Dear Mayor Shaver, Commissioners and City staff:
A. Residents have spoken -- we have NO confidence in the contractor, process and task force selected by the City Manager.
B. Please initiate a contract compliance review of the LITTLEJOHN ENGINEERING ASSOCIATES, INC./ S&ME contract and either cancel it, or renegotiate it to:
1. Remove the unconscionable, unconstitutional jury trial waiver and attorney fee waiver in paragraph 27 as a contract violation of public policy.
2. Require City Commission to advertise, seek resumes and choose more diverse and representative advisory group members on a nondiscriminatory basis.
3. Require the contractors to disclose all clients, to avoid potential conflicts of interest -- LITTLEJOHN/S&ME works for developers.
C. Please don't ever waive our right to jury trial or attorney fees again -- this is a government, not a private corporation, and this waiver was never bargained for, discussed or justified in any way.
D. A $108,000+ contract for consulting on "mobility" waives our Nation's Oldest City's right to jury trial and right to attorney fees. This is wrong.
The late U.S. Supreme Court Chief Justice William Rehnquist said our right to jury trial is a "bulwark against oppression."
The Seventh Amendment to our United States Constitution mandates:
Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common l
Article I, Section 24 of our Florida Constitution states:
SECTION 22. Trial by jury.—The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.
Our Florida Rules of Civil Procedure state:
1.430 Demand for Jury Trial, Waiver
(a) Right Preserved. The right of trial by jury as declared by the Constitution or by statute shall be preserved to the parties inviolate.
The only "waiver" recognized in the rule is by failing to ask for a jury trial in a responsive pleading.
Disdaining, disrespecting and disregarding the fundamental right to jury trial, which Chief Justice William Rehnquist said is a "bulwark against oppression," on April 22, 2016, City of St. Augustine City Manager JOHN PATRICK REGAN, P.E. and City Attorney ISABELLE CHRISTINE LOPEZ compliantly waived the right to jury trial in the LITTLEJOHN ENGINEERING ASSOCIATES contract for mobility planning.
REGAN and LOPEZ also waived the right to seek attorney fees in the event of litigation.
Every single draft of the contract contained the obnoxious provision (Section 27) -- five drafts, and the signed final copy, too. Commissioners were not told of the waiver.
Leaving a mess behind with an unbalanced advisory committee and no public comment allowed at its initial meeting, REGAN is gone for a month-long trip to the Iberian peninsula with his family. Text messages to REGAN about this and other subjects have not been answered.
It is a contract violation of public policy, and void ab initio for any government to waive its right to jury trial and right to seek attorney fees. See Restatement of Contracts, 2d, Sec. 178 (Contract violation of public policy); U.S. Const., Amendment VII, Florida Constitution, Article I, Sec, 22; Florida .CivP. 1.430.
The right to trial by jury is considered fundamental. See Torres-Arboledo v. State, 524 So. 2d 403, 411 n.1 (Fla.), 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988) (and cases collected).
Corporate contractual waivers of jury trial in a civil case are both valid and enforceable. See Central Inv. Associates, Inc. v. Leasing Service Corp., 362 So. 2d 702 (Fla. 3d DCA 1978); Palomarez v. Ocean Bank of Miami, 574 So. 2d 1159 (Fla. 3d DCA 1991); Vista Centre Venture v. Unlike Anything, Inc., 603 So. 2d 576 (Fla. 5th DCA 1992).
But whoever heard of a government being asked to waive -- or actually waiving -- our fundamental right to jury trial?
This stinks.
The New York Times has in 2015-2016 published an excellent series on Alternative Dispute Resolution" (ADR) abuses, but none quite like this one.
It was 26 years ago that Department of Labor Associate Chief Administrative Law Judge James L. Guill and I published an article in the American Bar Association's Judges' Journal -- "The Downwide to Alternative Dispute Resolution" (Summer 1989) -- warning of jury trial waivers, mandatory arbitrary arbitration provisions and other cramdown alternative dispute resolution provisions violating peoples' rights. But Judge Jim Guill and I never anticipated a government would agree to waive the rights of We, the People to jury trials. This is sickening.
Even former City Attorney RONALD WAYNE BROWN became sensitized to the issue, crossing out arbitration provisions. His inept understudy, ISABELLE CHRISTINE LOPEZ, is not up to the job.
The thoughtless, reckless, reckless pro-corporate bias in City Hall is a stench in the nostrils of our City.
City Commission has the right to cancel the Littlejohn contract with 45 days notice.
It should. Then let's renegotiate. We deserve a better deal. As JFK said, "let us never fear to negotiate."
LITTLEJOHN works for developers: it is a part of S&ME, an 1100-employee firm with locations in 30 places in the United States, one of the Nation's 100 largest design firms: here's the S&ME press release announcing their merger:
S&ME to Acquire Littlejohn
Companies plan to join forces, combining their strengths to create a leading engineering, design, planning, environmental and construction services firm.
