IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
IN AND FOR LEON, FLORIDA

MATTHEW WEIDNER,
THE ASSOCIATED PRESS,
CITIZENS FOR SUNSHINE, INC., and
THE FLORIDA SOCIETY OF
NEWSPAPER EDITORS, INC.,



Plaintiffs,

v.







CASE NO.:

RICK SCOTT, and THE FLORIDA CABINET, a
joint collegial body,



Defendants.
________________________________________/

COMPLAINT SEEKING
DECLARATORY AND INJUNCTIVE RELIEF


Plaintiffs, MATTHEW WEIDNER, THE ASSOCIATED PRESS, CITIZENS FOR
SUNSHINE, INC., and THE FLORIDA SOCIETY OF NEWSPAPER EDITORS, INC., sue
Defendants, RICK SCOTT and THE FLORIDA CABINET, a joint collegial body, and alleges:
Introduction

This action seeks a declaration that the Florida Cabinet is subject to the Sunshine Law
when cabinet aides seek to act for and exchange information among Cabinet members as to
decisions about hiring and firing the head of the Florida Department of Law Enforcement. The
Governor violated the Sunshine Law by using conduits to engage in polling, discussions,
communications and other exchanges with other members of the Cabinet regarding his unilateral
decision to force the resignation of the FDLE Commissioner and appoint a replacement without
any notice to the public, without any opportunity for the public to attend, and without any
Filing # 23326580 E-Filed 02/03/2015 05:01:59 PM
2

