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HomeMy Public PortalAbout2007-10-02 AttorneyClient Session CASE 07-12570CA15BAL HARBOUR V ILLAGE 655 -96th S tr eet Bal Harbour, F l or ida 33154 October 2nd, 2007 5 :00 o 'clock p.m . ATTORNEY -CL IENT SESSION PERSONAL TOUCH REPORTING (305)944-9884 APPEARANCES: MAYOR HOWARD J . BERLIN ASSISTANT MAYOR JEAN ROSENFIE LD COUNCILMAN MARTIN PACKER COUNCILMAN JAIME M. SANZ ACTING VILLAGE MANAG ER ELLISA HORVATH RICHARD JAY WE I SS, ESQ. and MICHAELS. POPOK , ESQ . Weiss, Serota, He lfman , et al . PERSONAL TOUCH REPORTING (305)944 -9884 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 TH E REUPON, THE FOLLOWING PROCE E DINGS WERE HAD : MAYOR BERLIN : Attorney-clien t session, Octobe r 2nd, 2007 . I am cal l ing this pub l ic meet i ng t o order . Ca ll the roll . MS . HORVA T H : Mayor Ber l in? MAYOR BER L IN : P r esen t. MS. HORVATH : Assis t an t Mayor Rose n f i e l d? VICE MAYOR ROSENF I ELD : Present . MS. HORVATH : Councilman Packer? COUNCI LM AN PACKER : Presen t. MS . HORVATH : Coun c i l man Sanz? COUNCILMAN SANZ : Present . MS. HORVATH : absent . Councilman Jacobi is MAYOR BER LI N : The time i s now 5 :00 p.m. We a r e about to have an atto rn ey -clien t session in accordance with Flo rida St a tu t e 286 .0 11 regard i ng the litigation s t yled Lynne Bloc h-Mu l l en versus Joel Jaco b i , Bal Harbour Vi llage , the Miam i-Dade Canv assing Boa r d, Circuit Court Case Number 07 -12570 CA 1 5 . PE R SONAL TOUCH REPORTING (305)944 -9884 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 2 1 22 23 24 25 The sess i on is estimated to last one ho u r and the following people wil l be in attendance at this meeting . Myself, Mayor Howard J. Berl i n, Assistant Mayor Joa n Rose nf ie l d, Councilman Ma r t i n Packer , Counc ilman James Sanz, Ac t ing Vil l age Manager Ellisa Horvath, City Attorney Richard We i ss and Michae l Popok . These proceed i ngs will be r ecorded by a certified court repo r ter and at the conclus i on of al l lit igat ion discussed, the transcript will be made part of the pub l ic record. All of those individuals who I have not named shall leave the room at this time . MR . WEISS : Mr. Mayor? At the conclusion of t h is attorney-cl i ent sess i on, we wi l l again go into a pub l ic meeting and we will close the public meeting . Okay. At this point, we're in attorney-cl i ent session . I f you want, we can stay here or we can go to a more PERSONAL TOUCH REPORTING (305)944-9884 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 informa l setting. (Thereupon, there was a brief in t erruption i n the session whi l e t he Commiss i on moved to a room adjacent t o the Commission Chambers, after wh i c h the fo l lowing proceed i ngs were had:) MR. WEISS: Under t h e Florida Statutes, it used to be that you couldn't have this k i nd of a meeting becaus e i t al l had to be i n t h e public. So they carved out a narrow except i on to the Sunshine Law that a l lows you to speak this way. I emphas i ze again that at the conclusion o f t h e litigation, the transcr i pt wi ll become a public r e cord . Number two is th a t our discussions are limited to s e t tl ement negotiations here and stra te gy as it relates to l i t igation expend i tures . Obvious l y, the decisio n s tha t you make here are going to impact the amou n t of time, energy and , therefore, money t h at we spend on th i s case; but the ~isc u ss i ons r e ally a r e limited to those two v er y b r oad PERSONAL TOUCH RE P ORT I NG (305)944-9884 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 2 1 22 23 24 25 topics. So go ahead , Mr. Po pok. MR . POPOK : I want to give an overview MR. WEISS: You all know Mi chael. He's my partner who's been ha n ding the litigation . I guess the other thing I would say is that we are very happy to have this executive session with you . It's very unusual for us to be defending a case without being ab l e to have a session like this with our clients . We have done the best that we could based upon what we thought that you would want us to do to basically put the litigation in this particular posture . The purpose of this meeting is for us to get direction from the Council as to exact l y the position that you would like us to take in the litigat i on on a couple of different issues . So go ahead . MR . POPOK: Okay . If yo u recall, I had an opportunity to speak to each one of PERSONAL TOUCH REPORTING (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 1 8 1 9 20 2 1 22 23 24 25 you in dividually at the time that we had fi led and we h ad our hearing --our three -hour hearing several months ago. Actua ll y, i t's been two months ago now, but let me bring you up to date . You'll recall that the Vi ll age was not or i ginally sued in the lawsuit . E llisa in her of fi cial capacity was sued. Some representatives of the Miami-Dade E l ecti o n Off i ce were sued, bu t not the Village and that's one o f the reasons -- that's the reason we -- MR. WEISS: By the way, you're welcome to take notes, but the concern that I have if you want to take notes is that at some point, they become a p u b l ic record. So I encourage you no t to. You're we l come to take the notes , but understand at some po int they could become a pub li c record . COUNC I LMAN PACKER: T his could become a p u bl i c record (indicating)? MR . WEISS: p u b li c r ecord . Yes. So it 's up to you . It could become a You're welcome to P E RSONA L TOUCH REPORTING (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 1 8 1 9 20 2 1 22 23 24 25 do i t, but I jus t want t o tell you that at some point, you know -- COUNCILMAN PACK ER : Well , the offic i a l public record will b e th e re (indicat i ng). MR. WEISS : Correct , but somebody could make a request for a pub l ic record for that pad (indicating) if they want to . Now , I would argue that it 's j u st your personal notes and it 's up to you ; but I mean, I p r efer that I think it 's better for the Village if you don 't have the notes . That's the public record (indicating). It 's up to you . Go ahead . MR . POPOK : Okay . The lawsuit was originally f iled by Lynne Bl och -Mullen , a challenger who had received 30 percent of the vote in the l ast e l ection . It was a post -election challenge and was based on an argument co n cerning the residency of Councilman J acobi and in it she sought to have him ousted and to have her seated in his place . That was the PERSONAL TOUCH REPORTING (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 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 remedy that she was seeking and she broug h t three c l aims. Since the Village wasn't a party, wi th the inf ormation that we had , we had to do the best that we cou l d with fi li ng or taking whatever position that we could . We felt that it was a proper course to f ile a motion to dismiss a n d f ocus on the remedy , wh ich spec i fical ly is that the Charter power of this Council allowed for somet hi ng other than a w i nning cha ll enger in this lawsuit to be seated automatically . We were looki ng to preserve the Village 's options as best as possible u nl ess and unti l the Village was brought in . Now , yo u should know that I had conversations with the opposing lawye r abo ut bri nging the Vil l age in i mmed iate l y at the beginn ing of the case and told him rea lly the reason would be that I would be able to have my clien t in front o f me and get di r ection, and they refused to do that . Ul timately, they have done that . PERSONAL TOUCH REPORTING (305)944-9884 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 2 1 22 23 24 25 So we f ocused in our motion on Charter powers, on the Code powers, on the powers of this Council to fill, if there was a vacancy , to control the election process and focused on potent i al d i senfranc hise ment of the electorate type i ssues, which happen when after an election someth i ng happens that's different from the wil l of the people. Whi l e Joel Jacobi 's counsel , Mr. Ge l le r , filed a motion at t ack i ng the three counts raised , we focused our br ief on the remedy issue, which was that even if he were to win --even if she were to win -- that she wou l d not be seated automatical l y, that there were powers that were impl i ca t ed here for the Village. MR . WE I SS : Let me just stop you . The reason that we did this was not --it was, as Michae l mentioned, but just to emphasize --it was t o preserve as best we could t he po wers of the Council to make a d ecis ion o n this as opposed to having the Court -- Generally when we take pos i tions in PERSONAL TOUCH REPOR T ING (305)944-9884 1 0 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 l i tigat ion , it 's t o prese rve the powers of the Vil la ge and the posi ti on was not an anti L y nne Bloch -Mul len position . It was a preserve the powers o f the Council posit i o n and that could be c h anged today, but t h at 's wh e r~ we are . MR . POPOK : An d as Ri chard mentioned befo r e , we we r e kind of in a unique situatio n because we didn't have a session l ike this where we'd ge t the majority wil l and get direction . So we d i d wha t we could based on the informat i on t hat was available, whic h led to a three -ho u r hearing be f o r e Judge Gl azer and it went i n a d irection tha t I do n 't t hink anybody was ant i c i pa t ing on e i t her side . As a l i tigator and doing t h is for 1 7 yea r s, i f we t hink t hat th e r e 's something wrong wi t h the Comp l aint, we almost always invariably move t o dism i ss because the Plain t iff shoul d be put to the test of having a s u it t h at's prope r and fl i es under Flor i da l aw . So when we l ooked at this, we saw P E RSON AL TOUCH REPORTING (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 2 1 22 23 24 25 that there were some potent i a l defects in the su it itself; but honest l y , I'm not sure we thought that the Judge would take such a hard stand against Lynne Bloch-Mu ll en at th e hearing and particu l ar l y her papers . I think we were all kind of surprised at how much the Judge thought that her papers were deficient and ultimately not something that could be cured . You know, I t hi nk that's one of the things that the lawyers in this room know , that you can only antic i pate certain things , but the direction o f the hea ring when a Judg e reads your pape rs . real l y out of my control. I t's So it's kind of like a fast moving train went in a direction that none of us were really prepared f or . I mean , I was prepared to make my argument, but after reading our papers, she cast out almost immediately on the Plaint iff 's suit and h e r abil i ty to maintain that suit at the pleadings stage and had profound prob l ems with her suit . PERSONAL TOUC H REPORTING (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 1 8 1 9 20 2 1 22 23 24 25 In fact, at the end of t he hearing when she ruled in favor of the motions to dismiss, she actually i nvited the opposing lawyer to take a dismissal wi th prejudice, which al most is never done on a f irst mot io n to dismiss. In fact, there's case l aw in the Appellate Court that says a J udge should give opportunity to cure a problem maybe tw o or three times . But she said, "Listen . If you want to get right to the merits of t h is , take it with prejudice, go up on appeal ," but they didn't take that invita t i on . They decided they wanted another opportunity to file another Comp l ai nt to t r y to cure some o f the defic i encies that she noted . Had they taken that recommendation by the Judge to take it with p re judice and go up on appea l , it would have been a much fast er, quicker, cheaper suit because we'd be on an appe ll ate brief right now . We wouldn't be back i n Court litigating and doing discovery, taking depositions, but that was their cho ice and their election PERSONAL T OUCH REPORTING (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 2 1 22 23 24 25 and they chose to