Tampa City Council

Solutions & Ideas For
Government-in-the-Sunshine

submitted for consideration by:

TERRANCE R. L. NEAL

First, I would like to thank-you for the investment of time you are about to make in this document. Your thoughtful consideration regarding the breadth of my reasoning and subsequent requests is appreciated.

Most importantly, this is dedicated to the numerous, incredible, hard-working government employees who go the extra mile, everyday. Thanks for helping me navigate the maze. – Terry Neal

STATEMENT OF PURPOSE

Filing a Sunshine Law complaint was not an easy decision for me. I do not aspire to ruin political careers or inflict undue hardship.

Nevertheless, I think it a reasonable duty of a citizen to seek remedy when their government falls short of their obligation to the law.

I understand that everyone makes mistakes. I’ve made my share. Yet the current tenor of the city-council, except for one member, has not been in the least bit repentant for their breach of public trust.

This is disturbing. The performance of several of Tampa’s governments and agencies, especially regarding the Sunshine Laws, is appalling.

This year alone, we are seeing systemic abuses in City Hall and City-Council, in the City Attorney’s office, the Tampa Housing Authority, transit agencies, transportation departments such as FDOT and the Expressway Authority, the County Water Department, Tampa Bay Water and others.

Even private non-profits such as Civitas and the Tampa History Center are flaunting laws as though they are above them; as though they are imperial and laws, as I’ve heard it said, “…apply only to the little people.”

And that is just 2004, what I would consider if I base my analysis on the past several years, to be a good year for ignobleness.

Must we measure our community’s success on the failures of government and our ability to uncover their mis-deeds? Should officials’ yardstick of accomplishments be deception?

Citizens must take back their credentials. We must prevail over the influence of special interests, egos and the intimidation of wealth and status.

Tampa, it seems, is ensnared in a web of insecurity. Our leaders speak of the greatness of our community and its’ people. Yet for all of this rhetoric they seem compelled to look outside of our metropolitan area of 3-million people when they seek leadership.

We find many of our leaders meeting behind closed doors, avoiding public input, skirting the Sunshine Laws and deceiving us with decisions that seem superficially brilliant but are eventually revealed as the mere smoke and broken mirrors they really are, leaving the community to pick up the pieces and pay the bills.

I believe that my complaint, which literally addresses an act of violating the Sunshine Law, is really a symptom of a much larger issue.

It seems our leaders have no faith in us, thus they repeatedly attempt to operate under the radar.

This must change. The time is now.

My request for an investigation of the Tampa City-Council focuses on three Florida statutes:

i. Statute 286.0115 Access to local public officials; quasi-judicial proceedings on local government land use matters, along with other Florida statutes gives the public the right to know what is taking place in regards to government dealings on land matters.

ii. 286.105 Notices of meetings and hearings must advise that a record is required to appeal.–Each board, commission, or agency of this state or of any political subdivision thereof shall include in the notice of any meeting or hearing, if notice of the meeting or hearing is required, of such board, commission, or agency, conspicuously on such notice, the advice that, if a person decides to appeal any decision made by the board, agency, or commission with respect to any matter considered at such meeting or hearing, he or she will need a record of the proceedings, and that, for such purpose, he or she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. The requirements of this section do not apply to the notice provided in s. 200.065(3). History.–s. 1, ch. 80-150; s. 14, ch. 88-216; s. 209, ch. 95-148.

iii. Statute 286.0105 allows that meetings that have not met the statutory requirements of Florida Law may be considered illegal and any decisions or actions taken because of such meetings to be null and void.

These statutes are part of the broadly defined foundation of Florida’s Government-in-the-Sunshine. And while there are penalties that can be imposed on those who violate the Statutes, Statute 286.0105 allows the most severe of all punishments.

As an illustration, here is what Ms. Pat Gleason, General Counsel for the State Attorney General’s office, said at a March 11, 2004 workshop in Tampa:

“They did not realize they had to comply with the Sunshine Law every step of the way, and held one or two meetings that weren’t properly noticed or a couple conversations not subject to the Sunshine Law. All of their work is undone...You have to go back and have a full, open, curative process to more or less cure what has happened.”

In essence, keeping the public from the decision-making process creates a two-edged sword. While those operating in private appear to have an advantage over the public, they do not.

Their actions, in fact, give the citizen the advantage of requesting improperly held meetings to be voided, a bittersweet way to right a wrong.

But even more important is the implication that the disobedience need not be willful. Ignorance of the law does not prevent remedy.

