HomeMy Public PortalAbout2009-06-16 AttorneyClient Session CASE 07-12570CA081
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VIL LAGE OF BAL HARBOUR
ATTORNEY/CLIENT SESSION
BAL HARBO UR VILLAGE HALL
655 96th STREET
BAL HARBOUR , FLO R I DA 33 1 54
T UES DAY, JUNE 16 , 2009
6 :16 p .m . -6 :50 p .m.
22 T aken before Mary G . Stephenson, FPR, Notary
23 Publi c for the State o f Florida
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TAY LOR REESE AND ASSOCIATES, I NC .
(305) 444 -7331
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2 APPEARANCES:
3 COUNCILMEMBERS:
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JEAN ROSENFIELD, MAYOR
JONI D . BLACHAR, ASSISTANT MAYOR
PA TRI CIA CO HEN
MARTIN PACKER
JAIME M. SANZ
VILLAGE MANAGER:
ALFRED J . TREP PEDA
VILLAGE AT T ORNEY:
WEISS SEROTA HE LFMA N
PASTORIZA CO L E & BON I SKE , P .A .
BY : RICHARD WEISS, ESQ .
MICHAEL POPOK , ESQ .
16 VILLAGE CLERK:
17 EL L ISA HORVATH , CMC
(PRESEN T ONLY DURING PUBLIC POR TION )
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TAYLOR REESE AND ASSOCIATE S, INC .
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1 Thereupon , the following proceedings were ha d:
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MAYOR ROSENFIE L D : I am calling this public
meeting to order .
Can I have the ro l l ca l l , please .
MS . HORVATH : Mayor Rosenf i eld .
MA YOR ROSENFIELD : P r esent.
MS . HORVAT H : Assis t ant Mayor Blacha r.
ASS I STAN T MAYO R BLACHAR : Present .
MS. HORVATH : Councilwoman Cohe n .
COUNCILWOMAN COHE N: Present .
MS . HORVAT H: Counc i lman Sanz .
CO UNCILMAN SAN Z: Presen t.
MS . HORVA T H : C o uncilman Packer i s absent .
MAYOR ROSENFIE L D : The time is n ow
6 :1 6 p .m .. We are about to have a n
attorney/c li ent session in accordance with Florida
Statute 286 .011 regarding li tigation sty l ed Lynne
Bloc h -Mullen v ersus J oel Jacobi , Bal Harbo u r
Vi l lage and Miami -Dade Coun t y Canvassing Board ,
Miami -Dade Count y Circu i t Cou rt Case Number
07-12570 CA 08 .
T he session is est i ma t ed t o l ast one hou r,
a n d the following people will be in atte n dance at
this meeting : I wil l be in a t tendance , t he Vice
Mayor Jo n i Blachar , Co u nc il persons Jaim e Sanz and
TAYLO R RE ES E AND ASSOCIATES, I NC .
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Patr icia Cohen, and we are hoping Mr. Pa cker shows
up , t he Vi ll age Attorneys, Richar d J . Weiss and
Michael Popok, and Village Manager Alfred J .
Treppe da.
The proceedings will be r ecorded by a
certi f ied court reporte r, and at t he conclusion of
all litigation discusse d , the transcript will be
made part of t he public r eco rd.
All those i ndividuals who I have not named
should leave the room a t th is time.
(Thereupon, Ms. Ho r vath l eft the room.)
MAYOR ROSENFIELD : We need to ha ve the
doors closed. Is it al l right just to have that
oute r door closed?
MR. TREPPEDA: Yes . We can see if they
come in.
MAYOR ROS ENFI ELD: Mr. Popok , would you
like to start?
MR . PO POK: Thank you, lad ies and
gentlemen . We are here to talk abou t the
Bloch-Mullen case and try to bring this to a
close . What I have for the counci l is just a
quick chart, which I'm go i ng to walk through , with
where we are with p r oposa l s and counterproposals
that are now for consideration. Okay? I'll walk
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you through them. I'l l collect t hese at the end.
Okay. You wil l r ecall that we had
originally gone back and forth with counsel for
the Bl och-Mul l ens about how to get t hi s mat t er
resolved , and there were a number of issues.
filed.
We had the ou t standing appea l that t hey had
We had our outstanding motion for cos t s
r e lat ed to the fact that we were the prevailing
party . We had our mo t ion outstanding related to
t he motion for sanctions arising out of their
filing attacking Chief Hunker , and then we have
iss ues related to releases betwee n the parties.
Those are the f u ndame n tal issues.
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What we fina l ly came down to, what they
finally had p r oposed is what i s on this settlement
chart. Le t's just walk th ro ugh i t .
On the village side, we would release
Bloch-Mullen and h er attorneys , and those are the
two attorneys not inc l uding Ms . Cellini . They
made that clear to me . They want it for the two
firms t hat are representing Bloch-Mu l len to be
rel eased from liability arising out of the motion
for sanctions. They would give the village a
re l ease t hat wou l d be symme t rical, including the
staff counse l and attorneys fro m l iability.
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So o n re l eases , there 's no open issues .
