Associated Press versus Florida Governor Rick Scott

The Florida Society of News Editors, the Associated Press and others are suing Gov. Rick Scott and members of the Florida Cabinet violated sunshine laws by using staff members as conduits to discuss the ouster of Florida Department of Law Enforcement chief Gerald Bailey. #sunshinelaw
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CABINET polled discussed FLORIDA SUNSHINE Law Defendant SCOTT force resign member
About Jack Berlin

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CABINET polled discussed FLORIDA SUNSHINE Law Defendant SCOTT force resign member
IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT 
IN AND FOR LEON, FLORIDA 
 
MATTHEW WEIDNER,  
THE ASSOCIATED PRESS,  
CITIZENS FOR SUNSHINE, INC., and 
THE FLORIDA SOCIETY OF  
NEWSPAPER EDITORS, INC., 
 
 
 
Plaintiffs, 
 
v. 
 
 
 
 
 
 
 
CASE NO.:   
 
RICK SCOTT, and THE FLORIDA CABINET, a 
joint collegial body, 
 
 
 
Defendants. 
________________________________________/ 
 
COMPLAINT SEEKING 
DECLARATORY AND INJUNCTIVE RELIEF 
 
 
Plaintiffs, MATTHEW WEIDNER, THE ASSOCIATED PRESS, CITIZENS FOR 
SUNSHINE, INC., and THE FLORIDA SOCIETY OF NEWSPAPER EDITORS, INC., sue 
Defendants, RICK SCOTT and THE FLORIDA CABINET, a joint collegial body, and alleges: 
Introduction 
 
