Mount Dora Council Considers City Attorney Contract

Mount Dora’s city attorney may soon have a new face. Council interviews potential replacements at their March 15 meeting.

At the December 1, 2015 council, new at-large representative Mark Slaby moved to fire current city attorney Cliff Shepard on the spot. “There is no longevity without review,” he said. “Mount Dora of 2006 is different from now. This is about fresh eyes to look at the city.” (Shepard has been the city’s attorney since 2006.)

There was significant pushback in the discussion that ensued. Second district representative Cal Rolfson wondered what justification there could be, asking council to voice a single negative in Shepard’s performance over the past 10 years.  (The room was silent.)

Shepard acknowledged that he served at the council’s pleasure and they were free to let him go at any time. He did however wonder about the quality of who might follow him. “I have no problem competing on credentials,” he said, “moreso because I’m more qualified than any other lawyer you’re going to find. You’re not going to find a lawyer that represents more cities and more governmental agencies, so on qualifications I have no issue.”

Fourth district representative Mark Crail suggested a less aggressive approach. “It is my belief that contracts like this need to be reviewed on a periodic basis,” he said. “It’s our duty to make sure we don’t have contracts that go on forever without review.”

Council ran with this, and then agreed to the idea of putting out a ‘Request for Proposal’ (RFP) for Shepard’s job within 90 days. (The RFP can be seen  here on the city’s website.)

The Request for Proposal states that candidates must be board certified in government law and would be expected to have a broad range of knowledge and experience in legal issues pertaining to municipal government law, including Florida statues, ‘sunshine laws,’ land use law and zoning, community redevelopment, general litigation, and administrative hearings and appeals. S/he would also be responsible for recommending policies and procedures within compliance of the law, attending city council and a number of other city board meetings (Planning and Zoning, NECRA and CRA and code enforcement, as well as other special meetings). The city attorney prosecutes and defends the City on all complaint or suits in which the City is a party, and provides legal assistance related to acquisition or sale of property and the preparation of leases, deeds and easements, and keep the City informed of legislation or judicial opinions which have an impact to the city.

For all of that, the city attorney is the least visible of council’s senior staff. If the attorney doing the job right, they rarely fall into public visibility. Their job is not to become part of government but rather to ensure its wheels aren’t flattened by legal error. Council sets the ship’s course, and the city attorney makes sure that ship stays off the rocks. (Watching Shepard over the  past three months at council meetings shows he has had to step in to prevent legal mistakes.)

Out of 20+ Central Florida legal firms who may be considered eligible and qualified to apply, four bids were received, including one from Shepard’s firm.

Council met on March 4 to discuss the candidates. At the executive level, other than Shepard, (who was not in a position to compare the quotes), the person in Mount Dora government with the most municipal legal experience is second district rep Cal Rolfson – a former attorney who has represented government in local, county, state and federal courts.  He took exception to one of the quotes that does not list an attorney who is board certified in local government—a minimum requirement. Council voted 4-3 to reject that bid. The two remaining candidates in addition to Shepard are Lonnie Groot of Stenstrom, McIntosh, Colbert & Wigham of Lake Mary, and Karen Consalo with Vose Law Firm of Winter Park.  (Notes from that meeting plus video here.)

The Mount Dora Citizen has reviewed copies of the three remaining proposals. The fee for each was almost dead even: $155 per hour for Groot, $150 an hour for Consalo and Shepard.

However, there is considerable difference in qualifications between the three. While all three firms meet the minimum requirement of offering the services of an attorney board certified in local government, only Shepard’s firm had more than one (they have four) on staff. This allowed Shepard’s bid to also offer the services of D. Andrew (Drew) Smith from the firm as lead attorney if council preferred the services of another qualified lawyer from his firm. (Smith currently provides legal counsel to Mount Dora on code enforcement issues.)

Lonnie Groot is ‘of counsel’ with Stenstrom, McIntosh, Colbert & Whigham,the firm that represents the cities of Sanford, Oviedo and Daytona Beach Shores.  The City of Lake Helen lists Scott Simpson as their attorney on their website, but emails to the attorney are directed to Mr. Groot.  He also has served as general counsel for the Seminole County Expressway Authority and various municipal zoning, code enforcement, charter review and historic preservations boards across Central Florida.

Karen Consalo (Vose Law Firm) is the code enforcement special magistrate for the city of Oakland, was assistant attorney in Orlando from 2004 to 2009 and an assistant county attorney for Seminole County Government from 2001 to 2004.

