Directive follows board agreement to settle litigation over staff’s appearing to try to stymie paralegal’s efforts to obtain copies of staff communications through public records requests
A Nov. 19 agenda item for the Sarasota County Commission regarding the settlement of a public records lawsuit prompted new Commissioner Tom Knight to call for a county staff report on related issues, including the potential of paying for staff to monitor use of county employees’ cell phones, to try to prevent future violations of the state’s Sunshine Laws.
His colleagues ultimately joined him, voting unanimously in favor of his request as reframed by County Administrator Jonathan Lewis.
During his report to the board on Nov. 19, County Attorney Joshua Moye explained that the Office of the County Attorney had reached a settlement agreement with Michael Barfield, a paralegal with Denovo Law Services in Sarasota, after mediation involving a complaint that Barfield filed in the 12thJudicial Circuit Court in November 2023.
As a memo produced by the Office of the County Attorney explained the case, “Barfield alleged he sought certain electronic public records in possession of individual County custodians who made or received records on personal electronic devices. Specifically, Barfield alleged he sought telephone call logs (landline and cellular),” as well as “all text messages and all emails” sent or received from certain county employees.
Those were Spencer Anderson, director of Public Works; County Administrator Jonathan Lewis; Matt Osterhoudt, director of Planning and Development Services; Michele Norton, senior manager of Planning and Development; and Deputy County Attorney David Pearce.
“Barfield further alleged he paid a deposit on the special service charge imposed for the requested records and received some, but not all, of the records responsive to his request,” the memo continued.
Then, in an amended complaint filed on March 22, the memo said, Barfield alleged that he had made an additional public records request on Feb. 9, involving all five county commissioners, but he had not received the records as of the date he filed he filed a motion with the court, asking for leave to amend his original complaint.
Barfield explained in his original complaint that the county’s stipend program “reimburses employees for the use of personal electronic devices, including cellular devices, in connection with the transaction of official business.” He argued that the stipend policy interferes with a state rule that applies to “the creation, utilization, maintenance, retention, preservation, storage and disposition” of electronic records.
The Office of the County Attorney memo added that Barfield was seeking a court ruling that the county unlawfully had withheld public records, that it had “failed to preserve all responsive records, and a declaration the County’s cell phone stipend policy violates the Public Records Act by imposing unreasonable costs, delays, and impairments to the right to obtain public records.”
Barfield’s Nov. 14, 2023 complaint also said that after he made his public records request “for certain electronic records in possession of Sarasota County,” he was “advised that a special charge of more than $1,500 was necessary to fulfill the request.” He paid a deposit of 50% of the charge, he continued, “and received an initial batch of records.” Then, Barfield added, the county increased that special service charge to more than $2,100. “Additional records were furnished but not all records responsive to the request have been provided. That was why he was seeking a declaration that the county’s “Stipend Policy violates the [Public Records Act] by imposing unreasonable costs, delays, and impairment of the right to obtain public records.”
Mediation in the case took place on Sept. 17, the Office of the County Attorney memo continued. “The settlement agreement will require the County to provide additional education and training regarding the Public Records Act to its public records coordinators,” the memo explained. Second, it will require that a county memo be sent to all county employees, to remind them of the “prohibition involving use of text messages,” consistent with a directive that County Administrator Lewis had issued. Third, the memo indicated, the settlement will necessitate that Lewis will be required to remind all county employees who have a smartphone stipend of the possibility that they can use the Microsoft Teams chat function “in lieu of text messages.”
Finally, the memo pointed out, the county will pay Barfield $3,980.82 in costs for his complaint and $3,000 in attorney’s fees. Moreover, it said, the county will reimburse Barfield for the $1,368.75 in fees for the mediator who handled the Sept. 17 session.
In exchange the memo added, Barfield will dismiss his lawsuit with prejudice, meaning he would not try to file a revised complaint in the court on the same points.
A concern about the need to promote trust in government
After County Attorney Moye offered his recommendation for the board members to approve the settlement, Commissioner Mark Smith made a motion to do so, and Commissioner Ron Cutsinger seconded it.
Then Commissioner Knight spoke up. Having worked in law enforcement for 34 years prior to the start, that week, of his service on the County Commission, Knight said he knows that the Sunshine Laws were created to promote public trust in government, even though some people in government positions do not like them.
First, he asked Moye whether approving the Barfield settlement would entail “admitting to anything that we’ve done wrong.” Then he inquired whether training on the handling of public records would be provided for all county employees in the future.
“Are we certain that we’re not going to be like other local government bodies [and fail once more], by accident or on purpose [to comply with the laws], and we’re back discussing public records again?” Knight asked. “Are we setting ourselves up so that we get scrutinized again,” in a year or two, when, for example, a new employee violates the laws?
Moye replied, “This settlement resolves the issues that are before us today. … There’s no ongoing obligation,” he added, except for additional training and reminders to staff that they must preserve texts on their cell phones if those texts are work-related.
