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HomeMy Public PortalAbout2009-03-17 AttorneyClient Session CASE 07-12570CA15 29 pages (2)1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 6 1 7 18 19 20 21 VILLAGE OF BAL HARBOUR ATTORNEY/CL I ENT SESS I ON BAL HARBOUR VI LLAGE HAL L 65 5 96th STREET BAL HARBOUR , F LORIDA 33 15 4 T UESDAY, MARCH 17 , 2009 6 :45 p .m. -7:10 p.m. 22 T aken befo r e Ma r y G . Stephenson , FPR, Notary 2 3 Public for the State of F lor i da 24 25 TAYLOR REES E AND ASSOCIATES, INC . (305) 44 4-7331 1 1 2 APPEARANCES : 3 COUNCILMEMBERS: 4 JEAN ROSENFI E LD , ASSISTAN T MAYOR MAR TI N PACKER 5 J A I ME M. SANZ JOE L S . JACOBI (PR E S E NT ON L Y DUR I NG 6 PUBLIC PORTION) 7 8 V I LLAGE MANAGER: 9 ALFRED J. TREPP E DA 10 1 1 VILLAGE AT TORNEY : 12 13 1 4 1 5 16 17 1 8 19 20 21 22 23 24 25 WEISS S E ROTA HE LFMAN PASTORI ZA COL E & BON I SKE , P.A. BY : R IC HARD WE I SS , ESQ . MIC HAEL POPOK, ESQ . V IL LAGE CLERK: EL LI SA HORVATH, CMC (P RESEN T ONLY DUR I NG PUBLIC POR T ION) TAYLO R REESE AND ASSOCIAT ES , I NC. (305) 44 4 -733 1 2 3 1 There upon , the following proceedings were had: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ASSIS TA NT MAYOR ROSEN FIELD: Good evening , ladies and gen~lemen . meeting to order. I am calling thi s pub li c By the way, happy St. Pat rick's day to all of you . May I have a roll call , p l ease. MS . HORVATH: Assistant Mayor Ros~nfield . ASSISTAN T MAYOR ROSENFIELD: Present . MS . HORVAT H : Council man Jacobi. COUNCI L MAN J ACOBI: Here. MS. HORVATH: Councilman Packer . COUNC ILMA N PACKER: Here . MS . HORVATH : Mayor Berlin and Councilman San z a r e absent. ASSISTANT MAYOR ROSEN FIELD : I t is now 6 :45 p.m. and we are about to have an attorney/client session in accordance with Florida Statute 286.011 regarding the li t igation styled Ly n n Bloch-Mullen versus Joel Jacobi , Bal Harbour Village and t he Miami-Dade Canvassing Board , Dade Coun ty Circuit Court , case number 07-12570 CA 15 . This session is estimated t o last to one hour and the fol l owing peop le will be in attendance at this meeting: Mr . Sanz has jo ined TAYLOR REESE AND ASSOCIATES , I NC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 1 4 15 16 1 7 18 19 20 21 2 2 23 24 25 4 us , Jaime Sanz, Ma r tin Packer, Jean Rosenfield , the attorneys, Village At torneys Richard J. Weiss , Michael J. Popok, and Village Manage r Alfred J . Treppeda . These proceedings will be reco r ded by a certified cou r t reporter and, at t he co n clusion of the li ti gation discussed , the transcript will be made part of the public recor d . All those individuals who I have no t named , at this t ime , should leave the room . MR. POPOK: Vice Mayor , could I just have you read the case number again? We might have had it incorrect on the spreadsheet . ASS I STANT MAYOR ROSEN FI ELD: number is 07-12570 CA 15 . The case MR. POPOK : No , 08 . It switched . ASSISTANT MAYOR ROSE N FIE L D : So it 's 08 now? MR . POPOK : We have had a number of judges . So it 's 08 now. I think it's now 08 . It 's our fourth judge . (Thereupon , Ms. Horvath and Councilma n Jacobi left the room.) MR . POPOK : Good evening, l et 's talk about t he Bloch-Mu l l en case . F irst I want to give you a TAYLOR REESE AN D ASSOCIAT ES , INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 br ie f update on where i t is in the status of the case and the trial, what has been acc omplished since t he last time we met , and th en I will ask for some direction related to a coup le of is sues. 5 F ir st of all , as the counci l knows from our circulating to t he vi l lage manager , our summary judgment asking f or a ruling that as a matte~ o f law the charter for the v i llage cons i s te n t with Flor ida s t a tu te and l aw allows for the appo intme nt of a replacement should Councilperson Jac obi be removed by the court was u phe ld on summa ry judgment . The judge rule d th a t we were correc t under the l aw and if at th e end of the day he is remov ed at a tria l because he didn't satisfy t he r es i dence requ irement , tha t the council would have the power to fill the