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Victory for Sunshine Law Rather Than Weeks as Judge Tosses 3 of 12 Charges Against Ex-Elections Supervisor

| June 29, 2016

kimberle weeks felony indictments

Kimberle Weeks at her last pre-trial with her then-attorney Joerg Jaeger, who’s now out of the picture. Kendell Ali of Orlando, the third attorney to represent Weeks since her arrest on 12 felony counts, took over last week. (© FlaglerLive)

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.

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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.

9 Responses for “Victory for Sunshine Law Rather Than Weeks as Judge Tosses 3 of 12 Charges Against Ex-Elections Supervisor”

  1. Jerry says:

    The Florida Sunshine Law Manual on Page 42 confirms what Weeks has done is legal. This former Supervisor was witch-hunted and prosecuted because she stood up for what was right. The charges need to all be dismissed and tax payers money need to stop being wasted.

    The Legislature in Ch. 934, F.S., appears to implicitly recognize the public’s right to silently
    record public meetings. AGO 91-28. Chapter 934, F.S., the Security of Communications Act,
    regulates the interception of oral communications. Section 934.02(2), F.S., however, defines
    “[o]ral communication” to specifically exclude “any public oral communication uttered at a
    public meeting . . . .” See also Inf. Op. to Gerstein, July 16, 1976, stating that public officials
    may not complain that they are secretly being recorded during public meetings in violation of s.
    934.03, F.S.

  2. footballen says:

    A settlement sounds about right for 12 felonies here.

  3. r&r says:

    Weeks is a Hillary wannabe and belongs in prison along side both the Clintons.

  4. GT says:

    I guess they have to go through the motions but everyone knows that no matter what crimes she or her family
    commit they will never face the same punishment as the rest of us. A slap on the wrist and sent to bed without there supper is the norm for people like this.

  5. Public Meetings in the Sunshine Says says:

    The sunshine laws were written to keep all business open and to keep back room whispered conversations such as this from happening.
    FS 934.02 states: “Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting any electronic communication. (Also) AGO 91-28 states: that public officials may not complain they are secretly recorded during public meetings in violation Section 934.03, Florida Statutes.
    This was a public meeting. Signs on every door warn you can be audio and videoed upon entry to this office.t No judge would have issued a search warrant had he known this. But the FDLE agent who applied for the search warrant of the SOE’S office intentionally omitted these two facts. The search warrant should be Suppressed and all the evidence taken should be thrown out.

  6. Ken Dodge says:

    “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.

    Pretty close to the murderer of both parents seeking mercy because he was an orphan.

  7. Keeping the Sunshine in the Dark says:

    The Sunshine Law is there to keep back door sneaky shenanigans form being hidden. Seems like in this case the county attorney and county commissioner Ericksen got caught and Weeks was charged for exposing them so they could pull the victim card instead of being held accountable for what took place. It is interesting that now the Sunshine Law is being brought to light and the prosecution has failed to recognize the Sunshine Law as thought it doesn’t matter or exist. The States Attorney’s Office of all places should be up on the law. Seems like FDLE and the States Attorney’s Office was wreckless in filing these charges. What a waste of tax payers money.

  8. Pete says:

    I read a long time ago that First Amendment President Barbara Peterson stated in the News Journal that Weeks had done nothing wrong.. Was she wrongfully charged by someone who didn’t know the Sunshine Law? Sounds like politics to me.

  9. Sue says:

    Weeks got a raw deal. All charges should be dropped. The States Attorney doesn’t sound to competent to have charged her with charges that were not criminal or this is just malicious prosecution. What a waste of tax payers money. Weeks was the best elections supervisor we ever had.

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