1. Sunshine Law / Open Meetings
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Sunshine Law / Open Meetings
Broward Office of the Inspector General
11/29/2018

2. In Florida, transparency in government proceedings
is the public’s enforceable right
The public has the “inalienable right to be present and to be heard
at all deliberations wherein decisions affecting the public are being made.”
Board of Public Instruction of Broward County v. Doran, 224, So. 2d 693, 699 (Fla. 1969).
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3. Legal Sources This is a constitutional and statutory right
Sunshine Law
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Legal Sources
This is a constitutional and statutory right
Florida Constitution, Article I, Sec. 24(b)
Florida Statutes Sec
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4. Legal Sources (Cont’d)
Florida Constitution, Article I, §24 (b)
All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution …
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5. Legal Sources (Cont’d)
Section , Florida Statutes
(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings
(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded, and such records shall be open to public inspection. The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state.
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6. Important Public Aspects Served By Open Meetings
Citizen input
“Every meeting should be a marketplace of ideas, so that the governmental agency may have sufficient input from the citizens who are going to be affected by the subsequent action of the municipality”
Town of Palm Beach v. Gradison, 296 So. 2d 473, 475 (Fla. 1974)
Representative government requires responsiveness to the wishes of those that are governed
Stability and confidence in government
Ensures that government will function as a genuine participatory democracy
“Checking effect” on governmental abuses
The public can better evaluate officials and projects by being privy to their decision-making process
Enables the public to better understand the decision-making process of government and consider how future developments will affect their own lives.
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7. Scope of the Sunshine Law
Board members may not engage in private discussions with other board members about board business* by any means of communication.
*an issue on which foreseeable action will be taken
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8. People it Applies to Applies to Local elected officials like you
People on your decision-making boards
People on your advisory boards and committees (unless strictly fact-finding and not making recommendations)
Members- and officers-elect upon certified election results
Transition teams appointed by a member- or officer-elect for recommendations
Individuals or companies to whom decision-making is delegated
Individuals used as liaisons between decision-makers
Individuals used as de facto representatives for decision-makers
Individuals used as “temperature takers” for decision-makers.
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9. Communications it Applies to
Any gathering, formal or informal
of two or more members of the same board/body
that discuss some matter
which will foreseeably come before that board/body for action
Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973).
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10. Communications it Applies to
For example:
Board discussions and deliberations
Regular meetings
Special or emergency meetings
Workshops
Board has delegated policy-based decision-making to a staff committee or a single staff member
Selection and negotiation committees
Evaluation committees.
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11. Communications it Applies to
The form of communication is irrelevant:
Meeting on or off government premises
Letter or memo
Telephone call
(watch out for “reply to all”)
Text
Whispers or notes passed on the dais
Secret ballots (written ballots openly made are okay)
Aide, staff, spouse, or any other go-between
Polling taken by aide, staff, or any other.
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12. it does not Apply to
Advisory committees engaged only in fact-finding and not making recommendations
Private organization-sponsored community or political forums (unless 2+ members of the same board discuss public business between themselves)
Social gatherings involving 2+ members of the same board (unless they discuss public business between themselves).
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13. Some Notable Legal Opinions
Community or political forums sponsored by a private organization are not subject to the Sunshine Law even though two or more members of the same board or commission are in attendance and discussing issues that may come before them in their official capacity AGOs and 94-62
The Sunshine Law will apply, however, if the members of the board or commission discuss such issues among themselves.
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14. Some Notable Legal Opinions (Cont’d)
When committees that have the authority to make recommendations in addition to their fact-finding role, they are deemed to be participating in the decision-making process. Op. Att’y Gen. Fla (1994)
A committee is subject to the Sunshine Law when it’s function is to “weed through various proposals” and determine which are acceptable and to rank the proposals accordingly. Silver Exp. Co. v. District Bd. Of Lower Tribunal Trustees of Miami-Dade Community College, 691 So. 2d 1099, (Fla. 3d DCA 1997)
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15. Requirements There are three
Meetings of local governmental decision-making bodies must be open to the public
Reasonable notice of such meetings must be provided
Meeting minutes must be prepared and available to the public
F.S. Sec , Public meetings and records.
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16. Requirements - Openness
In the absence of a specific statutory exemption, all meetings between 2+ members of the same board are presumed open to the public Public member denied access may demand the statutory citation authorizing closure.
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17. Requirements - Openness
Facilities
Must not discriminate on basis of age, race, etc.
Public and press must be able to attend without restrictions
Sufficient size to accommodate the anticipated turnout.
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18. Some Points To Consider
Inaudible Discussions A violation of the Sunshine Law may occur if board members discuss board business in a manner not generally audible to the public attending the meeting. Although such public meeting is not clandestine, it nonetheless violates the letter and spirit of the law. Rackleff v. Bishop, No (Fla. 2d Cir. Ct. March 5, 1990).
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19. Some Points To Consider (Cont’d)
Voting Secret ballots violate the Sunshine Law. AGOs ; ; and Board members may use written ballots to cast a vote if the votes are made openly at a public meeting, the name of the person who voted and his or her selection are written on the ballot, and the ballots are maintained and made available for public inspection. AGO
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20. Requirements - Notice Sufficient Reasonable
Subject
Date and time
Location
Reasonable
Content
Timing
Placement
to permit the public and press
to learn about the meeting
and attend the meeting
(due process of notice and opportunity to be heard)
Rhea v. City of Gainesville, 574 So. 2d 221 (Fla. 1st DCA 1991); AGO 80-78; AGO
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21. Requirements - Minutes
Written minutes must be made promptly and open for public inspection upon request.
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22. Limitations
You may adopt reasonable policies to ensure orderly meetings
(you may not ban nondisruptive
Videotaping
Audio tape recording
Photography)
The right to speak can be at another meeting within reasonable proximity to the meeting when official action is taken.
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23. Exemptions Can only be created by the state legislature by 2/3 vote
Must be specific
Consult your city attorney.
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24. Exemptions Litigation exemption Security exemption
settlement negotiations or strategy session regarding pending litigation
agency is presently a party
several restrictions including transcript to be available after litigation
Security exemption
Security system plan would be revealed
Competitive solicitation exemption
Team meetings where negotiation strategy discussed
Negotiation with vendor
Vendor makes oral presentation or answers questions
F.S. § (2).
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25. So what? Official action resulting from Sunshine violation is void
Regardless of intent
Do-over’s
The defect can only be cured by a full, open meeting, noticed to the public, which re-examines the issues
F.S. § (11).
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26. Penalties Civil Criminal Suspension or removal from office
Non-criminal infraction punishable by up to $500 fine
Criminal
Second-degree misdemeanor punishable by up to $500 fine + 60 days jail
Suspension or removal from office
Attorney’s fees and court costs
F.S. § (4) and (5).
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27. To Review
Do NOT circulate memoranda among members of a public board, commission, or committee to avoid a public meeting
Do NOT “poll” members of a public board, commission, or committee to avoid a public meeting
Do NOT use the telephone or computer to communicate regarding matters in an attempt to circumvent the Sunshine Law.
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28. Katherine McIntire Senior Assistant Legal Counsel
Sunshine Law
11/29/2018
Katherine McIntire
Senior Assistant Legal Counsel
Broward Office of the Inspector General
11/29/2018