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HomeMy Public PortalAbout1999-10-17 AttorneyClient Session Bal Harbour Club Inc and Ava Developments - CASE 98-026BAL HARBOUR VILLAGE ATTORNEY -CLIENT SESSION October 17, 1999 655 -96th Street Bal Harbour, Florida 12:10 o'clock p.m. PERSONAL TO UCH REPORTING, INC. ( 305) 944-9884 MAYOR ANDREW R. HIRSCHL ASSISTANT MAYOR DANIELS. TANTLEFF COUNCILMAN JAMES E. BOGGESS COUNCILMAN PEG E. GORSON COUNCILMAN SEYMOUR "SY" ROTH ALFRED J. TREPPEDA, VILLAGE MANAGER STEPHEN JAY HELFMAN, ESQ . Weiss, Serota & Helfman, P.A. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 2 1 2 3 4 5 6 7 8 9 10 11 1 2 1 3 1 4 1 5 1 6 1 7 18 19 20 21 22 23 24 25 THEREUPON, T HE FOLLOWING PROCEE DI NGS WERE HAD: MAYOR HIRSCHL: Let's call this meeting to order, if we may. This is an open meeting and a roll call of the members present. MS. HORTON: Mayor Hirschl? MAYOR HIRSCHL: Here. MS. HORTON: Assistant Mayor Tantleff? ASSISTANT MAYER TANTLEFF: Here. MS. HORTON: Councilman Boggess? COUNCILMAN BOGGESS: Here. MS. HORTON: Councilman Gerson? COUNCILMAN GORSON: Here . MS. HORTON: Councilman Roth? COUNCILMAN ROTH: Here. MAYOR HIRSCHL: Okay. The open meeting has now concluded. The tim e is now 12:13 p.m. We are now go ing to have an attorney-client session in accordance with Section 286.01 18 , Flori da Statutes. The session is estimated to last one hour. The following people will be in at te ndance at the meeting. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 3 1 2 3 4 5 6 7 8 9 10 1 1 1 2 1 3 1 4 1 5 1 6 1 7 18 19 20 21 22 23 24 25 Myself Mayor Hirschl, Village Council members, Assistant Mayor Treppeda (sic), Councilman Boggess ASSISTANT MAYER TANTLEFF: You said Assistant Mayor Treppeda. MAYOR HIRSCHL: Excuse me. Assistant Mayor Tantleff, Councilman Boggess, Councilman Gerson and Councilman Roth. Also the City Attorney present will be Steve Helfman, and Village Manager, Alfred Treppeda. These proceedings wi ll be recorded by a certificate court reporter. At the conclusion of all lit i gation discussed, the transcripts will be made part of the public record. All individuals who I have not named shall leave the room at this time. (Thereupon, the Ms. Horton left t he room. ) MR. HE L FMAN: Okay. We're here. MAYOR HIRSCHL: Steve, we're here. MR. HELFMAN: A couple of you had expressed an interest when this lawsu i t was se r ved on us l ast week to have an PERSONAL TOUCH RE PORT I NG, INC. (305) 944 -9884 4 1 2 3 4 5 6 7 8 9 1 0 11 12 13 14 1 5 1 6 1 7 18 1 9 20 21 22 23 24 25 executive session which is ca lled by our offices. So we have asked you to meet today for the purpose of describing to you, answering questions, if we can, the lawsuit, the impacts of the lawsuit, what it's about, the potential in particular for settlement, see if there's a way to resolve th is without necessarily going th rough a full-blown legal proceeding, the cost of litigation, in particular what i t might cost to go through this process. While we don't hav e a good hand l e on i t yet, I can give you a sense of what I th i nk will be entailed and general l y to explore the suit and get a good understand i ng of i t . This is not to be a meeting about the zoning app l ication, which is going to be heard tomorrow. That is while a related matter, that proceeding --all the judicial proceedings are concluded. It's not the proper subject of a private attorney -c lient meeting. ASSISTANT MAYOR T ANTLEFF: But you -- PERSONA L TOUCH REPOR TI NG, INC. (305) 944-9884 5 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 14 1 5 1 6 1 7 18 1 9 20 21 22 23 24 25 MR. HELFMAN: So those proceedings are separate and distinct from this although there is some relationship and we can certainly touch on that relationship, but that hearing will go forward independent of any discussions here ASS ISTANT MAYOR TANTLEFF: Let me ask you MR. HELFMAN: --even tho ugh they are related. ASSISTANT MAYOR TANTLEFF: Why would you come up with that --what I find to be a ludicrous statement, to just proceed with the zoning hearing when this is clearly a lawsuit that says that if the Master Plan was executed improperly and the trial Court based their decision on voting against the Council because we have to go with the Master Plan, if there's a potentiality that the Master Plan can be i nvalid, the n how in the world can we proceed with a zoning hearing that could -- MAYOR HIRSCHL : I think that's tomorrow's discussion, is what he's PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 6 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 18 19 20 21 22 23 24 25 saying. MR. HELFMAN: That is tomorrow's discussion. What I'm telling you is that may be the proper discussion tomorrow ASSISTANT MAYOR TANTLEFF: I go t you . MR. HEL F MAN: --at the h ea ring or before tomorrow if you would like to discuss it with me and I'm certainly happy to do that and we should, but it's not the topic of th i s lawsuit. ASSISTANT MAYOR TANTLEFF: I got you. MR. HELFMAN: Okay? And that's what we're talking about here. I understand that they're related. I understand that this lawsuit may very well have some impact on the zoning of that property . There's a direct linkage there and we'll talk about how you should proceed tomorrow and what you should do -- ASSISTANT MAYOR TANTLEFF: Thank you. MR. HELFMAN: --but not i n th i s meeting. This meeting is focused on this lawsuit, the merits of it, the potential PERSONAL TOUCH REPORTING, INC. (305) 944-9884 7 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 18 1 9 20 21 22 23 24 25 for settling it , and the potential cost involved in it. So let 's do this . Let me try to explain bri e fly --although you're all very smart. You looked at it . Let's not assume that you understand what's in there and let's talk about what's there and what the allegations are . MAYOR HIRSCHL: Describe it to us, please. MR. HELFMAN : Okay. And I may be repeating it, but let's just go through it. MAYOR HIRSCHL: We'll let you know. MR . HEL F MAN: I know you will . There is --in 1985, th e --let's go back further . There is a plan that was in place for this community which I believe was first developed in 1975, a State required Master Plan 1975 plus o r minus. I may be off by a year. The state mandated that al l governm ent s adopt comprehensive p l ans. They saw growth coming. They saw urban sprawl coming . They saw Florida blooming, PERSONAL TOUCH REPORTING, INC . (305) 944 -9884 8 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 16 1 7 18 1 9 20 21 22 23 24 25 and they said you need to adopt comprehensive plans to control your growth. This is '75. I believe that our Village did that . I wasn't here then, but I'm pretty sure that we adopted one and we had a comprehensive plan in place. What the State found was that none of the governments were following their comprehensive plans. They would take them, they would put them up on a wall (indicating) like this over here and that was it. They 'd never look at it. In 1985, the Legislature said, listen. We meant it when we said adopt p l ans and we want you to follow them, not just adopt · them. So in 1985, they adopted what they called the Growth Management Act. I t was a comp le te revision to the '75 law and they said now, you've got to adopt new plans and in these new plans, which were rea l ly jus t amendments of the ones we told you to do 10 years ago, you have to put enforceable provisions in there. PERSONAL TOUCH REPORTING, INC. (305) 944 -9 884 9 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 You have to have concurrency. You have to have all of these things that would force the local government not just to plan, but to implement. Following the 1985 law, we did that. We adopted a plan . MAYOR HIRSCHL : '75 law . MR. HELFMAN: '75 first and then '85 MR . HELFMAN: I 'm sorry . MR. HELFMAN: we did a new revised plan that had all the teeth in it. Okay? MAYOR HIRSCHL: Thank you . MR. HELFMAN: And at t h at time for the f i rst time --and it really took us several years from the date the legis l ation passed un til we got our plan in place which was '88, '89, we adopted a more detailed plan than we had in '75. Acco rding to the l awsuit , for the first time we addressed par ticular properties in the Village as to how they should be developed and utilized. One of those in particular that ha d focus within our plan was the Bal Harbour PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 1 0 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 16 1 7 1 8 1 9 20 2 1 22 23 24 25 Beach C l ub property --the Bal Harbour Club p r oper t y which was the Beach C l ub component . I 'm not sure what the plan says about t he baysid e prope r ty that the club owns, bu t c l e arly Okay. Jim is i ndicating nothing, but clearly t h e b each prope rt y was the t opic --a topic --in the plan . I think it did two things, even though the l awsu i t doesn't descr i be thi s . I think what t h e plan did was map th e property like every othe r p r operty in th e Village with a land use, and I th i nk i t mapped i t consistent wit h th~ entire oceanfront a re a . I t hink what it did was take for the first time --and t a k e t h at Beach Club proper t y and pu t the same mapping de s ignat i on on it that all the others had which was OF, I think, o c eanfront . Okay? I n addition to tha t , t here was a t extural p rovis i on in t he plan tha t was in s erted that sa i d s ometh i ng to the effect t ha t we antic i pa t e that the Beach Club PERSONAL T OUCH RE PORTING , INC . (305) 944 -9884 1 1 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 property will or could be developed in the future as mu l ti-famil y resi dential high-rise or hotel, which is the same uses that all of the other properties along the beach front had . It basically acknowledged in the plan that this site would go in the future to a multi -fami ly /hotel use like everyth i ng else along the oceanfront. That happens in '88, early . '89. 1 99 --I'm going to guess now --7 -- MAYOR HIRSCHL: Just to correct you MR. HE LFMAN: Yes. In MAYOR HIRSCHL: because I received a copy of the transcripts, it happened in I 8 7 f '88. and it was ratified in January of MR. HELFMAN: In te resting. So I don't know where the '89 da t e came from. MAYOR HIRSCHL: I have no idea. COUNCILMAN BOGGESS: I think 1 87 and I 88 • MAYOR HIRSCHL: The transcr i pts reflect '87 and '88. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 18 1 9 20 21 22 23 24 25 MR. HELFMAN: Okay. Most of the -- the first towns that did comp plans were along the oceanfront. I don't know why they picked i t that way, but the State developed a schedule of 468 l oca l units of local Government when they did their plans. We happened to be one of the very, very first because they got everybody along the east coast and on the oceanfront to do plans first. I don't know the l ogic of it. That's just the way they laid it out. That's just some hi story COUNCILMAN BOGGESS: That's whe r e the most rapi d growth was taking p l ace. MR. HEL F MAN: Maybe they wanted people to get their plans in place sooner. So we move then --we adopt the plan. We move to '97, I t hink. I don't know the date that these guys filed their zoning applicatio n in the first in stance, but maybe it's '98 now and the club comes i n with Ava Development, who is their contract purchaser. PERSO NAL TOUCH REPORTING, INC. (305) 944-9884 1 3 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 Ava has a right to acquire the club land and/or --it's confusing --the club certificates. They negotiate a fairly comprehensive deal to buy up the club, and they get consent from the club to come in and rezone the club's property, but they join both i n the application as the owner and the contract purchaser. They come and they ask for rezoning. We know they put on their whole spiel. We deny it. Okay? We go through the Court proceedings. We go to the Appellate Division . They said we acted improper l y and that's the reason we are coming back tomorrow to have a hearing to consider the rezoning of their property. There were two people who intervened in those judicial proceedings and participated in those judicial proceedings over the past year and a half. Is it Howard Berlin? Is that his name? MR . HELFMAN : Yes. PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 1 4 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MR. HELFMAN: Okay, Howard Berlin and Doug Rudolph. They are two owners o f properties who were not sued when --if you call it sued --who were not named in the appeal with the Village when the Village decided to deny the zoning. They jumped into the proceedings as individua l s whose in terest was affected and they participated in the appeal arguing essentially what the Village was arguing all along in saying that the Village properly denied the zoning. They, like the Village, lost that proceeding. They were side by si de with us during the proceeding. Doug Rudolph now has pursued another avenue, I think I think that's the purpose of this to try to upset the zoning on that property. Okay? Recognizing that he and we lost the appeal, he now is pursuing another avenue to try to keep that property from being developed as multi-family oceanfront, and that's this lawsuit. Okay? What he's saying is that the original PERSONAL TOUCH REPORTING, INC . (305) 944-9884 1 5 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 comprehensive plan, 1987 and 1 88 , was improperly adopted, at least that port ion of it that related to this property. Okay? He's saying that --and because of that, that portion of the plan should be void. Now, what follows from that is well, if t he plan was void, then the zoning that has followed whether by Court order or otherwise --is void because you can't have oceanfront multi-family zoning if the comprehensive plan doesn't so designate. And I think that's a good theory. I think he's right. I mean , fu ndamentally, zoning has to follow fr o m the plan. If the plan is in val id , then any zoning activity that followed from it is void. Now, understand that this is very co mplicated. He's filing this lawsuit 12 years after the plan was adopted. T here are all sorts of things that have happened in the interim, including Court decis i ons. So the direct link between whether the plan was void or not and where we are with zo ning is not --it's not so clear. PERSONAL TOUCH REPORTING, INC . ( 305) 944-9884 1 6 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 There's this fundamental concept which is absolutely true, that zoning must fo llo w from the plan and I t hink that what he's doing is, if he can kill the plan, he figures that from there, the zoning is going to fall apart and he's probably right. He's probably right that if the plan is invalid, then the zoning that follows therefrom should f ail, if it doesn't automatically fail. Okay? So that's his goal, as best I can tell which is the way he's go i ng to get to the zoning now is not through the zoning process, but to have the plan declared in valid. The reason that he says that it's invalid is because the vote on the plan was tainted by at least two, maybe three Council people, including Jim -- COUNCILMAN BOGGESS: Four. MR. HEL F MAN: Does he say four? Potent ial ly four Council people who he claims had a conf l ict of inte rest, who he claims voted on this knowing that they PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 7 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 were going to have special ga in or benefit as a result of that 1 987, '88 vote. Okay? They knew at the time that they had some special interest different than everybody else and that they wer e approving something that was enuring to their own personal gain or benefit. And his theory is if that's true, then the whole process was ta int ed and it was, in effect, a denial of due process to the public. The public did not get a fair hearing and the people who live in this Village didn't get a fair hearing on this thing because whi l e it appeared that everything was fine, sort of behind the scenes, the decisions were prejudiced and the decisions were tainted. Now , some of you may say well, listen. There's only one or two people and the vote was unanimous, and so there were still three others who voted for t he plan. The concept in conflicts of interest and the reason tha t the conflict law says if you have one, you're supposed to not PERSONAL TOUCH REPORTING, INC . (305) 944-9884 1 8 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 only not vote, but you're supposed to leave the room, okay? You're supposed to leave the room because while you may not vote, you may influence the process . If you're ther e, you're speaking against it. You think i t's g rea t. Other people follow you. You're a leader . You're the Mayor maybe. They know that you have been involved. The whole process, Courts say, can get tainted by just the presence of somebody there. So they're saying wi th peop l e, even if the vote cou l d have gone three to two or something, once i t's poisoned, it's poisoned. You can't just look and judge what the other people wou l d have voted. Maybe the discussion would have been a different kind of discussion. Maybe it would have been a negat i ve discussion. Maybe some Council peop l e were intimidated by t he Mayor and didn't want to speak up. I don't think that's the case in this town, but --they talk up whenever they wan t to, but it's possible. PERSONAL TOUCH REPORTING, I NC. (305) 9 4 4-9884 1 9 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 So they're saying that the whole process was tainted and should be set aside. We need to answer this lawsuit and we need to respond to this lawsuit. We need to deal with this lawsuit. We have 20 days in which to file a responsive pleading. You have to give some response. Maybe i t's a motion to dismiss the lawsuit because we think it's got some fundamental flaws in it. Maybe it is just to answer the lawsuit and raise whatever defenses we think we're going to raise along the way which is when I say answer, you admit the things that you know are true, you deny the things that you know are false, and those things that you don't know the answer to and you want to look into, you say, we don't know. That's what an answer to a lawsuit is. It's not answering it yes or no excep t to those things that you absolutely know. That will continue the process moving PERSONAL TOUCH REPORTING, INC. (305) 944-9884 20 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 18 1 9 20 21 22 23 24 25 forward and ultimately unless there's a settlement, it would bring this matter before a Court to determine whether or not, in fact, there was an improper vote. Okay? What I wanted to do today was just tell you about this lawsuit, t alk about it, entertain questions, not necessari l y make any final decisions about how we want to proceed. I think we need to look into some of these allegations. I think I would like to talk with Doug Rudolph and his lawyer and say, what are you trying to do here? Are you just trying to delay something? Because lawsuits are often filed sort of for delay purposes. They're not supposed to be -- (Thereupon, there was an interruption in the meeting, after which the follow i ng proceedings were had:) MR. HELFMAN: Maybe Doug is doing this because he wants leverage over the club. He's been negotiating with the people at the club . PERSONAL TOUCH REPORTING, INC. (305) 944-9884 21 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 Maybe he's doing this because he doesn 't really want to accomplish the upset of our plan, but wants strategically to deal with Ava and the club. I don't know because I haven't really talked to him about it. ASSISTANT MAYOR TANTLEFF: Well, you know, through a ll that, you never said that maybe he's doing it just because he's right. Everything you just said is MR. HELFMAN: I'm not done. I'm saying, you know, maybe he's doing it because he just want to overturn the plan and that's it and he just -- whatever the consequence is, that's what he wants to do. I don't know what he wants to do and I won't know until I talk to him. And I may still not know about what his goals are and he may not tell me. The reason I raised these issues is because if you all want me to begin to have some discussions with them about potentially coming to some resolution of PERSONAL TOUCH REPORTING, INC. (305) 944-9884 22 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 this thing that works out well, I'm happy to do that. That's part of this meeting. The statutory purpose of this meeting to a great extent is for the purpose of talking about potential settlement and approaching the other side and discussing it with them. So that's where we are. Th i s is ve r y serious. I mean, this is not a joke. ASSISTANT MAYOR TANTLEFF: It's criminal. MR. HELFMAN: I don't think --I don't know t hat it's criminal, but it certainly addresses improper activity . Okay? This is not someth i ng to be dealt w ith lightly. This is not something that should --you know, that is a maneuve r and if he's using it that way, I think he's doing it improperly because this involves people's reputations, their credibility. I mean, this is serious. I mean, at some point, the press is going to know about this lawsuit. This is PERSONAL TOUCH REPORTING, INC. ( 305) 944-9884 23 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 not going to be a secret. You know, I don't think they know yet or we would have gotten some calls. But at so me point in the next probably two, three days after tomorrow, I suspect, this lawsuit is not going to be a big secret. I suspect it's going to be ASSISTANT MAYOR TANTLEFF: I did get a call. MR. HELFMAN: Okay. ASSISTANT MAYOR TANTLEFF: I gave i t to Al . The reporter called me. VILLAGE MANAGER TREPPEDA: Right. MR. HE LFMA N: You should have him cal l me. VILLAGE MANAGER TREPPEDA: It was only what was the special Council meeting about. I said it was about having an executive session. That's all we said. MR. HELFMAN: Okay. So it 's a very sensitive issue. This i s going to be the subject of newspaper articles. There is no question that this is going to be a big deal. Conflict of in terest i s a hot issue. Th i s club site PERSONAL TOUCH REPORTING, INC. (305} 944 -9884 24 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 is a very hot issue. I mean, you all need to understand that this thing puts you right in th e middle o f this. It is going to be as hot or hotter than it's ever been. Okay? And everybody is going to be watching you very carefully with the way you deal with this lawsuit. So I just --it needs to be dealt with thoughtfully. We need to have whatever executive sessions. We need to confidentially discuss the suit and make sure that we treat it properly, but it's not something to be taken lightly and say oh, we just do this or we just do that or --you know, it has huge, huge ramifications both from a PR standpoint and a legal standpoint. MAYOR HIRSCHL: We have two options, the way I see your description here. One is to fight it. The other is to admit it. Is that basically the way you go on this? I mean, we 're being sued. Either we fight the lawsuit or we acquiesce. MR. HELFMAN: You -- PERSONAL TOUCH REPORTING, I NC. (305) 944-9884 25 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MAYOR HIRSCHL: Or is it not that simple? MR. HELFMAN: It's not that simple. MAYOR HIRSCHL: I mean, I'm not a lawyer. Sorry . MR. HELFMAN: No, no. Those are options or some place in between and you may resol ve -- MAYOR HIRSCHL : Or negoti ate a settlement. MR. HELFMAN: I mean, those are always the spectrum. MAYOR HIRSCHL: Now, do you negotiate a settlemen t? I don't understand how you negotiate a settlement. MR. HELFMAN: either. I don't necessarily, Now, le t me tell you that one other part of this that's important before we get into discussion about it. This lawsuit involv~s the club and its p roperty and its members and former members, okay? Within short order, there's going to be a motion by --filed by probably Ava, PERSONAL TOUCH REPORTING, I NC. ( 3 0 5) 9 4 4-9 8 8 4 26 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 in all like lihood without question, the club, and potentially the shareholders of the club to intervene in this laws uit. They are not going to sit back and watch the Vill age fight with Doug Rudolph about their property, in effect. Okay? They are going to come into Court and th ey're going to move to interv ene . I would say they have got a 98 percent chance of getting in this lawsuit . You may tell us and we'll talk to you --about whether we want to oppose that, whether we want them in it or not, but the cha nces are is they get in. They own the land that is the subject of the lawsuit. They have forme r members who voted on this thing. They are directly impacted by the outcome of this suit. r can't envision a Court not letting them part i cipate. So you also need to understand that once they're in, how th ey handle th e lawsuit may affect the way we handle the lawsuit. We may say, we'd l i ke to settle. PERSONAL TOUCH REPORTING, INC. ( 305) 944 -9884 27 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 