The Mayor’s Response to
DeBary City Staff’s Charges of Charter Violations
And Attempt to Remove the Mayor
The DeBary staff has distorted the words of the DeBary city charter and ignored the First Amendment to the United States Constitution, trying to convince the Council to find the Mayor guilty of charter violations and remove him from office. It says that eight of the Mayor’s communications – emails, text messages, twitter posts – constitute charter violations serious enough to warrant such a penalty. The Mayor, in these communications, either requests information or documents, or he publicly criticizes the staff’s performance, sometimes naming those he believes should be fired. The staff, by filing these charges, threatens the Council’s independence, perhaps to discourage future Council Members from asking embarrassing questions or speaking publicly on embarrassing topics.
Contrary to the staff’s distorted interpretation, charter section 4.04(a), does not cripple a Council Member’s access to information or right to speak publicly. It provides as follows:
Neither the Council, nor any individual member of the Council, shall in any manner dictate the employment or removal of any employee other than the City Manager and City Attorney, but the Council may express its views and fully and freely discuss with the City Manager anything pertaining to the appointment or removal of such officers or employees. No individual member of the Council shall give orders to any officer or employee of the City. Recommendations for improvements in the City government operations shall come through the City Manager, but each member of the Council shall be free to discuss or recommend improvements to the City Manager, and the Council is free to direct the City Manager to implement specific recommendations for improvement in the City government operations.
Section 4.04 authorizes Council Members to discuss matters freely with the city manager. It does not prohibit Council Members from talking to the city staff, asking questions, requesting documents, or voicing opinions, even strong opinions.
The staff claims the Mayor violated the charter by giving the staff orders and by dictating those to be hired or fired. The Mayor, however, has no power to do either. Black’s Law Dictionary defines order as a “mandate, precept; a command or direction authoritatively given….” Since he had no such power, the city staff was free to ignore the Mayor’s requests, and it did so. Similarly, since the Mayor has no authority to dictate staff hiring or firing, it ignored his staff criticisms and fired no one.
The staff, to make its case, defines the term order to mean any Council Member request, and defines employment dictate to mean any public criticism of staff performance. The staff applies these definitions only to the Mayor. Like elected officials elsewhere, other Council Members have similarly requested information and likely have expressed opinions regarding the staff. But the staff has singled out only the Mayor for removal – at least for now.
The staff’s distorted charter interpretations will inhibit DeBary’s elected officials from speaking on issues of public importance, violating their rights under the First Amendment. Fortunately, elected officials enjoy freedom of speech to the same extent as any other citizen.
Reply to Email January 11, 2016
The staff charges that the Mayor violated charter section 4.04(a) by giving staff member Eric Frankton orders in a January 11, 2016, email. The Mayor responded to Mr. Frankton’s question regarding the location of the Mayor’s Mailbox documents,telling him the documents are in the Mayor’s city hall office. He makes several requests regarding the handling of his documents. The exchange, one the staff claims violates the charter justifying removal, is as follows:
Email from Eric Frankton to Mayor Johnson:
For Patricia Stevenson’s request, I need everything put into the physical mayors mail box from 1-1-2015 to 1-8-2016. This includes “every letter, idea, note, or submission”. When can you drop them off or when can I come get them.
Also Austin Fuller requested a copy of the Patricia Stevenson Requests and any responses back and forth. I took care of that request today.
Mayor Johnson’s Reply:
To: Eric Frankton Cc: Dan Parrott
Everything has been maintained in a box on a chair in my office at city hall. Please continue advising of whoever requests copies or review. Also, please do not allow anyone unsupervised access to the documents. You can schedule a time for me to sit in if necessary. (emphases added).
Could you please forward all invoices/receipts of what the city charged to fulfill Patricia Stevenson’s many requests. (emphases added).
The Mayor merely asks Mr. Frankton to please continue his current practice, to please supervise access, a legal requirement under the public records statutes, and to please extend him the courtesy of forwarding invoices and receipts. This common, courteous exchange between DeBary officials contains no orders and constitutes neither a charter violation nor grounds for removal.
The staff includes, as evidence of the January 11 violation, text messages between the Mayor and Mr Frankton two weeks later and a twitter message from the Mayor three months later,but neither sheds much light. They show only that the Mayor expected to maintain ownership and control over his Mayor’s Mailbox documents and that his expectations were not met. The city took the Mayor’s documents, lost some, and refused to return the remainder.
Clearly, Mr. Frankton did not consider the Mayor’s requests to be orders. He took the Mayor’s documents, allowed someone unsupervised access, someone who used the opportunity to take some of the documents, and he sent no invoices or receipts.
Reply to Email February 11, 2016
The staff’s next charged violation, the Mayor’s reply email to Mr. Frankton on February 11, 2016, is little different from his January 11, email above. Here, someone, Mr. Frankton does not say who, requested any electronic communications made by the Mayor during a city commission meeting. The Mayor responds and then asks who made the request and who the staff has charged for past public record requests, and who it has not.
Email from Mayor to Eric Frankton:
I posted nothing on Facebook. I posted several tweets that are on my public timeline. I engaged in 1text message conversation that was transitory in nature providing an update on the vote of the Orange City card room and has since been deleted.
I request to see the original request for this content. If none, I’d like a copy of where this is delivered.
