Given the frequent interactions between government and business, disputes often arise between regulatory bodies and private parties. The landscape of a dispute with local government, however, can look vastly different from the traditional terrain of purely private litigation. The nuanced aspects of disputes that lie at the intersection of government and business, and the specific procedural laws that apply to local governments, require assistance from mediators with specific local government experience to assist parties seeking to resolve disputes through mediation.

The Unique Government-Business Dispute Landscape

Put simply, there are legal and institutional variations that differentiate disputes with government from traditional disputes between private entities. These differences can often become obstacles to resolving even the most seemingly straightforward disagreements between government and business.

Resource asymmetry can often influence the trajectory of dispute resolution. Private parties may be more cost-sensitive in their approach to a dispute, whereas government may be willing to litigate matters at greater expense to protect the public good. This includes a greater willingness to pursue legal theories or challenges that may set important precedent in other matters, which, for an individual litigant, may be economically irrational to pursue.

Moreover, government lawyers are usually specialists in their area of practice and well-positioned to levy and respond to legal challenges in the public sphere, whereas counsel for private litigants sometimes get lost in the mire of unfamiliar statutes and ordinances. For instance, understanding the applicability of open government laws at the inception of a dispute can greatly impact the time spent seeking information from government entities by way of traditional discovery requests later on. Similarly, familiarity with unique defenses available to governments that often do not arise between private litigants, such as sovereign immunity and statutory damages caps, can be key. By the same token, there are distinct statutory regimes that enable certain causes of action, like those brought pursuant to the Bert Harris Act, which are particular to government alone.

To complicate matters further, when a dispute involves government, the public is often an initially overlooked third-party that must nonetheless be accounted for in resolution. Such considerations of the public interest are not typically features of private litigation. Thus, interested stakeholders are often not present at a mediation, but will certainly express their positions at any public meeting ultimately held to approve a settlement. Relatedly, because media consistently tracks government action, public sensitivities are often a paramount consideration in dispute resolution, and public opinion can create a potential obstacle to resolution for local governments.

Finally, in disputes between private parties and governments, there exist unique sensitivities by private actors who are repeat players in the government-business arena and who wish to preserve their relationships and goodwill beyond resolution of a particular dispute for the sake of future beneficial transactions with government.

A Mediator With Experience in Local Government Law as a Guide to Facilitate Mediation

Mediating local government and business disputes can be an invaluable resource to assist the parties as they navigate through the obstacles that this unique landscape presents. The more the needs and limitations of each party are understood by the intermediary facilitating discussion between the two, the more effectively those discussions for resolution can yield progress.

In particular, a guide who can adeptly shepherd the parties procedurally through the sticky aspects of mediation with a government actor—such as understanding limitations on final settlement authority, Florida’s Sunshine Laws, and concepts of sovereign immunity—greatly improves the likelihood that a mutually agreeable resolution of a dispute can be reached.

Additionally, using mediation as a mechanism for settlement can provide a window for creative solutions that allow the parties to shift perspective from the adversarial zero-sum endeavor seen too often in litigation, to a partnership of negotiation for a mutually beneficial outcome more commonly brokered in government fora. This shift in outlook can lead to an improved relationship between the parties during a tense period of interaction. In this manner, the parties can preserve future transaction potential. In fact, the candid discussions and creative intervention of an honest and knowledgeable broker during mediation may allow the parties to conjure creative solutions and remedies not limited to simple dollar demands. In some instances, these discussions have even been shown to spawn policies that foster outcomes with positive outcomes to the public welfare the government serves. Finally, in most cases, mediation can maintain confidentiality. This can help to lessen the apprehension of public sensitivities to certain disputes and potential political ramifications, simplifying the path to dispute resolution.

Given the distinctive challenges that disputes with government present, a mediator with specific local government experience is an underrated and underutilized, but highly effective, guide on the path to dispute resolution.

Candice Balmori is an attorney at Weiss Serota Helfman Cole + Bierman’s Fort Lauderdale office and represents municipalities on a broad range of issues, including counseling on contracts, compliance with public records, sunshine and ethics laws.

