HomeMy WebLinkAboutCC 1977-02-28 MinutesMINUTES oF SPECIAL MEETING
OFTHE
(ITY.c0millssIoNHor'.miAmt) 'FLORIDA
* 4 * * * * *
:Oh:tke 28th day 64 tebkuaky, 1971, the City COmmiSSLOA o Miami,
tto44dd:intt At its Aegutat meetiftg pace ift said City.in SPECIAL 8t,t8ION.,
to COA5i4tk its tiutuke course 64 action in Atgatd to instAuttion to the
C,0yAttokney itegaAdrtg d pendirtg tawsuit in the Ciktuit Coukt 64 the
tOventhJudicidt eikaut '04 rtokidao CaSt NO, 77-4534 122).
Th meeting was catted to order at 8:30 O'Ctock A.M. by Mdyok
Maukice.k.-tekke with the 4ottowing membeks o4 the Commission 4ound to
Commonek Rose Gokdon
Commistionek Manoto Reboso
Commissionek J. L. Ptummekb lk.
Vice-Mayok (Rev.) Theodore R. Gibson
Mayon. Maukiee A. FeAke
Also PAesent: Joseph R. Gna4sie, City Managers
V. E. Gtimm, Assibtant City Manage/E.
Geoxge F. Knox, Jk., City Attotney
Ralph G. Ongie, City Ctekk
An invocation was detiveted by Revekend Theodore Gibson, who then
fed those pkesent in a ptedge o attegianee to the 4tag.
Mayor Ferre: Ladies and gentlemen, good morning. This is a Special
Commission Meeting for the purposes of discussing the March 4th trial
regarding the Executive Session of January 26th. Let me, for the
'record, reiterate that at the time of January 26th, when we did go into
an Executive session, there was no malice intended on anybody's part
nor was there any intention to do something that was wrong. Now obvi-
ously, if any of us had known the fury that would have arisen, I don't
think anybody would have pursued this matter the way it was pursued.
,We simply followed what we thought made sense, the City Attorney gave
us a legal opinion and that was followed. The fact that we kept tapes
ilk and that the City Clerk was in the room certainly is an indication of
good faith on our part. Now, since that time, three things have happened.
First of all, the Attorney General of the State of Florida has, at least
with me and I think with the City Attorney, told us that there were no
'exccptions to the law and that there was an overriding legal opinion
-and the.Supreme Court has actually ruled on this Client -Attorney
....privilege vs. the Sunshine Law, as 1 understand it. Secondly, the State
4:tor:ley, Mr. Richard Gerstein, came up with a similar opinion. Lastly,
:.....th6,Gxand. Jury in Dade County, in their release last Wednesday, again
° ?:6,Otie.:u0'with an opinion. It seems to me, from a practical point of
that for us to keep on battling this thing, is to give the impression
.:111Wwe are against the Sunshine Law and that's not the case. I think
to erson on this Commission, there is anybody here who is against
'°k4fe sunshine Law,we're all for it. It makes sense, it has worked
eft#otivelY, it's working effectively at the federal level. I might
point: out that -You may•have seen/ :I was in Washington yesterday and in
theWashington Star you may have seen, in nationalpublicity, the state-
ments'made-by: Vice -President Mondale about the need for certain, for
more sacreWregarding. CIA matters. The President has also, in the
Past week, made the same,stetement. In other words, there are certain
things that are national level which, according to our.new .1kresident
and our Vice -President, need to be kept in confidence. I'might remind
You that Senator Claude Pepper, certainly a distinguished public ser-
vant and a man whose integrity is beyond question, when there was debate
in Congress over the so-called Sunshine Law, voted with the majority
and very strongly emphasized that there were certain things that just
could not be done the way some of the proponents of the bill wanted and
lastly, 1 night use this as a source and quote Mr. Stewart Simon who is
the very distinguished Metropolitan Dade County Attorney who informed
me when discussed this with him and said, you know, there's an awful
TW
FEB 281917
lot of logic in what your City Attc Th Y ad :Uiec and 1 might :aay that the
Governor has asked me to be a member of the Constitutional revision teeth
that would put the Sunshine taw into the Constitution rather than as a
matter of statute to law and Stewart Simon said that he said to the
Governor that he would accept that assignment provided, however, that the
Governor understood that there' had to be bruit into the Constitutional
Amendment some very important exceptions because there were cases where
government had to function differently and the Governor said that if it
were in the Constitution he had no objectionS•to these exceptions being
brought in. NOW I rattle all of these things off because l think what
we have here ie a situation where there is ambiguity th the law and 1
think that the law is clearly not, it seems to be ambiguous and, for
example, I know of Mr. Knox has stated that there is a case coshing up
before the Supreme Court in March for the City of Ocala, Now our problem,
ladies and gentlemen, is that I don't think we want to be cast in the
role of challenging that law because if we do, I think that those of us
who are not exactly friendly to the City of Miami would cast us in a
different role and those of us that are playing around with that are not
only playing around with the validity of the concept but with the future
of the City of Miami and I submit to you that this is touch too important
a matter for us to be playing politics on because the real credibility
of the City in all of this is at stake and I think we would be much
better served if we, as the client, were to instruct our Attorney to,
on March 4th, not contest it and if that, in the law, cannot be done, to
actually say that as of this moment, as far as, after being advised by
Gerstein and Chevan and reading the Grand Jury report, that we just
simply are not in the positionanddo not want to contest this matter
and certainly will stipulate to it and let this thing be tested elsewhere.0"
The point of it is that I don't think the City of Miami should be cast
in the role of being against the Sunshine Law. Therefore, Father, I
pass the gavel over to you and so move that the City Attorney be in-
structed not to contest the March 4th matter before the Circuit Court
and leave it at that.
