Time To Let Go Of The Gate Idea

Maybe it is time for the screwball idea of a gate at the Southard Street entrance to Truman Annex to go. We had thought the idea had been abandoned by TAMPOA -- at least that's what it told members prior to February 2007. Suddenly, however, the gates idea was back with a vengeance when the federal complaint was filed and is also in the new federal complaint. This idea seems like something from Dr. Strangelove that springs like the uncontrollable hand from a TAMPOA fantasyland. The reality is there will NEVER be a gate at the current entrance to Truman Annex on Southard Street. When TAMPOA will get this, if ever, we don't know. But to avoid continuing to look like idiots, the TAMPOA Board needs to instruct its lawyers to abandon this albatross, and soon!

The truth is the Navy will never allow a gate at the Truman Annex entrance on Southard Street and everyone knows it, including TAMPOA if it were realistic. The June 26, 2007 letter the Navy sent to TAMPOA demanding that it open the gate next to Harbor Place should be handwriting on the wall that a gate at the Southard Street will not be tolerated. (We'll have more to say about that up-coming fiasco in a future post).

Now, imagine what will run through the mind of the federal judge (or any judge) when the Navy or the City shows the judge this picture from Cayo Dave's article about what alternatives TAMPOA actually has. The judge, as anyone (including a juror) with common sense, is going to think, "that doesn't look so bad," and is a possible solution that meets TAMPOA's stated interests in a "gated community."

Such a plan also deals with TAMPOA's rather illusory fear of being sued by the ultra rich who bought mega homes allegedly thinking (if you can believe it) that they were buying into a gated community. Under such an alternate plan, Southard would remain open, and if TAMPOA insisted, it could have its gates, transponders and all, for those who want them, on Emma Street.

There are really two groups whose interests might not be totally satisfied by such an alternate plan. One will be the folks on the west side of Southard Street, but there are only about half a dozen or so of them whose homes actually face the street. For the other few Southard Street runs along the side of their residences giving them less to complain about as there are a number of fences in the Annex that run along the sides of residences.

The other group to complain will be the those in big houses near the intersection of Emma and Southard who will not want a gate on Emma near their residences. The solution to that complaint can be found in the design of the gate so as to make it less obtrusive, or to abandon the gate altogether for some other restraint like high tech retractable tire spikes.

The bottom line is there is never going to be a gate at the entrance to Southard Street, so why is TAMPOA wasting time and money on this issue when there are truly more important issues in the litigation? Beats us. It's just weird.

TAMPOA Board Meets Again Monday

A "regular" meeting of the TAMPOA Board will be held on Monday, June 4, 2007 at 4:00 p.m at the Board offices. The agenda for this meeting appears to have been handled with more care than was the case with the Executive Session agenda. Apparently, also, the minutes for the April 30, 2007 were not approved at the Executive Session of the Board held last weekend on Memorial Day, May 28. They, along with the minutes of the Executive Session are expected to be approved by the Board on Monday.

On Monday's agenda will be a report by the Board President on the litigation with the City as well as a report on the proposal for the assisted care facility on the Truman Waterfront. Of the two items, the litigation with the City is likely to be more interesting.

We may also get a glimpse of some of the data in the year-to-date financial statements when the Treasurer makes his report, although don't expect anything earth-shattering.

The Architectural Control Committee (we love that name -- especially the control part) has been busy now that hurricane season is officially upon us. They're going to talk about what kind of policy they'll have for roll-down shutters for your front doors. The shutters have to look nice, you know. Never mind whether they're the best for keeping out the wind or, heaven help us, are the cheapest. So, the Control Committee will report on all that and whether beauty will reign at the hurricane prom. We know how that will end. But, will the resulting report be posted on the Internet like the plans for the American Embassy in Baghdad? Bet not.

The "new business" on the agenda sounds interesting. An additional set of lawyers -- you can't live without 'em can you? -- has given the Board a legal opinion on "storm drainage." That might be interesting to read, if you could get a copy of it. We suggest you ask. Couldn't hurt, even though TAMPOA may not give it to you, but who knows? If you don't ask for stuff, you'll likely never get it. That's just the way government, public as well as private, is. Just another version of "You Don't Ask, We Don't Tell."

