, when
you said Ms. Monroe, since I haven't opened my
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mouth, it was from a previous discussion when I
had asked for your comments.
So you are assuming I am going in the same
mood, which I am.
MS. FURTADO: I am confused when I read
these points here, because basically they are
all points that we had already said we were
going to do anyway.
MR. JABLIN: That is right.
MS. FURTADO: So I am a little confused by
this whole thing at this point.
MR. BAIRD: Well, let me go through them
one by one.
On number one, the court retaining
jurisdiction means that in the future, if the
city decides to change any of the terms of this
stipulation, the court could review that and
say, for example, if the city council wanted to
go to 9:30 with lights, the court could say
huh -uh; it could say yes, also. But you would
have to get that through the court.
Now, I think legally there is a real
separation of powers problem there,
constitutional problems. But I thought that
about the temporary injunction also, and we have
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it.
And so absent doing those things that are
necessary to reverse that decision, legally
you're left with: Should we accept this
retaining jurisdiction issue by the court and
settle it now rather than prosecute the case,
which of course is going to take time and money?
The second issue is the timer, the 9:00
o'clock; it seems to me you have already put
that on the line with these folks.
MS. FURTADO: That's my point.
MR. BAIRD: Number three, on traffic flow,
sound light barriers as proposed without
reduction: I am not sure exactly what was
proposed or what they think was proposed.
MS. FURTADO: It's in the minutes.
MR. BAIRD: But --
MR. JABLIN: Proposed by the engineer's
report that we heard, Lindal's (phonetic)
report.
MS. FURTADO: Right, the burning and the
vegetation.
MR. BAIRD: Those costs are broken down on
this document with project costs; is that
correct, Bobby?
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MS. HERAKOVICH: Yes.
MR. BAIRD: So the cost of number three
is --
MR. JABLIN: -- $207,000.
MR. BAIRD: Is that the total or is that
added to seven five seven six one thirty -nine,
thirty -nine and one fifty?
MR. JABLIN: Beautification of the
medians, if I am correct.
MS. HERAKOVICH: It would be roadway
improvement plus beautification for number
three. Traffic flow and sound light barriers is
proposed. So it would be the two hundred eighty
two thousand.
MR. JABLIN: Two zero seven seven five,
right.
MS. HERAKOVICH: Right.
MR. JABLIN: Number three.
MR. BAIRD: And then number four is
parking lot and drainage. That I guess is the
hundred thirty -nine and thirty -nine.
MS. HERAKOVICH: Plus the seventy -six for
the park renovation, because when you improve
the drainage you have to renovate the park. So
those next three numbers --
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MR. BAIRD: $257,000 there.
2
MR. JABLIN: That's if you mean four. And
3
the lighting is moot.
4
MR. BAIRD: Now, number five we need to
5
reject.
6
MR. JABLIN: Yes.
7
MS. FURTADO: Absolutely.
8
MR. BAIRD: Number six, you need to reject
9
because I don't think it would be a good
10
precedent to increase patrols in one area.
11
MS. FURTADO: No, that would be saying we
12
are not guarding the city properly, and we are.
13
MR. BAIRD: So really it comes down to the
14
project costs, and what you were prepared to do
15
with that for -- and I don't know if you had
16
made up your minds on what you were going to do
17
there.
18
MR. JABLIN: We hadn't made up our minds.
19
MS. MONROE: No. In fact, one of the
20
comments we made at the city council meeting was
21
that we only had a limited amount of money to do
22
anything with, and if we were going to have to
23
spend that on a lawsuit, that was going to
24
detract from the amount that we would have
25
available for improvements to the area, and thus
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here we are right now.
And I am assuming the clock is running on
expenses.
MS. FURTADO: How much have we spent so
far?
MR. JABLIN: How much have we spent on
this already?
MR. BAIRD: It's hard to say.
MS. HERAKOVICH: It's not very much.
MR. BAIRD: Maybe $5,000.
MS. FURTADO: Can I ask a question, Bobby?
MS. HERAKOVICH: Yes.
MS. FURTADO: It says to the right of
roadway improvement, $257,000, gas tax, but the
amount on the left is two zero seven
twenty -four.
