HomeMy Public PortalAbout2009-04-29 AttorneyClient Session CASE 07-12570CA081
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VI LLA GE OF BA L HARBOUR
ATTOR NEY/C LIE NT SESSION
BAL HAR BOUR V IL LAGE HA LL
655 96th STREE T
BAL HARBOUR , F L ORIDA 33 154
WEDNESDAY , APRIL 29, 2009
9 :0 7 a .rn . -9 :25 a .rn .
22 Taken before Mary G . Step h e n son , FPR , Nota ry
23 P ubl ic for the State of florida
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TAYLOR REESE AND ASSOCIATES, INC .
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2 APPEARANCES:
3 COUNCILMEMBERS:
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JEAN ROSENFIE L D, MAYOR
JON I D. BLACHAR, ASSIS T ANT MAYOR
PATRICIA COHEN
MA RTIN PACKER
JAIME M. SANZ
VILLAGE MANAGER:
ALFRED J. TREPPEDA
VILLAGE AT T ORNEY:
WEISS SEROTA HELFMAN
PASTORIZA COLE & BON ISKE , P.A .
BY: RIC HARD WEISS, ESQ .
MICHAEL POPOK, ESQ .
16 VILLAGE CLERK:
17 ELLISA HORVATH, CMC
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(PRESENT ONLY DURING PUBLIC PORTION)
TAYLOR REESE AND ASSOCIATES, INC.
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1 There u pon, the following pro ceedings were had:
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MAYOR ROSENFIELD : I am call i ng the public
meeting to order .
May I have the roll, please .
MS. HORVATH: Mayor Rosenfield .
MAYOR ROSENFIELD: Present.
MS. HORVATH: Assistant Ma yo r B l achar.
ASSISTAN T MAYOR BLACHAR : Present.
MS . HORVA TH : Councilman Cohen.
COUNCILWOMA N CO HEN : Here .
MS. HORVATH: Counc i l man Packer.
COUNC I LMAN PACKE R : Here.
MS. HO RVAT H : Councilman Sa n z .
COUNCILMAN SANZ : He re.
MAYOR ROSENF IE LD: The time is now 9 :07 .
We are about to have an atto rn ey/client sess i on in
accorda nc e with Flo rida S t atute 286.01 1 rega rd ing
the l itigation styled Lynne Bloc h -Mullen ver sus
Joe l J acobi, Ba l Harb our Vi l lage , and the
Mia mi-Dade Ca n vass i ng Boa r d, Dade County Circuit
Cou rt , Case Number 07 -12570 CA 08.
The session is est i mated to la st one hour
and the fol l ow ing peopl e will be i n attendance a t
t his meeting . The fo l lowing Village
Co un ci lrne rnber s and me, Vic e Mayor J on i Blachar ,
TAY LOR RE ESE AND ASSOC I ATE S, INC.
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Jaime Sanz , Martin Packer and Patricia Cohen,
Village Attorneys Richard J . Weiss, Michael S .
Popok, and Village Manager Alfred J. Treppeda .
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The proceedings will be recorded by a
certified court reporter, and at the conc l usion of
t he litigation discussed , the tra n script wi ll be
made a part of the public record .
All those individua l s who I have not na med
should leave the room at t his time .
(Thereupon, Ellisa Horvath l eft the room.)
MR . WEISS: Since this is the first
executive session for t wo of our counci l members ,
just briefly, as you know , because you both had a
brilliant orientation , you know that you are not
allowed to speak to each other unless you are in a
public meeting, but there are ce r tain very limited
exceptions to that, li t igation . If we are active
in litigation , that is one of the times we can
have a shade meeting .
pub l ic .
In other words , there is no
You will notice , though , that there is a
cour t repo r ter here t aking down every single word
that we say, and at the conclusion of the
litigation, her transcript is public . So t hat
while you are able to speak he r e , confidential l y
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during the lit iga t ion, once the l itigation is
ove r , the n those transcripts are public, and I'm
sure that , you know, people find th em to be very
interesting reading.
ASSISTAN T MAYOR BLAC HAR : It is tran scribed
automatically?
MR . WE I SS: Yes .
gives it to the cler k .
She transcribes it.
It i s sealed.
