The Brechner Report
Volume 23, Number 6
June 1999

FIRST AMENDMENT
Judge upholds rights of pro-life picketers
Judge: protesters had right to carry banner
Reporter loses fight over access to air show

Judge William Terrell Hodges said, "mere words, shouted or inscribed on placards, no matter how offensive they may be," do not violate either statute unless they convey a threat of force.  Hodges also ruled that the City of Ocala may have violated equal protection rights of its off duty officers by not permitting them to be hired by the abortion clinic as private security guards. The court said a trial would determine whether the city had a rational basis for its decision. (5/4/99)

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The city’s legal firm advised the mayor that the resumes were public records and that Public Works Director Phil Charnock was authorized to release them to the press. However, Charnock was reluctant to contact the mayor at home for the key, reported the Bystander.On the next working day, the mayor’s office informed the Bystander that the resumes were copied and ready for pick-up, but requested $20 per hour of staff preparation time and 15 cents per copy. The newspaper declined to pay the fees, arguing that they are not authorized by the Public Records Law.

The state law provides that, if reproduction of the requested records involves extensive clerical or supervisory assistance, the agency may charge, in addition to the actual cost of duplication, a reasonable service charge based on the labor cost of the personnel providing the service. (4/14/99)

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In March 1998, retired U.S. Army General Norman Schwarzkopf received an honorary doctorate from UF President John Lombardi. During the ceremony, Ernesto Longa, Howard Rosenfeld and four other protesters displayed banners and chanted "Schwarzkopf lies, Gulf vets die." Longa said, he protested Schwarzkopf’s cover-up of chemical weapons used by the U.S. forces in the Gulf War.

Judge Aymer "Buck" Curtin, 8th Judicial Circuit, found Longa and Rosenfeld guilty of disrupting a school function, but withheld adjudication, sentencing them to six months’ probation. (4/29/99)

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CORE contracted with St. Lucie County to provide the probation services to offenders, including job placement services, substance abuse prevention, and collecting supervision fees. The company’s contract with the county provides that CORE "shall allow public access to all documents, papers, letters, or other material" subject to the Public Records Law.

However, CORE’s attorneys argue that the company’s records are not public because it does not receive public funding and operates on privately owned property.   CORE took over the duties previously performed by the Salvation Army Correction Agency, whose contract with the county was terminated in 1991. In 1997, a state appellate court held that the Salvation Army was subject to the Public Records Law because it acted on the county’s behalf in providing probation services. (Case of File, Stanfield v. Salvation Army, No. 96-2722, June 12, 1997; Complaint on File, Curry v. CORE Program, Inc., Case No. 99-533-CA17)(4/23/99)

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In December, a Marco Island resident, William McMullan, filed a complaint with the State Attorney’s office on behalf of his wife, Helen McMullan, an employee of a county health department. McMullan claimed that members of the grievance committee conspired to ban his wife from hearing a testimony of the man she accused of sexual discrimination and retaliation. Another witness, Peggy Pratt, a former department’s employee, was also told she could not be present at the hearing until called for questioning.

Provost said that the exclusion of a witness from a grievance proceeding was illegal. However, he said, the investigation found no evidence of a conspiracy or ill intent on behalf of the committee members to lay ground for criminal charges. A non-criminal violation carries a maximum $500 fine. (4/6/99)

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Wilson says the station, threatened with a lawsuit by Monsanto, required as many as 80 script revisions, which amounted to a prior restraint on reporters' expression. The station argues that the suit has no merit and is only a matter of dispute between the reporters and management over canceled contracts.  Judge Robert Bonanno, 20th Judicial Circuit, denied the station's motion for a summary judgment in its favor and cleared the way for a trial. (4/1/99)

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The Ledger sued Prison Health Services two years ago to obtain the details of a $500,000 settlement paid to the widow of a man who died in jail in 1995. A federal appellate court ordered the health-care provider to release its settlement records, and the company’s subsequent appeal was denied. (Brechner Report, April 1999)(4/15/99)

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The parent of a second-grader said she did not give permission for a teacher to post her daughter's picture, along with her autobiography and name, on the school's site. The school's principal, Connie Tuman said she would ask the school district's technology committee to draft a policy by fall as to which works teachers can post online. (4/9/99)

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Wardlow claimed that Smith and Shaw privately conspired to fire him during a Florida Mosquito Control Association meeting in Ocala in 1997. A grand jury empanelled by the county’s State Attorney Kirk Zuelch reviewed the allegations but did not issue an indictment. In January 1998, the late Gov. Lawton Chiles ordered that the State Attorney for the 11th Judicial Circuit continue the investigation.

David Paulus, the chief investigator for the allegations, stressed that despite insufficient evidence against the two commissioners, "the public’s trust in the District’s ability to perform its function" has been "irreparably damaged." He recommended that the state legislature should abolish the district and transfer its duties to the Monroe County Board of Commissioners. (3/11/99)

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On April 12, 20 Republican Senators gathered at Georgio’s restaurant near the Capitol, where they discussed Gov. Job Bush’s controversial school voucher proposal due for a vote the next day. Bush’s chief lobbyist, Ken Plante, took part in the dinner.  On April 15, Senate leaders admitted they made a mistake by failing to provide public notice of the gathering. Latvala said, this "won’t happen again." (4/12 – 23/99)

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Under the Open Meetings Law, city and county governments have to hold public hearings to approve settlements in excess of $5,000 in the suits where they are defendants.  The Ledger reported that in the past year, the city secretly settled three cases for more than $5,000, including a $100,000 settlement with the family of a man who drowned in a city pool.  Mawhinney's decision came after Adam Liptak, legal counsel for the Ledger, sent him a letter urging to stop illegal practice and threatening to seek relief in court.