Jamie Alan Cole is a partner and the managing director of the firm’s Fort Lauderdale office. He represents local officials and governments in matters that help improve their communities and preserve home rule power. Both attorneys are Supreme Court-certified mediators.

To read the original article in the Daily Business Review, click here.

The post Jamie Cole and Candice Balmori Discuss Mediation and Local Government appeared first on Weiss Serota Helfman Cole + Bierman.

The right to protest in America is a fundamental right guaranteed by the First Amendment to the United States Constitution, which protects both the “freedom of speech” and the “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The right to protest is, however, limited – “peaceable” being the operative word.

In response to recent demonstrations across the United States, Florida Governor DeSantis signed the “Combatting Public Disorder Act” on April 19, 2021. The most reported result of the new law is the creation of new criminal offenses and the enhancement of criminal penalties for applicable existing offenses. The potential chilling of First Amendment rights has already resulted in a judicial challenge.

Far less reported, however, is the potential impact of a separate provision in the Act that could have a significant financial effect on local governments and the insurance companies that insure them: namely, the waiver of sovereign immunity and establishment of a new cause of action for unlimited damages against local governments by any person who is killed, injured or suffers property damage as a result of the local government’s failure to provide reasonable law enforcement protection during a riot or unlawful assembly.

Specifically, the Act creates a duty on municipalities to allow its municipal law enforcement agency to respond “appropriately” to protect persons and property during a riot or an unlawful assembly based on the availability of adequate equipment to its municipal law enforcement officers. If the governing body of a municipality or a person authorized by the governing body of the municipality breaches that duty, the municipality is civilly liable for any damages, including damages arising from personal injury, wrongful death or property damage proximately caused by the municipality’s breach of duty.

Sovereign immunity for the municipality is specifically waived – the damages recoverable under the Act by a person who is killed, injured or suffers property damage is not barred by sovereign immunity, nor is any recovery limited by sovereign immunity caps of $200,000 per person and $300,000 per incident contained in Florida Law (Section 768.28).

And, as discussed below, there is a possibility these types of losses may be limited and/or excluded by insurance policies.

This new cause of action represents a major expansion of potential liability for municipalities. Historically, municipal decisions as to how to allocate police resources could not be challenged and second-guessed by courts.

The leading precedent on the issue is the 1970 decision of the Florida Supreme Court in Wong v. City of Miami. In that case, several merchants sued the City of Miami claiming that they had suffered over $100,000 in property damage because the city decided to withdraw police officers that had been stationed in their vicinity during public protests at the 1968 Republican National Convention in Miami Beach.

The Court rejected the claim, saying, “The sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence. Here officials thought it best to withdraw their officers. Who can say whether or not the damage sustained by petitioners would have been more widespread if the officers had stayed, and because of a resulting confrontation, the situation had escalated with greater violence than could have been controlled with the resources immediately at hand?”

As the result of the passage of the Combatting Public Disorder Act, such decisions during stressful times will potentially expose municipalities to unlimited liability. What may seem reasonable to the local decision makers may be interpreted differently by plaintiffs seeking recompense for their damages. Even worse, because the Act became effective immediately, an affected municipality may in the short-term face potentially uninsured liabilities due to limitations and exclusions (such as riot or intentional act exclusions) in its existing insurance policies.

Just as the portions of the Act regarding criminal penalties potentially violates the U.S. Constitution, this aspect of the Act creating a new unlimited cause of action against municipalities may violate multiple sections of the Florida Constitution.

Article VII, Section 18 of the Florida Constitution generally provides that any law that requires a local government to expend funds must contain a specific legislative finding that the law fulfills an “important state interest.” The Florida Legislature must either provide sufficient funds or the legislation must be approved by two-thirds of the members of both the House of Representatives and the Senate.

The Act did not contain the legislative finding of an “important state interest” and did not obtain a two-thirds vote in either the House of Representatives (76 of the 120 voting yes) or the Senate (23 of the 40 voting yes). Instead, the staff analysis of the bill merely concluded that it “does not appear to require cities and counties to expend funds.” IT later conceded that it “may have an indeterminate impact on municipalities.”

