What are the consequences if a public board or commission fails to comply with the Sunshine Law?
1. Criminal penalties
Any member of a board or commission or of any state agency or authority of a county, municipal corporation, or political subdivision who knowingly violates the Sunshine Law is guilty of a misdemeanor of the second degree. Section 286.011(3)(b), F.S. A person convicted of a second degree misdemeanor may be sentenced to a term of imprisonment not to exceed 60 days and/or fined up to $500. Sections 775.082(4)(b) and 775.083(1)(e), F.S. The criminal penalties apply to members of advisory councils subject to the Sunshine Law as well as to members of elected or appointed boards. AGO 01-84 (school advisory council members).
Conduct which occurs outside the state which constitutes a knowing violation of the Sunshine Law is a second degree misdemeanor. Section 286.011(3)(c), F.S. Such violations are prosecuted in the county in which the board or commission normally conducts its official business while violations occurring within the state may be prosecuted in that county. Section 910.16, F.S.
2. Removal from office
When a method for removal from office is not otherwise provided by the Constitution or by law, the Governor may suspend an elected or appointed public officer who is indicted or informed against for any misdemeanor arising directly out of his or her official duties. Section 112.52(1), F.S. If convicted, the officer may be removed from office by executive order of the Governor. Section 112.52(3), F.S. A person who pleads guilty or nolo contendere or who is found guilty is, for purposes of s. 112.52, F.S., deemed to have been convicted, notwithstanding the suspension of sentence or the withholding of adjudication. Id. Cf. s. 112.51, F.S., and Art. IV, s. 7, Fla. Const.
3. Noncriminal infractions
Section 286.011(3)(a), F.S., imposes noncriminal penalties for violations of the Sunshine Law by providing that any public officer violating the provisions of the Sunshine Law is guilty of a noncriminal infraction, punishable by a fine not exceeding $500. The state attorney may pursue such actions on behalf of the state. State v. Foster, 12 F.L.W. Supp. 1194a (Fla. Broward Co. Ct. September 26, 2005). Accord AGO 91-38. Cf. State v. Foster, 13 F.L.W. Supp. 385a (Fla. 17th Cir. Ct. January 25, 2006) (no right to jury trial is triggered when an individual faces a noncriminal violation of the Sunshine Law).
If a nonprofit corporation is subject to the Sunshine Law, its board of directors constitute "public officers" for purposes of s. 286.011(3)(a), F.S. AGO 98-21. See Goosby v. State, Case No. GF05-(001122-001130,001135)-BA (Fla. 10th Cir. Ct. December 22, 2006), cert. denied, Case No. 2D07-281 (Fla. 2d DCA May 25, 2007) (members of the Polk County Opportunity Council, which had assumed and exercised a delegated governmental function, were "public officers" for purposes of the Sunshine Law and subject to the imposition of the noncriminal infraction fine).
4. Attorney's fees
Reasonable attorney's fees will be assessed against a board or commission found to have violated the Sunshine Law. Section 286.011(4), F.S. See Indian River County Hospital District v. Indian River Memorial Hospital, Inc., 766 So. 2d 233, 235 (Fla. 4th DCA 2000), concluding that the trial court erred by failing to assess attorney's fees against a nonprofit hospital corporation found to have violated the Sunshine Law. And see s. 286.011(5), F.S., authorizing the assessment of attorney fees if a board appeals an order finding the board in violation of the Sunshine Law and the order is affirmed.
While s. 286.011(4), F.S., authorizes an award of appellate fees if a person successfully appeals a trial court order denying access, the statute "does not supersede the appellate rules, nor does it authorize the trial court to make an initial award of appellate attorney's fees." School Board of Alachua County v. Rhea, 661 So. 2d 331 (Fla. 1st DCA 1995), review denied, 670 So. 2d 939, 332 (Fla. 1996). Thus, a person prevailing on appeal must file an appropriate motion in the appellate court in order to receive appellate attorney's fees. Id. If a board appeals an order finding the board in violation of the Sunshine Law, and the order is affirmed, "the court shall assess a reasonable attorney's fee for the appeal" against the board. Section 286.011(5), F.S.
Attorney's fees may be assessed against the individual members of the board except in those cases where the board sought, and took, the advice of its attorney, such fees may not be assessed against the individual members of the board. Section 286.011(4) and (5), F.S.
If a member of a board or commission charged with a violation of s. 286.011, F.S., is subsequently acquitted, the board or commission is authorized to reimburse that member for any portion of his or her reasonable attorney's fees. Section 286.011(7), F.S. Cf. AGO 86-35, stating that this subsection does not authorize the reimbursement of attorney's fees incurred during an investigation of alleged sunshine violations when no formal charges were filed, although common law principles may permit such reimbursement.