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In January, State Attorney John Tanner informed the trustees John Benedict and Hutch Stevens and a former trustee Robert Gorab that they acted illegally during 1997 and 1998 by holding closed meetings, tallying a homeowner survey and hiring an engineering firm for a preliminary study. (Brechner Report, March 1999) Tanner told the board to rescind their actions and take curative steps.

In February, the board issued a new request for proposals of sewer engineering. A month later, the trustees held a public meeting during which they selected the same engineering firm for the project. The board’s attorney Paul Perez drafted the letter to Tanner, in which the trustees admitted their violations and expressed belief that the public confidence in the board had renewed as a result of the undertaken curative measures. (2/12 – 4/15/99)

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James Campbell, publisher of the U.S. Aviator magazine, asked the federal district court to stop Sun’ n Fun officials from banning him from the Fly-In, a weeklong experimental aircraft show held at Lakeland Linder Regional Airport. He claimed Sun’ n Fun banned him from the show because of the negative articles he wrote about companies marketing unsafe airplanes at the event.

However, attorneys for Sun’ n Fun argued that they issued the ban in response to Campbell’s "escalating verbal and physical behavior" at previous air shows.   Judge Lazzara ruled that putting on an air show is not a governmental function, and a private company can control access to the property it leases. (4/9 – 15/99)

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Judge Pat Kinsley, 1st Judicial Circuit, convicted Webb of a misdemeanor and ordered her to pay the $1,000 fine plus $45 per month in probation costs and restitution to the school district for its expenses. The court reserved the right to determine court costs. After the trial, Webb was placed in protective custody at the Escambia County Jail.

In December, the grand jury indicted Webb for knowingly withholding public records from Susan Watson, a mother of three public school children. (Brechner Report, February 1999). Watson, who publicly criticized Webb’s actions and political beliefs, said she requested the records to better understand Webb’s votes on school board issues. Webb denied the request saying the records were confidential.

In February, Webb filed a counter-suit against Superintendent Jim May and the school board, claiming they violated the Open Meetings Law by conspiring to remove her from office. (Brechner Report, April 1999)

According to the Brechner Center’s prosecution database, Webb is the second school board member convicted of the access law violation. In 1992, a Hernando County School Board member, Diane Rowden, was found guilty of violating the Open Meetings Law, fined $322 and ordered to spend four hours studying the Government-in-the-Sunshine manual. (5/16/99)

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A citizen is about to go to court to contest an alleged zoning violation, but the building department won't release a copy of the complaint to him. After a student protests that a university’s fee for copying its records is too high, the university says it will not release the student’s academic records until she pays the disputed copying fee. A city tells a reporter that she must fill out a form to obtain public records.

Each of the preceding disputes was resolved last year through the Open Government Mediation Program. In the first case, the county released a copy of the zoning complaint to the citizen. In the second case, the university attorney agreed to waive the fees and remove the hold on the student's records. The third case was settled when the city attorney determined that the form requirement was illegal and the policy was changed.

The purpose of the mediation program is to provide alternative to litigation for resolving public access disputes. The program began as a voluntary effort in the Attorney General's Office several years ago. In 1995, the program was codified into Section 16.60 of Florida Statutes. Despite its status, it continues to be operated by the General Counsel in the Attorney General's Office using existing resources. No monies have been appropriated to fund the program.

The Attorney General's Office publishes an annual report that summarizes the results of the cases handled by the program during the preceding fiscal year. The latest report, released in January 1999, indicates that during the 1997-98 fiscal year a total of 115 cases were processed by the mediation program. Of these, 11 cases involved disputes regarding open meetings and 104 concerned public records disputes.

Most cases are resolved quickly. For example, 15 disputes were settled in less than 24 hours. One case questioned whether a police department should release a crime report in which a law enforcement officer was the alleged perpetrator. After a discussion with the agency's legal advisor, the report was released that same day.

In some cases, however, the complexity of the issues requires a longer time for mediation. For example, a dispute over fees to be charged for computer records required several telephone conferences and took nearly four weeks to resolve.

Agencies involved in a dispute are invited, but are not required, to participate in the mediation process. Thirty-four initial requests for mediation were not resolved in the program for a wide variety of reasons: the records custodian declined to mediate (23 cases); the requestor withdrew from mediation (four cases); the parties were unable to reach an accord (four cases); the requestor obtained similar records from another source; the dispute involved issues outside the scope of the mediation program; or the agency sent the records to the requestor before the Attorney General’s Office received the request for mediation.

Of the initial requests for mediation, 81 -- or 70 percent -- were resolved through the program. Fifty seven of them concerned controversies over access to records. Others involved disputes over fees and procedural barriers for public access to meetings or records.

This year's statistics show that the mediation program has been a successful alternative to litigation for many private citizens and governmental agencies. The resolution of public access disputes without litigation results in cost savings to the governmental agencies served by the program, while at the same time helping the public gain access to public meetings and records.

Pat Gleason is General Counsel in the Office of the Attorney General. She has been operating the mediation program for about eight years. For more information about mediation or to obtain a copy of the 1999 Mediation Report, please contact her at (850) 488-9853.

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