do that . So now we have a Second Amended Complaint which has been fi l ed, which i s virtually identical to the firs t Amended Compla i nt . Wh a teve r was right or wrong about the first suit is real l y the same suit over again, the fundamental things that they f ixed where they dropped Ellisa in her official capacity. They added the Village. They attempted to add the Mi ami-Da d e County E l ectio n Supervisor , and they did some other smal l modif icati ons to some of the language in their other counts; but by and large, it is basical l y the same. I thin k where we are now is there are some issues that t his Counci l has to dec i de abou t whe r e they want to be in this lawsu it and I th ink t he ones that we hav e identified -- The f i rst one i s that i f you have a suit t ha t is in fro n t of you from a challenger and i t has potential defects in it technical or otherw i se that could l ead to it s dismissa l , does t h is Council want P ERS ONA L TOUC H REPORTING (305)9 4 4 -988 4 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 2 1 22 23 24 25 to take a position concerning that pleading, that suit. I can tell you that I -- I may be wrong, but the body language I'm getting from the Judge and from re -reading the transcript before this hearing is that if we filed another motion to di smiss that was s i milar or so me body filed another motion to dismiss that was s imilar , I think she's going to dismiss the suit outright with prejudice and le t th e m ta ke it up on appeal . I h ad a d i scussion with opposing counsel. He actually sa i d t ha t to me before I sa id it to him . He said he thinks it 's a 60 or 70 pe rce nt chance they're going to l ose on procedural grounds. So I wou ld be remiss i f I didn't t e l l you that if either Joel Jacobi 's counsel or us filed someth i ng that was s imilar, that this case would not be d ismissed . But I thi n k that 's the first iss ue that th is Council has to make, which is if you have a challenger who b rings a suit PERSONAL TO UCH REPOR TI NG (305)9 44 -988 4 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 and i t has de f ects or technica l defects, do you want to take a pos i t i o n concerning it ; or do you just wan t to let it stand, survive a motion to dismiss, and move on to the merits of the substantive aspect of the case? MAYOR BERLIN: Can I ask you a question? MR. POPOK : Sure . MAYOR BERL IN : Ar e the t ech n ica l defects that you're referring to a res ult o f the lawyers representing Miss Lynne Bloch -Mul l e n not having acted either timely or whatever? MR . POPOK : Wel l, it's always difficult for me on that . I f eel uncomfortab l e commenting on somebody else's litigation st r a t egy . MAYOR BERL IN : But is it a time issue -- MR . POPOK : No . MAYOR B E RL IN : within a certain time? MR . POPOK : No . they f ailed to act They made a decision, and the first decis i on that they PERSONA L TOUCH REPORTING (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 2 1 22 23 24 25 made was to file this post -e l ection as opposed to be f ore I do n 't know if they h ad this i nformation be f o r e the e l ect i on , but if they did, at l east one of the counts may have su r vived. As to the s tatut ory time -- MAYOR BERLIN: Wait a minute . I'm going to push you a little . I f they knew abou t th i s before the elect i on MR. WE ISS : They knew about the alleged p rob lem before the e l ec ti on . MAYOR BERL I N : Right . I f th ey knew about the alleged problem befo r e t he election i n one of these technical areas , they should have fi l ed at t h at time . MR . PO P OK : Correct . MAYOR BERLIN : And what other technical -- MR. WE I SS : That's our reading o f the law. MAYOR BERLIN: Righ t . Apparent l y , the Judge 's as well because she d i sm is sed it . PERSONAL TOUCH REPOR T ING (305)944 -988 4 1 7 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 MR. WEISS: Yes . MAYOR BERLIN: Okay . So the Judge said, i f you knew about this beforehand , you should have fi led it beforehand. MR . POPOK : Well, she didn't comment on that spec if ical l y, but -- MAYOR BERLIN: What are the other t echnical issues? MR. POPOK : The statutory claim wh i ch ou r read ing o f it requires at the t ime of th e filing , wi thin 10 days of the filing , you have t o include the Miami-Dade Supervisor of Elections . MAYOR BERL IN : MR . POPOK : No . MAYOR BERLIN : Did they do that? Well, that's a dec i sion that a l awyer would make . Correct? I mean, Miss Lynne Bloch -Mullen wouldn't know t ha t . MR . WEISS : decision. That's a l awyer's MAYOR BERLIN: So the lawyers represent i ng her failed to jo i n this party -- MR . WEISS : Or to be fair --or to be PERSONAL TOU CH RE P ORT IN G (30 5)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 2 1 22 23 24 25 f air --we're reading the law wrong and they had some other strategy t ha t they were MR. POPOK : They h ave another theo r y . MR . WEISS: They have some other theory tha t -- MAYOR BERLIN : Bu t i n connection with that "technical defect " MR . WEISS : We think that they , the lawyers -- MAYOR BERLIN : The Judge found so -- MR . WEISS : Yes . MAYOR BERLIN: dismissed iJ:. MR. WEISS : Right. because she MAYOR BERLIN : Yes. I'm not sugar coati n g it or trying to p l ay it . I want to understand it. MR . WEISS : Yes, yes . MAYOR BERLIN : Okay . So -- MR. POPOK : And the third part i s the quo warranto . That particular claim of -- t he re i s a Chapter 80 o f t he Florida Statutes. It says that you may have an e l ection cha ll e ng e if you are the l osing PERSONAL TOUCH REPOR T ING (305)944 -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 candidate if you can argue that you have clear legal right and title to that office. Then the J udge, if that claim p rev a il s, has the power to oust the other party that's been seated. Hence, the challenger -- Bu t that case law really talks about kind of like Bush versus Go re where ballots a r e hang i ng in the balance . You know, they're ve r y, very close in terms of the e l ectio n r esults and one or two ba l lots --or how absentee ballots are be ing treated versus the hanging chador whatever it is. That's rea ll y the quo warranto type cases and that was our a r gument on remedy, that this was not a quo warranto -- MA YOR BERLIN: She didn't see i t that way and the Judge agreed with that as wel l . MR. POPOK: Well, she dismissed it . MAYOR BERLIN: Di d she comment on the record about that particu l ar thing? MR. POPOK: No. She was relatively PERSONAL TOUCH REPORTING (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 1 8 1 9 20 2 1 22 23 24 25 quiet. There was a lot of body language, some eye rolling and not buying their arguments and giving them a hard time with some questions , but s he d i dn't comment. She didn't give a substantive ruling on the record. She just denied it. MR . WE I SS : To be very --to give you fu l l i nformati on about th i s, the reason that the direction from you regarding these technical arguments i s important is because --and I'm not say i ng this in any ki nd of bragg ing kind of way, but we're very good. If we can win on the technical defenses, it will be --it has been seen --because I have h eard comments from other people --that we are supporting -- that we are against Lynne and supporting Joel just because we are pursuing t hese sort o f technical items; T hat the f a ct t h at we might be able to get the l awsu i t dism i ssed based u pon these techn i cal i tems, i n ef f ect, benefits Joel because we are basically getting the PERSONAL T OUCH REPORT I NG (305)944-9884 21 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 suit thrown out , as you wou l d say, on technicalities . And so that 's why this i s an important decision for you t o ma k e . That 's why we're presenting i t t o you because we feel p re tty good that if we pursue these tech n ica l arguments that the r e's a good chance that we could win, wh i ch wo ul d he l p Joel a n d hurt L ynne . The othe r thi n g I would add is that I have spoken with Michae l and these technical arguments are not only ours t o raise . So it may be that if you decide t hat we shou ldn't raise these tech n ical a r gumen t s, tha t they could be r a i sed by that t h ey wi l l be --I'm su r e that they wi l l be raised and they have bee n raised by Joe l's a t to rn ey . COUNCILMAN PACKER : C an I say something? MAYOR BER L IN : Sure . COUNCILMAN PACKER: I f you 're basing eve r y t hing on t ec h nicali t ies -- MR . WEISS : This is just the f ir s t PERSONAL TOUC H REPO RTING (305)9 44 -9884 22 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 little part of this. COUNCILMAN PACKER : Okay . You /re basing everything on techn i calities an d you want our advice . MR. WEISS: The first quest io n is l e t me g ive you the big picture and then I /11 get back to this. A, should we raise these techn i ca l it i es? Two , s h a ll we take a pos i tion with regard to th e substance of where Joel l i ved? Three, what shou l d we do with respect to what happe n s if Joel loses? T hose are the three questions. COUNCILMA N PACKER: With r espect to ra i sing the techn i calities, i f you feel that by r a i sing the technicalities and then the Judge throws the case out aga i n, they wi l l have a r i ght then ? But you don 't know if she 's go i ng to say with prejudice or without prejudice. MR. POPOK: She will l i kely say wi th prejud i ce. COUNC I LMAN PACKER : She will likely PERSONAL T OUCH REPORT I NG (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 2 1 22 23 24 25 say with prej ud ice . So , therefore, they wi ll have -to appea l and go to the next Court . MR . WEISS : Right . MR . POPOK : Yes. MR. WEISS : It will be u p to t he m, but at some -- COUNCILMAN PACKER : Of course, they wo u ld do that . MR . WEISS: --at some point, t hey dismiss this wi th pre jud ice and at some point , it goes to appeal . MR. POPOK: Oh, they'll a ppe al . COUNCILMAN PACKER : Th ere 's no qu estion about that because you 're not getti ng to the subs tance of the case . MR. WE I SS : Which is why --by the way , in terms o f the expense of this , we would pre fer that -- COUNC I LMAN PACKER: That they appeal . MR . WEISS : --that they appeal right away b ec aus e t hen we wouldn 't be involved in spending money , Vi l lage mo ney , answe rin g another Compla i nt . COUNCI LM AN PACKER: On t hat note P E RSONA L TOUCH REPORTING (305)9 4 4-9884 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 2 1 22 23 24 25 then, if the Council should feel tha t they shouldn't spend too much money , we should direct you then no t to techn i cally cha l lenge t h e case on technicalities . MR. POPOK : Well, I just wa nt to preface one thing. The "techni ca l ities " that we'r e tal k ing about are --because whether it's this case or it 's another case, th i s is a lawsuit that was filed that may or may no t have some l ega l deficiencies in it. So I g u ess th e fundamenta l question --I don't want t o get hung up on technica l ities because that mak es it sound l ike these are minor th in gs that were wrong with her suit . She's got major potential defects in the way that she MR . WEISS : I think the point that he's making is , these are not going to the substance of this case . COUNCILMAN PACKER : Correct . MR. POPOK: Correct . MR . WEISS : You 'r e righ t . The issue i s whether we deal with these technical PE RSONAL TOUCH REPORTING (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 things -- MAYOR BERLI N: probab l y a mi snomer Actually, it's to call t hem technicalities . They're substantive . Th ey just don't dea l with the subs tant ive issue of whether Joe l was or was not a resident. They deal with other issues -- MR . WEISS : They 're procedural. MR. POPOK : Right . MAYOR BERLIN: T hey deal with peop l e's i ntentiona l conduct, which I th ink drives directly to the position we should take . I 'll tell you , for e xample, I'm appal l ed that if they knew abo ut this before the