The county and the Lake Point mining and water restoration project ended their dispute over public records when county commissioners refused in a vote at a special meeting Feb. 17 to go to trial, scheduled just four days later.
Well, it almost ended.
It would have been the second trial in the county’s court battle over Lake Point’s access to public records, which has been ongoing for four years.
Court-ordered arbitration concluded in the case Feb. 9 before Stuart attorney Howard Googe, a certified mediator with specialized training in civil trial practice, who determined in his arbitration order that Lake Point was entitled to attorney fees and costs – in addition to all public records it has been seeking since February 2013.
“Based upon the totality of the evidence, testimony and case law presented,” Googe wrote in his order, “I find that it is unfortunate that these claims have resulted in years of litigation and hundreds of thousands of dollars in attorney’s fees and costs to both parties.”
Googe included in his award to Lake Point the public records from Commissioner Sarah Heard’s private Yahoo email account, which she testified had been “hacked” early in 2013, destroying eight years of emails and all her contacts.
The arbitrator’s order found Heard’s testimony regarding the loss of her emails to be “suspicious, bizarre and less than credible.”
Neither the county’s digital forensics expert nor Lake Point’s forensics expert found evidence of a third-party breach of the personal computer that Heard provided for the forensics examination, which would account for a loss of data, according to the expert’s report.
After Heard could not remember her password, thus thwarting the county’s digital analysis of her Yahoo email account, Circuit Court Judge William Roby issued a subpoena to Yahoo earlier this month for whatever emails could be reconstructed from Heard’s private email account, plus activity logs and passwords, which would go only to Roby.
Whatever materials were recovered from Yahoo as a result of the subpoena are required by the arbitrator in his order to be turned over to Lake Point, which has a separate lawsuit pending in circuit court alleging that Martin County and the South Florida Water Management District breached their contracts with Lake Point in early 2013, and that former commissioner Maggy Hurchalla allegedly interfered in those contracts.
Lake Point has been seeking email correspondence between Hurchalla and county commissioners’ private email accounts to support their claims for four years, according to court testimony. No date has been set for that trial as yet, but is expected to be heard in early summer.
After Lake Point did not receive any public records from commissioners’ private email accounts, Lake Point amended their original court complaint on February 14, 2014, to add two counts of public records violations, which were severed by the court into a separate case that went to trial in 2015.
The ruling circuit court judge, Shields McManus, wrote that he was troubled by the hacking that he found to be curious and unresolved, although he found no violations of public records laws.
Lake Point appealed that ruling to the 4th District Court of Appeal, which was not heard, because McManus overturned his 2015 ruling in April 2016 after the discovery of then-Commissioner Anne Scott’s previously undisclosed private email account and additional Hurchalla emails. McManus described Scott’s actions as “unlawful.”
In his arbitration order, Googe found that “… a pattern and practice of non-compliance and lack of diligence by the county and certain county commissioners in preserving and protecting public records … ” as required by the state’s public records law, entitled Lake Point to attorney fees and costs – excluding those associated with Lake Point’s appeal – thus awarding Lake Point its fees as of Dec. 31, 2016, in the amount of $371,801.75.
Lake Point attorney Ethan Loeb told the court in a motion filed yesterday that the award should also include the as-yet-unbilled fees and costs over the past two months as the company prepared for trial, which the county allegedly says is “rewriting the arbitrator’s order” for the amount to be awarded.
Lake Point also alleges that the county’s final proposal deletes all reference to the county’s and some commissioners’ “pattern and practice” of violating public records laws, as described by the arbitrator, as well as alleging that it lacks detail in “a thinly veiled attempt to hide the truth from the public,” calling the county’s proposal “a sterilized version” of the arbitrator’s order.
Roby ordered both sides on Wednesday, Feb. 22, back to arbitration; however, Lake Point requested the next day in a motion filed in circuit court that Roby hear the arguments and make the final judgment “confirming the arbitrator’s decision.”
A hearing in circuit court, which has not yet been set, will decide if the case will go back to arbitration or if Roby will issue the final order in circuit court.
Barbara Clowdus, Publisher
Martin County Currents