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Satellite Beach: “Screwed Up” Doesn’t Cover It.

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.)

Yesterday we wrote a brief post talking about a meeting Satellite Beach hosted concerning the health issues in the area. The meeting was attended by City Manager Courtney Barker, Representative Thad Altman, School Board member Tina Descovich, officials from Patrick Air Force Base, other elected officials, county employees, and a representative from Erin Brocovich’s group, Bob Bowcock.

Also in attendance were three members of the City Council – Mayor Frank Catino, and Council members Mark Brimer and Mindy Gibson.

What has people upset was that the public at large was excluded from the meeting.

At Monday’s meeting, Satellite Beach Mayor Frank Catino denied access to about a dozen concerned citizens at the council chambers door. Catino told them it was a private meeting, because fewer elected city officials were there at any given time than would trigger Florida’s open meetings law.

He and council members Mindy Gibson and Mark Brimer rotated in and out of the council chambers to avoid breaking state open meetings law, which requires public notice and public access if two or more elected city officials are present. City Manager Courtney Barker said the city kept invites limited to keep the meeting professional and focused. “There is a level of professionalism that’s being lost,” Barker said.

As we said yesterday, we agree that there is a level of professionalism being lost and that lack of professionalism starts with the City Staff and elected officials not following the law of the land when it comes to the Sunshine Law and open meetings.

The first question is “was this a public meeting?”

The answer is “yes.”

The meeting was initially called as a “workshop” and would be informational in nature. The original workshop was public and notice was given to the public as per the law.

On the day of the meeting, the City abruptly cancelled the public workshop and said it was a “private meeting,” and claimed the meeting was not subject to the Sunshine Laws.

We’ll get into that assertion in a moment, but there is no doubt that the meeting was discussing an issue of public interest, as well as the fact that members of the press and one citizen was allowed into the meeting. The meeting did not meet any statutory exemption that would preclude the meeting being subject to the Sunshine Laws. By all meaningful definitions, the meeting was a “public meeting” and subject to Sunshine Laws.

At a City Council meeting on September 19, 2018, Mayor Catino defended the closing of the meeting including not allowing video and audio recordings.

EDITOR’S NOTE: We’d love to put the video here for you to see, but alas the City has disabled embedding of videos within other websites. Please go to YouTube and watch the video starting at 23:24 for Catino’s comments. Another warm fuzzy feeling of “transparency” from the City as former City Managers (including Acting City Managers) Mike Crotty, Ann Samuelson and Jeff Pearson allowed embedding of the videos. When we started to embed them, the City suddenly put the kibosh on that.)

Catino first addressed not allowing recording of the meeting. He stated that contrary to what witnesses heard him say, recording was allowed, but that they “didn’t want all the cameras and the press there and wanted to keep things professional.”

As we said, the fact that the press was allowed into the meeting means the meeting was a public one. Furthermore, according to the law, the City cannot restrict recording of meetings based on the idea that they don’t want all the cameras and were trying to keep things “professional.”

The only way a government entity can restrict the filming of public meetings is when the filming becomes invasive and disruptive:

A public board may not prohibit a citizen from videotaping a public meeting through the use of nondisruptive video recording devices.

While there are occasions when the press may be given greater access to events (such as a crime scene) there is no doubt that the press and reporters are still citizens. As long as they do not actively disrupt the meeting, they can film. As the reporter from Florida Today was in the room, the City and Mayor Catino had no legal right to restrict filming and recording of any kind. It is difficult to imagine a scenario where public officials who make statements to the press in front of cameras all the time would find a camera from the professional media in the room to be “disruptive.” That assertion makes no sense. Even so, the plain fact of the matter is that the camera was barred before any contention that the camera was being disruptive at all.

(If you think that the City and its actors could claim that you couldn’t record them in a private meeting, you’d be wrong. Even though Florida is a two person consent state for recording of people (unless there is no expectation of privacy,) last year a Florida Appeals Court ruled that even in private meetings, a government official does not have an expectation of privacy and therefore can be recorded without notice or consent. There is no law that could prevent the City from anyone in the meeting – whether the meeting was public or private as the City wrongfully asserts – from recording both video and sound.)

Of course, all this depends on whether the meeting was a “public meeting” under the Sunshine Statutes.

Catino tried to make the case that as long as there are not two members of the City Council in the room the meeting is not subject to the Sunshine Laws.

That reasoning fails in that there were three members of the City Council who attended the meeting (singular.) Catino, Brimer, and Gibson all attended the same meeting, saw the same documents, etc. That’s one meeting, one subject and three Council members in attendance.

Even if you want to accept the City’s line of reasoning of multiple meetings (which is the only way the City can claim three members of the City Council were not at the meeting,) Catino is still wrong. Catino claimed that the three members of the Council came in separately and were never in the room at the same time. In essence, Catino claimed that there were three meetings – one with each member of the City Council that were held one after the other.

