- September 25, 2024
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The modern convenience of cell phones has become a costly complication for Manatee County in recent years because of lawsuits stemming from both alleged and acknowledged violations of Florida’s Public Records Act.
Most recently, commissioners agreed to pay the Florida Center for Government Accountability $75,000 on Sept. 10 to settle a lawsuit after Manatee County acknowledged that it had not been in compliance with the law, which requires public records be available to citizens in a timely manner.
The complaint names former County Administrator Scott Hopes, current County Administrator Charlie Bishop, who was a deputy county administrator at the time, and former Deputy County Administrator Robert Reinshuttle.
However, Manatee County was the named defendant because an overall operational issue was underlying any individual’s actions. The county didn’t have a system in place to capture and archive text messages on county-issued electronic devices.
“The many ways that people can communicate presents a challenge to the Public Records Act,” said Michael Barfield, the public access director for the Florida Center for Government Accountability. “Fortunately, the language in the Public Records Act was always there that it doesn’t matter what form you send or receive a record in.”
The center filed this lawsuit, but Barfield has previously filed multiple lawsuits against multiple municipalities and officials for violations of both the Public Records Act and the Government in the Sunshine Act.
Barfield said there was a period of “dark times in Manatee County,” but he credits county staff for adopting Smarsh technology, which archives electronic records in the cloud. All electronic messages being sent or received on county-issued devices are now automatically captured with the software.
With legal fees totaling more than $100,000, financial compensation wasn’t the center's end goal. Barfield said the non-monetary judgement was much more important because citizens gained transparency from the county with an added layer of accountability.
Now, there is a system in place to track electronic records, and the final judgement lays the groundwork for court-ordered compliance if there's an issue in the future. The county is now legally bound to the final judgement that states it will comply with the Public Records Act.
Hopes’ individual actions brought the issue of archiving to light when Barfield’s public records request uncovered that Hopes reset his phone to factory settings on his last day of work as the county administrator.
Hopes is currently facing criminal charges for the destruction of public records because of the alleged act. County staff were deposed in the matter on Sept. 23, including Deputy County Administrator Courtney De Pol and Commissioner Kevin Van Ostenbridge's former assistant, Jorge Arana-Villar.
The Smarsh software now prevents purposeful or accidental destruction of records by individual employees because all data from phones is stored and retained in the cloud.
“Of course, it is always dependent on the good faith of an employee or an elected person to use their county-issued phone for county business and not their personal phone, so that’s a loophole there,” Barfield said. “But it’s one that the audit function, we think, will address, and we’ll certainly be keeping an eye on them.”
Another stipulation Manatee County agreed to in order to settle the case was to implement an audit process, where a third party audits the county’s information management system.
Lacy Pritchard, the records and information management manager for the county, said the audits will likely take place every two years.
“Basically, the auditor is going to make sure the vendor we’re using and the process we have in place is capturing everything as intended,” Pritchard said.
Smarsh software and third-party audits solve a major problem, but they don’t close the loophole.
Barfield requested a copy of Director of Public Safety Jodie Fiske’s text messages from her county-issued cell phone in the days surrounding Hurricane Debby.
Those records show that Bishop, Van Ostenbridge and Commissioner Mike Rahn used their personal cell phones to communicate with Fiske.
At the time, the county's personnel policy did not have explicit guidance on the usage of personal cell phones for county matters.
Van Ostenbridge said regardless, commissioners and Bishop do not have to adhere to the county's personnel policy.
Barfield argues that even with using a personal cell phone, all messages need to be recorded to abide by the Public Records Act. He said this can be done by using digital SIM cards, which allow multiple phone numbers to dial into one device.
As part of the settlement, an amendment to the personnel policy was signed by Bishop on Sept. 14 and reads, “Conducting county business via text messaging (except Emergency Services Alerts), PIN messaging or instant messaging on a personal cellular device is strictly prohibited.”
Van Ostenbridge doesn't believe Barfield is acting in the interest of the greater good.
"The problem that needs to be corrected lies with Florida statute," he said. "There's a loophole that allows unscrupulous folks like Michael Barfield to financially benefit by filing baseless lawsuits against local governments."
Barfield filed a lawsuit against Van Ostenbridge and former commissioners James Satcher and Vanessa Baugh in 2020 after they did not hand over their personal cell phones in a timely manner.
The commissioners settled with Barfield, costing the county $125,000 because the board voted to cover commissioners' legal fees after their individual cases were settled in 2021.
Baugh paid him $4,319 to settle her suit. Van Ostenbridge and Satcher paid Barfield a total of $6,000. The commissioners did not admit to any wrongdoing then or now.
Commissioner George Kruse complied to the request from Barfield in a timely manner, and as a result, a lawsuit was not filed against him.
“It’s very easy to comply (with a public records request). It takes no effort whatsoever,” Kruse said. “It’s harder not to comply.”
Van Ostenbridge, Satcher and Baugh all said they complied with the order to produce their records, but it was less costly for taxpayers to settle with Barfield than to drag out the lawsuit any further.
Baugh said commissioners only had personal cell phones at the time, and unlike Kruse, she wasn't willing then, and still wouldn't be willing now, to hand over all her personal messages.
She spent hours sifting between what were personal messages and what was county business, she said.
Satcher said Barfield has made a "cottage industry" out of lawsuits.
"Email is so easy — you just go in, search it and send it. No such luck with text messages, so he figured that out all over the state," Satcher said. "The counties are still playing catch up, trying to figure out how to archive something that comes in on its own system."
Barfield said the settlements rarely cover the legal fees, and the lawsuits are about maintaining transparency in government.
“I told each of the defendants that I had significant doubts about whether they had learned their lesson and that I would be watching them,” he said. “They went right back to doing what they were doing before (conducting county business on personal cell phones).”
Kruse said with new commissioners coming on the board, he thinks the commission "will be much more transparent and open with records."
“We are hopefully learning,” Kruse said. "We’re trying to make sure things are done timely and affordably, and hopefully, everyone starts using county phones.”
The county has implemented ongoing training for employees and held a training Sept. 11 for department heads. Every new hire will receive training, and an annual refresher training is also required.
“Every time we conduct business, we’re creating a record,” Pritchard said.
