The Brechner Report
Volume 20, Number 11
November 1996

A monthly report of mass media law in Florida

• R. Michael Hoefges, J.D., Editor
• Eric Fritz, Production Coordinator
• Michelle Mader, Production Asst.
• Bobbie Stewart, Production Asst.
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Inadvertent violations not charged
AG says settlements require hearings
News-Journal files suit over closed hospital merger talks
Fees settled in Duval school board case

COURTS
Statement sealed until murder trial
Circuit judge closed medical testimony in sexual abuse trial
DCA holds that tape of court proceeding is not a judicial record

FIRST AMENDMENT
Federal judge rules that paper may reject inmate's classified ads

ACCESS RECORDS
DCA exempts identities of HMOs in state Medicaid investigations
FAU required to release records about donation
Jail health provider drops appeal of records ruling

LIBEL
Libel suit against ABC could be headed to trial
New Republic will print retraction to settle suit

THE BACK PAGE
The merger of public hospitals is the public's business

Inadvertent violations not charged

DESTIN - A Walton County grand jury recently found that the South Walton Fire District Board of Commissioners failed to give required public notice for two 1995 meetings. The grand jury, however, did not recommend filing criminal charges under the Open Meetings Law, calling the violations "inadvertent."

In the report, the grand jury said, "While we find that the (board) erred in failing to provide appropriate public notice as required by law, we lack sufficient probable cause to charge anyone with a criminal violation of the law."

The grand jury investigated allegations that the board violated the Open Meetings Law on six occasions between June 1995 and April 1996. According to one allegation, the termination of then-fire chief Larry Berg at a Nov. 6 board meeting had been prearranged. The grand jury found no evidence that commissioners discussed Berg's firing prior to the Nov. 6 meeting, though.

The grand jury advised the board to develop guidelines to comply with public notice requirements for meetings, including emergency meetings. (8/23/96-8/24/96)

AG says settlements require hearings

TALLAHASSEE - In a recent opinion, Florida Attorney General Bob Butterworth stated that public notice and a hearing is required before an insurance carrier enters into a settlement agreement on behalf of a local government that has been sued, even if the amount does not exceed $5,000.

Although Florida Statute section 164.106 only seems to require local governments to hold a public hearing on proposed settlements that involve more than $5,000 in public funds, the notice and hearing requirements are not restricted to those circumstances, according to Butterworth.

Butterworth noted that during the 1996 session, the Legislature specifically considered and rejected an exemption for settlements funded by insurers. He therefore concluded that the Legislature intended for the notice and hearing requirements of section 164.106 to be applied "broadly and without exception."

The opinion was requested by Melbourne Beach Town Attorney Paul R. Gougelman III. (Decisions on File, Fla. Att. Gen. Op. 96-67, Sept. 5, 1996)

News-Journal files suit over closed hospital merger talks

DAYTONA BEACH - The Daytona Beach News-Journal has filed a legal action asking a circuit judge to void a partnership agreement between two Volusia County public hospitals.

The suit claims that the agreement was reached during closed meetings that violated the Open Meetings Law and also seeks release of the transcripts of the closed meetings. (See related story, p. 4)

According to the paper, the governing boards of the Halifax and Bert Fish medical centers met secretly twice last year and established a task force that subsequently met in secret eight times. The task force included board members, physicians and administrators from the hospitals.

The hospitals claim that the meetings were legal under a 1995 exemption to the Open Meetings Law that permits the board of a public hospital to meet in private to discuss "written strategic plans." Under the exemption, closed meetings must be recorded and transcribed by a certified court reporter, and the transcript must be public three years after the meeting is held.

The News-Journal claims in the suit that the exemption does not permit the boards of two separate public hospitals to meet secretly and does not apply to a joint task force that includes board members.

The paper also claims that the exemption violates the state constitution because it is too vague and broad, and does not fulfill a public necessity. (7/30/96-9/15/96)

Fees settled in Duval school board case

JACKSONVILLE - The Duval County School Board recently agreed to pay The Florida Times-Union $25,500 toward attorneys' fees in a court action filed by the paper seeking the release of the transcripts of closed school desegregation meetings.

