Lee County commissioners could have violated Florida’s Sunshine Law when they each held private, one-on-one meetings with the same developer and/or lobbyist in advance of voting on a comprehensive land-use plan amendment, legal experts said.
The only way to know if commissioners violated the law would be to gather sworn testimony from the involved participants and have a judge’s ruling, said a paralegal and multiple attorneys with extensive knowledge and experience in Sunshine Law.
Sunshine Law requires policy decisions to be made in public with records of those meetings being recorded. Although the law allows for commissioners to meet individually and privately with stakeholders, a rapid-fire chain of such meetings involving multiple elected officials from the same board and the same stakeholders has been ruled illegal and upheld by a 1979 appellate court decision.
“You would have to get them, under oath, to admit that there was something more going on (i.e., you would need additional evidence that there was a coordinated effort/communication outside the public’s eye),” wrote Pamela Marsh, an attorney and former president of Florida’s First Amendment Foundation.
On Jan. 17, commissioners voted 5-0, with no public explanation or debate, to change Alva’s land-use plan to allow a sewer connection that was proposed to run under the Caloosahatchee River. County building codes require sewer for increases in housing density.
After approximately 40 Alva residents pleaded with commissioners to vote “no,” because they favor keeping the community a rural one, each of the commissioners voted “yes.”
The amendment’s purpose and emotional responses aren’t the issues, said Sam Terilli, an attorney who spent 12 years as legal counsel for the Miami Herald.
“This is really not the merit of the development question,” Terilli said. “Sewer, no sewers, density. It’s really a question of process of what is required or prohibited by Florida Sunshine Law.”
The individual meetings began taking place eight days after Southwest Florida’s state legislative delegation declined to consider creating a special district for the developer at this year’s legislative session.
Commissioner Mike Greenwell, whose district includes Alva, held the first of the one-on-one meetings Nov. 7, his lobby log filed Jan. 2 to the Lee County Clerk of Courts showed. Greenwell met with Terry Miller, a registered lobbyist for Neal Communities about a “utilities issue,” almost one month prior to Dec. 6, when the vote originally was advertised to take place. Miller also managed Greenwell’s campaign. Greenwell declined to comment.
The other five one-on-one meetings took place Nov. 9, according to lobby logs filed with the clerk of courts:
Commissioner Kevin Ruane met with Neal, Ivory Matthews, a vice president for Neal Communities; and Kim Zawacki, an executive assistant with Neal. Miller, who is Ruane’s campaign manager, did not attend this meeting about the “Neal Property,” according to the lobby log. Ruane declined to comment. His meeting took place from 1:30 to 2 p.m., county records show.
Commissioner Ray Sandelli met with Neal, Matthews, Miller and Assistant Lee County Attorney Michael Jacob about Owl Creek, a body of water that flows through the property. Miller also managed Sandelli’s campaign. Sandelli declined to comment. His meeting took place from 2 to 2:30 p.m., records show.
Commissioner Cecil Pendergrass met with Neal, Matthews and Miller about the “Duke Farm Property.” The involved lands are also known as the Cary Duke Povia property, with the names belonging to some of the owners who put it under contract with Neal. Pendergrass, who declined to comment, is the only commissioner who does not employ Miller as campaign manager. His meeting took place from 2:30 to 3 p.m., records show.
Commissioner Brian Hamman met with Pat Neal, owner of Neal Communities, which is looking to build 1,099 homes on 788 acres in Alva, a development order said. Matthews and Miller also were present. Miller managed Hamman’s campaign. Owl Creek was the topic of discussion. His meeting took place from 3:30 to 4 p.m., records show.
Hamman said he would consider doing an interview if the questions were provided in advance. Gulfshore Business declined. Hamman followed up by saying “if/when this turns into a zoning case… I don’t want to make any comments that might lead people to believe I have made my mind up before hearing the evidence.”
Jacob also met separately with Neal, Matthews and Miller about “Owl Creek Project in Olga.” Olga is part of Alva. Jacobs declined to comment, Lee County Communications Director Betsy Clayton said.
Neal, a former state representative and senator, said in an email the meetings were “legislative” in nature and legal. He has yet to agree to an interview request.
Miller said he could not discuss the meetings because, as the registered lobbyist for Neal Communities, “I’m not at liberty to discuss any of their projects.”
Miller also works for national lobbying firm Ballard Partners. But in this instance, Miller said he was working for his own company, TM Strategic Consulting, which manages political campaigns and lobbies. Miller said having those two roles were not a conflict.
“It’s not at all unusual for people who work for campaigns,” Miller said of being in the situation of working for both parties. “It’s actually commonplace.
