The public's business shouldn't be a secret

Attorneys representing city councils and county commissions seem to have forgotten that they are being paid with taxpayer money and that any litigation embarked upon or settlement agreed to is also on the taxpayers' dime. In effect, we are the ones being represented, and we should be kept abreast of legal actions that impact our interests and pocketbooks.

But many public sector attorneys see things differently. They see all this openness as sabotaging their clever lawyering. In an interim report released last month by a lawyers' committee, a series of recommended legislative changes were made that would give government lawyers the ability to close off more meetings and keep more information from the public.

Current law acknowledges that government lawyers should be allowed to hold private attorney-client sessions with a public board or commission to discuss pending litigation matters. However, there are strict limits on that secrecy. The law says that only public officials and their chief administrative officer may be present during the closed sessions, and they can only talk about settlements or strategy related to litigation expenditures. To protect the public from the exemption's abuse, the closed sessions are transcribed by a certified court reporter, with the transcript to be released at the conclusion of the litigation.

Gainesville City Attorney Marion Radson, chair of the Public Sector Subcommittee of the Task Force on Attorney-Client Privilege, says that due to these constraints government attorneys rarely hold litigation sessions anymore. He gives the example of a settlement in a death case, where an attorney tells a commission about the weakness in the government's case as well as settlement options. After that case is final, other members of the private bar will be privy to the thinking and strategies of the government lawyer and use it to their advantage in future cases. As a result, Radson says, public sector lawyers "are having a difficult time getting direction" because they are afraid to hold meetings with their government clients.

The revisions the subcommittee has recommended would do a number of things that would markedly alter Florida's tradition of government in the sunshine. Of most concern is the push to end the practice of transcribing closed sessions and later releasing the transcripts. According to Barbara Petersen, president of the First Amendment Foundation, these closed-door litigation sessions are already the "worst-abused exemption" of the state's Sunshine Law. The possibility of having an unlawfully expansive discussion is too great when the public is permanently barred from knowing what went on.

Without such transcripts of private litigation meetings, for example, the public would not have learned the details behind Pinellas County's $600,000 settlement of a lawsuit with a private contractor several years ago. More recently, what if Pinellas Property Appraiser Jim Smith had followed through on a threat to file a lawsuit against the county over claims his private property was damaged? With these proposed changes, the details that became public about the county's decision to purchase Smith's property could have been kept secret in a lawsuit.

Other recommendations include keeping litigants from obtaining information through public records requests, allowing "necessary persons" into the closed attorney-client meetings, and expanding the boundaries of the permitted discussion to include all matters relevant to pending or anticipated lawsuits.

These suggestions are on the agenda for Wednesday before the governor's Commission on Open Government, whose members will have to report in December to the governor and legislative leaders on any recommended changes to our public records and open meetings laws. That means they are likely to be a long way from becoming legislation. Even so, better to expose recommendations now that would move government away from openness and public access.

Government lawyers are doing the people's business. Despite the legal profession's penchant for secrecy, the people have a right to know how things are being litigated in their name.

[Last modified February 7, 2008, 22:08:54]