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Let the Sunshine In

Feb 14, 2008

By Dan

Today I travelled to Sarasota to appear before the Governor's Commission on Open Government. They invited me to testify because I have taken issue with the increasingly secretive way in which the Florida Legislature has conducted itself. Most people don't realize that the Florida Legislature, essentially, exempted itself from most of the exacting constraints of the Sunshine Law. So while you will never hear about secret negotiations or backroom deals among local elected officials (because it is a crime for them), such is the norm in the Florida Legislature. Today I also sent a letter to Speaker Rubio raising some of my concerns and suggesting 5 things the Legislature could do to open up the process. If we don't govern ourselves more thoughtfully, we ought to be treated exactly the same as local officials.

What follows is my letter to the Speaker.
Dear Speaker Rubio:

As you know, the legislature has a lesser Constitutional standard for public records availability and open government requirements than state agencies and local government. Perhaps it is time to rethink that distinction.

In the early 1990's, the Florida Supreme Court ruled that the statutory Sunshine Law did not apply to the legislature. With press support, then Attorney General Bob Butterworth promised to lead a petition drive to include the legislature. In response, legislative leaders negotiated a modified version of the sunshine law for the legislature that was included in a House Joint Resolution that passed in 1992 and is now contained in Section 24 of Article I. The negotiations resulted in lesser standards for the legislature based on the nature of a 60 day session and the practicalities of noticing all communications between legislators. It was agreed back then that applying the same notice requirements would be impractical. Interpretation of the meeting and records law was given directly to each Chamber rather than the courts, partially out of fear that the law could be used to unfairly smear elected officials. The legislature was required to enact its own public records exemptions (which it has done in Chapter 11).

When Floridians and the Legislature adopted the modern Sunshine Law and Open Records laws there may have been good reason to exempt us from the requirements that all other public officials must abide by. I'm not convinced that given recent overreaching by the legislature, those good reasons would still justify such an exemption today. Merely because the same open government requirements don't apply to us doesn't mean we shouldn't endeavor to comply with the spirit, if not the letter, of these well—intended principles of openness. Unfortunately, I believe that the legislature has gone in exactly the opposite direction. More and more we are hearing about secretive negotiations where the resolution of a major issue has been reached outside the purview of the media and the public. Many aspects of our budgetary process, including critical parts of the allocation and conference process occur without public scrutiny.

This kind of conduct — from the take—it—or—leave—it legislation to the secretive negotiations — have left both legislators and the public with diminished input into the laws that bind all Floridians. Recent examples of this include the final version of the reinstatement of no—fault insurance, and the final, take—it—or—leave—it Senate version of Amendment One which revised Florida's property tax structure.

We need to assure the public that their elected officials value their ideas and opinions on the proposed laws that will directly affect them.

Here are just a few things we can do to restore the public's trust in the openness of our legislative process:

1. Meetings. The Senate rule to implement the Constitution's legislative open government provisions provides for more openness than the House rule. For example, with limited exceptions, it provides that, "All meetings at which legislative business is discussed between more than two (2) members of the legislature shall be open to the public . . . ." and "For purposes of this Rule "legislative business" is defined as issues pending before, or upon which foreseeable action is reasonably expected to be taken by, the Senate, a Senate committee, or Senate subcommittee." Senate Rule 1.43.

The House rule, however, applies only to discussions where bills that have actually been filed are discussed. The House rule should be changed to mirror the Senate rule.

2. Amendments. Timely access to amendments is also a problem, whether in council or committee or on the floor. Strike—all amendments that significantly change an important original bill often magically appear at a committee meeting or on the floor leaving the public unaware of the changes that are being made. I propose requiring that floor amendments be filed by 5:00 p.m. the business day prior to the amendment being taken up, requiring amendments in committees - other than handwritten amendments - to be filed at least 2 hours before the committee meeting, and requiring a 3/4 vote to waive the floor amendment deadline (as always, subject to a board vote if 5 members raise hands).

3. Conference Committees. When conference committees are appointed, it is generally on a very important bill. As a result, when two or more conferees of a conference committee, including budget conferees, meet and discuss committee business (even casually), those meetings should be both open and noticed.

4. Allocation Decisions. Prior to final budget decisions being made in committees and councils, there should be public discussion of the allocations for each area of the budget. Currently, that process is done without any input.

5. Public Testimony. We need to value public input and be fairer in the way we handle public testimony. Notice for meetings needs to give guidelines to the public letting them know whether testimony is likely to be permitted. And if so, general rules should be included, such as, the chair will alternate between opponents and proponents with equal time given to each speaker as time allows.

I appreciate that you share my view that a transparent process is always better than legislation born out of secrecy. I remember your heartfelt comments about how you hoped the House would operate like the Select Committee on Eminent Domain you chaired. You emphasized that bills should be perfected in committee and not on the floor and this belief led to the restructuring of the House to accommodate this goal. I agreed with your thoughts then, but I do not believe the House lived up to your expectations.

Candidly, none of these recommendations would be necessary if we all simply governed ourselves better. But I believe this last session reflected a lack of respect for the principles of openness that we both cherish. It is my judgment that if we continue to overreach and exploit the exemption we afforded ourselves, then the public ought to rein us in by applying the full sweep of Florida's Sunshine Law to the legislative process. I hope we don't have to reach that point, but suspect it will happen if we don't govern ourselves a bit more thoughtfully.

Thank you for consideration of this issue and these measures.

Dan Gelber
Minority Leader

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