Pipe line repair took too long

WILLIAM. B. HARRISS Photo credit: J.D. Pleasant

It was in the Record's editorial on July 20th -- see below
EDITORIAL: Pipeline Repair Took Too Long

Pipe line repair took too long

Publication Date: 07/20/08

The St. Augustine City Commission has approved spending up to $1 million to replace a broken pipeline the city's known about for four years.

In good times, the 1,600-foot pipeline transported treated water from the city's wastewater treatment plant on Riberia Street into the Intracoastal Waterway. Since at least 2004, it has squandered treated water on a salt water marsh ecosystem. The marsh is not dead, it's just not the way it should be, brown in color rather than vibrant green.

The original cost to remedy the broken pipewas estimated by a private consultant at $2.5 million to $3.9 million. "We could have done it faster; it would have meant a lot more resources and we would have had to just open up the bank account," said John Regan, the city's chief operations officer, last week.

City Manager Bill Harriss concurred. He said he polled the City Commissioners individually at the time and each agreed that it was too costly and that a cheaper process should be found.
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Thanks to Dr. Dwight Hines, Ph.D. for calling this research to my attention:

From 2008 Government in Sunshine Manual "The Sunshine Law is applicable to meetings between a board member and an individual who is not a member of the board when that individual is being used as a liaison between, or to conduct a de facto meeting of, board members. See, AGO 74-47 (city manager is not a member of the city council and thus, may meet with individual council members; however, the manager may not act as a liaison for board members by circulating information and thoughts of individual council members). Compare, AGO 89-39 (aides to county commissioners would not be subject to the Sunshine Law unless they have been delegated decision-making functions outside of the ambit of normal staff functions, are acting as liaisons between board members, or are acting in place of the board or its members at their direction).

For example, in Blackford v. School Board of Orange County,
375 So. 2d 578 (Fla. 5th DCA 1979), the court held that a series of scheduled successive meetings between the school superintendent and individual members of the school board were subject to the Sunshine Law. While normally meetings between the school superintendent and an individual school board member would not be subject to s. 286.011, F.S., these meetings were held in "rapid-fire succession" in order to avoid a public airing of a controversial redistricting problem. They amounted to a de facto meeting of the school board in violation of s. 286.011, F.S.
Similarly, in Sentinel Communications Company v. School Board of Osceola County, No. CI92-0045 (Fla. 9th Cir. Ct. April 3, 1992), the court found that a series of private meetings between a school superintendent and individual school board members which were scheduled by the superintendent to present and consider staff recommendations concerning the administrative structure of the school system and to privately address any objections or concerns that the board might have, should have been held in theUse of nonmembers as liaisons between board members

The Sunshine Law is applicable to meetings between a board member and an individual who is not a member of the board when that individual is being used as a liaison between, or to conduct a de facto meeting of, board members. See, AGO 74-47 (city manager is not a member of the city council and thus, may meet with individual council members; however, the manager may not act as a liaison for board members by circulating information and thoughts of individual council members). Compare, AGO 89-39 (aides to county commissioners would not be subject to the Sunshine Law unless they have been delegated decision-making functions outside of the ambit of normal staff functions, are acting as liaisons between board members, or are acting in place of the board or its members at their direction).

For example, in Blackford v. School Board of Orange County,
375 So. 2d 578 (Fla. 5th DCA 1979), the court held that a series of scheduled successive meetings between the school superintendent and individual members of the school board were subject to the Sunshine Law. While normally meetings between the school superintendent and an individual school board member would not be subject to s. 286.011, F.S., these meetings were held in "rapid-fire succession" in order to avoid a public airing of a controversial redistricting problem. They amounted to a de facto meeting of the school board in violation of s. 286.011, F.S.
Similarly, in Sentinel Communications Company v. School Board of Osceola County, No. CI92-0045 (Fla. 9th Cir. Ct. April 3, 1992), the court found that a series of private meetings between a school superintendent and individual school board members which were scheduled by the superintendent to present and consider staff recommendations concerning the administrative structure of the school system and to privately address any objections or concerns that the board might have, should have been held in the sunshine. The court said that its decision should not be construed to prohibit individual board members from meeting privately with staff or the superintendent for informational purposes or on an ad hoc basis. However, "[i]t shall be construed to prohibit the scheduling of a series of such meetings which concern a specific agenda." Thus, the court enjoined the board and its superintendent "from holding any further closed door meetings to formulate Board policy, discuss matters where Board action is contemplated, or otherwise conduct the public's business."
In Citizens for a Better Royal Palm Beach, Inc. v. Village of Royal Palm Beach, No. CL 91-14417 AA (Fla. 15th Cir. Ct. May 14, 1992), the court invalidated a contract for the sale of municipal property when it determined that after the proposal to sell the property which had been discussed and approved at a public meeting collapsed, the city manager met individually with council members and from those discussions the property was sold to another group. The circuit court found that these meetings resulted in a substantial change in the terms of sale and that the execution of the contract, therefore, violated the Sunshine Law.

Thus, a city manager should refrain from asking each commissioner to state his or her position on a specific matter which will foreseeably be considered by the commission at a public meeting in order to provide the information to the members of the commission. AGO 89-23. See also, AGO 75-59 (the spirit, if not the letter, of the Sunshine Law requires official decisions to be made in public after a full discussion by the board members; thus, the board's director should refrain from calling each member of the board separately and asking each member to state his or her position on a matter which will foreseeably be presented for consideration to the entire board in open session). Cf., AGO 81-42 (the fact that a city council member has expressed his or her views or voting intent on an upcoming matter to a news reporter prior to the scheduled public meeting does not violate the Sunshine Law so long as the reporter is not being used by the member as an intermediary in order to circumvent the requirements of s. 286.011, F.S.).
Not all decisions taken by staff, however, need to be made or approved by a board. Thus, the district court concluded in Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), that the decision to appeal made by legal counsel to a public board after discussions between the legal staff and individual members of the board was not subject to the Sunshine Law. Accord, Inf. Op. to Biasco, July 2, 1997 (administrative officers or staff who serve public boards should not poll board members on issues which will foreseeably come before the board in order to avoid being used as a liaison between board members, although an administrative officer is not precluded from contacting individual board members for their views on a matter when the officer, and not the board, has been vested with the authority to take action).

So, once again, the question recurs: is there any crime that WILLIAM B. HARRISS will commit that the State of Florida, State's Attorney Tanner, FDEL or FDEP will ever prosecute?