When a Florida Keys city council stalled over a controversial issue, a politician in a doctor’s coat appeared at a video conference call and cast the deciding vote from his hospital bed.
Now the process that led to that vote is under investigation for possible violations of the Public Gatherings Act.
This is the second investigation in as many months by the Monroe Attorney’s Office into possible violations of the Public Gatherings Act by the five-member Islamorada Village Council, which oversees an area of the Middle Keys best known for its sport fishing and sunsets is.
The council is already under criminal investigation over the village’s behind-closed-doors deal that allowed its municipal attorney to resign in May with a $185,000 settlement. The Council unanimously approved this agreement without discussion of its details and placed the vote on the agenda of a regular session while the session was in progress and without prior public notice.
Now prosecutors are investigating whether elected officials violated the Florida government’s Sunshine Act just before they voted to give garbage giant Waste Management a nearly 8% annual rate hike and its 2018 contract with the village to change that capped the annual rate increases to 3%.
The Sunshine Law prohibits elected officials from discussing matters brought to their attention outside of a public gathering.
Monroe County Attorney Dennis Ward confirmed this week that his office opened the village council’s second Sunshine Law investigation into the Aug. 25 meeting, but declined to comment further on the case.
The first investigation – into the departure of former village attorney Roget Bryan – is underway, Ward said.
The possible violations of the Open Assembly Act related to the latest investigation are rooted in how the vote to increase the garbage collection rate was conducted and in conversations that took place during the short break in the session.
Only four council members were present at the meeting and the other, Mayor Pete Bacheler, was listening on the phone from his hospital bed, where he was being treated for an undisclosed illness. Council members had decided early in the session that he would not vote on any of the issues that came before the podium that evening.
But after a vote to simply call the hike into question fell 2-2, Councilor David Webb, who supported the hike and was frustrated by the impasse, requested and was granted an adjournment of the session. He asked for five minutes, but the break lasted almost 25 minutes.
When it came back to session, Bacheler appeared via video conference from his hospital bed and said he was ready to vote.
“I don’t like 2-2 votes, folks,” he said, lying on his back in a hospital gown. He said he raised the matter with acting village solicitor John Quick, who told him he could vote.
Rather than asking the question again, Webb instead directly requested a vote on the increase itself. Bacheler, along with Webb and Councilor Mark Gregg, voted in favour. The measure is passed.
“So they found a way to get a third vote — Pete Bacheler, in a hospital gown, from a hospital bed, casting a deciding vote. David Webb asks the question again, Mark Gregg supports it, Pete votes yes and Waste Management wins by a vote of 3-2,” the Islamorada Community Association, a local government monitoring group, wrote in its newsletter on Wednesday.
None of the five council members responded to questions submitted by the Miami Herald about the meeting.
Vice Mayor Henry Rosenthal, who spoke out vehemently against the rate hike, and Councilor Buddy Pinder were the no votes.
But before the meeting was called back into session and the livestream resumed on the village’s website, those present in person photographed Webb on the podium as he spoke with Rosenthal. Another person at the meeting filmed a video of Webb continuing to speak to Rosenthal on the podium.
The photo was included in the Islamorada Community Association newsletter. The video was obtained by the Miami Herald. Referring to the conversation, the group writes that Webb “is beginning to intimidate Henry about the issue at hand — an increase in garbage disposal fees.”
The Miami Herald could not independently verify what the men discussed. Under the Sunshine Law, they would be prohibited from discussing the solid waste collection quota with each other without the assembly being restored to order.
But the vote, which came so soon after she returned to the podium, raises questions about her conversation and whether other council members discussed the issue privately, Robert Jarvis, a professor in Nova Southeastern University’s College of Law, told the Miami Herald.
“I think it’s pretty clear that this is a Sunshine breach, and a pretty serious Sunshine breach at that,” Jarvis said. “Were there threats, bribes, promises? Who knows how the conversation went.”
Quick, the village attorney, denied knowing of possible violations of the Sunshine Law or the existence of a prosecutor’s investigation.
“I am not aware of any Sunshine breach that occurred during the meeting. I am also not aware of any investigation by the SAO related to the August 25 meeting,” Quick said in an email to the Miami Herald on Wednesday.
The tariff increase was on the agenda at Waste Management’s request because its cost of doing business in all of the communities it serves has risen significantly over the past year due to inflation and increased labor and fuel costs, Village Manager Ted Yates said.
Yates said he had told waste management negotiators he would recommend that the village council approve a 10 per cent increase in the rate – the 3 per cent increase in the existing contract plus an additional 7 per cent. The company had asked for a 14% increase on top of the existing 3%.
After the vote, Islamorada residents’ annual trash fees have increased from about $445 to about $490.
Rosenthal said he wasn’t convinced the rate was justified, even if the company’s costs had increased.
“I understand that everyone goes through difficulties. I understand. We’re dealing with it. But not everyone has the luxury of calling someone and telling them to save us. People have mortgages. Try to get out of your mortgage at the bank,” Rosenthal said.
Responding to critics of the increase, who noted that Waste Management was a statewide company with more than $14 billion in revenue, Webb said it still needs to raise rates to make a profit.
“You can still be a $14 billion company and still lose money,” he said.