What types of discussions are covered by the Sunshine Law?
1. Informal discussions, workshops
As discussed in s. C.1., supra, 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 matter on which foreseeable action will be taken by the public board or commission. As the Florida Supreme Court said, "collective inquiry and discussion stages" are embraced within the terms of the statute. Town of Palm Beach v. Gradison, 296 So. 2d 474, 477 (Fla. 1974). With these principles in mind, the Attorney General's Office has stated that the following gatherings are subject to the Sunshine Law: "executive work sessions" held by a board of commissioners of a housing authority to discuss policy matters, AGO 76-102; "conciliation conferences" of a human relations board, AGO 74-358; "workshop meetings" of a planning and zoning commission, AGO 74-94; "conference sessions" held by a town council before its regular meetings, AGO 74-62; discussions of preaudit reports of the Auditor General by the governing body of a special district, AGO 73-08. And see Ruff v. School Board of Collier County, 426 So. 2d 1015 (Fla. 2d DCA 1983) (organizational meeting of task force subject to s. 286.011, F.S.).
The Sunshine Law is, therefore, 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. "[T]he Sunshine Law does not provide that cases be treated differently based upon their level of public importance." Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 868 (Fla. 3d DCA 1994). And see Inf. Op. to Nelson, May 19, 1980 (meeting with congressman and city council members to discuss "federal budgetary matters which vitally concern their communities" should be held in the sunshine because "it appears extremely likely that discussion of public business by the council members [and perhaps decision making] will take place at the meeting");
2. Investigative meetings or meetings to consider confidential material
a. Investigative meetings
The Sunshine Law is applicable to investigative inquiries of public boards or commissions. The fact that a meeting concerns alleged violations of laws or regulations does not remove it from the scope of the law. AGO 74-84; and Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973).
A number of statutory exemptions to the Sunshine Law have been enacted to close meetings of some agencies (usually state agencies) when those agencies are making investigatory determinations. For example, s. 112.324(2)(a), F.S. provides that any proceeding related to a complaint or preliminary investigation held by the Florida Commission on Ethics, a county or municipal Commission on Ethics and Public Trust, or a county or municipality that has established a local investigatory process to enforce more stringent standards of conduct and disclosure requirements as provided in s. 112.326 is confidential until the complaint is dismissed, the alleged violator requests that the proceedings be made public, or the commission or the county or municipality that has established such a local investigatory process determines whether probable cause exists. And see s. 455.225(4), F.S. (meetings of probable cause panels of the Department of Business and Professional Regulation confidential until 10 days after probable cause is found to exist or until confidentiality waived by subject of investigation); and s. 472.033(4), F.S. (meetings of probable cause panels for disciplinary proceedings of the Board of Professional Surveyors and Mappers within the Department of Agriculture and Consumer Services are exempt from s. 286.011, F.S., until 10 days after probable cause is found to exist or until confidentiality is waived by subject of investigation).
For additional information regarding exemptions from s. 286.011, F.S., that relate to investigatory proceedings, please consult Appendix D.
b. Meetings to consider confidential material
The Florida Supreme Court has stated that in the absence of a statute exempting a meeting in which privileged material is discussed, s. 286.011, F.S., should be construed as containing no exceptions. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971).
The Public Records Act was amended in 1991 after several district courts held that certain proceedings could be closed when considering confidential material. Section 119.07(7), F.S., provides that an exemption from s. 119.07, F.S., "does not imply an exemption from s. 286.011. The exemption from s. 286.011 must be expressly provided." Thus, exemptions from the Public Records Act do not by implication allow a public agency to close a meeting where exempt records are to be discussed in the absence of a specific exemption from the Sunshine Law. See AGOs 10-04 and 91-75 (school board), 04-44 (PRIDE), 95-65 (district case review committee), 93-41 (county criminal justice commission), 91-88 (pension board) and 91-75 (school board). And see AGOs 05-03 (confidentiality provisions of cited federal law do not authorize child abuse death review committee to close its meetings although the committee should take steps to ensure that identifying information is not disclosed at such meetings), and 96-75 (since transcript of a closed attorney-client session is open to public inspection once the litigation is concluded, city and its attorney should be sensitive to any discussions of confidential medical reports during such a meeting and take precautions to protect the confidentiality of such medical reports so that when the transcript is opened for inspection, the privacy of the employee will not be breached). Cf. AGO 96-40 (a town may not require a complainant to sign a waiver of confidentiality before accepting a whistle-blower's complaint for processing since the Legislature has provided for confidentiality of the whistle-blower's identity).