She
Once t h e litigation is over , t hen they are
unsealed and if somebody makes a public record
req u es t for them , t he n we must prov i de i t.
ASSISTANT MAYOR BLACH AR: Where are they
stored? Here i n the city hall?
MR . WEISS : They are in the city h a ll .
ASS I STANT MAYOR BLACHAR : Okay . Thank you.
MR . WE I SS: All publ i c records are stored
in city hall by the clerk.
We a re l imited here to litigation strategy,
expenses . We wil l hold you ve r y nar r ow l y t o the
issues dealing with this litigation .
So , briefly, first of al l , thi s is my
partner , Michael Popok, who is t he lead attorney
in our l i tigat i on department in our office, and
has been handl i ng this case. I know, Joni , you
had a dog case with Michael years ago .
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MR . POPOK: Mr . We l c h .
MR. WEISS: So , br i ef l y , I 'll have Mic h ae l
just --Martin , I know you are in a rush . I
apo l ogize . You are already late. You were
supposed to leave at ten after 9:00, but , anyway,
I wil l have Michael briefly bring you up to da te
on the litigation, exactly where it is, and then
there a r e just a coup l e of i ssues that we need to
get some guidance.
What we use these sessions for i s because
we can 't speak with you pr ivat e ly , th i s is where
we ge t guidance and d i rectio n as part of the
litigation , beca u se you are our cl i ents and tha t
is what the purpose of these sessions are.
CO UNC I LWOMAN COHEN : Can you give us your
opinion as well?
MR. WEISS : Yes , we do .
COUNCILWO MAN COHEN : Okay .
MR . POPOK : Good morning. Thank you ,
R ichard .
Just b rief ly, specially to the new counc i l
people, le t me j u st t ell you where we are with
that litigation and what direc ti on or guidance I
w i ll be asking the counc i l for.
T his, of course , was the challenge by Ly nne
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Bloch-Mullen to Joe l Jacobi's eligibi l ity to hold
his council seat . Tha t suit has been go i ng on for
about a year and a half. It brought actions
against Mr. Jacob i persona l ly cla i ming that he was
ineligible under the residency requirement. He
wasn 't qua li fied wi t hin the year as required by
the village charter, and that, therefore , when he
stood for elect ion and won , that that was inval i d .
The other part of it , which concerned the
village , was tha t Ms. Bloch -Mullen also wanted to
be seated in his place even though she had lost
the elect i on under a theory t hat she had , which is
a common law doctrine not in the statute ca l l ed
q uo warranto. T hat went on for a year and a half .
For the village 's side we preva i led on our
lega l t heori es and t he pos ition of the counc il at
the time that t he village 's char ter and code
specified how a vacancy , no matte r how i t 's
created , even by removal by a j udge , should be
filled , because tha t would be filled by the
council , which has already been done .
T he other s i de opposed that and argued th a t
even if he were removed, or in this case
vo lun tarily resigned , that that council seat
should go to her as the challenger .
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We fi l ed a motion for summary judgment
severa l mo nths ago prior to t he tria l on the issu e
of whether he was or was not a r esident to try to
have the judg e rule as a ma tt er of law that th e
vi ll age 's position was correct and Judge Jeri Beth
Cohen , before she r otated out to another division
of the court , ruled in the v il l age 's favor and
ru le d t hat under t he Fl or ida Statute that is
applicable and our code in the charter that
fol l owed t he stat ut e that t he village council has
th e power to appoint a replac ement if there is
remova l for any purpose , including a remova l by a
judge or a res ign ation based on a residency
c h allenge .
The rema ining issue was litigat ed th rou gh
tr ial, but e n ded a month or two --I guess about a
mon t h ago where the judge was t rying to decide
whe t her Mr . Jacobi was or was not a qualified
resident at t he ti me th a t he ran .
Pri or to her rendering her ru l ing, he
elected to resign and the council has recently
appointed Mr . Sanz to the seat .
· Wh a t is l eft in the case fo r th is council
to consider is an entit l ement that the village has
as the prevailing party on i ts c l aim to costs.
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fees .
Let me explain costs versus attorney's
Costs sounds like fees, but it 's not.
Attorney's fees are attorney's fees, and, of
course , the village has expended a considerable
amount of attorney's fees since the beginn ing of
the suit to defend its position in t he case.
