The Brechner Report
Volume 22, Number 1
January 1998

A monthly report:

• 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
Judge dismisses charges against 2 city council members
Environmental group drops port suit
Grand jury passes issue to next panel
FSU changes tenure and promotion review process
Broward planners to be on TV; commission won’t be

LIBEL
Supreme Court rejects appeal

PRIVACY - PRIVATE INFORMATION
Panel votes against privacy amendment
Principal sues over release of records

REPORTER'S PRIVILEGE
Judge quashes subpoena for TV reporter

COURTS
Part of secret hearing transcript released

ACCESS RECORDS
Judge orders release of school bus tape to TV station
Private jail health services must release records, judge says

STUDENT PRESS
FAU staffer fired in dispute over column change

FIRST AMENDMENT
School district allows photo in yearbook
Substitute teacher may sue after flap over use of Bible

THE BACK PAGE
Shining light on public business remains a priority

ACCESS MEETINGS

Judge dismisses charges against 2 city council members

RIVIERA BEACH – A county judge dismissed charges against two Riviera Beach City Council members accused of violating the Open Meetings Law.

A grand jury in Palm Beach County indicted Marge Confrey and Marilyn Moffitt in May. Confrey and Moffitt were accused of meeting secretly plot the ouster of the city manager and police chief. Moffitt also was accused of meeting illegally with a council member-elect. (Brechner Report, July 1997)

Palm Beach County Judge Nelson E. Bailey dismissed the charges shortly after Confrey and Moffitt’s trial began. He said the state’s case was too circumstantial to support the charges. Judge Bailey also said that the incoming council member, Lenora Hurley, was still a private citizen when the alleged secret meeting with Moffitt took place. The judge said there was no law against meeting with Hurley before she was sworn in as a council member. (11/20/97)

Environmental group drops port suit

BRADENTON – An environmental group that sued the Manatee County Port Authority over an alleged Open Meetings Law violation has dropped its suit.

Manasota 88 attorney Tom Reese said the group wanted to devote its resources to other issues.

The suit alleged that the Port Authority broke the meetings law when a committee that ranked the bidders for a port expansion project failed to properly notify the public about its meetings. The county clerk, R.B. Shore, also filed suit over the same issue and refused to pay any bills to the company that won the $3.5 million construction contract because of the alleged violation. (Brechner Report, July 1997)

The company that won the contract, NDC Construction, sued Shore to get payment. Shore settled with the company out of court and dropped his lawsuit. (10/22/97)

Grand jury passes issue to next panel

KEY WEST -- A grand jury looking into allegations of Open Meetings Law violations by Monroe County Mosquito Board members took no action but recommended that the next grand jury study the issue.

The decision to take no action came after three members of the grand jury attended a Mosquito Board meeting and spoke out when the board voted to fire Director Greg Scott, Assistant Director Dennis Wardlow and board attorney Tracy Adams. One the grand jurors was dismissed from the jury panel and the two others were prohibited from discussing the Mosquito Board matter.

The grand jury was investigating allegations that Mosquito Board members Steve Smith and Bill Shaw met secretly to discuss firing Scott and Wardlow. Smith and Shaw also face a lawsuit over the alleged meetings-law violations filed by Scott and Wardlow in June. (Brechner Report, August 1997) (10/22/97-11/1/97)

FSU changes tenure and promotion review process

TALLAHASSEE - Florida State University changed its procedures for reviewing faculty members for tenure and promotion to conform to Florida’s Open Meetings Law.

President Sandy D’Alemberte decided, on advice from university attorneys, that reviewing faculty members’ applications for tenure and promotion can no longer take place in closed meetings. Instead, D’Alemberte has instructed faculty members to evaluate peers by using secret ballots.

FSU follows the University of Florida in deciding to change the process. UF President John Lombardi halted tenure and promotion committee meetings after a university attorney advised him that the meetings were subject to Florida’s Open Meetings Law. (Brechner Report, November 1997) (11/16/97)

Broward planners to be on TV; commission won’t be

FORT LAUDERDALE – Two public bodies in Broward County came to different conclusions about whether to televise their meetings.

