Joel EngelhardtFormer Assistant U.S. Attorney John Kastrenakes, now a senior circuit judge, is outraged that no one is pursuing criminal charges after town concedes it violated Sunshine Law.
One of the most successful prosecutors of public corruption in Palm Beach County, Senior Circuit Court Judge John Kastrenakes, found himself presiding in a civil case this week that took him back to his prosecutorial roots.
When he heard a lawyer for the town of Lake Park admit that its commission had violated the state’s open meetings law years ago when it selected Forest Development to lease valuable waterfront land, he couldn’t resist behaving like the federal prosecutor he used to be.
“Is the state attorney going to be charging someone here? Because that’s a misdemeanor under Florida law,” Kastrenakes told town attorney Travis Foels. When Foels hesitated, Kastrenakes spelled it out:
“It’s a crime. C-R-I-M-E.”
Foels pointed out that the lawsuit made no claim against individual commissioners. “There’s only a claim against the town,” he said.
“The town!” Kastrenakes boomed. “There have to be people in the town that violated the Sunshine Law. … Did somebody make a referral to the state attorney’s office to do an investigation here?
“I don’t know the answer to that question,” Foels said.
“Well, somebody should, don’t you think?” Kastrenakes responded.
Kastrenakes achieved notoriety 20 years ago as the assistant U.S. attorney who pressed corruption cases against three sitting county commissioners: Tony Masilotti, Warren Newell and Mary McCarty. All served time in prison. Kastrenakes oversaw trials in criminal court after his appointment as a judge in 2009 but didn’t seek reelection in 2022 and now takes on cases as a senior judge.
Did anyone hit the record button?
Lake Park’s Sunshine Law violations were unearthed last year by a representative of Forest, who sought records documenting the town’s approval of Forest’s agreement for a 99-year waterfront lease to build a hotel, restaurant and boat docks and to operate the town marina.
Between March 2021 and October 2022, the town held eight closed-door meetings to discuss Forest’s proposal. Two meetings were legal under state law as long as they were recorded. The town has found recordings for one of the two.
Of the remaining six meetings, no recordings exist for four of them and all were illegal since the state law allowing such closed-door negotiations sunsetted on Oct. 2, 2021.
In its pleadings, Forest points to a commissioner asking in July 2021 if the closed-door meetings can continue after the state law sunsetted. Meeting minutes show the town’s consultant, Don Delaney, told her that would not be a problem because the town would be grandfathered in to continue meeting in private.
The town explained that the town clerk set up an iPad to record the meetings and told the town manager how to start recording but she left before the meetings began so she didn’t know if they were recorded or not.
Three sitting commissioners participated in the meetings: Mayor Roger Michaud and Commissioners John Linden and Michael O’Rourke. At the town’s Feb. 18 meeting, O’Rourke, who was mayor at the time, insisted that every one of the closed-door meetings had been recorded.
But town officials say they cannot find recordings of five of the eight meetings.
To charge commissioners, prosecutors would have to show they knowingly violated the law that calls for public business to be conducted in public. If they did, they would face a second-degree misdemeanor punishable by up to six months in jail or a $500 fine.
Town concedes it violated Sunshine Law
Now the question of a Sunshine Law violation threatens to derail Forest’s project.
If a court rules that laws were violated in delivering the 99-year lease to Forest, it could rule the lease void.
And the town has acknowledged that the meetings leading to Forest’s selection and lease terms violated the law.
“The town has conducted its own investigation, has determined that Sunshine Law violations did, in fact, occur,” Foels told Kastrenakes, prompting his inquiries about criminal charges.
The exchange happened in a lawsuit over the potential Sunshine Law violations brought by town resident Pablo Perhacs, who told Stet News in February that he filed the suit to make sure the town follows rules meant to assure participatory democracy.
But the town’s refusal to fight the allegations concerned Forest, which asked Kastrenakes if it could intervene in the suit. Kastrenakes, ruling from the bench Tuesday, granted the request for Forest to intervene in a limited fashion.
Forest accuses town
Forest, which is led by developer Peter Baytarian and has submitted other construction proposals in Lake Park and neighboring Riviera Beach, has its own lawsuit against Lake Park.
The suit, filed at the end of December, accused the town of stalling by failing to perform its duties under the 99-year lease. It also argues that the Sunshine Law violations remain unproven and should not derail their project.
But Forest went one step further in legal pleadings, accusing the town of conspiring with Perhacs to kill its deal:
“The town has coordinated with the separate plaintiff (Perhacs) to fabricate Sunshine Law violations in order to shirk its obligations under the comprehensive agreement and force Forest Development to renegotiate the terms of the agreement under the threat of having the agreement declared void ab initio,” Forest attorneys John Shubin and Brianna Sainte wrote.
Town rips Forest
The town has not held back on criticizing its development partner, the builder of the Nautilus 220 high-rise that opened at the end of December.
“While Forest purported to be an experienced developer equipped to redevelop the town’s marina, it has become clear that Forest did not and does not possess the requisite professional skill, knowledge and experience to deliver on the promises in its unsolicited proposal (from 2021),” Foels wrote in a counterclaim co-signed by Scott Hawkins of the Jones Foster law firm.
“In reality, Forest had no experience developing marinas at the time it made its proposal, and it was only three years later that Forest disclosed it would need to bring on a ‘partner’ to develop the boat storage and marina components of the project.”
Foels also brought up Forest’s failure to plan for a sewage lift station when it built Nautilus as evidence of its unreadiness.
“Forest’s inexplicable failure to plan for this basic, critical infrastructure required it to seek an easement over public marina land for placement of a lift station. Unfortunately, the town had no choice but to agree given that the 330-unit building had already been built.”
But the town didn’t stop there.
Forest has failed to live up to its promise of designing the marina, hotel and restaurant with “ample public open space,” promoting “the public character of the marina” and assuring the “marina would remain accessible to the public.”
Instead, Forest prioritized “private development goals,” the town’s attorneys wrote.
Further, the town says Forest’s deal conducted during closed sessions is a financial giveaway.
“Under the agreement, the total present value to the town is only $4,145,000 over the course of the entire 99-year term. Unbeknownst to the town at the time the agreement was executed, however, the fair market rental income for the first year alone is estimated to be between $1,200,000 and $1,700,000. The consideration to be received by the town for this century-long lease is therefore, at best, only a small multiple of a single year’s fair market rent.”