This action seeks a declaration that the Florida Cabinet is subject to the Sunshine Law 
when cabinet aides seek to act for and exchange information among Cabinet members as to 
decisions about hiring and firing the head of the Florida Department of Law Enforcement.  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 
Filing # 23326580 E-Filed 02/03/2015 05:01:59 PM
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minutes being taken.  Because the Governor appears to justify this conduct by claiming it is part 
of a longstanding convention and tradition, Plaintiffs also seek injunctive relief. 
JURISDICTION 
1. 
This Court has jurisdiction pursuant to Art. I, Sec. 24(b), Fla. Const.; Art. V, Sec. 
20(c)(3), Fla. Const.; Â§ 26.012(2)(e) and (3), Fla. Stat.; Â§ 86.011; Â§ 286.011(4), Fla. Stat.; and 
Rule 1.610, Fla. R. Civ. P.  
2. 
Venue lies in Leon County, Florida, because the acts for which suit is brought 
have occurred or are occurring in Leon County, Florida, and the Defendants are located within 
Leon County, Florida. 
PARTIES 
3. 
Plaintiff, Matthew Weidner (â€œWeidnerâ€), is a citizen within the State of Florida 
within the meaning of Â§ 286.011, Florida Statutes.  Weidner has an interest in his government 
operating in compliance with Floridaâ€™s open-government laws under Art. I, Â§ 24, of the Florida 
Constitution, and Chapter 286, Florida Statutes.  The Sunshine Law vindicates a public policy 
and the interests of Weidner lies in protection of Floridaâ€™s open government laws.   
4. 
Plaintiff, The Associated Press (â€œAPâ€), is a news cooperative organized under the 
Not-for-Profit Law of New York and owned by its 1,500 U.S. newspaper members. The APâ€™s 
members and subscribers include the nations newspapers, magazines, broadcasters, cable news 
services and Internet content providers. The AP operates from 300 locations in more than 100 
countries. On any given day, the APâ€™s content can reach more than half the worldâ€™s population. 
5. 
Plaintiff, Citizens for Sunshine, Inc., (â€œCitizensâ€), is a Florida Not-for-Profit 
Corporation organized and existing under the Laws of Florida.  The purpose and mission of 
Citizens is to promote and enforce compliance with Floridaâ€™s open-government laws under Art. 
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I, Â§ 24, of the Florida Constitution, and chapters 119 and 286, Florida Statutes.  Since 2008, 
Citizens has been involved in numerous legal actions in the trial and appellate courts throughout 
the State of Florida, both as a party and as amicus curiae.  The Sunshine Law vindicates a public 
policy and Citizensâ€™ interests lie in protection of Floridaâ€™s open government laws.  
6. 
The Florida Society of News Editors (â€œFSNEâ€), is a membership organization that 
seeks to advance the cause of responsible journalism through educating the public about relevant 
stories and publications around the state. 
7. 
Defendant, RICK SCOTT, is the Governor of the State of Florida, and a voting 
member of and chair of the Florida Cabinet. 
8. 
The Florida Cabinet (â€œCabinetâ€), is composed of the Attorney General, the Chief 
Financial Officer, and the Commissioner of Agriculture and is a joint collegial body or board 
within the meaning of Art. I, Â§ 24(b), Fla. Const., and Â§ 286.011, Fla. Stat.  In his capacity as 
Governor of the State of Florida, Defendant SCOTT is a voting member of the Cabinet. 
FACTS 
9. 
At all times material, the Defendants knew that Floridaâ€™s Government-in-the-
Sunshine-Law, codified in Art. I, Â§ 24(b), Fla. Const., and Â§ 286.011, Fla. Stat., (â€œthe Sunshine 
Lawâ€), prevented members of the Cabinet from discussing any matter that was reasonably 
foreseeable to come before the Cabinet unless: i) advance notice to the public was given; ii) an 
opportunity was provided for the public to attend; and iii) minutes were taken of the proceedings. 
10. 
The Florida Department of Law Enforcement (â€œFDLEâ€) is headed by the 
Governor and the Cabinet. See Art. IV, Â§ 4(g), Florida Constitution, and Â§ 20.201(1), Florida 
Statutes. 
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11. 
The executive director or Commissioner of FDLE is appointed by the Governor 
with the approval of three members of the Cabinet and subject to confirmation by the Senate.  
See Â§ 20.201(1), Florida Statutes. 
12. 
The executive director or Commissioner of FDLE serves at the pleasure of the 
Governor and the Cabinet. See Â§ 20.201(1), Florida Statutes. 
13. 
â€œTo serve at the pleasureâ€ is statutorily defined as the appointee serves in the 
office â€œuntil removed by the appointing authority.â€  See Â§ 20.03(13), Florida Statutes. 
14. 
Sometime between November 5, 2014, and December 16, 2014, Defendant 
SCOTT intended to fire Gerald Bailey, then the executive director and Commissioner of FDLE.  
15. On December 16, 2014, using an aide, Defendant SCOTT told Commissioner 
Bailey to resign or be fired before 5 p.m. that same date (â€œthe forced resignationâ€).  
16. 
Commissioner Bailey was told that members of the Cabinet had agreed to 
Defendant SCOTTâ€™s intention to fire him and replace him with another individual. 
17. 
Between December 16, 2014 and January 13, 2015, aides to Defendant SCOTT, 
polled, discussed and exchanged communications with aides to other members of the Cabinet 
(â€œthe conduitsâ€) relating to the forced resignation and replacement of the FDLE Commissioner. 
18. At all times material, the conduits were acting with delegated or apparent 
authority to communicate on behalf of Defendant Scott and the members of the Cabinet. 
19. 
The polling, discussions and communication exchanges among the conduits 
included, but was not limited to, statements that Commissioner Bailey decided to resign and 
expressed the desire of Defendant SCOTT to replace Commissioner Bailey with Rick 
Swearingen. 
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20. 
The conduits, through their polling, discussions and communication exchanges 
with each other, Defendant SCOTT and members of the Cabinet, discussed whether members of 
the Cabinet objected to the appointment of Rick Swearingen as the new FDLE Commissioner. 
21. 
The conduits, through their polling, discussions and communication exchanges 
with each other, Defendant SCOTT and members of the Cabinet, expressed the approval of or 
non-objection by Cabinet members to Defendant SCOTTâ€™s unilateral decision to replace 
Commissioner Bailey with Rick Swearingen. 
22. At the time the conduits engaged in the polling, discussions, and communications 
