Government – Weiss Serota Helfman Cole + Bierman

Preliminary Injunction Entered to Prevent Enforcement of Florida’s Overly Intrusive Financial Disclosure Requirements

Weiss Serota Helfman Cole + Bierman — Tue, 11 Jun 2024 18:10:56 +0000

Miami, FL – United States District Court Judge Melissa Damian has entered a preliminary injunction enjoining the members of the Florida Commission on Ethics from enforcing a new requirement that local Mayors and members of municipal elected bodies file a highly intrusive financial disclosure form. For the past 50 years, municipal elected officials have been required to file a Form 1 financial disclosure, which advises the public of the officials’ employers, primary sources of income and major assets.

Last year, Florida enacted a new law that requires municipal elected officials instead to file a Form 6, which requires that elected municipal officials also disclose the amount of their net worth, the amount of their income (including from their primary jobs), the value of each of their assets and the amounts of each liability. These additional disclosures have nothing to do with the officials’ duties and are not relevant in any way to possible breaches of the public trust. Judge Damian found that “it is not apparent from the record that a change from the Form 1 requirement to the Form 6 requirement was necessary nor that SB 774 is substantially related to the State’s identified interests.”

In a lawsuit filed by Weiss Serota Helfman Cole + Bierman, over 170 elected municipal officials from throughout Florida challenged the law as a violation of the First Amendment. Judge Damian ruled that the elected municipal elected officials “have demonstrated a reasonable likelihood that they will succeed on the merits of their claim” and prevented the members of the Commission on Ethics from enforcing the new requirement statewide during the pendency of the lawsuit.

“This is the most intrusive form of financial disclosure that I am aware of in the entire nation, requiring more disclosure of quintessentially personal financial information than is required of the President of the United States, members of Congress and elected officials in every other state,” said Firm Partner and Fort Lauderdale Office Managing Director Jamie A. Cole, the lead attorney representing the plaintiffs. “Most municipal elected officials receive little to no compensation for their public service, yet they are being asked to disclose their precise net worth, income and assets. This legislative overreach has already resulted in the mass resignation of about 125 municipal elected officials and, if allowed, would discourage many others from serving their communities.”

Cole added that the preliminary injunction is a significant step in the plaintiffs’ efforts to ultimately obtain a ruling that the Form 6 disclosure requirements are unconstitutional.

WSHC+B Partners Edward G. Guedes and Anne R. Flanigan, and associate Jeremy Rosner, are co-counsel with Cole in representing the plaintiffs.

Click the links below to see media coverage.

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WSHC+B Partner Jamie Cole Interviewed by CBS12 News Regarding Form 6 Requirements

Weiss Serota Helfman Cole + Bierman — Mon, 04 Mar 2024 07:55:52 +0000

WSHC+B partner Jamie Cole was interviewed by CBS12 News about the lawsuit the firm filed on behalf of dozens of municipalities throughout Florida and their elected officials with respect to the newly expanded Form 6 financial disclosure requirements.

“You have disclosed all this private information on the internet, where it will be forever, and expose yourself to potential extortion, kidnapping, or burglary,” Jamie explained. “So basically, the form is going to say I live at this address, and I have $500,000 worth of stuff in my house. It’s an invitation to burglary.”

Watch the full video here: https://cbs12.com/news/local/florida-elected-officials-challenge-financial-disclosure-law-form-6-towns-villages-and-cities-floridas-commission-on-ethics-jamie-cole-florida-march-4-2024?utm_source=rss&utm_medium=rss

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Twenty-Six Cities and Seventy-Four Elected Officials File Federal and State Court Lawsuits Challenging Florida’s Overly Intrusive Financial Disclosure Requirements

Weiss Serota Helfman Cole + Bierman — Fri, 16 Feb 2024 16:43:29 +0000

Miami, FL – Weiss Serota Helfman Cole + Bierman (WSHC+B) filed new federal and state court lawsuits challenging the legality of a new law requiring municipal elected officials to file a Form 6 financial disclosure. The complaints were filed on behalf of 26 municipalities and 74 municipal elected officials in the U.S. District Court for the Southern District of Florida in Miami and the Second Judicial Circuit Court in Leon County.

Previously, all municipal elected officials in Florida were required to complete a Form 1 financial disclosure form, which advised the public of their primary sources of income and primary assets. Under the new law, municipal elected officials have to complete and file a Form 6, which forces them to publicly disclose quintessentially private, highly personal financial information, including, among other things, the exact amount of their net worth and income and value of every asset worth over $1,000. More than 100 municipal elected officials in Florida have resigned rather than make these new required disclosures.

