MADEIRA BEACH — When 77-year-old Bill Gay bought a condo in Madeira Beach nearly a decade ago, he pictured a relaxing retirement in the walkable coastal town of about 4,000 residents.
But once Gay began following local commission meetings, he decided to put his free time to work — suing the city.
“I don’t golf and my knees are shot, so I can’t play tennis anymore,” said Gay, a former government consultant. “But I am interested in honest government.”
In a lawsuit filed last month against the City of Madeira Beach and four commission members, Gay alleged that officials violated the Sunshine Law when they decided behind closed doors to fire city attorney Ralf Brookes, replacing him with former city attorney Tom Trask, in a ploy to push development deals.
The stakes in this case are especially high. If a court rules in Gay’s favor, a turnover in Madeira’s governing ranks would likely follow.
That’s because a city charter amendment, passed by voters in 2019, requires commissioners who knowingly violate the Sunshine Law to forfeit their office.
“... a Commissioner shall forfeit office if the commissioner is found by the Florida Ethics Commission or a court of competent jurisdiction to have knowingly violated the Sunshine Law, Ethics Laws, or Public Records Laws. A Special Magistrate shall make the final decision concerning forfeiture of office if a Commissioner requests a forfeiture hearing,” the charter reads.
Gay has fought and won a Sunshine lawsuit against the commission before.
In 2017, he brought complaints against the city alleging that commissioners violated the Sunshine Law when they used a secret ballot process to appoint local developer Housh Ghovaee to the commission in 2016, and did not follow appropriate procedures when approving development plans for a large hotel.
The court ruled in Gay’s favor in both cases, finding that the city had violated the law. Ghovaee was removed from the commission, and the development project was scaled back. The city paid Gay’s attorneys about $135,000 in legal fees.
Notably, Trask was the city attorney for Madeira Beach at the time. Soon after, he left his position. He did not work with the city again until his reappointment last year.
In the current lawsuit, Gay points to the previous rulings as context and builds his case around four public meetings held in April 2020 during which Brookes was fired and Trask rehired.
“Commissioners were well aware that during Trask’s former tenure as City attorney in 2016-17 he was responsible for advising the City in matters which the court found violated the Sunshine and Public Records laws,” the lawsuit reads. “By appointing Trask, the Commissioners had confidence they could proceed with their redevelopment plans without complying with the City’s rezoning ordinances, just as they had during Trask’s Former Tenure.”
The development plans referenced are for the Schooner Resort, a planned nine-story hotel on the west side of Gulf Boulevard, which would become the tallest hotel in the small beach city. The commission approved plans for the project in July, and a petition has since been filed in court in opposition.
“(The commission) violated the Sunshine Law before, and they’re doing it again,” Gay said. “There is a rule of law and our city officials need to follow it.”
Named defendants in the case are Madeira Beach Mayor John Hendricks and commissioners Douglas Andrews, Nancy Hodges and Helen Price. The city also is a defendant in the complaint. Commissioner David Hutson is the only sitting board member not to be named. He was not serving at the time.
Hendricks and Andrews declined multiple requests for comment on the case, citing pending litigation. Hodges and Price did not return repeated requests for comment. Andrew Salzman, the attorney representing the defendants, also did not respond.
Florida’s Government-in-the-Sunshine Law was established to ensure government agencies operate with openness and transparency. The law protects the public’s right to engage with the government by requiring governing agencies and elected officials to make all decisions relative to public office in the “sunshine,” and not behind closed doors. Florida’s open government laws are among the strongest in the nation.
Pamela Marsh, president of the Florida First Amendment Foundation and a former U.S. attorney, said that the law is foundational to a healthy democracy. It protects the public by giving citizens the ability to participate in government decision-making.
“The law protects the public’s right to be heard because that’s the way good governance happens,” Marsh said.
Among other things, Florida’s Sunshine Law requires that all discussions of government business among elected officials occur during open meetings, where the public can listen in and where there are set rules about how the meeting is conducted and documented. If two or more elected officials discuss business outside of the public’s view, that constitutes a violation of the law.
“The Sunshine Law requires that meetings of boards or commissions must be open to the public; reasonable notice of such meetings must be given, and minutes of the meeting must be taken,” reads the website for the office of Florida’s Attorney General.
In addition to laying out rules for open meetings, the law provides the public with a right to access documents pertaining to official business. That includes emails, meeting notes and personal memos made by those working in a governmental role.
“The appointment of a City Attorney was a matter which foreseeably was to come before the Commission and the interviews by members of a collegial body were subject to the Sunshine Law. The interviews, therefore, should have been in public at a public meeting,” the lawsuit states.
Gaps in the timeline
While there isn’t explicit documentation in the lawsuit filed by Gay that commissioners discussed business outside of public meetings, Gay’s argument leans on the fact that there were no public interviews or discussions prior to the vote as evidence that a consensus on the hiring decision had been formed outside of the public’s view.
The complaint also makes reference to comments made by a commissioner that showed a direct dismissal of the law, as well as citing a memo left by former commissioner John Douthirt suggesting that the four named defendants violated open meetings requirements when they interviewed Trask.
