For nearly two years, Gov. Rick Scott’s office has failed to produce records of extensive public discussions between his aides and those of Cabinet members.
That lack of transparency, possibly in violation of state law, has gone largely unnoticed in the low-profile work of Cabinet aides — until now. It has suddenly taken on greater significance because of disclosures that private talks between aides resulted in the ouster of Gerald Bailey as head of the Florida Department of Law Enforcement in December.
The sacking of Bailey set off an uproar that has triggered a lawsuit by most of the state’s media outlets that accuses Scott and Cabinet members of violating Florida’s “Sunshine Law” that requires decisions by collegial bodies to be made in public.
Cabinet aides are bracing themselves for subpoenas that will compel them to give sworn testimony about their private discussions in the suit, which could lead to a court finding that the highest-ranking elected state officials illegally ousted Bailey, who by law reported to Scott and the Cabinet.
“We plan to depose anyone, including Cabinet aides, who have information relevant to the forced resignation,” said Sarasota lawyer Andrea Flynn Mogensen, who represents the media outlets.
Mogensen’s amended lawsuit, filed Monday in circuit court in Tallahassee, adds the Tampa Bay Times to the list of news organizations and seeks a permanent injunction to end the “long-standing practice of violating the Sunshine Law” by the governor and Cabinet.
The realization by Cabinet members that no records of their aides’ meetings are readily available prompted them, at the last Cabinet meeting on Feb. 5 in Tampa, to urge Scott that written minutes be kept from now on.
“It would help me to read minutes of a Cabinet aides’ meeting,” Attorney General Pam Bondi said. “It’s bad.”
Scott’s policy of not keeping minutes of Cabinet aides’ meetings is not new. Written minutes have apparently never been kept, but audio recordings of aides’ meetings were available online until March 2013 atmyflorida.com, which is maintained by Scott’s administration. The governor’s office says the audio is no longer available due to “technological difficulties.”
Scott’s office issued a statement that aides’ meetings are not subject to the requirement that minutes be kept. Asked for a legal basis for that, Scott spokeswoman Jackie Schutz said in an e-mail: “You have our comment.”
At the Tampa meeting, Bondi and Agriculture Commissioner Adam Putnam emphasized the importance that minutes of their aides’ meetings be available, but Scott did not express support for the idea.
“I think it’s important that we post up the minutes of Cabinet aides’ meetings, since they’re such an important part of what eventually gets before us,” Putnam said.
Scott asked Bondi if she agreed with the need to keep minutes of Cabinet aides’ meetings, and she replied: “Personally I think that’s a great idea. I think it gives more transparency.”
The aides to Scott and the Cabinet meet regularly to discuss the same issues to be voted on by Scott and Cabinet members at their meetings a few days later. The aides’ sessions are chaired by Scott’s chief Cabinet aide, Monica Russell, and public notice is given, but no record exists of their discussions.
At their meetings, Cabinet aides conduct a dry run of the issues that will come up for votes by their bosses six days later. The meetings allow for a consensus to emerge and for unexpected problems to be addressed (the list of issues at the Dec. 9 aides meeting was 15 pages long).
Barbara Petersen of the First Amendment Foundation, a statewide open government watchdog group backed by the Times, Miami Herald and other newspapers, said that if the aides are holding substantive policy discussions, the Sunshine Law record-keeping provisions spelled out in Chapter 286 of state law applies. That requires minutes to be kept at any meetings that may lead to public action.
“The constitutional right of access applies to all meetings of any collegial body where public business is to be transacted or discussed,” Petersen said.
Whether the aides discussed Bailey’s case at a meeting before his ouster is a mystery because no minutes or recordings are available.
The attorney general’s office, which interprets the Sunshine Law for local governments, has repeatedly said minutes must be kept even of meetings of advisory boards where no votes are taken.
“Written minutes of the meeting must be taken and promptly recorded,” wrote Attorney General Bill McCollum in a 2008 opinion involving the workshop meetings of an advisory board in Delray Beach. “The minutes that are required to be kept for ‘workshop’ meetings are no different than those that the statute requires for any other meeting of a public board or commission.”
A series of emails provided by Putnam’s office in response to a Times/Herald request shows that his office has known for months that recordings of the aides’ meetings were not being made available. Putnam’s staff nudged Scott’s office to act, but with no results.
Putnam’s chief information officer, Michael Johnston, said in an email in October that the state was “out of compliance” with the law by not making audio recordings available.
Chief Financial Officer Jeff Atwater said last week that his office enlisted the help of the Florida Channel to record future meetings of Cabinet aides “to afford Floridians greater transparency.”
Their next meeting is set for March 4.