By Steve Miller
Florida Center for Investigative Reporting
In hopes of avoiding involvement in a public corruption case, an economic development operation in Brevard County contends it is not subject to the state’s open records laws.
The nonprofit Economic Development Commission of Florida’s Space Coast (EDC) in Rockledge has denied records requests, arguing that it is not a public entity. That debate is now in front of a judge, and the decision in the case could set a precedent in how economic development agencies are viewed in terms of Florida’s transparency laws.
The records case began in connection to the criminal investigation of a company called BlueWare. State investigators allege BlueWare CEO Rose Harr put cash to the campaign coffers of former Brevard County Clerk of Courts Mitch Needelman in exchange for an $8.5 million document scanning contract. Harr faces charges of bribery and bid tampering, as does Needelman and his former business partner and lobbyist William Dupree.
Needelman allegedly signed a BlueWare contract when he was the Brevard County court clerk. Investigators are looking at the EDC documents are part of the case against the defendants.
The contract between Brevard and the EDC states the EDC will receive $1.4 million a year for two years. In return, the EDC will vet applicants for tax abatements, among other tasks.
The question of the public nature of an economic development company is among the most prevalent contention in the open government arena. The Florida Attorney General’s Office has issued numerous opinions over the years regarding the transparency of quasi-public groups.
Among the most notable involves a Panhandle development group called Florida’s Great Northwest, which was determined to not be a public entity in a 2009 informal ruling as it used primarily federal funds in the form of grants and had no contract with a local entity or the state to promote the economy.
The ruling found it was not public “since no delegation of a public agency’s governmental function was apparent and the corporation did not appear to play an integral part in the decision-making process of a public agency.”
The opinion noted that a contract under which a body acted on behalf of another public entity would make that body subject to sunshine laws, which would bode poorly for the EDC in Brevard County.
Other states tussle with the public-private question as well.
In Wisconsin, a 2008 court decision ruled that a quasi-public entity was subject to open records and open meetings laws based on a number of factors. Among them, it was obligated to open its books to the city for inspection, it had no other clients besides the city and the body had members of the local government on its board of directors.
The state of California considers a body subject to its open meeting act to include a multi-member body that governs a private corporation or entity that receives “funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency,” according to the book Open Meetings Laws by California attorney Ann Taylor Schwing.
“I’d say the money and the contract are triggers that make these bodies subject to the open meetings laws,” Schwing said. “Public officials sitting on the board is also a trigger.”
The board of the Economic Development Commission of Florida’s Space Coast has numerous city and county officials among its 100-plus membership.
The EDC has never posted its meetings or acted like a public entity. But if it is found to have been subject to open meetings law since signing the contract with Brevard County, its actions could be challenged in court by interested parties.