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Filing # 186405215 E-Filed 11/17/2023 04:06:11 PM
IN CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
CASE NO. 23-943-CO
PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
EXHIBIT A
AMENDED COMPLAINT SEEKING
DECLARATORY AND INJUNCTIVE RELIEF AND INCORPORATED
MOTION FOR SUMMARY JUDGMENT ON BEHALF OF PLAINTIFF
***ELECTRONICALLY FILED 11/17/2023 04:06:07 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
IN CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
PAUL GAGLIANO, Pro Se
Plaintiff,
CASE NO. 23-943-CO
CITY OF CLEARWATER, a Municipality,
FRANK HIBBARD, BRIAN AUNGST Sr.,
MARK BUNKER, KATHLEEN BECKMAN,
DAVID ALLBRITTON, LINA TEIXEIRA,
JENNIFER POIRRIER, ERIC GANDY
and DAVID MARGOLIS .
Defendants.
AMENDED COMPLAINT SEEKING
DECLARATORY AND INJUNCTIVE RELIEF AND INCORPORATED
MOTION FOR SUMMARY JUDGMENT ON BEHALF OF PLAINTIFF
Plaintiff, PAUL GAGLIANO Pro Se, hereby sues the Defendants, CITY OF
CLEARWATER, a Municipality, FRANK HIBBARD, BRIAN AUNGST Sr., MARK
BUNKER, KATHLEEN BECKMAN, DAVID ALLBRITTON, LINA TEIXEIRA, JENNIFER
POIRRRIER, ERIC GANDY and DAVID MARGOLIS and alleges:
I. INTRODUCTION
1 This lawsuit is filed by Plaintiff against the City of Clearwater, et. al.,(hereinafter City)
after a conspiracy to violate Florida Statutes Section 286.011 (Citation 1), hereinafter the
“Sunshine Law’. This occurred beginning with an effort to create a Request for Proposals
(hereinafter RFP), to evaluate responsive proposals for Fixed Base Operations (hereinafter FBO)
in violation of the Sunshine Law and then subsequently to include with the Clearwater Airpark
(hereinafter Airpark) properties, a portion of Marymont Park requiring a public referendum for
said action in a Declaration of Surplus along with the Airpark. The City then negotiated and
entered into a long-term lease with a private entity, FlyUSA and Paradise Ventures, and
including FlyUSA,PV, LLC. (Hereinafter FlyUSA) again without compliance with the Sunshine
Law. This represents the recent, repeated and ongoing violations of the Sunshine Law by the
Defendants in this case.
2 As part of this conspiracy, council members, or their proxies:
A. City staff developed and published a Request for Proposal (RFP) then a ‘committee’
selected and recommended a ‘winner’ to City Council for further contract action in a
manner totally absent public oversight and contrary to the Sunshine Law.
City staff published a ‘Notice’ of a public meeting on this topic on a date during the
holidays (12/28/2022), when it would be hardly noticed. The Notice also described
the intended action in a way that an affected citizen would not even realize the
proposed action under consideration was involving the Clearwater Airpark. These
actions are contrary to the clear intention of the Sunshine Law. This City action also
involved reclassifying and leasing a portion of Marymont Park in violation ofthe City
Charter. The City Council unanimously voted to approve the matters at issue at a
public meeting on January 12, 2023, despite a clear and concise public verbal request
made by a Citizen (Dennis McDermott), among others, at this meeting seeking to
postpone such action until all of the relevant factors of both agenda items could be
verified, the Sunshine Law violations corrected, and a lawful vote could be held.
City Council then directed its staff to enter into negotiations with FlyUSA, resulting
in a long term lease for the Airpark, now including additional land parcels without the
public oversight called for by the Sunshine Law. This lease, entered into in a process
contrary to Florida law, also calls for an expenditure of State of Florida and City of
Clearwater public funds in excess of twenty two million dollars substantially to
benefit a private company. The lease rate also enormously undervalues the Airpark
public property to the detriment of taxpayers and without their required oversight.
D. The entire Airpark RFP, from conception through contract execution was conducted in
violation of the Sunshine Law and new violations continue to occur. It is not
reasonable to ignore the overwhelming circumstantial evidence that supports this
claim of Conspiracy against the Defendants. Plaintiff alleges this conspiracy count
against Defendants anticipating that a ‘rational trier of fact’ can conclude that a
“preponderance of credible evidence’ exists, and supports this count.
3. Plaintiff therefor seeks declaratory and injunctive relief against the Defendants.
This complaint amends the original complaint that was filed on February 3, 2023. Plaintiff's
original Complaint and Defendant's Motion for Summary Judgment was heard on May 17, 2023.
At this hearing, the Court dismissed Defendants Summary Judgment Motion and granted leave
for Plaintiff to file an amended complaint.
Il. JURISDICTION
4 This Court has jurisdiction over this controversy pursuant to Art. I, § 24(b), Fla. Const;
(Citation 2) Art. V, § 20(c)(3), Fla. Const. (Citation 3); Fla. Stat § 26.012(2)(e) and (3) (Citation
4); Fla. Stat§ 86.011; § 286.011(4) (Citation 5); and Rule 1.610, F15. R. Civ. P. (2022) (Citation
6). Venue lies in Pinellas County, Florida, because the acts for which suit is brought have
occurred or are occurring in Pinellas County, Florida, and the Defendants are located within
Pinellas County, Florida.
TH. PARTIES
The parties to this complaint consist of:
Plaintiff, PAUL GAGLIANO Pro Se (‘Gagliano’) , is a resident of Pinellas County,
Florida, and a citizen of the State of Florida.
Defendant, CITY OF CLEARWATER, (Hereinafter ‘City’), is a Florida municipality.
The City Council is the governing legislative body of the City and is ajoint collegial
body or board within the meaning Of Art. I, § 24(b), Fla. Const, supra and Fla. Stat. §
286.01 1 supra
Defendant, FRANK HIBBARD, at all times relevant, was the former Mayor and a
member of the City Council.
Defendant BRIAN AUNGST, SR. the interim Mayor and became a member of the City
Council acting on relevant matters.
Defendant, MARK BUNKER, at all times relevant, was a member of the City Council.
Defendant, KATHLEEN BECKMAN, at all times relevant, was a member of the City
Council.
Defendant, DAVID ALLBRITTON, at all times relevant, was a member of the City
Council.
Defendant, LINA TELXEIRA, at all times relevant, was a member of the City Council.
Defendant JENNIFER POIRRIER, at all times relevant, was the Assistant City Manager,
Acting City Manager or the City Manager for the City.
Defendant ERIC GANDY, at all times relevant, was the Director of Marine and Aviation
for the City.
Defendant, DAVID MARGOLIS, at all times relevant, was the City Attorney for the
City.
IV. CONSTITUTIONAL AND SUNSHINE LAW
6. The concept of ‘open government’ was first noted in Ancient Greece in the fifth century
B.C., where different legal institutions regulated the behavior of officials and offered a path for
citizens to express their grievances towards them. Columbia Law Review. 97 (5): 1483-1518
(Citation 7) Roman poet Juvenal from his Satires wrote : “Quis custodiet ipsos custodes? (Trans:
“Who will guard the guards themselves?’”’) (Satire VI, lines 347-348) (Citation 8) As
governments came to be infused with more ‘enlightenment thought,’ the revolutions in United
States (1776) and France (1789), enshrined provisions and requirements for public budgetary
accounting and freedom of the press based upon foundational American constitutional
documents such as The Federalist Papers.
In Federalist #51 James Madison wrote: “But what is government itself, but the greatest
of all reflections on human nature? If men were angels, no government would be
necessary. If angels were to govern men, neither external nor internal controls on
government would be necessary. In framing a government which is to be administered
by men over men, the great difficulty lies in this: you must first enable the government to
control the governed, and in the next place, oblige it to control itself: A dependence on
the people is, no doubt, the primary control on the government; but experience has
taught mankind the necessity of auxiliary precautions. ”’(Citation 9)
8. Federal rights to judicial review were established from the US Constitution Art. III, s. 1
(Citation 10) and illuminated in Gordon v. United States, 117 U.S. 697 (1864) (Citation 11)
There can be no question as to the United States being founded on both the principle of open
government and a government responsible to, and answerable to the people. Despite sustaining
repeated attacks over time, this remains one of our most cherished founding principles.
9. The State of Florida eventually came to further define and expand these rights of public
access to governmental meetings. The Florida Constitution provides that the public has a right to
access governmental meetings. This applies to the meetings of any collegial body of the
executive branch of state government, counties, municipalities, school districts, or special
districts., Fla. Const. art. I, s. 24(b) (Citation 12)
Plaintiff recites the above founding principals not to recall a Civics lesson, but rather to
suggest to this Honorable Court and the Defendants what is at stake in this case, the
fundamental, founding principals of our democracy, seemingly now absent at times.
10. Following on these principles, Florida’s Government in the Sunshine Law; Florida
Statutes § 286.011 (supra), commonly referred to as the ‘Sunshine Law’, provides a right of
access to governmental proceedings of public boards or commissions at both the state and local
levels. The law is equally applicable to elected and appointed boards and has been applied to any
gathering of two or more members of the same board to discuss some matter which will
foreseeably come before that board for action. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla.
1971). (Citation 13)
11. Because Fla. Stat.§ 286.011 (supra) “was enacted in the public interest to protect the
public from ‘closed door’ politics .... the law must be broadly construed to effect its remedial
and protective purpose. (in pertinent part) Wood v. Marston, 442 So. 2d 934, 938 (Fla. 1983).
