DANIA BEACH — City commissioners here privately discussed official business via email that came before them later during at least two public meetings, an apparent violation of Florida’s Sunshine Law.
First enacted in 1967, the Florida statutes commonly known as the Sunshine Law seek to provide transparency to government functions and give citizens access and input in public operations. It prohibits elected officials from secretly discussing matters that they may decide later at public meetings.
The emails obtained by the South Florida Times from Dania Beach concern a lift station project that was under construction in August 2008 in the 200 block of Southeast Fourth Terrace. Lift stations are part of the sanitary sewage collection system, and are used to pump sewage to the nearest collection point.
Yet the work on the lift station in question damaged the property of resident Judy Usifer.
The series of private emails on Usifer’s situation were initiated by Commissioner Pat Flury on Aug. 31 and culminated on Sept. 9. They chronicle a debate between commissioners on the methods and amounts of compensation the city could offer Usifer to resolve her concerns.
Dania Beach City Attorney Tom Ansbro warned commissioners that they should stop communicating via email because it might violate the Sunshine Law, but they continued to do so.
In an email to the South Florida Times, however, Ansbro wrote that the matter did not come to the commission for further consideration, and thus there was no violation of the Sunshine Law.
“There may be two or possibly three instances where a Commissioner copied other Commissioners about a Code Compliance type of case (e.g., a home in significant disrepair where neighbors were upset), but again, no violation, because those matters do not “foreseeably” come before the Commission for consideration (as the Sunshine Law requires),” Anbro explained.
The South Florida Times, however, has obtained city records that show commissioners discussed the matter via email before taking action on it in public.
The first private email discussion between commissioners about Usifer’s complaint occurred on Aug. 31, 2008.
The official minutes from a Sept. 6, 2008 code enforcement workshop, where Usifer addressed commissioners about the issues, show that after lengthy deliberations that included the possibility of relocating Usifer and her dog, commissioners directed the city manager to handle the matter.
Additionally, the minutes from an Oct. 14, 2008 city commission meeting show Usifer’s complaint was again the topic of public discussion, and that commissioners reached a consensus to provide some measure of compensation to her, but only after the project was completed.
This week, Usifer received a check from the city in the amount of $7,453.65.
After the South Florida Times presented the meeting minutes to Anbsbro and asked him whether the email communication violated the Sunshine Law, he said in his own email, “That is a determination that only a judge or jury could ultimately make.’’
The issue first surfaced in August 2008, when Usifer, who was in poor health, complained to the mayor and city commissioners about the noise, dust and encroachment onto her property that the lift station construction was creating.
She also reported that she had fallen into a sinkhole while attempting to turn off noisy construction equipment that had been placed near the project on her property one night. She said she then had to wait 45 minutes for help to arrive.
The commission meeting minutes show that Usifer told commissioners at the Sept. 6 commission meeting that all but one of them had contacted her about the incident, and the city manager at the time, Ivan Pato, reacted by calling police. Pato was fired in December after writing a farewell letter that criticized commissioners.
In her attempts to resolve the lift-station matter, Flury wrote an Aug. 31 email to other commissioners, and copied it to Ansbro and Pato. The email stated, “Their job of necessity is noisy, messy, destructive and dirty. Judy is often incoherent due to her medical condition, but she does have a legitimate complaint, so other than talking to her has anyone thought more creatively and come up with a way to help this lady?”
Pato said in an email response to Flury, “…please refrain from communicating with each other (Sunshine violation) especially since it is now foreseeable that you will bring it up for discussion and possibly a vote.”
On Sept. 3 Ansbro then emailed back to Pato and the commissioners, “PLEASE, to ALL elected officials: please do not correspond with each other, on matters such as this, since it is reasonably foreseeable that the matter will come before you, as City Commission, to address the matter.’’
Ansbro further advised, “It is my responsibility to remind and advise that the state “Sunshine Law” does apply to e-mails, telephone calls and any other method of communication where one Commissioner ‘speaks’ with one or more other Commissioners. I cannot emphasize enough how important this is; it is my responsibility to protect you from legal missteps, even those clearly taken in good faith.”
After Ansbro warned commissioners about the Sunshine, Law, Flury responded, “The job needs to be done and I hope this is the worse it is going to get. At the very least I would waive her water bill for a three-month period.’’
Pato then emailed them again, suggesting it may be time for Ansbro to provide the commissioners with a formal letter about compliance with the Sunshine Law. He even threatened to go to the authorities.
“I have an ethical obligation to address this with the proper authorities if her [Commissioner Pat Flury] behavior does not change,” Pato wrote.
Chapter 286 of the Florida statutes states that the Government-in-the-Sunshine Laws prohibit public entities and elected officials from conducting most business in private, outside of the public’s eye.
“There are actually a number of different penalties that can be applied depending on what the findings are and these can be civil and criminal,” explained Adria Harper, executive director of the Florida First Amendment Foundation, a non-profit organization that advocates for open government in the state.
While complaints of Sunshine Law violations are commonplace, actual convictions are rare, and even the most serious are resolved with few or no consequences.
In May 2005, for example, the Broward State Attorney’s Office civilly charged four of five Pompano Beach city commissioners at the time with violating the Sunshine Law. That case involved a private breakfast meeting four of the five commissioners had with Ken Jenne, who was Broward sheriff at the time, over a law-enforcement services contract renewal.
In the end, prosecutors reached an agreement in which the Pompano Beach commissioners were required to donate $200 to their favorite charities.
Photo: Pat Flury