Help & information    View the list of Transcripts


10:34:59
TAMPA CITY COUNCIL
THURSDAY, DECEMBER 13, 2007
10:30 A.M. SESSION

DISCLAIMER:
The following represents an unedited version of
realtime captioning which should neither be relied
upon for complete accuracy nor used as a verbatim
transcript.
The original of this file was produced in all capital
letters and any variation thereto may be a result of
third party edits and software compatibility issues.
Any person who needs a verbatim transcript of the
proceedings may need to hire a court reporter.

>>GWEN MILLER: City Council is getting ready to begin
its closed session.
Roll call.
[Roll Call]
Notice is hereby given --
>>MARTIN SHELBY: Please forgive me for interrupting.
As you know, on your agenda there's an item at 11:00
that is scheduled.
We then have to wait for 11:00 to take action but as a
courtesy, I think we should at least inform the public

of what will ultimately be our recommendation and
council's intention at 11.

10:41:36 >>DAVID SMITH: Good morning.
10:42:24 David Smith, city attorney.
10:42:25 It's my understanding that councilwoman Mary Mulhern,
10:42:28 despite her considerable efforts, was unable to
10:42:31 complete the review of the record, and as such she
10:42:33 feels she is unable to go forward today, and it would
10:42:36 be my recommendation that if a council member has not
10:42:39 had an opportunity to review the record we do not go
10:42:41 forward because the decision has to be based on the
10:42:44 record, and we cannot take any action till 11:00.
10:42:52 But we do have people here, even though they can't be
10:42:53 heard on the issue, they are here to listen to what
10:42:55 was going to happen to Citivest, and we cannot
10:42:59 formally tell them we are not going to hear Citivest.
10:43:04 We are still in an open session.
10:43:06 We have to have an open session in order to start the
10:43:07 closed session anyway.
10:43:09 But what we thought we would do as a courtesy to those
10:43:12 individuals who are here, also Citivest, is at least

10:43:15 indicate the situation so they do not hang around for
10:43:18 the Citivest closed session -- excuse me, the Magyar
10:43:23 closed session to end and then just be told --
10:43:28 >>JOHN DINGFELDER: Your recommendation for continuance
10:43:30 at 11:00 or 11:15 is going to be what?
10:43:34 >> I would say the 20th, next week.
10:43:38 >>MARY MULHERN: My problem was that I couldn't get the
10:43:41 first half of the hearing, the DVD to play.
10:43:47 And then when I checked, we couldn't find one that was
10:43:49 working.
10:43:50 So I'm not sure if the other people were able to watch
10:43:52 the whole thing.
10:43:54 Were you able to?
10:43:55 Okay.
10:43:56 So maybe I can get your first one. So I need to watch
10:43:58 that.
10:43:58 But also, you know, we have that big box Sandy brought
10:44:02 in of documents.
10:44:05 If I need to read all of that, if we need to do it,
10:44:11 the more time the better.
10:44:12 But if this is something that you feel like we need to
10:44:15 get done I can do it.

10:44:16 >>DAVID SMITH: City Council members need to review
10:44:22 enough of the record so they have an appropriate basis
10:44:23 to render a decision.
10:44:24 >>MARY MULHERN: I think next week will be fine.
10:44:29 If I find after looking through some of the documents
10:44:31 and seeing the other tapes that it's not, I'll let you
10:44:36 know as soon as possible.
10:44:38 >>DAVID SMITH: And although we cannot currently take
10:44:39 action on this, I believe it would be safe for people
10:44:42 to assume that we are going to postpone Citivest for a
10:44:46 week.
10:44:46 I know you can't respond to that, you have got to wait
10:44:49 till 11:00, but at least we provided that information
10:44:53 to those persons. They are certainly welcome to stay
10:44:56 around if they choose to.
10:44:58 That having been said, we now need to move onto the
10:45:01 Magyar closed session which we need to commence in an
10:45:04 open session.
10:45:04 I believe the chairwoman has a package to read in that
10:45:07 regard.
10:45:07 >> Notice hereby is given that Tampa City Council is
10:45:10 going into closed session pursuant to session 286-0118