We may never know what was discussed at the private meetings exclusively arranged by the Greater Tampa Chamber of Commerce for the Tampa City-Council.

What we do know, however, is that the City-Council and the Chamber, willful or not, are now in a position capable of jeopardizing years of work.

Was it worth it?

Every member of the City-Council, Mayor and member of an advisory board, whether appointed or elected, who attended these or other meetings should have known what to do.

They should have looked around the room, noticed the lack of media and public, and questioned the agendas presented to them (attached – last page). They should have questioned the private venue.

They should have walked out.

Florida’s government-in-the-sunshine laws are unique, often described as the most liberal in the United States.

Personally, I cannot recall a society, past or present, when citizens have had the potential for such transparency in government.

The citizens of Florida are very lucky indeed. But our luck is running out if the Sunshine Laws are casual after-thoughts, if at all.

Quoting Pat Gleason again,

"Because our law is so broad...the sunshine law in its breadth can be overlooked. As initially enacted, our open meetings laws provided essentially that all meetings of state and local boards at which official actions are taken are hereby declared to be open to the public. What really changed our law...was the decision by the Florida Supreme Court on several occasions to extend the application of the law to any gathering of two or more members of a covered board when they meet to discuss any matter on which foreseeable action may be taken.

When the Supreme Court indicated that the law would be applied that broadly, essentially, it prohibited private gatherings between two or more members of a board of a committee, at a workshop, at any level if the matter was something on which foreseeable action could be taken."

Ms. Gleason went on to speak of a Florida Supreme Court decision,

“When this occurred, the court said that it was important to have the Sunshine Law applied to the entire decision-making process. As the courts have said, a meeting is either full open or fully closed. There are no intermediate categories.”

Plainly there continues to be misunderstandings and abuses of the law.

Do the struggles in our community have a connection to these abuses of the Sunshine laws?

To answer that question we must first raise awareness of the real problems.

The Complaint

On February 14, 2004, I filed a complaint (attached) with Mr. Mark Ober, Esq., Florida State Attorney in the city of Tampa, Florida.

In this complaint I requested an investigation of the Tampa City-Council attending pre-arranged, private luncheons hosted quarterly by the Greater Tampa Chamber of Commerce. Because the meetings were secretive my complaints, summarized below, were unavoidably vague:

* February 12th, 2004 luncheon hosted by the Greater Tampa Chamber of Commerce specifically for Tampa City-Council to meet with Chamber members.

* The luncheon was held at the private, members-only University Club in Tampa, Florida.

* Six (6) members of the Tampa City-Council were also in attendance at the luncheon meeting. That is the account given by a reporter who happened upon the meeting and subsequently wrote the story which revealed the meetings to the public.

* According to news reports the meetings were specifically for City-Council members. One council member called the luncheon a ‘workshop’ with Greater Tampa Chamber of Commerce members.

* Interviews with current and former Tampa City-Council members attended indicated these meetings had taken place every three months for several years. (I later amended my complaint verbally with Mr. Ober to investigate allegations of these historical violations.)

After filing my complaint, I made a public records request. Among the documents produced were the following:

* The 2/12/2004 Agenda (attached – last page) for the invitation-only Luncheon meeting (included at end of document) indicated then Tampa City-Council Chairwoman Linda Saul-Sena opened the meeting with a speech.

* The 2/12/2004 agenda also indicated a discussion of legislative priorities of the Greater Tampa Chamber of Commerce followed by a question-and-answer session.

* Calendar entries for 2003-4 of City-Council members indicated similar meetings in 2003, including one meeting with Mayor Greco in attendance.

* Two current council members had already entered these luncheons into their calendars for the remainder of 2004.

* Meeting announcements which were written to include the following as requirements for attendance:

· Invitation only

· R.S.V.P.

· In private venues

· Requiring advance payment

· Attendance requires a charge

· Charges for members and non-members

Although I have requested, no documents have been produced to substantiate claims that any of these meetings were:

· publicly noticed,

· recorded,

· made use of court reporter for transcripts,

· held in public venues or

· offered free-of-charge.

The Greater Tampa Chamber of Commerce

At this time, the following section refers only to the quarterly meetings designated by the Tampa Chamber for the Tampa City-Council.

I am compelled to raise an issue that I feel is integral to my complaint.

* The Greater Tampa Chamber of Commerce receives subsidies from the Tampa City-Council in exchange for performing economic development.

* Although the Tampa Chamber is incorporated as a Florida non-profit that does not necessarily disqualify the Chamber from obligations of the Sunshine Laws since it receives subsidies in exchange for performing work for the City of Tampa, economic development.

