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The Public Has A Right To Weigh In At Government Meetings. Does Playing Voicemails All Night Cut It?

Protest reopen schools Miami Herald Matias Ocner.jpeg
Matias J. Ocner/Miami Herald
From left, teachers Jeff Raymond and Richard Ocampo participate in a rally outside the Miami-Dade County School Board headquarters on Sept. 28. The rally, which was led by a faction of the United Teachers of Dade, opposed state officials pressuring school administrators to open in-person classes. Schools opened Oct. 5.

Experts say the Miami-Dade County School Board might have violated state laws that guarantee public access to government proceedings during an epic 29-hour meeting earlier this fall.

In late September, when the Miami-Dade County School Board was facing a difficult decision about reopening classrooms during the pandemic, the public was offered an unusual way to weigh in: voicemail.

Nearly 800 people called ahead of the board’s Sept. 21 virtual meeting and their messages added up to 18 hours. The board decided to stream the voicemails overnight.

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From roughly 5 p.m. that evening through 11:30 a.m. the next day, the small squares showing board members’ camera feeds disappeared, their faces replaced with a full-screen slide that said “public speaker comments.”

“How dystopian: our fears, our hopes, our demands broadcast to the ether,” tweeted Yeimi Valdes, a social studies teacher at Jose De Diego Middle School in Wynwood who had submitted a comment.

The Public Has A Right To Weigh In At Government Meetings. Does Playing Voicemails All Night Cut It?

Her fears, hopes and demands were broadcast after about 14 hours of public comment — at about 7 a.m. the day after the meeting started.

In her voicemail, Valdes raised concerns about ventilation and air quality in classrooms. She wanted to know if class sizes would be smaller to accommodate social distancing. As someone with a family member who is at high risk of severe complications or death from COVID-19, Valdes argued it was “inhumane” for the school district to force her to make a decision between her loved ones’ safety and her livelihood.

“To me, it was so clear that they were checking off a box and saying, ‘We've listened,’” she later told WLRN in an interview. “But that did not feel like listening.”

Experts tend to agree. Five lawyers who specialize in open government and media told WLRN the way the school board conducted the meeting was problematic — and might have violated Florida’s robust Sunshine Law, which guarantees the public access to government meetings.

One potential problem is uncertainty over whether a majority of the board was present throughout the 18 hours of public comment. Another is a question over whether the meeting should have been re-advertised to the public when it spilled over into a second day.

“Certainly, in these extraordinary times, everyone needs to be creative in how they go about their business. But it is not a license to suspend our Sunshine Laws, to restrict the public’s access in any way,” said Karen Williams Kammer, a veteran media lawyer and former journalist. “Everything should err on the side of transparency.”

School board members and their attorney maintain that the meeting was held in compliance with state law. As evidence, they point to attendance data which show a majority of the board members were logged in to the Zoom meeting throughout the full 29 hours.

But because the public could not see them during the 18 hours when the voicemail comments were streaming, it’s impossible to know if board members were really listening. Several admitted to sleeping through at least some of it.

The unprecedented meeting is an extreme example of the challenges facing governmental bodies during a public health crisis. State lawmakers who crafted Florida’s Sunshine Law didn’t anticipate a global pandemic that would make it dangerous for people to gather in the same room.

“There's definitely some belief that the virtual meeting is with us for good,” said Frank LoMonte, a media law professor and director of the Brechner Center for Freedom of Information at the University of Florida.

“And if that's the case, then the Legislature really does have to contemplate: Is this going to be something that we need to enact different rules for?”

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Screenshot from Twitter
A parent tweeted at Miami-Dade County School Board members on Sept. 22 to ask if they were listening to voicemail comments from the public that were played overnight. Two members responded to affirm the importance of the comments.

THE 29-HOUR MEETING

The Miami-Dade County School Board began its Sept. 21 meeting trying to figure out how to handle its public comment problem: How would board members listen to 18 hours of voicemails?

They discussed scheduling another meeting so they could break it up. But if they did that, they would have to advertise the second meeting — at least 48 hours ahead of time, according to the board’s rules. That would mean further prolonging a decision on reopening schools. Plus, the public would have another opportunity to submit comments, so that could further complicate the situation.

The board is not required to listen to or read every comment submitted. Members could have decided to limit the amount of testimony to a more manageable period of time.

But ultimately, they decided to continue the meeting overnight, playing the voicemails not only on the web live stream but also on WLRN’s radio and television stations. The school board owns the broadcast licenses for both stations but exercises no editorial control over news programming.

