From left: Scott Ellis, Mark Cook, Merrily Longacre during July 23, 2012 court hearing.
TITUSVILLE, Florida - Emails released by Brevard County Clerk of the Court Scott Ellis indicate that an attorney for former Clerk Mitch Needelman may have been mistaken in a court hearing last summer regarding contracts between Needelman’s office and BlueGem, L.L.C. for scanning operations. Ellis defeated Needelman in last November’s election.
During those proceedings before Brevard County Circuit Court Judge John M. Harris on July 23, 2012, Merrily Longacre, speaking on behalf of Needelman’s office, denied knowledge of a contract prior to the one officially released on June 29. She said that Ellis had been provided with all contracts related to BlueGem.
(A partial court transcript and video of the exchange between Longacre, Ellis, and Judge Harris that is germane to this article is included at the end.)
Ellis contended at the time that there was a contract on May 23, which released $500,000 to BlueGem. The original contract was worth over $8.5 million.
Ellis has now provided email communication from May 23 and 24 to Brevard Times that shows correspondence between Longacre, another clerk’s attorney Mark Cook, BlueGem owner Rose Harr, and BlueGem Vice-President of Finance Deena Brigham regarding a contract.
“There never was a signed copy,” Ellis said. “They agreed (Michael) McDaniel (former Clerk Finance officer) would send the $500,000 that day and they’d officially ‘sign’ a contract later, meaning after the election. Legally the Electronic Funds Transfer is an implied contract, but realistically the contract was drawn and existed as I have said all year. Even on the Electronic Funds Transfer McDaniel noted it was the contract down payment.”
Karen Kirksey, Public Information Coordinator for the Florida Bar, said in an email that there is not an open Florida Bar investigation against Longacre in the matter.
When asked about an attorney's ethical obligations to the judge regarding the truth, Kirksey cited all of Florida Bar Rules of Professional Conduct 4-3.3 CANDOR TOWARD THE TRIBUNAL. The rule not only prohibits a lawyer from lying to a judge, but also imposes the extra duty that "A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal."
Kirksey added that it would depend on the facts of the case and the attorney's background as to the penalties an attorney might face for making misrepresentations to a judge.
Brevard Times was unable to locate Longacre to obtain a response to this story. Harr and Brigham did not respond to email requests.
On May 23, an unsigned contract was emailed as an attachment from Brigham to McDaniel, Cook, and Longacre. The accompanying message said, “In addition to the change we made whilst on the phone, I have added the Proof of Coverage verbiage as Clause 11.3 and the Indemnity verbiage as Clause 26. Payment schedule has been revised as well. Please let me know if you have any questions.”
This was the only email released by Ellis that had an attachment.
Cook responded at 9:00 am on May 24, “Deena, the only other change is we need to replace 11.7 with the same language in 11.4.3 (supplier shall be liable for provable damages). I will be out of the office most of the day, I have to go to the 5th DCA . If you need me I will be on my cell 321-427-6812. Thanks Mark.”
Brigham replied at 9:15 am, “Here is the scanning contract with the requested revision.”
At 12:15 pm, Longacre wrote to Cook, “Please advise if this contract is ok with you and see that it gets signed. Original to go to Mike McDaniel. Scanned copy of fully executed original to be provided to Carole for logging into m y contracts file. Thanks for your help. M”
Cook responded to Longacre at 3:15 pm, “Not sure what’s going on with contract. Will let you know. Mark”
At 3:46, Longacre responded to Cook, “I got the finished copy! Have they signed? Call Mike. I am on the way to the plane!! Thanks. M”
Then at 3:48, Harr wrote to Longacre and copied to Brigham and Cook, “Dear Merrily, Good afternoon, Thank you for reaching out to me. I have received your email and I happily acknowledge receipt. Thank you for your good council on the recent contract we worked on with you.”
“How can this be when we were told there is no May 23rd contract?” Ellis queried.
Beyond the issues with the court, the dates are also important politically because Needelman claimed at the time - during his campaign against Ellis - that a vendor for the scanning operation had not been chosen until June.
Transcript from Brevard County 18th Circuit Court July 23, 2012:
THE COURT: Okay. Mr. Ellis, what is your next issue?
