The Brechner Report
Volume 21, Number 5
May 1997

A monthly report by:

• Anthony L. Fargo, Editor
• Mary Gallant, Production Coordinator
• Bobbie Stewart, Production Assistant
• Kelly Kroll, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

REPORTER'S PRIVILEGE
DCA vacates conviction over lack of testimony
Judge rejects injunction request

ACCESS MEETINGS
Board forced to repeat hiring process
Jury acquits Cocoa official in third trial on 8 charges
DCA says contract void because board violated law
AGO says coalition subject to law
City attorney says board acted legally
Incorrect notice won't lead to charges

ACCESS RECORDS
Prosecutor clears Palmetto officials
Inmate denied Coca-Cola records
Judge says council's records public

CIRCULATION
City adopts rules for vending machines

LIBEL
Judge dismisses $25 million libel lawsuit

THE BACK PAGE
Courageous paper and judge stop a prior restraint

DCA vacates conviction over lack of testimony

LAKELAND - The 2nd District Court of Appeal vacated a man's assault conviction because the trial judge ruled that a newspaper reporter did not have to testify about an interview with the alleged victim.

The three-judge appeal court panel said the reporter, Diane Mason, was not entitled to claim a qualified reporter's privilege not to testify because the interview did not involve a confidential source.

Merlan Davis was convicted of aggravated assault with a motor vehicle after he allegedly rammed his ex-girlfriend's car after chasing her. Mason, then with the St. Petersburg Times, interviewed the victim about the incident.

Davis, who the appeal court said relied for his defense on his ex-girlfriend's admission that she hit her brakes before his car rear-ended hers, wanted to question Mason about the interview. The trial judge agreed with the Times that a qualified privilege existed in cases such as Davis' and that Mason did not have to testify.

The appeal court, however, said that the Florida Supreme Court had ruled in Miami Herald v. Morejon in 1990 and CBS v. Jackson in 1991 that the privilege did not protect a reporter from testifying about "eyewitness observations of a relevant event" if no confidential source would be implicated. The court said that the interview with the victim fell under the "relevant event" definition. (3/27/97)

Judge rejects injunction request

JACKSONVILLE - A judge denied a trucking company's request for an injunction to bar Jacksonville-area media from destroying any photos or videotapes of the aftermath of a truck-train accident.

Coastal Transport said it wanted two television stations and The Florida Times-Union to preserve images from the accident in case it was sued and needed the photos and tapes as evidence.

Judge Michael R. Weatherby, 4th Judicial Circuit, said that without a pending lawsuit, he had little if any authority to grant an injunction to protect possible evidence.

Police said a truck driver for Coastal Transport was attempting a U-turn when his truck became stuck on railroad tracks in Duval County in February. The truck was hit by an Amtrak train, which derailed, injuring 15 people and causing a reported $1.1 million in damages to the tracks and train. (Decisions on File, Coastal Transport v. WAWS Fox 30 et al., Case No. 97-961-CA, March 7, 1997)

County pays $15,900 to settle paper's meetings suit

STUART - Martin County commissioners agreed to pay The Palm Beach Post $15,900 in attorney's fees and admitted violating the Open Meetings Law by settling lawsuits in closed-door meetings. A week after the county voted to settle the Post's lawsuit, the county attorney resigned.

The Post sued in February after learning that the Martin County Commission had agreed to settle a number of lawsuits in executive sessions without taking a public vote on the settlements. The Post's attorney said the Open Meetings Law allowed the commissioners to discuss legal strategy in private, but final decisions on settlements had to be made in public.

After the County Commission agreed to pay the Post's attorney's fees, several commissioners questioned the legal advice they had received from County Attorney Robert D. Guthrie Jr. Guthrie's resignation letter a week later did not mention the meetings law case, but a commissioner said she urged Guthrie to resign in part because of the advice he gave about closing the settlement meetings.

