In defiance of basic journalistic courtesy, The Florida Bar News recently ran an article slamming PINAC reporter Jeffrey Gray as a thuggish con artist without so much as a phone call to get his side of the story.
“I was surprised and disappointed. I really wish they would have called me,” said Gray, a soft-spoken open-records activist who has a widely watched You Tube channel and is easily found online via a basic Google-search.
The bar article focuses on Grey’s videoed open records audits of government contractors, as seen in the recently posted videos below – one depicting a compliant contractor, another featuring a contractor who refused to supply documentation required by law.
Tampa Bay attorney Abraham Shakfeh, who the article accuses of colluding with Gray in the alleged “public records shakedown” was also not contacted for comment.
“I’m concerned that the Florida Bar News would describe Mr. Gray’s enforcement of his Constitutional right to access public records as ‘A New Scam’,” said Shakfeh, in reference to the article’s title: “A new scam: Public records shakedown.”
The bar article opened with a description of Gray requesting documents from a Jacksonville nonprofit.
Strapping a video camera around his neck, Jeffrey Marcus Gray entered the offices of Lutheran Social Services of Northeast Florida on June 16, and secretly recorded conversations with employees. The room was where people in need of housing or mental health services or those suffering from AIDS waited for help.
The self-described “civil rights activist” said he only wanted to document his request for public records, and when Gray claimed he was denied those public records, he filed a lawsuit against the nonprofit corporation two weeks later, on July 1.
But Fourth Circuit Judge Jack M. Schemer called Gray’s actions “a baiting gesture meant to achieve personal financial gain; not a legitimate request for public records,” and “nothing more than a scam.”
In reaction to news of the public records shakedowns of business owners who contract with state and local governments, Sen. Wilton Simpson, R-Trilby, and Rep. Halsey Beshears, R-Monticello, filed Senate Bill 224 and House Bill 163.
Rep. Halsey Beshears “Many Florida business owners contract with and perform services for public agencies,” Simpson said. “Over the summer, I learned that across Florida, individuals are approaching some of these businesses to make public records requests for only one purpose: creating confusion for the business owners that leads to frivolous lawsuits to obtain cash settlements.”
Simpson called details uncovered by the FCIR “deeply troubling.”
“I am an unwavering supporter of comprehensive public access laws, so citizens can hold their government accountable,” Simpson said. “In these cases, though, it is clear that the rights of private citizens and hardworking business owners are being trampled by some unscrupulous people bent on getting rich off a new scam.”
The bar’s lack of effort to get Gray’s side of the story is not surprising, given the article’s unquestioning stance toward proposed legislation that would make it easier for private businesses with lucrative government contracts to restrict access to public documents without consequence.
Twenty-one of the article’s twenty-two paragraphs portray open-records requests to government contractors as Florida’s latest get-rich-quick-scheme. Only in the very last paragraph is the question of First Amendment rights tacked on as a brief afterthought.
Public access to government contractors’ records has long been a non-negotiable under Florida’s famously liberal open records laws. Part of the contractors’ financial compensation is intended to ensure compliance with these laws. In 2013 changes to the law solidified and clarified the obligations of government contractors under open records laws.
Gray has been spot-checking compliance with the law by showing up at government contractors’ offices and asking to review documents – either the signature page of the contract, or the insurance policy.
But now, just over a year after the new law took effect, Florida’s second richest state senator Wilton Simpson, R-Trilby, has proposed a bill that would create a greater threshold for proving noncompliance. Rep. Halsey Beshears, R-Monticello, has introduced an identical bill in the house.
The bill, which you can read here, would make it harder to prevail against a noncompliant contractor by requiring a certified letter to be sent to the public records custodian five days prior to filing suit for non-compliance, and by requiring a factual finding by a judge that non-compliance was in bad faith or willful.
“Try to put yourself in the shoes of the Regular Joe who’s trying to get information from contractors,” said Boca Raton attorney Warren Redlich, who wrote a letter to the bar decrying the article on Gray.
“It’s not about Jeff or money. It’s about the regular citizen trying to get information and getting the run-around. That’s what matters.”
Simpson amassed his wealth as an egg farmer and through his mold and asbestos removal company Simpson Environmental Services, which has benefitted handsomely from government contracts, raking in nearly $10 million in tax dollars, according to this public records aggregator.
But despite his overwhelming success on the taxpayer’s dime, Simpson railed against the minuscule settlements Gray sometimes receives and feels the need to narrow access to businesses like his own, telling the Florida Bar News “the rights of private citizens and hardworking business owners are being trampled by some unscrupulous people bent on getting rich off a new scam.”
Joel Chandler of Florida Open Government Watch, who works with Gray to conduct public records audits of Florida government contractors, scoffed at the notion that anyone would engage in First Amendment activism for the cash.