Cliff Shepard, in addition to his work as city attorney of the City of Mount Dora, is special counsel to the City of Maitland, town attorney for the town of Ponce Inlet, city attorney for Apopka and general counsel for the Florida Redevelopment Association, which promotes improvement of downtown and other urban areas through redevelopment and development activities.

Shepard’s peer recognition is impressive, and includes being honored by Florida Trend Magazine as one of Florida’s Legal Elite from 2005-2009 and 2011-2013) in the areas of Governmental and Administrative Law and Commercial Litigation. (The Legal Elite represent the top 1.7% of the 56,513 Florida Bar members who practice in the state.) Shepard was also named a “Florida Super Lawyer” (2005-2014) by Law & Politics Magazine, a consumer’s guide to the best attorneys in the state.

Most important, since 2006 Shepard has had a flawless legal record as Mount Dora’s city attorney. He has never lost, or unfavorably settled, any of the cases he defended on behalf of the city. Even more noteworthy, only a few lawsuits have even gone to trial – as the goal of any city attorney is to keep the city out of court.

Current city attorney Cliff Shepard (right) makes a legal point to council
Current city attorney Cliff Shepard (right) makes a legal point to council

Shepard guided council through adoption of a number of ordinances, including dust and erosion control, rewrite of the Bed & Breakfast ordinance, demolition of condemned structures, lot maintenance, a pain clinic (pill mill) moratorium, home rental licensing, and economic development tax incentives. Each of these ordinances are legally complex and subject to litigation if not done well, but so far none of them have been challenged.

And then there is the $2.1 million in water meter and impact fees the city was able to recoup in 2013 from Pulte Homes, developer of Sullivan Ranch, thanks to Shepard’s work hammering out a settlement without entering litigation. The oversight was the result of administrative errors in-house and litigation would have been problematic because of the impending finality of the statue of limitations.

Shepard and attorney Sherry Sutphen are now involved in a significant legal tussle between Mount Dora and Medallion Home over several parcels in the Lakes of Mount Dora which had been intended for public needs.

Candidate interviews will be conducted March 15. The plan originally was to award the contract for city attorney services at the March 15 council meeting, but this may get moved back.

Unless the interviews on March 15 convince council of a yet-demonstrated need to throw out Shepard’s current contract, Shepard may be continuing with the city.

Why is it then that so many are convinced this won’t happen? Replacing him with an attorney of less qualification and experience for the same money—at this very untimely junction, no less—begs the question of why council appears to be trying to do just that, in the first place.

If there is no financial justification and no stated performance issues, what then?

Whatever the need for “fresh eyes” is, the case for that has neither been stated nor publicly substantiated. (Mark Slaby was asked what he meant for this article, but he did not respond.) In a February 13 post to a Facebook page, a local blog linked all the way back to a May 2005 article in the Orlando Sentinel about the city’s work to replace then-city manager Bernice Brinson, who had been fired for alleged incompetence. Then-council member Ryan Donovan was quoted about the need to find a a new city manager with no experience with Mount Dora. “He’s coming to us clean,” he said. “We have somebody new, coming in with a fresh set of eyes.”  However, the comparison the blog makes between the decade-old council’s work of replacing a fired city manager and that of losing current experienced, competent staff makes one wonder all the harder what the benefit of “fresh eyes” today might be.

All of council and Mayor Girone were asked to comment on what they felt was important in deciding which city attorney to favor for this piece, but none responded. Laurie Tillett was also asked why she pressed to reduce the city attorney qualifications for the RFP on January 19 but she declined, saying she didn’t feel it appropriate to comment on upcoming council business.

Since this council has proved infamously mum – taking action without stating their motives, we’re left to poke behind them in their shadows for answers.

Did Shepard face off with in the past with anyone who might want council to cancel his contract?

There is a 2014 instance when the at-large election resulted in a tie between Nick Girone and Marie Rich and the recount resulted again in a tie. The city planned to follow state precedent and draw the winner’s name from a hat. Local lawyer (and former council member) James Homich represented a suit filed by 14 registered Mount Dora voters, stating “Irreparable damage will occur to the voters and the governance of the city of Mount Dora if a council member is seated illegally without having the required majority of the vote as set forth in the charter.”

