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Shadow government

March 10, 2017
Cape Coral Daily Breeze

When a Friends of Wildlife T-shirt-wearing resident made another plea to City Council for "green space" preservation Monday, City Manager John Szerlag announced that he has ordered an appraisal for a 325-acre site that could possibly be brought forward in a land swap proposal for the old golf course acreage where a national builder hopes to build 500 homes.

He asked Council for some consensus.

If bobbing heads count as a please proceed, he got it.

Of course, Mr. Szerlag already had the go-ahead in the bag as he had asked members of the elected board individually for direction regarding an appraisal days before.

Sure, Mr. Szerlag could have ordered the market analysis without any Council consent, formal or otherwise.

But he wanted to gauge interest in a possible exchange before devoting any effort on the subject which, ultimately, would need to come to Council.

According to council members contacted - and we contacted them all - the "seeking of direction" via one-on-ones is a fairly routine practice for the city administration.

Especially for touchier subjects such as the old golf course site, the franchise agreement with LCEC and issues pertaining to eminent domain.

Most said they see no problem with the practice. Mr. Szerlag reports to Council and that means it is appropriate for him to ask member opinion individually on such things as whether they might be interested in pursuing a land swap or what talking points they would like to see presented to the electric utility co-op so long as he does not share those views directly with other council members -which they assure the manager does not.

But not everyone has that comfort level.

Some Council members, in fact, have begun to feel uneasy. Matters such as any prospective land swap and the LCEC franchise agreement ultimately will be brought to the entire board for a vote, they acknowledge. Even the sessions' supporters concede it's pretty easy to see which way a Council majority is leaning on an issue based on the action the city manager takes following the "one-on-ones," which usually do include another staffer.

One council member was concerned enough about being queried regarding the appraisal - and being told there was already support from five fellow board members - that a question was posed to the City Attorney's Office asking whether such consensus gathering crosses either a legal or ethical line between permittable information sharing and prohibited "daisy chaining."

A couple of things.

While that concerned council member's query to the City Attorney's Office perks alongside an unrelated, but similar, council member tendered "Sunshine" question -yes, there have been two in the last few weeks - we will not accuse either Mr. Szerlag or any member of Council of any impropriety concerning the path these manager-member sessions have taken.

We will, however, say that, at best, Mr. Szerlag's for-direction queries are ill advised.

Very ill advised, according to multiple opinions from the Florida Attorney General's Office.

The office has stated in at least three opinions that while administrative staff can meet one-on-one with elected officials, a manager or director "should refrain" from asking each elected official for his or her position on a specific matter which will foreseeably be considered by the board at a public meeting.

That's good advice because doing so is a slippery slope: Obtaining an appraisal may not be a voting issue; agreeing to pursue a possible land swap is - or should be.

Simply put, "for-direction" one-on-ones foster a climate that encourages shadow government, where decisions may not be made, but certainly are cast.

And it should not matter whether the "shadow government" stays on the legal side of Florida's very stringent Government-in-the-Sunshine Laws. Such governance tramples the spirit of the statutes that protect the public's right to be part of any decision-making process from concept to implementation.

To that end, as "Sunshine Sunday" - the day set aside annually to "protect the public's right to know"- kicks off this weekend, we urge our local officials to bring procedures back into full light:

* Address the parameters of manager-member meetings. Publicly. On the dais. Privately, refrain from stating positions that "provide direction." If direction is desired, put it on a regular Council meeting agenda and let the public weigh in as is our right.

* Based on a staff recommendation, Council agreed to halve the number of regular city council meetings to two a month. If that's not often enough to "get direction" from Council as a whole, schedule a special meeting or add additional regular meetings back into the schedule. Either works for us.

* Require staff to be a whole lot more proactive on providing information.

Although Council meetings have been cut, providing much more time between meetings, there has been zero effort on the part of the city administration to make documents related to agenda items available any earlier - or even on a timely basis before the now twice-monthly Monday meetings.

A recent example?

The attachment of the backup material, a 56-page "memo," was not originally posted with the agenda for the highly anticipated joint meeting between the City of Cape Coral Municipal Charter School System and Council. Staff eventually emailed the document packet to officials of both boards late Friday afternoon. The public got access even later - it was posted to the city website shortly after city hall's 4:30 p.m. closing.

Council should demand much more time to research the issues that come before it. Being forced to rely only on pre-meeting one-on-ones to get questions answered is not a good way to conduct business.

And the public doesn't even get that.

* Stop the public records stumble. Public records requests continue to be problematic, according to some members of Council and the public. We, in fact, continue to wait for what we thought was a pretty easy numbers request made weeks ago.

Delays, the need to provide more information to better "define" what should be a pretty straight-forward request, and cost, continue to plague the process. Requests to the city clerk's office are kicked to department personnel who decide how much time - and money - it's going to take to provide the documents.

Unless overtime is required, retrieving records is pretty much a core duty for numerous positions. Streamline the process, make turnaround a priority, and stop trying to make taxpayers pay twice.

And finally, a closing shadow government mitigation recommendation:

* Stop with the personal texts, messages and other means to dance around the Sunshine statutes. Taking fellow Council members to task via social media messages and exchanging little missives on personal cell phones are inappropriate, even if preserved as a record that can be produced upon request. Again, one can uphold the letter of the law and spit upon its intent.

Florida's open meeting and public records Sunshine statutes are among the most proactive in the nation.

Those laws were created decades ago to prevent any number of things that grow in the deep dark shade cast by backdoor dealings in states where it's oh, so much easier to "get things done."

We urge our city officials to make sure they let the sun shine in.

- Breeze editorial



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