The Brechner Report
Volume 21, Number 12
December 1997

A monthly report by:

• Anthony L. Fargo, Editor
• Jackie Thomas, Production Coordinator
• Sarah Rabin, Production Assistant
• Stacey Silver, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Punta Gorda has hearing on lawsuit settlement for first time
Highland Beach mayor charged with violating law
County pays $15,000 in fees over lawsuit
City fires witness in meetings case
Paper sues city, 3 officials in meetings, records dispute
Ex-principal sues superintendent

LIBEL
Prosecutors drop criminal charges

STUDENT PRESS
Principal seizes all copies of school paper

REPORTER'S PRIVILEGE
Worker's comp judge quashes subpoena

COURTS
Judge kicks cameras out of courtroom in 2 trials

ACCESS RECORDS
Newspaper files second lawsuit against city

FIRST AMENDMENT
Lee County board adopts Bible studies curriculum
Superintendent agrees book should stay

THE BACK PAGE
Tips for getting records: Be aggressive but be polite

Punta Gorda has hearing on lawsuit settlement for first time

PUNTA GORDA – The City Council held its first public hearing on a lawsuit settlement. The city attorney said the hearing was held publicly as part of the city’s effort to comply with a Florida Attorney General’s opinion.

A state law requires that public hearings be held on lawsuit settlements of more than $5,000, but a number of local governments thought the law only applied to suits between governments. A 1996 Attorney General’s opinion said the requirement applied to all lawsuits against government bodies.

At the hearing, the city agreed to pay a former public works secretary $275,000. She claimed in her lawsuit that the city subjected her to sexual harassment, then fired her when she complained. She claimed that she frequently heard or saw sexual behavior between her supervisor, the former public works director, and his assistant director in the office. (10/16/97)

Highland Beach mayor charged with violating law

HIGHLAND BEACH – The State Attorney’s Office in Palm Beach County charged the mayor of Highland Beach with a criminal violation of the state Open Meetings Law.

Mayor Arlin G. Voress was charged after he had lunch with two city commissioners twice. Both times, he paid for lunch with a town credit card and wrote on the back of the receipts "town business" and "discuss potential water contract background." It generally is illegal under the Open Meetings Law for elected officials to meet outside of meetings open to the public to discuss public business.

The State Attorney’s Office said it only charged Voress with violating the law because he publicly admitted he met with the two commissioners, and his signature was on the receipts. But prosecutors said the two commissioners also could be charged if more evidence against them surfaced.

Voress did not deny the meetings took place or that a water contract with Delray Beach was discussed, but he said the meetings were about technical matters. An attorney for the town said the meetings were for fact finding, which is allowed under the Open Meetings Law.

Voress said he would plead not guilty and ask for a jury trial at his Nov. 18 arraignment. (10/18/97-10/31/97)

County pays $15,000 in fees over lawsuit

ORLANDO – Orange County has agreed to pay a construction company $35,000 in settlement costs and $15,000 in attorneys’ fees to settle a lawsuit over a closed meeting.

Danis Heavy Construction Co. of Dayton, Ohio, sued after a county committee held a closed meeting to discuss Danis’ protest of a contract award. The county and Danis reached a settlement after Judge John H. Adams Sr., 9th Judicial Circuit, ruled that the committee violated the Open Meetings Law.

The county awarded a contract for a construction project to the second lowest bidder instead of Danis because Danis could not promise to give at least 25 percent of its subcontracts to minorities and women.

Danis, the county, and Wharton-Smith Inc., the winning bidder, also settled a lawsuit over the contract award. (8/1/97-9/25/97)

City fires witness in meetings case

RIVIERA BEACH – The city fired the code administrator who is expected to be a key witness against two Riviera Beach City Council members accused of violating the Open Meetings Law.

In a letter of dismissal, City Manager Dennis Widlansky said that Don Hendrickson, the city’s code administrator since 1988, did political errands on city time and in his city car. Widlansky also said Hendrickson was insubordinate and did not do his job properly.

Hendrickson said he would sue the city for retaliating against a whistle-blower.

Hendrickson’s accusations helped lead to the indictments in May of council members Marge Confrey and Marilyn Moffitt. The State Attorney’s Office accused Confrey and Moffitt of meeting secretly, in violation of the Open Meetings Law, to plot the firings of the police chief and city manager. (Brechner Report, July 1997) (9/13/97-10/23/97)

Paper sues city, 3 officials in meetings, records dispute

EDGEWATER – The Daytona Beach News-Journal filed suit against the city of Edgewater and three City Council members over alleged violations of the Public Records and Open Meetings laws.

The newspaper accused Mayor Randy Allman and council members Myron Hammond and Gary Roberts of secretly planning the firing of City Manager George McMahon and City Attorney Krista Storey. The two were fired at an Oct. 6 meeting.

All three council members named in the suit voted for the firings and also voted to hire Kenneth Hooper as interim city manager and Nikki Clayton as interim city attorney. The suit contends the three council members violated the Open Meetings Law by secretly meeting to plan the firings and to decide whom to hire.

