Councilwoman Heather Post, absent with pneumonia, sent text messages to County Chair Ed Kelley and Councilwoman Billie Wheeler as she listened from home. Post gave Wheeler input on who to appoint to an advisory board and she texted Kelley things she wanted brought up during closing comments. Those texts were obtained by The News-Journal through a public records request.
County Attorney Dan Eckert said there was no violation of state law.
But Barbara Petersen, president of the First Amendment Foundation in Tallahassee, said she's "bothered" by the communication either way.
The statute says elected officials can't engage in two-way conversations about official county business outside of public meetings in person or via electronic communication. While Post listening at home constitutes a two-way communication, the texts were sent during a public meeting she was too sick to attend. That creates a gray area between right and wrong, Petersen said.
"I don't know if that's a sunshine violation, but she's texting and the audience can't hear her," Petersen said. "I think it's problematic. It's really questionable. .... I'm bothered by it personally."
Post, who took her first elected role in January after a previous career in law enforcement, contends no laws were broken.
"I have been out with pneumonia. I have not been able to speak or move around without coughing/choking. There was no violation of Sunshine Law," she wrote in an email. "I am sure my constituents will be glad to hear that even in my condition, I made arrangements to view the County Council meeting live online to stay abreast of the issues of importance to Volusia County. This is a reflection of my true dedication to the job."
Absent council members are allowed to participate in meetings via speaker phone. Petersen said she's not sure what laws apply if a council member is sick and can't speak.
"Maybe if she couldn't talk on the phone," she said, "the judge may consider that an extenuating circumstance."
The Kelley texts
During closing comments of the meeting Thursday, County Chair Kelley said he received word from Post that she had received information about the county's veterans administration center — something Councilwoman Deb Denys asked about earlier in the meeting.After the meeting, Kelley said Post communicated with him via via text, and he provided The News-Journal with screenshots of that exchange.
At 1:22 p.m., shortly before the council resumed from a lunch break, Post texted Kelley: "No live audio or video feed online?"
"K, we will resume in five minutes," Kelley replied.
Post responded with a thumb-up emoji and said, "Thnk you."
More than an hour later, while council members made closing comments, Post texted Kelley again:
"I asked staff for a report on the veterans foundation. Donna just gave it to me since last mtg so they have that."
Kelley: "Thanks."
Post: "They gave me whole file."
Kelley: "Yes."
There's a difference of opinion about whether Kelley should have responded to Post's text. It's OK for an elected official to send an email or text about county business as long as the person receiving the message doesn't respond. One-way communication is fine. Two-way is not.
"If the (chair) didn't respond that could be OK, because it's one-way communication, but if the chair responds they have a problem," Petersen said.
Eckert disagrees, noting that single phrases such as "thanks" and "yes" shouldn't be viewed as violations.
"Chair Kelley's text essentially did no more than acknowledge receipt. He then shared that information with the County Council and the public via the internet. I do not believe such a communication constitutes even a technical violation of the Sunshine Law," Eckert said in an email. "However, any violation which occurred was cured by Chair Kelley's public announcement."
Kelley said Thursday: "It's no big deal. ... I did nothing illegal." On Friday, he defended Councilwoman Post.
"As you know Council Member Post missed the meeting because she has Pneumonia," he wrote in an email, "but it showed that she cared enough to listen to the meeting."
The Wheeler texts
Denys made a motion Thursday to form a beachside redevelopment committee that would include nine appointees from the County Council and three appointments from Ormond Beach, Daytona Beach and Daytona Beach Shores. The purpose is to give citizens a say on what can be done to improve the beachside.When Wheeler appointed Tony Grippa, the brainchild behind the committee and a former Leon County commissioner, Kelley said that maybe Post, who wasn't there, would appoint Paul Zimmerman at a later date. He's the president of the advocacy group Sons of the Beach.
Post texted Wheeler at 2:50 p.m.: "I'm not appointing Paul. Illspoint Tony."
Wheeler didn't respond, records show, and she kept Grippa as her appointment.
Petersen said that message regarding who to appoint makes the questions of legality "muddier and muddier." But Eckert said that appointments are made by individual council members and are not voted on by a congenial body.
"Member Post merely informed of her intention for appointment," he said. "For there to be a Sunshine Law violation, the decision on which there is a meeting must be one that is to be made by the body. That is not the case here."
Texts in Florida government
Text messages between elected officials have sparked controversy in Florida before. In 2012, in what became known as "textgate," Orange County leaders, including then-Mayor Teresa Jacobs, violated state law by deleting text messages that were eventually determined to be public records.It prompted a lawsuit — and a year later, the county paid a $90,000 settlement to a citizens group. In the aftermath, some county officials stopped communicating via text message altogether, with one reported saying: "It's not worth the headache."
Because it can cause such a headache, Volusia County School Board attorney Ted Doran advises against it.
"I think as a general rule it's not a good practice," he said. "There is certainly nothing wrong with it as long as communication between board members is not about something they may ultimately be required to vote on. But that's hard to foresee. That's why I discourage any discussions about school-related business between them. If they want to talk about grandkids, no problem whatsoever."
The texts sent to The News-Journal also included personal conversations. For example, Kelley and Wheeler both sent well-wishes to Post during her sickness. That's legal and is not subject to public record laws, according to statute. Kelley and Wheeler said there have been no business-related texts sent from Post before Thursday's meeting.
"If Heather did not have pneumonia there would not have been a text," Kelley wrote via text message.
©2017 The News-Journal, Daytona Beach, Fla. Distributed by Tribune Content Agency, LLC.
