After hours of executive sessions, the City Council of Brooksville decided to establish a new contract with the red light camera corporation, Sensys. The contract will have an end date of October 31, 2016. Sensys threatened the city with a lawsuit for damages and lost revenues, since the city wished to end the red light program in December of this year. When the city of Brooksville realized a lawsuit was on the horizon, they filed for a Declaratory Judgement. The contract expires 3 years after the last camera was “installed and operational.” A 16th camera went through the permitting process before the council decided not to install it. It is currently not in operation. Sensys asserted that in compensation for permitting for a light that was never installed, the contract ending date should be April of 2017. The original contract does not cover circumstances in which permission was given to permit, but not install.
The Hogan Law Firm agrees that the City of Brooksville is liable for permitting costs. Cliff Taylor explained at Monday evening’s council meeting, “... The city did request Sensys to add and get permitting for one of the intersections that is not installed… today. We don’t know what that amount is. There was some talk before litigation that might be around $40,000, but when we got into litigation, we did get for the first time a detailed amount. Whether or not it is verifiable or not that is another question… I’ve always told you that the city is liable for some cost for that intersection no matter what. ” During litigation, Sensys gave the city a cost spreadsheet for the intersection permitting that amounted to $118,250.
Mr. Taylor explained that to verify this amount, the city would have to authorize the law firm to hire experts. In addition to the cost of this, he also emphasized that losing the suit would result in the city being responsible for Sensys attorney fees.
Mr. Taylor was not sure about how a judge would rule in regards to extending the contract into 2017. “But I know one thing for sure,” Mr. Taylor stated. “They are entitled to some cost and they are probably going to get an attorney fee award for the whole amount of time spent over the next year or so of litigation.” He also explained that he was not sure of how a judge would rule over lost revenues for the camera that was permitted, but never installed. “There are a lot of questions out there about where the contract and litigation of it would go. And it remains a liability to the city,” stated Taylor.
According to Mr. Taylor, Sensys gave the city two options during negotiations. One option was to end the contract December of this year with the city giving Sensys $500,000 in compensation for permitting and lost revenues. The second option was to end the contract in April of 2017 in which case no compensation would be required from the city. The city of Brooksville was able to negotiate that April 2017 date to October 31st 2016.
Citizens urged the council not to sign the new contract and attempt mediation. In a statement at the November 2, meeting Pat Miketinac explained, “For a law firm as experienced as the Hogan Law Firm, it should be easy to defend contract language as simple as "installed and operational." If Sensys can't agree to that, then mediation is the next step according to the contract, not a lawsuit or settlement that violates the contract.”
Council member Betty Erhard reaffirmed her stance against the red light camera and the new contract. She stated, “Liability to the City? Keeping those lights is a big liability to the city. All I can say positively is that I’m glad we’re getting closure, but that date is no guarantee.”
Council member Kemerer described two main objectives that the city should consider. First, the cameras must come down. Second, the city must minimize out of pocket costs. He went on to state that challenging the Sensys permitting costs would ultimately negate the 20-40% they would potentially cut, since there would be attorney and expert fees associated with doing so. Kemerer explained that this does not accomplish the city’s goal of minimizing out of pocket costs.
In regards to mediation he explained, “You don’t go to mediation without doing your homework which means depositions, which means discovery all of which takes attorney’s time, both ours and theirs… Now how are we going to stop the timing? We’ve got to stop the clock. Remember time is on their side. They’d love to drag the litigation out 3 or 4 years. We can’t take the cameras down until it’s resolved… In mediation, you don’t get a decision in mediation. The mediator tells both sides the strength of their cases, the weaknesses and tries to help them negotiate it out.”
In addition to the ticking clock, Kemerer is against the idea of paying a mediator and several attorneys to hash out an agreement. “It’s a cost we will not recapture,” he stated.
Council member Battista stated, “I think it became obvious to me once we knew that Sensys was going to refute our position: December 15th, it became necessary to file some litigation so we could have executive sessions. You cannot have an executive session in Florida unless you have an active lawsuit… Once we started proceeding along that path, it became extremely obvious that December 31st of this year was not going to happen. The lawsuit would not be resolved by the end of this December, No way… We’d be talking next summer before this case could actually get an airing in front of a judge. I don’t like it.” He explained that he doesn’t like the new contract either, but doesn’t see any other options at this point.
In regards to the Executive Sessions, Natalie Kahler, stated, “As difficult as it was to feel like we were having to keep everybody in the dark, it really only makes sense if you think about it strategically. You have to plan things in secret so your opponent doesn’t know what you’re doing. As a result of that strategy we did get in my opinion the best date for closure… The reality of the US Court system, it is a slow process. As much as people might want to fight, I think the expense of that and the uncertain timeframe was a gamble I was not willing to take… We have a responsibility primarily to our residents that actually pay the city taxes to make sure we are being responsible with the city taxes.”
Mayor Burnett pointed out in his statement that he was against the red light cameras along with another council member when they were first presented to the council. He also agreed that the new contract with Sensys was the city’s best option. He asked himself, “What do the people want and what is the best way to get there?” He also does not agree with everything in the contract, but knew the city had to negotiate. From a business perspective, he pointed out that both sides win somethings. A positive aspect of the contract for Mayor Burnett is the end date. He stated, “Now I’m able to share with citizens the exact date that those cameras will go down.”
Council members voted 4-1 to settle the litigation case with Sensys, establishing a new contract with an expiration date of October 31, 2016. Council member Erhard voted against the settlement.