election and chose not t o file when it was procedura l ly proper to do so, they could have saved us t h e cost of t he e l ection and all this aggravation and expense . It sounds to me that somebody intentional l y decided not to do that or there was malpractice --one of t he two because it seems l i ke i t 's an obvious PE RSONAL TOUC H RE PORT I NG (305)944-9884 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 2 1 22 23 24 25 issue. That's pretty damming righ t t here . I don 't know why we shou l d COUNC I LMAN PACKER : I never hea r d of it before. MAYOR BERLIN: should -- I don 't know why we MR . WEISS : What -- COUNCI LMAN PACKER: I neve r heard that there was any i ssues beforehand. COUNCILMAN SANZ: As f ar as -- MAYOR BERLIN : Tha t 's clearly why. The Judge can 't f i nd that they should have --in order f or the Judge to conclude that they were wrong to f i le it when they d i d on t he basis of they should have f i led it before wou l d have on l y been if they knew about it before . I t sounds like they knew abou t i t be f ore and if they knew about it be f o r e , then they had an obl i gation to file it before, which i s why she 's on that point dismissing it for them filing it after the fact. That 's not good conduct . We don 't want to condone that k i nd of conduct. PERSONAL TOUCH REPORTING {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 MR. POPOK: I'm no t sure she made a f inding like that. MAYOR BERL IN: Well, but that's the issue. COUNCILMAN PACKER: Mr. Mayor MAYOR BERLIN: Isn't that the issue? MR . POPOK : Wel l , it could be since she was a little bit of the Orac l e of Delphi du r ing t he hearing. I can't really te l l you that she made a substantive ruling -- MAYOR BERLIN : But let 's just go right to the heart of it. Is that issue the issue of whether or not they should have filed it before or after? MR. POPOK : Well, as it relates to one of the c l aims, wh i ch is the declaratory j udgment claim -- MAYOR BERLIN : I'm talking about that. MR . POPOK: Yes. That claim, she dism i ssed i t . We argued that you can't use a declarato r y judgme n t action post-election P E RSONAL TOUC H RE P ORT I NG (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 2 1 22 23 24 25 if you don't have a valid s tat utory c l aim. You cou l d do it preelection , but you can 't do it post . MAYOR BERLIN : So if they knew about it be forehand , they would have had the opportunity properly to file this as a declarato r y action before the election . MR . POPOK : I t h ink at best because I --at best , I think what she --one w~y to read her ruling is that she d i dn't f eel that the dee action coming post-e l ection given t he lack of a statutory challenge that she found viable would survive ; but I 'm not quite sure. It's just there was no evidence. hearing. It was not an evidentiary MAYOR BERLIN : Be cau se we have a lo t of non -lawyers here, let 's keep it r ea l s imple . Is this about whether they. should or shou l d not have fi l ed i t before the e l ection? MR . POPOK : I don't think tha t 's t he only way to read why she dismissed the declaratory judgment action, that clai m. PERSONAL TOUCH REPORTING (305)944-9884 29 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 MAYOR BERLIN: Then what's be f ore the e le ct ion versus the after the elec tion co mponent of it? MR . POPOK : Wel l , what I was arguing was MAYOR BER LIN : If they were never in a position that they could have sought the rel i e f, then it's a push; but if th ey were in a posit i on where they could ha v e sough t the relief and t hey p l ed different l y -- MR. POPOK: Yes . MAYOR BER L IN: and if they bro u ght it before the elect i on, that's what I'm asking. MR. WEISS: I guess a simp l e way to put this is, Michael, i s they had t he information abou t --if they had i t --was there a way to c h a ll enge t his -- MAYOR BERLIN: R i ght, before . MR. P OP OK: Yes. MR . WEISS : beforehand? Was there a prope r way MAYOR BERLIN : Yes, a n d the answer is yes . COUNCILMAN PACKER: How wou l d we know P E RSONAL T OUC H R EPORTING (305)944 -988 4 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 2 1 22 23 24 25 when or whoever knew anything ahead of time? MAYOR BERL I N : They would know . COUNCILMAN PACKER : Has that been MAYOR BERLIN : They could file an af fi davit saying nobody k n ew unt il after the fact . They would overcome it if they did. MR. WEISS : We haven 't taken any depos i tions. We haven't done any discovery . So we have --I 'm trying to stay away f rom the r umor mill and al l of that b ec a u se I don't reall y k now . So we don 't have an y spec ific --we don't know one way or another -- COUNCILMAN PACKER : Who, what , when , or wh ere ahead o f time -- MR. WEISS : But have they made any representations in Court that they didn 't know ahead of -- MR . POPOK : I t wasn't an i ssue in Court. COUNCILMAN PACKER : It was never an issue . VIC E MAYOR ROSENFIELD : It could have PERSONA L TOUCH REPORTING (305)9 4 4 -9884 3 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 2 1 22 23 24 25 been an issue , couldn/t i t? MR . POPOK: It could have . It could have. Had they brought a su i t before -- S ee , t here are so me claims that cou l d be viable post -election based on fil ing under the sta t ute, wh i ch may or may not su r v i ve anot h er motion to dismiss brought by whoever, and there are some claims that might have survived pre -e l ec ti on . Now , w h ethe r they made a strategic decision t o wait t o see t he resu l ts of the election and then cha ll enge? I don't know the answer to that . MR . WE I SS: We /re not mind readers . COUNCILMAN PACKER: I was go ing to say MR. WE I SS : Do you want to go through a ll the i ssues and then ma k e some more statements? MAYOR BER L IN : They have qu esti o ns . COUNC I LMAN PACK E R: No. Go ah e ad . MR . WEISS : Because I think this is a decis i on tree . I thin k that in order to get f rom P ERSONAL TOUC H REPORT I NG (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 2 1 22 23 24 25 here to there , in my own mi nd when I tr i ed to figure out h ow this was going to go today , I feel like you should make some you can change i t, but I feel like you should make some decisions as we go along -- MAYOR BERLIN: Yes . I MR . WEISS : because t h ey affect where we're going -- COUNC I LMAN PACKER: thing. Wel l -- To the next MAYOR BERLIN : The fir st -- MR. WEISS: The first issue is COUNCILMAN PACKER : I can give yo u my opinion . MR . WEISS : substan t ive -- Shou l d we r ai se these MR . POPOK : Substantive posit i ons , but not re l ated to the underly ing merits o f the residency issue . MR . WEISS : Yes . MR. POPOK : That's how I'd like to phrase i t. COUNCI LM AN PACKER : I 'm su r e everyone here has seen some of the evidence that PERSONAL TOUCH REPOR T ING (305)9 4 4-9884 33 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 has been brought out in the ex hib its . MAYOR BERLIN: You mean -- COUNC ILMAN PACKER : Checks , et cetera, et cete r a . MAYOR BERLIN: You mean what they have a l leged? COUNCILMAN PACKER : It was e -mailed --the e -mai l cop ie s of the checks -- MAYOR BERLIN: I don 't know what yo u'r e talking about . VICE MAYOR ROSENFIELD: I d i dn't get any e-mai l ed copies o f the checks . I 've seen the law s uit . e-mails. I haven 't seen any MAYOR BERLIN : What have you seen? I saw t he laws uit . COUNCI LM AN PACKER : T h e lawsuit and --wel l , the briefs . MAYOR BERLIN: This is what I have , the lawsuit (indicating). COUNC ILM AN PACKER : The no ti ce of the fil ing o f Exh ibit E, Plaint if f 's Second Amende d Comp l aint . In Exh ib it E , I have here a check -- PERSONAL TOUCH REPORTING (305)9 44 -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 more tha n one check. Have you see n this? VI CE MAYOR ROSENFIELD : Yes . I 've seen it, but I don't know what you r point i s . COUNC I LMAN PACKER : Well , this i s par t o f some of the evidence, I assume , is why not on l y the r esidency was brought but part of the actual nuts and bo l ts . I th in k rather than challenging i t on a technica lity basis , we go to the next thing~ leave that I wou l d l eave that hang for a minute or t wo MR . WEISS: Any way you want to do it . COUNCILMAN PACKER : --and get to the next pos i tion. MR. POPOK : But just to frame i t before we leave , I g uess the question is: Does t his Council want me to fil e something that's s i mi l ar to what we filed before , t o move t o dismiss on the grounds t ha t we moved i t --I almost have the same arguments -- MR . WEISS : Yes . PE R SONAL TOUCH REPORTING (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 1 8 1 9 20 2 1 22 23 24 25 MR . POPOK : And the second one would be, i f we don't do it, can so mebody else do i t because you know that Jacob i w i l l l ikely f ile the sa me motion he filed before and do t he arguments t h e same way MAYOR BERLIN : Can he raise all of these technical issues? MR. POPOK: Yes . There 's nothing that they don 't have s t anding to raise. MAYOR BERLIN : So then why even deba t e i t? If h e co ul d raise it , we don 't have to r a i se i t. I'm j ust asking , what dif f erence does it make? MR. WEISS : Only the difference of weight. MAYOR BE RLIN : them, there are some shou l d be heard on . I mean, when we get to that I think we I don't know if I care one way or another about the before or the after, the 10 day I mean, the q uo war ranto goes r i ght PERSONAL TOUCH REPORTING (305)9 44 -9884 36 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 to the heart o f what -- MR . WEISS : That's a remedy. MAYOR BERLIN: Yes . I t's a remedy issue and I don't think we should be condon i ng her opi ni on that MR . WEI SS : Okay. I try i n g to so wou ld your pos ition be t h at we should --I 'm going t o call them substantive d efens es not r el ated to the residential fact, that we should let t h ose be raised by Ge ll e r? MA YOR BERLI N: Well , why don't we ta l k about the resident ial facts so we can ge t rid of the MR . WEI SS: T he s e co n d issue is: Shou l d we take a p os ition --what position shou l d we take regarding t he residentia l facts --I 'm go i ng to cal l it --where Joe l l i ved . Th e r e ar e several positions you can take , just to lay them out . One, we could take t he pos iti on absolute l y in Jo el 's favor a nd say that he l i ve d here and support him totally . Two, we co ul d take totally th e opposite position and we could s a y that PERSONA L TO UCH REPORTING (30 5)9 44 -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 Lynne Bloch-Mullen i s correct and we could support her position . T h e third position we could take with respect to the facts of this is that we're not going to take a position on the facts because we don't know . COUNCILMAN PACKER : Let the Judge rule? MR. WEISS: The Ju dge is going to rule eit h er way, but the question is what position the Vi l lage takes . The third pos i t i on i s bas i cally a neutral position with respect to the facts. COUNCILMAN PACKER: And the facts would be presented by? MR . WEISS: By Lynne Bloch -Mul l en on one side and Joe l 's l awyer on the other s i de. COUNCILMAN PACKER : So once the fac ts come out, we should al l ow the Court to do the rul i ng . MA YOR BERLIN : Well, I think I know where you're going, bu t he said either advocate on behalf of Joe l , advoca te P ERSO NAL TOUCH REPORT ING (305)9 44-9884 38 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 2 5 against Joel, or take a neutral positio n . CO UNC I LMAN PACKER : neutral position. I would take a MAYOR BERLIN : cho i ces. T hos e are the th ree COUNCILMAN P ACKER : I would tak e a n eut ral pos ition in that sense o f the word and let th e c hi ps fall where they may . MAYOR BER LIN : I h appen to ag r ee with him on this particu l ar point. I don't think we should take a position on the residency i ssues . VICE MAYOR ROSENFIELD : I don 't COUNCILMAN SANZ : I agree . MR. WEISS : It's not my p l ace to ca l l on peop