3. Legal matters
In the absence of a legislative exemption, discussions between a public board and its attorney are subject to s. 286.011, F.S. Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985) (s. 90.502, F.S., providing for the confidentiality of attorney-client communications under the Florida Evidence Code, does not create an exemption for attorney-client communications at public meetings; application of the Sunshine Law to such discussions does not usurp Supreme Court's constitutional authority to regulate the practice of law, nor is it at odds with Florida Bar rules providing for attorney-client confidentiality). Cf. s. 90.502(6), F.S., stating that a discussion or activity that is not a meeting for purposes of s. 286.011, F.S., shall not be construed to waive the attorney-client privilege. And see Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), stating that all decisions taken by legal counsel to a public board need not be made or approved by the board; thus, the decision to appeal made by legal counsel after private discussions with the individual members of the board did not violate s. 286.011, F.S.
There are statutory exemptions, however, which apply to some discussions of pending litigation between a public board and its attorney.
a. Settlement negotiations or strategy sessions related to litigation expenditures
Section 286.011(8), F.S., provides:
Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity's attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, provided that the following conditions are met:
(a) The entity's attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation.
(b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.
(c) 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 discussion 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 entity's clerk within a reasonable time after the meeting.
(d) The entity shall give reasonable public notice of the time and date of the attorney-client session and the names of persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney-client session and the names of the persons attending. At the conclusion of the attorney-client session, the meeting shall be reopened and the person chairing the meeting shall announce the termination of the session.
(e) The transcript shall be made part of the public record upon conclusion of the litigation. (e.s.)
(1) Is s. 286.011(8) to be liberally or strictly construed?
It has been held that the Legislature intended a strict construction of s. 286.011(8), F.S. City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995). "The clear requirements of the statute are neither onerous nor difficult to satisfy." Id. at 1027. Accord School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996).
(2) Who may call an attorney-client meeting?
While section 286.011(8), F.S., does not specify who calls the closed attorney-client meeting, it requires that the governmental entity's attorney "shall advise the entity at a public meeting that he or she desires advice concerning the litigation." Thus, the exemption merely provides a governmental entity's attorney an opportunity to receive necessary direction and information from the governmental entity regarding pending litigation. AGO 04-35. Accordingly, one of the conditions that must be met prior to holding a closed attorney-client meeting is that the city attorney must indicate to the city council at a public meeting that he or she wishes the advice of the city council regarding the pending litigation to which the city is presently a party before a court or administrative agency. Inf. Op. to Vock, July 11, 2001. "If the city attorney does not advise the city council at a public meeting that he or she desires the council's advice regarding the litigation, the city council is not precluded from providing such advice to the city attorney but it must do so at a public meeting." Id.
The requirement that the board's attorney advise the board at a public meeting that he or she desires advice concerning litigation, is not satisfied by a previously published notice of the closed session; such an announcement must be made at a public meeting of the board. AGO 04-35. The request may be made during a special meeting provided that the special meeting at which the request is made is open to the public, reasonable notice has been given, and minutes are taken. AGO 07-31.
(3) Who may attend?