Last year, Judge Virginia Q. Beverly, 4th Judicial Circuit, ruled that the closed meetings should have been open to the public and ordered the release of the transcripts. (Brechner Report, December. 1995) The school board appealed Beverly's decision, but the 1st District Court of Appeal affirmed the judge's order earlier this year. (Brechner Report, April 1996)

After the initial ruling, Beverly awarded attorneys' fees to the Times-Union, but the parties agreed to hold off on determining the amount until after the appeal was resolved. The appellate court awarded attorneys' fees to the paper for the appeal and sent the matter back to the trial court to determine the amount. The settlement resolves that issue.

Statement sealed until murder trial

LAKELAND - The 2nd District Court of Appeal will not review a circuit trial judge's decision to seal a tape-recorded statement given to detectives by Brandy Bain Jennings, who is accused of triple murder.

In July, Judge William L. Blackwell, 10th Judicial Circuit, sealed the 2 1/2-hour statement, recorded on four cassette tapes, over the objection of the Naples Daily News. The News then appealed Blackwell's ruling.

Because the appellate court will not review the case, Blackwell's ruling will stand and the tapes will remain sealed until Bain's criminal trial begins.

Bain and his former roommate, Charles Jason Graves, are accused of robbing a Cracker Barrel restaurant and killing three employees.

Bain and Graves are scheduled to be tried together before separate juries. The case originally was set to be tried in Naples, but was moved to Clearwater because of pretrial publicity. (9/11/96)

Circuit judge closes medical testimony in sexual abuse trial

OCALA - Judge Thomas D. Sawaya, 5th Judicial Circuit, agreed to close to the press and the public the testimony of Florida Department of Health and Rehabilitative Services physicians in the trial of a man accused of sexually abusing his daughters.

The doctors were expected to testify about whether the man on trial transmitted syphilis to his five daughters. He is accused of having sex with the girls while they were between the ages of 7 and 14 and, if convicted, faces life in prison.

Sawaya based his ruling on a state law that renders medical records about sexually transmitted diseases confidential. The ruling upholds a 1995 agreement between HRS, the prosecutor and the defense attorney in the case to seal the physicians' sworn statements and deposition testimony, and to close the courtroom during the physicians' trial testimony.

HRS has been criticized for delaying its investigation into the incidents. HRS received 18 complaints about the man between 1987 and 1993. The children were not removed from the home until 1993.

The Ocala Star-Banner had asked the court to open the testimony and argued that the public has a right to know whether HRS mishandled the case. (9/17/96)

DCA holds that tape of court proceeding is not a judicial record

TAMPA - The 2nd District Court of Appeal denied a public defender's request to compel a judge to release the audiotape of a docket call held in open court.

The tape was made to assist the court reporter at a later time in completing an official transcript of the proceedings. After the tape was made, Judge Diana M. Allen, 13th Judicial Circuit, took possession of it.

Although a Florida judicial rule provides for public access to "judicial records," including "tapes," the 2nd District found that the tape is not subject to that rule.

The ruling states, "The recording was not made pursuant to any court rule, law or ordinance, or in connection with the transaction of official business by the court or any court agency."

The ruling was not unanimous. One of the three judges on the panel would have required production of the tape and stated that because the tape is connected with official court business, it should be considered a "judicial record" and released.

Hillsborough Public Defender Julianne M. Holt had requested the tape from Allen. (Decisions on File, Holt v. Allen, 21 Fla. L. W. D1666, July 19, 1996)

Federal judge rules that paper may reject inmate's classified ads

JACKSONVILLE - U.S. District Judge W. Terrell Hodges ruled that an incarcerated man convicted of abusing his minor children does not have a constitutional right to place personal advertisements in a newspaper to communicate with the children.

Hodges based his ruling on the U.S. Constitution and stated that an "editor has the right to exercise editorial control and judgment regarding what is placed in his newspaper and interfering with this right is not consistent with (the) First Amendment guarantee of a free press."

