Governing In The Sunshine

It is apropos that the new governor has created a new office under his administration named the Office of Open Government and begun a committee to study public access to records because it coincides with the release of information about the Pompano Beach Mayor. 

Mayor Fisher's Ethics Problems

 Lamar Fisher, who ran unopposed for Mayor at Large, last year, has been fined for ethics violations while serving on the Pompano Beach City Commission.  He was accused of violating procedures and disclosure regulations for doing business with his own company and for benefiting from owning an interest in land that was rezoned.  His accuser was the same Pompano Beach citizen who filed the complaint against the commissioners for the Sunshine Law violation, and failed candidate for a commission seat on the beach, occupied by Kay McGinn.

 The State Ethics Board dismissed most of the charges but did fine him more than one thousand dollars ($1,000) for the violations.  Mr. Fisher has stated that neither he nor his company benefited from his sale of city owned property that his company auctioned.  As for the real estate rezoning Mr. Fisher abstained from voting on the rezoning.  The implications for Mr. Fisher are not great.  In combination with his meeting with the Sheriff it shows his disdain for the laws and regulations, as the ethics charges show he used his company to sale city property on several occasions. It also raises the question of where was the city attorney while these activities were ongoing.

City Commission 2004

Lamar Fisher a commissioner during the events of 2004 when that Commission, along with staff members, met Sheriff Ken Jenne, at a small local restaurant for breakfast, ostensibly to discuss the mess the Broward Sheriff's Office had created in Pompano Beach by inflating crime solving numbers.  This meeting was attended, as Currents wrote at the time, by all of the commission members, including the newly elected Mayor at Large, John Rayson, George Brummer, Lamar Fisher, Susan Foster, and Kay McGinn. The story is told, that His Honor Mayor Rayson, had left the meeting early because of a court date.  The others apparently stayed the time required to be charged with a violation of the Sunshine Law. 

 The case information:  Broward County Case Number:  COCE05007108; Civil Division - County Court; Filing Date:  05/10/2005 - Case Status:  Disposition Entered. 

Sunshine Law

 The pertinent parts of Sunshine Law are listed below in a question and answer format from the State's website.

What qualifies as a meeting under the Sunshine Law?

A. The Sunshine law applies to all discussions or deliberations as well as the formal action taken by 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. [Emphasis added]. There is no requirement that a quorum be present for a meeting to be covered under the law.

Can two members of a public board attend social functions together?

A. Members of a public board are not prohibited under the Sunshine law from meeting together socially, provided that matters which may come before the board are not discussed at such gatherings.  [Emphasis added].

 Therefore the guiding principle to decide if an elected official is breaking the Sunshine Law is the phrase - discuss some matter on which foreseeable action will be taken by the public board or commission.

Other local media have reported on this recently, however it seems that some reported information is incorrect or has been spun to produce an innuendo or two. 

Three Sources

Currents went to three sources for information.  The first source was Commissioner Brummer and Mayor Fisher.  Commissioner Brummer responded to the questions prior to press deadline, but Mayor Fisher did not respond by deadline.  The second source Currents contacted was the State Attorney's Office and spoke with Tim Donnelly; Assistant State Attorney for Public Corruption and the third source was the Broward County Court Docket.

Commissioner Brummer responded that the group “did not discuss any business that would later appear before the commission.”  The implication being if no one could prove that the group discussed anything that might later be discussed by the commission then therefore no violation occurred.  Sounds familiar - if a tree falls in the forest but no one is there to hear it, did it really fall? 

States Attorney

Assistant State Attorney Donnelly stated that when the charges were pressed they had a very interesting talk with the Broward County Court (Note not the Circuit Court as reported elsewhere), as no one was sure of how to proceed.  “The case was an aberration” said Donnelly.  There were no rules for the exact proceeding so the assigned judge had to decide which rules to apply; he decided to apply Civil as opposed to Criminal rules of procedure (note that civil matters do have adjudication status as stated by other publications - that would be under criminal law). 

Under the law an unintentional Sunshine Law violation is punishable as a non-criminal second degree misdemeanor with a maximum fine of five hundred dollars. The State Attorney would however, be held to the rules of evidence and would have to prove beyond a reasonable doubt that the group had indeed discussed subjects which could be brought before the dais.

Faced with that level of required proof, the State Attorney's Office decided to offer a settlement which allowed for the defendants to acquiesce to the unintentional violation of the law and pay a fine amounting to two hundred dollars - the fine was to be routed to the individual defendant's favorite charity.  Commissioner Brummer donated to the Herb Skolnick Cultural Society.

So the defendants were not tried, nor were they adjudicated in anyway and the case was dismissed with prejudice, meaning it cannot be brought again. 

Other Cities Reviewed

Mr. Donnelly said that officials from Oakland Park were also looked at for meeting with the Sheriff, without notice or minutes being taken.  But no action was taken because there were no pending contract renewals for Oakland Park.

The main reason for the action being brought in Pompano Beach was because the BSO contract was under review at the time of the meeting.  It was ratified in September 2004; just four months after the charges were filed. 

Tax Payer Money

The bottom line here is: no one could prove what the group discussed.  And because they agreed to an unintentional violation, the City of Pompano Beach was able to pay the attorneys fees for all the defendants.  Other publications have pegged that amount at twenty-eight thousand dollars ($28,000) of tax payer monies.  More than seven thousand dollars per commissioner to spend to defend against an unintentional violation, not to mention how much the State of Florida spent on the prosecution.

The City placed itself in an awkward position, meeting secretly with the contractor while reviewing a pending contract renewal. An unintentional violation is still a violation and the meeting shows contempt for and abuse of the system as well as Sunshine Law philosophy. 

Legal Maneuverings

A review of the court docket shows that the defendants had their attorney file numerous motions which included a motion to declare the Sunshine statue unconstitutional, among others.  That does not show a contrite effort to defend against an unintentional action it is the defense one mounts when they are guilty or when they are intentionally testing the validity of the law.  And it is these actions, the many motions filed by the defendants to prove the law invalid that drove up the costs of the proceedings and it is that fact which should have prohibited the commissioners from seeking reimbursement and it should have prohibited the City of Pompano Beach from paying the attorney fees for the commissioners. 

Lessons Learned or Ignored

One hopes that the governor's efforts will set the tone for the local municipalities and that the local officials will put more effort into staying within the law instead of thumbing their noses at the philosophy of the Sunshine Law.