21 Jun Breaching the Public Trust or Violating the Sunshine Law
This article, originally published by Al Zucaro on BocaWatch.org, is preserved for historical purposes by Massive Impressions Online Marketing in Boca Raton.
If there are questions or concerns with the content please e-mail email@example.com.
It was over two years ago that the City Council was confronted with having to investigate the actions of one of its own, former Mayor Susan Haynie, when, during the election cycle of March 2017, facts were uncovered which eventually led to probable cause findings at the State and County Ethics Commissions and her subsequent suspension from office by then Governor Rick Scott for a variety of alleged criminal charges; charges that are still pending in Palm Beach County Criminal Court Division.
Prior to the ethics findings and eventual suspension from office there were assertions of her ‘breaching the public trust.’ Those assertions were presented to the then members of Boca Raton’s City Council (Singer, Rodgers, Weinroth and O’Rourke), all of whom refused to exercise their duty to investigate. Council members could have reacted to the assertions and may have avoided the results of third-party agencies having to investigate what eventually became a serious tarnish to the reputation of this city and to the integrity of its elected leaders.
This, of course, is all old news…perhaps…but what is not old news is that there are now new assertions raising breach of the public trust issues and, even more serious, assertions of possible Sunshine Law violations; violations that if established are of a criminal nature. These assertions point to members at the highest levels of Boca Raton’s City Administration, and may also include some, if not all, elected officials.
Where to start….
The genesis for these assertions arise out of the ongoing dispute between the city and Crocker Partners concerning the Midtown project. Midtown is a planned mobility development that also was to be a transit-oriented district; a district where the development’s design is aimed at the reduction of road trips, and, in its original concept, anticipated a tri-rail station to be located there. (Publisher’s note: The tri-rail element is no longer available as it has been removed from the future plans of the SFRTA).
As was the case during the Haynie matter, the City Council has the ability to investigate the assertions alleged. However, the current situation differ from the Haynie matter, as individual Council Members may be unwittingly involved. Only the efforts of outside third-party agencies, agencies with power to take sworn statements with subpoena power, may be able to uncover the relevant facts. Agencies like the Inspector General’s office and/or the State Attorney’s office but not the State or County Ethics Commissions. Ethics Commissions do not have jurisdiction where assertions are of a criminal nature like that involving the Sunshine Law as here.
What facts exists to even raise these possibilities?
Below are assertions compiled from the public record; the public record comprising the civil Sunshine Law complaint filed by Crocker Partners and the City’s own records including, but not limited to, video recordings. Reader(s) are encouraged to review the underlying referenced materials and formulate their own opinion. City Council members should take heed and look deeply at the facts asserted to determine what, if any, action might be taken to rectify the situation.
Statement of Facts:
Councilwoman O’Rourke, in concert with City Attorney Diana Freiser, created out of thin air the requirement of an undefined “Small Area Plan” to frustrate and delay the development of Midtown.
April – August 2018:
City hires a consultant to produce the “Small Area Plan”. The consultant conducts the first of two public charettes to obtain comments from the public for an initial recommendation for the residential density proposed by the Midtown property owners.
October 9, 2018:
City Council holds a workshop to discuss status of the “Small Area Plan” at the end of which Mayor Scott Singer and Council Member O’Rourke both have the City Manager agree to hold a second public charette on December 4, 2018. This second charrette was expected to address the residential density question and inquire of the public the number of units preferred for Midtown along with several other areas of concern.
November 14, 2018:
Although there had been no other public meeting nor any executive sessions with the City Council and legal counsel following the October meeting, the City Attorney, at the start of the November 14 meeting, without any public comment or input re-writes council history by misrepresenting the results and direction from the council to staff at October meeting. The City Attorney introduces into the record a memorandum that falsely proclaimed that the council concluded the “Small Area Plan” at the prior meeting and that the council had directed staff to prepare land use regulations eliminating residential in the Midtown area. Neither assertion is supported by the video record.
November 15, 2018:
Development Services Director, Brendon Schaad, sent an email to the consultant advising him that his contract was terminated and that “no further work, tasks and/or deliverables relating to Midtown need to be performed.” The email states that “based on the report made to the council on October 9, 2018, that the City staff is proceeding with its general planning efforts,” and cancelling the second public engagement charette scheduled for December 4, 2018.
That was not the conclusion of the City Council at the October 9, 2018 Workshop or the November 14, 2018 City Council Meeting.
On January 8, 2019 the City Council adopted Ordinance No. 5476 making numerous changes to the City’s Zoning Code of Ordinances regarding the Midtown area. This ordinance contains no authorization for residential development in the Midtown area. Videos of all these meetings are available on the City’s website.
When and how did the City Council give the City Manager and City Attorney the direction to cancel the second public engagement charette and terminate the contract with the consultant? There is no public record of this action being authorized by the City Council in open session.
When and how did the City Council give the City Manager and City Attorney direction to exclude residential development from the “Small Area Plan?” Again, there is no public record of this direction being authorized by the City Council in open session.
There is only one plausible explanation!
Council members must have met secretly outside the public view to discuss this change of course with the City Manager and/or the City Attorney, collectively or independently, and the City Attorney must have received direction from council members to proceed with land use regulations eliminating residential from Midtown. Also, the City Manager must have received authorization from council members to cancel the December 4th second public charrette. None of this is contained in any public record; no public record can be found to support these unexplained directional changes.
‘Backroom’ secret meetings outside the public view are strictly prohibited.
Such ‘backroom’ meetings are specifically designed to keep the public out of the process and, in this case, to prevent the Midtown property owners the ability to make their record of objection for any subsequent appeal or Circuit Court review. Not only are these tactics undemocratic and a violation of the political pact between the politician and the voter, this type of governance is arguably illegal: a textbook violation of the State of Florida Sunshine Laws.
Florida Statutes, Chapter 286.011, “The Sunshine Law,” states, “all meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.”
The Statute has been interpreted to prohibit any evasive devices such as the use of someone (e.g. the City Manager or City Attorney) to act as a liaison or intermediary between City Council members to circumvent public meeting requirements. Still, the dramatic shift in the course of events following the October 9, 2018 Workshop and the November 14, 2018 City Council Meeting could only have been authorized by the City Manager with the City Attorney’s knowledge and, arguably, at the direction of the City Council.
In the City of Boca Raton, it is customary for the City Manager and City Attorney to meet privately with each City Council member to discuss upcoming City business. A regular practice that has been complained about on numerous occasions in open sessions and on the public record.
These behind the scenes meetings between the City Manager, the City Attorney and the City Council, where critical decisions about the future of the City are being made, deprive the public of any participation in the process and are arguably in violation of the Sunshine Law.
There are numerous Florida (AGO) Attorney General Opinions and numerous court filings that specifically prohibit said conduct, e.g., AGO 74-47 and Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979).
Boca Raton City Manager Lief Ahnell has been the City Manager for over 20 years. Boca Raton City Attorney Diana Grub Frieser has been the City Attorney for a similar period. Both are keenly familiar with Florida’s Sunshine Law requirements. I have publicly criticized the City Administration for these backroom tactics on more than one occasion. These backroom tactics ought to be viewed as blatant and willful violations of the Sunshine Law.
The City Council should take measures to uncover how the above facts and circumstances came about. Such an investigation is within the Council’s power. The public is without investigatory authority to conduct such an investigation; to take sworn statements.
As in the Haynie situation, the City Council can exercise its power to investigate. However, not taking action by our elected officials may invite outside third party agencies to once again get involved.
Let’s hope it does not get to that point!!
Publisher of BocaWatch