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The Conflicts in Upcoming Venice (FL) Council Vote on Settlement of Suit Against Its Members
Tuesday, February 24th, 2009
Robert Wechsler
Update below
Recently, I wrote a bit about the odd Venice, FL ethics program, which puts the city manager completely in charge. Now Venice is making news with respect to open government issues, and this has led to a very interesting conflict of interest issue.
According to an article in Friday's Sarasota Herald-Tribune, a citizen suit was filed against the city and several council members regarding their use of private e-mail to discuss, outside of public meetings, airport development, the most divisive issue in town. After supposedly running up about a million dollars in legal fees, and having computer experts dig up e-mail messages from council members' personal computers, attorneys reached a tentative settlement. According to the settlement, officials would not admit any wrongdoing, but instead all the blame (and the legal fees) is placed on the city.
The council is scheduled to vote on the settlement Wednesday. Four of its seven members are defendants in the suit, and two others were witnesses, who were included in some of the private e-mail exchanges. The plaintiff has reportedly agreed to dismiss his complaint against John Moore, one of the council members, so that the council would have a quorum to vote on the settlement. But the settlement benefits him greatly. Were the case to go to trial, and the court to decide against the council members, requiring them to pay their own legal fees, it could cost him hundreds of thousands of dollars.
According to the article, the judge "recently rejected the city officials' positions in a number of motions leading up to the trial, undercutting potential defense arguments and admitting potentially incriminating e-mails. A loss could have raised the risks of adding ammunition for a potential criminal complaint." In other words, council members have a lot to gain by approving the settlement.
They still say that their use of private e-mail was inadvertent.
What is especially interesting is Moore's position that, because the complaint against him has been dismissed, he has no conflict. This makes the conflict nothing but a procedural technicality, which it isn't.
The consequences of the dismissal are even more intriguing. It would appear that, if the council were to reject the settlement, the case against Moore would be over. It's hard to believe that any plaintiff would allow that possibility unless he knew the settlement was a done deal. If the dismissal was part of the settlement itself, operative only if the settlement were approved, then Moore's argument about having no conflict is meaningless. In fact, he would have more of a conflict than if the dismissal had never occurred.
The question is, was the attorneys' tentative agreement to the settlement actually tentative. Is the upcoming vote simply a formality? If so, does the settlement not violate open government laws?
And all this just so the council could vote.
Conflicts do not turn on procedural technicalities, they turn on whether officials have personal interests in a particular action or vote. And there is no doubt about that here.
However, without the conflicted council member, there could be no quorum to vote on the settlement. Instead of playing a game with technicalities, the council could have fallen back on the Rule of Necessity, which allows an overly conflicted body to vote on a matter if there is no other individual or body authorized by law to act. However, if Venice law does not allow any other individual or body to act, the council could recognize the conflicts of four of its members and vote to accept the city manager's decision on the settlement (assuming the city manager was not involved in the e-mail exchanges). This way, the decision would be made solely in the public interest by someone not involved in the wrongdoing. This would, I believe, be the most ethical way to deal with this serious conflict.
Or would it? Here's the score:
Of course, what really should have been done is that the council members should have, right up front, admitted that it was wrong for them to have effectively had meetings via e-mail, then paid a fine, if that was required and, finally, produced clear guidelines for all town officials about proper use of e-mail by city officials. Their decision to run up enormous legal expenses was, unfortunately, their right, but was not in the public interest.
For a local columnist's view of this mess, click here.
Update: On February 25, the only council member who had nothing to do with the e-mail exchanges chose not to attend the special council meeting to vote on the settlement. The result was that there was not a quorum and no vote could be taken. She said she would not attend a meeting on the settlement unless the involved individuals either publicly apologized or resigned.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Recently, I wrote a bit about the odd Venice, FL ethics program, which puts the city manager completely in charge. Now Venice is making news with respect to open government issues, and this has led to a very interesting conflict of interest issue.
