Volume 21, Number 8
A monthly report by:
Brechner Center for Freedom of Information
- Anthony L. Fargo, Editor
- Mary Gallant, Production Coordinator
- Kelly Kroll, Production Assistant
- Bill F. Chamberlin, Ph.D., Director
- Sandra F. Chance, J.D., Asst. Director
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611
AGO: Law applies to pension board
Grand Jury won't
indict Vero Beach council members
Prosecutor finds no
evidence council broke law
Taping meetings OK, judge says
Official quits panel
Tallahassee commissioners cleared
Council asks entire
advisory board to quit
Fire district board, state
County stops using worksheets
City's win upheld
Attorney says board
should discuss settlements
Mosquito board members sued
DCA upholds ruling on
County chair's wife quits board
Committee forced to
vote 4 times on same issue
UWF fires staffer in porn
Judge says AOL not liable in suit
Girl's deposition in slaying
Judge rejects gag order in sex
Chamber opens sign district
4th DCA rejects
reporter's appeal of sentence
AMENDMENT - RELIGION
Student sues over suspension
Cable system pulls show
Company pays $100,000
in software settlement
THE BACK PAGE
Ruling recalls linked
history of Sunshine laws
applies to pension board
TALLAHASSEE -- The board of trustees for a county bus
systems employee pension plan is subject to the Open Meetings Law, Attorney General
Bob Butterworth said.
Butterworth, in an advisory opinion, noted that the bus system is
operated by a county-created corporation, Palm Tran Inc., whose board of directors is the
Palm Beach County Commission. The pension board for Palm Tran employees is made up of
county administrators and representatives of the employees union.
Butterworth said that Palm Tran is clearly an
"instrumentality" of the county subject to the Open Meetings Law, and therefore
its pension board was fulfilling a county purpose and also was subject to the law.
(Decisions on File, Fla. Atty. Gen. Op. 97-32, May 30, 1997)
Jury won't indict Vero Beach council members
VERO BEACH -- An Indian River County grand jury declined to
indict the Vero Beach City Council and city employees on allegations that they violated
the states Public Records and Open Meetings laws.
Local real estate agent Frank Zorc accused the city of violating
the Public Records Law by allowing a private attorney defending the city against a Zorc
lawsuit to take files to his Miami office. The grand jury found no violation there or in
the citys lack of response to Zorcs requests that the files be returned and
opened to the public.
The grand jury also found no violation in the City Councils
closed-door decision to pay current Mayor Bill Jordan $32,500 for a strip of land it
needed. The mayor said the city had voted publicly to allow the citys attorneys to
negotiate the price with him. (5/29/97-6/5/97)
finds no evidence council broke law
OLDSMAR -- State Attorney Bernie McCabe said he could find no
evidence that Oldsmar City Council members violated the Open Meetings Law when they fired
City Clerk Cheryl Mortenson.
Former Oldsmar Mayor Tom Pinta asked McCabe to investigate, and
council members publicly said that they supported the investigation. Members of the public
raised questions because newspaper reports four days before Mortenson was fired indicated
that most council members knew nothing about an agenda item concerning Mortensons
job. Also, some members of the public said the council never explained adequately why
Mortenson, who worked for the city for 16 years, was let go, except to say that the
council had "lost confidence" in her.
Mortenson filed a complaint with the U.S. Equal Employment
Opportunity Commission, claiming she was fired because she made sexual harassment
complaints in 1995 against Daryl Landis and Jerry Beverland, then members of the council.
Beverland is now the mayor. Both men denied the accusations. (5/1/97-5/22/97)
OK, judge says
ORLANDO -- A judge ruled that the Orlando-Orange County
Expressway Authority could not keep a man from videotaping its meetings for commercial
Judge Jeffords Miller, 9th Judicial Circuit, said the
authoritys policy of allowing anyone to videotape meetings except for commercial
purposes violated the Open Meetings Law. Judge Miller said the law provided access without
regard to someones purpose in attending the meeting.
