Documentos de Académico
Documentos de Profesional
Documentos de Cultura
CommissionerExpositoandCityAttorneySmithWhisperingSweetNothings
CITYATTORNEYSANDFLORIDASSUNSHINELAW
AplainreadingtheFloridasSunshineLawanditsinterpretationbyFloridasSupremeCourtand Attorney General indicates that city attorneys at city commission meetings are subject to the Sunshine Law, therefore their transactions with commissioners should be seen and heard by the public. However, Victoria Frigo, Senior Attorney for the MiamiDade Commission on Ethics and Public Trust, has not referred secret discussions between the city attorney of the City of Miami Beach and one of its commissioners at a public meeting to the State Attorney for investigation, stating that the law is limited to discussions between cocommissioners, and she referredtheinquirertotheAttorneyGeneralforfurtherinformation. However, state law prohibits the Attorney General from providing advice about the Sunshine Law to private persons, although she has published a manual on the subject running into several hundred pages, one page indicating that government attorneys are not exempted by attorneyclient privilege from the Sunshine Law at board member meetings with the attorneys for discussion of litigation, from which it may be inferred that discussions between attorneys andboardmembersatpublichearingssurelymustbepublicized.
Page1of2
The Attorney Generals office has not responded to our inquiry as of the end of September 2013. Governor Rick Scotts office responded on several occasions, referring us back to local officials, yet the governor did not assist the public with that referral with a letter to the Miami Dade County Commission on Ethics or to the State Attorney. The Governor has not responded toarequesttoaskforaformalOpinionfromtheAttorneyGeneralontheparticularpoint.Such opinions may be requested and given under Florida law. The alternative provided by the Governor was to hire an attorney. Apparently everyone must hire an attorney to find out what thelawisinordertoobeyit,forignoranceofthelawisnoexcuse. Confronted with the official policy of prevarication as to the meaning of the Sunshine Law, we referred the matter back to Victoria Frigo, as can be seen from the Correspondence File below, and are awaiting her response if any. The Commission on Ethics has been remiss in responding to inquiries about the conduct of the Miami Beach city attorney, who has been extremely hostile to direct inquiries and has threatened retaliation for making public record requests, therefore questions are directed elsewhere. That is not to say that he is intentionally violating the Sunshine Law in his sidebar conferences with commissioners at meetings, for he and other government attorneys throughout the state may be violating the law unintentionally as a matter of habit, wherefore our request for the Attorney Generals enlightening opinion. And there may be some case law or Attorney General Opinion permitting such conferences, which wehaveaskedforsofarinvain. ThecontextofourinquirywastheCityCommissionsdenialofdueprocessintheprocurement ofacontracttomanagethecitystennisfacilities.Cityattorneysadvisedthecommissionthatit could not arbitrarily and capriciously select the incumbent bidder, who was last on the list of fourcandidatespresentedtothecommission,unlessitthrewoutallthebids.Thereforeallbids were rejected so that the incumbent bidder could remain in possession of an interim contract and be arbitrary and capriciously chosen to continue with its decadelong mismanagement of the tennis facilities. Although the action of the commission was clearly contrary to the publics interest in a fair and reasonable procurement process, apparently the top bidder has chosen not to bring suit since legal counsel has advised that the city can pretty much do anything it wants, a notion that is borne out by a long history infrequently punctuated by court losses and arrests. Forfurthercontextualinformation,see: TennisTravestyReduxMiamiBeach www.scribd.com/doc/170934030/TravestyReduxMiamiBeach
Page2of2
FloridaAttorneyGeneralBondi
September17,2013 PamelaBondi AttorneyGeneral STATEOFFLORIDA Subject:IndependentPressInquiryReCityAttorneysandFloridaSunshineLaw HonorableMadameBondi: I have been referred to your good office by Victoria Frigo, Senior Staff Attorney for the Miami Dade Commission on Ethics and Public Trust, after I expressed doubt over her statement that, The Sunshine Law is not violated when one commissioner speaks to someone who does not serveasacocommissioneronthesamecollegiatebody.Ihadrespondedthat,Pleaseexplain why 286.011 Public Meetings and Records does not apply to conversations between a city attorney and commissioner. (3) (a) provides a fine for violation by any public officer. It would seem that the Sun of the Sunshine act should shine on those public meeting communications especiallysincethecitycharterprovidesthatacityattorneymayrecommendlegislation. Page 24 of your 2012 Government in the Sunshine Manual bears this statement under item 4. Legalmatters:
Page1of4
In the absence of a legislative exemption, discussions between a public board and its attorney are subject to s. 286.011, F.S. Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985) (s. 90.502, F.S., providing for the confidentiality of attorneyclient communications under the Florida Evidence Code, does not create an exemption for attorneyclient communications at public meetings; application of the Sunshine Law to such discussions does not usurp Supreme Courts constitutional authority to regulate the practice of law, nor is it at odds with Florida Bar rules providing for attorneyclient confidentiality). Cf. s. 90.502(6), F.S., stating that a discussion or activity that is not a meeting for purposes of s. 286.011, F.S., shall not be construed to waive the attorneyclient privilege. And see Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), stating thatall decisions taken by legal counsel to a public board need not be made or approved by the board; thus, the decision to appeal made by legal counsel after private discussions with the individual members of the board did not violate s. 286.011, F.S. There are statutory exemptions, however, which apply to some discussions of pending litigationbetweenapublicboardanditsattorney. Well, then, why not a commission as well as a board? The context of my concern is as I describedittoMs.Frigo: Last evening at 4:45 PM the City Commission of the City of Miami Beach considered the recommendations to the commission of a tennis committee who tooksealedbidsandratedapplicantsforthecontracttomanagethecitystennis facilities. The highest ranked bidder offered $120,000 per annum for the contract. The lowest ranked, the incumbent, bid $48,000. After that was revealed at the public hearing last evening, an angel [energy trader Mark Fisher] who was rumored to have flown in on his Lear Jet for the purpose, got up and promised to deposit $120,000 cash into an account for the incumbent who had bid only $48,000. Another gentleman testified that that was against the rules. (And then) it was noticed that the city attorney, whom by the Charter may recommend legislation, and Commissioner Exposito were engaged in a private talk on the dais. Exposito reportedly scoffed at the selection committee and its bidding process. Would a chat such as that possibly involve a violation of the SunshineLawordoesattorneyclientprivilegeexemptit? The outcome, Madame Attorney General, was the subversion of due process; the very process thatwasestablishedto evaluateandselectacontractor.Iaminformedthatanassistanttothe city attorney eventually testified that to select the incumbent, who was last on the list and should have never gotten onto the list presented to the commissioners, could create legal issues, and that the solution would be to toss out all the bids and let the contract remain on a monthtomonth basis with the incumbent. That was the foregone conclusion to the wasted process.
