The Brechner Report
Volume 22, Number 10
October 1998

A monthly report:

• Michele D. Bush, Editor
• Jackie Thomas, Production Coordinator
• Allyson Beutke, Production Assistant
• Jennifer Page, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Official arrested for secretly recording colleagues
City commission plans to vote again to avoid violation
Judge closes hospital lease meeting
Councils on Aging open to public

LIBEL
Former mayor wins multi-million dollar verdict
Actress sues Home Shopping Network
Student, Florida Blue Key settle

COURTS
Judge lifts ban on broadcasting jurors face
Judge denies request for gag order in murder trial

ACCESS RECORDS
Appeals court: draft not public
No violations by Escambia school district

NEWS & NOTES
Foundation holds Sunshine seminars

TRADEMARK
Retail chain says site using their name

BACKPAGE
Computerized records may be hard to access

Official arrested for secretly recording colleagues

VENICE – A Venice City Council member was arrested and charged with one count of interception by oral communication for making a secret tape-recording of a private meeting attended by fellow council members.

The Florida Department of Law Enforcement arrested Earl Midlam after a six-week investigation. According to FDLE records, Midlam said during an interview that he accidentally taped the conversation of three council members who shared council office space. In another interview, according to FDLE records, Midlam admitted that he deliberately left his voice-activated tape recorder on in the office in an attempt to catch his colleagues violating Florida’s Open Meetings Law. According to the open meetings law, the public must be notified of meetings between two or more members of a public board or committee who discuss some matter upon which action could be taken by the board or committee.

Midlam was charged with the third-degree felony for recording a conversation without consent from all parties. The day he was arrested, he resigned from the city council. (8/20/98)

City commission plans to vote again to avoid violation

DUNEDIN—The Dunedin City Commission will vote for a second time on a road project because the first vote may have been tainted with an Open Meetings Law violation.

Two members of the commission, who are also members of the Metropolitan Planning Organization, met in private with city, county and state officials regarding a road project that was to come before the city commission for vote. According to Florida’s Open Meetings Law, a meeting between two or more members of a board or commission during which a matter is to be discussed upon which the board or commission may take action must be open to the public.

A third member of the commission, who did not attend the meeting in question, brought the issue to the attention of the full commission. The city will have another hearing and another vote on the project. (8/26/98)

Judge closes hospital lease meeting

KEY WEST – A circuit judge used a new exemption to Florida Open Meetings Law to allow a hospital to have a closed meeting to discuss a proposal to lease it.

Chief Circuit Judge Sandra Taylor, 16th Judicial Circuit, allowed the Lower Florida Keys Health System to block public access to a board meeting during which members discussed the possibility of a $20 million, 30-year lease.

A lawsuit has been filed to determine whether the hospital system is publicly or privately owned.

Judge Taylor made no determination about the ownership of the hospital system. She based her decision on a law enacted during the 1998 legislative session that allows a private corporation that leases a public hospital to be exempt from Florida’s Open Records and Open Meetings laws. Taylor said there was no evidence showing that the exemption could not apply to the hospital. (8/1/98)

Councils on Aging open to public

TALLAHASSEE – The Florida Attorney General has determined that meetings of the Councils on Aging are subject to the provisions of Florida’s Open Meetings Law.

The council fits the definition of a public agency according to the law because it is a nonprofit organization created by the Florida Legislature whose activities are on behalf of the Department of Elderly Affairs, Bob Butterworth said in Attorney General Opinion 98-55.

Florida’s Open Meetings Law requires that all meetings of any board or commission of a state agency during which official acts are to be taken must be open to the public. (9/14/98)

Former mayor wins multi-million dollar verdict

VERO BEACH – A community activist has been ordered to pay a former Vero Beach mayor $4.7 million in a libel suit. Former mayor Bill Jordan sued community activist Frank Zorc after Zorc distributed fliers that suggested Jordan was guilty of perjury, bribery, witness tampering and violating the state’s open records and open meetings laws. Zorc distributed the fliers after a disagreement with Jordan about a property sale.

The jury ordered Zorc to pay $2.9 million for libeling Jordan, $1.25 million for damages to Jordan’s reputation and $550,000 for Jordan’s lost earnings. To prove statements about a public figure are libelous, they must be malicious, false and known to be false by the person making the statements. (8/18/98 – 8/23/98)

Actress sues Home Shopping Network

ST. PETERSBURG – Actress Mimi Rogers filed a $10 million libel suit against The Home Shopping Network, claiming the television station fed false information to the National Enquirer that damaged her reputation.

The Enquirer published a story, which quoted anonymous Home Shopping Network sources and insiders, about an alleged temper tantrum Rogers had at the television studio. In her suit, Rogers said the station gave the Enquirer "false and defamatory" information that portrays her as an "unstable individual who, without provocation engaged in violent, irrational and socially unacceptable behavior."