with each other, Defendant SCOTT and members of the Cabinet, Defendants knew that the issue 
of any forced resignation and replacement of the FDLE Commissioner was required to come 
before the Cabinet for a vote. 
23. At the time of the conduct and actions in paragraphs 14 through 22, Defendants 
knew that the polling, discussions, communications and exchanges between the conduits, 
Defendant SCOTT, and members of the Cabinet were not noticed in advance to the public. 
24. At the time of the conduct and actions in paragraphs 14 through 22, Defendants 
knew that the polling, discussions and exchanges between the conduits, Defendant SCOTT, and 
members of the Cabinet did not provide an opportunity for the public to attend. 
25. At the time of the conduct and actions in paragraphs 14 through 22, Defendants 
knew that no minutes of the polling, discussions and exchanges were being taken. 
26. At a duly noticed meeting on January 13, 2015, Defendant SCOTT and the 
Cabinet met and ceremonially appointed Rick Swearingen as Commissioner of FDLE without 
any debate, inquiry or discussion. 
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27. 
Plaintiffs have a right to attend any meeting, discussion or communication 
exchange between two or more members (or their authorized delegates) of the Cabinet involving 
any matter that is reasonably foreseeable to come before the Cabinet. 
COUNT I 
28. 
Plaintiffs repeat paragraphs 1 through 27 as if fully set forth herein. 
29. 
This is an action against the Defendants for violations of the Sunshine Law under 
Art. I, Â§ 24(b), Fla. Const., and Â§ 286.011, Fla. Stat. 
30. 
The forced resignation and replacement of the executive director or 
Commissioner of FDLE is a matter that legally requires the approval of the Cabinet.  
31. 
The polling, discussions, communications and exchanges conducted prior to the 
January 13, 2015, meeting of the Cabinet relating to the forced resignation and replacement of 
the FDLE Commissioner constitute a de facto meeting of the Cabinet.  
32. 
The polling, discussions, communications and exchanges conducted prior to the 
January 13, 2015, meeting of the Cabinet relating to the forced resignation and replacement of 
the FDLE Commissioner concerned a matter that was reasonably foreseeable to come before the 
Cabinet for official action. 
33. 
The polling, discussions, communications and exchanges conducted prior to the 
January 13, 2015, meeting of the Cabinet relating to the forced resignation and replacement of 
the FDLE Commissioner violated the Sunshine Law because they were not noticed in advance to 
the public. 
34. 
The polling, discussions, communications and exchanges conducted prior to the 
January 13, 2015, meeting of the Cabinet relating to the forced resignation and replacement of 
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the FDLE Commissioner violated the Sunshine Law because the public had no opportunity to 
attend. 
35. 
The failure to take minutes of the polling, discussions, communications and 
exchanges conducted prior to the January 13, 2015, meeting of the Cabinet relating to the forced 
resignation and replacement of the FDLE Commissioner violated the Sunshine Law. 
36. 
Plaintiffs have retained the undersigned to represent them in this action. 
37. 
Plaintiffs are entitled to recover attorneysâ€™ fees and costs in connection with this 
proceeding. 
WHEREFORE, Plaintiffs request the following relief: 
A. 
A declaration that all unnoticed discussions and exchanges, including the polling, 
conducted prior to the January 13, 2015, meeting of the Cabinet relating to the forced resignation 
and replacement of the FDLE Commissioner violated the Sunshine Law; 
B. 
A declaration that the failure to provide the public with the opportunity to attend 
the unnoticed discussions and exchanges conducted prior to the January 13, 2015, meeting of the 
Cabinet relating to the forced resignation and replacement of the FDLE Commissioner violated 
the Sunshine Law; 
C. 
A declaration that the failure to take minutes of the unnoticed discussions and 
exchanges, including polling, conducted prior to the January 13, 2015, meeting of the Cabinet 
relating to the forced resignation and replacement of the FDLE Commissioner violated the 
Sunshine Law; 
D. 
Reasonable costs and attorneysâ€™ fees imposed against the defendants pursuant to Â§ 
286.011(4), Fla. Stat.; and 
E. 
Such other relief as may be just and proper. 
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COUNT II 
38. 
Plaintiffs repeat paragraphs 1 through 27 as if fully set forth herein. 
39. 
This is an action against the Defendants for injunctive relief under Â§ 286.011, Fla. 
Stat. 
40. Defendant SCOTT has made statements to the media suggesting that the practice 
of Cabinet aides engaging 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 is part of a longstanding convention, practice, policy or 
custom (â€œthe longstanding practiceâ€). 
41. 
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. 
42. 
Plaintiffs have no adequate remedy other than an injunction to prohibit 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. 
43. An injunction serves the public interest as the Sunshine Law promotes a public 
policy of the highest order and is a constitutional right enjoyed by all citizens in the State of 
Florida. 
44. 
Plaintiffs have a substantial likelihood of success on the merits of whether 
allowing Cabinet aides to engage in polling, discussions and communications about 
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appointments required to be made by the Cabinet violates the Sunshine Law and relaying the 
results of those exchanges back to Cabinet members prior to a Cabinet meeting. 
WHEREFORE, Plaintiffs request the following relief: 
A. 
A permanent injunction enjoining Defendants, their aides, agents, attorneys and 
representatives, from engaging 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; 
B. 
Reasonable costs and attorneysâ€™ fees imposed against the defendants pursuant to Â§ 
286.011(4), Fla. Stat.; and 
C. 
Such other relief as may be just and proper. 
 
 
 
 
 
 
Respectfully submitted, 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
/s/ Andrea Flynn Mogensen_________________ 
Andrea Flynn Mogensen, Esquire 
Fla. Bar. No. 0549681 
Law Office of Andrea Flynn Mogensen, P.A. 
200 S. Washington Blvd., Ste. 7 
Sarasota FL 34236 
Tel: 941.955.1066 
Fax: 941.866-7323 
Primary: amogensen@sunshinelitigation.com 
Secondary: mbarfield@sunshinelitigation.com 
 
 
 
 
 
 
 
Counsel for Plaintiffs