What is a meeting subject to the Sunshine Law?
WHAT IS A MEETING SUBJECT TO THE SUNSHINE LAW?
1. Number of board members required to be present
The Sunshine Law extends to the discussions and deliberations as well as the formal action taken by a public board or commission. There is no requirement that a quorum be present for a meeting of members of a public board or commission to be subject to s. 286.011, F.S. Instead, 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. Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). And see City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971); and Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969). Thus, discussions between two members of a three-member complaint review board regarding their selection of a third member must be conducted in accordance with the Sunshine Law. AGO 93-79. Cf. AGO 04-58 ("coincidental unscheduled meeting of two or more county commissioners to discuss emergency issues with staff" during a declared state of emergency is not subject to s. 286.011 if the issues do not require action by the county commission).
It is the how and the why officials decided to so act which interests the public, not merely the final decision. As the court recognized in Times Publishing Company v. Williams, 222 So. 2d 470, 473 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985):
Every thought, as well as every affirmative act, of a public official as it relates to and is within the scope of his official duties, is a matter of public concern; and it is the entire decision-making process that the legislature intended to affect by the enactment of the statute before us.
2. Circumstances in which the Sunshine Law may apply to a single individual or where two board members are not physically present
Section 286.011, F.S., applies to public boards and commissions, i.e., collegial bodies, and has been applied to meetings of "two or more members" of the same board or commission when discussing some matter which will foreseeably come before the board or commission. Therefore, the statute does not ordinarily apply to an individual member of a public board or commission or to public officials who are not board or commission members. Inf. Op. to Dillener, January 5, 1990 (Sunshine Law not normally applicable to meeting of town council member with private citizens) See City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989); Deerfield Beach Publishing, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988) (requisite to application of the Sunshine Law is a meeting between two or more public officials); and Mitchell v. School Board of Leon County, 335 So. 2d 354 (Fla. 1st DCA 1976). Cf. Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d DCA 1991), review denied, 598 So. 2d 75 (Fla. 1992), stating that ex parte (i.e., from one side only) communications in quasi-judicial proceedings raise a presumption that the contact was prejudicial to the decision-making process; and s. 286.0115, F.S., enacted in response to the Jennings case, relating to access to local public officials in quasi-judicial proceedings. Compare City of Hollywood v. Hakanson, 866 So. 2d 106 (Fla. 4th DCA 2004) (comments made at a public city commission meeting which related to a terminated employee who had a pending appeal did not constitute an offending ex parte communication simply because a civil service board member was in the audience).
Certain factual situations, however, have arisen where, in order to assure public access to the decision-making processes of public boards or commissions, it has been necessary to conclude that the presence of two individuals of the same board or commission is not necessary to trigger application of s. 286.011, F.S. As stated by the Supreme Court, the Sunshine Law is to be construed "so as to frustrate all evasive devices." Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974).
a. Written correspondence between board members
A commissioner may send a written report to other commissioners on a subject that will be discussed at a public meeting without violating the Sunshine Law, if prior to the meeting, there is no interaction related to the report among the commissioners and the report, which is subject to disclosure under the Public Records Act, is not being used as a substitute for action at a public meeting. AGO 89-23. And see AGO 01-20 (e-mail communication of factual background information from one council member to another is a public record but does not constitute a meeting subject to the Sunshine Law when it does not result in the exchange of council members' comments or responses on subjects requiring council action). Cf. Inf. Op. to Kessler, November 14, 2007 (procedural rule requiring county commissioner to make a written request to commission chair to withdraw an item from the consent agenda does not violate the Sunshine Law).
If, however, the report is circulated among board members for comments with such comments being provided to other members, there is interaction among the board members which is subject to s. 286.011, F.S. AGO 90-03. See also AGO 96-35
In addition, the Attorney General's Office has expressed concern that a process whereby board members distribute their own position papers on the same subject to other members is "problematical" and should be discouraged. See AGO 01-21 (city council's discussions and deliberations on matters coming before the council must occur at a duly noticed city council meeting and the circulation of position statements must not be used to circumvent the requirements of the statute). Accord AGO 07-35; and see AGO 08-07 (city commissioner may post comment regarding city business on blog or message board; however, any subsequent postings by other commissioners on the subject of the initial posting could be construed as a response subject to the Sunshine Law).