(Citation 14) As the Court explained “/t/he statute should be construed so as to frustrate all
evasive devices. This can be accomplished only by embracing the collective inquiry and
discussion stages within the terms of the statute, as long as such inquiry and discussion is
conducted by any committee or other authority appointed and established by a governmental
agency, and relates to any matter on which foreseeable action will be taken.” (emphasis added)
12. A key element of the Sunshine Law is the requirement that boards subject to the law
provide “reasonable notice” of all meetings. See, Fla. Stat. § 286.011(1) (supra),. Although
Section 286.011 did not contain an express notice requirement until 1995, many court decisions
had stated prior to the statutory amendment, that in order for a public meeting to be in essence
“public” reasonable notice of the meeting must be given. Hough v. Stembridge, 278 So. 2d 288,
291 (Fla. 3d DCA 1973) (Citation 15). However, in Yarbrough v. Young, 462 So. 2d 515, 517
(Fla. 1st DCA 1985) (Citation 16), the appellate court later reversed the lower court because it
found the public notice error was made through media reporting, not by deliberate City action.
13. Reasonable notice is required even though meetings of the board are “of general
knowledge” and are not conducted in a closed-door manner. 7S/ Southeast, Inc. v. Royals, 588
So. 2d 309 (Fla. Ist DCA 1991).(Citation 17) And see, Baynard v. City of Chiefland, No. 38-
2002-CA-00078 (Fla. 8th Cir. Ct. July 8, 2003) (Citation 18) (reasonable notice is required even
if subject of meeting is minor or “relatively unimportant’). These cases all demonstrate the
common requirement by the Courts for proper public notice.
14, The following is an excerpt to the following lengthy opinion of the Florida Attorney
General (Ops. Att’y Gen. Fla. 71-32 (1971) (Citation 19) on the Subject of Public Meetings and
the Sunshine Law, that states in pertinent part:
“The right of the public to be present and to be heard during all phases of enactments by
boards and commissions is a source of strength in our country. During past years
tendencies toward secrecy in public affairs have been the subject of extensive criticism.
Terms such as managed news, secret meetings, closed records, executive sessions, and
study sessions have become synonymous with ‘hanky panky’ in the minds of public-
spirited citizens. One purpose of the Sunshine Law was to maintain the faith of the public
in governmental agencies. Regardless of their good intentions, these specified boards
and commissions, through devious ways, should not be allowed to deprive the public of
this inalienable right to be present and to be heard at all deliberations wherein
decisions affecting the public are being made.” (emphasis added)
15. The term “Reasonable” as used in the Sunshine Law is governed by what is defined as
reasonable to a “Reasonable Person”.Merriam-Webster.com Legal Dictionary, Merriam-
Webster, https://www. merriam webster.com /legal/reasonable/ (Citation 20) Clearly, Plaintiff
disagrees as to what is “reasonable” to the City and seek review by this Honorable Court of the
Defendants repeatedly failed to provide “reasonable” (or at times any) open access to hearings
and meetings on the Airpark matter while insisting that they have “went above the
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requirements”. (Exhibit 1) “The type of notice that must be given is variable however,
depending on the facts of the situation and the board involved.” Ops. Att’y Gen. Fla. 04-44
(2004). (Citation 21)
“In some instances, posting of the notice in an area set aside for that purpose may be
sufficient; in others, publication in a local newspaper may be necessary. In each case,
however, an agency must give notice at such time and in such a manner as will enable
interested members of the public to attend the meeting.” (emphasis added) Ops. Att’y
Gen. Fla. 98-79 (1998). (Citation 22)
Further discussion on deriving the definition of a ‘Reasonable’ and ‘Ordinary Person’
follows in section VI. Plaintiffs Legal Arguments.
V. PLAINTIFFS’ FACTUAL ALLEGATIONS
16. The name ‘Airpark’ is differentiated from an ‘Airport’ in that: “an Airpark is a small
airport for private planes, esp. one located near an industrial park or other commercial center”
Collins online Unabridged English Dictionary ,https://www.collinsdictionary.com
/dictionary/english/airpark (Citation 23) Numerous local parties were aware that an existing 20
year (4 x 5 yr) lease for the Clearwater Airpark (Hereinafter ‘Airpark’) would be under review
the in upcoming year. Upon Jon Jennings's (then the City Manager) last minute and temporary
unavailability, Plaintiff Gagliano, along with Dennis McDermott and Ray Clark first met with
(then) Marine and Aviation Operations Manager Michael MacDonald on Friday, February 25,
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2022. Given MacDonald’s demonstrated lack of airport expertise, having worked principally as a
former Fire Department ‘Grant Writer’ rather than as a knowledgeable Airport ‘Operations
Manager’(then his job title), understandably little was accomplished at this meeting.
17. Plaintiff, Dennis McDermott and Ray Clark (hereinafter ‘the study group’) subsequently
met with City Manager Jon Jennings, on Friday, March 4, 2022. A cordial and productive one
hour meeting took place and an agreement was made to conduct actual on-site, real-world
research into comparable City owned and operated Florida airports and report our findings back
to the City Manager and staff. A considerable effort was made to provide the City of Clearwater
with a Clearwater Airpark ‘self-management’ or ‘benchmark’ plan against which the upcoming
#38-22 “Request For Proposal for Fixed Base Operator Services” (RFP) could also be evaluated.
(Exhibit 2) The Florida Administrative Code defines a fixed-base operator as "an individual or
firm operating at an airport and providing general aircraft services such as maintenance,
storage, ground and flight instruction." Fla. Admin. Code R. 12D-7.016; (Citation 24) The use
of the term FBO by the City RFP is in the context of operating the airport itself, rather than
“providing general aircraft services” and is inconsistent with the Florida Administrative
Code definition supra. Here the City employees don’t properly define what a Fixed Base
Operator is, yet they expect the public to understand this flawed RFP process.
18. In April 2022, an on-site visit was made to Albert Whitted Airport (KSPG) by the study
group, a city owned and managed airport encompassing 110 acres on the St. Petersburg
waterfront (Exhibit 3). An informative meeting was held with Airport Manager Richard Lesniak
that included a disclosure of city airport operations and finances. Albert Whitted Airport may be
considered in many ways to be a ‘comparable’ small airport to the City owned Clearwater
Airpark. It is a well regarded small public airport, and has survived several attempts by City
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officials to convert it’s land into luxury Condominiums. These attempts have failed due in no
small part to the application of the Sunshine Law.
19. The next on-site visit by the study group was made on May 3, 2022 to the Zephyrhills
Municipal Airport (KZPH), a city owned and managed airport encompassing 813 acres including
a substantial airport industrial park. (Exhibit 4) We met with Airport Manager Nathan Coleman,
and had a productive meeting discussing City management, staff and operations. Of specific
interest was the Zephyrhills’ Airport ‘self-service’ fuel operation that is operated by the City of
Zephyrhills itself. This very competitive service has generated a gross margin of about $2.50 per
gallon of fuel sold, compared to the $0.10- 0.20 per gallon paid to the City of Clearwater by the
FBO under the previous contract while using City owned equipment. In addition, Zephyrhills
Airport also has private Av-gas and Jet fuel sales offered by an independent FBO. The fuel
equation at Clearwater Airpark will be explored further in §] 20 infra.
20. The third on-site visit by the study group was the subject airport Clearwater Airpark
(KCLW) located on 47 (documented) acres of land located in the North Eastern quarter of the
City of Clearwater. (Exhibit 5) The Airpark is adjacent the Landing’s golf course and has
residential neighborhoods to the North , South, and West. (Exhibit 6) Aircraft must approach and
depart the field to either the North or South. Also reviewed was the Airport Land Plan
(Hereinafter ALP) aka “Airpark Master Plan” and it’s 2020 “Final Airport layout{sic] plan”,
(Exhibit 7) along with numerous additional documents. The Airpark’s past financial difficulties
resulted partially from a former lease that paid the City about $20,000 per month in fixed rent
(adjusted for inflation), plus ten cents per gallon for fuel sales. This $20,000 per month of
income continues under the new contract however the fuel sales payment is now zero.
Actual Airpark income currently paid to FlyUSA is apparently well in excess of $60,000
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per month. To put this additional fuel sales income in perspective, if the Airpark were to
dispense (flow) 10,000 gallons of Av-Gas per month from a fuel farm the City already
owns, (A low figure) the income could be at least an additional $2,500-$3,500./mo. beyond
the est. $60,000/mo Airpark existing base income. The long planed ‘T’ hanger expansion
project, constructed with 80% state FDOT funds would create app. $ 18,000/mo. in
additional revenue alone. There are many additional Airpark income sources available, were
the City to properly operate the Airpark (whether 47 or 60 acres) as a ‘business’ or City
Enterprise.
21. Part of the Airpark study eventually involved the City / FlyUSA lease (Exhibit 20
including exhibits a-c) which provides all Airpark revenue to benefit the leaseholder for the
aforementioned $20,000 (app.) per month payments. This lease also provides FlyUSA with
unchecked operational control of the entire Airpark. However, many significant maintenance
and upgrade expenses remain and are principally the responsibility of the City and Florida
taxpayers. The City has had a lengthy pattern of ‘deferring’ necessary expenses that were
included in the ALP and it’s 2020 “Final Airport layout[sic] plan”. This flawed income
availability and the improper City asset depreciation funding also were contributing factors to the
Airpark’s unacceptable financial performance as a “City Enterprise Fund” operation. If
depreciation reserves are made available, there is simply no rational basis to declare the present
revenues to be insufficient to fund the City’s obligations to operate the Airpark.
22. The final airport visited by the study group was St. Petersburg/Clearwater International
Airport (KPIE), a large 1900 acre mixed use facility serving General, Commercial, Airline and
Military aviation users and owned and operated by Pinellas County, Florida. (Exhibit 8). Of
specific interest is a ‘T’ hanger project developed entirely with private funds and owned by
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pilots in a ‘condo’ association. Recognizing the Bay area’s shortage of ‘T’ hangars, this project
leased available airport land from the County; constructed T-hangars under a condominium legal
structure; and then sold the individual hangars with 20 year land leases to aircraft owners seeking
reliable, safe and affordable space for their aircraft. The result has been a reliable stream of land
rent to Pinellas County, in addition to ad valorem tax revenue paid by each individual condo
hanger owner to help support the County; Schools; Library system; EMS; fire protection;
surface water management, etc. Today, the 120 condo hangers at KPIE collectively contribute
about $216,000 annually to tax collections (120 units x $1,800 each), plus the ground rent,
estimated to be $50,000 annually, all achieved with zero infusion of public funding, and zero
current and future public liability.
