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Sunshine Law and Ethics Presentation - 5.4.21 (01489093xBA9D6)Sunshine Law, Public Records and Ethics for Atlantic Beach Board and Committee Members Brenna M. Durden, City Attorney May 4, 2021 1 a) A Board member gives a speech about issues? The City Manager discusses Board business with a Board member? Two or more Board members have a phone call to discuss matters that may come before Board? Two or more Board members attend a FLC meeting in Tallahassee? A “meeting” for purposes of the Sunshine Law happens when: 2 a) All board meetings must be open to the public b) Reasonable notice of a meeting must be given c) Minutes of meeting must be taken and promptly recorded The Three Basic Requirements of the Sunshine Law 3 A “meeting” for Sunshine Law purposes can occur a) Via email? Via text message? In the ladies room/men’s room? Through whispers at noticed board meeting? All of the above? 4 Board Member A asking the Planning Director about his conversation with Board Member B on an upcoming agenda item? Committee Member A asking the City Attorney what Board Member B thinks about an upcoming purchase of police vehicles? Committee Member A asking a City Commissioner how Committee Member B feels about the tree ordinance? Would a Sunshine Law problem be caused by: 5 True False Under some circumstances a meeting of a city staff (no Committee or Board Members present) can be subject to the Sunshine Law. 6 True False Under some circumstances a meeting of one Board Member could be subject to Sunshine Law requirements. 7 Send an email to another Board Member (on the same Board as me) and ask them to respond or react to the information sent? Send an informational email to a fellow Committee Member specifically asking recipient not to respond? Forward an email to a fellow Board Member that says unless you forward this email to at least 10 people in the next 24 hours you will be swarmed by locusts? Do I have a Sunshine Law issue when I: 8 Councilman Bowen calls City Attorney – asks him to determine whether other Council members are interested in terminating City Manager. Bowen also speaks to Mayor. City Attorney calls two Council members – they won’t talk about it with him outside of public meeting. City Attorney calls Councilman Bowen back to report no support for firing, but also calls City Manager to “suggest” he resign with severance package. Transparency for Florida vs. City of Port St. Lucie 240 So. 3d 780 (Fla. 4th DCA 2018) Super Bowl Sunday - 2013 9 In anticipation of reaching agreement, 3 notices are prepared for a 9:00 a.m. meeting of Council scheduled for , Thursday February 7: Hand written notice posted in City Hall on February 6 (21 hours before meeting) – “Special Meeting for Removal of City Manager” Revised posted notice on February 6 (an hour later) – “Discussion of Separation Agreement with City Manager” or “Cancellation of City Manager’s Employment Agreement” Third posted notice – only lists “Discussion of Separation Agreement” Transparency for Florida vs. City of Port St. Lucie 10 Two Council Members tell City Attorney they don’t want any discussion or debate on agreement – no line by line description of terms of and reasons for agreement Transparency for Florida vs. City of Port St. Lucie 11 February 7 - meeting starts at 9:00 a.m. Meeting immediately recesses so City Attorney can work out more changes to agreement One hour later, meeting reconvenes Separation agreement is approved unanimously with little discussion. No copies are provided to the public Transparency for Florida vs. City of Port St. Lucie 12 At what points did meeting(s) occur here? Were matters likely to come before City Council discussed? Were meeting(s) noticed beforehand? Was notice given for February 7 meeting adequate? Are there any public records act issues raised here? Transparency for Florida vs. City of Port St. Lucie Discussion 13 Law must be construed “so as to frustrate all evasive devices” This can be accomplished by embracing the collective inquiry and discussion stages within the terms of the statute Sunshine Law violation cannot be “cured” by a perfunctory ratification of action taken outside of the sunshine Transparency for Florida vs. City of Port St. Lucie 14 Knowing Violation Second Degree Misdemeanor $500 fine and/or 60 days in County Jail All Other violations (unknowing violations) $500 non-criminal fine Attorney fees for Complaining Party Penalties for Violating Sunshine Law 15 “Public Record” §119.011(12) “Public records” means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. Florida courts have interpreted the above to include all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge. 16 What is a “Public Record” under Chapter 119, Florida Statutes? Any vinyl, non-digital recording by the Beatles? All photographs on a Board Member’s cell phone? Any document or other item, regardless of physical form, that is received in connection with transaction of official business by you or the City? Social media (text, instagram, blogs, twitter)? 17 Public Records Law Chapter 119, Florida Statutes (1) It is the policy of this state that all state, county and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency. 18 What must be done with a public record when received? Delete it immediately? Run it through a shredder? Send it to the Library of Congress? Make sure it is retained and is available for viewing by the public upon request? 