I also request to see all the the bills, receipts, invoices, charged to the “requestor” of every request made of me in the last 6 months. If there was no fee charged, I’d like that noted in the complete listing of requests.
Please provide an update on my other requests from last week.
Again, the Mayor politely requests information regarding matters of public concern, nothing more than an elected official doing his job. Again, Mr Frankton did not consider the Mayor’s requests to be an order; he ignored them.
Text Message April 20, 2016
This text message expresses the Mayor’s frustration at the city manager for calling a special meeting to be held that night – April 20, 2016. Both the Mayor and the city manager share the right to call special meetings under charter section 4.11. The text message reads as follows:
Cancel this crazy meeting and quit trying to burn the city before you leave.
In calling the special meeting, the city manger violated the charter and probably the Sunshine Law. The city manager wanted Council’s immediate approval to sue the Mayor for public records violations, a matter the Council had voted to postpone until May 11, 2016. The charter’s section 6.03 requires the city manager to implement such Council decisions, not countermand them. Since the Council had already set the date, the city manager was charter bound to respect the Council’s decision.
But the city manager could not wait. He wanted the city to sue the Mayor before a private individual sued him so the Mayor would not have insurance coverage. Sued by the city, the Mayor would need to pay for his defense out of his own pocket. The city manager likely violated the Sunshine Law acting as a conduit in obtaining the Council Member’s agreement to change their prior vote by sending them a deceitful email, one designed to cause them to think the Mayor would not cooperate with the city on the public records matter. We do not know whether there are other emails that would shed light on the Sunshine Law issue, since the staff has released few of the emails requested.
The charter provides Council Members are “free to discuss or recommend improvements to the City Manager.” Telling the city manager cancel that illegal meeting and stop his destructive behavior is in accordance with any Council Member’s rights under the charter. The Mayor’s tersely worded email perfectly encapsulates what the city manager was doing, burning the city, burning it by violating the charter, instigating these removal proceeding, instigating the public records lawsuit, leaving the city with a State Attorney Sunshine Law investigation, and perhaps a bribery investigation.
The city manager did not interpret the Mayor’s text as an order. He went forward with his illegally called special meeting. Any Council Member could have admonished the city manager and for his behavior, but only the Mayor did. The text is neither a charter violation nor grounds for removal.
Email May 16, 2016
Nothing illustrates the danger of the staff’s attempt to undermine DeBary’s elected officials than its attempt to claim that the Mayor’s May 16 email to the city manager violates the charter. Ms Pulver, a newspaper reporter, had sent the city staff several requests for information, wanting to know the staff’s involvement with the questionable Gemini Springs land deal. The staff planned to get publicly owned conservation land and turn it over to a private, undisclosed developer. The developer would build a high density subdivision on the conservation land in accordance with its plans, plans paid for by the city. The Gemini Springs land deal raises serious legal and ethical issues and may result in criminal charges. Yet the staff was unresponsive.
The May 16 email is as follows:
In light of this email, I would like a clear response to all of Ms. Pulver’s questions & the records mentioned prior to the public meeting on the 18th, (preferably by today) as part of my preparation and research on behalf of the residents as their elected Mayor.
To be clear, this is an inquiry to fulfill my duties, not direction to staff or a public records request.
The Mayor, like the other Council Members, needed the information requested to do his job, but the very city manager so anxious to sue the Mayor for public records was stonewalling. The Mayor’s email, almost groveling in tone, explicitly says it is not a direction to staff, certainly not an order, and the city manager did not treat it as one. He ignored the Mayor’s request.
Public Twitter Messages
May 23, 2016. May 24, 2016, May31, 2016, June 6, 2016
In the remainder of the staff’s charged violations, it claims that the Mayor’s public twitter messages stating his opinions regarding the staff’s performance, mostly regarding the questionable Gemini Springs conservation land deal, violate the section 4.04(a) charter provision denying the right of the Council or any member to “in any manner dictate the employment or removal of any employee other than the City Manager and City Attorney…” The Mayor offers his critique of staff performance and he says which staff members he thinks should leave. Nowhere does he dictate that the city hire or fire anyone, and except for the city manager who left on his own accord, all those the Mayor said should be fired remain.
The Mayor’s public twitter statements and his other communications are all protected by the First Amendment. Restricting the Mayor’s right to criticize the staff and name those that should be fired serves no legitimate interest – just the interest of the staff, allowing it to tighten its grip on power at the public’s expense.
The staff’s interpretation of the term order to mean any requestor the term dictate to mean any public criticismviolates the First Amendment. Restrictions on free speech must serve a compelling state interest, and they must be narrowly tailored to serve that interest. Assuming that a manager’s administrative control of local government serves a compelling state interest, something not free from doubt, the restrictions must be narrowly drafted and applied. Here, the restrictions are poorly drafted and the staff’s broad application, allows it to charge charter violations at will.
The Council, for its own good and for the good of DeBary’s citizens, must reject this staff attempt to remove the Mayor. Elected officials must have the tools to make policy and ensure their policies are implemented properly. The Council cannot yield all power to the staff; it cannot continue to allow itself to be ceremonially paraded before the public once a month, keeping the pretense of democracy where none exists. This Council should state the truth; the Mayor did not violate the charter.