One Way Communications are NOT a Meeting Out of the Sunshine

Lots of ignorance on display at last night's meeting to foment ill-will on the board and to create chaos on the fourth floor.

At the center of the circus was District 2 commissioner Mike Kohler and his secretary Steve Stoberger--who both utilized their position(s) to make ominous pronouncements, bloviate on ridiculous conspiracy theories, and level baseless allegations against me to score points politically.

The ultimate goal for them is to see the D2 secretary, Strohberger, elected to D1--where he will have to run against me to make that happen.  

Reminds me of the type of garbage the former D2 Commissioner and his secretary tried to do.  LOL.

Similar to these previous attacks and machinations against me from the former commissioner and the last D2 secretary---- these new ones by the new guys will not be successful either--because at the end of it all I have done nothing illegal--never have and never will.

One citizen, Glen Conrad ( a loyal acolyte of disgraced former commissioner Doug Underhill), also made some salacious, unfounded, and ignorant allegations that were baseless.

At the heart of the targed attack last night was their (Conrad, Kohler, Stroberger) pious "feeling" that an investigation into what they believe to be a sunshine law violation "needs be initiated. " They set aside the fact that all information related to this matter has already been provided to law enforcement as a part of at least two currently ongoing investigations and now two court proceedings, one of which focuses on  the much more serious criminal allegations that protected records were stolen in violation of  Fl Stat. 817.5685.  And news articles and other information was out last week--so folks are aware of what was put in the PNJ article, and the important officials that would investigate any allegations of sunshine law violations already know about what's happening-----Mike, Glen and Steve.

But what Mike, Glen, and Steve need to read is this:  One way communications do not constitute a violation of sunshine or a meeting out of the sunshine.  As I stated at last night's meeting--I've been at this work a while now, and have a plenary understanding of these laws and requirements, unlike Commissioner Kohler who is new and continuously displays this.  

A number of years back I hired a powerhouse Tallahassee firm to provide an opinion on just this topic--one way communications between board members and potentially using an internet website as an intermediary--with controls.  It is legal as long as responses are not solicited back to the sender prior to an in the sunshine meeting and as long as a record of what is sent is maintained as a public record.  From the  opinion I independently solicited, paid for,  and received:

In the case of the PNJ hatchet job that apparently triggered the trio of individuals last night to call for an investigation----the PNJ article itself demonstrates there was no chance the sunshine law was implicated.  They should re-read it S-L-O-W-L-Y. 

There was an admonition NOT to solicit a response, and the record of what was given was maintained.   Moreover--under oath the citizen to whom I was speaking about my redistricting plan said he has not delivered messages between commissioners, and there is no evidence he did so in this case.  Finally,  no response ever came back, no polling was done of board members, and an alternate plan was adopted at the regular, advertised meeting that followed a few days later.

Be upset about what you want, but be careful about making baseless, unfounded, and frankly ignorant accusations about me.  

As I said in the meeting, Mike is a nurse, I am sure he is much more adept than I at inserting catheters, cleaning bed pans, giving patients shots, changing linen, inserting IV's and performing spongebaths.  He's probably very adept at doing these things at doctors' direction. Good, I'm glad that is his specialty (I say this in no way to denigrate him or his profession-----my own daughter is a nurse!) 

However, with respect to local board politics and board dynamics with his action, recent votes, comments, and antics last night----------it appears Mike is tone-deaf and has much to learn about getting consensus on the BCC.  Even last night he ranted over something chastising the board and encouraging us to vote NO!--Then we turned around and without a single word of debate voted to approve the item which was wholly appropriate and necessary.

Mike just doesn't know how to read a room.  He's starting to rack up a lot of these 4-1 and 3-2 losses.

Luckily he and his secretary have a few more years left to learn.  Hopefully they'll get it sorted.

In the meantime, some may not like my responses to this one citizens last night, Kohler, and his secretary Stroberger----so be it.  When someone is trying to stick my head in a political gullotine with pious ignorance, ad hominems, and dubious, unsubstatiated claims--never be surprised if I defend myself aggressively.

In fact, you can count on it.  😃

Devastating Document: It's PAST Time for the County to be Out of This!