19 Retention Requirements All public records must be retained in accordance with a retention schedule adopted by the agency, which must be consistent with the schedules established by the Division of Library and Information Services. 20 Electronic Communications Records Retention case: SDE Media v. City of Doral and Daniel Esposito, City Attorney, 25 F.L.W.Supp 243a (Fla. 11th Cir. Ct. May 5, 2017) (online at myfloridalegal.com). City violated public records law “by failing to maintain electronic communications [which were located on city officials’ private cellphones] in a manner that prevents their accidental destruction or deletion by individual city officials.” The Court ordered the defendants to require all City Officials or employees who use electronic devices to communicate regarding matters of official business to conduct those communications only on devices that record those communications onto servers directly accessible by the City’s Public Records Custodian. 21 21 Violations of Public Records Law Knowing Violation First Degree misdemeanor Up to one year in jail Up to $1,000 fine Other Violation (non-knowing) Up to $500 non-criminal fine Payment of Attorneys’ Fees 22 22 Ethics According to Article III, Section 8, Florida Constitution, service in Public Office is which of the following: A good thing on your resume? A chance to make some real money? A public trust? Easy work if you can get it? 23 Ethics for Public Officers Art. III, Sec. 8, Fla. Constitution “A public office is a public trust. The people have the right to secure and sustain that trust against abuse.” 24 Sec. 112.311(1), Fla. Stat. (1) It is essential to proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts may exist. 25 Conduct Covered in Part III of Chapter 112, Fla. Stat. Solicitation or acceptance of gifts Unauthorized compensation Misuse of public position Disclosure or use of certain information Doing business with one’s own agency Conflicting employment or contractual relationship Voting conflicts (Form 8B) Nepotism Financial disclosure (Form 1) 26 Ethics – Section 112.313(2), F.S. Gifts Regarding asking for or receiving items of value from a third party, which statements are true? A Board or Committee Member: Is entitled to get as much as they can while in office? May not accept anything of value if given for purpose of influencing judgment or vote? Can take gifts intended to influence vote as long as Board of Committee Member doesn’t ask for it? May not ask for anything of value if purpose is to influence judgment or vote? 27 Ethics – Section 112.313(2), F.S. Regarding acceptance of compensation or items of value offered by a third party, which statements are true? A Board or Committee Member: Can take it as long as it goes through Board or Committee Member’s spouse? Can take it as long as nobody finds out about it? Cannot take it if Board or Committee Member knows or should have known it is given to influence his/her vote or other action related to office? 28 28 Gifts – Section 112.3148, F.S. Which of the following “gifts” may be accepted if properly reported? A gift I requested from a vendor or lobbyist at my agency? A Cadillac Escalade? A gift worth more than $100.00 from a vendor or lobbyist at my agency that I didn’t ask for? None of the above? 29 29 Section 112.313, F.S. Scenario I My business sells/rents uniforms and I want the City as a customer. I can or cannot do which of the following: Make a deal directly with the agency’s City Manager Contract to sell goods or services to the City Sell goods or services to the City through a sealed competitive bid process provided I have no hand in developing bid specs Disclosure – Form 3A 30 30 Section 112.3148, F.S. Scenario II Being a Board or Committee Member allows me to: Get out of traffic tickets Get free use of the Adele Grage Center Intimidate staff members Avoid paying tolls on state toll roads None of the above 31 31 Scenario III My husband Walter just loves to play golf-he’d rather play golf than eat. As good fortune would have it, George - the owner of land in the City - has invited him on an all-expenses-paid weekend of golf at Arnold Palmer’s Bay Hill Club in Orlando. He even gave him a brand new set of irons to play with and let him keep them! The timing is kind of crazy because George wants to rezone his land where I serve as CDB Chair. George even called me to say “don’t forget who is taking care of your old man’s golfing needs.” It’s okay for my Walter to have a little fun with George paying the tab-isn’t it? 32 Scenario – a variation on the previous scenario regarding Walter Assume the prior set of facts, but change it to say that instead of George “offering” to give the trip and the golf clubs to Walter, the board chair “asks” George to provide the trip and the golf clubs to Walter. Would that be a problem? 33 Scenario IV My son-in-law is the sole owner of a cleaning service business. He made a proposal to do the cleaning service for the community centers in the City, for the City where I serve as a CARAC committee member. The staff has negotiated a contract with his firm, which is coming up for a vote on our agenda next week. I had nothing to do with any of the selection or contracting process. When this comes up for a vote, what should I do? Disclosure – Form 4A 34 Thank You Brenna M. Durden, City Attorney Lewis, Longman & Walker, P.A. bdurden@llw-law.com bdurden@coab.us (904) 353-6410 35