Wednesday, May 25, 2011

Folio Weekly re: "First America Foundation" Sunshine Violations -- August 17, 2010

Infernal Sunshine
St. Augustine will pay an untested business with no clear plan to put on its 450th
birthday celebration — all to avoid state Sunshine Laws

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,” 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
is spent.
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
to me.”
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
Foundation Inc.
Warns Rhea, “It’s a very risky path.”
Susan Cooper Eastman

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