vacancy as opposed to seating Ms . Lynn B l oc h-M ullen who is th e challenger . Th e lit tle bit of the delay that we had is b ecau se we a re on our fifth judge . We are on our th ird judge in t he la st two mo nths. The fir s t j udge t hat rul ed in our favor, Geri Beth Cohen rotated o ff i nto juvenile before she cou ld enter t he order . We then had ano th e r judge , J udge Reyes fo r a mon th . There was a motion to disqua li fy him TA YLOR REESE AND ASSOCIATE S, INC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 1 0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 that was raised by p lain ti ff based on some prior contact that the judge had wi t h t he village. The judge after hearing argument, rec used himself . He also didn 't sign the order . We then got a third judge who was around for such a sho rt period of t ime that I never made an appearance . I 'm not even sure who it was, but t he re was a motion brought by the defense, Mr . Geller, on behalf of Mr . Jacobi that he had had some sort of d ea lings with the judge wh en she was running for o f fice and t h at she should be r ecused , and she g ran ted that, which rotated to our last and final judge, Judge Cardonne Ely, who we had a sta t us conference in front of and she is trying the case . In fact, it starts tomorrow . So to morrow and Thursday will be e i gh t hours worth of tr i al time t hat she has set aside four hours each day to try th e i ssue of res idence as it re l ates to Councilperson Jacobi . There is an open issue, however. Even t hou gh she has seen the transcr ipt from the hearing with Geri Beth Cohen that ruled in our fa~o r, even t hough she signed the order granting our motion for summa r y judgment, during a number of conference ca l ls tha t we have had with her, she left open at leas t a sliver of oppor tunity that TAYLOR REESE AND ASSOC IATE S, I NC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 1 1 1 2 13 14 1 5 1 6 17 18 19 20 21 22 23 24 25 she may reconsider some of the i ssues that were raised on the mot ion for summary judgment at the end of the trial . 7 The opponents have used that to try to reopen all of the issues in t he case and are trying to continue to put o n evidence at the tria l concerning what this council did or did not do to investigate the residency issue, whether it had an ob li ga t ion to do so under the char te r, issues l ike how individual membe rs of the counci l got on in their posit ion , whether they were elected or appo i nted, and al l these other issu es which we have already gotten one ruling from one judge tha t i t i s wholly irrelevant and t hat they are not going to hear testimony. I be lie ve that we are going to get this judge to say the same thing tomorrow at 1 :30 at a hea r ing before the trial, but until I have t hat ruling , the judge has suggested that --at leas t left open the option that she may allow some of this evidence in . Normally, I would say we don 't need t o go to t his trial because our issues have a lr eady been reso l ved in summary judgment , but because the judge has left open the option that at t he end of TAYLOR REESE AND ASSOCIATES, INC . (305) 444-7331 1 2 3 4 5 6 7 8 9 1 0 1 1 12 13 14 1 5 1 6 17 18 1 9 20 2 1 22 23 24 25 8 the trial after hea ri ng r ecord ev i dence that I wou l dn 't b e prese nt to hea r or to object to , she may make a different r u l ing , I am going to make a recommendation to t hi s council that we be present so t hat we know what record i s being de v e _l oped and where i t i s d i fferent than the issues tha t we laid o u t a nd the court ha s ruled , t hat the village have a voice and contro l . That is the f irst issue t hat is bef o r e you . COUNCILMAN PACKER : I have one q uestion . Can one j ud g e at this level overrule anot he r judge at th e same level? T his is not an a p pe al judg e . MR . POPOK: No , and it 's a good quest i on . T he reason that she has the ability unde r t he l aw is that a summary judgment, speci ally on re me dy is someth i ng that ca n be reconsidered be fore t he trial is over . If we h ad t he same judge w it h t he transcript , and