The Brechner Report
Volume 21, Number 11
November 1997

A monthly report by:

• Anthony L. Fargo, Editor
• Jackie Thomas, Production Coordinator
• Sarah Rabin, Production Assistant
• Stacey Silver, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
AGO: Attorney-client privilege doesn't apply to board
City agrees to part of paper's contention
Estero fire board members fined
DCA says law firm can stay in access fight
UF changes tenure and promotion committee rules

LIBEL
DCA upholds dismissal of net fisherman's lawsuit

COURTS
Supreme Court to be on TV

ACCESS RECORDS
AGO: Conflict of laws should go to court or Legislature
Anna Maria ordered to turn over records
Judge orders child-abuse file opened after girl, 7, dies
Judge says agency can't charge for electronic search
Report says Charlotte sheriff acted legally

COPYRIGHT
Times-Union, NFL settle dispute over Web site

SPECIAL REPORT: PROSECUTIONS
Nearly 80 public officials since 1978 punished for access violations

THE BACK PAGE
Diana’s death no excuse to trash First Amendment

AGO: Attorney-client privilege doesn't apply to board

TALLAHASSEE – The attorney-client privilege does not apply to relationships between public school boards and their attorneys, Attorney General Bob Butterworth said.

In an advisory opinion, Butterworth told John Bowen, the Pinellas County School Board attorney, that his conversations with individual board members and the superintendent are not covered by the attorney-client privilege because only the school board as a whole is his client. Discussions between the board and its attorney are subject to the Open Meetings Law, which generally requires that discussions of school business be conducted in public, with some exceptions for specific legal matters.

Also, any notes that the board attorney takes during a meeting with a member are subject to the Public Records Law, Butterworth added.

Butterworth also wrote that an attorney does not violate any due process or privacy rights of individual members if he discusses their conversations with other members or the superintendent. However, Butterworth said, an attorney must not act as a go-between among members to sidestep the Open Meetings Law.

Bowen sought the opinion after some Pinellas County School Board members criticized him for not keeping conversations they had with him confidential. (Decisions on File, Fla. Atty. Gen. Op. 97-61, Sept. 15, 1997) (9/18/97-9/24/97)

City agrees to part of paper's contention

WEST PALM BEACH – The city agreed to publicly advertise lawsuits it settles for more than $30,000 after The Palm Beach Post raised questions about the way the city disposed of suits.

The newspaper contends that state law requires a public hearing and vote for a lawsuit settlement of more than $5,000. The Post reported that West Palm Beach routinely settled lawsuits without public discussion.

The city agreed that the law required it to vote publicly and hold hearings before settling some lawsuits. However, the city contends that state law allows it to settle claims of between $5,000 and $30,000 without a public vote unless the suit involves a dispute between two governments.

The Post has filed a lawsuit against the city of Boca Raton, which claims it lawfully can settle suits of up to $100,000 without a public hearing, to determine what the dollar limit is. (9/7/97-9/11/97)

Estero fire board members fined

ESTERO – Three members of the Estero Fire Commission pleaded no contest to charges of violating the Open Meetings Law and were fined $250 each. A fourth member, convicted in a July trial on the same charge, was fined $500.

Georgia Gates, George Horne and John Kelley pleaded no contest and agreed not to seek reinstatement to the fire board. In return, Lee County Judge Edward Volz agreed to withhold a formal finding of guilt, meaning that the three board members can petition later to have their criminal records sealed.

Judge Volz also withheld a formal adjudication of guilt for Vernon Conly, who was convicted of violating the Open Meetings Law in July. Gov. Lawton Chiles, who had suspended all four board members from office pending the outcome of their cases, formally removed Conly from office after his trial. (Brechner Report, October 1997)

The charges against the fire board members stemmed from a meeting in April. The four members called a meeting to order, voted on one item and adjourned before most members of the public could get into the meeting room and find a seat. The doors to the room were locked until time for the meeting to start, witnesses said. (Brechner Report, June 1997 and July 1997) (9/23/97)

DCA says law firm can stay in access fight

VERO BEACH – The 4th District Court of Appeal refused to disqualify the law firm representing Frank Zorc, a real estate agent suing Vero Beach over an alleged Open Meetings Law violation.

The city filed a motion to disqualify Zorc’s attorneys, who work for Cobb Cole & Bell of Daytona Beach, because the law firm mediated an unrelated dispute between the city and a contracting firm. The Court of Appeal affirmed a decision by Judge Charles Smith, 19th Judicial Circuit, that said the law firm’s handling of the dispute and Zorc’s suit did not amount to a conflict of interest.

