The City of Marco Island is continuing full steam ahead in prosecuting its restrictions on boat anchoring, but it is unclear when it received the formal authorization to do so.
Two weeks ago, the city filed a notice of appeal of Collier County Judge Rob Crown’s October decision to declare a city ordinance limiting anchoring in city waterways unconstitutional.
City Attorney Alan Gabriel and Council Chairman Mike Minozzi had planned to call a special closed council session to discuss the case before filing the notice of appeal, but Gabriel said a meeting was unnecessary. The city’s attorneys had already received direction from council to continue prosecuting, a move that would include filing a notice of appeal, Gabriel said.
“There’s no requirement that we get step-by-step authorization to proceed,” he said.
But when any formal authorization occurred is questionable.
Since the city’s attorney firm took over prosecution of the case this summer, council has held three closed attorney-client meetings and one public forum on the matter. Following one closed session in September, Dan Abbott, an attorney in Gabriel’s Fort Lauderdale-based firm Weiss Serota, announced the city planned to continue prosecuting, according to a videotape of the meeting.
Following a closed session that occurred after the city lost the case, Minozzi declared council had reached a consensus to appeal. During the public forum, the city heard opinions from 17 people on the case, but did not vote, according to council minutes.
That lack of formal action before announcing an intention to appeal has led some open government advocates to wonder whether the city has complied with the state’s Government in the Sunshine Laws on open meetings.
Barbara Petersen, president of the media-funded First Amendment Foundation, has pointed to a 1998 Florida 4th District Court of Appeal ruling where the City of Vero Beach was found to have violated the Sunshine Law for taking “decisive action” in a closed meeting.
There’s no clear legal standard when mere advice becomes “decisive action” in a closed meeting. Vero Beach councilors passed a motion behind closed doors, something that didn’t happen in Marco’s most recent closed session, councilors have said. Council did, however, reach a “consensus,” Minozzi said.
Marco Councilman Glenn Tucker, an attorney, said city staff received all the direction it needed from council when it passed the ordinance in May 2006.
“From that point forward, it is the job of the staff to enforce the ordinance unless otherwise directed by the council,” Tucker said. “The council has seen fit not to contradict that direction. That enforcement would include an appeal.”
To that end, Gabriel said he would ask council for a formal vote should it decide to direct his firm to stop prosecuting the case.
Minozzi, who referred to the city filing a notice of appeal as a “decision,” said the city has complied with the state’s open meetings laws.
“Everything we’ve done is strictly done within the bounds of Sunshine,” Minozzi said. “What we did was strictly under the advice of our attorney who is well versed in the Sunshine Laws.”
According to the court file, the city has yet to submit its argument for an appeal, which would be heard in Collier County Circuit Court.