I thin k we circula t ed the transcript because i t 's part of t he or de r pr ior to that , t he prior judge who ordered t h at the summary judgme n t wou l d be granted was very c l ear and adamant. T here was no doubt . She ma de a number of commen t s . She was no t equ ivocal at a l l , that all of those issues are irrelevan t. She doesn't wan t to hear about what you gu ys di d o r didn't do TAYLOR REESE AND ASSOC IATES, I NC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 1 4 15 1 6 1 7 18 19 20 21 22 23 24 25 9 concerning the residency issue, investigate or not investigate. She doesn't want to hear how Councilman Packer got on the council, none of these iss ues . She jus t wants to focus on was he or was he not a residen t of Bal Harbour. This judge, I believe is going to u ltimately come to the same conclusion, but because she has been a li ttle bit murky in some of the comments t ha t she has made, the other side has used it . She gave them a fingernail and they have taken t he whole hand, a nd they are continuing. I 'l l give an example. I wanted to stipulate to most everything that the v i llage clerk would testify to because they have her listed as a witness. I said, well , if it's unobjec tionable fac ts , why do we need to put the clerk on. Show me your list of st i pulated facts , and I mig h t be able to agree to i t . Eight out of 15 or eight ou t of twelve of th em I can agree to , but four of them are, please stipu l ate that the village council didn't do anything to investigate residency , tha t p eople on this council were appointed or they didn 't have to stand fo r election against a challenger. I mean , these are to t ally irrelevant to the iss ue of whether TAYLO R REESE AND ASSOCIATES , INC . (305) 444-733 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 6 17 18 19 20 21 22 23 24 25 Councilperson Jacobi was or was not a resident. So we are still argu i ng over it . COUNC IL MAN PACKER : I have a question . Basically, what you j ust said , it 's not the duty of the council to do due di l igence when someone app l ies for running f o r office . MR. POPOK: That is not the plaintiff's 10 a r gument . The plai n tiff 's argument is tha t t here is charter provision that yo u are the keeper of the election and you have the ob liga t i on . CO UNCILMAN P ACKER : Not our clerk? Ou r cle r k takes care o f that . MR. POPOK : Wel l , he has gone further . They a r e arguing that under certain sections of the c h arter , which Richard cou l d probably lay his hands on, he has read the m to mean that this counci l had an aff i r mative obligation once the issue i s raised , whether it was raised by a l awsuit or o t he r wise , t o investigate and hold a hear ing or a trial to determine the residency issue . We don 't ag r ee w i th that , but that is some t h in g they ha v e t r i ed to inject in the case. ASS ISTANT MAYOR ROSE NFIE L D : Is the r e precedent for t hat? MR . POPOK : I t hi n k t hey a r e TAYLOR REESE AND ASSOCIATES, INC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 1 0 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 misinterpreting the charter. Based on the language of our charter, I don 't think they are going to succeed in that , but i t 's still i n the case and they are raising i t . COUNC I LMAN PACKER : But that is afte r the fac t . That i s n ot before the fact. I n other words, when a person app l i es to run for office, they submit residency require ment s to t he cle rk, not to the co u ncil . MR . POPOK: They submit an a ffi dav i t of residency. COUNC ILMAN PACKER : Correct . The counci l, 11 of course, i s no t apprised of that . That is j ust the clerk . Right? MR . POPOK : Correct . COUNCILMAN SANZ : Ri g h t. COUNC I LMA N PACKER: So, therefore , why would the council be in v olved as far as doing any i nvestiga t ion? MR . WEISS : Not be f ore. CO UNCILMAN PACKER : No t be f ore? MR . WE I SS: Under t he charte r, the counc il is the judge of its own qua lifi cat i ons wh en somebody i s on the co u nc i l. COUNC I LMAN PA C KER : And someth i ng is TAY LOR REESE AND ASSOC I ATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 1 1 12 1 3 14 15 16 1 7 18 19 20 21 22 23 24 25 brought up . MR . WE I SS : And some t h i ng is brought it . What it says i s we have the power to subpoena witnesses and require pr oduc ti on of records , but t h e decis ion o f the council sha ll in a n y case be sub j ect to review by the co u rts . COUNCI LMAN PACKER: That has never come before t he co u nc il to do anything? COUNCILMA N SANZ : No. 12 MR . WE I SS : Because basical l y what happened was th a t the la wsuit was f i l ed . Their lawye r never came to the counc il and sa i d to the counc i l , you should r emove Mr . Jacobi . This is be f o r e the l aws ui t was filed . Tha t never happened. That never ha p pened , and by t h e t i me i t ca me to t he counc i l , t h e lawsu i t h ad al r eady been fi l ed . So the counc il at that t i me said , since it 's sub j ect to rev i ew by t he co u rts anyway, l et it be dea l t wi th by the courts . By t h e way , the comment I was go i ng to ma k e is that t here has been a l ot of t alk. There is an a r tic l e in the paper about what this li tiga ti on is cos t ing . We are ve r y consc i o u s o f i t. Bu t when yo u hear what Mic h ae l i s ta lki ng abou t , t he judge , another judge , a motion f or disqualifica ti on by TAYLOR REESE AND ASSOCIATES, INC. (305) 4 4 4-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1 7 18 1 9 20 21 22 2 3 24 25 13 one side, a motion for disqual i fication by the other side, keep try i ng t o ra i se these issues that have bee n resolved, all that costs money . A l l o f i t cos t s money , and t he truth is that where we thought we were in th e case , Michael and I talked about this , we were done spending money , done because we had a ruling as to what the council t o l d us to deal w it h, which was the re medy, how the appoint ment gets filled , and we were done. weren 't going to attend the trial because, yo u We know, Joel 's issue is not our iss u e , and we never have l i tigated t h at issue . T he problem is tha t because of t his swapping over of j udges and all of that, and that is the issue that Michael has raised, the judge has sort of l eft ope n th is little c r ack that some of these is sues that we are int erested in could get reraised again . COUNCILMAN PACK E R : In other words , they are say i ng t hat --in other words , t his tria l i s going to take place , you say , for the next two days . MR . WEISS : We ll , it 's n o t going t o be completed in two days. I t is goi n g to s ta rt for two days and t hen it 's set days in April , right? TAYLOR RE ESE AND ASSOCIATES, I NC. (305) 444-733 1 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 1 5 16 17 18 19 20 2 1 22 23 24 25 14 MR. PO P OK : Yes . It 's going to p i ck up again on April 1 3th . MR . WE I SS : This is goi n g to be a l ong f ight. COUNCILMAN PACKER : I though you said it would take e i ght hours a n d th at is i t . MR . WE I SS : No . She has given us eight hours , but it probably won 't get done . CO UNC I LMAN SANZ : The first time. ASS I STANT MAYOR ROSEN F IELD : She is no t going to make any decis i ons . COUNC I LMAN PACKER: I t would not be any decision? MR . WEISS : No , no. COUNCILMAN PACKE R : Cou l d t he decision possibly say that s h e could t h row it back to us at the counci l ? MR. POPO K: No . MR . WE I SS : No . P robably not . Very un l i kely . No , but --and we thought this issue was resolved by the first j udge, and we were happy and done . T he only t hing tha t we are co n cerned abou t is that our ins t r u ctions from the counci l were preserve the right of the council to make the appo in tment under the cha r ter, and what we are TAY LOR REESE AND ASSOC I ATES , INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 5 16 17 18 19 20 2 1 22 23 24 25 concerned about is because of th e way that this judg e h a d --some comme n ts tha t t his j udge has made t hat t here is a s l im c h ance --righ t , Mic ha e l ? MR. POPOK : R igh t . MR . WE I SS : --t hat s h e could loo k at our summary j udg men t again . C OUNC I LMAN PA CKER : And sh e could orde r what she wants to order . MR. WEISS : She could orde r what she wa nt s to orde r . MR . POPOK: She co u l d vacate t h e original orde r . 