ASS ISTA NT MAYOR BLACHAR : Bu t t hey don 't
want you to rel e ase Ce l li ni?
MR. PO POK: No . I asked t hem spec i fical ly ,
are you looking for a release . T h e y said, no , we
are l ook ing for a release for Bil l Hearon's firm ,
who is the l ea d counsel , and Mar k Journey 's firm .
Those are the two fi rms that were involved .
is who t h ey have asked for.
So there we have no ope n i ssues or no
o u ts ta n d i ng issues.
T hat
T he ne x t iss ue is the motion f or sanctions ,
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motion fo r costs ve r sus the i r appeal . If we wo u ld
agree to wi thdra w the mo tion fo r sanc ti ons ar is ing
out of t h e Chief Hunker issue against B l och -Mullen
and her at t orneys and withdraw t he motion for
costs, and there i s about a $4,10 0 cost charge
running for th a t , they woul d dism iss the appeal
wi th prejudice . There , we have no open i ssues.
It comes do wn to what we refer to as the
Chief Hunker iss u e .
MR . WEISS: And r ea lly th e intangibles ,
which we can ta l k about in a second , t h e pol ici es
and all of that.
MR . POPOK : Yes . This is wha t is they
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offered, and , of course, t here 's things I have
spoken t o each of the council people individually
about t hat is not on this chart , which we can ta l k
about next.
T he last one i s they wanted an agreement
from the village that we w i ll not fund or support
a private suit by t h e ch ief if he decides to sue
f or defamation or some t hing e l se . That we
wou l dn 't fund it , we wouldn 't suppor t i t in any
objective way , whatever that mea ns.
And t h e y ha ve f inal l y come around o n the
Chief Hu nker issu e, and l e t me desc ri be what they
are proposing . I still don 't thin k t hey ge t the
problem , and tha t is part of the reason why th e ir
proposal is the way i t i s . I don 't th i nk they
t hi nk that what they have done is i mproper o r it
had a rea l effect on t he town , on the vi l lage, on
the law e nforcemen t officia l , his integrity , his
credibi li ty, and because they don 't quite accept
it , it 's difficult to n egotiate with them on that
point . So what we have gotten them to offe r, the
mos t that t h ey would offer is they would not
oppose i f t h e v ill age on its own d i me filed a
mot i on under , and there is a rule of the court
that allows for the fi li ng of a motion to have
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certain items in the record marked confidentia l ,
which would basical l y --
MAYOR ROSENFIELD : Do I have to --
MR. WE ISS : Just note to the record th at
Counci l man Martin Packer has arrived, and was
unavoidably d e l ayed in traffic.
COUNC IL MAN PACKER: T han k you very much .
I 'm sorry .
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COUNCILWOMAN COHEN :
we could. We just started.
We wai ted as long as
You didn 't miss much.
MR . POPO K: Having created the problem,
there is only a handful of so l utions related to
Chief Hunker, so me of which are really out of our
hands.
We couldn't move to seal the records
because the records they had already filed were
filed not unde r seal and under Florida law , once
i t's not under seal, it can 't be sea l ed.
We asked for t hem to withdraw it, to strike
it , or to work with us to accompl ish that. Their
response, some of you saw the letter and read
through the le tter, their r esponse was, if you
want to mo ve to try to get i t marked confidential,
origina ll y said, I'll stand silently and won't
object. I to ld th em, well , t h at is really not
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going to be eno ugh . It wou l d ha ve t o be at best a
join t effort . He wants us to file t he
certification that is required under the law to
certify that appropria t e grounds for
confident i al i ty a re p r esen t , and the law requires
that i f there i s one I can see us ce r t i f ying
under , and that wou l d be there is a gove r nmental
purpose on keeping that portion of t he documen t
re lat ed to Ch i ef Hu n ker a nd his c r edib il ity , to
have it kept confidential .
could use .
Tha t is one method we
The on l y oth er method le ft to us is a
mot i on to strike the pleading . In t he r u le book ,
i t says if i t's i mpertinent, scandalo u s or --
basica l l y impertin ent or sca nd alous , the co u rt can
st r ike t he p l eading .
We c h ecked w i th the c l erk . The court co u ld
also o rder the pleading removed from the r eco r d .
T h ey don 't agree wit h t hat method and that
is what t h ey wro t e in t heir le t te r , but we
conf irm ed t h at is a method we could use .
MR . WE I SS : The truth i s that we d on 't feel
we have a very high chance . We f eel much less
confiden t of gett in g t hi s removed from the record
if t hey don 't make the motion wi th us .
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COUNCILWOMAN COHEN: They would have to be
with us .
MR . WEISS: We feel there is a difference.
That we have a much higher --this is not a
guaranteed anyway because t he judge, a~ Michael
talked to me about it yesterday , has some real
discre t ion in this area , but we fee l l ike if there
is a joint motion by bot h part i es in a case to
mark this as confidential
MR. POPOK : Or have it stricken from the
record.
MR. WEISS: or have it stricken from the
record, that we have a much higher chance of
success, and that we frankly feel l i ke our chances
of success are signif i cantly reduced if they don 't
join in the motion , and they will not agree to
join in the mo t ion.
