Tom Barwin says 'There’s no subterfuge there' but practice could circumvent state open records law

SARASOTA — For years, Sarasota City Manager Tom Barwin has been using a personal email account to discuss city matters with other senior officials and private citizens.

Barwin said he has not used his personal account to conduct city business and usually copies his city-issued email on personal emails or engages in written conversations with other city officials on their work emails so there is a record of the conversation.

The city manager says he typically uses his Gmail account when traveling because he brings his personal laptop with him and that most of the emails are unsolicited from individuals who obtained his private email address from his Facebook page, something he has since removed from the social media site.

“There’s no subterfuge there,” Barwin told the Herald-Tribune, a sentiment echoed by Mayor Liz Alpert. “There’s no attempt to hide anything.” 

“I’ve been doing this for 40 years,” Barwin added. “I’ve been so vetted and so reviewed, so covered. I would think if I were a bad character operating secretly, it would have been certainly learned of by now.”

But public records experts say Barwin's practice could be perceived as circumvention of state open records laws.

Public officials are urged to use government emails for their official duties so that their conversations are properly archived and available to the public and those conducting oversight. It is not illegal for government officials to use private email accounts, but they must preserve the messages because they are public records.

In several hundred emails to and from Barwin’s personal Gmail account from 2015 to 2017 that were obtained by the Herald-Tribune, the city manager received electronic communications from his deputy, the mayor, city spokeswoman, private citizens and media outlets — and replied to some of the messages — which could give the perception that Barwin was attempting to evade Florida's Sunshine Law, which is intended to guarantee citizens have access to public records of governmental officials, experts said.

Barwin, who makes no secret of his dislike for the state's open government law, turned over more than 500 emails from his private account to comply with a June records request by former Sarasota City Commission candidate Martin Hyde, a frequent critic of the administration who asked for emails pertaining to city business on Barwin’s personal account.

The city manager did not violate city policy on email usage from September 2012 — Barwin’s first month in official capacity — through March 2018 because the city's policy covering that period did not explicitly require city workers to forward emails from their private accounts to city-issued email addresses.

But the current policy — signed by Barwin on Feb. 22 — allows city employees to use private email accounts only so long as any emails received are forwarded to the city server.

It is unclear whether Barwin has complied with that requirement in 2018. A public records request made by the Herald-Tribune on Tuesday for his emails has yet to be fulfilled by the city.

Experts said Barwin's approach to his email appears problematic.

“It could be used as a way to try to hide messages, to be evasive,” said Ben Wilcox, research director for Integrity Florida, a nonprofit research institute and government watchdog. “There could be other explanations as well, maybe it’s just more convenient.”

Barbara Peterson, president of the First Amendment Foundation of Florida, echoed Wilcox’s sentiment: “Avoidance of the law, convenience, thoughtlessness,” she said of reasons public officials usually use private email accounts for official duties.

The emails

In the emails provided to the Herald-Tribune, a local Realtor in February 2017 suggested nuisance homes laws and policy should be changed so police could more rapidly shut the properties down. Barwin did not respond to the email, according to the documents.

In another exchange, city spokeswoman Jan Thornburg in 2015 crafted a press release on behalf of Barwin, sending the message to both his city and personal email addresses. Barwin responded from his Gmail account with edits to the suggested quotes that were to be attributed to him.

In October 2016, Barwin emailed Thornburg and Deputy City Manager Marlon Brown an image from his iPhone and discussed a damaged irrigation pipe. Barwin said he prefers to send pictures from his personal cell phone because the camera on the device is a higher quality than the one on his city-issued phone.

Barwin also received a chunk of seemingly unsolicited emails from the Lido Key Residents Association keeping him abreast on matters related to the community.

He was the recipient of an email on July 4, 2017 from Nate Jacobs, founder and artistic director of the WestCoast Black Theatre Troupe asking if he could “give any assistance to us receiving our building permit to begin phase I of our renovation campaign.’’

Barwin responded: “Hi, happy 4th and thanks for your note. I will check on your permit's status in the morning and contact you later in the day.”

That response was not included among the emails in the public records request. Barwin provided the response to the Herald-Tribune when questioned about the nature of the email.

At the time, the theater group had raised $4 million of a $6 million goal to construct a new community outreach building and renovate the existing theater. The grand opening for Phase I of the project took place on April 26.

Anne-Marie Russell, executive director of the Sarasota Museum of Art, sent Barwin an email on Oct. 25, 2016 that read: “I am hoping to meet with you at your earliest convenience to discuss a project.’’ The museum, which has been in the planning stages for several years at the old Sarasota High School building, is set to open in late 2019. If Barwin responded, it was not included in the records request.

Barwin also received an email from Tom Thanas, former city manager of Joliet, Illinois, inquiring about a job as director of special initiative on homelessness in 2015.

Again, Barwin appeared not to respond.

Differing views

Mayor Alpert — who on two occasions exchanged emails with Barwin on his personal account regarding parking problems and a trash issue — said she doesn’t believe Barwin's Gmail usage is “nefarious” or warrants a formal review. Her correspondence with Barwin on his private account, which the mayor said she doesn’t recall, occurred when Alpert was a city commissioner. 

“All I can say is that I believe we have one of the best city managers around,” Alpert said. “And there seems to be an attempt to try to undermine him at every turn and he is doing a really good job and I have every confidence in his integrity.”

Although Barwin’s usage of his personal account does not break the law, it could potentially expose the city to litigation, said Peterson, the First Amendment Foundation president.

“Use of personal email accounts can carry some legal liability — if, for example, you made a public records request of the city clerk for all emails sent or received by the commission and the city manager (and) she’s able to send you only those emails on the city’s server,” Peterson said.

For her part, City Auditor and Clerk Pamela Nadalini said she had no prior knowledge that Barwin was using a private account.

“I would assume Mr. Barwin did his due diligence to furnish any and all available records pertaining to whatever the request was,” Nadalini said.

City Attorney Robert Fournier also said he was unaware of Barwin’s private account use, adding that city employees are advised to use their city-issued email to discuss official matters. 

“What’s concerning is that there might be additional records on the Gmail account that he didn’t catch,” Fournier said. “Now, he said he went through very carefully to honor the request that was made and I believe that he did that.”