Cosentino allegations about former county attorney and a lawyer in private practice, plus second public speaker’s criticism of business people, prompt County Commission talk of amending Rules of Procedure

Commissioner Detert wins support of colleagues for Office of County Attorney to research options for dealing with defamation and slander at Open to the Public periods

Mike Cosentino addresses the county commissioners on Aug. 27. News Leader image

Not for the first time, public comments Siesta Key resident Michael Cosentino has made to the County Commission have prompted a board discussion about potential changes in the county’s Rules of Procedure.

On Aug. 27, the board members directed the Office of the County Attorney to undertake research related to the latest issue and report on its findings.

During the morning Open to the Public period of the commission’s regular meeting on Aug. 27, Cosentino accused attorney Charles D. Bailey III of the Williams Parker firm in Sarasota and former County Attorney Stephen DeMarsh of fraudulent actions regarding the 2016 commission decision to vacate a 373-foot-long section of North Beach Road.

That afternoon, Commissioner Nancy Detert asked County Attorney Frederick “Rick” Elbrecht whether the board could take steps to stop what she characterized as slanderous and defamatory comments aimed at members of the public.

Detert noted that another speaker that morning had aimed critical remarks at businesspeople in the community. (That speaker was referring to applicants for appointments on a county advisory board; those items were on the Aug. 27 agenda.)

In November 2018, public comments by Cosentino and 14 of his supporters led the commissioners to implement changes in the Open to the Public periods during meetings. For example, after the board members have heard from people on items not set for public hearings that day, it will allow up to five speakers to address topics not on the agenda. Previously, the Rules of Procedure did not limit the time that could be allotted to the Open to the Public period.

With approximately 45 minutes of Open to the Public comments on Nov. 27, 2018 from Cosentino and his allies, the commission ended up well behind schedule in addressing items on that morning’s agenda.

Since June 2016, Cosentino has been embroiled in litigation against the commission over the North Beach Road vacation. Cosentino has appealed part of the case — which a 12th Judicial Circuit Court judge decided in the county’s favor last year — to the Second District Court of Appeal.

A second case, filed in October 2018 and amended and refiled at the end of 2018, focuses on two county Charter amendments Cosentino worked to pass in the November 2018 General Election. A family that owns property on North Beach Road and the county both have argued that the amendments contravene state law.

One of those Charter amendments calls for the county to reacquire the vacated road segment. The second prohibits the county from selling any property it owns that has so much as a “waterfront vista.”

This is Sarasota County Charter Section 3.9, which was approved on Nov. 6, 2018. Image courtesy of the Office of the Sarasota County Clerk of Court and County Comptroller

This is the text of Charter Section 3.10, also approved by voters on Nov. 6, 2018. Image courtesy of the Office of the Sarasota County Clerk of Court and County Comptroller

Airing his convictions

The Charter amendments approved last November were the focus of the comments Cosentino initially made to the commission at the Open to the Public period at the start of the Aug. 27 meeting in downtown Sarasota.

Cosentino said he was prompted to put in a speaker’s card that morning after hearing Chair Charles Hines welcome young people in the Students Take Active Roles (STAR) program, who were in the audience. Hines said the students would have an opportunity to see “democracy at work.”

“I gathered the 15,000 signatures” to get the two Charter amendments on the 2018 ballot,” Cosentino pointed out. He was referencing his two-year petition drive to seek the necessary number of voter signatures to ensure the proposed amendments could go on the ballot.

Former County Attorney Stephen DeMarsh. File photo

After the amendments won overwhelming voter approval, Cosentino continued, “I showed up here with about 40 people on Nov. 27, (2018), when Miss Detert was chair. … People basically complained,” he said, that the commissioners were “spending tax dollars to have the county attorney try to overturn what we voted for.”

Detert’s response, as Cosentino paraphrased it, was “Nobody’s trying to sweep these under the rug or do anything to undermine them.” He added that she talked about how slowly government moves in implementing new laws.

Addressing Detert on Aug. 27, Cosentino continued, “[I am] not going to say you were being completely untruthful … But if you weren’t, then you were completely unaware of what was going on [with the two lawsuits underway] to strictly undermine the will of the voters.”

“Those lawsuits are based on fraud,” Cosentino stressed. County Zoning Administrator Donna Thompson confirmed that in a deposition taken in his case, Cosentino told the commissioners.