Only those persons listed in the statutory exemption, i.e., the entity, the entity's attorney, the chief administrative officer of the entity, and the court reporter are authorized to attend a closed attorney-client session. Other staff members or consultants are not allowed to be present. School Board of Duval County v. Florida Publishing Company, 670 So. 2d at 101. See Zorc v. City of Vero Beach, 722 So. 2d 891, 898 (Fla. 4th DCA 1998), review denied, 735 So. 2d 1284 (Fla. 1999) (city charter provision requiring that city clerk attend all council meetings does not authorize clerk to attend closed attorney-client session; municipality may not authorize what the Legislature has expressly forbidden); AGO 01-10 (clerk of court not authorized to attend); and AGO 09-52 (attorneys representing superintendent not authorized to attend closed session to discuss settlement of administrative action in which school board is the named party).
Since the entity's attorney is permitted to attend the closed session, if the school board hires outside counsel to represent it in pending litigation, both the school board attorney and the litigation attorney may attend a closed session. AGO 98-06. See Zorc v. City of Vero Beach, 722 So. 2d at 898 (attendance of special counsel authorized).
In rejecting the argument that the exemption should be construed so as to allow staff to attend closed attorney-client sessions, the courts have noted that individual board members are free to meet privately with staff at any time since "staff members are not subject to the Sunshine Law." Zorc v. City of Vero Beach, 722 So. 2d at 899; School Board of Duval County v. Florida Publishing Company, 670 So. 2d at 101. Cf. AGO 95-06 (s. 286.011, F.S., does not authorize the temporary adjournment and reconvening of meetings in order for members who are attending such a session to leave the room and consult with others outside the meeting). And see s. C.2.d., supra, regarding the Sunshine Law's application to meetings between individual board members and staff, if staff is being used as a liaison between, or to conduct a de facto meeting of, board members.
However, as the Attorney General's Office recognized in AGO 08-42, qualified interpreters for the deaf are treated by the Americans with Disabilities Act as auxiliary aids in the nature of hearing aids and other assistive devices and may attend litigation strategy meetings of a board or commission to interpret for a deaf board member without violating section 286.011(8), F.S.
(4) Is substantial compliance with the conditions established in the statute adequate?
In City of Dunnellon v. Aran, supra, the court said that a city council's failure to announce the names of the lawyers participating in a closed attorney-client session violated the Sunshine Law. The court rejected the city's claim that when the mayor announced that attorneys hired by the city would attend the session (but did not give the names of the individuals), his "substantial compliance" was sufficient to satisfy the statute. Cf. Zorc v. City of Vero Beach, 722 So. 2d at 901, noting that deviation from the agenda at an attorney-client session is not authorized; while such deviation is permissible if a public meeting has been properly noticed, "there is no case law affording the same latitude to deviations in closed door meetings."
(5) What kinds of matters may be discussed at the attorney-client session?
Section 286.011(8)(b), F.S., states that the subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. If a board goes beyond the "strict parameters of settlement negotiations and strategy sessions related to litigation expenditures" and takes "decisive action," a violation of the Sunshine Law results. Zorc v. City of Vero Beach, 722 So. 2d at 900. And see AGO 99-37 (closed-meeting exemption may be used only when the attorney for a governmental entity seeks advice on settlement negotiations or strategy relating to litigation expenditures; such meetings should not be used to finalize action or discuss matters outside these two narrowly prescribed areas). Accord AGO 04-35.
Section 286.011(8), F.S., “simply provides a governmental entity’s attorney an opportunity to receive necessary direction and information from the government entity. No final decisions on litigation matters can be voted on during these private, attorney-client strategy meetings. The decision to settle a case, for a certain amount of money, under certain conditions is a decision which must be voted upon in a public meeting.” School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99, 100 (Fla. 1st DCA 1996), quoting Staff of Fla. H.R. Comm. on Gov't Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement 2 (Fla. State Archives), at 3.