Videos of the meetings and minutes cited in the lawsuit were reviewed by the Times.
The complaint begins on April 14, 2020, when commissioner Douglas Andrews made a motion to dismiss city attorney Ralf Brookes during one of the first commission meetings of the newly elected board.
Brookes declined to be interviewed for this story.
The next day, commissioners gathered for a work session.
At various points during that session, Hendricks, Andrews and Hodges each spoke about the need to abide by the Sunshine Law. The conversation was in regard to proposed changes in the commission handbook and had nothing to do with the city attorney vacancy.
At one point, Andrews said he hoped the administration would operate more in the light than have those that have come before.
“There were too many secrets,” Andrews said of past administrations. “I want to make sure that doesn’t happen again, that we are discussing (business) in front of our constituents and our citizenry because I think it’s really important that we do, and it’s the law.”
Later in the meeting, Andrews took a different tone.
“I think part of the problem is that we all don’t have each others’ backs,” Andrews said. “Look there’s nobody that can say there’s a violation unless one of us gives out information that this is being discussed or they overhear you discussing and then you have committed a violation. This to me is a little issue and nobody has ever gotten hand slapped for this violation in the past.”
At the very end of the meeting, Andrews recommended the commission consider Trask for city attorney.
“I did have a conversation today with a potential interim city attorney,” Andrews said.
During a work session on April 21, commissioners agreed to hold private interviews with Trask the following day. Similarly, they agreed to call a special meeting for April 28, for the stated purpose of appointing an interim attorney.
In a personal memo written by then-commissioner Douthirt on April 22, submitted as evidence, Douthirt writes that he was contacted by Trask, who already had spoken with the other commissioners, asking if he’d like to interview him. Douthirt writes that he declined.
“A little honesty would be nice both now and in the future from the commission. It seems to me you had already made your mind up on this,” the memo reads.
Two days later, a retainer agreement to pay Trask and his firm $7,000 monthly for legal services was posted to the city website.
On April 28, with no public comment or commission discussion, commissioners voted to appoint Trask as interim city attorney.
Fewer than two minutes passed from the time the agenda item was raised to the time that a vote was taken.
The lone “no” vote was cast by Douthirt.
The lawsuit states that the private interviews conducted the previous week were “neither noticed nor public.”
“As a result of (the private meetings, the commission) decided to appoint Trask and his law firm as City Attorney and negotiated the terms of his Retainer to be voted upon,” the lawsuit reads. “...The only people who could possibly want him back are the ones who benefit (from his appointment).”
Although the appointment of Trask was to be interim, the commission voted at the same meeting to table a request for proposal for legal services to fill the position permanently. It has never been reinstated. Trask remains city attorney today.
In an interview with the Times, Douthirt said the commission’s handling of the matter is one of the reasons he chose not to seek reelection after serving two terms ending in March.
“It wasn’t done in the sunshine,” Douthirt said. “People used to accuse the previous commission of talking among ourselves, and we tried very hard not to be in the same place because of that. But in my heart of hearts, I believe (other commissioners) do talk among themselves and I believe what (Andrews said) really shows that.”
Sunshine lawsuits aren’t all that common, according to Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida. That’s because they can be difficult to prove and lengthy to litigate. Often, the reward for doing so is limited to reversal of a government decision. There isn’t monetary gain.
“For someone to actually take a Sunshine case to court requires a really, really motivated person, because at the end of the case there’s not much meaningful relief,” LoMonte said. “Being sued for a Sunshine violation is a big deal.”
LoMonte said that he couldn’t comment on the specifics of the case, but he said, the appointment of a city attorney is a major decision, and for any governing body to make that decision without public interviews or discussion is cause for concern.
“When a decision of that magnitude is made in a snap, it raises all kinds of suspicions that the real meeting took place outside of the public eye,” LoMonte said. “You don’t normally make a decision of that consequence in a minute. That starts to sound like the decision was really reached offline.”
Marsh, from the Florida First Amendment Foundation, said regardless of the outcome of the case, the comment made by Commissioner Andrews dismissing the serious nature of Sunshine Law violations was concerning.
“To watch that video (of the meeting) is appalling. There is clearly some evidence that the commission has some blatant disregard for the Sunshine Law,” Marsh said, adding that should commissioners doubt the significance of the law, they just need to look at the City of Sebastian, where earlier this year, council members were prosecuted criminally, sentenced and fined for secretive behavior.
“This law does have teeth and there are repercussions,” Marsh said.
The job of a city attorney is to advise the city on complying with the law, she said.
“Not how to circumvent it, or try to stretch it and expand it,” Marsh said. “But to comply with the spirit of the law.”
Gay said that’s part of the reason he feels so strongly.
“They ignore the city’s development code. They ignore the Sunshine act. They do pretty much whatever they want,” Gay said. “The only way to level the playing field is to take them to court, so that is what we’ve been doing.”
Since the complaint was filed in October, attorneys representing the defendants have submitted two motions to dismiss the case.
Attorney Marcy LaHart, who is representing Gay, called the motions an act of “pettifogging.”
“They’re trying to slow down the inevitable by fixating on minute details that have no effect on the substance of the case,” LaHart said.