Examining Florida's Sunshine Law in wake of Gerald Bailey controversy

Gov. Rick Scott is mere weeks into his second term, but he’s already embroiled in a controversy over the ouster of the head of the Florida Department of Law Enforcement.

Gerald Bailey said he was told to resign after he refused to do work to benefit the governor’s political campaign and had complained of meddling in law enforcement issues by Scott’s office. The members of the Florida Cabinet -- the attorney general, the chief financial officer and the agricultural commissioner -- originally okayed replacing Bailey with little discussion, thinking the longtime FDLE chief had resigned on his own. They backed off supporting Scott’s move after learning the governor forced out the commissioner.

Attorney General Pam Bondi was adamant that the Cabinet didn’t know that Bailey was apparently told to leave. Bondi maintained on Jan. 28, 2015, that she hadn’t discussed it because that’s against the law.

"We all knew that there were going to be changes made in the upcoming months. Did I know that Jerry Bailey was going to be told he was fired and have his things packed up, his entire life as a career law enforcement officer, in a cardboard box, and be told to be out of the office before the end of the day? Absolutely not. Nor do I believe the governor knew it," Bondi told reporters.

"I think the staff knew it, someone knew it," she said, suggesting Scott’s aides. "But we can't talk about it with each other because of Sunshine Laws."

While it’s true Cabinet members aren’t allowed to discuss official business outside public meetings, there are plenty of unanswered questions surrounding this case, so we’re not putting Bondi on the Truth-O-Meter. Did the governor or Cabinet do anything wrong while appointing a new FDLE commissioner? How are their staffs allowed to communicate? In order to understand what the problem is, we’ll need to shed some light on the state’s Sunshine Laws.

Bailey’s background

Gerald Bailey was FDLE commissioner for almost a decade before leaving the office on Dec. 16, 2014. Scott named Rick Swearingen, director of the Capitol Police, his interim replacement the same day. Swearingen said he was summoned to Scott’s office and told he was Scott’s hand-picked candidate.

Scott and the three members of the elected Cabinet -- Attorney General Pam Bondi, Chief Financial Officer Jeff Atwater and Agriculture Commissioner Adam Putnam, all Republicans -- met on Jan. 13, 2015, and confirmed Swearingen as Bailey’s permanent replacement. After the meeting, Scott said Bailey left his post voluntarily: "He resigned. I’ll say it again. Commissioner Bailey did a great job."

Bailey took exception to that remark.

"I did not voluntarily do anything," Bailey said. "If he said I resigned voluntarily, that is a lie. If he said that, he's being totally untruthful." Scott later acknowledged Bailey was asked to resign.

Coverage in the Tampa Bay Times and Miami Herald showed that tension had been building between Scott’s office and the FDLE in the runup to the personnel change. Bailey alleged that the governor’s office had improperly asked FDLE to work with Scott’s campaign, intervene in a federal investigation of a possible Scott appointee, and perform favors for the governor, among other tasks.

Bailey said Scott’s chief counsel, Pete Antonacci, came to Bailey’s office on Dec. 16 and gave him an ultimatum to "retire or resign." Bailey also said the chief counsel told him the governor had the Cabinet’s support. Bailey resigned that day.

That is a key element as to whether the state’s Sunshine Laws -- designed to give the public access to government information -- had been violated.

In the Sunshine

The governor and Cabinet -- not the governor alone -- formally head several state agencies, and pick executive directors, including the head of the FDLE.

State sunshine laws, specifically Article I, Section 24 of the Florida Constitution and state statute 286.011, says the Cabinet and governor must conduct official business in the public eye. That means any time decisions are made, the quartet must perform official actions on the public record. Several reporters typically cover the Cabinet meetings.

When it comes to Bailey’s departure, there’s no provision outlining how the FDLE commissioner will be removed, only that he "shall serve at the pleasure of the Governor and Cabinet." (We also need to mention that this is not the case for all officials. Removing the director of the Office of Insurance Regulation, for example, does have a clear process defined.)

As for a replacement, the governor nominates a person and the Cabinet is supposed to discuss it and votes on it at a public meeting. State statute 20.201 says the head of the FDLE "shall be appointed by the Governor with the approval of three members of the Cabinet and subject to confirmation by the Senate." The Cabinet confirmed Scott’s pick of Swearingen as Bailey’s replacement at the Jan. 13 meeting.

Bondi suggested the staff knew about Bailey’s ouster outside of the public meetings, without Scott’s knowledge. If that’s the case, courts have ruled that too could violate the Sunshine Law. It’s not appropriate or permissible to use staff to get around the requirements to conduct public business in public, courts have said.

Putnam said that Scott Cabinet affairs aides Monica Russell and Kristen Olsen told his Cabinet aide Brooke McKnight that Scott wanted to make staff changes in his second term, including at FDLE. But beyond that, there were no more details.

"We were given a heads-up on a staff level that there was an interest in making changes going into the second term, including at FDLE. Period," Putnam told the Times/Herald. "That's all that was conveyed to me."

Violation or not?

Barbara Petersen of the First Amendment Foundation told PolitiFact Florida that staffers can share facts and some information, but they are not allowed to act as conduits between Cabinet members to carry out official business. They can’t, for example, determine whether a Cabinet member would support a nominee and they can’t make decisions in place of Cabinet officials outside of public meetings.

Staff also cannot make decisions or recommendations in lieu of Cabinet officials outside public meetings.

"It’s all kind of squishy, because it’s a fact-based decision, and we don’t have all the facts," she said. (Bondi has mentioned Petersen as someone who might independently review the matter.)

Scott’s office issued an "FDLE FAQ" that claims no laws have been violated and that "it has been a longstanding convention for Governor’s staff to provide information to Cabinet staff." But it doesn’t provide any evidence to back up the claim.

The governor’s press office later amended the FAQ to say Scott didn’t tell anyone on his staff to remove Bailey immediately and that he "was asked to work out his transition with his successor." It also added that no one on Scott’s staff fired Bailey without the governor’s knowledge.

So far in this controversy, one state attorney (William Meggs of Leon County) has declined to look into whether the Sunshine Laws were violated.

Atwater and Putnam, meanwhile, have called for an investigation into whether Bailey’s assertions that the governor’s staff had asked the FDLE to perform favors were true.

"There should be some follow-up to those allegations and whether they were incidents of illegal activity versus sloppy campaign-official type of interactions that occurred," Putnam said. A Land O’ Lakes resident has asked the FBI to investigate those charges.

One thing that has been highlighted is way the Cabinet tends to operate, Petersen added.

"What strikes me is that first, there was no discussion of Bailey’s resignation," she said. "Then everyone agreed to Swearingen’s succession without question. ... You’d think they’d talk about these things."