Cosentino then referenced portions of a November 2012 letter that attorney Bailey wrote to then-County Administrator Randall Reid, proposing the vacation of the portion of North Beach Road that the commission ended up vacating on a 4-1 vote in May 2016.

That letter said, “This segment of Beach Road [north of Columbus Boulevard and south of Avenida Messina] is impassable by vehicles due to the deterioration of beach and shoreline conditions over the last few years and the lack of maintenance and repair.”

Sarasota County photos show damage to North Beach Road in April 2012. Images courtesy Sarasota County via Taylor Engineering

Then Cosentino told the commissioners he planned to file for a rehearing of his original complaint in Circuit Court, based on what he reiterated was a process rooted in fraud.

Moreover, Cosentino continued, “There’s probably going to be [Florida] Bar complaints against the county attorney.”

“Democracy actually means having a representative government,” Cosentino added. “At this point, based on what’s going on, this board does not represent the people, and we’re hoping for a change in that regard.”

Audience members erupted in applause.

Chair Hines then addressed the STAR students: “There are three branches of government, and each checks the other.”

Further, Hines pointed out that the commission’s Civility Code for board meetings is on the back of the card each person planning to make public remarks has to fill out and sign.

“We don’t make our decisions based upon who claps the loudest or who has the most T-shirts or the most signs,” Hines added.

Later, during the public comments period regarding the county’s plans to redraw its five district boundaries before the end of this year, Cosentino again segued into the North Beach Road and Charter amendments controversies, including the efforts of the Office of the County Attorney to “overturn what 73% of us voted for …”

According to the official results of the 2018 General Election, the Charter amendment calling for the county to preserve any county-owned property along the water or with a water view won approval of 72.7% of the voters who cast ballots on it; the second Cosentino Charter amendment passed with 65.07% of the vote.

How best to proceed

Commissioner Nancy Detert. File photo

During her board report later that day, Detert pointed out that, as elected officials, “Being attacked personally is part of our job. … But two speakers this morning attacked ordinary citizens by name at a televised meeting.”

Does the commission have any recourse, she asked. “I’d like to know the difference between freedom of speech and character assassination. … We have a civility rule which says, ‘You shall avoid personal attacks and abuse of language and redundancy,’” she continued, though “you can’t avoid [redundancy], apparently.”

“Would you get us some clarification,” Detert asked County Attorney Elbrecht. “I think [people] should be stopped once they’re saying somebody’s name, in today’s kind of extra violent world.”

If the board asked him to make that research an official assignment, Elbrecht replied, he and his staff would undertake the work.

“We don’t want to be accused of limiting people’s freedom of speech,” Detert added. “Where does it become abuse?”

“That’s a very complex analysis,” Elbrecht replied.

“If you’re a businessman,” Detert continued, “your reputation’s pretty much everything, and you weren’t given an opportunity at a televised meeting to rebut an accusation. And they’ve done it to our employees, too,” she added, noting that county staff members were being attacked for doing their jobs.

“You’ve got to be very careful here,” Commissioner Christian Ziegler cautioned. “I am all for the public being able to say whatever they want to say,” he added, but he acknowledged, “I get the concerns.”

Chair Hines pointed out that he ponders whether to stop a speaker who is beginning a personal attack on a private individual. “It’s hard to find the balance.”

Chair Charles Hines. File photo

Another option, which he is reluctant to use, Hines continued, is asking the bailiff to remove the speaker. A couple of times, Hines noted, he has called for a break in a meeting because of concerns about public remarks. “The last thing you want to do … is ask our bailiff to ask someone to leave and then they don’t leave, and it just escalates.”

He also urged his fellow commissioners not to hesitate to get his attention if any of them feels a speaker is violating the Civility Code. “Kick me … or tell me, ‘I think this is going too far.’”

Perhaps research by the Office of the County Attorney would help, he continued. “I don’t know how much work that would entail for you,” he told Elbrecht. “I know all public boards struggle with this.”

Hines suggested that Elbrecht and his staff might be able to find precedents for addressing situations such as those the commissioners were discussing.

Elbrecht did note that private individuals have recourse if they are slandered or defamed. “They don’t have to depend on us, necessarily.”

When Hines asked how his other colleagues felt, Commissioner Michael Moran said, “I’m just not interested in this being a venue for people to take out grievances with other folks. … There’s a balance there.”

He would be interested in learning if the commission has options for dealing with such attacks, Moran added.

Hines then asked Elbrecht to take on the official board assignment of determining whether legal precedents are available to provide the County Commission guidance.

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