“I get them elected. But then they’re going to vote their conscience and their beliefs. I’m a friendly face, but they’re not going to vote on it just because it’s something that I’m working on. That’s just the way it is.”
Neal donated the maximum $1,000 to the campaigns of each of the five commissioners, campaign finance records show.
“So, you’re wondering if there’s a potential Sunshine Law violation?” said Terilli, who is also an associate professor at the University of Miami. “I will say this: It doesn’t look good. It’s not impossible, under the law, for an individual commissioner to meet with a developer and a lobbyist for fact-finding purposes and discussion, etc. But when you have a series of these meetings, and then a 5-0 vote with little or no discussion? It certainly raises the question. Was there a Sunshine Law violation?
“Under the law, it used to be called daisy chaining. You take little daisies and tie them together, one after another. That’s when you have a series of meetings. With individual commissioners, to pass along information to, in effect, line up votes and truncate public process. The question here will be, what exactly went on in those individual meetings?”
Several attorneys cited Blackford vs. School Board of Orange County as case law precedent for the Alva sewer amendment vote to be ruled as a Sunshine Law violation.
“You cannot use a non-Sunshine ‘proxy,’ to avoid a Sunshine violation,” Tony Conticello, an attorney in Tallahassee, wrote in an email. “Likewise, a city official or anyone (including non-Sunshine employees or non-government individuals) cannot act as a ‘liaison’ or ‘proxy’ between multiple governmental officials on public business. Finally, the court will find violations when actions were taken in secret to ‘crystalize’ decisions to the point of ceremonial acceptance at public meetings.”
In Blackford vs. School Board of Orange County, the 1979 case, the judge ruled for a complete do-over in public of the decision to redistrict about 6,000 students “because the individual discussions resulted in de facto meetings by two or more members of the board at which official action was taken,” the ruling said.
“One person basically has the possibility to talk to the next person about what the last person said, even though they’re not there,” Conticello said of Blackford vs. Orange County. “The court found that was a violation of Sunshine. Even though there wasn’t everyone together, there was basically contamination of information.
“You can apply the same principles to this. How are you going to be able to figure out what they spoke about at those meetings? They probably should have declined to have those one-on-one meetings because it would look bad. And it looks bad.”
Sunshine Law remains an imperative part of democracy in Florida, said Barbara Petersen, executive director of the Florida Center for Government Accountability.
“Right now, it’s Alva,” Peterson said. “Two months from now, it might be [another part of Lee County]. The fact that they’re meeting with these developers privately and keeping the public in the dark—it should concern everyone. It might be my neighborhood today, but tomorrow, it might be your neighborhood.
“It’s OK for a commissioner to meet with a developer. But you’re talking about back-to-back meetings with the commissioners. That’s an attempt, in my mind, to avoid having a discussion in public, which is what they’re supposed to do.”
Neal participated in public comment during the Jan. 17 amendment meeting, as did members of his development team. It’s the meetings that were held almost two months prior that would be called into question, said Michael Barfield, a paralegal based in Manatee County. He has been involved in dozens of Sunshine Law cases.
“Meetings held in rapid-fire succession like those have been found to violate the Sunshine Law,” Barfield said. “It certainly is not being transparent and would appear to allow a developer, in this case Mr. Neal, unequal access to decision makers through a lobbyist who just so happens to be the campaign manager of four out of five commissioners. I would call that quite a cozy relationship.”
Legally, there’s something called a “cure meeting,” and in this instance, a judge could rule the Jan. 17 meeting followed proper procedures.
“But it still doesn’t excuse the actual, original violation,” Barfield said. “A violation is a violation. Yes, you can cure the violation, but it cannot be a ceremonial meeting when you just go through the motions. You have to make a full disclosure of the communications that were held. A judge certainly has the power. I’ve been involved in dozens of Sunshine Law cases over 20 or 30 years. A judge certainly has the power to invalidate the act. I’m sure that any citizen in Florida—it doesn’t have to be in Lee County—but obviously the residents have standing to bring an action to whether the Sunshine Law was violated. They could ask the judge to invalidate the act.”
Unintentional Sunshine Law violations carry up to a $500 fine, Peterson said. Intentional violations can result in up to six months in prison and removal from office, she said.
With none of the five commissioners speaking about what happened Nov. 7 and Nov. 9, that raises suspicions of a violation, Barfield said, but it also makes proving a violation extremely difficult.
“You’re likely to never find out the truth of what happened in those meetings, unless there is litigation and witnesses’ depositions are taken under oath,” Barfield said. “Even then, sometimes memories fade.”