MS. HERAKOVICH: We just budgeted for
those two items, $257,000.
MS. FURTADO: For the first and second
items?
MS. HERAKOVICH: Yes.
MS. FURTADO: That's the two together?
MS. HERAKOVICH: It's not quite the total
amount. We were hoping to go after grant monies
for the beautification park and find a matching
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grant.
MS. FURTADO: So really what we're talking
about, not counting the lighting, for impact
fees we're talking about $261,058.
MR. JABLIN: Of which we have $207,000.
MS. FURTADO: The total is $538,058. Take
$257,000 off.
MR. JABLIN: What?
MS. HERAKOVICH: At this time we have not
budgeted for park renovations, the parking lot
as proposed, either concrete or the Geo -web or
the necessary changes in park drainage that
would be required.
MS. FURTADO: Which is two hundred fifty -
five thousand.
MS. HERAKOVICH: Right. As you recall, we
have X amount of dollars in recreation impact
fees, and we have XYZ plus requests for
improvements. So we have about four times as
many requests for improvements as we have
funding for.
Therefore, we have not come up with a
recreation impact fee priority list yet.
MR. JABLIN: But the $257,000 from the gas
tax was earmarked for this?
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MS. HERAKOVICH: Yes.
MS. FURTADO: Don't look at that just -- I
don't look at that just as a light issue,
though. There have been problems with that
roadway in my opinion for a long time; I mean,
it has looked very shabby and so forth. I look
at it as two separate things.
MR. JABLIN: Yes.
MS. FURTADO: We need the parking. We
need to change that parking around, because we
don't have adequate parking. The drainage is a
problem.
MR. JABLIN: We need to do all of this,
but we don't have the money.
MS. FURTADO: What I am saying is: In
order to use those fields and have them used
properly, we don't have the parking that goes
with the usage of those fields.
So it's sort of like putting in a project
without the infrastructure. Okay, we got the
project; we don't have the infrastructure.
So part of those things, I look at --
these are situations or problems that already
existed. I try to look at it that way, anyway.
Do we have any hopes of finding any money
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without impacting other recreation projects?
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MS. HERAKOVICH: No. This would detract
3
from anything we wanted to do at Gardens Park or
4
at the Clock property.
5
MS. MONROE: Plant Drive.
6
MS. HERAKOVICH: Plant Drive, the request
7
for roller hockey funds, the request for -- it's
8
all going after the same pot of money.
9
MS. FURTADO: Could we -- is there any way
10
of -- for instance, we have the gas tax -- of
11
doing the roadway and like the first step
12
towards whatever it is we need to do over there?
13
Obviously you can't put the lights in,
14
because we are going from four fields to three
15
with the parking.
16
MS. HERAKOVICH: Well, we could put lights
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in on three or four fields, and it would be
O
18
cheaper than redoing the parking lot and the
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drainage.
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MS. FURTADO: But we don't have the
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parking to go with those four fields now.
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MR. JABLIN: Let me offer this: What
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about -- backing up -- instead of doing the
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roadway improvement, which is $257,000, using
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that money to do the parking lot and drainage?
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MS. FURTADO: Can't.
2
MS. HERAKOVICH: Can't.
3
MS. FURTADO: It's gas tax. It's only
4
allowed for roadways.
5
MR. JABLIN: Sorry. You're right.
6
MS. FURTADO: That's what I am saying, it
7
has to be utilized for that.
8
MS. HERAKOVICH: First of all, let me say
9
that these numbers are for a plan for four lit
10
ballfields. I don't think that -- I think that
11
since then we have come up with a way that we
.12
can have three lit ball fields and still serve
13
our needs there, moving one of the ballfields to
14
somewhere else. So...
15
MS. FURTADO: But these prices are --
16
MS. MONROE: They can't get both at the
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same time.
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MS. HERAKOVICH: His claim for all these
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costs would be unnecessary, because they, too,
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agree that having that fourth field where there
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is currently not one existing in front of the
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concession stand brings the lights closer to
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their development. They don't really want to
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have that.
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So why he asked for it, I am not sure.
•
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The real issue here is that this two
hundred eighty whatever thousand plus dollars is
all coming from the same pot of money, and how
high on the priority list is it when you do have
some fields that are currently functioning
there, and you may want to make others
improvements to areas that are unimproved, like
Clock, which would give, might give them even
additional relief.
