Following a discussion at last week’s City Commission meeting about a welcome sign at the entrance to Miami Beach, Commissioner John Elizabeth Alemán took to Facebook to criticize the proposed design.
“Am I wrong? This giant LED display, to me, does not at all reflect who we are, is super ugly, and not what I want to see on my way home every day,” she wrote.
Another commissioner, Ricky Arriola, jumped into the conversation. “No one has a better idea. I wanted $$$ for world class entrance signs in the [general obligation] Bond but was outvoted by Commission,” he commented on the post. “Now we want new entrance signs and we have no money and no ideas.”
The online squabbling was no different from the arguments commissioners routinely have from the dais. But for public officials in Florida, bickering on social media could be against the law.
Florida has a broad open government law, known as the Sunshine Law, that applies to any conversation between officials who belong to the same elected body, even if the conversation takes place online in a public forum.
While it’s not illegal for public officials to post about city business on social media, responding to another official’s post could be a violation of the Sunshine Law, said Frank LoMonte, director of the University of Florida’s Brechner Center for Freedom of Information.
“The [Florida] attorney general’s office has taken the position that an exchange of views among members of an elected board in any medium, even an online one, qualifies as a ‘meeting’ for purposes of Florida’s open-meetings law,” LoMonte said in an email. And any public meetings have to be open to the public and advertised ahead of time.
“A commissioner could certainly go on the official City Hall Facebook page and post an announcement about some upcoming event, or even comment on some newsworthy item. That’s perfectly legal,” LoMonte added. “Where the posting turns into a meeting is when the members of the body use Facebook to deliberate among themselves over an issue that might foreseeably come before them for a vote.”
In the case of the entrance sign, the City Commission had already voted to send the proposal to the city’s design review board, but the issue will likely come back for another vote.
Arriola said he did not feel he was violating the Sunshine Law by commenting on his colleague’s post because commissioners had already voted to send the proposal to the design review board. “We had already voted on the matter and I basically reiterated what I said publicly at a meeting,” he said.
The discussion about the entrance sign wasn’t the first time Beach commissioners have taken to Facebook to discuss city business.
Last summer, for example, the City Commission made a controversial decision to pause a street raising project that was part of Miami Beach’s efforts to prepare for sea level rise. When a former Beach commissioner criticized the decision on Facebook, residents and current commissioners responded. On one comment thread, Alemán replied to a resident and then another commissioner, Michael Góngora, responded as well.
“I try never to comment on other commissioners’ Facebook posts on city business as a course of practice,” Góngora said in an email, adding that he had commented on the initial post before the other commissioner weighed in.
Alemán said she also tries to be careful not to engage with colleagues online. “Occasionally I’ll post and I’ll notice sometimes colleagues comment, but I’m always careful not to comment back because I don’t want to violate the Sunshine Law,” she said. “And it can be frustrating at times because I may not agree or I’d love to make a counter-argument, but I just have to bite my tongue, so to speak.”
This type of behavior likely doesn’t violate the spirit of the Sunshine Law, which was created to keep public officials from negotiating backroom deals in secret. But social media has sparked questions about how Florida’s broad open government law applies to the digital age, creating a potential minefield for public officials.
“A lot of the times the challenge for public officials is while they think they may be engaging within a public forum where everything is transparent, technically sometimes they may inadvertently run afoul of the letter of the law,” said City Attorney Raul Aguila, who noted that in his experience most online exchanges of this nature are “in good faith and inadvertent.”
“These are not people who are calling each other up and having secret conversations or meeting in dark corners to discuss government business,” he added. “The challenge is advising them that the Sunshine Law does apply to certain social media interactions and hopefully the law will catch up to technology, but in today’s world technology moves at a staggering pace.”
Miami Beach commissioners aren’t the only public officials who have run into these issues. Three members of a South Florida Water Management advisory board may have violated the Sunshine Law in 2017 when they discussed a proposed Lake Okeechobee reservoir on Facebook, according to the TC Palm.
Public officials have also been criticized for deleting social media posts about city business, which are considered public records subject to disclosure and retention requirements. In Central Florida, a Eustis city commissioner may have broken the Sunshine Law in 2017 when he invited other cities to donate their Confederate monuments to Eustis in a Facebook post, then deleted a flood of negative comments, the Daily Commercial reported.
Barbara Petersen, president of the Florida First Amendment Foundation, said that her organization often gets questions about social media. She advises public officials to err on the side of caution.
“The point is they’re supposed to be having these discussions in front of the public and a Facebook account, an Instagram account, whatever else they may be using, that’s not public enough,” she said. Not all residents see social media posts on a particular page, she added, or know that city business is being discussed online.
Petersen and Aguila said they weren’t aware of any cases involving commissioners arguing on social media that resulted in criminal charges. LoMonte said that at most, any violations of this nature would likely result in a small fine.
This isn’t the first time a Beach official has run into trouble on social media. In 2016, radio show host and activist Grant Stern sued then-Mayor Philip Levine after he refused to turn over a list of people he had blocked on social media. The legal dispute, which has yet to be resolved, centered on what social media posts are deemed public under the Sunshine Law.