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Palm Coast Tuesday, Apr. 3, 2018 5 months ago

Florida secretary of state and others testify that former elections supervisor Kimberle Weeks recorded them without permission

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The Weeks trial is expected to continue through Friday, April 6.
by: Jonathan Simmons News Editor

One public official calls another on the phone. Both are in their offices, speaking with some colleagues present. They discuss public business. But one of the officials secretly tapes the call, while the other — who happens to be Florida's secretary of state — doesn't know they're being taped.

Is that illegal under Florida's law, which generally requires all parties to a conversation to consent to any recording of that conversation? Or should it fall under an exception to the law that allows for recordings of public meetings without prior notice by the person doing the recording?

That's the question facing the jury which heard its first day of testimony April 3 in the case of former Flagler County supervisor of elections Kimberle Weeks, who took part in such a conversation exactly four years ago, on April 3, 2014, and recorded it against the express wishes of Florida's secretary of state, Ken Detzner.

Weeks' legal team is arguing that that conversation, and other conversations Weeks recorded under similar circumstances, should be considered, essentially, public meetings — and therefore legal to record — because the discussions involved public business.

The prosecution is asserting that they were not public meetings, and that the people Weeks taped had a reasonable expectation that they would not be recorded. 

The call involving the secretary of state, Ken Detzner, also involved other officials — Gary Holland, Florida Elections Division attorney; Drew Atkinson, general counsel for the Florida Department of State; and Ronald Labasky, attorney for the Florida Association of Election Supervisors. Detzner had placed the call to Weeks, who wanted to talk to him about a dispute she was having with the city of Palm Coast over an interlocal agreement for her use of city facilities for an election.

Weeks was unhappy that Detzner had issued a letter to her that she saw as bolstering the city's position, and he called her at her request to discuss the matter.

Weeks, after picking up the phone, asked Detzner if she could record, saying she wanted to be able to fill in another individual who couldn't be present. She didn't tell him she'd already started recording. His reply was caught on the tape, which was played in the courtroom. 

"I’m not comfortable with that," Detzner said. "If she wants to be on the call, she can be on the call. ... I don’t think that's necessary, Kimberle."

Weeks said, "OK." But she kept recording and taped the entire conversation, in which she told Detzner that his letter was inappropriate and had made her take a "black mark" in the media, while Detzner and Holland told her she needed to work things out with the city. 

"I am in charge of the election. I’m responsible for the outcome," she said in the recording. "I certainly think it was inappropriate that that letter was issued, and I took the flak for it. … I’m not going to let (the city) trip up my county election that I’m responsible to conduct. ... I’m not going to be disrespected, and I’m not going to put my reputation on the line for this city. ...  I’ve taken all the beating (in the media) that I’m willing to take."

She later played that recording later for other people.

Assistant State Attorney Jason Lewis asked Detzner if he would have remained on the call if he knew he was being recorded. 

"No, I would not," Detzner replied. And, he said, he would "definitely not" have consented to the dissemination of the recording. 

Weeks' attorney, Kevin Kulik, emphasized the public nature of the matters discussed.

"So, all of the people on that call are basically discussing public business, correct?" he said. 

Detzner answered in the affirmative. But, he said, answering another question, he'd believed it was a private conversation. 

Kulik asked him why, if Detzner had been acting in his public capacity, any of the conversation should be private. 

Detzner replied that he has an expectation when he places a phone call that it will be private, and that in this particular case, there seemed to be a "personal problem" between Weeks and the city of Palm Coast, and he'd hoped to counsel Weeks and "provide some leadership, and help encourage her in a positive way to address the problems she was having with the city of Palm Coast." 

To establish that Weeks had disseminated the recording of the Detzner conversation, the prosecution played for the jury and for Detzner, who was on the witness stand, a second recording Weeks made of herself talking to two other individuals, a man and a woman, whose names were not mentioned.

Although the second recording did not include Weeks playing the Detzner recording, the conversation between her and the two others made it clear that they'd heard it. It also included Weeks calling Detzner an “ignorant bastard” and a “lying bastard,” twice referring to Gary Holland as a “dumb piece of s--t,” and telling the other people that she didn't know if it had been legal to record the Detzner conversation. 

The prosecution and defense questioning of Gary Holland went much like the questioning of Detzner: The prosecution established that he didn't know he was being recorded, and the defense pushed on whether the matters he was speaking about in the call should be private anyway.

The jury also heard testimony from Darlene Walker, a colleague of Weeks who was in the room when Weeks took Detzner's call and who saw her continue recording the conversation even after Detzner said not to; and Whitney Anderson, a Florida Attorney General's office employee who took consumer complaints and who listened to a complaint by Weeks. Weeks taped her call with Anderson without asking for permission or telling Anderson she was being recorded. 

Phil Lindley, the since-retired Florida Department of Law Enforcement investigator who secured the recordings played in the courtroom, was also called by the prosecution to describe how he became involved in the case. He was the first witness to testify, and the defense tried to use one of his statements to argue for a mistrial. 

Lindley said that after he'd been made aware of the allegations against Weeks, he went to the Supervisor of Elections Office and requested that Weeks turn over to him five documents, all of them public records, that he considered potentially relevant. Weeks declined, and Lindley rephrased his request as a public records request: All of the documents were open to the public, and could therefore be requested by anyone. Weeks turned over three of the documents, Lindley said, but declined to provide the other two and said she wanted to speak to an attorney. 

That disclosure of Weeks' request for an attorney, Kulik said, warranted a mistrial.

"I think that clearly could be construed by the jury as invoking her right to remain silent," Kulik said. Kulik said the law does not permit the admission to the jury of a defendant's invocation of the right to remain silent, because it could prejudice them against the defendant.

Lewis said that the case law in which mistrials were declared because of an admission of a defendant's right to remain silent dealt with cases in which defendants invoked their right to remain silent after being arrested, not before. Weeks had not been arrested when Lindley had spoke to her.

Judge Margaret Hudson denied the defense's motion for mistrial, but directed the jury that Weeks' request for a lawyer was appropriate and that the jury should not consider her request for an attorney as evidence.

The Weeks trial is expected to continue through Friday, April 6. She faces eight counts of interception of a wire communication — three of them related to the Detzner conversation — plus one count of disclosure of a wire communication, for the dissemination of the Detzner conversation recording.

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