23. As part of the above study, Gagliano, McDermott and Clark determined specific
areas and parcels at Clearwater Airpark that could be developed in a similar fashion and
provide additional benefits to the City and taxpayers.. This form of private/public
development has not been attempted at Clearwater Airpark and was precluded by the past and
now current form of leasing the Airpark by placing sole control in a single overarching private
for-profit entity. The subject City RFP, subsequent process, and resultant lease is highly
irregular based on consistent Florida public airport ownership and management practices
(Exhibit 9) Demonstrably, this contract is contrary to the public’s financial and land use
interests and unlikely to have been even considered if given proper public oversight. (Clark
Affidavit 1, Gagliano Affidavit 3 and McDermott Affidavit 4)
24. At no time apparent from the public record did Defendants research any
comparable Florida Airport practices as a necessary part of their required due diligence.
“The theory behind due diligence holds that performing this type of investigation contributes
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significantly to informed decision making by enhancing the amount and quality of information
available to decision makers and by ensuring that this information is systematically used to
deliberate on the decision at hand and all its costs, benefits, and risks”” Chapman, C. E. (2006).
Conducting Due Diligence. Practicing Law Institute, New York, NY (Citation 25). Ordinary due
diligence would have involved audited financial statements, background and credit checks, and
an independent analysis of the proposals by experts who know what to look for in projected
business plans. Nothing approaching this level of investigation is present in the public record.
Were the RFP process to be undertaken with ‘Due Diligence’ and in compliance with the
Sunshine Law, the City could also remove the appearance of “Hanky Panky”. (Citation 19 supra)
25. Gagliano and McDermott then met with Eric Gandy, the new director of Marine and
Aviation (and now the new Chief of Police) on May 22, 2022 and reviewed our findings and
generally discussed the Clearwater Airpark process. Despite being the normal form of municipal
airport operation, Gandy stated the proposal for direct City Airpark management was “not
feasible” and expounded, among other claims, a ‘three leg’ theory of airport income. This theory
suggests that 1/3 of the airport income comes from fuel sales, 1/3 from flight school revenues
and 1/3 from rental income. Even if true, this quaint theory would not preclude Airpark operation
directly by the City.
26. Besides being utterly simplistic as well as incorrect, it was surprising that this “three leg”
theory was even mentioned in analyzing or explaining the Clearwater Airpark finances to
numerous parties by Eric Gandy. Instead, a financially sound ‘Income and Expense with Profit
and Loss Statements’ approach employing due diligence was reasonably expected of City staff.
These methods, perhaps eventually attempted, should also have been provided to City Council,
City Boards, and the public concurrent with the RFP process. A ‘thumbnail’ Income and
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Expense statement provided to Jon Jennings, Jennifer Poirrier and Eric Gandy at a City
Manager’s meeting on Oct 24, 2022 showed the FY 2021 ‘Loss’ under contractor operation to be
app. -$200,000. If operated by the City directly, the potential ‘Profit’ or income by the Airpark
could have been + $200,000 for the same period. This comparison is also without the scheduled
‘T’ hanger construction or other sources of additional Airpark income. (McDermott Affidavit 4
Exhibit 2 page 2). Even an ‘Ordinary Person’ can recognize the difference between losing two
hundred thousand dollars a year or making that sum in that same year (if they had been so
informed), and could respond accordingly. Both the study group and the City’s figures include
future projections, better known to laypersons as ‘a guess’.
27. It is important to note that Eric Gandy, at all times relevant to this RFP process, was in
control of the initiation, selection, recommendation and negotiations involved. Gandy had been
Director of Marine and Aviation for a brief period and unfortunately is not a ‘subject matter
expert’ in any of the required areas. He was (and is again) a respected career Law Enforcement
Officer, formerly as the Deputy Chief and now the Chief of the Clearwater Police Department.
With the clear reality of a lack of qualified City staff to perform the necessary analysis of the
Airpark matter, Plaintiff Gagliano, with McDermott and Clark undertook this task Pro Bono (as
detailed in 418-23 supra). While arguably not being ‘subject matter experts’, Gagliano,
McDermott and Clark were able to research and produce an accurate analysis of the Clearwater
Airpark that the City was unwilling or unable to do itself. The resulting ‘study group’ work
product as demonstrated throughout this Complaint ‘speaks for itself’.
28. Lacking a thorough (or even any) ‘Subject Matter Expert’ analysis of the operation and
finances of the Clearwater Airpark, and seemingly ignoring clear and open facts that raise
serious underlying questions, the City was without a proper basis or knowledge to either create
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an appropriate Airpark RFP or evaluate the private operator proposals in the RFP process. At no
time apparent from the public record did Defendants perform the necessary ‘Income and
Expense’, verified analysis of the Clearwater Airpark Enterprise Fund’ finances. It is hard to
understand how the City has repeatedly failed to report, or perhaps even meet the applicable
Government Accounting Standards Board (GASB) requirements, at least based on information
released to the public.
29. Also inexplicable is the lack of any financial ‘due diligence’ to the four competing RFP
responses or the three finalists. Without procedures verifying the accuracy of information in
the submitted proposals, a legitimate RFP selection was impossible. This would have been
apparent had this selection process been conducted in accordance with ‘Generally Accepted
Accounting Principals’ and in compliance with the Sunshine Law. Furthermore, statements were
made by then Director Gandy to Council on 9/15/2022 and to others regarding the proposed
Airpark operations. While perhaps well-meaning, these statements were grossly misleading to
Council and simply unsupported by the facts. (Video Exhibit 2 starting at 1:48). Gandy also
remarked that many people had differing opinions on the Airpark issue (as one may expect).
However, the almost universal consensus was opposition to adoption of the Airpark resolution.
FlyUSA attorney was the only person who spoke in ‘public comments’ in favor of the resolution
adoption and his statements,
just over a year later, can now be judged on their merits. (Video
Exhibit 2 starting at 2:29) Attorney Brian Aungst, Jr. has a long history of distinguished service
to the community, especially in real estate matters. However in this instant case, his words
should be taken as a lawyer representing his client’s interests.
30. Shortly before the expiration of an existing Airpark FBO contract, the City developed and
published a Request For Proposal (RFP) at the direction of (then) City Manager Jon Jennings.
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The City had known of this impending deadline for five years, yet the process was delayed until
the existing lease had almost expired and a new City Manager was in place, perhaps contributing
to this unnecessarily rushed and flawed process. The document “Appraisal Report - Fair Market
Annual Rental For Aeronautical Land and Various Buildings and User Fee Estimates at the
Clearwater Airpark, Clearwater, Pinellas County, Florida” Slack, Johnson, Magenheimer (SJM
File: 22029 (hereinafter Slack, Johnson Appraisal) (Exhibit 10) had been prepared for the City
and made a part of the RFP solicitation. Along with this appraisal, one must also conclude that
the City’s Airport Land Plan and it’s 2020 update (also part of the RFP documents) were either
not understood nor properly considered by this City ‘evaluation committee’. For example, the
County property tax folio Number (aka Parcel Number) 12-29-15-55836-001-0007 is
described as ‘1900 Gilbert Street, a 5.73 acre parcel owned by the City of Clearwater’ and
otherwise known as Marymont Park OSR ‘recreational’ land. It cannot be disputed that
this is this same property tax folio number (12-29-15-55836-001-0007) that is made part of
the property descriptions in the FlyUSA lease. Perhaps, not just the evaluation committee, but
both City staff and City Council do not accept plain facts which resulted in a violation of the City
Charter and without providing the required public knowledge, proceeded with a violation ofthe
Sunshine Law.
31. It is impossible to reconcile income figures in the Slack, Johnson appraisal with the result
of the City RFP process. Having been given the opportunity, it would have been apparent to an
‘ordinary, reasonable person’ that the City personnel involved demonstrated they lacked both the
knowledge and experience required to research, prepare and then evaluate the RFP properly for
action by City Council, nor had the City involved the appropriate ‘subject matter experts’
seemingly necessary. There are additional examples that also make this point.
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32. The Airpark Management RFP was advertised, not in industry trade media that would be
effective and relevant to this offering such as Airport Industry News or Airport Business, (to
name but a few) but instead in the Tampa Bay Times on Wednesday, July 6, 2022 and on the
City’s Website. Neither reach the appropriate audience for this RFP, challenging whether the
City’s goal had even been soliciting the highest and best proposals for the citizens of Clearwater.
Publishing this form of notice was a deliberate action by the City that predictably limited
knowledge of this RFP while appearing to comply with the proper statutory notice requirement.
(Exhibit 11) without really informing relevant parties.
33. It should be noted that all four respondents to the RFP (Exhibit 14), as well as Plaintiff,
had knowledge of this RFP that did not come from the published notice or the City website
announcement. After an unusually short RFP deadline of 30 days, more common and appropriate
to minor matters, four responses were received to this extremely complex, and very strategic
project. Proposals were then evaluated on 8/22/22 by a ‘committee’ of City employees (later
learned to be; Eric Gandy, Denise Sanderson, Jeremy Brown, Phil Kirkpatrick and Michael
MacDonald. All are well regarded City employees, however they are demonstrably not
‘subject matter experts’ when it concerns airport operations and the underlying airport
land and financial issues. They proceeded to review and score the four competing proposals
received, (Exhibit 15) without any evidence of ‘due diligence’ (Citation 25 supra) of the
underlying accuracy of statements or claims in the responding proposals, and further, with no
public oversight or input.