Page2of4
Whatever might have been privately said behind the dais is probably of little moment, but whetherornotsuchchatsarepermittedbylawisofgreatconsequence. Now I have no doubt that city attorneys often have private chats with commissioners behind daises at public meetings, and no one pays any attention. Attention was paid here because it was intuited or induced from scanty information that this particular city attorney may have participated in or masterminded an overall strategy to make sure that the process, established by the community represented in its committees and resolved on by the commission, was circumvented in order to retain the incumbent, whose management has been suffered despite somanybreachesofcontractovertheyearsthatitappearstherereallyisnocontract,andthat it serves at the leisure of the ruling clique and their attorneys who appear to deem themselves sovereignorabovethelaw. Of course the content of the private chat may not have been germane or may have been quite harmless to the cause of justice. But does not the Sunshine law require the exposure of all proceedings during public hearings including statements made by city attorneys to commissions? ItwaswiththatinmindthatIcontactedMs.FrigoattheCommissiononEthics(COE).Ordinary people who find it difficult to get the attention of the State Attorney have been assured by the COE of its close relationship with the State Attorney; for example, COE Director Joe Centorino was a public corruption prosecutor for Kathy Rundle, and retired state prosecutors sometimes serve as COE investigators. However, as of late, it is believed, perhaps on insufficient grounds, thatCOEstaff,andparticularlyitsdirector,haveacollegiatebiasfavoringtheMiamiBeachcity attorney. Of course very important people such as city attorneys and commissioners have direct and immediateaccesstotheStateAttorneyandgetpromptattention.Forexample,itwasamatter of hours after Miami Beach Commissioners Deede Weithorn and Jonah Wolfson were seen conversing privately on the dais last year that the State Attorney initiated an investigation into the matter with great public fanfare in the press. Eventually, in May, the State Attorney found noevidencethatpublicbusinesswasdiscussed. Itwasamatterofdeepconcernastowhofiledthecomplaintinthatcase,relatedtotheforced retirementofCityManagerJorgeGonzalezinthewakeofFBIarrests,sothattheycouldbeduly retaliated against, as has been the unofficial custom in our sunny city by the beach, but the nameofthecomplainantwaskeptsecret. As for my inquiry, it is not a complaint, but simply an attempt to clarify the Sunshine law in a particularregardforthepublicbenefit.MindyouthatIamnotagreatfanoftheSunshinelaw, butthereitis,soletusknowwhatitis. Irealizethatyourofficenormallyrespondstosuchinquiriesasthisonebyreferringtheinquirer back to the very persons whose behavior s/he begs askance of, stating that the Attorney General is not allowed to provide legal information to private citizens, thus leaving inquirers
Page3of4
and complainants without sufficient funds for legal fees in the lurch and subject to retaliations suchasmaliciousprosecutionsofcaseswhichcancost$250,000tosuccessfullydefend. The city attorney could naturally ask you for your opinion on this subject, and would not have to abide by it as law. Fat chance: our current city attorney has a thin skin and reacts hostilely withimpunitytowardpeoplewhodaretoquestionhisbehavior.Ireallyhavenobeefwithhim, but I have learned not to antagonize him with questions that he is bound to respond to with insults instead of answering as to facts and law. I only mention this in passing the buck to you soyoucanunderstandthepredicamentinwhichwefindourselveshere,notingthattheMiami DadeInspectorGeneralhasrefusedtoserveourcity,andthattheplantohavetheMiamiBeach Police Department Internal Affairs investigate allegations of official misconduct whether the officials are sworn police officers or not has been put on hold as a pipe dream and just words.Hencewearelefttobegsecretlyforfederalintervention. Perhaps you have authority to quote an AGO if one already exists, and to elaborate a little bit on the real reason why, when common sense believes public meetings should be public (meaning what is said and done can be heard and observed) influential city attorneys can conduct private conversations with commissioners or anyone else on the dais so that they cannot be heard nor recorded, and not run afoul of this law called GovernmentInThe Sunshine. Sincerely, DavidArthurWalters IndependentJournalist Cc:GovernorRickScott,Esq.