* The Chamber may share responsibilities for Sunshine Laws compliance then their members engage elected officials, land developers, advisory board members, volunteer board members and their liaisons in discussions upon which foreseeable action may be taken.

Chamber Response

I called the Chamber after reading of the 2/12/2004 meeting. The Chamber denied they were obligated to any public responsibility as required by Florida Sunshine Statutes.

Upon my request, a Chamber representative refused to release the list of attendees at any of the pre-arranged Tampa City-Council luncheon meetings, including 2/12/2004.

I also requested the 2/12/2004 meeting minutes from the Chamber representative. She stated that no minutes were taken, that the Tampa City-Council was responsible for documenting the meetings.

The Tampa City-Council cannot be relieved of any portion of their responsibility to comply with State Laws. However, it appears likely that the Tampa Chamber of Commerce had a responsibility with regards to specially-arranged, private meetings with public officials.

Citizens must rely upon the ethics of those to whom the law applies. When one organization fails to do so, it is sad. When two organizations fail, it is a travesty.

GOALS

I have four goals.

1. 24/7 ELECTRONIC GOVERNMENT

We should do as the law admonishes us to do by embracing new and emerging technologies to place information within reach of all citizens.

Here is an excerpt from Statute 1193, regarding public records:

119.01 General state policy on public records.–

(1) It is the policy of this state that all state, county, and municipal records shall be open for personal inspection by any person.

(2) The Legislature finds that, given advancements in technology, providing access to public records by remote electronic means is an additional method of access that agencies should strive to provide to the extent feasible. If an agency provides access to public records by remote electronic means, then such access should be provided in the most cost-effective and efficient manner available to the agency providing the information.

(3) The Legislature finds that providing access to public records is a duty of each agency and that automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must ensure reasonable access to records electronically maintained.

The mindset of public records as privileged information must change. Public records belong to the citizens.

These records are the library of our government. They should be freely available to view and check out, whether in person, over the Internet, or through other feasible technologies in existence or yet to be developed.

2. ACCESSIBILITY FOR OTHERS

There is another benefit of electronic accessibility. Many individuals with handicaps, mental and physical or both, have been forced to live on societies fringe, unable to connect to the world of public meetings and records because of their respective challenges.

Statute 286, thanks to the American with Disabilities Act, or ADA, has addressed the issue of accessibility to public meetings, when a citizen is capable of attending in person.

286.26 Accessibility of public meetings to the physically handicapped.–

(1) Whenever any board or commission of any state agency or authority, or of any agency or authority of any county, municipal corporation, or other political subdivision, which has scheduled a meeting at which official acts are to be taken receives, at least 48 hours prior to the meeting, a written request by a physically handicapped person to attend the meeting, directed to the chairperson or director of such board, commission, agency, or authority, such chairperson or director shall provide a manner by which such person may attend the meeting at its scheduled site or reschedule the meeting to a site which would be accessible to such person.

(2) If an affected handicapped person objects in the written request, nothing contained in the provisions of this section shall be construed or interpreted to permit the use of human physical assistance to the physically handicapped in lieu of the construction or use of ramps or other mechanical devices in order to comply with the provisions of this section.

History.–s. 1, ch. 77-277; s. 1, ch. 79-170; s. 116, ch. 79-400; s. 1, ch. 81-268.

The meaning is clear. Everyone deserves to participate in government. With technology we can bring government into our homes, which opens up a new world for the disabled and homebound.

3. EDUCATION

For those to whom the law applies, being educated in the law is their obligations, crucial to situations that may compromise.

Through education citizens understand their entitlements under the law.

4. ENCOURAGE CITIZEN ACTIVISM

The understanding of a law is in the practice of it. And in my view, we as citizens have only begun to test the rights we enjoy as part of this exciting civic milestone called government-in-the-sunshine.

Conclusion

These goals are more than realistic; they are overdue. Democracy cannot survive in darkness.

PROPOSALS

Tampa City-Council

1. Compliance with applicable Florida Statutes, particularly ethics, public meetings and public records.

2. Request the addition of an audience agenda session during the Thursday morning City-Council meetings.

· NON-AGENDA ITEMS 2 minutes per person; 15 minutes maximum per session.

· AGENDA ITEMS 3 minutes per person; 30 minutes maximum per session.

· Request the recording and televising of all audience agendas.