l e . I t's your meet ing . I 'm just try i ng to -- MAYOR BERLIN : No . Go ahead . V IC E MAYOR ROSE NFIELD: Ladies fi rst. I wo ul d take a neutra l posi t ion here because I 'm not quite su r e how to i n terpret t h at ord inance and I think a J udge will interpret the exact o r d inance and the dep t h of · that ordinance and how it shou l d b e r u l e d on. PERSONAL TOUCH REPORTING (305 )944-9 884 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 2 1 22 23 24 25 So I would say let's let the Judge ma k e the decision on that . COU NCILMAN SANZ : I agree with Jean. MR . WEISS : So that 's the decision . So with respect to the issues of the facts o f where he lived, we're going to file whatever we need to fi l e to te l l the Judge that we don't -- MR. POPOK : And that's consisten t with the position we already took in Court. MR . WEISS: Okay . Now, going on to the third one, we stil l --the fir st issue is stil l out there a little bit, but th i rd issue is : Assuming that Joel loses or assuming that Lynne wins --which is , of course, the other s i de of the coin . Let's assume Lynne wins. The question is: What i s the appropriate --we call it --remedy and there are a numbe r of positions that we can take with rega rd to the remedy. One position is to say that we advocate that t he Judge order the Vi llage to immediately seat Lynne . That wou l d be PERSONAL TOUCH REPORTING (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 one position . That would be our pos i tion, that if Joel is out, we advocate that Lynne be given her seat. MR. POPOK: Can I ment io n one thing? MR . WEISS : Yes . MR . POPOK : In eac h of th e cla ims, that's the remedy she's asked the Court for . MR . WEISS: So position one is that she be i mm ediately seated . Posi t ion two is t ha t we advocate that the Judge direct the Village to immediately hold an election, a special e l ection , not in conjunction with a n y other e l ect ion, but just a special --I'm going to call it a special independent elect ion. A third pos i tio n is tha t we advocate that the Judge tells the Vi l lage to hold a special elec t ion in conjunction with the n ext ava il ab l e election. The next position is that t he Judge should allow us to fil l this seat at the next time the Village has an e l ection and then under our charter, the Village PE R SONAL TOUCH REPOR T I NG (305)944 -9884 41 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 Council may --it says may --appoint someone to fi l l a vacancy . So there's a lot of different I g u ess the last one is that we ho l d a special --that we take the pos i tion that there should be a spec i al elect i on in conjunction with the next election and in the meantime , the Vi l lage may appoin t somebody to fil l the vacancy . There's a lot of different va r iat i ons of this . COUNCILMAN P ACKER: MR. WE I SS : Yes . COUNCILMAN PACKER : Ca n I -- I f in f act well, the way the chips may fall , whatever -- Do you want to -- MR . WE I SS : This all assumes t hat L ynne wins . All this entire conversation, this part of it, assumes that she wins . COUNCILMAN PACKER : All right . MR . WEISS : If Joel wins, there's no discussion. COUNC I LMAN PACKER : There's no discussion. PERSONAL TOUC H REPOR T ING (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 But if the Judge rules that the case --she ru l es for Joel with prejudice and it goes to appeal MR . WEI SS : Yes. COUNCI LMAN P ACKER: --t hen we 're strung out for about how long again? MR . POPOK: It could be anywhere from --well, eithe r way we're going to be strung o ut because we haven't had a substantive hearing in this case . Ev en if she surv i ves her suit surv i ves a mo tion to dismiss brought by, let's say , Joel 's l awyer COUNCILMAN PACKER : Right . MR. POPOK : a final hearing on the i ssues with all the discove r y being completed is four to six months away. Even if t h ey did it expedited, they're not going to get it done any earlier than-- MR . WEISS : A motion to dismiss is not dispositive o f this case. A motion to dismiss means you're in the game . If you get by a motion to dism i ss, it means then there's deposi tions and there 's d i scovery and t h ere's document PERSONAL TOUC H RE P OR T ING (30 5 )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 2 1 22 23 24 25 requests and there 's all sorts of motions . Then at some point , there's going to be a substantive hearing where I presume witnesses are going to be ca l led and -- MR . POPOK : It cou l d be a couple of day trial. MR. WEISS : --there 's a couple of day trial on this and so forth and so on . Then after that , if Lynne wins , Joel might appeal and he wou l d have the right to appeal ; and if Joel wins, Lynne might appea l. COUNCILMAN PACKER : How can we decide to do this as expeditiously, as quickly as possible, so that the Vil l age doesn 't get dragged --like it was in the paper and, you know, on television. Do you have any suggestions? MR . WEISS: I'm not a~-I pride myself on not looking back , but the way they 've done that --assuming that they had information, the way that a lot of these challenges come up is before the election . There 's a real time frame and it's P ERSONAL TOUCH REPOR T ING (305)944 -9884 44 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 2 0 21 22 23 24 25 got to be done, but there's -- COUNCI LMAN PACKER : the dam . It's water over MR . WEISS : At this po in t, you know , it 's MR. POPOK: I t's going to be up t o the J u dge to decide whether MR . WEISS : There's no quick way out of t hi s any more . COUNCILMAN PACKER: In other words, then you wou l d --where yo u gave us the four possibil i ties if she wins , what happens then? Do you present those to the Judge ahead o f t ime or is it done right MR. WEISS : We're asking you what pos ition you want us to t ake. I made u p th ese possibilit i es Mich ael a nd I made up these possib i lities as we were prepar i ng f o r th i s meeting . We're going to take the --we'r e go i ng to in our pleadings say, i f Lyn ne Bloch -Mu ll en wins -- COUNCILMAN PACKER : Th at wo u ld be presented to the Judge . MR . WEISS : Yes, but we want to PERSONA L TOUCH REPORTING (305)94 4 -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 p re sent a pos iti on on b e ha lf of the Village COUNCILMAN PACKER: Okay. MR . WEISS: to do . MR . POPOK : --whatever you direct us In terms of t he answer to yo ur or i g i na l question -- MR . WE ISS : of th i s? MR . POPOK : question . MR . WEISS : out of th is . MR . POPOK: asked about is : Is there a quic k way out No, no . That wasn 't the No i n ex pensive quick way The appea l t ime that you Let 's say t hat a motion to dismiss is filed by some party, whether it 's us or them , and there's a hearing in let 's say a month. So now we 're in November. I f she rules in No vember , le t's say she ru l es against the plead i ngs -- COUNCILMAN PACKER : Well -- MR . PO P OK : I'm using that as an example because that would end it right there . PER SO NAL TOUCH REPOR TING (305)9 44 -9884 46 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 So in No vember , wi th i n 30 days. So b y December, th e re wou ld be a t i me to appeal . MR. WEISS : T he y have to f i le a not ice of appea i. MR. POPOK : T hey would file a notice o f appea l . Let 's say they did it righ t away, that they mo ved pretty q uickly. So then t here 's a whole br i efing schedule that t he Th ird District Co u r t of Appeal would set up and we're pro bab l y six to eight mon ths away, starting i n Dece mbe r, from getting a ru li ng -- COUNC ILMAN PA CKER : Next year . MR . POPOK : Right . So you 're a lr ea dy i nto t he s umm er . MR. WE I SS : Yes . We're probably i nto late sp ri ng or summer in an optimistic appeal schedu l e . That 's where we are . That 's where we are . MAYOR BER L I N: I don 't see the logic of taking a position that we 're go i ng to have an immediate e l ection. If it 's going to go on that l ong , people won 't know --I mean , no one i n the PERSONAL TOUCH REPORTING (3 05)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 2 1 22 23 24 25 city will know about it. So there ought to be an opportun it y for people on a de liberate basis to decide whet h er or not they want to pa r t icipate in this . So MR . WEISS: By the way , they cou l d try to exped ite th is, but based on even t hough th is i s the mo st impo rtant case it's the only case but this is a c ri t i ca l issue in Bal Ha rbour to the Appel lat e Courts . T hey'r e dealing with a lo t of other stuff a n d ma ybe it cou ld be expedited by a couple of months, but we're not talking about a month or two months or t hree months . I mea n , that's just not happening . You have 30 days to appeal this. Then you have a cer t ain amount of ti me to fi le you r fir st b ri ef. T hen we have an opportunity to file a r eply b rief and then they can -- MAYOR BERLIN : Why do n 't we just tell th e Cou rt that if Joel is unseated , our intention is t o hol d an electio n w i th in a r easonable pe ri od of time and then look PERSONAL TOUCH REPORTING (305)9 4 4-9884 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 2 1 22 23 24 25 and see what the calendar is ? We may want to do it --if it happened quickly, we may want to do it in conjunction with the January pr imarie s . We may want to do it in our tr ad iti ona·1 time of voting i n April. We may want to --if it takes a really lon g time, we may even lob it into the next time we have a Council election . I mean , rather than taking a pos i tion MR. POPOK: Well, but i t's a litt l e different angle because the position I'm going to have to take, for instance, on the quo warranto or really any of the c l aims --the J udge is goi n g to l ook to us and say look , if her quo warranto claim is proper , it's ouster of the incumbent and I'm seat ing -- MAYOR BERLIN : But that's different . That 's different. I'm talking about where she's g iven us the opt ion -- MR . POPOK: I f we ge t an option . MAYOR BERLIN : If she's given us the PERSONAL TOUCH REPORTING (305)944-9884 49 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 option -- MR . WEISS: What you're suggesting is one of t he four or five people --which is that t he pos itio n we take is that the Village wil l --t ha t she order us to ho ld an electio n as soon as --I'll use the word --practicab le . MAYOR BERLIN: Which is r e asona b l y practicab l e, loo k at the ca l e ndar and giv e people an opportunity to get invo l ved and MR. POP OK : But I don't wa n t to be too ethe real he r e . On quo warra n to MA YOR BER L IN : That's differen t . MR . POPOK: Yes . MAYOR BER L IN: Hold the quo warranto . Put it aside because it's a different issue . We're going to ge t to t hat . We have to specifically take a pos itio n on that . If we pass quo warranto --she denies quo warranto, but she unseats Joe l , she says, "Joe l, you were not a resident . You're not authorized." PE RSO NAL TOUC H REPO RT ING (305)944-9884 50 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 I f we go through t h e appellate p r ocess and he loses , take an appea l to the Supreme Court and he loses, he 's gone MR . WEISS : R i ght. MAYOR BERLIN : --whenever that is ; six months, a yea r , two years , whenever it i s . MR . WEISS : Ri ght . MAYOR BER LIN : We wo u ld want to take the position that we're going t o have an elect i on. MR. WEISS : Rig ht . MAYOR BERL I N : And we wou ld tel l the Judge that we would have it as soon as reaso n ably practicable . MR. WE I SS : Ri ght . MAYOR BERLIN : We wou l d look at the calenda r --li k e, fo r examp l e , what i f it was ultimate l y disposi t ive --what if the ultimate d i sposition occurred in Jun e. We don 't want to have an election over the summer. Nobody's her e . We wo u ldn't want to have an el e ct i on i n 30 days or 60 days because nobody's here. PERSONAL TOUC H REPORTING (305)944-9884 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 2 1 22 23 24 25 I can't tell you how ma