10:45:16 Florida statutes for approximately one half hour.
10:45:19 The meeting will convene in City Council chambers.
10:45:22 The council will discuss settlement negotiations,
10:45:25 strategy sessions related to the litigation,
10:45:28 expenditures for the case of Magyar versus City of
10:45:30 Tampa, case number 00-1147.
10:45:34 The meeting will be attended by City Council chair
10:45:37 Gwen Miller, council members Mary Mulhern, Linda
10:45:40 Saul-Sena, John Dingfelder, Tom Scott, Charlie
10:45:43 Miranda, Joseph Caetano, David Smith, Jerry Gewirtz,
10:45:49 Gary Glassman and Marty Shelby. Following closed
10:45:53 session, City Council will convene in open session in
10:45:55 City Council chambers so the chair can announce
10:45:57 termination of the closed session and the council will
10:45:58 take any formal action deemed necessary.
10:46:03 >>DAVID SMITH: Do we need a motion of approval, Marty?
10:46:06 >>MARTIN SHELBY: Either that or by unanimous consent
10:46:08 to go into closed session.
10:46:09 >>JOHN DINGFELDER: So moved.
10:46:11 >> Second.
10:46:11 (Motion carried)
10:46:14 >>JOHN DINGFELDER: If we stay here in this room we

10:46:16 need to make sure the TV is off and the audio.
10:46:20 >>DAVID SMITH: Correct.
10:46:21 We are now moving into closed session.
10:46:23 (City Council in closed session)



















10:46:32 Tampa City Council.
11:05:01 (Roll call)
11:07:12 >>GWEN MILLER: Pursuant to section 286-0118, Florida
11:07:17 statutes, the closed session to discuss the case of
11:07:19 Magyar versus City of Tampa case number 00-1147 is
11:07:22 hereby terminated.
11:07:24 We will now hear final action by the council members.
11:07:29 >>DAVID SMITH: Just to put the information on the
11:07:31 record, because I'm encouraging each of you until this
11:07:36 case is settled to avoid conversations with the press
11:07:40 and others, this case, pursuant to hopefully a motion
11:07:43 you are going to make will be settled but it needs to
11:07:46 be dismissed and a court needs to approve it, so until
11:07:49 that occurs, these communications are confidential,
11:07:52 and the previous communications are confidential.
11:07:55 What we are putting on the record now obviously is
11:07:57 not.
11:07:57 What I want to do in order to answer some of the
11:07:59 questions in advance that you would receive is to
11:08:02 indicate what the scope of the settlement agreement
11:08:04 is, that we are proposing, I guess the council needs
11:08:12 to make a motion to approve the settlement agreement

11:08:15 as summarized -- excuse me, approve the settlement
11:08:18 based on the settlement memorandum derived through the
11:08:21 mediation process.
11:08:22 >> So moved.
11:08:23 >> Second.
11:08:23 >>GWEN MILLER: Motion and second.
11:08:25 (Motion carried)
11:08:28 >>DAVID SMITH: To save you having to answer many
11:08:30 questions I will briefly summarize that.
11:08:31 And the settlement terms are as follows: First of
11:08:35 all, the case is settled in its entirety.
11:08:37 It includes the claims against the police officers,
11:08:40 and the claims against the city for the multiple
11:08:43 counts that were asserted.
11:08:44 The city will pay a total of $3,500,000.
11:08:48 We will make a payment of $1,750,000 within 90 days.
11:08:53 We will make the additional payment of $1,750,000 on
11:08:57 or before December 1st of 2008.
11:09:02 The agreement is subject to court approval.
11:09:06 I think that covers the essential requirements.
11:09:08 And I would again advise you, until we hear final
11:09:14 dismissal, to refrain from comment.