The City wants to remove the fence around the Truman Waterfront property, so there will be a discussion of that issue. The agenda item is phrased as if the City needs to ask TAMPOA for permission. It does not, so don't think there is suddenly cooperation between TAMPOA and the City over the fence. Not a chance. The City is simply going to take down the fence if it wants. No harm in talking about it though, and it certainly does impact Truman Annex. We all know, however, that if ever the City (or someone) does start to develop the Waterfront, a fence will go back up. In the meantime, the City can play its game of smoke and mirrors and pretend it is doing something with the property.

Aside from the discussion of the legal opinion on storm drainage, the most interesting item on the New Business portion of the agenda appears to be the "review of [a] survey to expand or reduce the allowable annual rentals from 16 annually." The interesting word there is "survey." What survey? Certainly it's not the Board's survey, unless it was one among the Board itself or its friends. Of course the agenda doesn't tell you who conducted the survey or what it showed. If you didn't know better, you'd be tempted to think this piece of the agenda is one of those TV advertising ploys like "I've Got A Secret" to get you to tune in and attend the meeting so you'll learn what the secret is. Well, we'd rather know the secret up front so we can decide whether to watch or go have a Mojito.

Seriously, does anyone still care about the number of annual rentals? Seems to us there was a lawsuit about that several years ago. Are we going down that road again? We certainly hope not.

Doesn't TAMPOA have enough regulations -- so many in fact that no human can keep track of them all or even find them so as to publish a comprehensive "Book of Rules?" Now there's a project that would keep someone out of the sun for at least five years. Try to find all the TAMPOA rules, compile them, and publish them for the residents. Let's see a show of hands of how many Board members would "volunteer" for that project? Not a one do we see.

TAMPOA is like Congress. It just keeps passing laws (rules) usually without any thought as to how they are going to be enforced or how much they will cost. In TAMPOA's case, no one seems to know what all the rules even are or where to find them. That's why you get "I'll have to call you back" or "I'll look into that" when you call the office with a serious question about the rules. Sometimes you even get a guess. When there are so many rules that no one can recite them all, that's understandable, but that's also a sign of a system seriously in trouble.

Our view is leave people alone. That's why many folks came to Key West. If they want to rent their property they ought to be able to rent. Quit trying to be their keeper.

For those who are not tired of reading, here's the list of the ten items on Monday's TAMPOA Board meeting agenda:

"AGENDA

1. Call Meeting to Order

2. Determination of Quorum

3. Proof of Notice of Meeting

4. Approval of Minutes
April 30, 2007 Board of Directors meeting
May 28, 2007 Executive Session Board of Directors meeting

5. Reports of Officers
President’s report:
Discussion of litigation with the City of Key West
Update of proposal for assisted care on Truman Waterfront

Treasurer’s report:
Review the year to date financial statements

6. Reports of Committees
Architectural Control Committee:
Review roll-down shutter policy for front doors

7. Unfinished Business

8. New Business
Review legal opinion on storm drainage
Review proposal by City to remove the fence around the Waterfront property
Review survey to expand or reduce allowable annual rentals from 16 annually
Management items

9. Member Input

10. Adjournment"

Now, we can go have brunch and a Bloody Mary.

TAMPOA Board To Meet In Executive Session

The TAMPOA Board is having an "Executive Session" on Memorial Day at 4:00 p.m. The session was called by Board President, Tom Tukey. Executive Sessions are by definition secret. Here is the curious agenda for the meeting:

The Truman Annex Master Property Owners’ Association, Inc.
Executive Session
Board of Directors Meeting
201 Front Street, Suite 103
Key West, Florida 33040
Monday, May 28, 2007
Monday at 4:00 PM

Purpose: Conduct Business as Properly Brought Before the Board

AGENDA

1. Call Meeting to Order
2. Determination of Quorum
3. Proof of Notice of Meeting
4. Approval of Minutes
5. Reports of Officers
6. Reports of Committees
7. Unfinished Business
8. New Business
9. Member Input
10. Adjournment

* * *

This agenda appears to reflect that the meeting is to be held as an "Executive Session," that is, in secret, but raises a number of questions including the propriety of dealing with certain items on the agenda in secret.

Take item 2, "Determination of a Quorum." Why is secrecy needed for that. Either there is a quorum or there is not. If there is no quorum, the meeting is not legitimate. Of all things the TAMPOA members are entitled to be present for and to know, this agenda item ranks among the most important. What could possibly be the legitimate interest in hiding whether there is a quorum at the meeting? But, of course, we'll never know whether there was actually a quorum because the meeting is secret. In short, there is no reason to make this part of the meeting secret since, after determination that a quorum exists, the Board is free to go into Executive Session.