Bill Dunn of SunCam Inc. of Miami tapes presentations of
consultants to public agencies and sells the tapes as "how-to" videos to other
consultants. Authority members said they feared his camera was capturing copyrighted work
of other companies, such as plans and drawings. Judge Miller rejected the idea that
copyrights would be at risk because of Dunns taping. (5/10/97)
Official quits panel
LAKE WORTH -- The citys vice mayor resigned from the
Salvation Army Advisory Board because the board feared that her presence, coupled with
that of the mayor, would require that board meetings be open to the public.
Retha Lowe resigned after several board members said it was a
mistake to appoint her. Mayor Tom Ramiccio already served on the board. The Open Meetings
Law generally requires that a meeting between two or more elected officials be open to the
public. The Salvation Army, a private charitable organization, generally is not subject to
the Open Meetings Law, but board members feared that the presence of two elected city
officials at its board meetings would force it to open the meetings. (5/15/97)
TALLAHASSEE -- A grand jury found no criminal wrongdoing in city
commissioners actions to approve a severance package for City Manager Steve Burkett.
Two Tallahassee residents complained that citizens were not
properly notified about the meeting at which Burkett announced his resignation and the
city quickly approved a severance package. The residents also accused city officials of
negotiating portions of the package behind closed doors.
Burketts resignation was not on the agenda for the March 6
meeting. The city manager said he met with the commissioners individually and had the city
attorney write his proposed severance package.
The severance package gave Burkett six months salary and an
additional six months of pay if he still has not found a new job after half a year. At the
March meeting, he announced that he was cashing in his unused vacation time and leaving
asks entire advisory board to quit
AVENTURA -- All five members of the newly formed planning
advisory board resigned after the Aventura City Council asked for the resignations because
of possible Open Meetings Law violations.
The council learned that during their second meeting, members of
the board mentioned that they had discussed city business among themselves in private. It
is illegal for elected officials to discuss public issues outside of open meetings in most
The council decided to ask all five members to resign rather than
single out one or two people. Vice Mayor Jeffrey Perlow said the "whole board was
tainted" by the incident.
The Dade County State Attorneys Office is investigating
whether anyone on the board should be charged with violating the Open Meetings Law.
district board, state settle lawsuit
FORT MYERS BEACH -- The Fort Myers Beach fire district and the
State Attorneys Office have settled an open meetings lawsuit out of court.
The State Attorneys Office sued because a union contract
negotiating meeting was held without prior public notice and no minutes were kept. The
Open Meetings Law generally requires that public business be conducted in public and that
minutes be kept of meetings.
The fire districts board held a properly noticed meeting
and re-ratified a contract with the union. It also agreed to post notices of union
meetings in a number of places in the future. (5/17/97-6/6/97)
NAPLES -- The Collier County Commissions use of unsigned
worksheets to decide which county manager finalists to interview was not an intentional
violation of the Open Meetings Law, said State Attorney Joe DAlessandro.
Nevertheless, the County Commission agreed to stop using unsigned
worksheets to avoid the appearance of a violation.
After the list of applicants for county manager had been whittled
to seven names, each commissioner marked a box for yes or no beside each finalists
name at a March meeting. If a job candidate got a majority of yes votes, that person would
be invited to Naples for an interview, as long as no one commissioner strongly objected.
DAlessandros office investigated after the Naples
Daily News, quoting First Amendment experts, questioned whether the worksheets
amounted to a secret ballot, which is generally illegal under the state Open Meetings Law.
The newspaper found that the commissioners also used unsigned worksheets to rank budget
priorities for the countys staff. (5/30/97-6/11/97)
City's win upheld
PORT ST. LUCIE -- The Florida Supreme Court said the city did
nothing wrong when it sold bonds to finance part of a water and sewer expansion project.
The unanimous decision upheld an earlier ruling by Judge Scott
Kenney, 19th Judicial Circuit.
