Government in the Sunshine: Florida's Open Meetings Law

1. GOVERNMENT-IN-THE SUNSHINE Town of Southwest Ranches November, 2014 Keith M. Poliakoff

2. QUESTION – WHAT IS “GOVERNMENT-IN-THE SUNSHINE”? ANSWER – FLORIDA STATUTES, CHAPTER 286.011 GOVERNS “PUBLIC MEETINGS AND RECORDS.” This act provides that, “all meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, Or political subdivision, except as otherwise provided in the constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting…

3. SUNSHINE LAW IN A NUTSHELL ANY GATHERING OF TWO OR MORE MEMBERS OF THE SAME BOARD OR COMMISSION TO DISCUSS SOME MATTER, WHICH WILL FORSEEABLY COME BEFORE THAT BOARD OR COMMISSION FOR ACTION, MUST BE CONDUCTED IN PUBLIC. THERE ARE FOUR BASIC REQUIREMENTS OF SECTION 286.011, FLORIDA STATUTES. • Meeting of public boards or commissions must be open to the public; • Reasonable notice of such meeting must be given; and • Minutes of the meetings must be taken. • Venue must be accessible.

4. QUESTION – WHAT IS THE PENALTY FOR VIOLATING THE SUNSHINE ACT? ANSWER – An unintentional violation is a non-criminal infraction, punishable by a fine up to $500. A knowing or intentional violation is a second degree misdemeanor, punishable by a term of imprisonment not to exceed 60 days and/or a fine not to exceed $500. Any public official who intentionally violates the provisions of the Sunshine Law may be subject to suspension or removal from office. Attorney’s fees and court costs are available to the requestor that prevails in a civil suit for access. ALSO - “A ‘mere showing’ of a Sunshine Law violation renders final government action void ab initio.” Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 860 (Fla. 3d DCA 1994); citingTown of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). The City’s discussion of negotiation strategy at the June 13 meeting clearly violated the plan language of Florida’s Sunshine Law and its stated intent.

5. QUESTION – IS THIS LAW APPLICABLE TO ALL BOARDS? ANSWER –YES (well not surfboards….) THE LAW IS EQUALLY APPLICABLE TO ELECTED AND APPOINTED BOARDS. AND, THE COURTS HAVE HELD THAT ADVISORY BOARDS WHOSE POWERS ARE LIMITED TO MAKING RECOMMENDATIONS TO A PUBLIC AGENCY AND WHICH POSSESS NO AUTHORITY TO BIND THE AGENCY IN ANY WAY ARE STILL SUBJECT TO THE SUNSHINE LAW.

6. QUESTION – WHAT ABOUT AN ADVISORY COMMITTEE WHOSE PURPOSE IS LIMITED TO FACT-FINDING ONLY? ANSWER–A limited exception to the applicability of the Sunshine Law exists for advisory committees established for “fact finding” or “information gathering” and only conducts such activities. Thus, if an advisory committees has a decision making function in addition to fact finding, the Sunshine Law is applicable. Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010) NOTE,the “Fact Finding” Exception applies only to advisory Committees and does not apply to Boards, like School Boards, that have the ultimate decision making authority. Finch v. Seminole County School Board, 33 F.L.W. D2697 (FLA. 5TH DCA NOVEMBER 21, 2008).

7. QUESTION – ARE PRIVATE ORGANIZATIONS SUBJECT TO THE SUNSHINE LAW? ANSWER – AS A GENERAL RULE, A PRIVATE ORGANIZATION IS NOT SUBJECT TO THE SUNSHINE LAW UNLESS THE PRIVATE ORGANIZATION HAS BEEN DELEGATED THE AUTHORITY TO PERFORM SOME GOVERNMENTAL FUNCTION. • CHAMBER OF COMMERCE – NOT COVERED • HOMEOWNERS’ ASSOCIATIONS BOD – NOT COVERED • POLITICAL PARTIES – NOT COVERED • FEDERAL AGENCIES – NOT COVERED • NOT-FOR-PROFIT CORPORATION CREATED BY A CITY REDEVELOPMENT AGENCY TO ASSIST IN THE IMPLEMENTATION OF THE AGENCY’S REDEVELOPMENT PLAN. – COVERED

8. QUESTION – DOES THE SUNSHINE LAW APPLY TO STAFF? ANSWER – Generally, No. The Sunshine Law applies to meetings of elected or appointed boards; but it does not ordinarily apply to staff or committee meetings. However, when a staff member ceases to function in a staff capacity and is appointed to a committee which is delegated authority to make recommendations, the staff member loses his/her identity as staff while working on the committee, and the sunshine law applies to the committee.