The settlements approved in private totalled more than $4.1 million. At the same meeting at which it approved the settlement with the Post, the County Commission also publicly approved the earlier settlements for the first time. (2/5/97-4/1/97)

Board forced to repeat hiring process

WEST PALM BEACH - A citizen's board charged with hiring a new chief for the local Department of Children and Families office had to repeat part of the process after learning it had violated the state Open Meetings Law.

The board failed to advertise meetings in which it interviewed and ranked candidates for the job. Board members said the agency's personnel office in Tallahassee told them the public did not have to be notified about the meetings.

After learning of its mistake and getting advice from the agency's attorney, the board played tapes of the job interviews at one public meeting and re-evaluated the candidates at another. It chose the same person it had originally. (2/19/97-3/5/97)

Jury acquits Cocoa official in third trial on 8 charges

COCOA - After two mistrials, a jury acquitted a former Cocoa vice mayor of violating the Open Meetings Law.

Ray DeBord was charged with eight counts of violating the law in January 1995 and was removed from office. His first trial ended in a mistrial when the jury could not reach a verdict. (Brechner Report, October 1995) His second trial was stopped because of allegations of jury misconduct. (Brechner Report, December 1996)

In the latest trial, the jury deliberated for eight hours before finding DeBord not guilty of all charges.

The key evidence was a set of taped phone conversations. During the phone conversations, Mayor Mike Hill asked DeBord for advice on a number of issues before the council. DeBord's attorney said Hill led DeBord into saying things that could be construed as illegal.

The Florida Open Meetings Law requires that public business be conducted in public settings and generally forbids elected officials from discussing issues in private or arranging votes before a public meeting.(3/20/97-3/21/97)

DCA says contract void because board violated law

MIAMI - The 3rd District Court of Appeal ruled that a Miami-Dade Community College committee's recommendation to award a contract was void because the panel violated the Open Meetings Law.

The court said that a committee appointed by the college purchasing director to review and rank proposals for providing flight-training services at Kendall-Tamiami Airport was subject to the Open Meetings Law. Because the committee failed to give the public notice of its meetings, it violated the meetings law and its recommendations and the subsequent decision to award a contract to Husta International Aviation Inc. were void.

The court said the committee could meet again, this time in accordance with the Open Meetings Law, and make the same decision.

The committee ranked Husta's proposal first among those received. Silver Express Co., which had been providing the services, was ranked third. Silver Express lost an administrative challenge to the decision on other grounds before seeking an injunction in circuit court.

While the administrative challenge was under way, the college awarded Husta a temporary contract to provide the flight-training services to students. The court said that the temporary contract could stand because voiding it would disrupt students' training process, which would not be in the public interest.(Silver Express v. District Board of Trustees of Miami-Dade Comm. College, Case No. 96-889, March 19, 1997)

AGO says coalition subject to law

TALLAHASSEE - A non-profit corporation formed by a public agency to assist in the agency's redevelopment plans is subject to the Open Meetings Law, the state Attorney General's Office said.

In an advisory opinion, the Attorney General's Office responded to a question from an attorney for the Delray Beach Community Redevelopment Agency. According to the opinion, the CRA sponsored the formation of a redevelopment coalition to aid the agency in a redevelopment plan. Under the coalition's articles of incorporation, all members of the CRA are automatically members of the coalition, and two CRA members have been elected to the coalition's governing board.

The opinion noted that the Attorney General's Office has in a number of cases found that nonprofit corporations created to assist public agencies are subject to the Open Meetings Law. In the Delray Beach situation, the opinion said, the public agency created the coalition, shared board members with it and had its offices at the same address. In light of those facts and the decisions of state courts indicating that the Open Meetings Law should be liberally interpreted, the opinion said that the coalition was subject to the meetings law. (Decisions on File, Fla. Atty. Gen. Op. 97-17, March 14, 1997)

City attorney says board acted legally

KISSIMMEE - The city Community Redevelopment Agency's board did not break the Open Meetings Law when its members helped interview candidates for a manager's job without giving notice of the meetings, the city attorney said.

