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Cell calls leaving public in dark?

Phone chats between two Pinellas County School Board members raise concerns about the Sunshine Law.

By THOMAS C. TOBIN
Published September 26, 2005

Pinellas School Board members Mary Russell and Janet Clark have spoken to each other dozens of times in recent months on district cell phones, raising questions about whether their private conversations involve public business.

Florida's Sunshine Law forbids members of a public board from privately speaking to each other about matters "on which foreseeable future action may be taken."

The two placed more than 70 calls to each other between August 2004 and June 2005, according to district records. Many were one-minute calls that indicate a hang-up or a voicemail message. But more than 40 calls were long enough for conversations, and they ranged from 2 minutes to nearly 50 minutes. Russell made the vast majority of the calls. Several were on the same days as board meetings.

The calls are not improper on their face because the law allows board members to speak in private about matters other than future board business, said Pat Gleason, general counsel for the Florida Attorney General's Office and an expert on the Sunshine Law.

"If they say they're talking about the weather, then it's not an issue," Gleason said.

But the large number of calls does raise questions, she said.

The Times reviewed the phone records after a reporter encountered Clark in a hallway at school district headquarters following an Aug. 24 board workshop. While on her cell phone, Clark volunteered that she was talking to Russell, who had left the building. With Russell still on the line, Clark revealed the two were discussing an action the board had just taken to appoint three of its members to help a citizen task force examining the school choice plan.

The task force and its findings are expected to be a major part of the board's work over the next two years. Clark was upset because she had asked to be appointed and was passed over by Chairwoman Nancy Bostock. She also expressed concern about recent actions in which the five other board members made decisions without consensus from Russell and her.

"I'm upset and I'm going to be more vocal about it," she told Russell over the phone.

When it was suggested that their conversation might violate the Sunshine Law, Clark said it wasn't a problem because the two were discussing "process."

"There is no such exception" in the law, said St. Petersburg lawyer Alison Steele, a Sunshine Law expert who represents the Times.

The process is "the whole point of the law," she said. "It's not just the (board) decision that matters. It's everything that goes into the decision ... You do not discuss public business privately."

Violations of the law can result in fines or, for more serious offenses, jail time. In some cases, a violation could nullify a board vote.

Russell and Clark were cautioned in February on another Sunshine Law issue. School district attorneys warned them that their actions might be perceived as unlawful after the two got together twice for fact-finding purposes without the rest of the board present.

At the time, Russell, a former teacher, said the attorneys were overzealously interpreting the law.

She and Clark said in interviews last week that they are friends and that their private conversations are about personal issues.

Russell and Clark both campaigned for the board after becoming active in Teachers United for the Future, known as TUFF-Teach. The group has a Web site with discussion forums that often are critical of school district bureaucracy.

Among the entries in Russell's phone bill: a call to Clark on Aug. 31, the night Clark was elected.

The two said they talk about a range of common interests, including their children, spouses, books, diets and Democratic politics. But on many occasions - frequently after public meetings - Clark said they also discuss the often toxic give-and-take that has distracted the seven-member board for more than two years, slowing its work and scarring its reputation.

"Anytime we talk about the School Board it is basically interpersonal relationship kind of stuff," Clark said. "(Russell) has tried very hard to figure out what she is doing that is contributing to that, and that's one thing we have a lot of conversation about."

Clark called it "gossipy kind of stuff."

She said Russell has expressed dismay at being targeted by people in the district with hidden motives. "It helps to have somebody to talk to about that," Clark said. "One or two times I can think of I started to say something and I said, "I can't talk about that."'

She said the two also have talked about past votes.

Both board members said they are keenly aware of the Sunshine Law during their conversations. "We know what's off-limits and we don't talk about it," Russell said.

"I believe them," said Tom Wittmer, the board's interim attorney. "I trust them to follow the law and not violate it with their cell phones."

Similar but far less frequent discussions occur between Russell and board member Carol Cook, phone records and interviews show.

Russell calls Cook to "just kind of bounce things off of me," Cook said. "They're far less about substance than they are venting or talking or her trying to figure out what's going on in her head."

Cook said Russell called her Tuesday night after a board workshop in which Russell questioned superintendent Clayton Wilcox during a discussion about his contract. Russell privately asked Cook if she had been too hard on Wilcox, then strayed into a discussion about his contract, Cook said.

Cook said she cut Russell off and told her they were skirting the Sunshine Law. "Once it was brought to her attention she stopped," Cook said.

Cook expressed discomfort about the calls she gets from Russell. About 20 such calls turn up in district records dating back to August 2004.

Cook also said the number of calls between Russell and Clark gave her pause, especially those occurring on school board meeting days.

"That's a lot of phone calls," Cook said. "I would like to think that it's just friendship, but it's awfully hard to defend."

Board member Jane Gallucci said Russell once called her about a long-simmering feud between Russell and Deborah Beaty, the administrative assistant to the board. The dispute has mushroomed into a board issue because a board majority has expressed support for Beaty and concern the problem could lead to legal action against the district. Russell has said Beaty caused the feud.

As board chairwoman when the feud started last year, Gallucci tried to mediate. But she recalled that her discussion with Russell began to skirt the Sunshine Law. "I kept saying, "We have to talk about this in the open,"' Gallucci said.

"I don't think it's something that should be happening," board member Mary Brown said of the calls between Russell and Clark. "Even if you're friends, you know the cell phone is for board business."

Board member Linda Lerner said the calls between Clark and Russell did not trouble her because the board is not voting on issues involving its own personal dynamics. But Gleason, the Sunshine Law expert, said the board does not have to vote on an issue for it to be covered under the law.

Are private discussions about the board's personal squabbles a public matter? Gleason and Steele said the courts have not dealt with the issue, though Steele said it was clear to her the discussions should be public.

Board members already have made their personal struggles a topic of serious public discussion, holding all-day workshops and retreats to learn how to get along better. They are paying $5,600 for training through the Florida School Boards Association to learn how to work together more effectively.

They also paid a consultant last year to help them sort out their problems and set goals. The two-day session in a local hotel was included in the $50,000 fee they paid the consultant for helping them hire Wilcox.

Bostock, the chairwoman, said discussions about the board's interpersonal problems should be limited to short conversations after a meeting, perhaps a remark around the table or a few words in the hallway. "But I can't see it going beyond the front door," she said.

The board now needs to discuss the calls, Bostock said.

"If we need this degree of self-examination," she said, "then it needs to be done in public."

[Last modified September 26, 2005, 01:17:04]