So, I mean, lighting I would agree on. I
would agree on the roadway improvement. And we
have recreation. I think that parking lot
renovation and park drainage all needs to go
back to the drawing board to look at a less
expensive way to do it.
MS. MONROE: Could we not commit to
putting this in just using five years for
special purposes, capital improvement program;
commit to doing it, but we're not going to say
for sure what year we're committed, and we
better get it done before we get to the end of
the fifth year or we're in default of the
agreement?
But it gives them a certain amount of
comfort, but perhaps not as much as they would
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like because it's not an exact date. But at
2
least it does have a drop dead point.
3
MR. JABLIN: And commit to the roadway and
4
beautification right up front.
5
MR. BAIRD: I think that's a good
6
suggestion, because we would be able to argue to
7
them, at least, that: Look, the court is
8
retaining jurisdiction here, under your proposed
9
stipulation. If we do not carry out the five-
.10
year plan, the court can intervene and address
11
the situation.
12
You know, I think there has to be a
13
practical reality on their side, and I am not
14
sure that it's there, that the government can't
15
do everything at once.
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And in the discussion that I anticipate
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having with them, you know, it's going to get
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back to: Look, if you want to pit yourselves
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against the entire city, then that's going to be
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the issue.
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going to try it in front of Judge Colbath, and
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we are going to be bringing in folks from other
24
parts of the city who are going to testify about
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their children not being able to use city
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facilities because of the selfish nature of a
2
few citizens at Sun Terrace at Lake Catherine.
3
We haven't really vigorously argued
4
anything with them, other than dismissing their
5
complaint, which they still don't have a
6
complaint.
7
MS. HERAKOVICH: Let me also let you know
8
that in this settlement offer, if that's what it
9
is, it does not match the conversation I had
10
with Kathy Katzell (phonetic) approximately
11
three weeks ago, where she said the roadway
12
improvements and the beautification and
13
everything else are all nice and pretty and
14
good, but our issue is simply the noise
15
generated from the lights.
16
So she gave me the impression she didn't
17
care about the roadway improvements, but wanted
18
to see some screening of the park and the lights
19
going off.
20
So it might be asking for the moon here,
21
expecting to --
22
MR. BAIRD: And I think one thing that you
23
have to keep in mind is, you know, what Bobby
24
points out is that we get mixed signals
25
depending on who they are coming from.
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When we get to a formal mediation when we
•
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are in a room like this with Mr. Sells and his
3
client and Bobby and I, then we are going to be
4
in a position to thrash out through the mediator
5
what it is exactly that they want.
6
What we need to be able to take back to
7
Sells at this point is, "Here is what we are
8
willing to work towards," and see what we can
9
settle for.
10
And so, I mean, for starters we throw out
11
the six thousand in attorney's fees, because you
12
said that whatever you did in terms of a
13
settlement was going to be mitigated against the
14
attorney's fees approved by the city.
15
And since I am estimating my fees to be
16
approximately what his are, which one would
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expect, that's a wash.
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The police patrols, I am prepared to say
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to them that legally we can't do that and all
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you need to come up with is -- it's not a small
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task -- it would be reasonable for us to offer
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some of these improvements, if that's what it
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takes to get the lights up.
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MS. FURTADO: It bothers me that for years
0
25
we have used the Band -aid approach. I would
•
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like to see for once a project be done so we
don't have to keep going back and fixing
something that was perhaps not handled properly
in the beginning, like from day number one with
that whole complex.
I mean, even just with the parking, the
parking spaces and the number of fields and so
forth.
So it's like we are stuck with a bad
situation. I would like to see somehow that
that be addressed.
MS. HERAKOVICH: You're saying the design
doesn't currently handle the parking needs --
MS. FURTADO: The parking needs.
MS. HERAKOVICH: -- and therefore you
would like to see the parking lot, which
includes -- which would have to include the
renovation of the drainage included?
MS. FURTADO: Right. Maybe there is
another way of doing it that's less expensive
than what you have got here.
You're talking about four fields here and
we are talking in reality three fields. Some of
these prices are going to change.