Zorc is appealing a ruling by Judge Robert Makemson, 19th Judicial Circuit, earlier this year. Judge Makemson ruled that there was no evidence that the city violated the Open Meetings Law when it met secretly to discuss possible litigation involving a tenant at the city-owned airport. Zorc contends the discussion went beyond the litigation to include his demand that the city test his airport property for contamination. (Brechner Report, March 1997) (7/16/97-9/4/97)

UF changes tenure and promotion committee rules

GAINESVILLE – The University of Florida has halted a long-standing practice of holding secret tenure and promotion committee meetings after the university’s general counsel said UF might have been breaking the law inadvertently for six years.

General Counsel Pam Bernard said a change in state law in 1991 required that meetings of decision-making bodies be open to the public unless the group was specifically exempted by the Legislature. There is no exemption for meetings of tenure and promotion committees. Previously, Bernard said, it had been assumed that a meeting at which documents exempt from the Public Records Law would be discussed was not subject to the law. Written evaluations of faculty members by their peers are exempt from the Public Records Law.

UF President John Lombardi and Provost Elizabeth Capaldi sent a memorandum to UF’s vice presidents, directors and deans telling them to change tenure and promotion practices immediately. Lombardi and Capaldi also told administrators that any review process underway should start over to conform to the new rules.

Lombardi and Capaldi said deans at UF’s colleges still could form committees on tenure and promotion, but the committees could only do "fact finding" for the dean and could not make recommendations. Some committees at UF already performed in this way, but other deans encouraged committees to recommend whether a candidate should be promoted or granted tenure. (10/12/97)

DCA upholds dismissal of net fisherman's lawsuit

TALLAHASSEE – The 1st District Court of Appeal upheld the dismissal of a group libel suit filed by 436 commercial net fishermen against four Jacksonville-area television stations.

A three-judge panel unanimously held that the group was too large for any one member to be defamed individually by advertisements supporting a constitutional amendment to restrict net fishing in Florida waters. The amendment passed.

Judge L. Haldane Taylor, 4th Judicial Circuit, dismissed the suit in January 1996. Judge Taylor noted that group libel cases filed by more than 25 people consistently have been dismissed. (Brechner Report, March 1996)

The ad that aired on WJKS-TV, WAWS-TV, WTLV-TV and WJXT-TV was bought by a group called Save Our Sealife Inc., which supported the amendment. The fishermen said that the ad falsely portrayed them as "irresponsible, indiscriminate killers" of sea life, including dolphins and sea turtles. (Decisions on File, Janie G. Thomas et al. v. Jacksonville Television Inc. et al., Fla. 1st DCA, Case No. 96-706, Sept. 25, 1997)

Supreme Court to be on TV

TALLAHASSEE – The Florida Supreme Court will be on television for one week in November.

The Florida District Learning Network’s board agreed to give the court free air time for a week to broadcast oral arguments before the court. Chief Justice Gerald Kogan, who asked for the time, said he believed televising oral arguments would help the state’s residents better understand the workings of the court system.

The FDLN controls a state-owned satellite and its board decides who can broadcast over it. The FDLN often sells its satellite time to commercial networks, but agreed to give the court a one-month trial to see how much interest the oral arguments generated.

The oral arguments will be broadcast the week of Nov. 3. The broadcasts will be available to local-access channels, schools and universities.

The Supreme Court generally has not allowed cameras in its courtroom, but Chief Justice Kogan has shown a willingness to change that. In September, he authorized a live television broadcast of oral arguments in a case challenging the constitutionality of Florida’s electric chair. (9/11/97-9/17/97)

AGO: Conflict of laws should go to court or Legislature

TALLAHASSEE – Attorney General Bob Butterworth said the courts or the Legislature, not his office, are the best places to resolve a conflict between a Public Records Law exemption and another state law.

Orange County Comptroller Martha Haynie sought the opinion after police officers asked her to expunge any identifying information about them from records, including real estate records. Haynie refused, stating that Florida law required her to keep the real estate records open and unaltered.

However, a Public Records Law exemption requires records custodians to delete identifying information about law enforcement officers and their families from public records if the officers request the deletions. Haynie has refused three such requests in two years.

Butterworth wrote that there was a conflict between the laws, especially in regard to real estate records, which need to be accurate and complete to protect homeowners from title claims. He suggested that a clerk of courts could come up with a way to expunge the identifying information from records open to the public while keeping the unaltered records elsewhere. But he said the best way to get a definitive answer on how to resolve the conflict would be for the clerk to seek a declaratory judgment in court or ask the Legislature to clarify the laws. (Decisions on File, Fla. Atty. Gen. Op. 97-67, Sept. 25, 1997) (9/20/97)

Anna Maria ordered to turn over records

ANNA MARIA – A judge ordered city officials in Anna Maria to provide records to a local newspaper within 48 hours.

