UPDATE: State Attorney Jeff Ashton releases textgate report: $500 handslaps all around
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MORE TEXTGATE STUFFS!: Full Florida Department of Law Enforcement reports just released. Read here.
It was just over a year ago, on Aug. 17, 2012, that Orange County Supervisor of Elections Bill Cowles finally certified 50,364 of the 73,481 petitions submitted by local advocates Citizens for a Greater Orange County requesting that a referendum be put before voters to decide whether employers with more than 15 workers should have to provide paid sick leave for their employees. By normal standards – or rather, under a little-utilized provision of the county’s charter – that would have been enough, and the referendum would have landed on the Nov. 6 ballot. But this time, the normal standards didn’t apply.
From the outset, business interests like Walt Disney World, Darden Restaurants and the Florida Chamber of Commerce vowed to make the proposal disappear. It was a threat to corporate fiscal projections and, ultimately, Florida’s entire tourism and hospitality economy, they claimed. Lobbying muscles were flexed, and nearly every manner of circumventing the will of the people who circulated and collected those petitions, not to mention the county charter itself, was executed – sometimes with questionable legality. The county took its marching orders from business interests directly, tossed the hot potato of sick time up to the state level and crushed a citizens’ initiative. Even though county law required that the matter go before voters, the county commission refused to put it on the ballot. Never before had it been so clear who calls the shots in Orange County.
“We knew they were going to fight,” says Organize Now director Stephanie Porta, who spearheaded the Citizens for a Greater Orange County campaign. “Part of me thinks we should have been more prepared for the fact that this would have been a possibility, that they would have broken some laws.”
We’ll learn soon enough whether laws were indeed broken – or at least, whether the state attorney’s office has the gumption to subject area politicians to fines or perp walks. On Aug. 28 Orange-Osceola County State Attorney Jeff Ashton will release the results of an eight-month-long investigation by the Florida Department of Law Enforcement into what has become known as “textgate.”
The controversy earned its name because some county commissioners destroyed text messages that could be construed as public records under Florida law, and because commissioners and Mayor Teresa Jacobs were caught communicating electronically with lobbyists and politicos during a Sept. 11 hearing on the issue. That Ashton intends to release the report on the morning of Wednesday, Aug. 28, before holding a joint press conference with FDLE that afternoon has led to speculation that its findings could be significant. Or, perhaps, it could all amount to nothing.
Regardless of whether Ashton holds these elected officials accountable, there remains a string of horrible legacies – a comedy of democracy errors – to contend with, even a year later. Among numerous tangled threads, there’s the fact that business interests were lobbying the Supervisor of Elections while stuffing his campaign coffers; the fact that there was a bogus study on sick time commissioned from Rollins College by the Chamber; the fact that the county threatened to sue the Orlando Sentinel over a minor misattribution; the fact that the county frequently avoided (or botched) public-records requests; the fact that the state almost pre-empted local living-wage laws in its haste to squelch home rule. But mostly, there’s the fact that the entire ordeal was designed to make every level of the system work against democracy itself.
Supervising deflection
To Porta, one of the most telling stages of the sick-time fight was Cowles’ seeming hesitance to certify the petitions at all. When he wasn’t publicly grousing about the length or cost of the ballot – there were 11 proposed statewide constitutional amendments last November – he was taking his time processing petitions. Cowles had initially discouraged Citizens from attempting to place a referendum on the city of Orlando’s ballot; publicly he suggested that the group didn’t stand much of a chance at making the county’s November ballot, either.
Though Cowles insisted that he’d handled the petition process fairly, as he would any other electoral process, he also admitted that business interests had lobbied him to slow things down. (Disney, in fact, had given Cowles’ re-election campaign $1,500 in August 2012.) Tired of the delays, Citizens issued a public records request for Cowles’ emails. That same day, Aug. 17, Cowles certified the petitions, Porta says.
The emails from that records request don’t reveal much conversationally – most lobbyists have learned to avoid email – but they do show a nearly constant communication of petition totals to representatives from Disney, Mears Transportation and Darden Restaurants, among others. So, as Cowles was keeping the petitioners updated on signature verifications, so too was he updating their foes. (Cowles chalks this up to the fact that all processed petition information becomes public record by law – though he does allow that “there was a lot of questioning on what the timetable was.”)
