Fearing Lawsuit, a Commissioner Questions Streaming Government Meetings

Bunnell government held a series of meetings as part of its hiring process for a new manager, including two meetings devoted to interviewing candidates. None were webcast, as are the commission’s regular meetings. Commissioners were unaware of the blackout: they assumed the meetings were being webcast.

In fact, Bunnell has not been webcasting its special meetings nor its workshops, where key and detailed discussions take place, even though it doesn’t cost the city more money to broadcast all such meetings, and the total cost of webcasting is roughly $500 a year. At least two commissioners–John Rogers and John Sowell–want all meetings webcast, or streamed. County government, Palm Coast, Flagler Beach and the school board all stream their meetings, including workshops, live.

At the end of May, Donnie Wines, Bunnell’s deputy clerk, went as far as recommending “to stop streaming meetings altogether. There is nothing that says we have to provide it.” Last week his recommendation got support from Commissioner Elbert Tucker.

The reason: several cities in South Florida, including Key West, are getting sued over their streaming systems because the systems don’t have close-captioning for the hearing impaired, as might be required by the Americans with Disabilities Act. But judging from Bunnell’s city attorney’s analysis, Bunnell is overreacting.

“To be frank, at this point it’s looking like some vendors are making the rounds with the Clerks’ association telling everyone the sky is falling,” Wade Vose, the city attorney, wrote Wines and the city administration. “The legal research we have done thus far does not support these conclusions,” because the rule about close-captioning does not apply to cities that stream meetings, even cities that receive federal funds–only to federal agencies.

Wines had developed his position based on a webinar he’d attended that told clerks like him that cities may have to buy expensive equipment and contract with stenographers to keep up with close-captioning requirements, running up costs into the thousands of dollars. Vose attributed the sky-is-falling anxiety to marketers and contractors, not to the law’s requirements.

In early June and after further research, Vose found that the same individual is serially suing governments in south Florida, but noted again: “We certainly could pull down all of our archived meetings and stop streaming, but no rule or regulation adopted to implement the ADA or the Rehabilitation Act says we have to closed caption, and no court has ruled that we have to closed caption. All there is is this attorney’s legal contention, and a bunch of vendors glad to drum up business.”

Yet when the commission met for a budget workshop last week–a meeting that was not streamed–Wines and Kristen Bates, the city clerk, again argued the risks of continuing to stream. “There are lawsuits throughout Florida now about doing close-captioning for any meeting that you either video or live-stream for ADA compliances, so that’s one of the things we are debating at this time, whether to continue doing live-stream, because then we’re going to have to try figure out how to do the close-captioning for any audio that we project,” Bates told the commission, directly contradicting the attorney (who was not present).

“To convert, to be able to have that close-captioning is not a cheap thing, and we don’t even have it in this budget right now because it’s that much,” Bates said.

That worried some commissioners. “If there’s a possibility for us getting a lawsuit for live-streaming, how soon can we make a decision not to do it? Because we need to stop that now,” Elbert Tucker said. “Let’s stop it.”

Wines, speaking of Vose, said “he is of the opinion that the changes that were made to the ADA in recent history does not apply to smaller cities. I don’t know his basis for that. He said he’s been researching this for other jurisdictions.” Vose’s analysis did not make a distinction between small and large cities but addressed the ADA’s application to live-streaming: it does not apply.

Wines added: “There is nothing in any code or ordinance or anything else that says we have to live-stream. We could turn it off today if you wanted to, if that’s what was the direction of the board.” Tucker said that’s what he wanted to do.

But after that meeting, Vose’s recommendation became more explicit: “My legal opinion remains the same: I would not advise that the City of Bunnell stop live streaming at the present time just because it is not currently closed captioning the streams. However, because at least some of the south Florida governments sued by this plaintiff have found it simpler to settle rather than litigate (even though on the law they should likely win), I would recommend that City staff look into pricing for such services, just so the City Commission is not making future decisions relating to this matter in a vacuum. In addition, while the decision to live-stream workshops and other special meetings is a policy decision between City staff and the City Commission, I would advise that I don’t believe that the City is exposed to any additional hypothetical liability by live-streaming all, rather than just some, of its meetings/workshops.”

Even the supposed cost of close-captioning may be a non-issue: Flagler County government provides close-captioning of its meetings in its videos, because the service is provided at no additional cost by YouTube, the platform the county uses to stream its meetings. The service even provides an option to translate the close-captioning, and provides transcripts.

The commission agreed to further discuss live-streaming at its meeting this evening. But it appears even Tucker has pulled back from requesting that streaming be ended. “The attorney has said that we don’t need to stop what we’re doing, so I’m good with that,” Tucker said today. But he has little enthusiasm for streaming meetings–any meeting. He said people can show up at the meetings themselves if they’re so interested.

Wines on Friday wrote in an email that “until a decision is made to the contrary, we will be streaming all meetings held in the Board Chambers,” which would include workshops.

The decision appeared to be the result of behind-the-scenes efforts by Rogers and Sowell. “I’m glad that they’re keeping the live-streaming on,” Rogers said.