Wednesday, January 26, 2011
First America Foundation Refuses to Comply with Florida's Open Records, Sunshine and Article I, Section 24 of the Florida Constitution
I attended the first First America Foundation (FAF) press conference this morning. I asked the first question of Acting FAF Executive Director Jaime Alvarez.
I stated that FAF was established for the express purpose of avoiding and evading the Sunshine and Open Records laws.
I then asked if FAF would agree to comply with Open Records and Sunshine laws and Article I, Section 24 of the Florida Constitution.
Acting FAF Executive Director Jamie Alvarez refused to provide records or open meetings. She refused to provide minutes of Board meetings and will not post them on the FAF website.
Bottom line: FAF did not agree to open its meetings or records.
Under Florida Open Records precedents, FAF is an "agency" of the City of St. Augustine.
FAF shows contempt for the will of the people of Florida, who enacted Article I, Section 24 of the Florida Constitution, which states in haec verba:
ARTICLE I -- DECLARATION OF RIGHTS -- SECTION 24. Access to public records and meetings.—
(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.
(b) All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.
(c) This section shall be self-executing. The legislature, however, may provide by general law passed by a two-thirds vote of each house for the exemption of records from the requirements of subsection (a) and the exemption of meetings from the requirements of subsection (b), provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law. The legislature shall enact laws governing the enforcement of this section, including the maintenance, control, destruction, disposal, and disposition of records made public by this section, except that each house of the legislature may adopt rules governing the enforcement of this section in relation to records of the legislative branch. Laws enacted pursuant to this subsection shall contain only exemptions from the requirements of subsections (a) or (b) and provisions governing the enforcement of this section, and shall relate to one subject.
(d) All laws that are in effect on July 1, 1993 that limit public access to records or meetings shall remain in force, and such laws apply to records of the legislative and judicial branches, until they are repealed. Rules of court that are in effect on the date of adoption of this section that limit access to records shall remain in effect until they are repealed.
History.—Added, C.S. for C.S. for H.J.R.’s 1727, 863, 2035, 1992; adopted 1992; Am. S.J.R. 1284, 2002; adopted 2002.
Here is the Folio Weekly article from August 17, 2010, an indictment of the First America Foundation, which was set up for the express purpose of ducking Article I, section 24 of the Florida Constitution and the Sunshine and Open Records Acts:
St. Augustine will pay an untested business with no clear plan to put on its 450th
birthday celebration — all to avoid state Sunshine Laws
Folio Weekly, August 17, 2010
By Susan Cooper Eastman
Last week, the St. Augustine City
Commission voted to take the job of
celebrating the city’s 450th anniversary out
of the Sunshine and into the hands of a
newly created private nonprofit.
Commissioners unanimously approved a
contract with the hastily formed First
America Foundation Inc. to produce the
celebration, despite the fact that the group
has existed only since July, has never planned
even a kid’s birthday party and has offered
no specifics about how it might spend its
lump sum payment of $275,000.
Why did the city enter into the dubious
deal? Because First America Foundation is an
independent entity, and will therefore be
unconstrained by the state’s Sunshine Law,
which would require everything from the
party’s planning process to its expense reports
to be open to public view.
City Attorney Ron Brown told Folio
Weekly after the vote that evading the
requirements of the Sunshine Law is essential
if the city wants a good party. He notes that
governments are no good at wooing
corporate donors, planning slick marketing
campaigns or organizing mammoth events. It
takes a private company that isn’t hamstrung
by open meeting laws and open books. For
instance, Brown says, while AT&T might give
money to a nonprofit, it won’t give money to
a government. And it won’t discuss donations
or make commitments if those disclosures
have to be done at a public meeting.
But it’s not clear that simply passing off
party duties will exempt the First America
Foundation from the Sunshine Law. John
Rhea, director of the First Amendment
Foundation in Tallahassee, notes that the city
had already been engaged in planning the
celebration, spending more than $300,000 in
the past two years, and hiring Dana Ste. Claire
in March 2009 as executive director of The
450 Corps. Therefore, Rhea interprets the
contract with First America Foundation Inc.
as the city hiring an entity to take over a job
that it had previously been performing. And
according to the Sunshine Law, if a city hires a
private entity to perform a city function, that
entity is subject to the Sunshine Law.