COUNCILMAN PACKER : They will not agree.
MR. POPOK : The y won 't agree. We asked
them . We talked with them .
I even asked for a phone cal l r esponse
today before I walked into this meeting, a nd I
didn't rece i ve it . I wanted to run one more idea
by them. We are trying , we are clearly t rying to
get this r eso lved.
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MR. WEISS: I think that is an impo rtant
po in t that, you know, be tw een Michael and I, we
have --we are --there is no push for any kind of
s e ttlement from the other side . Everything
aga in, we are doing it because we feel like in the
end , the point that the counci l is try i ng to make
because of t his li t igation was made, which was t he
charter was upheld , the judge ruled in our f avor ,
and we really feel li ke --the feeling that we got
from the counci l was that you wanted this to be
over. I want to assure you that we h ave done
every t hing t ha t we possib l y can go i ng beyond
really even what you instructed us to try t o see
whether t here was a settlement here , and they will
not agree.
MR. POPOK: The easiest one on t h is po i nt,
wha t R i cha r d is saying , I think , very acutely , the
easiest thing for them t o do wou l d be t o join in a
motion to strike the pleading and submi t an order
to the judge , an agreed order t o the judge w i t h
everybody holding hands in agreement . The j udge
cou l d well 50/50 sign it without any hea r ing at
all. If she felt uncomfortable , she could call us
in fo r a hearing, and then I would want Mr . Hearon
to stand with me .
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The p rob lem is they will not agree that
what they did was wrong, and for the motion to
s tr ike to be successfu l , they have to go on the
record to say t ha t wha t they f il ed was scandalous ,
impertinent and ir relevant . They wil l never go
there. They have made it very c l ear to me. We
gave him this opt i on when we filed th e motion for
sanctions . T h ey cou l d have withdrawn the motion
completely. He said even in his last l etter,
Mr. Hearon was very c l ear, we did not do anything
wrong, we don 't feel we did anything wrong and we
are not going t o be withdraw ing it .
MR . WEISS: The problem is t hey have gotten
thems el ves --fir st of all, we told you that in
order t o g e t t he judge disqualified, they made
the se sta t e me n ts about the j udge . T h ey d i dn't
need to go t here to get the judge disqualified ,
and the way they hand l ed the case i s mak in g i t
more and more difficult for us.
Bu t i t 's a quagmire th at we are trying --
believe me , Mic ha el --when I said to Michael ,
l et 's t ry one more time to t r y t o ge t t his t h ing
settled, th e n Micha el said, you know , Ric hard, you
are go i ng a li tt le bit beyond what the council
authorized you to do. They tol d you to wr ite the
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letter and de ma nd all tho se apologies .
I said, well, l isten, let 's see if you
remove all t he emotion from this thing, if the re 's
jus t releases a nd dismissals, and let 's get them
to do it.
MR . POPOK : E at ing crow.
MR. WEI SS : The whole admit t ing t h at we
d idn 't spend the money, because, remember, t h at
was a big part of it, we didn 't spend th e money
frivolo usly and we did i t to defend the charte r ,
and a ll of that. I said to Michael, le t 's see if
we can get --remove a ll the rheto ri c and see if
we can ge t t hem just t o agree to sett l e it b as ed
upon some very clear te rms and that is why we did
this sheet. T hey won't go t h ere. Th ey won't .
MAYOR ROS ENFIELD: Who i s t he y? Th ey or
she?
MR. WE I SS : We ha ve to a ssume that the
plain tiff in t h is case is L ynne Bloch -Mullen .
MAYOR ROSE NF I ELD : We mus t assume this is
t h ey.
MR. WEISS: We are talking wi th he r
attorney . So we have to ass u me that she is
ca l ling the s hot s.
Now , who is t ell ing her what to do and all
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that , I wouldn 't even bo ther to speculate.
COUNCILMAN PACKER : Wouldn 't i t be he r
attorney advising her?
MR. WEISS : No , because there 's two issues
here . The issues tha t they are dea l ing with ,
surely her attorney is adv i sing her, but in t he
end, it 's the client 's decision , just like it 's
your decision.
So the issues that really are left here
are, number one, how st r ong l y you feel about the
Tom Hunke r i ssue . That is number one .
Numbe r two is --because let me just pee l
that back for a second.
Michael, please cor r ect me if I'm wrong.
MR . P OPOK : Su r e , I wi l l .
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MR . WEISS: If t h ere is no sett l ement , they
are go in g to file a br i ef . They have 70 days to
file a brief , and then we a r e going to file a
response brief . We are going to incur anothe r
20 -something, 30, wha teve r it is of attorney 's
fees , and I assume she is going to pay some
a tt orney, but still what will be remaining on the
record are two things on our part.
Number one , t here is going to be a motion
to ta x costs , which we are going to pursue for
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$4,100, and, number two, we have a motion for
sanctions against them .
MR . POPOK : Which we have not filed .
MR. WEISS : Which we have not filed , but
which we wil l file , and we will pursue .
