Several years ago the Seminole County School Board took a bus tour around the county, with district staff, to explore rezoning issues. Board members did not consider their trip an open meeting. Rather, they were present, with staff, in what they called a fact-finding situation. They were sued for meeting outside the sunshine. The school board members defended themselves by saying that they never talked to each other or discussed the issue while on that tour.
A circuit court disagreed. So did the Fifth Circuit Court of Appeal. That court ruled in November 2008 that, even taking the school board members at their word—that they never discussed anything pertinent to the issue while on the bus tour—the board “had ultimate decision-making authority; was gathered together in a confined bus space; and it undoubtedly had the opportunity at that time to make decisions outside of the public’s scrutiny. We conclude, therefore, that the conduct of the bus tour, indeed, constituted a violation of the Sunshine Law.”
Hiding behind the notion of fact-finding, silence or observance of a staff meeting was no defense—even if, as in this case, the bus tour was not a secret and two reports had been invited to take part.
Last week County Administrator Craig Coffey hosted a staff meeting focused on an ongoing U.S. Corps of Engineers study of the county shoreline, and that shoreline’s qualification for a beach “renourishment,” or dredging, project that would add sand to eroding beaches. The issue is critical to the county and to Flagler Beach, both of whose governments have been contending with means of countering beach erosion, and working with the Corps toward potential relief from the problem. Both governments are holding a joint meeting on July 31 to discuss beach erosion and a separate proposal to battle it.
The July 12 meeting was a closed-door, “staff” meeting, in Coffey’s description. But not exactly.
Three members of the Flagler Beach City Commission attended together: Mayor Linda Provencher, and city commissioners Jane Mealy and Kim Carney. As did Bruce Campbell, the Flagler Beach City Manager, who had invited the elected members, and advised them not to speak during the meeting. The Flagler Beach city clerk was not comfortable with the arrangement. She posted a public notice of the meeting. But the notice was rendered effectively moot by the fact that Coffey kept the meeting closed: it did not help the public to know that two or more of its representatives were meeting on an issue of current concern, if the public was not allowed access to that meeting.
Dennis McDonald showed up at the meeting. McDonald is a candidate for the Flagler County Commission. The Republican is running in the Aug. 14 primary against fellow-Republican Frank Meeker to fill the seat being vacated by Milissa Holland. McDonald has been attending county and Palm Coast government meetings almost without fail for months. He’d been at a county meeting earlier this month where he’d heard commissioners discuss Coffey’s coming meeting with the corps of engineers. McDonald also heard commissioners’ discomfort at the notion that the meeting would not be open to the public. He took that to mean that commissioners had directed Coffey to open the meeting.
They hadn’t: a staff meeting is still Coffey’s call. And when McDonald showed up for the meeting, Coffey told him he could not attend.
Like all county or city executives or department heads, Coffey routinely holds meetings with staff and other concerns, other than elected politicians. He may do so at will, behind closed doors, with no access to press or public, or to anyone he doesn’t wish to invite: it’s his prerogative, and he’s not violating the Sunshine Law by doing so.
Nor would he be violating the law even if, for example, two or more city commissioners from another jurisdiction were to attend his closed-door staff meeting as observers.
“However,” Brabara Petersen, president of Florida’s First Amendment Foundation wrote in an email, “the sunshine law might apply if the issue under discussion at the county meeting will come before the city commission for its consideration.”
County staff and the Corps were talking about an issue of serious if long-lasting concern to the county commission and the Flagler Beach City Commission. In fact, that very evening, the Flagler Beach politicians who attended the staff meeting talked about the issue to the rest of their board, at length, underscoring the very question at issue regarding sunshine: was it or was it not an issue that would come before the board for discussion and consideration? By the city commissioners’ own conduct, it clearly was, although Peterson also notes that “an issue of concern is different than an issue that will come before the city commission for action.”
McDonald brought his concern about the closed-door meeting to the county commission Monday evening, criticizing Coffey for closing the meeting and County Attorney Al Hadeed for determining the closure allowable. McDonald’s understanding of the Sunshine law was muddled: he was under the impression that a staff meeting could not include non-staff personnel such as the Corps, when it clearly may: government staffers meet routinely with agencies and individuals doing business with government, privately, legally, in the daily conduct of business. The only pertinent difference in this case was not Coffey’s description of the meeting so much as the presence of the Flagler Beach city commissioners and mayor, who themselves clouded the sunshine matter.
But Commissioner Milissa Holland noted: “In the future I don’t want to condone having a sunshine law violation by another municipality in our building, so I would suggest Mr. Coffey that, in the future—”
“But I don’t think there was one, if they did not discuss it,” Barbara Revels, who chairs the county commission, said. “They were allowed to sit there and basically monitor a class, so to speak. If that what occurred.”
The class, as the court of appeal case notes regarding the school board trip on a zoning issue, was a matter of current concern: if several city commissioners were permitted to attend, why not members of the public?
“I think they essentially did monitor a class and I don’t think any sunshine violation did occur, but I will advise them not to bring more than one commissioner,” Coffey said.
Just as clearly, there was no malice or attempt to hide anything from the public, so far as the city commissioners and the mayor were concerned. They had not gone to the meeting to hear or think up issues they were not prepared to discuss openly—as they did subsequently.
“I don’t know anything about closed door, open door, I don’t understand any of that,” Carney, one of the commissioners at the meeting, said. “But they did call it a staff meeting, and the corps made it clear that it was due to the fact that there were going to be some numbers and some figures shared about the project, and they wanted it to stay somewhat limited because of that fact. Because evidently if it’s open to media slash the public, contractors could come in, people could hear things or anticipate their projects were ready to go when they’re not ready to go, and the corps could be inundated with requests for work or proposals or that kind of stuff.” Carney added: “We were advised before we went into the meeting that could not talk, and we did not talk. We just listened. I took notes, I believe Jane probably took notes as well.” (Neither Craney nor Mealy are in favor of the dredging and beach renourishment the corps is leaning toward.)
Mealy said the city clerk made clear that she was uncomfortable with that many commissioners and the mayor attending. “I guess I’m never comfortable with—if you’re going to call it a closed meeting, I’m not happy with that.” Mealy said. “I believe that everybody needs to be able to hear what’s being said It shouldn’t be a secret.”
“As usual,” Petersen, the First Amendment Foundation president, said of this particular case, “it’s hard to give a definitive answer.” She added: “I don’t understand why a citizen would be denied access, frankly, but it’s not clear under the facts that a sunshine violation has occurred.”
And even if it had, the Flagler Beach city commissioners “cured” that possible violation hours later, at their meeting, when they delved into what they’d heard openly: the appeal court decision in 2008, while deeming the bus tour a violation of sunshine, went on to note that it was “cured” by the board’s subsequent transparent actions and vigorous, open debate on the matter. The absence of open debate is not something the Flagler Beach City Commission can often be accused of.