They may say, we're not settling this lawsuit -- ASSISTANT MAYOR TANTLEFF: But again, Steve, what the Mayor asked is: How do you settle a lawsuit whe n they 're claiming a conflict of interest in the adoption of the Master Plan? That's the law . The law MR. HELFMAN: You might settle, for example, by saying, you know what? We're not going to admit anything in this lawsu i t, but what we're going to do is, we're going to rehear the comprehensive plan . Okay? Let's have a full -blown fair public hearing where everybody gets to speak , no prejudice . Everybody d i scloses that they don't own an interest in the land. And Rudolph may say, you know what? If you're going to do that, that's all I'm looking for i s an open fair process . I don't need a Court to determine that this guy was a bad guy or this guy wasn't a bad guy. Maybe that's h ow you sett l e it. I PERSONAL TOUCH REPORTING, INC .. (305) 944-9884 28 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 don't know. I have no idea, but there are multiple ways. And I suspect by the time this thing makes its way through the process, there will be so many different tangents and so many different turns that this thing takes that we can't even any think of because once Ava and the club get in here, they're going to have a way that they want to track this lawsuit. Okay? They're going to say --they're going to come up with a million reasons why the lawsuit shouldn't even be heard at all. On the other hand, we may say, well, listen. You know, we want this thing aired. We want to make sure. Maybe Jim Boggess said, you know what? I want this thing to go away. I want to be done. I want a Court to say I didn't have any conflict of interest. Okay? I want to clear the air here. I don't want it settled because I didn't do anything wrong. Okay? So this thing could take so many different angles, and it will have multiple people involved in it . It's the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 29 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 beginning of a process that we will work through t ogether and get through it, but it's going to be compl i cated and it's going to be sensitive and the newspaper articles are not going to stop . going to be there. It's This is a serious thing that they have done, a very serious thing. And if it's true, then rightly so. I mean, if there was an improper voting on th i s thing, then it should be addressed. I mean, I'm not -- MAYOR HIRSCHL: How do we determine that? MR. HELFMAN: What typically happens is you go through discovery, you go through -- MAYOR HIRSCHL: That means you investigate . MR. HE L FMAN: We do a l i mi ted investigation. I'll call up Jim. I'll say, what the h ell's going on h ere? Did you have th i s? Did you do this? I'll call up Olsen. I'll say, hey, PER S ONAL TOUCH REPORTING, IN C . (305) 944 -9884 30 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 Olsen, listen. This is your reputation. Do you want to sit down with me and explain to me why you didn't have a conflict of interest, or do you want me to admit that you did? Okay. MAYOR HIRSCHL: So you would -- MR. HELFMAN: That's an investigation on our behalf. Then there's formal discovery i n a lawsuit where we subpoena people. We take depos i t i ons. We file requests for admissions. Please admit this. Admit that. it. Provide us with documents. Deny I mean, I don't know who was a member. I'm going to want to see the club's membersh ip rolls. For that year at that t ime, I want to know whose name it was ves ted in. You know, I think Jim never owned a certificate in this place, as far as I know. We're going to find out. I think his condominium owned the certificate and that he had some beneficial interest in one -twelfth of the certificate. PERSONAL TOUCH REPORTING, I NC. ( 3 0 5) 9 4 4-9 8 8 4 31 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 So I don't know that for sure. We're going to look. I want to talk to Jim about it, but all that's going to come out through the discovery process and if we find MAYOR HIRSCHL: that. If we al l ow you to do MR . HELFMAN: Yes. ASSISTANT MAYOR T ANTLEFF: Can I ask you? What does the case law say? MR. HELFMAN: About what? ASSISTANT MAYOR TANTLEFF: About MR. HELFMAN: You ain't going to find a case like this. ASSISTANT MAYOR TANTLEFF: No. What does the case law say in terms of a conflict of interest? What does the case law say? MR. HELFMAN: There is a prohibition, which you all are aware of because of you're public officials ASSISTANT MAYOR TANTLEFF : But are there any cases that MR. HELFMAN: Yes. MR. TANTLEFF: Okay. Do you have any PERSONAL TOUCH REPORTING, INC. ( 305) 944 -9884 32 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 case law today at all, whether interns or anybody working over the weekend for this major meeting? Do we have any case law to discuss t oday? MR. HELFMAN: There is a lot of law on confl i ct of interest. Most of it is opinions -- ASSISTANT MAYOR TANTLEFF: Attorney General. MR. HELFMAN: --Attorney General opinions, which are opinions. They're as good as your opinion and my opinion. Okay? ASSISTAN T MAYOR TANTLEFF: Right. Sure, okay. MR. HELFMAN: But basically, what the law is that you're all aware of i s that if you have a matter that will enure to your own private special gain different than the public at large, you shou ld recuse yourself from voting on that matter. Okay? But that is a decision that's vested in you all as individual people who are the only ones who know what you have and PERSONAL TOUCH REPORTING, INC. ( 305) 944-9884 33 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 don't have. MAYOR HIRSCHL: So the a t torneys have no obligation -- MR. HELFMAN: No. MAYOR HIRSCHL: at the beginning of the meeting to get into that . MR. HELFMAN: No unless --well, let me tell you what typically happens. What typically happens --and I expec t ed that you might ask that --is that somebody comes to us --and this happens all the time in the multiple ci t ies --and says, listen. I'm a little b i t concerned . You know, I own part of this proper t y or my sister owns it or I have had people that say, my mother lives on that block. Do you think I should be voting on this th i ng? And we then will give advice. We will say, this is the law . We'll try to help out and give advice on whether or not you really have a conflict that you should be recusing yourself on. That's the way that these things proceed . Otherwise, what happens is your PERSONAL TOUCH REPOR T ING, I NC . (305) 944-9884 34 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 lawyers end up be ing policemen, which is not our job. You didn't hire us to be -- (Thereupon, there was an interruption in the meeting, after which the following proceedings were had:) MR. HELFMAN: I don't know what I ordered -- Let the record reflect that there's food being passed out now and when I said I don't know what I ordered, I can't figure out whe t her i t's ham, roast beef, or turkey. VILLAGE MANAGER TREPPEDA: There was an original order, and that order got all messed up. They sent bread and no food, so it's whatever is t he re MR. HELFMAN: By the way, I could care les s . So it doesn't matter. Tak e whatever you want. I'm talking, so I'm not going to eat here. We should know this, by the way, for the future just so we have a good understanding so that we don't end up in a situa ti on similar to t hi s in the future. We're not policemen, your lawyers. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 35 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 18 1 9 20 21 22 23 24 25 We don't stop at every matter on the agenda and start quizzing each of you and say now, does your mother work h ere? Does your father work here? Do your kids have any interest in a trust that might be affected by this? We don't know your personal lives. It's not our business to be querying you about whether or not you have a conflict of interest on any particular vote. Okay? Our role is t o give you advice and when you believe that you have a potential conflict , you should come to us and se ek our advice on that, but we're not an enforcement agency. Okay? MAYOR HIRSCHL: Ok ay. You made i t clear. MR. HELFMAN : But t hat's a fair question, Andy, a very fair question MAYOR HIRSCHL: Sure, it's a f air q u estion . I thought about it. MR. HELFMAN: --because it comes out and people say well, why were we in this situation? It's because the obl i gation is on the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 36 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 15 1 6 1 7 1 8 1 9 20 21 22 23 24 25 person who votes by State law to identify whether he is working on something or voting on something that might benefit him personally. It's not on your lawyers to do pre-voting investigations on e v ery matter like we hav e an agenda -- ASSISTANT MAYOR TANTLEFF: The burden is on the elected official to come to you. open . MR. HELFMAN: Yes. ASSISTANT MAYOR TANTLEFF: Got you. MR . HELFMAN : And then we are very But our clients do not want us probing into their personal lives and their finances on every vote t hat they take . It would be unworkable if I had to do that or we had to do that with you, and we wouldn't be your lawyers f or lon g because I don't think you'd stand for it. So that 's the answer to that question. Why don't we open it up? If I th i nk that you're delving into questions that are beyond t he scope of this kind of PERSONA L TOUCH REPO RTI NG, INC. (305) 944 -9884 37 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 meeting, I'll tell you. Again, there may v ery well b e an impact of this lawsuit on the zoning of the property that's the subject of this lawsuit. ASSISTANT MAYOR TANTLEFF: So what do we do about that? MR. HELFMAN: And ultimately, depending on what happens with this lawsuit, we may do something about it or the Court may do something about it. It may tell you that the zoning was improper because the comp plan was invalid. We may at some point have to go back and downzone the property. If we z one it COUNCILMAN BOGGESS: upzoned yet. It hasn't been MR. HE LF MAN: It hasn't been upzoned yet. But if we upzone i t, we may have to go back and downzone it. We may have to go back and say, hey, listen. It was MAYOR HIRSCHL: Is this the appropriate time to talk about zon ing right now? PERSONAL TOUCH REPOR T ING, INC. (305) 944-9884 38 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MR. HELFMAN: No. I 'm just saying to you at some point in the future depending upon on what happens with this, that there are all sorts of consequences to the property that are going to occur and to us, too. We will be in the middle of that. MAYOR HIRSCHL : about the l awsuit. I would like to talk MR. HELFMAN: I do, too. MAYOR HIRSCHL: You mentioned before that --and I don't know --I still don't know any law, I'm happy to report. MR. HELFMAN: Right. MAYOR HIRSCHL: I know minimal dentistry. I know less law. I would like to know that you said something that the case is twelve years old. Are there statutes of limitation that come into play here that would allow us to overlook this lawsuit and just move on? is one question. The second question I have is: If, as you mentioned in your discuss ion with PERSONAL TOUCH REPORTING, INC. (305) 944-9884 39 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 us, that since the public was not given the fair opportunity to be aware of the compromises that people had prior to voting, that they should be allowed to have that opportunity for a hearing. My question is, what takes precedent here? What is the answer? MR. HELFMAN: This is a highly, highly, highly unusual lawsuit. There is nothing that comes close to this kind of lawsuit. MAYOR HIRSCHL: sound expensive. It's beginning to MR. HELFMAN: Oh, no. It --yes. mean, it may very well be and we may not control that. Doug Rudolph may control it. I In othe r words, the degree to which he wants to pursue this aggressively , we may be responding to a lot of stuff -- MAYOR HIRSCHL: I couldn't care less about Doug Rudolph. City I care about th e MR. HELFMAN: Right. MAYOR HIRSCHL: --and the City's PERSONAL TOUCH REPORTING, INC. ( 305) 944-9884 40 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 exposure MR. HELFMAN: Right. MAYOR HIRSCHL: --the City's obliga tion to the citizens MR. HELFMAN: Right. MAYOR HIRSCHL: --or the City's ability to tell Doug Rudolph to go take a hike because the statutory limitations have been exceeded here. MR. HELFMAN: Okay. MAYOR HIRSCHL: That's what I want to know. MR. HELFMAN: Okay. There are a number of defenses t o the lawsuit that we're just beginning to look into and he may --there's all sorts of things. There's something called la tch es, which is a concept that you waited too long. You have a good case, but you waited too long. Why did you wait a year? Why did you wait twelve years? I mean, the Courts are not going to redress something just because you dec i d ed that now is the right t im e to go after i t. T here are statutes of limitations in PERSONAL TOUCH REPORTING, INC. (305) 944-9884 41 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 lawsuits, like anything. At some point --you may have been really taken by a contractor, but at some point after four or fiv e years, you can't sue the guy any more. MR. TANTLEFF: Do you know if there are statutes of limitations? MR . HELFMAN: I don't know whether there's one on this particular type of proceed i ng, but we're going to look at it. I mean, those are the kind of things -- MR. TANTLEFF: Has anything been done since we got served with the lawsuit? MAYOR HIRSCHL: No. This meet i ng MR. HELFMAN: Very little. This meeting . I mean, we have read it. We have evaluated it. I have a number of ideas about defenses. I have spoken to Jim Boggess a little bit about the allegations. Yes. We're at the very formative first stage of evaluating t he su i t and how we want to respond to it, but like any suit, there's going to be --there's a PERSONAL TOUCH REPORTING, INC. (305) 944-9884 42 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 question of standing. Does Doug Rudolph have standing to do it? Was he an o wner of prope r ty in the Village at that time? COUNCILMAN BOGGESS: No, he was not. COUNC ILMAN ROTH: In 1988? COUNCILMAN BOGGESS: No. MAYOR HIRSCHL: Does that have an effect? ASSISTANT MAYOR TANTLEFF: I t could. MR. HELFMAN: Even if it was proper, he wasn't here. He wasn't a res i dent. It wouldn't have made a darn bit of difference is the argument. Okay? Because you -- Now, the r e doesn't mean there wasn't a wrong. It just means that Doug Rudolph can't assert th e wrong. It doesn't mean What Co u rts very often say is, you're exactly right. There was a terrible wrong here, but you don't have the right to raise it. MAYOR HIRSCHL: I see. MR. HELFMAN: Maybe your neighbor PERSONA L TOUCH REPORTING, INC. (305) 944 -9884 43 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 does. Maybe somebody else who lived here at that time. So -- MAYOR HIRSCHL: Suffice it to say, it MR. HELFMAN: But I don't know this because I didn't know until you just told me that he didn't own the property. COUNCILMAN BOGGESS: He didn't. MR. HELFMAN: I know that his wife's family, I think, owned some property here. Who knows? COUNCILMAN BOGGESS : Yes. MR. HELFMAN: Maybe they amend the lawsuit to bri ng in other Plaintiffs who have standing. ASSISTANT MAYOR TANTLEFF: It's a mess. MR. HELFMAN: It is a mess. There are always --you know, you read it. It paints a picture and then you 90 back and you start talking to other people and you have got a whole different picture. It's like oh, wait a minute. For a minute there, I thought I was going with this guy. Now, I'm going this way. Now PERSONAL TOUCH REPORTING, INC . (305) 944-9884 44 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 that I hear he didn't own property there and I hear he waited twelve years, all of a sudden, while there may have been a problem, maybe he's not the right legal person to address the problem. ASSISTANT MAYOR TANTLEFF: Can I ask you? Were you our City Attorneys back then? MAYOR HIRSCHL: Yes . MR. HELFMAN: Individually, we were. Our l aw firm wasn't. We were working at a firm called Fine, Jacobson and t hey were the City· Attorneys at the time. Richard sat with you. There was a lawyer i n the firm at the time who --small wor l d his name is Carter McDowell, who now represents the club . That may result in some i n terest ing conflict of interest poten ti ally here. I don't know. I haven't even thought about it, but Carter worked with me and Richard and he was a land use expert at Fine, Jacobson and he reviewed your PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 45 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 comprehensive plan from compliance with State law. I think he was here. Maybe I was here. I don't remember exactly the proceedings. Did you guys look at the transcripts? MAYOR HIRSCHL: I read the transcript, some of it. MR. HBLFMAN: Yes . Do you remember who was there? MAYOR HIRSCHL: No . COUNCIL MAN BOGGESS: T h e records are so sketchy. I asked for this information several weeks ago and I sent it to you at that time because I heard a rumor this was going to happen, but there was nothing in there. COUNCILMAN ROTH: You heard a rumor -- COUNCILMAN BOGGESS: Did we get poor records? MAYOR HIRSCHL: The transcripts shows that matter up for vote -- MR. HELFMAN: R i ght. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 46 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MAYOR HIRSCHL: --and who voted for it. MR. HELFMAN: So it 's minutes. It's not a transcript. MAYOR HIRSC HL: Minutes. Minutes is what I looked at. MR. HELFMAN: So it doesn't show any of the v erbatim discussions that occurred or who was there -- VILLAGE MANAGER TREPPEDA: And the tapes don't exist. MR. HELFMAN: They don't ex i st? VILLAGE MANAGER TREPPEDA: No. MR. HELFMAN: Why is that? VILLAGE MANAGER TREPPEDA: They don't have to keep the tapes forever. There are records destruct ion time limits. MR . HELFMAN: And we don't have tapes? VILLAGE MANAG ER TREPPEDA: No, no tapes. COUNCILMAN BOGGESS: I wish we did. MR. HE LFM AN: You hav e looked? VILLAGE MANAGER TREPPEDA: Yes. MR. HEL FM AN: So the answer on the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 47 • 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 statute is there may very well be not only a statutory bar but a common law bar from bringing something too late. MAYOR HIRSCHL: Okay. My next question MR. HELFMAN: And that could be even be as long as a year. For example, if Doug Rudolph became aware of this s i tuation a yea r and a half ago, he may be precluded at this point from raising it. rt may be in the law that he waited too long, that he should have brought it with --and raised it in the other appeal if he knew that it was a problem. So and that --a Court of equity decides whether it's really equitable at this point for him to bring that up. MAYOR HIRSCHL: Okay . Let's assume he has no standing . He has no -- MR. HELFMAN: Right. MAYOR HIRSCHL: --he has no whatever, but the allegations pan out to come true. Do we, as the elected officials, have PERSONAL TOUCH REPORTING, INC. (305) 944-9884 48 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 an obligation to right the wrong without the lawsuit now forcing us to because the lawsuit conveniently or for whatever reason has to be dropped because of its legal problems, as you say -- MR. HELFMAN: If a Court MAYOR HIRSCHL: but the merit of it is here . MR . HELFMAN : If a Court said, we find that there was a conflict of interest, but t hat Mr. Rudolph doesn't have standing to raise these issue s and, th erefore, we dismiss the suit or we find in favor of the City, I think at that point certainly you would arguably have th e opportunity to do something to address that. Okay? MAYOR HIRSCHL: I missed you there. If the Court says that the City ASSISTANT MAYOR TANTLEFF: The lawsuit has merit, but that the Rudolphs don't have standing to bring the lawsuit -- MR. HELFMAN: R i ght. AS SISTANT MAYER TANTLEFF: --then we PERSONAL T OUCH REPOR T ING, INC. ( 305) 944-9884 49 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 -2 3 24 25 could do something. MAYOR HIRSCHL: Okay. MR. HELFMAN: What the law doesn't let you do is pass ord i nances and at the same time act in the judicial role of judging whether your own ordinances are Constitutiona l or valid or no t . There's l aw, fairly well established law, that leaves the validity of an ord i nance with a separate arm of Government. That's t he separation of Government into the judicial arm, the legislative arm, the executive arm. You, in adopting that ordinance, were acting in a legislative capacity. You were passing an ordinance establ i shing a policy, a land use comprehensive plan policy, for the City. You're not acting as Judges to determine whether your action was proper or improper or legal or illegal. That's left to the Courts. So if the Court f ound that there was a violative c onflict of interest and that this thing was done improperly, at that PERSONAL TOUCH REPORTING, INC. (305) 944-9884 50 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 poin t , yes . I think that even if Doug didn't have standing, you would arguably ha v e the r i ght to go in and remedy that wrong. That may j ust be by holding a n other hearing, a public hearing, allowing everybody to come and do that . MAYOR HIRSCHL: Let's assume t he Court say s there's no merit for this lawsu i t at all. MR. HELF MAN: R i g h t . MAYOR HI RSCH L : There's n o thing wrong here . I t's f i ne. MR. HE LFMAN : Okay. MAYOR HIRSCH L : And I , as a Counc il person who have read those transcripts I'm not a Judge or a lawye r . MR . HEL F MAN: Right. MAYOR HIRSCHL: I r e ad an d unfor t unately, it does deal with o ne o f our own here p r esen t -- MR . HE L FMAN : Right. MAYOR HIRSCHL: --wh i ch i s disturbing to me because he's a great guy. What if we --we know what that says PERSONAL TOUCH REPORTING , INC. (305) 94 4 -9884 5 1 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 in the minutes. I mean, it's there. I kept reading it and reading it and reading it. MR. HELFMAN: You might have --I'm making this up, but you might have the ability to bring a dee action, a declaratory judgment action, on your own saying that a dispute has arisen between the Vil l age and a property owner, for examp l e, and that you want the Court to declare the rights of the parties and maybe bring th is is sue before the Court through the Village. Now, that's unusual, but we could conceivably end up in a situa tio n like that. It's totally outside the scope of this. It's as though no suit ever happened . Somebody just brought it to your attention. You're in dispute as to what your rights are as a Village in enforcing your plan because somebody has alleged that i t's invalid and you're looking for the Court to determine whether it's valid or not. Now, the property owner who i s PERSONAL TOUCH REPORTING, INC. ( 305) 944 -9884 52 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 affected by that is go ing to be a Defendant. They're going to come in and say, they can't do this now. They passed the ordinance. It's 12 years and now they're second guessing themselves, and they'll come up with all sorts o f defenses to keep you from getting that judgment that you're looking for. So there is probab ly an avenue to explore it if t hat lawsuit doesn't go anywhere --if this lawsuit doesn't go anywhere. MAYOR HIRSCHL: In your professional abili t y, does this lawsuit forgetting the statute of limitations merit? does it have MR. HELFMAN: I think if all of it is true, if everything that they have said is true --and forgetting about all the technica l d if ficulties. If you had the right Pla i nt iffs and you brought it timely and everything else, I think it could be meritorious. MAYOR HIRSCHL: I'm done with my questions. PERSONAL TOUCH REPORTING , INC. (305) 944-9884 53 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 Next? Anybody? MR. TANTLEFF: So we don't talk about the zoning hearing until tomorrow. COUNCILMAN ROTH: We can't talk about the inter-relationship MR. HELFMAN: You can ask me and I'll tell you whether I think we should leave it for another discussion. What do you want to know? MAYOR HIRSCHL: Ask a question. COUNCILMAN ROTH: I want to know basically --when we had the little chat in private, you know MR. HELFMAN: If you want to know COUNCILMAN ROTH: Because we have to make a decision tomorrow. MR. HELFMAN: whether this affects your vote tomorrow, I don't think that's the proper topic to be discussed here. I 'm happy to t alk to you about it privately and give you my thoughts on whether or not it impacts the vote tomorrow. So let me tell you what I think MAYOR HIRSCHL: Do we have to PERSONAL TOUCH REPORTING, INC . (305 ) 944-9884 5 4 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 recommend to you what to do at this point or publicly, we have to do that? MR. HELFMAN: If you think -- MAYOR HIRSCHL : Do we announce this lawsuit to the public tomorrow? ' MR. HELFMAN: I think that there's COUNCILMAN ROTH : You've got to answer it. MR . HELFMAN: I suspect that amongst all of you, it will be raised tomorrow -- MAYOR HIRSCHL: That's enough of that question . Do we then --do we -- MR. HELFMAN: Let me tell you what we're going to do . We're going to review it. We're going to see whether there are any blatant fatal defects in this suit, whether there are defenses that absolutely should be raised. We're going to try to investigate the truth of the allegations, as we would with any lawsuits. If you got sued for a contract or you got sued by some patient, I'd come and I'd sit down with you --I PERSONAL TOUCH REPORTING, INC . ( 305) 944-9884 55 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 know it's never happened and it won't happen -- MAYOR HIRSCHL: It better not. MR. HELFMAN: But I come and I sit down and I say, "Andy, what happened here? Did you ever see this person?" "Yes. Well, they were here. I don't remember exactly what happened or 11 MAYOR HIRSCHL: So you investigate. MR. HELFMAN: So I'm going to do the same thing with the Village. I'm going to look at your plans. I'm going to look at the notice. I'm going to see --I'm going to look into this and formulate a strategy for you all to pursue. I can come to you and explain that strategy and say, "This is--" and we'll talk about it. You'll tell me. I'm just the lawyer. You're the client. You all collectively will tell us how you want to deal with this lawsuit. I'll try to give you more information, things that I've l earned, tell you the potential defenses that you PERSONAL TOUCH REPORTING, INC. (305) 944-9884 56 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 have. If you don't want to raise some of those defenses because you think that yo u want to move this thing forward and get it to issue and answer it and you say, just answer the Compla int. Let's get going. Let's get this thing before a Court as quickly as we can and get a resolution to it, great . We wi ll do that . We'll do that and we'll probably call a meeting, whether it's an Executive Session and appropriate for that or a regular meeting to discuss how we move forward. We have, I think, 15 days in which to file an answer or some responsive pleading and we take it seriously. I mean, we'r e going to do it. We're working on it . Let me tell you who is working on it MR. TANTLEFF: And also, on that note. What if we wanted another law firm to handle the case? MR. HELFMAN: You could certainly do that. ASSISTANT MAYER TANTLEFF: Because I PERSONAL TOUCH REPORTING, INC. (305) 944-9884 57 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 would like to bring it up for discussion. MAYOR HIRSCHL: Now? MR. TANTLEFF: I don't know when t o bring it up . MAYOR HIRSCHL: Regarding th i s case? MR. TANTLEFF: Regarding this case . MR. HELFMAN: Yes, this case . MAYOR HIRSCHL: Okay. Then -- ASSIS T AN T MA YER TANTLEFF: I just think that -- MR. HELFMAN: I don't think i t's out of order. ASSISTANT MAYER TANTLEFF: Yes. I mean, I have great respect for you -- MR. HELFMAN: Right . ASSISTANT MAYER TANTLEFF: --and your firm -- MR. HE L FMAN: I know that. ASSISTANT MAYER TANTLEFF: --but I think this firm is too close. I think Richard was sitting on the Council during this meeting. I will say publ i cly that the last lawsuit we went throug h was not very sa ti s f actory to my, you know, conc l usion. PERSONAL TOUCH REPOR T ING, INC . ( 305) 944 -9884 58 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 18 1 9 20 21 22 23 24 25 I think that everything that we were told did not happen. I would like to investigate the possibilities of bring i ng in outside counsel that are well versed in munic i pal law to handle th i s l awsuit and let them be our City Attorneys, but I don't think it's a good idea to have them in this lawsuit, given the -- MAYOR HIRSCHL: You don't think it's a good i dea for what reason? MR. TANTLEF F : We l l, Richard Weiss may even be a witness in this potential lawsuit. we don't know what's go i ng to happen going back there and I think it's just time that given the complex i ty of this lawsuit, that we don't have our regu l ar Village Attorney serve in this lawsuit which can go in a hundred d i fferent directions. It's just something I wanted to bring up for discussion. COUNCILMAN BOGGESS: I feel very comfortable with them, but -- MAYOR HIRSCHL: I mean, the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 59 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 possibility does exist that Richard would be deposed -- MR. TANTLEFF: Of co ur se. MAYOR HIRSCHL --and all that stuff, too? Isn't there a client-attorney privilege? MR. HELFMAN: It is conceivable that somebody might want to ask R ichard whe ther there were discussions between him and the Council people about a potential conflict of interest. That's the only --th e only th ing that I would think would happen is typically, the lawyer i s not deposed on that. But somebody would go to Jim in a deposition and say, well , did you talk to anybody about thi s? Did you think you had a conflict of intere st? Did you talk to the City Attorney? If he said no, that would probably be the end of it. I'm n ot --I understand your concern. I'm not adverse to it. You all need to determine whether you think that we're -- PERSONAL TOUC H RE PORTI NG, INC. (305) 944-9884 60 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 18 1 9 20 21 22 23 24 25 I don't th i nk the conflic t of in t erest thing should interfere with you all having to go ou t and get outs i de counsel. I don't think -- ASSISTANT MAYER TANTLEFF: No, that's not MR. HE L FMAN: And if i t eve r did at some point create a situat i on, we obviously would immediately --we would be the first people to say, wait a minute. We're going to be a witness in th i s th i ng. We can't be the lawyers. That would b e the f irst thing. If that's what you'r e concerned about -- ASSISTANT MAY E R TAN T L E F F : No. That's like 10 percent of the concern. MR. HELFMAN: Okay. If y o u have some othe r concern, you should air it --I don't know t ha t this is really the proper f orum to do it. MR. TANTL E FF: Okay. MR~ HELFMAN: I think if you all want to have a meet i ng to discuss it --forget about the merits of the lawsuit, which you PERSONAL TOUCH REP ORTI NG, I NC. (305) 944-9884 61 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 may not want to discuss in a public meeting, but you want to talk about what lawyers you have handle it? MAYOR HIRSCHL: It has to be at a Council meeting? MR. HELFMAN: Yes. You can't talk otherwise outside of a Counc il meeting. COUNCILMAN ROTH: We only have 15 days to answer. Why can't they answer the lawsuit, and then we could decide if we ne e d an outside counsel? MAYOR HIRSCHL: Te l l us why we shouldn't, though . You're an attorney. MR . TANTLEFF: That sounds like a good plan. I just know that a lot of cities do have other people other than their attorney handle matters. MAYOR HIRSCH L : R i ght. ASSISTANT MAYER TANTLEFF: The last lawsuit, we let them handle. We should bring in it's time that we bring in other people who are very competent to assist us with our legal troubles. This PERSONAL TOUCH REPORTING, I NC. (305) 944-9884 62 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 is going to be a big one. COUNCILMAN BOGGESS: That last lawsuit was a stab in the dark, at best. MR. TANTL EF F: Right. COUNCILMAN BOGG E SS: So t he results of that shouldn't be -- MR. T ANTLEFF: No, but just in general, I know from friends on the Dade League that I speak to that all cities do use other attorneys other than their City Attorney. MR. HELFMAN: Well, j ust so you know, the reason tha t they do that is because they don't have 27 man law firms that only do municipal work. Typ i cally, they have one City Attorney who doesn't have the experience in multiple areas, is not a l i tigator, is general l y just a governmental person and when they get sued they typically go out Like the City o f Coral Gables has a woman named Elizabeth Hernandez. E very single matter that comes in the City, she farms out. She's jus t sort of the PERSONAL TOUCH REPORTING, INC. {305} 944 -9884 63 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 General. MR. TANTLEFF: Right. MR . HELFMAN: None of them have law firms with 27 lawyers with mun i cipal local government expertise that are handling it. We have more lawyers, I think, than the County Attorney's Office