Similarly, 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.
b. Meetings conducted over the telephone or using electronic media technology
(1) Discussions conducted via telephones, computers, or other electronic means are not exempted from the Sunshine Law
As discussed in this manual, the Sunshine Law applies to the deliberations and discussions between two or more members of a board or commission on some matter which foreseeably will come before that board or commission for action. The use of a telephone to conduct such discussions does not remove the conversation from the requirements of s. 286.011, F.S. See State v. Childers, No. 02-21939-MMC; 02-21940-MMB (Escambia Co. Ct. June 5, 2003), per curiam affirmed, 886 So. 2d 229 (Fla. 1st DCA 2004) (telephone conversation during which two county commissioners and the supervisor of elections discussed redistricting violated the Sunshine Law).
Similarly, members of a public board may not use computers to conduct private discussions among themselves about board business. AGO 89-39. And see AGO 09-19 (members of a city board or commission may not engage on the city’s Facebook page in an exchange or discussion of matters that foreseeably will come before the board or commission for official action). Cf. Inf. Op. to Galaydick, October 19, 1995
, (school board members may share laptop computer even though computer's hard drive contains information reflecting ideas of an individual member as long as computer is not being used as a means of communication between members); and AGO 01-20 (one-way e-mail communication from one council member to another, which does not result in the exchange of council members' comments or responses on subjects requiring council action, does not constitute a meeting subject to the Sunshine Law; however, such e-mail communications are public records and must be maintained by the records custodian for public inspection and copying).
(2) Authority of boards to conduct public meetings via electronic media technology (e.g., telephone or video conferencing)
(a) State boards
In AGO 98-28, the Attorney General's Office concluded that s. 120.54(5)(b)2., F.S., authorizes state agencies to conduct public meetings via electronic means provided that the board complies with uniform rules of procedure adopted by the state Administration Commission. These rules contain notice requirements and procedures for providing points of access for the public. See Rule 28-109, F.A.C.
(b) Local boards
As to local boards, the Attorney General's Office has noted that the authorization in s. 120.54(5)(b)2., to conduct workshops and official meetings entirely through the use of communications media technology applies only to state agencies. AGO 98-28. Thus, since s. 1001.372(2)(b), F.S., requires a district school board to hold its meetings at a "public place in the county," a quorum of the board must be physically present at the meeting of the school board. Id. And see AGO 09-56 (where a quorum is required and absent a statute to the contrary, the requisite number of members must be physically present at a meeting in order to constitute a quorum). But see Ch. 06-350, Laws of Florida, authorizing the Monroe County Commission to use teleconferencing equipment to qualify for a quorum for a special meeting.
If a quorum of a local board is physically present, "the participation of an absent member by telephone conference or other interactive electronic technology is permissible when such absence is due to extraordinary circumstances such as illness[;] . . . [w]hether the absence of a member due to a scheduling conflict constitutes such a circumstance is a determination that must be made in the good judgment of the board." AGO 03-41. Accord AGOs 94-55 (when a quorum of the board is physically present at the public meeting site in Florida, a museum board may allow an out-of-state member with health problems to participate and vote in board meetings through the use of such devices as a speaker telephone that allow the absent member to participate in discussions, to be heard by other board members and the public and to hear discussions taking place during the meeting), 92-44 (ill county commissioner may participate and vote in commission meetings through use of an interactive video and telephone system, provided a legal quorum of the commission meet in a public place in the county as required by statute), and 02-82 (physically-disabled members of a city advisory committee may participate and vote by electronic means as long as a quorum of the committee members is physically present at the meeting site).
The physical presence of a quorum has not been required, however, where electronic media technology (such as video conferencing and digital audio) is used to allow public access and participation at workshop meetings where no formal action will be taken. In AGO 06-20, the Attorney General's Office concluded that an advisory board composed of representatives from several county metropolitan planning organizations may use electronic media technology to link simultaneously held public meetings of citizens' advisory committees in each of its participating counties, so as to allow all members of the committees and the public to hear and participate at workshops. The use of electronic media technology, however, does not satisfy quorum requirements necessary for official action to be taken. Id.
