Vindication: Marco officials committed no crime in closed meetings

Both sides of the anchoring issue on Marco say it all spun out of control

— The State Attorney’s Office recently concluded that Marco City Council did not violate open government laws, known as Sunshine Laws, when it held closed meetings during the litigation against a resident.

The closed meetings began about two years ago and ended this summer.

Chairman Rob Popoff said the finding was “no surprise.”

Assistant State Attorney Dean Plattner informed Marco resident Lee Oldershaw in a letter earlier in November that the law was not violated in the five executive sessions held by Marco City Council between 2007 and June. The executive sessions were held while discussing the city’s strategy against Marco Island boater Dave Dumas.

Dumas was cited by Marco Island police in 2007 for anchoring his boat in Smokehouse Bay to test the constitutionality of Marco’s anchoring regulations by purposefully violating them. It was concluded without question this summer that Marco could not regulate anchoring of non-live aboard boats outside of mooring fields because it was unconstitutional.

The executive sessions were transcribed and made public this fall.

Oldershaw wrote a letter of complaint alleging a violation of the Sunshine Law relative to those sessions. There was not a specific action labeled as a violation of law in Oldershaw’s complaint, but Plattner said the state attorney reviewed all the transcripts and found nothing illegal.

Marco officials, some of whom are no longer with the city, were not shocked with the finding and approved of the vindication.

“Neither the referenced closed meeting nor statements made during the meeting were in violation of the Sunshine Law. Every word spoken was recorded by a court reporter and released for public review as required by law. Therefore, it is no surprise that the State Attorney found no violation,” said Naples City Manager Bill Moss, who was Marco’s city manager during several of the closed sessions held in 2007.

Oldershaw, who was a witness to Dumas’s civil disobedience in 2007, said he was satisfied with the State Attorney’s response that no laws were violated by council.

Oldershaw wasn’t sure whether discussing the prosecution of a misdemeanor was somewhat afar from the state statute allowing City Council to discuss pending lawsuits, litigation strategy and legal expenses.

“It turns out they have a wide latitude on what they can discuss ... What concerned me the most was when (council) directed their attorneys to contact members of the Waterways Organization (a former political action committee that sponsored the anchoring ordinance.) I thought that might have violated the integrity of the secret meetings.”

Marco resident Bill McMullan, former co-chair of the now disbanded Waterways Organization didn’t initially agree with the boaters about the ordinance, but both sides now agree that the issue grew bigger than anyone expected.

“I think it was an issue that got totally out of hand,” McMullan said.

Oldershaw said the whole thing got blown out of proportion as well.

“This was the most bizarre thing to even have been involved in ... Initially, we just saw the State Attorney’s Office throwing the ticket out, which would show the ordinance was unenforceable.

“It would have saved everybody a lot of time and money.”

Marco spent about $60,000 on attempting to prosecute Dumas and Naples attorney Donald Day, who Oldershaw said took the Dumas case pro bono, had a similar expense.

Instead of throwing the ticket out, the State Attorney’s Office said they wouldn’t prosecute because they didn’t have a contract with the city to prosecute cases at the time, which was in early 2007.

“We won ... Objections to closed government meetings is vindicated and nobody went to jail,” Oldershaw said.

Council members also approved of the vindication.

“There’s still a lot of hurt feelings about this whole thing. I hope this ends it ... I didn’t think we had done anything wrong... I was not concerned at all about the (state) attorney’s opinion,” said City Councilman Ted Forcht.

Marco resident Herman Diebler was with Dumas when Dumas got a citation from the Marco Island Police Department in 2007 for anchoring his boat too long in Smokehouse Bay. Later, Diebler was removed by Forcht from the city’s waterways committee.

“For me, there were two reasons for pursuing a possible Sunshine action,” said Diebler, who also signed Oldershaw’s complaint with the State Attorney’s Office.

“The first is the back-handed way of bringing a PAC (Marco Waterways Organization) into the fold of the behind door discussions. The second was that the council knew they were violating the law, as warned by their legal counsel, and despite this, they kept these discussions in the dark, not informing the public. The public blindly paid the legal fees for a losing cause.”

Forcht said he is against the city having anything to do with anchoring restrictions anymore.

“What we were trying to do (with the ordinance) is wrong and as far as I’m concerned that becomes the end of it.”

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