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“Nobody’s Right If Everybody’s Wrong.”

It’s time we stop
Hey, what’s that sound?
Everybody look – what’s going down?

For What Its Worth
– Buffalo Springfield

Another day, and more examples of ignorance and hypocrisy from elected officials.

The stage is set for a showdown between Florida’s Board of Education and 11 county boards, including Brevard County’s, over unsanctioned mask mandates in classrooms around the state.

The Brevard County School Board [and] the 10 others face potential punishment when the Florida Board of Education meets Thursday to consider sanctions against the rebel boards who have defied Gov. Ron DeSantis’ summertime executive order against school mask mandates. The boards went their own way as COVID-19 cases soared in classrooms at the start of the school year. And as the cases soared, so too did tensions between board members and opponents of mask requirements.

Education Commissioner Richard Corcoran has called on the state board to withhold a month’s worth of pay from board members and withhold an amount equaling any federal grants meant to make up the difference. The action would thwart Biden Administration attempts to replace the withheld school board salaries using COVID-19 relief funds.

Brevard had a chance to come into line with the demands by Tallahassee at its Tuesday board meeting but refused to give into political pressure.

The Brevard County School Board voted 3-2 against allowing parents to opt out of its mask mandate, which remains in place until Oct. 29. Chair Misty Belford, member Jennifer Jenkins and member Cheryl McDougall voted against a push from board vice chair Matt Susin and member Katye Campbell to add an opt out. The board also voted down the same lines to allow the superintendent to add an opt out for parents if weekly county cases dropped below 50 per 100,000 people, but still require masks for employees.

We don’t want to get too deep into whether masks should or should not be worn. We have stated that if you are going to mandate masks for employees, you have provide masks to wear (which the Board does not do for all employees, allowing “face coverings” which are not effective.) You also have to make those safety regulations meaningful. For example, there are many jobs where a hard hat is required, but no one would argue that a “Bob the Builder” “hard hat” should be allowed on a real job site and that it provides the same protection as an OSHA approved helmet.

Yet that is what the Brevard School Board is doing.

They are mandating face coverings that are not as effective as masks and then fighting any push back from parents and students.

In addition, on Tuesday, School Board member Jennifer Jenkins said that cases were dropping, so what they “were doing must be working.”

Maybe not.

( (via press release from DeSantis’ press secretary, Christina Pushaw)):

NEW PEDIATRIC CASES:

New COVID-19 cases for children ages 5-17 – the vast majority of the school-aged population – have decreased 79% in the month of September, in the 54 Florida counties where school districts have no masking policy or are following state law by honoring the parental opt-out rule.

For comparison, COVID-19 cases for children 5-17 in the 13 districts that imposed forced-masking in schools have decreased 77%, on average.

POSITIVITY RATES:

The 54 districts with opt-outs or no mask policy have seen an average decrease of 65% in positivity from week ending Aug. 19 (when school started) to the week ending Sep. 30.

The 13 districts that broke the law to impose forced-masking have seen an average decrease of 67%.

That is to say, the data for this school year to date shows no impact of forced masking in schools on pediatric COVID-19 prevalence. This is not surprising, since there were no statistically significant differences in case rates in forced-masking versus mask-optional schools during the 2020-21 school year in Florida.

The data simply is not supporting that face covering is a driving force in lower infection rates at schools amongst children or anyone for that matter.

However, once again, we want to focus on School Board Chairperson Misty Belford’s fundamental misunderstanding of laws governing speech and public meetings.

For several meetings, Belford has opened with a statement about required decorum for the public during meetings, and said if the audience becomes too disruptive, they would be asked to leave, and the meeting would continue.

This is what Belford read on Tuesday:

To facilitate a cooperative environment for all, please be aware of the following:

Per our emergency policy, masks are currently required at all times while indoors on school district property, unless a verified medical exemption has been provided or you are socially distanced at six feet or more.

The appropriate place for public participation in the meeting is during your individual public comment opportunity as identified in the agenda. Outside of your individual public comment opportunity, your roll in the meeting is as an observer. I will ask persons deemed to be knowingly or intentionally disrupting this meeting of the School Board of Brevard County who are not complying with policy to stop or leave.

If persons receiving the warning choose not to follow my instructions, I will instruct Brevard County Sheriff Deputies to take any law enforcement action they deem appropriate, and you may be escorted, detained or arrested depending on the conduct.

Persons who refuse to depart after a warning may also be committing the crime of trespassing, in accordance with Florida Statute section 810.08. These statutes apply to conduct on all School Board property which includes this board room as well as the outside of this building to the sidewalk.
If you continue to cause a disruption, you are advised that you are in violation of Florida State statute 877.13 or if you fail to leave the premises after being warned by the Sheriff’s Office, you are committing trespass, and the Board has authorized the Sheriff’s Office to enforce these rules.

In the event that multiple individuals fail to adhere to these expectations, and Board business cannot continue due to disruption, I will call a recess and request that law enforcement officers present clear the room of attendees.

When the room is cleared, the Board will return and resume their meeting with no public present. Those who have signed up to speak will be seated under the front entry area and be called in when it is your time to speak.

There are several problems with Belford’s statement.

First, Belford had previously stated:

Please listen carefully to the rules of decorum as they will be heavily enforced this evening. Always remember that reasonable decorum is expected at all times. Your statement should be directed at the board chairman. As chairman, I may interrupt, warn or terminate a participant’s statement when time is up if it is personally directed, abusive, obscene or irrelevant.