Take, item 4 on the agenda, "Approval of Minutes." Why the need to approve minutes in secret? The minutes likely to be approved are the minutes of a prior non-secret meeting. Why does it take a secret meeting to approve those minutes? What possible interest is served in talking about what has been written about a prior open meeting in secret? In our book no legitimate interest is served.

Then there is item 6, "Reports of Committees." Why have reports of committees in secret? Since when did TAMPOA establish secret committees? What, we're now turning into a gulag? Unless we really have turned into a gulag, not all business of every committee likely to report can be secret. There is no reason most reports cannot be made in open session, and then the Board could go into executive session. But apparently not here, not in the closed society that TAMPOA is becoming.

There is also item 9, "Member Input." You've got to be kidding us. If the meeting is secret, what member input can or will there be? This is a joke, right? Oh, we get it, that input is for the "secret members." Who do you suppose they might be? The Board members are not secret, unless we missed something in the voting and there are little green creatures from the Pleiades in our midst.

Why meet Memorial Day? We realize that Memorial Day was originally a Northern Holiday not celebrated in some parts of the Deep South, but as far as we know Key West was always, nominally at least, a Yankee outpost. And we assume the holiday is one recognized by all but a few members of TAMPOA, including most, if not all, TAMPOA Board members. So, why meet on Memorial Day?

One can guess that it must be something fairly urgent since only three days notice was given for the meeting. What is so urgent that it couldn't wait one week until the regular meeting of the TAMPOA Board on the first Monday of the month, i.e. June?

Why is there no particular subject or reason specified for the secrecy of the meeting in the notice of the meeting or the agenda? In most executive (secret) sessions, there is at least a subject of the meeting given in the announcement of the meeting -- e.g. review personnel matters, confer with legal counsel, etc. -- things that one might expect would ordinarily command an executive session. Not here.

That raises a question of whether the notice of the meeting, which is required by law, is proper. If not, then possibly whatever action is taken at the meeting may also be improper. If the meeting and business to be conducted are such an emergency and so important that the meeting has to be held in secret on three days notice on a National Holiday, wouldn't you think the Board would want to make sure that the notice was such that it was beyond even the appearance of question? We would.

Did the TAMPOA Board leaders even think about that? We may never know since the meeting is secret. In essence virtually all the notice tells us is "Hey folks we're having a secret meeting where we can talk about anything and everything related to TAMPOA and all we're telling you is the headings found on our usual agendas without any further description of the subject of the meeting." Is that the kind of notice that gives a scintilla of the kind of information a TAMPOA member would want from a Board that is spending hundreds of thousands of the members' dollars a year? We doubt it. And since we are paying for the extravagant fiscal policies of this Board, we want more information than, "Hey folks we're having a secret meeting."

We are certain some will say, why bother, it's only one meeting. If that were all, we might chalk it up to ignorance and forget it. The problem is this conduct of TAMPOA is illustrative and symptomatic of what is wrong with many homeowners' and condo associations, and something the Florida Legislature needs to fix. It's called the tyranny of the majority.

These association boards -- and now we're talking not about TAMPOA but generally about a larger problem -- often spin out of control, become unresponsive to their members, treat those who complain like pariahs, and are very hard to remove from office because of the way voting is conducted and staggered terms of office. Moreover, they are able to meet and even spend money in secret. They are not required to put substantial expenditures to a vote of the membership, can change the rules without a vote of the membership, can make it almost impossible to force a vote of the membership on a given item, and generally can act any way they want short of committing some crime.

And sadly for some other associations, for as much as we and others have complained about our own association's foibles, some other associations have much deeper and more serious troubles of the kind we've just mentioned. Actually, when lumped into the total mix of problems TAMPOA may be one of the better run of the associations with perhaps a better board and better leaders. In that sense we are fortunate. But even though we don't have some of the serious problems of other associations, we can do better and expect more from those who would purport to lead us. With good leadership comes greater expectations.

We hope that in light of the problems with many associations now coming to light nationally that the Florida Legislature and the Congress will tighten significantly the oversight of such associations. We certainly intend to push for such reforms, and we invite others to do so.

