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Undergrounding election violation complaint dismissed; Town makes case seeking $30,000 in fees from Jaleski for “malicious intent”

STEVE REID
Editor & Publisher
sreid@lbknews.com

Longboat Key Town Attorney Maggie Mooney-Portale told Town Commissioners last Friday she is “pleased to inform” that one of two cases initiated by resident Gene Jaleski against the Town for election law violations was dismissed.

She continued to say in a memo that Bryant Miller Olive, the special counsel hired to defend the Town, is busy preparing a Petition for Attorney Fees, which could total more than $25,000. According to State law, the Town can recover the fees if the State agrees with the Town’s charge that Jaleski intentionally and maliciously pursued the Complaints against the Town.

The Florida Elections Commission wrote the Town last week that Jaleski’s Case FEC 15-445 is deemed closed because it is “legally insufficient” and no additional supporting information was provided that was compelling.

 

Alleged impropriety

According to the Florida Elections Commission, the essential allegation in the 15-445 case is that the Town illegally removed information and data from its website and that it interfered with the November 2015 referendum regarding the Gulf of Mexico Drive undergrounding of utility lines project.

Specifically, Jaleski alleged that the Commission directed the Town Manager to remove cost data about a potential second referendum from the Town Website (The Neighborhood Project), which was not before voters in November 2015. Jaleski said in his Complaint that the removal of that information improperly influenced or coerced voters.

The Florida Elections Commission deemed Jaleski’s complain insufficient because the State says it fails to demonstrate other than through hearsay that any voter was in fact influenced by the removal of the information or that the Town Commission removed it with that intent. In short, the FEC deemed his case “insufficient” and closed the case on January 29, 2016.

Meanwhile, through a public records request made by Longboat Key News on Jan. 7, 2016, it shows the Town has spent more than $17,500 as of year-end 2015 to respond to Jaleski’s complaints. About $11,000 was billed by Tallahassee legal firm Bryant, Miller and Olive, and the remainder by Town Attorney Mooney — Portale. That amount has since grown to an amount reported to Longboat Key News as nearing $30,000.

 

Town: Malicious intent, pay us the fees

The Town in its response to the complaint said through its attorneys that Jaleski’s complain is “Meritless and was filed with knowledge that it is based on false allegations and/or made with reckless disregard for whether it contains false allegations of fact…”

The Town’s response states, “The allegation (made in Jaleski’s Complaint) goes well beyond hyperbole and exaggeration and is a complete falsehood.”

The response then says that the information removed from the website pertained to a second referendum (the Neighborhoods) that may or may not happen and not the first (Gulf of Mexico Drive referendum) and that the Town Commission is at liberty to post or remove information from the Town website. The response says the material was removed to avoid confusion, but the material is still a record and available.

The main justification for seeking attorney fees reimbursement from Jaleski, according to the Town’s Complaint, is that Jaleski was aware at the time no second referendum was scheduled or called or determined and yet Jaleski filed a second Complaint with that knowledge in hand. The Town’s response states, “The Complainant knows that no referendum has been called for the Neighborhood project, yet filed a second Complaint with the FEC alleging violation of election law. … The Complaint itself demonstrates knowledge of false accusations and therefore goes beyond reckless disregard for their falsity, thereby fully justifying an award of costs and attorney’s fees under section 106.265(6), Florida Statutes.”

In Jaleski’s other Complaint, FEC 15-420, the one yet to be decided, the Town through its attorneys, Bryant Miller Olive, elaborated on why the Town is justified to recover the $17,000 plus in attorney fees from Jaleski.

The Town’s fee recovery is based on if the FEC finds that Jaleski filed his Complaint with “malicious intent to injure the reputation of the party complained against, with knowledge that the Complaint contains one or more false allegations or reckless disregard for whether the Complaint contains false allegations of fact material to a violation.”

The Town asserts that Jaleski made his allegations based on an election that had not yet been called. The Town also asserts that Jaleski used the Complaint to further his political wishes of defeating the referendum and attack the Commission’s policy determination and fight and disparage the Commission because he wanted a flat tax payment methodology for the undergrounding plans.

 

Background to Jaleski’s case…

The issue started when Jaleski filed a Complaint with the Florida Elections Commission on October 15, 2015 that stated, “The Longboat Key Town Commission illegally removed information from the Town Website in an effort to affect the upcoming referendum vote on burying power lines on Gulf of Mexico Drive.

By last September, The Commission had scheduled the November referendum vote for undergrounding Gulf of Mexico Drive and the assessment methodology was in place.  The method adopted to pay for Gulf of Mexico Drive is to use non-ad valorum assessments and the benefit was factored as mainly equal to all parcel owners with a few exceptions and everyone on the Key will pay about the same.

The board had instructed the Town Manager and consultants in the spring of 2015 to use the same methodology of non-ad valoram assessments based on a benefit to the parcel allocation for the Neighborhoods as was used for Gulf of Mexico Drive. But the difference in cost between properties for the Neighborhoods was far more dramatic and upsetting to many residents than in the Gulf of Mexico Drive proposal.

The cost in the Neighborhood plan from parcel to parcel varies dramatically depending on whether a property is currently undergrounded or not when it came to the side streets.