11:09:18 >>THOMAS SCOTT: Just for the record, Mr. Smith, thank
11:09:20 you again for your work, and in particular your
11:09:23 assistance for working hard on this case, and that's
11:09:29 why it's so important to have good, legal
11:09:31 representation.
11:09:32 >>DAVID SMITH: Thank you, sir.
11:09:35 >>THOMAS SCOTT: And it does not come without a price
11:09:38 either.
11:09:38 >>GWEN MILLER: Now at 11:00 we need to make a motion
11:09:41 to continue.
11:09:41 >>DAVID SMITH: Before we do that, I need to provide a
11:09:44 caveat.
11:09:45 I sent to each of you a memorandum.
11:09:47 I received a copy of a letter that was sent to each of
11:09:49 you by, I believe, Elizabeth Johnson and others in the
11:09:53 area.
11:09:57 We are now on the 11:00 issue.
11:09:59 The memorandum I sent to you advises you that that
11:10:01 communication is ex parte and is outside the record.
11:10:04 And as such you may not consider it.
11:10:06 Do not review the DVD she included.
11:10:09 I did not get a copy of the DVD.

11:10:10 But that is inappropriate.
11:10:14 We cannot do that.
11:10:15 We can only deal with what exists at the time the writ
11:10:19 of certiorari was sent.
11:10:21 Additional argument and evidence is inappropriate.
11:10:26 I sent you a memorandum to that effect and I am
11:10:28 reaffirming that request.
11:10:32 If you do it, you violate the law, so please don't do
11:10:34 that.
11:10:36 That having been said, I think we need to talk about
11:10:39 the situation now and see where we are at.
11:10:41 >>MARY MULHERN: Can I ask a question regarding that?
11:10:44 I haven't seen the e-mail or memo or DVD.
11:10:47 But why is this -- could you explain why it's outside
11:10:50 the --
11:10:52 >>DAVID SMITH: Yes, ma'am.
11:10:52 Essentially the writ of certiorari is an appeal based
11:10:56 solely on the record.
11:10:57 No new evidence and no new argument is permitted.
11:11:03 If you receive any information outside the record,
11:11:05 that taints the process and could make the process
11:11:07 invalid, and we would have a major problem.

11:11:09 So that's why we told you, you need to look at the
11:11:11 record as it exists. And that's what you need to
11:11:13 limit yourself to.
11:11:17 Based upon that record and the clarification of the
11:11:19 standard provided by the trial court and affirmed by
11:11:22 the DCA, District Court of Appeal.
11:11:24 That's how we proceed.
11:11:25 >>MARY MULHERN: You looked at the DVD and it is not
11:11:31 part of the record?
11:11:32 >> No, I did not look at the DVD.
11:11:34 The very assertion of argument itself is outside of
11:11:37 the record, so even to reargue a portion of the record
11:11:39 is an inappropriate ex parte communication.
11:11:43 You are limited to the record and the argument made
11:11:47 below, so you can't hear new argument.
11:11:50 Even if it repeats the same argument, you can't do
11:11:53 that, because the nature of ex parte is it's a
11:11:58 communication, the other side doesn't have a chance to
11:11:59 rebut.
11:12:00 >>MARY MULHERN: I understand that, but how do we know
11:12:02 what it is the DVD is showing is not part of the
11:12:07 record?

11:12:09 >>DAVID SMITH: It's irrelevant.
11:12:10 The fact -- you cannot receive any communication.
11:12:14 >>MARY MULHERN: Okay.
11:12:17 The communication --
11:12:18 >>DAVID SMITH: Any communication.
11:12:20 I'm glad you did not see that, that you put that on
11:12:21 the record you have not seen that.
11:12:22 And I trust that no one here has reviewed that DVD at
11:12:25 this juncture.
11:12:27 Good.
11:12:31 >>JOSEPH P. CAETANO: Mr. Smith, where were these
11:12:32 mailed to, the DVDs and the record?
11:12:35 >>DAVID SMITH: I got a copy of the letter from Ms.
11:12:38 Johnson without the enclosure.
11:12:39 So I assume they were mailed to the offices at council
11:12:43 chambers.
11:12:43 >> I have not seen anything.
11:12:47 >> I have not viewed them.
11:12:48 The only DVDs I have seen are the ones given to me
11:12:51 by the city to review that case.
11:12:54 And I did watch that DVD.
11:12:59 >>GWEN MILLER: We need a motion to reschedule to what

