VERO BEACH – A federal judge Tuesday threw out three of four complaints Vero Beach City Councilman Brian Heady filed against the City of Vero Beach. The fourth complaint, however, the judge determined Heady needs to file again with more supporting evidence.
Heady said the judge’s filing will force him to hire an attorney and he will be asking the court to award him money in the event he wins the case to cover the cost of his lawyer. “It’s a big loss for the ratepayers,” Heady said of having to hire an attorney. He explained that when he was representing himself, he did not ask the courts to award any funds, only to rule on the case.
Federal Judge K. Michael Moore wrote in his ruling that the federal court did not have standing to decide the first three complaints, which mostly revolve around the City of Vero Beach’s entering a contract with electric provider Orlando Utilities Commission.
Heady filed his lawsuit in May contending the city’s contract with the OUC was entered illegally. The OUC, took over supplying most of the electricity to the city on Jan. 1 of this year.
“These claims could plausibly be read to include breach of contract, fraud in the inducement for a contract, fraud in the execution of a contract, and violation of Florida’s open records law,” the judge wrote in his ruling. “None of these claims create federal question jurisdiction.”
The fourth complaint could be heard in the federal court because it centers around Heady’s belief that the city’s mayor and councilmen have infringed upon his First Amendment rights of free speech.
“I have to file two cases instead of one,” Heady said Tuesday evening, adding that he does not believe filing two cases is a good use of judicial time and effort.
Heady has two weeks to re-file the First Amendment complaint to keep the court from dismissing the case with prejudice. Such an action would prevent Heady from fighting the claim further in court, according to the judge’s ruling.
“Heady’s allegations are unclear as to whether Heady properly followed the procedures for putting an item on the discussion agenda, whether other similar topics were typically discussed, or whether he had other opportunities to speak on this issue,” Judge Moore wrote. “Thus, Heady has failed to state a claim under the First Amendment.”
The judge further wrote, “While the complaint does not necessarily need to plead facts (on all related points), it must do more than simply plead that Heady was prevented from asking the Mayor questions about a particular topic Heady wished to speak about.”
“He basically gave me a road map” of what is needed to be added to the complaint, Heady said of the judge.
H. Randal “Randy” Brennan, the outside attorney hired by the City of Vero Beach to handle the case, said the order was what he had expected.
“It’s obviously a good outcome for the city,” Brennan said. “It grants our motion and leaves the door open for Mr. Heady to amend his complaint, but only in a limited way, only on the freedom of speech issues.”
He also said the length and detail of the order from Judge Moore was a rare and thoughtful consideration of Heady’s claims.
“Anytime you get a seven-page order, that says to me that they looked at all the briefs and memoranda thoroughly,” Brennan said. “Considering that and the amount of time it took them to respond shows that the judge put a very significant amount of time into reviewing Mr. Heady’s complaint. Sometimes you just get an order that says granted or denied.”
Brennan said Heady’s lawsuit, so far, has cost the taxpayers about $10,000. When filing the Motion to Dismiss, the city requested Heady pay legal fees should the matter in fact be dismissed. Brennan said the court has yet to rule on legal fees. Brennan also said that that tab for legal fees would escalate should Heady decide to amend his federal complaint or to file the dismissed charges in circuit court.
Though the judge has dismissed the complaints filed by Heady, he did not rule on their merits.
Heady could re-file his first three complaints at a state court to have the merits decided there.
Staff writer Lisa Zahner contributed to this report.