The suit also claims that Allman and the city violated the Public Records Law by failing to provide the newspaper with Hooper and Clayton’s resumes and with information about how much the two were being paid. The city gave the paper the resumes three days after the meeting but did not release the financial agreements in the 11 days between the meeting and the day the paper filed suit. Case law and Attorney General’s opinions indicate that the only acceptable delays are for the time it takes to find the information and delete any details that are exempt from disclosure. (10/9/97-10/18/97)

Ex-principal sues superintendent

BOCA RATON -- An ex-principal is suing his former school district’s superintendent, some of her top associates and the district’s attorney, claiming they violated the Open Meetings Law.

Art Johnson claims the defendants violated the law by polling Palm Beach County School Board members about how they would vote on whether to fire Johnson. It generally is illegal for members of public bodies to discuss in secret actions they plan to take.

Johnson also says in his suit that the defendants violated his right to due process by not giving him the chance to refute accusations that he poorly managed Spanish River High School.

Superintendent Joan Kowal and attorney Glen Torcivia both said there was no truth to Johnson’s allegations. (10/16/97)

Prosecutors drop criminal charges

LECANTO – Prosecutors dropped criminal defamation charges against two 19-year-old men who created a Web site that accused a teacher of having homosexual relations with a student.

Ryan Vella and Christopher Cohen were charged with criminal defamation under a 1945 Florida statute making it a first-degree misdemeanor to publish something that "tends to expose any individual or any religious group to hatred, contempt, ridicule or obloquy." The charges were raised to a third-degree felony under an anti-gang law after county officials said the five people involved with the Web site, who called themselves the "Wrathlords," were acting like a gang.

The American Civil Liberties Union agreed to help defend the two former Lecanto High School students, but county prosecutors quickly dropped all charges after deciding that the criminal defamation law was unconstitutional.

The Web site featured a picture of the student at a school dance with an image of the teacher superimposed in place of the student’s date. The ACLU said it would not defend Vella and Cohen if the teacher or the student filed a civil defamation action. (Fall 1997)

Principal seizes all copies of school paper

ST. PETERSBURG – A high school principal seized all 1,000 copies of the student newspaper because he said a story in the back-to-school issue was erroneous.

Michael Miller, principal of Northeast High School, declined to discuss the matter, but people who spoke to him about the incident told the St. Petersburg Times that he was concerned about a story reporting that the school was converting to a "traditional" approach in 1998-99. The approach, used at other schools in the district, includes mandatory meetings for parents and stricter dress, behavior and homework standards for students.

The source for the story, a school librarian, said she told the Nor’easter that faculty members supported the proposed change and that it was being considered, but did not say the school would definitely adopt the approach.

A school district spokesman, Ron Stone, defended Miller and said it would be "inaccurate and inflammatory" to say that the change to a traditional approach was approved. He said such a story "would cause panic in the streets" because of the impact the change would have on parents and students.

The U.S. Supreme Court has said that school principals have some latitude to censor student publications at the high school level and lower. (8/23/97)

Worker's comp judge quashes subpoena

JACKSONVILLE – A judge of Compensation Claims quashed a subpoena for a newspaper reporter called to testify about the effect of an article he wrote.

District C Judge Ivy C. Harris said the testimony of Florida Times-Union reporter Beau Halton would be irrelevant to determining whether an article he wrote about the worker’s claim affected the judge in an earlier compensation trial.

The employer in the workers’ compensation case, the Mayo Clinic, was seeking a retrial before a judge of Compensation Claims. The clinic’s attorney alleged that the attorney for the claimant, Sheila R. Tomblin, contacted Halton and persuaded him to write a newspaper story about the case. The attorney claimed that the article had a prejudicial effect on the first trial.

Judge Harris said that questioning the reporter would "unnecessarily burden" a member of the news media and would shed no light on whether the article affected the trial judge’s decision. (Decisions on File: Tomblin v. Mayo Clinic, Department of Labor and Employment Security, Judges of Compensation Claims, District C, Claim No. 261-94-3991, Oct. 2, 1997) 

Judge kicks cameras out of courtroom in 2 trials

FORT PIERCE -- A circuit judge ordered photographers out of his courtroom twice within a week because he said they were violating restrictions he placed on them.

Judge Ben L. Bryan Jr., 19th Judicial Circuit, removed photographers from The Palm Beach Post and WPEC-TV from the courtroom because, he said, they were violating his order not to photograph a shooting victim’s 9-year-old son. Judge Bryan said the photographers were a distraction during jury selection, and they were pointing cameras in the child’s direction. He renewed his order barring photographs of the 9-year-old after attorneys for the Post and WPEC asked him to reconsider. The media attorneys argued that the judge could not give the boy special status without a hearing.

In another case, Judge Bryan removed a camera operator from WPTV-TV for allegedly defying instructions not to film the victim, jury, or any witness younger than 18 years old in the trial of a man charged with committing lewd and lascivious acts on children. (10/9/97 - 10/15/97)

Newspaper files second lawsuit against city

ST. PETE BEACH – The St. Petersburg Times filed its second lawsuit in six months accusing the city of violating Florida’s Public Records Law.

