October 19, 2016 – The Florida Times Union
First Amendment experts Wednesday questioned whether some Duval School Board members violated open meetings law Tuesday by calling a recess and discussing board members’ behavior behind closed doors.
A key question is whether their discussion in essence deals with a part of the process the board uses for making decisions. Two attorneys working with the First Amendment Foundation said it is likely it does and so the discussions about board demeanor are not exempt from Florida’s Government in Sunshine laws.
“It’s most likely a violation but only a court can make that determination,” said Barbara Petersen, who heads the First Amendment Foundation in St. Petersburg.
“The content of the conversation I had during the recess yesterday was personal and procedural,” said School Board Chairman Ashley Smith Juarez.
The incident occurred Tuesday morning during a six-hour board workshop.
Board members and Superintendent Nikolai Vitti were discussing trends in student performance in International Baccalaureate classes and exams. IB classes are advanced courses based on international standards; passing scores on exams can result in college credits.
But discussion revealed board members’ differing views on whether the district should continue to offer the IB programs at certain, non-magnet high schools.
At one point board member Cheryl Grymes commented on fellow member Rebecca Couch’s facial expression, saying Couch “had issues” with what Grymes said.
Couch loudly objected, first saying she didn’t want to be drawn into the conversation, that everyone should have issues with poor IB performance, and that Grymes should stop staring at her.
Both Grymes and Couch talked over each other in raised voices and at one point Grymes asked if Couch wanted to “go one on one” with her.
Grymes did not return calls seeking an explanation for her comment.
Smith Juarez called a recess, and she and other board members left the room. Though the district audio recording was cut off for the recess, Couch and Grymes briefly continued arguing until Couch left the board conference room.
Recess stretched to 20 minutes.
When a reporter requested more information, Duval spokesman Mark Sherwood said board leaders were discussing “board demeanor” with some board members. Shortly after a reporter objected to that discussion outside the board room, board members returned and resumed the official meeting and audio recording. They did not discuss the prior conflict.
After the meeting, when asked about the discussion during the recess, Couch said a fellow board member had calmed her down.
Wednesday Smith Juarez said she spoke to board members about procedures and personalities, not board business. She believes that does not violate open meetings law.
“I have no reason to believe any conversation among board members during the recess was other than personal or procedural,” she said.
Jason Gabriel, Jacksonville general counsel, agreed with Smith Juarez that discussions between board members about “personal and personality type issues” don’t violate the law. “I can be on a board with a person and despise that person and call them names, but that’s not public,” he said.
He acknowledged that the recess arose from acrimony between board members which occurred during the open board meeting.
“Did the discussion have any public value to it? No,” he said.
But Allison Kirkwood Simpson, a Tampa lawyer volunteering with the First Amendment Foundation, said the closed-door recess meeting, if it dealt with how board members should act during a meeting, is likely not exempted in Sunshine Law.
“This off-record discussion about how to act during a meeting seems to go toward ‘the entire decision-making process’ of the board,” she said.
The Sunshine Law manual refers to a 1969 judge’s decision which reads: “Every thought, as well as every affirmative act, of a public official as it relates to and is within the scope of his official duties, is a matter of public concern; and it is the entire decision-making process that the legislature intended to affect by the enactment of the statute before us.” [READ MORE]