34, What little has eventually been disclosed to the public raises many questions into the
‘methodology’ ofthis process_which scored respondents in a manner more resembling judging
contestants in a talent contest. This committee then selected and interviewed the top three
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proposers. Many of the critical issues then being scored were addressed in a purely subjective
manner rather than a conventional analytical manner.(Exhibit 16) (Affidavit 4)
35. Additionally, it is concerning that this multi-million dollar RFP, affecting the long-term
future of the Airpark follows the same 30 day response time appropriate for routine and
relatively minor City activities. Actions such as ‘Fireworks Displays’ and ‘Portable Bathrooms’
are also provided the same type of notice and 30 day response deadline (Exhibit 17). A example
of a similar size RFP at 18.4 million dollars, was the City’s RFP 19-0029-UT, a construction
project at its Northeast Water Reclamation Facility that proceeded under a far more logical and
open process and a 90 day RFP timeline..(Exhibit 18) After a published legal notice that was
clear and intended to inform rather than conceal information, prospective bidders were invited to
participate in a pre-bid and pre-qualification process that included a site visit. The City also
provided additional information to Citizens about the project on it’s website (Exhibit 19).
Clearwater Utilities Engineering Manager Jeremy Brown oversaw this process which appears to
have been properly conducted in accordance with accepted City procedures and the intent of the
Sunshine Law. The same cannot be said for the Airpark selection committee process on which
Jeremy Brown served as one of five ‘non-subject matter expert’ members. Needless to say, an 18
million dollar sewage treatment plant project would also have been harder to ‘hide under the
radar’ or keep absent public notice.
36. Later, the City’s approach to publishing a seemingly ‘conforming’ notice used a different
means to attempt an ‘end run’ around the Sunshine Law. This time, instead of a superficial notice
allegedly seeking RFP respondents, the City resorted to an incomprehensible ‘Public Notice’ that
raises more questions than it answers if one were to attempt to ‘decode’ the legal description
provided. Further, the City Defense Counsel even provides to this Court an edited and even more
20
misleading ‘Public Notice’ as a part of their defenses. (Exhibit 12), The “Ordinary Person”
should not have to be a GIS Cartographer to understand matters for public discussion before City
Council, as is the Sunshine Law’s clear intent. Yet it is possible, and with little additional effort
on the part of the City, to provide an appropriate public notice.
37. The neighboring City of St. Petersburg seemed to be able to produce a ‘notice’ that (A)
was presented in such a way that the property itself and location was identifiable to an ordinary
citizen; (B) have a clearly defined purpose, and a call to action which provides clear 'next steps'
for those interested; (C) include a sketch, map or photo showing where the property is located;
and (D) provide sufficient time for respondents investigation and response. (Exhibit 13)
Therefore, one can assume that a proper notice by the City of Clearwater was also possible.
38. City Council met on 9/15/2022 to approve the Selection of FlyUSA and direct staff to
“engage in negotiations with FlyUSA and Paradise Ventures [as FlyUSA, PV, LLC]. for the
purpose of establishing a lease and operating agreement
for Fixed Base Operator (FBO)
services at Clearwater Airpark.” The City staff summary for Council included the statement (in
pertinent part): ’again, the committee
felt that the development partnership of FlyUSA and
Paradise Ventures presented a vision that was most closely aligned with the RFP. The RFP
solicited proposals that envisioned the possibility of higher value but safer and less intensive
operations, a commitment to capital improvements, as well as an understanding that the
Airpark’s relationship with the neighborhoods and a commitment to maintain and enhance
communications with all users and the neighborhoods ’”’.(emphasis added) Unfortunately, the
reality is quite different; First, the “higher value” operations envisioned in the FlyUSA plan
can hardly be considered either “safer” or “less intensive”, and the “higher value” is to benefit
FlyUSA, not the City, Stakeholders or taxpayers. While this claim “safer” or “less intensive”
21
could be true at an airport such as St. Petersburg /Clearwater International Airport designed for
jet and commercial, all weather (IFR) large aircraft operations (Exhibit 8 supra), the same cannot
be said for the small, neighborhood Clearwater Airpark designed and used for small recreational
General Aviation aircraft. (Citation 23 supra)
39. Second, according to ‘generally accepted accounting principles’ when applied to the
FlyUSA proposal or contact, it does not envision their making a “significant commitment to
capital improvement”. Instead the majority of funds will clearly be coming from the taxpayers of
Clearwater and Florida, principally through Florida Department of Transportation (FDOT) 80%
and 50% grants, Pinellas County and City funds. Almost without exception, citizens and Board
members have an incomplete or incorrect understanding of this Airpark agreement (Exhibit 20)
due in part to numerous violations of the Sunshine Law.
40. Third, a “commitment to maintain and enhance communications with all users and the
neighborhoods” has not been the practice throughout this process and is the very subject of this
Amended Complaint against the Defendants.
Incidentally, all of the stated goals of the City RFP for the Airpark could be
accomplished with the City operating the Airpark itself given appropriate
personnel, providing significant benefits to both users and taxpayers. Again, this is
the universal practice among municipally held airports in Florida.
41. Plaintiff Gagliano provides an Affidavit with exhibits (Gagliano Affidavit 3) and spoke
for 3 minutes on City Council agenda item 11.4 in opposition to this matter at its regular meeting
on 9/15/22, as transcribed below from the City recording (Video Exhibit 2 at 1:58);
“Good evening Mr. Mayor, Council Members, Jon Jennings, City Attorney Margolis. I’m
here to talk in opposition to item 11.4. I’m not opposed to the idea that the City do an
22
RFP and reassess the Airpark in any way. I’m opposed to the way this was done. It
caught a lot of people by surprise. You're going to hear from a lot of people who will
likely say, ‘I heard about this yesterday’. This is not the kind of thing that needs to be
done that quickly. You have an operator here, [David King in audience] he’s been there *
for 22 years, if you want him there for another year, half a year, whatever ---there is
nothing stopping that from happening as far as I know. David is here to speak to that. I’m
proposing something that is entirely different, and it’s entirely different only in the sense
that it’s the way every city-owned airport in the State is done.
The City operates the airport. The City rents the city-owned property. Hangars are city-
owned property. Tie-downs are city owned property. It’s not done by an FBO. FBO’s are
typically contractors that do services like sell the fuel, maintain the aircraft, do flight
instruction, provide services. But the actual public property is managed by the public
entity that owns it; The City. And, that is without exception [in Florida]. Now, I’ve heard
that this is not practical here, but there is no explanation not only why it’s not
practical, but why it’s not preferable.” [emphasis added to myself]
J used some numbers that came from the RFP, actually, there was an appraisal in that
RFP and you all have page 85 from that- that’s your appraisal. Unfortunately it didn’t
really reduce things to simple numbers. So, I did the math and looked at what it was
saying. [recalculating income into annual totals] This Airpark should be generating just
on rental income from the hangars, we're not talking about income from industry, like
businesses that do aircraft maintenance or whatever — strictly the hangar income — and,
as you can see there, according to the study they did — it is $732,000. That number is a
little ambitious, but I’m not going to argue with your study other than to say if you took a
23
close look at it, the number might be a little lower than that. What the City realizes right
now from the hangar rental part ofthis deal [20,000/mo.]is nowhere near that number,
and it could be that number [$60,000/mo.]. The Airpark is pretty much maxed out. There
is no more room for planes in the T-hangars; there’s no more room (I thought there was
some room in the shade hangars, but I just heard tonight that the shade hangars are
filled up too). The Airport is pretty full right now, and...”[3 minute time expires]
[Exhibit 21 added here to illustrate Tie downs, Shade and ‘T’ hangers]
42. Continuing in chronological order, Plaintiff's and Dennis McDermott’s (Ray Clark was
absent for a medical reason) final meeting with then City Manager Jon Jennings, then Assistant
City Manager Jennifer Poirrier (now City Manager) and them Director Eric Gandy (now Chief of
Police) occurred on Oct 24, 2022, to learn that only the contracted ‘private operator’ approach
was being considered. It seemed that Eric Gandy’s unsubstantiated opinion that the
operation of the Airpark directly by the City was “not feasible” had become a refrain
repeated to and accepted by the City Manager, Airport Advisory Board and to City
Council. However, this opinion is unsupported by any expert financial or operational analysis
and again, contrary to universal Florida County and City government practice.
43. Relying on the judicial standard of the ‘ordinary person’, most citizens (including those
who did attend City Council meetings) likely found the presented ‘facts’ of the matter to be
deliberately confusing, incorrect, incomplete or outright concealed from public scrutiny.
The public voiced this sentiment at the City Council meetings on 9/15/2022 and 1/12/23 and the
Advisory Board meeting on 9/9/2022 which are included as Video Exhibits 1-3. Based on the
City’s own record, even City Council members, relying on City staff presentations were
confused as to the correct facts of the matters under consideration and then were provided
24
incorrect and/or incomplete answers by the City Attorney Margolis, Assistant City Attorney
Mytych and City staff. On 1/12/2023 (Video Exhibit 3 beginning at 52:15) City Council was also
told by City Staff that they could inquire further if desired but instead of a clearly appropriate
delay, immediate action was taken on both Council Agenda items 8.1 and 9.2.
44, During the City Council agenda hearing on item 8.1 on January 12, 2023 declaring the
subject property “surplus”, a number of speakers were heard and then a brief discussion was held
between some members of City Council and City staff as transcribed from the City recording:
Mayor Hibbard: ‘Anyone from the public to speak to item 8.1?’ [Pause] ‘Do I have a
motion?’ [Before immediately calling for a motion, Mayor Hibbard was required to hear
from the public; Someone got up at the back of the room] ‘Oh, come on up.’ [FlyUSA
Attorney Brian Aungst Jr. approached the podium]
Attorney Aungst, Jr. (Video Exhibit 3 at 53:18): ‘J appreciate that, Mr. Mayor. Brian
Aungst, 625 Court Street, on behalf
of FlyUSA PV, LLC. As you all know, and maybe this
will address some of the public comments that are anticipated, this item is not related to
the Lease, the Lease terms will be discussed in Item 9.2. This item is a legal technicality
regarding your Charter provision which requires that any lease for more than a 5 year
term requires the Declaration of Surplus. This does not divest the City of ownership or
control of the property; it does not allow the City to sell the property without another
public process; and public hearing; and purchase and sale agreement and there is no
request or suggestion that that would be done.