9. QUESTION – WHAT TYPE OF “MEETING” SUBJECT TO THE SUNSHINE LAW? ANSWER – ANY. THERE IS NO REQUIREMENT THAT A QUORUM BE PRESENT FOR A MEETING OF MEMBERS OF A PUBLIC BOARD OR COMMISSION TO BE SUBJECT TO THE SUNSHINE LAW. The law is applicable to 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.

10. QUESTION - CAN BOARD MEMBERS SEND EACH OTHER WRITTEN REPORTS? ANSWER: IT DEPENDS The use of a written report by one commissioner or board member to inform other commissioners or board members of a subject which will be discussed at a public meeting is not a violation of the sunshine law, if prior to the meeting, there is no interaction related to the report amongthe commissioners or board members. However, if the report is circulated among members for comments with such comments being provided to other members, there is interaction among the members which is subject to the law. • Telephone conversations & e-mails count and are subject to government in the sunshine.

11. CAN WE APPOINT ONE PERSON TO BE IN CHARGE OF A PARTICULAR ISSUE TO CIRCUMVENT THE SUNSHINE LAW? ANSWER –NO DELEGATION OF AUTHORITY TO A SINGLE INDIVIDUAL. A public body cannot escape the application of the sunshine law by delegating to a single individual the authority to conduct public business. Examples: 1) A member of a board who has been delegated the authority to act on behalf of the board in negotiating a lease is subject to the sunshine law. 2) A single member of a board conductinga hearing or investigatory proceeding on behalf of the entire board.

12. CAN MAYOR NELSON ASK A FRIEND TO FIND OUT HOW THE VICE MAYOR IS GOING TO VOTE ON A PARTICULAR MATTER? ANSWER –NO CONDUIT RULE The sunshine law is applicable between a board member and any individual who is not a member of the board when the individual is being used as a liaison between, or to conduct a de facto meeting of, council/commission members.

13. QUESTION – WHAT TYPES OF DISCUSSIONS OR EVENTS ARE COVERED BY THE SUNSHINE LAW? ANSWER –EVERYTHING Informal discussions, workshops.Again, the sunshine law applies to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matters on which foreseeable action will be taken by the public board or commission. This includes:Executive work sessions and conference sessions Thus, the Sunshine Law is applicable to all functions of covered boards and commissions, whether formal or informal, which relate to the affairs and duties of the board or commission.

14. QUESTION – ARE INVESTIGATIVE MEETINGS CONFIDENTIAL? ANSWER: GENERALLY, NO. The Sunshine Law is applicable to investigative inquiries of public boards or commissions. The fact that a meeting concerns alleged violations of law or regulations does not remove it from the scope of the law. Further, in the absence of a specific legislative exemption (such as discrimination, ethics, government inspector general, active criminal investigations), investigative records made or received by public agencies are open to public inspection.

15. QUESTION – WHAT IF I SEE A FELLOW BOARD MEMBER AT A SOCIAL EVENT? ANSWER – RUN! Social Events:Members of a public board or commission are not prohibited from meeting together socially, provided that matters which may come before the board or commission are not discussed at such gatherings.

16. QUESTION – WHAT ABOUT MEETINGS WITH THE MUNICIPALITY’S ATTORNEY? ANSWER: DISCUSSIONS BETWEEN A PUBLIC BOARD AND ITS ATTORNEY ARE SUBJECT TO THE SUNSHINE LAW.  However, discussions between a board member and an attorney are not, if said discussions do not fall within the gamut of the Sunshine Law; nor are the attorney’s opinions subject to disclosure under the Public Records Act. Note: A discussion or activity that is not a meeting for purposes of s. 286.011 shall not be construed to waive the attorney-client privilege established in this section. This shall not be construed to constitute an exemption to either s. 119.07 or s. 286.011.