Reasonable attorney's fees may be assessed against the individual filing an action to enforce the provisions of s. 286.011, F.S., if the court finds that it was filed in bad faith or was frivolous. Section 286.011(4), F.S. The fact that a plaintiff may be unable to prove that a secret meeting took place, however, does not necessarily mean that attorney's fees will be assessed. See Bland v. Jackson County, 514 So. 2d 1115, 1116 (Fla. 1st DCA 1987), concluding that although the plaintiff was unable to prove that a meeting in violation of the Sunshine Law took place, the evidence showed that the county commission unanimously voted on the issue in an open public meeting without identifying what they were voting on and without any discussion and under these
5. Civil actions for injunctive or declaratory relief
Section 286.011(2), F.S., states that the circuit courts have jurisdiction to issue injunctions upon application by any citizen of this state. While normally irreparable injury must be proved by the plaintiff before an injunction may be issued, in Sunshine Law cases the mere showing that the law has been violated constitutes "irreparable public injury." Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); and Times Publishing Company v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985). The plaintiff's burden is to "establish by the greater weight of the evidence" that a meeting which should have been held in the sunshine took place on the date alleged. Lyon v. Lake County, 765 So. 2d 785, 789 (Fla. 5th DCA 2000).
A complaint for injunctive relief must allege by name or sufficient description the identity of the public official with whom the defendant public official has violated the Sunshine Law. Deerfield Beach Publishing, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988). And see Forehand v. School Board of Gulf County, Florida, 600 So. 2d 1187 (Fla. 1st DCA 1992) (plaintiff was not denied a fair and impartial hearing because the board only briefly deliberated in public before a vote was taken as there was no evidence that the board had privately deliberated on this issue); and Law and Information Services v. City of Riviera Beach, 670 So. 2d 1014 (Fla. 4th DCA 1996) (patent speculation, absent any allegation that a nonpublic meeting in fact occurred, is insufficient to state a cause of action).
Future violations may be enjoined by the court where one violation has been found and it appears that the future violation will bear some resemblance to the past violation or that the danger of future violations can be anticipated from the course of conduct in the past. Board of Public Instruction of Broward County v. Doran, 224, So. 2d 693 (Fla. 1969). See Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (trial court's permanent injunction affirmed). Compare Leach-Wells v. City of Bradenton, 734 So. 2d 1168, 1170n. 1 (Fla. 2d DCA 1999), in which the court noted that had a citizen appealed the trial court's denial of her motion for temporary injunction based on a selection committee’s alleged violation of the Sunshine Law, the appellate court "would have had the opportunity to review this matter before the project was completed and to direct that the City be enjoined from entering into a final contract with the developer until after such time as the ranking of the proposals could be accomplished in compliance with the Sunshine Law."
Although a court cannot issue a blanket order enjoining any violation of the Sunshine Law on a showing that it was violated in particular respects, a court may enjoin a future violation that bears some resemblance to the past violation. Port Everglades Authority v. International Longshoremen's Association, Local 1922-1, 652 So. 2d 1169, 1173 (Fla. 4th DCA 1995). The future conduct must be "specified, with such reasonable definiteness and certainty that the defendant could readily know what it must refrain from doing without speculation and conjecture." Id., quoting from Board of Public Instruction v. Doran, 224 So. 2d 693, 699 (Fla. 1969). And see Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (trial court's permanent injunction affirmed); and Lozman v. City of Riviera Beach, No. 502007CA007552XXXXMBAN (Fla. 15th Cir. Ct. June 9, 2009), appeal pending, No. 4D09-2703 (Fla. 4th DCA July 8, 2009) (grant of injunctive relief against a future violations of city to record minutes of certain meetings appropriate in light of city’s past conduct and consistent refusal to record such minutes even after being advised to do so by the city attorney and because the city "has continuously taken the legal position that local governments are not required by the Sunshine Law to record minutes").
Declaratory relief is not appropriate where no present dispute exists but where governmental agencies merely seek judicial advice different from that advanced by the Attorney General and the state attorney, or an injunctive restraint on the prosecutorial discretion of the state attorney. Askew v. City of Ocala, 348 So. 2d 308 (Fla. 1977).
6. Validity of action taken in violation of the Sunshine Law and subsequent corrective action
Section 286.011, F.S., provides that no resolution, rule, regulation or formal action shall be considered binding except as taken or made at an open meeting.
Recognizing that the Sunshine Law should be construed so as to frustrate all evasive devices, the courts have held that action taken in violation of the law is void ab initio. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979) (resolutions made during meetings held in violation of s. 286.011, F.S., had to be re-examined and re-discussed in open public meetings); Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997) (selection committee rankings resulting from a meeting held in violation of the Sunshine Law are void ab initio and agency enjoined from entering into contract based on such rankings); TSI Southeast, Inc. v. Royals, 588 So. 2d 309 (Fla. 1st DCA 1991) (contract for sale and purchase of real property voided because board failed to properly notice the meeting under s. 286.011, F.S.); and Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), appeal pending, No. SC10-798 (Fla. April 20, 2010) (by failing to open its minutes to public inspection and copying in a timely and reasonable manner, prejudice is presumed and therefore city's approval of minutes is null and void ab initio).