Page4of4
ITY ATTOR RNEY JOSE E SMITH ANNOUNCE A ES HE WIL LL FILE SL LAPP MIAMI BEACH CI SUIT AG GAINST IM MPOVERISH HED INDEPE ENDENT SO OUTH BEA ACH JOURN NALIST Asked fo or his Source e of Income Statements, S Smith threat tens to sue David D Arthur r Walters August 31, 3 2013 UPD DATE Septe ember 12, 20 013 MIAMI BEACHIn B n a response e to a public records requ uest for his Source S of Inc come Statem ments, Miami Beach B City Attorney A Jose Smith yes sterday anno ounced in an n August 30email direct ted to City Cler rk Rafael Granado, G and d Maria Moy ya Denham, whose role in the matte er is unknow wn at press tim me, and to ind dependent jo ournalist Dav vid Arthur Walters, W that he intends to sue Walter rs for defamation. Ralph, In I preparatio on for a def famation law wsuit against t Davie (sic) ) Walters, pl lease provid de me with cop pies of all public record d requests he h has ever made about t me, as well as all lob bbyist registrati ion forms or r disclosures he has ever r filed with your y office while w lobby on behalf of o any city empl loyee or property owner r over the las st 5 years. In n addition, I would like to t see any an nd all occupatio on licenses, business tax x receipts or permits eve er issued to him h on any property p he owns or contro ols. Specifica ally, please forward f any documents showing s him m to do busin ness in the city as a journa alist. I am happy h to pa ay in advanc ce for the co osts of this request. r Tha ank you for your cooperati ion. Jose I feel lik ke an indepe endent journ nalist feels in n Cuba, Walters W said in n a written statement, s w when he asks questions q of the Castro regime. r Inste ead of simpl ly respondin ng to a quest tion with wh hether or not he e as a city attorney a is required r by law to file Source S of In ncome State ements, whic ch he should know k since he h is a law wyer, he reso orts to chara acter assassi ination. He does that in his official City C Attorney y email, as if such condu uct is within n the scope of o his duties, then he wan nts to take off his h City Atto orney Hat an nd put on his s personal ha at. I notice ed that his an nnouncemen nt referred to o me as a jo ournalist in quotes, i.e., as a journa alist, and he do oes so to ind dicate that I am independ dent inasmuch as I do no ot conform to t his dictate es. At least pow werful city attorneys a he ere cannot have h journali ists thrown in prison fo or making public p
Pa age1of18
record requests, advocating better government, and opining on their conduct, but they can try to dig out something to have them charged, say, for not registering as a lobbyist. In that regard, he cannot understand that something besides gold motivates activist journalists. I have not received a penny for my pro bono activism from anyone. My understanding of the county ethics code is simply that all city attorneys and their assistants are supposed to file Source of Income statements. Maybe they can file something somewhere else as a substitute, and I would like to know that if it is true. If true, the substitute should be filed with the city attorney and time and date stamped with then others. What lobby registration or business licenses or anything I say has to do with his requirements for filing financial disclosures is a mystery except that he is seeking some information to retaliate against me for asking for that public record. I say without reservation that Jose Smith must go, he must retire with whatever honors he has, for he is the vestige of the old regime of government by intimidation under threat of retaliation. The public records request that aggravated Smith to make his threat has a fascinating history, hailing back to an effort by Smith to have two special magistrates fired. Walters reported on a legal oversight committee meeting held on the matter last year, with his article Showdown at High Noon, Miami Beach City Attorneys versus Special Masters. After the meeting he asked for a biography of one of the antagonists, Senior Assistant City Attorney Alexandr Boksner, the only attorney whose information did not appear on the city website at the time. As a former State prosecutor and Police Legal Advisor, his biography and other personal information is exempt from public disclosure, responded Smith. City Clerk Rafael Granado quoted public record law to the contrary, but no biography was provided in response to the public record request. As it was, Boksner has applied for a job with another government entity that posted the information online, so that information was used by Walters. The office of the city clerk did provide Walters with a copy of Boksners Source of Income Statement for the year 2011, stamped Received by the City Clerks Office on July 2, 2011, along with his May 15, 2012, letter to Smith memorializing their conversation regarding his outside employment with the Coral Gables Police Department, and adding that he was also serving as a special magistrate for the Town of Surfside. Subsequently, on September 5, 2012, Walters filed a public records request with the city clerks office, which we have retrieved: Ms. Beauchamp, thank you again for your speedy fulfillment of PRR 7020 (attached). In my experience, the City Clerks Office always provides excellent public records services. I cannot begin to tell you how much difficulty I and my colleagues have had elsewhere in getting the simplest requests answered. Your swift response has attracted further strong interest in the city attorneys personnel policies. I intend to ask the city attorney a few polite questions based on my HR director experience, but to do so intelligently, I shall first need 1) the same information that you provided me for Mr. Boksner on all the attorneys in his office, including Mr. Smith, i.e. declarations of outside employment, and 2) the last report on compensation including benefits of all those attorneys. I recall seeing a report somewhere on the website but do not recall how to get it. Thank you. David Arthur Walters