So, again, this is a legal technicality
for your Charter provision and I want to just put on
the record, the current lease has a term — has been in place — for 22 years so arguably
under this interpretation of the Charter, the current operator, the current lease, the
25
property should have already been declared surplus back in the year 2000. So, again,
this is a very routine technical matter and the lease terms will be addressed in Item 9.2
”
and we will reserve our comments
for that time. Thank you, Sir.
[Here, FlyUSA Attorney Aungst Jr., speaking on behalf of FlyUSA PV, LLC., misstates the
controversy as a mere “legal technicality” rather than violating the Clearwater City
Charter (City of Clearwater Charter Art. II, §. 2.01. (5) (v) (Citation 26) requiring a public
referendum for the Marymont Park OSR property. This was in large part made possible by
the repeated violations by the City of the Sunshine Laws. Attorney Aungst surprisingly goes on
to note that the City has violated the “surplus” land designation requirement for the
Preview
Filing # 186405215 E-Filed 11/17/2023 04:06:11 PM IN CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CASE NO. 23-943-CO PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT EXHIBIT A AMENDED COMPLAINT SEEKING DECLARATORY AND INJUNCTIVE RELIEF AND INCORPORATED MOTION FOR SUMMARY JUDGMENT ON BEHALF OF PLAINTIFF ***ELECTRONICALLY FILED 11/17/2023 04:06:07 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*** IN CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA PAUL GAGLIANO, Pro Se Plaintiff, CASE NO. 23-943-CO CITY OF CLEARWATER, a Municipality, FRANK HIBBARD, BRIAN AUNGST Sr., MARK BUNKER, KATHLEEN BECKMAN, DAVID ALLBRITTON, LINA TEIXEIRA, JENNIFER POIRRIER, ERIC GANDY and DAVID MARGOLIS . Defendants. AMENDED COMPLAINT SEEKING DECLARATORY AND INJUNCTIVE RELIEF AND INCORPORATED MOTION FOR SUMMARY JUDGMENT ON BEHALF OF PLAINTIFF Plaintiff, PAUL GAGLIANO Pro Se, hereby sues the Defendants, CITY OF CLEARWATER, a Municipality, FRANK HIBBARD, BRIAN AUNGST Sr., MARK BUNKER, KATHLEEN BECKMAN, DAVID ALLBRITTON, LINA TEIXEIRA, JENNIFER POIRRRIER, ERIC GANDY and DAVID MARGOLIS and alleges: I. INTRODUCTION 1 This lawsuit is filed by Plaintiff against the City of Clearwater, et. al.,(hereinafter City) after a conspiracy to violate Florida Statutes Section 286.011 (Citation 1), hereinafter the “Sunshine Law’. This occurred beginning with an effort to create a Request for Proposals (hereinafter RFP), to evaluate responsive proposals for Fixed Base Operations (hereinafter FBO) in violation of the Sunshine Law and then subsequently to include with the Clearwater Airpark (hereinafter Airpark) properties, a portion of Marymont Park requiring a public referendum for said action in a Declaration of Surplus along with the Airpark. The City then negotiated and entered into a long-term lease with a private entity, FlyUSA and Paradise Ventures, and including FlyUSA,PV, LLC. (Hereinafter FlyUSA) again without compliance with the Sunshine Law. This represents the recent, repeated and ongoing violations of the Sunshine Law by the Defendants in this case. 2 As part of this conspiracy, council members, or their proxies: A. City staff developed and published a Request for Proposal (RFP) then a ‘committee’ selected and recommended a ‘winner’ to City Council for further contract action in a manner totally absent public oversight and contrary to the Sunshine Law. City staff published a ‘Notice’ of a public meeting on this topic on a date during the holidays (12/28/2022), when it would be hardly noticed. The Notice also described the intended action in a way that an affected citizen would not even realize the proposed action under consideration was involving the Clearwater Airpark. These actions are contrary to the clear intention of the Sunshine Law. This City action also involved reclassifying and leasing a portion of Marymont Park in violation ofthe City Charter. The City Council unanimously voted to approve the matters at issue at a public meeting on January 12, 2023, despite a clear and concise public verbal request made by a Citizen (Dennis McDermott), among others, at this meeting seeking to postpone such action until all of the relevant factors of both agenda items could be verified, the Sunshine Law violations corrected, and a lawful vote could be held. City Council then directed its staff to enter into negotiations with FlyUSA, resulting in a long term lease for the Airpark, now including additional land parcels without the public oversight called for by the Sunshine Law. This lease, entered into in a process contrary to Florida law, also calls for an expenditure of State of Florida and City of Clearwater public funds in excess of twenty two million dollars substantially to benefit a private company. The lease rate also enormously undervalues the Airpark public property to the detriment of taxpayers and without their required oversight. D. The entire Airpark RFP, from conception through contract execution was conducted in violation of the Sunshine Law and new violations continue to occur. It is not reasonable to ignore the overwhelming circumstantial evidence that supports this claim of Conspiracy against the Defendants. Plaintiff alleges this conspiracy count against Defendants anticipating that a ‘rational trier of fact’ can conclude that a “preponderance of credible evidence’ exists, and supports this count. 3. Plaintiff therefor seeks declaratory and injunctive relief against the Defendants. This complaint amends the original complaint that was filed on February 3, 2023. Plaintiff's original Complaint and Defendant's Motion for Summary Judgment was heard on May 17, 2023. At this hearing, the Court dismissed Defendants Summary Judgment Motion and granted leave for Plaintiff to file an amended complaint. Il. JURISDICTION 4 This Court has jurisdiction over this controversy pursuant to Art. I, § 24(b), Fla. Const; (Citation 2) Art. V, § 20(c)(3), Fla. Const. (Citation 3); Fla. Stat § 26.012(2)(e) and (3) (Citation 4); Fla. Stat§ 86.011; § 286.011(4) (Citation 5); and Rule 1.610, F15. R. Civ. P. (2022) (Citation 6). Venue lies in Pinellas County, Florida, because the acts for which suit is brought have occurred or are occurring in Pinellas County, Florida, and the Defendants are located within Pinellas County, Florida. TH. PARTIES The parties to this complaint consist of: Plaintiff, PAUL GAGLIANO Pro Se (‘Gagliano’) , is a resident of Pinellas County, Florida, and a citizen of the State of Florida. Defendant, CITY OF CLEARWATER, (Hereinafter ‘City’), is a Florida municipality. The City Council is the governing legislative body of the City and is ajoint collegial body or board within the meaning Of Art. I, § 24(b), Fla. Const, supra and Fla. Stat. § 286.01 1 supra Defendant, FRANK HIBBARD, at all times relevant, was the former Mayor and a member of the City Council. Defendant BRIAN AUNGST, SR. the interim Mayor and became a member of the City Council acting on relevant matters. Defendant, MARK BUNKER, at all times relevant, was a member of the City Council. Defendant, KATHLEEN BECKMAN, at all times relevant, was a member of the City Council. Defendant, DAVID ALLBRITTON, at all times relevant, was a member of the City Council. Defendant, LINA TELXEIRA, at all times relevant, was a member of the City Council. Defendant JENNIFER POIRRIER, at all times relevant, was the Assistant City Manager, Acting City Manager or the City Manager for the City. Defendant ERIC GANDY, at all times relevant, was the Director of Marine and Aviation for the City. Defendant, DAVID MARGOLIS, at all times relevant, was the City Attorney for the City. IV. CONSTITUTIONAL AND SUNSHINE LAW 6. The concept of ‘open government’ was first noted in Ancient Greece in the fifth century B.C., where different legal institutions regulated the behavior of officials and offered a path for citizens to express their grievances towards them. Columbia Law Review. 97 (5): 1483-1518 (Citation 7) Roman poet Juvenal from his Satires wrote : “Quis custodiet ipsos custodes? (Trans: “Who will guard the guards themselves?’”’) (Satire VI, lines 347-348) (Citation 8) As governments came to be infused with more ‘enlightenment thought,’ the revolutions in United States (1776) and France (1789), enshrined provisions and requirements for public budgetary accounting and freedom of the press based upon foundational American constitutional documents such as The Federalist Papers. In Federalist #51 James Madison wrote: “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place, oblige it to control itself: A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. ”’(Citation 9) 8. Federal rights to judicial review were established from the US Constitution Art. III, s. 1 (Citation 10) and illuminated in Gordon v. United States, 117 U.S. 697 (1864) (Citation 11) There can be no question as to the United States being founded on both the principle of open government and a government responsible to, and answerable to the people. Despite sustaining repeated attacks over time, this remains one of our most cherished founding principles. 9. The State of Florida eventually came to further define and expand these rights of public access to governmental meetings. The Florida Constitution provides that the public has a right to access governmental meetings. This applies to the meetings of any collegial body of the executive branch of state government, counties, municipalities, school districts, or special districts., Fla. Const. art. I, s. 24(b) (Citation 12) Plaintiff recites the above founding principals not to recall a Civics lesson, but rather to suggest to this Honorable Court and the Defendants what is at stake in this case, the fundamental, founding principals of our democracy, seemingly now absent at times. 10. Following on these principles, Florida’s Government in the Sunshine Law; Florida Statutes § 286.011 (supra), commonly referred to as the ‘Sunshine Law’, provides a right of access to governmental proceedings of public boards or commissions at both the state and local levels. The law is equally applicable to elected and appointed boards and has been applied to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971). (Citation 13) 11. Because Fla. Stat.§ 286.011 (supra) “was enacted in the public interest to protect the public from ‘closed door’ politics .... the law must be broadly construed to effect its remedial and protective purpose. (in pertinent part) Wood v. Marston, 442 So. 2d 934, 938 (Fla. 1983). (Citation 14) As the Court explained “/t/he statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken.” (emphasis added) 12. A key element of the Sunshine Law is the requirement that boards subject to the law provide “reasonable notice” of all meetings. See, Fla. Stat. § 286.011(1) (supra),. Although Section 286.011 did not contain an express notice requirement until 1995, many court decisions had stated prior to the statutory amendment, that in order for a public meeting to be in essence “public” reasonable notice of the meeting must be given. Hough v. Stembridge, 278 So. 2d 288, 291 (Fla. 3d DCA 1973) (Citation 15). However, in Yarbrough v. Young, 462 So. 2d 515, 517 (Fla. 1st DCA 1985) (Citation 16), the appellate court later reversed the lower court because it found the public notice error was made through media reporting, not by deliberate City action. 