Several reforms should be at the top of the list. The first should be an end to secret meetings except for actual face to face meetings with legal counsel that will involve attorney-client privileged discussions. Since most of these associations have some sort of corporate structure, we have been told that not necessarily every meeting with a lawyer a corporate officer or board has will qualify for that privilege, and it should not be used to avoid such a reform.

Second, the Florida Sunshine Laws should be made to apply to homeowner and condo associations and members of their boards. We know that all kinds of deals and doings go on behind the scenes with such association boards just as with government entities, but we suspect there is less back room dealing because of the applicability of the Sunshine Laws than there otherwise would be. They should be made applicable to homeowner and condo associations by the legislature so association members can have half a chance of knowing what is happening with their governing bodies.

Third, the Florida Legislature should require that association meeting agendas identify, even for executive sessions, the subject of the business to be conducted. This would do away with the kind of pablum and vague formula agendas that now come out of the typical board. The association members have a right to know what the board is going to talk about in some detail in a regular session and to know at least the subject of and reason for an executive session. It is no argument to suggest that well these board members are just volunteers and don't have the time for all that formality. Hogwash. Some of the largest and best organizations in the country are run superbly by volunteers. These organizations, many of which operate on a national level, seem to have no trouble complying with complicated disclosure rules.

Fourth, the Florida legislature should require that association minutes reflect in sufficient detail and plain language what actually occurs in the meetings of the association or its board so that an absent member can know in fact what occurred. A board should not be able to make the minutes of its meetings so vague that someone who hadn't attended the meeting will have to guess at what occurred.

Well run associations should neither fear nor oppose such reforms. These associations certainly have an interest in this kind of reform; the same kind of interest good landlords have in eliminating slumlords. They spoil it for everyone else.

Mayor Served With TAMPOA's Federal Suit

TAMPOA's attorneys have made an effort to insure early and timely service of its lawsuit papers on the City and avoid any potential difficulty in complying with a Federal Judge's Pretrial Order issued in the newly re-filed case by TAMPOA against the City. (TAMPOA's prior federal suit was dismissed because of a failure to file a required scheduling report in a timely manner). TAMPOA's attorneys have hired a process server who promptly served the new Summons and Complaint on the City on May 9, 2007. The new Summons and complaint were served on Mayor Morgan McPherson at 525 Angela Street. The declaration by the process server that the Mayor had been served was filed with the Federal Court on February 14, 2007.

According to the Federal Court Clerk's Office, the City's Answer is due on June 8, 2007. Our guess is that the City will ask for an extension of time.

As he did in the prior (dismissed) case, the Federal Judge, on May 10, 2007, issued a Pretrial Order. That Order requires, among other things, that the attorneys for TAMPOA, forward a copy of the Order to all the defendants upon receipt of a responsive pleading. The Court's Pretrial Order was issued on May 10, 2007 and sets out the various procedural matters the judge expects the parties to deal with prior to the trial as well as deadlines for completing that work. Of course there is no reason for the City's attorneys to wait to be served with the Pretrial Order, since it is available from the Federal Court Clerk's Office or by a phone call to the Andersen Firm (TAMPOA's attorneys). The City's attorneys can get it, if they have not seen it already, and get a head start on complying with it.

A joint pretrial scheduling conference required by the court's Order of May 10, 2007 must be held no later than 20 days after the answer or other responsive pleading filed by the last responding defendant, or within 60 days after the filing of the complaint, whichever is sooner. This likely would make the scheduling conference occur sometime around July 9, 2007, unless the United States had not been served by that time. If so, according to the federal court's order, TAMPOA would be obligated to request the federal court to extend the time to hold the scheduling conference. However, at the rate TAMPOA is moving, if the United States has not been served, it likely will have been by July 9.

Within 10 days of the joint scheduling conference counsel for the parties must file a joint report with the judge. (It was the parties' failure to file this report that lead the judge to dismiss the case the last time around). According to sources at the Federal Court, a plaintiff's counsel (in this case TAMPOA's counsel) generally has the primary job of preparing and submitting the report.

The Opportunity In TAMPOA's Malaise

When one goes to meetings in this town, it is painfully obvious that TAMPOA has a serious image problem. Unfortunately, for the residents of the Annex who care about how we are perceived, TAMPOA continues to take the low road and echo a "Frankly-my-dear-I-don't-give-a-damn" approach to its dealings with the rest of the community when it comes to Southard street and possibly other portions of the Truman Waterfront. This is very sad, as well as down right stupid.