Raleigh, N.C., and Nashville, Tenn. (December 18, 2014) – S&ME, Inc., a Raleigh-based engineering, environmental and construction services company, announced its intent to purchase Littlejohn, a Nashville-based planning, engineering and environmental design firm.
The two privately owned firms have complementary services, geographic markets and work cultures. By joining forces, they will create a leading engineering firm with over 1,100 employees in more than 30 locations across the U.S. It will easily rank, by revenue, within Engineering News Record’s top 100 design firms.
As part of the acquisition, which is expected to be completed on December 31, Littlejohn will become a wholly owned subsidiary of S&ME. It will maintain its name, services, talented professionals and a presence in each of its current markets. Financial details were not disclosed.
“Joining these two companies works on many different levels and creates a firm with a broad footprint that can be a single resource to clients facing complex building and development challenges,” said Randy Neuhaus, S&ME president and CEO. “Today’s architecture, engineering and construction industry demands that engineering and design firms provide a complete spectrum of professional, sophisticated and cutting-edge services. By acquiring Littlejohn, S&ME is creating that firm.”
S&ME is organized into five business units. Three focus on service lines: geotechnical, environmental, and construction services. Two focus on market sectors: transportation and energy. Littlejohn will fill an important need within S&ME by becoming its sixth business unit that focuses on design and planning. The combined firm will be equipped to offer more comprehensive engineering and design services for clients’ projects—from beginning to end.
“This acquisition is a great fit for Littlejohn, our employees and our clients from business, geographic and cultural perspectives,” said Jim Littlejohn, president of Littlejohn. “Our firms share a commitment to creating positive work environments that value collaboration, creativity and innovation, and we invest in our employees. We also share a commitment to providing top quality and responsive services to our clients. By merging our cultures and adopting lessons from one another, we can create an even stronger combined company.”
Founded in 1973, S&ME currently delivers engineering, environmental consulting and construction engineering and inspection services for the built environment. The company has approximately 950 employees in 26 locations throughout the U.S. S&ME, which is wholly owned by its employees, stresses work quality and, through a comprehensive program, employee safety.
Littlejohn employs more than 130 engineers, landscape architects, planners, surveyors, environmental scientists, industrial hygienists and support personnel. During the firm’s 25 years, it has completed more than 6,000 projects in 43 states and established nine offices, including a Tampa office opened in October of this year. Littlejohn places heavy emphasis on responsive, quality service through its numerous and talented market leaders and professionals.
“This acquisition will accomplish a goal that both S&ME and Littlejohn set for themselves: to better meet our clients’ needs and to further improve the quality and breadth of our current services,” said Neuhaus. “I am looking forward to the opportunities this acquisition will create for our clients and our employees.”
About S&ME
S&ME delivers engineering, design, environmental consulting, and construction management services for the built environment. Founded in 1973, the firm has grown to a 950-person corporation operating from 26 locations. S&ME is wholly owned by its employees who remain faithful to their core values of safety, quality, honesty and integrity. The goal of S&ME is to provide practical solutions to clients’ infrastructure, development and environmental challenges.
In 1987 Westinghouse acquired S&ME and by 1992 decided to exit the environmental market allowing a group of S&ME’s original owners to buy back portions of the company. Since 1992, S&ME has operated as an employee-owned company dedicated to quality service, employee growth and responsible fiscal operation.
About Littlejohn
Founded in 1989, Littlejohn has completed more than 6,000 projects in 43 states and employs more than 130 engineers, landscape architects, planners, surveyors, economic development professionals, environmental engineers and scientists, industrial hygienists and support personnel spread across nine offices from Florida to Arizona. Littlejohn serves many markets including public sector clients in transportation, municipal planning and engineering and private sector clients in the commercial, land development, institutional, healthcare and industrial fields.
The firm works with its clients across the country to plan and engineer infrastructure for notable projects and progressive communities. Littlejohn provides an array of specialized services for its clients around the U.S. including civil engineering, water/wastewater treatment and design, transportation and aviation, public work and municipal engineering, environmental services, master planning and land development, healthcare, municipal and community planning, ADA remediation, industrial hygiene and health and safety services.
Please engage in an agonizing reappraisal of the contacting process that led the City of St. Augustine to hire LITTLEJOHN/S&ME.
City Commission has the right to cancel the LITTLEJOHN contract with 45 days notice.
It should. Then let's renegotiate. We deserve a better deal. As JFK said, "let us never fear to negotiate."
Thank you.
With kindest regards, I am,
Sincerely yours,
Ed Slavin
904-377-4998
www.cleanupcityofstaugustine.blogspot.com
www.edslavin.com
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