15 MR . WE I SS : We think t hat i s u nlike l y, but t h e conce rn i s because she has done t hi s, that we are r ecomme n ding tha t we attend t he trial because all sorts of stuff could be bro ug ht u p tha t would hurt our issue . ASSIS TA NT MAYOR ROSENFIELD : Our issue was s imply that we de f ended the c harte r and t he council's ri ght to make t he appointmen t . MR . WE I SS: Also , the se comments tha t peop l e a r e making like peop le ar e say ing l ike the village d i dn't need to be involved and b la h, b l a h , blah, a l l those k inds o f thin gs, t hi s is a pe rf ect TAYLOR REESE AN D ASSOCIATES , INC . (305) 44 4-7 331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 1 4 15 16 17 18 1 9 20 21 22 23 24 2 5 16 circumstance where if the plaintiff were intereste d in limit i ng t he expense by the vi ll age , they could j ust say , we are done wit h that issue, b u t they are not . They are continuing t o pus h that issue; so that continues to draw t h e village back in to the litigation . COUNCI L MAN PACKER: Then you h ave to appear. MR . WE I SS : We ha ve to appear . ASSISTANT MAYOR ROSENFIELD : You have to appear . COUNC ILMAN PACKER: Is t ha t what this par ticu l ar i ssue is? MR . WEI SS: T hat is the first issue we have. MR . POP OK : I was giving you an upda t e and asking f or di r ection . ASSISTANT MAYO R ROSENFIELD : I am strong l y in favor of you appea ri ng. COUNCI LMAN PACKER : Yo u have to appear . What is next? MR . POPOK : The next issue is the chi e f . In the course of the rotat ing judges , what the plainti ff used as grounds to disqualify J udge R eyes , who was two judges ago , was a filing t hat TAYLOR RE ESE AND ASSOC I ATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 2 4 25 they made in cou rt supported by an aff i dav i t in wh i ch MR. WE I SS: Who was the affidavit signed by, Michae l ? MR. POPOK : Hold on . I have i t . I th i nk i t was s i gned by Bloch-Mu l le n . I h ave i t here. Veri fi ed motion to disqualify the 17 tr ial cour t judge was sig n ed by the pla i ntif f . Yes, the affidavit o f Lynn Bloch -Mullen was filed in conjunction with that. P art of it is an attack on the c r edibility of C h ief Hunker, basica lly ca lli ng him a liar . MR. WEI SS : Read some of it. MR . POPOK: J udge Reyes had disc l osed that he ha d an interaction or contact wi th Chief Hunker, tha t his nephew had worked a t the village under Ch i e f Hunker at some point, that h e knew Chief Hunker from when the j udge was a p r osecutor and Chief Hunker was a police officer. They suggested that , oh, the judge wi ll be biased and won't list e n. Wh en Chief Hunke r is attacked on the stand for his cred i b i lity i t wi ll be a problem . What they said specif i cally about him give me one second. Apparently t he j u dge 's godson TAYLOR REESE AND ASSOCI ATE S, INC. (305) 4 44-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1 7 18 19 20 21 22 23 24 25 18 Alex A l varez is currently a pol i ce officer at the vi l lage? MR. TREPPEDA : Yes . MR . POPOK: Which he disclosed . The judge disc l osed all th i s. ASSISTANT MAYOR ROSEN FIELD : And t hen the ju dge recused himself. MR ·. PO P OK: Yes . Bu t they went out of the ir way to rea ll y attack the chief. find th e places. Let me just MR. WE I SS: While Michael is doing t hat , th e chief saw this stuff and within the context of the litigation, wha t we are asking for you to advise us on is whether you want to authorize us within the context of the litigation to do what we have to do to clear the chief's name. MR. POPOK : Let me read what was written and then we w i ll talk about what is being considered or could b e considered. This is from th eir mo t ion, from the plaintiff's perspective, Chief Hunker 's veracity is questionab l e. Severa l examples which fo l low raise questions concerning Chief Hunker 's c r edibility, wh ich wou ld be proble matic with a court that places e mph as i s on his credibil i ty . TAYLOR REESE AND ASSOCIATES, INC. (305) 