I just hate to see, once again, you know,
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we will put the Band -Aid on and we will do this,
and ;I would like to see something done right
completely and then move on to something else.
Not that I am trying to take anything away
from any of the other parks.
MS. MONROE: If we use the five -year plan
that I suggested, if we can come up with that
sooner, we still have that option of doing it
any time. If we find money tomorrow or a less
expensive plan, we can do it, but at least we
have something to put in writing, something for
Tom to take back and see if it flies.
From day one it was intended to be a
lighted ballfield. That's one of the things
that needs to be up front.
MS. FURTADO: By the same token, they said
they did not know that.
I am playing devil's advocate. I am
saying what they have said.
MS. HERAKOVICH: Had they done what I had
done when I purchased a home in the City of Palm
Beach Gardens and gotten from the building
department, gotten a copy of the plans for the
neighborhood, they would have seen on the plan
1
that it said light.
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MS. FURTADO: I guess I was happy when I
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saw the tentative plans for the three fields,
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because it provided us with the adequate parking
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we needed. I said hallelujah. We can have
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three fields and actually have the parking.
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MR. JABLIN: Yes, but we can't meet the
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price tag.
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MS. FURTADO: I think five years, playing
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devil's advocate again, if the shoe was on the
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other foot, five years might seem like a real
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long time.
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Maybe three years would --
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MR. JABLIN: We are making a downayment on
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this; are we not?
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MS. MONROE: Yes.
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MR. JABLIN: Are we agreeing that we will
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do the roadway improvement and the
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beautification with a grant if we can, and then
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subsequently with that five year period do the
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rest of that?
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MS. FURTADO: I think five years, if they
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are concerned about the lighting and the noise.
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MR. BAIRD: What I would suggest is that
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you not -- first of all, they are not as
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familiar as we are with that the gas tax can
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only be used for this, that or the other thing.
I would suggest that what you offer to
them or authorize Bobby and I to offer is this
five -year concept, which I think is very good
and an appropriate public policy position for
any local government to take, if we can't do it
all at once:
"We don't have it budgeted, and we are
coming into our budget cycle now. We are going
to show you our good faith by committing up
front this figure" -- whatever that figure is,
and maybe it's front - loaded with gas tax
money -- "and that leaves X hundred thousand
remaining. We are going to do that in the next
five years.
"And as a show of good faith, how we are
going to accomplish that: Here is our budget
for next year. Here is what we put into meeting
our needs for next year. And we will commit to
budgeting a like figure the following four
years."
What you have done is, you have also
created -- whether this is attractive to you or
not -- an opportunity for them to buy in to you
all, because what they have got to assure
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1551 FORUM PLACE, SUITE 500 -B
WEST PALM BEACH, FLORIDA 33401
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themselves is that you're going to deliver that
in the next five years.
And if someone else is carrying the
banner, that may or may not be a safe bet for
them.
MS. MONROE: Then I suggest we have a
consensus to go with that recommendation.
MS. FURTADO: Fine.
MR. JABLIN: I will go it with.
MS. MONROE: Let's go back for our
meeting.
(Thereupon, at 8:40 o'clock p.m., the
special session was concluded.)
LEY AND MARSAA COURT REPORTERS, INC.
1551 FORUM PLACE, SUITE 500 -B
WEST PALM BEACH, FLORIDA 33401
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39
C E R T I F I C A T E
THE STATE OF FLORIDA,)
COUNTY OF PALM BEACH.)
I, Jane Pastore, Registered Professional
Reporter, do hereby certify that I was authorized to
and did report the above special session at the time
and place herein stated, and that it is a true and
correct transcription of my stenotype notes taken
during said session.
Dated this day of _, 1995.
Jane Pastore, RPR, CP
THE STATE OF FLORIDA,)
COUNTY OF PALM BEACH.).
The, foregoing cer ificate was acknowledged before
me this day of sf , 1995, by Jane
Pastore, who is pers—onallih known to me.
n --
Name: "
Notary Public - State of Florida
My Commission No.
Expires:
t'v'd�•. CYNTHIA A. KLEBBA
MY COMMISSION # CC 184097
=� EXPIRES: March 3, 1996
•. Bonded filU Notary Public Underwriters
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