City Council entered into a special “shade session,” Oct. 17 at MacKenzie Hall, pursuant to its petition recently filed with the Florida Division of Administrative Hearings. The closed meeting’s purpose was to discuss “litigation strategies and pertains to expenditures,” City Attorney John Agnew said.

The session was likely necessitated by the recent discovery of a conflict of interest existing in City Attorney John Agnew’s law firm, Henderson, Franklin, Starnes & Holt. Such circumstance would require Agnew to step away from the petition litigation.

The petition requests “a final order declaring that South Florida Water Management’s proposed changes to Rule 40E-8.221(2) [Minimum Flows and Levels (MFLs): Surface Waters] are an invalid exercise of delegated legislative authority.” It was approved at a Council workshop Sept. 24.

The “shade session” stands as an exception to Florida’s Sunshine Law requiring that civic meetings be open to the public. According to the Statute, the exception “makes litigation strategy or settlement meetings private when they are held between a board and its attorney, and the board is a party before a court or administrative agency.” As per the Statute, a transcript “shall be made part of the public record upon conclusion of the litigation.”

In detailing the specifics of the Statute’s exception, Attorney Agnew gave instruction limiting attendees to “City Council, the City Attorney and the most senior representative.” On hand for this meeting were Mayor Kevin Ruane, Council members Holly Smith, Jason Maughan and Chauncy Goss, City Attorney Agnew, City Manager Judie Zimomra, and a Ft. Myers Court Reporter. Vice Mayor Mick Denham was excused.

The public meeting following the closed session included just one item, to fund alternative legal counsel for the administrative hearing. Councilman Maughan made the multi-layered motion—to allocate $100,000 “to hire replacement counsel to represent the City of Sanibel at the administrative hearing”; to allocate $10,000 to hire a litigation expert; and to direct Attorney Agnew “to seek out replacement counsel from the conflicted firm Henderson Franklin.” The motion was unanimously passed.

At the meeting’s conclusion, Mayor Ruane commented for the record that Sanibel would work “in concert with all the cities in the spirit of what we need to do. I don’t anticipate any of the cities doing anything other than participating in mitigating the overall expense,” he said.

Council concurred with Ruane’s final recommendation, that Sanibel ask the County Commission to support the petition effort. “I am willing to take a bullet to do that,” Ruane said.