Nickens: Why the Times joined the lawsuit against the governor and Cabinet

The Florida Cabinet meets at the Florida State Fair.
The Florida Cabinet meets at the Florida State Fair.
Published Feb. 21, 2015

It should not have come to this.

Citizens, good government groups and news media organizations should not have to file a lawsuit to force someone to examine whether Florida's highest elected officials violated the Sunshine Law. Yet last week 14 plaintiffs (including Times Publishing Co., which publishes the Tampa Bay Times) filed an amended lawsuit that asks a circuit court judge to find that the governor and Cabinet members conducted public business in secret.

The lawsuit is a last resort, and the Times joined as a plaintiff with some reluctance and after much discussion among top editors. There are more direct ways to determine whether the state's top leaders violated their oath to uphold the Florida Constitution and ignored the fundamental principle of open government. But no one else will do what has to be done.

Leon County State Attorney Willie Meggs won't investigate whether there was a public meetings violation in the way Gov. Rick Scott abruptly ousted Florida Department of Law Enforcement Commissioner Gerald Bailey. Never mind that Bailey reported to the governor and Cabinet — Attorney General Pam Bondi, Chief Financial Officer Jeff Atwater and Agriculture Commissioner Adam Putnam. Never mind that the governor cannot hire or fire the head of FDLE by himself. Never mind that there was no public discussion, no public vote, no nothing.

Bondi, who ought to be interested in enforcing the Sunshine Law, won't investigate. She hasn't asked the statewide prosecutor to look into it. She hasn't even responded to a letter from the First Amendment Foundation suggesting that she ask her good friend the governor to appoint a special prosecutor. (Full disclosure: I am member of the First Amendment Foundation's board.)

Good luck getting Scott to ask for an investigation of himself. This governor has less regard for open government than any governor in the modern era.

With incurious prosecutors and elected officials refusing to protect the public's interest in open government at the highest level, the last recourse is to go to court to ask a judge to enforce the law.

Floridians are proud of the Sunshine State's commitment to public records and open meetings. They want to know what their government is up to on their behalf, and they want the public's business to be conducted in public. It's hard to praise or protest what government is doing if it is done in secret, and it is hard to hold elected officials accountable on Election Day if they make decisions behind closed doors.

In general, state law requires that two members of the same public board cannot discuss or decide public business in private. Two county commissioners cannot meet in secret, and neither can two school board members or two city council members. The governor and Cabinet members are similarly required as a collegial group to conduct business in public by state law and the Florida Constitution.

State law also bans public officials on such panels from using conduits to facilitate discussions, or from polling each other about their positions on public issues.

In this situation, no one claims that Scott and Cabinet members met in secret and decided to fire the head of the state's top law enforcement agency. But what has been publicly reported is disturbing.

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Bailey told Steve Bousquet of the Times/Herald capital bureau that he was visited by Pete Antonacci, then the governor's general counsel, on Dec. 16 and informed he had hours to resign or retire. Bailey said Antonacci told him Scott was acting with the concurrence of the Cabinet members. Yet Bailey's ouster was never discussed at a public meeting, and all three Cabinet members expressed surprise when they learned from reporters that Bailey did not leave voluntarily.

Second, Scott's written explanation raises red flags. The question and answer document released last month says that before Dec. 16, the "Governor's staff notified cabinet staff … that the Governor wanted new leadership at FDLE. Cabinet staff raised no objection.'' It says that on Dec. 16, "cabinet staff were notified that Gerald Bailey would be met with that day about the Governor's desire for new leadership at FDLE.''

Third, Bondi told reporters last month that she agreed that the Sunshine Law might have been violated. And Putnam has named the Scott aides who told his aide that the governor wanted to make changes at FDLE and elsewhere.

Yet Meggs, the state attorney, won't investigate whether the Sunshine Law has been violated and calls it "nothing more than a squabble.'' He even suggested open meetings violations could not be prosecuted unless one of the participants confesses. That logic suggests public officials could meet in secret and decide whatever they want as long as they kept their mouths shut.

Floridians want government to conduct the public's business in public, and the Florida Constitution and state law requires it. The state's top law enforcement officer was forced out of his job by the governor in secret. If the proper authorities won't investigate whether the Sunshine Law was violated, the only remaining option is to ask a judge to sort it out.