This is a complicated story about an uncomplicated issue mucked up on one hand by electoral season and on the other by Palm Coast Mayor Milissa Holland’s two hats–as mayor and as an employee of Coastal Cloud–and a city administration desperately if not inappropriately trying to guard against a wardrobe malfunction, a role it should not have to play.
It’s not much ado about nothing, but close. There are errors of judgment, stupid mistakes, misinterpretation–not misapplication–of law. But based on what’s known so far, there’s no conspiracy, no criminal intent (let alone a crime), no “corruption”–all words Michael Schottey, the ex-city employee now running for Holland’s seat, is flinging about as if Holland were Hillary all over again, sitting on a trove of rogue emails. We know how that turned out. There’s no malice. If there’s been an ethical lapse, it’s more about appearances than actual profit or abuse of power.
Almost two weeks ago, Schottey, who worked for six months as the city’s communications director, made all sorts of incendiary allegations against Holland that hinged in large part on the city’s suppression of two or three emails she wrote from her city account and as mayor, but to pitch Coastal Cloud, and of a city presentation on potential technology improvements (that Holland had nothing to do with). The emails and the presentation were unquestionably suppressed–wrongly, but not illegally, a reflection of poor and perhaps troubling judgment on the city’s part, with apparently no involvement from Holland. (Coastal Cloud is a Hammock-based tech company that voluntarily set up the city’s “Connect” portal)
Beyond that, Schottey’s claims of a state criminal investigation have so far proved to be fabrications. He also claims the FBI is “investigating,” but that’s a loaded term, even if the FBI is interviewing people, himself included. He claimed internal investigations were ongoing. He was right about that, though it revealed his hand in the game: the city investigator–Jay Maher, who’d been in charge of Palm Coast’s internal investigations–was feeding him information, mucking up both Schottey’s claims and the investigator’s motives. Maher wrote Morton on May 6 that he’d filed an ethics complaint with the Florida Ethics Commission on April 1, as well as a complaint with the “State Attorney General’s Office.” (Neither have confirmed the existence of the complaints, though that doesn’t mean they don’t exist. But the Florida Department of Law Enforcement and the State Attorney’s Office have explicitly said there is no investigation.)
On Tuesday, the Palm Coast city administration released a 16-page investigation of Maher’s own investigations into the handling of those public record requests. In other words, an investigation of the investigator. The purportedly external investigation was conducted to clear the air of ongoing controversies.
Morton described the “external” investigator as “fully independent.” But Jeffrey Mandel was not as external as he seems. Mandel is a labor attorney who sides with management, a tough collective bargaining lawyer the city has hired before to do battle against its firefighter union. Mandel was brought in by Morton to give the city cover for the issues at the heart of all the investigations. He does so without much difficulty, because it’s not as if the city was involved in rampant wrongdoing. But the investigation sheds light on an unsettled city administration all the same, an administration insecure in its role as custodian of public records and in poor control of internal policies: Maher’s internal investigations were going on arbitrarily, according to Mandel, without the knowledge of the manager, without controls or consistent methods. Morton said he will “act upon the recommendation” to get that fixed.
But how we got to this point is as revealing as Mandel’s conclusions.
The public record issue goes back to November and December when the Observer’s Brian McMillan requested the Holland emails and the so-called Gartner report (that presentation on technology improvements). He was denied all three. City Clerk Virginia Smith, in consultation with Bill Reischmann, the city attorney, determined the emails were personal, so not releasable, and that, the way McMillan had phrased his request, there was no such thing as a “Gartner report.”
Reischmann and Smith did not see the email issue as black and white. Based on Mandel’s findings, they were clearly uncomfortable at having to make the determination, though in that case, and following Florida law, they should have erred on the side of openness, not suppression. The determination that both emails had nothing to do with Holland’s role as mayor was wrong. Both initially touched on public matters. “I have known Mayor Dyer for a while and was catching up and discussing how we can work collaboratively in certain areas that would be of benefit to each other, since we are in close proximity of each other and Mayor Dyer has a second home in [Palm] Coast,” Holland wrote at the beginning of one email, referring to the Orlando mayor.