The Broward Planning Council agreed to ask county administrators to have its monthly meetings televised on the local cable system. The vote came two days after the County Commission decided to have its twice-monthly public hearings televised but not its weekly regular meetings.

County commissioners said they wanted to encourage more public scrutiny of the commission’s business, but the majority of the seven-member commission voted to limit the televised meetings. The majority said televising the meetings would attract "gadflies" who would monopolize camera time and make meetings longer. (10/22/97-10/24/97)

LIBEL

Supreme Court rejects appeal

WASHINGTON – The U.S. Supreme Court declined to hear arguments in a former principal’s appeal of the dismissal of his libel suit against The Miami Herald.

Marvin Dunn, who was principal of an alternative school for troubled children in Dade County, sued the Herald after it ran a story in 1993 that said the school’s directors asked Dunn to resign. The story said an auditor told the directors the school’s financial books were "in a shambles." Dunn also sued over an editorial a week later that said he "put public funds to personal use" and "paid the price with his job."

A circuit judge dismissed Dunn’s suit. (Brechner Report, April 1996) A state appellate court upheld the dismissal. In his Supreme Court appeal, Dunn argued that the trial court erred in finding the defamatory statements were protected opinion. But the Herald lawyers noted that the judge also said that the statements were true. (10/7/97)

PRIVACY - PRIVATE INFORMATION

Panel votes against privacy amendment

TALLAHASSEE - A committee of Florida’s Constitution Revision Commission voted against a proposal to amend the state constitution to prohibit the sale of personal information to marketers. The proposal can still be passed on to voters if the full commission decides to override the committee’s decision.

The proposed change to Article I, Section 23 of the Florida Constitution would read: "The sale of personal information relating to a natural person which is obtained from a database is prohibited, unless the natural person gives written consent."

If the Constitution Revision Commission approves the amendment, it would go before voters in November 1998. (10/30/97-11/13/97)

Principal sues over release of records

WEST PALM BEACH – The principal of Chiefland High School is suing an insurance company that he claims did not adequately protect his medical records from disclosure.

Terry Andrews’ medical records became part of the public record after a colleague sued him for sexual harassment in 1991 when he was a high school principal in Palm Beach County. The records showed that Andrews had visited a psychiatrist for treatment of depression.

After Andrews moved to Chiefland, someone anonymously sent copies of his records to school officials and other people in Chiefland. A local paper did a story about his past based on the records.

Andrews claims the insurance company was careless in its handling of the records. A subpoena for the records had required that they be taken to the courthouse for a trial on the sexual harassment allegation, according to Andrews. The trial was delayed, however, and the company mailed the records to an attorney for the woman suing Andrews. The insurance company said it had no obligation to keep the records private and could have been held in contempt if it had not mailed the records to the attorney.

Andrews’ attorney said the suit highlights a gap in Florida law on medical records. Florida requires doctors and other health-care providers to keep health records confidential, but the law does not apply to insurance companies, the attorney said. (10/21/97)

REPORTER'S PRIVILEGE

Judge quashes subpoena for TV reporter

MIAMI – A judge quashed a subpoena for a television journalist, saying she was not an eyewitness to a relevant event in a lawsuit.

The defendants in the lawsuit, Mount Nebo Memorial Gardens Inc. and Levitt-Weinstein Memorial Chapels Inc., subpoenaed Martha Sugalski of WTVJ-TV after she reported on a lawsuit filed against the cemetery and funeral home. The suit alleged that the cemetery and funeral home negligently lost a woman’s right leg, which then could not be buried with her in accordance with Jewish law.

Judge Bernard Shapiro, 11th Judicial Circuit, ruled that the defendants in the civil suit had not shown that the information they sought from Sugalski was relevant to their case, that they had a compelling need for the information, and that no alternative sources were available. (Decision on File, Zellner v. Mount Nebo Memorial Gardens Inc., Case No. 97-12077 CA 11, Nov. 21, 1997)

COURTS

Part of secret hearing transcript released

TALLAHASSEE – A federal judge agreed to release most of the transcript of a closed sentencing hearing for a former state official accused of fraud.