Those attorney 's fees are not what I 'm talking
about. What I 'm talk i ng about is that under the
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Florida Statute and law , a pa rty that prevai l ed on
its claim i s entitled to costs , and they are
defined court costs tha t are actually in a uniform
guideline that is provided in the court ru les .
I t 's copy charges . I t 's the cost of mediation .
MR. WEISS: Court repo r ter.
MR . POPOK : It 's court repo r te r. It's some
fees that we may have paid along t he way .
In this particular case , even though it
went on for a number of years a n d there were
considera b le amount of attorney 's fee s , there
weren 't that many costs . In typical cases where
you go to trial and the r e is court reporters and
that type of thing, bu t because we won so early on
summary judgment and we went to a different mode
at trial , we weren't real l y trying the case , the
court costs have bee n relative l y small.
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We went t hrough our fi l es and we figu r ed
tha t i f we were to ma k e an app l ication to the
court at your direct i on for costs f or recovery
purposes, it would probab l y be in t he $3,000
r ange. Just so you know , from a comparison
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standpoint , that is not a lot of costs, but it is
an amount that the v i llage would be en t itled to .
We would have to have a hearing. We wou l d have to
file a motion, support i t with an a f fidavit ,
attach all the records of costs, have a heari n g,
wh ic h I 'm sure the other side would oppose , and
have a couple of hour hear i ng on the issue .
So it could well be t h a t there would be an
expenditure of an amount almost equal to , if not
equal to the amo u nt of the cos t t o recove r it , b u t
we wou l d be remiss i f we weren 't to tell you that
w i thin 30 days of the judge entering her decision ,
which was on the 14 t h of Ap r il , we have 30 days,
15th of May to file our mo tion fo r costs , which is
what we a r e here to talk about .
COUNCILMAN PACKER : Question. When you say
the cos t s, we would be going after t he costs af t e r
the li tigan t ?
MR . WE I SS: What normally happens in a
case --first of all, we are brin g i n g this to you
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because th i s is v il l age money, and we don 't fee l
comfortable wa l king away from vil l age money
wi thout consulting w i th you, our clients .
In a normal circumstance , let's say , if I
would sue you or you would sue me, and I won, you
have caused me t o spend money, and so if I won the
case, I wo ul d come a g ainst you in a nor mal
l it i gation. So in this particu l ar case, we would
be asking the court t o order Lynne Bloch-Mullen to
pay for our costs.
MR . POPOK : Rig ht . I t would be the
p l aintiff, not the attorneys .
MAYO R ROS E NF I EL D : A t t h i s point, t o spend
thre e o r $4,000 t o r e cap tur e $3 ,00 0 does not sound
l ike a ve r y prudent th i ng to do.
COUNCILMAN PACKER :
and I think
MAYOR ROSENF I ELD:
please?
COUNCILMAN PACK E R:
MAYOR ROSENF IE LD :
I agree wit h the mayor,
Wa i t. Can I finish,
O kay. Go ahead .
Don 't i n te r rupt .
At this pa r t i cular po i nt , I find it would
se n d a message, but I'm not quite sure that th ose
who mi ght ne e d to receive the me ssage wou l d
necessarily get i t .
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I t h ink at this poin t --but I do want to
reserve the righ t beca us e the l iti gation is not
ove r . She s til l has the right t o appeal. I wou l d
like to e nd t his n ow , but with the ri ght to open
thi s discuss i on up again should she appeal.
ASS I STA NT MAYOR BLACHAR : We d on 't h ave
enough time.
MA YOR ROS ENFIE L D: That is what I'm asking .
MR. WEISS : Wha t is t h e tim e, Michael ?
MR. POPOK : Let me wrap it into an a ns wer .
T he y have u nti l th e 1 4th of May to fi le a notice
of appea l, which is just a one page notice . It
doesn't require th em to e xp end a lot of money .
I 'm predicting t he y ar e pr obably go ing to do it .
Whethe r they actually pros e cu te the appea l ,
f ile th e briefs and every th ing else t hat is
required by t h e court , tha t is a different story.
For every lit iga nt that f ile s a notice o f appeal,
a very small percentage actually p ros ec u te thei r
appeal . But I expect that by May 14th , th ey wi ll
fi l e a no t ice of appeal .