The Islander Bystander weekly newspaper reported that it verbally asked for a copy of an engineer’s pipeline study in July. The paper followed up with written requests for the information twice in August, and also requested financial records for the Anna Maria City Pier and an application for a building permit.

The paper said it was told that some of the records were not available, that one of its requests was "too vague," and that it would have to fill out a "Copy Request Form." The form, according to the newspaper, stated that the mayor must approve all requests for copies of public records.

Judge Paul E. Logan, 12th Judicial Circuit, ruled that the city could not require mayoral approval for copy requests. He ordered the city clerk and mayor to comply with the newspaper’s records requests within 48 hours or appear in his chambers for a hearing two weeks later to explain why they had not complied. The newspaper reported that the city complied with the request. (9/13/97-9/17/97)

Judge orders child-abuse file opened after girl, 7, dies

TAMPA – A judge ordered the state Department of Children and Families to open the confidential files of its investigation into child abuse allegations against the mother and stepfather of a child found dead in Ohio.

Judge Gregory Holder, 13th Judicial Circuit, said he hoped that information in the files could be used to help find Seleana Gamble’s siblings. Department of Children and Families investigation files are nearly always confidential under exemptions to the Public Records Law.

Newspaper reports said the files showed that the Department of Children and Families investigated accusations of violent and sexual abuse of Seleana and her siblings at the hands of their mother and stepfather, Mona and Jack Volgares. But the department could never find any proof of child abuse.

The body of a girl, believed to be Seleana, 7, was found in a trash can in Ironton, Ohio, where the Volgares family lived after leaving Florida. Neighbors said the rest of the family, which includes three other children, left and gave conflicting stories about where they were going. (9/14/97)

Judge says agency can't charge for electronic search

TALLAHASSEE – A judge has ruled that a state agency may not charge for the time it takes to screen electronic messages before releasing the information to members of the public.

Judge Charles D. McClure, 2nd Judicial Circuit, said under the Public Records Law the state Department of Transportation could charge 15 cents per page for paper copies of the messages. However, he said that the company requesting two years’ worth of e-mail messages from the DOT should not have to pay for access problems caused by the DOT’s internal decisions about what software to buy and how to store electronic messages. He also said the company should not be charged for a review of the records by DOT attorneys to delete exempt information.

Cone & Graham, which is working on a road project in Hillsborough County for the DOT, requested all e-mail messages sent between 17 DOT employees over a two-year period. The company and the DOT agree that the messages are public records. The DOT stores messages automatically for 25 days, then sends the messages to an electronic file for 425 more days. After that, the messages are stored permanently on magnetic tape.

The agency said it would take 16 hours of overtime work for employees to sift through the e-mail files and find all the messages between the 17 employees. DOT attorneys would then have to go through the files to delete Social Security numbers, trade secrets and other information exempt from the records law. (9/18/97)

Report says Charlotte sheriff acted legally

PORT CHARLOTTE – State investigators concluded that no laws were broken when documents about the detention of Sheriff Richard Worch’s son at the county jail were altered or destroyed.

State Attorney Joseph D’Alessandro, whose office called for the investigation by the Florida Department of Law Enforcement, said no crime was committed because the documents were not public records yet.

Worch took his teen-age son to the Charlotte County jail after the son punched the sheriff in the nose during a domestic dispute. Worch eventually decided not to file charges, and Sheriff’s Office and jail records about the detention were destroyed or altered.

D’Alessandro said the arrest process had not been completed when the sheriff decided not to file charges, so the records produced up to that point were not open to the public. However, the state attorney did recommend that Worch review jail policies about record keeping to avoid future problems. (8/28/97)

Times-Union, NFL settle dispute over Web site

JACKSONVILLE – The National Football League and The Florida Times-Union settled a dispute over the newspaper’s use of photographs of the Jacksonville Jaguars team on the paper’s Web site.

The dispute arose after the NFL demanded that newspaper photographers covering the Jacksonville-Charlotte preseason game sign a waiver prohibiting them from posting photographs on the Internet. The NFL explained later that its waiver policy was designed to protect its broadcast rights to real-time coverage of games against the Internet, which it saw as a competitor to broadcasters.

