Officials tiptoe near secrecy

Commissioners seek a way to nominate people for Tampa General's board, while avoiding the Sunshine law.

By DAVID KARP

© St. Petersburg Times, published May 1, 2000

TAMPA -- As cameras recorded their words, the Hillsborough County Commission last week discussed an unusual arrangement for nominating people to serve on Tampa General Hospital's private board.

Usually, commissioners ask candidates for boards to fill out applications. Usually, they discuss candidates in open session and vote on them.

But last week, the commission designed a nominating plan that was intended to be as unofficial as possible.

And the reason was hardly a secret: The commission wanted to make sure that its role in nominating people for Tampa General's board did not force the hospital to follow Florida's Government-in-the-Sunshine laws.

At one point, County Attorney Emmy Acton told the commission it did not need to put its plan in writing, if it wished. Each commissioner would select two nominees for Tampa General's board and forward those names to Tampa General on his own.

The process, Acton said, could be "more informal."

"I was appalled at the whole discussion," said Commissioner Jan Platt, who voted against the plan, along with Commissioner Ben Wacksman. "It was a blatant discussion about how to avoid the Sunshine."

Barbara Petersen, executive director of the First Amendment Foundation, said the commission may have violated the Sunshine law itself with its plan. The commission can't create a scheme to send Tampa General nominations without doing its work in a public meeting, she said.

"Anything done to frustrate application of the Sunshine law is itself a violation of the law," Petersen said.

She blasted Acton for telling the commission how it could keep its work out of the public eye.

"I find the arrogance stunning," said Petersen, who is a lawyer. "They are subject to the Sunshine. And it is her duty to make sure they comply with the law -- not thwart it."

Acton said she was simply telling the commission its options. She warned the commission that its plan might not work.

"After you say it 20 times, you let them do what they are going to do," Acton said. "I can't throw myself over the buttons."

She also said the commission's plan for nominating candidates for the Tampa General board did not violate the Sunshine law. The nominations did not amount to an official government action since Tampa General could ignore them, Acton said.

"Where's the Sunshine issue?" Commissioner Chris Hart said Wednesday. "We're not appointing anyone to the board. We're suggesting names that they can consider. . . . I get asked all the time to recommend people for different boards in this community."

The commission's discussion last week was part of a larger proposal to give financially strapped Tampa General about $3.5-million in county funds. In return for the public money, the commission wants Tampa General's board to sign a contract giving the commission more oversight of the formerly public hospital.

The oversight would require Tampa General to give the commission regular financial reports and force it to add two new people to its 14-member board. The new members would have to come from a written list of nominees selected by commissioners.

Hospital leaders have not responded to the plan. But they undoubtably know any plan will be tested in court.

A Hillsborough circuit judge has already ruled that Tampa General must follow Florida's public records and Sunshine laws after the St. Petersburg Times and Tampa Tribune sued over the issue. The hospital is appealing the decision.

The lawsuit has become important as local governments delegate more power to private non-profits like Tampa General. Courts have ruled that governments can't evade Florida's Sunshine law by transferring public responsibilities to private groups.

But the test for subjecting private groups to the Sunshine requirements isn't simple. Generally, judges have ruled that private organizations must follow the Sunshine law when government plays a substantial role in the private group's governance.

That's why commissioners wanted to help select Tampa General board members without appearing to do so.

"It's sort of a wink and nod," said Thomas McGowan, an attorney for the Times. "What they are trying to do is get some room for deniability."

In earlier meetings, commissioners asked Acton: Would Tampa General stay out of the Sunshine requirements by appointing one commissioner and one Tampa City Council member to the board?

No, Acton said.

What about appointing two citizens?

No, Acton said.

What about "suggesting" people for the board?

That depends on how the "suggestions" are made, Acton explained. It would help if Tampa General did not formally agree to choose one of the commission's nominees, she said.

A week ago, hospital and county officials met to discuss the deal. Hospital attorney Jim Kennedy said Tampa General could only commit to giving the commission's candidates "serious and due consideration."

"But that is less than a guarantee," he said.

County officials didn't take Kennedy's words literally. Vincent Ferlita, a budget analyst at the meeting, said he got the impression the hospital would pick from the commission's nominees. Deputy County Administrator Pat Bean said she got the same impression.

At first, Acton told commissioners that she, too, understood it that way. "That's the understanding verbally that we had," Acton said Wednesday.

Later, after a reporter asked Acton about the Sunshine issues, Acton said she may have misunderstood the hospital's position. Maybe they didn't make any promises, she said.

Acton also said she did not recall advising the commission to avoid putting the plan in writing. A transcript of the meeting clearly shows that Acton did offer that advice.

"If I said that, it was a mistake," Acton said. "It was a long meeting. . . . I am not known for giving evasive advice. If I have given incorrect advice, I will correct it."

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