possibly. MR. TANTLEFF: Right. MR . HELFMAN: So that's t he reason they do it . But I'm not telling you --I don 't want in any way to dissuade you, bel i eve me. MAYOR HIRSCHL: I think it's an important poin t . MR. HELFMAN: I want you all to have ASSISTANT MAYER TANTLEFF: I wanted to bring it up for discussion. MAYOR HI RSCHL: As you all recall when we did Munisport, you even told us, bring in Gerry Richman MR . HE L FMAN: Right. MAYOR HIRSCHL: --you know, bring in other attorneys -- PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 64 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 MR. HELFMAN : Right, absolutely and MAYOR HIRSCHL: This is without question MR. HELFMAN: --if you feel that we're not suited to handle this matter and you feel that there's another law firm that should do it, you should have that discussion. mean I am not offended by that. MR . TANTLEFF: It's not meant to offend you. I MR. HELFMAN: I want you guys to have the best representation there is . MR. TANTLEFF: Right. MR . HELFMAN: I think we can provide it to you, but that's your decision, not ours . We don't make that decision. MAYOR HIRSCHL : And that discussion is not now. Correct? MR. HELFMAN: It's not during the -- it's not purpose of this meeting. MAYOR HIRSCHL: Right. COUNCILMAN GORSON: You're leaving us off. What do we do tomorrow? PERSONAL TOUCH REPORTING, INC. ( 305) 944-9884 65 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MR. HELFMAN: We're going to talk about that --individually, I 'm happy to chat with you about it, but not as part of this proceeding. COUNCILMAN GORSON: You started to say something about tomorrow. You got off on something else. MAYOR HIRSCHL: Can you give us est i mates on cost? You mentioned earlier that cost is one of the d i scussions today a nd you had a very loose -- MR. HELFMAN: Yes, yes. MAYOR HIRSCHL: number out there. MR. HELFMAN: I don't even have that, but let me t hink about this. I think that this could be a --if it's tr ied, it goes all the way through? I think this could be a hundred to $150,000 matte r . MAYOR HIRSCHL: You'll have the biggest law firm in town by the time you get done with it. MR. HELFMAN: I'll have -- COUNCILMAN ROTH: So it's a thousand hours or less. PERSONAL TOUCH REPORTING, INC. ( 305) 944 -9884 66 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MR. HELFMAN: I think that's what it could be. Now, I don't know what the other side is going to do. I mean, Doug Rudolph has got to --I mean, he's in this and so it depends. He drives that to a great extent. How many depositions he wants to set down, how many hearings he want to have. I mean, I don't know what the motivation is here, you know? I'm not sure tha t he's in it for that numb er. don't know. I have no idea what his I theory is or whether he's just do i ng this to sort of throw something out there to try to pidetrack the process. I suspect that the developers will look at this as something that is just something that he's throwing out there to try to mess up the process. MAYOR HIRSCH L: It seems stronger than something thrown out there, though, to me. At face value MR. HELFMAN: Yes. PERSONAL TOUCH REPORTING, INC. ( 305) 944 -9884 67 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MAYOR HIRSCHL: At face value, it does. MR. HELFMAN: It 's certainly serious allegat i ons. MAYOR HIRSCHL: Yes, and as you say MR. HELFMAN: The strength of them I don't know, but the seriousness of it is MAYOR HIRSCHL: Let's not call the paper. MR. HELFMAN: You know what I really think that you should -- MR. HELFMAN: Please. MR. HELFMAN: --probably tell them that the matter it's a litigation matter and just refer them to us and let them call us. VILLAGE MANAGER TREPPEDA: Send it right to them. MR. HELFMAN: That way, you don't have to worry about anything. Just tell them, listen. Our lawyers have asked to us refer any comments to them, and you're out of it. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 68 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MR. TANTLEFF: So can I ask you then? Tomorrow when he get to tab B, do we just look to you for what we do from there? MR. HELFMAN: Yes. You and I will talk about it after the meeting MAYOR HIRSCHL: Have your individual discussions -- MR. HELFMAN : Yes. We have some time. ASSISTANT MAYER TANTLEFF: meetings? Individual MR. HELFMAN: Yes. Okay, anything else? MAYOR HIRSCHL: Any other questions? VILLAGE MANAGER TREPPEDA: Do you anticipate asking for another Executive Session at tomorrow's Council meeting so we wouldn't have to ca l l a special meeting? MR. TANTLEFF: Do we proceed with letting you do the answer? MR. HELFMAN: You probably should. think what we'll do at t omorrow's meeting is ask for another Executive Session PERSONAL TOUCH REPORTING, INC . (305) 944-9884 I 69 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 meeting that we set maybe 10 days from now. If we need it, fine . If we cancel it, we cancel it. It doesn't that way, we'll have it available and we won't have to call another meeting to have a meeting. MR. TANTLEFF: So do we let you proceed now with the answer? Is that what you need now fro m us, the 20 day limit? MAYOR HIRSCHL: I think he has to do an investigation. MR. HELFMA N: Well, we're going to do all of the work in anticipation of preparing a responsive p leading . Whether it's an answer or a mot ion to dismiss, I don't know. You're going to do one or the other . MR. TANTLEFF: Right. MR. HE LF MAN: I mean, you have a responsibility, I think, to at a very minimum --at a very minimum --at least file some responsive pleading and not default on the lawsuit. MAYOR HIRSCHL: Of co urse not. MR. HELFMAN: I mean, is it worthy PERSONAL TOUCH REPORTING, INC. (305) 944-9884 70 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 enough that you're n ot going to just close your eyes and hope it didn't happen. MR. TANTLEFF: Right. MR. HELFMAN: I mean, we're going to file something . So either way, the research that we're going to do and the investigation we're going to do is basically the same. What we arrive at in terms of that respons i ve document that we fi le , wheth er it's a mot ion to dismiss to say to the Court basic all y, this thing should be dismissed, it shouldn't even be here, or whether it's okay, they state a claim . If all this is true, but we deny that it 's all true. It's not --you know, we'll decide that as we go along over t h e next two weeks, the best filing that we should make . COUNCILMAN GORSON: Is that something you're going to discuss w ith us? MR. HELFMAN: Yes. MAYOR HIRSCHL: Should we get Jeanette back? VILLAGE MANAGER TREPPEDA: Yes. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 71 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MR. HELFMAN: Let the record ref l ec t that we have now concluded th e attorney-client session and then we are going to ask the clerk -- MAYOR HIRSCHL: We're back in open meeting. The attorney-client session has now been closed --terminated. Members of the genera l public are now invited back i nto Council chambers for further proceedings or matters . The time is now 1 :09 p.m. MR. HELFMAN (To the Reporter): Keep this on the record. MAYOR HIRSCHL: adjourn? Is there a motion to MS. HORTON: It's 1:10. You're all p r esent. You are going to need a motion to adjourn. MAYOR HIRSCHL: Is there a mot i on to adjourn? COUNCILMAN BOGG ESS : So mov e . MAYOR HIRSCHL: Second? COUNCILMAN GORSON: Second. MAYOR HIRSCHL: All in favor? THE COUNCIL (IN UNISON): Aye. PERSONAL TOUCH REPORTING, INC . ( 305) 944 -9884 72 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MAYOR HIRSCHL: Th i s meet i ng i s adjourn e d. Thank you . (Thereupon, th e meet i ng was conc l uded a t 11 : 5 0 o' c 1 o c k. a. m. ) PERSONAL TOUCH RE P ORTING, INC. (305) 944-9884 73 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 CERTIFICATE OF REPORTER STATE OF FLORIDA ) ss. COUNTY OF DADE ) I, CAROLE BERNARD BECKER, a Notary Public in and for the State of Fl orida, do hereby certify that I reporte d the foregoing meeting at the time and place hereinabove set forth; and that the foregoing pages numbered from l to 73, inclusive, constitute a true and correct transcription of my shorthand report of the meeting. WITNESS MY HAND AND SEAL in the City of Miami, Dade County, Florida, this 20th day of October, 1 999. CAROLE BERNARD BECKER PERSONAL TOUCH REPORTING, INC . ( 305) 944-9884 74