Thus, "[t]he settlement of a case is exactly that type of final decision contemplated by the drafters of section 286.011(8) which must be voted upon in the sunshine." Zorc v. City of Vero Beach, 722 So. 2d at 901. Accord AGO 08-17 (any action to approve a settlement or litigation expenditures must be voted on in a public meeting). See also Freeman v. Times Publishing Company, 696 So. 2d 427 (Fla. 2d DCA 1997) (discussion of methods or options to achieve continuing compliance with a long-standing federal desegregation mandate [such as whether to modify the boundaries of a school zone to achieve racial balance] must be held in the sunshine). Compare Bruckner v. City of Dania Beach, 823 So. 2d 167, 172 (Fla. 4th DCA 2002) (closed city commission meeting to discuss various options to settle a lawsuit involving a challenge to a city resolution, including modification of the resolution, authorized because the commission "neither voted, took official action to amend the resolution, nor did it formally decide to settle the litigation"); and Brown v. City of Lauderhill, 654 So. 2d 302, 303 (Fla. 4th DCA 1995) (closed-door session between city attorney and board to discuss claims for attorney's fees, authorized).
(6) When is an agency a party to "pending litigation" for purposes of the exemption?
Section 286.011(8) permits an entity to use the exemption if the entity "is presently a party before a court or administrative agency . . . ." A city council and its attorney may, therefore, hold a closed-door meeting pursuant to this statute to discuss settlement negotiations or strategy related to litigation expenditures for pending litigation involving a workers' compensation claim where a petition for benefits as prescribed in s. 440.192, F.S., has been filed. AGO 96-75.
In Brown v. City of Lauderhill, 654 So. 2d 302 (Fla. 4th DCA 1995), the court said it could "discern no rational basis for concluding that a city is not a 'party' to pending litigation in which it is the real party in interest." And see Zorc v. City of Vero Beach, 722 So. 2d at 900 (city was presently a party to ongoing litigation by virtue of its already pending claims in bankruptcy proceedings); and AGOs 09-15 (exemption applicable when city is real party in interest of a pending lawsuit despite not being a named party at the time of the meeting), and 08-17 (health care district may hold a closed attorney-client meeting to discuss settlement negotiations and strategies related to litigation expenditures for pending litigation in which its wholly-owned subsidiary holding company is the named party).
Although the Brown decision established that the exemption could be used by a city that was a real party in interest on a claim involved in pending litigation, that decision does not mean that an agency may meet in executive session with its attorney where there is only the threat of litigation. See AGOs 04-35 and 98-21 (s. 286.011 exemption "does not apply when no lawsuit has been filed even though the parties involved believe litigation is inevitable"). And see AGOs 06-03 (exemption not applicable to pre-litigation mediation proceedings), 09-14 (exemption not applicable to discussion of terms of mediation in conflict resolution proceedings under the "Florida Governmental Conflict Resolution Act," ss. 164.101-164.1061, F.S.), and 09-25 (town council which received pre-suit notice letter under the Bert J. Harris Act, s. 70.001, F.S., is not a party to pending litigation for purposes of s. 286.011, F.S.).
(7) When is litigation "concluded" for purposes of s. 286.011(8)(e)?
An action or lawsuit is "pending" from its inception until the rendition of a final judgment. AGO 06-03. Litigation that is ongoing but temporarily suspended pursuant to a stipulation for settlement has not been concluded for purposes of s. 286.011(8), F.S., and a transcript of meetings held between the city and its attorney to discuss such litigation may be kept confidential until conclusion of the litigation. AGO 94-64. And see AGO 94-33 (a public agency may maintain the confidentiality of a record of a strategy or settlement meeting between a public agency and its attorney until the suit is dismissed with prejudice or the applicable statute of limitations has run). Cf. AGO 96-75 (disclosure of medical records to a city council during a closed-door meeting under s. 286.011, F.S., does not affect requirement that the transcript of such a meeting be made a part of the public record at the conclusion of the litigation).
b. Risk management exemption
Section 768.28(16)(c), F.S., states that portions of meetings and proceedings relating solely to the evaluation of claims or to offers of compromise of claims filed with a risk management program of the state, its agencies and subdivisions, are exempt from s. 286.011, F.S. The minutes of such meetings and proceedings are also exempt from public disclosure until the termination of the litigation and settlement of all claims arising out of the same incident. Section 768.28(16)(d), F.S.