Page2of18
September 18, 2013 Subject:IndependentPressInquiryReCityAttorneysandFloridaSunshineLaw Dear Mr. Walters: Thank you for contacting Governor Rick Scott's Office. The Governor appreciates your concerns and asked that I respond on his behalf. Our government is structured on the principle that local communities can best assess the needs of their residents. Voters elect their county officials to manage local government business. Those dissatisfied with local officials' performance can always make their views known directly to those officials. I understand you shared your concerns with your local government and local ethics office. That was the appropriate thing to do. Under Florida law, violations of the conflict of interest laws fall within the jurisdiction of the Florida Commission on Ethics. Those who wish to file a complaint with the commission, can obtain a complaint form on the commission's Web site at www.ethics.state.fl.us. For further assistance, you may wish to contact the commission by calling (850) 488-7864, or by writing to Post Office Drawer 15709, Tallahassee, Florida 32317-5709. Those with allegations of crimes and misconduct by public officials should bring their information and evidence to the attention of law enforcement and the state attorney in the local jurisdiction where they believe crimes are taking place. Each state attorney is an elected official
Page1of2
charged with certain discretionary duties, including the duty to determine whether or not to prosecute any particular crime committed within his or her jurisdiction. This decision is based on the quality and quantity of the evidence of guilt shown, and in the best interest of justice. Law enforcement agencies and the state attorneys operate independently of the Governor's office. As elected officials, they answer to the voters of their individual jurisdictions. Contact information can be obtained online. I understand you shared your concerns with the Florida Department of Legal Affairs; however, it is my understanding the Attorney General and the Department do not provide legal opinions to private citizens. If you have legal questions, you should seek legal counsel from a licensed attorney. [$250/hr] Thank you again for taking the time to contact the Governor's Office. We hope this information is helpful. Sincerely, Warren Davis Office of Citizen Services Executive Office of the Governor
Page2of2
19 September 2013 Warren Davis Office of Citizen Services Executive Office of Governor Rick Scott STATE OF FLORIDA Tallahassee, Florida Subject: A Fair Game of Tennis in the Sunshine Dear Mr. Davis: Thank you for responding to my letter to Attorney General Pamela Bondi, wherein I asked her for her advice on whether or not Floridas Sunshine Law requires the exposure of all transactions during public hearings, including conversations between city attorneys and city commissioners, such as the secret conversation on the dais between a commissioner and the city attorney at the September 11, 2013, hearing on sealed bids made pursuant to a request for proposals to manage the tennis centers of the City of Miami Beach. Some background is required for Governor Scott to understand why I believe his personal attention to the Sunshine Law in this matter is important to the welfare of our state. As an attorney himself, I know that our governor, if not offended by my rather common opinion on lawyers, will find some merit in my thoughts regardless of the technical issue I have raised as pretext for contributing to the greatest of conversations. You may have heard that the City of Miami Beach, once a notorious refuge for mobsters, was recently subjected to yet another embarrassing corruption scandal with several F.B.I. arrests of city employees. The city manager was forced to retire after thirteen years of serving the entrenched bureaucracy. He was scapegoated for conducting business-as-usual, which included, according to reformers, alleged hanky-panky over city contracts involving a subversion of due process, which should provide a fair and orderly method for awarding city contracts. His main fault in my opinion was his arrogance. It was as if he were above the law as a sovereign city boss; however, as his fate proved, he was ultimately only the manager. Last week Bal Harbour, with an eye on real estate development, hired him as its city manager. It is said that
Page 1 of 6
Page 3 of 6
Attached: Letter from Governor Scotts office (below) Edna Jane Favreau and Charlie Crist, Equal Justice Under the Law Denied http://www.scribd.com/doc/39328801/Edna-Jane-Favreau-and-Charlie-Crist I Was In The Wrong Court by Edna Jane Favreau. Chances are you will be divorced and then one of
you will have an even greater chance of getting hurt because you cannot afford a lawyer http://www.scribd.com/doc/39010159/I-Was-in-the-Wrong-Court-by-Edna-Jane-Favreau
September 18, 2013 Dear Mr. Walters: Thank you for contacting Governor Rick Scott's Office. The Governor appreciates your concerns and asked that I respond on his behalf. Our government is structured on the principle that local communities can best assess the needs of their residents. Voters elect their county officials to manage local government business. Those dissatisfied with local officials' performance can always make their views known directly to those officials. I understand you shared your concerns with your local government and local ethics office. That was the appropriate thing to do.