City Attorney Brown doesn’t agree with
Rhea’s assessment that First America
Foundation Inc. might be subject to the
Sunshine Law. Brown argues that the city isn’t
hiring the nonprofit to perform a government
function, merely contracting with it to be a
sponsor of the celebration. And he points to a
1992 state Supreme Court case which found
that the degree of a government’s investment
in a project in part governs whether a private
entity overseeing that project is subject to
open records law. Brown also insists that the
city wasn’t obligated to put the contract out to
public bid. The city is required by state statute
to submit to a bidding process for professional
services, but Brown says that state statute only
spells out four occupations: landscape
architect, architect, engineer and surveyor.
Party planner isn’t mentioned.
The issue recalls the curtain that was
drawn across the 2005 Super Bowl planning
process by the independent Super Bowl Host
Committee. In its contract with the city of
Jacksonville, the Host Committee promised
to comply with the Sunshine Law. But when
The Florida Times-Union, Jacksonville
Business Journal, Folio Weekly and even
Jacksonville city auditors requested records
from the Host Committee, its lawyers
(backed by the city’s own lawyers) claimed it
was exempt (Cover Story, “Stadium Scam,”
http://bit.ly/staduim_scam). The question
was never tested in court, however, and the
Host Committee spent millions of public
dollars with no accountability.
Donald Wallis, an attorney with
Upchurch, Bailey & Upchurch, who is the
registered agent for First America Foundation
Inc., promised the organization would be
“very public” and “transparent,” but admitted
it could pick and choose what meetings
to open and what records to disclose.
Essentially, City Commissioners and St.
Augustine residents are being asked to trust
that taxpayer money will be spent wisely by
First America Foundation, and that the 450th
celebration will be something the city will be
proud of. If city officials don’t like what First
America is doing, the contract gives them the
right to terminate the deal. But it’s unclear
how city officials would determine whether
they’re happy with the group’s performance,
since they won’t be privy to its operations.
And they will have no say in how city money
Rhea, for one, questions the Commissioners’
decision to relinquish oversight of taxpayer
dollars. “How logical is that?” he asks. “To turn
over in excess of a quarter of a million dollars
to a private organization and then be hands
off? Is that good government? That is craziness
That craziness became clear at last week’s
meeting, when Commissioners tried to find
out even benign details about First America
Foundation before voting to give it money.
Vice Mayor Errol Jones asked who was on the
Foundation’s board of directors and if that
organization had a structure. Wallis responded
that it was “a very fair question” and that the
answer was “No.” When Commissioner Nancy
Sikes-Kline asked the Foundation to attend a
subsequent meeting to submit its bylaws and
mission statement, City Attorney Brown
cautioned that demanding such control
might compromise the Sunshine-free status
of the Foundation.
“The idea here is for us to let go,” urged
Mayor Joe Boles.
Rhea says he had a visceral reaction to any
government efforts to circumvent the Sunshine
Law. “When people are trying to avoid the
Sunshine Law, the reason the Sunshine Law is
there is for accountability and public oversight.
My immediate reaction is, ‘Why?’”
Rhea notes that open government isn’t
just about watchdogging public money.
It’s about respecting the rights given to
Floridians in the state constitution. “The
public has a constitutional right to access to
records and to meetings,” he says. “It doesn’t
really matter whether their representatives
think it is a good idea that they have access.
They have a constitutional right.”
Rhea also cautions that the city’s decision
could be expensive. Already, some local city
activists have threatened to file suit to challenge
the city’s vote. If that happens, and the suit is
successful, it would mean a lot of wasted time
and money. The contract would be voided,
along with any action taken by First America
Warns Rhea, “It’s a very risky path.”
Susan Cooper Eastman