Accused of Sunshine Law open meeting violations, Gov. Rick Scott and Cabinet members Tuesday hired a law firm to represent them — an action that in itself should have been handled more openly, some lawyers said.
In a nine-minute meeting, the four statewide officials voted to spend up to $50,000 of tax dollars with the Tallahassee law firm Shutts & Bowen and attorney Daniel Nordby, who also represents the Republican Party of Florida.
Nordby will represent the Cabinet, the fifth named defendant in a lawsuit filed by more than a dozen Florida news outlets following the forced ouster of a top state law enforcement official. He was recommended by Attorney General Pam Bondi, a Cabinet member who collected applications from five firms and settled on Nordby after consulting with her staff.
“Proposals were collected and posted online for the public and Cabinet to review, and the Governor and Cabinet made the decision to hire the counsel in an open and public meeting,” said Pat Gleason, special counsel to Bondi’s office and an expert in Sunshine Law, in a statement. “Furthermore the Attorney General’s review of the proposals was consistent with all applicable case law and attorney general opinions.”
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Open government experts and legal opinions by prior state attorneys general say that when a collegial body subject to the Sunshine Law such as the Cabinet delegates decision-making authority to a single member, that process itself must be done publicly.
Bondi said she reviewed law firms’ applications with her staff before deciding on a recommendation. Her staff said no violation occurred because Bondi recommended Nordby on her own.
“My office lawyers know this work. They know it well,” she said in the Cabinet meeting. “They’ve reviewed with me the submissions we’ve received because this is what they do.”
Barbara Petersen, executive director of the First Amendment Foundation, an open government watchdog group, saidTuesday’s action underscores a weakness in Florida’s Sunshine Law.
She said it’s a mystery whether Bondi acted alone in recommending Nordby, which would be legal, or relied on her staff’s input, which should have been done publicly.
“To a certain extent, we have to take their word for it, because we have no proof to the contrary,” Petersen said.
Florida’s Government in the Sunshine Manual, considered the bible on the subject, says: “If a board has delegated its decision making authority to a single individual ... the Sunshine Law may apply.”
“We are concerned with the process by which this decision was made, especially because it is within the context of litigation regarding Sunshine Law transparency,” said Andrea Flynn Mogensen, the Sarasota lawyer who represents the news outlets in the case of Weidner v. Scott.
Scott and the Cabinet members — Bondi, Chief Financial Officer Jeff Atwater and Agriculture Commissioner Adam Putnam — have already hired lawyers to represent them individually in the lawsuit. The costs to taxpayers for those contracts could total hundreds of thousands of dollars.
Bondi’s office declined to identify the staff members who reviewed the lawyers’ applications. Her office did not respond to a public records request for any relevant documents.
Bondi’s predecessors have repeatedly issued advisory opinions stating that the Sunshine Law may apply whenever one member of a collegial body is given decision-making authority.
In a 1990 case, Attorney General Bob Butterworth said the Sunshine Law applied in a case in which the Sunrise City Council delegated one of its members to negotiate some terms of a city garbage contract.
In that opinion, Butterworth wrote: “The delegation by a public body of its authority to act in the formulation, preparation, and promulgation of plans ... on which the entire body itself may foreseeably act, will subject the person or persons to whom such authority is delegated to the Sunshine Law.”
St. Petersburg lawyer Matt Weidner and the state’s major news organizations, including the Tampa Bay Times and Miami Herald, sued Scott and the Cabinet in February. The lawsuit alleges they used aides as private and illegal “conduits” to carry out the firing of Commissioner Gerald Bailey of the Florida Department of Law Enforcement.
The Cabinet hired Shutts & Bowen at a discounted rate of $275 per hour. Bondi cited the cost, among the lowest of the five proposals, as well as Nordby’s experience with other state agencies and the expertise of his law partner, Jason Gonzalez, who also has worked at the highest levels of state government.
Nordby and Gonzalez have longstanding ties to top Florida Republicans. In February, newly-elected party chairman Blaise Ingoglia named Nordby general counsel to the state GOP, and he held the same job from 2012 to 2014 in the Republican-controlled state House.
Last year, Nordby, a University of Florida Levin College of Law graduate, represented the House in legal battles over proposed redistricting plans. He also was general counsel to Secretary of State Ken Detzner and handled dozens of election law and campaign finance cases.