If Amendment Four had been written into the Florida Constitution in 2001, instead of maybe going in this year, there would be two fewer pocks on the state's open-government laws.
Amendment Four is on the Nov. 5 election ballot, thanks to a pair of Pinellas County state legislators. It would require that new exceptions to Florida's celebrated "sunshine laws," which regulate public access to government records and meetings, would need the approval of least two-thirds of both legislative chambers to pass.
State Capitol staffers analyzed the proposal from Rep. John Carassas (R-Belleair) and Sen. Jack Latvala (R-Palm Harbor). They noted that the "vast majority" of the dozens of sunshine-law exemptions on the books have been enacted by greater than two-thirds of the House and Senate.
But open-government advocates believe the time has come to make a stand.
A decade ago, 83 percent of Florida voters enshrined public access to their government in the constitution. Openness advocates believe legislators need to be reminded of that.
"Every one of these bills represents an exception to the constitution," said Barbara Petersen, president of the First Amendment Foundation, the leading open-government advocate in Tallahassee.
Two loopholes drilled into the state's open-government laws just this year by legislators were illogical at best, dangerous at worst. They wouldn't have become law if Amendment Four had been in the Florida Constitution.
During the 2002 legislative session, only 45 percent of senators enacted an exemption for the insurance lobby, far below the 67 percent that would be required by Amendment Four. Another questionable favor for industry recruiters passed the House by just 57 percent.
House Bill 1355 sealed away records of state insurance examinations. State insurance examiners periodically conduct regulatory checkups of insurers to make certain, among other things, that the businesses are solvent and paying claims on time.
We have to hope that our examiners can prevent the Marty Frankels of the world from targeting a Florida insurer for the next great con. If the state doesn't, insurance company policyholders and investors lose. Plus, they won't be able to find out what, if anything, the state did to protect them.
The case of Frankel, now in prison, is not encouraging in that regard. Frankel financed his jet-setting by looting $200-million from insurers in five states while, as one congressman put it, "state insurance regulators were either too blind to see, or too unwilling to acknowledge, the scam Mr. Frankel perpetrated."
The insurance-examination loophole passed the Senate with only 18 out of a possible 40 votes. Les Miller (D-Tampa) was one of the 12 votes against it.
House Bill 777 revived a law blocking anybody outside of state government from learning if defense contractors lured to the state with taxpayer subsidies got around to filling the high-wage jobs they were supposed to provide in order to get the government support.
Again, taxpayers have to trust the state to watch out for their interests. Once again, the public has reason to be pessimistic about that happening.
Last year, state auditors found that Gov. Jeb Bush's economic development staff hadn't visited a single business to inspect payroll records and verify that employers enrolled in a similar tax subsidy program were delivering promised high-wage jobs. (See "Secret Handouts" at www.weeklyplanet.com/2001-03-14/news_feature2.html.)
The House approved the industry-subsidy secrecy with 68 of a possible 120 votes. Among those who stuck up for sunshine were Republicans Carassas, Larry Crow of Palm Harbor, Mark Flanagan of Bradenton and Nancy Detert of Venice, along with Democrats Bob Henriquez and Arthenia Joyner, both of Tampa, Sara Romeo of Lutz, and Charlie Justice and Frank Peterman Jr., both of St. Petersburg.
Another exemption passed last year, a legislative wet kiss to the nursing home industry, could prove deadly: The Legislature endorsed secrecy for reports that detail injuries to nursing home residents. Lawmakers have effectively facilitated cover-ups by nursing home operators who wish to hide their abuse of the elderly and infirm.
So don't bother with state records if you want the full picture of whether Shady Acres is a safe place for Mom after she falls down and breaks her hip at home.
"With the loss of public records access comes the loss of information that people need to make smart decisions in their lives," said Joe Adams, a newspaper editorial writer for Jacksonville's Florida Times-Union and author of a handbook on using the state's public records law.
Yet Petersen herself had doubts about the necessity for another constitutional amendment — until legislators convened this year. Following the 2001 terrorist attacks, says Petersen, "this session was different."
House and Senate members filed an unprecedented number of sunshine exemption bills. Sponsors invariably justified each by citing concerns about domestic security or personal privacy.
Some concerns appeared legitimate. Then there was the bill to delay the release of ordinarily available police records for a week if a cop deemed a terrorist threat to be in the air. When isn't there a terrorist threat these days? The bill was withdrawn shortly after it was introduced.
A coalition of news media organizations is working to solidify voter support for Amendment Four. No organized opposition to the amendment has materialized, according to Petersen.
But she is worried that Amendment Four could fall victim to a low-key, largely Republican-backed push to have voters reject all 11 amendments on the Nov. 5 ballot.
The amendments run the gamut — from the best known, the class-size reduction and indoor-smoking ban proposals, to the obscure, a prohibition on placing breeding sows in "gestation crates."
Petersen says it would be unfortunate if a more open government in Florida is sacrificed to the ease of vote-no-on-them-all. "It's already in the constitution," she said. "It's not like pregnant pigs."
Contact News Editor Francis X. Gilpin at 813-248-8888, ext. 130, or frangilpin@weeklyplanet.com.
This article appears in Oct 16-22, 2002.