Rev. Gibson: Is there a second?
Mr. Reboso: Second.
Rev. Gibson: Alright, under discussion.
Mrs. Gordon: Mr. Mayor, for the record, I would like to put certain in-
formation into the record. First, for the record, I would like to state
the Executive Meeting which you noted, I was not noticed of that meeting
nor was my Secretary notified to let me know there would be a meeting.
I walked into the meeting inadvertently, I stayed in the meeting to find
out what was going on and to find out what was planned. I stayed to try
to prevent any action from going on. I firmly believe that if I had left
the meeting immediately, that I would have probably lost the opportunity
to prevent such action from taking place. I would like to ask if you
would allow Mr. Richard S. Rachlin who is of the firm of Prates, Lloyd
and Pearson and who is representing me as Counsel in this case to speak.
Rev. Gibson: To what purpose does this gentleman want to speak?
Mrs. Gordon: He is my Attorney,
Mayor Ferro; well he can speak before the court. This is not the place
for. such...
Mrs. Gordon: Mr. Mayor, before I can vote on this motion..,
Rev. Gibson: Just a minute, now: I'm presiding
for ingt and I want everybody to
presidia
preside or take the gave. from me, purpose do you want to
address this body?
(INAUDIBLB)
Rev. Gibson:' This matter pertains to the City of Miami exclusively, We
are the party.We are instructing our Attorney what course to pursue
at that point in time when we get before the court, If you're not satis-
fied, then we trust that -since you have a divergent opinion that you
would take the occasion to explain and challenge our action.
FE 2 8 1977
Mr Rachlint (Not using public microphone) . The problem that might
be raised is that we represent Mrs. Gordon individually and separate
from the Corhmisaion as a whole. (REMAtNbER OP REMARRS INAU5IBLE Ag
MR. RACtl ,1N WAg NOT Ug NG THE MICROPHONE) .
Rev. G bsont Well let me say this, sir. We're not trying to exclude
her from having her right and we think that she can exercise that right
in the court. Now if I'm not right, Counsel, that's what counsel is
all about, you tell me because t don't think this is a court of law.
Mx. Rachlin: (INAtibtfLE)
Mr. Knox: Mr. Vice -Mayor, the nature of the case is one that was
brought by the State Attorney against each Commissioner, individually,
along with the City Manager and the City Attorney. Now as you have
indicated, Mr. Vice -Mayor, there will be an opportunity for Mrs.
Cordon and/or her legal representative to manifest their feelings at
the court hearing. At the same time, I, myself, plan to make some
statement concerning the merits and the question is whether or not the
Chair would determine that if the City Attorney exercises that preroga-
tive on behalf of himself, as a defendant, in fairness, the Attorney
for Mrs. Gordon should have the same opportunity.
Mayor Perre: Mr. Chairman, you see, we are all asked to appear per-
sonally, including the City Attorney. we are not here speaking to
that because each one of us will have to decide what to do for our-
selves. What e're gathered here to discuss is what, and my motion
speaks to what the instructions are from this body, as one entity, to
our City Attorney. Now if this thing passes, he is instructed officially,
as far as the City is concerned, as to what course to take. That does
not mean that 1, personally, might take a different posture or that he,
speaking for himself, can't make a statement. I can't stop him, since
he is personally named, from speaking for himself. The only thing that
we're doing here is determining the policy of this Commission.
