Recording captured private conversation in between Fort Lauderdale meetings. Did it violate people’s privacy?

They don’t remember what they were talking about. But they do remember being surprised to see a recording device about the size of a TV remote still playing after the Fort Lauderdale commission meeting had ended.

They thought their conversation was off-limits. Private, for their ears only.

So Brian Donaldson, Bill Brown and Jacquelyn Scott — three residents who were in the middle of a private chat when they noticed the recording device — complained to the city manager, who in turn alerted the police chief.

The chief tracked down the owner of the recording device, a videographer who had been hired by local attorney Barbra Stern. All three residents said they wanted the videographer to delete the recording that captured their conversation. She did so immediately, they say.

Nonetheless, the Sept. 13 incident has triggered a debate over whether people have an expectation of privacy in a public place.

Not everyone agrees.

During a meeting on Sept. 19, Interim City Attorney D’Wayne Spence questioned whether the recording might have run afoul of the state law that requires consent from all parties before conversations are recorded. Spence also told commissioners he was concerned that his private chats with commissioners on legal matters could be recorded without their knowledge if a recording device kept playing after a meeting ended.

The videographer placed one recording device on the floor at the center of the stage at The Parker playhouse, where the commission has been holding public meetings ever since a rainstorm flooded City Hall on April 12. A second recording device was placed less than 10 feet from the podium on a ledge near the edge of the stage, Brown told the South Florida Sun Sentinel.

Milestone Reporting, the Orlando-based company hired by Stern to record the meetings, records hundreds of meetings every day, both video and audio, says company President Mike McDonner.

“The video camera’s internal mic can’t capture all the audio if people are speaking at the same time,” he said. “Industry practice is to set up backup recorders around the room. So if you have problems with your main video you can use recordings from other audio so you have clear (sound). Whether we’re in a commission meeting or a courtroom or a deposition, that’s our practice everywhere.”

The videographer hired to record the two meetings on Sept. 13 turned off the recording devices when the commission went into recess, McDonner said.

“She did turn them off but the break went on and on,” he said. “She needed to use the bathroom and she was worried she would not get back in time (for the next meeting), so she turned them back on. Normally we do turn them off during breaks because we don’t want to capture useless audio. There is definitely no agenda here. We were just hired to record the meeting.”

During the Sept. 19 public meeting, Mayor Dean Trantalis argued it was “sneaky to be sticking listening devices in places where we’re not aware” and said people have an expectation of privacy after a meeting adjourns.

Stern, the attorney who hired the videographer to record two city meetings on Sept. 13, sent an email to the mayor the next day arguing no one has an expectation of privacy at a public meeting.

“You have close to two decades of experience as a public official and know that there is no expectation of privacy in public meetings, even while you are on a break,” she wrote in her email.

Never gave consent

Bob Jarvis, a law professor at Nova Southeastern University and an expert on constitutional law, disagrees.

“You don’t really get to keep recording when the meeting has ended,” he told the Sun Sentinel. “They never gave their consent to be recorded and the meeting had already ended. I don’t think you have any right to record. Even in a public space, there is some expectation of privacy. Even at a restaurant, you don’t expect the people in the next booth to whip out a phone and start recording your conversation.”

Commissioner Steve Glassman told the Sun Sentinel he had no idea someone had placed a recording device on the floor of the stage and another closer to the podium until he got word from City Manager Greg Chavarria later that night after the second meeting ended.

“No one is questioning the public’s right to record a public meeting,” Glassman said. “But no one has the right to record people’s private conversations when we’re on break during a meeting or between meetings. We have a reasonable expectation of privacy when the meetings are not in session.”

Trantalis says he never noticed the recording devices either.

“One device was placed near our seats and could have recorded private conversations that took place between the meetings,” he said. “Private conversations between a commissioner and the city attorney are privileged communications.”

Jarvis said he was surprised the city does not have a designated area where members of the public can place their recording devices.

‘Someone’s been recording us’

Donaldson, longtime chair of the city’s budget advisory board, recalls being stunned to see a recording device still playing while the commission was on recess between meetings.

“I looked over and saw a recording device sitting on the edge of the stage,” he said. “I walked over and pressed the stop button and said, ‘Well someone’s been recording us.’ The city tapes the meetings. But after a meeting is adjourned, my expectation is that we would not be recorded. I don’t even remember what we were talking about, but it was off the record. It was after hours in our mind.”

Barbra Stern is the attorney for Commissioner John Herbst and sometimes represents the Fort Lauderdale police union. Her mother, Judy Stern, is a longtime lobbyist and political consultant who helped Herbst with his campaign last year.

The next city election is in November 2024. All five commission seats are up.

Herbst told the Sun Sentinel we can expect to see sound bites captured at the meetings used later in campaign ads during election season.

“I had no idea” Barbra had hired a videographer to record the meetings, Herbst said. “She wanted her own video. … I assume it will end up in someone’s campaign down the road. I had no knowledge about this in advance or after the fact.”