We have until May 1 4 th with th e tr i al court
judge to go for costs r e la ted to the trial. We
would no t be ab le to rev i sit tha t issue depen ding
upon what happened in t h e appeal .
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Now , if t here was an appeal and we
prevailed on the appeal, the r e is appellate costs
that we mig ht be able to go for, bu t these trial
costs wou l d be los t un l ess we moved on May 1 4th to
recover them .
Something that the counci l s h ou l d consider,
though, besides spending dol lars to recover
dol l ars is --I mea n , there is always a
possibility that we could try to trade an appea l
for th e costs. It 's not that big of an amount of
mon ey , b ut they may be inclined to walk away from
an appeal rather t han have t o pay anyth in g .
MAYOR ROSENFI ELD : How do we p hr ase that?
MR. PO POK : We could fi le a mo t io n to
au th o riz e me to discuss with opposing counsel.
MR . WEISS: By the time we f iled the
mot i on, we spent money .
MR . POPOK : T ha t is true. I have time
between n ow and May 14 t h to h ave a discussion with
them.
them.
do it .
MR . WEISS: We cou ld have a discussion with
MR . P OPOK: But I ha v e to be au t horized to
MAYOR ROSEN FI ELD: So yo u have th e
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discussion, and if they agree to i t , then we drop
eve r ything; is that cor r ec t ?
MR . POPOK : Rig h t .
MAYOR ROSENFIELD : I f t h ey don 't agree to
it, we ca n still pursue it .
MR. WEI SS : Understand also t h at th e issue
rega r ding Joe l 's --the real --what I thin k this
case should have been about , which was Joe l's
residency , that issue is gone , do n e .
because he resigned .
It 's moot
COUNCILMAN P ACKER : It 's finished . It is
done .
MR . WEISS :
even hear t hat .
Which mea n s the court wou l d n't
The only issue we are ta l k in g
about is the issue I wish we h ad never had to
litigate , which was t he issue of challenging the
village 's charter.
f iled
So the appeal tha t would be
MAYOR ROS E NFIE LD : Wo u ld sti ll be
cha ll enging .
MR . WEISS : T he only issue t hat they cou l d
appeal is the judge 's ru l ing that you had the
r ig ht to appoint Jaime . T hat i s the only issue
t h a t i s rea ll y a r ound.
MR . POPO K : Co rr ec t .
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MR . WEISS: So, you know , t her e is some
and I don 't know at t his point whether they are
going to pu rsue that or not .
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COUNCILMAN PACKE R: They will probably not.
It sounds to me l i ke everything is finished and
closed.
I t hin k if yo u have t he power to speak to
them wit hin the next two week period or whatever
the period is , I thin k that probably they would
MR . WEISS: Okay . Le t 's assume f or a
moment tha t Michael cal l s and says we had an
executive session. I can't tell you what happened
in the executive sess io n because it's
confidentia l.
By t he way , what happens here is
confident i al . You should not talk to anybody
about what happened here . It is privileged ,
attorney priv i leged conversation .
And the counci l wanted to know really
whether you intend on filin g an appeal , and if you
don't in tend on f i ling an appeal, then the counci l
i s really not inclined to go after you for costs.
Now on the other hand , because I can 't me et
with you again quick ly , let 's assume they say, we
a re going to file an appeal , does that c h ange you r
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view on going after th em for these cos t s.
COUNCI L MA N PACKER: If we are going to
incur a lot more costs now, it should be told
them, l ook --it 's basically a moot issue as far
as I 'm concerned. The thi ng is all set and done.
MR . WEISS: Th e ques t ion i s whether in
t heir view i t is .
Again, wi t h res pect t o the appea l , again,
the amount of costs that we are talking about
vers u s fee s , it's importan t to separate them.
costs are re ally minor in this. The costs are
The
minor, b u t if they file an appea l , you are lo oking
at another 20, $30 ,000 worth of l egal expenses on
our part defending the appeal .
ASSISTANT MAYOR BL ACHAR : Wh at do you t hink
we s h ou l d do?
MR. WE ISS : What do I think you should do?