n y t i mes we have tried to do things over the summe r and peop l e say, "Don't you dare . We're not around," so we would probably want to wait until the fa l l . S i mil a rl y i f i t happened in January when it was d is posit i ve, we would probably want to do it in Apri l whe n we normally vote . I n other wo rds , I want to tel l t hem specifically when we would do it . I wou ld rather do it in a reasonably pract i ca l time once we k now it 's been finally and ultimately resolved . Th at 's the pos i tio n , to a ccomm odate the residents . accommodate the re sidents . I want to COUNC I LM AN PACKER : How MAYOR BERLIN : By the way, does an ybo dy disagree with that? COUNC I LMAN PACKER : No. I don't d i sagree with that, but how i s this quo warranto business -- MAYOR BERLIN: We're going to get to tha t. MR . WEISS: Just put that on t he PE RSO NAL TOUC H REPORT I NG (305)94 4 -9884 52 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 s i de . I th ink we have some consensus here other than we The only issue I would raise, which is a nuance of what you just said , is there 's two ways to ho ld an e l ection and we co u ld take a posit i on one way or the other . What does an election cost, Ellisa? ACTING VILLAGE MANAGER HORVAT H: About $1 5 ,000. MR . WEISS : Okay. ACTING VILLAGE MANAGER HORVATH : was our last elect i on . T hat MR. WE I SS : That was in conjunct i on wi th ACTING VILLAGE MANAG ER HORVAT H: That was in conjunction with Bay Harbo r and another municipality. It's probably about double that . MR. WEISS: There's a n economic i ssue here, which is just a variation on t h e position that we're going to take. One posi ti on is -- MAY OR BER LI N : Well , we want i t to be PERSONAL TOUCH REPORTING (305)944 -9884 53 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 eco nomic , clearly. MR. WEISS : One position is that we're going to spend th e money to h o l d a special e l ectio n , stand a l one --let me call it stand alone elect i on . That's one way. MAYOR BERLIN : That 's the most expensive . MR . WEISS : That's t he most expensive. T he second o n e, which costs about $15 ,000 -- ACTING VILLAGE MANAGER HORVATH: Right . MR . WEISS : I don't know what the nu mbers are any mo r e , but I wanted to give you a feel for it is to hold a special election in conjunction with a regular election of some sort, which is a more econom i cal way but is less flexible than the first one . The first one you could set any time you want subject to the schedule o f the Superviso r of Elections and there needs to be advertising and stuff l i ke that. PERSONAL TOUCH REPORT ING (305)944 -9884 54 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 T he second one you would have to sort of wait until our number came up and see what elections are going to be hel d. So we could take either one of those two decisions on that. COUNCILMAN PACKER: Right. MR . WEISS: Either one. MR. POPOK: Besides the e l ection, what was the issue you wanted to talk about -- MAYOR BERLIN: talk about that. Yes. We've got to MR . WEISS: So the question is a stand alone e l ection versus a conjunction election. COUNCILMAN PACKER : Conjunct i on . That's no q u estio n . COUNCILMAN SANZ : Yes, in conjunction . MR. WEISS: So that's our position. Our pos iti on is --f o r get about the other issues we have to deal wit h --is that if she wins the lawsuit othe r than on the quo warranto , that our pos i t i on is going to be that the Counci l should be --o r we PERSONAL TOUCH REPORTING (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 2 4 25 believe t h at the Council sho ul d be obligat ed t o h o ld a spec i a l e l ect i on in conjunction wi th the next -- COUNCI LMAN PACKER: The next -- MR . WEISS : election --reg u l a r l y sched u led COU NC I LMAN PACKER : Right. MR . WE I SS : --to elect a successor to f i ll t he re mainder of J oel 's term . MAYOR BERLIN : reasonab l e. Pr esu mi n g i t 's So for example, if the decision i s u ltimately dec i ded on October 31st to -- MR . WEISS: We can always hold it sooner . COUNCILMAN SANZ : No . MAYOR BER LIN : No . I 'm s a y ing , if it 's dec i ded on Octobe r 3 1 st CO UNCILMAN PACKER : hold i t sooner . MAYOR BERLIN : No. We can always I 'm saying MR . WE I SS : You can 't do it . MAYOR BERLIN : --we'r e no t going to h ave it on t h e first Tuesday of November -- PERSONAL T OUC H REP OR TIN G (305)94 4-9884 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 2 1 22 23 24 25 MR . WEISS : You can't do it. can't do it . MR . POPOK : 75 days . MAYOR BERLIN: Okay . I 'm just saying -- You MR . WE I SS : There has to be advertising, plus we 've got to ge t the okay f rom the Superviso r of Elect i ons -- MAYOR BERLIN : Got it . MR . WEISS : Okay . pos i t i on . So that 's a clear MAYOR BERLIN : Okay . MR . WEISS : Okay. Let's go back MAYOR BERLIN : Now , before we go to quo wa r ranto . Okay . So that issue is, there will be some period of time between -- presuming Joel doesn 't resign --between when the ult i mate decision of his entitlement to s i t is made a n d when t h e e l ection takes p l ace. MR . WEISS : R i ght . MAYOR BERLIN: It could be two and a half months . It could be f our months . It could be six mont h s . It could be nine PERSONA L T OUCH REPORTI NG (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 2 1 22 23 24 25 months, depending upon whether -- MR . WEISS : The Charter says that the Council may till a vacant position . MAYOR BERLIN : But we don't have to. Is that right? COUNCILMAN PACKER : It says "may ." MAYOR BERLIN: Right . So why don't we reserve the right to --i f we f el t it was necessary -- I f we were abl e to get an elect i on s l otted in three months , we may decide, why bother? MR. WEISS: Right . MAYOR BERLIN: If it 's going to be nine mo nths to 12 months because of the tim ing of e l ections, we may say -- MR. WEISS : And that's consistent with our Charter. MAYOR BERLIN : So wouldn 't we re serve? Because I don't see the need to do it. If it's only going to be a few months, why wou l d we bother doing it? VICE MAYOR ROSENFIELD : Yes . MAYOR BERLIN : Makes sense? COUNCILMAN PACKER : That 's PERSONAL TOUCH REPORTING (305)944 -9884 58 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 reasonable . COUNCI LMAN SANZ: Yes. It does make sense, yes. MR. WEISS : So we sti l l have th e -- MAYOR BERLIN: Quo warranto. MR. WEISS: So just to put this in some other terms, quo w~rranto is --for Joel, it 's like --it's sudden death . Bas ical ly , you're out. She's in COUNCILMAN PACKER: Period . MR. WEISS: --period . That 's a home run for Lynne, if you want to put i t that way . You're out a n d she's in . So the question is then, what position do you want to take with respect to that? COUNCILMAN PACKER: When you say that , you mean to oppose? MR. WEISS: We have severa l positions we could take . COUNCILMAN PACKER : What are the positions? MR . WEISS : We could say --one position should be is that we encourage PERSONA L TOUC H REPORTING (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 the Judge to --we encourage t h e J udge if they find that Joel is not --correct me if I 'm wrong -- MR . POP OK : Okay . MR . WEISS: --if the Judge finds that J oel is not qual ifi ed , we encourage the Judge to immediately sea t Lynne. That 's posit i on one . MR . POPOK : MR . WEISS: MR. POPOK: Well, may I jump in? Yes. Wit h quo warranto, there's rea l ly no choice. If she prevai l s in quo warranto, there's only one re medy . The one remedy is ouster -- MR. WEISS : And seated. MR. POPOK: --ouster and seated. COUNCILMAN PACKER : So it's open and shut . MR. POPOK : I f she wins on quo warranto . MR. WEISS : If she wins . COUNCILMAN PACKER : Okay . MAY OR BERLIN: So our choice is either advocate for it or against it. PERSONAL TOUCH REPORTING (305)944 -9884 60 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. WEISS: Correct. MAYOR BERLIN: The remedy MR . WE I SS: Co rrect . MAYOR BERLIN : The remedy is that we /r e advocating f or or against . Correct? MR . POPOK : Right. MAYOR BERLIN: Not her over Joel. MR . WEISS: No . It/s a remedy. The question is : If Joel i s unqua lifi ed , should she be immediate l y seated . Th at /s the remedy. COUNCI LM AN PACKER : Wel l, the Judge wil l dec id e th at . No? MR. WEISS : Th e quo warranto if you could t hink of sort of a separate litt l e laws uit --- COUNCI LMAN PACKER : As a separate issue? MR. WE I SS : --as a separate l i ttle lawsuit that we have to take a position on because it/s such a dramatic result . COUNCILMAN PACKER : In other words , Richard, what you /re saying is the quo warranto , that /s almost l i ke a sepa r a t e issue a l together . PERSONAL TOUCH REPORT I NG (305)94 4-9884 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 I f th e Judge --wil l the Judge have seen any of the evidence? MR . POPOK: Yes . MAYOR BERLIN : Okay MR . POPOK : Not on the motion to dismiss. COUNCILMAN PACKER : evidence See, the MR . POPOK: Le t me break it down. On a motion to d i smiss, she's already ind i cated in the f ace of one motion to dismiss -- COUNCI LM AN PACKER: That she 's not -- MR . POPOK: --t hat she's not buying the quo warranto, that it's a un i que set o f facts . She didn't say this. You've got t o trust me on body language and what she did say ; that she doesn't find as of yet that quo warranto i s the right vehicle for this challenger beca us e it's a unique factual circumsta nce that's not really present here. It 's not a 70-30 win or loser . It's like when there's one or two votes or a PERSONAL TOUCH REPORTING (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 batch of votes that are hanging in the balance . COUNCILMAN PACKER: Is that where t his particul ar quo warranto comes in b asica l ly on precedent, or is i t j ust an open and shut case as f ar as evidence on a particu l ar case t h at would invoke this particu l ar rule? MR . POPO K: It only app l ies if they 're able to establish on the evidence that they present t hat t h ey're ent i tled t o quo warranto , t h at she has clear leg al t i tle and right based on the vo t es that were cast to her seat . law reads. COUNCILMAN PACKER : votes that were cast . That 's t he way the Based on the In othe r words , i f I'm r eadi ng you correctly , any of the evidence that they're presenting will not bea r on that part i cular point? MR . P OPOK : Wel l , this is my opinion based on reading of the case law. I can tell you that we foun d no quo warranto cases whe r e a residency c h al l enge PERSONAL TOUCH REPORTING (305)944 -9884 63 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 where somebody has got a vote tota l the way this challenger has got a vote tot a l -- COUNCILMAN PACKER: Forget the votes. F orget the votes. MR. POPOK: To answer to your question, I don't think it gets to t he evidence. COUNCILMAN PACKER : to the evidence . It does not get MR. POPOK: It gets to the scenario t hat 's being proposed . The Judge has to believe that on the way the quo warranto cases fall, that the facts or the evidence --that the facts fit the quo warranto relief . MR . WE Is s : I t , s a Very MAYOR BERLIN : Is quo warranto a voting irregularity? MR . POPOK: It's close to that, Mayor. I t's that but fo r --here 's where it arises. miscounted Absentee ballots that were MR. WEISS: These are the cases that we found. PERSONAL TOUCH REPOR T ING (305)944-9884 64 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 MAYOR BERL I N: Ha n ging chads. MR . POPOK: Hanging ch ads, cases of votes that were --you know, they did an artificial deadline of midnight and t he Judge finds it should go to 1 :00 a .m. COUNCILMAN PACKER : Right . MR . POPOK : And if you had counted those votes, she would have won . That's the way quo warranto lays out. COUNCILMAN PACKER : That's the -- MR . WEISS: That's the historical way that COUNCILMAN PACKER : That's the historical precedent that you f ound . MR. POPOK: Which is why the remedy is so automatic because t his me ans