City manager pledges compliance with records search

Source: YourObserver.com
by: David Conway – Deputy Managing Editor

Tom Barwin’s use of a personal email account is the latest chapter in the city manager’s rocky relationship with open government laws.

On Monday, in the wake of public and media scrutiny regarding his use of a private email account to discuss some city business, City Manager Tom Barwin read from a prepared statement and pledged to comply with an ongoing search for any messages that might be subject to the state’s Sunshine Law.

“Both the city of Sarasota and I are strong believers in the importance of Florida’s public records laws,” Barwin said.

The scrutiny has come after a resident’s public records request revealed Barwin had received and sent messages regarding city issues from a personal Gmail address from 2015 to 2017. Barwin said he has forwarded most messages from that account to the city’s email servers, ensuring they were accessible in records searches, though not all emails provided were previously available.

He said the messages were largely innocuous and suggested any emails that hadn’t been turned over were an oversight. The city is in the process of responding to a broader records request seeking Barwin’s personal emails since 2012, when he was hired as city manager.

Barwin said he is complying with that request. On Wednesday, the city said Barwin has turned over his personal devices as part of an ongoing, independent and comprehensive search for messages that qualify as public records. Afterward, the investigation will check to see which of those messages had not previously been forwarded to the city’s public server.

At several points in Monday’s statement, Barwin expressed some level of frustration with the restrictions of the public records laws. He described the process of searching through six years of emails as time-consuming. He said the ubiquity of personal communication devices made it challenging to keep up with all the messages he gets.

And he expressed regret about the notion his compliance with the law was making it more difficult to engage with the public.

“I have taken my personal email address and personal phone number off of my Facebook site, which I think is an unintended byproduct of these laws — at least the way some of them are being interpreted,” Barwin said.

The attention devoted to Barwin’s emails is the latest in an ongoing series of issues involving the city manager and public records laws. Barwin has repeatedly criticized local entities that have challenged the city’s compliance with the law, accusing them of obstructing effective communication in pursuit of profit.

Although Barwin has attempted to minimize his brushes with the Sunshine Law, critics and legal professionals have said some of his behavior has clearly run afoul of open government regulations.

Email Issues

Martin Hyde, a frequent critic of Barwin, made the June records request that sparked the conversation about the city manager’s email use.

Hyde acknowledges that most of the emails are seemingly innocent — a good chunk appears to be the product of Barwin’s account getting added to community mailing lists. But Hyde dismissed Barwin’s efforts to link the emails to his Facebook page, because several messages were sent to that account from city officials.

Barwin’s Sunshine history

Tom Barwin’s use of a personal email account isn’t the first time his behavior has generated concerns about the city’s compliance with the Sunshine Law. Here are three other examples where the city manager ran into issues regarding open government regulations:

Homeless Advisory Task Force

Barwin’s first Sunshine-related troubles came five months after he began work as city manager.

In November 2012, Barwin announced the creation of a City-County Homeless Advisory Task Force, formed to discuss solutions for addressing issues related to homelessness. In February 2013, the nonprofit group Citizens for Sunshine sued the city, arguing the task force was effectively a city advisory board that was not complying with open meeting laws.

Although Barwin wanted to contest the alleged violation, the city settled, paying $15,274.30 in attorney fees and costs to Citizens for Sunshine. Later that year, City Attorney Bob Fournier took issue with the city manager’s desire to fight the case, stating the city had little legal ground to stand on.

“He wanted me to get him out of it,” Fournier said of Barwin at the time. “I couldn’t do that, because I am a lawyer, not a wizard.”

Downtown homelessness meeting

Former City Commissioner Susan Chapman was the subject of a high-profile Sunshine lawsuit brought by Citizens for Sunshine regarding an October 2013 meeting with downtown businesses about homelessness issues.

After more than three years of litigation, Chapman prevailed in the lawsuit, with a court affirming she did not violate state law. But Barwin was involved in a less-protracted legal dispute related to that same meeting: In November 2013, the city reached a settlement agreement with Citizens for Sunshine admitting the city did violate the Sunshine Law.

Fournier said there was an argument that individual commissioners did not violate the law, because they did not speak at the meeting. But Barwin did speak about an issue the city was slated to take action on in the future, which is why Fournier recommended a settlement.