In Florida, those types of “rapid fire” meetings are subject to the Sunshine law:

For example, in Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979), the court held that a series of scheduled successive meetings between the school superintendent and individual members of the school board were subject to the Sunshine Law. While normally meetings between the school superintendent and an individual school board member would not be subject to section 286.011, Florida Statutes, these meetings were held in “rapid-fire succession” in order to avoid a public airing of a controversial redistricting problem. They amounted to a de facto meeting of the school board in violation of section 286.011, Florida Statutes.

Whether one believes that the gathering was one meeting with three members of the City Council present or three meetings with only one member of the City Council present, the law is clear: the meeting was subject to the Sunshine Laws.

Furthermore, it should be noted that Catino stated the City was very careful to not be subject to the Sunshine laws. That too is an issue:

As stated by the Supreme Court, the Sunshine Law is to be construed “so as to frustrate all evasive devices.” Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974).

The City actively and deliberately tried to get around the Sunshine laws. There is no other way of looking at this.

Unfortunately, the Satellite Beach City Police are caught up in this mess in several ways as well.

First, citizens were told they could not stay in the foyer of City Hall which is a public area. Courts throughout the land have held that the police cannot block access to public areas. The officers telling people they had to leave the foyer without any one being disruptive or breaking the law is contrary to established legal precedent.

Secondly, the police were asking for ID’s of attendees.

The problem there is that Florida is not a state where a person has to ID themselves on demand. There must be a reason, such as the imminent commission of a crime or that a crime has been committed. Last time we checked, standing in a public area is not a crime. It should also be noted that asking for ID’s to get into a public meeting is contrary to the Sunshine laws:

A city may not require persons wishing to attend public meetings to provide identification as a condition of attendance. Op. Att’y Gen. Fla. 05-13 (2005). This is not to say that an agency may not impose certain security measures on members of the public entering a public building, such as requiring the public to go through metal detectors.

The question then is “why would the City of Satellite Beach illegally prevent citizens from attending what is clearly a public meeting?”

Here’s why:

City Manager Courtney Barker said during the meeting that the city kept invites limited to keep the meeting professional and focused. “There is a level of professionalism that’s being lost,” Barker said Monday.

On Wednesday, Barker defended closing the meeting, noting that some of the same individuals turned away Monday had been posting to social media video clips from a recent community meeting about the cancer concerns, and posting negative comments to make it appear the city is not taking the cancer concerns seriously. That notion led Barker to reply to Brockovich’s Facebook post that was critical of local government’s response.

“We’re just trying to keep it professional,” Barker said. “It’s just not professional anymore.” (emphasis ours)

To us, that means that the meeting was closed because City officials didn’t like being criticized.

We have seen the Facebook page in question and we agree that some of the comments are over the top. However, people have the right to be over the top in their comments. They have the right to express their opinions.

Think about this for a moment. If the City felt they were being unjustly criticized, the solution is to be more open and more transparent- not less. The City should welcome the light of facts being shed on the negative comments. Instead, their actions were to close a public meeting to the public, and not allow the public to hear facts and the plans going forward.

In short, the City wants to control the narrative and will not allow dissension or different presentations of “facts” from anyone.

That’s really what happened here. Also notice that Barker’s claim of “professionalism” is different from that of Catino’s in that he claimed the meeting was closed so there was “professionalism” at the meeting while Barker’s claim is that the meeting was closed due to lack of professionalism in comments by citizens outside of any meeting.

Somehow we don’t think that City officials who cannot keep their stories straight and who violate the law are “professional.”

The final question to be answered is “what can be done now?”

Sadly, we don’t think much can be done.

The law requires that the City knowingly violated the Sunshine laws:

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).

We don’t think that the City knew they were breaking the law in this case. We would hope they did, but it is been our experience that the City seldom gets good legal advice on issues like this. We simply believe that the City acted in a stupid, irresponsible, un-professional manner because they were thin-skinned and angry that citizens had the gall to criticize them. Like five year olds, they thought it was perfectly acceptable to “take their informational ball” and go home, hiding it from the citizens.

That’s pathetic, wrong and a screw up of monumental proportions, but it is not criminal.

However, the City should be on notice now that their actions were wrong and contrary to the laws of the State of Florida. If not us saying it, someone should stand up and tell them.

The next time they pull something like this, they can face criminal penalties and rightfully should.

If you don’t like being criticized, government service is not for you. If you are so thin-skinned that you cannot take negative comments, government service is not for you.

If you have to break the law in order to punish concerned citizens and violate their rights, then resign and get out.