It seemed unlikely the whole board would stay up all night. Board member Martin Karp gave himself and his colleagues cover: He said they had received a recording of the voicemails the night before, as well as additional comments that were sent by email.

“We have the flexibility to either follow it now, moment by moment, until 11:30 a.m. tomorrow. Or if we already started listening last night, or if we're reading, we have the ability to do that,” Karp said during the meeting.

The next day, when the voicemails had finished playing and board members reappeared on screen, several of them stressed that they had been listening.

“I did not sleep all night, because I do take every public comment very seriously,” said board member Lubby Navarro.

Board Chair Perla Tabares Hantman was wearing the same floral jacket both days.

“You see me all dressed the same way I was dressed yesterday,” Hantman said during the second day of the meeting, suggesting that she did not change her clothes during it.

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Screenshot from dadeschools.net
Miami-Dade County School Board Chair Perla Tabares Hantman conducted the 29-hour virtual meeting that began on Sept. 21. Hantman wore the same jacket on both days of the meeting.

Meanwhile, board member Dorothy Bendross-Mindingall admitted that she did not hear every comment.

“I, too, listened carefully to all of the — not all of them. I cannot say that. But, so many of the public speakers. It brought a lot of concern to me,” Bendross-Mindingall said during the meeting.

Then she clarified: “I listened, as I said, as much as I could, and then first thing this morning.”

Board member Susie Castillo told WLRN she went to sleep at about midnight or 12:30 a.m., and got up earlier than usual, around 6 a.m., on Sept. 22. She said she got dressed, put on makeup and did chores at her home while listening.

“It was a little uncomfortable knowing that I had probably missed a few hours — knowing that I had missed probably five hours or so,” Castillo said. “I felt bad that I hadn't heard those stories, because the ones that I did hear really hit home.”

Board members Marta Perez and Steve Gallon III told WLRN they attempted to stay up all night. Both pointed out that sleeping during a meeting is not just a Zoom phenomenon.

“Maybe I dozed off a couple of minutes,” Perez said, “but even if you were in a regular meeting, people doze off.”

“People nod off in meetings,” Gallon said, “so I don't think that's foreign — whether it's 4 o’clock in the afternoon or 4 o’clock in the morning, if we're going to be truthful.”

Experts argued the strategy of playing voicemails all night might have violated state laws that govern public meetings.

“The Florida Legislature went back in 2013 and amended the Sunshine Law specifically to say that there is a requirement to provide a reasonable opportunity to be heard,” said LoMonte, from UF.

Several opinions from the Florida Attorney General’s office go even further, stating that the Sunshine Law guarantees the public a “meaningful” opportunity to participate.

“Meaningful at least suggests that people listen to you,” LoMonte said. “And if you're playing [the comments] consecutively over multiple hours, when your audience — you know, for a fact — must be asleep, then that doesn't seem like a meaningful opportunity.”

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A full-screen slide replaced the camera feeds of school board members while voicemails from the public were played overnight from Sept. 21 to 22.

DID THE BOARD HAVE A QUORUM ALL NIGHT?

As the Miami-Dade County School Board discussed how to go about hearing from the public during its Sept. 21 meeting, member Lubby Navarro asked the school board’s attorney, Walter Harvey, for legal advice.

Are we required, Mr. Harvey, to have a quorum at all times when people are being heard?” Navarro asked. In other words, does a majority of the board need to be present throughout the public comment period?

Harvey responded: “No.”

“Because of the emergency order, correct?” Navarro followed up.

“Correct, correct,” Harvey replied.

The emergency order she was referring to was a directive from Republican Gov. Ron DeSantis that allowed governmental bodies like school boards and city councils to meet virtually instead of in person because of the pandemic. The order stated: “I hereby suspend any Florida Statute that requires a quorum to be present in person or requires a local government body to meet at a specific public place.”

Five lawyers with expertise in open government and media law told WLRN they disagreed with Harvey's interpretation.

“The executive order does not dispense with the requirement to have a quorum,” said LoMonte, from UF.

“It only suspends the requirement that the members have to be meeting at the same place. They can have quorum virtually,” explained Virginia Hamrick, staff attorney for the Florida First Amendment Foundation.

Harvey agreed to an interview with WLRN, rescheduled the interview and then canceled. In an email, he did not double down on his opinion that a quorum wasn’t necessary.

Instead, he argued that the board had maintained one. Harvey pointed to the Zoom record showing that most board members were logged in throughout the night.

“The facts are clear that there was a quorum present through virtual means,” Harvey wrote in the email.

Daniela Abratt, a media lawyer with the Thomas & LoCicero firm in Fort Lauderdale, argued that board members simply logging in to the meeting does not demonstrate that they were listening.

