A day without Florida Sunshine is like, you know, Night

photography by Janak Skarzynski

In the last two days, the Palm Beach Post has opined on two separate allegations of Sunshine Law violations by the West Palm Beach City Commission and the West Palm Beach City administration. Allegations about Sunshine Law shenanigans get tossed around here in Lake Worth with alarming frequency and I thought we might find a "teachable moment" in what's happened in WPB in the last month. There are two parts to the Sunshine Laws,  Section 119 which speaks to Public Records and Section 286 which speaks to open government meetings. The recent events in WBP speak to each of these.

The first WPB incident occurred three weeks ago and involves a Senior Planner in the City's Development Services department. In response to an email from a resident questioning the removal of 22 mature oak trees from a gated community, the Planner attached a city report that backed up the City's earlier refusal to allow the trees to be cut down. A later report from a new building official offered a different conclusion and was the basis for the revised decision to allow the oak trees to be cut down and replaced with palm trees. 

The details of the incident are interesting, but irrelevant. The Planner was recommended for termination for "releasing confidential city information" but after the incident became public, she ended up with a week's suspension instead. Here's the problem:

There are very few and very very specific types of information that any government agency in the Sate of Florida can withhold from the public based on "Confidentiality".  It might be embarrassing to the City to have two reports at such odds in their conclusions, but embarrassing and conflicting information on oak tree roots is not a sound basis for claiming one of very few exemptions allowed under the Public Records Act. Allowed exceptions relate to certain health information, victims of child abuse and like that. Even then, if anyone requests public information and it happens to fall under one of the strict confidentiality exemptions, the agency from whom the information was requested, MUST site chapter and verse of the exemption as it's specified in State law. 

Now, the Mayor of WPB, is saying that the language used in the recommendation to terminate and later to suspend the employee, "releasing confidential city information" was "badly worded". I'll say! And yet the employee was suspended for week. How likely do you think it is that any other employees will be as forthcoming in responding to residents' inquiries after that? 

As expansive as our Public Record Act is, and there are plenty of Attorney General Opinions that spell out how broadly the law must be applied, there is still plenty of wiggle room for government agencies to withhold that which they want withheld. For example. If you request, say a list of all the lawsuits currently pending in which the City of Lake Worth is involved, you may be told, "Sorry, there is no list and therefore there is nothing to disclose." "Ok",  you say, Can you make a list and let me have that?"  "Sure, but you'll have to pay for the administrative time it takes to research, look for and redact confidential information, like Social Security  numbers that might be part of the file and create the list you want. That could be upwards of $30 an hour for something a junior level staff person can do and upwards of $80 an hour if it's something only a senior level staff employee can do and that's only if there is a staff person available to do it."

For the Public Records Act to mean anything, there must be a resolute policy to comply as broadly and transparently as possible. No one wants City staff to spend hours and hours creating documents that don't exist, especially if we have to pay for the time it takes to create those documents. However, if a specific and lawful request, like the one I've posed here, is made numerous times by numerous members of the public, and by elected officials, it seems to me that document ought to be created and made available in the spirit, if not the letter, of the Public Records Act.

OK. Moving on to the next incident in WPB. The second allegation of Sunshine "misconduct" has to do with a closed door meeting by the WPB City Commission held to discuss the City Auditor's office. The meeting was not noticed, not open to the public and no minutes were taken. That kind of action flies in face of Section 286 - the Government in the Sunshine Act. 

There simply are no conditions under which the people's business can be conducted that the public may be excluded from, except under very specific conditions, ie, discussions related to the cost of pending litigation. Even then, verbatim minutes must be taken and made available to the public when the litigation is concluded. Staff can have meetings that are limited to staff, but when two or more elected officials are involved, the public has to be notified and allowed to attend, whether any votes are taken or not. Period. 

I simply cannot understand how such a meeting was ever allowed to take place. The Sunshine Laws are not complicated and there is just no excuse for any elected official not to know what's lawful and what's not. If there is uncertainty about Sunshine among public officials, I guarantee there is even more among the public. I've often suggested a yearly public forum to educate newly Electeds, formerly Electeds, Senior Staff employees and the Public about the  incredible and precious Government in The Sunshine Laws we are so blessed to have here in Florida. Lake Worth could set a precedent for other cities, like WPB, to emulate.