17. QUESTION – WHAT ABOUT MEETINGS WITH THE MUNICIPALITY’S ATTORNEY? Members of the board can meet in private with the municipality's attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency provided that certain conditions are met: • The municipality’s attorney must advise the council/commission at a public meeting that he/she desires to advise the council/commission concerning the litigation. • The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. 

18. QUESTION – WHAT ABOUT MEETINGS WITH THE MUNICIPALITY’S ATTORNEY? • The entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussions and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter’s notes shall be fully transcribed and filed with the municipality’s clerk within a reasonable time after the meeting. • The governing body shall give reasonable public notice of the time and date of the attorney-client session and the names of the persons who will be in attendance. The chair shall announce the commencement and then close the meeting. At the end, the meeting shall be re-opened and termination announced. • The transcript shall be made part of the public record upon conclusion of the litigation.

19. SO……… HOW DO YOU STAY OUT OF JAIL? • Give Notice:One of the key elements of the Sunshine Law is the requirement that “reasonable notice” be given of all meetings.That which constitutes“reasonable”notice is not defined by the law. It is generally required that a minimum of 24 hour notice be given.  The notice should:  • Contain the time and place of the meeting, and may contain an agenda. • It can be prominently displayed in the government building. • Use press releases and/or phone calls to the wire services and other media. This is recommended not mandated.  • If a meeting is to be adjourned and reconvened at a later date, a second notice must be given unless it is a quasi judicial item.

20. WHAT ABOUT THE AGENDA? “I’d like to make a motion to add an issue to the Agenda” IS THIS ALLOWED? ANSWER –YES While it is recommended that, when known, an agenda be published, the Sunshine Law does not mandate that each item to be discussed be included in the notice Thus, the Sunshine Law has been interpreted to require notice of meetings, not of the individual items which may be considered at the meetings. Note:Other laws or agencies may have regulations limiting discussion to agenda items.

21. WHAT ARE THE REQUIREMENTS FOR A MEETING PLACE? • Inspection trips– there are no laws which prohibit members of a council/commission from taking inspection trips, however, if discussions relating to business of the council/commission will occur during the trip, then the requirements of the sunshine law will apply: • Notice  • Public must be afforded a reasonable opportunity to attend.  • Minutes recorded and made available for inspection. • Luncheon meetings:discouraged, since luncheon meetings may have a “chilling” effect upon the public’s willingness or desire to attend. • Meetings at facilities that discriminate or unreasonably restrict access are prohibited. • Out-of-municipality meetings: “balance of interest test” - public must be given reasonable opportunity to attend.

22. WHAT ARE THE REQUIREMENTS OF THE SUNSHINE LAW RELATIVE TO THE PUBLIC’S RIGHT TO ATTEND OR RECORD MEETING? • Size of meeting facility: • Meetings held at a facility which can only accommodate a small number of the public attending, when a large public turnout can reasonably be expected, may violate the public access requirement of the sunshine law. • Inaudible discussions: • Exclusion of certain members of the public: • “Open to the public” means “all” persons who choose to attend. • Cameras and recorders: • A city may not prohibit a citizen fromvideotaping the meeting through the use of non-disruptive video recording devices.

23. WHAT INDIVIDUALS ARE AUTHORIZED TO RECEIVE AND INSPECT COPIES OF PUBLIC RECORDS? • Section 119.01, Florida Statutes, provides that is the policy of this State, that all state county and municipal records are open for personal inspection are open for personal inspection and copying by any person. • Even though it may appear that the person or group are fanatics, harassers or extremely annoying, the public records are available to all of the citizens of Florida. - Salvador v. City of Stuart, No 91-812 CA (Fla. 10th Cir.Ct. 1991) • Give all your documents from your board and committee meetings to the Town Clerk!