Rev. Gibson: That's our position.
Mr. Rachlin: (INAUDIBLE)
Rev. Gibson: Well that's what we're doing so she has a perfect right,
as Rose Gordon, individual, to do whatever she wants.
Mr. Rachlin: (INAUDIBLE)
Rev. Gibson: But you may remember that the newspaper said, the Grand
Jury said, Mrs. Gordon said, that she was not party to the action.
Isn't that right? We're not saying she is now. Isn't that correct?
Mr. Plummer: Mr. Vice -Mayor, you all can have your spinning your
wheels of this great talk. I've got to make a living. I wish you'd
make a ruling that either this man is going to talk or he's not and
let's move on.
Rev. Gibson: My personal reaction...
Mr. Plummer: You're Chairman and I ask for a ruling as Chairman.
Rev. Gibson: My personal reaction is this is not the place to discuss
your position. Now I could be overruled by the others.
Mrs. Gordon: May I speak, Mr. Vice -Mayor?
Rev, Gibson: Sure, you may.
Mrs. Gordon: In my experiences as Commissioner, which have extended
for quite a number of years, I can hardly ever remember a time where
we would not permit someone to speak if they had information that might
be a benefit to this body and I believe that what you will hear is not
something that you would not want to hear but something you would want
to dear and if you don't give yourself that privilege, it wouldn't be
a particular benefit to you.
FEB 281977
Mayor Pierre: Let me ask you a question. Have you talked to 'our city
Attorney abut what you're going to discuss here?
Mr. Rachlin: (tNAUDtRLE)
Mayor Pert:: Well don't ,you think that might be the more appropriate
thing before you come here? Don't you see that what the pkoblam is,
I'm sure you're well intended and I'm sure there's no malice intended
anywhere but some people, and the some people are an awful lot of
people, have a big question about what politics aro being played with
this and therefore, it's subject to misinterpretation and t think
that's the concern.
Mr. Rachlin: (tNAUDtBLl;)
Mr. Plummer: Mr. Knox, may 1 ask a question, please? t ask you, sir,
do you see any pitfalls or do you gee anything wrong with the Mayor's
motion of no contest?
Mr. Knox: There's nothing wrong with the spirit. I think 1 know what
the Mayor is endeavoring to achieve. Now the question of whether or
not a procedure call no contest is available is another thing. How-
ever, there are practical ways to accomplish the objective that the
Mayor seeks by his motion.
Mr. Plummer: But have you discussed this with Mr. Gerstein?
Mr. Knox: No, not at this point.
Mrs. Gordon: Mr. Plummer, t think if you'd listen to Mr. Rachlin, if
the Vice -Mayor would permit it, you would find it would be an advan-
tage to all of the people here.
Mr. Plummer: Well, Rose, let me tell you where I have great truck
with that. I don't know this gentleman, I don't know how long he's
been an attorney or how qualified he is to speak but I know that this
man is not my legal advisor and any advice or recommendations that he
might give me which could influence my decisions are not backed up, as
the Charter provides, by our City Attorney. I don't want this man to
jeopardize my thinking as an individual by any information which he
might give, right or wrong, and I don't know his qualifications to
speak, as opposed as provided in the Charter where the City Attorney
shall give me my advice and I shall be bound by it. All I'm saying to
you is that I'm going to take my advice from the City Attorney, for
which there is a provision, and if the City Attorney makes a wrong
decision and it is proven such, I'll fire him. I can't fire this man
and I have no recourse to this man but you're asking this man to give
me advice and I don't know that he knows my Charter so all I'm saying
to you is, I asked the question because, as i understand it, Mr. Knox,
and you correct me if I'm wrong, the thing that we are putting as a
"no contest" specifically spoke to two items. Number one, any and
everything that was discussed at that meeting of the 26th in the Mayor's
Conference Room shall be discussed in open and public meeting. Number
two, that we shall not hold any meetings such as that in the future.
Is that the two points?
Mr. Knox: Those are the two points that...
Mr. Plummer: Is there a third?