It is, of course, difficult to determine the cost of this measure to municipalities because it is not known how many protests will take place in a given municipality, whether they will be “peaceful” and whether anyone will be injured or killed. However, given the new risk, municipalities that self-insure will need to set aside more funds to cover potential impacts, and those that purchase insurance could pay higher liability insurance premiums (or excess insurance). Municipalities would also incur additional training costs to implement the Act. Thus, a strong argument can be made that the enactment of the Act violated Article VII, Section 19 of the Florida Constitution.

In addition, Florida municipalities have historically been protected by governmental function immunity for planning level decisions, such as deciding how to allocate police resources. This immunity is premised upon the Separation of Powers provision of the Florida Constitution (Article II, Section 3), because, without it, the courts would be second guessing the police power and political decisions of other branches of the government. Given the constitutional foundation of governmental function immunity, municipalities could contend that it cannot be waived by the Florida Legislature and governor and thus the Act’s new cause of action is invalid.

Municipalities and insurance companies that insure local governments should carefully review the details of the new law and plan for the potential financial consequences of this new cause of action.

Insurance companies will need to evaluate the new risk in underwriting policies for local governments, and local government will need to either ensure that they have adequate coverage or otherwise budget accordingly.

Jamie A. Cole represents local officials and governments in matters that help to improve their communities and preserve home rule power.

Eric Stettin represents public and private entities throughout South Florida at both the trial and appellate levels in state and federal courts.

To read the original article in The Insurance Journal, click here.

The post The Potential Liabilities for Cities, Insurers from Florida’s New ‘Anti-Riot’ Law appeared first on Weiss Serota Helfman Cole + Bierman.

SUMMARY OF CHANGES AFFECTING MUNICIPAL GOVERNMENTS

Budget for law enforcement

• The local state attorney or a member of a municipality’s governing body may appeal a municipal budget that reduces funding of a municipal police agency to the Governor and Cabinet (the “Administration Commission”).
• The municipality has 5 working days from receipt of service of the appeal to file a reply with the Governor, after which a budget hearing will be held.
• The Governor shall then submit a recommendation to the Administration Commission, which, within 30 days, shall determine how and whether to modify the budget
• The budget, as approved or modified by the Administration Commission, shall be final.

Damages for not providing reasonable protection during a riot

• The Act creates a duty on municipalities to allow the municipal law enforcement agency to respond appropriately to protect persons and property during a riot or an unlawful assembly based on the availability of adequate equipment.
• If the governing body of a municipality breaches that duty, the municipality is civilly liable for any damages arising from personal injury, wrongful death or property damage proximately caused by the municipality’s breach. 
• Sovereign immunity is waived — the damages recoverable under the Act by a person who is killed, injured or suffers property damage is not limited by sovereign immunity caps. 

Training of municipal law enforcement agencies

The Act substantially revised several current laws and creates new laws, all of which are effective immediately as of the signing of this bill on April 19th. There is an urgent need for municipal police officers to become familiar with these changes, as they may be called upon to enforce them at any time.

The information contained in this document does not constitute legal advice.

The post Governor DeSantis Signs Combatting Public Disorder Act appeared first on Weiss Serota Helfman Cole + Bierman.

TIMING

• Funds must be spent by December 31, 2024.
• Large cities will receive direct funding from the Federal Government within 60 days.
• Small cities will receive funds through the State. The Federal Government will distribute the funds to the State within 60 days, which will have 30 days to distribute funding to the Cities.
• Funds will be distributed in two tranches.

USE OF FUNDS

• To respond to the public health emergency with respect to COVID–19.
• Replacement of revenues lost due to the COVID-19 public health emergency
• Premium pay or grants for essential workers.
• Assistance to small businesses, households, and hard-hit industries, and economic recovery.
• Investments in water, sewer, or broadband infrastructure.

The information contained in this document does not constitute legal advice.