I think purely if this was a private client
o n an economic basis, you would not spend $3,0 00
to get $3,000 . You wouldn 't do i t.
The judge also sor t of they sometimes kno ck
out certa in t h ings. T his i s not an economic
wh at I would do is I would see if they agree t o
not f il e an appeal in exc h ange for the cos t s.
would tr y t h at .
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good .
ASSIS TANT MAYOR BLACHAR:
CO UNCILMAN PACKER : Yes .
MAYOR ROSENF I ELD : Yes.
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I th i nk tha t is
MR . WEISS: The issue that you have to
decide wh ich th e mayor --I was going to call yo u
t he v i ce mayor --wh i ch the ma yor ra i sed is
whe th er you want to send a message, whether by
going after them for these fees there is a message
to be s e nt.
And the quest ion is if they decide to fi le
an appeal, do you then want to go after th em .
ASSIS TAN T MAYOR BLACHAR :
they file the appeal .
I think so , if
MR. POPOK : That is t he direction I need .
If he says to me , I 'l l get back to you , I give him
a dea dli ne to give us enough time to file it ,
le t's say t h e firs t week in May, and he says, no,
t h ey are going forward an d fi le the notice of
appeal , t hen I need directio n.
ASS I STANT MAYOR BLA CHAR : Then we hav e
no t h i ng to lose , because the cos t s could be
greater later on a l so wi th the appeal .
COUNCILMA N PACKER: Bu t it 's going to cos t
the vi ll age $20 ,000 .
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ASSISTANT MAYOR BLACHAR : No, no , no. That
is not what he said . For the appeal . F or the
appeal .
MR . WEISS : For the appea l. I f they file
an appeal , just so you know --
COUNCILMAN PACK E R : We have to answer it .
MR . WEISS: They are challenging the
char t er . We are back to where we were,
unfor tunately , which i s just defending the
charter , which is unfor tunate, bu t we have to fi l e
a brief . They wi ll have to fi l e a br i ef . We will
have to fi l e a reply brief . We are going to have
to go through the transcript . There is a l ot of
work to be done .
ASSISTANT MAYOR BLACHAR : Then there i s
going to be a lot o f costs .
It's unfortunate . I r eally MR . WEISS :
hope they listen . I hope you are ri ght , Mar tin .
I hope you are right, it 's done , it 's finished.
COUNC IL MAN PACKER : T o me , i t 's the most
l ogical thing .
ASSISTANT MAYOR BLACHAR : I don't know if
they a r e go ing to t hin k that, so you have to do .
Who is their lawye r, by th e way?
MR . POPOK : Well , they have two .
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. ASSISTANT MAYOR BLACHAR : Are they
individuals that are residents of Bal Harbour?
MR . POPOK : Dina Cellini has appeared as a
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lawyer for Ms . B l och-Mul l en personally . T hen Bill
Hearon kind of came in a t the last minute to be
t he tr ia l lawyer.
MR . WE I SS : They had Kenda ll Coffey 's firm.
A guy named Mark Journey .
MR . POPOK : Mark Journey ~s kind of the
day-to-day .
MR . WE I SS : He 's wor k ing on it , and then
t he y brought it Bill Hearon sort of at the last
minute to I don 't know.
MR . POPOK : Try the case .
MR . WE I SS : To try the case .
AS SI STANT MAYOR BLACHAR : So it is costing
them money .
MR . WEI SS : I don't really know .
ASSISTANT MA YOR BLACHAR : Who is Bil l
Hearon?
MR . WE I SS: First of al l , I think they pa i d
Mark Journey .
MR . POPOK : They did, yes .
MR . WEISS : I don 't know what they paid
him , but that cost them money . I don 't k now
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whether t h e Bill. Hearon rep resen tat io n is a
courtesy, is being done as a cour t esy to some
member of the group or whether he's actually being
paid. You don 't know, do you?
MR . POPOK : No . My guess is he came in
with some arrangement becaus e Mark J ou rney 's firm
was not ge t ting paid, and they brought him i n at
some reduced rate .
ASSISTANT MAYOR B L ACH AR : So who do you
speak to at thi s point now?
MR . POPOK: I speak to all of them. I 'm
cordial with both Bill and Mark . I think Bill is
the king ma ke r for this dec isi on-mak ing.