So two t hings , if this case doesn 't get
settled , that is what is going to happen . You are
going to have an appeal going on on one side, and
on the other side you are going to have this
continued fight i ng dealing wit h the mot ion for
sanctions and the motion for costs .
MR . PO POK : One other item on that --
COUNCI LMAN PACKER : Can I --
MR. POPOK : Sorry, councilman.
COUNCILMAN PACKER : I don 't want to
in t errupt. Can you just adv i se me what you mean
by a motion for sanctions?
MR . WE I SS: Go ahead, Michael.
MR . PO POK : At the council's direc tion, in
an effort to try to convince them early on to
remove from t he record the filin g that attacked
the chief, we served t hem with what is permitted
under Florida statutes, which is 57 .105 of the
Florida statutes. If you file a meri t l ess
p leading or other fi l ing with t he court, if the
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side attacks it , gives you a demand l etter and
says, you ha v e 21 days to withdraw it or we are
going to seek atto r ney 's fees and costs against
you related to t hat filing , they have t heir
21 days to withdrew the mo ti on .
MR. WEISS: And they didn 't .
MR. POPO K : I had a conversation with them
on t he 20th day. He said, we are never going to
remove that . We didn 't do anything wrong.
ASS I STANT MAYOR BLACHAR : But why?
MR . POPOK: T h i s is before i t became an
issue in sett lement.
MR . WEISS : Understand a l so the point, I
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think it 's a very good question you asked .
Understand t hat at that point , they had the full
freedom to withdraw that p l eading and none of this
would have been a problem . The problem i s they
have gotten deeper and deeper i n to t his thing .
T hey di d n't withdraw the pleadi ng .
COUNCILMAN PACKER : What I don 't understand
i s when you say this thing about sanctions --
MR. WEISS: Yes.
CO UNCI L MAN PACK ER: --then it's up to the
j udge to look at this thi ng and say , yo u did
someth i ng frivolous or not frivo l ous?
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MR . WE I SS : Yes , exac tl y .
COUN CIL MAN P AC KE R : Is t h a t co r rect?
CO UNC IL WO MA N CO HEN : T hat mea n s we have to
con t inue .
MR . WEISS: I f t h is th i ng i s not settled,
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t h ere will be three things going on. Th e one that
he just described , wh ich is t hat we are going to
f ile a mo ti on for sanctions.
MR. PO POK : If t he counc i l authorizes .
MR. WEI SS : If the counc il wants us to , to
t r y to ge t that p lead in g to be dee med p ri vileged
a nd r emoved , numbe r one .
Num be r t wo , if y o u wa n t us t o, we a r e going
to p u rsue the m f or the $4,1 00 so t he j u dge , t h e
l ower co u r t judg e wi ll be de a l in g wit h those t wo
i tems , t he t r ial j u dge .
A n d on the other hand at t h e appellate
c ou r t , t h e T hird Dis tri ct Court o f App eals , we
wo ul d have t h i s whole a pp ea l process g o i ng on ,
whic h, frank l y , has al most no rela t i onship to t h e
o t her two items .
CO UNC I L MAN PACK E R : T he othe r ap p ea l t h i ng
i s , in othe r wo r ds, t h ey are appeal i ng a l so our
r i g h t that we ap p o i nte d Mr . Sanz to th e seat?
MR . WEI SS : Yes . Ma rtin , that is the only
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th i ng they a re appealing because t here is nothing
else , because the Joel Jac oby issue, he resigned .
The court never made a determ i nation o n that .
t he on l y iss ue that the y are appea l ing
CO UN CI LMAN P ACKER:
appoint .
MR . WE I SS : Correct .
I s our right to
So
ASSISTANT MAYOR BLACHAR: If we we rit ahead
with the motio n for s ancti ons against t hem, what
is t he cha nce that we wou l d p r evai l on that?
MR. POPOK: Well, we a re handicapping what
a court is go i ng to do . I have to te ll you cour t s
are , you k now, the y a re n o t excited abo u t
sanctioning attorneys , law fir ms, and that type of
thing , so we are going t o be --
MR. WEISS : It 's v e ry di ff icul t .
MR . POPOK : We are going t o have to gear up
for a very strenuous motion .
ASS ISTAN T MAYO R BLACHAR : Wouldn 't you be
call in g as a witness t he j udge they h ad wanted out
recusing him? You probably would to show that
t hese peop le are evil.
MR. PO PO K : I haven 't sat down and thought
about the strategy of things.
ASS ISTAN T MAYOR BLACH A R: But I 'm saying i f
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you had t o do that, I think it would help your
chances of winning a mo tion like that , but I just
don't know in terms of
MR. WEISS :
hearing on 57.1 05 .
It 's very difficu l t to win a
ASSISTANT MAYOR BL ACHAR: So wha t do you
guys recommend?
MR. POPOK: But they do know they have
exposure because t hey are mak ing it part of t he
settlement. T hey do want a release . Even if they
gave it a ten percent chance of success, they
don 't want it hanging over them. That 's for sure .