444-7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 C h ief Hunke r was asked if h e knew Bernard Jenn i ngs, a businessman and a campaign manager of Jacobi 's 2007 election ca mpaign. He tes t i f ied that he had heard his name twice , once in connection with a request that had come f r om Mr . Jennings for a contribution for a charity for underprivi l eged kids, and the other in connect i on with obscene phone calls that the p l a i ntiff was rece i ving after this case was filed f r om phones located a t businesses owned by Mr . Jennings. And they quote Chief Hunker 's depos i tion . When asked if he made recommendations t o t he village council t o fund t h e request, Chief Hunker said n o . However, he did . This is their position . A copy of Chief Hunker 's July 16th , 2007 memorandum t o the village manager in whi ch he requested that t h e council au t horize t h e expenditure is attached. C h ief Hunker also denied --shal l I go on? MR . WEISS: Yes . MR . POPOK : Chief Hu nker also denied receiv in g passes fro m Jacobi to the adult entertainmen t es t ab l ishment known So l id Gold. Captain Jay Smi t h con t rad i cted Chief Bunker's testimony , as he reca l led Chief Hunker te l ling him that he had received passes from J acob i so the TAYLOR REESE AND ASSOCIATES , INC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 1 0 11 1 2 13 14 15 16 17 18 1 9 20 21 22 23 24 25 20 chief's friends wou l d not have to pay to get into Solid Gold. ASS I S TA NT MAYOR ROSENFIE L D: Okay. MR. POPOK: The p la inti ff also has concerns as to why no crimina l act i on was taken even though the Bal Harbour Police Department was ab l e to trace t he cal l to Mr. J ennings ' businesses . MR . WE I SS : The reaso n I wanted you to hear some of this is, again, you wonde r how li tiga tion gets so expens i ve and gets so wrapped up . This is what the p l aintif f s are fi li ng. are fili ng . T his i s what they ASSISTANT MAYOR ROSENFIELD: Can I j ust respond for t he r ecord on one thing? That who l e thing where he asks for mo n ey , tha t was Mr . Jennings . They wanted money for North Miami Senior Hi g h for a wall to commemorate somet h ing, and I am t he one on this council who said I d id not believe tha t we should g i ve t he money to Nor t h Miami Senior High as our students don't a tt end North Mi ami Senior Hi gh and tha t any money t hat the police forfeiture funds spent should be to aid students in need . We all voted on that and we turned down the money . in uniso n , we al l turne d i t down. TAYLOR REE S E AND ASSOCIATES, INC . (305) 4 4 4 -733 1 The counci l 1 2 3 4 5 6 7 8 9 1 0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 Chie f Hunker did no t say anything . He d idn 't come back and say , well, it 's po li ce funds and this i s what we want t o do. None of t hat was said . So , I mean , yo u know , he did ask. MR . WEISS : The issue is Ch ie f Hunker COONC IL MA N PACKER : Th i s is very convoluted. MR . WEISS : Chief Hunker is v e ry , very personal l y o f fended by t hi s ki nd of -- ASSISTANT MAYOR ROSENFI EL D : Wha t does he wa n t us to do? MR . WEISS : He wants us to f i le whateve r we have to f ile e i t her within this case or the context of anot h er case with the court to remove t h i s from the record or to -- COONC I LMA N SANZ : Clear his name? MR. WEISS : --clear his name . ASSISTANT MA YOR ROSENFIELD : Can 't his attorney r eport that , not us? MR. WE I SS: Yes . He can f i l e his own l awsu i t . ASSISTAN T MAYOR ROSENF I ELD : What I t h ink --again, my op i nion . I think what we ought t o do this time is that we confirm and tha t we uphold Ch i ef Hunker , t ha t he has performed with TAY L OR REESE AND ASSOC I ATES , I NC . (305) 444-7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 1 8 19 20 21 22 23 24 25 22 whatever. He has performed very, very well for this city , Bal Har b our . We appreciate what he has done for us and we will continue to support him as the chief of police . COUNCILMAN SANZ: Yes . ASSISTANT MAYOR ROSENFIELD : I would like to have that statement from the council . want to get into any more litigation . I don't COUNCILMAN PACK8R : To me , this scenario t ha t you just read , I would have to go over it very, very slowly because to me this one paid for t icke ts, t his one didn 't . I don't know any of these peop l e or even heard of any of this. T h is is ve r y convoluted stuff as fa r as I'm concerned . Now, what you are requesting and what the chief is reques t ing what he wants us to do to -- MR . WEISS : He wants us to do whatever we have to do to get this stuff s t ricken f r om the record , to file whatever papers we have t o fi l e in court, to file whatever motions we have to file, do whatever we have to do to get this stuff off the public records and out of h i s file. MR. POPOK: If tha t doesn't happen , I think he wants to go further. COUNCILMAN PACK E R : Let me say this t o you. TAYLOR REESE AND ASSOC IAT ES, I NC . (305) 444 -7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 1 4 15 16 1 7 18 19 20 21 22 23 24 25 23 Isn 't the object of the chief and h is attorney t o do what he has to do and if there is something t he same way as other people who are exposed in th e council o r peop l e who work for t he village and s t uff li ke i f someth ing like that comes to the co n c lu s io n , and then we just approve le gal fees to be pa id ? Why sho u ld we as the v il lage then start in? Am I maki ng myse lf c l ear? ASSISTANT MAYOR ROSENFIE L D : I thin k you are k in d of on t he same kind of t h ought that I am on t hat we let him t ake --but we a ff irm his position . COU NCILMAN PACKER : The re i s no question about we back the chief ; but I think if i t 's a personal t h i ng, a perso nal attack, that he and hi s attorney go a f ter t his , or however th ey want --I don't k no w . Can yo u give us some advice of how i t should be done rathe r th an t he counci l and the v il l age gett ing involved again or more so? COUNCILMA N SANZ : I have a qu est ion now . I s th at personal a t tack to him or a pers onal attack as the chief of police of t h e Village of Bal Harbour . MR . POPOK: T o answer cou n ci l person 's observat i on, the case law that we have l ooked a t, TAYL OR REESE AN D ASSOCIATES , I NC . (3 0 5) 44 4 -7331 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 there are times where key personnel, whether it be one of the counci l people, the mayor or in this case the chief of po l ice is attacked in his official capacity . T he re is case law where some as a policy decision, tha t is why it 's a policy decision , have decided that there i s merit in defending that person in his official capacity . You don 't want your mayor, your chief to be called a liar in pub li c docume n ts because of the impact it would have or the crater you could have in pub l ic confidence . If you a re asking me if there ha ve been communities that have decided to make it a policy to do something about filings like that, yes , but i t a l so is a publ ic policy . ASS I STAN T MAYOR ROS ENFI ELD : What would it cost us i f we d i d do this? No t t o go on with the second part , that he wou l d sue, but what does it cost us to file a mo t ion that this be removed from the record? MR . POPOK: I would a 57.105 motion, which is a letter to the other side tell ing them if you don 't withdraw the motion, we will seek sanctions against you within 2 1 days, and if he didn't do it, I could file a mo t ion and have i t he ard, and, TAYLOR REESE AND ASSOC I ATES, INC . (305) 444-733 1 1 2 3 4 5 6 7 8 9 10 1 1 12 13 1 4 15 1 6 17 18 19 20 21 22 2 3 24 25 25 you k now , it cou l d be 50 to 75 hours wo r th of time by the t i me you are done f i ling and draft ing . ASSISTANT MAYOR ROSENF I EL D: Whic h amoun ts t o wh a t ? MR . WE ISS : $10 ,000. MR . POPOK : T en to $15 ,000 . COUNC ILMA N PA C KER : As opposed t o t he chief doing it himse l f , a nd then being reimbursed by the vil la ge? MR . WEISS : I am no t sure there is an ability to get reimbursed for th at kind o f thing. COUNCI L MAN PACKER : Didn 't we just MR. WEISS : That dea lt with -- COUNCILMAN PACK ER : T hat dealt on ly with ethics? Not a ny ot he r? MR . WE ISS : We can look at i t , b u t I will te