The plaintiffs seek a declaration that the Form 6 disclosure requirements violate the First Amendment to the United States Constitution and the privacy clause of the Florida Constitution, along with injunctive relief.

“This is the most intrusive form of financial disclosure that I am aware of in the entire nation, requiring more disclosure of personal financial information than is required of the President of the United States, members of Congress and elected officials in every other state,” said Firm Partner and Fort Lauderdale Office Managing Director Jamie A. Cole, the lead attorney representing the plaintiffs. “Most municipal elected officials receive little to no compensation for their public service, yet they are being asked to disclose their precise net worth, income and assets. This legislative overreach has already resulted in the mass resignation of municipal elected officials and, if not overturned in court, will discourage many others from serving their communities.”

WSHC+B Partners Edward G. Guedes and Anne R. Flanigan are assisting Cole in representing the plaintiffs.

Click the links below to see media coverage.

WWSB ABC7 News – https://www.mysuncoast.com/2024/01/29/over-100-elected-officials-florida-step-down-ahead-new-form-6-requirements/?utm_source=rss&utm_medium=rss

Sun Sentinel – https://www.sun-sentinel.com/2024/01/27/freaking-out-over-form-6-at-city-hall-steve-bousquet/?utm_source=rss&utm_medium=rss

Palm Beach Daily News – https://www.palmbeachdailynews.com/story/news/local/2024/01/11/palm-beach-town-to-participate-in-lawsuit-against-controversial-new-finance-law-florida-news/72171571007/?utm_source=rss&utm_medium=rss

Islander News – https://www.islandernews.com/news/keybiscayne/plaintiffs-lining-up-to-join-key-biscayne-lawsuit-challenging-form-6-law/article_cf66b522-ca14-11ee-af67-638228d705cb.html?utm_source=rss&utm_medium=rss

Florida Today – https://www.floridatoday.com/story/news/politics/2024/02/08/melbourne-joining-challenge-to-new-financial-disclosure-requirements-for-public-officials/72309815007/?utm_source=rss&utm_medium=rss

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Anne Flanigan and Daniela Cimo co-author an article in the 2023 spring newsletter of the City, County and Local Government Law Section of the Florida Bar

Anne Reilly Flanigan — Thu, 11 May 2023 14:50:47 +0000

WSHC+B attorneys Anne Flanigan and Daniela Cimo co-authored an article published in the 2023 spring newsletter of the City, County and Local Government Law Section of the Florida Bar which discusses how recent authority in Florida and the Eleventh Circuit has analyzed public decorum rules and their enforcement.

“As local governments transition away from fully remote proceedings, many are finding that the uptick in the public’s local government participation has not waned. Thus, returning to the dais in person presents a prime opportunity to revisit public decorum rules and their application at public meetings.”

Anne is a civil litigator whose practice includes federal civil rights matters, personal injury, contract disputes and real property claims. She actively practices in both federal and state courts.

Daniela is an associate in the Firm’s Government Division and focuses her practice on representing governmental entities in land use, zoning, real estate, affordable housing and general governance matters.

Read the full article here.

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Weiss Serota Helfman Cole + Bierman Secures $1.5 Million Arbitration Ruling Against FEMA

Weiss Serota Helfman Cole + Bierman — Tue, 25 Oct 2022 14:51:55 +0000

Firm’s Mitch Bierman, Justin Luger and Roger Pou successfully represent the Village of Pinecrest in obtaining Hurricane Irma damage reimbursements

Miami, Fla. – Weiss Serota Helfman Cole + Bierman (WSHC+B) successfully navigated a new federal arbitration process to win a $1.5 million ruling against FEMA on behalf of the Village of Pinecrest. Mitch Bierman, Justin Luger and Roger Pou represented the Village in obtaining reimbursements for damages caused by Hurricane Irma in 2017.

This ruling and form of arbitration are expected to have significant impacts going forward as claims related to Hurricane Ian are filed and evaluated.

A U.S. Civilian Board of Contract Appeals panel ruled that the Village was wrongfully denied virtually all public assistance funding requests from FEMA. The Village’s claims revolved around various categories of debris clearance and removal activities performed between October and December 2017, in response to damage caused by Hurricane Irma on Sept. 10, 2017.

Federal arbitration can now be sought through this Board as a last resort for claims of at least $500,000 in densely populated areas and at least $100,000 in certain areas with a population of under 200,000.

“We are thrilled to secure an appropriate outcome for the Village of Pinecrest through this new arbitration procedure,” said Luger. “The Village’s well-documented claims were disregarded by FEMA at every turn. It is heartening to know that there is now an impartial avenue to pursue justified and documented disaster relief reimbursements.”