A critic of the $200 million project sued because, he said, the
Port St. Lucie City Council did not adequately publicize its planned vote on issuing $26
million in bonds. He also said that the council met illegally under the Open Meetings Law.
The Supreme Court rejected those claims, as well as accusations that Judge Kenney acted
improperly during the trial. (4/18/97)
says board should discuss settlements
WEST PALM BEACH -- The Palm Beach County Health Care
Districts attorney said the districts board erred when it settled four
lawsuits without discussing the settlements in a public meeting.
Peter S. Sachs, the boards attorney, also said he had
"some problems" with the discussion during a private session to settle a lawsuit
because board members discussed a number of other issues.
Sachs advised the board to approve in public four settlements
totaling $259,500, even though the settlements already had been paid. He also said the
board would take steps to make sure it did not make the same errors again or discuss
issues in private that should be discussed in public.
The district, which provides trauma services and health care for
the poor and owns two hospitals, was responding to questions raised by reporters for The
Palm Beach Post. In March, the Martin County Commission paid the Post $15,900
to settle a lawsuit over closed meetings at which lawsuits were settled and the
settlements were never discussed in public. (Brechner Report, May 1997) (5/4/97)
KEY WEST -- The top two employees of the Monroe County Mosquito
Control District are suing two members of the districts board, saying the board
members illegally met in private to discuss firing them.
Director Greg Scott and Assistant Director Dennis Wardlow, who is
also mayor of Key West, say board members Steve Smith and Bill Shaw discussed firing them
during a convention in Ocala. The Key West Citizen and the Tarvernier Reporter
said Smith and Shaw believe that the mosquito board hired Wardlow for political reasons
and are angry at Scott for refusing to fire Wardlow. Smith and Shaw were elected to the
mosquito board last fall after a campaign in which they accused the board of various forms
It generally is illegal for members of a public body to discuss
in private issues that may come up for a vote. (5/21/97-6/11/97)
upholds ruling on desegregation meetings
LAKELAND -- The 2nd District Court of Appeal affirmed a trial
court decision that school board discussions of a desegregation plan should be public.
However, the appeal court limited the ruling somewhat.
Two members of the Pinellas County School Board appealed the
circuit courts ruling. The board met privately with its attorney in 1996 to discuss
modifying a desegregation plan adopted in 1971 to settle a federal lawsuit. The trial
judge rejected the boards argument that the meeting was exempt from the Open
Meetings Law because it dealt with litigation, saying the exemption only applied to
attempts to reach a final settlement in a lawsuit. (Brechner Report, July 1996)
The appeal court agreed but said the trial judge went too far in
ordering that all board meetings about the desegregation plan be open to the public in the
future. The appeal court said there could be legitimate reasons for the board to talk with
its attorney in private, such as discussing its negotiating stance on who should pay court
costs and attorneys fees in the continuing litigation. (6/27/97)
wife quits board
STUART -- The wife of the Martin County Commissions
chairman resigned from a bond authority board after issues of nepotism and possible
violations of the Open Meetings Law were raised.
Joan Wilcox resigned from the Martin County Health Facilities
Authority after government watchdogs and the new county attorney questioned her January
appointment. Her resignation came on the eve of a commission vote to approve a $45 million
bond issue the authority requested.
A critic of the bond issue told the commission that it may have
violated state ethics guidelines by appointing Chairman Marshal Wilcoxs wife to a
board under the jurisdiction or control of the commission.
County Attorney Gary Oldehoff said the commissions decision
in January to vote by secret ballot for members of the bond authority may have violated
the Open Meetings Law. The commission voted again in June for the other four members of
the authority and accepted Joan Wilcoxs resignation.
Commissioners blamed a former county attorney for giving them bad
advice. They said they thought it was acceptable to appoint Joan Wilcox to the board
because she would not be paid and neither she nor her husband would profit from the
forced to vote 4 times on same issue
STUART -- A Martin County education committee voted for the
fourth time on whether to change the way teen-age parents are educated. But a newspaper
said it may have violated the states Open Meetings Law again.
