Subject: Re: Antitrust and Civil Rights Compliance Policies
What on Earth are you thinking or talking about!? Please provide documents now. Please retract libel and lashon hara now. Return call please now. Your words are freighted with animus toward First Amendment protected activity. Who is your personal and organizational counsel?
On May 24, 2013, at 3:08 PM, Richard Goldman
RICHARD GOLDMAN
Executive Director. St. Johns County Convention and Visitors Bureau:
Violates Open Records Law and Refuses to Provide Government Contractor Records
on $4.6 Million Annual Visitor and Convention Bureau --
Not Even its Antitrust and Civil Rights Compliance Policies
(Which May Not Even Exist)
Dear Mr. Slavin,Please see the emails below including the opinion of the county attorney’s office regarding the application of the Public Records Act. Consistent with the opinion, the VCB will not be providing the requested documents. Suffice it to say that we do follow the laws relating to anti-trust behavior, equal employment protections for our staff current and future, as well as all other ordinances and statutes relating to the conduct of the VCB’s business.
Also, this week a member of staff reported being harassed by you and that you interfered with patrons at the beaches visitor information center. Such behavior must cease immediately.
Sincerely,
Richard Goldman
Executive Director
St.Augustine, Ponte Vedra & The Beaches
Visitors & Conventions Bureau
office:904.829.1711
direct:904.209.4426
From: Richard Goldman
Sent: Wednesday, May 22, 2013 5:39 PM
To: 'Commissioner Rachael Bennett'; Patrick McCormack; Regina Ross
Subject: RE: Antitrust and Civil Rights Compliance Policies
Commissioner Bennett, Mr. McCormack and Ms. Ross,
Indeed a thorough analysis. Thank you for sharing, we will pursue an independent opinion as suggested.
Meanwhile, below I have answered the questions posed or confirmed Ms. Ross’ review regarding the “factors” considered in determining whether a private organization is subject to the public records act. The CAPS are for the sake of distinguishing VCB answers and should not be interpreted as shouting.
1. The County does provide a level of public funding in the way of tourist development tax revenues in exchange for the services provided by the VCB; CONFIRMED
2. Whether there is any comingling of public and private funds is a question which can be best answered by the VCB; THERE IS NO COMINGLING
3. Very few, if any, VCB activities are conducted on County owned property; CONFIRMED
4. There is no indication that the services provided by the VCB are an integral part of the County’s decision-making process; AGREED
5. The VCB performs tourist-related marketing and promotions services at the direction of the County, which is not customarily a governmental function; AGREED
6. The extent of the County’s involvement with the VCB is limited to activities that promote St. Johns County a tourist destination, and the County’s exercises of control over the organization is limited to the manner in which the contractual services are provided; AGREED
7. The VCB is not a County created agency; CONFIRMED
8. The County’s financial interest in the VCB is limited to the use of funds provided by the County in accordance with the terms of the contract; CONFIRMED
9. For whose benefit the VCB is functioning is also a question better answered by the VCB. VCB ACTIVITIES DIRECTLY BENEFIT THE TOURISM RELATED BUSINESSES INCLUDING TOURISM DEVELOPMENT TAX COLLECTORS. INDIRECTLY, ITS ACTIVITIES STIMULATE VISITOR SPENDING AND COLLECTION OF MORE SALES RELATED TAXES AND FEES THAN WOULD BE COLLECTED FROM RESIDENTS ALONE.
Richard Goldman
Executive Director
St.Augustine, Ponte Vedra & The Beaches
office:904.829.1711
direct:904.209.4426
From: Commissioner Rachael Bennett [mailto:bccd5@sjcfl.us]
Sent: Wednesday, May 22, 2013 4:20 PM
To: Patrick McCormack; Regina Ross
Cc: Richard Goldman
Subject: Re: Antitrust and Civil Rights Compliance Policies
An excellent and thorough response. Thank you so much Regina!
Richard please feel free to share with your board as you see fit but please be certain to include Patrick's strong recommendation that final determination be made by the counsel to VCB
Thanks!
Rachael L. Bennett
St Johns County Commission
District 5
(904)209-0305 office
(904)315-7260 cell
Sent from my iPhone
On May 22, 2013, at 4:07 PM, "Patrick McCormack"
Commissioner Bennett,
Pls see Regina’s analysis below…again, the VCB needs to make its own determination…this is how we see it based on what we have seen.
Pls let me know if you would like to discuss further.
v/r
Pat
From: Regina Ross
Sent: Wednesday, May 22, 2013 3:57 PM
To: Patrick McCormack
Cc: Diane Lehmann; Judy Hamilton
Subject: RE: Antitrust and Civil Rights Compliance Policies
Patrick:
Based upon the email chain below, it appears that questions concerning private organizations and open government laws have resurfaced. In response to Commissioner Bennett’s request for information on the issue, consider the following general information regarding private organizations and open government laws.
The Sunshine Law (Chapter 286, F.S.)
The Sunshine Law applies to “any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision.” Courts have construed the law very liberally to give effect to its purpose. Accordingly, it applies equally to elected and appointed boards or commissions, and is also applicable to advisory boards which make recommendations for consideration by a public agency. Generally, private organizations are not subject to the Sunshine Law unless the private organization has been delegated the authority to perform some governmental function. Simply stated, the Sunshine Law would not apply to a private organization where no delegation of legislative or governmental function by any governmental entity has occurred and the organization does not act in an advisory capacity to the governmental agency.
