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State Getting Tough on Open Record Violators

Fane Lozman
Fane Lozman sued Riviera Beach for violating the state’s Sunshine Law after the city tried to use eminent domain to redevelop the marina where he docks his houseboat. [Photo: Matt Dean]

When Fane Lozman anchored his houseboat at the Riviera Beach Municipal Marina in March 2006, city officials were pushing forward with a $2.4-billion plan to revamp the city’s marina district — an effort that hinged on the city’s ability to use eminent domain to seize homes and businesses to make way for luxury condos and a new yacht complex.

Lozman became a vocal critic of the plan and appeared frequently at various city council and Community Redevelopment Agency meetings to voice objections. The battle escalated in May 2006 after the Legislature passed a bill prohibiting the use of eminent domain for economic development. One day before then-Gov. Jeb Bush signed the bill into law, the city council hastily called a meeting to hammer out an agreement with its master developer.

Lozman fired back with a lawsuit alleging the council had violated Florida’s Sunshine Law when it placed “one little” notice on the chamber doors 24 hours before the meeting. “When they want to sneak something by voters, what they do is they don’t give reasonable notice of the important meetings,” says Lozman, a self-made millionaire who is the chairman of ScanShift, a Chicago-based financial trading firm.

Members of the city council claimed that the meeting was properly noticed and that the allegation of a Sunshine Law violation was merely a ploy by Lozman and others to kill the project. But behind closed doors, they planned ways to defeat the lawsuit and discussed hiring a private investigator to, as some put it, “shadow” or “intimidate” Lozman and to find out who was funding his Sunshine suit and whether he was working with Bush and others opposed to the development project.

In the days that followed, Lozman says, the city retaliated by harassing him. At city council meetings, he was forbidden to speak and on at least one occasion was removed from the podium in handcuffs. Marina employees refused to allow him to repair his boat at the slip, while giving other residents that privilege, and the marina tried to have him evicted on the grounds that he had failed to leash his 10-pound dachshund. “They’ve used the police to harass me. They’ve made my life literally a living hell,” says Lozman. He won an eviction suit against him in March 2007 after a jury concluded that his protected speech “was a substantial or motivating factor” in the city’s decision to evict him.

The Lozman case, while extreme, highlights a shortcoming in Florida’s open government law: While the Sunshine State has some of the strongest open government and public records laws in the nation, the laws are only as good as the public officials who follow them.

The Florida Commission on Open Government Reform heard that message repeatedly over the past 18 months as it held public hearings at which citizens and journalists testified about the hurdles they’ve encountered in obtaining public records and other information from state and local government bodies.

“What surprised me was that some of the government violations are so blatant even though we have had these laws for years and have made concerted education efforts,” says Sandy D’Alemberte, an attorney and Florida State University law professor who has been serving on the nine-person panel, which Gov. Charlie Crist created in 2007 to review and evaluate the state’s open government laws with an eye toward improving them.

Lucy Morgan, a reporter with the St. Petersburg Times, a sister company of Florida Trend, says she has never had to fight harder to get her hands on public records than earlier this year when she was investigating the practice of double-dipping — government employees who retired then returned to the same jobs, collecting both a salary and a pension. In fact, it wasn’t until Crist intervened that the state Division of Retirement agreed to provide Morgan with a crucial list of retirees she needed.

Sandy D’Alemberte
“What surprised me was that some of the government violations are so blatant even though we have had these laws for years and have made concerted education efforts.”
— Sandy D’Alemberte

Other journalists told the commission similar tales: Pat Yack, former editor of the Florida Times-Union, described how members of the city council frequently gathered outside of City Hall for “private, secret meetings” for which they issued no notices, no agendas and no minutes. Bob Gabordi, executive editor of the Tallahassee Democrat, described how some public and university officials and government employees avoid using their own e-mail accounts. Instead, they use their secretary’s or assistant’s e-mails so that when reporters request copies, “they can honestly say, ‘This is all we have.’ ”

Valuable business tool

While the media is the most obvious user of Florida’s open meetings and public records law, citizens use them every day for a variety of purposes. Consumers can use online databases to check out a physician’s background, including their medical training, professional credentials and any disciplinary actions against them. Parents can check to see if a sex offender lives in their neighborhood. Businesses also rely on Florida’s Sunshine Law for everything from criminal background checks to finding out detailed corporate information on competitors.

Court records — like judgments, liens and bankruptcy records — can also provide valuable information when companies are considering business deals with individuals or other companies. The real estate industry relies extensively on public records to conduct title searches, to establish whether there are liens on a property and to research property transactions.

The state generally gets high marks for openness and transparency. But members of the commission hope that a few tweaks and changes to the law will help. “We can’t just say we’re good at open government — we have to see it through,” says Paula Dockery, a state senator from Lakeland who sits on the commission.

The commission is pushing to put teeth into enforcement of the state’s open records laws. Presently, if anyone sues an agency for violating the public records law and wins, the court must award attorney fees and court costs. The commission is recommending that the court be allowed to award additional damages if it has shown that the agency intentionally disregarded the citizens’ constitutional rights or if there was a repeated pattern of abuse.

D’Alemberte says he came up with the idea because government agencies “hate” paying attorney fees. “I thought if they had to pay some kind of special assessment if the court, in addition to finding a violation of the Sunshine Law, found a pattern of abuse, then that would really give incentive to people to clean up their act.” The collected fees would then be used to enhance public access to public meetings and public records.

To further encourage compliance, the commission is also suggesting that the law be amended to give citizens an opportunity to seek advice from the Office of Open Government in making public records requests.

Meanwhile, Lozman and his dog still live at Slip 452, but the city is moving forward with a new plan to overhaul the city marina properties, and he’s waiting to see how that plays out. He’s also busy with a new lawsuit he filed in September against the mayor and city council. Lozman says the local officials failed to provide reasonable notice of a special meeting where they decided the terms of a severance package for Riviera Beach’s former city manager. Lozman’s suit says the 8½-by-11-inch piece of paper posted less than 24 hours before the meeting on a bulletin board outside City Hall “failed to convey the significance of the dollar value of the settlement.”