Mr. Knox; Well there is a third but once again there's a practical,
method of resolving the third. Now the nature of the lawsuit is,
number one, it was a declaratory judgement where the court was being
asked to declare the rights of the parties and the practical affect
of that would be to determine, in the court's judgement, whether or
not there's an AttorneywClient privilege exception to the Sunshine
Law. The second part of It was a mandamus action which would command
the City Commission to regain from holding so-called secret meetings
in the future and the third was a Permanent injunction against the
City which would enjoin them from holding so-called executive sessions
in the future. Now with respect to the mandamus and with respect to
the injunction, these matters can be resolved by stipulation. However,
it may be necessary as a practice/ matter to make some disposition of
4 FEB 281871
the allegations and the complaint relating to a declaratory judgement
and once again# this it something that t 14111 talk to the Atate AttOrney
about,
Mrs, Gordon: Mr, Itnox# may t aak you a question/ YOUlte sitting here
this morning, are you representing this ComMisSion as an Attorney/
Mr RtiOX: Am I representing the Commission/
Mrs. Gordon! Are you here as an Attorney for the Commission this morning/
Mr. Xnox: I'm here as an attorney for the elected representatives of
the people as evidenced by the City Commission. I'm here as the Attorney
for the individual named defendants with the exception of yourself..,
Mrs. Gordon: txactly, sir, that's what I wished you to clear. When
you spoke to me, and i credit you highly for doing this, you asked me
if I wished to obtain outside counsel and you would have no objection
if I did. Is that correct? And by your suggestion, I followed your
suggestion and I did obtain outside counsel. Now you are here repre-
senting 4 members of the Commission. My counsel is here representing
me with your agreement and I believe that he has a right to represent
me as you're representing the other four.
Rev. Gibson: Mrs. Gordon, this is not the court. Now unless the other
three members of the Commission rule otherwise, I'in ready to take the
vote.
Mr. Plummer: Call the question. sr
Rev. Gibson: Call the question.
Mrs. Gordon: I would, before you call the question, Mr. Vice -Mayor,
tell you that the action that could be taken by this Commission in
lieu of the motion which is on the table, could be a resolution which
would agree that this Commission would take no further, would have no
further executive sessions and that they would take no further action
on any matters that were discussed at that executive session until
these were discussed in public. I believe that this resolution would,
in effect, accomplish basically, and even though the point about the
Client -Attorney relationship is a debatable point as Mr. Knox has said,
by moving in this way you would be accomplishing basically the same
thing you wish to accomplish, Mr. Mayor.
Rev. Gibson: Mrs. Gordon, from what I heard Mr. Knox say, we are
accomplishing the same thing. You're using the word "thee" and I'm
using the word "the" and it would accomplish the same thing. I call
the question. Call the roll, sir.
Mrs. Gordon: One moment, please. May I have a moment to consult with
my Attorney since you all are allowed to consult with yours.
Rev. Gibson: Be my guest.
(BRIEF PAUSE)
Rev. Gibson: Alright, call the roll, sir, she's through.
Thereupon, the following motion was introduced by Mayor Ferre who
moved its adoption:
MOTION NO, 77-205
A MOTION TO INSTRUCT THE CITY ATTORNEY TO ENTER A.
PLEA OF NOLO CONTENDERE IN DADE COUNTY CIRCUIT
COURT IN CONNECTION WITH CASE NO. 77-4534 (22)
STATE OF FLORIah EX REL, ET AL, VS. MAURICE A.
FEB= AS MAYOR OF THE CITY OF MIAMI, ET M.
5
FEB 2 81977
Upon being seconded by Commissioner Rebaso the inoti sf was passed
and adopted by the following vote
AYES: Commissioner Manolo Reboso
Commissioner J. L. Plummer, Jr,
Mayor Maurice A. Perre
Vies-Mayor(Rev.) Theodore tibson
NOES: Commissioner Rose Cordon
ON ROLL CALL!
Mr. Ongis Mrs. Cordon?
Mrs. Cordon: to voting "no" to the motion, I have previously
stated that i had no notification of the meeting, 1 was not
invited to come to the executive meeting, 1 stayed to find out
what was going on and to prevent any action from taking place.
I vote "no" to the motion.
Rev. Gibson: Mr. Mayor, one of two things. 1 could turn this gavel
over to you or 1 could declare the meeting adjourned. Which?
Mayor perre Well 1 think the City Attorney has something that he
wants say into the record so I'll take the gavel and move right ahead.
Mr. Knox: Mr. Mayor, members of the Commission, as the serpent who
has enticed you and induced you to commit sin, according to one of the
newspapers, 1 think it's necessary to indicate upon the record the
legal basis upon which this inducement took place. I have asked an
Assistant City Attorney, who is my counsel of record in this matter,
to, on behalf of myself and the Law Department, indicate the State of
the Law with respect to the existence of an Attorney -Client privilege
as an exception to the Sunshine Law. Mr. Arturo Alvarez will discuss
this matter with you briefly.