Attorneys for The Tampa Tribune and the Tallahassee Democrat filed protests with U.S. District Judge Robert Hinkle, Northern District of Florida, and sought the transcript after court officials refused to let reporters into the hearing or even confirm that it was taking place.

Judge Hinkle said he still could not explain why the hearing was held in secret. He said some parts of the hearing transcript would remain confidential.

Thompson, the daughter of Florida 5th District Court of Appeal Judge Emerson Thompson, pleaded guilty to fraud charges. She was accused of using different names and Social Security numbers to apply for credit, then accumulating thousands of dollars in bad debt. She was a former political consultant to Gov. Lawton Chiles and Lt. Gov. Buddy MacKay and was a former official at the state Commission on Minority Economic and Business Development.

Thompson was sentenced to eight months of house arrest, placed on five years’ probation, and ordered to pay $36,783.53 in restitution. Judge Hinkle said.

The Democrat reported in August that sources said she was cooperating in an investigation of corruption in federally funded projects, which could explain why her hearing was secret.

ACCESS RECORDS

Judge orders release of school bus tape to TV station

MELBOURNE -- Judge Lawrence V. Johnston, 18th Judicial Circuit, ordered a videotape released to WCPX-TV that showed four junior high school students harassing a fifth student on a bus.

The videotape was used as evidence in the four students’ misdemeanor proceedings. The tape was part of regular school bus surveillance, and the four students did not know they were being taped. According to the judge’s order, the tape shows the four students taunting the fifth student. The four students originally were charged with felonies, including aggravated stalking and assault, but the charges were reduced to misdemeanors.

Judge Johnston also instructed the television station to block the faces of students not charged in connection with the bus incident. (Decisions on File, In the Interest of D.P., J.B., T.B., L.B., Case Nos. 97-4001, 97-3984, 97-3999, 97-3998, Brevard County Circuit Court, Nov. 6, 1997)

Private jail health services must release records, judge says

LAKELAND - A circuit judge ordered a private health service within a county jail to release settlement records in accordance with Florida’s Public Records Law.

Judge Charles Davis, 10th Judicial Circuit, ordered Prison Health Services to tell The Ledger of Lakeland how much it paid to settle a lawsuit in connection with an inmate’s death.

Prison Health Services is a private company paid with public funds. The health service agreed to comply with Florida’s Public Records Law in its contract.

The court relied in part on News-Journal Corp. v. Memorial Hospital-West Volusia. In that case, the 5th District Court of Appeal ruled that when a private company relieves a public agency of a public obligation, the company is subject to the Open Meetings and Public Records laws. (Brechner Report, July 1997) (11/22/97)

STUDENT PRESS

FAU staffer fired in dispute over column change

BOCA RATON A staff member at Florida Atlantic University’s student newspaper was fired after publicly complaining that the editor of the Boca Raton News influenced the removal of sexually explicit language from a column.

The Boca Raton News publishes and buys advertising for the University Press, FAU’s paper. Boca Raton News Publisher Roger Coover called the University Press’s editor, Jennifer Goddard, and questioned one section of the column that was to appear in the FAU paper. Columnist Matthew Johnson described masturbating while watching an Oral Roberts sermon on television, according to the Sun-Sentinel of Fort Lauderdale. Goddard decided to remove the reference.

Goddard also fired Jon Boho, a copy editor and writer, who brought the issue to the media’s attention. She said she terminated Boho because he had acted without her consent on various occasions. (10/29/97-11/1/97)

FIRST AMENDMENT

School district allows photo in yearbook

ST. AUGUSTINE – The St. Johns County schools superintendent reversed a principal’s decision and allowed a religious club to place a group photograph in a yearbook.

Officials at Allan Nease High School at first refused to allow the Brothers and Sisters in Christ club to put a photo in the yearbook because they feared it would violate the separation of church and state.