“To suggest that this is a money-making venture is simply absurd,” Chandler said. “When I started this I had a sailboat, a power boat, a collection of guitars. I was living the American dream. I don’t have a pot to piss in today. I just filed for bankruptcy.”
Redlich actually turned Gray down as a client due to the lack of profitability.
“He contacted me and I said I don’t do cases that small,” he said. “What lawyer is making a living doing these cases at $2,500 a pop? No one’s doing this for money. They want to make sure government officials and contractors are in compliance with the law.”
Gray has a standard settlement agreement for noncompliant companies that do not wish to go to trial. He asks for a meager $2,500 financial settlement, compliance with the law, records training for employees, and that copies of the Florida Sunshine Law be placed in the lobby. The settlement amount covers costs and is split between Gray and an attorney.
In an order, which you can read here, denying Gray’s public records claim, Duval County Circuit Judge Jack M. Schemer interpreted the settlement arrangement to allege illegal fee-sharing between Gray and Shakfeh, claiming that they used the term “settlement proceeds to mislabel any monetary distribution against them.”
While sharing attorney fees with a non-attorney is not permitted, a settlement is not the same as attorneys’ fees. Shakfeh and Gray have never taken a case to trial prior to the case that Schemer ruled on, and have never been awarded any attorney fees to be accused of sharing.
The controversy around public records claims as a money-making scheme originated with allegations against Citizens Awareness Foundation, a now defunct open records organization. Chandler quit a $120,000-a-year job with the foundation after five months due to ethical problems he had with the O’Boyle Law Firm, which represented the foundation.
The O’Boyle firm is currently under investigation by the Florida Bar for their noncompliance lawsuits against public and private entities.
Gray terminated his relationship with the O’Boyle Firm after becoming concerned about their ethical practices. He had no affiliation with the Citizens Awareness Foundation beyond attending one public seminar offered by the organization. But he was painted with the same brush in the bar article due to the excoriating order penned by Judge Schemer, which labeled Gray as “a self-described ‘civil rights activist’ who earns part of his livelihood by making public records requests for unwanted documents on unsuspecting private entities.”
Schemer ruled against Gray, calling his attempt to gain access to the records of government service contractor Lutheran Social Services “nothing more than a scam” and criticizing Gray for not providing contact information, not giving advance notice to the agency and for the request being “needless.” Showing a need, calling ahead or providing background information are not required for access under Florida Open Records Laws. Failure to do these things are not a basis for denying a request.
While Lutheran Social Services is portrayed as a do-gooder, nonprofit victim in the bar article and the judge’s order, the organization has a documented history of compliance issues. Last year, the organization was terminated as a member of Feeding America, the national network of food banks after more than a decade of noncompliance in inventory control, record-keeping and facility issues, according to a Jacksonville news article.
Gray is appealing the judge’s decision, which glosses over the fact that government contractors, such as Lutheran Social Services, are required to provide access to records deemed public by law, and that the non-profit organization failed to comply with this basic, non-negotiable obligation of taking contracts from the state.
In fact, Schemer seems primarily concerned with protecting businesses who run afoul of open records laws, writing: “If a private entity must pay an attorneys fee each time an agent denies a needless request, private entities may not be as willing to contract with the state of Florida…Private entities might discontinue bidding on these contracts. The chilling effect could be disastrous to the state.”
Schemer evidently thinks it makes rational economic sense that a couple of grand in fees for being noncompliant with the law could deter private businesses from taking government contracts worth thousands and millions of dollars. He failed to suggest the easiest, cheapest solution – simply making sure that contractors filling their coffers with tax dollars are in compliance with the law.
Gray showed up to Lutheran Social Services last June during normal business hours wearing a camera and requesting basic documents required to be public under the law. He was denied the request and told to seek the document from the Department of Children and Family Services. Shortly afterwards, Gray filed suit.
While the judge considered the camera to be an intimidation tactic, Chandler said that not only did he have the constitutional right to film in a public place, but that the camera was a necessary tool and protection.
“In my experience defendants have a problem with the truth,” he said. “I’ve had people say I was never there, I’ve had people accuse me of being violent.”
Chandler said that ensuring compliance from government contractors is essential to combat fraud and the sort of governmental boondoggling that drains the public funds. He believes the Florida Bar article is mistaken about who the real scammers are.
“All this is was the Florida bar carrying water for attorneys who represent government contractors who have been caught ripping off the taxpayers,” he said, referring to the contractors’ financial obligation to maintain and provide records. “That is the scam the bar should be talking about.”
As an attorney, Redlich took offense at the slanted nature of the state’s professional and licensing organization, which encompasses all attorneys, not just the one representing big business.
“I’m a member of bar. Really this is what I pay my dues for? To have somebody do a hatchet job?” he said.
“I’m disappointed in Florida Bar and Florida Bar News, to whom I pay dues, that they did such a one-sided article without getting both sides of the issue.”