13. Reasonable notice is required even though meetings of the board are “of general knowledge” and are not conducted in a closed-door manner. 7S/ Southeast, Inc. v. Royals, 588 So. 2d 309 (Fla. Ist DCA 1991).(Citation 17) And see, Baynard v. City of Chiefland, No. 38- 2002-CA-00078 (Fla. 8th Cir. Ct. July 8, 2003) (Citation 18) (reasonable notice is required even if subject of meeting is minor or “relatively unimportant’). These cases all demonstrate the common requirement by the Courts for proper public notice. 14, The following is an excerpt to the following lengthy opinion of the Florida Attorney General (Ops. Att’y Gen. Fla. 71-32 (1971) (Citation 19) on the Subject of Public Meetings and the Sunshine Law, that states in pertinent part: “The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country. During past years tendencies toward secrecy in public affairs have been the subject of extensive criticism. Terms such as managed news, secret meetings, closed records, executive sessions, and study sessions have become synonymous with ‘hanky panky’ in the minds of public- spirited citizens. One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.” (emphasis added) 15. The term “Reasonable” as used in the Sunshine Law is governed by what is defined as reasonable to a “Reasonable Person”.Merriam-Webster.com Legal Dictionary, Merriam- Webster, https://www. merriam webster.com /legal/reasonable/ (Citation 20) Clearly, Plaintiff disagrees as to what is “reasonable” to the City and seek review by this Honorable Court of the Defendants repeatedly failed to provide “reasonable” (or at times any) open access to hearings and meetings on the Airpark matter while insisting that they have “went above the » requirements”. (Exhibit 1) “The type of notice that must be given is variable however, depending on the facts of the situation and the board involved.” Ops. Att’y Gen. Fla. 04-44 (2004). (Citation 21) “In some instances, posting of the notice in an area set aside for that purpose may be sufficient; in others, publication in a local newspaper may be necessary. In each case, however, an agency must give notice at such time and in such a manner as will enable interested members of the public to attend the meeting.” (emphasis added) Ops. Att’y Gen. Fla. 98-79 (1998). (Citation 22) Further discussion on deriving the definition of a ‘Reasonable’ and ‘Ordinary Person’ follows in section VI. Plaintiffs Legal Arguments. V. PLAINTIFFS’ FACTUAL ALLEGATIONS 16. The name ‘Airpark’ is differentiated from an ‘Airport’ in that: “an Airpark is a small airport for private planes, esp. one located near an industrial park or other commercial center” Collins online Unabridged English Dictionary ,https://www.collinsdictionary.com /dictionary/english/airpark (Citation 23) Numerous local parties were aware that an existing 20 year (4 x 5 yr) lease for the Clearwater Airpark (Hereinafter ‘Airpark’) would be under review the in upcoming year. Upon Jon Jennings's (then the City Manager) last minute and temporary unavailability, Plaintiff Gagliano, along with Dennis McDermott and Ray Clark first met with (then) Marine and Aviation Operations Manager Michael MacDonald on Friday, February 25, 10 2022. Given MacDonald’s demonstrated lack of airport expertise, having worked principally as a former Fire Department ‘Grant Writer’ rather than as a knowledgeable Airport ‘Operations Manager’(then his job title), understandably little was accomplished at this meeting. 17. Plaintiff, Dennis McDermott and Ray Clark (hereinafter ‘the study group’) subsequently met with City Manager Jon Jennings, on Friday, March 4, 2022. A cordial and productive one hour meeting took place and an agreement was made to conduct actual on-site, real-world research into comparable City owned and operated Florida airports and report our findings back to the City Manager and staff. A considerable effort was made to provide the City of Clearwater with a Clearwater Airpark ‘self-management’ or ‘benchmark’ plan against which the upcoming #38-22 “Request For Proposal for Fixed Base Operator Services” (RFP) could also be evaluated. (Exhibit 2) The Florida Administrative Code defines a fixed-base operator as "an individual or firm operating at an airport and providing general aircraft services such as maintenance, storage, ground and flight instruction." Fla. Admin. Code R. 12D-7.016; (Citation 24) The use of the term FBO by the City RFP is in the context of operating the airport itself, rather than “providing general aircraft services” and is inconsistent with the Florida Administrative Code definition supra. Here the City employees don’t properly define what a Fixed Base Operator is, yet they expect the public to understand this flawed RFP process. 18. In April 2022, an on-site visit was made to Albert Whitted Airport (KSPG) by the study group, a city owned and managed airport encompassing 110 acres on the St. Petersburg waterfront (Exhibit 3). An informative meeting was held with Airport Manager Richard Lesniak that included a disclosure of city airport operations and finances. Albert Whitted Airport may be considered in many ways to be a ‘comparable’ small airport to the City owned Clearwater Airpark. It is a well regarded small public airport, and has survived several attempts by City 11 officials to convert it’s land into luxury Condominiums. These attempts have failed due in no small part to the application of the Sunshine Law. 19. The next on-site visit by the study group was made on May 3, 2022 to the Zephyrhills Municipal Airport (KZPH), a city owned and managed airport encompassing 813 acres including a substantial airport industrial park. (Exhibit 4) We met with Airport Manager Nathan Coleman, and had a productive meeting discussing City management, staff and operations. Of specific interest was the Zephyrhills’ Airport ‘self-service’ fuel operation that is operated by the City of Zephyrhills itself. This very competitive service has generated a gross margin of about $2.50 per gallon of fuel sold, compared to the $0.10- 0.20 per gallon paid to the City of Clearwater by the FBO under the previous contract while using City owned equipment. In addition, Zephyrhills Airport also has private Av-gas and Jet fuel sales offered by an independent FBO. The fuel equation at Clearwater Airpark will be explored further in §] 20 infra. 20. The third on-site visit by the study group was the subject airport Clearwater Airpark (KCLW) located on 47 (documented) acres of land located in the North Eastern quarter of the City of Clearwater. (Exhibit 5) The Airpark is adjacent the Landing’s golf course and has residential neighborhoods to the North , South, and West. (Exhibit 6) Aircraft must approach and depart the field to either the North or South. Also reviewed was the Airport Land Plan (Hereinafter ALP) aka “Airpark Master Plan” and it’s 2020 “Final Airport layout{sic] plan”, (Exhibit 7) along with numerous additional documents. The Airpark’s past financial difficulties resulted partially from a former lease that paid the City about $20,000 per month in fixed rent (adjusted for inflation), plus ten cents per gallon for fuel sales. This $20,000 per month of income continues under the new contract however the fuel sales payment is now zero. Actual Airpark income currently paid to FlyUSA is apparently well in excess of $60,000 12 per month. To put this additional fuel sales income in perspective, if the Airpark were to dispense (flow) 10,000 gallons of Av-Gas per month from a fuel farm the City already owns, (A low figure) the income could be at least an additional $2,500-$3,500./mo. beyond the est. $60,000/mo Airpark existing base income. The long planed ‘T’ hanger expansion project, constructed with 80% state FDOT funds would create app. $ 18,000/mo. in additional revenue alone. There are many additional Airpark income sources available, were the City to properly operate the Airpark (whether 47 or 60 acres) as a ‘business’ or City Enterprise. 21. Part of the Airpark study eventually involved the City / FlyUSA lease (Exhibit 20 including exhibits a-c) which provides all Airpark revenue to benefit the leaseholder for the aforementioned $20,000 (app.) per month payments. This lease also provides FlyUSA with unchecked operational control of the entire Airpark. However, many significant maintenance and upgrade expenses remain and are principally the responsibility of the City and Florida taxpayers. The City has had a lengthy pattern of ‘deferring’ necessary expenses that were included in the ALP and it’s 2020 “Final Airport layout[sic] plan”. This flawed income availability and the improper City asset depreciation funding also were contributing factors to the Airpark’s unacceptable financial performance as a “City Enterprise Fund” operation. If depreciation reserves are made available, there is simply no rational basis to declare the present revenues to be insufficient to fund the City’s obligations to operate the Airpark. 22. The final airport visited by the study group was St. Petersburg/Clearwater International Airport (KPIE), a large 1900 acre mixed use facility serving General, Commercial, Airline and Military aviation users and owned and operated by Pinellas County, Florida. (Exhibit 8). Of specific interest is a ‘T’ hanger project developed entirely with private funds and owned by 13 pilots in a ‘condo’ association. Recognizing the Bay area’s shortage of ‘T’ hangars, this project leased available airport land from the County; constructed T-hangars under a condominium legal structure; and then sold the individual hangars with 20 year land leases to aircraft owners seeking reliable, safe and affordable space for their aircraft. The result has been a reliable stream of land rent to Pinellas County, in addition to ad valorem tax revenue paid by each individual condo hanger owner to help support the County; Schools; Library system; EMS; fire protection; surface water management, etc. Today, the 120 condo hangers at KPIE collectively contribute about $216,000 annually to tax collections (120 units x $1,800 each), plus the ground rent, estimated to be $50,000 annually, all achieved with zero infusion of public funding, and zero current and future public liability. 