City refuses to hand over text messages in public records request
Tallahassee Democrat by Jeff Burlew
October 24, 2017
Tallahassee City Manager Rick Fernandez asked a local lobbyist for four tickets to a Florida State University football game last year in a text message the city would not turn over as part of a public records request.
Fernandez, who has previously denied accepting football tickets from lobbyistsor undercover FBI agents, sent a text Sept. 27, 2016, to a lobbyist with Adam Corey’s Unconventional Strategies firm asking about tickets to the Oct. 1 game against the University of North Carolina.
“Hey, this is Ric Fernandez. Do u have any tkts available for Saturday?” Fernandez asked in the text.
“Yes, how many do you need?” the lobbyist replied. “We got you covered.”
“4 if possible,” Fernandez responded. “Thanks.”
“No problem our pleasure,” the lobbyist said.
The text exchange, obtained by the Tallahassee Democrat, was delivered earlier this month to the Florida Commission on Ethics, which is investigating a complaint involving Fernandez. The state agency served a subpoena on the lobbyist who gave him the tickets demanding “copies of any and all telephone text messages … concerning Florida State University football tickets.”
Fernandez declined to comment until the ethics complaint is resolved.
The Democrat asked in a public records request sent Thursday for all of Fernandez’s texts from Sept. 26 – Sept. 30, 2016. The city, however, said none existed.
“We have concluded the search for this information and found no information for the below request,” said Susan Myers, an employee in the Treasurer-Clerk’s Office, which processes records requests.
Florida’s ethics laws prohibit public officials like Fernandez from knowingly accepting, directly or indirectly, a gift from a lobbyist who lobbies the public official’s agency if he or she reasonably believes that the gift has a value over $100.
The box seat football tickets, which had an estimated total value of about $2,000, were not included in Fernandez’s public gift disclosures. There is no indication in the texts that the city manager paid for the tickets.
The city’s ordinance on lobbying also prohibits city employees from soliciting or accepting a favor, service or thing of value from a lobbyist when the employee “knows, or with the exercise of reasonable care, should know that it was given to influence a vote or recommendation favorable to the lobbyist or principal.”
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Unconventional Strategies was registered as a lobbying firm with the city in 2016, along with Corey and two other individuals, according to city records. The firm’s clients included the Leon County School Board and Igniting Florida, which lobbies for a medical marijuana grower in Gainesville.
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After the Democrat’s public records request, the newspaper asked Treasurer-Clerk Jim Cooke, who oversees such record requests, why the city produced no documents.
“I don’t know what those answers would be,” he said Thursday, referring inquiries to Fernandez. “He’d be the one to ask that, really.”
On Monday, the Democrat asked Fernandez about the texts but got no response. The Democrat asked city spokeswoman Alison Faris why no texts were produced on Monday. She referred to Myers’ previous email and said, “This is accurate.”
When the Democrat pointed out that the city hadn’t answered why no texts were produced, Faris responded again in an email.
“There are no responsive records associated with your request,” she said.
Barbara Petersen, president of the First Amendment Foundation in Tallahassee, said text messages pertaining to public business are public records regardless of whether they are sent on government-owned or private phones or other communication devices. She said it is incumbent upon public officials to maintain and retain all public record text messages.
She said that the texts in question appear to be public records even though they don’t specifically mention some item coming before the City Commission.
“The courts have said a public record is anything intended to perpetuate, communicate or formalize knowledge having to do with public business,” she said. “This … has everything to do with the ethical propriety of the city manager. The city manager should not be asking someone who lobbies the city for a favor. And I think that this text message … shows poor judgment on the part of the city manager and goes to his effectiveness.”
She said city employees have an affirmative duty to ask the city manager for his texts and produce them in response to a public records request. She noted that intentional violation of the public records law, including the destruction of public records, is a first-degree misdemeanor, punishable by up to a year in jail, a $1,000 fine and suspension or removal from office.
“To intentionally say they don’t exist knowing they do — that’s an intentional violation,” she said. “It doesn’t matter if he intentionally destroyed it or intentionally denied it, it’s a first-degree misdemeanor if, in fact, it’s a public record.” [READ MORE]