While the Times-Union and the NFL were negotiating the waiver issue, the league also raised questions about the paper’s Jaguars Web page. The NFL said the Web page looked too much like an official team Web page, and it also objected to the paper using its photos of players and game action in what the league called a "noneditorial section" of the Web site. Newspaper editors responded that the Web site was an extension of the newspaper and the NFL had no right to try to control its content.

The NFL later dropped its waiver policy and agreed not to challenge the Times-Union’s Web site, at least for now. In return, the paper placed its disclaimer that the Jaguars page was not affiliated with the team or the NFL in a more prominent position. (8/7/97-8/23/97)

Nearly 80 public officials since 1978 punished for access violations

By R. Michael Hoefges and Anthony L. Fargo

At least 77 public officials and employees have either been convicted of violating the Open Meetings Law and Public Records Law or have pleaded guilty or no contest since 1978, according to data compiled by the Brechner Center for Freedom of Information.

At least 11 officials were either removed or suspended from office in connection with accusations of violating the meetings or records laws. None were jailed, but some were ordered to pay fines or perform community service. In some cases, charges were dropped in exchange for commitments to study the open-government laws.

The Brechner Center last reported on prosecutions of public officials and employees in 1992 (Brechner Report, February 1992). Since 1992, at least 18 public officials have pleaded no contest or guilty or have been found guilty of violations.

The following chronology lists cases in which public officials or employees have been convicted by juries, found guilty by judges or pleaded guilty or no contest to violating the open-government laws. The listing includes cases in which charges were dropped in exchange for commitments to study the Open Meetings and Public Records laws. This listing is based on a survey of past issues of The Brechner Report and its predecessor, The Freedom of Information Clearing House Newsletter. For a more complete and up-to-date list of prosecutions, see the Brechner Center Web site at http://www.jou.ufl.edu/brechner/brochure.htm, which is updated monthly.

PROSECUTIONS

SEPTEMBER 1997 – Lee County Judge Edward Volz accepted no-contest pleas from three former members of the Estero Fire Commission and sentenced the three, plus a fourth member convicted in a July trial. All four Fire Commission members were suspended by Gov. Lawton Chiles after they were charged by the State Attorney’s Office with violating the Open Meetings Law. In April, members of the public complained that the fire board kept them out of a meeting room until the moment a meeting was supposed to start, then voted on one item and adjourned before most people could find seats. (Related story, page 1.)

JUNE 1997 -- The City of Opa-Locka paid a $500 fine, $108 in court costs, and made a $500 donation to the United Way after former City Manager Earnie Neal pleaded guilty to violating the state’s Public Records Law. Neal said he ignored 35 records requests from his predecessor as city manager, Dennis Whitt, because the requests were frivolous and amounted to harassment.

MAY 1997 -- The Florida Supreme Court removed a Broward County judge from office for falsifying public records. In a 5-2 vote, the justices removed County Judge LaRan Johnson for back-dating records in 42 to 57 DUI cases in order to reduce her caseload.

JUNE 1996 -- Dade Metro Commission Chairman Arthur Teele Jr. agreed not to contest a civil Open Meetings Law charge and to pay a $250 fine. The State Attorney’s Office alleged that Teele met secretly in 1994 with Commissioners Bruce Kaplan and Maurice Ferre, who paid fines in 1995 to settle similar charges against them. (See AUGUST 1995 for more information).

AUGUST 1995 -- Two Dade County commissioners agreed to pay fines stemming from civil charges of Open Meetings Law violations. Bruce Kaplan agreed to pay $500 and Maurice Ferre agreed to pay $250 to settle charges that they met secretly in December to discuss the selection of a new county manager.

MARCH 1995 -- On the eve of his scheduled trial, Kenneth City Mayor Harold Paxton pleaded no contest to violations of the Open Meetings Law. Paxton was fined $400 in court costs. The charges stemmed from six closed meetings that Paxton allegedly attended in 1991 and 1992 regarding city construction projects.

AUGUST 1992 -- In December 1992, a Hernando County judge found school board member Diane Rowden guilty of one misdemeanor count of violating the Open Meetings Law. She was fined $322 and ordered to pay court costs and spend four hours reading the Government-in-the Sunshine Manual. Rowden pleaded no contest to 12 other misdemeanor and two non-criminal charges during her trial. Governor Lawton Chiles removed Rowden from office, but changed his order to a suspension after the Florida Supreme Court said he did not have authority to remove her from office. Subsequently, the Florida Senate voted in March 1994 not to reinstate Rowden. School board members Susan Cooper, Paul Clemmons, Nancy Gordon, and Leland McKeown pleaded no contest to charges in January 1993. As part of their plea agreements, they agreed to study the Open Meetings Law.