6 Responses to “Satellite Beach: “Screwed Up” Doesn’t Cover It.”

  1. Stella says:

    This situation was unfortunate and only added to the communities lack of trust towards the city. Many residents in the community and surrounding communities have a strong desire to participate in helping find answers to the health and environmental issues that plague the area. In our humble opinion this was a lost opportunity to bring people together and find solutions.

    • AAfterwit says:

      Stella,

      Thank you for the comment.

      The City of Satellite Beach was wrong in this case – morally and legally wrong. We cannot and will not defend their actions on any level.

      However, as we said, we have seen some comments from the community that are over the top. That’s not helping thing either.

      It appears that part of the problem is Patrick Air Force Base which means that we are looking at something that may go back to the establishment of what is now PAFB in 1940.

      If PAFB is a big contributor to whatever is going on, it seems ridiculous to demand action right now for a problem that has been building for almost eight decades.

      What we are seeing from some is a demand to do something, rather than demanding to do the right things.

      This whole thing is going to take time to resolve but there is now momentum which continues to build. That’s a very good thing.

      Furthermore, while we agree that residents want to help, how many residents have any expertise in this type of situation?

      Our hope and prayers are that experts come in (they have been hired) and continue to work to identify and then work on a plan to resolve whatever is going on.

      It’s not going to happen overnight which makes transparency from the City, the County, and even the State more paramount. People want to know what has happened so far, what is happening now and what is going to happen.

      Shutting down meetings and communication with the public is not a way to placate the public and keep them informed. It is the exact opposite.

      Thanks again for the comment.

      A. Afterwit.

  2. Ashley Matteson says:

    If they didn’t know what they were doing, why did they deliberately cycle in the city council members? They were intentionally trying to circumvent what they were lawfully supposed to do.

    • AAfterwit says:

      Ashley Matteson,

      Thank you for your comment.

      We are not saying that the City did not try and circumvent the Sunshine Laws. They admit that was the purpose of “cycling” the Council members in and out.

      The issue as far as legal consequences is whether the City knew what they were doing was illegal.

      We agree it doesn’t make sense, but it appears to us that they City thought the “workaround” was legal which is part of the reason they went with it.

      This is one of those laws where “ignorance of the law” is an excuse. The City can claim “we didn’t know the “cycling” was illegal and we were trying not to break the Sunshine Laws” and get away with it.

      To us, assuming that the City is not lying on whether they believed their actions were legal or not, the issue is “how could they not know it was illegal?

      As we discuss in another post, part of what we believe each Council member is giving every year as part of training and education of the Sunshine Laws is a manual which has case law showing what they did has been declared illegal by the courts. To us, that means that either the training is incomplete, or the Council members, the City Clerk and the City Manager (and perhaps the City Attorney if he advised on this) never read the manual.

      The Citizens have to move forward because they can’t go back in time and recapture that meeting. They have to make records requests for the documents presented at the meeting as well as any notes, recordings, minutes, etc. They are all public records and citizens can get them if they want.

      If you aren’t sure how to make public records requests, we can guide you through the process. It is rather easy and doesn’t take much time. Just drop us a line and we’ll send you the things you need.

      Also going forward, Satellite Beach needs to be put on notice that their actions were in fact illegal. If they try and pull the same lame stunt again, they will be subject to criminal and civil penalties.

      Getting the information and not allowing the City to do the same thing in the future is, in our opinion, the best course of action.

      Thanks again for the comment.

      A. Afterwit.

  3. Barney Fife says:

    You hicks need to recall that Mayor and fire the City Manager.

    • AAfterwit says:

      Barney Fife,

      Once again, thank you for the comment.

      Once again, there is no need for name calling. It just takes away from the point you are trying to make and makes you look bad.

      The “hicks” are apparently more aware of the laws than you may be.

      The City Charter of Satellite Beach does not allow for the “recall” of any member of the City Council (which applies to the Mayor.)

      Here are the circumstances under which a Council member can be removed from office:

      Sec. 2.09. – Grounds for removal.

      The office of a councilmember shall be forfeited whenever at least four of the five councilmembers determine that a member:

      (1) Ceases to be a registered voter residing in the city;
      (2) Is convicted of a misdemeanor involving moral turpitude or any felony;
      (3) Commits an act constituting malfeasance, misfeasance, or neglect of duty;
      (4) Is permanently unable to perform official duties; or
      (5) Is absent from four consecutive regular city council meetings or from one-third of the regular city council meetings during any 12-month period for any reason.

      The idea that 4 out of 5 Council members are going to vote to remove the Mayor without a legal conviction of any sort just isn’t going to happen. (It certainly isn’t going to happen when to other Council members were involved in the same shenanigans.)

      As for the City Manager, the people don’t hire the City Manager and don’t have the power to fire them.

      Hope this clears things up for you.

      A. Afterwit.

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