by Marielena Montesino de Stuart

The Ave Maria-Jackson Lab deal… one page at a time.
The JAX-Files:  November 18, 2010

______________________________________

From: John M. Passidomo
To: ‘KlatzkowJeff’ ; ‘Georgia Hiller’
Cc: Marielena de Stuart Montesino ; Brock E. Dwight ; henning_t ; fiala_d ; CoyleFred  ColettaJim ; ochs_l  MaunzSusan ; HubbardJacqueline
Sent: Thu, Nov 18, 2010 10:00 am
Subject: RE: Arbitration
Jeff:

Thanks for copying me on this e-mail.  I’ve been out of the office and in hearings and apologize for the consequential delay in responding.

I think it is important to recognize that the county’s procedure for Requests for Interpretation embodied in LDC Section 1.06.01 (see below) limits the authority of the County Manager or his or her designee to make only interpretations of the text of the LDC, the text of the GMP, the boundaries of zoning districts on the official zoning atlas, and the boundaries of land use districts on the future land use map. 

You accordingly advised the Board of County Commissioners on October 12, 2010 that although the Board had the power to interpret its own ordinances, they did not have the power to interpret the 1967 Special Act and that, in your opinion, “that Special Act is what is going to control this issue”.  A copy of the relevant excerpt from the transcript is also set out below.  I agree with your opinion.

There is no authority in county ordinances for the County Manager or his designee to interpret a state law.  The Board was therefore, in my opinion,  prudent in seeking nonbinding arbitration to obtain an interpretation upon which they can reasonably rely.

                                                                                                                                                                                                       John

[John M. Passidomo is a real estate attorney]

JAMES M. PASSIDOMO E-MAIL – NOVEMBER 18, 2010 – ATTACHMENT 1

JAMES M. PASSIDOMO E-MAIL – NOVEMBER 18, 2010 – ATTACHMENT 2

__________________________________________________
From: KlatzkowJeff]
Sent: Monday, November 15, 2010 4:41 PM
To: ‘Georgia Hiller’
Cc: Marielena de Stuart Montesino; Brock E. Dwight; henning_t; fiala_d; CoyleFred; ColettaJim; ochs_l; MaunzSusan; John M. Passidomo; HubbardJacqueline
Subject: RE: Arbitration
Commissioner Hiller:

Based on my understanding of the Board’s direction, my answer to your queries is as follows:

1.      The controversy is whether the creation or amendment of an SRA requires majority or 4/5ths vote.

2.      Sec. 682.02, Florida Statutes allows for binding arbitration of any controversy.

3.      The parties are the County, on the one hand, and those owners of lands in the Rural Land Stewardship Area who elect to participate.

4.      The arbitration will be held December 9th before Major B. Harding, former Chief Justice of the Florida Supreme Court.  Justice Harding has promised us that he will have a written order prior to December 14th.  We are currently working with Mr. Passidomo on an Arbitration Agreement.   The Agreement will reflect Board direction.

5.      My understanding of Chapter 682 is that absent grounds for vacating the Order (such as fraud or corruption), the decision will be binding on all who enter into the Agreement.     

6.      Although I agree with you that there are other processes (such as an LDC interpretation) which are available, the process that the Board has directed is not inappropriate.      

Jeffrey A. Klatzkow
County Attorney
______________________________________________
From: Georgia Hiller
Sent: Monday, November 15, 2010 9:48 AM
To: KlatzkowJeff
Cc: Marielena de Stuart Montesino; Brock E. Dwight; henning_t; fiala_d; CoyleFred; ColettaJim; ochs_l; MaunzSusan
Subject: Re: Arbitration 

Jeff, 

Thank you for your quick response. 

Your answers leave a few of the questions below, unanswered. 

1.  Please provide the statutory section that you are relying on that a declaratory opinion interpreting a law, without more, can be issued through arbitration. 

What is the “controversy” in this case? 

2. Please be more specific than “Yes” 

Again, what is the “controversy” in this case? 

3. Your response below does not describe the respective positions of the parties and given that we don’t know who the parties are, how can we even know what the positions are. 

The BCC did not vote on who they were going to enter into arbitration with. 

Nor did they vote on a definition of  the issue in “controversy” – if any even exists. 

This makes going forward with the “arbitration” legally impossible. 

Importantly, you (as the County Attorney) cannot substitute your opinion as to what the issue in controversy is, nor, who the parties to this arbitration are for that of the BCC – where the BCC has not voted on those matters as it relates to this proceeding. 

The record of the proceedings speaks for itself. 

Additionally, the vote taken by the BCC was not clear as to whether this was to be binding or non-binding arbitration. 

It was evident  that some of the Commissioners did not even understand the difference. 

It was also evident that John Passidomo wanted non-binding arbitration. 

Please clarify your comment during that meeting, that the ruling would bind the BCC but not the opposing parties.  (Who?) 

This process will not be legally binding on any of the parties 

I continue to feel that arbitration is not the proper legal proceeding. 

By County Ordinance, there is a process when an LDC interpretation is needed. 

This legal process is being circumvented by the property owners. 

Finally, the County will have to enter into an “Arbitration Contract” for this to proceed.   

The BCC has to approve this contract by vote at a publicly noticed meeting, before you can move forward. 

This contract cannot be ratified by the BCC after the fact. 

Please understand that my general position will be not to support subsequent ratification of any non-emergency County contract as a County Commissioner. 

Further, approval of County contracts cannot be legally delegated to Staff by the BCC. 

This matter needs to be brought back to the BCC. 