11:13:02 date?
11:13:02 >>DAVID SMITH: I would hope we could do this on the
11:13:04 20th because it's been a very long period of time.
11:13:06 >>GWEN MILLER: What time?
11:13:09 >>DAVID SMITH: I don't know what the schedule looks
11:13:11 like on the 20th.
11:13:13 >>MARTIN SHELBY: Counsel, if you make the decision to
11:13:14 do a time certain, you can stop your business, or as
11:13:18 close as possible. Do we have anything set for a time
11:13:22 certain, Mrs. Marshall?
11:13:29 >>LINDA SAUL-SENA: Madam Chairman, what about 1:30?
11:13:31 >> Mrs. Marshall is going to check first.
11:13:32 >> She's going to read off 15 things. Mrs. Marshall,
11:13:37 why don't you make a copy of all our future meetings
11:13:40 available to the chairman so she has it in front of
11:13:42 her and you don't have to read it all out loud.
11:13:44 >> I can summarize what you have. At 9:00 you have
11:13:46 eleven staff reports.
11:13:48 9:00 you have a continued closure.
11:13:49 9:30, 13 plan amendments.
11:13:52 9:30, 23 second readings.
11:13:56 You have approximately 13, 14, about 16 other public

11:14:00 hearings set for 10:00 and three of those are being
11:14:02 withdrawn.
11:14:04 >>THOMAS SCOTT: Well, in that this item only requires
11:14:07 a vote of council, no other public input is needed, I
11:14:14 agree what you said about time certain at 1:30 so we
11:14:17 take it up first thing after lunch and get it out of
11:14:19 the way and move on.
11:14:20 >>LINDA SAUL-SENA: So moved.
11:14:22 >>MARY MULHERN: I have a question.
11:14:25 There's no public hearing, but will there be
11:14:27 discussion?
11:14:28 >>DAVID SMITH: No, ma'am.
11:14:29 >>MARY MULHERN: Is there a presentation from you?
11:14:32 Or we just vote?
11:14:34 >> Essentially you are reconvening as an appellate
11:14:37 body who received instructions from a higher court as
11:14:40 to an error in the process, in your reconvening as a
11:14:44 public body, take action consistent with that
11:14:45 instruction.
11:14:45 >>MARY MULHERN: So based on the -- the tape that I'm
11:14:52 going to watch, we are revoting basically according to
11:14:56 that record what happened.

11:14:57 >>DAVID SMITH: Yes, ma'am.
11:14:58 Strictly limited to the record.
11:14:59 >>GWEN MILLER: We have a motion and second.
11:15:02 >> I'm sorry, I just want to have a comment with Mr.
11:15:06 Smith.
11:15:07 With regard to general public comment on the agenda,
11:15:12 this being a regular meeting, shall we opine as to the
11:15:16 position, or shall we discuss it and bring it back to
11:15:19 council?
11:15:19 Because I think the public needs to know that it's the
11:15:25 legal department's position and lawyer's advice to not
11:15:28 take any ex parte communication, that there may be
11:15:31 need to have policy with regard to the public comment
11:15:34 portion of the agenda at a regular meeting.
11:15:35 >>DAVID SMITH: City attorney. Let me clarify.
11:15:37 It's not just ex parte.
11:15:39 It's also no new evidence, no new argument.
11:15:42 Not even a repeat of the argument.
11:15:44 So really it would be inappropriate during the public
11:15:46 hearing process for comment, for to you hear comments
11:15:51 on the issue.
11:15:51 I'm sorry.

11:15:53 That's the rules of the game. That's how it works.
11:15:55 When you sit in quasi-judicial, you're a judge.
11:15:59 You have to obey those canons, so to speak.
11:16:01 >> And it is up to the attorney to point that out
11:16:04 during public comments, you should stop them
11:16:06 immediately from doing that.
11:16:07 >>MARTIN SHELBY: So noted.
11:16:10 Thank you.
11:16:10 >>GWEN MILLER: We have a motion and second to continue
11:16:12 the item until December 20th at 1:30.
11:16:15 All in favor of the motion say Aye.
11:16:17 Opposed, Nay.
11:16:17 >>DAVID SMITH: One more time.
11:16:19 I'm sorry.
11:16:21 The counsel for the original applicant would like it
11:16:25 put on the record that he did not receive a copy of
11:16:27 the transmittal that I advised you not to look at.
11:16:33 Make sure the record notices that fact.
11:16:35 >>GWEN MILLER: Mrs. Saul-Sena?
11:16:38 >>LINDA SAUL-SENA: Oh, I just wonder if we are going
11:16:39 to new business because I have an item.
11:16:39 >> We need to get to --

