SUNSHINE LAW PUBLIC RECORDS and ETHICS

1. “Respect the law. Honor the law. But never worship the law. The law does not represent our highest standards. The law is the lowest common denominator, that is, a set of rules of minimum acceptable behavior, and you can do better than that.” Honorable Warren K. Urbom

2. SUNSHINE LAW PUBLIC RECORDS and ETHICS

3. Introduction • Views you hear tonight are ours • God made many lawyers so there would be lots of different opinions • Rely on your own counsel • Better to ask permission rather than forgiveness • Don’t put your lawyer on the spot • What’s legal is not always ethical

4. SUNSHINE LAW

6. What is the Sunshine Law? • Section 286.011, F.S. and Florida Constitution, Art. I, Sec. 24 • F.S. 286.011: “All meetings of any board or commission . . . at which official acts are to be taken are declared to be public meetings open to the public at all times, and no . . . formal action shall be considered binding except as taken or made at such meeting

7. Purpose of the Sunshine Law • Provides the public a right of access to governmental proceedings at both state and local levels (although judiciary and Legislature not subject to the Sunshine Law). • Protects the public from “closed door” decision making.

8. Who is covered by the Sunshine Law? • Any board or commission of any state agency or authority or of any local agency or authority of any county, municipal corporation or political subdivision • Applies to elected or appointed boards or commissions • Applies to advisory bodies, even if recommendations are not binding on agencies. • Limited exception for fact-finding advisory committees

9. Who is covered by the Sunshine Law? (cont.) • Applies to an individual Board member, appointed to negotiate, narrow decisions, or make decisions for the full Board. [AGO 93-78] • Applies to voting as well as nonvoting members of a board or committee. • Private entities may be subject to the Sunshine Law if they are acting as a replacement for the public agency.

10. 3 Sunshine Law Requirements • Reasonable notice must be given • Meetings must be open to the public • Minutes of meetings must be taken and promptly recorded (reduced to writing).

11. What is a ‘meeting’ under the Sunshine Law? • Any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission. • Communication may occur in any manner - through telephone or e-mail communications, or exchanges during social events such as football games and neighborhood barbecues.

12. Accordingly, under the Sunshine Law Two or more members of the same Board/Committee should not privately discuss issues relating to or that might come before their Board/Committee with one another, whether by phone, e-mail, on a website or in person. They must hold such conversations at a public meeting and on the record.

13. Sunshine Law Violation Example • Rackleff v. Bishop (1990): At 1989 Jefferson County Commission meeting, Chairman recessed the public meeting for several minutes to get advice from the County Attorney. Two Commissioners joined in this private, off-the-record conversation. • Court: “The irony of a public meeting violation occurring during a duly noticed county commission meeting… is not lost upon the Court. However, the private confab… resulted in a clear violation of this statute.”

14. Sunshine Law Violation Example • “Sunshine Law violation will cost Martin County taxpayers” – Treasure Coast Newspapers, 1.27.13 • 3 School Board members visited the District’s adult education school, touring classrooms and speaking with teachers and students, without providing any notice of their visit or having minutes taken. • Fourth District Court of Appeal: “…defendant board members, without providing notice, conducted a meeting at the adult education school relating to matters on which foreseeable action would have been taken… Thus, a Sunshine Law violation occurred.”

15. Sunshine Law Violation Example (cont.) • Court stated, “we do not condone the defendant board members’ Sunshine Law violation”, but also found that violations were “cured” by later holding open meetings

16. Other Sunshine Law Requirements Reasonable notice: • requires giving the public reasonable and timely notice so they can decide whether to attend a meeting. • What is “reasonable” or “timely” depends on the circumstance. • Does not necessarily require a newspaper advertisement. • Preparation of an agenda is not required

17. Reasonable Notice • Lozman v. City of Riviera Beach (2010): On Friday Sept. 12, 2008, around 4:17 p.m., City gave notice of special meeting to occur on Monday, September 15th at 4 p.m. • City posted notice on bulletin board, on door, on website, local TV station, and sent fax to local paper.

18. Reasonable Notice • Plaintiff sued City for violation of Sunshine Law, arguing that the Court should discount the intervening weekend and that the “true notice” given was less than 24 hours. • Court: notice was evidently effective, as the Monday special meeting was attended by Plaintiff, media and members of the public. No violation of Sunshine Law.

19. Other Sunshine Law Requirements Open to the public:the public must be allowed to attend meetings; however, there is currently no obligation to allow the public to participate (likely to change, given bill approved in 2013 Legislative Session). Meetings cannot be held at exclusive or inaccessible facilities.

20. Kennedy v. St. Johns WMD (2010) • SJWMD meeting held in room with max capacity of 183, where number of people who wished to attend exceeded capacity and not all could enter the room, did not violate Sunshine Law (Fla. 7th Cir. Ct., September 27, 2010). • Court: meeting was held at the Board’s usual place and in the largest available room (also, Board tried to be accommodating by setting up a computer and speakers for those who had to be outside, and by instructing non-essential staff not to attend).

21. Other Sunshine Law Requirements • Minutes required: written minutes must be taken and made available promptly. • Sound recordings of meetings cannot substitute for written minutes. • Minutes may be a brief summary of meeting events. They do not have to be a transcript of each and every word that was spoken, but they must record the votes.

