An expert knowledgeable about the state Sunshine Law believes that the city of Marco Island has violated the law.
"What's problematic is there seems to be a discussion after a public meeting amongst city councilmen about public business," Adria Harper, director of the First Amendment Foundation in Tallahassee, told the Marco Eagle on Friday.
Discussion between two or more members of a public board is subject to the Sunshine Law. The law requires that discussions about public business should be saved for a public meeting.
Harper added that the rules specifically require that meetings are noticed, minutes are taken and the public be allowed to participate. She noted that citizen participation is a critical item of the law.
Marco Island resident "Butch" Neylon gave fellow resident Ray Beaufort a copy of an e-mail last year that was sent by former Marco Island City Councilor John Arceri to Marco Island City Manager Bill Moss in September, 2005. Beaufort and Neylon suspected a violation of the Sunshine Law.
Neylon filed a request for information under the Freedom of Information Act last month with the city for e-mails sent by councilors from August through October of 2005.
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Neylon said City Clerk Laura Litzan replied that the city would have to pay an information technology person to write a routine to sort the e-mails out from other e-mails. Neylon paid the city $140 when he recieved the e-mails.
"It was damning — the collusion between Arceri and Moss and (Rony) Joel and everybody else joined in," Neylon said. "It was clear that this was born out of deceit."
Harper read the e-mails — dated from Aug. 2, 2005 to Sept. 27, 2005 — at the request of the Eagle.
In an e-mail dated Sept. 26, Councilor Mike Minozzi stated to Moss that "I am concerned that all these messages back and forth may potentially be a conflict with the Sunshine Laws. I was under the impression that the council would retrain from these type of messages and discuss the subjects at the council meetings in the open. I hesitate to 'jump into' this discussion, but I will mention two things and if they must be made public, please do so."
The e-mail continues and discusses the payment of notes, bonds, revenue, impact and sewer fees regarding the city's water and sewer systems.
Harper said that other portions of the e-mails "stood out for me."
One was a message from Arceri to Moss on Aug. 1, 2005, regarding wastewater and master meter issues. After Arceri made five points to Moss, the councilor stated, "Despite all of the above subsidy issues, we are still considering assessing master meter condos only 75 percent of what all other customers pay for a base charge. Bill, this could be sent to council for information. You will have to figure out an answer to the reason we are not including hotels and commercial at this time."
Another e-mail was dated Aug. 4, 2005, from Arceri to Moss and Marco Island Public Works Director Rony Joel.
"Note the attached request from (former Naples Daily News reporter) Bill Bruce," Arceri stated. "This could be an excellent opportunity for us to demonstrate the 'make-up' work we have to do as a result of FWS' (Florida Water Service) lack of planning and maintenance in the years prior to our takeover of the sewer system as one reason for the high sewer assessment costs."
In the last paragraph of the e-mail, Arceri stated, "FWS doesn't exist so putting some deserved blame on them makes sense for our own justification."
In another e-mail to Moss and Joel dated Aug. 4, 2005, Arceri discussed the city's wastewater system.
"Parts are over 30 years of age nearing the end of their useful lives," Arceri quoted from a November, 2004 report. "Some 2.5 mgd (million gallons a day) of the plant is 33 years old and the remaining 1 mgd is 15 years old. Failure to adequately replace parts as they aged has also burdened us."
He also quotes from the report that most of the city's pump stations can't meet accepted standards or are inoperable.
Near the end of the e-mail, Arceri stated, "The only issue we need to be careful of is 'how much of this did we know when we bought the system and should we have better prepared for it?' "
Another e-mail, dated Sept. 26, 2005, from Arceri to Moss and Joel caught Harper's eye.
"Just an after thought on the issue of needing a workshop to 'discuss' the sewer assessment methodology," Arceri stated. "A better approach would be to sit with each council person, individually, and explain the general approach we discussed and then show them the details of the cost estimates to support the conclusions. In an open forum there will be hundreds of questions and suggestions, each with their own agenda that will greatly increase confusion and anxiety. There is no, and cannot be, any perfectly fair way of doing this. It is just too imperfect a process (with all costs and revenues being lumped together, with the asset purchase being lumped together, etc). What you have developed is more than adequate."
