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Made in the shade

By Staff | Oct 8, 2020

Why do public officials violate the state’s so-called Sunshine Laws?

Because they can.

Yes, the dual right of Floridians to be present when the public’s business is discussed and to have access to related records is embedded in the State Constitution. Yes, Florida’s public records laws date back to 1909 with the Sunshine Statutes themselves codified and broadened in 1967. And yes, officials who meet outside of noticed meetings to discuss issues they may vote on, who wheel and deal behind closed doors, who think public records are gov’ment records — i.e. theirs alone until their actions are all but fait accompli — are subject to citations and fines, or even criminal charges that can carry jail time.

But the reaction when the laws designed to protect the public’s right-to-know are violated?

Pretty much, eh, who cares.

The Sunshine Statutes are the laws public officials love to hate. Too often they are viewed as an impediment to “getting things done” — which is why there are now 1,159 and counting exemptions to the mandates that once made Florida the most open government state in the nation.

At least on paper.

In the real world, the state’s open meetings and public records laws are hard to investigate because the violators are well, often the only direct witnesses. In terms of prosecutions, Sunshine violations, criminal or not, are rare.

And the penalties?

What penalties.

Case in point.

A Florida Department of Law Enforcement summary of an investigation into alleged such improprieties by a Cape official recently was filed with the Lee County Clerk of the Courts in advance of a hearing into the probe’s lone finding of possible violation — that Mayor Joe Coviello had improperly initiated two conversations with fellow members of the Cape Coral City Council.

This component of the state investigation started with a fairly serious allegation — that the mayor had, in two instances last December, offered favors in exchange for support for matters expected to come to a vote before Council.

Efforts to establish that Mayor Coviello had engaged in “quid-pro-quo” were not fruitful and did not result in any such charges. The mayor denied the allegations and, while the two Council members confirmed conversations, one said no exchange had been proffered. The other said Mayor Coviello subsequently apologized “for putting her on the spot, realizing that he had made a mistake,” adding she did not think the action was worth serious pursuit. She declined an FDLE suggestion that she try to set up and record a follow-up conversation.

FDLE investigators did find, however, that there was evidence to support that the Sunshine Law statute that forbids the discussion of issues that may come to a vote had been violated — and severely so.

“It has been established that the areas of discussion had during these conversations, the City Manager’s job performance, the vacant City Council seat, and the Mayor-pro-tem position were all matters to be heard by the Council. In fact, all of these matters have subsequently come before the Council and were voted on. While there are different interpretations of the conversations, they do appear to have occurred,” an FDLE memo related to the investigation states.

“Under the provisions of the Sunshine Law, these conversation(s) should have been, (1) open to the public; (2) reasonable notice of the meeting(s) should have been given, and (3) minutes of the meeting(s) should have been taken and promptly recorded. None of these provisions were followed for the described conversation(s).”

Since Mayor Coviello’s Statement of Financial Interests forms for the years of 2018 and 2019 showed he had completed the required four hours of ethics training for each year, the FDLE “suggested” that a knowing, or criminal, violation occurred in each instance.

“There are noncriminal and criminal penalties for violation(s) of the Sunshine Law. The difference between the two, is in the knowing violation of the statute. The pattern of activity by Mayor Coviello suggests a knowing violation of the criminal statute,” the memo states.

“We ask that the State Attorney’s Office consider these factors when making a charging decision in this matter,” it concludes.

The State Attorney’s Office for the Twelfth Judicial Circuit to which the case had been referred filed the one count of a non criminal infraction.

And then bargained the maximum $500 fine down to a $100 slap on the wrist along with a requirement for another class on what elected officials may or may not talk about outside of a meeting to which the public had been invited.

Perhaps this third bout of instruction will be the charm.

The mayor, meanwhile, took the class, pleaded no contest this week and forked over the Benjamin.

Why are we not among the “who cares” cotillion?

Simply put, we don’t believe that good government is made in the shade.

Former state attorney general, Pam Bondi, summed up this philosophy well.

“In our state, transparency is not up to the whim or grace of public officials. Instead, it is an enforceable right,” she said.

Or should be.

–Breeze editorial