Marco anchoring issue raises Sunshine Law violation questions

Studio 55: Studio 55: Tuesday, October 30th, 2007 - Inside the Story

Liam Dillon's interview with Marco Island boater ...

A new issue is rising to the surface after the sinking of Marco Island’s ordinance which attempted to restrict boat anchoring before being deemed unconstitutional.

What started out as an issue of boaters rights has now raised questions about Sunshine Law violations. Recently obtained transcripts from behind-closed door meetings held by the Marco Island City Council show city attorneys warned council members about violating the state’s open meeting and public record laws.

The entire issue began in January 2007 when Marco residents Lee Oldershaw and Dave Dumas anchored the boat Kinship in Smokehouse Bay, purposefully violating the portion of the city’s ordinance that restricted boat anchoring to no closer than 300 feet from a seawall and for no more than 12 hours.

Boating rights organizations and advocates rallied behind Dumas to protect boaters statewide from such laws, eventually deeming similar ordinances in large cities throughout the state to be likewise unconstitutional.

Transcripts from several closed-door meetings, which the public and press were not privy to until recently, reveal that early in the two-year battle, city officials and attorneys were aware that the portion of the ordinance restricting how long the boat was anchored was unconstitutional and would be difficult and expensive to defend.

Nonetheless, the city spent at least $60,000, according to early estimates, fighting the case.

City Attorney Alan Gabriel advised council members in 2007: “Our direction would be to pull ourselves out of this case as readily as possible.”

However, City Council hesitated to end the case because they said they didn’t want Dumas to win, they wanted to defend all city ordinances and they wanted to support a political action committee, Marco Waterways Organization, which council members said had given the city money to defend the ordinance.

In a closed-door meeting held in November 2007, City Council discussed why, despite their attorneys advice that they had less than a 50 percent chance of winning, they wanted to proceed anyway.

City Councilman Rob Popoff started the conversation with “All of a sudden we turn Dave Dumas into a ... ”

Councilman Chuck Kiester finished his sentence: “Folk hero.”

To which Councilman Bill Trotter said: “He already is.”

The typed transcripts of five closed-door meetings held over the years reveal that City Council and attorneys were advised that certain actions they were planning to partake in would violate public records laws.

The late Glenn Tucker, a city councilman at the time, who adamantly opposed the anchoring ordinance, gave the following advice to assistant city attorney Dan Abbott, of the Weiss-Serota law firm: “You ought to contact Dennis Morrissette or whichever one of the wackos (members of the Marco Waterways Organization) you want to contact and then discuss it with individual members and then we ought to bring it up for a decision.”

Councilman Ted Forcht responds: “That’s a city in Florida too, isn’t it?”

Then-Marco City Manager Bill Moss, who is now the Naples city manager, asked “Can we strike that?”

Tucker responded: “No. I don’t give a darn.”

The city attorney advised: “If it loses its confidentiality, we would have then been deemed to have been meeting outside of the sunshine, so I wouldn’t ... I wouldn’t tell anyone what we’ve said here.”

According to the transcripts, council members directed attorneys what to discuss with members of the Marco Waterways Organization, the committee formed by Morrisette and co-chaired by Bill McMullan.

Although city attorneys Gabriel and Abbott both advised City Council in November 2007 that the transcripts would then have to become immediately open to the public, the transcripts were not made public until August 2009.

As for the anchoring ordinance, a change in the Florida statute signed by Gov. Charlie Crist on May 27, 2009, put the issue to a close. The drafter of the statute, Florida Fish and Wildlife Commission attorney Alan Richard, had said the intent was always to prohibit local governments from regulating anchoring other than anchoring in mooring fields or anchoring of live-aboard houseboats, and the change in May would clarify that for any local government which questioned it.

“When the City Council adopted this ordinance (in 2006), I don’t think there was anybody in the room that did not think that we would then be legally challenged,” Moss said in a closed session with City Council in 2007.

Gabriel advised council this summer that the changes in language to the statute, which took effect in part in July and will take effect fully in October, would remove any question.

“The ordinance would be finally deemed invalid,” Gabriel said in the closed session.

With that, coastal communities and cities such as Miami Beach, Sarasota, and others throughout the state, could no longer enact ordinances of their own and boaters would be able to follow consistent, statewide regulations on anchoring.

© 2009 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Comments » 24

OldMarcoMan writes:

Sore Winers? Typical Marco.
In fact who even cares about this?
The City got the abandoned and party boats out of the Bays, and actually wasn't being that aggressive in enforcing the ordinance till some hot heads forced their hand.
I heard from one Councilman he thought the Ordinance would have be reconsidered after the last Election and probable voted out if it hadn't been in Court.
So you won ! Cost the Taxpayers $60,000.00 and your back where you started. WAY TO GO !!

grunt writes:

Oldmarcomad - Don't you hate it when your back door payoffs to Forcht, Keister, Trotter and the rest of the boys are exposed. Boy, that's got to be annoying to you guys.

jwputnam writes:

More proof of arrogance on the part of the city. Despicable! Read those egos. They just didn't want anyone telling them what they could or could not do. That's what it was all about. Then the normal cover up. Disgusting! Prosecute.

JohninMarco writes:

When you read that this whole law never had a chance in court and the childest ego driven council actions, one can only see that we need a whole change in city hall. If these fools in the city council had to pay the legal fees out of their pockets, this silliness would stop.

playballonK writes:

did someone say 'tea party'?

playballonK writes:

we can call it the Marco 'Tea'd off party'.

catey58 writes:

A 'tea party' is a very good idea boys. City Council needs a reminder 'taxation without representation' started this country. On Marco we have spending without representation. Who's up for a mass protest with a symbolic dumping of some tea in Smokehouse Bay.

ratsnake writes:

Yep. What OldMarcoMan said.

