IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT

IN AND FOR HERNANDO COUNTY, FLORIDA

HERNANDO COUNTY,
Plaintiff,

-vs-

CASE NO: H-27-CA-2016-15

CITY OF BROOKSVILLE,

Defendant.

______________________________/

TRANSCRIPT OF CONFLICT ASSESSMENT MEETING

DATE TAKEN: July 19, 2016

TIME: 9:05 a.m. to 9:33 a.m.

PLACE: County Attorney's Office

20 N. Main Street, Room 265
Brooksville, Florida 34601
This cause came on to be heard at the time

and place aforesaid, when and where the following

proceedings were reported by Brooke Stuart Day, Court

Reporter.

1
2
3
4
5
6
7
8
9

10

APPEARANCES:

GARTH C. COLLER, ESQ.

JON A. JOUBEN, ESQ.
County Attorney's Office
Appearing on behalf of Hernando County.
20 N. Main Street, Room 462
Brooksville, Florida 34601

THOMAS HOGAN, JR., ESQ.

CLIFFORD A. TAYLOR, ESQ.
JENNIFER C. REY, ESQ.
The Hogan Law Firm
Appearing on behalf of the City of Brooksville.
P.O. Box 485
Brooksville, Florida 34605

11

ALSO PRESENT:

13

T. Jennene Norman-Vacha - City Manager

12
14
15
16
17
18
19
20

Leonard Sossaman - County Administrator

Lisa Morgan - Hogan Law Firm

Ricky Leach - Utilities Director

Paul L. Wieczorek - Department of Planning and Zoning

Ron Pianta - Director of Planning

Brian Malmberg - County Public Works Director

Bill Geiger - Brooksville Director of Planning.

21
22
23
24
25
Carolyn F. Engel & Associates

1
2

Thereupon, the following proceedings were had:

MR. COLLER:

I don't know if you've had an

opportunity to look at the agenda note, Tom.

those are our options?

4
6

concur that that's roughly how we need to proceed, that

MR. HOGAN:

I think that, you know, roughly those are

things that need to be discussed.

on the results of your executive --

8
10
11
12
13

Do you

I think that, in my

mind anyway, what we would have started with is a report

MR. COLLER:

outcome.

Oh, absolutely.

I mean, this is the

After this meeting, this is our follow-up, what

we have to make a decision on, not the meeting itself.

MR. HOGAN:

Sure.

The only other thing that kind of

14

throws a curve in there is that we have this litigation

16

meet with the judge to see how we're going to handle that

15
17
18
19
20
21
22

proceeding on a parallel track, and we're going to need to

because --

MR. COLLER:
MR. HOGAN:

All right.

-- he's entered an order that we are to

file a Responsive Pleading by August the 2nd, or something

like that.

MR. COLLER:

Okay.

All right.

Well, I'll start

23

then.

25

to the removal of what you termed Section 7.

24

With regards to our promises, we promised, when we

left here, that we would talk to our clients with regards

Carolyn F. Engel & Associates

I can tell

you that there was no interest from my clients in removing

they were concerned about municipal under bounding and the

2
4
5
6
7
8
9

that.

They understood the troublesome nature.

potential costs to the County.

However,

You know, we are

challenged as part of this, you know, with federal

litigation, so our position is that that will remain.

MR. HOGAN:

Okay.

You lost me on a couple of points.

Their concern, could you go over -MR. COLLER:

Well, the concern is based on the

10

lawyer's concern, and the lawyer's concern obviously is,

12

federal liabilities if you are found to have been

11
13
14
15
16
17
18
19
20
21
22
23
24
25

is that municipal under bounding comes out with potential

contributory to municipal and/or county determination of
discrimination against a class.

And so, obviously, we're

concerned about that, as well as I'm sure the City is, is

that we want to make sure that we don't put ourselves in a

position of not having done everything we can to make sure
that there is no valid accusation of intentional or
unintentional racism.
MR. HOGAN:

MR. COLLER:

Okay.

If I'm saying if artfully enough.

do you want to add anything to that?

MR. JOUBEN:
MR. COLLER:
MR. HOGAN:

Jon,

No, I think that's fine.

Okay.