11:16:45 >> Very short.
11:16:45 Under new business, I would like to make a motion that
11:16:50 next Tuesday -- that Tuesday, December 18th at
11:16:53 noon we have a special discussion meeting in the
11:16:55 Mascotte room of proposed chapter 27 changes to allow
11:16:58 the public to talk to council about the chapter 27
11:17:01 changes before it comes up January 10th.
11:17:09 Tuesday, December 18th at noon in the Mascotte
11:17:11 room, a special discussion meeting to hear from the
11:17:17 public on chapter 27 changes.
11:17:21 The reason I'm setting this is because last night at
11:17:23 the Christmas party that the Mayor had, I heard from
11:17:26 the public that certain things they thought were going
11:17:28 to be part of the 27 changes aren't, but there's time
11:17:31 to get them on there, and I just want to hear what
11:17:34 they are and have an opportunity to discuss it with
11:17:35 the public and other council members if they would
11:17:37 like to come.
11:17:38 And I hope that the legal department will be there.
11:17:41 >> The legal department?
11:17:43 >> I would like them to be.
11:17:44 It would be nice if they are there.

11:17:46 >>MARTIN SHELBY: There is also, I believe, a special
11:17:47 discussion meeting for later on that afternoon.
11:17:49 >> No.
11:17:50 It's been put off till January.
11:17:53 Chapter 27?
11:17:54 Oh, no, that's something different.
11:17:56 Yeah, at 4:00.
11:17:57 >>JULIA COLE: Legal department.
11:17:59 I was kind of standing outside.
11:18:00 If I can ask for clarification.
11:18:02 Do you want a special discussion on the pending
11:18:04 chapter 27 going forward?
11:18:08 We are going to schedule those next week to bring back
11:18:10 to City Council.
11:18:10 >>> Which is why I want to have this meeting on
11:18:13 Tuesday, prior to Thursday, because I heard from the
11:18:15 public that there were some things that we directed
11:18:17 you to put on special discussion meeting.
11:18:22 >>JULIA COLE: The only thing I want to say about that
11:18:25 so it's clear, and it's clear to the public, is this
11:18:30 has now gone to the Planning Commission.
11:18:33 >>LINDA SAUL-SENA: We are going to make a list of the

11:18:34 next ones.
11:18:35 >>JULIA COLE: That's a different part.
11:18:37 Anything that's not now part of this can't be part of
11:18:39 this without pushing it off.
11:18:42 >>GWEN MILLER: We have a motion and second.
11:18:44 (Motion carried)
11:18:48 I would like to do two commendations under new
11:18:50 business.
11:18:51 I would like to give one to Fair Oaks Rattlers who won
11:18:55 the National American football title.
11:18:57 >>> Second.
11:18:59 >>GWEN MILLER: And one for the cheerleaders who won.
11:19:02 And they are going to give me a date.
11:19:04 I don't have a date yet so we can know when they can
11:19:06 come down.
11:19:07 Anything else?
11:19:12 All in favor?
11:19:13 (Motion carried)
11:19:14 >>THOMAS SCOTT: Also I sent you a memorandum about a
11:19:16 special discussion on the question that David Smith
11:19:21 and Darrell Smith be here.
11:19:23 I understand Mr. Miranda requested that we continue

11:19:26 that to next Thursday?
11:19:29 >> I want a time certain.
11:19:31 >>THOMAS SCOTT: Yeah, I want a time certain.
11:19:33 >> How about 1:45 or immediately after that?
11:19:36 >>THOMAS SCOTT: That will be fine.
11:19:38 I second that.
11:19:38 I just want to say for the record, I believe in the
11:19:41 courtesy of request when a council person makes a
11:19:45 request that you kind of honor that.
11:19:47 Also, I want to keep in mind because this council has
11:19:52 taken action before without me being present, I want
11:19:55 that to be reciprocal, reciprocal respect.
11:19:58 Okay?
11:19:58 I just want that to be highlighted.
11:20:01 >>GWEN MILLER: We have a motion and second.
11:20:04 >>LINDA SAUL-SENA: Something for the motion.
11:20:06 Council's previous action was taken at an official
11:20:09 meeting and I would like to request that the clerk
11:20:11 make a copy of the transcript available to all the
11:20:14 council members.
11:20:18 >>MARTIN SHELBY: Clarification on the motion.
11:20:19 Is it a time certain, did you say, 1:45?