Similarly, airport authority members may conduct informal discussions and workshops over the Internet, provided proper notice is given, and interactive access by members of the public is provided. AGO 01-66. Such interactive access must include not only public access via the Internet but also at designated places within the authority boundaries where the airport authority makes computers with Internet access available to members of the public who may not otherwise have Internet access. Id. For meetings, however, where a quorum is necessary for action to be taken, physical presence of the members making up the quorum would be required in the absence of a statute providing otherwise. Id. Internet access to such meetings, however, may still be offered to provide greater public access. Id. Cf. AGO 08-65, noting that a city’s plan to provide additional public access to on-line workshop meetings by making computers available at a public library “should ensure that operating-type assistance is available at the library where the computers are located.”
However, the use of an electronic bulletin board to discuss matters over an extended period of days or weeks, which does not permit the public to participate online, violates the Sunshine Law by circumventing the notice and access provisions of that law. AGO 02-32. And see Inf. Op. to Ciocchetti, March 23, 2006 (even though the public would be able to participate online, a town commission's proposed use of an electronic bulletin board to discuss matters that may foreseeably come before the commission over an extended period of time would not comply with the spirit or letter of the Sunshine Law because the burden would be on the public to constantly monitor the site in order to participate meaningfully in the discussion). Compare AGO 08-65 (city advisory boards may conduct workshops lasting no more than two hours using an on-line bulletin board if proper notice is given and interactive access to members of the public is provided).
c. Delegation of authority
"The Sunshine Law does not provide for any 'government by delegation' exception; a public body cannot escape the application of the Sunshine Law by undertaking to delegate the conduct of public business through an alter ego." IDS Properties, Inc. v. Town of Palm Beach, 279 So. 2d 353, 359 (Fla. 4th DCA 1973), certified question answered sub nom., Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). See also News-Press Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 547-548 (Fla. 2d DCA 1982) (when public officials delegate de facto authority to act on their behalf in the formulation, preparation, and promulgation of plans on which foreseeable action will be taken by those public officials, those delegated that authority stand in the shoes of such public officials insofar as the Sunshine Law is concerned). Cf. Leach-Wells v. City of Bradenton, 734 So. 2d 1168, 1171 (Fla. 2d DCA 1999) (committee charged with evaluating proposals violated the Sunshine Law when the city clerk unilaterally tallied the results of the committee members' individual written evaluations and ranked them; the short-listing by the clerk "was formal action that was required to be taken at a public meeting").
Thus, the Attorney General's Office has concluded that a single member of a board who has been delegated the authority to negotiate the terms of a lease on behalf of the board "is subject to the Sunshine Law and, therefore, cannot negotiate for such a lease in secret." AGO 74-294. Accord AGO 84-54. Similarly, when an individual member of a public board, or a board member and the executive director of the board, conducts a hearing or investigatory proceeding on behalf of the entire board, the hearing or proceeding must be held in the sunshine. AGOs 75-41 and 74-84. And see AGO 10-15 (special magistrate subject to the Sunshine Law when exercising the delegated decision-making authority of the value adjustment board).
If a board member or designee has been authorized only to gather information or function as a fact-finder, the Sunshine Law does not apply. AGO 95-06. And see AGO 93-78 (if public board member is authorized only to explore various contract proposals, with such proposals being related back to the governing body for consideration, the discussions between the board member and the applicant are not subject to the Sunshine Law). Cf. State, Department of Management Services v. Lewis, 653 So. 2d 467 (Fla. 1st DCA 1995) (issuance of an order of reconsideration by a board chair does not violate the Sunshine Law where the purpose of the order is to provide notice to the parties and allow them an opportunity to provide argument on the issue).
If, however, the board member has been delegated the authority to reject certain options from further consideration by the entire board, the board member is performing a decision-making function that must be conducted in the sunshine. AGOs 95-06 and 93-78. See also AGO 90-17 (while Sunshine Law not violated by a city council member meeting with private contractor for information gathering purposes, if the board member has been authorized, formally or informally, to exercise any decision-making authority on behalf of the board, such as approving or rejecting certain contract provisions, the board member is acting on behalf of the board and the meetings are subject to s. 286.011, F.S.). And see Broward County v. Conner, 660 So. 2d 288, 290 (Fla. 4th DCA 1995), review denied, 669 So. 2d 250 (Fla. 1996) (since Sunshine Law provides that actions of a public board are not valid unless they are made at an open public meeting, a county's attorneys would not be authorized to enter into a contract on the commission's behalf "without formal action by the county commission at a meeting as required by the statute"). Compare Lee County v. Pierpont, 693 So. 2d 994 (Fla. 2d DCA 1997), affirmed, 710 So. 2d 958 (Fla. 1998) (authorization to county attorney to make settlement offers to landowners not to exceed appraised value plus 20%, rather than a specific dollar amount, did not violate the Sunshine Law).
