Sunshine Law / Open Meetings 04/06/2018 Sunshine Law / Open Meetings Broward Office of the Inspector General 04/06/2018

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). 04/06/2018

Legal Sources This is a constitutional and statutory right Sunshine Law 04/06/2018 Legal Sources This is a constitutional and statutory right Florida Constitution, Article I, Sec. 24(b) Florida Statutes Sec. 286.011. 04/06/2018

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 … 04/06/2018

Legal Sources (Cont’d) Section 286.011, 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. 04/06/2018

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. 04/06/2018

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 04/06/2018

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. 04/06/2018

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). 04/06/2018

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. 04/06/2018

Communications it Applies to The form of communication is irrelevant: Meeting on or off government premises Letter or memo Telephone call Email (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. 04/06/2018

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). 04/06/2018

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 92-05 and 94-62 The Sunshine Law will apply, however, if the members of the board or commission discuss such issues among themselves. 04/06/2018

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. 94-21 (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, 1100-01 (Fla. 3d DCA 1997) 04/06/2018

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. 286.011, Public meetings and records. 04/06/2018

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. 04/06/2018

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. 04/06/2018

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. 89-235 (Fla. 2d Cir. Ct. March 5, 1990). 04/06/2018

Some Points To Consider (Cont’d) Voting Secret ballots violate the Sunshine Law. AGOs 73-264; 72-326; and 71-32 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 73-344. 04/06/2018

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 73-170. 04/06/2018

Requirements - Minutes Written minutes must be made promptly and open for public inspection upon request. 04/06/2018

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. 04/06/2018

Exemptions Can only be created by the state legislature by 2/3 vote Must be specific Consult your city attorney. 04/06/2018

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. § 286.0113(2). 04/06/2018

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. § 286.011(11). 04/06/2018

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. § 286.011(4) and (5). 04/06/2018

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. 04/06/2018

Katherine McIntire Senior Assistant Legal Counsel Sunshine Law 04/06/2018 Katherine McIntire Senior Assistant Legal Counsel Broward Office of the Inspector General 954-357-7873 kmcintire@broward.org www.browardig.org 04/06/2018