In conclusion, what was voted on by the BCC cannot be legally acted on by the County Attorney due to the omissions creating impossibility of performance as noted herein. 

I suggest that you advise the BCC that you cannot legally execute what they voted on, and, recommend that a special meeting be noticed for November 29, 2010 so that BCC can abandon this process. 

I would appreciate additional responses based on the above. 

With thanks, 

Georgia 
 __________________________________________________
On Nov 12, 2010, at 11:11 AM, KlatzkowJeff wrote: 

Commissioner: 

 In response to your questions: 

1. Please provide the law as to what can be arbitrated in the State

of Florida. 

Response:   Any controversy can be arbitrated in Florida.  See Sec. 682.02 

2. Specifically, where does the law allow for binding arbitration

only interpreting a question of law where there has been no injury

and therefore there is no ripeness? 

Response:   Yes. 

3. Who are the parties to the proposed arbitration, and what are

their respective positions? 

Response:    The County will be one party.  The other parties will clearly be the major property owners within the RLSA who wish to be involved.  Whether additional parties will be allowed to intervene or submit briefs will ultimately be the decision of the arbitrator.  I will not oppose any such request. 

4. Have the homeowners of Ave Maria been made a party/noticed since

they will be clearly affected? 

Response:    No.  Mr. Passidomo and I are still in the process of trying to find an appropriate arbitrator.  Once that is done, the matter can be scheduled. 

I want to be involved in this matter from the inception. 

Response:   I will endeavor to copy you on all documents related to this matter. 

I question whether arbitration is the correct legal proceeding, given

the issue. 

As such, I don’t want to see public funds wasted on a proceeding that

probably has no basis in law and should not and cannot be pursued. 

Bond Validation: 

I understand that the Bond Validation has been filed with the Clerk. 

May I have an e-copy. 

Response:   See attached. 

1. Who prepared the document and at whose direction? 

Response:  The document was created by outside bond counsel and reviewed by me. It was done at Board direction. 

2. Was the petition, as drafted, brought back to the BCC for

approval, and if so when? 

Response:  No. 

I have taken the liberty of copying Mrs. de Stuart Montesino, an Ave

Maria homeowner,  and the Clerk, with whom the Bond Validation has

been filed. 

Please forward my e-mail to Attorney Passidomo.  I don’t have his

address.  I would appreciate his input on these questions also. 

Please respond to each question by return e-mail, with answers under

each question heading and copied to the three named above – Mrs. de

Stuart Montesino, Clerk Brock and Attorney Passidomo. 

With thanks, 

Georgia 

Georgia Hiller 

Collier County Commissioner-Elect, District 2  

Jeffrey A. Klatzkow

County Attorney
 

___________________________________________________
From: Georgia Hiller

Sent: Friday, November 12, 2010 9:36 AM

To: KlatzkowJeff

Cc: Marielena de Stuart Montesino; Brock E. Dwight

Subject: Arbitration and Bond Validation

Good Morning Jeff, 

Arbitration: 

1. Please provide the law as to what can be arbitrated in the State

of Florida. 

2. Specifically, where does the law allow for binding arbitration

only interpreting a question of law where there has been no injury

and therefore there is no ripeness? 

3. Who are the parties to the proposed arbitration, and what are

their respective positions? 

4. Have the homeowners of Ave Maria been made a party/noticed since

they will be clearly affected? 

I want to be involved in this matter from the inception. 

I question whether arbitration is the correct legal proceeding, given

the issue. 

As such, I don’t want to see public funds wasted on a proceeding that

probably has no basis in law and should not and cannot be pursued. 

Bond Validation: 

I understand that the Bond Validation has been filed with the Clerk. 

May I have an e-copy. 

1. Who prepared the document and at whose direction? 

2. Was the petition, as drafted, brought back to the BCC for

approval, and if so when? 

I have taken the liberty of copying Mrs. de Stuart Montesino, an Ave

Maria homeowner,  and the Clerk, with whom the Bond Validation has

been filed.

Please forward my e-mail to Attorney Passidomo.  I don’t have his

address.  I would appreciate his input on these questions also. 

Please respond to each question by return e-mail, with answers under

each question heading and copied to the three named above – Mrs. de

Stuart Montesino, Clerk Brock and Attorney Passidomo. 

With thanks, 

Georgia 

Georgia Hiller 

Collier County Commissioner-Elect, District 2 

Under Florida Law, e-mail addresses are public records.  If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity.  Instead, contact this office by telephone or in writing.

[Even though these are public records, phone numbers and e-mail addresses were omitted as a courtesy, in this publication].

♦   ♦   ♦

You may read Marielena Montesino de Stuart’s observations and opinions through: 

RenewAmerica, USAToday, U.S. Politics Today (a EIN News Service for Political Professionals) Poynter Online, Spero News, The New Liturgical Movement-Poland, The Naples Daily News, Les Femmes-The Truth, Culture War Notes,  ProLife Blogs, The Wanderer, etc.

TOPICS FOR DISCUSSION:  Ave Maria, Florida + The Chronicles of Ave Maria© + Corruption in Florida + Ave Maria University + The Jackson Laboratory + Charles “Chuck” E. Hewett + Collier County Board of County Commissioners + Commissioner Tom Henning + Commissioner Georgia Hiller + Workshops and Resources for Human Embryonic Stem Cell Research + Eugenics + Margaret Sanger + Tom Monaghan + Tom Golisano +  Nick Healy + Nicholas J. Healy Jr., President of AMU + Barron Collier Companies + The Ave Maria Stewardship Community District + Bishop Frank J. Dewane.

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