Mrs. Gordon: I beg to ask you, Mr. Knox, if Mr. Arturo Alvarez is
your attorney of record for the case, that you are the defendant in?
Is he your attorney in your defense at that trial that we're discussing?
Mr. Knox: Once again, he's my attorney of record based upon the
maxim that he who has himself for a client has a fool for a lawyer.
Mrs. Gordon: Therefore, I say that you are not permitted nor was I
permitted to allow my counsel to be heard and I therefore rule your
counsel out of order.
Mayor Pierre: I would rule otherwise so you can proceed.
Mr. Arturo Alvarez: Mr. Mayor, Commissioners, I'd simply like to point
out to the Commission that basically the case that has been cited by
both Mr, Gerstein and Mr. Chevan, both of whom I used to work for, I
finished working with the State Attorney's Office on December 31, 1976,
those individuals whom I respect disagree with us on the basic status
of the Sunshine Law at the present time. What we have is an argument
between reasonable people. I can only say to the Commission that
subsequent to the Verns Case, the case has been reported to the Press
and the case that everybody seems to cite and that particular case,
the Supreme Court addressed itself generally to the Attorney -Client
privilege but there is a case coming out of the Supreme Court approxi-
mately a year afterwards, the case of Bassett vs. Braddock, a case
that arose out of here, out of Dade County, and this is only a year
after the Supreme Court has said generally that there exists no exception
to the Sunshine Law, All of a sudden, in 1972, the Supreme Court found
that there was an exception to the Sunshine Law. Although they based
their exception on the Constitutional provision that is not directly►
applicable to our case, the language that he used, I think, is the
language that Mr. Knox, the City Attorney, ceased upon to declare that
there is an Attorney -Client privilege. 1 think it is very interesting
to note that despite the feeling of many people, that the law is
unquestionably clear on the subject, 'hs only two appellate positions;
that we have been able to find subsequent to Braddock are two decisions
ding out at the first district court of appeal. Let me tell you a
G
little bit about each one of those► to the first one, 1 believe the
name or the style of that Case is MitCheil vs. %the Aohool hoard of
teen County. What happened in that case, roughly, is that a teacher
was hired and theft fired because her positien had been aboiiehed by
the sehool board.
Mr. Plummer: Mr. Vice -Mayor, may 1 speak/
Rev. Gibson: I'm not presiding.
Mayor ?erre: Look, let the tan finish his statement.
Mrs. Gordon: Mr. Mayor, fairness is not being practiced on this
Commission.
?1r. primmer: 1 find that after a motion has passed and as was told
before that this matter will now be in court, I think the proper
place for this gentleman's dissertation is in the court of law as it
was informed of another individual earlier this morning and t find
no reason for this gentleman unless he is going to come here and
speak on behalf of the City Attorney that the motion that we passed
is not in order.
Mayor Ferre: Alright, Mr. Plummer, z would like to just say that the
City Attorney has requested that this be put into the record. Now,
Mr. City Attorney, you tell me why you want this on the record.
Mr. Knox: Alright. Based upon the motion that was just passed, there
is a good likelihood that the things that Mr. Alvarez is saying and
the resolution of the legal controversy which exists would not be
resolved by the court. I think it's important, perhaps selfishly,
because I, once again, am the City Attorney who advised the Commission
that an executive session was permissible and as the Counsel for
Mrs. Gordon indicated, implicity in your motion today could be in-
ferred as an admission of wrong doing. My position is that there was
no wrong doing by the conduct of the meeting and I want the record
to reflect and I want...
Mayor Ferre: Mr. City Attorney, I think the point that's being made
here is thatyou have heard the position that's been taken by the
majority of this Commission that we do not want to contest this in
court and I think the explanation has been amply given. I understand
the difficult situation you're placed in, however, we are not in any
way, as I understand, nolo contendere, no contest means that we do not
admit one way or the other. Now that leaves it up to you, personally,
if you wish to, and you've already told me that you were going to de-
fend your position because obviously you feel obligated to do so.
So that's something that needs to be done in court.
Mr. Knox: What I'm saying, Mr. Mayor, is that I would not defend my
position because the same affect that the Commission is seeking to
avoid the passage of the motionwould take place. I'm saying that I
would choose not to defend my personal position in the lawsuit but at
the same time I would want the record and the public to reflect what
my position is. The Commission has indicated its will, I will not
contest the lawsuit, I will do those practical things that are necessary
that this matter be resolved but at the same time, I think my, own
position should be made a part of the record.
