City Attorney Koberlein Squeaks in Under the Wire With Request for Council Advice; City Clerk Publishes Improper Notice
Posted November 17, 2021 08:25 am
Photo: Inaki del Olmo via Pixabay| Columbia
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LAKE CITY, FL – A twelfth-hour request on Monday evening by City Attorney Fred Koberlein for a “shade” meeting or litigation session brings to the forefront public record issues and litigation issues which continue to plague Lake City during its recent dysfunction.
The City Council does not require its contracted city attorney, Fred Koberlein, Jr., to report publically the litigation issues facing the City and its residents.
Usually, the only way the public finds out about these issues is when the media reports them or the City requests a “shade” or litigation session.
Litigations sessions are governed by Florida statute section 286.011(8).
Florida’s Sunshine Law has been a bellwether of the nation and is regarded with pride even as the legislature continues to add exemption after exemption.
The law requires only certain people are allowed to participate, and they must be named.
The City Clerk posted a notice in the local newspaper without the names of the participants. After your reporter pointed out the deficiencies in the notice, she posted an updated notice on the door of City Hall. It is not clear if the Clerk will fix her mistake in the newspaper. She is waiting for word from City Attorney Koberlein if he thinks it needs to be fixed.
As Monday’s meeting drew down to its last seconds, Attorney Koberlein waved his hand and caught the attention of Mayor Witt.
Attorney Koberlein was recognized in the nick of time. The Florida statute is clear: “The entity’s attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation.”
This is how Attorney Koberlein complied with the Florida statute (something you won’t read in the County’s mainstream media):
"Mayor, there is a litigation – there is a general meeting scheduled this week – or this Friday – I guess technically it’s a special meeting in which you’ll be asked to go to a litigation session. There are two pending cases that need some – you all will need to render some advice towards the strategy or settlements of those two lawsuits. They’ve already been noticed. So that will be at 3 o’clock."
The notice was improper. It is not clear if Mr. Koberlein knew.
Mayor Witt thanked Mr. Koberlein for his remarks and adjourned the meeting.
The City Attorney could have had his “shade” request added to the agenda at the beginning of the meeting so the public would have had a clear indication of what he was going to do.
Mr. Koberlein did not. It is how he operates.
The Cases
The first case is a public records case: Travis Koon, an individual, and the Law Office of Travis Koon, PLLC vs. Lake City Police Department and Argatha Gilmore…custodian of records.
On August 14, 2019, a public record request was made asking for video footage and documents related to Richard Anthony Francis, Mr. Koon’s client. (see page 9 of the complaint)
According to the complaint, “LCPD responded to Plaintiff's public records request 454 days after the request was made.”
The complaint goes on to say: “Defendant has intentionally refused to produce an admitted existing public record for over 454 days. Plaintiff has, therefore, needlessly incurred and will continue to needlessly incur attorneys’ fees and costs in this matter.”
The law is unambiguous. The seminal case decided by the Florida Supremes, Tribune Co. v. Cannella (1984), found the following regarding the Public Records Act:
"We therefore hold that the legislative scheme of the Public Records Act has preempted the law relating to any delay in producing records for inspection. The only delay permitted by the Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt."
In public record cases, the Attorney is entitled to fees and costs.
Case Number 2
The next case up for discussion in the “shade” is Befaithful Coker, Petitioner, vs. City Council of Lake City Florida and Audrey Sikes.
See: Judge Squashes City’s Third Bite at the Apple: Orders City to explain why Befaithful Coker should not take her seat on the City Council. Links are in the article, which will bring you to the lawsuit and the judge’s order.
This case is about Ms. Coker being seated in the vacated City Council seat after she was appointed by the City Council and filed her Oath of Office with the City Clerk, who had maintained she was the “only one who could swear her in.”
Ms. Coker sued the City, claiming the seat belonged to her. The Court issued an order giving the City twenty days to file papers explaining why she was not entitled to be seated.
The word on the street is that the City has been looking for outside counsel to handle the Coker lawsuit.
City Attorney Fred Koberlein, an announced candidate for circuit court judge, is certified in municipal law and a self-proclaimed expert in public records.
What’s next?
It is not clear what will happen next, but it is important to remember, disregarding the confusing public notice from the City Clerk, the "shade" meeting can only be entered from a meeting open to the public. At that time, the Mayor must announce who [the names] is attending the closed meeting. If outside counsel is on board, the public will know then.
