Tuesday, February 25, 2014

Ellis, EDC Attorneys Make Closing Arguments In Florida Sunshine Lawsuit



Ellis
TITUSVILLE, Florida -- Attorneys for both sides filed their closing arguments on Monday in the public records lawsuit brought by Brevard County Clerk of Court, Scott Ellis, against the Economic Development Commission of Florida's Space Coast (EDC) which seeks a Circuit Court judge's order that the EDC hand over its BlueWare documents.


The latest twist in the case comes from the EDC's attorney, Kimberly Rezanka, who admitted in closing arguments that "internal communications of the EDC related to press releases, news letters, and internal staff reports and agenda reports were withheld, as these documents were determined by [Senior Director of Operations for the EDC Trudy] McCarthy to be unrelated to the County Service Contract or any services that the EDC provided to BlueWare."  Rezanka also conceded that the EDC produced emails to Ellis without producing attachments.


Rezanka requested in her closing arguments that, if Brevard County Circuit Court Judge John Dean Moxley, Jr. "determines that the EDC was acting as a public agency, only records related to Blueware and EDC's obligations under the County Service Contract should be deemed to be public records."
EDC CEO Lynda Weatherman


Rezanka also asked, "If the Court finds that the EDC was an agency subject to the public records act, the EDC will need to review those attachments and advise whether it believes those attachments are also subject to Sec. 288.075(4) exemptions or any other exemptions under Chapter 119." 


"If they are a public agency, all the internal memos, etc. are public record unless they are specifically financials or trade secrets or customer lists," Ellis said of the EDC's closing arguments.  "We asked for everything on Blueware.  We did not ask for some internal deals with other companies.  But if it was Blueware, etc., we asked and they will need to pony up."

Last month, Moxley refined the legal issues in the case to a "totality test' and a "delegation test" as the applicable case law in determining whether the EDC's documents are subject to the Florida Sunshine Law 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, there are nine factors the judge could consider, but is not limited to.  Here is a summary of the arguments made by the attorneys for both sides as to each of those nine factors:


EDC Closing Argument Full Text                                   Ellis Closing Argument Full Text




1) the level of public funding; 


EDC: Brevard County only funds 49% of the EDC budget.


ELLIS: The County funds 65% of the EDC budget because pass-through grants are not considered revenue.  If revenue from other governments are also counted, 79% of the EDC's budget comes from public money.


2) commingling of funds;


Both sides agree that the EDC commingled County funds with other funds.



3) whether the activity was conducted on publicly owned property;


Both sides agree that the activity was not conducted on publicly owned property.



4) whether services contracted for are an integral part of the public agency's chosen decision-making process; 


EDC: The EDC's request to the County that it support incentives to Blueware does not mean the EDC is part of the County's decision-making process.

 
ELLIS:  Brevard's economic development decision-making process was handled by the County until privatized into the EDC in 1989.  The EDC's contract with the County requires that its documents be subject to public records law.


5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; 


EDC: The government function regarding BlueWare was the awarding of incentives; the EDC did not do that. 


ELLIS:  Brevard's economic development was a government function performed by the County until privatized into the EDC in 1989. 


6) the extent of the public agency's involvement with, regulation of, or control over the private entity; 


EDC: The County has no involvement with, regulation of or control over the EDC, other than its small number of appointees to the EDC's Executive Board and Board of Directors.


ELLIS: The County funds $1.4 million to the EDC, appoints five Board of Directors, and the EDC is required to file performance reports to the County.
 


7) whether the private entity was created by the public agency; 


EDC: The EDC was not created by the County but by private citizens that were dissatisfied with the functioning of the County Economic Development Council; 


ELLIS: The County created the EDC in 1989. The Council's Board of Directors, remaining budget, and office supplies were transferred to the EDC in 1989.


8) whether the public agency has a substantial financial interest in the private entity; and 


EDC: The County does not have a current, substantial financial interest in the EDC and it has no entitlement to repayment of funds or any EDC assets should the EDC dissolve.


ELLIS: The County does have a substantial financial interest in the EDC because it funds about half of the EDC's operation.



9) for who's benefit the private entity is functioning. 


EDC: The EDC benefits the companies that are looking to relocate or expand, not the County.


ELLIS: The EDC benefits County and the general welfare of the community. 


Additional Factor: The EDC employees are under the County's health and life insurance.


EDC: The mere fact that the EDC's participates in the Health Plan does not make the EDC subject to public records law.


ELLIS:  By statute, the County can only share its health care plan with public agencies.  Therefore, the EDC is a public agency.





BACKGROUND:


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.