Now, you will have to correct me if I'm

Carolyn F. Engel & Associates

wrong here, but it's my understanding that -- the amended

understanding that the County is accusing the City of

2
4
5
6
7
8
9

10
11
12
13

complaint that includes Count 7, or Paragraph 7, it's my

annexing property in a way that would create an enclave
out of what I'll call, for lack of a better term, south
Brooksville, the area south of Martin Luther King

Boulevard that has been historically in the county, it's

always been in the county, and it's historically been a
predominately black neighborhood.

So if there has been

discrimination in that area -- and I'm not saying there

has been, but if there has been, then certainly the County
needs to address that.
MR. COLLER:

Correct.

That's why we are making the

14

statements we are making.

16

the last meeting, talking about the need, particularly for

15
17
18
19
20
21
22
23
24
25

Obviously, the whole point of

annexations -- and I think we ended up in a discussion at

utilities and other service providers, to get together

when we plan annexations, because one of the major points

that you try to accomplish as part of good annexations is,

is that you provide good service to whoever it is you're
serving.

And, obviously, if there are enclaves, et

cetera, it makes it difficult to provide good service, and

that's where those cases come from.

So the County wants

to make sure that we do everything we can do to make sure

these things are properly planned and annexed and will
Carolyn F. Engel & Associates

1
2
3

help us lead to defenses against municipal under bounding

and discrimination -MR. HOGAN:

Can you define municipal under bounding

for me?

You're much more familiar with your brief than I am, Jon.

to exclude areas of predominately minority populations

5
7
9

10
11
12
13
14
15
16
17
18
19
20

MR. COLLER:

Let me let Jon take a shot at that.

MR. JOUBEN:

It's the drawing of municipal boundaries

which has the effect, over the long term, of reducing the
provision, for lack of a better word, of municipal
services to those areas.
MR. HOGAN:

Okay.

So let me understand that.

I'm

not clear whether you had an executive session or not -MR. COLLER:
MR. HOGAN:

commissioners?

MR. COLLER:

We did not.

Okay.

I assume, then, you met with your

Individually.

MR. HOGAN:

And it was a consensus was arrived at --

MR. HOGAN:

-- wherein they refused to dismiss

MR. COLLER:

Correct.

21

Paragraph or Count 7 at this point?

23

is a very serious point of contention with Brooksville,

25

that it is inflammatory, et cetera.

22
24

MR. COLLER:

Essentially, the discussions were, this

particularly with the city commissioners, that they feel

Carolyn F. Engel & Associates

However, this is why

it was in the brief.

whether or not you think we should proceed as is or not.

2
4
5

Given those two issues, please waive them and tell us

The consensus was proceed to as is.
MR. HOGAN:

them?

the advice.

7
9

10
11

These are the concerns we had.

MR. COLLER:

That was the advice that you gave to

Well, we try to stay away from making

We gave them the reason why it was there, and

the reasons why it was such a prickly and divisive issue

for the City.

MR. HOGAN:

Well, clearly, it's a divisive issue for

12

the City, because on the north side of Martin Luther King,

14

very diligently to provide municipal services in such a

13
15
16
17
18
19
20

they have, over the years, especially since 2007, worked

way as there's no distinction between that area and any
other area in the city.

When I say "we," I mean the City

believes that there are some deficiencies on the south

side of Martin Luther King that we would rather not
inherit.

But I want to make it clear for the record that my

21

client -- we did have a meeting, by the way.

23

clear that they will welcome any citizen into the City of

22
24
25

an executive session last night.

We did have

And they made it very

Brooksville that meets the legal criteria of continuity.

MR. COLLER:

Contiguity.

Carolyn F. Engel & Associates

MR. HOGAN:

Thank you.

legal requirements.

it.

3
5
6
7
8
9

10
11
12
13
14
15
16
17
18

Contiguity, and the other

And they welcome, without regard to

race, creed, color, religion.

That has nothing to do with

However, they are not upset, they're not mad, they're

not angry.

They just believe that the inclusion of Count

7, Paragraph 7 in the complaint, especially the way it's

written, with numerous references to newspaper articles
and 1925 ordinances, that it is unnecessarily

inflammatory, that the concern could have been stated in

much simpler legal terms that weren't as inflammatory or
inflammatory at all.