Friday's ruling demonstrates that it is past time for the full board to be out of this lawsuit caused solely and completely by one member of the full board and specifically NOT by the other members...

Late Friday afternoon a devastating document was released.  It was forwarded to Board Members subsequently.

The document is not devastating for all the individual members of the Board of County Commissioners, per se--but rather for one member of the Board-commissioner Doug Underhill and his legal team.  

The problem is that currently the full Board is also a party to the suit.  

But upon reading this document, it should be clear that it is past time for the rest of the board to be removed from this lawsuit.  As a board, we have no control over Doug Underhill's social media postings on his individually owned and maintained accounts--so why are we in this still?  We cooperated and spent $10,000 to download all the files from Doug Underhill's facebook accounts so why are we in this still?  Commissioner Underhill did not share those files with the county, and he stated that all the files from that document download the county paid for that were public records were turned over--so why are we in this still?  

So at this point, the county has been proactive in doing everything we can do to compel Commissioner Underhill to comply with the records law--to the extent we can and are able. He acted individually in all of this, as an individually elected constitutional officer, so why are we in this still?? 

Yes, it is time--no PAST TIME--- for  the rest of the Board to be released from the lawsuit caused by one member's conduct.  If it is true that all the bona fide public records Doug Underhill possessed were NOT turned over--that is on him and not on us, period.  Why are we still in this?

Read the document, an order from Magistrate Hope Thai Cannon, here.  Then ask yourself this question, Why is the full board dragged into this---why are we still in this?

The document disputes many assertions made by Commissioner Underhill, most notably that he has already turned over all public records from his facebook account--and that the remaining 24,000 pages from his facebook accounts are, according to him, not public records.  The Judge in this ruling disagrees and so states in this order:  From to the order:

"Based on the Court’s review of each of the over 24,000 pages, the Court finds

they do include public records. Specifically, the Court finds Facebook Messenger

conversations containing the following content constitute a public record:

(1) Requests by constituents for Commissioner Underhill to take action or

requests from Commissioner Underhill for a constituent to act—this includes, for

example, a request from a resident for Commissioner Underhill to look into a matter

affecting the District or for Commissioner Underhill to consider voting a certain way

on a County matter, as well as requests from Commissioner Underhill for residents

to come out in support of a County issue and messages from Commissioner

Underhill identifying ways a Facebook User can communicate with;

(2) General expressions of thanks by residents for Commissioner

Underhill’s service to the County—this includes, for example a constituent’s

appreciation for the manner in which Commissioner Underhill responded to an

issue;

(3) Requests for information about County matters from constituents and

Commissioner Underhill’s response—this includes, for example, a request from a

constituent regarding whether District 2 covers certain areas and a request from a

business owner on his obligations under the COVID restrictions;

(4) Expressions of disagreement or complaints by constituents of

Commissioner Underhill’s position on County matters—this includes, for example,

a constituent’s discontent due to being blocked from Underhill’s Facebook pages

Sunshine: Part II

Some folks think they understand the sunshine law and what it means.  When they begin to write about it, their ignorance on the topic is spotlighted.....

I am not a lawyer, but I still have an opinion, just like the "facebook-page self-anointed experts" do on topics like the Florida Sunshine Law.  So here is my opinion on Sunshine.

One thing I understand is that giving my opinion on a topic or a subject that may come before the full board for a vote is NOT a violation of the sunshine law.  That means I can blog and facebook post and do radio and TV interviews on topics that might come before the board without being in violation of this law.

---But what about if I sent a memo outlining my reasons for supporting something specific on an agenda, to my fellow commissioners before a vote,  telling them implicitly how I was going to vote....Would that act in and of itself be a violation of the Sunshine Law?  NO it would not be, so long as I didn't solicit or receive responses from my fellow board members--that's my understanding of the law.  (I don't do this, I'm just pointing out that one-way communications, so far as I understand it, are not sunshine law violations).