Unfortunately the reality right now is that there is so much anger and resentment lingering in the Annex over TAMPOA's litigation strategy that the TAMPOA Board is virtually paralyzed by a circle-the-wagons mentality. About the only actions it feels empowered to take now have to be guaranteed to be undeniably safe, insular, and low profile. The Board has effectively painted itself into an insular box thanks to its reliance on some incredibly bad advice that ignored the context of the problems it has faced. In many respects, right now the Board feels and acts like its hands are tied, and it is adrift in the litigation winds. It is hoping in vain for a miracle that may lead it out of the black hole it is now in and does not seem to realize, despite some advice to which it has been privy, that the problems it faces will still exist regardless of whether TAMPOA wins or loses its litigation with the City.

Right now, TAMPOA is living its life through its litigation, a typical, but dangerous, syndrome from which many who put all their eggs in the litigation basket suffer. This has caused the TAMPOA Board to become incredibly defensive, hostile, and edgy at the slightest criticism.

The Annex right now is very polarized, but the issues over which that is occurring are at best diffuse. The polarization lines are clearly drawn. You are either with the Board, or you are viewed as a virtual traitor. Yet there is no clear line or issue on which everyone agrees; only bits and pieces. Everyone wants change, but few here seem to agree on (or perhaps even know) what that should look like. Folks in the Annex right now are stuck, and all their leaders can muster at the moment is to vent and blame, neither of which moves us closer to a resolution of the existing ill will between TAMPOA and the City that has now infected many other City residents.

For those of us who feel like it is time to stop all the nonsense the Board has continued to allow itself to become enmeshed in and to seek creative solutions based on objective criteria, the Truman Waterfront Project offers TAMPOA a renewed and unique opportunity to foster creativity and cooperation with the City and other City residents. That opportunity will require new thinking, new attitudes, the ability of TAMPOA to put itself in the City's shoes, a clear nonjudgmental understanding of the City's perspective, and decision-making based on objective criteria, not blame, finger pointing or accusations of gamesmanship. Frankly, we are not sure the TAMPOA Board, as a whole, is up to the task or has the leadership it needs to get where it needs to go. Nonetheless, the opportunity for change or doom is there in the Truman Waterfront Project.

This opportunity is not simply to successfully construct the Waterfront Project. If that is all that both sides (TAMPOA and the City) think the Project is about, the Project has already failed as far as the relationship between the parties is concerned. No, the opportunity is a renewed chance to focus on the most critical question facing TAMPOA and the City. However, the question is more critical for TAMPOA since it may involve TAMPOA's survival as an institution that purports to govern the Annex.

That question is a simple but essential one. How can we all create the respect for each other that will make it possible to constructively discuss (and even disagree over) options while uniting behind common goals? That is the hard but essential question the TAMPOA Board and those of good will in the City must wrestle with if the Waterfront Project is to succeed.

While We Were AWOL

While we've been away from blogging for a week, the news has not waited.

In KW, according to The Citizen, the City has announced it has narrowed the field for the new City Manager to six. Our prediction is the new manager will be a Navy man, with the Coast Guard rear admiral a close second. We'll just have to wait and see if our read of the political tea leaves is accurate.

Paris Hilton, reportedly, will make a foray to KW on her way to an all important date on or about June 5 with a Los Angeles jail. Nothing like taking the long way around.

The hurricane insurance battle continues in the legislature. A Senate Bill has passed freezing Citizen's rates until 2009, but there is much left to be done to push insurance reforms ahead. The battle will continue, as will the efforts to derail any reforms.

The costs for the Monroe County Courthouse continue to increase.

And, TAMPOA has made good on its pledge to re-file the lawsuit against the City and the United States that had been dismissed by the federal court in April. The filing was not quite as quick as TAMPOA had announced it would be, but the suit has been re-filed (with a new case number). The TAMPOA suit starts anew, and TAMPOA must re-serve the defendants with the new summons and complaint.

