Pensacola, Florida
Sunday December 17th 2017

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Hayward’s Hide And Seek

 

By Rick Outzen and Duwayne Escobedo

Pensacola Mayor Ashton Hayward has not hesitated to seek the advice and counsel of outside attorneys, and he has blocked any efforts by the Pensacola City Council to curb or regulate his administration’s legal fees that totaled $1,428,814 for the last fiscal year, according to the schedule provided the council by Chief Financial Officer Dick Barker.

The FY 2016 legal fees increased 29 percent ($318,622.69) over the prior year, and the upward trend didn’t fade during the first three months of FY 2017.  According to Barker, the first quarter’s legal fees, $335,719, were nearly double the fees paid for the same period last year.

The largest beneficiary of the mayor’s need for legal help has been local law firm Beggs & Lane, whose billing jumped from $220,108 in FY 2016 and $267, 837 in FY 2015 to $540,613 for the fiscal year that ended Sept. 30, 2016.  For FY 2017, Beggs & Lane has billed $144,339 through February.

The Pensacola City Council has no documentation on what services the taxpayers received for the more than half a million paid last year to Beggs & Lane. On his Schedule of Legal Fees, Barker described the nature of services provided merely as “Contract and Real Estate Law.”

Through a public record request, Inweekly received the law firm’s invoices since July 1, 2016, which totaled $402,554.  Three lawsuits have accounted for 62 percent of the firm’s fees for the eight-month period:

ECUA Wells @ Airport: $108,834
Pitt’s Slip Marina: $69,813
Bayview Park Cross: $69,300
Total:  $247,947

Inweekly reporter Duwayne Escobedo called and left messages for Barker, but the chief financial officer did not return the call. Vernon Stewart, Hayward’s public information officer, told Escobedo that Barker declined to provide additional information. He suggested Inweekly visit cityofpensacola.com and read the quarterly unaudited financial reports.

Expensive Cases
Last year, Mayor Hayward filed for a Declaratory Judgment in Federal Court regarding three production wells that ECUA operates on Pensacola International Airport property. The Federal Aviation Administration (FAA) communicated to the city that ECUA must pay for the use of the airport property where the three water-producing wells are located.

The utility has argued it owns the land around two of three wells and shouldn’t pay for its use or the water extracted from them.

“We haven’t been able to come to an agreement with ECUA on what the city’s obligations are,” the mayor said in a press release, “The FAA tells us that, if ECUA doesn’t pay a concession fee, the city could be penalized for revenue diversion. We just want the court to resolve the legal issues and to tell us what our obligations are.”

According to invoices received by Inweekly, Steinmeyer Fiveash LLP, a Tallahassee law firm, also has worked on this litigation. Beggs & Lane’s share of the litigation has been $108,834.

Around the same time, The American Humanist Association’s Appignani Humanist Legal Center and the Freedom From Religion Foundation (FFRF) filed a lawsuit on behalf of Pensacola residents Amanda Kondrat’yev, Andreiy Kondrat’yev, Andre Ryland and David Suhor to challenge the 25-foot tall Christian cross in the city’s Bayview Park.

“Federal courts have made abundantly clear that the government’s display of a Christian cross on public land violates the Establishment Clause of the First Amendment,” said Monica Miller, senior counsel with the Appignani Humanist Legal Center. “This cross sends a clear and exclusionary message of government preference for Christianity over all other religions.”

When the cross issue first came up in 2015, Mayor Hayward posted on the city’s Transparent Pensacola page, “We want to respect all religions without showing preference to any. Personally, I hope there is always a place for religion in the public square. I surely don’t want to remove it; however, this is a question we are going to refer to our attorneys.”

That statement has since been removed from the site. Hayward has paid, as of Feb. 28, Beggs & Lane $69,300 to handle the issue.

On April 1, 2016, First Judicial Circuit Court Judge Scott Duncan ruled against the city regarding millions in additional rent for Pitt’s Slip that Mayor Hayward said were due to the city. Judge Duncan later denied Hayward’s request for a rehearing, and the mayor has appealed the ruling.

From July 2016 through January 2017, Beggs & Lane invoiced Hayward $69,813 to handle the appeal and other aspects of the litigation.

Blocked Three Times
In June 2014, the Pensacola City Council tried to establish guidelines for how and when Mayor Hayward purchased outside legal services. The News Journal reported that the mayor had spent nearly $2 million with 40 firms from November 2012 through May 2014.

Councilwoman Sherri Myers proposed two ordinances that the council passed unanimously. Mayor Hayward vetoed both. He said that the City Attorney and Chief Financial Officer had advised him that the ordinances would “create significant administrative and logistics issues for the Finance and Legal departments as well as for any City department which utilizes legal services.”

Hayward committed to providing a schedule of legal fees every quarter that listed firms used, total fees paid to each, and the nature of the services rendered.