Tea party in Smokehouse Bay? I'm in.

lauralbi1 writes:

Kelly, Kelly, Kelly: "A new issue is rising to the surface". This is really poor journalism, irrespective of any reporting of an issue that is 2 years old and is only as valid as the reporting you have done. There is nothing rising to the surface other than a story that you have chosen to write on material that has already past and will not be dealt with. Or, is there something like an idictment or investigation that is ongoing that you did not report ?? Or are you attempting to form the basis for an investigation ?? Have you personally determined that Sunshine Violations did, in fact, occur ??
I think you really need to evaluate what you are writing. This is not the first time that you have created news rather than report the news. You know I respect you and feel that you are doing a great job. I have told you this many times. But in this case and a couple of others, you have gone outside the lines of reporting, and tried to create news. That is not your job. This is not news, irrespective of the tea that some citizens want to throw in Smokehouse Bay. Great Country we live in where people can express themselves. That is why elections are so important. Lest we forget that all members in these meetings were elected by the majority or were appointed by those elected officials. Democracy is a great thing. Kelly, get back to reporting news, as you do so well and eloquently, rather than trying to create news.
Ed Issler

catey58 writes:

Whew - what a long-winded 'parsing of words' and manipulative 'fronting of your own agenda.' It's a reporter's job to bring matters such as this to the public's attention. The article states it was in response to 'recently obtained transcrips.' Sounds like news to me. Kelly - keep up the good work!

lauralbi1 writes:

No, this is a non-issue today. The transcripts recently came to the forefront, but it is NOT the reporters job to determine whether or not Sunshine Violations occurred or not. I have no problem, nor should anyone, with an article entitled "Transcripts from 2007 show that City Attorney concerned about Sunshine Law Violations". That is my only point. Kelly is an excellent reporter. It is just that no Sunshine Violations were brought up or will be as a result of these 2 year old transcripts. Care to guess what the Statute Of Limitations is for Sunshine Law Violations ?? You sahould do the research yourself if you think the article and it's title are actual news.
Ed Issler

condoseller writes:

The interesting "fact" is, Council was told they should pull out of the case and they continued to spend money foolishly defending the ordinance. The "fact" is, they wasted money again and antagonized residents along the way. Kelly did a good job on the article and I'm sure an editor wrote the headline.

playballonK writes:

This is probably one of the best articles the Eagle has done. The fact that they actually question the ethics of some of the members of the Marco 'syndicate' shows me they have some journalistic integrity.
Kelly, Kelly, Kelly, you know I respect you too.

grunt writes:

Issler, how could you even attempt to whitewash, minimise, or in anyway discount this attempt to unveil the truth behind something that was an unquestionally egregious violation of publically appointed power.

noitall writes:

Go to the "search" window at the top of this site and type in "Marco Waterways Ordinance." You'll see that Ed Bania, the former Eagle senior reporter and Sun Times reporter broke this story (and many others) in January, 2007. Read his follow-up articles and you'll see the WHOLE story. His investigative articles got national attention around the country. Too bad he quit and left. Robert Evans

playballonK writes:

noitall, do really think Bania 'quit'??
may want to ask around Marco about that one.

grunt writes:

noitall, you are absolutely right. However, Bania's leaving is about as twisted and untoward as the creation and support of the anchoring ordinance. Bania didn't just leave.

bankerguynaples writes:

Good evening playballonK and grunt.
As many of us here in Naples, Collier County, and on Marco Island know, Ed Bania wrote Mr. Phil Lewis of the Naples News in late July, 2007 saying that he was quitting and leaving the Marco Eagle. Many of us wrote Mr. Lewis and the publisher, asking them to convince Ed to stay with the company. Mr. Bania decided to pursue other opportunities instead. I believe some of those include special project assignments for national media and he is also writing a book.

lauralbi1 writes:

I challenge any of you bloggers above to show where " Sunshine Violations are rising to the surface" in the transcripts that were released. The issue here is not free press nor the publication of excerpts of the transcripts. That is great news !! The only issue is the editorializing, by the reporter, in the reporting of the story. But, just like anything else, you are not interested in objectivity. Anything that gives you a reason to go on for another day and sound off is a good thing.
By the way, Mr. Bania was let go, in my opinion, becuase of his e-mails and their nature (which became exposed) with various people and his inability to objectively report the news.
Ed Issler

catey58 writes:

"Thou dost protest too much!!!"

grunt writes:

Issler - Be careful what you wish for.

tarquin writes:

in response to jwputnam:

More proof of arrogance on the part of the city. Despicable! Read those egos. They just didn't want anyone telling them what they could or could not do. That's what it was all about. Then the normal cover up. Disgusting! Prosecute.

I agree!!!! PROSECUTE THEM!!! if it was us thay would, turn about is fare play!!!!

tarquin writes:

in response to JohninMarco:

When you read that this whole law never had a chance in court and the childest ego driven council actions, one can only see that we need a whole change in city hall. If these fools in the city council had to pay the legal fees out of their pockets, this silliness would stop.

yea, we should have the right to throw them out on there buts, hold a new election, and apoint a over see'er to hold ower, the peoples rights in place. this is the U.S.A. the last time i checked!!! how about you?
well then lets do something about it, who is with me???

tarquin writes:

we should throw out the council and lets start over, a new council and some one to over see them... for one thay have to live here year round....all of them.... and lets put it on a rotation for over see'ers asistant at least 2 per week of any one interested in perventing coruption meaning every one on marco would have a chance to help the over see'er first hand...

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