TAMPOA has learned from the dismissal though. This time around, the summons is typed, not hand written (an insignificant matter, but it does show attention to detail, and it just looks better). This time around, TAMPOA got the summons for each defendant issued right away on the day of filing the new suit (May 8) instead of waiting for some time as in the previous case. And now, the City and its Mayor, instead of the City Attorney (as in the previous case), are listed (in the summons for the City) as those to whom the summons is addressed and from whom a response is requested. We hazard a guess that someone may have gone over these papers (and perhaps the Federal Rules of Civil Procedure) with a fine-tooth comb before they were lodged with the Clerk of Court. We'll have more to report in the coming weeks as the suit progresses.

In case you haven't noticed, the sky is a different color at sunset these days. It's the wild fires from the mainland that are having an effect.

Talk Spoiled The Federal Lawsuit

Back in November 2006, as we recall, Tom Tukey, President of theTAMPOA Board felt there was so much animosity against the City among TAMPOA members that it would be impossible to resolve the dispute short of litigation. Tukey at that time felt that TAMPOA had to file a lawsuit, though his preference would have been to continue to talk. He felt that talk alone would not satisfy the TAMPOA membership. So the lawsuit got filed in February, 2007. However, the TAMPOA attorneys, Tukey, City Attorney Shawn Smith and Commissioner Bill Verge continued to talk. The time whiled away while the good old boy network tried to work its magic. Unfortunately the federal judge was not part of the that network.

When it came to buckling down and doing the work necessary to produce the required Scheduling Report, well, we hear Shawn Smith let the TAMPOA counsel know he had not given the matter sufficient attention and was too busy to do so. And, the network being what it is, the TAMPOA attorneys just let him get away with that and the deadline for filing the Report went by. They were too nice; to their own detriment.

And, of course, the United States' Attorney didn't care. He, at least had filed something with the court asking for more time. Tell us the City didn't know that the judge would dismiss the case. Is the City now going to compensate TAMPOA Attorney Bill Andersen for his time in refiling the lawsuit? Bet not! No, the City will just know that it now owes him a favor within the network. The problem is that the City's pile of IOUs in the network is getting pretty large, and no one in TAMPOA seems to be collecting on them or benefiting from them.

What we don't get is why TAMPOA and its attorneys continue to get taken in by the good old boy games being played. You'd think that by now, they'd be players in the network too, and good at it. Apparently not. Political hard ball is not their style. And the players on the City side seem to have figured that out. When will TAMPOA draw a line in the sand and say never again? Many TAMPOA members thought that had happened last November, but they were wrong.

The Disingenuous Disinformation Spin

We are now getting the spin of disinformation being put on the dismissal of TAMPOA's lawsuit. One commenter who is spouting the spin says we are jumping to "negative conclusions" by our reporting and with more spin opines,

"The City Attorney and the Mayor have been avoiding accepting service. The suit was dismissed merely as an administrative item. When they are successfully served, the scheduling meeting will be held."

Sorry Anonymous, that dog won't hunt. Here is WHAT IS REAL:

Under Rule 4(j)(2) the City Attorney does not have to be served; only the Mayor. Almost everyone, including even the TAMPOA attorneys, know where the Mayor is. He has not avoided delivery of the Summons and Complaint to him. Rule 4 states:

"Service upon a state, municipal corporation, or other governmental organization subject to suit, shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant."

Service on the United States (the only other defendant in the suit) is also a simple matter. Rule 4(i)(1) says:

"Service upon the United States shall be effected

(A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and

(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia . . ."

In fact, Rule 4 makes service of process in Federal Court cases increadibly easy. It can even be done by mail in some instances. Obviously, our commenter is not familiar with the rule.

The Federal judge' s February 8, 2007 scheduling order DID NOT SAY that the scheduling conference OR the scheduling report COULD WAIT for the complaint to be served.

The attorneys for TAMPOA knew or should have known how to obtain service on the defendants.

The Summons in the case was signed on March 20, 2007. The Summons should have been (and ordinarily would have been) prepared back on February 6, 2007 when the Federal suit Complaint was filed; especially if there was any inkling that there would be any difficulty with service of process. According to the Federal Court record in the Clerk's Office, the Summons in the Federal case was not even received by the Federal Court Clerk to sign (using a signature stamp) until March 20, 2007. The Summons must be prepared by the plaintiff's (TAMPOA's) counsel. See Rule 4(b). The one submitted to the Federal court Clerk's Office was hand printed, not typed, suggesting it was done somewhat hastily or in person at the Clerk's office. To be sure, there is nothing technically wrong with hand printing the Summons, but as a routine matter, we would expect such documents to be typed, especially coming from a firm with the alleged reputation of the one TAMPOA has hired.