the Judge has found t h is shou ld have been the winner. COUNCILMAN PACKER : I understand. However , basical l y that's not the i ssue. The issue is res i dency. MAYOR BERLIN : Keep going. COUNCILMAN PACKER: So therefore therefore --if the Judge doesn't have the evidence of residency and all these -- PERSONA L TOUC H REPORTING (305)944-9884 65 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 between pol i ce reports and so forth and so, whatever, to challenge it and to say well, we are not go in g to support this or we support the quo warranto move, I find that very, very difficu lt to -- MR . WEISS : I'm not understanding what you're saying. COUNCILMAN PACKER : didn't make mysel f clear. Okay . Maybe I To me, it's MR. WEISS : You know what? To me, I don't --in other words, everybody else may understand it. I don't u nderstand it. COUNCI LMAN PACKER: As far as I 'm l i ke I sa i d before, I thin k the Judge should do the ruling as far as evidence. MR . WEISS : Substance . COUNCILMAN PACKER: Substance , and from what I hear, the q uo warranto has nothing to do with evidence . It has only to do from your perspective --as far as what you have researched has only to do wi th the number of votes or d iffe rent type of MR. WE I SS : Al l we can say from PERSONAL TOUCH REPORTING (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 precedent is th at we have not seen -- Quo war r ant o is a series in order to get quo war ranto, you have to have a series of chec ks on a list; in other words, certain things t ha t yo u have to have i n place. CO UNC ILM AN PAC KER : Okay . MR . WEISS : We hav e not seen it used --we have looked at all th e cases and we have not see n it used in th i s context . COUNCILMAN PACKER : But it cou l d possib l y be. MR . WEISS : This J udge could rule that in this pa r t i c u l ar c i rcumstance , that quo warran to i s appropriate . COUNCILMAN PACKER : But what I don't unders tand is , wi ll th e Judge hav e seen any of t h e evidence that is t o be presented? MR. POPOK: She's read t he Co mp l aint . CO UNC ILMAN PACKER : She 's read the Comp l aint . MR. POPOK: They have l oaded the Complaint with a ll ega tion s relating t o the PERSONAL TOUCH REPORTING (305)944 -988 4 67 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 evidence. MR. WEISS: T he Comp laint i s not evidence. You un derstand , the Compla i nt is not evidence. COUNCI L MA N PACKER : n ot evidence? MR . POPOK: No. T he Complaint is MR . WEISS : T h e Complaint is a llegations, just like our Answer is no t evidence. MR. POPOK : See, when she's r uling -- when .any J udge r ul es on COUNC ILMAN P ACK ER : wrong word . Maybe I us e d t he MR . POPOK: When any J udge ru l es on motions -- MR . WEISS: Ev i dence means ev idence . Evidence means documents COUNCILMAN PACKER : Documents, oka~. MR . WE IS S: MR . POPO K: --or swo rn testimony -- Let me do i t th i s way . On a motion to dismiss , the J udge cannot l ook at evidence. She can o nl y l ook at the fo ur corners of th e Compl ai nt that's in front of he r, wi thout e v idenc e PERSONAL TOUC H REPORTING (30 5 )9 44 -9884 68 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 without testimony. That's why s h e wasn't receptive to any of their arguments where they tried to bring in some of the "evidence " at the motion to dismiss hearing . She wasn't receptive to it. No Judge would be because it's not proper on a motion t o dism i ss. That particular COUNC I LMAN PACKER : Right. MR. PO PO K: That particular procedural vehicle -- COUNC I LMAN PACKER: I und e rstand . MR. POPOK : You don't l ook at evidence. You look at the pleading and dec ide whether it's sufficient or it survives a mot i on to d i smiss and is viable. That's yo ur only aspect that the Judge is focused on. So yes, she's a human being . Did she read whatever is in the l awsuit? Yes . Bu t is she adjudicating, being an arbitrator on evidence , evidence being put on COUNCILMAN PACKER : At t hat poin t ? No . PE RSONA L TOUCH REPORTING (305)944 -9884 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 2 4 25 MR . PO POK : At that po in t . No . MR . WEI SS : Let me put it in a different way, ver y sort of resu l t oriented . I f th e Judge rules that J oel i s not q u a l ified --v ery result or ie n t ed does this Counci l wants L ynne to be seated o r n o t ? Forget about how she gets there o r not . is : That 's the guts o f this issue , whi ch Assuming that Joe l is not there o ne way o r anot h er, does th i s Council want Lynne to be seated --does this Council want us to t ake the position that as the seco n d pe r son in the r ace , L ynne should be seated; or does the Counci l want to have an elec t io n? I rrespective o f sort of the legal machinations of t h is, that's the issue. MR . POPOK : I agree w i th that. MR. WEI SS : That's the i ssue for you . COUNCILMAN PACKER: All right. MR. WEISS : I f you guys tell us what to do wi th that i ssue -- COUNC I LMAN PACKER: I unde r stand . PERSONAL TOUCH REPORTING (305)9 4 4 -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 MR. WEISS: --we'll present it properly. COUNCILMAN PAC KER : In other words, then therefore, it's not an automatic according to -- MR . WEISS: No . Al l we're doing is taking wha t position the Village should take . In other words, should we take the position --how ever we do it and we'l l have to f i gure out ho w to do it --that she should be immediate ly seated; or does the Council want there to be an e l ection to fill that spot. of this issue . That's really the guts VICE MAYOR ROSENFIELD : Without names . seat Y . If Xis removed, do we i mmediately MR. WEISS : T hat's the quest i on. VICE MAYOR ROSENFIELD: The reason that I would like to have an election is that Y is not the choice of the people. Th e people did not choose Y to be on the Council by a very wide margin and, therefore, the people need to have the PERSONAL TOUCH REPORT I NG (305)944-9884 71 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 opportu nit y to make that decis i on , not us on the Counc il . COUNCILMAN PACKER : point. That 's a valid The only ques t ion I --I keep raising it . Is it in this q u o wa r ranto leg i slation --or whatever i t is --law, is that t h e way i t 's directed? Is there a direction of t h at part i cular paragraph or whateve r i t is in the Sta t e law that says i f the Judge ru l es in favor of Lynne MR. WEISS: That's the way quo warranto works. MR . POPOK : That's the only remedy. It's in the statute. COUNCILMAN PACKER : That's the way i t works . Therefore, we are -- MR . WEISS: result -- Bu t if you like that COUNCILMAN PACKER : Wel l , it's no t whethe r we like it or not. MR . WE I SS : No, no. if that's the result that If you th ink if the Co un c il wants to have an election , then you can direct it ; but i f the Counci l PERSONAL TOUCH REPORTING (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 likes that resu l t and wants h er to be seated , then you nee d to tell us so . VICE MAYOR ROSENF I ELD : But the su it i s asking for two different th ings . It 's asking , n u mber one , that Joel be r e moved f r o m the Counc il . MR . WEI SS: Yes . V I CE MAYOR ROSENF I E LD : Nu mber two , i t is asking t hat she b e seate d immed i ate l y . MR . WEISS : Correct . MR . POPOK : Right . VI CE MAYOR ROSENFIELD : Those are two sepa r ate i ssues . same . They a r e not o n e a n d t he MR . POPOK : And I have ha d d i scuss io ns with op p osing co u nse l about will you back off that reme dy a nd propose something else that I can ta k e t o my Counci l , and t hey said n o . So that 's the o nl y remedy t h at they 're l ooking fo r . VICE MAYOR ROSENFIELD : t wo separate issues . I see that a s MR. WEISS : I d on 't know --sorry -- PE RSONAL TOUCH RE PORTING (305)9 4 4 -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 COUNCILMAN PACKER : But you still haven't answered me the quest i on . I 'm still up in the air . MR . POPOK : In the statute itself COUNCILMAN PACKER : What does the statute actually say? MR . POPOK : It says i f the Judge fi n ds t h at ouster i s appointment , she seats the challenger . COUNCILMAN PACKER : That 's i t . So i t's open and closed as far as that . MR . POPOK : But The f undamental issue i s , do we go a f ter t h e q u o warranto and have it defeated so we can there can be an election or do we allow i t MR . WEISS : li sten to -- No. I think we need to Martin basically says he feels like i f the Judge kicks out Joel under quo warranto , he wan t s L ynne seated ; and I think you said that you don 't think she should be seated because t he people didn't vo t e for her. VICE MAYOR ROSENFIELD : of the people in Bal Harbour. I 'm for a l l PERSONA L TO UCH REPORTING (305)944 -9884 74 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 MR . WEISS : So we need to listen t o --you guys need to tell us what to do. That's a l l . VICE MAYOR ROS ENFIELD : I'm for all of t he people i n Bal Harbour COUNCILMAN PACKER: But do we have a choice? VICE MAYOR ROSENFIELD : f in i sh? Please? Can I please COUNCILMAN PACKER : Go ahead . Go ahead. I'm sorry . VICE MAYOR ROS ENF IELD : I'm for a l l of the people in Bal Harbour making this decis i on and this would not b e the case . The Counc il shou l d no t make it , and I hope the Judge doesn't make it. I hope the Judge would l i sten to an appea l that says we need our voters to make the decis i on . MR . WE I SS : Martin, just to answer your question . Do we h a ve a choice? COUNC I LMAN PACKER : cho i ce . We do have a Yes. MR . WEISS: Yes, because if you don 't like --i f you take th e other position PERSONAL TOUCH REPORTING (305)944-9884 75 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 's bee n expressed , then our direction has to be to oppose the q uo warranto because we don't lik e the result of what happens if the quo warranto is granted . So you do have a choice because yo u can be --I mean , you could even be --if you wanted to take the pos i t ion, you cou l d even take the position that Joe l is unqualified , but s till tel l us to oppose the quo warranto because you don't like the idea of somebody being immediately seated . But do have a choice, whic h is : I f you fee l what Jea n f eels , wh i ch is that if there's a vacancy it should be fi ll ed by the electorate or the position that you're expressing which is t hat if there is a vacancy , then i t should be filled by Lynne Bloch -Mullen. Obviously, we have a --this is the only issue that we COUNCILMAN PACKER : Yes , just so we 're c l ea r on that . MAYOR BERL I N : Martin, ho l d on one second. P ER SONAL TOUC H REPORTING (305)944-9884 76 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 Jaime? COUNCILMAN SANZ : But now when we just g ive you the way we feel -- MR. WE I SS: Yes . COUNCILMAN SANZ: --then why are we going back again with this? We already to l d you that we will have an e lection when it's appropriate, but now this comes back again . MR. WEISS: Th is is a little bit of a --it 's slicing the app l e a little different way. It's a different way that --it's another thing that MAYOR BERLIN: Here. I 'l l make it simple for you . Richard, what Jaime is saying and Jean, they think under any circumstance think there should be an election, which wou l d mean that you should oppose quo warranto . I agree with them . I don't think there's a circumstance where this woman should be seated . She c l early didn't have a mandate from this community an d to suggest otherwise is simp l y an obvious PERSONA L TOUCH REPORTING (305)94 4-98 84 77 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 i t's obvious l y not the case . So just like we 're not going to take a position to defend J oel and advance h is interest s, we shou ld n 't b e advancing her interes ts . She didn 't get a mand at e . She wasn't been e l ected by a major i ty of t he peop l e in the election. I t's probably a fair statement to say that the major ity don't want her i n there. So why