23. As part of the above study, Gagliano, McDermott and Clark determined specific areas and parcels at Clearwater Airpark that could be developed in a similar fashion and provide additional benefits to the City and taxpayers.. This form of private/public development has not been attempted at Clearwater Airpark and was precluded by the past and now current form of leasing the Airpark by placing sole control in a single overarching private for-profit entity. The subject City RFP, subsequent process, and resultant lease is highly irregular based on consistent Florida public airport ownership and management practices (Exhibit 9) Demonstrably, this contract is contrary to the public’s financial and land use interests and unlikely to have been even considered if given proper public oversight. (Clark Affidavit 1, Gagliano Affidavit 3 and McDermott Affidavit 4) 24. At no time apparent from the public record did Defendants research any comparable Florida Airport practices as a necessary part of their required due diligence. “The theory behind due diligence holds that performing this type of investigation contributes 14 significantly to informed decision making by enhancing the amount and quality of information available to decision makers and by ensuring that this information is systematically used to deliberate on the decision at hand and all its costs, benefits, and risks”” Chapman, C. E. (2006). Conducting Due Diligence. Practicing Law Institute, New York, NY (Citation 25). Ordinary due diligence would have involved audited financial statements, background and credit checks, and an independent analysis of the proposals by experts who know what to look for in projected business plans. Nothing approaching this level of investigation is present in the public record. Were the RFP process to be undertaken with ‘Due Diligence’ and in compliance with the Sunshine Law, the City could also remove the appearance of “Hanky Panky”. (Citation 19 supra) 25. Gagliano and McDermott then met with Eric Gandy, the new director of Marine and Aviation (and now the new Chief of Police) on May 22, 2022 and reviewed our findings and generally discussed the Clearwater Airpark process. Despite being the normal form of municipal airport operation, Gandy stated the proposal for direct City Airpark management was “not feasible” and expounded, among other claims, a ‘three leg’ theory of airport income. This theory suggests that 1/3 of the airport income comes from fuel sales, 1/3 from flight school revenues and 1/3 from rental income. Even if true, this quaint theory would not preclude Airpark operation directly by the City. 26. Besides being utterly simplistic as well as incorrect, it was surprising that this “three leg” theory was even mentioned in analyzing or explaining the Clearwater Airpark finances to numerous parties by Eric Gandy. Instead, a financially sound ‘Income and Expense with Profit and Loss Statements’ approach employing due diligence was reasonably expected of City staff. These methods, perhaps eventually attempted, should also have been provided to City Council, City Boards, and the public concurrent with the RFP process. A ‘thumbnail’ Income and 15 Expense statement provided to Jon Jennings, Jennifer Poirrier and Eric Gandy at a City Manager’s meeting on Oct 24, 2022 showed the FY 2021 ‘Loss’ under contractor operation to be app. -$200,000. If operated by the City directly, the potential ‘Profit’ or income by the Airpark could have been + $200,000 for the same period. This comparison is also without the scheduled ‘T’ hanger construction or other sources of additional Airpark income. (McDermott Affidavit 4 Exhibit 2 page 2). Even an ‘Ordinary Person’ can recognize the difference between losing two hundred thousand dollars a year or making that sum in that same year (if they had been so informed), and could respond accordingly. Both the study group and the City’s figures include future projections, better known to laypersons as ‘a guess’. 27. It is important to note that Eric Gandy, at all times relevant to this RFP process, was in control of the initiation, selection, recommendation and negotiations involved. Gandy had been Director of Marine and Aviation for a brief period and unfortunately is not a ‘subject matter expert’ in any of the required areas. He was (and is again) a respected career Law Enforcement Officer, formerly as the Deputy Chief and now the Chief of the Clearwater Police Department. With the clear reality of a lack of qualified City staff to perform the necessary analysis of the Airpark matter, Plaintiff Gagliano, with McDermott and Clark undertook this task Pro Bono (as detailed in 418-23 supra). While arguably not being ‘subject matter experts’, Gagliano, McDermott and Clark were able to research and produce an accurate analysis of the Clearwater Airpark that the City was unwilling or unable to do itself. The resulting ‘study group’ work product as demonstrated throughout this Complaint ‘speaks for itself’. 28. Lacking a thorough (or even any) ‘Subject Matter Expert’ analysis of the operation and finances of the Clearwater Airpark, and seemingly ignoring clear and open facts that raise serious underlying questions, the City was without a proper basis or knowledge to either create 16 an appropriate Airpark RFP or evaluate the private operator proposals in the RFP process. At no time apparent from the public record did Defendants perform the necessary ‘Income and Expense’, verified analysis of the Clearwater Airpark Enterprise Fund’ finances. It is hard to understand how the City has repeatedly failed to report, or perhaps even meet the applicable Government Accounting Standards Board (GASB) requirements, at least based on information released to the public. 29. Also inexplicable is the lack of any financial ‘due diligence’ to the four competing RFP responses or the three finalists. Without procedures verifying the accuracy of information in the submitted proposals, a legitimate RFP selection was impossible. This would have been apparent had this selection process been conducted in accordance with ‘Generally Accepted Accounting Principals’ and in compliance with the Sunshine Law. Furthermore, statements were made by then Director Gandy to Council on 9/15/2022 and to others regarding the proposed Airpark operations. While perhaps well-meaning, these statements were grossly misleading to Council and simply unsupported by the facts. (Video Exhibit 2 starting at 1:48). Gandy also remarked that many people had differing opinions on the Airpark issue (as one may expect). However, the almost universal consensus was opposition to adoption of the Airpark resolution. FlyUSA attorney was the only person who spoke in ‘public comments’ in favor of the resolution adoption and his statements, just over a year later, can now be judged on their merits. (Video Exhibit 2 starting at 2:29) Attorney Brian Aungst, Jr. has a long history of distinguished service to the community, especially in real estate matters. However in this instant case, his words should be taken as a lawyer representing his client’s interests. 30. Shortly before the expiration of an existing Airpark FBO contract, the City developed and published a Request For Proposal (RFP) at the direction of (then) City Manager Jon Jennings. 17 The City had known of this impending deadline for five years, yet the process was delayed until the existing lease had almost expired and a new City Manager was in place, perhaps contributing to this unnecessarily rushed and flawed process. The document “Appraisal Report - Fair Market Annual Rental For Aeronautical Land and Various Buildings and User Fee Estimates at the Clearwater Airpark, Clearwater, Pinellas County, Florida” Slack, Johnson, Magenheimer (SJM File: 22029 (hereinafter Slack, Johnson Appraisal) (Exhibit 10) had been prepared for the City and made a part of the RFP solicitation. Along with this appraisal, one must also conclude that the City’s Airport Land Plan and it’s 2020 update (also part of the RFP documents) were either not understood nor properly considered by this City ‘evaluation committee’. For example, the County property tax folio Number (aka Parcel Number) 12-29-15-55836-001-0007 is described as ‘1900 Gilbert Street, a 5.73 acre parcel owned by the City of Clearwater’ and otherwise known as Marymont Park OSR ‘recreational’ land. It cannot be disputed that this is this same property tax folio number (12-29-15-55836-001-0007) that is made part of the property descriptions in the FlyUSA lease. Perhaps, not just the evaluation committee, but both City staff and City Council do not accept plain facts which resulted in a violation of the City Charter and without providing the required public knowledge, proceeded with a violation ofthe Sunshine Law. 31. It is impossible to reconcile income figures in the Slack, Johnson appraisal with the result of the City RFP process. Having been given the opportunity, it would have been apparent to an ‘ordinary, reasonable person’ that the City personnel involved demonstrated they lacked both the knowledge and experience required to research, prepare and then evaluate the RFP properly for action by City Council, nor had the City involved the appropriate ‘subject matter experts’ seemingly necessary. There are additional examples that also make this point. 18 32. The Airpark Management RFP was advertised, not in industry trade media that would be effective and relevant to this offering such as Airport Industry News or Airport Business, (to name but a few) but instead in the Tampa Bay Times on Wednesday, July 6, 2022 and on the City’s Website. Neither reach the appropriate audience for this RFP, challenging whether the City’s goal had even been soliciting the highest and best proposals for the citizens of Clearwater. Publishing this form of notice was a deliberate action by the City that predictably limited knowledge of this RFP while appearing to comply with the proper statutory notice requirement. (Exhibit 11) without really informing relevant parties. 33. It should be noted that all four respondents to the RFP (Exhibit 14), as well as Plaintiff, had knowledge of this RFP that did not come from the published notice or the City website announcement. After an unusually short RFP deadline of 30 days, more common and appropriate to minor matters, four responses were received to this extremely complex, and very strategic project. Proposals were then evaluated on 8/22/22 by a ‘committee’ of City employees (later learned to be; Eric Gandy, Denise Sanderson, Jeremy Brown, Phil Kirkpatrick and Michael MacDonald. All are well regarded City employees, however they are demonstrably not ‘subject matter experts’ when it concerns airport operations and the underlying airport land and financial issues. They proceeded to review and score the four competing proposals received, (Exhibit 15) without any evidence of ‘due diligence’ (Citation 25 supra) of the underlying accuracy of statements or claims in the responding proposals, and further, with no public oversight or input. 34, What little has eventually been disclosed to the public raises many questions into the ‘methodology’ ofthis process_which scored respondents in a manner more resembling judging contestants in a talent contest. This committee then selected and interviewed the top three 19 proposers. Many of the critical issues then being scored were addressed in a purely subjective manner rather than a conventional analytical manner.(Exhibit 16) (Affidavit 4) 35. Additionally, it is concerning that this multi-million dollar RFP, affecting the long-term future of the Airpark follows the same 30 day response time appropriate for routine and relatively minor City activities. Actions such as ‘Fireworks Displays’ and ‘Portable Bathrooms’ are also provided the same type of notice and 30 day response deadline (Exhibit 17). A example of a similar size RFP at 18.4 million dollars, was the City’s RFP 19-0029-UT, a construction project at its Northeast Water Reclamation Facility that proceeded under a far more logical and open process and a 90 day RFP timeline..(Exhibit 18) After a published legal notice that was clear and intended to inform rather than conceal information, prospective bidders were invited to participate in a pre-bid and pre-qualification process that included a site visit. The City also provided additional information to Citizens about the project on it’s website (Exhibit 19). Clearwater Utilities Engineering Manager Jeremy Brown oversaw this process which appears to have been properly conducted in accordance with accepted City procedures and the intent of the Sunshine Law. The same cannot be said for the Airpark selection committee process on which Jeremy Brown served as one of five ‘non-subject matter expert’ members. Needless to say, an 18 million dollar sewage treatment plant project would also have been harder to ‘hide under the radar’ or keep absent public notice. 