“The real point of concern to me was the fact that there's no real proof that they actually heard or listened to the public's comments,” she said.

Sam Terilli, journalism department chair at the University of Miami and former general counsel for the Miami Herald, objected to the fact that board members were not visible during the overnight portion of the meeting.

“If members of the public tuned in to the meeting during the night, they didn't see a meeting,” he said. “That worries me, in terms of the spirit of the Sunshine Law.”

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Screenshot from Twitter
Members of the public tweeted on Sept. 21, expressing their frustrations about the Miami-Dade County School Board's decision to stream voicemail comments overnight.

WAS IT REALLY ONE CONTINUOUS MEETING?

School board member Susie Castillo juggles her elected position with her day job as director of corporate relations for Florida International University’s foundation. When the Sept. 21 meeting bled into the next day, Castillo had to request another day off at the last minute.

Castillo’s predicament illustrates why Florida law requires government meetings to be advertised to the public ahead of time: People need time to make arrangements to attend.

Harvey, the board’s attorney, argued that advertising the meeting once was enough — despite the meeting starting at 11 a.m. on Sept. 21 and ending at nearly 4 p.m. the next day.

“I can unequivocally state that the Sept. 21-22 virtual School Board meeting was one continuous meeting, and that the meeting was held in accordance with the Florida Government in the Sunshine Law,” Harvey wrote in an email.

LoMonte, from UF, said he doesn’t think that argument would fly in court.

“This meeting is potentially vulnerable to challenge, because it wasn't really one consecutive continuous meeting. It was, in fact, two different meetings, and the law would generally require two separate public notices,” LoMonte said.

“It looks like what they were trying to do was avoid giving public notice of a second meeting, but you can see where that could be easily abused,” he said. “You could just keep the Zoom open for a week, two weeks, a month, and consider it to be one unbroken meeting. That can't be what the law has in mind.”

Karen Williams Kammer, a media lawyer with the South Florida firm Mitrani, Rynor, Adamsky & Toland, said she hoped the school board members did not simply leave their computers on and go to sleep during the meeting.

“If that's what they did, then, in fact, when they returned, that should be considered, in my view, another meeting,” she said, “which should have been properly noticed.”

If there had been a successful legal challenge, it would not have changed the outcome of the Miami-Dade County School Board’s 29-hour meeting.

While board members voted on Sept. 22 to delay reopening schools until Oct. 14, they ended up reversing that decision a week later under pressure from state education officials. Instead, schools reopened on Oct. 5.

Since then, nearly 500 cases of COVID-19 have been reported among students and staff.

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Screenshot from Twitter
A member of the public tweeted at Miami-Dade County School Board member Steve Gallon III on the evening of Sept. 21, asking if he was listening to the voicemail comments that streamed overnight during a 29-hour meeting.

THE PANDEMIC ISN’T OVER. WHAT’S THE FUTURE OF PUBLIC COMMENT?

Sabrina Cruz Muñoz’s voicemail comment played second, just after 5 p.m., during the school board meeting on Sept. 21, so it is likely the members heard it. But she was annoyed that some of them admittedly slept through other people’s concerns.

“If you legitimately cared in your heart what people had to say, if you cared about your constituents, the people who voted for you, then you wouldn't play it all night,” said Cruz Muñoz, whose daughter is in first grade at Palmetto Elementary in Pinecrest.

Reflecting on the tricky situation, board members said they believe they made the right decision.

“Everything was hanging on: What are we going to do?” board member Castillo said. “If we prolonged it more, it would be more anxiety for our community.”

Board member Gallon described the pending decision over reopening schools as a zit.

“It was growing, and it was growing, and it was painful,” he said. “So rather than postpone the popping of the pimple, let's get to it.

“I have no regrets,” Gallon said.

This conflict isn’t isolated. Local government bodies throughout Florida have been trying to figure out how to facilitate public comment during the pandemic. Some have invited members of the public to speak in person, requiring masks and wiping down podiums frequently.

Others have accepted comments via email and read them aloud. Still, others have allowed people to offer live testimony over a phone or video call.

DeSantis’ emergency order allowing boards to meet virtually expired at the end of last month, so meetings are taking place in person for the time being. But if the ongoing pandemic once again forces government bodies online, the rules for how to conduct meetings will remain unclear — unless the Legislature or the courts get involved.

“We're going to be living in this virtual world for some time,” said Abratt from the Thomas & LoCicero law firm. “So I wouldn't be surprised if some big action is taken that ends up before the court.”