City Attorney Don Smallwood said that because the CRA board will not decide who is hired for the job, board members' informal attendance at the interviews did not constitute an Open Meetings Law violation. Community Development Director Richard Greenwood will have the final say on who is hired. (3/13/97-3/19/97)

Incorrect notice won't lead to charges

ANNA MARIA - The State Attorney's Office for Manatee County said it would not file charges against members of the Anna Maria Fire Control District Commission after a resident complained that a meeting was held without proper notice.

The commission met in January and voted to ask the local legislative delegation to change the district enabling act so that it could collect property taxes.

Notice of the meeting was published incorrectly in one newspaper but correctly in another. The correct date also was posted outside the fire station. The commission chairman said a district secretary accidentally gave one paper the wrong date.

Assistant State Attorney James Rawe, 12th Judicial Circuit, said the state would not be able to prove that the notice was unreasonable in this case. (2/16/97)

Prosecutor clears Palmetto officials

PALMETTO - An assistant state attorney concluded after an investigation that the Palmetto mayor and police chief did not demonstrate criminal intent when they delayed releasing public records to a police records clerk.

Clerk Sheri Rader filed a complaint with the Manatee County Sheriff's Office alleging Public Records Law violations. She said she repeatedly requested documents about an on-going investigation of her and a former police captain. After she filed her complaint, the city released all of the documents she sought except for two it said did not exist, Assistant State Attorney Don Hartery Jr. said.

The state would not be able to prove that officials acted with criminal intent when they delayed responding to "a multitude of requests for a large quantity of sensitive documents," Hartery said. (2/4/97-3/4/97)

Inmate denied Coca-Cola records

TALLAHASSEE - The Florida Supreme Court rejected a death-row inmate's claim that he should have access to records held by the Coca-Cola Co.

George James Trepal was sentenced to death for killing a woman in 1988 by lacing bottles of Coca-Cola with poison.

Trepal said he should have access to all files held by the Coca-Cola Co. that were related to the case because Coca-Cola acted in a law-enforcement role when it tested bottles of soda and turned the results over to police. Coca-Cola contended that it had given all relevant files to law-enforcement agents and was not subject to the Public Records Law because the company was not acting on behalf of a public agency.

The justices said a lower court acted properly when it used a "totality of factors" test to determine that Coca-Cola was not acting sufficiently on behalf of a public agency to subject it to the Public Records Law. The test, set forth by the Supreme Court in 1992 in News and Sun-Sentinel v. Schwab, includes the level of public funding the company received. (Brechner Report, March 1992) (Trepal v. State, Case No. 87,222, Fla. Sup. Ct., March 27, 1997)

Judge says council's records public

MIAMI - A judge ruled that minutes of the meetings of the Florida Entertainment Industry Council were public records after hearing only a few minutes of arguments.

Al Crespo, a long-time critic of the council, sued in order to get a look at minutes of the council's meetings. He said he believed that the council had mishandled funds earmarked for a film industry guide and wanted to see the minutes to prove it. The council maintained that it was a private organization and was not subject to the Public Records or Open Meetings laws.

The council was created by and is partially funded by the state.

Judge Alan Postman, 11th Judicial Circuit, heard brief opening statements from Crespo, who was representing himself, and the council's attorney before ordering the council to turn over the minutes. Postman did not explain his ruling.

After the hearing, the council's attorney said that as far as he knew, the council did not keep minutes of its meetings. (3/11/97)

City adopts rules for vending machines

COCONUT CREEK - The city has approved an agreement setting rules for the size and color of newspaper vending machines.

The agreement replaces a city ordinance that a newspaper attorney said would have effectively banned news racks in the city. The new agreement was worked out between the city attorney and newspaper representatives.

All news racks on public rights-of-way and public property for paid and free publications must be removed under the agreement. The racks will be replaced with modular units that hold more than one publication. All the units must be beige, can carry no advertising except the name of the publications, must have coin-return mechanisms for paid publications, and must be kept in good working order. (3/20/97)

Judge dismisses $25 million libel lawsuit

FORT LAUDERDALE - A libel suit filed against the Fort Lauderdale Sun-Sentinel was dismissed after the plaintiffs failed to pursue the case.