And they find -- after reading the

transcript of our last meeting, they believe the inclusion

of Paragraph 7 to be disingenuous, and to be in bad faith.
And they have instructed their legal team and their city
manager to stand our ground, not go forward until we can
convince your client to do away with that paragraph, as
Jon calls it.

So I'm willing to stay here all day and talk about

19

possibilities and, you know, we talked about possibilities

21

end, they do not believe that that we should proceed with

20
22
23
24
25

for quite sometime last night with our client.

But in the

negotiations so long as what they believe to be Count 7 to

be in place in the lawsuit, as they believe it to be
disingenuous and in bad faith.

So I'm not sure -- I mean, obviously, as I said, I

Carolyn F. Engel & Associates

would be more than happy to stay here until all of the

about possibilities.

2
4
5
6
7
8
9

10
11
12
13
14
15
16
17
18
19
20
21
22

donut holes are gone and the coffee is consumed and talk
However, I'm not sure where we go

procedurally, Garth, because, as I said earlier, we're

kind of on a parallel track now.
point, entered a stay.

I don't know that we've ever been

served actually with a suit.

the judge entered a stay.
requested it.

The judge, at some

But before we were served,

I'm assuming that you all

But since then, he's ordered us to file

Responsive Pleading, so it seems as though he's lifted the

stay.

And we are in the process of preparing to file

Responsive Pleading.
few more days.

We only have a couple more days --

If we're going to continue to try to

negotiate a settlement, I think we need to have at least a

status conference with the judge to make sure that he's on
the same page as we're on.
that.

MR. COLLER:

I'm going to let Jon respond because

he's got to leave.

have to go to.

MR. HOGAN:

MR. COLLER:

I'm open to suggestion on

He's got another hearing he's going to

I'm with you, Jon.

What I believe we're left with are, at

23

least on the agenda, are Option C and D.

25

of Section 7.

24

I think that

puts us where the statute would take us given the impasse

Carolyn F. Engel & Associates

10

1
2

Jon, your thoughts.

MR. JOUBEN:

I agree, though I can't remember --

maybe Cliff or Jennifer could tell me.

were due or within X number of days.

4
6
7
8
9

10
11
12
13
14
15

I don't remember

if the judge put in his order a date that the documents

MS. REY:

It was days.

MR. JOUBEN:

Because I think, by operation of law,

the briefing schedule is stayed pending the conclusion -the judge stayed this pending conclusion of the dispute
resolution process, the litigation part.

So I would

think, by operation of law, your brief isn't due -- the

time doesn't start ticking until this process is over.

With that being said, I have no problem with stipulating

to an order to that effect.
MR. TAYLOR:

I think we need to do that, or

16

something, because the judge, I think, was under the

18

the parties agreed otherwise.

17
19
20
21

understanding that the briefs would still be due unless

to --

MR. COLLER:
MR. JOUBEN:

And I think we would have

We can agree.

Yeah, I think we agree with that.

22

mean, we could stipulate to a proposed agreed order that

24

chapter whatever -- I think -- I'm sorry, 164.

23
25

the briefing schedule is stayed pending the conclusion of

MR. HOGAN:

Yes, it's 164.

Carolyn F. Engel & Associates

11

Well, Garth and Jon, I guess I have two questions.

One is, with regard to Paragraph 3, under 164.1053 Florida

stop for just a moment.

3
5

Statutes, (3), I do not believe it would be -- let me just

MR. COLLER:

That's the joint meeting you're talking

about?

for just a second.

7
9

10
11
12
13

MR. HOGAN:

MR. COLLER:
MR. HOGAN:

Joint meeting.

Let me talk to my client

Would you like for us to leave, Tom?

No.

I like you guys.

coffee and donuts, come on.

I brought you

(Mr. Hogan confers with City Manager.)

MR. HOGAN:

As I told you last time, we've done some

14

annexation work over in Sumter.

16

contention before, so I'm not real experienced in this

15
17
18
19
20
21
22
23
24
25

We've annexed some

properties here in Brooksville, but we've never had any

process.

However, I don't think -- my reading of the

statute, and everything that I could find to read to try

to get prepared for this and try to stay up with Jon, it's
hard to do, but this seems to be almost a hybrid situation
where we have litigation going on at the same time.

don't think that 171 or 164 envisioned litigation on a

parallel track with the negotiations.