This exemption is limited and applies only to tort claims for which the agency may be liable under s. 768.28, F.S. AGO 04-35. The exemption is not applicable to meetings held prior to the filing of a tort claim with the risk management program. AGO 92-82. Moreover, a meeting of a city's risk management committee is exempt from the Sunshine Law only when the meeting relates solely to the evaluation of a tort claim filed with the risk management program or relates solely to an offer of compromise of a tort claim filed with the risk management program. AGO 04-35.
Unlike s. 286.011(8), F.S., s. 768.28(16), F.S., does not specify the personnel who are authorized to attend the meeting. See AG0 00-20, advising that personnel of the school district who are involved in the risk management aspect of the tort claim being litigated or settled may attend such meetings without jeopardizing the confidentiality provisions of the statute.
c. Notice of settlement of tort claim
A governmental entity, except a municipality or county, settling a claim in tort which requires the expenditure of more than $5,000 in public funds, is required to provide notice pursuant to Ch. 50, F.S., of the settlement in the county in which the claim arose within 60 days of entering into the settlement. No notice is required if the settlement has been approved by a court of competent jurisdiction. Section 69.081(9), F.S.
4. Personnel matters
Meetings of a public board or commission at which personnel matters are discussed are not exempt from the provisions of s. 286.011, F.S., in the absence of a specific statutory exemption. 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). And see AGO 10-14 (three member team established by charter school board of directors to review personnel decisions of the school subject to Sunshine Law).
a. Collective bargaining discussions
(1) Strategy sessions
A limited exemption from s. 286.011, F.S., exists for discussions between the chief executive officer of the public employer, or his or her representative, and the legislative body of the public employer relative to collective bargaining. Section 447.605(1), F.S. A similar exemption is contained in s. 110.201(4), F.S., for discussions between the Department of Management Services and the Governor, between the department and the Administration Commission or agency heads, or between any of their respective representatives, relative to collective bargaining.
A duly-appointed labor negotiating committee of a city that does not have a city manager or city administrator qualifies as the "chief executive officer" for purposes of s. 447.605(1), F.S., and may use the exemption when meeting with the city council to discuss collective bargaining. AGO 85-99. And see AGO 99-27, concluding that a committee formed by the city manager to represent the city in labor negotiations may participate in closed executive sessions conducted pursuant to s. 447.605(1), F.S. The exemption also extends to meetings of the negotiating committee itself which are held to discuss labor negotiation strategies, including when the committee adjourns during negotiations to hold a caucus among its members to determine the strategy to be employed in ongoing negotiations. Id.
If a school superintendent's responsibility to conduct collective bargaining on behalf of the school board has been completely delegated to a separate labor negotiating committee and the superintendent does not participate in the collective bargaining negotiations, the exemption afforded by s. 447.605(1), F.S., applies to discussions between the committee and the school board only and does not encompass discussions among the committee, school board and superintendent. AGO 98-06.
The exemption afforded by s. 447.605(1), F.S., applies only in the context of actual and impending collective bargaining negotiations. AGO 85-99. It does not allow private discussions of a proposed "mini-PERC ordinance" or the stance a public body intends to adopt in regard to unionization and/or collective bargaining. AGO 75-48. Moreover, a public body may not conduct an entire meeting outside the Sunshine Law merely by discussing one topic during the course of that meeting which may be statutorily exempt from s. 286.011, F.S. AGO 85-99.
Section 447.605(1), F.S., does not directly address the dissemination of information that may be obtained at the closed meeting, but there is clear legislative intent that matters discussed during such meetings are not to be open to public disclosure. AGO 03-09.