The students in the club contacted the Liberty Counsel, a nonprofit religious legal defense organization, for help. An attorney for the Liberty Counsel contacted the school district, whose attorney recommended that the photo be included after researching the law. (11/21/97)

Substitute teacher may sue after flap over use of Bible

FORT MYERS – A substitute teacher who was sent home for teaching from the Bible is threatening to sue the Lee County School Board.

School officials said Jerry Mount took the Bible to school when he was called to substitute for a literature teacher at Riverdale High School. The regular teacher’s lesson plan called for a discussion of The Hobbit by J.R.R. Tolkien, but Mount read portions of the New Testament to students and discussed the parable of the Prodigal Son.

Mount said the students enjoyed the lesson. However, school officials said they received complaints from some of Mount’s first-period students and pulled him out of a classroom during third period. Mount refused to agree to stop teaching from the Bible and was sent home. He was later removed from a list of available substitute teachers in the district.

School officials said the issue was that Mount did not teach from the lesson plan, not that he used the Bible. Mount said the issue was censorship, and he planned to take the case as far as he could if he was not reinstated. (10/15/97)

THE BACK PAGE

Shining light on public business remains a priority

By Robert A. Butterworth

At different times and for different subjects some men impose and other men accept a particular standard of secrecy. The frontier between what is concealed because publication is not, as we say ‘compatible with the public interest,’ fades gradually into what is concealed because it is believed to be none of the public’s business.

Walter Lippman (1946)

Twenty years ago, Walter Lippman’s warning about the danger of secrecy in public proceedings served as a preface to the first edition of the Government-in-the-Sunshine Manual. The purpose of that initial publication was to "provide all government officials, as well as the needs of the public and press, with appropriate guidelines for the conduct of the public’s business." This goal remains as valid today as it was in 1978 and serves to remind government officials of the importance of the people’s right to know in ensuring the continued strength of our democratic society.

Many Floridians are already familiar with the Government-in-the-Sunshine Manual, which is prepared annually by the Attorney General’s Office and published by the First Amendment Foundation. The Manual serves as a reference guide on open government issues and incorporates key court decisions, Attorney General Legal Opinions and legislation relating to public access.

Several years ago, a voluntary open government mediation program was established in the Attorney General’s Office to encourage voluntary resolution of public access disputes as an alternative to costly litigation. The cost savings generated by the mediation program are considerable. From August 1995 through August 1996, the mediation program handled 115 cases involving a total of 136 issues. Eighty-six cases or 74 percent were resolved through the mediation program.

In November 1996, the mediation program received a Davis Productivity Award from Florida TaxWatch in recognition of the program’s effectiveness in averting litigation and saving public funds that could otherwise have been spent to pay attorney’s fees. However, while the cost savings resulting from the mediation program are significant, the most important benefit may be the intangible value derived from facilitating the right of access to public meetings and records.

In his introduction to the 1978 Manual, then-Attorney General, now appellate Judge, Robert L. Shevin strongly endorsed Florida’s leadership role in providing public access to governmental proceedings and records:

"It has been accurately observed that public officials, whether career civil servants, elected or political appointees, seem all too often to have one thing in common -- they like secrecy. Confidential memos, secret documents, closed meetings and the like were at one time the rule in this state rather than the exception they are today. . . .

"While other states and the federal government are in the process of debating the merits of expanding their Sunshine and Public Records Laws, Florida has served as a working example of what can be accomplished when officials in policy-making positions sincerely believe in and follow the spirit and the letter of open government laws."

Judge Shevin’s forceful advocacy of Government in the Sunshine in 1978 still rings true today. Floridians can all take pride in our heritage of open government. And we can all work to ensure that over the next 20 years -- and beyond -- Florida will continue to be nationally recognized as a leader in providing public access and accountability.

Robert A. "Bob" Butterworth has served as Florida’s attorney general since 1987. Butterworth’s office produces the Florida Government-in-the Sunshine Manual. The 1998 edition will be available in mid-January. For more information, call (850) 222-3518. A report on the open government mediation program will also be submitted to the Legislature this month (January 1998). For more information about mediation, please contact General Counsel Pat Gleason at (850) 488-9853.

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