homepage logo

Conversations cloud open meetings mandate

By Staff | May 24, 2008

Several members of the Cape Coral’s utilities expansion committee were caught on tape before the beginning of their scheduled meeting Thursday, engaged in private conversations some legal experts say may be in violation of the state’s public meeting statutes.

For more than 10 minutes before the meeting was called to order, a handful of members of the citizen’s committee engaged in conversations related to contracts and the utilities expansion project, and other issues they later discussed and voted on in the meeting.

Florida’s public meeting statutes, called the Sunshine Law, prohibit members of the same board, appointed or elected, from speaking privately to each other about items on which they will or likely will vote. All discussions must be held within the public meeting format — meetings that have been noticed to the public, with minutes duly recorded.

“Ultimately, only a court can determine if there is a violation,” said Adria Harper, director of the First Amendment Foundation, who added that the standards for triggering the Sunshine Law are pretty broad.

“While they may be able to argue that they were stating their general opinions about contracts, the fact of the matter is that they are talking about something that did come before the board for discussion.”

The discussions were taped after a Breeze reporter asked the recording secretary to turn on the recorder when the conversations before the meeting began. An audio recording obtained by The Breeze confirmed the topic and members involved originally observed Thursday.

The board and its members have been cautioned before about private conversations and the restrictions within the Florida statutes. The city routinely provides a Sunshine Law primer course to its officials and board appointees.

Assistant City Attorney Marilyn Miller confirmed Friday that in the case of this citizen’s committee, its members cannot speak about the utilities project at all unless it is during a publicized meeting. Private conversations during a meeting and speaking about the project before the meeting begins, even if the members are all seated in the meeting room, are considered violations of the spirit and letter of the law, according to the decision in the 1990 court case Rackleff v. Bishop.

“The rationale behind the Sunshine Law is that the public has the right to see every step in the decision-making process,” Miller said, adding that she spoke at length to the committee during its first meeting about what constitutes violations of the law.

She declined comment on any specifics related to Thursday’s conversations but did say that the recording of the pre-meeting talk does not satisfy the open government statute because no minutes of the conversation were taken.

In the recording, committee members Jack Schrager, Robert Dudley, Phil Boller and Angelo Montemarano discuss fees and surcharges built into governmental contracts as well as the way they are drawn up.

“The government can write any kind of contract and it’s OK,” Boller says.

Later on in the meeting, the committee discussed both the hard and soft costs built in to the manager at risk contract the Cape has with MWH and had previously voted to stick with that process. On Thursday, the board unanimously agreed to investigate additional savings within the contract by examining contingency fees as well as other costs put in by the contract manager.

In a Friday phone interview, Schrager indicated that he did not recall the details of the conversation prior to the start of the meeting.

“It was so unimportant I have no clue what was said,” he said.

Upon hearing that the conversation was recorded, he added that he has been having a long-running conversation with Dudley about accounting systems, saying that his fellow committee member was not familiar with some of the structures he was looking at when deciphering rate structures.

“It was not about the utilities, it was about understanding how the accounting is done on different projects,” he said.

Montemarano confirmed that the conversation was on “subcommittee business” which likely focused on “contract methodology or possibly assessments.”

“The general discussion is that construction manager contracts can be drafted in a variety of ways,” he said.

“I think we were just talking about some generalities about the information that had just been distributed,” added Boller, who stated that he does not believe the conversation constituted a violation of the Sunshine Law.

He said that the topic was a matter that had already passed and that Dudley was simply looking for a clarification, though he did concede that perhaps the matter would have been better left for when the meeting began.

“Granted, maybe those questions should be asking during the session, but when you’re in a meeting you’re on an agenda,” he said.

Dudley refused to comment on the matter and hung up on a reporter who called.

Former mayor Arnold Kempe said Friday that he has “not had any such discussion” about the utilities project outside of the meetings.

“The only thing I have done is prepare a proposal, it has been faxed and given to them,” he said.

Kempe was not involved in the conversations recorded Thursday, nor were committee members Gordon Ultsch, John Barth and John Sullivan, according to what could be heard on the tape.

While still serving on the city council, Kempe and former councilman Richard Stevens were found to have violated the Sunshine Law after a conversation between the two also was caught on tape.

During a council meeting recess, the two spoke about an issue on which they had just voted. Though the pair were unaware of it at the time, the dais microphones were still switched on so that everyone in the chamber could hear the conversation as it was taped.

A investigation by the State’s Attorney’s Office later determined that the violation was unintentional, and both Stevens and Kempe were instructed to take an additional course on the law. No charges were filed.

No complaint has been filed regarding Thursday’s conversations.