According to an article in Friday's Sarasota Herald-Tribune, a citizen suit was filed against the city and several council members regarding their use of private e-mail to discuss, outside of public meetings, airport development, the most divisive issue in town. After supposedly running up about a million dollars in legal fees, and having computer experts dig up e-mail messages from council members' personal computers, attorneys reached a tentative settlement. According to the settlement, officials would not admit any wrongdoing, but instead all the blame (and the legal fees) is placed on the city.
The council is scheduled to vote on the settlement Wednesday. Four of its seven members are defendants in the suit, and two others were witnesses, who were included in some of the private e-mail exchanges. The plaintiff has reportedly agreed to dismiss his complaint against John Moore, one of the council members, so that the council would have a quorum to vote on the settlement. But the settlement benefits him greatly. Were the case to go to trial, and the court to decide against the council members, requiring them to pay their own legal fees, it could cost him hundreds of thousands of dollars.
According to the article, the judge "recently rejected the city officials' positions in a number of motions leading up to the trial, undercutting potential defense arguments and admitting potentially incriminating e-mails. A loss could have raised the risks of adding ammunition for a potential criminal complaint." In other words, council members have a lot to gain by approving the settlement.
They still say that their use of private e-mail was inadvertent.
What is especially interesting is Moore's position that, because the complaint against him has been dismissed, he has no conflict. This makes the conflict nothing but a procedural technicality, which it isn't.
The consequences of the dismissal are even more intriguing. It would appear that, if the council were to reject the settlement, the case against Moore would be over. It's hard to believe that any plaintiff would allow that possibility unless he knew the settlement was a done deal. If the dismissal was part of the settlement itself, operative only if the settlement were approved, then Moore's argument about having no conflict is meaningless. In fact, he would have more of a conflict than if the dismissal had never occurred.
The question is, was the attorneys' tentative agreement to the settlement actually tentative. Is the upcoming vote simply a formality? If so, does the settlement not violate open government laws?
And all this just so the council could vote.
Conflicts do not turn on procedural technicalities, they turn on whether officials have personal interests in a particular action or vote. And there is no doubt about that here.
However, without the conflicted council member, there could be no quorum to vote on the settlement. Instead of playing a game with technicalities, the council could have fallen back on the Rule of Necessity, which allows an overly conflicted body to vote on a matter if there is no other individual or body authorized by law to act. However, if Venice law does not allow any other individual or body to act, the council could recognize the conflicts of four of its members and vote to accept the city manager's decision on the settlement (assuming the city manager was not involved in the e-mail exchanges). This way, the decision would be made solely in the public interest by someone not involved in the wrongdoing. This would, I believe, be the most ethical way to deal with this serious conflict.
Or would it? Here's the score:
- Using private e-mails to discuss public business and then allegedly trying to delete them -- probably illegal, certainly unethical
- Agreeing to a settlement, through counsel, that would put the entire financial burden on the city -- possibly illegal and certainly unethical, especially if not done by public vote
- Dismissal of the suit against Moore to get a quorum -- a lawyers' ruse that changes the ethics of the case, so that
- If the council rejects the settlement, it would be seriously
unethical, since the settlement was agreed to and the suit dismissed
against one of its members
- If the city manager rejects the settlement, she would still be going back on the city's word, even if she might have rejected the settlement before it was agreed to by counsel
Of course, what really should have been done is that the council members should have, right up front, admitted that it was wrong for them to have effectively had meetings via e-mail, then paid a fine, if that was required and, finally, produced clear guidelines for all town officials about proper use of e-mail by city officials. Their decision to run up enormous legal expenses was, unfortunately, their right, but was not in the public interest.
For a local columnist's view of this mess, click here.
Update: On February 25, the only council member who had nothing to do with the e-mail exchanges chose not to attend the special council meeting to vote on the settlement. The result was that there was not a quorum and no vote could be taken. She said she would not attend a meeting on the settlement unless the involved individuals either publicly apologized or resigned.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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