Piqued by the mayor’s remarks, Barbra Stern sent letters of warning last week to the American Civil Liberties Union of Florida and at least two other organizations, including the Florida Office of the Institute for Justice and Integrity Florida, a government watchdog whose mission is to promote integrity in government.

She urged them to be on “high alert to monitor the actions being taken” in Fort Lauderdale, which she described as a governmental body’s “efforts to trample on civil rights.”

‘Chilling effect’

In her emails, Stern says the mayor “equated the lawful recording of a public meeting to having hired someone to ‘plant listening devices,’ which clearly implies something nefarious. His statements clearly have a chilling effect which would serve as a deterrent to anyone else who would want to record a public meeting or record people in public forums.”

Stern also found fault with the interim city attorney, saying he “correctly stated on the record that it was permissible to record during a meeting, but incorrectly opined that it would be a violation of the law to record during a break (even though they were still in a public forum).” On Sept. 19, Herbst read a speech from the dais expressing outrage that someone had wrongly accused him of planting recording devices at City Hall.

Days before, after receiving a bogus tip, the South Florida Sun Sentinel confirmed with police that there was no merit to the false accusation.

“Let me just state categorically that I am not involved in recording anything, anywhere at any time,” Herbst said. “And to those of you that are spreading these lies, my response is that you are morally and ethically bankrupt. I find these personal character assassinations cowardly, disgusting and you should be ashamed of yourselves.”

With that, he wadded up the paper his speech was written on and tossed it on the dais.

Minutes later, Herbst was defending the public’s right to record a public meeting.

Trantalis told Herbst he found it “offensive” that anyone would accuse a member of the commission of planting recording devices.

“Anyone who is looking to (record private conversations in between meetings), I just don’t think is appropriate,” Trantalis said. “Any attempts like that in the future should be responded to with some sort of enforcement action. I don’t know what this is right now. But it’s totally inappropriate.”

Herbst said he was under the impression there is no expectation of privacy when you’re in a public space and asked the interim city attorney to weigh in.

Spence, the attorney, replied, “In my view, there is an expectation of privacy … if we’re up here on the dais and we’re on a break.”

Commissioner Warren Sturman asked whether the city had any protocols in place for recording meetings.

Spence said he was not aware of any.

“It’s regular practice for local media to set up their microphones to record a meeting,” Spence said. “There is no issue with the recording of a public meeting. It is the issue with regard to the conversations that occur outside of a public meeting.”

Expectation of privacy

Sturman suggested the city develop a protocol for people who want to record the meetings. The mayor agreed.

“Ms. Scott said her conversation was being recorded after the meeting was adjourned,” Trantalis said. “And they have an expectation of privacy.”

Spence agreed that the public does have an expectation of privacy after a meeting ends.

Under Florida law, with a few exceptions, all parties involved in a private conversation must consent to the recording of that conversation. Secretly recording someone without their consent could lead to a third-degree felony charge. A conviction is punishable by up to five years in prison and a $5,000 fine.

Spence, who was copied on Stern’s emails, sent her a reply saying he took exception to her claim that he was wrong in stating it would be a violation of the law to record during a break.

In the email, Spence shared the comments he made while answering the commission’s questions about the recording incident: “The question goes to what portions of the night they’re recording. If they’re recording the public meeting and it’s open and obvious then there’s no violation of law, but as you know recording audio conversations without the consent of the individuals that you’re recording is a violation of law.

“So you know our conversations during breaks and so forth where we haven’t consented to being recorded and there’s a device that is picking up our conversations is definitely a violation.”

In his email, Spence referred to a follow-up question posed by Herbst asking if someone recording a public meeting would be obligated to turn off the device once the public meeting ended.

In response, Spence told the commission: “It goes to the expectation of privacy of the members within this room and the members on this dais so we have an expectation of privacy. And I guess that that would be a new area of litigation in the sense to determine how far that expectation actually goes for us when we’re between breaks.”

Spence’s email to Stern went on to say the following: “Recording of oral communication without consent of the speaker is a violation of Florida Statutes, Section 934.03 (2023), with the caveat that oral communication uttered at a public meeting is not protected by the statute. Furthermore, the determination of an expectation of privacy is subjective to the speaker if that expectation is societally recognized as reasonable.”

Wrote Spence: “As I alluded to in my off-the-cuff response, the courts would have to determine whether individuals have an expectation of privacy based on the facts. Is there an expectation in a hall rented for public meetings during periods of time during which a public meeting is not in session? This is an area I will continue to research and welcome you sharing any additional authority on this issue. Noting that the issue is not whether individuals have a right to record during a public meeting, but whether there is a right to record when the public meeting is not in session.”

Susannah Bryan can be reached at sbryan@sunsentinel.com. Follow me on X @Susannah_Bryan