If Counsel for the defendants will not waive service of process, as was alleged to be the case here, service can be made in the manner described above. As a matter of courtesy to each other, lawyers waive service all the time, unless their clients instruct them not to do so. It is simply not credible to assert that the City or the United States or their counsel were "avoiding service." Why would they, when they know what the Federal Rules provide?

The reality here appears to be that service was NOT made until March 28, 2007 on the United States and perhaps not at all on the City. The United States has said it did not receive the Summons and Amended Complaint until March 28 in its motion for an extension of time that the federal judge denied as moot.

The judge's February 8 order was crystal clear and contained a clear warning about non-compliance:"[f]ailure of counsel to file a joint scheduling report within the deadlines set forth [in the February 8, 2007 order] may result in dismissal, default, and the imposition of other sanctions including attorney's fees and costs." The scheduling order required that a joint scheduling conference be held by April 7, 2007 and that a report be filed by April 20, 2007. Service had been made before April 7. The judge was not provided any valid excuse for missing the April deadlines. They were either forgotten or ignored.

The failure of TAMPOA's attorneys to abide by the deadlines in the Federal judge's Scheduling Order of February 8, 2007 that resulted in dismissal of the Federal suit can't be excused by the alleged, but unsubstantiated claim that the defendants avoided accepting service. Regardless of whether the defendants were avoiding service, it was still the respondibility of the plaintiff's attorneys to abide by the scheduling order. If that meant having to get the defendants served back in February, (instead of sometime after March 20) then that's what the lawyers should have done. The plain truth is they did not. In fact none of the lawyers in the case even asked the judge to change the deadlines or to give the parties additional of time to comply with the Scheduling Order. One can't blame the judge for letting the parties know he wasn't kidding about the deadlines he set.

The Anonymous commenter, without any evidence or knowledge of Federal Court procedure (or Federal law), states, "The suit was dismissed merely as an administrative item. When they are successfully served, the scheduling meeting will be held." This statement alone shows the disinformation spin being put on the facts by those who will buy any silly excuse to believe that TAMPOA and its attorneys can make no mistakes. What the Anonymous commenter does not get is that the Federal suit HAS BEEN DISMISSED AND THE CASE FILE CLOSED by the Federal Court. It now does not matter now that the defendants "are [or were] successfully served." The federal lawsuit filed in February is over and will have to be refiled. In essence, TAMPOA must start over.

It is also bogus to say, as our ignorant Anonymous commter does, that "The suit was dismissed merely as an administrative item." The commenter wants you to believe that the dismissal was a trivial thing, but it is not. The truth is the suit is done for unless and until it is refiled. All the time between February and now to get the litigation well underway has now been lost and effectively wasted.

And, what about the money spent? Who exactly in TAMPOA will mind the billings from the lawyers to see (if one can) whether TAMPOA gets charged for whatever work that now needs to be re-done? Will that be the TAMPOA Board? Likely not. More important, even if the TAMPOA attorneys absorb the cost of re-filing, it is impossible to absorb or recoup the opportunity costs that have been lost as a result of the case being dismissed. That time is lost, and is time which has value to TAMPOA members -- almost three months more that, despite any speed in resolution, members must wait for answers sought by the lawsuit. Moreover, all the time and energy the TAMPOA Board members and others have invested in supporting the lawsuit has been largely wasted by this result. Sadly, all that time and energy must now be reinvested again.

Federal Court Dismisses TAMPOA Suit!

The United States District Court for the Southern District of Florida in Miami has dismissed TAMPOA's federal suit against the City and the Navy for "[f]ailure of counsel to file a joint scheduling report within the deadlines set forth" by the Court's February 8, 2007 scheduling order. That order required that counsel hold a joint scheduling conference by April 7, 2007 and file a joint scheduling report by April 20, 2007. TAMPOA and its counsel, according to the Court's dismissal order, did not comply with the April 20 deadline and had not done so by the time the court, on its own, entered its dismissal order on April 25, 2007.

In its order the court cautioned (in bold type) that its February 8, 2007 order had cautioned counsel that the "[f]ailure of counsel to file a joint scheduling report within the deadlines set forth [in the February 8, 2007 order] may result in dismissal, default, and the imposition of other sanctions including attorney's fees and costs."