36. Later, the City’s approach to publishing a seemingly ‘conforming’ notice used a different means to attempt an ‘end run’ around the Sunshine Law. This time, instead of a superficial notice allegedly seeking RFP respondents, the City resorted to an incomprehensible ‘Public Notice’ that raises more questions than it answers if one were to attempt to ‘decode’ the legal description provided. Further, the City Defense Counsel even provides to this Court an edited and even more 20 misleading ‘Public Notice’ as a part of their defenses. (Exhibit 12), The “Ordinary Person” should not have to be a GIS Cartographer to understand matters for public discussion before City Council, as is the Sunshine Law’s clear intent. Yet it is possible, and with little additional effort on the part of the City, to provide an appropriate public notice. 37. The neighboring City of St. Petersburg seemed to be able to produce a ‘notice’ that (A) was presented in such a way that the property itself and location was identifiable to an ordinary citizen; (B) have a clearly defined purpose, and a call to action which provides clear 'next steps' for those interested; (C) include a sketch, map or photo showing where the property is located; and (D) provide sufficient time for respondents investigation and response. (Exhibit 13) Therefore, one can assume that a proper notice by the City of Clearwater was also possible. 38. City Council met on 9/15/2022 to approve the Selection of FlyUSA and direct staff to “engage in negotiations with FlyUSA and Paradise Ventures [as FlyUSA, PV, LLC]. for the purpose of establishing a lease and operating agreement for Fixed Base Operator (FBO) services at Clearwater Airpark.” The City staff summary for Council included the statement (in pertinent part): ’again, the committee felt that the development partnership of FlyUSA and Paradise Ventures presented a vision that was most closely aligned with the RFP. The RFP solicited proposals that envisioned the possibility of higher value but safer and less intensive operations, a commitment to capital improvements, as well as an understanding that the Airpark’s relationship with the neighborhoods and a commitment to maintain and enhance communications with all users and the neighborhoods ’”’.(emphasis added) Unfortunately, the reality is quite different; First, the “higher value” operations envisioned in the FlyUSA plan can hardly be considered either “safer” or “less intensive”, and the “higher value” is to benefit FlyUSA, not the City, Stakeholders or taxpayers. While this claim “safer” or “less intensive” 21 could be true at an airport such as St. Petersburg /Clearwater International Airport designed for jet and commercial, all weather (IFR) large aircraft operations (Exhibit 8 supra), the same cannot be said for the small, neighborhood Clearwater Airpark designed and used for small recreational General Aviation aircraft. (Citation 23 supra) 39. Second, according to ‘generally accepted accounting principles’ when applied to the FlyUSA proposal or contact, it does not envision their making a “significant commitment to capital improvement”. Instead the majority of funds will clearly be coming from the taxpayers of Clearwater and Florida, principally through Florida Department of Transportation (FDOT) 80% and 50% grants, Pinellas County and City funds. Almost without exception, citizens and Board members have an incomplete or incorrect understanding of this Airpark agreement (Exhibit 20) due in part to numerous violations of the Sunshine Law. 40. Third, a “commitment to maintain and enhance communications with all users and the neighborhoods” has not been the practice throughout this process and is the very subject of this Amended Complaint against the Defendants. Incidentally, all of the stated goals of the City RFP for the Airpark could be accomplished with the City operating the Airpark itself given appropriate personnel, providing significant benefits to both users and taxpayers. Again, this is the universal practice among municipally held airports in Florida. 41. Plaintiff Gagliano provides an Affidavit with exhibits (Gagliano Affidavit 3) and spoke for 3 minutes on City Council agenda item 11.4 in opposition to this matter at its regular meeting on 9/15/22, as transcribed below from the City recording (Video Exhibit 2 at 1:58); “Good evening Mr. Mayor, Council Members, Jon Jennings, City Attorney Margolis. I’m here to talk in opposition to item 11.4. I’m not opposed to the idea that the City do an 22 RFP and reassess the Airpark in any way. I’m opposed to the way this was done. It caught a lot of people by surprise. You're going to hear from a lot of people who will likely say, ‘I heard about this yesterday’. This is not the kind of thing that needs to be done that quickly. You have an operator here, [David King in audience] he’s been there * for 22 years, if you want him there for another year, half a year, whatever ---there is nothing stopping that from happening as far as I know. David is here to speak to that. I’m proposing something that is entirely different, and it’s entirely different only in the sense that it’s the way every city-owned airport in the State is done. The City operates the airport. The City rents the city-owned property. Hangars are city- owned property. Tie-downs are city owned property. It’s not done by an FBO. FBO’s are typically contractors that do services like sell the fuel, maintain the aircraft, do flight instruction, provide services. But the actual public property is managed by the public entity that owns it; The City. And, that is without exception [in Florida]. Now, I’ve heard that this is not practical here, but there is no explanation not only why it’s not practical, but why it’s not preferable.” [emphasis added to myself] J used some numbers that came from the RFP, actually, there was an appraisal in that RFP and you all have page 85 from that- that’s your appraisal. Unfortunately it didn’t really reduce things to simple numbers. So, I did the math and looked at what it was saying. [recalculating income into annual totals] This Airpark should be generating just on rental income from the hangars, we're not talking about income from industry, like businesses that do aircraft maintenance or whatever — strictly the hangar income — and, as you can see there, according to the study they did — it is $732,000. That number is a little ambitious, but I’m not going to argue with your study other than to say if you took a 23 close look at it, the number might be a little lower than that. What the City realizes right now from the hangar rental part ofthis deal [20,000/mo.]is nowhere near that number, and it could be that number [$60,000/mo.]. The Airpark is pretty much maxed out. There is no more room for planes in the T-hangars; there’s no more room (I thought there was some room in the shade hangars, but I just heard tonight that the shade hangars are filled up too). The Airport is pretty full right now, and...”[3 minute time expires] [Exhibit 21 added here to illustrate Tie downs, Shade and ‘T’ hangers] 42. Continuing in chronological order, Plaintiff's and Dennis McDermott’s (Ray Clark was absent for a medical reason) final meeting with then City Manager Jon Jennings, then Assistant City Manager Jennifer Poirrier (now City Manager) and them Director Eric Gandy (now Chief of Police) occurred on Oct 24, 2022, to learn that only the contracted ‘private operator’ approach was being considered. It seemed that Eric Gandy’s unsubstantiated opinion that the operation of the Airpark directly by the City was “not feasible” had become a refrain repeated to and accepted by the City Manager, Airport Advisory Board and to City Council. However, this opinion is unsupported by any expert financial or operational analysis and again, contrary to universal Florida County and City government practice. 43. Relying on the judicial standard of the ‘ordinary person’, most citizens (including those who did attend City Council meetings) likely found the presented ‘facts’ of the matter to be deliberately confusing, incorrect, incomplete or outright concealed from public scrutiny. The public voiced this sentiment at the City Council meetings on 9/15/2022 and 1/12/23 and the Advisory Board meeting on 9/9/2022 which are included as Video Exhibits 1-3. Based on the City’s own record, even City Council members, relying on City staff presentations were confused as to the correct facts of the matters under consideration and then were provided 24 incorrect and/or incomplete answers by the City Attorney Margolis, Assistant City Attorney Mytych and City staff. On 1/12/2023 (Video Exhibit 3 beginning at 52:15) City Council was also told by City Staff that they could inquire further if desired but instead of a clearly appropriate delay, immediate action was taken on both Council Agenda items 8.1 and 9.2. 44, During the City Council agenda hearing on item 8.1 on January 12, 2023 declaring the subject property “surplus”, a number of speakers were heard and then a brief discussion was held between some members of City Council and City staff as transcribed from the City recording: Mayor Hibbard: ‘Anyone from the public to speak to item 8.1?’ [Pause] ‘Do I have a motion?’ [Before immediately calling for a motion, Mayor Hibbard was required to hear from the public; Someone got up at the back of the room] ‘Oh, come on up.’ [FlyUSA Attorney Brian Aungst Jr. approached the podium] Attorney Aungst, Jr. (Video Exhibit 3 at 53:18): ‘J appreciate that, Mr. Mayor. Brian Aungst, 625 Court Street, on behalf of FlyUSA PV, LLC. As you all know, and maybe this will address some of the public comments that are anticipated, this item is not related to the Lease, the Lease terms will be discussed in Item 9.2. This item is a legal technicality regarding your Charter provision which requires that any lease for more than a 5 year term requires the Declaration of Surplus. This does not divest the City of ownership or control of the property; it does not allow the City to sell the property without another public process; and public hearing; and purchase and sale agreement and there is no request or suggestion that that would be done. So, again, this is a legal technicality for your Charter provision and I want to just put on the record, the current lease has a term — has been in place — for 22 years so arguably under this interpretation of the Charter, the current operator, the current lease, the 25 property should have already been declared surplus back in the year 2000. So, again, this is a very routine technical matter and the lease terms will be addressed in Item 9.2 ” and we will reserve our comments for that time. Thank you, Sir. [Here, FlyUSA Attorney Aungst Jr., speaking on behalf of FlyUSA PV, LLC., misstates the controversy as a mere “legal technicality” rather than violating the Clearwater City Charter (City of Clearwater Charter Art. II, §. 2.01. (5) (v) (Citation 26) requiring a public referendum for the Marymont Park OSR property. This was in large part made possible by the repeated violations by the City of the Sunshine Laws. Attorney Aungst surprisingly goes on to note that the City has violated the “surplus” land designation requirement for the