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State attorney: No Sunshine Law violation
November 6, 2018

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Finding "it is clear there was no Sunshine Law violation," the State Attorney's Office will not file criminal charges against two Fort Myers Beach Town Council members.

Mayor Tracey Gore and Councilmember Dennis Boback were the subject of a citizen complaint filed with the State Attorney's Office of the 20th Judicial Circuit.

The issue began on Sept. 13 at the Beached Whale, where resident Leah Gregg secretly recorded a conversation among Gore, Boback, and Chris and Tucker Patton. Chris Patton had filed two lawsuits against the town on Aug. 8 contesting the town's actions in approving the Margaritaville project on May 21 by a 5-0 vote.

Six recordings and several photographs were provided to Beverly Milligan, president of the Estero Island Taxpayers Association, which alleged the recordings contained evidence that the two council members violated state statutes that prohibit two or more members of the same board from discussing any issue for which "foreseeable action" could be taken by the board, to prevent the "crystallization of secret decisions" outside of public meetings.

The State Attorney's Oct. 25 memo states: "After carefully listening to all of the audio recordings submitted, and taking everything in context, it is clear there was no Sunshine Law violation. The recorded discussions or conversations between Ms. Gore and Mr. Boback did not express decisions, resolutions, rules, regulations, conclusions or votes on any matters on which foreseeable action by the council would be taken.

"The audio recordings do not support any 'crystallization of secret decisions' of Ms. Gore and Mr. Boback on matters that the council would be addressing in the future," the memo states, adding the recorded discussions or conversations therefore do not meet the statutory requirements to constitute a violation.

The State Attorney Office's review was a legal review limited to a whether state law was violated. It did not address any potential "policy, procedural, or civil issues, including ethics violations" outside of the jurisdiction of the agency, the memo states.

It did add one piece of cautionary advice for public officials.

"It should be noted that situations such as this may give an appearance of impropriety. All members of boards and commissions need to take great precaution when gathering and engaging in conversation outside the formal constraints of public meetings to avoid such scrutiny," the memo states.

The EITA does not agree with the legal finding and is considering other action.

In a statement sent to the Observer on Oct. 29, Milligan stated: "Gore explicitly said on tape, she has Patton's back and is willing to strategize to support their lawsuit, which was filed to block the development of the Margaritaville Hotel. The same development the two voted and supported months before."

"The EITA is considering filing an ethics complaint with the Florida Commission of Ethics against Fort Myers Beach Town Mayor Tracey Gore and Councilman Dennis Boback. The EITA is also considering the filing of a civil complaint in circuit court against the Mayor and Councilman for Sunshine Law violations."

The statement concludes with a call for both council members to resign.

Gore said the conversation was nothing more than a chat at a bar among old friends, and she does not know what EITA or Milligan hope to accomplish by continuing to pursue the matter.

"I have no idea what her goal is," she said.

"I'm not just the mayor, I'm a resident here, I've lived here my entire life, I've done nothing but volunteer for this community my entire life. I got into politics not because I want to be a politician and have a career in this, I got involved in my community for a term to help," Gore said. "I'm just a Beach girl who is now serving on the council, and I don't know what else to do. The State Attorney said let it go, and she can't let it go."

Boback declined to comment.

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