The Brechner Report
Volume 21, Number 8
August 1997

A monthly report by:

• Anthony L. Fargo, Editor
• Mary Gallant, Production Coordinator
• Kelly Kroll, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
AGO: Law applies to pension board
Grand Jury won't indict Vero Beach council members
Prosecutor finds no evidence council broke law
Taping meetings OK, judge says
Official quits panel
Tallahassee commissioners cleared
Council asks entire advisory board to quit
Fire district board, state settle lawsuit
County stops using worksheets
City's win upheld
Attorney says board should discuss settlements
Mosquito board members sued
DCA upholds ruling on desegregation meetings
County chair's wife quits board
Committee forced to vote 4 times on same issue

OBSCENITY/PORNOGRAPHY
UWF fires staffer in porn complaint
Judge says AOL not liable in suit

COURTS
Girl's deposition in slaying closed
Judge rejects gag order in sex case

ACCESS RECORDS
Chamber opens sign district records

REPORTER'S PRIVILEGE
4th DCA rejects reporter's appeal of sentence

FIRST AMENDMENT - RELIGION
Student sues over suspension

CENSORSHIP
Cable system pulls show featuring dancers

COPYRIGHT
Company pays $100,000 in software settlement

THE BACK PAGE
Ruling recalls linked history of Sunshine laws

AGO: Law applies to pension board

TALLAHASSEE -- The board of trustees for a county bus system’s employee pension plan is subject to the Open Meetings Law, Attorney General Bob Butterworth said.

Butterworth, in an advisory opinion, noted that the bus system is operated by a county-created corporation, Palm Tran Inc., whose board of directors is the Palm Beach County Commission. The pension board for Palm Tran employees is made up of county administrators and representatives of the employees’ union.

Butterworth said that Palm Tran is clearly an "instrumentality" of the county subject to the Open Meetings Law, and therefore its pension board was fulfilling a county purpose and also was subject to the law. (Decisions on File, Fla. Atty. Gen. Op. 97-32, May 30, 1997)

Grand Jury won't indict Vero Beach council members

VERO BEACH -- An Indian River County grand jury declined to indict the Vero Beach City Council and city employees on allegations that they violated the state’s Public Records and Open Meetings laws.

Local real estate agent Frank Zorc accused the city of violating the Public Records Law by allowing a private attorney defending the city against a Zorc lawsuit to take files to his Miami office. The grand jury found no violation there or in the city’s lack of response to Zorc’s requests that the files be returned and opened to the public.

The grand jury also found no violation in the City Council’s closed-door decision to pay current Mayor Bill Jordan $32,500 for a strip of land it needed. The mayor said the city had voted publicly to allow the city’s attorneys to negotiate the price with him. (5/29/97-6/5/97)

Prosecutor finds no evidence council broke law

OLDSMAR -- State Attorney Bernie McCabe said he could find no evidence that Oldsmar City Council members violated the Open Meetings Law when they fired City Clerk Cheryl Mortenson.

Former Oldsmar Mayor Tom Pinta asked McCabe to investigate, and council members publicly said that they supported the investigation. Members of the public raised questions because newspaper reports four days before Mortenson was fired indicated that most council members knew nothing about an agenda item concerning Mortenson’s job. Also, some members of the public said the council never explained adequately why Mortenson, who worked for the city for 16 years, was let go, except to say that the council had "lost confidence" in her.

Mortenson filed a complaint with the U.S. Equal Employment Opportunity Commission, claiming she was fired because she made sexual harassment complaints in 1995 against Daryl Landis and Jerry Beverland, then members of the council. Beverland is now the mayor. Both men denied the accusations. (5/1/97-5/22/97)

Taping meetings OK, judge says

ORLANDO -- A judge ruled that the Orlando-Orange County Expressway Authority could not keep a man from videotaping its meetings for commercial purposes.

Judge Jeffords Miller, 9th Judicial Circuit, said the authority’s policy of allowing anyone to videotape meetings except for commercial purposes violated the Open Meetings Law. Judge Miller said the law provided access without regard to someone’s purpose in attending the meeting.