Should an individual not observe proper etiquette, I may request the individual leave the meeting. Let’s all encourage an environment that is appropriate for our children who may be present or watching from home.

Belford makes the mistake that “proper decorum” is what she thinks it is, despite First Amendment concerns to the contrary. Somehow she feels that the “Board rules” trump the Federal and Florida Constitution. Like it or not, people can make statements that are personally directed, and “abusive” (whatever that may mean.) Short of making “true threats,” uttering or displaying obscene material (which must have a sexual component, and not just a curse word) and or inciting the crowd to imminent illegal violence or actions, people can say what they want in a public meeting (as long as it stays on topic, of course.)

Belford makes a second error when she says that she will have the room cleared – which she did on Tuesday.

We agree that the School Board can remove or cause to be removed those individuals who are disrupting a meeting. We can’t state that enough. We agree with that. However, by her own statements and the very statutes she cites, people that are told to leave must actually be doing something that disrupts the meeting. A person sitting on their hands and watching the proceedings has done nothing wrong and has every right to be on public property as the Board members.

Belford thinks her authority as a Board Chair exceeds that of the law and as we said, the Federal and State Constitution.

After the Belford had ordered a recess and cleared the room on Tuesday (without issuing any warnings to specific individuals or asking them to be removed,) Belford reconvened the meeting, not allowing the public into the room.

That’s a problem.

Belford said the state does not prevent the board from establishing rules for decorum, and the public was still allowed to access the meeting via audio outside the building and online livestreams.

“I think that you would be hard pressed to claim that there was a sunshine violation,” Belford said.

We are not hard pressed at all.

Exclusion of certain members of the public:

The term “open to the public” as used in the Sunshine Law means open to all persons who choose to attend. AGO 99-53. Cf. Ribaya v. Board of Trustees of City Pension Fund for Firefighters and Police Officers in City of Tampa, 162 So. 3d 348, 356 (Fla. 2d DCA 2015) (although there appears to be no case law “squarely resolving” whether a wrongful exclusion of one person would void all actions taken at the meeting, “there is legal support for that proposition”).

Section 286.011, F.S., requires that meetings of public boards or commissions be “open to the public at all times . . . .” See Neu v. Miami Herald Publishing Company, 462 So. 2d 821, 823 (Fla. 1985), disapproving a procedure permitting representatives of the media to attend a city council meeting provided that they agreed to “respect the confidentiality” of certain matters: “Under the Sunshine Law, a meeting is either fully open or fully closed; there are no intermediate categories.” (emphasis ours)

Source: “Government In the Sunshine Manual,” published by the Florida State Attorney General.

The School Board is a public body holding a meeting that by statute, is a public meeting. The Brevard County School Board cannot lock out all people of that meeting.

State Representative Randy Fine, who has been throwing shots and receiving shots from the School Board weighed in as well:

But Fine and others have said Belford’s actions violated Florida Sunshine Law, which require most government business to be conducted in meetings open to the public. The Brevard chapter of Moms for Liberty, a conservative group with a heavy presence at School Board meetings, condemned the removal of the public and posted a template for people present at the meeting to file criminal complaints against the board to State Attorney Phil Archer.

Fine filed a criminal complaint of his own. In a letter to Archer, he wrote that the removal of the public violated the section of Sunshine Law requiring meetings to remain open to the public “at all times.” He said in an interview with FLORIDA TODAY that the standard for removing members of the public is high, and removing even peaceful onlookers certainly violates Sunshine Law.

“I would say, a dozen times (I’ve seen people removed from meetings),” Fine said.” I don’t know, it’s not, it’s not common, but it’s not unheard of. Someone’s screaming and yelling and making it impossible for the meeting to continue gets removed from the room. But I’ve never seen an entire audience removed. The reason I’ve never seen it is it’s illegal.”

In his complaint to Archer, Fine asked that only Belford be punished for the removal of the public.

We aren’t sure why only Belford should be “punished,” (whatever that means.)

All five members of the School Board got up and walked out of that meeting. All five allowed the meeting to proceed without the public in the room. All five took an oath to follow the laws and the Constitutions and if they don’t – if they are silent when those laws and rights are being violated – they need to be held accountable as well.

We do think that it is hypocritical of Fine to say that the Board can’t block the public while he does the same on his social media page where he dispenses information as part of his position as a state representative. If you criticize Fine, he will ban and block you which is odd for someone who says they want public participation from other elected officials in other forums.

Fine has said that there is no law or court case in Florida that says he cannot block people from his official account, and he is right. However, the First Court of Appeals, the Second District Court of Appeals, the Fifth District Court of Appeals, the Eighth District Court of Appeals, the Ninth District Court of appeals and the Tenth District Court of Appeals have all said the a public official dispensing official information from a social media account cannot block users from seeing that information.

Florida has not had such a case and the Eleventh Circuit covering Florida has not had to rule on such a case. However, several of the other district cases have sought to be reviewed by the US Supreme Court and have not been granted cert. This appears to be because there is no disagreement amongst the lower courts, and the Supreme Court is not seeing a violation of the Constitution or any law in saying “public officials must be accessible to the public.”

It is just ridiculous that the School Board is happy breaking the laws of the land, and Fine (and others) are not interested in resolving this mess, but want to make political hay.

We think this is one of those instances where there is no silver bullet. There is no black and white. There is no “they are wrong so we must be right.”

This is a case where Fine is being hypocritical in his stance on transparency when it comes to public records and meetings, and the School Board is wrong in their belief that their “rules and policies” trump laws and Constitutions.

Bottom line is that the public is not served, much less well served, when public officials think they are above the law.



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