“As much as it was an exciting day when the Supervisor of Elections said that we qualified for the ballot, the fact that it took a public records request to get us to qualify for the ballot was depressing,” Porta says. “Every time Bill Cowles showed up at an event to say ‘This is never going to be on a ballot,’ it was disappointing.”
As the decision bottlenecked through last-minute deadlines in September – a three-judge panel finally ruled in February that the county had violated its charter; the issue will now be on the Aug. 26, 2014, ballot – Cowles says he saw the options for getting the referendum on the ballot narrowing and becoming increasingly expensive. Between the county’s untested charter timeline on petition initiatives and the county commission’s intentional foot-dragging, things were not “in sync,” he says. He says he wants the county to amend the charter to prevent such confusion in the future.
Faking the facts
If there’s anything an organized business lobby is good at in battling citizens’ initiatives, it’s pulling together self-funded economic studies to reflect dubious – and often undesirable – outcomes. In early September, the Central Florida Partnership (the umbrella group for the regional chamber of commerce) released a study it commissioned through Rollins College, authored by economics professor William Seyfried. That study sought to debunk an oft-cited report authored by the Institute for Women’s Policy Research on the effects a paid sick-leave ordinance had on San Francisco following its enactment in 2007. The IWPR study claimed that there were minimal effects on business and that most employees opted not to use all of their earned sick-time benefits. Seyfried’s study, meanwhile, hewed to the position held by the conservative National Federation of Independent Business, which believes that by its very nature, offering more benefits to workers undercuts businesses. The money has to come from somewhere.
A July 4, 2013, New York Times story, however, found that many businesses in areas that have adopted sick-time policies (for example, Seattle; Portland, Ore.; Washington, D.C.; Connecticut and now New York City) have rejected the front-end fear-mongering of trade groups and big businesses as all bluster with little bite. A recent audit by the District of Columbia found that 90 percent of businesses polled said that they would not leave Washington, D.C., because of the sick-time program enacted in 2008.
“I think what we are in some ways recognizing is that the price of the success that we’ve had across the nation is greater attention from these organized, well-funded corporate interests who continue to suggest that the sky will fall if these laws are passed,” says National Partnership for Women and Families director Vicki Shabo.
Mayor Jacobs made reference to the San Francisco study – at least in a roundabout way – in texts released from her phone that were sent during the Sept. 11 commission meeting. “Disappointed no one researched what happened in San Francisco,” she wrote to chief of staff Graciela Noriega Jacoby, some moments before texting lobbying law firm BakerHostetler attorney and Jacobs advisor Kevin Shaughnessy, “Please help me with a written explanation of my position. This is most distressful for me.”
“There are dirty tactics everywhere, but this was a uniquely soap-opera-ish story that played out in Florida,” Shabo says. “In other places, where people are more reasonable, we’ve seen businesses and people come together to craft a policy.”
Killing the messenger
If Jacobs was attempting a public-relations coup, appearing calm and dignified as the specifics of textgate were sputtering out slowly via public-records requests, her late-September brawl with the Orlando Sentinel all but ended it. Throughout that month, Jacobs made it clear that, though she thought the sick-time initiative was a mistake, she also respected the county charter and supported it being on the ballot.
But then something ridiculous happened. Jacobs and the county “accidentally” presented the newspaper – and other media – with the entirety of the mayor’s personal cell-phone text messages. The messages were quickly placed on a Tribune Co. server, and momentarily went live on the Sentinel website. Rather than apologize for making such a monumental mistake (it left the mayor “crushed,” according to a Sentinel report), the county went on the offensive.
In an Oct. 1 letter addressed to the Sentinel – and forwarded to Orlando Weekly when it became clear to the county that we also had obtained the records – county attorney Jeff Newton demanded the return of the records, citing invasion of privacy litigation: “Please be advised that our office has advised Mayor Jacobs that she likely has personal legal recourse against the Orlando Sentinel if it elects not to comply with these demands.
Jacobs then publicly railed against the Sentinel for accidental misattributions in its reporting on the recovered texts, and county spokesman Steve Triggs suggested that the paper was cherry-picking texts to mischaracterize the mayor’s position.