The newspaper said it filed the most recent suit after city officials refused to turn over notes they made during a search for a new city manager. The paper contends that the notes are public records. The city said some commissioners did not want to turn over the notes because they were drafts.

In May, the Times sued after the City Commission fired City Manager Danny Walker. The paper said the city refused to release records about Walker that the Times requested. The Times also accused the commissioners of violating the Open Meetings Law by meeting secretly to orchestrate Walker’s firing and severance package before a public vote. The suit is still pending. (5/31/97-10/22/97)

Lee County board adopts Bible studies curriculum

FORT MYERS – After a heated debate, a sharply divided Lee County School Board voted to approve a Bible studies curriculum for an elective course on the New Testament.

The board recently had voted to approve a class on the Old Testament, with a curriculum designed by a citizen’s committee. But the committee could not agree on a curriculum for a New Testament class, so the board adopted one used in North Carolina. It includes teachings on the resurrection of Jesus and other articles of faith.

Critics of the curriculum, including the school board’s attorney, said the class likely would be challenged in court as an unconstitutional mingling of church and state. The board’s attorney said the class would only pass muster in court if it taught those parts of the New Testament that could be verified historically. But supporters of the Bible curriculum argued that a class that did not include the Resurrection would be "like having a dictionary and taking out all the T’s," as one speaker put it. (10/15/97-10/23/97)

Superintendent agrees book should stay

PANAMA CITY – The Bay County school superintendent denied a request to have the novel Of Mice and Men removed from high school classrooms.

A student’s parents, who are ministers and civil rights activists, asked that the John Steinbeck classic no longer be assigned to high school classes because it contains a racial epithet. A teacher at Mosley High School assigned the book to the couple’s daughter. The teacher gave the student another assignment as a result of the parents’ complaint. The school’s principal agreed to make the book optional reading but changed his mind after he was accused of censorship. (Brechner Report, September 1997)

Superintendent Larry Bolinger said teachers can use the novel as a way to guide students through the cultural milieu of the 1930s, the era in which it was written. A district review panel concluded that teachers cannot shield students from sensitive issues in literature and can give them a context in which to understand the issues. (10/22/97)

Tips for getting records: Be aggressive but be polite

By Fred Schulte

There’s only one way for reporters to fight growing government secrecy: get more aggressive.

Remind bureaucrats who tell you they are too busy to pull files that Florida’s Public Records Law doesn’t give them the power to impose a waiting period.

When a local or state agency slaps you with outrageous fees or service charges to provide public records, don’t take it. Call the Attorney General’s Office and ask it to set the agency straight.

Don’t be afraid to complain to elected officials about the lack of cooperation you are receiving from civil servants under their watch. And write stories that let taxpayers know when government officials refuse access to public records.

Most of all: never go away. Media requests for public records too often get rebuffed because agency officials know that stalling will force reporters to move on and bother someone else.

Here are some common excuses for denying reporters public records along with some snappy comebacks. The pages cited are from the Government-in-the-Sunshine Manual 1997 edition.

Who are you and why do you want these records?

Nothing in the law requires you to identify yourself, or fill out a form. You also are not required to say why you want public records (p. 96).

        You have to be more specific in your request. We don’t have all day to look up files!

Florida law does not require you to be specific (p. 97).

Come back later. We’re busy.

The only delay allowed under the law is the reasonable amount of time it takes the agency to weed out any records that are confidential. Officials are not permitted to tell you to come back in a few days. They also must tell you which exemption to the law gives them the power to keep records secret (p. 97).

Put your request in writing and we’ll get to it later. Have a nice life!

Nothing in the law requires you to put a request in writing. Make sure you aren’t being stalled before agreeing to write a letter (p. 98).

Because some parts of these files are confidential, you can’t have any of them.

The law requires that the records custodian remove any portion of the files that are confidential and hand over the rest (p. 101).

        This report is only a draft. You can’t have a copy until it becomes final or the mayor has reviewed it.

While federal law allows officials to withhold drafts, or other "pre-decisional" documents, state law generally does not (p. 61).

Why are you digging up dirt? Don’t you have any respect for anyone’s right to privacy?

No such right to privacy exists, except in some specific circumstances. Public records are public regardless of whom they might embarrass (p. 102).

        The records you want include attorney’s files. Haven’t you ever heard of attorney-client privilege?

Government agencies have no right to attorney-client privilege, except in very limited cases (p. 84).

        We promised the people who gave us these files that we would keep them secret and we can't go back on our word.

Under state law, no public official has the right to make such a guarantee (p. 100).

You guys can’t just call up and expect us to go through our files for you.

That’s true. Government officials have no obligation to drop what they are doing to look up information in their files for a reporter. They only have to grant you access to the files. So be nice!

The Government-in-the-Sunshine Manual can be ordered from the Office of the Attorney General, the Capitol, Tallahassee, FL 32399-1050, (850) 488-9853, or the First Amendment Foundation, 336 E. College Ave., Suite 300, Tallahassee, FL 32301, (800) 337-3518.

Fred Schulte is the investigative editor at the Sun-Sentinel in Fort Lauderdale. This article was adapted from his remarks at the Florida Sunshine Summit on Oct. 17.

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