Such a violation need not be "clandestine" in order for a contract to be invalidated because "the principle that a Sunshine Law violation renders void a resulting official action does not depend upon a finding of intent to violate the law or resulting prejudice." Port Everglades Authority v. International Longshoremen's Association, Local 1922-1, 652 So. 2d 1169, 1171 (Fla. 4th DCA 1995). But see Killearn Properties, Inc. v. City of Tallahassee, 366 So. 2d 172 (Fla. 1st DCA 1979), cert. denied, 378 So. 2d 343 (Fla. 1979) (city which had received benefits under contract was estopped from claiming contract invalid as having been entered into in violation of the Sunshine Law).
Where, however, a public board or commission does not merely perfunctorily ratify or ceremoniously accept at a later open meeting those decisions which were made at an earlier secret meeting but rather takes "independent final action in the sunshine," the decision of the board or commission will not be disturbed. Tolar v. School Board of Liberty County, 398 So. 2d 427, 429 (Fla. 1981). Accord Bruckner v. City of Dania Beach, 823 So. 2d 167, 171 (Fla. 4th DCA 2002) (Sunshine violations "can be cured by independent, final action completely in the Sunshine"); and Finch v. Seminole County School Board, 995 So. 2d 1068, 1073 (Fla. 5th DCA 2008) (inadvertent Sunshine violation by school board was cured by subsequent well attended public hearings where rezoning plan was the subject of extensive public comment and debate before being adopted). And see Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 861 (Fla. 3d DCA 1994) (adoption of the open government constitutional amendment, Art. I, s. 24, Fla. Const., did not overrule the Tolar "standard of remediation"). Cf. Board of County Commissioners of Sarasota County v. Webber, 658 So. 2d 1069 (Fla. 2d DCA 1995) (no evidence suggesting that board members met in secret during a recess to reconsider and deny a variance and then perfunctorily ratified this decision at the public hearing held a few minutes later); B.M.Z. Corporation v. City of Oakland Park, 415 So. 2d 735 (Fla. 4th DCA 1982) (where no evidence that any decision was made in private, subsequent formal action in sunshine was not merely perfunctory ratification of secret decisions or ceremonial acceptance of secret actions).
Thus, in a case involving the validity of a lease approved by a board of county commissioners after an advisory committee held two unnoticed meetings regarding the lease, a court held that the Sunshine Law violations were cured when the board of county commissioners held open public hearings after the unnoticed meetings, an effort was made to make available to the public the minutes of the unnoticed meetings, the board approved a lease that was markedly different from that recommended by the advisory committee, and most of the lease negotiations were conducted after the advisory committee had concluded its work. Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 860-861 (Fla. 3d DCA 1994). The court also said that the adoption of the open government constitutional amendment, found at Art. I, s. 24 of the Florida Constitution, did not overrule the Tolar "standard of remediation." Id. at 861.
It must be emphasized, however, that only a full open hearing will cure the defect; a violation of the Sunshine Law will not be cured by a perfunctory ratification of the action taken outside of the sunshine. Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535 So. 2d 694 (Fla. 3d DCA 1988). For example, in Zorc v. City of Vero Beach, 722 So. 2d 891, 903 (Fla. 4th DCA 1998), review denied, 735 So. 2d 1284 (Fla. 1999), the Fourth District explained why a subsequent city council meeting did not cure the council's prior violation of the Sunshine Law:
It is evident from the record that the meeting was not a full reexamination of the issues, but rather, was merely the perfunctory acceptance of the City's prior decision. This was not a full, open public hearing convened for the purpose of enabling the public to express its views and participate in the decision-making process. Instead, this was merely a Council meeting which was then opened to the public for comment at the City's request. There was no significant discussion of the issues or a discourse as to the language sought to be included. The City Councilmen were provided with transcripts of the hearings, but none reviewed the language previously approved, and the Council subsequently voted to deny reconsideration of the wording.
Similarly, a public hearing held by a county commission following an advisory committee's violation of the Sunshine Law failed to cure the "Sunshine Law problem" because the county commission did not "review the complete deliberative process fully in the sunshine." Florida Keys Aqueduct Authority v. Board of County Commissioners, Monroe County, Florida, No. CA-K-00-1170 (Fla. 16th Cir. Ct. May 16, 2001). "Where there are secret or non-public meetings by an advisory board . . . the problem can be cured, but only by scheduling a new meeting of an appropriate deliberative body which will cover the same subject matter previously covered in violation of the Sunshine Law." Id. And see Gateway Southeast Properties, Inc. v. Town of Medley, 14 F.L.W. Supp. 20a (Fla. 11th Cir. Ct. October 24, 2006) (subsequent public meeting did not cure the defects of earlier closed meeting where no evidence was presented and no questions asked or discussion pursued by council members at subsequent open meeting).
The only remedies provided for in the Sunshine Law are a declaration of the wrongful action as void and reasonable attorney fees. Dascott v. Palm Beach County, 988 So. 2d 47 (Fla. 4th DCA 2008), review denied, 6 So. 3d 51 (Fla. 2009) (equitable recovery of back pay not authorized for employment termination conducted in violation of Sunshine Law).