I know that 171

doesn't, because it says that the County must -- in this

situation, the County must ask for a negotiation prior to

Carolyn F. Engel & Associates

12

filing the lawsuit.

lawsuit was filed ahead of the negotiations.

mean, it seems to me that I would have to advise my client

2
4
6
7
8
9

10
11
12
13
14
15
16
17
18
19
20

In this case, things got kind of jumbled.

The

So if we had

a joint meeting, how would you advise your client?

to either let me do the talking or to be very much on

guard as to what they said because there's pending
litigation.

I mean, in normal circumstances, disregarding

the public entities, if I have a client that's in

litigation, I usually advise them not to talk to anyone.

And so I think that would have to be -- if anybody has a
thought, jump in.
advice.

But I think that would have to be my

I'm trying to think how I could get around that,

and maybe you have some thoughts on it.

So a joint

meeting, you know, might be the county commission and the

city counsel witnessing, you know, us having a

conversation, the lawyers having a conversation about the

situation.

So I'm not sure how productive it would be.

With regard to (4), you know -MR. COLLER:

For the others around here, that being

21

mediation.

23

mediation.

25

mediation, and I felt that I could judge which one of my

22
24

MR. HOGAN:

I'm sorry.

Mediation.

I never say no to

I remember years ago when mediation became

mandatory, and I was opposed to being forced into

Carolyn F. Engel & Associates

13

cases had a chance to settle and which ones didn't.

thought would never settle have settled, and cases that I

2
4
5
6
7
8
9

10
11
12
13
14

But

since that time, I've been to mediation, and cases that I

thought would settle easily ended up in court.

So I don't

know if a professional mediator could help us or not.

never opposed to it.

I'm

But to bring my verbosity back to full circle, you

know, my client was, at the end of the evening, adamant

that they did not want to go forward until the County
dismisses Count or Paragraph 7.
MR. COLLER:

Well, I believe we can safely indicate

that we're at impasse as to that issue, so I think we need

to then move forward to whatever the next step is.
MR. JOUBEN:

Well, just addressing, when we to back

15

to a prior point or question from Mr. Hogan, the last time

17

litigation pending, that was, I believe, in 2006 with

16
18
19
20
21
22
23
24
25

we had a joint meeting on the same scenario, with

D'Maria & Bell, and David Lacroix was the city attorney at
the time.
least.

That one was pretty free-wheeling, to say the

You know, I don't think you could use it after,

since it's a certiorari case, not a trial.

I don't think

any of it could be used in the ongoing litigation no

matter what any of our clients went off the reservation

and said.

That being said, I understand that conundrum.

We'd have to ask the court to let us out of that.

Carolyn F. Engel & Associates

But I

14

1
2
3

think first we would have to go to Option B.

His Honor just dispensing.
MR. COLLER:

I can't see

Then I guess the next thing we have to

accomplish this morning, really, is do you have a

suggestions, dates?

5
7

recommended time frame for that?

MR. JOUBEN:

First, we'd have to pick a mediator, who

MR. COLLER:

Correct.

would then have to give us dates.

10

how soon would you like to work?

12

week, months, you know.

11
13
14
15
16

Jon, do you have any

I mean, in terms of, you know,

How much time do you

think you want to prepare before then?

MR. HOGAN:

Are we talking

I think that we would need some time,

first of all, to report back to our clients.

MR. COLLER:
MR. HOGAN:

Yes, as do we.

I think we need to have a status

17

conference with the judge to have him in the loop on this,

19

it, then I need for the judge to confirm that, because we

18
20
21
22
23
24
25

because if our Responsive Pleading is not due, as you read

didn't read it that way.
MR. JOUBEN:

Do you want to try to draft a proposed

agreed order first, or do you just want to set the case

management conference?
MR. HOGAN:

I think we should have a case management

conference and be drafting the order at the same time,

Carolyn F. Engel & Associates

15

because we're working away on our Responsive Pleading.

anything.

2
4
5
6
7
8
9

10
11
12

When I say "we," I mean Jennifer.

I don't really do

So what do you think, 60 days?

MR. COLLER:

Can we leave it as the counsels will get

MR. JOUBEN:

I think we need some sort of time frame.

together and talk to their clients and get together?