MR . WEISS: Let me give you t he r ange of
options . I f you want okay , in the whole
i ntangible issue , which I don 't want to lose
because I know t hat it 's important and I don't
want to lose it .
COUNCILWOMAN COHEN: The chief .
MR. WEISS : No.
we raised last t i me .
The intang i ble iss ue which
It was raised in a l l t his
v i triolic rhetoric, which is that the council
wasted money and they shou l d have done this and
all that . You had us include in you r original
l etter to them after our last executive session
that we wanted them to say affirmatively that the
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counci l spent the money to defend t he charter ,
that they didn 't spend the money to defen d Jacoby .
So on one hand , we have the absolute, you have the
absolute ability to get rid o f thi s , which is
basical l y saying, okay, we wil l exchange mu t ua l
releases, withdraw motion for sanctions, we wi ll
withdraw our motion f or costs, and t hey wil l
dism i ss their appeal, and this case is gone.
COUNCI L MAN PACKER : Has that been proposed
to them?
COUNC IL WO MAN COHEN: That is why we are
here today .
MR. WEISS: The p roblem i s that you have
the whole in t angible issue has not been addressed,
and you have to decide how important it is , and
the whole issue of the chief has not been
addressed.
MR . POPOK: Richa rd is righ t . T hey would
ta ke i t i n two seconds.
MR . WEISS: The problem is there i s two
other issues, both o f which they created , and you
have to decide whethe r it's impo rtant enough .
COUNCI L WOMAN COH E N: T hey created knowing
fu ll we l l that we are going to close the
flo odg at es, and that is where they are going .
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MR. WEISS : Those are the t wo issues. If
you re move t hose two issues, which are sort of the
intangibles, I 'm cal l i ng intangibles , which is
telling us the council spent the money imprope rly
and tha t they re move the Chief Hunker issue , this
case is settled in f i ve minu tes.
T h e question is, honestly, how far you want
to go on th i s thing to defend, and I think we have
exp l ained it to you, but if this was a regular
perso n, you k now , if Ch i ef Hu nke r was just a
regular person , i t wou l d not be as much of an
iss ue , but the prob l em is he 's the chief law
enfo r cement officer of this village . They have
basically said that the chie f law enforcement
officer of this village is a liar .
they sa i d in the pleadings .
MR. POPOK: On e other element.
That is what
Richard i s
right in the way that he describes it about
possible settlement. One other e l eme n t, they do
not want this council to fund.
about a sui t by Chief Hunker.
They a re worried
MR. WE I SS: They a r e worried that we won't
support or f und a suit by Chief Hunker .
Again , you need to decide how strongly you
feel about those two issues that are r eally not
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they are really not par t of the regular in a
n ormal la wsuit , they wouldn 't be around if they
hadn 't filed that p leading about Tom, and if they
hadn't made all these statements in public, that
would no t be an issue.
ASSISTANT MAYOR BLACHAR: Do we owe a duty
t o th e chief to support him? That is the bo t tom
line.
MAYOR ROSENFIELD: The question is not do
we owe a duty , how much of this i s actually
be lie ved by the public.
MR . WE I SS: I t's not the pub l ic. On the
intangible issue , i t is the public .
MAYOR ROS ENFIELD : On the intangible , it is
th e public .
MR. WEISS : Bu t on the T om Hunke r issue,
it's not t he public.
MAYOR ROSENFIE LD : I understand t hat , but
does the public believe t hat this man is unf i t to
serve. I mean everything that has been said in
t h is chamber, the two young peop l e that came here
one day to g i ve hi m a plaque and to honor him,
they feel that he is probably the finest man.
MR. WEISS: The Tom Hunker issue , the
reason Tom Hunker --first of all, the Tom Hunker
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issue is not how the public fee l s a bout him,
alt h ough I t hink that burns him . The issue that
he is wo rri ed about is when a guy l ike Tom Hunker
who is the head of police in Ba l Harbour is
accused of being a l iar, it undercu t s. The
feeling he has , number one , undercuts h i m as a
profess i ona l law en f o r ce ment officer for
30 -something years, and it undercuts the whole
po lice department .
COU NC ILWOM AN COHEN: De finitely ,
definitely .
COU NC I LMAN PACKER: Ba sica ll y , they pursued
t hat line, and they refuse to back off , and we
feel th at T om is absolutely on the up and up .
Then they are wrong and the council has t o to say ,
hey, look, i f you are not going to wi t hdraw it a n d
ta k e ba c k what you sa i d , sorry , Charlie , you don 't
defame anybody , you don 't have any evidence to
defame anybo dy , and that is it . You will have to
suffer the consequences , whateve r the consequences
are goi n g to be .
c hi e f .
MR . WEISS : Un derstand --
COUNC I L WOMAN COHEN : It 's not u s . I t's t he
MR . WE I SS : He 's saying t h at th e case is
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not going to get settled, and we are going to go
after the motion for sanctions.
COUNCILMAN PACKER: That is what you ha ve
to do if they don't want to back down .
