Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When Florida’s Palm Beach County moved to fire senior secretary Lee Ellen Dascott from its Department of Community Services last year, the 13-year government worker exercised her right to appeal to a county panel. The pre-termination conference panel upheld the firing, which was based on Dascott’s act of bringing a tape recorder into a meeting with her supervisor. But Dascott, now 43, does not know why the panel made its decision. That’s because the members deliberated behind closed doors. In a case that could overturn dozens of firings of the past four years, Dascott’s attorney, Frederick W. Ford, is scheduled to argue Dec. 3 before the 4th District Court of Appeal that the closed deliberations violated Florida’s Government-in-the-Sunshine Act. Ford argues in a brief filed with the court that the termination must be rescinded and Dascott must be reinstated with full back pay. Assistant County Attorney Paul F. King counters that the county’s charter puts personnel decisions under the authority of the appointed county manager, not the elected county commission. That means meetings of personnel committees are executive matters not covered by the Sunshine Law, he said. If Dascott’s position were upheld, King said, the county administrator would be unable to talk to anyone on his staff about personnel matters outside of an advertised public meeting. Another headache for the county is that if Dascott wins her appeal, county employees fired since 1999 in cases involving closed pre-termination conferences could sue because of the four-year statute of limitations for Sunshine Act lawsuits. About 400 county employees have been fired since 1999, and an estimated 185 pre-termination conferences have been held, county officials estimate. Ford estimates that dozens of terminations could be subject to legal challenge if Dascott wins her appeal. Palm Beach Circuit Judge Arthur Wroble in March rejected Dascott’s lawsuit seeking reinstatement and found that pre-termination hearings are not open to the public. But Ford, backed by an amicus curiae brief from the First Amendment Foundation, is pressing the case. “We weren’t privy to the discussion, to their assessment of the evidence and the law, which hampers us in any attempt to appeal in the administrative procedure,” said Ford, a West Palm Beach solo practitioner. “For all we know, they could have come up with some other reason that’s unstated in the record for why they did it.” In September 2002, Dascott was a senior secretary in the Division of Senior Services in the county’s Department of Community Services. Ford said there had been friction between her and her supervisor, Sylvia Thompson-Warren. As a result, on Sept. 18, 2002, Dascott took a tape recorder into a meeting with Thompson-Warren. Thompson-Warren refused to be recorded, left the room, and decided to fire Dascott on the grounds that she violated state wiretap statutes. Under the county’s merit system rules, a pre-termination conference was set for Oct. 4, 2002. Under the county charter, pre-termination panels are made up of a department head, the county personnel director and the director of the county office of equal opportunity, or these officials’ representatives, and other county staffers. Represented by Ford, Dascott argued at the conference that she recorded nothing of substance and that Thompson-Warren had no rightful expectation of privacy because the aborted meeting took place in an open office area. But the panel, after discussing the matter in private, upheld the firing. Dascott filed suit in November to get her job back, based on the Sunshine Act violation. Ford argues in the suit that pre-termination panels are formed to hear evidence and advise department heads. A number of Florida court rulings have held that such advisory boards, appointed by a governmental body or used by an administrator to help in decision-making, are governed by the Sunshine Law. The statute, he notes, says that meetings at which official acts are to be taken “are declared to be open to the public at all times.” The county argues, however, that its charter specifically puts personnel matters under the authority of the county administrator, not the County Commission, King said. On top of that, the charter has a noninterference clause that prohibits county commissioners from interfering with the performance of duties of any county employee under the county administrator’s supervision, King says. For those reasons, the Sunshine Law doesn’t apply, he asserts. In March, Judge Wroble issued a summary judgment in favor of the county. He held that the pre-termination panel did not fall under the Sunshine Law because its members were not advising elected officials. The elected county commissioners were not involved in the firing decision and the Sunshine Law doesn’t apply to meetings of executive employees, Wroble said. Dascott appealed. In its amicus brief, the First Amendment Foundation, a Tallahassee-based public interest group that advocates for open government, argues that the personnel meetings should be covered by the Sunshine Act. “It is beyond all reasonable dispute that grievance committees and pre-termination panels in Palm Beach County are Sunshine bodies,” said the brief filed for the foundation by Johathan D. Kaney Jr., Konathan D. Kaney III and Ty Harris, of Cobb & Cole in Daytona Beach. The decision would be unlikely to impact Miami-Dade and Broward, as those county governments’ procedures are different from Palm Beach’s. Miami-Dade’s pre-termination discussions are held before a hearing examiner, rather than a panel; the examiner’s report is open to public review. In Broward, the termination decision is made at the department level, rather than having staffers involved make a recommendation to the county manager, and therefore is not open to the public, said Assistant Human Resources Director Kevin Kelleher. Jamie Cole, Broward managing partner for Weiss Serota Helfman Pastoriza Guedes Cole & Boniske, whose firm represents a number of local governments but is not involved in this case, doubts that the 4th DCA would find in favor of Dascott. A panel that advises a county administrator but not an elected body generally isn’t subject to the Sunshine Law, Cole said. Depending on how the court rules, the case could have an impact on counties and municipalities around the state, he said, because they routinely hold staff meetings of many kinds out of the Sunshine. But he doubts the court would find that government staff meetings must be open to the public. “It’s taking a leap to say every time employees get together and make a recommendation to a manager, then that’s going to be subject to the Sunshine Law,” Cole said. “It would be a major hindrance to the efficient operation of local governments, if the courts were to go that far.” “Baloney,” Dascott attorney Ford countered. “The point is, the County Commission established this panel by ordinance. … This is a civil service system created by the county commissioners that creates a collegial body, a body of more than one person, to consider terminations. That’s different from one administrator meeting with just a couple of members of his staff to decide what to do on something.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.