I sent the following to Tom Lyons this morning:
Tom:
There aren't many people that have spoken out publicly against Susan Chapman as forcefully as I did. My blog posting [Why I won't be voting for Susan Chapman] was read 446 times. To be fair, this was a position I later tempered as a pragmatic matter. [Whom do I least favor on May 14th? The answer may surprise you]
Anyway, I wanted to establish my credentials as not always subscribing to the Susan Chapman line of thought.
I disagree with the conclusions of your piece. The open meeting and sunshine laws are there to prevent discussion between those governed by the law. Discussion. That means a back and forth, a dialog, call and response, question and answer, scheming, conspiring, plotting, ----- not stating an opinion.
There is a crucial difference -- in order to provide leadership public officials have to be able to express their views, and not just in advertised, open, recorded meetings. AND, they have to be able to find out what their constituents think and not just in advertised, open, recorded meetings The sunshine law exists as an impediment to scheming, vote trading, and strategizing between public officials, but that is different than expressing an opinion on a matter of public policy.
You are correct that with no meeting record we can't tell if Susan or Suzanne responded directly to each other with a "No, I disagree with what she said." or "She's right." But if commissioners want to collude, we have no way of knowing what they may have said on a commissioner-to-commissioner phone call either. Sunshine laws don't prevent misbehavior, they just set expectations and provide impediments and penalties.
There is a difference between Susan having a discussion with merchants with Commissioner Atwell present and having a discussion with Commissioner Atwell with some merchants present -- I hope you can see that.
Your interpretation prevents elected and appointed officials from attending the same meeting if it is not advertised, open to the public, and memorialized in some way. That is very debilitating and that interpretation has kept me from attending meetings I should have been at. I serve with many committed local citizen environmentalists on ESLOC, but recently only one of us could meet with county consultants to discuss environmental matters. When two County Commissioners attend an ESLOC meeting, they apparently have been advised that one has to leave the room if the other wants to say something -- and this is at an advertised, open to the public meeting that will produce both minutes and an audio record!
Taken to extremes, officials subject to your sunshine/open meeting law interpretation could not appear as candidates on a Tiger Bay panel or attend the New Years Eve pineapple drop.
The crazy thing is I can write a Herald Tribune guest column, post on Facebook or any of my several blogs, or tweet my thoughts on any subject and those I serve with (on ESLOC, PARC, and MRMCC) are free to read my pronouncements, so long as they don't respond, which which would make it a communication or discussion. And I am free to read their thoughts in traditional or internet-mediated media. How is that different from two of us attending a meeting and expressing our views, so long as we aren't engaging each other in a two-way exchange?
Susan's challenge is, in my opinion, on target and much needed. Public officials should have the right to express their views, even if colleagues are present. They should not have the right to engage in a discussion with those colleagues.
So, I'm writing to encourage you to rethink, reconsider, and ideally retrieve some of the opinions expressed in today's column.
Jono Miller
ReplyDeleteRight from the beginning, the city attorney stated at a commission meeting that he believed that the two commissioners had not violated the sunshine law. The campaign to have a public trial in a newspaper that refuses to publish accurately what is transpiring is unconscionable. The newspaper has compromised itself in order to sway public opinion against the defendant. It is well-known that the editorial staff is enamoured with the main actor in this drama, who claims not to have a vested interest, yet is working for the attorney representing the plaintiff. That smacks of an ethical violation, certainly implies monetary gain for participation in all of the proceedings. Given the avoidance techniques being used by the plaintiff to avoid trial, implies that the legal team for the plaintiff knows that their lawsuit is unfounded. Their MO usually is to make it more attractive for a quick settlement than to challenge the law suit. It is said that the plaintiff has been unable to produce any evidence that their allegation about the behavior of the commissioners is accurate. Some suspect that the attempt to expand the sunshine law through this lawsuit is motivated to drive a wedge into the case law for it that would enable easy pickings for future lawsuits. It certainly smacks of a campaign to wear down the defendant with a trial in the newspaper instead of commencing with the trial -- that would vindicate the defense.
Chuck Williams
Kim Hackett of the HT did exactly the same thing in Venice, writing that three newly elected Council members had a "meeting" at a five o'clock wine and cheese gathering by a serving member to welcome them to Council. It was strictly a social event with wives, but the printed report poisoned the public opinion well. Further, none of the three had been certified by the Clerk yet or sworn in. In Venice your term does not start at election night, but rather when the vote is certified on the day of swearing in. This poor journalism damned innocent people and was only the first of several like it.
DeleteI didn't know that. There is a grey area that I am not familiar with that occurs between election and being sworn in. Does anyone reading this know that interregnum (not a word I get to use a lot) is handled pursuant to sunshine/open meeting laws?
DeleteThere is no grey area. Sunshine Law doesn't kick in until the election is certified by the Supervisor of Elections. Usually that happens a day or two after the election. However, in Venice, the City Clerk, Lori Stelzer, is also the S of E for municipal elections (we contract out with Kathy Dent to actually run the elections), and Stelzer doesn't certify the elections until the same publicly advertised meeting that the candidates are sworn in at. The time that Ed was Mayor-elect was approximately 10 minutes during a public meeting. Therefore, it was legally impossible for him to have violated the Sunshine Law prior to taking office. Now after office, that's a different story and Ed and I have disagreed on that over the years.
DeleteI read Tom Lyons article. Much of the time I disagree with him. I think his opinion is valid as his opinion. At this point, the courts will decide. But if you have problem with the validity of the law it is good to ask the court for their opinion, and not by violating it and then challenging it. If you are going to violate a law to challenge it you should do it in plain view with the expressed purpose of challenging it with the permission of the rest of the commission. In this case, it is confounded with all sorts of other issues that were supposed to be prevented by having a government in the sunshine.
ReplyDeleteThanks Maynard. I agree it was an opinion piece. I wasn't there but I have no reason to believe anyone set out to make the meeting in question some sort of test case.
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