---How about this one:  What if I walked up to one of my fellow commissioners at a social function not at a meeting and said "Hey-I'm going to vote YES for the [fill in the topic coming up for a vote]!!"  and then walked away?  Would that be a violation?  NO, so long as the other board member said nothing and did not respond in any way--this is my understanding of the law.  (I'd never do this either--and it would be risky because if the board member who I said this to said anything back signalling his/her intention--this could be construed a meeting out of the Sunshine)

What WOULD be problematic and what COULD be construed a meeting out of the Sunshine?

---Back to back meetings with members of the board individually by staff members or polling the board in advance of an advertised meeting by calling the members one by one.  These individual meetings or calls could happen and the individual board members might not even know.  These are the scenarios that concern me.

--Conduits:  If a person takes my opinion on a topic then goes to another commissioner and gets his thought on that topic, and then on a subsequent discussion slips and discloses what the other board member said----that could be a violation via the conduit who relayed the information.

Sunshine! Part I

Some folks think they understand the sunshine law and what it means.  When they begin to write about it, their ignorance on the topic is spotlighted.....

As I return from a really relaxing, really great weekend getaway out of state-- I see some familiar faces online spouting inaccurate, ridiculous tripe purported to be the "truth."  In some of this garbage that is nothing more than ill-informed opinion-- I am named.

But the opinions expressed are not factual.  They are simply opinions--and everybody has one, just like the famous old saying goes, the one everyone knows but I won't spell it out for you here.

So the latest "Opinion" being bandied about as fact is that it is against the law to project an opinion on a topic ahead of a vote.  ILLEGAL!!  "It is illegal it is a violation of the sunshine law!!"they are saying as they work themselves into a frenzied lather with their conjecture and speculation on a topic that they clearly do not understand.

So let me explain the way it really works, in my opinion and in practice.  (i.e. this is how I operate, and as I have operated since 2006 when I was first elected as a school board member locally)

1.  I blog about things that interest me.  I do this to share my thoughts on topics with constituents.  I do this to clearly stake out my opinions on  topics of interest--some of which I also strongly advocate for in my work as an elected representative on the Escambia Board of County Commissioners.  (and previously as a member of the Escambia County School Board) I do this often so that folks will know in advance how I intend to vote on issues.

2.  I maintain a Commissioner Facebook Page--from which I interact with constituents for the reasons listed in #1 above.  I do not block anyone, nor do I erase comments.

3.  I write OP-eds in the PNJ from time to time.  for the same reasons listed above, in #1.

4.  I go on radio shows frequently, when I am asked to do so, and discuss topics of interest and topics that will come before the board for a vote.  for the same reasons mentioned in #1 above.

5.  I appear from time to time on Channel 3. for the same reasons mentioned in #1 above.

6.  I do monthly coffee's and frequent town hall meetings to hear from constituents and to let constituents know where I stand on a host of topics.  I do these for many reasons and for the same reasons mentioned in #1 above.


So for folks to get so exercised over this is really quite perplexing.  Why else would the media want to speak with any of us, the elected board members, if we could not discuss anything that could potentially come before the commission for a vote?  Believe me, they don't care nor do they have any interest in talking to us about our hobbies or what restaurants we like.  They ask us for our thoughts on topics that involve our official duties!  Hello?!?

Giving my opinion out like I do is NOT a violation of the sunshine law, no matter what any self-anointed facebook site "expert" wants you to believe. The lack of understanding of this is really quite astonishing....More on this in Part II.

Emails Shed Light on What Prompted Memorandum

I have been provided a large stack of emails that I requested regarding the events leading up to a memo that was sent to me by School Board Attorney Donna Waters last week.

The emails shed light on a lot of different aspects of what apparently led to the creation of the memo that was sent to me, the memo that was improper, unprofessional, and badly flawed in my opinion.

Sadly, it appears as if several social justice groups and at least one parent prompted this memo to be written.  I'm posting those emails here.

The Superintendent of Schools has told me flatly that he did not request a memo be written by Mrs. Waters regarding my conduct.

I certainly did not request it--I did nothing wrong.  Mrs. Waters certainly knows how I feel about this matter upon reading this response and this follow up.

So who requested that the Board Attorney write this memo to me, copied to multiple others?

Here is what I believe...

