Open Government Comes with Sunshine (and Shadows)

August 15, 2015

U.S. Supreme Court Justice Louis Brandeis once said, “Sunlight is the best disinfectant.” Fortunately for us, Florida has some of the cleanest, most effective open government laws in the country. But problems with enforcement and outright abuse of its Sunshine Laws leave citizens still somewhat in the dark.

Sunshine laws began back 1909 with the passage of the Public Records Law, which declared that all state, county and municipal records are open for personal inspection by any citizen. In 1967, Florida’s Government-in-the-Sunshine Law was enacted, allowing access to most meetings of board, commissions and other governing bodies of state and local government agencies and authorities. In 1992 a state constitutional amendment reaffirmed open government laws for the legislative branch and extended it to the judicial branch as well.

Beyond the political damage caused by publicity surrounding Sunshine Law investigations, the laws have real teeth. An unknowing violation of the law by a public officer is punishable by up to a $500 fine, with knowing violations punishable by up to a $1,000 fine and a year in jail, with extraordinary violations punishable by up to five years in jail.

Unfortunately for us, Florida ranks poorly in enforcement of the law, perhaps because no agency is specifically tasked with it. “I know of some states that have specific agencies responsible for enforcement,” says Barbara Peterson, president of the First Amendment Foundation in Tallahassee. “Connecticut, for example, has an office of open government staffed with attorneys who investigate complaints and have quasi-attorney general authority allowing them to file suit. New York has something similar, as do a handful of other states. And some states vest the authority in the attorney general.”

Worse, Florida is a consistent nationwide leader in corruption. In a 2013 report from the Public Integrity Section of the U.S. Department of Justice, the state leads the nation in number of state officials convicted of public corruption charges since 2000.

So the talk and the walk in Florida Sunshine are not the same thing.

Only the state attorney can file Sunshine Law charges, and those are almost always criminal cases. (There are two types of violations — intentional (criminal) and unintentional.) In Florida’s history, only two government officials have gone to jail for violations of open government law — W.D. Childers, the Escambia County commissioner who in 2001 discussed county redistricting over the telephone with the county supervisor of elections; and Vanette Webb, who while on the Escambia County School Board in 1996 withheld public records in a feud with a mother of three public schoolchildren.

Far more often, Sunshine Law cases are civil suits filed by a citizen or media outlets. When allegations were raised that FDLE chief Gerald Bailey was fired as the result of a closed-door discussions by Governor Rick Scott and three cabinet members, state attorney Willie Meggs was asked to investigate whether Sunshine Laws had been violated, which he declined. Then the First Amendment Foundation requested that Gov. Scott appoint a special prosecutor. When he failed to do so, the only recourse was to file a file a civil suit, which was done so by St. Petersburg lawyer Matthew Widener and The Florida Society of News Editors. The suit was settled in mediation — the state lost and will have to cough up some $700,000 over taxpayer money to pay all the attorneys’ bills.

“According to open government laws, if you sue government for a violation of either the open meetings or the public records law, and you win, the court must award you your attorney fees and court costs,” Peterson says. “But that could have be devastating to a media organization if it goes the other way.”

And when civil suits are successful against governments, then the pinch is put on taxpayers. In 2012, Orlando city commissioners in a public meeting debated a citizens’ initiative to require employers in the county to provide paid sick leave to their employees. During the meeting, members of the commission were texting with lobbyists for the big employers who were suggesting ways the council could avoid taking a vote. Afterwards, Mayor Jacobs, several commissioners and staff erased text messages. Sunshine Law charges were filed were eventually filed, and the city ended up settling (without admitting fault) and paying $90,000 to cover the citizens’ group attorney and $250,000 for their own legal bills — paid for by Orange County taxpayers.

The law extends to citizens who volunteer on government committees, as eight members of a Eustis recycling committee found out in 1991 when they were caught discussing over the phone the merits of using a large bin in the city for recycling. (In a plea bargain, the defendants — ”a who’s who of volunteers in the city,” said Eustis City Attorney Lewis Stone, who defended them — performed community service including helping at the local library and, yes, participating in recycling efforts). (Here in Mount Dora, citizens who volunteer to participate in city committees are asked to view a DVD on Sunshine Laws.)

Mount Dora is no stranger to Sunshine Law controversies. In 1990, sixteen Mount Dora government players including the city manager, four current and past council members, city staff and citizen volunteers were charged by the district attorney for violating open government laws. (A series of city-appointed contractor selection committees provided no adequate notice of the meetings and no minutes of the meetings were kept.) The charges by the state’s attorney were non-criminal, meaning an unintentional violation of the Law). Lake County Judge William Law fined each of the defendants in city positions $400 ($500 is the maximum fine) but reduced the fine to $25 if each agreed to read the state’s Sunshine Law manual. The state’s attorney’s office waived collection of attorney’s fees and investigative costs.

In 2010, the state’s attorney’s office received a Sunshine Law complaint that four council members conspired behind closed doors to vote in a chairperson for a city advisory board. Just this year, another Sunshine complaint was filed against the Mayor and four council members for the manner in which they interviewed perspective city manager candidates. In both cases, the state attorney declined to prosecute.