The collective bargaining negotiations between the chief executive officer and a bargaining agent are not exempt and pursuant to s. 447.605(2), F.S., must be conducted in the sunshine. Once the collective bargaining process begins, when one side or its representative, whether before or after the declaration of an impasse, meets with the other side or its representative to discuss anything relevant to the terms and conditions of the employer-employee relationship, the meeting is subject to the Sunshine Law. City of Fort Myers v. News-Press Publishing Company, Inc., 514 So. 2d 408, 412 (Fla. 2d DCA 1987). Accord AGO 99-27. As with other meetings subject to s. 286.011, F.S., minutes of the negotiation meeting must be kept. Inf. Op. to Fulwider, June 14, 1993.
The Legislature has, therefore, divided Sunshine Law policy on collective bargaining for public employees into two parts: when the public employer is meeting with its own side, it is exempt from the Sunshine Law; when the public employer is meeting with the other side, it is required to comply with the Sunshine Law. City of Fort Myers v. News-Press Publishing Company, Inc., 514 So. 2d at 412; and AGO 76-102. Cf. Palm Beach County Classroom Teachers' Association v. School Board of Palm Beach County, 411 So. 2d 1375, 1376 (Fla. 4th DCA 1982) (collective bargaining agreement cannot be used "to circumvent the requirements of public meetings" in s. 286.011, F.S.).
b. Complaint review boards, disciplinary proceedings and grievances
A complaint review board of a city police department is subject to the Government in the Sunshine Law. Barfield v. City of West Palm Beach, No. CL94-2141-AC (Fla. 15th Cir. Ct. May 6, 1994). Accord AGOs 78-105 (police complaint review boards convened pursuant to s. 112.532, F.S., are subject to the Sunshine Law), and 80-27 (sheriff civil service board created by special act). And see AGO 93-79 (discussions between two members of a three-member complaint review board regarding their selection of the third member of the board must be conducted in accordance with s. 286.011, F.S.). Compare Molina v. City of Miami, 837 So. 2d 463 (Fla. 3d DCA 2002) (Sunshine Law does not apply to a Discharge of Firearms Review Committee, composed of three deputy chiefs of police, because the committee is nothing more than a meeting of staff members who serve in a fact-finding advisory capacity to the chief ).
Similarly, meetings of a board or commission to conduct disciplinary proceedings are subject to the Sunshine Law in the absence of a statutory exemption. See, e.g., AGOs 92-65 (employee termination hearing), 07-54 (while post-termination hearing before city manager are not subject to the Sunshine Law, hearings before a three member panel appointed by the city manager should be open), and 10-14 (team created by charter school board of directors to review employment decisions is subject to the Sunshine Law). And see News-Press Publishing Company v. Wisher, 345 So. 2d 646, 647-648 (Fla. 1977), in which the Court disapproved of a county's use of "pseudonyms or cloaked references" during a meeting held to reprimand an unnamed department head. Cf. Inf. Op. to Gerstein, July 16, 1976, noting that a discussion between two city councilmen and the city manager regarding the city manager's resignation was subject to the Sunshine Law.
A meeting of a municipal housing authority commission to consider an employee's appeal of his or her dismissal by the executive director must be open to the public. AGO 92-65. See also AGO 77-132 (personnel council composed of citizens appointed by members of county commission to hear appeals from county employees who have been disciplined not authorized to deliberate in secret). And see Dascott v. Palm Beach County, 877 So. 2d 8 (Fla. 4th DCA 2004) (deliberations of pre-termination panel composed of the department head, personnel director and equal opportunity director should have been held in the Sunshine). Compare Jordan v. Jenne, 938 So. 2d 526 (Fla. 4th DCA 2006) (Sunshine Law not applicable to a professional standards committee responsible for reviewing charges against a sheriff's deputy and making recommendations to the inspector general as to whether the charges should be sustained, dismissed, or whether the case should be deferred for more information); McDougall v. Culver, 3 So. 3d 391 (Fla. 2d DCA 2009).