11:20:22 Next week on the 20th?
11:20:25 Was it council's specific request and the maker of the
11:20:29 motion to ask Mr. Smith as city attorney and Mr. Smith
11:20:31 as chief of staff to both be present?
11:20:33 >>THOMAS SCOTT: Yes.
11:20:34 I said that.
11:20:35 Yes.
11:20:37 >>GWEN MILLER: We have a 1:00, don't we?
11:20:39 >> No, 1:30.
11:20:40 So this is 1:40.
11:20:42 Or 1:45.
11:20:43 I think 1:40.
11:20:45 >>THOMAS SCOTT: 1:40.
11:20:45 >>GWEN MILLER: All in favor?
11:20:51 Anything else?
11:20:51 We stand adjourned.
11:20:54 >> Wait.
11:20:55 >>GWEN MILLER: I said anything else.
11:21:00 >>> Alan Steinbeck, who is one of the transportation
11:21:07 planners on the MPO, is leaving, and I would like to
11:21:10 give him next week a commendation.
11:21:12 >>THOMAS SCOTT: Second.

11:21:13 >> You didn't already do that, did you?
11:21:16 >>LINDA SAUL-SENA: I can't remember.
11:21:19 I think I didn't set a date for it.
11:21:24 >>MARY MULHERN: So on the 20th.
11:21:26 Then the other thing is I just wanted to briefly
11:21:28 report, since this has been a topic of discussion and
11:21:32 we voted on it, numerous resolutions, last Friday was
11:21:37 the local legislative delegation meeting where the
11:21:42 bill that I had promoted and that this council had
11:21:47 voted in favor of to ask for representation on the
11:21:52 EPC, was tabled by Representative Gloriosio.
11:21:58 However, the Ambler bill which included the EPC and
11:22:04 also the Sports Authority, and then after removing the
11:22:07 Planning Commission, they put it back on there,
11:22:10 changing the rules during the meeting, which was very
11:22:12 curious.
11:22:13 So that did get passed and will be going to
11:22:18 Tallahassee.
11:22:18 So what has happened is that the bill that I had
11:22:24 promoted got incorporated into this other bill.
11:22:27 So we will have a chance to ask for seats on the EPC
11:22:33 board.

11:22:35 Unfortunately, other people who did not want the
11:22:38 Planning Commission and the Sports Authority on there
11:22:41 will also have to watch that as it goes through.
11:22:49 I mean when the bill goes forward to Tallahassee.
11:22:52 >>THOMAS SCOTT: What will be the implications of the
11:22:56 boards, now?
11:22:57 Will the --
11:23:00 >>GWEN MILLER: The city will lose seats.
11:23:02 >>THOMAS SCOTT: That's the other issue.
11:23:04 But now you go back to the fact of the tourist
11:23:07 development tax, if you want to talk about the issue
11:23:08 of who -- is the county growing but also look at the
11:23:15 tourist tax generated by the city.
11:23:20 >>MARY MULHERN: As we are getting into those issues,
11:23:24 the reality if my bill had gone forward we wouldn't
11:23:26 have had to deal with the other two committees.
11:23:32 >>GWEN MILLER: Your bill hasn't been put on board.
11:23:37 >>MARY MULHERN: They promised it was coming back.
11:23:44 >>GWEN MILLER: They've forgotten about it because they
11:23:44 tried it for many years. Anything else coming before
11:23:45 council?
11:23:51 We stand adjourned until 6:00 p.m

11:23:53 (Meeting recessed)
DISCLAIMER:
The above represents an unedited version of realtime
captioning which should neither be relied upon for
complete accuracy nor used as a verbatim transcript.
The original of this file was produced in all capital
letters and any variation thereto may be a result of
third party edits and software compatibility issues.
Any person who needs a verbatim transcript of the
proceedings may need to hire a court reporter.