It appears as if the attorney had done a significant amount of research in order to write and submit a "Viewpoint" to the Pensacola News Journal.  Whether or not this was ever submitted, I do not know.

Apparently, possibly, A radio interview by the father of the victim of the WFHS bus incident may have circumvented the need for this "Viewpoint" to be submitted.  Who knows?

The radio interview totally destroyed the PNJ's characterization of this incident and a lot of district employees were happy that this parent spoke out.  This parent heralded the actions of the board and district, while simultaneously chastising the PNJ for their horrible straw man hatchet job editorial of 10-18-2015.

So with all of the research on FERPA compiled, and after the father of the victim spoke out, why would such a memo subsequently be sent by an attorney to her client?  Why not a phone call or a discreet conversation.  Why?

It appears that I was excoriated because some parties outside of the school board, the Board Attorney, and perhaps even the chair of the board did not like the fact that I commented on social media.

Apparently they didn't like me countering the apparent propaganda  and hearsay published on the PNJ with hearsay from constituents that I was receiving about this WFHS bus incident that was totally opposite of the narrative the PNJ was trying to create?

Who knows?

But at the end of the day, I have yet to be officially briefed on this matter.  I have not seen any videos, documents, or hearing transcripts.  I've yet to even receive an official discipline recommendation for any students involved in this incident.  I do not hold any student records I do not have access to any student records, and I have divulged no records to anyone and I certainly have not violated FERPA!  If anyone at the district thought I had violated a law, they should have reported it!  I didn't violate any law, and I don't violate laws.

That is why I feel the written memo was wrong, boderline libelous, and the situation was badly handled by our legal office and others; the memo never should have been written.  This memo is nothing but a dog-whistle being blown loudly  that could embolden enemies of me in particular, and the school board generally, to investigate and dig further and make this situation much more complex for the client.

What attorney in his right mind would write such a public record memo that could potentially bring harm to his/her client or a part thereof of his/her client?

Why so quickly and prematurely write a legal opinion that one part of her client must recuse?

This was outrageous.

This MESS will be discussed at the next board workshop, and hopefully a better, more focused board policy will be forthcoming that will speak to the when, where, and how written memos about the client or parts thereof are created and disseminated publicly by the School Board's General Counsel going forward.

Was this a Violation of the Sunshine Law?

Yesterday afternoon and early evening was surreal.  After receiving this email memorandum from the school board's attorney, and after I immediately responded back to the attorney with this email (redacted), my response was copied, by our attorney, to another board member.  (I'm redacting my response to shield my thoughts on how I may vote on the WFHS bus incident.)

I am astonished that our own attorney would copy another board member with my response, which included my thoughts on an incident that will surely come before the board for a vote.  Was this a violation of the Sunshine Law? I'm not an attorney and I don't know for sure, but I have asked our attorney to provide a written memo on this question, post haste.

First off, the initial email that I received with the memorandum was uncalled for, I did not request her opinion, and I did not need her opinion.  What she suggests  in her memo I disavow and disagree with in the strongest terms.  It is borderline libelous.  Nobody can believe, nor has anyone I have spoken with about this disparaging memo ever heard of an attorney excoriating his/her own client in such a written memo.

No phone call, no discretion, just a chastising, chiding, inappropriate memo.

I have done no wrong, and I have violated no laws.  I simply corrected an incorrect narrative that was being told in the PNJ over and over, a narrative that was completely opposite of what I had been told by multiple parents and students with firsthand knowledge of the incident in question.  I have no official knowledge of this incident, I do not know, even to this minute, what these students' eventual punishment will be. I do not know who these students were.  I have no official knowledge of this incident, a point I made clear in every post, blog entry, and comment I have made thus far with respect to this incident.

This memo, by our attorney to her client, was an absolute disaster and is totally baseless.  The only thing I have done here is to counter an ideologically slanted, biased narrative in the press with hearsay of which I was aware that was completely opposite of what hearsay the PNJ was publishing.

  With the father's own testimony on the record now, completely discrediting the PNJ and making them appear foolish, It is quite puzzling to me as to why I would now be chastised.  I stood up and called BS on the slanted yellow journalism.  Jefferson said it best--"Evil flourishes when good men