Are Marco government officials accountable in anchoring case?

Behind closed doors, Part III

Back to boating-- and anchoring when he wants to. Marco resident Dave Dumas stands in front of his Krogen 42  motor cruise boat Wednesday. Dumas made local headlines and was a called a 'folk hero' after he had challenged a boating ordinance by anchoring for too long in Marco's Smokehouse Bay in 2007. The act of civil disobedience developed into a two-year court battle with the city's anchoring ordinance eventually thrown out and deemed unconstitutional.

Photo by QUENTIN ROUX, Staff

Back to boating-- and anchoring when he wants to. Marco resident Dave Dumas stands in front of his Krogen 42 motor cruise boat Wednesday. Dumas made local headlines and was a called a "folk hero" after he had challenged a boating ordinance by anchoring for too long in Marco's Smokehouse Bay in 2007. The act of civil disobedience developed into a two-year court battle with the city's anchoring ordinance eventually thrown out and deemed unconstitutional.

Unlike the many people who are waiting for their day in court, charges have not yet been filed against any officials in relation to the handling of Marco Island’s anchoring case.

Naples attorney Donald Day, however, said he is considering taking legal action.

Several Marco and Naples area residents have questioned the legality of Marco government’s behavior during the course of the city’s attempt to uphold an unconstitutional anchoring ordinance. So far, no investigative agency or court has been tasked with looking into those questions.

“Only a judge can actually say whether there’s a violation of law,” said Barbara Petersen, president of the First Amendment Foundation, which offers resources to the public related to open government and is in-part supported by the press.

Legal questions were raised about meetings held behind closed doors in relation to the two-year anchoring case against Marco boater Dave Dumas. Day had defended Dumas for the act of civil disobedience when Dumas purposefully violated the ordinance by anchoring his boat, Kinship, in Smokehouse Bay for more than 12 hours in 2007.

The public became privy to what was said in the five executive sessions held between Marco City Council and their attorneys between 2007 and 2009 when the transcripts of the meetings were released several weeks after the case against Dumas came to an end this summer.

“As a layman, it certainly seems to me that they (city officials) didn’t meet the (requirements of the) Sunshine Laws,” Dumas said.

Petersen also said there were portions of the transcripts that she believed may have involved a violation of law, including attorneys talking individually with council members and council directing attorneys to meet with members of a political action committee about the case.

Other individuals close to the case, including Marco residents Lee Oldershaw and Herman Diebler, have also questioned whether all the rules of open government, referred to as Florida’s Sunshine Laws, were followed.

“I think they (city officials) should be taken to account for their actions. I would certainly hope that someone will take them to task,” said Dumas, who then laughed.

Dumas wasn’t going to throw his hat into the ring again, he added, saying the long legal battle over the constitutionality of the ordinance was enough for him.

Dumas says he’s served his purpose by violating the city’s ordinance, which was approved in 2006. He set a clear precedence statewide that restricting boat anchoring outside of mooring fields was unconstitutional in every Florida city or county that attempted to likewise take away such boaters’ rights.

Day is now considering action against Marco officials for what he called their abuse of power, he said. Because such action was pending, he didn’t want to share more details yet, Day added.

Since the time Marco was drafting the anchoring ordinance, in 2005, they were advised that a portion of it violated the state constitution and eventually legislatures took away any possible question local governments might have. The state statute was amended in May to make it absolutely clear they could not regulate anchoring outside of mooring fields.

City Attorney Alan Gabriel said that’s when the issue finally came to an end. “There was no attempt to skirt the Sunshine Laws,” he said.

“If you or I violate a state law, don’t we get law enforcement down our necks? They seem to have violated a state law, why don’t they have law enforcement breathing down their necks?” questioned Dumas.

Options for enforcement include a complaint with the State Attorney’s Office or the filing of a suit in civil court.

The late Councilman Glenn Tucker raised the legal question of malicious prosecution during one of the 2007 closed meetings when he had asked if the city’s pursuit of the case could open them up to a malicious prosecution charge and the attorney advised him that cities can’t commit malice.

“... Under threat of litigation I do not have any comment or wish to speculate on what actions might be taken by others against the city,” Gabriel said Wednesday.

“If anybody feels a criminal violation has occurred or there was any activity that was against the law, they can file a sworn statement with any law enforcement agency,” said Samantha Syoen, spokeswoman for the State Attorney’s Office.

Also, they can request an investigation from the State Attorney’s Office setting forth the allegations of the crime, Syoen added.

If a government official is found guilty of an unintentional violation of the Sunshine Law, it is a non-criminal infraction punishable by a fine of up to $500. A knowing or intentional violation is a second-degree misdemeanor punishable by a fine of not more than $500 and/or a jail term of not more than 60 days and the official may be subject to suspension or removal from office. Attorney’s fees and court costs can be awarded in a civil suit.

“So while it may be a $500 fine for a non-criminal violation, attorney fees and court costs can be considerable – just ask the City of Venice,” Petersen said.

In the recent Venice case, citizen Anthony Lorenzo filed suit alleging violations of both the Sunshine Law and the open meetings law and the city settled the case last spring, with a judge awarding Lorenzo $750,000 in attorney fees and costs on Friday, she added.

Currently, no charges have been filed against any officials in relation to Marco’s anchoring case.

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Comments » 2

ajm3s writes:

How will they be held accountable in this case, when they are not accountable in any case?

grunt writes:

ajm3s - true, however you must remember they are dealing with a different group of guys. Guys that for the first time were able to take these elitists to court and win. I don't know what will happen but do not doubt what they could do. Remember it is not wise to irritate grumpy old men with time on their hands.

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