After a short period, the Sentinel caved, forcing county reporter David Damron (who declined to comment for this story) to fall on his sword twice in printed apologies for his minor reporting errors, effectively forcing Damron to get quotes on how he did a disservice to his own employer and then publish them; the newspaper also deleted the texts from its server.
Task forced
From the outset, Jacobs and the county commission made clear that they would rather see proposed sick-time mandates handled at a state level than have the onus of enforcement put on the county. This year in the state Legislature, that task was achieved in a manner that couldn’t have seemed better choreographed. State Rep. Steve Precourt, R-Orlando – who is seen in public records telling Commissioner Scott Boyd that he’s “here to support you guys” on the issue via text message – and Sen. David Simmons, R-Altamonte Springs, each presented local pre-emption bills this legislative session, both having the full support of the mayor. (Notably, Jacobs is the former president of the League of Counties, which boasts a core tenet of protecting local governments’ home rule.)
Precourt’s initial draft would have pre-empted living-wage requirements, presently enforced in both Orlando and Miami-Dade County, in addition to mandatory sick leave. Simmons’ bill stuck with the sick-time motif, guaranteeing only unpaid sick days. In the end, House Bill 655 passed both houses on a compromise – it would merely prevent municipalities from mandating benefits from private businesses.
The mediating caveat of the bill was the addendum of an “employer-sponsored benefits study task force.” That 11-person board – which is supposed to be organized by Sept. 1 – is tasked with measuring the effects of statewide pre-emption on benefits and reporting them to the Senate president and House speaker by Jan. 15, 2014. Porta and Organize Now submitted a list of 11 nominees for the task force (which must include two legislators, two small-business owners, two large-business owners, a physician and an economist), but none of their picks has yet been contacted. (Porta says Simmons’ office assured her that he recommended her selections.)
For Porta, the task force is a superfluous gesture, especially considering that pre-emption shouldn’t have even been necessary. The county charter would have allowed municipalities within Orange County to opt out; also, the policy would have come up for review after just one year.
“They fought this hard to prevent there being sick time for even a moment,” she says.
Riding out the clock
After the county blocked Citizens’ referendum from making the ballot, the group sued. In November, at a case-management conference, Citizens attorney Tom Shults complained that the county was dallying in both the methods and timing of its response to public-records requests for information from personal and county-issued electronic devices. He spoke of a “spider web of devices being delivered to who knows who and who knows where. … It’s going to turn into a really huge mess,” referring to the fact that the county had yet to settle on a universal method of retrieving deleted texts.
Since then, more texts have rolled out – in May, Circuit Judge Robert J. Egan vowed to review all of the released records privately, which will likely result in the actual trial being pushed back until next year. But the clock is running down on full retrieval of information, Shults says, and the reports he has so far received seem incomplete.
“It may be that the phones were turned in too late to prevent degradation of the information on the phone, especially degradation of what was deleted from the phone,” he says. “That was and still is a major concern. We feel that the county did not act quickly enough.”
For the duration of the sick-time conundrum, the county has made it a policy not to act quickly enough – to ride it out, to miss the ballot deadline, to let the state deliver the “kill shot” with pre-emption legislation, as Orange County Republican Executive Committee Chairman Lew Oliver notoriously texted to Commissioner Ted Edwards in September. In fact, Oliver all but instructed the commissioner to “kick this confusing little can down the road past the 18th [of September],” which would make it too late for the ballot. “I believe the mayor is relieved to see a continuance even if she doesn’t say so publicly,” Oliver continued. “She advised me last night to make sure continuance – if there is one – goes BEYOND the 18th.”
In fact, even before the Sept. 11 hearing, most of the commissioners had reportedly been lobbied into issuing statements that they wanted to wait the maximum amount of time (30 days) before holding a public hearing. When the courts initially called the county on its intentional delay, the county was given several weeks to review the ruling, thus rendering the ballot initiative moot. The county delayed and delayed to ensure that the business interests would win by default.
“I think it’s a relevant fact that what the commission was trying to do was not legitimate and was not lawful,” Shults says. “And at the same time they’re receiving all of these texts, many of which they chose to delete. Is there a connection between the inappropriateness of the delay and unlawfulness of the texts they received? I think it’s a valid question.”
