published: Wednesday, January 07, 2009

Colby sues county over records

By ED BALDRIDGE

ed.baldridge@newssun.com

SEBRING -- Capt. Preston Colby of Florida Public Safety filed a lawsuit Monday morning against Highlands County for failure to produce public records as required by Florida Government in the Sunshine laws.

Colby names the county commissioners as a whole as well as Chairperson Barbara Stewart, County Administrator Michael J. Wright, Assistant County Administrator Ricky Helms, Records Management Officer Gloria Rybinski and Planning Director James Polatty as individual defendants in three different counts of either denying Colby's records requests or claiming exemption to notes and e-mails.

Count 1 of the suit alleges that Colby requested to see certain public records concerning a zoning change request, but was told that some of those documents do not exist.

According to Colby's current complaint, in July 2005 county staff gave a positive recommendation to a rezoning request. That recommendation was later changed to a negative recommendation after Polatty, former county administrator Carl E. Cool, and Commissioner Guy Maxcy "unlawfully influenced JP (James Polatty) to change the staff report to deny the rezoning request."

Colby's complaint states that "when Plaintiff (Colby) was allowed to inspect Planning and Zoning Hearing 1807 file the only staff recommendation ... was a staff report recommending denial of the rezoning change."

Later Polatty denied knowing about any "favorable" staff recommendation, said the complaint, although transcripts of the July meeting clearly show Polatty discussing alternate recommendations from staff.

Count 2 involves a request for notes and e-mails Wright wrote during negotiations with the Central Florida Regional Planning Council.

Wright claimed in an e-mail that his notes were for his "personal use only" and were exempt from examination.

Additionally, Colby requested to see other withheld e-mails between Wright and CFRPC.

"...Plaintiff has reason to believe and does believe that Defendant MJW (Michael James Wright) has additional e-mail communications within the scope of Plaintiff's public records request..." the complaint states.

Count 3 of Colby's suit alleges that during a public hearing last week, Stewart limited Colby to a five-minute statement and would not allow him to ask follow-up questions.

Video of that meeting clearly shows Stewart informing Colby of the time limits and restrictions of the public hearing.

Colby asserts through his complaint that he was not allowed "to ask relevant questions and pertinent questions about various matters which were the subject of the Public Hearing..."

During the Dec. 31 commission meeting, after being informed by Stewart of the restrictions, Colby asked if the five-minute limit on questions was part of a county policy. Stewart stated that it was county policy, at which point Colby requested a copy of that policy.

As it turns out, the county has no specific policy concerning public address or limits on questions that a citizen can ask the commission, and Stewart can not produce any policy.

Stewart later admitted to having just some "written notes" about the policy, which she has refused to turn over.

When Colby pressed the issue concerning the policies and or procedures concerning public hearings with Stewart's office, he received an e-mail stating "...We have no written procedures."

"I am just a regular citizen," Colby said. "This suit should provide for depositions and will give the public a peek at what happens behind the scenes."

This is not the first time Colby has had a run in with the county over public records.

In 1995, Colby filed suit over being charged an excessive amount for requesting records. He was charged for not only the hours and copy costs, but for the benefits of the employee.

In a split decision, the circuit court ruled that the county could charge based on the hours spent, that they could ask for the money up front, but they could not charge for the employee benefits.

In February 1996, the Highlands County Board of County Commission issued a "trespass warning" to Colby after county employees reported that he was rude and threatening when asking for records. The warning banned Colby from some public areas of county offices.

Colby was charged with trespassing after he entered a county board room that the warning made off limits. The room was open to the rest of the public.

The judge ruled that the trespass warning violated Colby's right to equal protection under the Florida and U.S. Constitutions since it prohibited Colby from areas that the rest of the public could enter.

In 2008, Colby received a $9,100 settlement from the county over another records request suit that the county decided to settle.