Florida’s existing water quality

State Attorney says TEAM performs public purpose: statewide ‘economic development’ implications

By Deborah Nelson
October 8, 2009

In a Tuesday release, State Attorney Bill Eddins officially states that TEAM Santa Rosa performs a government role, and as such, is subject to Sunshine and public records laws.

The statement marks the first formal recognition by a regulative authority of TEAM’s official role in the policymaking process.

It comes after a series of complaints filed by Milton resident Jerry Couey, Pace resident Alan Isaacson, and former County employee Romi White. Couey and Isaacson’s complaints alleged that TEAM violated open records laws on numerous occasions. White’s complaint alleged several County Commissioners met and exchanged communications outside of Sunshine Laws, and ordered staff to program Blackberry devices to bypass County email servers.

Eddins’ report affirms that although there was not enough evidence to move forward on any of the complaints, TEAM “unintentionally” operated outside of applicable Sunshine Law until February 2009.

“We are concerned, however, by certain actions and have made specific recommendations to avoid these continuing to be concerns in the future,” it adds.

Couey points out he’s been fighting to bring TEAM into the Sunshine since 2003.

“He’s my hero,” says First Amendment Foundation President Barbara Peterson of Couey. “I think Mr. Couey did a service to every citizen in the state of Florida.”

Peterson predicts Tuesday’s State’s Attorney report will reverberate throughout Florida.

“It’s going to have a huge impact,” she says. “This report is so important in its impact because we are struggling with this issue all over the state.”

Santa Rosa Commission Chair Don Salter read a Board statement at today’s Regular Meeting that thanked the State Attorney for clarifying TEAM’s Sunshine and open records responsibilities. Salter urged other ‘economic development’ agencies in Florida to follow TEAM’s lead in following the law.

The First Amendment Foundation is a nonprofit organization dedicated to defending public constitutional rights to open government.

Peterson also chaired Governor Charlie Crist’s Commission on Open Government. In 2007, Crist created the Commission to review, evaluate and issue recommendations on Florida open records and meeting laws.

The group took public testimony on Sunshine violations throughout the state, and issued a final report in January of this year.

During that time, Peterson recounts, the Commission heard many similar tales about local “economic development” agencies refusing to follow Sunshine and public records laws.

“It’s a problem we’ve been facing over and over again,” she notes. “There was a lot of consternation about it.”

Eddins’ report leaves no doubt that TEAM Santa Rosa is subject to Sunshine and open records laws.

“The states attorney report made that quite clear,” Peterson observes.

All over Florida, she says, Sunshine complaints against ‘economic development’ agencies are often ignored by local authorities. Peterson praises Eddins’ inquiry and findings.

“That the [State Attorney] investigated so thoroughly says a lot about the quality of your SA,” she remarks.

Santa Rosa’s Board of Commissioners has delegated County ‘economic development’ authority to TEAM Santa Rosa since 1992.

But as recently as last month, some TEAM officials had disputed that the agency performs a public function. Agency President Ed Gray agreed to open meetings and provide public records earlier this year; but that was based on the agency’s receipt of public funding.

Receipt of public funding, in and of itself, does not necessarily require private agencies to conform to Sunshine and open records law. But Florida Statute does require all agencies, including private and nonprofit ones “acting on behalf of any public agency,” to conform.

The law provides limited exemptions to ensure that company secrets remain confidential during recruitment processes.

At a September 17 TEAM Bylaws Committee meeting, members declined to vote on a bylaws change to allow County Commissioners to appoint representatives to TEAM’s Board of Directors. Earlier this year, Santa Rosa Commissioners voted 5-0 to place representatives on TEAM’s Board, pending the bylaws change.

At the September meeting, the new bylaws were already drafted. But during the meeting, several attendees suggested TEAM may not fall under Sunshine requirements. Members expressed concern that Sunshine Law requirements could interfere with members’ ability to travel together on special agency “economic development” trips to Washington, DC. In the past, members have also participated in group “trade missions” to Europe and Central America.

Bylaws Committee members decided to postpone the vote until the State Attorney’s office completed the pending complaint inquiry.

Findings from that inquiry, issued Tuesday, state in part:

“We have reviewed the applicable law and determined that Florida Sunshine Law is applicable to TEAM Santa Rosa.

“A primary basis for this decision is that Santa Rosa County has delegated the performance of its public purpose to a private entity.

“TEAM Santa Rosa also plays an integral role in the public agencies decision making process.

“The Sunshine Law applies not only to the formal decision of the public board but also to the discussions and deliberations behind that decision.

“Clearly the actions of TEAM Santa Rosa in negotiating with businesses and individuals concerning economic development have a great impact on the ultimate decision made by the county in these matters.”

Eddins inquiry concludes that before February 2009, “it is clear that TEAM Santa Rosa operated outside the requirements of the Sunshine Law.”

However, Eddins’ final analysis states there was “insufficient evidence” to prove beyond reasonable doubt that crimes have occurred on any of the complaints in question.

TEAM’s failure to follow Sunshine Law before February 2009 “does not appear to be based on any attempt to intentionally avoid the law but rather on TEAM Santa Rosa’s belief that the Sunshine Law was not applicable to their organization,” the report adds.

County email traffic appears to indicate that County Attorney Tom Dannheisser apprised TEAM officials of their public records responsibilities in 2006.

A June 14, 2006 email from Dannheisser to TEAM Executive Director Cindy Anderson reads:

“Cindy:

The below info addresses:
1) criteria for applying public records act to private organizations
2) the 288.075 economic development exemption
3) retention schedule(attached)

Bottom line is although TEAM does not meet some of the criteria(i.e. it was not created by the county), it meets enough of the criteria to say that public records rules do apply. Court decisions have determined that personal emails do not constitute public records.

Tom”

The email, which Couey obtained via public records request and provided to Eddins’ office, appears to be in response to the question “What agencies are subject to the Public Records Act?” from an unspecified sender.

An earlier email from Anderson to County information management staff, dated April 4, 2008, states in part:

“…As you are aware, we do have "boo-bears" as Commissioner Gordon calls them. In yet another attempt to cause hate and discontent, they asked someone in the County the other day for all our emails. That person said , we don't have them..........what it made me realize is...you do have them and all our confidential files on the "x" drive. With all we have gone through to be at arms length from the County, we really aren't. I think our email and our data storage needs to be here as to not put anyone in a bad situation.

According to County records, TEAM email traffic was removed from the County servers shortly thereafter.

Eddins also concluded:

*TEAM has failed to fully comply with public records law, and should undergo training from an outside agency and comply with Florida statute in the future.

*An incident where TEAM Military Affairs advisor and former TEAM Board member Pete Gandy helped recruit for the job he ultimately was hired for was an ethical issue outside the purview of the SA.

*There was insufficient evidence/corroborating testimony to pursue White’s complaint that Commissioners met outside the Sunshine at a University of West Florida event and on other occasions.

*Emails sent from private addresses between Commissioner Don Salter and Commissioner Gordon Goodin did not involve a topic likely to come before the Board of Commissioners and were one-way in nature. They thus did not violate Sunshine Law.

*Emails regarding the Escambia-Santa Rosa Regional Transportation Authority between Goodin and Commissioner Bob Cole are “troubling,” but do not contain in-depth exchange of ideas sufficient to violate Sunshine Law.

*The State Attorney could not locate evidence to establish a violation occurred related to County staff adapting Blackberry devices to allow outside messaging. Eddins recommends the County adopt a policy prohibiting the use of private email communications to conduct County business; and officials should be cautioned against communicating via email and use disclaimers to “not reply” if emails are used.