would we take a position to support an action t ha t wou l d seat her ? That mak es no sense to me . So we h ave three to one. I take it Mart in is v oting agains t. COUNCI LMAN PACKER: Mr. Mayo r . I just want -- MAY OR BERLIN : So you oppos e. It could be three to one . It's o k ay. COUNC I LMAN P ACKER: No . I'm simply not clea r . I'm no t ge tti ng a d i rect a nswe r -- MR . WE I SS: I 'm trying --you know, I'm not trying to be evasive. I 'm not r e all y t r ying to -- PERSONAL TOUCH REPOR T ING (305)944 -9884 78 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 2 4 25 VICE MAYOR ROSENFIELD : I think h e gav e you an answer . says COUNCILMAN PACK ER : No , he did n 't . MR. WE I SS: Ask i t again. COUNC IL MAN PACKER : If the l aw the law is the law whether we say we l ike it or we don 't like i t . Correct? MR. WEISS : T he law i s the law wh et h e r we l ike it or --yes, tha t 's cor r ect . COUNCI LMAN PAC KER : Okay . If t hi s quo warranto sa y s that if a candidate i s unqualified o r if she rule s aga in st t h e candidate and o usts h e r , the law says quote -- MR . WEISS : T h at's what it says. COUNC ILM AN PACKER : c an dida t e is -- That t h e ot her That 's the law . Co r rect? MAYOR BERLIN : Seated, co r rect . MR . WEISS : Rig h t, but t h a t -- COUNC I LMAN P ACKER : So how can we come out and say we are above t h e way t he St at e law is wr i t ten? MAYOR BERLIN : No, because in this PERSONAL TOUCH REPORTING (30 5)9 44-9884 79 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 13 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 i nstance, we're act i ng on behalf of th e residents of the commun i ty . This woman is a private remedy. not about --it's a private remedy. She wants to be seated . She's not saying, "It's in the best interests of the commun ity ." She 's saying, "I wo n . seated." I want to be That 's what s he 's saying. COUNCILMAN PACKER : She's saying that , but it's the law --what is the way the l aw i s MAYOR BERLI N : R i ght now, the Judge thinks it 's inappropriate for her to have that remedy because all the cases they have res earched s how it's neve r been the case ever before where somebody was ab le to seat themselves under an issue whe r e t h ere was a reside n cy contes t. The examp l e t hey gave you was whe r e but for c ir cums tance s that too k place dur ing th e election -- MR . POPOK : Right . MAYOR BER LIN : --like a hanging chad PERSONAL TOUCH REPORTING (305)944 -988 4 80 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 where there was --where rea l ly , the election was hanging in the balance. This woman lost 70 to 30. There's no mandate for her candidacy . The people have spoken. They didn't want her . Joel may not be qualified, but they clearly didn't want her . So why we would take a position to advance her to have the seat would be adverse to the majority of the people in this community who we represent , period. That 's the explanation. COUNCILMAN PACKER : There's no question I can fo l low your reasoning , but I like to follow what the law says. MAYOR BERLIN : We ll, that is the law. The law -- COUNCI L MAN PACK ER : should be seated. The law says she MAYOR BERLIN : No. Th e l aw says is she 's not entitled to this remedy. That's why i t was dismissed. The Judge has indicated she's not enti tl ed to this remedy . That's the law and that 's the appropriate position -- PERSONAL TOUCH REPORT ING (305)944 -9884 81 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 MR . WEISS.: So far in th e case -- MAYOR BERLIN : I f our lawyers had come in and said, we've r esearched this and that there are a l it a ny of cases that p ro vide that in these ci r cumstances this woman should be seated, we may h ave a different analysis to make . They have come in and said t he opposite. She said th a t t hey researched this . This is i nappropriate for her . S he 's reaching . She's looking to go beyond t h e law for personal gain. She wants to be seated and the l aw says, you 're not entitled to it . We should oppose th at . It's very clear . We shou l d oppose that . T hat 's t h e law . MR . WEISS: The truth i s that what the law i s --you al l know what the l aw in this partic ular case is going to be dete rmin ed by the Judge and -- COUNCILMAN PACKER : Okay . MR. WEISS: an d th e issue t ha t we 're d i scussing is real l y a result oriented circumstance . In other wo r ds, PERSONAL TOUCH REPORTING (30 5 )944 -9884 is 82 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 2 4 25 • we're going to take a position one way or the other . The Judge is going to determi n e that the law is, b ut the question is -- MAYOR BERLIN: What's re a lly the r i sk here, Mar t in ? If we are wrong in terms of what the l aw is , she has t h e right to run COUNCILMAN PACKER : That's r i ght. MAYOR BERLIN : --and i f the commun it y wan t s h er, she 'l l get elected . There won 't be a problem. She 'll spend a coup l e of dol lars . throw an election? How expensive is it to But it wou l d be a grave injus t ice, a big mis take , if we went the other way when the community didn 't want her . So sh e 's appa r ent l y u ndertaking to spend money for th i s lawsuit . I guess either her or somebody is support i ng her and t h e money she spends real l y shou l d n 't be our pr i mary consideration . I t should be wha t's i n the b es t interests i n the community; and if we have an e l ection and t h e community wants her , PERSONAL TOUCH REPORTING (305)94 4 -9884 83 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 she'll be sitting up at the dais wi th us. Then we'll have a clear conscience about everything that took place. COUNC IL MAN PACK E R: I h ave no problem having an election i f the Judge rul es that Joel is ine ligi ble . I have no problem . MAYOR BERLIN : R ig ht. We a ll agree. We all agree on t h at. COUNC I LMAN PACKER : We all agree wi t h that . Th e only prob l em I have is that if this quo warra n to --if this Council supports our attorney opposing the quo warranto mot i on MR. WE I SS : Right . MR . POPOK : If you d ire ct us COUNC ILMAN PACKER: --if we should direct you to oppose it. MR. WEI SS: Righ t . MR. POPOK : R i ght. VI CE MAYOR ROSENFIELD: Whic h we have every right to do, which any cit i zen has the r ight to do . MA YO R BERLIN : Because i t's apparently not appropriate . PERSONA L TOUC H REPORTI NG (305)9 44-9 884 - 84 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 MR. POPOK: The Judge i s ultimately going to make the decision . COUNCI LMAN PACKER : The Judge wi ll ma k e the decis i on . MR. POPOK: Yes, as to whether it 's le ga l ly suffici en t -- MR. WEISS: It's rea ll y --I think that I 'm back to, it's really a result oriented directio n t ha t you're giving us. I f you fee l that u nd er certain circumstances t h at Lynne should be seated immediately , t hen you should tell us . I f you feel that Ly n ne should not be seated and that there should be an e l ection, then you go the other way . mean MAYOR BER LIN: I think what we're I say ing i s Lynne s ho uld be seated if she wi ns an e l ection . Well, whoever wins an election shou ld be seated . That 's what we're saying . COUNCILMAN PACKER : Ye s, that 's a l l . MAYOR BERLIN : Well , that 's what we're saying . That's the consistency of supporting and having an elect i on and PERSONAL TOUC H REPORTING (305)944-9884 85 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 opposing quo warranto because those two positions are intel l ectually incons istent . MR . WEISS: You could end up with no e l ection . VICE MAYOR ROSENFIELD: First o f all, Martin, i t's a three and a half year term . T h i s isn't a matt e r of three months. You know, we migh t not have opposed th i s if i t had only been thr ee months l e f t i n the t e rm, but this i s a four year term . On ly f i ve months of th e four y e ar term are over. The people have not spoken on this. T he people a r e the constituents, the peop le who we represent. They need to have COUNCILMAN PACKER : I re p r esent them, also . VICE MAY OR ROSEN F I ELD: T h ey need to have a voice as to who that person on the Council is go i ng to be. Th at's wh y I actua lly would recommend that we take the position that we have taken --or the major i ty of us have taken. It 's no t against Lynne. It 's not PERSONAL T OUC H REPORTING (305 )944-9 88 4 86 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 2 4 25 against anything . It's a matter of saying there's three years and eigh t months left COUNCILMAN PACKER: Well , my position is , like I sa id before, let the Judge rule. Now MR. WEISS: The Judge is going t o rule , anywa y. The question -- COUNCILMAN PAC KER : Whethe r we support the -- MR. WEISS: Quo wa rr anto or not . COUNCILMAN PACKER: --quo warranto or not. MR. WEISS: Right. VICE MAYOR ROSENFIELD: The Judge is going to rul e. COUNCILMAN PACKER: The Judge is going to rule on that . VICE MAYOR ROSENFIELD: We're all in favor of the J u dge ru ling. COUNCILMAN PACKER : Natura lly. VICE MAYOR ROSENF I ELD: We're just advising our counsel what opinion we would like him to express. T his , expresses our PERSONAL TOUCH REPORT ING (305)944 -9884 87 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 feelings . The J udge is s t il l going to ma ke the d ec i sion. COUNCI LMAN PA CKER : Well, personally if I was the Judge --and I'm not and I 'm not an attorney --I would try and research as much as I could t o see if there was any othe r p r eceden t s on this business, b ut i f you say it on l y has to do wit h MR. WEISS: The only cases that we fo u nd --and we've done a pre tt y good research job . COUNCILMAN PACKER : Okay . VICE MAYOR ROSENFIELD : Chads and close elec ti o ns. COUNCILMAN PACKER : If t ha t be th e case MR . WE I SS : Mic ha el , to be fair . Have they c it ed any ca se s whe r e quo warranto has been used? MR . PO POK : No. I think they did a very weak job of defending quo warranto . They just sa id th ey did n 't hav e an y cases in opposition. Th ey sai d that they believe -- PERSONAL TOUCH REPORTING (305)944 -9884 88 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 Their argument is wel l, if he hadn't been there and she had run I guess unopposed, she wou l d have won , wh ich is not the way q u o warranto works and I don't think the Judge was buying the argument; but no, they didn't h ave the counter cases. There's not that many cases in th i s area . The cases -- MR . WEISS : I real l y th i n k that and I guess I'm just --the issue is whether under any circums tan ces y ou feel that --I'm not tal king about technical wh ether you feel that u nder any circumstances, she shou l d be immedi ately seated . That 's really the issue here because that 's what quo warranto i s and I t hink that this obviously is a personal decision. I f you f eel like under some ci r cumstances, you cou l d justi f y hav i ng her immediately seated, then yo u're tak i ng the corr~ct pos i tion -- COUNCI LMA N PACKER : It certainly would save the Vi llage a lot of money PERSO NAL TOUCH REPORTING (305)944 -9884 89 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 righ t off the bat . VICE MAYOR ROSENFIELD: There are times wh en money i s spent MR . WEISS : Mi c h ael, are there -- VICE MAYOR ROSENFIELD : --sometimes when we spend money , i t i s spent in the best interests of the people . MR . WE I SS: Mic ha e l , are there sett l ement opportunities i n t his case? Have we been presented with any settlement opportunities that --have you asked for a qu i ck r esu lt? MR. POPOK: I mean, I hav e had a number of discussions with Mark Journey . I have had some d i scuss i ons with some o t her lawyers that are invo lved in the background of the case about -- d i scussions, but --you k now, I have opened t he door. They have neve r stepped through -- MR . WEISS : And the other th i n g i s that we, the Vi ll age, aren't in --because there's other parties to the case -- Joel MR. POPOK : But I have to l d them the PERSONAL