The committee, which is to recommend to the school superintendent
whether teen parent programs should be kept at one school or expanded to all the
countys high schools, voted 6-5 to allow teen parents to attend their regular
schools. But the panel did not have a quorum, so the vote did not count.
The second time, the committee members mailed in their ballots, a
violation of the states Open Meetings Law, which requires that public issues be
voted upon in public. After learning of the apparent meetings law violation, the committee
voted again at a public meeting -- by secret ballot. Secret ballots also violate the Open
The fourth time, the committee voted 12-5 to have all teen
parents continue to attend one school. The vote was done properly, according to The
Palm Beach Post, but committee members said they had talked to each other about how
they would vote before the meeting. It generally is illegal for members of a public body
to discuss privately what action they plan to take on a public issue. (6/10/97-6/25/97)
staffer in porn complaint
PENSACOLA -- The University of West Florida fired a computer
specialist after concluding that he downloaded pornography on his work computer and failed
to keep it from co-workers and students.
However, Jim Webb said that anyone could have had access to his
computer and downloaded the material. He and his wife, Vanette, say they are being
persecuted because of their political and religious beliefs. Vanette Webb was elected to
the Escambia County School Board in 1996 after campaigning as a conservative Christian
with strong moral convictions.
The university said that its investigation began after a student
complained about explicit material on Webbs computer. UWF said the investigation
found that only Webbs administrator account could be responsible for creating the
files. Among the files, UWF said, were pictures of people having sex and a list of
pornographic movies. (6/12/97)
AOL not liable in suit
WEST PALM BEACH -- A judge dismissed a lawsuit against America
Online, saying the on-line service could not be held liable for customers who use AOL to
Judge James Carlisle, 15th Judicial Circuit, said a section of
the Communications Decency Act passed by Congress in 1996 protected AOL. The law, which
largely consisted of anti-pornography measures, also insulated on-line service providers
from liability if they made good-faith efforts to stop pornography or could show they had
no way of knowing what their customers were doing.
The suit, which sought $8 million in damages, was brought by a
Palm Beach County boy, 14, who was sexually assaulted by a teacher in 1994. The lawsuit
said the teacher used AOL "chat rooms" as a place to meet other people
interested in child pornography. The suit said the teacher sold a lewd videotape of the
boy to another man he met through an AOL chat room.
AOL said it employs people to patrol its services for pedophiles,
but that 14,000 "conversations" can take place simultaneously in chat rooms,
making it impossible to monitor them all.
Shortly after the decision was announced, the U.S. Supreme Court
struck down the Communications Decency Act as unconstitutional. (6/14/97-6/15/97)
deposition in slaying closed
NAPLES -- A judge ruled that a 10-year-old murder witness will be
allowed to give her pre-trial deposition in private. The judge also closed the transcript
of the deposition.
The girl, who was in bed beside her mother when the woman was
strangled, told police her father was the killer.
Two newspapers, the Fort Myers News-Press and The
Naples Daily News, sought to send reporters to the deposition, arguing that the public
had a right to know what goes on in the court system. They were responding to a motion by
the girls attorney to close the deposition process.
Judge William L. Blackwell, 20th Judicial Circuit, said he agreed
to close the deposition process to protect the girl and so that he could better supervise
the attorneys questioning. (5/31/97-6/4/97)
rejects gag order in sex case
SARASOTA -- A judge rejected imposing a gag order in the case of
a former altar boy whose lawsuit alleges he was sexually molested by a church pastor and a
Attorneys for the Diocese, St. Charles Borromeo Catholic Church
in Port Charlotte, Bishop John Nevins and the Rev. Nicholas McLoughlin said the case was
likely to prompt a "media frenzy" that would keep the defendants from receiving
a fair trial.