The Federal District Judge was serious in his warning. He issued his dismissal "sua sponte" (meaning on his own and without urging from any party to the suit).

The judge dismissed TAMPOA's suit "without prejudice" and indicated "[t]his case is CLOSED." (Caps in the original). The court also denied as moot the Navy's motion requesting more time to respond to the suit. The judge further indicated that should TAMPOA re-file the lawsuit "without a substantial change in issues or parties," TAMPOA is to "notify the Clerk of Court of the existence of the newly filed action" and the new case will be assigned to the same judge.

Now, if the suit is refiled, TAMPOA will start out with a judge whose order it has already violated and a judge TAMPOA has already made unhappy. Nice going TAMPOA. How conducive is that to winning?

What a travesty TAMPOA now has to explain to its members at tomorrow's Board meeting. This lawsuit was supposed to be the case against the Navy and the City that would definitively answer the Southard Street questions and give TAMPOA needed leverage to force the City to settle. Instead, TAMPOA and its attorneys look like rank amateurs not ready for prime time. Once again, TAMPOA's reputation suffers and gives all those who already hate us more reason to gloat.

And just when was the TAMPOA Board going to tell anyone of this debacle? The Board, and certainly its President, have to have known about this since April 25, 2007, yet not a peep to the membership. Did they think no one would find out? And just when was the Board going to say something? At the insulated little Board meeting tomorrow?

This Board has bad-mouthed The Citizen for being biased toward TAMPOA, yet the Board would rather the membership read this bad news in The Citizen. That in itself is another travesty; just another instance of the lack of effective communication with TAMPOA members.

Big question: Who now pays for the cost of this lawsuit that is now down the tubes? And if TAMPOA chooses to re-file, who pays for that cost? Of course you already know the answer to that one. More importantly, who will take responsibility for the failure to do what was required by the Federal Court Order and for the failure to do what could have been done to avoid the dismissal? Is it time yet for a change in direction?

Is Verge Still In The Negotiation Loop With TAMPOA?

His comments in The Citizen would seem to indicate that he's part of the secret negotiations going on with TAMPOA. In an effort to prevent "leaks" TAMPOA has cut off virtually all communication with its members. Something is in the works according to Verge who says, "I think we are close." We don't think he was just talking about the Waterfront Project when he made that comment.

Of course, the City and TAMPOA have been "close" before, so no one should bet the farm on what Verge or TAMPOA is saying. The City Commission has the final say and it's any one's guess where their heads are. Some may be getting worried, though, that because of their pussy-footing around, they are heading for a loss of the Waterfront Property, just like they lost the Truman Annex.

The TAMPOA Board Meets Tomorrow

The TAMPOA Board meets tomorrow, April 30, 2006 at 4:00 p.m. at the TAMPOA office. As part of the agenda, President Tukey is expected to report on how TAMPOA has been spending our money on litigation with the City, TAMPOA's legal fees, and his view of the proposed assisted living facility on the Truman Waterfront. His report should be quite interesting.

Somewhere along the way the minutes of the April 2, 2007 Board meeting will get discussed (or not) and approved. Maybe you'll eventually see them in your email, maybe you won't. But they'll be buried in the TAMPOA office if you really want to look at them. It would be nice if TAMPOA would send them out to the membership though, don't you think?

The Architectural Control Committee will also weigh in with a report. (We've got to maintain our "prestige community," after all).The Committee will tell us how we are doing in that regard. (We suspect we need more "prestige" as well as more "community," but the Committee will let us know). We're all ears.

Of some interest under "New Business" on the agenda is a review of the need for a "legal opinion on storm drainage." We had thought TAMPOA was done with that quite awhile ago.

For those transient rental fanatics, under "New Business" is also a "request to expand allowable annual rentals from 16 to 25."

Isn't it nice that there is always something interesting and entertaining going on every time the Board meets?

By the way, this is probably the last Board meeting for the TAMPOA and other snow birds. Y'all have a nice summer in Coolville.

Two Peas In A Pod

"It is time for a total review of HARC guidelines and of those people making guidelines who feel their taste and understanding is best for you and me. . . " Gosh, if we didn't know better, we'd have said we were hearing about Truman Annex. Is the HARC now taking its cues from the Annex example? You gotta love it!