The Flagler County Commission held a two-hour closed-door session this afternoon to discuss a potential settlement in Captain’s BBQ’s four-year-old lawsuit against the county. Commissioners will decide at their evening meeting on Nov. 20 whether to accept or reject the proposal, which will have been made public a few days ahead of time by then.
There was to be a special meeting immediately following the session today, where the commission may have indicated its position. No such meeting was held, because while one portion of the meeting was properly noticed, in accordance with law, the special meeting following it was not. So commissioners could not reach consensus, make motions or take a vote on the matter.
County Commissioner Andy Dance flagged the misstep. Before the closed session, County Attorney Al Hadeed explained the misstep as well as the extremely restricted parameters of executive, or closed-door, sessions. Hadeed’s preface was instructive enough about what’s ahead, and about the extremely restrictive parameters of closed door sessions by elected boards–parameters the Flagler County School Board often does not follow when it holds its own closed-door sessions, as it has with increasing and alarming frequency.
Captain’s BBQ, the restaurant at Bings Landing, the county park on the Intracoastal in the Hammock, sued the county in 2019 in a breach-of-contract claim. The restaurant alleged that the county had reneged on a lease amendment that would have allowed the restaurant to build a bigger, 5,100-square-foot facility at its own expense at the park. The amendment gave it options to extend its lease through August 31, 2041. The previous lease expires in August 2026.
The commission had in fact approved that lease amendment in a 3-2 vote in November 2018, only to subsequently, obliquely, set that decision aside, without quite rescinding it. That murkiness has has clouded a case that metastasized with complexities as it entered its fifth year this fall. The matter is so complex that, ahead of today’s meeting, Assistant County Attorney Sean Moylan was distributing an oversize, small-print grid outlining the issues and, presumably, the proposed resolution: the grid was still confidential.
“We have tried to take as much of that technical information and translate it in the most usable form for you,” Hadeed said.
As reported here last week, the two sides reached a “tentative settlement” in their last mediation in late October, a mediation ordered by Circuit Judge Chris France, who has been more than nudging the two sides to settle. The settlement was negotiated between lawyers, owners and County Administrator Heidi Petito, who summarized the terms to the commissioners today in the closed session.
Hadeed summarized the task ahead in the open portion. “We have sought and are seeking still input from the County Commission relative to the pending case, specifically as it relates to settlement negotiations,” he said. “So we had our mediation, I know you’re aware of that. And we need your input on the mediation direction that we’re going to pursue in order to see if we can reach an accord that will terminate the case.”
He set out the closed-meeting requirements–no one in the room other than the commissioners, the attorneys, the county administrator and a court reporter, whose transcript will be made available publicly once the case is entirely disposed of.
In the closed-door meeting, Petito was to give commissioners “an overview of what transpired in the mediation and she will give you a broad overview as pretty much an introduction,” Hadeed said. “Then we will go to specific items from the mediation where we, that is the lawyers particularly, but also I know Ms. Petito would be interested, to hear your reaction to those things. You’re not voting. You’re not permitted to vote. You’re not and we’re not looking for a consensus. You’re not permitted to have a consensus. I know it sounds unusual, but that is what the statute requires. Each of you individually are permitted to comment on these specific things that will be brought to you, including general questions about settlement.”
The commissioners may also ask about litigation expenses. That’s it. “That’s all we can do,” Hadeed said. “It’s very constrained, artificially controlled, because is it is an exception to the Sunshine Law, therefore, strictly applied.” Any further discussions–consensus, agreement, votes–must happen in an open meeting, “so the public can observe it. So that is how the public interest is protected.”
That leaves it to the lawyers to interpret the commissioners’ individual perspectives and translate that into the proposed settlement, without explicit direction from the commissioners. Of course they’ll need the explicit resolution. That’s to come on Nov. 20–what Hadeed called the second step.
“The second step is you get to form consensus and form motions that will allow us to move forward,” he said. That could have happened today, but “Commissioner Andy Dance, much to his credit, he looked at the notice that was published after I sent a general guidance out, and he said, Wait a minute, there’s nothing in here about our doing the second step.” Or something to that effect.
While Hadeed corrected the mistake this morning, it still was not sufficient time to comply with the law’s 24-hour minimum requirement, so the special-meeting portion of the session was postponed. In a sense, the postponement may be beneficial to the public: had commissioners made their decision today, they would have done so without giving the public a chance to study and weigh in on the proposal ahead of time. The public will have that opportunity ahead of the Nov. 20 meeting.
After Hadeed laid out the parameters of the closed session in the open portion of the meeting, as the law requires (the school board routinely flouts that requirement), the meeting was closed. The participants deliberated two hours. Commission Chairman Greg Hansen then re-opened the meeting to the public, as is also required, enabling Hadeed to summarize the mechanics again.
Commissioners made no comment. Nor had Petito any comments. Hansen adjourned.
John Stove says
My god are there any competent Flagler County (even in City of Palm Coast) officials employed? Cant one person double check to make sure public meetings have been duly advertised to not get into legal trouble?
It seems to be a very common occurrence in our local governments that we have folks who have no clue (even the school board)
Pathetic
Robert Swinderman says
You made an incorrect statement that Captain’s was going to pay for the mega restaurant on taxpayer environmentally sensitive lands. The scheme involved essentially a reverse mortgage where Captains would recover the investment through reduced rents over a long term lease. The public would be paying for this building not Captains.