But Judge Shera Winesett, 12th Judicial Circuit, said she saw no
evidence indicating a "reasonable likelihood of prejudice." She said attorneys
on both sides should follow Florida Bar rules on prejudicial pretrial publicity.
The young man claims he was molested by associate pastor Ed
McLoughlin, who is pastor Nicholas McLoughlins brother, and Richard Trepinski,
former director of the Charlotte County BoyChoir, which met at the church. The suit says
Nevins and Nicholas McLoughlin were negligent in failing to prevent the abuse. (5/29/97)
opens sign district records
PALM CITY -- The Palm City Chamber of Commerce turned over
records from a sign district it operated after Martin County Attorney Gary Oldehoff said
the Public Records Law applied to the districts governing committee.
Oldehoff said the committee was subject to the records law
because the county created the sign district. The district was created to set up signs
around Palm City to direct people to businesses, churches and other establishments. The
county hoped the directional signs would discourage the use of illegal signs on the county
Resident Krista White sued to force the chamber to turn over the
records. White said she wanted to know how much the district charged participating
businesses for the signs and whether it made a profit. The chamber, which operated the
sign district, resisted, saying it was a private organization and not subject to the
Public Records Law.
White said she found the records released by the chamber
"incomplete," but her attorney agreed to drop the case because there was no
evidence that more records existed. White still wants the chamber to pay her
attorneys fees and court costs. (6/10/97-7/1/97)
DCA rejects reporter's appeal of sentence
WEST PALM BEACH -- The 4th District Court of Appeal upheld the
contempt conviction of Miami Herald reporter David Kidwell.
The three-judge panels majority opinion said that to allow
witnesses to decide whether they should be required to give evidence would cause the
criminal justice system to "founder at the very beginning of the process."
The judges rejected Kidwells claim to a qualified privilege
not to testify about his jailhouse interview with murder defendant John Zile, who already
had confessed to police that he killed his stepdaughter. The court said that there was
precedent in Florida for a qualified privilege to protect confidential news sources, but
that Kidwells claim did not involve a confidential source.
Citing the Florida Supreme Courts ruling in Miami Herald
v. Morejon (Brechner Report, June 1990), the appeal court said there was no
privilege allowing a journalist to refuse to testify as "an eyewitness to a relevant
event in a criminal case." The court said Kidwells Zile interview was a
"relevant event" and rejected suggestions that the definition of "relevant
event" be limited to witnessing a crime or arrest.
Kidwell was sentenced to 70 days in jail in October 1996 after he
refused to testify about his interview with Zile. A federal judge released Kidwell after
15 days pending his appeal. (Brechner Report, December 1996) Kidwell remains free
pending an appeal to the Florida Supreme Court. (6/11/97-6/13/97)
Student sues over
NICEVILLE -- A Niceville High School senior is suing the local
school system after he was suspended for five days for distributing religious literature
Nicholas Wright handed out religious tracts at the school before
and after classes and during non-instructional time to friends who said they were
interested in receiving them. After the principal told him to stop, Wright said he had a
constitutional right to distribute the information. The principal and a vice principal
disagreed and suspended him after he continued distributing the literature.
The lawsuit, which names the Okaloosa County School Board,
Niceville High School, the principal and vice principal as defendants, claims that
Wrights speech and religion rights were violated by the suspension. (5/23/97)
system pulls show featuring dancers
FORT LAUDERDALE -- A show featuring women dancing in their
underwear has been pulled from a Broward County cable systems public access channel
after residents and officials in Plantation complained.
Continental Cablevision of Broward had aired the show weekly at
midnight on Friday and Saturday nights on public access Channel 19. The 30-minute show, The
Search for the Worlds Sexiest Dancer, was "indecent" by community
standards, Gary Resnick, a Continental official, said.
Comcast Communications of Broward Cable, which serves Fort
Lauderdale, Hallandale and Oakland Park, continues to carry the show on public access
Resnick said Continental received "many" complaints
about the show. A Plantation official said he sent a protest letter to Continental after
one elderly resident called him about the show.
pays $100,000 in software settlement
JACKSONVILLE -- A company agreed to pay $100,000 and to stop
using unlicensed computer software in a settlement with the Business Software Alliance.
