Litigation – Page 2 – LakelandLaw.com

Quasi Public Records

November 19, 2015/in Blog, Litigation /by CCLM Law

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: When can private entities working in concert with the government be subject to public records requests?

A: A Florida appellate court recently reversed a trial court’s ruling that the Space Coast’s Economic Development Commission is subject to public records laws. Florida has made great strides to bring the government “into the sunshine” with rules that sweep even certain casual encounters between government officials into the “open meetings” category and pull certain semi-private entities into public scrutiny. The Attorney General’s Office has spoken as to economic “councils” being within the purview of public records laws when they serve, as they generally do, an advisory role to the government.

It therefore surprised some when the appellate court reopened the question as to whether an economic development commission must respond to public records requests. The real reason for reversal was that the trial court applied the wrong test. The trial court used a “delegation of functions” test to determine that economic development activities having been delegated to the commission made it as though the commission was stepping into the shoes of the government. Where there is clear and complete delegation of function, the court said, the private agency is subject to public records laws. The appellate court did not reject that test but said that the test was misapplied, because the commission was left without some economic development functions, such as job training, and could not make binding decisions on tax incentives and abatements.

Absent complete delegation of function, the appellate court held that a “totality of factors” test applied. Factors include public funding (in this case, about half of the entity’s budget), commingling of public and private funds, conducting of business on public property, whether the services are integral to governmental decision-making, performance of a function the government would otherwise perform, extent of governmental control over the entity, creation of the entity by the government, substantial financial interest in the entity by the government, and operation of the entity for the public’s or government’s benefit. Undoubtedly, some of these factors appear to weigh in favor of treating an economic development commission as public enough to respond to public records requests. But the fact that the commission at issue received substantial investor funding, sat dozens of investors and few governmental appointees on its board and committees, and lacked final decision-making power for much of its advisory role made the appellate court question whether the public records laws applied. Absent a rehearing or another appeal, the trial court will now have to apply the totality of factors test to determine whether the commission is public enough.

When a quasi-public entity refuses your requests for public records, it is important to conduct an investigation, often with the assistance of an attorney, as to whether there is a good argument that the refusal is unwarranted, in which case you could have remedies to pursue in court.

The December 3^rd edition of “The Law” will cover end of year tax tips.

Questions can be submitted online to thelaw@clarkcampbell-law.com.

How We Select Our Judges

October 9, 2014/in Blog, Litigation /by CCLM Law

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: Polk County has recently seen judges appointed by governor and elected by the people. What is the process for judicial appointments, elections, and resignations?

A: The short but problematic answer is that trial court judges are elected by the people unless a vacancy arises (by resignation, by a judge being elevated to another court, or otherwise). This answer is problematic, because courts continue to grapple with how and when judicial resignations create a gubernatorial power of appointment.

For example, in March, Jacksonville’s Judge Donald R. Moran, Jr. tendered a letter of resignation to the governor, effective one business day prior to the end of the judge’s term this coming January. Days later, the Secretary of State received the first candidate submission. Once the governor accepted the resignation, however, the Division of Elections advised the candidate that the position would be filled by appointment rather than election, because the judge was resigning.

The timing of the letter and effective date were important. If the date the resignation letter is accepted by the governor predates the election process (i.e. candidate submissions), regardless of whether the effective date is later, the position is filled by the governor; otherwise, the election process continues. According to a 1970s Florida Supreme Court decision, however, if the judge resigns effective as of the end of his term, creating no actual vacancy, Florida favors elections.

An appeals court last month held that, even though the effective date of Judge Moran’s resignation created only a single business day of vacancy, there was no clear right to an election. The court’s Judge Philip J. Padovano, in dissent, expressed concern that such a ruling creates the potential for abuse; specifically, a judge could give the governor appointment power by resigning effective just hours before the end of his term or could strip the governor of that power by refusing to formally announce resignation until after the election process begins.

Above, I refer to how trial court judges get on the bench. Florida has also has an intermediary “court of appeals” and a “supreme court”. Judges on those benches are appointed by the governor after a nominating commission provides the governor with suggested candidates. Appeals and Supreme Court judges, like other judges in Florida, typically serve six-year terms and must go through a retention election process at the end of each term.

The October 23^rd edition of “The Law” will address the sometimes confusing HOA covenants and restrictions.

Questions may be submitted online to thelaw@clarkcampbell-law.com.

Subpoenas

August 28, 2014/in Blog, Litigation /by Joseph Geary

By Joseph A. Geary, Attorney
Clark, Campbell, Lancaster & Munson, P.A.

Q: My business has been served with a civil subpoena demanding business records. What should I do?

A: When a Florida business, large or small, is served with a subpoena in a civil action demanding records of the business, there are certain “do’s” and “don’ts” that business owners should follow:

DO read the subpoena. Every page. Carefully. What records are demanded? When, where and how are you asked to produced the records? Next week? In another county or state? Physically or electronically? How much time have you been given to respond? A subpoena may seek records that contain, for example: employee information protected by privacy laws (such as HIPAA); financial data, trade secrets or other information you don’t want publicly known; records containing confidentiality agreements you might violate if you produced them. A subpoena might also ask you to produce data that is electronically stored (e-mails, for example) and in a specific file format.

DON’T assume the subpoena has been properly issued or served, or that the lawyer responsible for issuing it has “followed the rules.” All jurisdictions have laws and court rules specifically governing both the issuance and the service of subpoenas, as well as what records can be sought, and where, how, and when you are to produce them. Your business may be entitled to the protections the law affords.
DON’T ignore the subpoena or put off dealing with it. Treat any subpoena seriously. It is lawful process of the court, and can be enforced by that court by finding you in contempt and/or assessing attorney’s fees and court costs, if you wilfully disobey it.
DO obtain legal advice promptly, if you have questions or concerns about the subpoena. In this context, ignorance is never bliss, and knowledge is usually power. A misstep could prove costly. A subpoena could be improper or objectionable for any number of reasons that might excuse or mitigate your obligation to obey it. However, you may not know what is proper or improper or, in the latter case, what you can do about it, if anything. The usual way to address an improper or overreaching subpoena is by a “Motion to Quash”, to be heard by a judge, filed in the court that issued the subpoena.

If your business is served with a subpoena, dealing with it proactively should always be a priority, never an afterthought.

The September 11^th edition of “The Law” will address issues regarding estate planning. Questions may be submitted online to thelaw@clarkcampbell-law.com.