Legal Report, October 2012

Palm Beach County League of Cities October 26, 2012


Legal Report-October                                 General Counsel, Trela J. White

 Susan Hewlings v. Orange County,

Case Number D1191.  Public Records.

The Fifth District Court of Appeal held that the mere fact that the county quickly acknowledged receipt of a public records request is not dispositive on whether the county unjustifiably delayed in complying with the request.  Susan Hewlings filed a public records request with the county requesting all records related to a dangerous dog investigation.  That same day, the county responded with a voicemail acknowledging receipt of the request.  Despite acknowledging receipt, the county never responded to the records request.  Hewlings filed a mandamus petition with the trial court seeking an order requiring the county to comply with her request.  The trial court entered an order and the county released the documents within 48 hours.  Hewlings then filed a motion for attorney’s fees arguing that there was no reason for the county’s 45-day delay in complying with the records request.  The trial court denied the motion for fees.  The Fifth District reversed the trial court’s ruling and held that an unjustified delay in complying with a public records request is tantamount to an unlawful refusal to produce such documents.  The Fifth District held that the county’s acknowledgement of the receipt of the request did not automatically excuse the county from delaying in complying with the request.  The appellate court remanded the case to the trial court to make a determination on whether the county had unjustifiably delayed in complying with the request.

Gift Reporting for All Officials and Employees Who Are Not Reporting Individuals Under State Law—November 1st Deadline

Section 2-444(f)(2) of the Palm Beach County Code of Ethics requires that all officials and employees who are not reporting individuals under state law and who receive any gift in excess of $100.00, which is not otherwise excluded or prohibited, must complete and submit an annual gift disclosure report to the Palm Beach County Commission on Ethics no later than November 1st of each year.  The reporting period includes any gifts received during the last fiscal year (October 1st through September 30th).  The gift reporting form can be found at:  Officials or employees who are not reporting individuals under state law and who do not receive a gift in excess of $100.00 during a given reporting period, are not required to submit a gift disclosure form.

Posting of Budget on Municipality’s Official Website

Section 166.241, Florida Statutes, states that a municipality’s final adopted budget must be posted on the municipality’s official website within 30 days after adoption.  If the municipality does not operate an official website, then the municipality must, within a reasonable period of time, transmit the final budget to the county administrator who shall post the budget on the county’s website.

 Palm Beach County Commission on Ethics:  Recent Advisory opinion

RQO 12-068:  The COE reviewed whether an elected official could use her official position to assist her homeowners association in cleaning up a local, privately-owned lake and determined that she could not do so.  There are 240 units represented by the homeowners association and approximately 36 of those units are located on the lake.  The elected official owns one of the lakeside units.  The COE held that the 36 unit owners on the lake constitute a sub-class of property owners.  Given that the elected official is a member of this small sub-class, the likelihood of prohibited financial gain exists.  Therefore, the elected official is prohibited from using her official position to take action or otherwise influence the owner of the lake to clean the lake.  For example, the elected official is prohibited from voting or participating on this matter should it come before the town council.  The elected official also is prohibited from attempting to use code enforcement in a manner that is not available to all residents of the town.  Nevertheless, the elected official is not prohibited from working on this project in her personal capacity as a resident and homeowner, except when the matter comes before the town council per the voting conflict/no participation rule.  In working with neighbors in her personal capacity, the elected official must be mindful not to use resources uniquely accessible to the elected official by reason of her office.  Such action could violate the local Code of Ethics.

Town of Gulf Stream et al vs. Palm Beach County, and Sharon R. Bock, as Clerk and Comptroller of Palm Beach County, Intervenor

Case No. 502011CA017953XXXXMB.  Inspector General Funding Lawsuit.

Fourteen municipalities have sued Palm Beach County challenging the method of funding for the Inspector General program.  The municipalities contend that the current funding method is an unlawful tax and invades municipal home rule budgetary authority.  The Inspector General has filed a Motion to Intervene, and this motion, which is opposed by the County, the municipalities and the Clerk of Courts, was rescheduled at the request of the Judge for October 24, 2012.  On August 30, 2012, the municipalities filed a Motion for Partial Summary Judgment.  The Judge will set the hearing on the municipalities’ Motion on October 26, 2012.  The purpose of the Motion for Partial Summary Judgment is to ask the Court to rule on the legality of the funding method without further delay and before a trial commences.

City of Palm Bay vs. Wells Fargo Bank, N.A.,

Case Number SC11-830.  Superiority of Code Enforcement Liens.

This case was reported on at the July 2012 League meeting and the details are contained in the July Legal Update, which is located on the League’s website.  No further action has been taken by the Florida Supreme Court at this time.

City of Orlando and Lasercraft, Inc. vs. Michael Udowychenko, etc.

Case Number SC12-1471.  Red Light Cameras.

This case was reported on at the July 2012 League meeting and the details are contained in the July Legal Update, which is located on the League’s website.  No further action has been taken by the Florida Supreme Court at this time