Marco council to discuss alleged Sunshine violations tonight

A discussion of the allegations of Government in the Sunshine Law violations is listed as the last item on the Marco Island City Council's agenda during tonight's regular meeting.

The meeting will begin at 6 p.m. at Mackle Park.

Meanwhile, two Marco Island residents have taken the next step in their attempt to prove that e-mails sent between Marco Island City Council members and/or city staff in 2005 and 2006 violate the Government in the Sunshine Law.

"Butch" Neylon, with the help of Ray Beaufort, has sent more than 6,000 printed pages containing approximately 9,000 e-mails to Richard Montecalvo, Naples office head of the State Attorney's Office.

Neylon said that Steve Russell, State Attorney for the 20th Judicial Circuit in Fort Myers, was aware of the allegations. Neylon added that Montecalvo replied that he would confer with Russell about the allegations.

Though regular council meetings usually are held on Mondays, tonight's meeting is because of the President's Day holiday, observed Monday.

Many of tonight's other agenda items were left over after the council voted to adjourn the Feb. 5 meeting before any business was discussed. The action by the council angered many of the more than 250 people who attended the meeting.

Beaufort and Neylon suspected that the law may have been violated when they received an e-mail last year sent by former city councilor John Arceri to Marco Island City Manager Bill Moss in September, 2005.

Neylon filed a public records request last month with the city for e-mails sent between councilors and/or city staff from August through October, 2005. Marco Island City Clerk Laura Litzan gave Neylon approximately 900 e-mails on a compact disc. Neylon paid the city $140 for the information.

"It was damning — the collusion between Arceri and Moss and (Marco Island Public Works Director Rony) Joel and everybody else joined in," Neylon said. "It was clear that this was born out of deceit."

Neylon filed a second public records request this month for all of the e-mails between councilors and/or city staff during 2005 and 2006. He said that he received approximately 9,000 from Litzan.

Moss, Litzan, Marco Island Police Chief Roger Reinke and public information coordinator Lisa Douglass reviewed "various items for this issue," according to Douglass. In the city's "Official Response" to Neylon's allegations, it was stated that the staff reviewed opinions of the Florida Attorney General, case law, publications on the Sunshine Law and reached the conclusion that no violations of the law occurred.

"Correspondence between the city manager and city council member(s) is not a violation of the Sunshine Law," the city staff concluded in the response. "Correspondence from one city council member to one or more council members is not a violation of the Sunshine law as long as the correspondence does not elicit a response."

The city response noted that e-mails between council members on an issue that has not been acted upon at a public meeting, "following extensive public hearings," does not violate the law.

"Despite allegations to the contrary, there is no evidence of unlawful e-mail correspondence or other meetings that suggests that the STRP (Septic Tank Replacement Program) was promulgated in violation of the Sunshine law," the city's statement said.

Moss contacted the Florida League of Cities and requested names of people who may be qualified to review the e-mails in case the council may want an outside opinion. The league recommended attorney Mark Herron of Messer, Caparello and Self, PA of Tallahassee. Moss said in a Feb. 15 request for council to consider discussing the allegations of violation during tonight's council meeting that Herron has represented local governments and people who have sought public records. Herron charges $225 an hour, according to Moss.

Neylon talked with Fred O'Neal, an attorney who is representing the Marco Island Recall Committee in its attempt to recall city council members Glenn Tucker, Mike Minozzi and William Trotter. O'Neal specializes in litigation for or against Florida cities, counties, school boards and political candidates, referendum issues and recall efforts.

"O'Neal thought that it was a step in the right direction, rather than just ignoring this thing, for the city to possibly hire an attorney knowledgeable about Government in the Sunshine Law," Neylon said Monday.

O'Neal reviewed the 14 e-mails that were sent to the Marco Eagle and revealed in the Jan. 29 issue. He also sent the Eagle several opinions from the Florida Attorney General.

In O'Neal's opinion, the e-mails constituted a violation of the Sunshine Law.

Official rulings regarding specific violations must be made by a court of law.

"Back and forth electronic communications between commissioners like the ones you supplied me with (even back and forth communications using the city manager as an intermediary) would be, in my opinion (and, as I see it, in the Attorney General's opinion), a 'meeting' for Sunshine Law purposes," O'Neal said. "Therefore, though the commissioners are allowed to have such a 'meeting' electronically, they must treat such a 'meeting' the way they would any other 'meeting' in terms of notifying the press and public ahead of time, allowing the press and public to view their 'meeting' while it is occurring, as well as allowing the public an opportunity to give input into the 'meeting' contemporaneously with its occurrence."

O'Neal added that any action taken by a city commission in violation of the Sunshine Law is subject to being nullified by the courts. If the courts nullity the action, the council must re-consider the matter again in its entirety and in complete compliance with the Sunshine Law, according to O'Neal.