SEPTEMBER 1991 -- Seven Sumter County Board of Adjustments members, three Big Corkscrew Island fire commissioners and two former Center Hill City Commission members were charged with violating the Open Meetings Law. Charges against five of the 12 accused were dropped when the fire commissioners and former council members agreed to study the law and perform 5-10 hours of community service.

MAY 1991 -- Open Meetings Law violation charges were dropped against eight members of a Eustis advisory committee after they agreed to spend four hours studying the Government-in-the-Sunshine Manual.

APRIL 1991 -- Seven Highlands County officials pleaded no contest to non-criminal Sunshine Law violations. Four county commissioners and a former commissioner were charged with hiring a county attorney by secret ballot. One commissioner and two county administrators were charged with holding a secret meeting to double the county attorney's salary. Adjudication of guilt was withheld, and each defendant paid $25 in court costs.

The Brechner Center would like to receive information about other open meetings or public records cases in which a public official or employee has been prosecuted. The Center also would like to receive additional or updated information on any of the cases listed in the chronology. If you would like to bring any information to our attention, please contact us by mail, telephone, or fax:

Attention: Editor, The Brechner Report
Brechner Center for Freedom of Information
College of Journalism and Communications
University of Florida
P.O. Box 118400
Gainesville, FL 32611-8400
Telephone: 352/392-2273
Fax: 352/392-3919

Diana’s death no excuse to trash First Amendment

By Sandra F. Chance

Like millions of Americans, I was stunned and heartbroken when I heard about the tragic accident that killed Princess Diana.

The world's anger, not surprisingly, was immediately directed at the out-of-control paparazzi and at the media in general. Attacking the media – sometimes with good cause -- has become one of the world’s most popular sports.

The rush to judgment was on. There was an immediate outcry for new laws to protect celebrities’ privacy, followed by the quick introduction of legislative solutions to control the paparazzi. For example, one California lawmaker has proposed legislation that would require photographers to stay at least 15 feet from subjects who don’t want their pictures taken. Jane Fonda's ex-husband, state Sen. Tom Hayden, wants to ban telephoto lenses altogether. In Congress, California's Rep. Sonny Bono is attempting to ban "egregious or unacceptable behavior" by photographers.

These proposals and others like them are ill conceived and blatantly unconstitutional. They are also wonderful examples of the worst kind of pandering to rich and famous constituents and to the public’s need to blame someone for this tragedy.

But, as the old legal axiom goes, bad facts make bad law. And the facts do not get any worse than the fatal accident that prematurely ended the life of one of the world’s most popular public figures.

Nevertheless, these attempts to restrict photographers would ultimately infringe on more mainstream news gathering efforts and stomp on the First Amendment.

After all, we already have laws designed to prevent this type of accident. It is illegal to drink too much and drive. It is illegal to speed. And it is illegal to invade someone's privacy and intentionally intrude on his or her seclusion in a highly offensive manner.

These laws protect all of us, including celebrities, from peeping Toms, eavesdroppers, electronic surveillance and stalkers. No one, including the news media, can legally stalk, harass, trespass or unreasonably intrude on anyone’s privacy.

In Florida, we are protected by Statute 784.048, which makes it illegal to willfully, maliciously, and repeatedly follow or harass another person. Violators can be criminally prosecuted.

In addition to filing criminal complaints, celebrities can file civil suits. For example, Jacqueline Kennedy Onassis won an injunction 25 years ago against a photographer, Ron Galella, who hounded her and her family.

Celebrities can also organize boycotts, as George Clooney did against the television show Hard Copy. But let us not forget that many celebrity critics of media coverage are actually skilled manipulators who use the media for their own ends. Take, for example, Clooney’s diatribe on the media and tabloid journalists. How did he get his message out? He called a press conference. It is somewhat hypocritical for a celebrity who invites and depends on public attention to demand special protection when it arrives.

Ideally, all journalists would behave responsibly and abide by the Society of Professional Journalists Code of Ethics. This code encourages journalists to recognize that gathering and reporting information may cause harm or discomfort.

"Pursuit of the news is not a license for arrogance," according to the code, which also encourages reporters and photographers to "show good taste" and "avoid pandering to lurid curiosity."

On that Saturday night in Paris, the paparazzi probably went too far in their manic quest for a celebrity photograph. But imposing more severe restrictions on photographers to protect celebrities will not solve the problem.

A free and vigorous press is essential in our delicate system of checks and balances on power. The First Amendment must not be another casualty in this tragedy.

Sandra F. Chance is assistant director of the Brechner Center and an assistant professor of journalism at the University of Florida.

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