Bill Dunn of SunCam Inc. of Miami tapes presentations of consultants to public agencies and sells the tapes as "how-to" videos to other consultants. Authority members said they feared his camera was capturing copyrighted work of other companies, such as plans and drawings. Judge Miller rejected the idea that copyrights would be at risk because of Dunn’s taping. (5/10/97)

Official quits panel

LAKE WORTH -- The city’s vice mayor resigned from the Salvation Army Advisory Board because the board feared that her presence, coupled with that of the mayor, would require that board meetings be open to the public.

Retha Lowe resigned after several board members said it was a mistake to appoint her. Mayor Tom Ramiccio already served on the board. The Open Meetings Law generally requires that a meeting between two or more elected officials be open to the public. The Salvation Army, a private charitable organization, generally is not subject to the Open Meetings Law, but board members feared that the presence of two elected city officials at its board meetings would force it to open the meetings. (5/15/97)

Tallahassee commissioners cleared

TALLAHASSEE -- A grand jury found no criminal wrongdoing in city commissioners’ actions to approve a severance package for City Manager Steve Burkett.

Two Tallahassee residents complained that citizens were not properly notified about the meeting at which Burkett announced his resignation and the city quickly approved a severance package. The residents also accused city officials of negotiating portions of the package behind closed doors.

Burkett’s resignation was not on the agenda for the March 6 meeting. The city manager said he met with the commissioners individually and had the city attorney write his proposed severance package.

The severance package gave Burkett six months’ salary and an additional six months of pay if he still has not found a new job after half a year. At the March meeting, he announced that he was cashing in his unused vacation time and leaving immediately. (5/15/97)

Council asks entire advisory board to quit

AVENTURA -- All five members of the newly formed planning advisory board resigned after the Aventura City Council asked for the resignations because of possible Open Meetings Law violations.

The council learned that during their second meeting, members of the board mentioned that they had discussed city business among themselves in private. It is illegal for elected officials to discuss public issues outside of open meetings in most cases.

The council decided to ask all five members to resign rather than single out one or two people. Vice Mayor Jeffrey Perlow said the "whole board was tainted" by the incident.

The Dade County State Attorney’s Office is investigating whether anyone on the board should be charged with violating the Open Meetings Law. (6/8/97-6/12/97)

Fire district board, state settle lawsuit

FORT MYERS BEACH -- The Fort Myers Beach fire district and the State Attorney’s Office have settled an open meetings lawsuit out of court.

The State Attorney’s Office sued because a union contract negotiating meeting was held without prior public notice and no minutes were kept. The Open Meetings Law generally requires that public business be conducted in public and that minutes be kept of meetings.

The fire district’s board held a properly noticed meeting and re-ratified a contract with the union. It also agreed to post notices of union meetings in a number of places in the future. (5/17/97-6/6/97)

County stops using worksheets

NAPLES -- The Collier County Commission’s use of unsigned worksheets to decide which county manager finalists to interview was not an intentional violation of the Open Meetings Law, said State Attorney Joe D’Alessandro.

Nevertheless, the County Commission agreed to stop using unsigned worksheets to avoid the appearance of a violation.

After the list of applicants for county manager had been whittled to seven names, each commissioner marked a box for yes or no beside each finalist’s name at a March meeting. If a job candidate got a majority of yes votes, that person would be invited to Naples for an interview, as long as no one commissioner strongly objected.

D’Alessandro’s office investigated after the Naples Daily News, quoting First Amendment experts, questioned whether the worksheets amounted to a secret ballot, which is generally illegal under the state Open Meetings Law. The newspaper found that the commissioners also used unsigned worksheets to rank budget priorities for the county’s staff. (5/30/97-6/11/97)

City's win upheld

PORT ST. LUCIE -- The Florida Supreme Court said the city did nothing wrong when it sold bonds to finance part of a water and sewer expansion project.