minutes being taken. Because the Governor appears to justify this conduct by claiming it is part
of a longstanding convention and tradition, Plaintiffs also seek injunctive relief.
JURISDICTION
1.
This Court has jurisdiction pursuant to Art. I, Sec. 24(b), Fla. Const.; Art. V, Sec.
20(c)(3), Fla. Const.; § 26.012(2)(e) and (3), Fla. Stat.; § 86.011; § 286.011(4), Fla. Stat.; and
Rule 1.610, Fla. R. Civ. P.
2.
Venue lies in Leon County, Florida, because the acts for which suit is brought
have occurred or are occurring in Leon County, Florida, and the Defendants are located within
Leon County, Florida.
PARTIES
3.
Plaintiff, Matthew Weidner (“Weidner”), is a citizen within the State of Florida
within the meaning of § 286.011, Florida Statutes. Weidner has an interest in his government
operating in compliance with Florida’s open-government laws under Art. I, § 24, of the Florida
Constitution, and Chapter 286, Florida Statutes. The Sunshine Law vindicates a public policy
and the interests of Weidner lies in protection of Florida’s open government laws.
4.
Plaintiff, The Associated Press (“AP”), is a news cooperative organized under the
Not-for-Profit Law of New York and owned by its 1,500 U.S. newspaper members. The AP’s
members and subscribers include the nations newspapers, magazines, broadcasters, cable news
services and Internet content providers. The AP operates from 300 locations in more than 100
countries. On any given day, the AP’s content can reach more than half the world’s population.
5.
Plaintiff, Citizens for Sunshine, Inc., (“Citizens”), is a Florida Not-for-Profit
Corporation organized and existing under the Laws of Florida. The purpose and mission of
Citizens is to promote and enforce compliance with Florida’s open-government laws under Art.
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I, § 24, of the Florida Constitution, and chapters 119 and 286, Florida Statutes. Since 2008,
Citizens has been involved in numerous legal actions in the trial and appellate courts throughout
the State of Florida, both as a party and as amicus curiae. The Sunshine Law vindicates a public
policy and Citizens’ interests lie in protection of Florida’s open government laws.
6.
The Florida Society of News Editors (“FSNE”), is a membership organization that
seeks to advance the cause of responsible journalism through educating the public about relevant
stories and publications around the state.
7.
Defendant, RICK SCOTT, is the Governor of the State of Florida, and a voting
member of and chair of the Florida Cabinet.
8.
The Florida Cabinet (“Cabinet”), is composed of the Attorney General, the Chief
Financial Officer, and the Commissioner of Agriculture and is a joint collegial body or board
within the meaning of Art. I, § 24(b), Fla. Const., and § 286.011, Fla. Stat. In his capacity as
Governor of the State of Florida, Defendant SCOTT is a voting member of the Cabinet.
FACTS
9.
At all times material, the Defendants knew that Florida’s Government-in-the-
Sunshine-Law, codified in Art. I, § 24(b), Fla. Const., and § 286.011, Fla. Stat., (“the Sunshine
Law”), prevented members of the Cabinet from discussing any matter that was reasonably
foreseeable to come before the Cabinet unless: i) advance notice to the public was given; ii) an
opportunity was provided for the public to attend; and iii) minutes were taken of the proceedings.
10.
The Florida Department of Law Enforcement (“FDLE”) is headed by the
Governor and the Cabinet. See Art. IV, § 4(g), Florida Constitution, and § 20.201(1), Florida
Statutes.
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11.
The executive director or Commissioner of FDLE is appointed by the Governor
with the approval of three members of the Cabinet and subject to confirmation by the Senate.
See § 20.201(1), Florida Statutes.
12.
The executive director or Commissioner of FDLE serves at the pleasure of the
Governor and the Cabinet. See § 20.201(1), Florida Statutes.
13.
“To serve at the pleasure” is statutorily defined as the appointee serves in the
office “until removed by the appointing authority.” See § 20.03(13), Florida Statutes.
14.
Sometime between November 5, 2014, and December 16, 2014, Defendant
SCOTT intended to fire Gerald Bailey, then the executive director and Commissioner of FDLE.
15. On December 16, 2014, using an aide, Defendant SCOTT told Commissioner
Bailey to resign or be fired before 5 p.m. that same date (“the forced resignation”).
16.
Commissioner Bailey was told that members of the Cabinet had agreed to
Defendant SCOTT’s intention to fire him and replace him with another individual.
17.
Between December 16, 2014 and January 13, 2015, aides to Defendant SCOTT,
polled, discussed and exchanged communications with aides to other members of the Cabinet
(“the conduits”) relating to the forced resignation and replacement of the FDLE Commissioner.
18. At all times material, the conduits were acting with delegated or apparent
authority to communicate on behalf of Defendant Scott and the members of the Cabinet.
19.
The polling, discussions and communication exchanges among the conduits
included, but was not limited to, statements that Commissioner Bailey decided to resign and
expressed the desire of Defendant SCOTT to replace Commissioner Bailey with Rick
Swearingen.
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20.
The conduits, through their polling, discussions and communication exchanges
with each other, Defendant SCOTT and members of the Cabinet, discussed whether members of
the Cabinet objected to the appointment of Rick Swearingen as the new FDLE Commissioner.
21.
The conduits, through their polling, discussions and communication exchanges
with each other, Defendant SCOTT and members of the Cabinet, expressed the approval of or
non-objection by Cabinet members to Defendant SCOTT’s unilateral decision to replace
Commissioner Bailey with Rick Swearingen.
22. At the time the conduits engaged in the polling, discussions, and communications
with each other, Defendant SCOTT and members of the Cabinet, Defendants knew that the issue
of any forced resignation and replacement of the FDLE Commissioner was required to come
before the Cabinet for a vote.
23. At the time of the conduct and actions in paragraphs 14 through 22, Defendants
knew that the polling, discussions, communications and exchanges between the conduits,
Defendant SCOTT, and members of the Cabinet were not noticed in advance to the public.
24. At the time of the conduct and actions in paragraphs 14 through 22, Defendants
knew that the polling, discussions and exchanges between the conduits, Defendant SCOTT, and
