Gov. Rick Scott and Cabinet move to mediation in Sunshine lawsuit

After weeks of behind-the-scenes legal combat, Gov. Rick Scott and Cabinet members will dispatch their lawyers to mediate differences with Florida news outlets in a lawsuit accusing all four officials of violating the Sunshine Law.

The April 22 closed-door mediation session in Tallahassee postpones a scheduled videotaped deposition of Gerald Bailey, the ousted commissioner of the Florida Department of Law Enforcement. Bailey’s secretly-hatched dismissal triggered the lawsuit and has led to a series of reforms designed to improve Cabinet oversight of state agencies.

Michael Barfield, a paralegal for Sarasota attorney Andrea Flynn Mogensen, who represents more than a dozen news organizations, said plaintiffs agreed to mediation after repeated efforts by lawyers for Scott and the Cabinet to delay or limit the scope of Bailey’s sworn testimony.

Under oath, Bailey is expected to repeat allegations of political interference by Scott’s campaign and his staff that he made to the Times/Herald in January.

“They’re obviously very sensitive about Bailey’s deposition,” Barfield said. “They don’t want it to happen.”

Scott’s lead attorney, Peter Dunbar, did not respond to requests for comment Wednesday.

At the mediation table, Barfield said, news outlets will seek at a minimum:

▪ A requirement that high-level state officials post all text messages and emails on the state-run Project Sunburst web site within 24 hours;

▪ Cancellation of the Jan. 13 vote by Scott and the Cabinet that made Rick Swearingen the FDLE commissioner, a common “cure” in Sunshine law cases (Swearingen could be reappointed);

▪ An executive order by Scott, permanently prohibiting state officials from using private email accounts to conduct public business;

▪ A new two-step process for future appointments of Cabinet agency heads with a public discussion of the pool of candidates followed by public interviews.

In informal talks among lawyers, Barfield said state officials have been receptive to the requests.

“We’ll go to mediation and see if they’re serious,” Barfield said.

The Tampa Bay Times, Miami Herald and Associated Press are among the news organizations that have sued Scott and Cabinet members. Those outlets and others plan to send editors to attend the mediation session, which by law is confidential.

Barfield said he and Mogensen met for three hours with Bailey last week. He said news outlets are insisting that Bailey’s deposition take place before a settlement can be reached.

“There will be no settlement absent some discovery,” he said. “Even if we go to mediation, we’re still taking Bailey’s deposition.”

The two sides have selected former Florida Supreme Court Justice Major Harding as mediator.

Harding is a shareholder in the Tallahassee firm of Ausley McMullen and specializes in alternative dispute resolution, according to his biography on the firm’s website.

In a recent similar role as a hearing officer, Harding ruled in December that former FSU quarterback Jameis Winston did not violate the university’s code of student conduct.

This story was originally published April 15, 2015 at 5:19 PM with the headline "Gov. Rick Scott and Cabinet move to mediation in Sunshine lawsuit."