COUNCILWOMAN COHEN: T o defend;
MR. WEISS : Understand the fact t hat t h e
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case i s under appeal . The other thi ng for you to
consider , be lie ve me, I don't want you to th ink in
any way t hat I am pushing one way or another . I 'm
j us t trying to give you all the information so you
can made a decis i on. The risk in not settling
this case is that some judge , some panel o f three
j udges at the Third District Court of Appeals say
that what the tria l judge did in a llo wing us to
sea t Jamie is wrong. That is the
COUNCILMAN PACKER : That is go in g to
continue no matter what we do .
MR. WEISS : No, no . If you sett l e the
case , it 's all over .
MAYOR ROSENF I ELD : It 's over.
ASSISTANT MAYOR BLACHAR : And if you don 't
and that gets brought up on appeal , that could
conceivably take two years .
years .
T hat could take a few
MR. WEISS : It could ta ke a year .
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MR. POPOK : We wil l get a decisio n w i thin a
year .
ASSIS T ANT MAYO R BLACHA R : Wi t hin a year?
MAYOR ROS E NFI E LD: At the time o f the next
electi on .
ASSISTANT MAYOR BLACHAR: At t he time o f
t he ne xt e l ection .
My conce rn, t h ough , and I th i nk t h is is
what everybody has to u nd erstand , too , is t hat it
hurts th e ch i ef because if t he ch i ef has to ever
t esti f y in a co urt of law, they can use th is
aga i ns t him and it ma k es him look l i ke he 's not
respec ted by us, and th a t i s the p r oblem that I
have with it , because h e sho ul d know tha t we
s u ppor t him .
COUNC I LWOMAN COHEN : Are yo u kidding?
ASSISTAN T MAYOR BLACHAR : I kno w yo u say
you don 't wan t --y o u are g iving us what yo ur
op i nion is, b u t you are not really telling us
which wa y you would le an . I would l ike you r
opinion . What would you do to resolve this? T ha t
is what I wan t to know .
MR . WEISS: I have done e v e ry th ing I can do
to try to reso l ve this .
ASS I STANT MAYOR BL ACHAR : Bu t what do you
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thin k we should do?
COUNC IL WOMAN COH EN: Go forward .
ASSISTANT MA YOR BLACHAR: Do you think we
shou l d go forward?
MAYOR ROSENFIELD: He told us. It is up to
us .
COUNCILWOMAN COHEN: How about the chief?
I think the chief should be consulted.
MR. POPOK: Let me jump in for Ric ha r d for
one second.
I th in k we have reache d the point now, I
can say this wi t h confidence and hav ing dealt wi th
them and reading what they have written, t hat you
really have a choice to make . I t's a policy
choice about whether you want to get the case
settled because ther e is a c le ar pa t h to get the
case settled or you wan t to stand firm on Ch i ef
Hunker. I don't think they are giving us the
ability to do both .
MR . WEISS: I think the question is whether
t he risk that the judges, and we think tha t we had
a very so l id case below, we thought we should have
won below on the issue of t he council replac i ng .
We think the charter is clear, but, you know , you
never kn ow what happens i n an appeal.
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On t he one hand is tha t . On the other hand
is the issue of Tom Hunker. I can 't tel l you that
we have a hundred percent chance of winning that
appeal. I think t h at we h a ve a very good chance
of winning the appea l , and I t hin k Michael agrees
with me . Ri g h t?
MR. POPOK : Yes .
MR . WEISS: And that is as strong as I will
be about anything . I don't go any higher than
very good chance.
MAYOR ROSENFIELD: I have to ask a question
and t hat is because we are constan t l y in a
fina nc ial --
COUNCILWOMAN COHEN: Cos t.
MAYOR ROS ENFIELD: The budget.
MR. WEISS : The cost to pursue the appeal,
abou t 20,000. Right?
MR. POPOK : Hold on a second. Yes, wit hout
t h e ora l . I would say 25,000 with the hearing,
with an o r al argument .
COUNCILMAN PACKER: May I j us t say
something? Michael , you said 25 seco nds ago if
there is a chance, to settle.
out .
MR. POPOK : I t 's the way Ric ha rd l aid it
I f you drop t h e Hunker issue , you can get
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t h e case sett l ed.
MR. WEI SS : I will tell you . You asked me
what to do. I would not stand on ceremony asking
them to withdraw through statements about what
t h ey said abo u t the council because I just think
it 's nonsense.
I will tel l you t his:
about T o rn Hun k er is serious.
I th in k the thing
He 's a decent
person , and I would not abandon Tom , but that is
just my opinion, and that is sort of --if I had
to make t h i s decision , that i s what I would do
beca u se I don 't thin k it 's right to abandon Tom
Hunker .
ASS I STANT MA YOR BLACHAR: I agree with you .
COUNC IL MAN PACKER : Arn I ri gh t in thinking
we are on two tracks; i s t h at correct ? The t rac k
with the appea l o r you are connecting the t wo with
the Tom Hu n ker?
COUNCI L WOMAN COH EN : E i t h e r way .
MR . WE I SS : I t's all co nn ect ed.
MAYOR ROSENFIELD : It's all connected.
