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Lobbyist for All-Aboard Florida skirts Sunshine Law

STORY BY LISA ZAHNER (Week of January 9, 2014)
Photo: Rusty Roberts and Brian Heady.

A lobbyist for the All-Aboard Florida project that will bring 32 trains a day whizzing through Vero at up to 110 miles per hour met privately with at least one commission member this week, raising legal questions as to whether the lobbyist himself is also a member of a Vero advisory commission and whether the meeting would therefore be subject to the state’s Sunshine Law.

Russell “Rusty” Roberts, a former congressional staffer, 30-year veteran of Florida politics and lobbyist for Florida East Coast Industries – a parent company of the rail project – met with former Vero councilman Brian Heady Monday at Panera Bread and, at that meeting, voiced his intent to meet with everyone on the commission, individually, before the commission was seated on Thursday.

Heady, who was appointed to the Vero Beach High-Speed Rail Commission on Dec. 3, said he was contacted on Friday by a woman from All-Aboard Florida’s office in Jacksonville to set up a meeting with a company representative.

When Heady received an email confirmation of the appointment, he noticed the meeting was with Roberts. Heady recognized Roberts’ name from a list of people who were on the commission, though Roberts was listed as a “non-voting” member.

Concerned about a potential violation of Florida’s open meeting regulations, commonly called the Sunshine Law, Heady invited Vero Beach 32963 to witness the meeting.

Roberts gave a presentation to the Vero Beach City Council in September and had approached the city asking to be appointed to the new High-Speed Rail commission which was to meet at 4 p.m. Thursday. Since he didn’t meet the residency requirement, Roberts was presented to the City Council as a non-voting member.

But on Monday, both City Clerk Tammy Vock and City Attorney Wayne Coment said Roberts was not a part of the commission – sort of.

“Rusty is a non-voting member and not affiliated with the Commission,” said Vock Monday afternoon.

“My understanding is Mr. Roberts is not a member of the commission.  Therefore he may talk with the members outside of a meeting if he/they so choose. (Or talk to the group in a public meeting.)  He just needs to avoid becoming a ‘conduit’ transferring one member’s comments to other members,” said Coment. 

Heady said he was more than a bit puzzled by the apparent about-face on Roberts’ status on the commission. He said he didn’t understand how someone can be a “non-voting member” and also not be affiliated with the commission.

“He (Roberts) certainly has been presented to me, by the city, as a member and he confirmed to me that he is a member – a non-voting member,” Heady said. “This guy confirmed to me that he is a member and the paperwork confirms that and the fact that now they’re saying he’s not a member is the biggest red flag of the day.”

Former Councilman Ken Daige, who also sits on the rail commission, notified Vock that he, too, had been contacted by Roberts.

“I spoke with Ken Daige this morning and he said that you called him and sent him some information. Mr. Daige said that he would talk to you at the meeting. Also, would you please send me what you sent the members so I can have copies for my records,” Vock wrote in an email to Roberts on Monday.

Roberts responded to Vock, emailing her a presentation packet and saying, “I have contacted a few of the members to pay courtesy calls on them prior to the meeting, but have only spoken to Brian Heady so far. Though we did not get into the details of the project, I did give him this presentation.”

The reason Roberts did not “get into the details” with Heady is because Heady stopped him – no less than three times – from venturing into subject areas Heady deemed inappropriate for two members, voting or not, to be talking about in private.

After his cordial meeting with Heady, Roberts joked on the telephone about Heady and Daige wanting to be careful not to break the law.

“People are getting nervous about me meeting with the members of the commission,” Roberts said into a cell phone headset. “I’m supposed to meet with this guy and he’s not comfortable,” he said referring to Daige.

Vero came up during another phone call and Roberts relayed his apparent disappointment over Heady’s resistance to talking about anything that might come before the commission for discussion or a vote. “It was a short meeting,” Roberts said.

The meeting lasted nearly 40 minutes and started out with Heady clarifying that Roberts was a member of the commission and, therefore, the two could not discuss any topics that might come before Heady for a vote.

“Thanks for meeting on such short notice,” Roberts said.

“I thought it was the investment company that was calling, that was going to put the railroad through and it was after that I found out I was meeting with you. I thought you were a non-voting member,” Heady said.

“I’m a non-voting member,” Roberts said.

“Anyway, I’m still concerned about talking to you about anything that could come up in the commission,” Heady said.

Roberts explained the group of four companies under Florida East Coast Industries, one of them being All-Aboard Florida. Heady then asked him why he wanted to be on the commission and Roberts responded: “We want to be in the room.”

The discussion continued into the plans for All-Aboard Florida, the history, operations and possible expansion.

