A Florida Keys politician voted from his hospital room. Now there’s an investigation

When a Florida Keys town council gridlocked over a controversial issue, a politician draped in a medical gown showed up on a video conferencing call and cast the deciding vote from his hospital bed.

Now the proceedings leading up to that vote are under investigation for possible open-meetings law violations.

This is the second investigation in as many months by the Monroe State Attorney’s Office into possible open-meetings law violations by the five-member Islamorada Village Council, which oversees an area in the Keys best known for its sports fishing and sunsets.

The council is already under criminal investigation over the village’s closed-door negotiated deal that allowed its municipal attorney to resign with a $185,000 severance package in May. The council unanimously approved that agreement without any discussion on its details and placed the vote on a regular meeting’s agenda as the meeting was in progress and without prior public notification.

Now, state attorney investigators are looking into whether the elected officials violated Florida’s Government in Sunshine law moments before they voted to give solid waste giant Waste Management an almost 8% annual rate increase, amending its 2018 contract with the village that capped yearly rate increases at 3%.

The Sunshine Law prohibits elected officials from discussing matters that come before them outside of a publicly noticed meeting.

Monroe County State Attorney Dennis Ward confirmed this week that his office opened the second Sunshine Law investigation into the village council regarding the Aug. 25 meeting, but declined to comment further on the case.

The first investigation — regarding former village attorney Roget Bryan’s departure — is ongoing, Ward said.

The potential open-meetings law violations surrounding the latest investigation are rooted in how the vote on the garbage collection rate increase was taken and conversations that took place while the meeting was in a brief recess.

Only four council members were present at the meeting, and the other, Mayor Pete Bacheler, was listening in by phone from his hospital bed where he was being treated for an undisclosed ailment. Council members had decided at the outset of the meeting that he would not be voting on any of the matters that came before the dais that night.

But, after a vote simply to call the rate increase to question failed with a 2-2 tie, Councilman David Webb, who was in favor of the increase and frustrated at the impasse, requested and received a break in the meeting. He asked for five minutes, but the recess lasted for almost 25 minutes.

When it came back in session, Bacheler appeared via video conference call from his hospital bed saying he was ready to vote.

“I don’t like 2-2 votes, guys,” he said, lying on his back dressed in a hospital gown. He said he discussed the matter with acting village attorney John Quick, who told him he could vote.

Instead of calling the question again, Webb instead went right into calling for a vote on the increase itself. Bacheler voted in favor of it along with Webb and Councilman Mark Gregg. The measure passed.

“So, they figured out a way to get a third vote — Pete Bacheler, in a hospital gown, from a hospital bed casting a deciding vote. David Webb calls the question, again, Mark Gregg seconds it, Pete votes yes, and Waste Management wins in a 3-2 vote.,” the Islamorada Community Association, a local government watchdog group, wrote in its newsletter Wednesday.

None of the five council members responded to submitted questions from the Miami Herald about the meeting.

Vice Mayor Henry Rosenthal, who vehemently opposed the rate increase, and Councilman Buddy Pinder, were the “no” votes.

But before the meeting was called back into session and the livestream on the village’s website resumed, people attending in person photographed Webb at the podium talking to Rosenthal. Another person at the meeting shot a video of Webb continuing to speak to Rosenthal back at the dais.

The photograph was included in the Islamorada Community Association’s newsletter. The video was obtained by the Miami Herald. Regarding the conversation, the group writes Webb “begins to browbeat Henry on the issue at hand — an increase in rates for Waste Management.”

The Miami Herald could not independently verify what the men discussed. Under the Sunshine Law, they would be prohibited from speaking to each other about the solid waste collection rate without the meeting being called back into order.

The vote happening so soon after they returned to the dais, however, raises questions about their conversation and about whether other council members discussed the issue outside of the public eye, Robert Jarvis, professor at Nova Southeastern University’s College of Law, told the Miami Herald.

“I think it’s pretty clear it’s a Sunshine violation, and a pretty serious Sunshine violation,” Jarvis said. “Were there threats, bribes, promises made? Who knows how that conversation went.”

Quick, the village’s attorney, denied knowing about any possible Sunshine Law violations, nor the existence of a State Attorney’s Office investigation.

“I am unaware of any Sunshine violation occurring during the meeting. I am further unaware of any inquiry by the SAO related to the August 25 meeting,” Quick said in an email to the Miami Herald Wednesday.

Increased costs

The rate increase was on the agenda at the request of Waste Management because its cost of doing business in all of the communities it serves has risen significantly over the past year because of inflation and increases in labor and fuel costs, Village Manager Ted Yates said.

Yates said he told Waste Management negotiators he would recommend the village council approve a 10% rate increase — the 3% increase in the existing contract, plus an additional 7%. The company had asked for a 14% increase on top of the existing 3%.

Following the vote, Islamorada residents’ annual solid waste assessments have gone from around $445 to about $490.

Rosenthal said he was not convinced the rate was warranted even if the company’s costs have increased.

“I understand everyone’s going through hardships. I understand that. We’re dealing with it. But, not everybody has the luxury to call someone and say bail us out. People have mortgages. Try to get out of your mortgage with the bank,” Rosenthal said.

Webb, responding to critics of the increase noting that Waste Management is a nationwide company with revenues of more than $14 billion, said it still must raise rates to make a profit.

“You can still be a company that generates $14 billion in revenue and still lose money,” he said.