“When you are at a gathering where two or more commissioners are present that has not been noticed to the public, you don’t start talking about something that the commissioners are going to be voting on,” Fournier said at the time. “That’s a problem.”

Homelessness director

In February 2016, eight months after being hired, Doug Logan left his position as the city’s special director of special initiatives on chronic homelessness, citing compliance with open records laws as the impetus.

Logan wanted to set up a nonprofit entity to run a housing program, but both he and Barwin said those efforts fell apart when he learned the board of directors would need to comply with open records laws. Logan and Barwin expressed concern about recruiting board members if those requirements were in place.

“Most reasonable people do not want to subject themselves to what could be perceived as harassment,” Barwin said.

Shortly before Logan stepped down, paralegal Michael Barfield submitted a records request that found Logan had sent emails from a private address regarding the nonprofit plans. Logan said any private email use was inadvertent.

Fournier said the government’s role in creating a nonprofit is a controlling factor in whether the Sunshine Law is applicable. But Barwin suggested any scrutiny of the housing nonprofit was counterproductive, a product of the Sunshine Law being abused by people such as Barfield.

“In probably every other state in the union, in probably just about every other city in the state, all would have welcomed this, and I don’t think anyone would have challenged or questioned it,” Barwin said at the time. “We do have some unique circumstances here.”

Even if the ongoing search doesn’t turn up anything nefarious, Hyde believes Barwin’s emails paint a useful picture of the relationships of a leading public official. That’s incentive enough to make sure the messages are accessible, Hyde said.

Hyde took issue with the idea Barwin might see the Sunshine Law as restrictive.

“It’s no different than turning up at the airport at any point of entry into this country and saying, ‘That Constitution, I’m not sure I’m terribly happy with that,’” Hyde said. “Then don’t come in.”

City Attorney Bob Fournier said the use of a private email address, in and of itself, is not a violation of the Sunshine Law. But any private emails sent or received regarding city business are subject to the state’s open records laws, which means an issue arises when those emails are not produced in response to a records request.

Fournier said Hyde’s request apparently turned up emails the city did not produce in response to a similar 2016 records request from Michael Barfield, a paralegal who has worked with the nonprofit Citizens for Sunshine. Barfield has signaled his intent to take legal action against the city for noncompliance with that request — and, potentially, for noncompliance with similar requests made between 2012 and 2014.

Barwin declined to comment directly on the topic. Through the city’s public official liability insurance, attorney Lloyd Schwed of the Palm Beach-based Schwed Kahle & Kress law firm is representing Barwin ahead of possible litigation.

Schwed reiterated Barwin’s commitment to compliance and said any oversight in providing records was unintentional. He said it was questionable whether many of the records in question, including the unsolicited community newsletters, truly qualified as public records.

“It’s not some nefarious scheme to conduct business in the darkness,” Schwed said.

Schwed also impugned Barfield’s motives, characterizing him as someone who has a history of abusing public records laws to make money. He highlighted the cost associated with producing the records — and suggested Barfield was more interested in finding an opportunity to take legal action than actually gaining access to public documents.

“You cannot imagine how much taxpayer time, money and resources are being wasted on this project at this time,” Schwed said.

Barfield accused Barwin of dodging responsibility for his actions. Barfield said he wanted to take legal action to hold Barwin personally accountable for his noncompliance. Barfield, who has been the subject of similar criticism from Barwin in the past, said the city manager has expressed open disdain for the Sunshine Law. Barfield believes any effort to criticize a citizen seeking records is designed to distract from Barwin’s behavior.

“Rather than complain about my motives, Mr. Barwin should simply comply with the law and put me out of the business of proving he has violated the law,” Barfield said in an email.

Hyde, too, said Barwin appeared to have chronic issues with the Sunshine Law — something he believed should be cause for concern among the City Commission.

“If you’re going to choose not to follow one of the most basic rules enshrined in our constitution, where are you going to stop?” Hyde said.

Schwed emphasized a search through Barwin’s emails are still ongoing and said the process may just produce more relatively innocuous material. Although Barwin’s actions have generated controversy, Schwed asked the public not to rush to judgment as the investigation continues.

“It remains to be seen if this is much ado about nothing or something that’s more serious,” Schwed said.