MR. COLLER:

Again, you're right.

We need to first,

I guess, sort of have an idea of mediators, get a list of

mediators together, look at their calenders, and then move

forward from there.
that this morning.
MR. JOUBEN:

I'm not sure how we can do any of

No.

The only suggestion I would make is

13

that we pick someone with an expertise in this area, you

15

experience in:

14
16
17
18
19
20
21
22

know, David Theriaque or Kenneth Apgar, someone that has

One, representing public entities; two,

persuading public entities.

MR. COLLER:
MR. HOGAN:

saying.

Both of those would be fine with me.

Yeah.

I think that goes almost without

I don't think we should get a personal injury

mediator; it doesn't make any sense at all.

MR. COLLER:
MR. HOGAN:

No.

So I have no problem with that.

But I

23

would like to resolve the issue of -- I know that

25

but I would like to have some more law on whether or not

24

statements made at mediation are certainly not admissible,

Carolyn F. Engel & Associates

16

statements made at a joint meeting are admissible.

the top of my head, it seems as though they would be.

2
4

Just,

you know, off the top -- I haven't researched it, but off
MR. COLLER:

Then I guess we could have one more

option, which is to schedule another one of these

point of submitting names of mediators for approval and

6
8
9

10
11
12
13
14
15
16
17
18

meetings, do that research, come back, and we're at the

move forward.

MR. HOGAN:

Sure.

I agree with Jon.

ought to set a time frame, even if we amend it, so that we

know what we're looking at.
MR. COLLER:
MR. HOGAN:

MR. JOUBEN:

That's fine.

Sixty days?

Sixty days, I believe, would work.

that we mentioned can look at their calenders -MR. HOGAN:

MR. COLLER:

Okay.

Good idea.

Other than that, I think

that's about all we can do today.

21

humor in the refreshments that we brought.

22
23
24
25

can try, in the interim, to see if those two mediators

19
20

We probably

MR. HOGAN:

MR. COLLER:
MR. HOGAN:

Okay.

Well, I hope you appreciate the

I can actually look at them.

Well, you need to look at them, and I'll

call you and see if you get it.

(Off the record.)

Carolyn F. Engel & Associates

17

1
2
3
4
5

MS. REY:

Can we just go back on the record to

clarify those things so we're all clear on what we're

doing?

MR. HOGAN:
MS. REY:

Go ahead, Jennifer.

In the next 60 days, we will have one more

additional conflict assessment meeting, but that, within

schedule mediation; and within that 60 days, work to

7
9

10
11

that 60 days, we'll also work to agree on mediators and

schedule a status conference with the judge to address the

deadline on the response to the writ.
MR. COLLER:

During that time, Jon has offered to

MR. HOGAN:

The last thing is, if you would please

12

contact mediators to see what their calenders look like.

14

relay to your client that my client, city counsel,

16

what they believe to be a bad-faith paragraph in the writ;

13
15
17
18
19
20
21
22
23
24
25

sincerely wants to resolve this, but just cannot accept

and further, that it is the City's, I don't know, desire,

dream, whatever, that one day what we refer to as the

black community, it's predominately black residents that

live on either side of Martin Luther King Boulevard and
Mitchell Heights, we would like them to be in the City.

We think that a united community could speak with a louder

voice.

We believe in Jeffersonian government, a

government closest to the people is best.

And once the

proper vehicle is found, we welcome anyone that wants to

Carolyn F. Engel & Associates

18

be in the City, we welcome them into the city.

misunderstanding that we do not welcome everyone that

2
4
5
6
7

So no

perception, and no one should leave this meeting with the

wants to be in the City into the City.

(Whereupon, the meeting concluded at 9:33

a.m.)

8
9

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Carolyn F. Engel & Associates

19

1
2
3
4

C E R T I F I C A T E

I, BROOKE STUART DAY, Court Reporter, do hearby

certify that I was authorized to and did report the

true and correct record of my stenographic notes.

6
8
9

10
11
12
13
14

foregoing proceedings, and that the transcript is a

Dated this 29th day of July, 2016, at

Brooksville, Hernando County, Florida.

___________________________________

BROOKE STUART DAY, COURT REPORTER

15
16
17
18
19
20
21
22
23
24
25
Carolyn F. Engel & Associates