Saturday, April 16, 2011

Florida Sunshine Law: In response to a Curmudgeon

This was published as a guest editorial by one of our local newspapers. It was written in response to a guest editorial authored by a member of the Charlotte County (Florida) Curmudgeon Club, a group of - well, curmudgeons. The writer complained that Florida's law - one of the toughest in the nation - was "inconvenient." Here is my response.

Florida is fortunate to have one of the nation's strongest and most effective laws requiring the public's business to be conducted in public.

The Government in the Sunshine Law has effectively served the people of Florida who have repeatedly used the ballot to thwart efforts aimed at diluting the constitutional and statutory protections that exist to assure public meetings and records remain open to us all.

The law was never meant to be convenient. Nothing about democracy is convenient. If the framers were looking for efficiency as they crafted our republic, representative government would have never been on the radar.

Tony Biell of the Charlotte County Curmudgeon Club recently argued (Charlotte Sun, April 2, 2011) that Florida's Government in the Sunshine Law has created what he calls an "unintended consequence" for county government.

Nothing in the Sunshine Law is unintended. And the "consequences" were fully understood by those who rightly reckoned that a little inconvenience was a fair bargain considering the alternative.

Very little in Mr. Biell's argument is new. Mr. Biell presents us with a litany of hypotheticals that by his own admission are "absurd" and "somewhat trivial." The jury is still out on the  "somewhat" thing.

For instance, Mr. Biell tells us that two commissioners casually commenting on the beauty of the flora adorning the county office building could be rung up on violations if landscaping were to later appear on their agenda. Sorry, but no.

Aside from the presumption we have two commissioners who are still on actual speaking terms, the law prohibiting private deliberations stops well short of jail time for "nice petunias."

But to play along with this, our two commissioners would have to know that said petunias were primed to come before the board, and that they conspired to be awed by the flowers’ beauty in a deliberate attempt to circumvent the law. By extension, we would need to unearth a thoroughly daft judge willing to hear the matter.

All laws are imperfect. They are enacted with the understanding that they will be applied with a strong dose of common sense and sanity. This includes Florida's Government in the Sunshine statute.

Contrary to Mr. Biell's claim that our commissioners can't communicate with each other outside of board meetings, they can and they do. Again, this presumes they are on speaking terms outside of board meetings. Mr. Biell also omits an important element. Intent.

"Nice day, Wally" followed by "Sure is, Beav" gets the Cleaver boys off the hook. While this private discussion of atmospheric conditions could, if you squint really, really hard, be seen as a technical violation, the statute makes this a no-no only if the intent was to break the law.

Accidental and innocent violations of the law are common. The general rule here is "no harm, no foul." Intentional violations are a different matter. Even then, civil or criminal enforcement is unlikely except in the most extreme and flagrant cases where the need for prosecution is obvious and compelling. Most often, public officials are simply scolded not to do it again - or until the next time.

If elected officials are avoiding each other at cocktail parties, it's not because of the Sunshine Law. They're just avoiding each other. The law and the courts take "chance encounters" into consideration as long as the topic of conversation doesn't involve no-bid contracts.

Mr. Biell asks us to imagine "a situation where you cannot discuss pertinent details with your colleagues informally and compare thoughts and ideas." This sort of begs the question: What are they discussing in private that they can't or won't talk about in public?

"In a business environment this would be absolutely intolerable," he argues. True. But businesses haven't been granted taxing authority. Not yet. The distinction is important. They're not spending your money.

None of Mr. Biell's complaints about Florida's tradition of open government rise to a level that would demand repeal or weakening of the law and its practical applications.

Yes, members of municipal service taxing and benefit units are required to spend your money publicly. If "petty individuals" are using the law and the courts to harass public officials without cause, odds are they won't do it more than once. Judges don't suffer frivolous and malicious litigation lightly.

Does the law prohibit two commissioners from appearing together on a radio show as Mr. Biell suggests? No. Politicians are, of course, notoriously loathe to share a microphone. But nothing in the law is stopping them.

His most baffling argument is that our commissioners, for example, aren't allowed to discuss contracts and projects as a group behind closed doors. When, exactly, was this ever a good idea? We tend to forget that there was once a time, prior to the Sunshine Law, when hauling politicians away in cuffs was an agenda item.

Yes, the Sunshine Law is inconvenient. Even its most ardent supporters concede the point. And of course it can be abused, just as the potential for abuse is inherit with any law.

Mr. Biell's "frivolous and sophomoric accusation" claim is usually defined as one made against you. The serious and thoughtful ones are those made against the other guy. Or those that benefit your interests.

Loosening the provisions of the Sunshine Law as Mr. Biell suggests is little more than a solution in search of a problem. The law works. The people of Florida support it. It fosters good public policy. And experience teaches us that those who fear the law are most often those who have reason to fear the law.

Florida Statute 119, more commonly known as our Sunshine Law, is the envy of good government advocates throughout the nation. Reform-minded lawmakers in other states hold it up as a model of how things ought to be done in a free and open society.

Mr. Biell and the Charlotte Curmudgeons are well-intentioned. Through their interest in issues affecting government they fill a vital need and play an important role in our community.

There are plenty of things about Florida that beg to be fixed. But the Sunshine Law clearly isn't one of them.