Page 5 of 6
Page 6 of 6
September24,2013 WarrenDavis OfficeofCitizenServices ExecutiveOfficeoftheGovernor Mr.Davis, Thankyouverymuchforyourresponse. Is it within the constitutional power of the Governor to ask the Attorney General to give her reasoned opinion as to whether or not Florida's Sunshine Law applies to discussions between cityattorneysandcitycommissionersonthedaisatpubliccommissionmeetings? Verytrulyyours, DavidArthurWalters NOTEFLORIDASTATUTES 16.01(3) Notwithstanding any other provision of law, shall, on the written requisition of the Governor,a memberof theCabinet,theheadofadepartmentintheexecutivebranchofstate government, the Speaker of the House of Representatives, the President of the Senate, the Minority Leader of the House of Representatives, or the Minority Leader of the Senate, and may, upon the writtenrequisition of a memberof the Legislature, other state officer, or officer ofacounty,municipality,otherunitoflocalgovernment,orpoliticalsubdivision,giveanofficial opinion and legal advice in writing on any question of law relating to the official duties of the requestingofficer. 16.08 Superintendenceanddirectionofstateattorneys.TheAttorneyGeneralshallexercise a general superintendence and direction over the several state attorneys of the several circuits as to the manner of discharging their respective duties, and whenever requested by the state attorneys,shallgivethemherorhisopinionuponanyquestionoflaw. 16.09 Regulations as to the reports of state attorneys.The Attorney General shall prescribe the time and manner in which regular quarterly reports shall be made to him or her by state attorneys,andtheyshallcomplywiththeAttorneyGeneralsinstructionsinthisrespect. History.s.3,ch.2098,1877;RS91;GS94;RGS108;CGL132;s.49,ch.95147.
Page1of2
September24,2013 DearMr.Walters: ThankyouforcontactingGovernorRickScott'sOfficeandclarifyingyourconcerns.Althoughwe appreciate the opportunity to respond, as indicated in previous correspondence, the Governor doesnotadministerlocalgovernmentsandtheGovernorisunabletoprovidealegalopinion. TheGovernor'sofficeisunabletointerveneinissuesthatshouldberesolvedthroughthecourt system. You are correct that those with complaints about locally appointed officials should bring their concernstotheattentionoflocallyelectedofficials.TheGovernordoesnotadministerlocallaw enforcement agencies and the Attorney General does not administer the offices of locally electedstateattorneys.Thosewithallegationsofcrimesshouldbringinformationandevidence to the attention of law enforcement in the local jurisdiction where they believe a crime occurred. The elected state attorney in your judicial circuit makes the decision whether or not toprosecuteanyonewhomaybeguiltyofacrimecommittedinthatcircuit. Those who are unhappy with a ruling or feel acase has not been handled according to the law, should speak with an attorney about what appellate procedures may be available. The person who can best answer your legal questions is an attorney. If you need assistance in locating an attorney,pleasecalltheFloridaBar'sReferralServiceat18003428011. It is notable that Attorney General Pam Bondi is a statewide elected official who has administrativeauthorityovertheFloridaDepartmentofLegalAffairs.TheDepartmentisnotan executive agency under the administration of the Governor and the Attorney General's Office doesnotadministertheofficesoflocallyelectedstateattorneys. Your best source of assistance for issues that should be resolvedthrough the court system is to consult a licensed attorney. We are sorry we are unable to be of further assistance. Please knowthisisduetoalackofjurisdiction,notalackofconcern. Thankyouagainforwriting. Sincerely, WarrenDavis OfficeofCitizenServices ExecutiveOfficeoftheGovernor
Page2of2
26 September 2013 Victoria Frigo Senior Staff Attorney MIAMI-DADE COUNTY COMMISSION ON ETHICS AND PUBLIC TRUST Miami, Florida Subject: Sunshine Law Application to City Attorneys at Commission Meetings Dear Ms. Frigo: I have taken your advice and have re-visited Florida Attorney General Pamela Bondis website. It appears that your opinion, that The Sunshine Law is not violated when one commissioner speaks to someone who does not serve as a cocommissioner on the same collegiate body, is erroneous. You will recall that the context of my inquiry involved private discussions held on the dais by the city attorney for the City of Miami Beach with one of its commissioners during a regular public meeting of the commission. Several people witnessed the two conversing privately offmicrophone during the meeting. I asked if the private chat was subject to the Sunshine Law or if it was protected by attorney-client privilege. It appears from the record that such conversations are indeed covered by the Sunshine Law, are not subject to attorney-client privilege, and should be heard and recorded as public record, at least according to the Florida Supreme Court and the Attorney General. The only question, settled long ago in the affirmative, has been whether a meeting by a council with its city attorney to discuss pending litigation is subject to the law. Page 24 of the Attorney Generals 2012 Government in the Sunshine Manual bears this statement under item 4. Legal matters: In the absence of a legislative exemption, discussions between a public board and its attorney are subject to s. 286.011, F.S. Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985) (s. 90.502, F.S., providing for the confidentiality of attorneyclient communications under the Florida Evidence Code, does not create an exemption for attorneyclient communications at public meetings; application of the Sunshine Law to such discussions does not usurp Supreme Courts constitutional authority to regulate the practice of law, nor is it at odds with Florida Bar rules providing for attorneyclient confidentiality). Cf. s. 90.502(6), F.S., stating that a discussion or activity that is not a meeting for purposes of s. 286.011, F.S., shall not be construed to waive the attorneyclient privilege. And see Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), stating that all decisions taken by legal counsel to a public board need not be made or approved by the board; thus, the decision to appeal made by legal counsel after private discussions with the individual members of the board did not violate s. 286.011, F.S. There are statutory exemptions, however, which apply to some discussions of pending litigation between a public board and its attorney.