The collaborative work she was referring to was as her role as mayor, not as buddy. Only then does she delve into her Coastal Cloud matter, with the segue that explicitly makes the previous clauses public: “Along with being Mayor, I am also the Director of Business Development for Coastal Cloud,” and so on. That phrase, along with being Mayor, would have been unnecessary had she not been writing as a mayor in the previous lines. If anything, the email should have been released with those opening lines as a clear public record, and the rest as legally (but still questionably) redacted. The same approach should have applied to the second email. And in the least, even if the city interpreted the entirety of the emails as private, it should have released them entirely redacted but for the date, the sender, the receiver and the signature, all of which are not redactable. (That’s how police agencies release documents we request that are entirely redactable: they still release the document itself, denoting its existence, while blacking out everything else.)
Smith herself noted that in 12 years, she’d never withheld an entire document but rather redacted pertinently exempt parts while releasing the rest. Why not in this case? That’s a fundamental error of judgment and legal interpretation, though again, it’s not the sort of thing a judge would punish. Mandel, who’s no open-record lawyer, strains with assumptions as he gives the city cover on that decision, never raising the question of propriety by Holland using her city email to make Coastal Cloud pitches (an issue that troubled Smith and Reischmann). Ironically, Holland herself had no issue releasing the emails and no role in withholding them, according to Mandel, and recognizes it was a mistake to write them from her city account. (The News-Journal reported there never was a relationship between Coastal Cloud and Orlando.)
The greater mistake was even unwittingly placing city staff in a position of having to make judgment calls about those emails. Had Holland been discussing some cultural event at Orlando’s Phillips Center for the Performing Arts without a single mention of Coastal Cloud, no one at the city would have hesitated a moment to release the documents, or bothered using up Reischmann’s time about it. The difference here was Coastal Cloud: Smith and possibly Morton may have thought they had to protect Holland. The call–the wrong call–was made to withhold. Mandel’s investigation contradicts claims that Morton was involved in the decision, but not claims that Morton was concerned about city employees releasing public records outside the normal channels at the very same time as these Holland emails were being discussed.
The suppression of the Gartner report is also troubling. (McMillan in the Observer today has an excellent analysis of that report’s genesis and a different kind of suppression that took place within the administration to keep it from the council’s view, after the council spent $71,000 to commission it and Holland at one meeting literally pleaded for the report.) When McMillan asked for it, there was no such thing as what he asked in the way he asked it. At that point public information officers or public record custodians can do two things: they can be hardassed textualists and judge the request null and void because its wording doesn’t match the title of the document in existence. Or they can look into it, ask around, see if the reporter is asking for something that clearly exists, but not using the right terminology.
It’s the difference between public record custodians who think they’re gatekeepers as opposed to public servants. When the gatekeeping instinct takes over, the government in question is in trouble: it’s lost sight of its purpose. Smith is not usually a textualist. But she denied McMillan’s request. “Ms. Smith never saw it and was never made aware of its existence by IT,” Mandel’s investigation found regarding the Gartner report. There’s no reason to doubt it. But she appears not to have asked further about the report (even though Gartner had been discussed at council meetings, a report contracted, and city staffers spent 30 hours working on it), because it clearly existed–as a city product, not a Gartner product. And with McMillan’s findings today, its initial suppression raises even more questions about the city’s motives in shelving it.
The Mandel investigation also devotes a few pages to the way the city conducts its internal investigations, through a so-called Internal Controls Investigative Team (unfortunately acronymed as ICE by the city): Maher, a member of the Human Resources Department and a member of the Finance Department. The policy controlling those investigations requires the city manager to be the final arbiter of the investigations, but somehow the manager had been excluded from the process. Mandel called the process “seriously flawed,” and recommended a correction, though I hope Morton will be on guard against weakening an essential tool against internal misconduct.
It’s been a tiresome few months of allegations, investigations and counter-investigations at the city. Nothing has risen anywhere near the kind of claims of “corruption” and criminality we’ve been hearing about, though judging from the Mandel investigation–such as it is–the months have been messy and with all that intramural intrigue the administration unsurprisingly seems to have yet to find its footing. I doubt this is the end of it. Not in an election year, not in baiting season. But humid firecrackers aren’t smoking guns, either.