Does the Sunshine Law apply to:
1. members-elect or candidates;
2. meetings between members of different boards;
3. meetings between a mayor and a member of the city council;
4. meetings between a board member and his or her alternate;
5. meetings between an ex officio, non-voting board member and a voting member of the board;
6. community forums sponsored by private organizations;
7. board members attending meetings of another public board;
8. social events; or
9. a husband and wife serving on the same board?
1. Members-elect or candidates
Members-elect of boards or commissions are subject to the Sunshine Law. See Hough v. Stembridge, 278 So. 2d 288, 289 (Fla. 3d DCA 1973) (individual, upon election to public office, loses his or her status as a private individual and acquires a position more akin to that of a public trustee and therefore is subject to s. 286.011, F.S.). And see AGO 74-40 (members-elect may be liable for "sunshine" violations).
However, the Sunshine Law does not apply to a briefing session between a retiring mayor and the mayor-elect who is not an incumbent council member since the mayor and the mayor-elect do not, and will not once the mayor-elect takes office, serve together on the city council. AGO 93-04. Nor does the Sunshine Law apply to candidates for office, unless the candidate is an incumbent seeking reelection. AGO 92-05. And see AGO 98-60 (although a candidate running for city commission may be unopposed, he or she is not considered to be elected until the election has been held and therefore is not a member-elect for purposes of the Sunshine Law until that time).
2. Meetings between members of different boards
The Sunshine Law does not apply to a meeting between individuals who are members of different boards unless one or more of the individuals has been delegated the authority to act on behalf of his or her board. Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984). Accord AGO 84-16 (meeting between the chair of a private industry council created pursuant to federal law and the chair of a five-county employment and training consortium created pursuant to state law is not subject to Sunshine Law, unless there is a delegation of decision-making authority to the chair of the consortium); and Inf. Op. to McClash, April 29, 1992 (Sunshine Law generally not applicable to county commissioner meeting with individual member of metropolitan planning organization). And see News-Press Publishing Company, Inc. v. Lee County, Florida, 570 So. 2d 1325 (Fla. 2d DCA 1990) (Sunshine Law not applicable to mediation proceeding attended by individual members of city and county boards who were in litigation because only one member of each board was present at the proceedings and no final settlement negotiations could be made during the mediation conference).
An individual city council member may, therefore, meet privately with an individual member of the municipal planning and zoning board to discuss a recommendation made by that board since two or more members of either board are not present, provided that no delegation of decision-making authority has been made and neither member is acting as a liaison. AGO 87-34. Accord AGOs 99-55 (school board member meeting with member of advisory committee established by school board), and 97-52 (discussions between individual member of community college board of trustees and school board member regarding acquisition of property by school board).
3. Meetings between a mayor and a member of the city council
If the mayor is a member of the council or has a voice in decision-making through the power to break tie votes, meetings between the mayor and a member of the city council to discuss some matter which will come before the city council are subject to the Sunshine Law. AGOs 83-70 and 75-210. Cf. AGO 92-26 (discussions between the mayor and city administrator, who are members of a personnel committee responsible for making recommendations to the city council, on matters which foreseeably will come before the committee for action are governed by s. 286.011, F.S.).
Where, however, the mayor is not a member of the city council and does not possess any power to vote even in the case of a tie vote but possesses only the power to veto legislation, then the mayor may privately meet with an individual member of the city council without violating the Sunshine Law, provided the mayor is not acting as a liaison between members and neither individual has been delegated the authority to act on behalf of the council. AGOs 90-26 and 85-36. And see Inf. Op. to Cassady, April 7, 2005 (mayor who is not a member of the city council and cannot vote even in the event of a tie, may meet with an individual council member to discuss the mayor's recommendations to the council concerning prospective appointees).
If a decision falls within the administrative functions of the mayor and would not come before the city council for consideration, discussions between an individual member of the city council and the mayor are not subject to the Sunshine Law since such discussions do not relate to a matter which will foreseeably come before the city council for action. AGOs 83-70 and 75210. See s. B.10., supra. Cf. City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989) (since mayor was responsible under the city charter for disciplining city employees, mayor in carrying out this function was not subject to s. 286.011, F.S.).