Bierman, Partner and Miami Office Managing Director at WSHC+B, is Village Attorney for the Village of Pinecrest.

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Justin D. Luger and Roger C. Pou discuss their recent win against FEMA which secured a reimbursement of more than $1.5 million in damages caused by Hurricane Irma in 2017

Weiss Serota Helfman Cole + Bierman — Wed, 12 Oct 2022 17:30:16 +0000

WSHC+B attorneys Justin Luger and Roger Pou were featured in an article by the Daily Business Review in which they discussed their recent win against FEMA.

Justin and Roger secured a reimbursement of more than $1.5 million in damages caused by Hurricane Irma in 2017 for the Village of Pinecrest.

After Pinecrest was repeatedly denied reimbursement for damages, Justin and Roger used a fairly new arbitration process to win the case. In the wake of Hurricane Ian, these same strategies may be beneficial for the claims that are likely to ensue in the near future.

“Even if you dot your I’s and cross your T’s, they are looking for every little thing and any reason whatsoever to deny any amount of money,” Justin said. Roger suggests for municipalities to “take a very long look and prepare for these hurricanes and other natural events, because that’s the time to make your case, and if you make it now and if you need to arbitrate, you’ll be putting your best foot forward.”

Justin and Roger both work closely with government entities. Justin handles complex commercial, business and municipal/government litigation. Roger focuses his practice on representing municipalities on general matters, including drafting contracts and legislation.

Read the full article in the Daily Business Review here.

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Jamie Cole and Candice Balmori Discuss Mediation and Local Government

Jamie Cole — Tue, 20 Sep 2022 18:44:13 +0000

This article originally appeared in the Daily Business Review on September 20, 2022, and was written by Jamie A. Cole and Candice Balmori.

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.

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WSHC+B team successfully defended the Village of Key Biscayne in Miami’s Third District Court of Appeal

Weiss Serota Helfman Cole + Bierman — Wed, 20 Jul 2022 14:54:06 +0000

WSHC+B founding partner Joseph Serota and partner Laura Wendell successfully defended the Village of Key Biscayne before the Miami’s Third District Court of Appeal, resulting in the advancement of a $100 million General Obligation Bond Referendum that will facilitate important infrastructure projects for the Village to protect against the effects of sea-level rise and hurricanes.

“The trial court decision and the appellate decision will now permit the bond process to proceed and the very important needs of the Village to improve its infrastructure to be addressed,” Joe said to Islander News.

An accomplished litigator and trial lawyer with dozens of successful trials and appeals to his credit, Joe represents private and public clients across a broad range of subject areas. Laura is a Florida Bar Board Certified attorney in Appellate Practice and represents private and municipal clients in state and federal courts.

WSHC+B appointed Interim Attorney for Town of Kenneth City

Weiss Serota Helfman Cole + Bierman — Tue, 19 Jul 2022 19:19:07 +0000

Weiss Serota Helfman Cole + Bierman has recently been appointed Interim Attorney for the Town of Kenneth City, located in southern Pinellas County, Florida. Attorneys Anthony C. Soroka and Sarah L. Johnston will lead the WSHC+B team serving as Interim Attorney. WSHC+B currently serves as municipal or county attorney to more than 20 local government entities across the state and acts as outside or special counsel to more than 80 public entities. The firm regularly represents government entities in all facets of local government law, including administrative matters and proceedings, drafting resolutions and ordinances, code enforcement, ethics laws, land use and zoning, public records and Sunshine Law matters, right-of-way programs, civil litigation, labor and employment, pension laws, real estate, public finance, and contracting, among others.

The Town of Kenneth City was incorporated in 1957 and has a population of approximately 5,000 residents. As Interim Attorney, WSHC+B will provide legal counsel to the Mayor, Town Council and staff of the Town. WSHC+B is honored to be of service to the citizens of Kenneth City, Florida.

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Alicia Gonzalez discusses Florida’s first appellate court decision involving pandemic takings issues

Alicia Gonzalez — Tue, 12 Jul 2022 13:35:32 +0000

This article originally appeared in the Daily Business Review on July 12, 2022, and was written by Alicia Gonzalez.

The first COVID-19 infection in the United States was confirmed on Jan. 20, 2020. Shortly thereafter came a downward spiral for businesses and property owners alike when government regulations essentially shut down our entire society due to a virus. With this unprecedented and unique situation came novel legal issues in all areas of the law—particularly in the area of government takings. Government-mandated shutdowns of businesses and eviction stays on landlords raised the question: How far can government regulation go in such exigent circumstances without resulting in a compensable taking? Florida’s first appellate decision on this issue was released this month, and it is anticipated that it will not be the last of its kind given the various contexts in which these issues can be raised.