Florida Detroit Diesel-Allison Inc., a distributor of engines and
other heavy-duty auto equipment, admitted that employees were using illegally copied
software programs. It voluntarily audited its own software, deleted unlicensed programs
and bought new software to settle the complaint.
The Business Software Alliance is a national piracy watchdog
group made up of several software makers, including Microsoft. It receives tips of piracy
from calls to its free hotline -- 1-888-667-4722 -- and investigates. If it finds probable
cause that piracy occurred, it can sue, obtain a court order to conduct audit
"raids" or negotiate a settlement. (6/2/97)
recalls linked history of Sunshine laws
By Jon Kaney
This is the 30th anniversary of the passage of Floridas
open government laws. A recent decision invokes the deep connection between these two laws
and the time of profound change in which they were passed.
In News-Journal Corporation v. Memorial Hospital-West Volusia
Inc., the 5th District Court of Appeal said that the Sunshine Law applies to meetings
of the board of a private entity when it is subject to the Public Records Law because it
is acting on behalf of a state agency. If left standing by the Florida Supreme Court, the
decision will make clear that agencies cannot avoid the Open Meetings Law by delegating
functions to private entities any more than they can avoid the Public Records Law.
To prevent such avoidance, the Public Records Law specifically
applies not only to public agencies but also to private entities that are "acting on
behalf of" public entities. Although there is no explicit acting-on-behalf-of clause
in the Open Meetings Law, the decision holds that this principle is implicit in that law
Beyond its immediate effect, the decision holds deeper
significance. By reading the Open Meetings and Public Records laws in concert, the
decision invokes the historic connection between them. They were passed as companion
reform measures by the 1967 Legislature, the first to be elected under a court-ordered
reapportionment plan that for the first time gave fair representation to the new residents
who had moved into the state during the post-World War II boom.
The link between Sunshine and reapportionment traces to Gov.
LeRoy Collins, who was the great champion of both causes. He campaigned for governor in
1954 on a platform of "government in the sunshine, not in the shade." In his
first message to the Legislature in 1955, he said, "The people of Florida possess the
sovereignty of statehood. [They] have yielded to us no right to decide what is good for
them to know, or what is bad for them to know." His proposal to ban secret meetings
cleared the House more than once, but he was never able to get it out of committee in the
In a speech in 1959, Collins told fellow governors that his
efforts to achieve reapportionment and other reforms had been stymied in the Florida
Senate by a bloc "organized [as] what is now well known in [Florida] as the `pork
chop gang whose members take solemn oaths" to preserve existing apportionment.
He predicted that reapportionment would bring "new soldiers from fast-growing areas
determined to make our government more representative and more responsive to the needs of
the people." Although he failed to persuade the Legislature to reapportion itself,
the courts ordered it done in 1966. True to Collins prediction, the "new
soldiers" who arrived in Tallahassee during the Summer of Love promptly enacted both
the Government-in-the-Sunshine Law and the modern Public Records Law.
The open government laws are thus bonded by the spirit of this
time of change and reaction against repression. Like equality of representation, they were
passed to make the government more representative and more responsive to the needs of the
people. On more than one occasion the courts have construed these laws in light of their
The historical fact is that the Legislature added the
acting-on-behalf-of clause to the Public Records Law several years later in order to
correct for a decision that had held to the contrary. Even before that legislation, the
Supreme Court had said there was no "government by delegation" exception to the
Open Meetings Law. What was implicit in the Open Meetings Law was made explicit in the
Public Records Law to overcome a contrary decision. Memorial Hospital thus recalls
the rich history and strong bond between the open government laws.
Jonathan Kaney Jr. is a partner in the Daytona Beach law firm
of Cobb, Cole & Bell. He represented the Daytona Beach News-Journal in the Memorial
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