[From Frank Brenner] A Wasted Opportunity
Although we must live with it, the Sunshine Law is essentially a solution in search of a problem, born out of the exaggerated notion that “back room” dealings would otherwise exist in Sarasota and threaten the public interest in transparent government. In fact, it has resulted in placing an often insurmountable burden on effective government.
Consider the Nov. 7 City Commission meeting, held to discuss whether the Sunshine violation action brought against the City and Commissioners Suzanne Atwell and Susan Chapman individually should be settled. The outcome reached was undesirable on several grounds.
First, the Commission refused Commissioner Chapman’s request to postpone decision on the matter in order that her counsel be present to persuade the city not to “cop out,” as I would put it. He had arranged to be present at the time originally scheduled. However, the time of the meeting had been changed overnight to accommodate the personal needs of the Mayor. This precluded the attorney from appearing. Despite the fact a short adjournment would not have prejudiced anyone, the Commission refused this reasonable request and threw their fellow commissioner under the bus.
Secondly, the Commission then, by a vote of 3-1, voted to settle the lawsuit on the terms offered by Citizens for Sunshine, i.e., admit to violation of the law and pay attorney’s fees (Commissioner Willie Shaw against; Commissioner Chapman required to abstain). This decision was against the City’s interest.
A prime mover in Sunshine cases against the City is Michael Barfield, an ex-convict who served six years of a ten-year sentence in federal prison for conspiracy, obstruction of justice and perjury before a federal Grand Jury, all arising out of his concoction of false accusations against a federal judge and an assistant U.S. attorney. Prior to that, he was convicted and jailed for forging checks and using stolen credit cards. This individual has been labeling himself both a “legal consultant” and a “paralegal” in the office of attorney Andrea Mogensen, general counsel of Citizens for Sunshine, the plaintiff in the present case, despite the fact that he is not an attorney and is not registered in Florida as a paralegal.
Key to understanding Mr. Barfield’s post-prison life is the fact that the Sunshine Law compels payment of legal fees to a successful plaintiff, and thus provides an incentive to those who would milk it. Consider the following: in 2009, a successful suit against the City of Venice netted attorney Mogensen $243,000 and Michael Barfield $100,080. Sarasota was targeted five times in 2012 and 2013. In 2013, to date, it has paid attorney’s fees of $25,966.
The relevance of Mr. Barfield’s past bears upon the question of whether he is a true champion of the public’s right to transparent government or, on the other hand, simply a pursuer of the statute-based fees provided by the law. If the latter, I would expect the city government to anticipate, as I do, that in the foreseeable future he will continue to scrutinize public records and other sources for potential violations and pursue them, even if, as in the current case, they would require extending the reach of the law beyond what could be called a slam-dunk.
Back to the main thread. The inconclusive facts of this recent assault on the City presented an ideal test case for constraining the reach of the Sunshine Law. By surrendering without a fight, the City may expect future lawsuits from the Mogensen-Barfield team, who are once again encouraged to believe that the City will never go to the mat.
Frank Brenner served in Manhattan as an assistant district attorney, criminal court judge and criminal defense lawyer