Friday, January 31, 2014

Testimony Ends In Clerk of Court's Public Records Lawsuit Against the EDC

TITUSVILLE, Florida -- The witness testimony portion of the hearing concluded 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.

But it could be well over a month before a ruling takes place in the lawsuit.  That's because Brevard County Circuit Court Judge John Dean Moxley, Jr. refined the issues before the Court today to a "totality test' and a "delegation test" as the applicable case law in determining whether the EDC's documents are subject to public records inspection under Florida Statute Chapter 119.  Moxley then gave attorneys for both sides 21 days to write closing arguments that apply the evidence introduced in Court to those two tests.

Referred to by Moxley as the "Schwab test" from the 1992 public records case News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, the factors considered include, but are not limited to:  1) the level of public funding; 2) commingling of funds; 3) whether the activity was conducted on publicly owned property; 4) whether services contracted for are an integral part of the public agency's chosen decision-making process; 5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; 6) the extent of the public agency's involvement with, regulation of, or control over the private entity; 7) whether the private entity was created by the public agency; 8) whether the public agency has a substantial financial interest in the private entity; and 9) for who's benefit the private entity is functioning. 


"We’re confident that the Clerk has presented sufficient evidence to indicate that the EDC is subject to Florida’s Public Records Act when it is utilizing public funds to perform its functions," said Tyler Winik in a release from the Clerk's office.   "The timeline put forth in Court shows the current public-private partnership we know as the EDC evolved from what was once the County’s Brevard Economic Development Council.  The conversion was done with the County’s approval to delegate a single point of contact for the County’s economic development needs.  The EDC could not have been viable without the initial seed appropriation the County provided in 1989.  The County’s continued $1.4 million funding enables the EDC to provide the services and programs offered. Our belief is the County taxpayer is entitled to have a transparent view on how their money is spent"

"We are eager to get resolution and thankful the process is moving forward," said EDC President and CEO, Lynda Weatherman in a statement.  "Our counsel will now draft a legal brief highlighting why our arguments and the evidence presented support our position, and that brief will be provided to the judge in late February for his review and ruling. 

"We are excited and ready to get back to work helping to strengthen Brevard County’s economy through business retention and expansion and our growing roster of innovative community programs such as Made in Brevard and G.O. Contracts, said Weatherman.  "That has always been, and remains, our mission and our focus." 

"The Clerk’s interest in BlueWare’s records has never been about prying into the private financials or trade secrets of companies wishing to come to Brevard. Florida statute already provides generous exemptions for these specific items," Winick added.  "What isn’t provided in statute, however, is the EDC’s ability to deny in whole the public’s review of the records the EDC makes, maintains, or receives with regard to its publicly-funded contract with the County."


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.

After the Clerk's office learned from a Brevard Times investigative article published on August 26, 2013 that State of Florida Department of Economic Opportunity officials said the BlueWare's confidentiality had lapsed and Governor Rick Scott's Office stated to Brevard Times that the BlueWare incentive contract was canceled on April 5, 2013, the Clerk sent his auditors to the EDC in Rockledge the next day to request a copy of the EDC file on BlueWare.  When the EDC refused to comply with the public records request, Ellis then filed this lawsuit.

Brevard Times was the only news source to continue a series of in-depth investigative articles led by Charles Parker into this and related stories: 


Scott Ellis To Run For Clerk of Court Again January 4, 2012

Clerk of Court Staffer Endorses Needelman, Ellis Responds February 7, 2012

Needelman Calls Ellis A Liar In Brevard County Clerk of Courts Debate February 16, 2012

Brevard County Clerk of Court Debate: VIDEO March 23, 2012

Brevard County Clerk of Court Debate in Titusville: VIDEO  April 23, 2012

Scott Ellis Wins Clerk of Court Viewer Poll  April 30, 2012

Brevard County Clerk of Court Debate In Melbourne: VIDEO  May 8, 2012

Charles Parker: Clerk's Race Heats Up May 30, 2012

Brevard County Clerk of Court Debate: VIDEO June 4, 2012

Needelman: Ellis' "Complicated" Requests Delayed Release of Clerk Documents, BlueWare Contracts Jul 5, 2012

