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10/25/2008

County appeals secret meeting ruling

Published By: Charlotte Sun

Mosaic seeks transcript of attorney 'conflict' talks

The Mosaic Fertilizer company won the first round in its lawsuit aimed at forcing the Charlotte County attorney to release a transcript of a closed-door County Commission meeting held to discuss litigation against the company.

But Mosaic probably won't win the next round, according to County Attorney Janette Knowlton.

She appealed the case this week to the 2nd District Court of Appeals. She is appealing an Oct. 17 order from Circuit Judge Keith Kyle.

Kyle had ruled that Knowlton must release the transcript of an "executive session" held by the commission Aug. 25 to discuss phosphate litigation strategy.

Such litigation discussions are exempt from Florida's Sunshine laws under an attorney-client privilege, Kyle noted.

However, the judge said that the county had failed to testify that it followed certain legal procedures required to convene such an "executive session."

However, Knowlton said Friday the county did provide documentary proof that it followed the proper procedures.

"I don't think (the judge) appreciated the significance of what that was," Knowlton said.

A check of minutes of recent commission meetings also shows the county had followed the required procedures. They include that the county provided public notice in advance and the commission announced during a public meeting that it was going into the private session.

Knowlton also publicly announced the purpose of the meeting, how long it was expected to last and who would participate, as required, minutes show.

She said Assistant County Attorney Aleksandr Bocksner, who represented her in court, never testified about the commission taking those procedures. That was because the county attorney was focused on defending the county against Mosaic's arguments that the closed-door discussion was not exempt from public records on the grounds it included a discussion about whether special attorney Ed de la Parte had a conflict of interest.

Bocksner called Mosaic's argument "disingenuous" and contrived to impair the commission's relationship with its attorney.

Mosaic also sought to have an administrative law judge disqualify de la Parte from Lee County's challenge to state permits for Mosaic's 16-square-mile South Fort Meade. But, the judge has twice rejected those motions.

De la Parte has represented Charlotte County in a series of administrative challenges against Mosaic's permits over the past seven years. Lee County contributed some $2 million to that litigation.

However, for the past year, Charlotte County has been negotiating a settlement pact with Mosaic. De la Parte has a conflict because Charlotte is seeking a settlement while Lee is prosecuting litigation, according to Mosaic attorney David Weinstein.

In a letter to Knowlton and the Charlotte commission Thursday, Weinstein provided another motive in seeking the transcripts: Making sure taxpayers know about de la Parte's alleged conflict.

"The transcript is important because the public has a right to know all the facts as to whether Ed de la Parte -- to whom Charlotte County has paid millions in tax dollars -- has a conflict of interest caused by his simultaneous representation of Lee County and Charlotte County who have opposite policy positions on specific mining challenges," wrote Weinstein.

Weinstein, in the letter, also claimed that Knowlton acted "unlawfully" by refusing to allow Mosaic to inspect the transcript. Because of her refusal, the county is liable to pay attorneys' fees, Weinstein said.

"We find it disappointing that your response was to immediately file an appeal of Judge Kyle's order, which will only increase the costs that Charlotte County taxpayers will have to bear because of your continued refusal to comply with the law," Weinstein wrote.

Mosaic offered not to seek attorneys' fees from the county if it withdrew its appeal by noon Friday.

But Knowlton said Friday she expects the appellate court to reverse the trial court's decision.

Kyle, in his Oct. 17 order, concluded that both an e-mail from de la Parte, in which he responded to allegations from Mosaic that he had a conflict of interest, and the transcripts of the Aug. 25 "executive session" would be exempt from public records because they pertained to litigation or imminent litigation.

Florida allows governments to keep such records secret under an attorney-client privilege.

However, Kyle stated that the county had failed to prove that it followed the required procedures for convening an executive session. Therefore, the transcript should be released, he concluded.

Knowlton said county records, documenting that those procedures were followed, were filed in the county's court case.

At least one commissioner, Tricia Duffy, feels the county should release the transcripts despite the evidence.

"You know, we could appeal and appeal and drag it through the courts and, you know -- just give up the records," Duffy said. "I don't know what (Knowlton) is doing."

E-mail: gmartin@sun-herald.com

By GREG MARTIN

Staff Writer

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