Page1of3
In Neu v Miami Herald, the Court agreed to declare on the issue because it was of great public importance: Because of the continuing significance of the issue, the court certified the following question of great public importance: Whether the Sunshine Law applies to meetings between a City Council and the City Attorney held for the purpose of discussing the settlement of pending litigation to which the city is a party. State ex rel. Reno, 434 So.2d at 1036. We answer the question affirmatively and approve the decision of the district court. The petitioners wanted the Court to construe 286.011 narrow and hold that it applies only to the meetings where official actions and acts are approved by the governing body. The Court, as we can see, refused, therefore the same rule applies to all meetings. The Courts broad construction was cited in the Florida Attorney General Robert A. Butterworths Advisory Legal Opinion, Number AGO 97-61, dated September 15, 1997, in respect to conversations with school board members with a school board attorney: In sum: 1. Discussions regarding school business between individual school board members and the school board attorney are not attorney-client conversations and, therefore, are not privileged communications. 2. A school board attorney may memorialize, in writing, any conversations with an individual school board member or the superintendent. These documents are public records subject to inspection and copying pursuant to section 119.07(1), Florida Statutes (1996 Supplement). 3. No violation of any constitutional due process or privacy right of either the custodian or the subject of public information would occur if such information is discussed or considered by the school board attorney and the board members and the superintendent. ... The Government in the Sunshine Law has been construed to apply to all meetings between governmental agencies and their attorneys. In 1993, the Legislature enacted a specific exemption from the open meetings requirement of section 286.011(1), Florida Statutes, for meetings between an entity's attorney and certain designated individuals to discuss settlement negotiations or strategy sessions related to litigation expenditures. However, as this office recognized in Attorney General's Opinion 95-6: "Section 286.011(8), Florida Statutes, does not create a blanket exception to the open meeting requirement of the Sunshine Law for all meetings between a public board or commission and its attorney. The exemption is narrower than the attorney-client communications exception recognized for private litigants. Only discussions on pending litigation to which the public entity . . . is presently a party are subject to its terms. Such discussions are limited to settlement negotiations or strategy sessions related to litigation expenditures."
Page2of3
These opinions support the previous objection I made to your opinion to the contrary, and objection based upon my laymans understanding of the intent of the legislation after a plain reading of the statute itself, to which I believe attorneys should directly go to before considering anything people might say about it. Perhaps you have available some higher authority to support your opinion given your expertise, experiential wisdom, and research tools, and would like to reveal what it is instead of further reference to the Office of Attorney General. That would dovetail with the Ethics Commissions core purpose of educating the public. The Ethics Commission, or rather its staff, advertises that it will consider issues outside of its narrow jurisdiction, and, if it suspects some law has been violated, will refer the matter to the State Attorneys Office, to which it has special access. As you probably know, the Attorney General is precluded by law from rendering a legal opinion to private parties, and normally refers all questions back to the very local authorities who are not inclined to answer questions or to beg askance of the Attorney General on the instant issue. I went down that road and was run around the bush. Or the Attorney General naturally advises the inquirer to hire an attorney. The Florida Bar kindly sent me a September 16, 2013, article published by the Herald-Tribune, entitled, Learning about Sunshine - Public officials should take time to study Florida's opengovernment laws. The bottom line is, Nothing beats expert advice from a lawyer. So, the Sarasota County Bar Association is teaming with the Florida attorney general's office to provide a local workshop on the laws. Attorney Pat Gleason, the attorney general's special counsel for open government, will lead a learning session in Sarasota on Oct. 11. Non-lawyers like me generally do not have the means or the privilege of attending such workshops, yet everyone concerned should know what the law in order to abide by it whether they have a monopoly on practicing law or not. I am told that an attorney specializing in Sunshine Law may cost the inquirer from $250 - $500 per hour. In conclusion, I pray that you will provide some superior authority than your word to support your opinion that city attorneys may have secret conversations on the dais with city commissioners, as was witnessed in Miami Beach, without violating the Sunshine Law. Or, if you agree with my lay understanding of the information available to me, to take such steps as necessary to have it confirmed or denied by the Attorney General so that the correct interpretation of the law may be published far and wide. Sincerely, David Arthur Walters Cc: Governor of the State of Florida The Florida Bar Attorney General of the State of Florida
Page3of3
