Nickens: Sunshine Law case brings positive change to Florida government

Gov. Rick Scott’s official Twitter account, @FLGovScott, tweeted this picture Tuesday morning of him signing the state budget. He did it in private.
Gov. Rick Scott’s official Twitter account, @FLGovScott, tweeted this picture Tuesday morning of him signing the state budget. He did it in private.
Published June 26, 2015

About 8:25 a.m. Tuesday, Gov. Rick Scott's office emailed to reporters his daily schedule, which is a public record.

Surprise. At 8:30 a.m., the governor would sign into law the 2015-16 state budget that the Legislature had just approved four days earlier and announce which projects he had vetoed. The Tampa Bay Times' capital bureau chief, Steve Bousquet, hustled up the hill from the press center to the governor's office on the first floor of the Capitol for the traditional news conference.

Surprise. For the first time in memory, the governor would not sign the budget in public and answer questions about his decisions. He would sign it in private, behind locked doors. An aide promised to email Bousquet a picture.

Less than a couple of hours later, the governor and the three Cabinet members voted unanimously to approve a mediation agreement and settle a lawsuit filed by open government advocates and media organizations, including the Times, that accused them of violating the state's open meeting laws. They approved the agreement that requires several positive reforms without one word of discussion, and they had little to say about it afterward.

Those two scenes from Tuesday morning reflect the disturbing atmosphere in Tallahassee that is so at odds with this state's long commitment to public records and open government. They are not identical. Scott had no legal requirement to sign the state budget in public, and he did answer questions later. There is a strong argument that the governor and Cabinet violated open meetings laws in the way former Florida Department of Law Enforcement Commissioner Gerald Bailey was abruptly fired in December without a public vote.

But the thread running through these examples is a larger truth. There is a disdain for open government in Tallahassee and a lack of respect for Floridians who are legally entitled to know what their elected leaders are up to, particularly from this governor. The most effective disinfectant remains vigilant reporting by news organizations and, when all else fails, lawsuits filed by those companies and individuals willing to go to court to see that public officials follow state law and the Florida Constitution.

It was Bousquet's initial reporting in January that revealed the circumstances surrounding Bailey's dismissal, and he remains the only reporter who has interviewed Bailey on the record. Scott kept suggesting it was Bailey's idea to resign until Bailey told Bousquet that the governor's general counsel demanded he resign immediately and indicated that Scott had the backing of the Cabinet.

That certainly sounds like a violation of public meetings laws. The FDLE commissioner reports to the governor and Cabinet. The governor and Cabinet — Attorney General Pam Bondi, Chief Financial Officer Jeff Atwater and Agriculture Commissioner Adam Putnam — are required to meet in public. All three Cabinet members denied coordinating Bailey's ouster with the governor, and Atwater and Putnam particularly expressed their concern about the way Scott forced Bailey out.

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There was plenty of smoke. Yet no one wanted to look for the fire. Leon State Attorney Willie Meggs would not investigate. Bondi wouldn't ask the statewide prosecutor to investigate. Scott wouldn't appoint a special prosecutor. So the lawsuit that the Times joined was a last resort to hold the state's top leaders accountable, and the lawsuit led to the mediation and the agreement on reforms.

Mediation has its quirks. By law, the discussions are kept secret even though this lawsuit was about open government. As the Times' representative in the mediation, that puts me in an awkward situation as a journalist.

There also is a substantial cost to taxpayers. The state will pay $55,000 in legal fees to the plaintiffs, but it also will pay at least $173,000 in legal fees to the army of lawyers that defended the governor and Cabinet. It does not sit well that the taxpayers have to pay so much to force their elected leaders to embrace open government.

That said, the mediation agreement is a positive outcome. It includes requirements that the governor and Cabinet already are pursuing, including publicly interviewing any candidates they will jointly hire. All meetings of Cabinet aides will be recorded, broadcast and posted on the Internet. All senior staff and Cabinet aides will be required to attend Sunshine Law training annually.

This is potentially the best change: The governor and Cabinet, and senior staff, shall promptly forward to a state government email account all public records sent or received on any private account. Public records laws do not require that now, and this should make it easier to obtain public records that now can be hidden forever in private email accounts that few know exist.

Like any compromise, the mediation agreement does not satisfy everyone. There will be no sworn statements about what happened with regard to Bailey's removal. There will be no finding by a court that the governor and Cabinet violated public meetings laws.

Floridians can judge for themselves what happened, and they can hold the governor and Cabinet members accountable if they seek public office again. The lawsuit sent a powerful message that Floridians expect their elected leaders to follow state law and the Florida Constitution, and to conduct the public's business in the sunshine. The mediation agreement charts a positive way forward, details reforms that will benefit the public and already has changed state government for the better.