Thomas Hutson says
Captain’s BBQ Cluster
Well let’s see what happened this time around with our Palm Coast County Commission, oh no wait; It’s Flagler County Commission. Can you believe that after over 4 years of dealing with this issue, Captain’s BBQ at Bings Landing, the County Attorney would make a mistake about public notice? A County Commissioner discovered the mistake! GOOD JOB!
After over 4 years and hundreds of thousands of dollars in Attorney Fees including the County Attorney’s Budget this Palm Coast County Commission, oh sorry; Flagler County Commission has a “POTENTIAL SETTLEMENT”. What? Settlement after 4 plus years? Because the “Judge” wanted “ONE” last attempt to settle without a trial? And when did this going to trial become an issue? HUM, let’s see 4 years and lots, and lots of TAX PAYER MONEY spent on legal fees? Amazing don’t you think? BOY oh BOY “Judge” where have you been for the past 4 years?
Flagler County residents pay close attention to this issue, it’s just one of many clusters ongoing in the County at the present time. Look closely at the main parties in all of these cases, strange they all revolve around the same individuals.
One good thing in favor of Flagler County Residents, in just under 365 days we can start the process to correct these clusters from occurring again. It will also be time for many of these entrenched individuals to “ASK THEMSELVES, WHERE WILL I BE WORKING IF NOT WORKING HERE?”
Until then all we can do is watch from the side lines, as residents at the present time, we have no power to influence these entrenched decision makers.
Shark says
Went there once and that was enough !!!!
CELIA PUGLIESE says
Too many and costly missteps over and over in this FCBOCC , administrators and legal teams…that have become over $150,000 cost in our hard aerned taxes as I read reported. From the start the biggest goof up was in the original first lease renewal incorrectly agreed under administrator Coffey without the taxpayers and Bings Landing Historical preservation screaming residents input! We said NO to the BBQ proposal of a bigger building inour lands bought with hard earned preservation funds after picketing for weeks in A1A against any BBQ expansion. We still say NO today ! What is wrong with the the BBQ owners don’t they understand English? Go buy your own piece of intracoastl pricey land and build your own there! Our park is ours “the people’s not for profiteering buit for enjoyment and preservation for future generations! What does it take to understand this?
Jane Gentile-Youd says
A big thank you to Administration Assistant Lucy Dance who took my panicked call they at 9:30 hysterical that the county cannot post and schedule a Public Meeting with only 3 hours- a violation of Florida Law. An e-mail followed and as usual, Commissioner Andy Dance responds and pays attention Thank you Andy. Now the public will have the opportunity to protest giving these jokers one penny their moot lawsuit demands. HADEED, PETITO, MENGEL need to go asap. How stupid can an attorney be to not know a statute thats been in effect for y e a r s….
Hey, they can always ask Joe Mullins for a job. Right?
The dude says
In just over 365 days the same cast of clowns will sit in power, they may sit in different chairs, but rest assured the exact same names will be on the ballots for Palm Coast and Flagler County as the last cycle, and the cycle before that, and the cycle before that, and so on…
One has to assume these cockroaches and parasites perfectly represent the citizens of Palm Coast and Flagler county.
Mary J says
C’mon Jane, do you really think Hadeed is stupid ? This was very CALCULATING on Hadeeds part. I guess he purposely left out the notice thinking no one will catch it so the proceedings cannot be influenced by public outcry or opposition. The county was in no small words “CAUGHT” pulling a fast one, and as usual it is coming back to bite them in the rear pockets.
I don’t know what the terms of the “SETTLEMENT” will be but I can guess it won’t be favorable in any small way to the county.
Remember, for Al Hadeed, to go to this much subterfuge I’ll guess it’s probably going to be very bad.
Then again this is so typical of Flagler County these days
Jane Gentile-Youd says
Dear Andy,
My sincerest apology for taking the full credit for alerting the ‘staff’ . If I were you I would ‘smack me in the face’ for such as audacious assumption. Shame on me Andy especially because to me you are the BEST…
From: Andy Dance
To: [email protected]
Sent: Wednesday, November 8, 2023 at 08:51:57 AM EST
Subject: Re: Board of County Commissioners Special Meeting and Executive Session Followed by Public Session
Jane,
I wanted to clarify the timing of the issues with the improper meeting notice.
I alerted Mr. Hadeed at 8:22 AM, with an email noting my opposition to the special meeting that was planned to follow the Executive Session. The Special Meeting notice was a clumsy and confusing public notice. It was combined with the Executive Session notice and made them seem as one, with restricted access for both.
That email prompted the attempted public notice fix for the Special meeting, which was also improper.
Just thought I should clarify what prompted the attempted special meeting public notice fix that you referenced in your email below.
My objections came well before the notice below was posted at 9:44AM. Your FlaglerLive post leave the impression that I only objected after the 9:44AM notice was posted. That was not the case as I explained above.
Andy
Andy Dance
County Commissioner District 1
E: [email protected] | V: 386-313-4001 | W: http://www.flaglercounty.gov
Laurel says
Celiea: All they understand is the incredibly sweet deal they got years ago, the people involved then, and how to take even more advantage of the situation by suing the very taxpayers who footed their bill with no return.