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Probe shows it's time to update Sunshine Law

fgrimm@MiamiHerald.com

Whatever ignominious fate awaits Beverley Gallagher in criminal court, she ought to be fondly remembered as the creator of an irrefutable argument for strengthening open-records laws.

Gallagher did it one cellphone message after another, as she texted herself ever deeper into the FBI's public corruption sting.

Unhappily for the ousted Broward School Board member, hundreds of her texts were exchanged with an FBI undercover agent posing as a subcontractor looking to bribe his way into a school renovation project. The FBI, collecting evidence that Gallagher insinuated herself into the bid-selection process on the agent's behalf, also captured suspicious exchanges with a major contractor and with a Gallagher confidante on the bid-selection committee.

Federal prosecutors haven't revealed the contents of those text messages, but it appears that Gallagher, incessant as a teenager, indulged in an electronic orgy of self-incrimination.

Her texts may have helped relegate her to the status of criminal defendant, but they also made her the accidental champion of modernizing the Sunshine Law.

Gallagher's case destroyed the argument often heard from other elected officials; that their or their staffers' texts with lobbyists, vendors, other elected officials, contractors -- even messages tapped out during public meetings -- are innocent, mundane, personal and ought to be beyond the reach of open-records law.

Gallagher, with help from the FBI, has shown us otherwise.

With e-mail now firmly established as public record, elected officials have kept a technological step ahead of the Sunshine Law with cellphone texts or Blackberry-to-Blackberry messaging. It's a cynical dodge, knowing that the state law's application to these technologies remains murky.

Attorney General Bill McCollum ordered that text messages to and from his staff should be retained and made available to the public. But he's not yet ready to order other government agencies to abide by that interpretation.

The Public Service Commission, embarrassed by revelations of Blackberry messaging between its staffers and utility reps, has banned the practice. But there's widespread suspicion in other venues that lobbyists secretly text information to legislators, school board members and city and county commissioners during public meetings. (Last winter, in San Jose, Calif., such suspicions were confirmed when a lobbyist inadvertently texted instructions to the wrong city councilmen on how to vote.)

McCollum has created a Sunshine Technology Team to find how to adapt state law to new technologies. But there's no need to wait on state action to bring sunshine back to local government. In August, Escambia County banned the use of cell phones, BlackBerrys, PDAs or laptops by county commissioners during public meetings or workshops. Commissioners can't text, instant message or use social networking websites or private e-mail accounts for county business.

Escambia County has done no more than adapt the intent of open-records law to modern technology. Governmental bodies in South Florida should follow suit. Because their constitutents aren't 20th Century lunkheads who think texts are just so much LOL, not worth examining.

Bev Gallagher, however unwittingly, showed us otherwise.

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