Recently the Sentinel reported that prosecutors were looking at possible violations of Florida’s “Government in the Sunshine” laws by public officials in Maitland. Its City Council is the latest among several Central Florida public agencies in recent years whose members have been investigated for violating open meetings or open records requirements. We conducted an email interview with one of Florida’s leading open government advocates, First Amendment Foundation President Barbara Petersen, to get some perspective. Excerpts of that interview follow. A longer version is online at OrlandoSentinel.com/opinion.
Q: How common are Sunshine law investigations around the state?
A: I think investigations are fairly common, although such investigations rarely lead to charges being filed. Textgate is, I believe, a good example. The [Orange-Osceola] state attorney had found that the text messages, which were clearly public records, had been deleted and/or destroyed [by Orange County commissioners in 2012], which is a violation of law. But criminal charges weren’t filed against the offending public officials.
Q: Have there been well-known prosecutions in the past for Sunshine law violations?
A: The most well-known prosecution was that against Escambia County Commissioner W.D. Childers, a former state senator, who was charged with an intentional violation … which is a second-degree misdemeanor. Childers was convicted and sentenced to 60 days in jail — the maximum penalty.
There have been other cases around the state, over the years, but I believe Childers is the only person who actually served time in jail for a Sunshine violation. Generally, public officials who violate the Sunshine law are removed from office and have to pay a fine. And a public official or agency found to have violated the Sunshine law, regardless of whether the violation was intentional, will be ordered to pay attorney fees and court costs of the person bringing the suit.
Q: Former state Rep. Chris Dorworth has been charged with a Sunshine law violation for allegedly acting as a messenger between two public officials. Have there been prosecutions like this before?
A: This is the first time I’ve seen a “conduit” charged with a violation of the Sunshine law. I believe Dorworth may be the only [private] citizen in Florida every charged with a violation of the Sunshine law. However, according to our general counsel, Jon Kaney, if Dorworth did in fact aid and abet the violation of the law, he can be charged …
Q: With the range of crime that state attorneys are responsible for prosecuting, is it a worthwhile use of their time and money to go after public officials for Sunshine law violations?
A: I think so, yes. And I wish more state attorneys would investigate the allegations of Sunshine violations, including public records law violations, brought to them by citizens.
We have a constitutional right of access to government records and meetings in Florida, yet there isn’t a government agency responsible for enforcing that right. This means that if the state attorney fails — or refuses — to investigate potential violations of our Sunshine laws, we have to go to court to enforce compliance. That is a very daunting proposition for most people, and can be very expensive as well.
Of course, under both the [open meetings] law and the public records law, if we sue a government agency for a violation of the law and we win, the offending agency will be required to pay our attorney fees and court costs. But that’s a big gamble, isn’t it? And although some attorneys will take these types of cases on something like a contingency fee basis, many will still require payment of out of pocket costs and/or a retainer.
Q: Are other states as strict as Florida in requiring public officials to discuss public business in public?
A: Every state has an open meetings law. I believe the application of our law is broader than in other states — in Florida, any discussion of public business by two or more members of the same board or commission must be opened and noticed to the public. In most other states, only those meetings where a quorum is present must be opened to the public. But think of all the mischief that can be accomplished in those meetings with less than a quorum present.
Q: Where does Florida’s commitment on this issue originate?
A: I’m not really sure. Our public records law was codified in 1909, and first open meetings law was enacted even earlier than that — in 1905. Apparently, no one paid attention to that early open meetings law (which applied only to municipalities, I believe) and it was later repealed. Our current Sunshine law was enacted in 1967 and was meant to address the problems of back room deals and power brokering by the Pork Chop Gang [a group of powerful North Florida legislators].
This isn’t something that arose out of the Watergate era as many people believe — Thomas Jefferson recognized the value of public participation in the governing process as early as the Constitutional Convention.
Q: What’s the harm if public officials discuss something in private if they still have to go before the public to vote on it?
A: Frequently, how a decision is made, and why, is as important as the decision itself. A vote is nothing more, really, than a ministerial act, and to know that a board or commission voted this way or that tells us nothing.
Look no further, really, than the recent hiring of the new Florida State University president: If we had access only to the meeting with the vote to hire Sen. John Thrasher, we would not know of any of the other candidates or the controversy surrounding the hire. In Florida, we have a right of access to the entire deliberative process, and in my experience, this is a right many citizens take very seriously.
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