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News Section: Local Government



County Administrator Negotiations May Have Violated Sunshine Laws

Published Saturday, February 23, 2013 12:10 am

BRADENTON – The Manatee County BOCC caused a big stir among taxpayers recently, when it voted 5-2 to invest hundreds of thousands of additional dollars in keeping county administrator Ed Hunzeker beyond his planned retirement in August of 2014. According to both an attorney who specializes in government law and a recent legal opinion from the Florida Attorney General's office, that may have violated state law.

In the AG opinion, which dealt with the Miami City Commission and arena negotiations with the Miami Heat, when a government board authorizes a negotiation team for an action that will then come back before them for a vote, those negotiations are subject to public meeting laws. Florida's Government-in-the-Sunshine Law was enacted in 1967.

The law opens to the public the meeting of not only elected officials, but other boards including committees formed by action of a board under the sunshine. Quite simply, a board cannot avoid the sunshine law by voting to have someone else to negotiate a contract. The law ensures that the public is able to see how the decision is reached.

Manatee County Commissioners voted on a recommendation by the new Chair Larry Bustle to negotiate a new contract with Ed Hunzeker, which itself was not included on the published agenda, but rather motioned during the commissioner comments portion of a meeting. The public was not informed of meetings between Bustle and Hunzeker, and no video or transcript have been produced. The result of these meetings outside of the sunshine was a new contract that the public was not able to observe, as required by law.

Ralf Brookes, a Florida attorney who specializes in government, said that doesn't comply with sunshine statutes.

"Florida courts have clearly and consistently held that governmental entities can not carry out decision-making functions outside of the Sunshine Law by delegating such authority," said Brookes, who is based in Cape Coral. "Even delegated advisory committees whose powers are limited to making recommendations to the county commission are still subject to the Sunshine Law."

Brookes said that while the practice may be widespread, there are legal precedents for such instances.

"As the court in News-Press Publishing Company Inc. v. Carlson held, when public officials delegate authority to negotiate on their behalf that extends beyond fact finding, and those persons who were delegated that authority stand in the shoes of such public officials, their meetings are subject to the Government in the Sunshine Law,” explained Brookes. “From the facts as near as I can tell, this appears to be a violation of the sunshine law."

Brookes said that not holding negotiations in the sunshine were not the only red flags raised by the county's process.

“It seems that even the original decision to delegate authority to negotiate the contract was never noticed or posted, and never appeared on the printed agenda,” said Brookes. “Something this significant should have been noticed to give the public, as well as the county attorney, time to review and comment on the proposed delegation before it occurred.”


Brookes said that on the surface, the process doesn't look good.

“It appears to me that the decision to delegate was rushed, and that the delegation was intentionally designed to avoid public scrutiny of proposed contract terms, any negotiated give and take or counter proposals,” said Brookes. “Subsequently, at the next meeting the BOCC approved the contract as negotiated out of the sunshine, and it appears that not all the negotiations as to contract terms, including what the parties offered or were willing to accept, were fully disclosed by those delegated the authority to negotiate. This certainly does not meet the letter or the intent of Florida's Open Government Sunshine Law to prevent public business from continuing to occur in back room, closed door meetings."

Hunzeker, who had been enrolled in the state's DROP program was contracted until November of 2014, though he was scheduled to retire that August, as per his DROP enrollment. His previous contract was worth about $185,000 annually, including deferred compensation a car allowance and extra insurance. The new contract, which the board approved 5-2 on January 29, not only increases Hunzeker's salary by $34,424.00, it includes significant perks including the maximum allowed deferred compensation (currently 23 percent, as opposed to 5 percent in his previous contract), and an increase in leave time and how much of it can be cashed out. Taxpayers will also have to pay for back payments (with compounded interest) that will have to be made by the county to the Florida Retirement System for the time that Hunzeker was in DROP.

 

related:

County Commission Plans to Offer Hunzeker Significant Pay Increase Tuesday

Manatee BOCC Passes New Contract for Administrator 5-2

Former Manatee Commissioner Rips Board on Administrator's Contract

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It comes as no surprise to me...Mr. Bustle clearly has something up his sleeve. I thought Mr. Hunzeker was a stand-up guy, but there, I admit I was wrong.

Funny how no one complained about the fast track of this questionable contract when it was happening. It'll be interesting to see if it's too late to file objections. How much taxpayer money is Mr. Bustle and his crew willing to spend to fight the public on this matter?
Posted by Kathy Morrison on February 25, 2013
 

Not surprising that the County did not lawfully notice meetings of a 'negotiation' committee regarding Hunzeker's employment contract. The county purchasing department also failed to properly notice meetings regarding the Manatee Jail Health Care contract involving 4+million tax dollars last summer.

During the 'negotiations' to build the Bradenton City Centre in the 1990's, the same violations of Sunshine Law occurred. In Leach/Wells vs the City of Bradenton, the City also appointed a 'negotiation team' that narrowed the list of developer/builders bidding for the job from 6 to 3 without ever having a public meeting. The public did not get to see three of the proposals until the City of Bradenton performed a 'cure'. Still, they were sued by Dorothy Leach Wells, an elderly political activist and art/antique shop owner on Main Street for violating the Sunshine law. Sadly,Ms. Dorothy passed away last year and we lost a true watchdog of government. Ms. Dorthy prevailed in the City Centre case, though the COB managed to build it while her case went through the courts. Her case is quoted many times in the Government in the Sunshine Manual, which ALL POLITICIANS MUST READ UPON TAKING OFFICE. Did the BOCC not read the manual, or did they choose to ignore it? That is how government screws us-they rely on passive, complacent voters who think voting alone changes things. Not so. We must watch government between elections too. Hunzeker's contract and past COB and Manatee government actions show that if we are not vigilant in watchdogging government, government will corruptly break the law to advance the good ole boys agendas.

We miss you Ms. Dorothy. Manatee County needs more dedicated citizens like you.

Thank you Ms. Dorothy for all you did over so many years. Seems we have a day dedicated to sports stars, and many other local heroes. The COB and Manatee County should dedicate a day to your memory and legacy of true American values.
Posted by Barbara Elliott on February 24, 2013
 

Attorney Generals Sunshine Handbook for Citizens

Town of Palm Beach v. Gradison
296 So.2d 473

The Florida Supreme Court addressing a board member meeting in secret to avoid the public before ceremonial acceptance:

"One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance. Rarely could there be any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken."

"The principle to be followed is very simple: When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State. See Florida Law Review, Government in the Sunshine by Ruth Mayes Barnes, Vol. XXIII, 361, 365 (Winter 1971)."

Shame on our county government.
Posted by Jack Starost on February 23, 2013
 

This is shocking. The County Administrator, the Chairman of the Manatee Commission, The County Attorney and Ed's/_Mosaic lawyers all violating the law.
Posted by Richard McNulty on February 23, 2013
 

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