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Satellite Beach: A Clarification.

Satellite Beach Officials blocking access to meeting.
Left to right: Satellite Beach Police Department Sergent Steve Owen, Councilman Mark Brimer, Councilwoman Mindy Gibson, Mayor Frank Catino (seated.)

We received some feedback on our posts concerning Satellite Beach and their blocking of people into what are clearly public meetings. (See here and here.)

Mostly, the concerns have been with what to do as the City had admitted they knew their actions were to get circumvent the Sunshine Laws.

We agree that the City of Satellite Beach tried (successfully it appears) to circumvent the Sunshine Laws. The acts to do this were deliberate as the Mayor admitted.

Strangely, just admitting that you tried and succeeded at circumventing the Sunshine Laws is not a crime. Established law says that a government entity has to not on violate the Sunshine Laws, but know that their actions were illegal.

The case this is based upon is Blackford v. Sch. Bd. of Orange City 375 So. 2d 578 (Fla. Dist. Ct. App. 1979) and is somewhat similar to what happened in Satellite Beach.

The School Board of Orange City was looking at a contentious rezoning of schools and did not want to have School Board meeting where all of the options would be discussed in front of a large group or parents. The School Board wanted to come out with the plan and present it at an open meeting, but did not want to have the discussion of proposed plans to be held “in the Sunshine.”

Here’s what the School Board did:

The problem in the case now before us is that this superintendent did much more and devised a plan by which his board members would come visit his office in rapid-fire succession to discuss, exclusively, this major redistricting problem. Thus on January 30, 1978, the board proceeded in convoy, but out of sight of each other, to the superintendent’s office, the first at 8:30 A.M., the second at 10:30 A.M. and the third at 12:30 P.M. Two days later three more members did the same. Substantially the same procedure was repeated five times more, ending on April 26th. Public announcement of the final proposed resolutions, which included the reclassification of Cherokee Junior High (from whose ranks the appellants are drawn), was then made two days later, on April 28th. Simultaneously, the resolutions were placed on the agenda of the board for final action eleven days after that.

This is exactly what Satellite Beach did. They paraded the Council members in one at a time in order for the individual meetings not to be considered a meeting of the City Council.

The case parallels the Satellite Beach incident even more:

The superintendent is adamant that he did not act as a go-between during these discussions and denies that he told any one board member the opinions of any of the others. He insists that he only presented and discussed the various options with each member and generally obtained their feedback. He also denies that the board members directed him to make any changes to, or indicated which way they would vote on, the proposals.

As we said, previously, the individual meetings in Satellite Beach were under the Sunshine Laws according to this case.

However, the Court went further and once again, the actions of the School Board parallels what happened in Satellite Beach:

Both the memos of the school board attorney and the candid testimony of the superintendent lead us to the conclusion that what transpired here was not so much a willful violation of the Sunshine Law, but rather an attempt not to violate it, yet keep the various options secret. We can well believe that premature publication of what were only tentative solutions would have filled the air with vituperation from outraged parents, much of which would turn out in the end to be unjustified. However, that is not the point. School boards are not supposed to conduct their business in secret even though it may all be for the best at the end of the day and notwithstanding that the motives are as pure as driven snow. Moreover of the several tentative secret options, one certainly was not discarded, namely the re-classification of Cherokee Junior High, a result totally unacceptable to those affected.

While we agree that one swallow a summer cannot make, we are convinced that the scheduling of six sessions of secret discussions, repetitive in content, in rapid-fire seriatim and of such obvious official portent, resulted in six de facto meetings by two or more members of the board at which official action was taken. As a consequence, the discussions were in contravention of the Sunshine Law. (emphasis ours)

There are remedies for violating the Sunshine law. (see below.) The problem here is that the people doing the violations must knowingly violate the Sunshine Laws according to the statutes.

That doesn’t appear to be the case here. It seems that the City of Satellite Beach was trying to circumvent the Sunshine Laws but not break them.

Therefore, there is no legal course of action available against the City.

However, the question is “who came up with the scheme to have Council members come in one at a time?”

That’s something that we’d like to know and probably never will know. If the scheme was hatched and or approved by the City Attorney, we’d say that the Attorney is incompetent on many levels. After all, the Blackford v. Sch. Bd. of Orange City case is from 1979, almost 40 years ago. This is not new law.

Secondly, every Council member when elected goes through Sunshine Law training. We asked a few Council members outside of the City and they all said that they were given the “Government in the Sunshine State” manual. That manual is one of the resources we have been quoting from and it discusses on page 9 the Blackford case.

The Council members we spoke with say that the training concentrates on communications and actions that fall under the Sunshine Laws and not so much what constitutes a meeting under the Sunshine Law. The Council members belief is that in their towns, it is the Mayor and the City Clerk that schedule meetings initially and so it is incumbent on them to know the meeting laws and requirements.