The St. Augustine Record had published personal advertisements submitted by Gerald Fyfe addressed to his children and their mother.

After the woman complained to the newspaper, then-General Manager William S. Morris IV refused to accept additional advertisements from Fyfe.

Fyfe then sued Morris, the boys' mother and former Assistant State Attorney Patrick T. Canan.

Canan was alleged to have advised the Record about a Department of Corrections order forbidding Fyfe from trying to contact his family.

In the suit, Fyfe had alleged that he had been deprived of his "protected right to communicate with his children." (Decisions on File, Fyfe v. Canan, etc., et al., Case No. 94-1034-Civ-J-10, Aug. 19, 1996)

DCA exempts identities of HMOs in state Medicaid investigations

TALLAHASSEE - The 1st District Court of Appeal ruled that the identity of a health maintenance organization under state investigation for Medicaid fraud, abuse or neglect is confidential and exempt from disclosure under the Public Records Law.

Florida Statute section 641.515(2) exempts "any identifying information" in state records related to the investigation of an HMO. Another provision, section 409.913(7)(d), exempts the "complaint and all information" obtained through a state investigation of a Medicaid provider.

The court stated that the phrase "any identifying information" in the HMO exemption includes the identity of an HMO and applies to an HMO that is being investigated under the Medicaid provisions. (Decisions on File, State of Florida and Times Publishing Company, et al., v. PCA Family Health Plan, Inc., et al., 21 Fla. L. W. D2051, Sept. 11, 1996)

FAU requierd to release records about donation

WEST PALM BEACH - Judge John J. Hoy, 15th Judicial Circuit, ordered Florida Atlantic University President Anthony Catanese to release documents related to the spending of a $10 million gift from Charles E. Schmidt to the university.

FAU professor Sandra K. Norton, a former dean, filed a court action seeking correspondence between Catanese and Schmidt, who died last May, and Schmidt's son about how the money would be used.

Catanese had refused to show Norton the letters and claimed that they are confidential FAU Foundation records that are exempt from the Public Records Law. Norton claimed that the letters are state university documents that are not subject to the foundation exemption.

Hoy also ordered Catanese to "discontinue a policy and practice of denying Norton access to public records." After Hoy's ruling, FAU released the letters. (9/5/96)

Jail health provider drops appeal of records ruling

LARGO - EMSA Correctional Care, the private company providing health care at the Pinellas County Jail, dropped its appeal of a court order requiring the company to release jail health care records, including personnel and quality control records.

In July, Judge Horace A. Andrews, 6th Judicial Circuit, ordered EMSA to produce the records, which had been requested by the St. Petersburg Times. (Brechner Report, October 1996) EMSA had argued that as a private company, it is not subject to the Public Records Law and that release of the records will deter its staff from openly discussing ways to improve jail health care.

The Times has petitioned the court to award it $13,000 for legal fees incurred to obtain the records. (9/28/96)

Libel suit against ABC could be headed to trial

MIAMI - A libel suit filed by Bank-Atlantic chairman Alan B. Levan against the ABC television network may proceed to trial.

Levan sued ABC for libel after the television show "20/20" reported in 1991 that Levan knew that certain real estate investment transactions were unfair to investors but endorsed them anyway.

U.S. Federal Magistrate William Turnoff reversed an earlier recommendation that ABC be granted a summary judgment in the libel case after the settlement of a related civil case filed against Levan.

In a civil action brought by investors, a jury entered a securities fraud verdict against Levan in 1992. However, Levan then reached a settlement agreement with the investors and U.S. District Court Judge Kenneth L. Ryscamp, Miami, approved the settlement and vacated the jury verdict.

ABC tried to intervene in the securities case and challenge the settlement. ABC had intended to rely on the securities fraud verdict to establish the essential truth of the "20/20" broadcast.