4. Meetings between a board member and his or her alternate
Since the alternate is authorized to act only in the absence of a board or commission member, there is no meeting of two individuals who exercise independent decision-making authority at the meeting. There is, in effect, only one decision-making official present. Therefore, a meeting between a board member and his or her alternate is not subject to the Sunshine Law. AGO 88-45.
5. Meetings between an ex officio, non-voting board member and a voting member of the board
Meetings between a voting member of a board and a non-voting member who serves as a member of the board in an ex officio, non-voting capacity, are subject to the Sunshine Law. AGO 05-18.
6. Community forums sponsored by private organizations
A "Candidates' Night" sponsored by a private organization at which candidates for public office, including several incumbent city council members, will speak about their political philosophies, trends, and issues facing the city, is not subject to the Sunshine Law unless the council members discuss issues coming before the council among themselves. AGO 92-05. Compare Inf. Op. to Jove, January 12, 2009, concluding that a public forum hosted by a city council member with city council members invited to attend and participate in the discussion would be subject to s. 286.011, F.S.
Similarly, in AGO 94-62, the Attorney General's Office concluded that the Sunshine Law does not apply to a political forum sponsored by a private civic club during which county commissioners express their position on matters that may foreseeably come before the commission, so long as the commissioners avoid discussions among themselves on these issues. And see AGO 08-18 (participation by two city council members in a citizens police academy does not violate the Sunshine Law; “[t]he educational course is not changed into a meeting of a board or commission . . . by the attendance and participation of members of the city council in the course work of the academy”).
However, caution should be exercised to avoid situations in which private political or community forums may be used to circumvent the statute's requirements. Id. See Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974) (Sunshine Law must be construed "so as to frustrate all evasive devices"). For example, in State v. Foster, 12 F.L.W. Supp. 1194a (Fla. Broward Co. Ct. September 26, 2005), the court rejected the argument that the Sunshine Law permitted city commissioners to attend a private breakfast meeting at which the sheriff spoke and the commissioners individually questioned the sheriff but did not direct comments or questions to each other. The court denied the commissioners' motion for summary judgment and ruled that the discussion should have been held in the Sunshine because the sheriff was a "common facilitator" who received comments from each commissioner in front of the other commissioners.
7. Board members attending meetings of another public board
The Attorney General's Office has stated that the Sunshine Law does not prohibit city commissioners from attending other city board meetings and commenting on agenda items that may subsequently come before the commission for final action, provided the city commissioners attending such meetings do not discuss those issues among themselves. AGO 00-68. And see AGOs 99-55 (school board member may attend a public meeting of an advisory committee without prior notice of his or her attendance; if, however, it is known that two or more members of the school board are planning to be in attendance and participate, it would be advisable to note their attendance in the notice of the advisory committee meeting), and 98-79 (city commissioner may attend a community development board meeting held to consider a proposed city ordinance and express his or her views on the proposed ordinance even though other city commissioners may be in attendance; however, the city commissioners in attendance may not engage in a discussion or debate among themselves). See also AGOs 05-59, 91-95 and 77-138.
When board members also serve on a second public board, the Attorney General's Office has stated that the board members may participate in the meetings of the second board held in accordance with s. 286.011, F.S., and express their opinions relating to the second board's business without violating the Sunshine Law. AGO 07-13 (two county commissioners serving as board members for a regional planning council). And see AGO 98-14, stating that members of a metropolitan planning organization (MPO) who also serve as city council members are not required to separately notice an MPO meeting when they plan to discuss MPO matters at an advertised city council meeting as long as the agenda of the city council meeting mentioned that MPO business would be discussed.
8. Social events
Members of a public board or commission are not prohibited under the Sunshine Law from meeting together socially, provided that matters which may come before the board or commission are not discussed at such gatherings. AGO 92-79. Therefore, a luncheon meeting held by a private organization for members of a public board or commission at which there is no discussion among such officials on matters relating to public business would not be subject to the Sunshine Law merely because of the presence of two or more members of a covered board or commission. AGO 72-158. Accord Inf. Op. to Batchelor, May 27, 1982 (Sunshine Law inapplicable when the gathering of two or more members of a board or commission is entirely for social purposes and no public business is discussed).
9. A husband and wife serving on the same board
There is no per se violation of the Sunshine Law for a husband and wife to serve on the same public board or commission so long as they do not discuss board business without complying with the requirements of s. 286.011, F.S. AGO 89-06.