Contract Controversy Taints Florida Governor's Jobs Campaign July 10, 2012

Clerk of Court Sunshine Lawsuit Hearing Monday  July 21, 2012

Needelman Wins Partial Victory in Court Case Brought by Ellis July 23, 2012

Republican Primary Candidates Brevard County Clerk of Court July 30, 2012

Needelman: Ellis Complicit in Extortion Plot?  August 12, 2012

Ellis: Panic sets in as Race comes to an End August 13, 2012

Dirty Brevard County Politics Caught On Surveillance Video  Aug. 13, 2012

Brevard Clerk of Court Recount, No Layoffs Anticipated  August 24, 2012

$8.5 Million Brevard Clerk of Court Records Digitizing Underway  Oct. 17, 2012

Clerk's Attorney Refers Staffing Questions to BlueWare  Nov. 1, 2012

BlueWare Misses Clerk's Office Deadline  Nov. 7, 2012

UPDATE: Needelman and Company Owner Mum Regarding Digitizing Contract Nov. 15, 2012

DuPree Confirms BlueWare Scanning Readiness  Nov. 17, 2012

Charles Parker: Hey Mitch and Matt: How About Some Answers? December 4, 2012

Charles Parker: Divergent Views on Clerk's Contract Continue December 11, 2012

Ellis Plans Moneysaving Changes In Clerk's Office Jan. 5, 2013

Scott Ellis Sworn In As Brevard County Clerk of Court  Jan. 8, 2013

Brevard Clerk Lowers Florida 'Fix It' Ticket To $10  Jan. 19, 2013

Former Clerk's Digitizing Contract Under More Scrutiny  Jan. 19, 2013

Ellis: Emails Appear To Contradict Needelman Attorney's Testimony  Jan. 24, 2013

Brevard EDC Cites "Non-Disclosure Agreement" and Confidentiality  Jan. 25, 2013

Ellis Claims Proof of Needelman Campaign Lies in Emails and Video  Jan. 29, 2013

Ellis and Weatherman At Odds Over BlueWare Documents  Feb. 5, 2013

Commissioner Asserts EDC Confidentiality Claim "Raises Questions" February 14, 2013

Economic Development Commission of Florida's Space Coast Subpoenaed By FDLE February 28, 2013

Charles Parker: BlueWare, Rose Harr, and Me  March 2, 2013

BlueWare Not Using Available Training Funds Mar. 15, 2013

Hewlett Packard Threatens Lawsuit Over BlueWare Debt Mar. 23, 2013

Brevard County Clerk of Court Files Suit Against BlueGem March 29, 2013

Details of Brevard Clerk of the Court Lawsuits Against BlueGem and RoseWare Emerge In Court Filings March 29, 2013

Space Coast Economic Incentives Make Florida Headlines  Apr. 1, 2013

BlueGem Counter-Sues Clerk's Office: Claims Ellis' "Ignorance"  May 5, 2013

Ellis and Hewlett-Packard Still At Odds Over Scanning Contract Loan Payments  June 2, 2013

Hewlett Packard Sues Brevard Clerk of Court For Disputed Scanning Contract Payments Jul 26, 2013

Former Brevard County Clerk of Court, Business Partner Arrested - Warrant Issued for Blueware CEO August 15, 2013

BlueWare CEO Turns Herself In August 16, 2013

County Commission Tells Economic Development Commission To Turn Over BlueWare Documents  August 20, 2013

Brevard Clerk of Court Won't Do EDC Audit That Commissioner Infantini Wants   August 21, 2013

State of Florida: BlueWare Confidentiality Lapsed   August 26, 2013