“Aren’t these the kinds of things that we would be talking about on the committee?” Heady asked. “The reason is that I . . . (Roberts interrupted)”

“They told me that it doesn’t apply to me because I’m not a voting member of the commission,” Roberts said. “The city clerk told me that I could meet with members of the commission, that she asked the city attorney.”

Heady indicated that those may have been the opinions of the city clerk and city attorney, but that he still had concerns.

“This committee hasn’t been seated yet so we’re not officially a committee,” Roberts said.

Heady then gestured for Roberts to stop.

“No, I called the city,” Roberts said.

“I don’t want to be set up,” Heady said. “And I’m not interested in violating the law, either.”

“I did call the Sunshine Law department and she said I could meet with the members of the committee,” Roberts said. “I’m meeting with everybody, you’re first.”

“You scheduled the hardest one first,” Heady joked.

Heady steered Roberts away from matters related to Vero, including a discussion of the possibility of adding a second track through the city to allow trains to pass.

“I think we’re getting close ... From my perspective, I can’t talk about anything that will come up for a vote before the commission. When we talk about where you’re going to double-track and those types of things that we might oppose, I’m not comfortable talking about that,” Heady said.

The topic of a memo Heady wrote and submitted to Vock about the high-speed rail project came up. The memo was not friendly to the project and advocated Vero giving All-Aboard Florida the “cold shoulder” related to anything that would cost city taxpayers money.

“I’m not going to get into a conversation with you about what I wrote,” Heady said. “You got a copy which you have because you are a member of the commission.”

Roberts explained that his goal with Heady and the other commission members was to be accessible and to not appear as if he’s coming in telling them how things are going to be in their own city. Heady said Roberts suggested he email or call him directly anytime if he had a question.

Heady asked if the bound presentation Roberts was using was public record, and Roberts said yes and told Heady he could take the copy with him, that he had a copy for each member of the commission.

Heady again questioned the need for private meetings when the commission was set to meet in a few days.

“The holidays are over, just wanted to get in a couple of meetings just to get the feel for folks,” Roberts said.

Speaking of the holidays, All-Aboard Florida actually helped make them twinkle brighter in Vero Beach. As part of its effort to get the city to warm to the Miami to Orlando rail effort that won’t stop in Vero, but that might cost local taxpayers up to $3.5 million to upgrade seven railroad crossings into “quiet zones,” the company donated $1,500 to sponsor the annual Vero Christmas Tree lighting event, which was on the chopping block due to budget cuts.

But it’s a new year. The grind of government meetings has resumed  and the High-Speed Rail Commission is set to take a hard look at All-Aboard Florida and its impact to city residents.

It’s expected the question over Roberts’ affiliation with the commission, or lack thereof, will come up at Thursday’s meeting. If he is an ex officio, non-voting member, a 2005 opinion of then-Attorney General Charlie Crist addresses the concern as it related to a non-voting member on a state condominium advisory council.

In short, the opinion states that, if a reasonable person would think the non-voting member is a member of a commission, the Florida open meetings statute should be “interpreted broadly” to ensure that the public has the greatest access not only to decision-making, but also to deliberations.

Following that line of thought, the non-voting member should not meet with other members of the board or commission outside of a public meeting to discuss issues that might come before the commission.

“In sum, it is my opinion that meetings between a voting member of the Advisory Council on Condominiums and the Director of the Division of Florida Land Sales, Condominiums, and Mobile Homes, who serves as a member of the council in an ex officio, non-voting capacity, are subject to the provisions of the Sunshine Law. Thus, the requirements of the Sunshine Law, i.e., notice, public accessibility and written minutes, apply to any meeting where two or more members of the council discuss matters on which the board may foreseeably take action.”

Heady said he’s comfortable that he didn’t violate the Sunshine Law on Monday because of the way he controlled the conversation. Yet, Heady still filed a public disclosure of the meeting with Vock on Monday night and in it, requested his fellow commissioners do the same if they had met with Roberts.

“He didn’t accomplish anything with me that he couldn’t have accomplished before the whole commission, but I also wouldn’t go anyplace with him that I felt would be a violation of the Sunshine Law,” Heady said.

“I can’t imagine that he took his time to drive from Orlando to just present me with this and if he wanted everybody to be on board, he could have sent these presentation booklets to the city clerk and had them distributed.”

With regard to Roberts laughing about his concerns on the phone to a colleague after the meeting, Heady said, “To that extent, it was a phony-baloney kind of ‘I’m here to make friends.’ I sincerely think that he did want to make a friend because he would like to have a friend on the committee, but chances of making a friend of me are slim to none.”