Relatively speaking, most of the litigation regarding the application of open government laws to private organizations providing services to public agencies has been in the area of public records. Accordingly, Courts have often looked to Chapter 119, F.S. to determine the applicability of the Sunshine Law.
The Public Records Act (Chapter 119, F.S.)
Section 119.011(11) of the Florida Statutes defines “public records” to include “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software or other material, regardless of physical form, characteristics or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. Additionally, section 119.011(2) defines “agency” to include any state, county, district, authority or municipal officers, department, division, board, bureau, commission or other separate unit of government created or established by law….and any other public or private agency, person, partnership, corporation or business entity action on behalf of any public agency.
The term “agency” is broadly defined to include private entities acting on behalf of any public agency; therefore, provisions of the Public Records Act are not limited to governmental entities. In light of the purpose of the Public Records Act, the broad definition ensures that public agencies do not avoid their duty to disclose records by simply delegating the responsibility to private entities by way of a contract.
While at first glance this premise seems straightforward, Florida case law clearly establishes that a more complex issue is presented when a private entity, not otherwise connected with government, provides services for a government body.
More succinctly stated, whether a private entity is subject to the Public Records Act is dependent upon whether the private entity is “acting on behalf of an agency”. Unfortunately, the Florida Statutes provides no clear criteria for determining when a private entity is “acting on behalf of a public agency.” Moreover, there is no single factor that is controlling on the question of when a private entity becomes subject to the Public Records Act. For instance, Florida courts have found that the mere fact that a private entity is under contract with or receiving funds from a public agency is not sufficient, standing alone, to bring the private entity within the scope of the Public Records Act. In addressing the issue, the Florida Supreme Court has adopted the “totality of factors” test to use as a guide for evaluating whether a private entity is subject to the Public Records Act. The factors listed by the Court include:
1. The level of public funding provided to the private entity;
2. Whether there is any comingling of public and private funds;
3. Whether the activities are conducted on publically owned property;
4. Whether the services contracted for are an integral part of the public agency’s chosen decision-making process;
5. Whether the private entity is performing a governmental function or a function which the public agency otherwise would perform;
6. The extent of the public agency’s involvement with, regulation of, or control over the private entity;
7. Whether the private entity was created by the public agency;
8. Whether the public agency has a substantial financial interest in the private entity; and
9. For whose benefit the private agency is functioning.
Application of the totality of factors tests usually requires a thorough analysis of any resolutions, or other provisions that establish the function to be performed by the private entity along with review of the terms of the contract, lease or other document between the governmental body and the private organization.
Please note that there is a difference between a private entity contracting with a public agency to provide services to the agency and a private entity contracting with a public agency to provide services in place of the agency. In other words, the business records of a private entity that simply provides a service for an agency is more than likely not subject to disclosure under the Public Records Act. However, if a private entity contracts to relieve the public agency from the operation of a government function, the open government laws do apply.
In reference to the discussions in the email chain below, while the County does have a contractual relationship with the VCB to provide a specific scope of services to the County (see Article 3 and Attachment A of the attached contract), you are absolutely correct in stating that the VCB, along with its counsel, would have to make a determination as to whether the organization is subject to open government laws. Based on my extremely cursory review in applying the factors above:
1. The County does provide a level of public funding in the way of tourist development tax revenues in exchange for the services provided by the VCB;
2. Whether there is any comingling of public and private funds is a question which can be best answered by the VCB;
3. Very few, if any, VCB activities are conducted on County owned property;
4. There is no indication that the services provided by the VCB are an integral part of the County’s decision-making process;
5. The VCB performs tourist-related marketing and promotions services at the direction of the County, which is not customarily a governmental function;
6. The extent of the County’s involvement with the VCB is limited to activities that promote St. Johns County a tourist destination, and the County’s exercises of control over the organization is limited to the manner in which the contractual services are provided;
7. The VCB is not a County created agency;
8. The County’s financial interest in the VCB is limited to the use of funds provided by the County in accordance with the terms of the contract;
9. For whose benefit the VCB is functioning is also a question better answered by the VCB.
In balancing the factors, while I am unable to definitively state whether the VCB is subject to open government laws, I do not believed (sic) that its contractual relationship with the County, standing alone, places the organization within the scope of the Sunshine Shine Law or subjects its business records to disclosure under the Public Records Act. As an additional note, with respect to the contract between the County and the VCB, Articles 8 and 9 explicitly provide that access to, and disclosure of, any records related to the services rendered to the County are subject to applicable provisions of the Public Records Act.
I hope this information assists. If there is anything else I may provide or clarify, please let me know. Also, I can provide case law citations upon request.
ReginaFrom: Patrick McCormack
Sent: Wednesday, May 22, 2013 8:33 AM
To: Regina Ross
Subject: FW: Antitrust and Civil Rights Compliance Policies
From: Ed Slavin [mailto:easlavin@aol.com]
Sent: Tuesday, May 21, 2013 3:18 PM
Cc: Richard Goldman; Patrick McCormack
Subject: Re: Antitrust and Civil Rights Compliance Policies
Does VCB have any compliance policies? Please respond, e.g., with documents, today. Talk to you both soon.
Ed Slavin
www.cleanupcityofstaugustine.blogspot.com
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