The unanimous decision upheld an earlier ruling by Judge Scott Kenney, 19th Judicial Circuit.

A critic of the $200 million project sued because, he said, the Port St. Lucie City Council did not adequately publicize its planned vote on issuing $26 million in bonds. He also said that the council met illegally under the Open Meetings Law. The Supreme Court rejected those claims, as well as accusations that Judge Kenney acted improperly during the trial. (4/18/97)

Attorney says board should discuss settlements

WEST PALM BEACH -- The Palm Beach County Health Care District’s attorney said the district’s board erred when it settled four lawsuits without discussing the settlements in a public meeting.

Peter S. Sachs, the board’s attorney, also said he had "some problems" with the discussion during a private session to settle a lawsuit because board members discussed a number of other issues.

Sachs advised the board to approve in public four settlements totaling $259,500, even though the settlements already had been paid. He also said the board would take steps to make sure it did not make the same errors again or discuss issues in private that should be discussed in public.

The district, which provides trauma services and health care for the poor and owns two hospitals, was responding to questions raised by reporters for The Palm Beach Post. In March, the Martin County Commission paid the Post $15,900 to settle a lawsuit over closed meetings at which lawsuits were settled and the settlements were never discussed in public. (Brechner Report, May 1997) (5/4/97)

Mosquito board members sued

KEY WEST -- The top two employees of the Monroe County Mosquito Control District are suing two members of the district’s board, saying the board members illegally met in private to discuss firing them.

Director Greg Scott and Assistant Director Dennis Wardlow, who is also mayor of Key West, say board members Steve Smith and Bill Shaw discussed firing them during a convention in Ocala. The Key West Citizen and the Tarvernier Reporter said Smith and Shaw believe that the mosquito board hired Wardlow for political reasons and are angry at Scott for refusing to fire Wardlow. Smith and Shaw were elected to the mosquito board last fall after a campaign in which they accused the board of various forms of corruption.

It generally is illegal for members of a public body to discuss in private issues that may come up for a vote. (5/21/97-6/11/97)

DCA upholds ruling on desegregation meetings

LAKELAND -- The 2nd District Court of Appeal affirmed a trial court decision that school board discussions of a desegregation plan should be public. However, the appeal court limited the ruling somewhat.

Two members of the Pinellas County School Board appealed the circuit court’s ruling. The board met privately with its attorney in 1996 to discuss modifying a desegregation plan adopted in 1971 to settle a federal lawsuit. The trial judge rejected the board’s argument that the meeting was exempt from the Open Meetings Law because it dealt with litigation, saying the exemption only applied to attempts to reach a final settlement in a lawsuit. (Brechner Report, July 1996)

The appeal court agreed but said the trial judge went too far in ordering that all board meetings about the desegregation plan be open to the public in the future. The appeal court said there could be legitimate reasons for the board to talk with its attorney in private, such as discussing its negotiating stance on who should pay court costs and attorney’s fees in the continuing litigation. (6/27/97)

County chair's wife quits board

STUART -- The wife of the Martin County Commission’s chairman resigned from a bond authority board after issues of nepotism and possible violations of the Open Meetings Law were raised.

Joan Wilcox resigned from the Martin County Health Facilities Authority after government watchdogs and the new county attorney questioned her January appointment. Her resignation came on the eve of a commission vote to approve a $45 million bond issue the authority requested.

A critic of the bond issue told the commission that it may have violated state ethics guidelines by appointing Chairman Marshal Wilcox’s wife to a board under the jurisdiction or control of the commission.

County Attorney Gary Oldehoff said the commission’s decision in January to vote by secret ballot for members of the bond authority may have violated the Open Meetings Law. The commission voted again in June for the other four members of the authority and accepted Joan Wilcox’s resignation.

