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Media, Open-Government Groups Seek Answers On Bailey Ouster

Rick Scott
The Office of Governor Rick Scott
The Office of Governor Rick Scott

TALLAHASSEE, Fla. — Media organizations and open-government advocates are upping the pressure on Gov. Rick Scott and the Florida Cabinet, filing a lawsuit that alleges the handling of the forced resignation of the state's top law-enforcement officer violated the Sunshine Law and calling for an independent investigation.

The two separate moves came ahead of a Thursday meeting in Tampa, where Scott, Agriculture Commissioner Adam Putnam, Chief Financial Officer Jeff Atwater and Attorney General Pam Bondi are set to discuss new steps for hiring and reviewing agency heads.

Filed by the Associated Press, the Florida Society of Newspaper Editors, Citizens for Sunshine and St. Petersburg attorney Matthew Weidner, the lawsuit focuses on conversations between Scott's staff and aides for other Cabinet members concerning the ouster in December of former Florida Department of Law Enforcement Commissioner Gerald Bailey. The staff discussions were a way for Scott to work around the state's open-meetings laws, the suit contends.

"The governor violated the Sunshine Law by using conduits to engage in polling, discussions, communications and other exchanges with other members of the Cabinet regarding his unilateral decision to force the resignation of the FDLE commissioner and appoint a replacement without any notice to the public, without any opportunity for the public to attend, and without any minutes being taken," says the lawsuit, filed late Tuesday.

In a "frequently asked questions" document sent to the news media and a series of follow-ups, the Scott administration has outlined some of the discussions between the governor's staff and the offices of the other Cabinet members. Scott's office has denied that the discussions about Bailey violated state law.

"It has been a longstanding convention for governor's staff to provide information to Cabinet staff," said one answer. "This was the same process the Cabinet staff followed in respect to Gerald Bailey."

The groups suing Scott and the Cabinet say those kinds of statements show the need for the courts to also issue an injunction barring similar conversations in the future.

"Plaintiffs would suffer irreparable injury if defendants continue the longstanding practice of violating the Sunshine Law by allowing Cabinet aides to engage in polling, discussions and communications about appointments required to be made by the Cabinet and relaying the results of those exchanges back to Cabinet members prior to a Cabinet meeting," the lawsuit says.

Meanwhile, the Tallahassee-based First Amendment Foundation wrote a letter to Bondi asking for a special prosecutor to look into whether the Sunshine Law was violated. (The News Service of Florida is a member of the foundation.)

"Only a prosecutor with the authority to subpoena witnesses and documents can adequately investigate this matter," wrote Barbara Petersen, the foundation's president, in a letter dated Wednesday. "However, that prosecutor must be perceived as entirely objective. A prosecutor outside of Leon County — one who does not reside and work in the same town as those under investigation — should be appointed. Otherwise, public confidence in the investigation itself will be compromised."

The decision to push out Bailey has sparked perhaps the most serious crisis Scott has faced in his four years as governor. He and the Republican Cabinet members have clashed about what the Cabinet members were led to believe about Bailey's departure.

Scott initially said the commissioner resigned from the post. But Bailey, who has only publicly commented to the Miami Herald/Tampa Bay Times Tallahassee bureau, has said, "I did not voluntarily do anything."

The governor has signaled that he would like to make other changes at agencies under Cabinet control, perhaps starting as soon as Thursday. Scott is calling for the Cabinet to begin the process of possibly removing at least three agency heads: Insurance Commissioner Kevin McCarty, Office of Financial Regulation Commissioner Drew Breakspear and Department of Revenue executive director Marshall Stranburg.

Putnam and Atwater have said that they will not discuss additional leadership changes until the hiring process is revamped.

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