?1r, Plummer; And I agree, Mr. Knox, that you are correct but I don't
think that it should be done this morning.
Mayor Ferre; Well the Chair rules otherwise because I feel... Unless
you want to overrule the Chair which you are perfectly entitled...
!rs, Gordon; Mr. Mayor?
Mayor Ferro; Let ma finish and then I'll recognise you if you don't
mind. Now, I think since you told us that personally, as City Attorney,
you were going to follow the guidelines as established by themajority
of this Commission personally and therefore this would be the only
opportunity for you to put into the record your position which is very
different from the Counsel for Commissioner Gordon.Therefore,
FEB 261977,
r'eoogni2e you in that spirit. Nowt Mrs. Cordon.
Mrs. Gordon: Yost Mr. Mayor. t have no objection to Mr. Knox stating
his position and putting his opinions on the reword. t have strong
objection to his Counsel doing it for him since that's exactly what
you prevented no from having done. You prevented my Attorney from
putting my position into the record and you aro now permitting
Knox's Counsel to put his positions into the record. girt it is not
fair, it is not right hut it's typical of what this Commission does.
Mr. Knox: we have a,semantic problem, t think, Mrs. Gordon, because
Mr. Arturo Alvaro§ is on the staff of the City Attorney and it's a
question of which hat you would choose that ha would wear for the
purpose of this presentation.
Mrs. Gordon: I would choose that you would state your own position.
Mr. Knox: Alright, and t indicated that he was my counsel of record
in order that the record would not reflect that I represented myself
in the lawsuit.
Mayor Ferre: 1 think the difference, Mrs. Gordon, is that your Attorney
is going to have his field day in court on March 4th and as 1 under-
stand from Mr. 1(nox's statement, he's not going to do that so he wants
to put it... That's what the basic distinction is. Now am l wrong in
that, Mr. Knox?
Mr. Knox: That's correct, Mr. Knox.
Mayor Ferre: Alright, with that into the record, then I would rule
that you can continue making your statement unless the Commission other-
wise wants to rule it out of order.
Mrs. Gordon:
Mayor Ferre:
sentation by
the motion?
1 would rule it out of order, Mr. Mayor.
Alright, there's a motion by Mrs. Gordon that the repro -
the Attorney be ruled out of order. Is there a second to
Mr. Plummer: I'll second the motion.
Mayor Ferre: There's a second to the motion. Further discussion?
Call the roll.
(THEREUPON, THE PRECEEDING MOTION
BY THE FOLLOWING VOTE-)
AYES: Commissioner
Commissioner
NOES:
WHICH WAS MOVED AND SECONDED, FAILED
Rose Gordon
J. L. Plummer, Jr.
Commissioner Manolo Reboso
Vice -Mayor (Rev.) Theodore Gibson
Mayor Maurice A. Ferre
Mayor Ferre: Continue please.
Mr. Alvarez )s I was saying, Mr. Mayor, the first District Court of
Appeal case, the name of which is Mitchell vs. the school Board of
Leon County. in that particular case, the trial judge ruled that there
was an Attorney -Client privilege under the Sunshine Law. That's the
first appeiate expression coming after Bassett vs, Braddock at supreme
Court. In that particular case, it was appealed to the first District
Court of Appeal and the First Di.striet Court of Appeal decided not to
rule on that particular question, they felt it was not necessary to
rule on that broad of a question and they ruled on a much narrower
ground. However, they intimated that if they had to rule on that
particular •question, they cited the person who appealed on that case
to two cases. One of which was Bassett ve. Braddock and the only other
case was pines publishing Company vs. •William*, a Second District Court
of Appeal coming before Bassett vs. Braddock and holding an Attorney -
Client privilege existed under the sunshine Law. That is the first
appelate expression after Bassett vs. Braddock. The second One cue►
after the Farst District Court of Appeal but a month later and that
particular ease, l think the style of that ease is the City of Ocala
8
va. Askew. Representatives of the School Boards sued dovernor Askewf
the State Attorney for that particular County and a number of other
individuals alleging that they have the right. under an Attorney
Client privilege or exception tender the Sunshine t,aw, to cesnsuit in
private with their Attorneys. The trial Judge in that particular case
dismissed the complaint saying that the complaint in that case had not
stated the cause of action. it was appealed by the School Board and
the First bistrict Court of Appeal overruled the trial judge saying
that there was judicable controversy in that particular case and
that is the reason for the courts existing in the State of Florida.
The fact that the only two appellate cases reported after Bassett vs.
