Sunday, November 3, 2013

EDC Claims It's Not A Public Agency, Not Required To Produce BlueWare Records

TITUSVILLE, Florida -- A hearing was held on Friday in the public records lawsuit brought by Brevard County Clerk of Court, Scott Ellis, against the Economic Development Commission of Florida's Space Coast which seeks a Circuit Court judge's order that the EDC hand over its BlueWare documents.

BlueWare is the company caught up in a public corruption criminal case brought by the Florida Department of Law Enforcement and State Attorney Phil Archer against former Clerk of Court, Mitch Needelman, his former business partner Matt Dupree, and BlueWare CEO Rose Harr

The EDC helped BlueWare and some of its affiliated companies to qualify for various government programs and other "workforce incentives" that could have totaled nearly $2 million in taxpayer money.   None of those incentives were ultimately awarded to BlueWare because it did not meet its performance benchmarks.

The EDC had refused Ellis' repeated requests since January for the BlueWare documents even after the Brevard County Board of Commissioners voted unanimously to request that the EDC hand over its BlueWare documents to Ellis following the arrest of Needelman, Dupree, and Harr in August.  But just two days before Friday's hearing, the EDC turned over most of its BlueWare documents to Ellis.  According to an email sent by EDC President and CEO, Lynda Weatherman, to the EDC Board of Directors on Friday:

...the Blue Ware attorney released the EDC from our legal obligation to retain the documents requested and on Wednesday we provided the documents, more than 5,000 pages of materials, to the Clerk of the Court’s Office...

But Ellis said he believed that the number of documents his office received last Wednesday totaled only around 1,500.  Ellis compared the EDC's release of its BlueWare documents just two days before the hearing to a similar tactic used by Needelman when Ellis sued Needelman for Blue Ware documents in 2012.

At the hearing, the EDC's attorney moved to dismiss Ellis' lawsuit, arguing several legal procedural grounds such as that the County Court - not Circuit Court - had jurisdiction over a public records lawsuit and that a Writ of Mandamus was not a proper remedy.  

Brevard County Circuit Court Judge John Dean Moxley, Jr. denied the EDC's motion to dismiss on the grounds that Circuit Courts did not have jurisdiction to hear the case, but agreed with the EDC that a Florida Statute 119 Public Records petition was the proper remedy instead of a Writ of Mandamus.  Moxley then gave Ellis' attorney five days to file the appropriate petition.

The EDC also argued that it is not a public agency subject to Florida Public Records law.  Moxley asked that attorneys for both parties file legal memorandums as to whether the EDC is a public agency subject to Florida Public Records law.

After the hearing, Weatherman sent an emailed press release to provide the EDC Board of Directors an update on the Blue Ware case.  In that email, Weatherman stated, in part:

In a hearing today in Titusville, Circuit Judge John Moxley Jr. dismissed Ellis’ petition that would have required us to release all records associated with this project. The denial of the petition means the court believes there was no clear, legal requirement for us to provide the records.

"The EDC press release reflects nothing that was stated nor determined in Court," Ellis wrote in an email to Brevard Times.  "The EDC did not claim certain paperwork was confidential from their and their client files.  The EDC claimed they are a completely private agency and none of their records are subject to the Florida Statutes 119 Sunshine Law."

Ellis sent Brevard Times a copy of the contract between the County and the EDC that requires the EDC's documents to be public records.  The EDC receives $1.4 million annually from the County to promote economic development in Brevard.  The EDC also receives thousands of dollars from Brevard municipalities for those municipalities to become EDC "investors."