News Section: Local Government
County Administrator Negotiations May Have Violated Sunshine Laws
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.