MR. ELLIS: My belief is that there was a Contract signed on May 23rd between the Clerk and BlueGem. I would like to request a Copy of that contract. If the clerk insists there is no such Contract, I would like a letter that no contract exists. What I have is a SunTrust wire transfer on May 23rd of $500,000, which clearly states initial payment on Signing. And I've got given you a Copy of that up there. Clearly, if that's initial payment on signing, that indicates the contract has been signed.
THE COURT: That is what that would indicate. Ms. Longacre.
MS. LONGACRE: I believe, Your Honor, the document speaks for itself, and at the bottom it says it's in escrow, and that it’s refundable. And as far as I know, to my knowledge, there was no Contract signed on the 23rd. The contract actually came to fruition on June 29th. And copies of that were supplied to Mr. Ellis, and, therefore, he has everything that he has asked for in that regard.
THE COURT: Well, is that what was requested, or is it the contract itself?
MR. ELLIS: Yes. And, Judge, and also for Ms. Longacre, what I was given as the SunTrust wire transfer, which I've printed for you, there's nothing on here about any kind of trust. It's just not here. And I've given -- you've got a copy over there. I printed that straight from the PDF file that I was given.
MS. LONGACRE: Oh, he's right. I was thinking of another transfer.
MR. ELLÍS: And it may be, but what I was given, it says initial payment upon signing. And it's $500,000, not 5,000, $500,000. My contention is on May 23rd a contract was signed, therefore, there were no negotiations after May 23rd, that the vendor had been selected, the vendor had been paid. The Krasny/Dettmer were evaluating the contract for BlueGem, and they met on that on May 21st. Every indication is that the Contract was signed on the 23rd. Therefore, this whole month of June, you can't claim that they're in negotiation if you've already given them a half a million dollars.
MS. LONGACRE: lf I may object to relevancy and materiality. Mr. Ellis has asked for certain things in the petition. The petition goes through May 22nd, May 26th, May 29th. To my knowledge, he has been given everything. He admits he has everything with the one exception that was just noted to Your Honor. And you have that for in Camera inspection. He has all the lTN'S. He has the committals. He has the Contract for BlueGem, Blueware, Roseware, all of them that we have. There's a drawer, I went through it. He has May 23rd does not ring a bell with me. And l know that nothing that was given to me, disclosed to him, involves a contract, actually, signed on May 23rd. Now, having said that, I will have to object to relevancy and materiality to continuing to argue about a Contract that he supposes exists. To my knowledge, I don't have
THE COURT: Let me look at the petition, Mr. Ellis. Where in the petition do you ask for this contract?
MR. ELLIS: Judge, I've asked for all contracts with BlueGem, Blueware, Roseware. Those were part of my public records request.
THE COURT: Ms. Longaore, the request, specifically, seems to be copies of any of the contracts involving Blueware, Roseware. Your position is, not just an agent for the clerk's office, but an officer of this Court, that there is no contract between the clerk's office and Blueware, Roseware relative to the request by Mr. Ellis, other than the signed one from June 29th?
MS. LONGACRE: Well, there's one on June 29th. There's one on the April 6th. There's an addendum to that one on May the 1st. And there was one earlier than that on cost containment. I think there was one in March. As far as I know, he has all of those contracts.
MR. ELLIS: Yes, ma'am.
THE COURT: All right. Mr. Ellis, it appears that the Clerk has responded to that request, and given you copies of what they have. And their position is there is no May 23rd contract.
MS. LONGACRE: Not that I know of.
THE COURT: If it turns out there is, we're going to have a conversation.
MS. LONGACRE: I understand that.
MR. ELLÍS: Judge, I want you to understand that what we're nearing from the attorney is that she has no knowledge. You clearly caid you have no knowledge of the contract. I would like to you did you know -- you cannot know there's no Contract. The only person who could know that would be the clerk. Only the clerk can state there's no contract.
MS. LONGACRE: I'm going to object to the line of argument, Your Honor.
THE COURT: She's speaking for the clerk's office today. She works for the Clerk's Office. She's the attorney for the clerk's office. The clerk's office position, as Stated by Ms. Longacre, is there is no Contract from May 23rd. Therefore, hiding behind that not that I know of, doesn't work. Your position is there is not one, right?
MS. LONGACRE: Correct.