Transcript No Slide Title

GOVERNMENT-IN-THE SUNSHINE
Town of Southwest Ranches
November, 2014
Keith M. Poliakoff
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…
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.
1.
Meeting of public boards or commissions
must be open to the public;
2.
Reasonable notice of such meeting must
be given; and
3.
Minutes of the meetings must be taken.
4.
Venue must be accessible.
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); citing Town 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.
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.
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).
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
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.
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.
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 among the 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.
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 conducting
a hearing or investigatory proceeding on
behalf of the entire board.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 from
videotaping the meeting through the use
of non-disruptive video recording devices.
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!
WHAT ARE THE REQUIREMENTS RELATIVE
TO THE PUBLIC’S RIGHT TO PARTICIPATE
IN 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 decisionmaking 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.
WHAT ABOUT VOTING?
“I don’t want to vote on this item. I abstain.”
IS THIS ALLOWED:
ANSWER – NO
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.
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
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.119.021 and s.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.
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.
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)
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.
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.
THANK YOU…
Questions and Answers