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Palm Coast Thursday, Apr. 5, 2018 7 months ago

Former elections supervisor Kimberle Weeks found guilty of illegally recording others' conversations

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The jury deliberated for slightly over two hours before delivering its verdict.
by: Jonathan Simmons News Editor

Flagler County's former elections supervisor, Kimberle Weeks, is guilty of illegally recording other people's conversations and then disseminating one such recording, a jury of four women and two men found after deliberating for about 2 hours and 5 minutes on April 5. 

The trial proceeded for three days after an initial day of jury selection. Weeks was charged with six counts of interception of a wire communication plus one count of disclosure of such a communication. All are third-degree felonies. The defense did not put on a case and call its own witnesses.

The prosecution argued that Weeks had taped six people without their consent and then played one of the recorded conversations to other people, and that those actions are illegal under Florida law. 

The defense did not argue that Weeks didn't make the recordings, although it did argue that the prosecution hadn't proved that she'd disseminated one. Instead, the defense argued that making the recordings did not violate the law. Since the conversations Weeks recorded involved public officials and public employees speaking about government business, Weeks' attorneys said, the recordings should be considered legal: Florida law generally prohibits people from recording others' speech without their consent, but there are exceptions, and one is for public speech at public meetings.

That left the jury in an unusual position: Rather than determining whether or not the defendant, Weeks, had committed a particular action or not, they were instead tasked with determining whether or not the actions she'd committed were actually illegal. Judge Margaret Hudson barred the prosecution and the defense from presenting the jury with a definition of a "public meeting": the jury was left to make the determination based on "common sense."

Five of the six individuals Weeks was charged with taping were public officials or employees: Florida Secretary of State Ken Detzner; Florida Elections Division attorney Gary Holland; Florida Assistant Attorney General Gerry Hammond; Whitney Anderson, a Florida Attorney General's office employee who took consumer complaints; and Virginia Smith, Palm Coast's city clerk. The sixth was Ron Labasky, a private attorney who represented the Florida State Association of Supervisors of Elections.

'I DON'T KNOW IF WHAT I DID WAS LEGAL'

Detzner, Holland and Labasky were taped in the course of one April 3, 2014, phone conversation with Weeks. That was the conversation that Weeks, according to the prosecution, later played for others. She also taped an April 4, 2014, conversation between herself and the two people she'd played it to, and that conversation, according to the prosecution, made it clear the two other individuals had heard the recording of Weeks speaking with Detzner, Holland and Labasky. The defense argued that the recording of Weeks speaking to the other two individuals didn't prove she'd played the Detzner tape to them rather than described it to them.

Weeks recorded Hammond and Anderson in two separate recordings on Sept. 18, 2014. In both cases, Weeks had called to inquire about government issues. Virginia Smith was recorded by Weeks on April 7, 2014, after Weeks called her to discuss election preparations related to the city of Palm Coast.

The prosecution said those conversations were not public meetings: The individuals Weeks taped were in their offices, speaking on the phone, and had a reasonable expectation that they would not be recorded.

Also, the prosecution argued, public meetings have certain characteristics — like being noticed to the public and open to public attendance — that the conversations Weeks recorded did not. 

"Just because you 're a government employee doesn't mean that you don't have a right to consent to being recorded," Assistant State Attorney Sharleen Sullivan said. What's protected, Sullivan added, is "not the topic, it's the parties. All the parties have to consent."

Assistant State Attorney Jason Lewis noted that the law protects recording of “public communications uttered at a public meeting," not simply any "public communications anytime you're a public official," regardless of context.

"They want you to think that anytime a public official communicates something, that that's what is covered by the statute, and that's patently wrong," Lewis said. "

In the prosecution's closing argument, Sullivan quoted Weeks' own words, preserved in her recording of the two people she'd allegedly played the Detzner recording to: "I don’t know if it’s legal to tape after you let them know that you’re taping it, or not. ... I don’t know if what I did was legal or not. I ain't told nobody. ... I'm going to have it for my own reference."

"No, it was not legal," Sullivan told the jury. "It is not legal to record a telephone conversation with anyone without their consent."

The defense suggested that Weeks' intent to record sprung out of her concern for open government, but Sullivan pointed out that Weeks had also taped her own neighbor, Shannon Brown, when Brown had a personal conversation concerning private family matters with Weeks in Weeks' front yard. 

Given Weeks' recording of Brown — which the prosecution played for the jury — was Weeks' intent in recording for any public good, "or was the intent to mock, to insult, for her own personal gain?" Sullivan asked.