The U.S. Court of Appeals for the 11th Circuit upheld a ruling by Ryscamp in the securities case that ABC has no right to intervene and challenge the settlement. (Decisions on File, Purcell, et al., v. Bank-Atlantic Financial Corp., et al., Case Nos. 94-4831, 94-5079, June 25, 1996) (7/2/96-7/31/96)

New Republic will print retractions to settle suit

MIAMI - A libel suit filed against The New Republic by Miami businessman and Cuban-exile leader Jorge Mas Canosa was recently settled out of court.

The magazine, based in Washington, D.C., agreed to print a retraction in an upcoming issue and to establish a $100,000 journalism and political science scholarship through the Cuban American National Foundation, which Mas heads.

Mas sued the magazine after it published a cover story about him on Oct. 3, 1994. The headline for the story referred to Mas as "Clinton's Miami Mobster." That same description also appeared on the cover. (Brechner Report, January 1995)

Although the magazine has agreed to retract the headline, it will not retract any of the statements in the text of the article. The author of the article, Ann Louise Bardach, did not write the headline.

The magazine planned to print a retraction that states, "The use of the word 'mobster' was the sole responsibility of The New Republic and not the author. The New Republic did not intend to imply that Mr. Mas has been involved in any criminal activity." (9/17/96)

The merger of public hospitals is the public's business

by Pamela Hasterok

Maybe they talked about firing employees to save money. Maybe they discussed which hospital would get which emergency patients. Maybe they considered flying saucers as a new cure for cancer. Who knows?

Not taxpayers, that's for sure. Only governing board members of Halifax and Bert Fish medical centers, two Volusia County public hospitals that recently announced a merger, know what was on the table when they met in secret 10 times between October and May. While the muckity-mucks don't want anyone privy to what they said, they were more than happy to announce what they did. In fact, even as hospital officials were denying they had struck a deal at the meetings, they were advertising the merger in the Daytona Beach News-Journal and designing new signs heralding the partnership.

Many besides the 21 or so people in the inner circle believe this is a fine thing. Combining the two hospitals will create a better, less costly system that will benefit patients, they say. Yet anyone curious about how tax dollars are being spent might wonder why board members insist on concealing how they brought about a partnership so advantageous to customers.

Perhaps it is because they intend to fire workers, always a controversial move. After all, when corporate America talks about getting leaner and becoming more efficient, you can bet your bottom dollar employees are going to lose their jobs. Those who remain often must accept fewer health care benefits and smaller retirement packages. Possibly they recalled the public outcry that attended a 1994 move by Halifax to go private and wanted to avoid a similar battle.

Whatever the reasons, the secret meetings stink.

Halifax and Fish board members behaved as though they were running private health clubs rather than public hospitals. The two hospitals are subsidized by residents to the tune of $20 million a year. They used one of the 706 exemptions to Florida's Government-in-the-Sunshine laws to shut residents out because it suited them. Negotiations are always easier when no one is watching.

The hospitals relied on an exemption to state open meetings laws that permits a public hospital board to discuss a "strategic plan" behind closed doors. State lawmakers, supposedly the ultimate protectors of the public interest, are complicit in this. They have been the front men for public officials wishing to escape the Sunshine, passing all 706 exemptions to the law and giving public officials a legal alibi to meet in secret.

That's no excuse. Both hospitals accept tax dollars and their governing members should involve residents in deciding how best to spend the money. Not to mention that board members went way beyond planning in the closed talks. Their Aug. 1 merger announcement was not a proposal. It was a done deal, a contract with dotted "i's" and crossed "t's." It is hard to imagine how board members justify this.

The News-Journal is suing to find out how the hospitals reached their decision to join forces. (See related story, p. 2) If the court rules that board members broke the law, it could void the partnership. The hospitals then would have to release the transcripts of the secret meetings and hold new, open ones, and perhaps pay the prevailing party's lawyers' fees.

Without a doubt, the court should undo this alliance. While the financial sting will be infinitesimal, perhaps the public shaming will cause some soul searching. If the merger of Fish and Halifax is such a fine thing, doing it over with public involvement should not hurt it.

Pamela Hasterok is a political writer for the Daytona Beach News-Journal, which published an earlier version of this article.

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