3. Ensure that all city-council committee meetings are in the Sunshine.

4. Require all city-council attorney(s), both employee and consultants, to obtain government certifications.

5. Modify City of Tampa website Per Statute 119.084(6) for those citizens wishing to maintain anonymity in communicating with council members and departments. Create optional registration process and allow for requests to be made via anonymous e-mail accounts.

City of Tampa

1. Compliance with applicable Florida Statutes, particularly ethics, public meetings and public records.

2. Modify City of Tampa website Per Statute 119.084(6) for those citizens wishing to maintain, anonymity in communicating with council members and departments. Create optional registration process and allow for requests to be made via anonymous e-mail accounts.

3. Require all attorneys, both employee and consultants, to obtain government certifications.

City of Tampa & City Council

1. Compliance with applicable Florida Statutes, particularly ethics, public meetings and public records.

2. TRAINING in Sunshine Laws: 30 hours for elected officials; 20 hours for new hires and appointees and 10 hour annual refresher courses.

3. For citizens making visits to the Tampa City Hall and/or the Tampa Municipal Building, as well as other public buildings not exempted from Florida Statutes, implementation of a system which allows citizens to maintain anonymity when requesting public records. This can be accomplished by asking visitors to wear badges but not requiring them to sign-in. This request does not exempt lobbyists.

4. Lobbyists should sign in at the front desk and at each department visited.

5. Ensure that public meetings are in properly marked public spaces or if in private space ensure that public is free to attend without cost and without notice by RSVP. In other words, the venue must be fully available to the public.

6. Annually assess the Sunshine status of all entities receiving public funds or having public appointments.

7. Annually assess all entities in #6 for Sunshine compliance by way of a comprehensive, agency wide review, ensure that all boards, committees, private non-profits (see Statutes) whether comprised of elected officials, appointed citizens or liaisons involved in decision-making regarding public policy and monies meeting according to appropriate laws.

8. Modify City of Tampa website Per Statute 119.084(6) for those citizens wishing to maintain, anonymity in communicating with council members and departments. Create optional registration process and allow for requests to be made via anonymous e-mail accounts. Ensure that cookies and tracking devices are not placed on visitor’s computers.

9. Require all attorneys, both employee and consultants, to obtain government certifications.

10. ELECTED & SELECTED -Change procedure for board and other appointments to a partisan/non-partisan selection process.

11. Change appointments procedure so that no one board can have appointments from one individual which will comprise a majority of that board.

12. Replay Pat Gleason appearance at city-council on 3/11/2004 on City Cable Channel a minimum of 3 times weekly.

13. Make video of Pat Gleason available to SpeakUp Tampa Bay and Hillsborough County HTV.

14. Design and implement a two-year plan to make available, online, all public documents, including archives.

15. As part of the plan for #14 include mirror servers that allow citizens the right to view documents in progress, as allowed by law.

16. When documents are available in an electronic format, OFFER the document to requestor first, as an attachment via e-mail, rather than creating paper copies.

17. Ensure that all employees are maintaining electronic documents and require exceptions to be requested in writing.

18. Designate a primary Custodian of Documents as well as department custodians who can accept public records requests that must be processed in person as well as coordinate answers about public records back to citizens.

Interlocal Agreement

1. Sunshine Center

· To provide historical information about the Sunshine Laws in Florida,

· To show the Sunshine Law in action,

· To provide educational programs about the Sunshine Laws.

Responsibilities:

· Comprehensive co-coordinating and posting of all public notices on interlocal website

· Comprehensive non-electronic publication of notices and distribution channels, possibly libraries or create weekly public notices circular

· Provide computers for access of online records

· Classes, workshops, lectures

· Selling of books and videos

· Viewing area for watching public meetings

· Create plan for allowing citizens to participate in meetings remotely from this location, including making online comments and participating in public agendas.

· Interactive sessions - Citizen workshops for real-time budget and other workshops.

2. Main office at the Tampa History Center.

3. Satellite Offices in each government agency.

GENERAL RECOMMENDATIONS & IMPLEMENTATION

1. Citizen Sunshine Advisory Council

· to study and recommend the proper implementation of these solutions

· serve as ombudsman, under advice of interlocal counsel, to mediate

· complaints

· Run the process for selection of Sunshine Recipient of the Year Award

2. Use resources as allowed by the Statutes:

119.093 Assistance of the Division of Library and Information Services, records and information management program, of the Department of State.–The Division of Library and Information Services, records and information management program, of the Department of State shall have the right to examine into the condition of public records and shall give advice and assistance to public officials in the solution of their problems of preserving, creating, filing, and making available the public records in their custody. Public officials shall assist the division by preparing an inclusive inventory of categories of public records in their custody. The division shall establish a time period for the retention or disposal of each series of records. Upon the completion of the inventory and schedule, the division shall (subject to the availability of necessary space, staff, and other facilities for such purposes) make space available in its records center for the filing of semi current records so scheduled and in its archives for noncurrent records of permanent value and shall render such other assistance as needed, including the microfilming of records so scheduled. History.–s. 9, ch. 67-125; ss. 10, 35, ch. 69-106; s. 6, ch. 83-286; s. 7, ch. 86-163.

