Ellis – Tobia Opinion Piece: We’re Missing Something. We Have To Be.

Brevard County Clerk of the Court Scott Ellis and Brevard County Commissioner John Tobia have an opinion piece in the Florida Today concerning a lawsuit filed by the Ellis in his capacity as Clerk of the Court.

We’re going to boil down the piece to the relevant portions:

Brevard Commission cannot hide behind closed doors to discuss tax cap lawsuit.

The Brevard County Board of County Commissioners voted 4-1 on Jan. 7 to discuss, behind closed doors, a lawsuit filed by the Clerk of the Court against the Board.


Rather than discussing this issue in the sunshine with the Clerk’s Office, the Board has voted to have a closed-door meeting to discuss strategies to fight this lawsuit. (emphasis ours)

The State of Florida has strong laws concerning public meetings and records as it should. Citizens have the right to know what is happening within their governments and for the most part those meetings and discussion should be held in the open.

However, there is an exception to open meetings and that exception is a board meeting to discuss strategy when lawsuit has been filed.

Florida Statute 286.011

(8) Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity’s attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, provided that the following conditions are met:

By Ellis and Tobia’s own admission and statement, the County Board of Commissioners is facing a lawsuit. Therefore the Commission has the statutory right to meet in a closed session to discuss the lawsuit. Nothing in the opinion piece offers any legal reason that would prevent the County Commission from responding to a lawsuit by meeting in a closed session to discuss the lawsuit.

That means the title of “Brevard Commission cannot hide behind closed doors to discuss tax cap lawsuit” is lacking any foundation.

(To be fair, it is our understanding that the Editors of the Florida Today will sometimes write the headline, and not the author of the piece itself. If Ellis and Tobia wrote the headline, they are way out in left field in saying the Commission cannot meet in a closed session. If it is the Florida Today that provided the headline, the Editors should be held accountable for something that is not said in the piece.)

Ellis and Tobia state:

Taxpayers will be spending money for both parties in court, but will not know of the Board discussions pertaining to the case.

That’s not true. The Florida statute quoted above states:

(c) The entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter’s notes shall be fully transcribed and filed with the entity’s clerk within a reasonable time after the meeting.

(d) The entity shall give reasonable public notice of the time and date of the attorney-client session and the names of persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney-client session and the names of the persons attending. At the conclusion of the attorney-client session, the meeting shall be reopened, and the person chairing the meeting shall announce the termination of the session.

(e) The transcript shall be made part of the public record upon conclusion of the litigation.

In other words, once the court case is decided, the transcript of the closed session will be made public. People will know what was said, who was taking what position, etc,. The public will know the date and time of the meeting as well as who will be in attendance.

The law on a closed door meeting by the County Commission to discuss strategy pertaining to a lawsuit is clear – such a meeting is legal. We have no idea why Tobia and Ellis are trying to portray it as something other than legal and allowed under the law.

The odd thing is that on the substance of the lawsuit – the actions of the County Commission voting to raise tax rates as part of an “emergency situation” within the Brevard County Sheriff’s Office – we agree with Tobia and Ellis. The vote was wrong, improper and we look forward to seeing a ruling from the Courts on the issue.

2 Responses to “Ellis – Tobia Opinion Piece: We’re Missing Something. We Have To Be.”

  1. Cheryl L. says:

    What’s missing is the point that Lober’s wife works as an attorney for Ellis in the Clerk’s office and she is involved in this case. We know Lober is no stranger to conflicts of interests lately. If it is necessary for the Commission to have closed door meetings for strategy purposes, then it is also necessary that Lober recuse himself from this process since there is clearly a conflict with his wife working on the opposing party. It is not close to reasonable or ethical to believe for one second that conversations would not be happening between him and his wife at home in regards to this case. He’s given us no reason to believe otherwise and being that he is currently under review by the bar for misconduct is even more evidence to this position.

    • Percy says:

      Having spent a large part of my adult life working on government contracts for aerospace firms I have had to attend more than my fair share of ethics training classes. I can say unequivocally that the most common theme they teach is to avoid any “perception” of impropriety. I fail to understand why so many elected officials seem to do things that just don’t look/sound ethical. It seems to me the two most likely reasons are 1. The state ethics department won’t look into it until an official complaint is lodged with the state. 2. In most cases there is no way to prove/disprove an actual violation occurred unless one of the involved parties confesses to wrongdoings.

      One solution would be for local governments to create an ethics committee made up of resident voters and the city/county attorney that would be able to look into these matters and advise a city/county commission. This process could be a little less formal than the state ethics review process and only if the committees advise not followed would it be necessary to file a state ethics complaint. It would also allow residents to more easily voice their concern and discuss openly why it may or may not be a violation of Florida’s ethics laws.

  2. […] legal closed session to discuss strategy with their legal team. Ellis and Tobia had criticized the closed sessions, but the law allows for them and the verbatim transcripts of the closed sessions would have to be […]