Herald-Trib's Hackett and the Sunshine Law: An exercise in utter legal crappery
The newspaper again goes after Mayor Ed Martin for attending yet another meeting that he never actually attended... and then there is the newspaper's highly creative interpretation of Florida's Government in the Sunshine Law
-- John Patten, 06/07/08
-- jpatten@veniceflorida.com

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Oh crap, here we go again...
There's a couple of key factual errors in Kim Hackett's latest focused attack on Mayor Ed Martin and council members Sue Lang and Ernie Zavodnyik. There also appears to be a major error in her interpretation of Florida's Government in the Sunshine Law. The result is yet another journalistic farce from the NYT-owned newspaper.

I spoke with both Lang and Martin yesterday in the wake of the latest sensationalistic article by Hackett as published in the Sarasota Herald-Tribune. While both were floored at the level of inaccuracy that the paper had gone to in this latest attack, both offered the same answer when asked if they were asking their attorneys to look into possible defamation claims: "No comment."

Not no. "No comment."

In order for a public figure to prevail in a case of defamation against a news publication, the public figure plaintiff has to prove to a judge or a jury that the inaccuracies have risen to what is termed as a "reckless disregard for the truth." It's not an easy legal threshold to cross.

Still, the new kids on council, along with veteran John Moore, may have a very valid case against Hackett and her employer over this latest journalistic fiasco.

Take the first paragraph of Hackett's June 6 article:

"Without informing the public, newly elected City Council members held at least one meeting to chart the course of city government at a council member's home."

Actually, no, they didn't. According to both Lang and Martin, the meeting never actually happened. They planned it, thinking they were legally allowed to do it, but they never actually got around to having that meeting.

Just the facts, ma'am

"E-mail released Thursday from Councilman Ernie Zavodnyik's private e-mail account shows that after the Nov. 6 election, newly elected council members made plans to meet before they were sworn into office Nov. 14. They also met at Councilman John Moore's house five days after the election." -- ibid

Here's where a bit of fact checking and follow-up phone calls by the Herald-Trib would have been an exceptionally good idea.

Under the misguided idea that Florida's Government in the Sunshine Laws do not kick in until a public official takes the oath of office, such a meeting was planned to take place sometime in the one week period between election day and the swearing-in ceremony, but time ran out before the planned meeting could take place. After being sworn in, the three newly-elected officials never proposed the idea again.

As to a meeting at John Moore's house to "chart the course of government," that's an outright fiction according to Lang, Martin, and Zavodnyik (Moore is out of town and I was unable to reach him). The event that the Herald-Trib is unequivocally referring to as a strategy meeting was actually a planned cocktail party that the newly elected council members attended along with their spouses, this according to Lang, Martin, and Zavodnyik. "We didn't discuss any city business at Moore's party," Martin stated by phone yesterday from a  vacation cabin in Canada.

Martin's wife, Peggy, called out from the background so that I would hear her with an emphatic and somewhat humorous, "Are you kidding? I wouldn't let him."

Lang and Zavodnyik concurred with Martin's assessment of the evening. It was a calm between the storms of the election trail and the actual start of their new jobs. One thing the three were adament about: this was not the strategy meeting that the Herald-Tribune claims it was. According to Lang, Martin, and Zavodnyik, that would have been a meeting that would have excluded the spouses.

The Herald-Trib's Hackett made the erroneous assumption that the planned strategy meeting and the cocktail party were one and the same. That's a huge leap with no substantiating proof as to what transpired inside the walls of John Moore's house on the evening of November 11, and yet Hackett reported the November 11 get together as a "meeting to chart the course of city government at a council member's home."

I hope for her sake that she has audio tapes or witness statements.

As fair and balanced as Fox News covering the opening of Arthur Miller's The Crucible, and you can't ask for more than that
Such post-election events as Moore's party are the norm in any election in any community and are not inherent violations of the Sunshine Laws as such. In prior years, the CQG-dominated Venice Yacht Club would throw a cocktail luncheon every year for sitting and newly elected council members on the day after the general election. This last election tossed three CQG incumbents out of office, so the Venice Yacht Club graciously and good-naturedly canceled the annual event. No bitterness or sour grapes there.

Only a month before the election, then-council members Jim Woods and Bill Willson, along with then-Mayor Fred Hammett, met at the house of Airport Advisory Board member Kim Stephens for a private campaign event. The invite for that event was sent by Stephens to the elected officials by way of their city email accounts. I emailed Kim's husband, Brett Stephens, at the time asking if I could attend. I was told no, that it was only for friends of the council members. I half-jokingly sent a response email asking about the Sunshine Law. Stephens never responded.

I sent that chain of emails to a couple of reporters as a humorous anecdote. Funny that the Herald-Trib didn't raise a squawk about that incident. Not that I'm in favor of witch hunts (and going after Hammett, Willson, and Woods for the Stephens meeting would have been an equally bad witch hunt), but if you're gonna burn one witch, ya gotta burn 'em all, otherwise one is gonna hex ya.