In an e-mail dated Aug. 16, 2005, Arceri responded to an e-mail from then council chairwoman Vickie Kelber regarding water rates charged to condominiums.
Another e-mail dated Sept. 25, 2005 from council member Terri DiSciullo, who is currently the council's chairwoman, was sent to Moss and the six other councilors. The message discusses the cost of improving or expanding the wastewater treatment plant.
"The problem with having a discussion through e-mail is that it thwarts the public's ability to participate in public business," Harper noted.
Attorney Sam Gold of Naples said Florida law also prohibits councilors from using the city manager or other officials as a conduit to avoid the Sunshine Law. He added the Office of the Attorney General has said that the law tries to prevent circumventing by evasive means.
Unknowing violations of the law carry civil penalties of up to $500, according to Gold. He said fines and imprisonment for up to 60 days can be imposed on a person who knowingly violates the law.
When contacted Friday for comment, Marco Island City Attorney Rich Yovanovich asked to see the e-mails. He said Saturday he couldn't comment on the allegation that the law was violated without doing an investigation into the messages.
"However, all decisions made by the city council were made at properly advertised public meetings," Yovanovich stated. "Therefore, even if a violation occured and I am not saying one did, the violation was cured by the city council publicly discussing the matter and voting after the public discussion."
"If a court determines that there was a Sunshine Law violation, then any decision that came forth from that discussion is void," Harper said.
She added the city could have a "cure meeting" in which the same people committing the violation have the same discussion in a public forum, thereby meeting the Sunshine Laws.
"It's requiring that you reenact what happened before but under the Sunshine Law," she said.
The council members in office at the time and responsible for the violation would have to go through the same motions.
If someone suspects a violation of the Sunshine Law, Harper suggested that they go to the local office of the Florida State Attorney. Staff at the office are authorized to investigate both criminal and non-criminal infractions of the law.
Another option is to speak to a private civil attorney.
The third is to go to the Office of Attorney General in Tallahassee. Harper noted that the office has a free open government mediation program. In this care, the mediation would be between the complainant and Marco Island city officials and the city attorney.
"It's an issue of critical importance that is occurring through e-mails and not a meeting," Harper said. "There were decisions made that citizens are unhappy about and they didn't have an opportunity to participate."
Neylon, Beaufort and other citizens have balked at connecting to the city's $135 million Septic Tank Replacement Program (STRP) and expansion of the wastewater treatment plant. Neylon noted that city officials were stating many different cost estimates for the STRP and special assessments during 2005 and 2006. He and Beaufort asked the city again under the Freedom of Information Act for all other e-mails sent by city councilors during the two years.
"That was two weeks ago," Neylon said Friday. "The sort routine was already written. I have been jacked around."
He added there are 14 e-mails between himself and Litzan requesting the records.
Harper said any public agency has to provide access to public records unless a specific statutory exemption applies. Citizens should request in writing what, if any, specific statutory exemptions apply to the requested records.
"There is no exemption for e-mails," Harper added. "Even if there were an exemption to a certain record, the public agency can only black out that part of the record and has to provide the rest."
Beaufort believes the city is "sanitizing" the rest of the requested records.
Neylon said Litzan estimated that the request would cost close to $3,000. Harper said the amount seems unreasonable. She added that officials can charge a fee of 15 cents per page of a copy of a record.
"A public agency cannot charge to inspect a public record," Harper said. "You have to assume that when they ask $3,000, they are charging an extensive use fee."
That fee can only be charged when the nature of the request requires extensive clerical assistance, according to Harper. She added that the fee still has to be based on the actual cost incurred. Overhead costs, such as electrical lighting to do the job, cannot be charged.
Harper recommended that Neylon first ask the city for a detailed breakdown of the estimate and request a copy of their policy on public records requests and fees.
The First Amendment Foundation was established more than 20 years ago as a non-profit 501-C3 to protect and advance open government in Florida through the application of the Public Records and Sunshine laws. Harper noted that the staff of the foundation is highly experienced in both laws.
The foundation can be reached by calling 800-337-3518 or by visiting itsr Web site at www.floridafaf.org.