October17,2013 WarrenDavis OfficeofCitizenServices ExecutiveOfficeoftheGovernor Subject:CantheGovernorasktheAttorneyGeneralforherOpinion? DearSir: I have not received a response from you to my September 24 letter inquiring whether or not Governor Scott has the constitutional power to ask the Attorney General for her reasoned Opinion as to whether or not Florida's Sunshine Law applies to discussions between city attorneysandcitycommissionersonthedaisatpubliccommissionmeetings. ItappearsthattheFloridaStatutesprovidethattheGovernormayaskforsuchanOpinion: 16.01 Residence, office, and duties of Attorney General.The Attorney General (3) Notwithstanding any other provision of law, shall, on the written requisitionoftheGovernor,amemberoftheCabinet,theheadofadepartment in the executive branch of state government, the Speaker of the House of Representatives, the President of the Senate, the Minority Leader of the House of Representatives, or the Minority Leader of the Senate, and may, upon the written requisition of a member of the Legislature, other state officer, or officer ofacounty,municipality,otherunitoflocalgovernment,orpoliticalsubdivision, giveanofficialopinionandlegaladviceinwritingonanyquestionoflawrelating totheofficialdutiesoftherequestingofficer. Since no authority has said otherwise on request, I assume that an explicit Opinion on the question has not yet been rendered. Except for the denial by the senior counsel for the Miami Dade Commission on Ethics and Public Trust, which promises to forward information on violations of law to the local State Attorney office, all the information I have been provided on the subject, including the pertinent statute, the Attorney Generals Manual, and case law, supportthenotionthattransactionsbetweencityattorneysandcitycommissionsorcouncilsat publicmeetingsareindeedsubjecttotheSunshinelaw. The Supreme Court of Florida, in Neu v. Miami Herald Publishing Company, Case No. 61451, January 17, 1985, recognizing that a similar question was of great public importance, held that meetings between city attorneys and councils discussing litigation are subject to the Sunshine Law:
Page1of2
Because of the continuing significance of the issue, the court certified the following question of great public importance: Whether the Sunshine Law applies to meetings between a City Council and the City Attorney held for the purpose of discussing the settlement of pending litigation to which the city is a party. State ex rel. Reno, 434 So.2d at 1036. We answer the question affirmativelyandapprovethedecisionofthedistrictcourt. It is reasonable to infer that regular meetings, not involving litigation, are also subject. However, since the city attorneys, city commissioners who are attorneys themselves, and county ethics attorneys obviously disagree with the inferences made from that case, a plain reading of the statute, and the Attorney General Manual, it appears from my perspective as a navelaymanthatitisofgreatpublicimportancethattheAttorneyGeneralprovideanOpinion preciselyonpointtobolsterthelaggingpublictrust. Wherefore I pray that Governor Scott will put the question asked to Attorney General Bondi, notwithstanding the boilerplate policy of Florida governors not to answer to ordinary private citizens when they are rebuffed or apparently misinformed by local officials when asked about the meaning of the law all officials are supposed to obey, referring them back to those local officials,whooftenrecalcitrantandsometimeshostiletowardscitizensbeggingaskanceoftheir conduct, or to recommend that private citizens hire attorneys at great expense since attorneys answer only to themselves unless retained, or to file a complaint when a complaint might not be warranted if the law were understood by everyone concerned and therefore followed, et cetera. Thankyouinadvanceforyourassistance. Verytrulyyours, DavidArthurWalters cc:PamelaBondi,AttorneyGeneral
Page2of2
Page1of2
Page2of2
23October2013 VictoriaFrigo SeniorStaffAttorney MIAMIDADECOUNTYCOMMISSIONONETHICSANDPUBLICTRUST Miami,Florida FollowUp:ApplicationofSunshineLawtoCommissionerConversationswithCityAttorneys Ms.Frigo: I have not received a response from you to my 26 September letter asserting that you may have been mistaken in your legal opinion that transactions between city commissioners and city attorneys on the daisatpublicmeetingsarenotsubjecttoFloridasGovernmentintheSunshinelaw. For example, City Commission Jorge Exposito and City Attorney Jose Smith were captured on video whispering to one another at 5:33:05 PM at a City Commission Meeting held on 11 September. A still image of that evidence is attached. In addition, witnesses observed them engaged in an inaudible conversationoutsideoftherangeofthecamera. The matter at hand was the consideration of bids for the contract to manage the citys tennis facilities. What transpired at that meeting was, in the opinion of objective observers, a typical example of maladministration and dysfunctional government. A sneaky, unreasonable and arbitrary maneuver was made to deny due process in direct contradiction to the spirit of Floridas law guaranteeing a fair andreasonableprocurementprocess. What transpired between the city attorney and city commissioner on the dais was of great importance to the public and should have been on the public record. It is reasonable to suppose that they were not talkingaboutwhattheyhadforbreakfast. Page1of2
Page2of2
On9/13/13,Frigo,Victoria(COE)<FRIGOV@miamidade.gov>wrote: I'vecopiedthefollowingquotefromtheAG'swebsiteat http://myfloridalegal.com/pages.nsf/Main/321B47083D80C4CD8525791B006A54E3 Whatqualifiesasameeting? TheSunshinelawappliestoalldiscussionsordeliberationsaswellastheformalactiontakenby a board or commission. The law, in essence, is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission. There is no requirementthataquorumbepresentforameetingtobecoveredunderthelaw. Ms. Frigo. Thank you very much. The quote you sent along is only part of the literature on the subject;therestsupportsmyperspective.Pleasefindattachedafileincludingthesilenceofthe AttorneyGeneralandtheGovernor'savoidanceontheQuestion.ItoccurredtomethatifState AttorneyKathyRundlegaveheropinionandmadeaformalrequesttheAttorneyGeneralmight consider giving a formal Opinion. Has the State Attorney's office already rejected the issue? DavidArthurWalters Cc:GovernorRickScott<Rick.Scott@eog.myflorida.com> Cc:DOSS.VIRLINDIA@leg.state.fl.us, Cc:Sunburstsunburst@eog.myflorida.com On Wed, Oct 23, 2013 at 1:27 PM, Frigo, Victoria (COE) <FRIGOV@miamidade.gov wrote: Mr.Walters, Peryourrequest,yourquestionhasbeenforwardedtotheStateAttorneyGeneralsoffice.