City attorney Cliff Shepard defended the city’s decision, saying that the city’s charter followed the intention of state statutes, and cited previous ones that said tied races should be decided by drawing lots.  “Everything has to be read in context and in this context, you had a general election with only two candidates, there was no third candidate,” he said. “They got exactly the same amount of votes and there is…no majority to be had under the current circumstances.”

The suit failed and lots were drawn. Marie Rich’s name was pulled from the hat.

Further back, one of the first issues Shepard tackled when he started with the city in 2006 was code enforcement. The City had long been struggling with certain properties and property owners over eyesores that were also considered health and safety hazards. Shepard’s firm began aggressive enforcement efforts towards compliance and the council revamped the City’s code enforcement system from a volunteer board – to one with a sitting, paid magistrate to hear cases, make rulings, and enforce them.

In 2010 a code of council conduct was proposed by then-mayor Mel DeMarco after a number of incidents of harsh interactions between council and and staff. Council rep James Homich was under criticism for his interactions with the staff of then-police chief Randy Scoggins over code violation disputes on his property, so much so that an Orlando attorney had been hired to conduct an independent investigation into Homich’s actions.  Complaints included allegations that he acted in a threatening and intimidating way toward city employees (allegations he denied). Another council member had reportedly called a department head a profane and offensive name during a disagreement over the type of grass to be used at the local dog park.  Insisting it was not about individual personalities, DeMarco suggested the code of conduct. Former council woman Glenna Burch fought the measure, saying there was enough enforcement, and Homich said it wasn’t enforceable. (Story here)

Homich, who was recently placed on the planning and zoning board by council, was asked to comment about his legal involvement with Shepard for this story. While his response was geared more toward the role of a city attorney, it may suggest why some of council may not be in favor of retaining Shepard.

Homich says that when he was on council he had “pushed originally to look for outside independent counsel without any ties to staff to advise the council and the city” and “expressed the expectation to periodically evaluate or change firms in order to maintain that independence.”

“We need a law firm that provides sound independent legal advice regarding all potential options and allows the city council to decide based upon that advice,” he said, “We do not need a firm that only supports staff thereby getting significant billable hours. I also reject entirely the argument that a firm needs any ‘institutional knowledge’ to provide sound legal advice as each new problem is a unique new set of facts.”

According to Homich, replacing Shepard will finally clear the ground for some needed changes in the way the city does business. “I think it is a new and bright day for Mount Dora which is full of possibilities, ” he said. “I hope that you can take the opportunity to look at what has been done already and what will be done to see that the negativity of a certain small group is not based upon reality but rather in a failing agenda to control the city and devalue the downtown for everyone but one group. I expect Shepard’s staying is that group’s last perceived hold on their ability to control the city. I believe he should be replaced.”

If Shepard does lose the contract for city attorney service, what are the risks to the city? Certainly the other candidates are qualified to do the job. But if council is getting ready to embark in a new direction, legal counsel experienced in Mount Dora’s recent history may be more necessary than ever.

Legal costs for suits and litigation can quickly empty city reserve funds. The city of Mascotte dished out $50,000 last October to settle the first of six discrimination lawsuits.  Also last year, Groveland spend $350,000 on outside lawyers fighting with its police union. A Sarasota city commissioner has racked up more than $300,000 so far in legal fees fighting a Sunshine Law lawsuit against her, all of which the city is liable for.

Firms which have only one board certified attorney in local government could present problems if that attorney needs to take time away from the office or if another representation or ‘at counsel’ relationship conflicts with their representation on a city matter. If they recuse themselves, their firm would have to as well, leaving the city to have to find legal services elsewhere for that situation.

In the end, Shepard was absolutely correct when he said to council last December that he serves at their pleasure. It remains to be seen how seriously council takes its own criteria—a combination of cost, qualifications, and experience—in awarding the bid. All the candidates for the job have the certification from their peers that they are qualified to handle municipal legal services. How well they can do that job, and what bench depth is behind them, could make a huge difference in the cost of Mount Dora’s city business.

And with development projects now popping up everywhere around the city – along with real estate offices (just this week, Gerard Guenther purchased the 4.3-acre Pineapple Point lakefront property in downtown Mount Dora), Mount Dora has neither permanent city manager nor planning and development director to provide essential staff support for these negotiations.

Depending on who you ask, this could represent risk – or golden opportunity.

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Whichever scenario you ascribe to, the council is moving fast, in a vehicle with uncertain wheels.

Let’s hope we have a city attorney capable of preventing those wheels from coming completely off.

David Cohea, Writer (