In the background last September was the vote on Gulf of Mexico Drive that was imminent, coming in November 2015. Commissioners had stated they would only undertake the Neighborhood Plan if the voters passed the Gulf of Mexico Drive ballot question in November.

As the November vote become closer, the Commission started to have second and third thoughts on how to best approach funding the neighborhoods. The disparity in cost was protested at numerous public meetings and through letters.

Most of the residents upset about the cost involved in the potential Neighborhood plan had looked up their parcel after the Town in the summer of 2015 posted the cost for both the Gulf of Mexico Drive project and for the potential Neighborhood Project on its website and property owners and voters could look up their individual parcel and see the impact.

With the vote for the Gulf of Mexico Drive project a scheduled reality, several Commissioners expressed concern in September that the cost information that Town staff posted to its website on the Neighborhoods was premature, and could have a negative impact on voters in November and residents’ understanding.

After long discussions at a September 9 workshop meeting, the Town Commission told the manager that they needed to revisit how to pay for the neighborhoods and they reached a consensus to take the cost information for the neighborhoods down from its website until it was finalized. That specifically is what forms heart of Jaleski’s Complaints.

Jaleski says that the Commission took the material down in fear of a “Perceived negative response” and they removed it a “crucial time just prior to the referendum election.”

In an addendum to his Complaint, which became entered by the State as the second election violation Complaint, Jaleski said that the Town Commission needed to vote at a regular meeting to remove the information from the Website since it was data posted as a result of a formal vote. Jaleski says the Town took that corrective action later in September on the 28th when the Town Manager requested the commissioners formalize through a vote the consensus reached earlier in the month. His contention is that that serves as acknowledgement by the Town that they acted wrongly in taking it down without a formal vote.

 

In sum

In many ways both complaints are similar with pending case FEC-420 elaborating by the Town why it is entitled to collect attorney fees from Jaleski.

Again, the Town argues that Jaleski was aware that the Town may or may not hold a second referendum and that it was debating the language of that referendum and has the right to post or remove information from its website. The argument continues that Jaleski knew that the information removed was about a not-yet-scheduled election that was still under debate. The Town says that Jaleski pursued a falsity that he was aware of and that he sought to maliciously file a complaint and damage the reputation of the Commission and cause it harm.

As of Feb. 10, the Florida Election Commission has not made a decision on Jaleski’s second Complaint. As for the fees, the Town has paid its attorneys to perform the legal work necessary to attempt to collect legal fees from Jaleski, but according to several commissioners a final decision has not been made on whether they will pursue the fees or let the matter go.

 

The coming vote…

While the initial Complaint was being considered by the FEC, the Longboat Key electorate voted in support of the GMD project in November. Subsequently the Town did adopt a methodology and language for the second (Neighborhood) project.

The Commission worked throughout last fall reviewing the cost sharing between neighborhoods that are already undergrounded and those that are not.

The Commission in November and December expanded the scope of the project to include burying dark fiber optic cable to the entire Key including the neighborhoods that already have underground power lines. That change, along with the recognition of other general benefits, shifted about 18% of the cost of the entire $25 million Neighborhood project onto property owners who already have their lines buried.

Now, a vote on the Neighborhood undergrounding plan is set for March 15 of this year.

Over the past two months, numerous residents who will be paying the most have faulted the Commission for allowing those in the already undergrounded areas a vote on something that will cost the minority many times more.

Jaleski lives in The Village, which will pay in the higher tier since it currently has aboveground utilities. Jaleski has written numerous letters and spoken at most Commission meetings against the current funding methodology and told Longboat Key News that he does not like the idea that those paying the least have a controlling vote in the upcoming referendum. That is because about two thirds of the island is already undergrounded and will pay only a fraction of what those in areas with above ground lines will pay, but everyone gets to vote.

In the immediate future, the Town Commission will discuss undergrounding and the payment method at a special meeting slated for 9 a.m. on Tuesday, Feb. 16. The Commission has asked the Town Manager to examine potential adjustments to the assessment methodology in light of six specific properties — two of which are where current commissioners live — Club Longboat is where Pat Zunz resides and Land’s End is home to Jack Daly.

The push by these Commissioners and owners in the other four properties is to lessen the financial impact on those properties because they contend that the properties in general are undergrounded but overhead lines exist within proximity and they seek relief in the category they will be assessed. The Manager and consultant have looked at the effect possible changes and adjustments would have island-wide.

Town Manager Dave Bullock told Longboat Key News that the changes and adjustments are not major and not game changers and if the Commission finalizes its method next week, he will then start talking to community groups of voters about the Neighborhood project and upcoming vote in an effort to convey the scope of the project and address any questions or concerns in person.

Read below Jaleski’s official Complaint filing with the State Election Commission as well as the State’s dismissal letter and the Town’s response to both complaints. The second response contains detailed arguments by the Town on the malicious intent rationale for seeking fees. Click on pages once or twice to enlarge depending on browser or zoom in.

 

Jaleski’s Initial Complaint and FEC letter

 

 

Town’s Response to Complaint FEC 15-445

Florida Election Commission Dismissal Letter

Town’s Response to FEC Complaint 15-420

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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