Braddock seemed to indicate, although t can say candidly to the
Commission that they did not rule precisely in the point, they seemed
to indicate that at least the First District Court of Appeal feels
that because of Bassett vs. Braddock, the law in the State of Florida,
once the 'Supreme Court rules on it again, that there exists an Attorney-
Client privilege. I Can only say this one additional thing. In
Bassett vs. Braddock, the Supreme Court of the State of Florida talked
about the underlying purpose of the Sunshine Law which is not to put
a municipality at a disadvantage. It is simply to expose a decision-
making process because the legislature feels that it's good social
policy to do so. I think Mr. Knox agrees with that policy and I
personally do also and I think the Commission agrees with that also
but the Supreme Court of Bassett vs. Braddock talked about getting too
much Sunshine, getting sunburn because of too much Sunshine and they
cited the public interest and the underlying basis of our appeal is
that it is in the public interest to assert the Attorney -Client
•privilege. We're fighting for the City of Miami in its broadest sense,
in terms of the citizens, not in terms of the Commission, but in terms
of the City of Miami and its citizens being entitled to equality under
the law when we go before a tribunal. The Supreme Court has already
expressed the thought that it is unfair to burden a municipality,
making them reveal any strategy or anything else that can be regarded
as coming within the scope of the Attorney -Client privilege. That's
an expression from the highest court in the State of Florida that the
purpose of the Sunshine Law and the underlying policy behind the
Attorney -Client privilege does not contravene each other. What we're
saying is that they're both in accord with one another and the under-
lying basis of our appeal is going to be not that the Attorney -Client
relationship benefits the Commission, what we're saying is that it
benefits the public that both the Sunshine Law and the Attorney -Client
privilege benefit the public. I think it's a legitimate point in appeal...
•Mrs. Gordon: Excuse me, Mr. Alvarez. Did you say you are going to be
heard in court? You are going to appeal in court?
Mr. Alvarez: I am saying that this is what we wanted to do.
Mrs. Gordon: But you're not going to do anything in court, that's why
you're speaking and giving us the benefit of all of this dissertation,
is that correct?
Mr. Alvarez: No, mam. I'm only going to do in court what Mr. Knox,
who is my employer, tells me to do in court. I don't know what the
Commission is going to ultimately resolve in the matter.
Mrs. Gordon; Which hat are you wearing now? The appeal you're talking
about, what are you talking about? Which hat are you wearing? The
Attorney of record for Mr. Knox or Attorney for the City of Miami?
Mr, Alvarez: 1 think again we're talking about a matter of semantics.
1 represent, at least generally, the City of Miami. I'm an Assistant
City Attorney. I also represent...
Mrs. Gordon; Well what are you going to appeal in court? What action
are you taking in court that you have made a reference to an appeal in
court?
Mr, Alvarez; I'm only going to do in court what Mr. Knox tells me to
do because 1 represent Mr. Knox in the particular litigation.
Mrs. Gordon; But Mr. Knox asked for your dissertation today because
You're not going to be speaking in court. Am 1 right or wrong?
FEB b977
Mr, Alvarez: t think that's what he expressed here this morning, yes,
Mrs. Gordon: Is that right? Than you will not spear in court. fs
that correct?
Mr. Alvarez: if he decides not to Litigate the matter, there is nothing
for me to do.
Mrs. Gordont Well apparently he has decided that when► he asked you to
speak here this morning. Is that correct? If it isn't correct, then
what I said previously is correct which is that t have been, treated
unfairly. Now which way is it going to be, Mr. Knox?
Mr. Alvarez: Well l thought the Mayor permitted me to speak.
Mrs. Gordon:
Mr. Alvarez:
what we feel
Mayor ?erre :
Special privilege?
Well I thought the Mayor permitted me to speak to express
was the basis of the recommendation...
Mrs. Gordon, let him finish.
Mrs. Gordon: I'm sorry, Mr. Mayor,
what this meeting was called for.
Mayor Farre: Let the flan finish his
every sentence the man makes?
you are doing beyond the scope o
sentence. Do you have to interrupt
Mrs. Gordon: Every sentence until we get fairness on the table.
Mr. Knox: Mrs. Gordon, I indicated that I would not make any repre-
sentation which would appear to be a defense in the matter before the
court. Z further indicated that I wanted the record to reflect what
my position was regarding the lawsuit.
Mrs. Gordon: Absolutely as what I heard you say but not what Mr.
Alvarez is pleading right now. He's talking of an appeal in the court.
Now that's a different story. Correct me if I'm wrong.
