The pandemic has created an unforeseen issue for governments in Florida: Now that virtual participation in official meetings has become the norm, hundreds of residents can submit public comments on policy issues that affect them — but how can officials listen to hours and hours of comments in one meeting? The conundrum has led to legal issues and First Amendment challenges for several local governments in the Miami area.
Earlier this month, City of Miami commissioners received almost nine hours of voicemails from more than 300 members of the public opposed to a change to the city's noise ordinance. But city commissioners heard none of the recordings, and the ordinance ended up passing unanimously after some amendments. The messages from constituents were ignored based on a recommendation from City Attorney Victoria Méndez, who claimed the callers all followed the same script.
The City of Miami isn't the only government that's come under scrutiny for ignoring residents' comments in recent months.
In September, when the Miami-Dade County School Board was deciding whether to reopen schools amid the pandemic, 800 people submitted 18 hours of comments on the issue, according to WLRN.
School board members chose to play the recordings overnight. Some board members said they stayed up all night listening, but others admitted that they fell asleep and didn't hear every comment. That invited criticism from citizens and First Amendment advocates.
Also in September, Miami-Dade County commissioners ate food, talked on the phone, and walked away from their computers as comments from constituents were played during a meeting about the county's police budget. Many commenters called for funds to be redirected from the police department to social services.
Then-Mayor Carlos A. Giménez said at the time that the callers were "misinformed" and were told by an organization to "say the same thing," implying those comments also were scripted.
For advocates of open government, the new normal of virtual meetings has created a catch-22: More people can be heard by their governments, but those governments aren't listening.
"This should be the best thing to ever happen because there are people who normally can't take time off work to go to city hall who can benefit from remote meetings — and that's also part of why government agencies find them troublesome," says Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida.
LoMonte tells New Times that the digital transition inspired by COVID-19 has allowed far more people to become civically engaged and to speak to their elected officials, and that governments may need to adapt. Rather than 20 people coming to speak in person on a particular item, 200 people can now leave a voicemail, LoMonte says, meaning officials will have to exercise more patience.
"It may be that they'll have to build more time into their schedule to actually consider public input. One-day meetings might not work anymore," LoMonte says.
Florida statutes give members of the public the right to "a reasonable opportunity to be heard on a proposition before a board or commission." According to LoMonte, a reasonable opportunity to be heard does not necessarily mean officials have to be listening closely, but they have to be present and the comments have to be audible.
In the case of the City of Miami throwing out comments earlier this month, LoMonte says if the comments were in fact all the same, the city might have some defense. Otherwise, it could pose a legal issue for the city.
"They owed it to commenters to at least determine if there was repetition or not," he says.
At the meeting, Méndez claimed that all eight hours and fifty minutes of public comment were "substantially similar." She said the commenters were reading a pre-written script provided by the nightclub Ball & Chain, which opposed the noise ordinance. As originally written, the ordinance would have banned venues that share a property line with residences from playing music outdoors past 8 p.m.
Méndez told commissioners that her office had consulted with the Florida Attorney General's office, which she said advised that the commission would only need to read aloud the content of the script during its meeting. The Attorney General's Office, however, told New Times that it never issued a formal legal opinion to Méndez or her team.
Text messages provided to New Times in a public records request show that Assistant City Attorney Xavier Albán told Méndez that he spoke with Pat Gleason, special counsel for open government with the Attorney General's Office, about condensing the audio submitted for public comment. Albán told Méndez that Gleason said it was reasonable to just read the script.
In a phone interview last week, Gleason told New Times that she only gave her personal opinion and that it did not reflect an official opinion from the attorney general.
After the commission meeting, Miami Herald reporter Joey Flechas requested the nearly nine hours of recordings and posted the full file on YouTube. While a number of callers gave identical comments from the Ball & Chain script, many gave their unscripted opinions against the ordinance.
One commenter, Sal Rosenbeck of Little Havana, said he frequents Ball & Chain and saw the proposed ordinance as an affront to his freedoms.
"I am sick and tired, and I want you people to lay off of our personal freedoms. Goddamn it!" Rosenbeck said.
The decision to throw out the comments has led to legal challenges for Méndez and the city commissioners.
Alain Garcia, president of GMA Valet Parking, a valet service that operates outside of Ball & Chain, says it's unfair that Miami commissioners and the city attorney discarded his comments, which he says were not from the script.
"I told them my name and address and said that this ordinance would cause big economic problems for Calle Ocho and for Miami. I don't even know if I mentioned Ball & Chain," Garcia tells New Times in Spanish. He says the ordinance could cause him to lose business and have to lay off employees.
According to the bill of rights, the city cannot "interfere with the rights: (i) of freedom of speech; (ii) of freedom of the press; (iii) to petition the government, or (iv) to peaceable assembly." Members of the public can sue the city for violating those rights, and a judge could potentially call for the involved public officials to forfeit their offices.
Last week, Winker sued the city commission in Miami-Dade circuit court on behalf of four plaintiffs whose public comments were ignored during the meeting about the noise ordinance. The lawsuit alleges violations of the First Amendment and Florida's open-government statute, the Sunshine Act. Winker has asked the judge to throw out the ordinance because citizens were not given a reasonable opportunity to speak on it.
Bill Fuller, co-owner of Ball & Chain, tells New Times that he knows several people who are furious at commissioners for throwing out their comments.
"They definitely did an injustice to us. They rammed down this legislation without proper procedures," Fuller says.
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