Where, however, a mayor as chief executive officer, rather than the city council, is responsible under the city charter for disciplining city employees, meetings between the mayor and a city employee concerning discipline of the employee are not subject to the Sunshine Law. City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989).
The Sunshine Law also applies to board discussions concerning grievances. AGO 76-102. And see Palm Beach County Classroom Teacher's Association v. School Board of Palm Beach County, 411 So. 2d 1375 (Fla. 4th DCA 1982), in which the court affirmed the lower tribunal's refusal to issue a temporary injunction to exclude a newspaper reporter from a grievance arbitration hearing. A collective bargaining agreement cannot be used "to circumvent the requirements of public meetings" in s. 286.011, F.S. Id. at 1376. See also Dascott v. Palm Beach County, supra (grievance committee hearings subject to Sunshine Law); and AGO 84-70 (Sunshine Law applies to staff grievance committee created to make nonbinding recommendations to a county administrator regarding disposition of employee grievances).
Meetings of a board to evaluate employee performance are not exempt from the Sunshine Law. See AGO 89-37 (Sunshine Law applies to meetings of a board of county commissioners when conducting job evaluations of county employees).
A board that is responsible for assessing the performance of its chief executive officer (CEO) should conduct the review and appraisal process in a proceeding open to the public as prescribed by s. 286.011, F.S., instead of using a review procedure in which individual board members evaluate the CEO's performance and send their individual written comments to the board chairman for compilation and subsequent discussion with the CEO. AGO 93-90. However, meetings of individual school board members with the superintendent to discuss the individual board members' evaluations do not violate the Sunshine Law when such evaluations do not become the board's evaluation until they are compiled and discussed at a public meeting by the school board for adoption by the board. AGO 97-23.
The Sunshine Law applies to meetings of a board of county commissioners when interviewing applicants for county positions appointed by the board, when conducting job evaluations of county employees answering to and serving at the pleasure of the board, and when conducting employment termination interviews of county employees who serve at the pleasure of the board. AGO 89-37. And see AGO 75-37 (state commission must conduct interviews relating to hiring of its lawyer in public); and AGO 71-389 (district school board conducting employment interviews for district school superintendent applicants would violate the Sunshine Law if such interviews were held in secret).
e. Selection and screening committees
The Sunshine Law applies to advisory committees created by an agency to assist in the selection process. In Wood v. Marston, 442 So. 2d 934 (Fla. 1983), a committee created to screen applications and make recommendations for the position of a law school dean was held to be subject to s. 286.011, F.S. By screening applicants and deciding which applicants to reject from further consideration, the committee performed a policy-based, decision-making function delegated to it by the president of the university. And see AGOs 80-20 (selection committee appointed to screen and rank applicants for submission to the city council subject to the Sunshine Law even though the city council was not bound by the committee's rankings), and 80-51 (Sunshine Law applicable to city selection committee screening proposals from consultants and audit firms). Cf. Dore v. Sliger, No. 90-1850 (Fla. 2d Cir. Ct. July 11, 1990) (faculty of university law school prohibited from conducting secret ballots on personnel hiring matters); and AGO 10-14 (team to review charter school employment decisions subject to Sunshine Law).
However, if the sole function of the screening committee is simply to gather information for the decision-maker, rather than to accept or reject applicants, the committee's activities are outside the Sunshine Law. See Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985), holding that the Sunshine Law was not violated when the city manager, who was responsible for selecting the new police chief, asked several people to sit in on the interviews as the only function of this group was to assist the city manager in acquiring information on the applicants he had chosen by asking questions during the interviews and then discussing the qualifications of each candidate with the city manager after the interview. And see Knox v. District School Board of Brevard, 821 So. 2d 311, 314 (Fla. 5th DCA 2002), holding that an
For more information on this subject, please refer to the discussion on advisory bodies found in s. B.2., supra.