TOUCH REPORTING (305)944 -9884 90 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 door is open fo r a proposal. I have a l so told them that one of the problems that th ey wou ld maybe remove is if she was seeking something other tha n immediately be ing sea t ed as my own view of the case and th ey said, "That 's our remedy that we're seek ing." MR. WEI SS : Okay . J u st to summarize, we have decided two th i ngs unanimously. We hav e decided that number one, we 're going to let Joe l's atto rneys raise these non -residential defe nses that we have MAYOR BERLIN : It's down to two : Whethe r or not they should have filed it b e for e and the 1 0-day issue . MR. WEISS : Right . MAYOR BE RLIN : The thi rd, we are go in g to take a position -- MR. WEISS : The th i rd one --the second o ne . the second Yes, on the thi r d procedu ral/non -resi d en tia l defense, three of you I th i nk have said t ha t we should oppose the quo warra n to. P ERSONA L TOUCH REPORTING (305)94 4 -9884 9 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 Then I th i nk we have agreed --you all have agreed that we 're not going to take a position with respect to J oel 's qua l if icat ions i n terms of the residency and so fort h. We're going to be neutra l on that issue . I think a l l of you have agreed that our pos i tion wi th respect to the remedy aside from the quo warranto is s ue is that i f Lynne wins, that we should be directed to hold an election in conjunction with another election to fill the seat. Is that accu r ate? MAYOR BERLIN: Let me just -- preserving the right , i f we deem it appropriate -- MR. WEISS: Correct . MAYOR BERLIN : --to appoint somebody to f i ll i t on an i nterim basis . MR . WEISS : Right, right. MR . POPOK : Okay . Let me just ru n through the suit to make sure that I understand it. Count I, dec l a ra tory relief . As to the s ubst ance of the a t tack that anyone PERSONAL TOUCH REPORTING (305)944 -9884 92 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 would make on the declaratory rel ie f at a procedural leve l right now, that we're going to let --it's going to be made by Joe l Jacob i 's counsel . MR . WEISS: Right . MR. POPOK : As to the remedy that's sought in that claim, wh i ch is that she get seated , I oppose it MR . WEISS : Right. MR. POPOK : as a remedy . --and I seek an election MR . WEISS : Right . MR . POPOK : As to the second count , which is q uo warranto, that one we can address and attack as being inappro pr iate in this case . As to th e third, which is MAYOR BERLIN: Because we want the peop l e to hav e the opportun i ty to make that decis i on. MR . WEISS : Co rr ect. COUNCILMAN PACKER : Tha t's no question . Th at's no question as far as that goes . MR . POPOK: An d as to the last -- PERSO NAL TOUCH REPOR T I NG (305)944 -988 4 93 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 . WEISS: We ll , i t is . See, the thing is that again, if we don't oppose the quo warranto, then the people --if she wins, the peop l e wi l l never have a chance to vote for this again . I me an, i f y ou feel like the people should --and I'm not putting words in y our mouth or trying to go in any particular direction. If you f eel like th i s vacancy that's created should be filled b y the voters in any case, th en the quo wa rr anto needs to be opposed. I f you feel li ke there should be this slam dunk for he r avai lable, t he n that's the other position on the quo wa rranto . T hat's really the issu e because if the --that 's really sort of the only place that you guys have to go tonight. VICE MAYOR ROSENFIELD : Can I --I want to amend some thing I said and that is when you brought up t he issue of money and that it disturbs me t ha t t h e e l ection will cost money . It disturbs me that you broug ht it up PE RSONA L TOUCH RE PORTI NG (305)944-9884 94 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 because i t is the morally and e t h i cally the co rr ect thing to do . If you l ook at the morali ty of t his and the ethics of letting the voters make this dec ision, then spendi n g the mo ney i s not an issue. COUNC I LMAN PACKER : There's no question --there's no question that the voters have the final say and the voters will have the final say if the Judge rules that he is ine ligibl e . MR . WEISS: If the quo warranto is granted, the voters wi ll not -- COU NCILMAN PACKER : If you 're going to oppose the quo warranto and if the J udge ru l es with you, st i l l he loses the case . R i ght? MR . WEISS: Then it goes to the voters . COUNCILMAN PACKER: the voters . Then i t goes to MR . WEISS: But if the Judge rules for the quo warranto , then there 's no election. That's the only p l ace you guys have diverged tonight . P E RSONAL TO UC H REPORTING {305)9 4 4 -9884 95 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. POPOK : No. I think Councilman Packer's pos ition is clear and I think under the major i ty wi ll based on the rest of the -- MR. WEISS : MR . POPOK : I'm just trying to -- Go ahead. MR . WEISS : This is an i mportan t issue . I want to make sure that he understands. That's the on l y issue . COUNCILMAN PACKER : You can oppose a law, but the law has been written -- MR. WEISS: You can oppose --as you know, nothing is black and white . Basically what you're doing is you're saying, I don't like the result of quo warranto. So, therefore, you guys are really good lawyers . You just beat the State of Florida in this tax suit. guys are r eal ly good . You So I don't like the result that quo wa rranto -- We did . You know that we won that . VICE MAYOR ROSENFIELD: I know. MR. POPOK: A li ttle advertising. MR. WE ISS : I'm not PERSONAL T OUCH REPORTING (305)944-9884 96 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 bashfu l. But the point i s that I don't l ike the result o f quo warranto, just what you were say ing and so you guys are smart. You figure out a way . You figure out a way so that that 's not the result . That 's basical l y --t hat 's wha t the rest of t h e Council is, I thin k , saying. So I understand your position and I'm not trying t o put --I just want to make sure t h at you understand the l ega l position that we 're i n . COUNCI LMAN PACKER : The lega l position is if the res t o f the Counc i l feels that you should oppose it, then that's what you're going t o do . MR . WEISS : Yes. That's where we are . MR. POPOK : And the last one , which is the stat ut o r y challenge unde r Chapter 102.1 68, wh i ch is this 10 -day obligation that they had to b r ing in the pr.oper pa rti es, wh i ch also seeks the remedy of ouster a n d seating of Lynne Bloch -Mu l len as to the technical or procedural i ssues PER SONA L TOUCH REP ORTING (305)94 4 -9884 97 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 re l a t ed to t h e cla im , t h a t aga in --th at's something is somethi n g that we 'r e going to al l ow if app r opriate Joel Jacobi's co u nsel to do ; but as to the remedy , I 'm go ing t o take t h e position that's been di r ected by the majo rit y -- THE REPORTER : I 'm sorry . I didn't hear t he end of what you just said . MR . P OPOK: I'll do a n other ve r sion . As to 1 02 .1 68 as to the procedural and substantive issues , that's something that counsel f or Joel Jacobi wil l ra is e . As to the remedy, I wi ll a rgue th a t until elect i o n , an appo int me n t power should be prese rved for this Council as opposed to the seat ing of Lynne Bloch -Mullen . CO UN CILMAN PACK ER : I n other wo r ds, that has nothi n g t o do wit h t he quo warran to . MR. WE I SS: Not at all . MR. POPOK : No, bu t she's seekin g the same r eme dy for each o f the t hr ee -- MR. WEIS S : He's ri gh t . T here 's a separate co un t in the Complaint -- PERSO NAL TOUC H REPORT ING (305)944 -9884 98 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 COUNCILMAN PACK E R: I see. MR. WEISS: MR . POPO K: Okay, that 's it . Okay, thank you . MR . WE I SS: Does anybody have any questions? I mean, is there anything e l se that we shou l d --this is comp l icated stuff. COUNCILMAN PACK E R: We l l, the on l y thing that you had raised was there any sort of --some sort of compromise brought in and you sa i d abso lu tely not . MR. POPOK: I sa i d the door i s open. If they want to come and propose someth i ng, I wi ll br ing it righ t back to this Council. MR . WEISS: All right . We'l l h ave anothe r Execu t ive Session and we'll propose But the thing I added was t hat unl ik e a lawsuit wh ere there's just two part i es i nvo l ved, in this particular case Joel is a l so a party to the lawsuit. So any settl eme nt that was rea l ly an ultimate settlement of th i s would h ave to include Joe l . PERSONAL TOUCH REPORTING (305)944 -9884 99 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 VICE MAYOR ROSENFIELD : Do you have any idea when th i s may be heard? MR . POPOK : I think that assum i ng the motions get filed in th e n ext two weeks, I think she'll probably ho l d a hearing at the end of Octobe r , beg i nning of Nove mbe r, probably have another two-h our hearing and then she'll ma k e he r ruling . VICE MAYOR ROSENFIELD : Of f the record -- MR . WEISS : There's no o ff the re cord . VICE MAYOR ROSEN F IELD : Oh, there's no o ff the record . MR . WEISS: No. VICE MAYOR ROS E NFIELD : Does th i s mean --t hi s means that Joel has a seat until such time as the Judge rules . MAYOR BERLIN : And everythi n g he does is MR. WE I SS : Yes . MAYOR BERLIN : In other words, someone ra ised the question the other day a b out -- VICE MAYOR ROSENF IEL D : I f he we r e PERSONAL TOUCH REPORT I NG (305)9 4 4-9884 1 00 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 re moved, what he -- MAYOR BER LIN : I f he wer e no t r emov e d, are the votes that h e's part ic ipated now in some how nu ll and void? is the q uestio n . MR . WEISS : I know that . I know that that question h as been raised and we 're looking at i t. T he answ er is we feel that he has the pr esumpt i on t hat he's properly seated and tha t COUNCI LMAN PACKER: He's innocen t u nt il proven gui l ty. MAYOR BER L IN : We n eed to go back over t h ere on the record . Can yo u p ic k i t up here , E ll isa? ACTING VI LL AGE MANAGER HORVATH : No . MAYOR BERLIN : We ha v e to go over th e r e. (Thereupon , there was a brie f interruption in the session while t he Commission moved to th e Comm i ssion Chambers, a f ter whic h th e fo l low i ng proceed i ngs we re had :) MAYOR BERLIN : I will no w r eope n the PERSONAL TOUC H REPORTING (305)944 -9884 1 0 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 2 1 22 23 24 25 public meeting . The attorney -client session has now been terminated . Me mbers of t he genera l public are now invited to return for any further proceedings or matters . Hearing none , is t here a motion to adjourn? COUNC I LMAN PACKER : to adjourn . I make the mot i on MAYOR BERLIN : Second? VIC E MAYO R ROSENFIE LD: Second . MAYOR BERLIN : All in favor? THE COMMISS I ON (i n unison): MAYOR BERLIN : Any opposed? (No response .) MAYOR BERL I N : The meeting i s adjourned . (Thereupon; the session was adjourned at 6 :20 o 'clock p.m .) Aye . PERSONAL TOUCH REPORTING (305)944 -9884 102 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 CERTIFICATE OF REPORTER STAT E OF FLORIDA ss . COUNTY OF DADE I, CAROLE BECKER, a Notary Public in and for the State of Florida , do hereby certify that I reported t h e forego ing hearing at the time and place he r einabo ve set forth ; and that t he foregoing pages numbered from 1 to 102 , inclus i ve, constitute a true and correct transcription of my shorthand report of said hearing . I FURTHER CERTIFY that I am ne i ther attorney nor Council for, nor related to nor emp loyed by any of the part i es connected with the ac t ion, nor financially interest ed i n the act ion . WI TNESS MY HAND AND SEAL in the City o f Miami , Dad e County , Flor i da, this 9th day of Sep tember , 200 7 . CAROLE BECKER PERSONAL TOUCH REPORTING (305)944 -9884 103