City struggles with Sunshine Law

Sarasota City Attorney Robert Fournier was cagey last Friday about certain details of a lawsuit accusing the city of violating the state’s Government-in-the-Sunshine law. There was at least one area, though, where he didn’t tread lightly.

A meeting of downtown business owners, attended by Commissioners Susan Chapman and Suzanne Atwell, was held Oct. 10 to discuss homelessness issues. City Manager Tom Barwin was also present, and, according to minutes taken at the meeting, he brought up the topic of a potential regional homeless shelter. In no uncertain terms, Fournier expressed his displeasure with the city manager’s actions.

“When you are at a gathering where two or more commissioners are present that has not been noticed to the public, you don’t start talking about something that the commissioners are going to be voting on,” Fournier said. “That’s a problem.”

Fournier also brought up a previous Sunshine lawsuit filed against the city after Barwin formed a homeless advisory committee that was, according to Fournier, making recommendations about the hiring of caseworkers.

Fournier said Barwin was upset about settling, rather than contesting a case Fournier called “a dog with fleas.”

“He wanted me to get him out of it,” Fournier said. “I couldn’t do that, because I am a lawyer, not a wizard.”
Fournier believes the city currently has a legitimate case against the nonprofit group Citizens for Sunshine, which has filed six lawsuits against the city for Sunshine Law violations in the past four years. He also said that, although Barwin put the city in murky legal territory on two separate occasions, his actions pertained to two separate provisions of the law.

Barwin, for his part, is promising the city will act with extreme caution going forward. He expressed a frustration with Citizens for Sunshine, a group that he and Fournier say is advocating for expanded interpretations of the Sunshine Law.

Fournier said, under Citizens for Sunshine’s interpretation of the law, the presence of two commissioners at a meeting where potential future commission business is discussed qualifies it as a public meeting. That means, even if the city didn’t call the Oct. 10 meeting and the commissioners didn’t personally discuss the topic of a homeless shelter, the city should have provided 72 hours advance public notice and kept minutes.

Fournier believes the commissioners would have needed to actively participate in the discussion to qualify as a sunshine violation. Still, Barwin acknowledged that the group, based out of Sarasota, isn’t going away anytime soon, and that the city will have to operate with that in mind.

“I think all of us are actively consulting or seeking the direction of the law department in virtually any scenario that could be construed to be a violation,” Barwin said. “We’re going to extreme measures now in doing that because we don’t know where that line ever is going to be set.”

Citizens for Sunshine attorney Andrea Mogensen said there was no pattern or personal agendas that drove the group to take action against the city, and she denied the notion the organization was seeking an expansion of the law.

When it came to Barwin, though, she did say she saw a pattern among the people who brought complaints to the organization’s attention.

“I will say that the current city manager has received negative attention and negative feedback from a number of the city’s constituents,” Mogensen said. “They’re watching his behavior.”

At least two commissioners have expressed their doubts about Barwin’s ability to stay in the Sunshine going forward. Mayor Shannon Snyder said it was clear that the city manager didn’t care about the Sunshine Law, and Commissioner Paul Caragiulo said he agreed with much of what Snyder said. Caragiulo later confirmed he shared Snyder’s view of Barwin’s tenure thus far.

“I kind of cringe to think he’s still not ‘getting it,’” Caragiulo said. “I think that he thinks this is sort of a quaint little asterisk that goes along with public policy in Florida, but it’s not — it’s a serious issue.”

Caragiulo said he felt interpretations of the Sunshine Law were “borderline absurd,” but that people involved in government should already be accustomed to working with that in mind.

“We have the Sunshine police here — Hawaii doesn’t deal with frozen lakes,” Caragiulo said. “That’s life; deal with it. We can’t fault them because we seem to make it easy for them.”

Contact David Conway at [email protected]