October 28, 2013 Jorge Exposito, Commissioner CITY OF MIAMI BEACH Miami Beach, Florida Subject: City Attorney Jose Smiths Memorandum of Law on Floridas Government -in-theSunshine Law Dear Sir: I congratulate you for making your inquiry into the question as to whether or not Floridas Sunshine Law applies to transactions between city commissioners and city attorneys on the dais at public meetings of the city commission. Your question was posed because I asked the same question of higher authority since it is of great public importance. The whisperings between your good self and the estimable city attorney Jose Smith at the Sept. 11, 2013 commission meeting are merely incidental to the question. I believe that that inaudible transaction and yet another one off camera behind the dais violated at
Page 1 of 10
Page 3 of 10
Page 6 of 10
Page 8 of 10
CC: TO CITY CLERK RAFAEL GRANADO Please place this response to Mr. Smiths Legal Memorandum on the Public Record as a Letter to the Commission
Page 10 of 10
Page 1 of 3
Page 2 of 3
REPORT http://www.scribd.com/doc/179611825/Response-to-Miami-Beach-City-AttorneyLegal-Memo-on-Sunshine-Law
Page 3 of 3
ViolationofFloridaGovernmentintheSunshineLawreporttoSAO
October29,2013 Florida Attorney General Pam Bondi received your email and asked that I respond. In Attorney General Opinion 71159, this office advised that discussions of public business which are audible only to a "select few" who are at the table with the board members may violate the "openness" requirement of the Government in the Sunshine Law, section 286.011, Florida Statutes. Compare Citizens for Sunshine, Inc. v. City of Sarasota, No. 2010CA4387NC (Fla. 12th Cir. Ct. February 27, 2012) (two members of a civil service board violated the Sunshine Law when they held a private discussion concerning a pending employment appeal during a recess of a board meeting). Ultimately, concerns with violations of the Government in the Sunshine Law should be addressed to the State Attorney for the jurisdiction in which the public meeting at which an alleged transgression occurred. Thank you for contacting Attorney General Bondi's Office. LagranSaunders AssistantAttorneyGeneral DavidArthurWalters<davidarthurwalters@gmail.com>Tue,Oct29,2013at10:32AM To:pambondi<pam.bondi@myfloridalegal.com>,GovernorRickScott <rick.scott@eog.myflorida.com>,DOSS.VIRLINDIA@leg.state.fl.us DearLagranSaunders: Thank you very much for your service and the fascinating citation. I have heeded your advice and forward the matter to State Attorney Katherine Fernandez Rundle for handling. I had avoided do that because it appeared to me there was nothing specifically on point, therefore I askedGovernorScotttoaskforaformalAGO. I understand that the city attorney is planning to retaliate against me for asking the question; therefore,ifthereisanythingyourofficecandotospeeduptheStateAttorney'sreview. AttachedheretoaretheattachmentssenttotheSAO.Yours,
DavidArthurWalters From:DavidArthurWaltersmiamimirror@gmail.com Date:Tue,Oct29,2013at10:11AM Subject:ViolationofFloridaGovernmentintheSunshineLawreporttoSAO To:CommunityOutreach@miamisao.comandKatherineFernandezRundle@miamisao.com October29,2013 KatherineFernandezRundle,Esq. STATEATTORNEY MiamiDadeStateAttorneysOffice Miami,Florida Subject:ViolationofFloridasGovernmentintheSunshineLaw Madame: Attached you will find a snapshot of public video evidence that City Attorney Jose Smith and City Commission Jorge Exposito of the City of Miami Beach violated the Sunshine Law at a publicmeetingoftheCityCommissionheldonSept.11,2013,bywhisperingtooneanotheron thedaisduringthemeetingoutofearshotoftheothercommissionersandthepublic. It is my information and belief that Mr. Smith was advising Mr. Exposito on an apparently unlawful strategy to deny a highly qualified bidder of due process in the procurement of a contract for the management of the citys tennis facilities so that it could be, in effect, arbitrarily, unreasonably and capriciously awarded to the insolvent company currently in possessionofthefacilities. Commission Michael Gngora, Esq., defined the strategy, taken and approved by the majority after Mr. Exposito made a crucial but specious argument for tossing out all the bids so that the unqualifiedcompanycouldberetained,assneaky. AttachedismyTravestyreportinwhichyouwillfindfurthercontext. ItiscrystalclearfromChapter286oftheFloridaStatutes,commonlawdecisions,andAttorney Generalopinionsthat1)thecommissionhearingwasapublichearingsubjecttotheSunshine Law, 2) the city attorney is a local public official, who under the city charter can make recommendations on legislation, and to whom the Sunshine Law applies, 3) that the city and
thecityattorneydidnothavethebenefitofattorneyclientprivilegeduringthepublicmeeting, therefore the other commissioners and the public were entitled to hear or to read a verbatim transcript of their conversation in order to have sufficient information to hold the officials accountablefortheirperformance. Iamstandingbytoreportonwhateveractionyoutakeifanyonthisapparentviolationoflaw. Verytrulyyours, DavidArthurWalters IndependentJournalist miamimirror@gmail.com Attachments: Imageofcityattorneyandcommissionerwhisper TravestyReduxMiamiBeach AveriguarConfidentialReporttoLEOwith2012TaxReturn ThislettertoMadameRundle 4attachments SmithandExpositoConfering.jpg101K 20131029WalterstoRundlereSmith&ExpositoViolation.pdf258K TravestyReduxMiamiBeach.pdf6668K AveriguarwithTaxReturn.pdf2919K Mr.SaundersrepliedthattheAttorneyGeneralOfficecannotinterfereintheStateAttorney process.