The post President Biden Signs COVID-19 Pandemic Relief Plan Including Funding to Local Governments appeared first on Weiss Serota Helfman Cole + Bierman.

In light of the current public health emergency due to COVID-19, government and health officials are recommending that the public avoid any large public gatherings. It is possible that officials may recommend cancellation of all public gatherings. Notwithstanding the recommendation to restrict or cancel public gatherings, a local government’s governing body may still need to hold public meetings to address essential public business.

In anticipation of this possible scenario, and to avoid any uncertainty, on March 3, 2020, our firm requested that Governor DeSantis grant an exemption from Section 286.011, Fla. Stat., so that official acts may be taken during meetings where a quorum of the governing body is only telephonically or electronically present. As of the date of this memorandum, Governor DeSantis has not responded to our request; however, discussions with his office and other state officials regarding this important issue are ongoing. This memo may be updated or revised if we receive further guidance from the state, or based on other developments. At this time, the Florida Legislature continues to meet in person.

In light of the uncertainty regarding a governing body’s ability to meet at a public meeting, we are providing the following guidance to our municipal clients regarding the ability of a governing body to hold public meetings telephonically or electronically (“virtual public meetings”):

Sunshine Law Requirements.

The Florida Constitution requires that public meetings be “open and noticed to the public.” See Article I, Section 24(b) (the “Sunshine Law”). The Florida Legislature is empowered to provide by general law for an exemption of meetings from these requirements, if the law “states with specificity the public necessity justifying the exemption” and “is no broader than necessary to accomplish the stated purpose of the law.” See Article I, Section 24(c).

The Florida Legislature adopted Section 286.011, Fla. Stat., echoing the requirements of the Florida Constitution and requiring meetings to be “open to the public at all times” following the provision of reasonable notice, and requiring the keeping of minutes of such meetings. It has created limited exemptions from the Sunshine Law for meetings related to litigation, security, and collective bargaining. It has not adopted any law addressing meetings during emergencies. Virtual public meetings are not specifically authorized or prohibited by the Florida Constitution or the Florida Statutes, and no caselaw has addressed this issue.

However, the Florida Attorney General has repeatedly opined that in order to comply with Section 286.011, Fla. Stat., a local governing body must have a physical quorum present in order to hold a public meeting at which action may be taken. See, e.g., Attorney General Opinion 2010-34, August 25, 2010. These opinions, however, have been in a non-emergency context.

Restrictions on Public Gatherings

The recommendation to limit public gatherings was issued in response to a public health emergency and state of emergency declared by Governor DeSantis for the State of Florida (Executive Orders 20-51 and 20-52), as well as an emergency declared by both Miami-Dade and Broward Counties during the week of March 9, 2020. The Governor’s Executive Order 20-52 acknowledges that special duties and responsibilities placed on state, regional and local agencies in responding to the emergency may require them to suspend the application of the statutes, rules, ordinances and orders they administer. Section 4(D) of Executive Order 20-52 provides for political subdivisions within the State to “waive the procedures and formalities otherwise required . . . by law pertaining to:

1. Performance of public work and taking whatever prudent action is necessary to ensure the health, safety and welfare of the community;
2. Entering into contracts . . .;
3. Incurring obligations;
4. Employment of permanent and temporary workers;
5. Utilization of volunteer workers;
6. Rental of equipment;
7. Acquisition and distribution, with or without compensation, of supplies, materials and facilities; and
8. Appropriation and expenditure of public funds.”

The Executive Order thus authorizes a local government to take prudent action to ensure the health, safety, and welfare of the community, which could include holding virtual public meetings.

During this declared health emergency, compliance with the physical quorum and public attendance requirements could jeopardize the health of the governing body members and the general public. The declared emergency therefore impedes a governing body’s ability to meet the Attorney General’s guidance under the Sunshine Law. Literal compliance with both the health recommendations and the Attorney General Opinions could prevent the governing body from performing essential public business.