MAYOR ROSENFIELD: Can we then make that as
a recommendation that we do no t go fo r the charges
unless there is an appeal, and you tal k to them
about the appeal, and if the re is an appeal, then
we will go for the charges?
MR . POPOK :
appeal.
If he te l ls me th ere is an
MAYOR ROSENFIELD: If he tells you.
MR . POPOK : Beca use it is due t he same day .
ASS I STANT MAYOR BLACHAR: That would be
your advice anyway, right?
MR. WEISS: Aga in , the point is i t 's not --
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even if they fi le an appeal , this issue of going
after these costs, do we go af t er them now or we
wait until t he appeal is final iz ed? Do you go
a fte r them at trial and then do you go af t er them
in the appea l ? Is it two steps?
MR. POPOK: You ar e entitled to appellate
costs but tha t i s another
MR. WEISS:
MR. POPO K:
You do i t l ater .
You do it late r .
MR. WEISS : Whe ther t hey f il e the appeal or
don't file the appea l , t he economic issue is the
same, which is it's j ust basically going to be a
wash , but the fact t hat we could go against cos t s
could be somewha t of a de te rrent to doing i t, but ,
again , this is not something where the village is
go ing to end up wi th a l ot o f mon ey . It 's not .
ASSISTANT MAYOR BLACHAR : It 's jus t to use
as a bargaining ch ip .
MR. POPOK : Yes. Okay .
MR . WEISS : Is everybody c l ear on what we
are doing?
We are bas i cally saying t o them , li s t en, we
h ave had an execu ti ve session. The way we have to
say it i s the villag e has authorized us to go and
file to recover our costs u n le ss you ag r ee no t t o
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appea l. That i s t he way it wou l d be done .
ASS I STAN T MAYOR BLACHAR : Would you get
that in writing with them or a handshake?
MR . POPOK : It gets confirmed.
ASSISTANT MAYOR BLACHAR: I 'm just asking .
MR. WE I SS: Everything gets confirmed .
MR . POPOK: It depends on wh o I am dealing
with or the type of case , but , no , I get this in
writing .
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MR. WE ISS : We can say i t another way. The
village decided that this shou ld be over and we
should not go against you for costs unless you
file an appeal . I think that is probably a more
positive way to do that .
MR . POPOK : Right.
MR . WEISS : So, listen , hopefully we are
done with th is, and this is the l as t executive
session.
I have to tell you because we are al l owed
to ta l k; I feel very badly t hat the village had to
spend this money on th i s, and I wi ll tell you that
in the no r ma l c i rcumstance, the v ill age would not
have spent one d i me on this, not one cent .
We have been invo l ved in dozens of
challenges where one candidate has challenged the
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qua l i f icatio n s of another candida t e and the
gove rn ment i nvo l ved has not been invo l ved. You
know, if you l i ved in Dade County long enough ,
t his one didn't l i ve in this district, and all of
those kinds of things, and the government is not
involved except sort of monitoring the case and
t h e expense on the government's part i s almost
nonex i stent.
don 't
I wi sh this had gone that way because we
you know, we have bee n here a l ong time .
We don 't real l y --the fact tha t we spent all this
money on this case is not --we don't view it as a
positive, b ut tha t is just the way i t went.
So, hopefu lly , this i ssue
ASSISTANT MAYOR BLACHAR : I would like just
one more question . I kno w you have to l eave , and
I know it's really limited to what was before us,
but can we just mention for one second about
Patty? Are we a l lowed to mention that at all?
MR . WEISS: No . You a l ready mentioned it ,
but you can't talk about it.
MAYOR ROSENFIE L D : I wi l l now reopen the
public meeting . The a t torney/cl ie nt session has
now been term i nated and members of the gene ra l
publi c a re now in v it ed to return for any further
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proceeding or matters .
(Thereupon , the proceedin g s were conc l ude d
at 9:25 a.m .)
C E R T I F I C A T E
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1 1 I , Mary G . Stephenson, FPR, State of Flori da at
12 La rg e , certify that I was authori zed to and did
13 stenographically report the forego i ng proceedings and
1 4 that the transcr i p t is a true and complete record of my
1 5 stenograp h ic notes .
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Dated this 12th day of May, 2009 .
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