Miami's budget at risk after illegal commission meeting
By Ted Carter
and Risa Polansky
In failing to notify the public of a budget workshop last month, Miami violated Florida's Government in the Sunshine Law, a slipup that could make the city's 2008 budget illegal if officials don't remedy the error, lawyers with the Florida First Amendment Foundation say.
Two city commissioners say they want to hold another workshop to set matters right, but the city manager says it would be pointless to fix the administration's error.
Because the Aug. 20 workshop involved a gathering of elected officials, state law required posted notice, a notation on the city's Web site or another form of announcement.
Some public meetings also require a display advertisement in a newspaper.
Due to "an honest mistake," City Manager Pete Hernandez said, the city did not comply with any of the above.
"We failed to notice it," he said. "I don't know exactly where, who, but it's the administration's fault."
The City Clerk's office recorded the meeting but has no written minutes. The office says it could take up to three weeks to transcribe the recordings. That may mean no written minutes would be available to the public before final action on the budget Sept. 27. The office says the public can buy a compact disc recording of the meeting for $15.
The private gathering of commissioners and staff occurred after some city officials had indicated the city would voluntarily adhere to a 9% revenue rollback state legislators had mandated for local governments across Florida but from which Miami had mistakenly been exempted. It was only on the eve of the public hearing that word came the city was proposing to meet only a portion of the rollback.
The budget work session also represented the first and only time that commissioners met as a body to go over budget proposals ahead of the public hearing.
Because no formal action was taken at the workshop, Deputy City Attorney Julie Bru said, and because a Sept. 11 budget hearing was held legally, "there doesn't need to be any curative action taken" to remedy the Sunshine violation — an opinion the city manager said he intends to follow.
"In essence, we just move forward" with normal proceedings, Mr. Hernandez said, which includes the final public hearing Sept. 27 at which commissioners will be asked to approve the budget.
But the budget stands to be declared invalid by Circuit Court should someone sue over the illegal workshop, said attorney Jon Kaney of the Daytona Beach law firm of Cobb & Cole and general counsel to the First Amendment Foundation.
This prospect "should be very much a concern of each commissioner," Mr. Kaney said. "It's scary to think that the city would be without a budget."
That commissioners took no official action at the work session does not matter, he said, calling it "absolutely immaterial."
The issue is that all acts that followed the secret workshop are in question, chiefly any adoption of the budget, said First Amendment Foundation President Barbara Petersen, a lawyer and chair of Gov. Charlie Crist's Commission on Open Government.
She said Ms. Bru is misguided in advising city officials that they can disregard the illegal meeting because they took no action at it.
Under that reasoning, Ms. Petersen said, commissioners could hold a series of secret meetings, then adopt a budget in an open meeting.
Ms. Bru is saying "as long as they hold one meeting inside the law all the meetings outside the law are OK," Ms. Petersen said.
She said she thinks the question is: How much does the tainted meeting affect what happens afterward?
"I would argue it [the illegal meeting] taints everything," she said.
Ms. Bru, who declined to address Ms. Petersen's point directly, maintains that "there wasn't anything that would have jeopardized the integrity of the process thus far."
But, Mr. Kaney said, if a citizen or organization sued the city on a claim the budget was illegally adopted, the Circuit Court would be given a choice of "either looking the other way or voiding the budget action."
Mr. Kaney and Ms. Petersen say commissioners need to enact a "cure" for the Sunshine violation. That would entail another budget workshop in which the discussions and any actions at the illegal meeting are redone in an open meeting.
"To the best of their abilities they need to recreate the conversation and debate they had at the meeting that was in violation of the law," Ms. Petersen said.
She emphasized that it would not be sufficient to merely gavel a legally advertised workshop into session and then adjourn it a moment later.
Added Mr. Kaney: "They will have the burden of showing the second meeting actually duplicated the discussion and actions of the first meeting."
In the 2007 edition of the Florida Attorney General's Government in the Sunshine Manual, the attorney general advises that any meeting designed to make up for the illegal meeting must provide a full reexamination of the issues previously discussed illegally. "Only a full open hearing will cure the defect," the manual states.
Mr. Hernandez said such a meeting would be "a waste of time."
However, commissioners Tomás Regalado and Marc Sarnoff both said they'd push for another workshop to remedy the violation.
"Regardless of we voting or not voting, that's not the issue," Mr. Regalado said. "We circumvented the law and it is wrong. The city wronged its residents."
Because "the budget in general is the most important meeting of the year," Mr. Sarnoff said he is in favor of giving the public a chance to hear what they should have heard in the illegal workshop. "Let's do it over."
Commission Chair Angel González, who did not attend the workshop last month, said he could not comment without consulting legal staff.
Commissioners Joe Sanchez, who was at the meeting, and Michelle Spence-Jones, who was not, were out of town and unavailable for comment.
It's puzzling, Ms. Petersen said, that the three commissioners on hand for the workshop did not question its legality.
"It's bizarre," she said. "Weren't they suspicious at the August meeting that nobody" from the public or press came? "That should have raised a red flag."
Mr. Sarnoff said he "noticed, but I also noticed two commissioners were missing."
Mr. Regalado agreed.
He was "suspicious" the day of the meeting, he said, to see "all budget directors were there, but there were no media."
The absence of the commission chair, he said, was also "funny to me."
"The only remedy," Mr. Regalado said, "is to have an advertised workshop before the second reading of the budget."