3. Cooperative effort among municipalities and their IT departments.

4. Seek as permitted by assistance from the State Technology Office.

5. Designated custodians and archivists. 119.21

119.21 Custodian designated.–The elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee, shall be the custodian thereof.

Recommended Reading

* Florida Statutes are available online at www.myflorida.gov

* I also recommend a book written and edited by Pat Gleason of the Attorney General’s office and distributed by the First Amendment Foundation, “Government-in-the-Sunshine Manual.” The current edition is Volume 26. More information on ordering is available at www.floridafaf.org or by calling

850 224 4555.

Bibliography

* 2003 Florida Statutes, www. MyFlorida.Gov
* Pat Gleason, General Counsel, Florida Attorney General’s Office, 3/11/2004, 1:30 p.m. session, Tampa City-Council Workshop “Sunshine Law.”

Enclosures

* Original Complaint
* 2/12/2004 Luncheon Meeting Agenda

COPY OF ORIGINAL COMPLAINT

Terrance R. L. Neal

February 14, 2004

Mark A. Ober
State Attorney - Thirteenth Judicial Circuit
800 East Kennedy Blvd.
Tampa, Florida 33602

RE: Tampa City-Council & inappropriate meetings

Dear Mr. Ober,

Around 10:30 A.M. on February 12, 2004, I spoke at Tampa City-Council, requesting the council to initiate an investigation into the Tampa Housing Authority. I advised them that two subsidiaries of THA did not appear to be complying with the Florida government-in-the-sunshine statutes, in particular,

1. …that meetings did not appear to be open to the public,
2. …THA was not giving appropriate advance notice of the meetings to the public, and
3. …the meetings were not being appropriately recorded by audio, visual or other methods.

I was chastised by Councilman Dingfelder for not taking these concerns directly to THA. Although that is my plan, at the next meeting of THA on February 27th, I felt that as the overseer of THA, the city of Tampa had a fiduciary responsibility to citizens to investigate such concerns.

Within two hours of my testimony, according to a story “Meetings with chamber illegal,” which appeared in today’s St. Petersburg Times, the city-council was apparently again in session, only this time, behind closed doors, at lunch in the University Club, with the Tampa Chamber of Commerce.

Based on this information, I am therefore:

1. …asking you to open an investigation, based upon the activity that reportedly occurred between approximately 11:30 – 2:00 P.M. on February 12, 2004, in the University Club, Tampa, Florida, between the Tampa Chamber of Commerce and the Tampa City-Council. I would like to address the alleged Constitutional violations of the following Florida Statutes:

1. Title X, PUBLIC OFFICERS, EMPLOYEES, AND RECORDS, Chapter 119 Public Records
2. Title XIX PUBLIC BUSINESS, Chapter 286, Public Business
3. Title X, Chapter 112, CODE OF ETHICS FOR PUBLIC OFFICERS AND EMPLOYEES
4. Title III, LEGISLATIVE BRANCH; COMMISSIONS, Chapter 11 Legislative Organization, Procedures, And Staffing

2. I am also asking you to include in this investigation alleged illegal lobbying behavior by the Tampa Chamber of Commerce, specifically related to the following statute:

Title III, LEGISLATIVE BRANCH; COMMISSIONS,

Chapter 11 Legislative Organization, Procedures, and Staffing

3. I am also requesting, through your investigation, a list of all attendees at the above referenced luncheon meeting on 2/12/2004.

4. In light of the report that these meetings have been ongoing for several years, I am also asking that the statutory requirements, in regards to fines and other punishments, of the Florida Constitution be fulfilled in satisfying resolution of this matter.

5. I would also request that all documents regarding this activity, if it falls within the realm of government-in-the-sunshine, be removed to a public custodian for public viewing.

I, as a citizen, depend upon public officials to understand the laws and abide by the trust we place with them.
Sincerely yours,

Terrance R. L. Neal

cc: Charlie Crist, Office of Attorney General, State of Florida, The Capitol PL-01
Tallahassee, FL 32399-1050

May.09.05