Key Biscayne Mayor Mike Davey is one of ten people being told they may be required to testify under oath as part of a legal challenge to a $100 million bond referendum to combat sea level rise and other resiliency projects. The measure passed 57% to 43% and was the central local issue in November’s elections.
Attorney David Winker filed a notice of intent to depose Davey and subpoena records as part of a sweeping court filing. He contends the wording of the ballot question was legally defective and that officials misled voters about the resiliency projects. Most of Winker’s questions are about how the Village’s resiliency bond information website was created and how the content was developed.
Attorneys for the Village say the lawsuit has no merit and are again asking a judge to dismiss it. They are also asking the court to block the depositions, saying they are both irrelevant and dilatory.
The demand for testimony and documents were made on behalf of Gustavo Tellez, a Botanica condominium director and former Key Colony Homeowners’ Association board member who is seeking to nullify the vote. In addition to Davey’s sworn testimony, it lists Council Members Allison McCormick and Brett Moss, former Key Biscayne Village Manager Andrea Agha, Chief Resiliency Officer Roland Samimy, Public Works Director Jake Ozyman and other Village employees.
The notice also lists Alan Fein, an attorney who headed a political action committee campaigning in favor of the bond proposition, as well as Melissa White, the executive director of the Key Biscayne Community Foundation. Some of the document demands involve correspondence involving the Foundation, the Protect KB Paradise political action committee, and the Stearns Weaver Miller law firm where Fein is a shareholder. White declined to comment.
Fein said he did not see the relevance of Winker’s deposition and document demand. “Winker decided to have a flurry of activity to avoid summary judgment,” Fein said. “He’s flailing around.”
Asked about the relevance of seeking Fein’s and White’s testimony, Winker was vague. He opined that legal discovery would show some web site content may have originated from outside Village Hall, but he said he had no knowledge of any improprieties, nor could he explain why outside sources, if used, would have any bearing on the accuracy of the information.
When asked to specify which Village communications were misleading, he pointed to a September video presentation made by Agha, the former manager. In a recording of an interactive “town hall” meeting, Agha shows a graphic that says the bond referendum does not “identify” projects, which Winker asserted was a contradiction that confused voters.
But on the audio portion of the same recording, Agha immediately clarifies the graphic as she is narrating it, and the 48-minute presentation goes into some detail of items that might be funded with bond borrowing, such as street improvements and utility undergrounding. Agha did not know of the court filings until contacted by a reporter and declined to comment.
The Village lost its first attempt to have the case dismissed in February, but lawyers scheduled a hearing before a Miami-Dade judge later this month in another bid to have the case thrown out.
In court papers, Village attorney Joseph Serota wrote that “there can be no doubt that the Village provided sufficient information to the public to inform them of the bond referendum’s purpose.” He characterized some of Winker’s arguments as “hypertechnical.”
Davey, McCormick, and Village Attorney Chad Friedman all declined to comment, and Moss did not respond to a message seeking comment.
In response to the Village motion for summary judgment, Winker told the court it would be premature to decide the case until he gets the documents and can take depositions.
“Where did these projects come from?” Winker said. “I want to know how that stuff got on the website.”
Winker said no date for depositions has been set, and only filed a notice of “intent” to take depositions of the ten individuals, but said he will try to schedule sessions with the Village attorney. He denied suggestions that he was on a fishing expedition based on a single person’s opposition to a measure that passed overwhelmingly.
“This is not a popularity contest,” he said. “We need to hold our cities to compliance.”