22. Other Sunshine Law Requirements (cont.) • Do not ‘reply all’ to e-mails from staff to entire Board/Committee (for example, e-mails sending out meeting agendas), as that creates the potential for Sunshine Law violations. • If you have any questions about the meeting (i.e. questions about time, location, date, etc.), call or reply only to the staff member. If you have comments, an opinion on or a position concerning something on the agenda, express them at the public hearing.

23. Using an “Evasive Device” Constitutes a Sunshine Law Violation • Using staff, lobbyists, or other means to seek other members’ positions about issues. • Circulating written reports/statements to elicit responses or positions of other Board/Committee members on issues.

24. Social Networking and the Sunshine Law

25. Sunshine Issues Attorney General Opinion 2008-07: • There is no “statutory prohibition” against a council member posting comments on a privately maintained electronic bulletin board or blog. • However, members of the board or commission must not engage in an exchange or discussion of matters that foreseeably will come before the board or commission for official action.

26. Sunshine Issues (cont.) • Social media sites “could easily become a forum” for members of a board or commission to discuss official issues that should be discussed at a public meeting. • It is incumbent upon members to avoid any action that could be construed as an attempt to evade the requirements of the law.

27. Personal Facebook pages, websites • Remember that Sunshine Law applies even online (i.e. if Board/Committee members are Facebook friends or connected online on other social media sites). • Care should be taken to avoid posting position statements held by Board/Committee members on issues that may come before their Board or Committee.

28. Penalties for Violations/Noncompliance • Penalties: • Violations punishable by fine of up to $500, but knowing violations are second degree misdemeanors and punishable with a fine of up to $500 and/or up to 60 days imprisonment. • Other Penalties Include: • Nullification of Board/Committee decisions. • Removal from position. • Payment of attorney’s fees incurred by the challenging party (doesn’t apply where state attorney’s office is enforcing the Sunshine Law), as well as declaratory and injunctive relief.

29. Who Pays if Attorney’s Fees Assessed? • Board or commission itself. • Individual member/members of board/commission, unless board/commission sought advice of their attorney and followed that advice. • Attorney’s fees can also be assessed against individual filing Sunshine Law action, if court finds that it was filed in bad faith or was frivolous.

30. City of Venice • 4 sitting council members and some former city officials and advisory board members were accused of violating the Sunshine Law by holding electronic meetings via private e-mail. • After 16 months of litigation, the city admitted to the violations and agreed to take a series of steps to prevent future violations. • City had rejected an early settlement offer of $200,000. • In September 2009, a judge ordered Venice to pay $750,000 in attorney’s fees and costs to the plaintiff. • The city’s total litigation costs were $1.5 million.

31. QUESTIONS?

32. PUBLIC RECORDS

33. Public Records • What is a Public Record? • Is it Exempt or Confidential? • Processing a Public Records Request • Retention Schedules • Failure to Comply

35. Access to Government Records is a Constitutional Right in Florida Article I, section 24(a), Fla. Const. “Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf…This section specifically includes the legislative, executive, and judicial branches of government; . . . counties, municipalities, and districts; and each constitutional officer, board, and commission . . .”

36. What is a Public Record? “[A]ll documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” Section 119.011(11), F.S. (emphasis added)

37. Is it Exempt or Confidential?

38. Processing a Public Records Request

39. Retention Schedules

40. Simple Rules to Avoid Public Records Problems • Make sure staff retains a copy of any public record that they send to you, so you are free to dispose of your copy whenever you are done with it. • If you receive any Public Record from a source other than staff send a copy (or the original) to staff so that it can be kept in accordance with public records law.

41. Failure to Comply • A violation of any provision of Chapter 119, Florida Statutes (“Public Records”): • Unintentional: non-criminal and punishable by a fine not exceeding $500. • Intentional: 1st degree misdemeanor, punishable by a fine of up to $1,000 and a jail term not exceeding one year. • Other Penalties • Suspension or removal from office. • Attorney’s fees and court costs.

42. Failure to Comply (cont.) • Subject your local government to a lawsuit under F.S. 119.11 and 119.12

43. QUESTIONS?

44. ETHICS

45. Ethics and Disclosure “It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law.” Fla. Stat. 112.311(1)

46. Misuse of Public Position Public officers, public employees and local government attorneys may not corruptly use or attempt to use their official position or any property or resource within their trust, or perform their official duties, to secure a special privilege, benefit or exemption for themselves or another. F.S. 112.313(6)

47. Disclosure or Use of Information • Law prohibits use or disclosure of information not available to members of general public and gained by reason of official position for personal gain

48. Unauthorized Compensation • Unauthorized Compensation: Public Officers, Employees and their Spouses and Minor Children are also prohibited from: • accepting any compensation, payment or thing of value when the official knows or, with the exercise of reasonable care, should know, that it is given to influence a vote or other action. F.S. 112.313(4)

49. Gifts Gifts: Public Officers, Employees, and Candidates for Nomination or Election are prohibited from: • soliciting or accepting anything of value based on any understanding that their vote, official action or judgment would be influenced. F.S. 112.313(2)

50. Special gift rules for reporting individuals • Cannot solicit gifts from lobbyists • Cannot accept gift greater than $100 from lobbyists • Must report all gifts greater than $100 (unless exempt) • Lobbyist required to report gifts greater than $25