At any rate, I wasn't about to scream bloody murder and accuse the three elected officials of an actual Sunshine Law violation for the meeting at Stephens' house. Short of planting a bug in the living room, there was no way to know what, if any, city business was discussed during the event. I was later told that the trio of sitting council members avoided discussions of actual future issues before council because of the Sunshine Law. Was this a Sunshine Law violation? I can't prove it and I wasn't about to waste my time trying to.

Hackett has the same problem with what happened inside Moore's house on November 11. It is quite easy to make an accusation. It is another thing entirely to prove it. Was this a Sunshine Law violation? Hackett can't prove it, but she's giving it her best shot.

The real failure in Hackett's article, though, is that the argument over what transpired at the house of John Moore on the evening of November 11 would appear to be entirely academic in the face of what appears to be a basic misunderstanding of the Florida Sunshine Law.

In other words, not only did the elected officials not do what Hackett has accused them of, it wouldn't have been against the law anyway. While the Herald-Trib makes a compelling case for their interpretation of the law, it appears that the newspaper forgot to ask one key question...

Kim and grace
Hackett cites an Attorney General's opinion that states that there is no grace period in the Sunshine Laws for the time between when an official is elected and when he/she takes the oath of office. According to Hackett, the Sunshine Law kicks in as soon as an official is elected.

As ludicrous as that sounds, and as much as I didn't want to believe it, Hackett is absolutely right. Case law, specifically Hough v. Stembridge (2nd DCA), backs that up. As soon as you become an elected official, you are living under the Sunshine Law. No grace for you.

The general election took place on November 6. Newspapers and the media announced the presumed winners that evening.  Upon hearing of their victory, the three gave speeches at a packed local tavern. In their acceptance speeches, the trio thanked supporters and spoke of some of the issues that needed to be dealt with in the future. If you follow Hackett's logic, Lang, Zavodnyik, and Martin were all violating the Sunshine Law within seconds of being elected.

Then there's the emails of a planned strategy get-together, the party at Moore's house, etc., all taking place right up to November 14 when the three took the oath of office, all indicators of Sunshine violations, as Hackett noted, because the Sunshine clock starts ticking when an official is elected, not when they later take the oath of office.

And that's where things get funky and the Herald-Trib may have seriously screwed up. Read on...

As long as the Herald-Trib is getting seriously technical, a good question to ask is: When does an elected official actually become an elected official?
When does a winning candidate cross the legal threshold over to becoming an elected official? The Herald-Tribune apparently never asked that question before pointing the accusatory finger of wanton lawlessness at Lang, Zavodnyik, Moore, and Martin. It would seem to be a moot point to to the Herald-Trib, as the paper declared the winners of the council races in their November 7 morning edition. As did the Venice Gondolier-Sun. As did this web site. So that must mean that the officials were legally elected on the 6th or the 7th, right?

But when is the exact hour and minute that a candidate stops being a candidate and becomes an elected official? That's a pretty important legal question in the face of the Herald-Trib's very serious legal accusations.

There doesn't appear to be any case law that I can find yet that establishes this point, but I'm still looking. An inquiry went out to the First Amendment Foundation late Friday to ask them this very question, but naturally the weekend will prevent a timely reply.

So far, my research, and that of my attorney's, indicates that a candidate doesn't legally become an elected official until the election is legally and officially certified and the appropriate Elections Supervisor has officially declared a winner (Gore/Bush in 2000, e.g.).

In prior years, the election was usually certified and winners were declared within 24 hours of the polls closing. Due to new voting machines and/or various new election regulations that I don't pretend to understand, that didn't happen in November of 2006 or in November of 2007.

I think we have a winner...
City Clerk Lori Stelzer has the dual role of being the City Clerk and being the city's Elections Supervisor. According to official city documents, specifically the minutes of a November 14 special meeting of council, Stelzer certified the election and officially announced the winners in the 2007 city races on November 14, this during the same meeting that the three were sworn in. The minutes reflect that the election results were still "unofficial" at the beginning of the November 14 meeting and did not become official until council voted to accept them at that same meeting [YouTube video].

Of particular note on this official document is the first header, "Elected officials and others present." That designation of status as of the opening of the meeting is given only to the six previously existing members of council and then-Mayor Fred Hammett, plus three city staffers.

Conspicuously missing from that closed set of names are Martin, Lang, and Zavodnyik. Which means that as of 11:01 AM on November 14, 2007, the City of Venice had not yet given the three the official and legal designation of "Elected Officials."

Hackett and the Herald-Tribune are correct in their statement that there is no grace period between the time an official is elected and the time that he/she takes office. They've hammered that home time and again in order to make a stretch to back up their allegations.

That all appears to be an entirely moot point, which, in turn, would appear to make the latest batch of accusations from the Herald-Tribune an ugly exercise in utter legal crappery.

Add in a published headline and sub-head of "City council met with no public notice; e-mail messages refer to a meeting that took place at a member's home" when such a meeting reportedly never took place, and it looks like the article could be construed as a "reckless disregard for the truth" as well.

Ouch. That's gonna leave a mark.

John Patten is the head of Web Operations for Creative Pages, and has worked in broadcasting for over 12 years. He can also be incredibly rude at times.