Friday, October 30, 2015

5th DCA Sends Public Records Case Back For Second Trial

EDC CEO Lynda Weatherman  Brevard Clerk of Court Scott Ellis

DAYTONA BEACH, Florida - It could be several months, or even years, before the public records battle between the Economic Development Commission of Florida's Space Coast (EDC) and Brevard County Clerk of Court, Scott Ellis, is resolved. That's because Florida's 5th District Court of Appeal has returned the case for another fact-finding trial to the lower court in Brevard County, Florida with instructions to apply a different legal analysis to the case.

Following a 1999 case, Mem'l Hosp.-W. Volusia Inc., the 5th DCA held that " ... Application of the Schwabfactors test involves mixed questions of law and fact. Here, there was a two-day evidentiary hearing during which several witnesses testified. On appeal, each party has emphasized different testimony from which competing conclusions might be reached concerning the Schwab factors. The trial court who was present during the two-day hearing is in the best position to evaluate the witnesses, their testimony, and any other evidence. Accordingly, we remand the case to the trial court for further analysis utilizing the Schwab totality of factors test and further proceedings consistent with this decision."

Regardless of the outcome of the second trial, the appellate court made it clear that the EDC would not be liable for attorney's fees.

"We affirm the trial court’s decision to deny Ellis’ motion for attorney’s fees, because attorney’s fees should not be awarded in those cases where the party refusing to provide documents acted on the good-faith belief that it was not an agent, subject to compliance with the Act," the 5th DCA held, citing Stanfield v. Salvation Army.

"The hard fact as we presented was if you want a tax abatement, cash incentive, or any form of incentive you MUST go the EDC, Ellis wrote in an email to Brevard Times. "The EDC case was misleading claiming other entities do the nebulous ‘economic development’ and calling anything and everything economic development."   

"The Chambers of Commerce and nobody else does what the EDC does and is given a monopoly power to do – process applications for tax abatement and incentives.  Whatever NBEDZ does now was not done then in 2012."

"The EDC has the full delegation of the County Commission to process the applications.  There are no county employees paid to do initial processing."

"If we go the route of the re-hearing we will present more evidence of the sole delegation."

“We are grateful for today’s’ outcome," stated Lynda Weatherman, president and CEO of the EDC.  "Winning this appeal is a step in the right direction. Businesses utilizing the services of an economic development organization require confidentiality of their plans and organizational intentions. Without the safeguard of privacy, Brevard County will face a competitive disadvantage in attracting and growing business investment and long term job creation.” 

“It is apparent from the Florida Fifth District Court of Appeal decision that it identified facts clearly establishing that today’s EDC is not the entity that was created in 1989. The District Court of Appeal recognized that the functions of the EDC have evolved, and we hope the clerk of courts recognizes what these factual observations by the court signify.”  stated Edward Guedes, Esq., with the law firm Weiss Serota Helfman Cole & Bierman, P.L., appellate counsel for the EDC. “The court recognized the role of the EDC to serve as the county’s primary, not its sole, agent for economic development activity. The county continued to carry out economic development activities itself through its own paid county employees and in conjunction with other entities to the exclusion of EDC.”


BlueWare is the company caught up in a public corruption criminal case brought by the Florida Department of Law Enforcement and State Attorney Phil Archer against former Clerk of Court, Mitch Needelman, his former business partner Matt Dupree, and BlueWare CEO Rose Harr

The EDC helped BlueWare and some of its affiliated companies to qualify for various government programs and other "workforce incentives" that could have totaled nearly $2 million in taxpayer money.   None of those incentives were ultimately awarded to BlueWare because it did not meet its performance benchmarks.

After the Clerk's office learned from a Brevard Times investigative article published on August 26, 2013 that State of Florida Department of Economic Opportunity officials said the BlueWare's confidentiality had lapsed and Governor Rick Scott's Office stated to Brevard Times that the BlueWare incentive contract was canceled on April 5, 2013, the Clerk sent his auditors to the EDC in Rockledge the next day to request a copy of the EDC file on BlueWare.  When the EDC refused to comply with the public records request, Ellis then filed this lawsuit.

Brevard Times was the only news source to publish a series of in-depth investigative articles about the BlueWare scandal led by former reporter, Charles Parker