Commissioner Corner Talking Turkey About Sunshine Laws

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By: Commissioner Jim Chard Special to the Delray Newspaper

Florida’s Sunshine Laws are an example of good government initiatives whose unintended consequences have had far reaching and unfortunate repercussions.  Perhaps the cure of “transparency” is more detrimental to our municipalities than the disease they were designed to cure.

For those not familiar, Sunshine laws were passed in 1995 to curb collusion and fraud in local government.  The general theory was that if local officials couldn’t talk to each other except in the harsh, medicinal light of “sunshine” then they couldn’t rip off the local treasury, subvert hiring processes, or select unqualified contractors.

The difficulty generated by Sunshine Laws is that city officials can only talk to each other under very limited circumstances, for brief periods of time, and at spaced out intervals. Imagine yourself as a business person, a partner in a law firm, or a college administrator where you couldn’t talk to your associates about important issues, couldn’t test out alternative ideas, couldn’t compare due diligence findings, couldn’t meet over a cup of coffee, and had to wait for a publicly scheduled meeting sometime in the future to discuss complicated issues.  I think you would find it awkward, time wasting, and inefficient. It’s worth noting that the state legislators who passed the Sunshine legislation did not subject themselves to the same oversight and limitations.

With Sunshine constraints it is hard to drill down into the substance of an issue or thrash out the nuances of complex problems. Delray’s Commissioners recently tackled two nearly insoluble Gordian knots of municipal governance, parking and hunger. These two issues have enormous consequences in our City. And yet none of the Commissioners were aware of how their colleagues felt about the pros and cons, or the facts which each of us had uncovered through personal research. This means that each of the five Commissioners had to speak with community leaders separately (five meetings rather than one), had to talk to the City Manager and City Attorney separately (five meetings rather than one), and had to quiz staff professionals individually (five meetings rather than one). They couldn’t compare findings or weigh alternatives…unless a specially noticed meeting was scheduled.

In theory Commissioners have hours that we can thrash out these matters on the dias, but that is not realistic. A goodly percentage of the Commission’s time is invested in carefully listening to competing opinions of citizens articulating their concerns. Even monthly workshops become awkward and stilted, rather than forums for free flowing conversations designed to explore the nooks and crannies of an issue. And if critical matters are not resolved then issues are “kicked down the road” for another session perhaps weeks or even months in the future. Other issues, other priorities intervene, preventing the continuing focus necessary to resolve differences.

Also in theory, the Mayor should be able to “lead” his colleagues to a considered decision but since the Mayor cannot discuss matters of consequence except in the sunlight, he or she is unable to build a consensus with phone calls, one-on-one meetings, or emails. The Mayor can’t use a 3rd party (a conduit) to convey messages and alternatives. And the City Manager’s hands are likewise tied, because he or she must make like a bee flying among flowers, traveling from one Commissioner to another trying to build consensus or find a “middle way.”

I believe one of the unfortunate consequences of Sunshine laws is the impact on the staff recruiting and evaluation process. Again put yourself in the position of a City official. If you want to find the very best people to serve or if you want to mentor and grow employees, the City official needs to be diligent, even aggressive, and candid. It is hard to earnestly mentor an employee or probe a prospective employee’s experience when the information is then shared with the public. In many ways we are handcuffed in pursuing good management practices.

Now if you wonder why very little gets done at City Hall (I exaggerate to make my point), Sunshine Laws are a big part of the problem.

However, opinion polls indicate that the electorate strongly favors Sunshine laws. Just the name alone connotes governmental healthiness and openness. What’s not to like? This year a bill was presented at the State Legislature to make a modest change to the Sunshine Laws of Florida. The bill was never even heard in committee. The proposed changes were limited (allowing one-on-one conversations) but the public perception of Sunshine laws is so powerful that legislators were reluctant to tackle the prospective changes.

The legislation will be introduced again next year. I believe in the concept and purpose of Sunshine laws, however limited modifications can significantly contribute to an increase in efficiency of local government. If you would like to see your City government become more effective, if you would like to see more things get done, you might consider encouraging our legislators to seriously consider Sunshine Law reform.