Mr. Knox: There's a difference between an appeal in the court and an
appeal to the court, number one. Number two, we have received the con-
sent of all of the parties involved in the litigation regarding the City
of Ocala and we have received permission of all the parties to file an
amicus curiae brief and the discussion that Mr. Arturo Alvarez is
making could be subject to an amicus curiae brief to the Supreme Court
in another case.
Mrs. Gordon: Wouldn't it be proper to have this done
in court?
Mayor Ferre: It has nothing to do with the court because what is going
to be discussedincourt is a specific question of the City of Miami and
the advice that we got from our counsel and the position that this
Commission took. What I think the City Attorney is referring to is a
matter that does not deal with the City of Miami and therefore will not
be heard on March 4th but rather will be heard by the Supreme Court in
the case of the City of Ocala and as I understand it, what you're saying,
what I heard you say, was that you can, or any citizen, can file a brief
as a friend of the court on the matter and this is common practice amongst
lawyers. Is that correct?
Mr. Knox Yes, sir.
Mr. Plummer-;
Mr. Alvarez;
that Mr. Knox
Mayor f'erre ;
Commission?
Mr. Alvarez, are you finished, sir'
i think so. 1 think that is the basis of the position
advocated regarding the meeting in this particular case,
Alright, is there anythingt further to come up before this
Mr. Plummer; Mr. Mayor, for the record I would like to establish this
point. W. Knox, the action which is taken by the motion this morning,
in your estimation, does this in any way preclude this City Commission'$
right to tom►, if it seems as the logical and practical thing to do, to
? FED Zb1977
appeal to the legislature to change this exception et this Sunshine taw/
Mr. Rnoxt No, it does net preclude the City's opportunity to use the
legislature as a vehicle for changing that particular portion of the
Sunshine taw.
Mr, Plummert Then it is my opinion that this is really not a matter
before the oourte as are as changing this law. It is my opinion that
there definitely is a need for exceptions as there wAiLmadet in the
tabor relations. In speaking with some of the legislators who were
present when the Sunshine taw was put into law, I am told that there
were other areas in which exceptions were discussed besides the already
present tabor negotiations. Those two areas, number one, just happens
to be land acquisition and the other one, which we, before this Commission
well know, the discussing of the employment of a top executive. We
saw before this Commission in which a person appeared from another
City who, let's say, got himself into a tremendous jam over the point
of appearing here making himself available for this position and went
back and got the wrath of Cod from his own Commission. Whereas, had
this been able to be without the knowledge of his Commission, I think
it would have been a much freer situation. As far as land acquisition,
i still stand on the point, as I have before, that in my estimation, if
you must discuss this in public, it is going to cost the taxpayers a
good percentage more money than if you were able to take and discuss
it in private.
Mayor ?erre: Okay, any further..
Mr. Plummer: May I finish?
Mayor Ferre: Oh, I'm sorry, I thought you were finished.
Mr. Plummer: Any lawsuit, as S understand, and I'm not a lawyer, is
an adversary position. It seems like, very logically to me, that the
great strategy of a lawsuit has to be done in private. As Y look at
this thing, we are being forced to make it on a one side, not an
adversary position, to where the other side can sit back, form its
strategy with all important knowledge of what we're going to do and
can even better their strategy than what we have. It is my opinion
that this should not be fought in court. I would very much object to
this City entering into any present litigation but as a matter of fact,
if it is the consensus of opinion of this Commission that we, in our
legislative package, ask the legislature, explaining to them what has
Afthappened, that they consider possibly changing the law not through a
IMPlawsuit and that is my personal opinion. Also, for the record, Mr.
Knox, I want to put on the record that I am scheduled to be out of this
City March 3, 4 and 5 on official City business for the Florida League
of Cities in Jacksonville, Florida. It is in conversation with you I
am told that my appearance in court on March 4th is not mandatory. Is
that correct, for the record?
Mr. Knox: Yes, sir.
Mr. Plummer: Alright, sir. Then, Mr. Mayor, I want to inform you on
the record that I will be proceeding as scheduled to Jacksonville on
March 3, 4 and 5. I would assume, if it is necessary, that I could re-
turn but I will be there on City business. Thank you.
Mayor ?erre: Anything else?
APJ4URNMENT:
The .e bang no ia4thi4 ba.ne44 to come bebo4e the C44y Comm. 44 .on
at thi.4 Ume, theu.4
meet4ng wa4 adjoa nod at 900 30 A.M.
ATTEST;
Rt2p4 G. Ong
CITY CiRK
11
MAURICE A. FERRE
MAYOR
FEB 281977