Judge Robert Lance Andrews, 17th Judicial Circuit, tossed out the suit because plaintiff Metabolic Disease Foundation had missed a hearing and had failed to move forward with the case. Metabolic's attorney withdrew from the case.

Metabolic was seeking $25 million from the newspaper because of articles in 1996 that Metabolic said inaccurately implied it was a diet clinic and was fraudulently billing insurance companies.

Metabolic co-founder David Chapnick said the operation is a diabetes research program. (2/21/97)

Courageous paper and judge stop a prior restraint

A recent prior-restraint battle in Tampa shows courage by a newspaper, which was willing to challenge a judge's order, and by the judge, who was willing to admit his mistake.

The prior restraint arose in connection with a child-abuse case that commanded statewide attention. The victim, a 2-year-old boy, was bruised and burned. Clumps of hair were missing from his skull. The boy's mother and father have been charged with willful torture and aggravated child abuse. The prior restraint occurred when a judge tried to block news media coverage of the father's criminal past.

The boy's injuries had occurred just days after his court-ordered return from foster care to his parents' custody. Upon learning of the injuries, Judge Gregory Holder, who had returned the boy to his parents, held a hearing on Jan. 30. During the hearing, Judge Holder displayed a one-inch-thick file containing the father's juvenile criminal history, which the judge said he had not known about when he ordered the child returned to his parents. The judge then recused himself from the case, saying he could no longer be fair and impartial.

After the hearing, Barbara Boyer, a reporter for The Tampa Tribune, asked to see the file Judge Holder had displayed. She reviewed it for 45 minutes, taking notes, while a court clerk looked on. A clerk also gave Boyer a copy of a two-page summary from the file. Copies of other documents from the file, Boyer was told, would be available for her later in the day.

In the meantime, Judge Perry Little, assigned to take over the case from Judge Holder, learned of Boyer's review of the file. When Boyer returned to pick up copies, Judge Little told her the file's release had been a mistake. The father's juvenile record, Judge Little reasoned, was confidential under Florida law. So he ordered the Tribune not to publish the contents without first seeking access via a written motion and hearing.

Tribune lawyers filed an emergency appeal the same day. The prior restraint, however, remained in place that night. Nevertheless, the Tribune decided to publish a story about the father's criminal past. Among other things, Boyer had learned of the father's six previous convictions on charges including battery and grand theft. Despite his record, child-protection officials had recommended that Judge Holder return the boy to his father's care. The Tribune published this information on Friday, Jan. 31. On the same day, the father's attorney asked to have the newspaper held in contempt.

Over the weekend, Judge Little reviewed case law on prior restraints and conferred with the Florida Attorney General's Office. On Monday, Feb. 3, Judge Little admitted that his earlier order was , in his words, "unenforceable." He rescinded the prior restraint. The contempt motion was withdrawn. (Brechner Report, April 1997)

This episode shows a judge courageous enough to admit a mistake. Judge Little realized his initial instincts were wrong, and he publicly acknowledged that. A lesser judge would have let his ego get in the way.

These events also show courageous journalism. The Tribune published timely information about a subject of great public interest, despite the risk of being held in contempt. "Prohibiting the publishing of a news story," in the words of one court, "is the essence of censorship." That's something no newspaper should condone, and something the Tribune courageously opposed.

The fact that the Tribune had to wage this battle, however, is itself troubling. This was the second case in three months in which the Tribune faced an attempted prior restraint. A Fort Myers television station and The Ledger newspaper in Lakeland also recently have opposed motions seeking prior restraints. Fortunately, in those case, restraints were never entered. Still, that prior restraints were sought shows that even basic constitutional principles need constant protection.

James B. Lake is an associate and media lawyer with Holland & Knight LLP in Tampa. His firm represents The Tampa Tribune.

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