Which puts this screw-up deliberately on the backs of Mayor Frank Catino and City Manager Courtney Barker. If they did not know, they should have known that the course of action they took violated the Sunshine Laws. Sadly, because the City and the City Council is so thin-skinned, they will never admit on their own that they were wrong.

We are sorry to say this, but it is difficult to trust the City with complex issues of the health concerns of their citizens when they cannot handle the basics of public meetings and the Sunshine Law.

We don’t think that any criminal or civil complaints will get anywhere. The Mayor, Barker, et al, will claim, as they are already, that they were trying to avoid being subject to the Sunshine Laws rather than knowingly violate them.

However, if you wish, you can pursue a complaint. Here is what you are looking at:

WHAT ARE THE CONSEQUENCES IF A PUBLIC BOARD OR
COMMISSION FAILS TO COMPLY WITH THE SUNSHINE LAW?

1. Criminal penalties

Any member of a board or commission or of any state agency or authority of a county, municipal corporation, or political subdivision who knowingly violates the Sunshine Law is guilty of a misdemeanor of the second degree. Section 286.011(3)(b), Florida Statutes. Conduct which occurs outside the state which constitutes a knowing violation of the Sunshine Law is a second degree misdemeanor. Section 286.011(3)(c), Florida Statutes. Such violations are prosecuted in the county in which the board or commission normally conducts its official business. Section 910.16, Florida Statutes. The criminal penalties apply to members of advisory councils subject to the Sunshine Law as well as to members of elected or appointed boards. Op. Att’y Gen. Fla. 01-84 (2001) (school advisory council members).

2. Removal from office

When a method for removal from office is not otherwise provided by the Constitution or by law, the Governor may suspend an elected or appointed public officer who is indicted or informed against for any misdemeanor arising directly out of his official duties. Section 112.52, Florida Statutes. If convicted, the officer may be removed from office by executive order of the Governor. A person who pleads guilty or nolo contendere or who is found guilty is, for purposes of section 112.52, Florida Statutes, deemed to have been convicted, notwithstanding the suspension of sentence or the withholding of adjudication. Cf., section 112.51, Florida Statutes, and article IV, section 7, Florida Constitution.

3. Noncriminal infractions

Section 286.011(3)(a), Florida Statutes, imposes noncriminal penalties for violations of the Sunshine Law by providing that any public official violating the provisions of the Sunshine Law is guilty of a noncriminal infraction, punishable by a fine not exceeding $500. The state attorney may pursue actions on behalf of the state against public officials for violations of section 286.011, Florida Statutes, which result in a finding of guilt for a noncriminal infraction. Op. Att’y Gen. Fla. 91-38 (1991).

4. Attorney’s fees

Reasonable attorney’s fees will be assessed against a board or commission found to have violated section 286.011, Florida Statutes. Such fees may be assessed against the individual members of the board except in those cases where the board sought, and took, the advice of its attorney, such fees may not be assessed against the individual members of the board. Section 286.011(4), Florida Statutes.

Section 286.011(4) also authorizes an award of appellate fees if a person successfully appeals a trial court order denying access. School Board of Alachua County v. Rhea, 661 So. 2d 331 (Fla. 1st DCA 1995), review denied, 670 So. 2d 939 (Fla. 1996). However, this statute “does not supersede the appellate rules, nor does it authorize the trial court to make an initial award of appellate attorney’s fees.” Id., at 332. Thus, a person prevailing on appeal must file an appropriate motion in the appellate court in order to receive appellate attorney’s fees.

5. Civil actions for injunctive or declaratory relief

Section 286.011(2), Florida Statutes, states that the circuit courts have jurisdiction to issue injunctions upon application by any citizen of this state. The burden of prevailing in such actions has been significantly eased by the judiciary in sunshine cases. While normally irreparable injury must be proved by the plaintiff before an injunction may be issued, in Sunshine Law cases the mere showing that the law has been violated constitutes “irreparable public injury.” Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); Times Publishing Company v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985).

Although a court cannot issue a blanket order enjoining any violation of the Sunshine Law on a showing that it was violated in particular respects, a court may enjoin a future violation that bears some resemblance to the past violation. Port Everglades Authority v. International Longshoremen’s Association, Local 1922-1, 652 So. 2d 1169, 1173 (Fla. 4th DCA 1995). The future conduct must be “specified, with such reasonable definiteness and certainty that the defendant could readily know what it must refrain from doing without speculation and conjecture.” Id., quoting from Board of Public Instruction v. Doran, 224 So. 2d 693, 699 (Fla. 1969).

6. Validity of action taken in violation of the Sunshine Law and subsequent corrective action

Section 286.011, Florida Statutes, provides that no resolution, rule, regulation or formal action shall be considered binding except as taken or made at an open meeting.