Commissioners blamed a former county attorney for giving them bad advice. They said they thought it was acceptable to appoint Joan Wilcox to the board because she would not be paid and neither she nor her husband would profit from the appointment. (6/10/97-6/11/97)

Committee forced to vote 4 times on same issue

STUART -- A Martin County education committee voted for the fourth time on whether to change the way teen-age parents are educated. But a newspaper said it may have violated the state’s Open Meetings Law again.

The committee, which is to recommend to the school superintendent whether teen parent programs should be kept at one school or expanded to all the county’s high schools, voted 6-5 to allow teen parents to attend their regular schools. But the panel did not have a quorum, so the vote did not count.

The second time, the committee members mailed in their ballots, a violation of the state’s Open Meetings Law, which requires that public issues be voted upon in public. After learning of the apparent meetings law violation, the committee voted again at a public meeting -- by secret ballot. Secret ballots also violate the Open Meetings Law.

The fourth time, the committee voted 12-5 to have all teen parents continue to attend one school. The vote was done properly, according to The Palm Beach Post, but committee members said they had talked to each other about how they would vote before the meeting. It generally is illegal for members of a public body to discuss privately what action they plan to take on a public issue. (6/10/97-6/25/97)

UWF fires staffer in porn complaint

PENSACOLA -- The University of West Florida fired a computer specialist after concluding that he downloaded pornography on his work computer and failed to keep it from co-workers and students.

However, Jim Webb said that anyone could have had access to his computer and downloaded the material. He and his wife, Vanette, say they are being persecuted because of their political and religious beliefs. Vanette Webb was elected to the Escambia County School Board in 1996 after campaigning as a conservative Christian with strong moral convictions.

The university said that its investigation began after a student complained about explicit material on Webb’s computer. UWF said the investigation found that only Webb’s administrator account could be responsible for creating the files. Among the files, UWF said, were pictures of people having sex and a list of pornographic movies. (6/12/97)

Judge says AOL not liable in suit

WEST PALM BEACH -- A judge dismissed a lawsuit against America Online, saying the on-line service could not be held liable for customers who use AOL to sell pornography.

Judge James Carlisle, 15th Judicial Circuit, said a section of the Communications Decency Act passed by Congress in 1996 protected AOL. The law, which largely consisted of anti-pornography measures, also insulated on-line service providers from liability if they made good-faith efforts to stop pornography or could show they had no way of knowing what their customers were doing.

The suit, which sought $8 million in damages, was brought by a Palm Beach County boy, 14, who was sexually assaulted by a teacher in 1994. The lawsuit said the teacher used AOL "chat rooms" as a place to meet other people interested in child pornography. The suit said the teacher sold a lewd videotape of the boy to another man he met through an AOL chat room.

AOL said it employs people to patrol its services for pedophiles, but that 14,000 "conversations" can take place simultaneously in chat rooms, making it impossible to monitor them all.

Shortly after the decision was announced, the U.S. Supreme Court struck down the Communications Decency Act as unconstitutional. (6/14/97-6/15/97)

Girl's deposition in slaying closed

NAPLES -- A judge ruled that a 10-year-old murder witness will be allowed to give her pre-trial deposition in private. The judge also closed the transcript of the deposition.

The girl, who was in bed beside her mother when the woman was strangled, told police her father was the killer.

Two newspapers, the Fort Myers News-Press and The Naples Daily News, sought to send reporters to the deposition, arguing that the public had a right to know what goes on in the court system. They were responding to a motion by the girl’s attorney to close the deposition process.

Judge William L. Blackwell, 20th Judicial Circuit, said he agreed to close the deposition process to protect the girl and so that he could better supervise the attorneys’ questioning. (5/31/97-6/4/97)

Judge rejects gag order in sex case

SARASOTA -- A judge rejected imposing a gag order in the case of a former altar boy whose lawsuit alleges he was sexually molested by a church pastor and a choir director.

Attorneys for the Diocese, St. Charles Borromeo Catholic Church in Port Charlotte, Bishop John Nevins and the Rev. Nicholas McLoughlin said the case was likely to prompt a "media frenzy" that would keep the defendants from receiving a fair trial.

