Victory for Sunshine Law Rather Than Weeks as Judge Tosses 3 of 12 Charges Against Ex-Elections Supervisor
FlaglerLive | June 29, 2016
When she was Flagler County’s supervisor of elections for six years, Kimberle Weeks’s combative strategy had a few similarities with guerilla warfare: she countered her perceived opponents—whether it was the county commission, the Palm Coast administration or political opponents–by raising relatively minor but persistent objections and arguing arcane points of law. It was a small-bore but relentless approach designed to wear down whatever opposition she faced. If it didn’t often work, it nevertheless forced those agencies interacting with her to make compromises, often enough on her terms.
Weeks appears to have adopted the same strategy in her legal battle against the 12 felony counts filed against her 13 months ago. She’s battling them piecemeal, arguing so far that some are invalid and should be dismissed, and that others should be “severed” from the batch and tried separately. So far, and thanks to her then-attorney, Joerg Jaeger, she’s been at least partly successful. (Jaeger is no longer her attorney. He was replaced last week by Orlando’s Kendell Ali.)
On June 24, Circuit Judge Margaret Hudson threw out three of the 12 felony counts against Weeks, albeit three redundant charges that had more to do with the prosecution’s kitchen-sink approach of throwing as much as it could against Weeks than with solid or even legally justifiable charges: by throwing out the charges, the judge was acceding more to a defense of Florida’s expansive Sunshine Law than to Weeks’s defense.
The result of the ruling was that the Sunshine Law was protected, as was the case against Weeks lessened, but not yet substantially so.
The three counts centered on one of the disputed recordings Weeks is alleged to have made secretly, of a conversation between County Attorney Al Hadeed and County Commissioner Charlie Ericksen, while the two were in a canvassing board meeting. The meeting’s participants had moved to an adjoining room, but Weeks’s recording device—her cell phone—was still running in the room where Hadeed and Ericksen were chatting.
One of the counts against Weeks—like all others, a third-degree felony—is the result of that recording, even though a notice at the entrance of the supervisor’s offices cautions all entrants that the premises may be under video or audio surveillance. That count was not dismissed.
Weeks played snippets of that conversation during a canvassing board meeting, then sent snippets of the conversation to WNZF, the radio station, to the News-Journal, and to a third party. Each of these instances generated a new felony count against Weeks. Jason Lewis, the assistant state attorney, argued before Hudson that the counts are warranted because even though the recording was the same, at every step, Weeks was disseminating a recording made illegally (according to the indictment).
Jaeger considered the redundant charges absurd, because that same recording had been played in an open meeting of the canvassing board. That made the recording a public record under Florida’s Sunshine Law. “Under the Sunshine Law a meeting is either fully opened or fully closed, there are no intermediate categories,” Jaeger had argued in his motion to dismiss the three charges. That means that any discussions, documents or information revealed or disclosed in an open meeting, however inadvertently, maliciously or illegally, still maintains its status as an open record.
Lewis argued that it does not—that once a record is classified or determined to be illegally procured, it may not be disseminated even if it’s been disclosed in an open meeting.
Had a judge ruled in favor of that approach, it would have set a precedent that could have jeopardized many documents or information disclosed that way, as it would have carved out a censoring authority within open meetings that would fly in the face of established interpretation of the Sunshine Law.
So it was not a difficult decision for Hudson, whose two-page order quickly dispensed with the issue by granting Jaeger’s motion: once Weeks played that snippet of conversation, it became a public record, unequivocally and irrevocably. “As such, the subsequent disclosure of what occurred at this meeting was subject to being heard or viewed by the public and, therefore, cannot be the basis for criminal prosecution,” Hudson ruled.
Now Weeks faces nine third-degree felony counts, not 12. But Jaeger’s approach, and Hudson’s ruling, suggests that there may yet be more vulnerabilities in those nine remaining counts that Weeks may exploit. Jaeger had given some hints to that effect when in a hearing before Hudson he began puncturing the assumption that recording Ericksen and Hadeed had been done secretly, or illegally, as the meeting both were attending was still ongoing, even though the main participants had moved to the next room: the expectation of privacy in a public meeting is not high. Nor is it in a public building. Whether Ali follows Jaeger’s approach may become clearer: the next hearing is scheduled before Hudson on July 22.
Jaeger had also filed a motion to “sever” four of the 12 counts. Hudson had already granted a motion to sever two of the four counts, relating to recorded conversations between Weeks and a Holly Hill police officer and a Flagler County resident. On June 24, Hudson denied a motion to sever a third count, and deferred her decision on a fourth count to a future hearing, or thereafter, in itself another small-bore victory for Weeks: any time she can stretch an use into a hearing means that she has room to weaken the case against her before it goes to trial, increasing pressure on the prosecution to reach for a settlement instead.