This past summer, Myers became concerned that the mayor’s spending on outside legal firms had gotten out of hand again after the daily newspaper reported Hayward had spent over $65,000 investigating the city’s fire chiefs. She proposed an ordinance that would have required council approval of legal contracts for more than $10,000.

Myers said that her review of the invoices for legal services revealed most firms charged $295 per hour for their attorneys, but some were significantly higher.

“We have some contracts where we’ve agreed to pay, for instance, natural gas attorneys starting at $425 to $625 an hour,” she said at the meeting. “I saw one contract where we’ve agreed to pay a law firm $900 an hour.”

CFO Barker countered with a presentation that showed the city’s legal spending had risen only marginally since 2009. He may not have known the city would be billed another $602,684 from July to September. At the time of Barker’s representation, the city had only paid $826,130 over the first three-quarters of the fiscal year.

Myers, Councilwoman Jewel Cannada-Wynn, and Council President Charles Bare were the only ones who voted for the ordinance, and the bill failed.

“That’s the hardest thing to figure out, who’s doing what and what the charge is,” Bare told his fellow council members. “There are lots of people apparently suing the city, or there are lots of things the city’s involved in. I really have no idea who’s suing us.”

Inweekly called and left messages for City Attorney Lysia Bowling. The paper wanted to ask her if the city had bid out legal services, negotiated rates, or got estimates for legal services on specific issues. Bowling did not return the calls. Stewart said that she had refused to provide any answers.

In September 2016, the city council tried again to learn what Mayor Hayward was getting from the outside law firms. The board asked to meet privately as a body with City Attorney Lysia Bowling for an update on the status of all pending litigation.

Bowling refused. She told the council that state law doesn’t provide a “blanket exemption” to the open meeting requirement for attorney-client discussions.  It’s the attorney who must request the “shade” meeting to discuss negotiations and strategy. She advised the council members to meet with her about pending litigation individually.

Inweekly asked County Attorney Alison Rogers about “shade” meetings, which are governed by Florida Statute 286.01 subsection 8 (a-e). She said. “You can’t use it to cover or talk about something else outside the public.”

The law does require a court reporter to record the shade meeting on the pending litigation being discussed, and the transcript must be released once the case is settled.

The county uses “shade” more than usual because of litigation over the Escambia County Detention Center exploded after the April 2014 floods. Rogers said some legal decisions just couldn’t be made without getting all five of the commissioners together. However, the shade law is strict on who can attend. It is usually the attorneys involved in the case, the governing body and the county administrator.

Rogers said that could be tricky when litigation involves the need for a public works official or county engineer. She told Inweekly, “You can’t take witnesses or other staff or people there.”

No Help Allowed Either
Last month, the City Council took action to begin the hiring process for a budget analyst. City voters approved in 2014 a charter amendment that gave the council the power to hire such a position. In August 2016, the council passed an ordinance establishing the position, its qualifications, duties and pay range.

The FY 2017 city budget, which the council approved and the mayor let stand without any line-item vetoes, includes the cost for the position. The budget analyst could track revenue and expenditures for the council and could give a more detailed report on legal costs.

However, Mayor Hayward vetoed the actual hiring of the budget analyst, blocking the council from filling the position.

“…the City of Pensacola currently has full-time staff that provides analysis of the City’s budget,” wrote the mayor in his veto explanation. “There are more pressing needs with the City of Pensacola that would directly benefit the taxpayers. Therefore, I am vetoing this action.”

The salary range for the budget analyst was $26,270 to $43,868. Beggs & Lane billed the city $70,407 in January alone.

Councilwoman Sherri Myers questioned the mayor’s motivation for the veto.

She said told Inweekly, “What is he trying to hide? Why is he threatened by having an independent council budget person look at the budget? What would we find? Are his attorney fees to defend himself against the fire chief’s lawsuit hidden in the budget? What is it he doesn’t want us to know?”

The Pensacola City Council voted to override the veto at a special meeting held on April 10.

Inweekly tried to discuss the city’s legal fees with Mayor Hayward. Our reporter called the mayor’s office and his cell phone. He, too, did not return the calls and declined, through PIO Stewart, to answer any questions.

 

Outside Legal Fees

2015 2016 2017
Quarter 1 $239,303 $171,949 $335,720
Quarter 2 $168,326 $351,285
Quarter 3 $259,284 $302,896
Quarter 4 $443,279 $602,684
Total $1,110,192 $1,428,814
 

Source: cityofpensacola.com

Note: FY 2015 excludes monthly checks to City Attorney Jim Messer

 

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Disclaimer: Ray Russenberger owns Marina Management, which leases Pitt’s Slip from the City of Pensacola. Collier Merrill’s Great Southern Restaurant Group subleases from Marina Management. Neither Russenberger nor Merrill owns more than five percent of Inweekly or has any control over its editorial content.