Often times, even a Sunshine Law complaint will make a government body more careful in the way it conducts business. In the mediation recently agreed to by Gov. Scott, all meetings of Cabinet aides must now be recorded, broadcast and posted on the Internet, and senior staff and Cabinet aides are required to attend Sunshine Law training annually. Best of all, the governor, Cabinet and senior staff were required to forward any public records received on their personal email accounts into a state government account, making it far easier to obtain public records that may have been buried in private accounts.

Sometimes, however, the accused keep fighting. In 2013, two Sarasota city commissioners attended a meeting with downtown merchants where a number of issues, including homelessness, were discussed. Citizens for Sunshine filed suit, accusing the two commissioners of breaking open meeting laws by attending the meeting together. One commissioner settled for $17,000 in legal fees in November 2013, and agreed to pay $500 to a charity, and attend Sunshine Law training — without having to admit wrongdoing. The other commissioner, Susan Chapman, was offered a deal in which she was to accept guilt without having to make a monetary settlement, but she refused. Her legal bills now exceed $300,000 and as the case now goes to trial, her attorneys are now arguing that the Sunshine Law is unconstitutional, violating First Amendment rights of assembly and freedom of speech.

And while Sunshine Laws are designed to make government more open, they can have the reverse effect of making it more closed — and adversarial. “Broadly written state and federal ‘open records’ laws have converted an instrument for ensuring transparency into a handy weapon to discredit political opponents, intimidate critics, and simply harass private citizens for no better reason than that they are government employees, writes political scientist Howard Schweber.

In a recent article published in the Stetson Law Review, St. Thomas University of Law school professor Keith W. Rizzardi says that a number of problems have been created by the right of public access to public records. “In normal circumstances,” he writes, “the Sunshine State’s public records law is a model for ensuring the disclosure of information to the benefit of a informed citizenry. Experience shows that the abnormal is occurring. Lacking sufficient boundaries to prevent misuses of the law, the efficiency of our bureaucracy is compromised, and taxpayers are the victims.” (“Sunburned: How Misuse of Public Records Laws Creates and Overburdened, More Expensive and Less Transparent Government,” Stetson Law Review, Vol. 44, 2015, p. 442)

For example, the town of Gulf Stream, Florida — a little beach community, population nine hundred, with a town hall staff of four and a similarly small police department — received some 1,100 public records requests in less than one year, 400 from an individual and another 500 from one company. Dozens of requests were received for emails created by the Town Manager containing a single word. One request for “the ten most recent emails from each and every email account controlled by [the Town Mayor] that contain public records.” One asked for “[a]ny and all records containing a social security number.”

According to the law, requests do not even require a purpose; just the act of requesting a public record requires a response. All Gulf Stream city employees could do during this public records assault was comply — again and again and again. Similar situations have repeated around Florida, like the citizen watchdog who sued more than a hundred Tampa Bay government agencies and state contractors, costing these parties more than a million dollars.

Looking for ways to curb such abuses of the laws, Rizzardi suggests that online publication of all government records would be great step toward embracing the right of public access. (The First Amendment Foundation maintains a report card on Local Government Website Transparency; Mount Dora wasn’t among the 47 cities polled.) He also suggests limiting the number of public records requests that can be made; but until the Legislature takes on such reforms, municipalities — especially small ones without big-city legal budgets — should have more latitude in charging for costs associated with each request.

The right for a citizen to request public records is fundamental, but those who exercise public records laws beyond their intent work against the public good by slowing government, even putting it on the defense.

“Public records laws can chill collegial decision-making and cause fewer meetings and less documentation, leading to reduced efficiency. They can encourage an overreliance on individual staff, force disclosure of sensitive information and create barriers to honesty create large volumes of work for the scrupulous official who tries to precisely comply with the law, and ultimately ‘breed contempt’ for the law.” (Rizzardi 434)

If open government is the intent of the law, then the state will need to get a lot better at enforcement — not only of where the law is black and white, but all the grey areas in between. It will need to better account for the ways that technology is proliferating information channels — email, texts, Skype, messaging apps. States attorneys appointed to office may not have the incentive to act decisively if there isn’t an easy win or the political fallout affects those further up the command.

Much of this would be resolved, Rizzardi argues, with greater enforcement by the state’s attorney general. “Public records compliance need not be different from other areas of executive authority,” he writes. “If the legislature and citizenry are genuinely concerned that Florida’s public records laws need enforcement, then they should consider enhancing the way pubic records laws are policed within the state.” (468) However, it doesn’t look like our current State executive branch has much appetite for Sunshine Law enforcement.

With so much big development now coming to the porches of our city, its especially important that our local officials conduct their business in the open. Pressure upon city officials for decisions favorable to these entities is great. Influence can be bought with elections driven by negative publicity surrounding public records requests and Sunshine Law complaints.

Citizens need to know that it is their fundamental right to know how their government is operating. The Office of the Attorney General of Florida has a page on the Sunshine Law with resources including a Sunshine Law manual and a citizen guide. The First Amendment Foundation in Tallahassee has an excellent website loaded with resources.

Citizens also need to understand what’s at stake. Abuse of Sunshine Laws for personal gain or to punitively burden government — not to mention gain political traction — is as shadowy as the shadows the laws were intended to banish. Mount Dora is a small city, and its Mayor and council members are neighbors. The good will of citizens, both in office and in the community, combined with wisely applied Sunshine Laws is what promises the most informed way ahead. We need all the help we can get.

David Cohea (djcohea@gmail.com)

Originally published at www.mountdoracitizen.com on August 15, 2015.