ll you this. MR. PO POK: If he does i t -- MR . WEISS: If he does i t, t he y are n o t go in g to be charging h im $200 an hour . is charg i ng $200 an h our like we a re . No lawyer more . COUNCILMAN SANZ : It 's going to be even MR . POPOK : Righ t. MR . WEISS : Yes . Michael 's nor mal rate is TAYLOR REESE AN D ASSOCIATES , I NC . (305) 44 4 -7331 1 2 3 4 5 6 7 8 9 10 11 1 2 1 3 1 4 15 16 1 7 1 8 1 9 20 21 22 23 24 25 26 $600 . Mine is 800. I mean , t hat is t h e p rivate sec t or rates. Maybe the guy wil l do it for $4 0 0 , three , but it 's not going to be $200 . We are no t l ooking for additiona l wor k , be lie ve me . We don 't want any more , and I don 't know what the ch ie f --I 'm not sure the re i s an ab ili t y to get rei mbursed . COUNC ILMAN PACKER : So, in other words, you are as k ing dir e ction i f you shou l d fi l e this le tt e r , what you jus t sa id? MR . POPOK : Yes . I f I should p r epare and se r ve t hem with a mot i on. It has to b e a motion a lon g w i th a dem and letter to withdraw what t hey filed . My gu t i s t he y won 't do it . I can see h ow they are o n t h e other side. The n I wou ld have to go further . I would have to have a hea r ing on i t . COUNCI LM AN PACK ER: Wou ld you com e back t he n to see if you shou l d go for wa rd first ? MR . POPOK : I could d o t he firs t part and not do the second part. COUNCILMAN PACKER: Go for the first part and t hen if you have to proc ee d further, then we wil l li sten . MR . POPO K: We could do th a t . TAY LOR REESE AN D ASSOCIATES, INC . (305) 4 44-7331 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 1 7 18 19 20 21 22 23 24 25 27 ASS ISTANT MAYOR ROSENFIELD: Can we a l so issue a s t atement saying that we affirm . MR . WEISS : I think you can do tha t . ASSIS T ANT MAYOR ROSENF I ELD: How do we do that? MR . WEISS : You can either do a --a t one end, you can have Tom Hunker day and Bal Harbour do a who l e resol u tion. CO UNCI L MAN PACKER: No , no, no. MR. WEISS: You cou l d have someth i ng that somebody reads . ASS I STANT MAYOR ROS ENFIELD: A proclamation? COUNC I LMAN PACKER: At the -- MR . WEISS : At a counci l meeting . ASS I STANT MAYOR ROSENF I ELD : At a council meet i ng and we jus t give him an award , a proclamat i on that says we apprec i ate a l l he has done. MR . WE ISS: We respect his veracity and truth. Al and Ell i sa can wri t e it u p and we will look at it . COUNCILMAN PACKER : There is not problem with that . Th e on l y thing i s people loo k at that and say , gee, whe n somebody does that, what are TAYLOR REESE AND ASSOC I ATES, INC . (305) 444-7 33 1 1 2 3 4 5 6 7 8 9 10 11 12 1 3 14 15 16 17 18 1 9 20 2 1 22 23 24 25 the y doing , trying to get rid of h im . usually happens before. T hat MR. T REPPEDA: You can jus t tell him yo urse l f how much you appreciate him. COUNCILMAN PACKER : T h at is true. I be li eve th at may be the best way to do i t . It will come out at th e council meetings anyway. MR. WE IS S: Okay. We w i ll plan on doing that in the April. COUNCILMAN SANZ: But you are still going to go through with our support. The mo tion does n 't get t here without our support. ASSISTANT MAYOR ROS ENrIE L D: Yes, we unan imo usly support our chief. 28 COUNCILMAN PACKER: Ou r chief . There is no problem wi t h that . MR. WE I SS: We are going to fi l e a mot i on and go from there. ASSIS T AN T MAYOR ROSENrIELD : I will now reopen the public meeting. The attorney/client session has now been terminated and members of the genera l public are now invited to return for any furt h er proceedings or matters. (Thereupon, the proceedings were adjourned at 7:10 p .m.) TAYLOR REESE AND ASSOCIATES, INC. (305) 444 -7331 1 2 3 4 5 C E R T I F I C A T E I , Mary G . Stephenson, FPR , Sta t e of Flo r ida at 6 Large , certify that I was aut h orized to and d i d 7 stenog r aphical l y repor t the forego i ng proceedings and 8 that the transcript is a true and complete record of my 9 stenograph i c notes . 10 1 1 1 2 13 Dated this 20th day o f Apri l , 2009 . 14 \ 15 1 6 17 18 19 20 21 22 23 24 25 TAYLO R REESE AND ASSOCIATES , INC . (305) 4 44-7331 29