'I'M NOT COMFORTABLE WITH THAT'

All of the victims of Weeks' recording testified before the jury, in person or remotely through a video feed, that Weeks had not gotten their consent to record and had not told them she was recording.

In the conversation with Detzner, Holland and Labasky, Weeks asked Detzner — on tape, since she was already recording — if she could record the call, which Detzner had placed to Weeks at her request to talk about a dispute she was having with the city of Palm Coast over use of city facilities for an election.

Detzner replied, "For what purpose do you want to record this conversation? ... I’m not comfortable with that. ... I don’t think that's necessary, Kimberle. I'm calling you as a courtesy."

Weeks said "OK," but continued recording. 

The fact that Weeks had asked Detzner's permission to record, Sullivan said, indicated that Weeks knew that the conversation wasn't a public meeting: If it had been, she would not have needed to ask permission.

Weeks had told Detzner during the call she wanted to record in order to be able to inform the Florida State Association of Supervisors of Elections president about what happened in the discussion.

But that didn't make sense, Sullivan said, because Florida State Association of Supervisors of Elections attorney Ron Labasky was on the call — and, as Deztner told Weeks after she'd asked to record, Labasky could brief the FSASE president.

Instead, Sullivan said, Weeks wanted to record the call so that she could disseminate it and mock it, as she did when she played it to two other people.

In her recorded conversation with those two other individuals, which was played for the jury, Weeks called Detzner an “ignorant bastard” and a “lying bastard,” and twice referred to Gary Holland as a “dumb piece of s--t.” In the same recording, after saying she didn't know if what she'd done was legal, Weeks added that she wasn't going to share it, but, "I'm going to have it for my own reference."

The fact that Weeks was hiding the recording, Sullivan said, belied the defense's suggestion that Weeks' recording was for the benefit of the public.

Weeks taped Whitney Anderson, a Florida Attorney General's office employee who took consumer complaints, when Weeks called the Attorney General's office to complain about local election issues. Similarly, Weeks taped Gerry Hammond when Weeks called the Attorney General's office with other complaints. Both testified that Weeks didn't tell them they were being recorded. 

'ESSENTIALLY A PUBLIC MEETING'

Defense attorney Kevin Kulik, presenting the defense's closing arguments, said the definition of "wire interception" states that it refers to circumstances justifying an expectation that the conversation would not be recorded and that it does not mean any "public communication uttered at a public meeting."

"This is essentially a public meeting," Kulik said of the conversations.

Kulik noted that the judge had told the jury not to consider the prosecution's statement that a public meeting has to be noticed as a statement of law.

"The prosecutor, again, tries to put ideas in your head about what the law is, what's a public meeting," Kulik said. "It's up to you to decide what is a public meeting."

As for the call with Detzner, Holland and Labasky, Kulik said, the fact that the call was a conference call undermined any claims that Detzner, Holland and Labasky had an expectation that the call wouldn't be recorded. 

Kulik also implied that the primary investigator in the case, Florida Department of Law Enforcement investor Phil Lindley, who has since retired, could have been biased against Weeks and that his bias might have affected the alleged victims, who'd all testified that they did not know they were being recorded and expected they would not be recorded. 

"The jury has to decide the credibility of the the witnesses and decide whether they have some bias or interest in the case," Kulik said. "If you doubt (Lindley's) credibility and decide, 'You know what? This guy had to know this was some kind of political mission to get Mrs. Weeks,' you can disregard his testimony."

Lindley was not a Flagler County resident and had told the jury he did not know anyone in Flagler County when he began working on the case.

Weeks, Kulik said, had recorded people because public officials were "giving her the run-around, all of them. ... She wants to fix it, they're giving her the run-around. ... They know it was all public business, but it might be a little embarrassing to them politically." But that, Kulik said, did not give them a reasonable expectation that they wold not be recorded.

Weeks' statement that she didn't know if her recording of Deztner, Holland and Labasky was legal, Kulik said, showed that she didn't have criminal intent in doing so. And the conversation with the two other people the state alleged had heard the Detzner recording, Kulik said, didn't prove that she'd actually played it for them, rather than described it.

Lewis, the prosecutor, countered that ignorance of the law is not a defense and that context clues in the recording of Weeks and the two other individuals to whom she'd allegedly played the recorded conversation with Detzner made it clear they'd heard the tape of Detzner. The jury, after beginning its deliberations, asked to hear that recording again. It then found Weeks guilty on all counts.

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