Recognizing that the Sunshine Law should be construed so as to frustrate all evasive devices, the courts have held that action taken in violation of the law was void ab initio. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974), cert. denied, 307 So. 2d 448 (Fla. 1974); Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979) (resolutions made during meetings held in violation of section 286.011, Florida Statutes, had to be re-examined and re-discussed in open public meetings); and TSI Southeast, Inc. v. Royals, 588 So. 2d 309 (Fla. 1st DCA 1991) (contract for sale and purchase of real property voided because board failed to properly notice the meeting under section 286.011, Florida Statutes).

Where, however, a public board or commission does not merely perfunctorily ratify or ceremoniously accept at a later open meeting those decisions which were made at an earlier secret meeting but rather takes “independent final action in the sunshine,” the decision of the board or commission will not be disturbed. Tolar v. School Board of Liberty County, 398 So. 2d 427, 429 (Fla. 1981). Cf., Zorc v. City of Vero Beach, 722 So. 2d 891, 903 (Fla. 4th DCA 1998) (meeting did not cure the Sunshine defect because it was not a “full, open public hearing convened for the purpose of enabling the public to express its views and participate in the decision-making process”).

We think there is a better solution than criminal and or civil complaints.

As we cannot go back in time, people should contact the Office of the Attorney General to help mediate this situation to make sure it never happens again. That should be the initial goal. No one wants to see this same barring of people from a public meeting in the future.

1. Voluntary mediation program
Section 16.60, F.S., establishes an informal mediation program within the Office of the Attorney General as an alternative for resolution of open government disputes. For more information about the voluntary mediation program, please contact the Office of the Attorney
General at the following address: The Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050; telephone (850)245-0140; or you may visit the Office of the Attorney General website: www.myfloridalegal.com.

In addition, citizens should be shown, either via the City’s voluntary cooperation or through Public Records requests, the documents and handouts given at the meeting. If minutes were taken (as they should have been) those should be disclosed as well.

Most of all, the City should be put on notice that the first bite of the apple was free, but any subsequent meetings which illegally block the public from viewing, or participating in under the provisions of the Sunshine Law will face the full weight of criminal and civil penalties.



3 Responses to “Satellite Beach: A Clarification.”

  1. Truthful says:

    Those who were barred from the meeting have the option, the opportunity, to contact the Florida Attorney General’s Office to conduct a “voluntary” mediation program. One could say that it is now their responsibility to move this forward, in order to ensure no repetition of such bogus, private meetings occur in the future.

    A training session for Satellite Beach elected officials and the city manager to strictly, and in good faith, follow the Sunshine laws might be just what the doctor ordered.

  2. Watching says:

    And just how many opportunities are needed? Well, most Citizens of Satellite Beach are lost…Why? That should be the first conversation!! So let us start this now:) With standing do you know your millage rate increase? Do you know legal expenses of the City? Are the Labs certified for water quality testing? Just a few thoughts…more to come from watching…home rule charter anyone? A
    B. Meeting 2:00pm. Tickets…? Stay tuned more on the way

    • AAfterwit says:

      Watching,

      Thanks for the comment.

      Generally speaking, one cannot get anything done or garner any support when trying to address situations in a local government and using a “shotgun approach.” We have found that success is more likely when citizens raise one issue at a time, and not rant and rave about multiple issues. That one issue can have many instances to support the contention of the citizens, but it is still one issue. We have sat on boards where people have come up to speak and gone on a long harangue about multiple issues without giving specifics on any one issue. Even our eyes glazed over as the thought ran through our head of “what are you looking for?” Our advice is to stay focused on one thing at a time.

      As for the citizens of Satellite Beach being “lost,” whose fault is that? The meeting under discussion is a great example. On a subject that affects everyone in the City, according to the Florida Today, “about a dozen” people showed up. It can be said that the small number of citizens was due to the scheduling of the time of the meeting, but we still think the number of people was small. After all, only three people at the meeting weren’t being paid to be there while the rest of the citizens were out working. Even so, how many people show up at Council meetings? The number everywhere is surprisingly small so it is no wonder that governments can get away with what they do.

      You’d be surprised at the number of emails we get here at the worldwide headquarters of Raised on Hoecakes saying “you should write about this……” Ninety nine times out of a hundred, we would like to write about it, but we don’t have the manpower to do so. It has become too easy for people to say others should pick up the sword and charge into the fray while they go out to dinner. That’s not a complaint on our part. We knew that would happen going in.

      Our point is that if people want to live in blissful ignorance, that’s their decision.

      A friend of ours runs a citizens group and constantly reminds us that people don’t show up unless an issue directly affects them. We always agreed with that until the other day when a dozen or so people showed up for a meeting that affects 10,000 plus people in Satellite Beach and other areas.

      We are more than willing to help people get involved. If people don’t know how to make a public records request or what they can get in such a request (such as the amount of legal fees that you brought up) we can help. We have templates and step by step procedures that anyone can follow. We are happy to send them to anyone who wants them.

      We can help people get involved, but like the proverbial horse, we can’t make people get involved.

      Thanks again for the comment.

      A. Afterwit.

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