Former Clearwater vice mayor withheld public record text messages

CLEARWATER —On Nov. 13 the Tampa Bay Times requested the five City Council members provide all text messages from their personal and city phones that discussed government affairs since Jan. 1.

Two days later, without prior warning to City Manager Bill Horne or his executive staff, Vice Mayor Doreen Caudell announced during the Nov. 15 council meeting she would be resigning at the end of the month to focus on her general contracting business. She then walked out of the chambers in the middle of the meeting.

Before her last day Nov. 30 the only text messages Caudell turned over from her personal cell for an 11-month period were partial exchanges with five private citizens about her Nov. 15 resignation announcement. She stated Wednesday that she did not use her personal phone for city business while in office.

But subsequent requests the Times made to a sample of six city officials for their messages to and from Caudell's personal cell resulted in dozens of messages, confirming Caudell did in fact use her private number for city business. Under Florida's public records law, Caudell was required to retain and disclose all text messages she exchanged with city officials and private citizens that dealt with city affairs.

Her text messages on city business with private citizens would only be accessible with Caudell's compliance with the law or a subpoena, said Frank LoMonte, director of The Brechner Center for Freedom of Information at the University of Florida.

"If you're not capturing the exchange of messages of government officials, then you're left in the dark as to how decisions got made," LoMonte said. "You can see what happened at the council meeting when the decision is announced, but you can't see the iceberg beneath the surface. You can't see what went into the forming of decisions. You can't say who might have influenced or what factors went into it."

Caudell said she only had the five exchanges from her personal cell to turn over because she had never realized until the Times request that "my phone resets after 30 days" and all messages were being automatically deleted. First Amendment Foundation president Barbara Petersen said it was Caudell's legal responsibility to retain texts about city business on her personal phone and to ensure they weren't being deleted.

And some of Caudell's texts that the Times received through other officials were within 30 days of the newspaper's Nov. 13 request. On Nov. 9 Caudell texted City Attorney Pam Akin a link to a news story about motorized scooters in Indianapolis.

"Well it will generate income to the city," Caudell stated.

Another exchange Caudell did not disclose shed light on her relationship with City Manager Bill Horne.

"When (council member David Allbritton) said 'we will be looking for a manager in 2020' and you said in a low voice 'or sooner,' what did you mean?" according to a text Horne provided, which he sent to Caudell on Aug. 14 after the council voted to place a strong-mayor referendum on the November ballot. Allbritton had stated that if the referendum were to fail, the council would have to look for a new city manager in 2020, the year Horne plans to retire. Voters rejected the referendum.

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"Oh if the citizens vote this to remain the same and you continue to leave in 2020 ... we, you more importantly, will need to scout a succession plan," Caudell responded.

City policy allows elected officials to use their personal cell numbers for government business as long as they disclose the messages upon request, according to Information Technology Director Dan Mayer. But Mayer acknowledged this policy depends on total honesty and transparency by the official.

"I don't have the authority to say 'give us your personal phone, we need to evaluate it for public records,'" Mayer said. "The expectation is they disclose everything."

City officials are also issued government cell phones but have not been required to use them, Mayer said. Those devices are connected to text message-capturing software the city subscribes to called Smarsh, which allows the administration to access messages remotely.

But even that is imperfect. Mayer said the city discovered this year that Smarsh was not capturing texts sent through the iMessage service that is default on iPhones. He said the city is working to disable iMessaging on all city devices so texts are only sent through the SMS service, which Smarsh can capture.

Still, when it comes to personal devices, there is no safeguard to verify whether an elected official discloses all public records, said Tampa local government lawyer Richard Harrison. Harrison said he advises clients to use only government devices for government business.

But how do you know for sure if they aren't using personal phones on the side?

"It's a conundrum," Harrison said. "Because all the answers the lawyers can come up with at the end of the day still rely on elected officials to do what they're supposed to do."

City Attorney Pam Akin said elected officials receive annual training on the public records law. Elected in 2012, Caudell would have received seven annual trainings on what she was legally required to retain and disclose.

After the Times requested the council members' texts on Nov. 13, Horne said he advised Caudell he anticipated his texts to be requested as well and that he had messages with her that he would be providing.

If she didn't provide a matching record, it would be clear she didn't disclose all of her texts, Horne recalls explaining to Caudell.

"Everything we do is public ... the law doesn't give any breaks here," Horne said. "If things happened and you weren't thinking about that at the time, now you have a public record, then that's too bad."

Contact Tracey McManus at tmcmanus@tampabay.com or (727) 445-4151. Follow @TroMcManus.