MR. WEISS : There is n o way to spl it it
apar t .
COUNC ILM AN PACKER : So it canno t spl it
apart . We have to sta nd firm , and stay behind
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Tom .
MR . WEISS: T he only thing that I think
t ha t wou l d --I mean, our position has to be if
you want to stand beh ind T orn, that we can 't allow
to enter into some sett l emen t agreement, which you
and I d i scussed the other day, where we have a
chance of do ing . We ha ve to require if they are
goi n g to se ttle with u s, that they file t his
motion w i th us, and they stand with us, and th ey
say, yes, we wa nt t o withdraw the thing .
What is t h e least of t h e words, Michael?
MR. POPOK: The lea st of the words?
MR . WEISS: On the p l ead i ng t o withdraw.
You said --what is the least --
MR. POPOK:
MR . WEISS:
MR. POPOK:
I mpe rt inent, scanda l ous .
No, no .
I rr ele v a n t and i mma te rial .
MR . WEISS : Something like that. I'm not
as k in g them to say that it was, you kno w --
COUNC ILWOMA N COHEN : It's too foo li sh .
MR . WEISS : What is the words they have to
say?
MR. POPOK : Irrelevan t and i mmaterial.
mot i o n to strike they were tal king about .
MR. WEISS : Ir relev a nt , i mm ateria l ,
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some th ing like that .
from t he record .
I t just needs to be removed
MR . POPO K: I am just going to read you one
line in this en tir e thing that I think crystalizes
their posit i on.
letter .
This is Bil l Hearon's most recent
He sa i d , what the village is apparently
asking on behalf of Chief Hunker, a nonparty --
they still don 't get it --is for the p l aintiff to
re ca n t statement s made in her affidav it and ma de
i n the motion t o recuse Judge Reyes. That wil l
not happen.
T hey can 't be any more clear about this .
ASSISTAN T MAYO R BLACHAR: Do they feel if
you take that back that some how there is an issue
that they did something wrong with t h e judge, the
judge had rec used himsel f?
MR . POPOK :
MR. WEISS :
But we are re lea si ng them .
They a re concerned that t hey
have said something improper under oath.
what th ey are concerned about?
Is that
MR . POPO K: T here might be t hat or they
exposed themselves to a further suit from Chief
Hunker maybe. Look , if they came back to us and
said we will work , that doesn 't --
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MR . WE ISS : If they said Tom Hunker will
release us , I think we would do it .
MR. POPOK: T hey didn 't ask me for a Tom
Hunker re l ease .
ASS I STANT MAYOR BLACHAR: Why don 't you
offer that aspect of it , and if not, then I would
say go forward and let 's stand behind t he chief .
COUNCILMAN PACKER: That i s what we have to
do.
ASSISTANT MAYOR BLACHAR : The chief
deserves that.
MR. POPOK : What if t h ey say, all r igh t , we
wi ll move to str i ke , but we can't guarantee the
results?
COUNC ILMAN PACKER: It's up to the judge .
ASSISTANT MAYOR BLACHAR : It 's up to the
judge .
MR. WEI SS: I think we are responsible to
Tom to do every th ing that we can do legally and
present it that we possib ly can, but not with one
hand tied behind our back . We have to have the
whole vote from them based on this motion.
MR . POPOK : If t hey d i d that regardless of
what happens with the ju dge?
MR. WEISS: Yes. That is t he most we can
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do for Tom. There is riothing else that we can do .
ASS I STANT MAYOR BLACHAR: Even if you
didn't have this, you wou l d have to go before the
judge, so eith er way --
MR. WEISS: There is nothing more that we
can do . Nothing more t hat they can do having done
what t hey did, which is really unfortunate and
stupid .
COUNC I LMAN PACKER: Stupid .
ASS I STANT MAYOR BLAC HAR: T h ey may not want
to admit they we r e stupid in doing it.
CO UNC I LMAN PACKER : Tha t is the issue.
MAYOR ROSENF IELD: That is the iss ue .
MR . WEISS: So this is what we are going to
do so we don 't have t o have another executive
session.
Are yo u okay with the --I'm no t minimizing
it --with eliminating our request on the --I 'm
going to call it the po li tical side, having th em
make th ese statemen t s?
ASSISTANT MAYOR BL ACHAR: I think Jean was
the one who really felt --that really bothered
her.
MR . WEISS: You know what? I don't blame
h er a bit.
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MAYOR ROSE NFIEL D: It bothers me , but you
know what ? I don 't thi nk anybody i s listening to
t h em . Nobody is liste ning to them . It was rather
obvious fr om th e las t e le ction that th ey weren't
listening. I 'm wi ll in g to forgo t hat. That i s
not --t he issue is T om .
do.
MR. WEISS: T ha t is what we ar e going to
We are go i ng to say we wi ll wi thdraw the
mot i on, but they have got to agree to f ile that
motion with us to ha ve the f iles desi gnated as
confident i al . I s tha t it?
MR. POPOK : Le t 's t al k a bout t hat. The one
I really want --
MR. WEISS: It 's n ot the best one.