Rogers is seeking $10 million in general damages, as well as punitive damages and court costs. (8/3/98)

Student, Florida Blue Key settle

GAINESVILLE – A University of Florida student settled with a leadership honorary for $85,000. A jury had originally awarded the student $250,000 in damages. Charles Grapski, a doctoral candidate, sued Florida Blue Key and two of its members over fliers posted during a 1995 student government campaign that falsely accused Grapski of child molestation. (Brechner Report, August 1998)

The settlement includes a requirement that Grapski be allowed one hour with the group’s alumni advisory board. The settlement also releases Florida Blue Key from any liability.  However, the jury award still stands for another defendant in the case, UF Student Body President John McGovern. He will be responsible for the $165,000 difference in the award if a judge declares the judgement final. One defendant in the case, Peter Vlcek, was injured in a car accident during the trial and has yet to be tried. Vlcek’s trial is set for Oct. 5. (9/15/98)

Judge lifts ban on broadcasting jurors face

ORLANDO – A circuit judge lifted a ban on showing jurors faces during the selection process in a high-profile murder trial. The trial of Juan Carlos Chavez, charged with the kidnapping and murder of a nine-year-old boy, was moved from Miami to Orlando. The change of venue made it unnecessary to continue the ban on televising juror’s faces, according to Circuit Judge Marc Schumacher, 11th Judicial Circuit. The restriction on publishing jurors’ names remains. (8/26/98)

Judge denies request for gag order in murder trial

VERO BEACH – A circuit judge denied a request for a gag order in a murder trial on the basis that publicity in the case does not warrant it.

Circuit Judge Robert Hawley, 19th Judicial Circuit, ruled that the publicity the case received to that point was not so extensive or overwhelming as to need a gag order.

The attorney for Patrick McIntyre, charged with strangling a woman and setting fire to her apartment to hide the body, argued that news stories about McIntyre would make it difficult to seat an impartial jury. (8/4/98)

Appeals court: draft not public

BROOKSVILLE – The Fifth District Court of Appeal overturned a trial court’s ruling that a draft of a city audit report fit the definition of a public record.

The case arose after the Hernando County Clerk of Court, Karen Nicolai, conducted preliminary work for an internal audit of the county’s legal department. Nicolai presented her preliminary findings to an audit services employee, the county administrator and the county attorney. Those present had the option to respond to the findings before the final audit was released. Nicolai refused to release the draft audit until she received the responses and filed the final audit report.

The appellate court determined that because the final audit report had not been presented to the city, it was not a public record. According to section 119.07(3) of Florida Statutes, an audit is subject to disclosure when it becomes final. (8/28/98)

No violations by Escambia school district

PENSACOLA – A grand jury determined that the staff of the Escambia County School District did not engage in any kind of criminal wrongdoing when it denied access to some school board records.

A candidate for a position on the school board filed the complaint against the district. In it, he alleged that the school board denied access to what should have been public records and open meetings. He also said the school board improperly negotiated for property. The grand jury report said that the records requester misunderstood the application of Florida’s Public Records Law. (8/26/98)

Foundation holds Sunshine seminars

TALLAHASSEE – The First Amendment Foundation is holding several seminars in October focusing on Florida’s Open Records and Open Meetings laws.

The seminars are available to the media, government personnel, or members of the public. The cost for nonmembers of the foundation is $25, and the fee includes participation in the seminar, a 1998 Government in the Sunshine Manual and a one-year membership to the foundation. Seminars will be sponsored by the Tampa Tribune, the Naples Daily News, The Palm Beach Post, the Osceola News-Gazette and the St. Augustine Record in each publication’s circulation area.

Anyone who would like more information about the seminars may call the First Amendment Foundation at (850) 224-4555, or log into the foundation’s website at http://www.floridafaf.org.

Retail chain says site using their name

TAMPA -- The owner of Tower Records, a national chain of music, book and video stores sued a Tampa company that administers adults-only Internet sex sites.

Tower Records parent company, MTS Inc., alleges that Futurescape Inc. infringed on its trademark and tarnished the Tower Records trade name by using a similar Internet name.

The retail company said Futurescape was using the domain name "towerecords.com" to catch Internet users looking for "towerrecords.com," the Tower Records site. Tower Records claims that the Internet company was intentionally counting on people to misspell the domain name to the record company’s web site. (8/27/98)

Computerized public records may be hard to access
By Michele Bush

Electronically stored public records should be as accessible as records stored on paper. That may be a simple idea, but that isn’t what records requesters are experiencing.

In his preface to the 1998 Government-in-the-Sunshine Manual, Attorney General Bob Butterworth said he looks forward to Florida’s continued recognition as a leader in providing public access to an open government. I agree with that sentiment. However, in order to do that, every records custodians must be educated in how to use the computer systems in their agencies to promote access to the public records in their care. Until that happens, we will not move forward.

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