But Judge Shera Winesett, 12th Judicial Circuit, said she saw no evidence indicating a "reasonable likelihood of prejudice." She said attorneys on both sides should follow Florida Bar rules on prejudicial pretrial publicity.

The young man claims he was molested by associate pastor Ed McLoughlin, who is pastor Nicholas McLoughlin’s brother, and Richard Trepinski, former director of the Charlotte County BoyChoir, which met at the church. The suit says Nevins and Nicholas McLoughlin were negligent in failing to prevent the abuse. (5/29/97)

Chamber opens sign district records

PALM CITY -- The Palm City Chamber of Commerce turned over records from a sign district it operated after Martin County Attorney Gary Oldehoff said the Public Records Law applied to the district’s governing committee.

Oldehoff said the committee was subject to the records law because the county created the sign district. The district was created to set up signs around Palm City to direct people to businesses, churches and other establishments. The county hoped the directional signs would discourage the use of illegal signs on the county rights-of-way.

Resident Krista White sued to force the chamber to turn over the records. White said she wanted to know how much the district charged participating businesses for the signs and whether it made a profit. The chamber, which operated the sign district, resisted, saying it was a private organization and not subject to the Public Records Law.

White said she found the records released by the chamber "incomplete," but her attorney agreed to drop the case because there was no evidence that more records existed. White still wants the chamber to pay her attorney’s fees and court costs. (6/10/97-7/1/97)

4th DCA rejects reporter's appeal of sentence

WEST PALM BEACH -- The 4th District Court of Appeal upheld the contempt conviction of Miami Herald reporter David Kidwell.

The three-judge panel’s majority opinion said that to allow witnesses to decide whether they should be required to give evidence would cause the criminal justice system to "founder at the very beginning of the process."

The judges rejected Kidwell’s claim to a qualified privilege not to testify about his jailhouse interview with murder defendant John Zile, who already had confessed to police that he killed his stepdaughter. The court said that there was precedent in Florida for a qualified privilege to protect confidential news sources, but that Kidwell’s claim did not involve a confidential source.

Citing the Florida Supreme Court’s ruling in Miami Herald v. Morejon (Brechner Report, June 1990), the appeal court said there was no privilege allowing a journalist to refuse to testify as "an eyewitness to a relevant event in a criminal case." The court said Kidwell’s Zile interview was a "relevant event" and rejected suggestions that the definition of "relevant event" be limited to witnessing a crime or arrest.

Kidwell was sentenced to 70 days in jail in October 1996 after he refused to testify about his interview with Zile. A federal judge released Kidwell after 15 days pending his appeal. (Brechner Report, December 1996) Kidwell remains free pending an appeal to the Florida Supreme Court. (6/11/97-6/13/97)

Student sues over suspension

NICEVILLE -- A Niceville High School senior is suing the local school system after he was suspended for five days for distributing religious literature on campus.

Nicholas Wright handed out religious tracts at the school before and after classes and during non-instructional time to friends who said they were interested in receiving them. After the principal told him to stop, Wright said he had a constitutional right to distribute the information. The principal and a vice principal disagreed and suspended him after he continued distributing the literature.

The lawsuit, which names the Okaloosa County School Board, Niceville High School, the principal and vice principal as defendants, claims that Wright’s speech and religion rights were violated by the suspension. (5/23/97)

Cable system pulls show featuring dancers

FORT LAUDERDALE -- A show featuring women dancing in their underwear has been pulled from a Broward County cable system’s public access channel after residents and officials in Plantation complained.

Continental Cablevision of Broward had aired the show weekly at midnight on Friday and Saturday nights on public access Channel 19. The 30-minute show, The Search for the World’s Sexiest Dancer, was "indecent" by community standards, Gary Resnick, a Continental official, said.

Comcast Communications of Broward Cable, which serves Fort Lauderdale, Hallandale and Oakland Park, continues to carry the show on public access Channel 49.

