The Conflicts in Upcoming Venice (FL) Council Vote on Settlement of Suit Against Its Members
<i>Update below</i><br>
Recently, <a href="http://www.cityethics.org/node/634" target="”_blank”">I wrote</a> 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.<br>
<br>
According to <a href="http://www.heraldtribune.com/article/20090220/ARTICLE/902200377/0/SPORT…; target="”_blank”">an
article in Friday's Sarasota </a><span><a href="http://www.heraldtribune.com/article/20090220/ARTICLE/902200377/0/SPORT…; target="”_blank”">Herald-Tribune</a>,</span>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
They still say that their use of private e-mail was inadvertent.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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?<br>
<br>
And all this just so the council could vote.<br>
<br>
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.<br>
<br>
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 <a href="http://www.cityethics.org/mc/full#TOC34" target="”_blank”">the Rule of
Necessity</a>, 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.<br>
<br>
Or would it? Here's the score:<br>
<br>
<ul>
<li>Using private e-mails to discuss public business and then
allegedly trying to
delete them -- probably illegal, certainly unethical</li>
<li>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</li>
<li>Dismissal of the suit against Moore to get a quorum -- a
lawyers' ruse that changes the ethics of the case, so that</li>
<li>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<br>
</li>
<li>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</li>
</ul>
If I understand this situation correctly, it is ethical quicksand. I
don't know if it's possible to reinstate the suit against Moore under
these
circumstances, but it's the only ethical way out I can see. Strike the
dismissal, reinstate
the case, turn the decision over to the city manager, and go from there.<br>
<br>
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.<br>
<br>
For a local columnist's view of this mess, click <a href="http://www.heraldtribune.com/article/20090220/COLUMNIST/902200325" target="”_blank”">here</a>.<br>
<br>
<b>Update:</b> 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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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