MR. POPO K: The bes t one for u s is a motion
to strike with an agreed order submitted.
MR. WEI SS :
MR . POPOK :
T ha t is what we want.
Because the other one , the
confidentiality, because the Firs t Amendment
i ssues re q u i re a 30 day posting on t he court
docket for a n ybody that may ob je ct .
MR . WEISS : Th ey need to agree to the one
tha t we have the best c ha nce , j u st st ri ke t he
pleadings .
MR. PO POK: Right , exactly, and r emove it
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f rom t he record.
MR . WEISS: Remove it fr om th e record.
That is it.
If they ask f or a release fr om Tom Hunke r
in response to t ha t, we wi l l ask Tom before we
offer i t.
MR. POPOK: I won't offer it.
MR. WEISS: I think it will be okay with
that .
If not , we are just --that is the end of
it. We have gone --Michael saw the guy in the
courthouse up in Palm Beach , approached him. We
have been the one who has been trying to push it ,
but, hones t ly, I really don 't see any quick push
for sett l ement, honestly not .
One or two c iti zens have tried to get
involved in settling this .
MR . POPOK: I asked the opposing lawyer to
put together papers to bring in to the executive
session. Tha t was ten days ago. Th ey didn't
respond.
MAYO R ROSENF I ELD : My next question is:
When did the 70 days start?
MR . POPO K: I t a l ready started. They can
ask for addi ti ona l time, a l though they suggested
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that because of the duration l e ft in the term ,
they want to move to expedite the appeal.
MR. WEISS: We are certainly not going to
grant th em any additiona l t im e .
MR . POPOK : We will get it done.
MA YOR ROS ENFI ELD : When did i t star t ? Did
it start th r ee weeks ago?
MR . POPOK: It started off when the notice
o f appea l was fi led.
MR . WE I SS: I t started like three weeks
ago . They are probab l y 20 days i n t o it.
MAY OR ROSENFIE L D : They have 50 days to
make up their mind.
ASSISTANT MAYOR BLACHAR: T hey may not even
do i t . They are saying they are doing it .
may not even bothe r wi th it.
The y
MAYOR ROSENF I ELD: That still leaves us
ha nging with T om .
MR. WE IS S: If they don 't file a brief, if
they don't file a br i ef , then we are still hanging
with Tom and we will make wha t ever mo t ion we have
to by ourse l ves .
MAYOR ROSENFIELD: Okay.
ASSISTANT MAYOR BLACHAR : Than k you for all
yo u r work. That i s not easy .
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MR . PO PO K : Th ank you.
MR. WEISS : Mar t in , d o you agree w ith what
we are doing?
COUNC I LMAN PACKER : I agree . T his th i ng
should be settled and if somebod y is hard-no sed,
as far as that goes , i t 's ridicu l ous .
be settled.
It h as to
MR . WEISS: B y the way --well, I don't
want t o say i t.
MAYOR ROSE NF I E L D: Say it .
MR. WE I SS : I was goi n g t o say i f somebody
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k nows somebo dy in th e vi l l ag e th at can encourage
these peop le to s ett l e t his thing to t he exte n t we
want to be done with it , but they are bei ng
unreasonable about it.
Do n't te ll them what we did i n the
executive session , but say , listen , you know wha t ,
we are re all y trying t o settle this thing . If you
g uys don 't want to set tle , tha t is fine . The on ly
ones t hat a re go in g to benefit honest l y from th i s
are t he attor ney s. It 's real ly a shame .
MAYOR ROSENFIELD : I think the person that
you and I know wh o had tal k ed with them, they
turned him down cold.
MR. WEISS : A very prominen t cit i zen that
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really tried to settle t h i s th i ng, and I don 't
think that he is, you k now, somebody you wou l d
perce i ve as close with them.
MAYO R ROSEN F IE L D: And he shook his head
with me the other day and said, I tried , that is
it. We will keep on trying.
MR. WEISS: The reason they don't want to
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settle this t hing , there is a fo r ce h ere that is
working that we don't understand, because I really
don 't think it 's the --I mean , if the peop l e
real l y wan t ed the see the village move on, and I
have l istened t o you , n otwithstanding that you may
have some differences amo n g you on some items , you
are together on t his. Nobody wants to pursue this
litiga t ion, which is why we went the extra mile to
try to settle it .
move on after th i s.
execut i ve sessions .
They just don't want to , so
We a r e n ot having any more
Te l l them I don 't want any
counteroffers either because I have noth i ng
further .
MAYOR ROSENFIELD: I will now reopen the
pub l ic meeting . The attorney/client session has
n ow been terminated and members of the general
publ i c are now invited to return for any further
proceedings or matters .
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Thank you very much.
(Thereupon, th e proceedings were concluded
at 6:50 p.m.)
CE R 'TI FICA TE
I, Mary G. Stephenson, FPR , S t ate of F l orida at
11 Large, certify that I was autho rized to and did
12 ste n ographica ll y report the foregoing proc eedings and
13 that t he transc r ipt is a true and complete record of my
14 ste nog raphic notes .
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16 Dated th i s 13 th day of August , 2009.
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