24. WHAT ARE THE REQUIREMENTS RELATIVE TO THE PUBLIC’S RIGHT TO PARTICIPATEIN A MEETING? While the right of a person to attend a meeting subject to the Sunshine Law has been addressed by the courts, the extent to which a citizen must be allowed to speak has not.  The First Amendment Foundation, Inc. acknowledges that, when committees carry out certain executive functions which traditionally have been conducted without public input, the public has a right to attend but not participate.  On the other hand, when legislative matters are being conducted, the attorney general has advised that the public should be afforded a meaningful opportunity to participate at each stage of the decision-making process.   Recommendation: Reasonable rules and policies, which ensure the orderly conduct of a public meeting and which require orderly behavior on the part of those persons attending, should be adopted.

25. WHAT ABOUT VOTING? “I don’t want to vote on this item. I abstain.” IS THIS ALLOWED: S.286.012, F.S., Provides: No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting . . . a vote shall be recorded or counted for each such member present, when, with respect to any such member, except there is, or appears to be, a possible conflict of interest. ANSWER – NO

26. IS A ROLL CALL VOTE REQUIRED BY THE SUNSHINE LAW? NO. - However, the Town of South West Ranches Charter requires Roll Call to be taken at Town Council Meetings

27. DOES THE SUNSHINE LAW REQUIRE THAT WRITTEN MINUTES BE KEPT? Yes, the sunshine law requires that minutes of a meeting of a public board or commission be promptly recorded and open to public record inspection. There is no requirement that tape recordings be made. However, once made, such recordings are public record and their destruction or disposal is controlled by s.119.021ands.257.36(7), F.S.. Note: while a board may archive the full text of all workshop discussion conducted on the internet, written minutes of the workshop must also be prepared and promptly recorded.

28. Changes to the Sunshine Law • Substantive Amendments were made to Sections 286.0113 and 119.071(1)(b)(2), Florida Statutes, and went into effect on June 2, 2011.

29. Changes to the Sunshine Law - Procurement Pursuant to the Section 286.0113 Amendments, Florida’s Sunshine Law now precludes public attendance at, “any portion of a team meeting at which negotiation strategies are discussed.” In other words, the public can no longer attend meetings where a public agency discusses strategies for selecting, and negotiating with, proposers of a competitive bidding process. The Legislature determined that, “the efficient administration of the competitive solicitation process would be hindered.” §286.0113(3)(3)

30. DON’T LET THIS HAPPEN TO YOU! • Golden Beach pays $500 in fines and $7,000 in legal fees to settle a civil suit against Councilman, who ordered a citizen removed from a committee meeting. • A judge voids a sewer contract discussed in secret and orders Monroe County to pay $26,285 to a citizens group that sued. • Escambia County Commissioner Terry Smith ordered to pay fines and costs totaling $4,987 and do 250 hours of community service after a jury convicted him of discussing redistricting and landfill issues in private with Commissioner W.D. Childers. • Escambia County Commissioner Mike Bass ordered to pay fines and costs totaling $4,000 after pleading no contest to discussing building projects and land use issues in private with other commissioners. • Escambia County Commissioner Willie Junior pleaded no contest to open meeting violations and other crimes, including bribery and extortion, but he committed suicide before he could be sentenced.

31. DON’T LET THIS HAPPEN TO YOU! • Childers sentenced to 60 days in jail after a jury convicted him of discussing redistricting privately with Smith and he pleads no contest to secretly talking about building issues with two other commissioners. • Two Kissimmee city commissioners faced $50 fines and costs after pleading guilty to civil violations of failing to notify the public of meetings. • Welaka Mayor Gordon Sands pays a $500 fine after pleading no contest to a civil charge of privately discussing the selection of a town council president with a council member. • Former Welaka Town Official, Steve Richardson, ordered to pay a $250 fine after being found guilty of refusing to let two citizens inspect a recreation equipment sign-out sheet. • Oak Hill City Commissioner Bob Jackson fined $250 and ordered to take a sunshine law class after pleading no contest to discussing city business with a now-former commissioner. • Florida Turnpike Enterprise ordered to pay legal expenses of two citizens who sued over secret meetings held by an advisory committee.

32. THANK YOU… Questions and Answers