5. Purchasing or bid evaluation committees
A committee appointed by a college's purchasing director to consider proposals submitted by contractors was held to be subject to the Sunshine Law because its function was to "weed through the various proposals, to determine which were acceptable and to rank them accordingly." Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099, 1100 (Fla. 3d DCA 1997). Accord Inf. Op. to Lewis, March 15, 1999 (panels established by state agency to create requests for proposals and evaluate vendor responses are subject to the Sunshine Law). And see Leach-Wells v. City of Bradenton, 734 So. 2d 1168, 1171 (Fla. 2d DCA 1999) (selection committee created by city council to evaluate proposals violated the Sunshine Law when the city clerk unilaterally ranked the proposals based on the committee members' individual written evaluations; the court held that "the short-listing was formal action that was required to be taken at a public meeting"). Cf. s. 286.0113(2), F.S., providing an exemption from the Sunshine Law for meetings at which a negotiation with a vendor is conducted pursuant to s. 287.057(1), F.S.
In Port Everglades Authority v. International Longshoremen's Association, Local 1922-1, 652 So. 2d 1169, 1170 (Fla. 4th DCA 1995), the court ruled that a board's selection and negotiation committee violated the Sunshine Law when competing bidders were requested to excuse themselves from the committee meeting during presentations by competitors. The court found that the committee's actions "amounted to a de facto exclusion of the competitors, especially since the 'request' was made by an official directly involved with the procurement process." Cf. Pinellas County School Board v. Suncam, Inc., 829 So. 2d 989 (Fla. 2d DCA 2002) (school board violated the Sunshine Law when it refused to permit videotaping of a public meeting held to evaluate general contractor construction proposals).
6. Quasi-judicial proceedings
The Florida Supreme Court has stated that there is no exception to the Sunshine Law which would allow closed-door hearings or deliberations when a board or commission is acting in a "quasi-judicial" capacity. Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973). See also Occidental Chemical Company v. Mayo, 351 So. 2d 336, 340 n.7 (Fla. 1977), disapproved in part on other grounds, Citizens v. Beard, 613 So. 2d 403 (Fla. 1992) (characterization of the Public Service Commission's decision-making process as "quasi-judicial" did not exempt it from s. 286.011, F.S.); and Palm Beach County Classroom Teacher's Association v. School Board of Palm Beach County, 411 So. 2d 1375 (Fla. 4th DCA 1982), affirming the lower court's refusal to issue a temporary injunction to exclude a newspaper reporter from a grievance hearing.
The Attorney General's Office has concluded that deliberations of the following boards or commissions are subject to s. 286.011, F.S., notwithstanding the fact that the boards or commissions are acting in a "quasi-judicial" capacity: municipal housing authority, AGO 92-65; municipal board of adjustment, AGO 83-43; personnel council created to hear appeals of disciplined employees, AGO 77-132; assessment administration review commission, AGO 75-37; civil service board, AGOs 73-370 and 71-29; fair housing and employment appeals board, Inf. Op. to Beare, April 20, 1977.
7. Real property negotiations
In the absence of a statutory exemption, the negotiations by a public board or commission for the sale or purchase of property must be conducted in the sunshine. See City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971) (city commission not authorized to hold closed sessions to discuss condemnation issues). In addition, if the authority of the public board or commission to acquire or lease property has been delegated to a single member, that member is subject to s. 286.011, F.S., and is prohibited from negotiating the acquisition or lease of the property in secret. AGO 74-294. Cf. AGO 95-06 (statutory exemption from Ch. 119, F.S., for certain records relating to the proposed purchase of real property does not authorize a city or its designee to conduct negotiations for purchase of property outside the Sunshine Law).
Advisory committees charged with land acquisition responsibilities are also subject to the Sunshine Law. See AGOs 87-42 (ad hoc committee appointed by mayor to meet with the Chamber of Commerce to discuss a proposed transfer of city property), and 86-51 (land selection committee appointed by water management district to evaluate and recommend projects for acquisition).