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.