The settlement would not prevent a future lawsuit, Moye said. Nonetheless, he told the commissioners, the employee training is expected to prevent such new litigation.
“Is there any reason why we wouldn’t provide the [cell phones] to the employees, so we can monitor them ourselves, without having an outsider monitor [them] for us?” Knight asked, referring to a recommendation Barfield had made in a Nov. 18 email to the commissioners, referencing a type of technology the county could use.
“That’s up to the county administrator,” Moye responded. “We didn’t want to lock in something [in the agreement],” he explained, such as a specification for employees to use certain technology to ensure records are kept of all their communications, because “a better technology might come along in two years,” for example.
County Administrator Lewis then pointed out that the county’s Enterprise Information Technology (EIT) staff had undertaken analyses in the past — including “including a couple of times” before he became county administrator in early 2018, and since then — in regard to such monitoring.
“The cost would be north of $500,000 a year,” Lewis continued, to pay for staff to monitor county employees’ phone and text communications.
Nonetheless, Lewis said, if it were the will of the commissioners, he could have staff take on a new board assignment entailing research into the updated expense of such an effort and the practicality of it.
“Cost is relative,” Knight replied. “The integrity of the board is important, certainly.”
Lewis suggested that Knight request what is called a “board assignment,” directing staff to look into the issues Knight had raised. That would include the cost implications, Lewis added, and how the monitoring would work.
Interim board Chair Joe Neunder proposed that Knight bring up the issue again during the individual commissioners’ reports to each other, as that would be the traditional time to request a board report.
A proposal from the plaintiff
In a Nov. 18 email to the commissioners, paralegal Barfield wrote, “I wanted to share my views that the [proposed] agreement does not remedy the key issue of employees archiving text messages in compliance with the Public Records Act. As I informed [Deputy County Attorney] Pearce during the settlement discussions, I believe it is in the best interest of Sarasota County to implement an archiving technology known as Smarsh adopted by more than 100 other governmental agencies across Florida … The Smarsh technology has been adopted locally by the following entities: Sarasota County Sheriff’s Office, Manatee County, Manatee County Sheriff’s Office, Sarasota County School District, Sarasota Memorial Hospital, City of Sarasota, City of Bradenton, City of Venice, Sarasota-Bradenton Airport Authority, DeSoto County.”
Barfield also pointed out, “The [county’s] stipend policy provides a monthly payment to employees who use their personal cell phone to conduct official county business. The stipend policy places the responsibility on the individual employee to archive all records associated with official business via the use of their personal phone, including, but not limited to, phone logs, text messages, and text activity logs. Although the stipend policy prohibits employees from sending or receiving text messages in connection with official county business, sworn testimony in this case revealed that county employees would routinely send and receive text messages relating to official county business.”
He added, “Several years ago, Sarasota County explored adoption of an archiving solution, including Smarsh. IT personnel reached out to cellular providers and others for a ‘solution’ to the issue of archiving text messages sent and received by county employees. Despite the prohibition on texting in the stipend policy, Jake Strawn, the county’s EIT manager, testified that the ‘problem’ he was in search of a ‘solution’ for was noncompliance with the Public Records Act as it relates to archiving text messages.”
Further, Barfield wrote, “Adoption of an archiving solution such as Smarsh would actually save Sarasota County money and achieve full compliance with the Public Records Act. According to records provided to me by Sarasota County, the stipend policy costs taxpayers more than $100,000 monthly. The Smarsh archiving solution would cost substantially less than that amount even when one includes the cost of Sarasota County acquiring additional phones from its current provider, Verizon, and hiring [a full-time employee] to assist in administering the program.”
Then he contended, “Expecting employees to properly archive all records associated with the use of the personal phone for official business is not feasible and will result in mistakes. Additionally, the prohibition in the policy on texting has been routinely ignored.”
‘Checks and balances’
When it was Knight’s turn to offer comments under the Board Reports item on the Nov. 19 agenda, he suggested a board assignment for staff to determine the ability of the county “to ensure that we have checks and balances in place, so that none of our employees become involved in public records problems,” especially any situations that could lead to litigation.
Knight talked of the need to “protect ourselves and protect our employees from themselves.” He added, “I’ve always said a mistake of the heart is different from a mistake of the mind.”
Then Lewis proposed a two-part assignment: “One has to do with the technology,” in terms of establishing internal monitoring of employee cell phone use. The second part of the assignment, he continued, would focus on the training of staff in regard to the public records laws.
Lewis emphasized, “We have to follow the law.” However, he added, “I’m nevergoing to say we’re not going to have an employee make a mistake.”
Chair Neunder asked whether the scope of training should be expanded to include the county’s advisory board members, since they, too, must abide by the Sunshine Laws.
Lewis replied that he intended for the training to do that.
Knight made a motion directing the administrative staff to undertake the assignment as Lewis had described it, and Commissioner Ron Cutsinger seconded it. The motion passed unanimously.