Metz defense challenges Sunshine Law

John Metz
Former planning and zoning board member John Metz has presented a defense that questions the constitutionality of the Sunshine Law. - Joe Hendricks | Sun

BRADENTON BEACH – Lawsuit defendant John Metz and his attorney, Thomas Shults, claim the Florida Sunshine Law is unconstitutional.

“Mr. Metz feels the entire Sunshine Law is unconstitutional. He wants to say the Florida Legislature has gotten it wrong,” City Attorney Ricinda Perry told city commissioners on Nov. 2.

Enacted in 1995, Florida Statutes Section 286.011 is a series of laws enacted to ensure government meetings are conducted in a public setting and that the public has access to public records.

The claims of unconstitutionality are contained in the answer and affirmative defense of John Metz that Shults filed with the 12th Judicial Circuit Court in Bradenton on Oct. 30.

“F.S. 286.011 impermissibly infringes upon speech, assembly, association and petition rights under the First Amendment of the United States Constitution,” the defense claims.

The defense claims the Sunshine Law violates the rights to peaceably assemble, associate, instruct representatives and petition for redress of grievances under the Florida Constitution: “Chapter 286 targets speech based upon its communicative content and imposes civil and criminal sanctions as a result of speaking and listening to words. The statute is therefore presumptively unconstitutional.”

Metz is one of six defendants accused of violating the Sunshine Law by discussing a parking garage prohibition and other land use issues outside of a city meeting. Metz was a member of the city’s planning and zoning board when a recorded discussion took place at the July 25 Concerned Neighbors of Bradenton Beach (CNOBB) meeting. At the time, four of the future defendants served on the planning board and two served on the Scenic Waves Committee. All six have since resigned. Attorney Jim Dye is representing the other defendants.

On Aug. 11, attorney Robert Watrous, with assistance from paralegal Michael Barfield, filed a civil lawsuit on the city’s behalf seeking a ruling on the alleged violations.

“The Sunshine Law requires advance notice to the public and opportunity for public comment at any meeting or discussion on issues that are reasonably foreseeable to come before any board or collegial body. Because the P&Z Board acts as the local planning agency, it is reasonably foreseeable that its duties will include future consideration of whether a parking garage should be constructed within the city,” the lawsuit complaint states.

F.S. 286.011 states: “Any public officer who violates any provision of this section is guilty of a noncriminal infraction, punishable by fine not exceeding $500. Any person who knowingly violates the provisions of this section by attending a meeting not held in accordance with the provisions hereof is guilty of a misdemeanor of the second degree.”

Attorney General Pam Bondi’s website says telephone conversations and e-mails between board and committee members may also qualify as “meetings” under the Sunshine Law. The investigation conducted by Watrous and Barfield produced e-mail exchanges between board and committee members pertaining to parking garages, the Community Redevelopment Agency and the city’s comprehensive plan and future land use map.

“Because Chapter 286 sanctions those who attend ‘meetings,’ it impermissibly infringes not only upon the speech and petition rights of the people and the defendant under the United States and Florida constitutions, but also their right to peaceably assemble and associate under both constitutions,” Shults claimed on Metz’s behalf. “The language of the statute is so vague that it fails to provide persons of common intelligence and understanding adequate notice of the proscribed conduct. In the addition, the statute is impermissibly overbroad and penalizes or, at a minimum, chills the exercise of the fundamental rights of the people and the defendant.”

The defense also claims the attempt to recoup legal fees from the defendants was filed in bad faith and/or is frivolous; that Metz is entitled to recoup his legal fees from the city; and that Metz cannot be sued by the city because he no longer serves on the planning board.

Perry told commissioners the city has thus far incurred approximately $16,500 in legal fees and those costs were increased by the defendants’ initial reluctance to comply with public record requests. She also said the proceedings are being delayed.

“Mr. Shults has put a damper on progress by stating that on behalf of Mr. Metz he’s unavailable until January,” Perry said.