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Date of Issue: November 15, 2007

Court ruling: Bradenton Beach withheld public records

A judge last week issued a ruling that “grants in part and denies in part” The Islander newspaper’s claims against the city of Bradenton Beach in a public records suit.

The Islander won,” said newspaper attorney Kendra Presswood, referring to Circuit Court Judge Peter Dubensky’s finding that the city improperly withheld three public documents.

“Three months after the fact, they finally disclosed the documents,” Presswood said. “It was a clear violation.”

But, from the other side, Bradenton Beach Mayor John Chappie said he saw it as a “total victory for our city” because the judge denied the paper’s request for injunctive relief and found insufficient evidence that the city violated Sunshine Laws.

“I think it was quite an important position for us,” Chappie said.

Islander publisher Bonner Joy said the injunction was “moot,” saying it should have been ordered within days of filing the lawsuit. “Instead we waited months for a trial.”

Joy added, “I’m happy with the decision. It was obvious the city violated the public records laws and we had made an offer to drop the Sunshine Law violation and reduce our attorney’s fees, for which the city declined.”

In April, the newspaper filed suit against the city, naming Chappie in his official capacity as mayor as the defendant, over the release of records involving administrative leave orders for two employees, as well as the investigation of the personnel matter and a public meeting on the issue.

The suit stemmed from the city’s handling of a sexual harassment complaint filed by Gail Garneau, a Bradenton Beach code enforcement officer and planning department staff member, against Ed McAdam, who headed the city’s building department. McAdam resigned soon after he learned of the complaint against him.

Garneau made her complaint against McAdam in late February, informing Chappie verbally and then formalizing the complaint in an undated letter.

The complaint prompted Chappie to order an investigation by city attorney Ricinda Perry. Meetings ensued between Garneau, Perry and Chappie; meetings between McAdam, Perry and Chappie; telephone calls between Perry and city commissioners and an “emergency” city commission meeting at which McAdam’s resignation was accepted on March 8.

The Islander filed the suit April 11 because, despite the series of quick actions in late February and early March to respond to the sexual harassment complaint, the public record was scant and there was no public discussion on the matter or on the acceptance of McAdam’s resignation.

In August and September, Circuit Court Judge Peter A. Dubensky presided over hearings on the newspaper’s allegations at the courthouse in Bradenton. Several court sessions took place and were limited to arguments and testimony over public records and Sunshine Laws, not the sexual harassment issue.

Representing the newspaper, Presswood, daughter of Islander publisher Bonner Joy, argued in court that public records pertaining to the complaint and resignation were illegally withheld, that city attorney Ricinda Perry acted as a stand-in for the mayor when she investigated the complaint, that city officials broke Government-in-the-Sunshine Laws by discussing the complaint and resignation in one-on-one conversations with Perry outside a public meeting, and that the emergency meeting to handle the resignation was illegal, taking place just three hours after it was announced.

Perry, in court, defended her actions and those of other city officials, arguing that no illegal meetings took place and documents were released within a reasonable time period.

In his order, issued Nov. 5, Dubensky ruled on several claims made by The Islander.

In one count, The Islander alleged the city violated the public records law by withholding records related to the sexual harassment complaint without citing a valid reason or exemption to do so.

City officials withheld some records claiming they could not be released under the whistleblower protections.

The Islander said the whistleblower exemption did not apply to the case, and Dubensky agreed, writing, “The city improperly relied upon Chapter 112 (the whistleblower exemption) to withhold records from The Islander.”

Dubensky found that it “is obvious” a memo dated Feb. 23 was withheld from The Islander reporter Paul Roat, who requested records March 7 and from Joy, who requested records March 9. The memo was not turned over to the newspaper for about three months. Dubenksy drew the same conclusion in regard to two other documents.

He also observed that city officials did not claim a statutory exemption for keeping back records until March 20, several weeks after the newspaper requested records.

Still, Dubensky wrote, “The Islander fails to show a reasonable probability that the city’s failure to promptly cite a valid exemption for withholding documents will continue in the future.”

Dubensky determined that records in Perry’s possession were not public records, but rather attorney notes, and that Garneau’s journal containing notes that she read to Perry during the investigation were not a public record.

In another claim, The Islander sought relief forcing the city to comply with Florida’s Sunshine Laws and alleged that city officials circumvented the open government law to discuss Garneau’s complaint and the mayor improperly assigned Perry the task of investigating the sexual harassment complaint.

Dubensky wrote, “The court ... finds insufficient evidence to support these claims.”

The judge also stated that no public meeting was required to reveal Garneau’s complaint, that “Perry was not required to conduct her preliminary investigation before the public” and that the mayor did not use Perry “as a liaison to communicate with the commissioners outside of the sunshine.”

Dubensky also issued an order sealing Perry’s file in the Garneau case in the event of future court proceedings in the case.

He also said the court reserves jurisdiction to consider costs and fees. Both parties have spent thousands of dollars in the suit.

Chappie complained about the costs. “It cost every resident in our city $50 to defend this. Totally ridiculous.”

Presswood said of the judge’s order, “I’m pleased with the result, but I’m not happy that it took litigation. The city could have avoided this lawsuit.”