Manatee Sunshine Law Investigation Shines Light on "Open" Government

HOLMES BEACH – A complaint filed this week accusing County Commissioners Carol Whitmore and John Chappie along with County Administrator Ed Hunzeker of violating Florida Sunshine Laws brings up the question of what is the intent of Florida's "Government in the Sunshine" statute and whether its spirit is being upheld in Manatee County. The affidavit filed with the complaint describes what would seem to be a violation, but establishing the technical facts to prosecute this criminal act would be difficult without the accused testifying against themselves, since there is no audio recording of the conversation.

For the record, the Bradenton Times had obtained a copy of the affidavit (click here to read) last Friday, but since there is a five-day waiting period from the time it is filed and any pursuant police investigation, we made an editorial decision not publish it at that time. However, since the story has now appeared in at least two news outlets, we have decided to explore the intent of such statutes and whether meetings such as this one, regardless of its outcome, serve to undermine the public process.

In the case of county commissions, the Sunshine Law requires that any time two or more commissioners meet to discuss county business (or potential future county business) it must be in a scheduled meeting that is open to the public with reasonable notice given and minutes taken. The law applies to both formal and informal meetings, as well as email and other correspondence. Its broad parameters are designed to ensure that all county business is conducted at scheduled public meetings, so that citizens can participate in the process and there is a record of any potential misdoings.

Manatee County Commissioner Carol Whitmore

The affidavit in question alleges that Commissioners Whitmore and Chappie may have been discussing county business, while having dinner with County Administrator Ed Hunzeker and Tourist Development Council member David Teitelbaum at Anna Maria’s Beach Bistro. The complaint was filed by longtime activist and ”Save Anna Maria“ member Nancy Deal, who alleged she heard Whitmore and Hunzeker talking about keeping something regarding ”builders or developers“ from ”alarming“ or ”informing the public.“

When Deal approached them at the bar and inquired about the Sunshine Law implications of their conversation, they reportedly denied discussing county business. Commissioner Whitmore has said that Deal’s motivations are personal and owed to a spat over the commissioner declining to join Save Anna Maria. Chappie has also denied any wrong doing.

Best case scenario, it seems to be a case of very bad judgment on behalf of several experienced public officials. Hunzeker has been something of a lightning rod as of late, drawing fire for seemingly conducting the exact sort of back-channel maneuvering that the Sunshine statutes are designed to preclude. Hunzeker’s preference to meet individually with certain commissioners to discuss potential strategies before bringing them up at BCC meetings drew fire last month when Port Authority Chair Larry Bustle campaigned to create a new high-level position for Paul Demariano. Hunzeker had met with both of them and seemed to be lobbying for Demariano, who he’d also brought on to help craft a port-related RFQ without the board’s direction.

Hunzeker also met with public and political backlash earlier this month when he drastically altered a vacant position in his department to create the post of ”Organizational Development Manager“ and hired an inexperienced, retired editorial page editor with at least two retirement incomes and paid him a salary of $80,000. In both cases, he was accused of circumventing the public process, as he could have simply spoken before the BCC at any public meeting and made known his intent in a way that would have allowed for public input.

For her part, Whitmore has been very vocal about the Sunshine laws and claims to be well advised on them. Earlier this month, she again refused interviews with the Bradenton Times because fellow commissioner Joe McClash is the Publisher. Though she would not be communicating with McClash and articles or videos would be published publicly, she felt that even the remote possibility that McClash might see an unpublished portion of a statement that had been edited out might loosely constitute a violation. Whitmore said that she discussed it with the county attorney who advised her to ”err on the side of caution.“ I wonder what he might have said, were she to have called him prior to dining at the Beach Bistro with Hunzeker, Chappie and Teitelbaum.

As noted, it will be very difficult to prove a violation. Most Sunshine Law prosecutions relate to emails, where there is a digital paper trail to prove what was said and to whom. It is hard to imagine that a dinner involving the aforementioned parties and subject matter wouldn’t cross that threshold, but even if it were an innocent coincidence, being a public figure involves maintaining both actual and perceived openness in the process. Voter disenfranchisement is a serious obstacle to democracy. There was a time when nearly all public policy was decided behind closed doors, in smoky back rooms and ironically – on bar stools, which is why these laws were created in the first place. Hopefully, this incident will remind all public officials to, as Commissioner Whitmore puts it, ”err on the side of caution.“