Did Panel Members' Facebook Chat About Reservoir Break Florida Sunshine Law?

State law forbids two or more members of an elected or appointed board from discussing matters that may come before them for action outside of a public meeting that has been announced in advance.

by Tyler Treadway, Treasure Coast Newspapers, Stuart, Fla. / May 22, 2017

(TNS) — Facebook conversations about a proposed Lake Okeechobee reservoir appears to violate Florida's sunshine laws because it involved three members of a South Florida Water Management District advisory board, according to the First Amendment Foundation.

Nyla Pipes of Port St. Lucie, Newton Earl Cook of Tequesta and Mikhael Elfenbein of Englewood — all members of the Water Resources Advisory Commission (WRAC) — talked to each other about the reservoir in posts, comments and replies on Pipes' Facebook page in April and May.

Only a court can decide whether they broke the law, "but this definitely appears to be a violation," said Barbara Petersen, head of the First Amendment Foundation, a Tallahassee nonprofit dedicated to open government. "If they're talking back and forth about an issue, that's a meeting; and by law, it has to be announced beforehand and be open to the public."

They can express their opinions on social media, she said, but "they just can't talk with each other on Facebook about commission business."

State law forbids two or more members of an elected or appointed board from discussing matters that may come before them for action outside of a public meeting that has been announced in advance. The law includes advisory panels like the advisory commission; and according to a 2009 Florida Attorney General's opinion, it includes Facebook conversations.

A knowing violation is a second-degree misdemeanor punishable by up to 60 days in jail and a fine up to $500. A noncriminal violation is punishable by a fine up to $500. Anyone convicted of breaking the law, or who pleads no contest, can be removed from office by the governor.

"Unfortunately, there’s no enforcement mechanism under the sunshine law," Petersen said. A person would have to file a lawsuit or ask the local state attorney to investigate.

On at least five occasions, the Water Resource Advisory Commission trio talked about the reservoir the Legislature and Gov. Rick Scott funded in May through Senate Bill 10. The water district, advised by WRAC, will work with the feds to design, build and manage the reservoir to help curtail Lake Okeechobee discharges to the St. Lucie and Caloosahatchee rivers.

Here's one excerpt of the conversation, which Elfenbein posted as "Mike Elf":

Cook wrote: "(T)his revised reservoir plan just passed will not help either the St. Lucie nor the Caloosahatchee during rain events, especially from February to August. ... (A)nyone claiming this project will have any major impact on the reduction of the discharges to the estuaries is either misinformed or lying."

Pipes responded: "Newton Earl Cook. ... I agree with your assessment 110 percent. This Reservoir is only one piece of the pie, and does nothing by itself."

Pipes wrote: The reservoir "might slow down funding for other projects," in the thread at 4:33 a.m. in a post two days later,

Elfenbein responded: "Nyla Pipes not only the funding for other projects, but also the timeliness of their completion."

He later added: "We all know hindsight is 20/20 but the timing of (Senate Bill 10) may result in extra discharges in future years as a result of not sticking with (the Comprehensive Everglades Restoration Project) and completing the projects based on the ids (Integrated Delivery Schedule)."

Former Attorney General Bill McCollum opined in April 2009 that "members of a city board or commission must not engage on the city’s Facebook page" or on any "privately maintained electronic bulletin board or blog ... in an exchange or discussion of matters that foreseeably will come before the board or commission for official action."

The water district, which did not return TCPalm's calls and emails seeking comment, doesn't mention Facebook in the information it gives incoming advisory commission members. It only warns against discussing issues "in person, by phone or by email" outside official meetings. Pipes said the district didn't warn her about Facebook, and called it a "gray area," despite the Attorney General and First Amendment Foundation opinions.

Pipes and Cook said they don't think the law applies to Facebook and Elfenbein, citing his busy schedule as head of the Foundation for Balanced Environmental Stewardship, declined to comment by deadline.

Pipes, director of the nonprofit grassroots clean-water advocacy group One Florida Foundation, said she's "not going to quit advocating" and Cook, head of the nonprofit hunting advocacy group United Waterfowlers-Florida, said he's "not going to stop posting on the Internet."

Pipes said her Facebook page "is an open site, so the public isn't kept from getting on it." Cook said, "I've never heard that I can't be on Facebook or the web, on an open forum. These aren't discussions in the corner of a back room, which is what Sunshine is meant to stop. But I guess no one's thought about Facebook and the sunshine law before."

Petersen said the "open site" argument doesn't hold water.

"Yes, anyone can comment on a Facebook post, but how do you know the conversation is going to take place?" she asked. "And what if you don't have Facebook or even a computer? The public has a right to be present at meetings and to be heard."

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