members of the Cabinet did not provide an opportunity for the public to attend.
25. At the time of the conduct and actions in paragraphs 14 through 22, Defendants
knew that no minutes of the polling, discussions and exchanges were being taken.
26. At a duly noticed meeting on January 13, 2015, Defendant SCOTT and the
Cabinet met and ceremonially appointed Rick Swearingen as Commissioner of FDLE without
any debate, inquiry or discussion.
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27.
Plaintiffs have a right to attend any meeting, discussion or communication
exchange between two or more members (or their authorized delegates) of the Cabinet involving
any matter that is reasonably foreseeable to come before the Cabinet.
COUNT I
28.
Plaintiffs repeat paragraphs 1 through 27 as if fully set forth herein.
29.
This is an action against the Defendants for violations of the Sunshine Law under
Art. I, § 24(b), Fla. Const., and § 286.011, Fla. Stat.
30.
The forced resignation and replacement of the executive director or
Commissioner of FDLE is a matter that legally requires the approval of the Cabinet.
31.
The polling, discussions, communications and exchanges conducted prior to the
January 13, 2015, meeting of the Cabinet relating to the forced resignation and replacement of
the FDLE Commissioner constitute a de facto meeting of the Cabinet.
32.
The polling, discussions, communications and exchanges conducted prior to the
January 13, 2015, meeting of the Cabinet relating to the forced resignation and replacement of
the FDLE Commissioner concerned a matter that was reasonably foreseeable to come before the
Cabinet for official action.
33.
The polling, discussions, communications and exchanges conducted prior to the
January 13, 2015, meeting of the Cabinet relating to the forced resignation and replacement of
the FDLE Commissioner violated the Sunshine Law because they were not noticed in advance to
the public.
34.
The polling, discussions, communications and exchanges conducted prior to the
January 13, 2015, meeting of the Cabinet relating to the forced resignation and replacement of
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the FDLE Commissioner violated the Sunshine Law because the public had no opportunity to
attend.
35.
The failure to take minutes of the polling, discussions, communications and
exchanges conducted prior to the January 13, 2015, meeting of the Cabinet relating to the forced
resignation and replacement of the FDLE Commissioner violated the Sunshine Law.
36.
Plaintiffs have retained the undersigned to represent them in this action.
37.
Plaintiffs are entitled to recover attorneys’ fees and costs in connection with this
proceeding.
WHEREFORE, Plaintiffs request the following relief:
A.
A declaration that all unnoticed discussions and exchanges, including the polling,
conducted prior to the January 13, 2015, meeting of the Cabinet relating to the forced resignation
and replacement of the FDLE Commissioner violated the Sunshine Law;
B.
A declaration that the failure to provide the public with the opportunity to attend
the unnoticed discussions and exchanges conducted prior to the January 13, 2015, meeting of the
Cabinet relating to the forced resignation and replacement of the FDLE Commissioner violated
the Sunshine Law;
C.
A declaration that the failure to take minutes of the unnoticed discussions and
exchanges, including polling, conducted prior to the January 13, 2015, meeting of the Cabinet
relating to the forced resignation and replacement of the FDLE Commissioner violated the
Sunshine Law;
D.
Reasonable costs and attorneys’ fees imposed against the defendants pursuant to §
286.011(4), Fla. Stat.; and
E.
Such other relief as may be just and proper.
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COUNT II
38.
Plaintiffs repeat paragraphs 1 through 27 as if fully set forth herein.
39.
This is an action against the Defendants for injunctive relief under § 286.011, Fla.
Stat.
40. Defendant SCOTT has made statements to the media suggesting that the practice
of Cabinet aides engaging in polling, discussions and communications about appointments
required to be made by the Cabinet and relaying the results of those exchanges back to Cabinet
members prior to a Cabinet meeting is part of a longstanding convention, practice, policy or
custom (“the longstanding practice”).
41.
Plaintiffs would suffer irreparable injury if Defendants continue the longstanding
practice of violating the Sunshine Law by allowing Cabinet aides to engage in polling,
discussions and communications about appointments required to be made by the Cabinet and
relaying the results of those exchanges back to Cabinet members prior to a Cabinet meeting.
42.
Plaintiffs have no adequate remedy other than an injunction to prohibit the
longstanding practice of violating the Sunshine Law by allowing Cabinet aides to engage in
polling, discussions and communications about appointments required to be made by the Cabinet
and relaying the results of those exchanges back to Cabinet members prior to a Cabinet meeting.
43. An injunction serves the public interest as the Sunshine Law promotes a public
policy of the highest order and is a constitutional right enjoyed by all citizens in the State of
Florida.
44.
Plaintiffs have a substantial likelihood of success on the merits of whether
allowing Cabinet aides to engage in polling, discussions and communications about
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appointments required to be made by the Cabinet violates the Sunshine Law and relaying the
results of those exchanges back to Cabinet members prior to a Cabinet meeting.
WHEREFORE, Plaintiffs request the following relief:
A.
A permanent injunction enjoining Defendants, their aides, agents, attorneys and
representatives, from engaging in polling, discussions and communications about appointments
required to be made by the Cabinet and relaying the results of those exchanges back to Cabinet
members prior to a Cabinet meeting;
B.
Reasonable costs and attorneys’ fees imposed against the defendants pursuant to §
286.011(4), Fla. Stat.; and
C.
Such other relief as may be just and proper.






Respectfully submitted,














/s/ Andrea Flynn Mogensen_________________
Andrea Flynn Mogensen, Esquire
Fla. Bar. No. 0549681
Law Office of Andrea Flynn Mogensen, P.A.
200 S. Washington Blvd., Ste. 7
Sarasota FL 34236
Tel: 941.955.1066
Fax: 941.866-7323
Primary: amogensen@sunshinelitigation.com
Secondary: mbarfield@sunshinelitigation.com







Counsel for Plaintiffs