Thus, the applicability of the Sunshine Law relates to the discussions of a single individual who has been delegated decision-making authority on behalf of a board or commission. If the individual, rather than the board, is vested by law, charter or ordinance with the authority to take action, such discussions are not subject to s. 286.011, F.S. See City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989) (since the mayor was responsible under the city charter for disciplining city employees and since the mayor was not a board or commission and was not acting for a board, meetings between the mayor and a city employee concerning the employee's duties were not subject to s. 286.011, F.S.).
d. Use of nonmembers as liaisons between board members
The Sunshine Law is applicable to meetings between a board member and an individual who is not a member of the board when that individual is being used as a liaison between, or to conduct a de facto meeting of, board members. See AGO 74-47 (city manager is not a member of the city council and thus may meet with individual council members; however, the manager may not act as a liaison for board members by circulating information and thoughts of individual council members). Compare AGO 89-39 (aides to county commissioners would not be subject to the Sunshine Law unless they have been delegated decision-making functions outside of the ambit of normal staff functions, are acting as liaisons between board members, or are acting in place of the board or its members at their direction).
For example, in Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979), the court held that a series of scheduled successive meetings between the school superintendent and individual members of the school board were subject to the Sunshine Law. While normally meetings between the school superintendent and an individual school board member would not be subject to s. 286.011, F.S., these meetings were held in "rapid-fire succession" in order to avoid a public airing of a controversial redistricting problem. They amounted to a de facto meeting of the school board in violation of s. 286.011, F.S. And see Sentinel Communications Company v. School Board of Osceola County, No. CI92-0045 (Fla. 9th Cir. Ct. April 3, 1992) (series of private meetings between school superintendent and individual school board members to consider staff recommendations concerning administrative structure of the school system and to privately address any of the board's concerns, should have been held in the sunshine; while individual board members are not prohibited from meeting privately with staff or the superintendent for informational purposes or on an ad hoc basis, the Sunshine Law "shall be construed to prohibit the scheduling of a series of such meetings which concern a specific agenda"). Cf. Inf. Op. to Goren, October 28, 2009 (while individual city commissioners may seek advice or information from staff, city should be cognizant of the potential that commissioners seeking clarification by follow-up with staff with staff responses provided to all commissioners could be considered to be a de facto meeting of the commissioners by using staff as a conduit between commissioners).
In Citizens for a Better Royal Palm Beach, Inc. v. Village of Royal Palm Beach, No. CL 9114417 AA (Fla. 15th Cir. Ct. May 14, 1992), the court invalidated a contract for the sale of municipal property when it determined that after the proposal to sell the property which had been discussed and approved at a public meeting collapsed, the city manager met individually with council members and from those discussions the property was sold to another group. The circuit court found that these meetings resulted in a substantial change in the terms of sale and that the execution of the contract, therefore, violated the Sunshine Law.
Thus, a city manager should refrain from asking each commissioner to state his or her position on a specific matter which will foreseeably be considered by the commission at a public meeting in order to provide the information to the members of the commission. AGO 89-23. See also AGO 75-59 (director should refrain from calling each member of the board separately and asking each member to state his or her position on a matter which will foreseeably be presented for consideration to the entire board in open session); and Inf. Op. to Biasco, July 2, 1997 (administrative officers or staff who serve public boards should not poll board members on issues which will foreseeably come before the board although an administrative officer is not precluded from contacting individual board members for their views on a matter when the officer, and not the board, has been vested with the authority to take action). Cf. AGO 81-42 (the fact that a city council member has expressed his or her views or voting intent on an upcoming matter to a news reporter prior to the scheduled public meeting does not violate the Sunshine Law so long as the reporter is not being used by the member as an intermediary in order to circumvent the requirements of s. 286.011, F.S.).
Not all decisions taken by staff, however, need to be made or approved by a board. Thus, the district court concluded in Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), that the decision to appeal made by legal counsel to a public board after discussions between the legal staff and individual members of the board was not subject to the Sunshine Law.