Behind closed doors, part II: Anchoring case enters the sunshine

Once-shaded meetings have made their way into the sunshine. Transcripts from two years of closed-door sessions – held by Marco City Council in relation to a case against a boater for anchoring too long and too close to Marco Island – have led some to have a new appreciation for open government.

“That’s the good thing about the Sunshine Laws ... The good thing is those discussions were recorded,” said Marco resident Dave Dumas, who in 2007 purposely violated Marco’s ordinance restricting anchoring.

“It’s also very telling when things come to the surface.”

Dumas violated Marco’s ordinance, passed in 2006, because he wanted to prove it was unconstitutional.

The city attempted to defend its ordinance from 2007 through summer 2009, but when the state amended the statute on anchoring to make the unconstitutionality of Marco’s ordinance unquestionable, the fight was finally over – sort of.

“I was fully aware that what was being said was going to become public at one time,” said Naples City Manager Bill Moss, who was Marco's city manager at the time the transcripts were recorded.

Lee Oldershaw of Marco said the transcripts revealed the importance of open government.

Dumas and Oldershaw had been together when Dumas anchored his boat Kinship too close to the Esplanade for more than 12 hours and was ticketed.

“I think there are a whole lot of problems with what Marco did,” said attorney Donald Day, who defended Dumas.

“I do not know if it is criminal or not. It is, however, disturbing that the government would do and say what they did. Talk about an abuse of power.”

During a closed session in 2007, council advised city attorneys what to discuss with the Marco Waterways Organization, a political action committee that gathered money and support to restrict anchoring near Marco homes.

“That’s politics and that’s what this whole thing is,” Councilman Ted Forcht had said.

Per the transcripts, Moss responded: “I just don’t want more said, you know, something that everybody else doesn’t know. I’m sorry.”

Moss said no Sunshine Law violations occurred.

“At times, there were things being said that I didn’t think would really read well.”

That included name calling and the council’s inability to communicate the legal issues, he said.

Barbara Petersen, president of the First Amendment Foundation, a nonprofit organization that provides information on people’s constitutional rights in open government and is supported by newspapers, read portions of the transcripts.

“Action is prohibited (from executive sessions). So, when we have a commissioner asking the attorney to call the (political action committee) to see whether the PAC might contribute towards the cost of the litigation, in my opinion they’re walking a very fine line,” Petersen said.

Council was advised of the unconstitutional portion of the ordinance but chose to continue the fight against Dumas.

“Is there a potential for a malicious prosecution suit here?” asked the late Councilman Glenn Tucker in a 2007 closed session.

Tucker, an Island attorney, opposed the ordinance, but wanted to defend any ordinance council adopted, he said.

“Cities can’t commit malice,” the city attorney advised Tucker.

“The City Council lost their focus. They weren’t concerned about anchoring and they didn’t talk about anchoring. They wanted to punish the person who questioned their law – an ordinary, plain-old, taxpaying citizen,” Dumas said.

In the Sept. 4, 2007, executive session, Councilman Bill Trotter shares concern with the closed meeting. “We didn’t get a chance to bounce it off, say, the Waterways group.”

The PAC created the impetus for the ordinance and several members of council were persuaded to support them because they were influential in the election and at-times appeared to represent the majority of citizens, Chairman Rob Popoff said.

The PAC, co-chaired by Bill McMullan and Dennis Morrissette, sent e-mail to thousands of residents on issues yielding hundreds of e-mails to council urging them to take specific actions, Popoff added.

In the transcripts of October 2007, Trotter requests that the city attorneys share their legal advice with the PAC so council won’t appear to be disregarding the case behind closed doors.

City Attorney Alan Gabriel, of the Weiss-Serota law firm, responds: “If your direction to us is to have conversations consistent with what we’ve talked about and see if there’s any opportunity there for the Waterways to participate, that might be something that we can do that would still maintain the, you know, the privileged nature of today’s meeting even though that probably would be discussed amongst the Waterways group and then would become open to the public.”

Assistant City Attorney Dan Abbott added: “If it’s the will of the commission, if you would like to know what the Waterways (Organization) thinks, I would be happy to contact Mr. Morrissette. How I get that information to you, I will leave to you.”

Abbott and Trotter declined comment. Morrissette was unavailable for comment.

“The bottom line from (members of Marco Waterways Organization) was they had information that we needed. They were witnesses in the case,” Gabriel said.

McMullan said he was not contacted about the details of the case, did not contribute any money to the case and nor was he asked to do so.