In Orlando Bar Group v. Desantis, 5D21-1248, 2022 WL 1814256, at *1 (Fla. 5th DCA June 3, 2022), the plaintiffs were a group of bar owners that were severely restricted in alcohol sales during the pandemic due to state and local emergency orders. The plaintiffs claimed that the temporary closure of their bars, and later restrictions on operations of their bars, constituted governmental takings and entitled them to compensation. The defendants, which consisted of the governor, the Florida Department of Business and Professional Regulation (DBPR), and Orange County, moved to dismiss the claim for failure to state a claim. The trial court granted the motion to dismiss with prejudice, and the plaintiffs appealed. On review, the Fifth District Court of Appeal affirmed the dismissal.

Although the plaintiffs pleaded every applicable iteration of a taking, none prevailed. The plaintiffs first attempted to claim that the COVID regulations amounted to a physical appropriation of their properties by interfering with their right to permit others to enter on their properties. Regulations that permit a physical appropriation of property—that allow third parties to enter the property without permission—are considered per se takings. The appellate court agreed with the trial court, however, that there was no per se taking because the COVID regulations did just the opposite. Namely, the regulations prohibited any physical entry onto the owners’ properties by any third parties, thus not fitting into the existing per se takings framework.

The plaintiffs also attempted to plead a categorical taking, claiming that the regulations denied them of all economically beneficial uses of their properties even though the prohibitions were only temporary. Generally, if a property owner is able to show that they have been deprived of all economically beneficial uses (100% of all value in the property), a taking has occurred. The appellate court found that, although the regulations had a significant economic impact on the plaintiffs’ businesses, the plaintiffs did not adequately plead a categorical taking because the regulations were only temporary. The sale of alcohol was only prohibited for seventeen days, after which the businesses were permitted incrementally to return to limited sales and operations. Within six months, the plaintiffs’ businesses completely reopened. The appellate court found that this cannot, as a matter of law, amount to a deprivation of all economically beneficial uses. Notably, it is unclear how this claim would have turned out if any of the businesses had, in fact, been forced to permanently close their doors due to the significant economic impacts of the COVID regulations.

Finally, the plaintiffs claimed that the regulations amounted to a regulatory taking under Penn Central v. New York City, 438 U.S. 104 (1978) balancing test, which considers the economic impact of the regulation, the regulation’s interference with investment-backed expectations, and the character of the government action, and balances these factors to determine if the government action results in a taking. The appellate court ultimately concluded that there was no taking. focusing predominantly on the plaintiffs’ investment-backed expectations and the character of the government action. The COVID regulations concerned the sale of alcohol, which is a highly regulated industry, and the plaintiffs should have expected that they will sometimes be severely regulated. Moreover, the restrictions amounted to an exercise of government police powers in an effort to limit the spread of what the appellate court described as a “then poorly understood, highly contagious and deadly virus.” In line with other COVID decisions throughout the country, the Fifth District found this was a compelling enough government interest that it weighed against a finding the plaintiffs’ properties had been taken.

Although this is the first appellate COVID takings decision in Florida, it is certainly anticipated that it will not be the last. A survey of cases throughout the country reveals that the context in which takings law can be applied to address issues raised by COVID regulations are varied, and surprisingly do not always involve a claim against the regulating government entity.

In one case, a tenant terminated its leases under the lease’s eminent domain termination clause, alleging that COVID restrictions resulted in a taking thus permitting the termination. In another instance, a landlord that was prohibited by COVID regulations from evicting its tenant tried to claim that the restrictions resulted in a taking of its property. And, in yet another case, a taxpayer claimed that the IRS’s automatic application of the taxpayer’s income tax refund to partially offset the taxpayer’s defaulted federal student loans was an illegal exaction (which is, in essence, a taking) because the Coronavirus Aid, Relief, and Economic Security (CARES) Act temporarily suspended such collection actions. In all cases, the judicial result was the same— there was no taking. The reasoning for the decisions varied drastically. Some courts followed the Fifth District’s approach in Orlando Bar Group, applied the traditional takings tests, and found that no taking occurred. Other courts relied on the “doctrine of necessity,” pursuant to which in exigent circumstances, the government may destroy private property with immunity when doing so could save the property and lives of others.

Although courts have thus far found that challenged COVID regulations have not resulted in a taking, there must be a line that cannot be crossed, even with respect to COVID regulations, and it will be interesting to see where Florida appellate courts draw that line. Much like the rampant virus, this issue may evolve with time.

Alicia Gonzalez is a partner at Weiss Serota Helfman Cole + Bierman and represents private and public sector clients in litigation involving real property and local governments.

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

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