Resnick said Continental received "many" complaints about the show. A Plantation official said he sent a protest letter to Continental after one elderly resident called him about the show.

Company pays $100,000 in software settlement

JACKSONVILLE -- A company agreed to pay $100,000 and to stop using unlicensed computer software in a settlement with the Business Software Alliance.

Florida Detroit Diesel-Allison Inc., a distributor of engines and other heavy-duty auto equipment, admitted that employees were using illegally copied software programs. It voluntarily audited its own software, deleted unlicensed programs and bought new software to settle the complaint.

The Business Software Alliance is a national piracy watchdog group made up of several software makers, including Microsoft. It receives tips of piracy from calls to its free hotline -- 1-888-667-4722 -- and investigates. If it finds probable cause that piracy occurred, it can sue, obtain a court order to conduct audit "raids" or negotiate a settlement. (6/2/97)

Ruling recalls linked history of Sunshine laws
By Jon Kaney

This is the 30th anniversary of the passage of Florida’s open government laws. A recent decision invokes the deep connection between these two laws and the time of profound change in which they were passed.

In News-Journal Corporation v. Memorial Hospital-West Volusia Inc., the 5th District Court of Appeal said that the Sunshine Law applies to meetings of the board of a private entity when it is subject to the Public Records Law because it is acting on behalf of a state agency. If left standing by the Florida Supreme Court, the decision will make clear that agencies cannot avoid the Open Meetings Law by delegating functions to private entities any more than they can avoid the Public Records Law.

To prevent such avoidance, the Public Records Law specifically applies not only to public agencies but also to private entities that are "acting on behalf of" public entities. Although there is no explicit acting-on-behalf-of clause in the Open Meetings Law, the decision holds that this principle is implicit in that law as well.

Beyond its immediate effect, the decision holds deeper significance. By reading the Open Meetings and Public Records laws in concert, the decision invokes the historic connection between them. They were passed as companion reform measures by the 1967 Legislature, the first to be elected under a court-ordered reapportionment plan that for the first time gave fair representation to the new residents who had moved into the state during the post-World War II boom.

The link between Sunshine and reapportionment traces to Gov. LeRoy Collins, who was the great champion of both causes. He campaigned for governor in 1954 on a platform of "government in the sunshine, not in the shade." In his first message to the Legislature in 1955, he said, "The people of Florida possess the sovereignty of statehood. [They] have yielded to us no right to decide what is good for them to know, or what is bad for them to know." His proposal to ban secret meetings cleared the House more than once, but he was never able to get it out of committee in the Senate.

In a speech in 1959, Collins told fellow governors that his efforts to achieve reapportionment and other reforms had been stymied in the Florida Senate by a bloc "organized [as] what is now well known in [Florida] as the `pork chop gang’ whose members take solemn oaths" to preserve existing apportionment. He predicted that reapportionment would bring "new soldiers from fast-growing areas determined to make our government more representative and more responsive to the needs of the people." Although he failed to persuade the Legislature to reapportion itself, the courts ordered it done in 1966. True to Collins’ prediction, the "new soldiers" who arrived in Tallahassee during the Summer of Love promptly enacted both the Government-in-the-Sunshine Law and the modern Public Records Law.

The open government laws are thus bonded by the spirit of this time of change and reaction against repression. Like equality of representation, they were passed to make the government more representative and more responsive to the needs of the people. On more than one occasion the courts have construed these laws in light of their common purpose.

The historical fact is that the Legislature added the acting-on-behalf-of clause to the Public Records Law several years later in order to correct for a decision that had held to the contrary. Even before that legislation, the Supreme Court had said there was no "government by delegation" exception to the Open Meetings Law. What was implicit in the Open Meetings Law was made explicit in the Public Records Law to overcome a contrary decision. Memorial Hospital thus recalls the rich history and strong bond between the open government laws.

Jonathan Kaney Jr. is a partner in the Daytona Beach law firm of Cobb, Cole & Bell. He represented the Daytona Beach News-Journal in the Memorial Hospital case.

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