Recommendations For Substantial Compliance with the Sunshine Law During This Emergency

Local governments vary greatly in their population and scope, and a meeting of a small city commission might involve the gathering of only a few dozen persons while a meeting of a larger government might routinely draw more than 100 persons together. The circumstances of these governments will also vary; some governments may have active and documented cases of COVID-19 in or near their jurisdiction while others may not. Technological abilities vary as well. In short, different cities may make different choices in this emergency.

Some cities may desire to hold virtual public meetings in this emergency. In light of the Attorney General opinions and the purpose of the Sunshine Law, in order to conduct essential public business and meet the conflicting demands of this emergency, we believe that a governing body should be allowed to hold a virtual public meeting (with no members physically present) by: (1) properly noticing the meeting, (2) taking minutes, and (3) making the meeting open to the public through technological means that are made available to the public, such as by teleconference or online video-conference.

Matters to be discussed or decided at such a meeting should be limited to essential matters that are related to the public health, safety and welfare. Findings and a record should be made of the specific public necessity justifying the virtual public meeting.

The agenda items should be limited to those public necessities so that the meeting is, as indicated by Section 24(b) of the Florida Constitution, “no broader than necessary to accomplish the stated purpose” of having it as a virtual public meeting. At this time, we would also recommend that no land use or zoning matters requiring public hearings or quasi-judicial hearings should be handled in this manner. These recommended restrictions result in a narrowly tailored virtual public meeting that meets the intent of the Sunshine Law as fully as possible under the circumstances.

The governing body’s steps to substantially comply with the Sunshine Law’s requirements as stated above would allow for the public’s essential business to continue, and provide the public with reasonable, safe access to such a public meeting in conformance with the recommendation to avoid public gatherings.

The post Update on Sunshine Law Issues and Public Meetings appeared first on Weiss Serota Helfman Cole + Bierman.

As local governments prepare for the effects of COVID-19, it is important to recognize some of the legal challenges and implications presented by the virus for our communities. Here are some questions and answers designed to help you spot the concerns and be prepared for the impacts. Please keep in mind that we are a resource as you navigate the novel issues during this public health emergency.

Question: What do the Governor’s Executive Order No. 20-51 establishing COVID-19 response protocol and directing a public health emergency and the State Surgeon General’s Declaration of Public Health Emergency mean for Florida’s local governments?

Answer: These orders provide procedures for responding to the emergency created by COVID-19. The Department of Health is the lead state agency coordinating emergency response activities among state agencies and local governments. See Section 381.0011(7), Florida Statutes. The public health emergency allows the State Surgeon General to take actions that are necessary to protect the public health. See Section 381.00315, Florida Statutes. These actions may include declaring, enforcing, modifying, or abolishing the isolation and quarantine of persons, animals, and premises.

Question: What do these orders mean for local law enforcement agencies?

Answer: Any Department of Health order issued pursuant to Section 381.00315(4), Florida Statutes, is immediately enforceable by a law enforcement officer. See Section 381.00315(4), Florida Statutes.

Question: Do these orders also bind other local officials?

Answer: Yes. Appropriate city officials also have a duty to assist the Department of Health and its agents with enforcement. See Section 381.0012, Florida Statutes.

Question: What about the impact of this emergency on our municipal employees?

Answer: Taking a proactive approach and keeping an open dialogue with employees can help municipalities to manage this stressful period effectively. Here are our top readiness tips for coping with the creeping cloud of COVID-19:

• Communicate early and often. Send internal communications to the workforce on a regular basis and remind employees that their health and safety is of utmost importance. Internal communications may include an explanation of the signs and symptoms of COVID-19, the latest updates on COVID-19 from the Center for Disease Control (“CDC”) and tips from the CDC on preventing the spread of germs and bacteria that could lead to other illnesses, such as the flu or the common cold. If your healthcare program includes a nurse hotline, doctor-on-demand, and/or an employee assistance program, now is a good time to reiterate the availability of these resources.
• Create a healthy environment. Although it may sound obvious, municipalities should be taking necessary measures to promote a sanitary work environment. Encourage hand washing (for at least 20 seconds), provide plenty of soap and hand sanitizer, and ensure that your cleaning crew is engaged and well stocked.
• Promote remote work and/or alternate work arrangements. As the probability increases that your employees may need to stay home, it is important to ensure that the municipality can remain operational. Develop methods of operating the critical components of the municipality on a remote basis if possible, and ensure that the methods that you currently have in place are up-to-date and functional. If you operate in a unionized environment, familiarize yourself with the existing rights established under any applicable collective bargaining agreement(s) (or past-practices) that might affect the ability of bargaining unit employees to work remotely. All requests received from personnel to work remotely should be treated in a consistent and non-discriminatory manner, while keeping in mind the particular employee’s request; any known or disclosed medical condition(s); your established sick leave policies and any applicable rights created under a bargaining agreement(s); and the employee’s position and job responsibilities.
• Disclose exposure. If an employee discovers that they have been exposed to someone who has been diagnosed with COVID-19, they should call ahead to human resources (before coming to city hall) to report this information. However, it is important to maintain the confidentiality of employees’ health-related information. HIPAA remains in effect, notwithstanding any health crisis.
• Sick employees should stay home. To the extent your employees feel ill, they should err on the side of not reporting to work where they could potentially expose others. Remind employees of your established procedures for calling out sick. If an employee is unable to reach his/her initial contact, they need to be aware of the next step in communicating their out-of-work status to human resources.
• Travel precautions. If your employees are required to travel to locations where there have been confirmed cases of COVID-19, you should consider whether such travel is necessary and/or take steps to provide additional support to such employees.
• Plan ahead for less-likely scenarios. Although it may seem unlikely, consider the possibility of temporary closure of the workplace, and prepare an advance plan for the implementation of corresponding procedures.

Question: Are the requirements of the Sunshine Law affected by this emergency?

Answer: Section 286.011, Florida Statutes, requires that all municipal governing body meetings be open to the public. The Florida Attorney General’s Office has consistently interpreted this statute to require the physical presence of a quorum of the members of the local governing board. See Florida AGOs 92-44, 98-28 and 2003-41. In-person local governing board meetings may conflict with future directives from Federal, State or County health officials and could potentially promote further community spread of COVID-19. In light of this, our Firm has requested that the Governor order a limited emergency exemption from Section 286.011(1), Florida Statutes for those communities directly affected by COVID-19, so that a virtual meeting can be held via a teleconference or webinar that is open to public. Click here to view our letter sent to Governor DeSantis.

Question: What about the right to public comment at public meetings?

Answer: Section 286.0114, Florida Statutes, governs the right of the public to be heard at public meetings, and has a limited exception to the right to public comment in certain emergency situations.

Question: How might this emergency affect parks and public facilities?

Answer: Local governments should plan for potential closures of public facilities, parks, golf courses, and beaches. Issues include when to implement closures, how to enforce them, and how to provide notice to the public of the closures – and of the subsequent re-openings. It may be that special events will need to be canceled; accordingly, permits, licenses and rental agreements should be reviewed and any cancellation clauses followed.

Question: What are some recommendations for how to handle mass gatherings in this emergency?

Answer: The World Health Organization’s key planning recommendations for mass gatherings in the context of the current COVID-19 outbreak are at this link. The CDC Guidance on Mass Gatherings or Large Community Events is at this link.

Question: Could the emergency affect the enforceability of government contracts?

Answer: The relevant contractual clauses, such as force majeure, should be interpreted in consultation with the municipal attorney. Particularly important are contracted essential services such as waste management, recycling, building department functions, planning departments, transit and micro-transit services, landscape and general maintenance.

Question: Where can I look for additional information?

Answer: Here are some links to various sources of information about COVID-19 and Florida’s response to it.

1. World Health Organization
2. Centers for Disease Control and Prevention (CDC)
3. CDC Resources for First Responders
4. Florida Department of Health
5. Florida’s Response to Emerging Infectious Disease
6. Florida League of Cities

The post COVID-19 a/k/a Coronavirus: What Does It Mean for Florida Local Governments? appeared first on Weiss Serota Helfman Cole + Bierman.