So Readers May Stay Informed...

In her continuing effort to throw, uh, "stuff" at the proverbial wall hoping something, anything, eventually sticks, PAR's lawyer recently sent a letter to attorney Richard Harrison claiming additional violations of the Sunshine law by his client. The following is the text of Mr. Harrison's response to PAR's lawyer regarding her assertions. As you can see the letter was copied to all concerned parties and it is herewith copied to you:

May 11, 1020

Valerie A. Fernandez, Esq.
1411 Mantua Ave.
Coral Gables, FL 33146
fernandezvalerie7@gmail.com

Re: Commissioner Harry Stoltzfus

Dear Ms. Fernandez:

Thank you for your email dated May 7, 2010, and for your gratuitous lecture on the requirements of Florida’s Sunshine Law. You have amply demonstrated the inherent wisdom in that old adage about the value of free advice.

While nobody in the City of Anna Maria should at this point harbor any illusions about the lengths to which you and your client, PAR, will apparently go to achieve the end you desire without regard to the requirements of the law or the wishes of the community, your latest effort is, I’m afraid, somewhat less than compelling. In fact, let us consider the myriad ways in which your recent attempt at intimidation is fundamentally, patently and shockingly incorrect both legally and logically.

First, you will really need to decide whether you think Commissioner Stoltzfus’ letters of which you complain are “one way memos” or are, rather, “attempting to solicit a response from Commissioner Quam.” Simple logic would dictate that both propositions cannot simultaneous be true, at least not any more than a “One Way” traffic sign can be said to “solicit” drivers to travel in the contraindicated direction.

Second, the records of the City reflect that the City Attorney, Mr. Dye, as recently as the January 14, 2010, City Commission/Planning & Zoning Board Worksession addressed this issue specifically in response to a query from Commissioner Quam. According to the minutes of that worksession, “City Attorney Dye informed that one-way emails were legal under the Sunshine Law.” There is no meaningful distinction between an email communication and a letter or a posting on a blog. There is ample support for the proposition that such one way communications do not violate the Sunshine Law and there is no authority to indicate that such communications do violate the law. To be sure, Commissioner Stoltzfus is entitled to rely in good faith on the legal advice of the City Attorney notwithstanding your different view of matters.

With respect to a blog posting in particular, the very Attorney General Opinion you cite in your letter states categorically that “the mere posting of a position does not implicate the Sunshine Law.” Although that opinion goes on to opine that “subsequent postings by other commission members on the subject of the initial posting could be construed as a response which would be subject to the statute,” that does not in any way lead to the conclusion that the original post is or was in violation of the Sunshine Law. More to the point, none of the posts of which you complain had received any comments or responses online as of the date of your email; indeed, no such comments or responses appear as of the date of this letter.

Third, to the extent that you suggest that the Sunshine Law in any way impedes Commissioner Stoltzfus from communicating with members of the City’s Planning & Zoning Board, you are mistaken. The Sunshine Law applies only to meeting of two or more members of the same board or collegial body. See Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984). You will also want to refer specifically to Attorney General Opinion 87-34, in which the Attorney General concluded that the Sunshine Law did not apply to a meeting between a city commission member and a member of that city’s appointed planning and zoning board.

Fourth, the implication that it is in any way improper for Commissioner Stoltzfus to state unilaterally his views on matters affecting or of interest to the City and its residents because (a) some residents might agree with him and then (b) having decided that they agree with him, might attempt to get other city officials to agree as well, is just bizarre. Under this very odd rationale, no elected official could ever publish a guest editorial in the local newspaper on a topic of current concern to his constituents for fear that a reader of the editorial might (a) agree and then (b) contact his other elected officials to try to convince them of the soundness of his newfound position. If this is legally correct, of course, then hundreds of newspapers statewide are aiding and abetting such violations on a regular basis, as such editorials by elected officials appear with quite some regularity. As much as I would greatly appreciate the delicious irony of a conclusion that would make the media a part of a vast conspiracy to violate the Sunshine Law, I’m afraid it just isn’t so. For the same reasons, it is not inappropriate for an elected official to attend a meeting of a civic organization, say a local Kiwanis Club, and state his or her views on any matter of current concern locally. Your position, taken to its logical terminus, would prohibit an elected official from ever speaking to even a single citizen about any topic of concern in the community, lest that citizen find that he agrees and then attempt to convince others, including other elected officials, likewise. The absurdity of this position should be readily apparent.

Finally, let me remind you that irrespective of how often you repeat the claim that Commissioner Stoltzfus has violated the Sunshine Law “by holding electronic meetings” and by “using evasive devices,” simply saying it – even saying it over and over – does not make it so. Your accusations have not been proven in any court of law, are untrue and are defamatory per se. Since you elected to distribute your email containing these false statements of fact to a number of other persons, you may be liable to Commissioner Stoltzfus for damages for libel and defamation. In light of the civil claim for damages that Commissioner Stoltzfus may now have against you and pursuant to Fla. Stat. §627.4137, demand is hereby made upon you to disclose the name and coverage of each known provider of liability insurance covering you and which does or may provide coverage for all or any portion of any such claim and to forward this request to each such insurer to enable it to furnish the information required to be provided by the referenced statute.

Very truly yours,

ALLEN DELL, P.A.



Richard A. Harrison

Board Certified in City, County &
Local Government Law

Copy via email to:
Commissioner Harry Stoltzfus, amcommstoltzfus@cityofannamaria.com
Commission Chairperson John Quam, amcommquam@cityofannamaria.com
Commissioner Charles “Chuck” H. Webb, amcommwebb@cityofannamaria.com
Commissioner Jo Ann Mattick, amcommmattick@cityofannamaria.com
Commissioner Dale Woodland, amcommwoodland@cityofannamaria.com
Bob Barlow, ampzbarlow@cityofannamaria.com
Margaret Jenkins, ampzjenkins@cityofannamaria.com
Sandy Mattick, ampzmattick@cityofannamaria.com
Frank Pytel, ampzpytel@cityofannamaria.com
Randall Stover, ampzstover@cityofannamaria.com
Mike Yetter, ampzyetter@cityofannamaria.com
City Clerk Alice Baird, CMC, amclerk@cityofannamaria.com
City Attorney Jim Dye, amattorney@cityofannamaria.com and jdye@dyefirm.com
Mayor Fran Barford, ammayor@cityofannamaria.com