The PAC hired an expert maritime attorney to work with Gabriel and Abbott, McMullan confirmed.

Moss said the concerns he was quoted as saying in the transcripts were just a “friendly reminder to say, ‘folks, this is going to become public at one time.’ ”

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

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Comments » 11

JohninMarco writes:

You better believe that if their is another civil suit with a similar situation and the council loses their mind again, watch the state step in and someone will go to jail.

OldMarcoMan writes:

La Tee Da
One group of Rich Guys fighting another group of Rich Guys.
Reading about this is more boring than listening to it.
What about covering some real peoples problems like Taxes and Insurance.

catey58 writes:

Reading those transcripts just reinforces the notion..."Politics & Sausage - two things you never want to see being made." So sad that these are our elected officials. Marco needs & deserves a better system than this city council.

Fossil writes:

If we cannot elect intelligent Councilpersons, hire experienced trained City Staff and obtain good legal advice, then let's at least settle for folks with common sense. Marco Island this incident is a warning. Don't let the Council take your CAP away. These people will increase your taxes and utility fees so that they can spend money on what THEY want and not on our city needs. The CAP serves to keep these irresponsible people in check.

lauralbi1 writes:

Kelly: Great, Great article !!! Factual, provocative, no sensationalism. I knew you had it in you !!!
Ed Issler

ratsnake writes:

I don't know about any sunshine violations, but when the council decides to team up with a PAC to prosecute someone engaging in a constitutionally protected activity, it's time to throw all of those bums out. Idjuts! Jeez this ain't Mayberry RFD, is it?

EdFoster writes:

Kelly,

If you're into "shade" meetings that come to light, get the transcript of the shade meetings held to persecute me and C.A.R.E.S., Inc. for opposing the STRP and bringing a case against the city for violation of the Clean Air Act (the asbestos in Veterans' Park). You'll learn that the council seriously considered having a private eye put on a citizen (me) to dig up some dirt they could use to discredit me. When the City Attorney advised them not to do it because he would have to turn over whatever they found to the court (good or bad!), our dearly departed E. Glenn Tucker, offered to pay for the investigation himself so he could keep it from the City Attorney if he came up with nothing. He came up with nothing! What a great council Marco elects! Even some of the members that I respected kept their mouths shut. You didn't buck the syndicate then ... and it seems nothing much has changed!

Ed Foster

blondie writes:

In regard to OldManMarco he cannot be further wrong if he tried. What happened behind closed doors that effected any citizens and their problems concerns justice for all. It is no matter what procedures were violated,it is still a violation of laws that are there for the protection of ALL of our citizens. Breaking the Sunshine law or any other laws effects all the citzens. Some residents must believe that only their concerns are important. We are an island surrounded by water. It is insane to believe that people with boats, both big and small, should be exempt for due process under the law. Once our laws are altered to fit someone's particular concern at the expense of the rest of the citizens of the same community, all laws and codes are violated. Chaos, payoffs, and backroom deals will be the rule, not justice for all .

grunt writes:

Ratsnake you are right. I often wondered why the likes of Forcht, Kiester, Trotter and the rest were so dedicated to the desires of the leader of the Waterway Organization PAC. That is, to go so far as to knowingly violate state law and the US Constitution in such a tenacious fashion. Could we be dealing with some form of personal contribution, maybe as invisible as donations to favored charities or some other untraceable event? I try not to think this is true, but what could be the reason for their totally irrational behavior.

maharg writes:

The Marco City Attorney at the time the anchoring ordinance was being formulated by the city's Waterways Advisory Comm. was Rich Yovanovich. Despite requests by members of the committee for legal guidance, his counsel was kept from the committee by City Manager Moss. I guess Moss didn't want any embarrassing questions and answers on record about the constitutionality of the ordinance. Make no mistake about it; Moss was the driving force behind this ordinance. He even had Police Chief Reinke craft much of the ordinance. Reinke testified under oath at the Court Hearing that he did not contact anyone at the State level about the the ordinance. Doesn't that sound odd when there was a chorus of voices protesting that the proposed ordinance was unconstitutional. They ALL!!!! knew the ordinance was faulty and knew how hard it would be for the ordinance to be challenged in court. But thankfully, they were s----- enough to issue a ticket to Dumas which got the issue to court. These sorry excuses for city officials and legislators did the bidding for a wealthy private citizen and even tried to get him to pay for the prosecution of another citizen.

grunt writes:

maharg, you are right on the mark!! Exactly!!

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