FLORIDA'S SUNSHINE LAW:
NOTES ON A LAW AND AN IDEAL
Jon Kaney
Cobb Cole & Bell
Daytona Beach, Florida
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FLORIDA'S GOVERNMENT-IN-THE-SUNSHINE LAW IS BOTH A COMMAND OF LAW, A FUNDAMENTAL RIGHT OF THE PEOPLE, AND AN IDEAL OF DEMOCRATIC GOVERNMENT.
The Sunshine Law can be expressed in a set of concrete rules, but it can best be understood in the spirit of historical reform that motivated its adoption and has animated more than thirty years of vigorous judicial enforcement.
The "Sunshine Law" was originally adopted as a law in 1967 by the first Legislature to convene after court's ordered reapportionment on the basis of one-man, one vote. Sec. 286.011, Fla. Stat.
In the same session the new legislators strengthened and expanded Florida's public records law. Ch. 119, Fla. Stat.
However, the Sunshine Law had been proposed earlier in 1954 by LeRoy Collins when he campaigned for Governor on a platform of "government in the sunshine and not in the shade."
In his first message to the Legislature in 1955, he called for this reform, saying, "The people of Florida possess the sovereignty of statehood. [They] have yielded to us no right to decide what is good for them to know, or what is bad for them to know." Florida Across the Threshold: The Administration of Governor LeRoy Collins (1961) 16 (collecting papers of the Collins administration).
Each year from 1955 through 1963, a Sunshine bill was introduced and passed in the House, but it was killed in the Senate which was then controlled by a rural bloc known as the "Pork Chop Gang."
When court-ordered reapportionment ended the long rule of that secretive bloc, the new legislators promptly passed the open government bills in a spirit of reform that traced directly to Collins' initial advocacy.
The courts of Florida implemented the new Sunshine Law in the spirit of reform which animated it and have consistently refused to approve of evasive approaches.
The philosophical ideal underlying the Sunshine Law was expressed by influential Florida judges in landmark opinions rendered soon after the new law was adopted:
In Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, 699 (Fla. 1969), Justice James C. Adkins wrote:
The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country. During past years tendencies toward secrecy in public affairs have been the subject of extensive criticism. Terms such as managed news, secret meetings, closed records, executive sessions, and study sessions have become synonymous with 'hanky panky' in the minds of public-spirted citizens. One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.
In Times Pub. Co. v. Williams, 222 So.2d 470, 473 (Fla. 2d DCA 1969), Judge Woodie Liles who had been a member of the 1967 Legislature that passed the law, wrote:
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. This act is a declaration of public policy, the frustration of which constitutes irreparable injury to the public interest. Every step in the decision-making process, including the decision itself, is a necessary preliminary to formal action. It follows that each such step constitutes an 'official act,' an indispensable requisite to 'formal action'' within the meaning of the act.
In Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260,263 (Fla. 1973), Justice Adkins returned to the subject and wrote:
The obvious intent of the Government in the Sunshine Law, Supra, was to cover any gathering of some of the members of a public board where those members discuss some matters on which foreseeable official action will be taken by the board. The statute, having been enacted for the public benefit, should be interpreted most favorably to the public.
Various boards and agencies have obviously attempted to read exceptions into the Government in the Sunshine Law which do not exist. Even though their intentions may be sincere, such boards and agencies should not be allowed to circumvent the plain provisions of the statute. The benefit to the public far outweighs the inconvenience of the board or agency. If the board or agency feels aggrieved, then the remedy lies in the halls of the Legislature and not in efforts to circumvent the plain provisions of the statute by devious ways in the hope that the judiciary will read some exception into the law.
In Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla. 1974), Justice Adkins continued to build his influential jurisprudence:
One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance. Rarely could there be any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken.
A decade later, new justices on the Supreme Court made clear that the philosophical grounding of the Sunshine law continued to guide their decisions. In Wood v. Marston, 442 So.2d 934, 938 (Fla. 1983), Justice Ehrlich wrote:
We note that the Sunshine Law was enacted in the public interest to protect the public from "closed door" politics and, as such, the law must be broadly construed to effect its remedial and protective purpose. This Court has consistently refused to permit governmental entities to carry out decision-making functions outside the law.
Quite recently, the Florida Supreme Court reiterated its adherence to this doctrine in Frankenmuth Mut. Ins. Co. v. Magaha, 769 So .2d 1012, 1021 (Fla. 2000)
As we previously have stated, the intent of the Sunshine Law is to cover any gathering of the members of the Board where the members deal with some matter on which foreseeable action will be taken by the Board.
IN 1992, THE ELECTORS OF FLORIDA ELEVATED THE SUNSHINE LAW TO THE STATURE OF A FUNDAMENTAL RIGHT OF FLORIDIANS IN THE DECLARATION OF RIGHTS OF THE FLORIDA CONSTITUTION.
As amended by the affirmative vote of more than 82% of the electors, the Article I, § 24(b) of the Florida Constitution now provides:
All meetings of any collegial 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 which public business of such body is to be transacted or discussed shall be open and noticed to the public. . . .except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.
Further, in § 24(c), the Constitution provides that the legislature may "provide by general law for the exemption . . . of meetings from the requirements of subsection (b), provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law."
In the first case to test a legislative exemption against this standard, the Florida Supreme Court adopted a standard of strict enforcement of the constitutional requirement. It held that section 24(c) creates "an exacting constitutional standard . . . of specificity as to stated public necessity and limited breadth to accomplish this purpose." Halifax Hosp. Med. Center v. News-Journal Corp., 724 So. 2d 567, 569 (Fla. 1997).
Lower courts have recognized that the standard adopted in Halifax "recognizes that the rights secured by section 24 must be respected as fundamental rights to be protected by strict enforcement of the unique textual standard of review." Memorial Hospital--West Volusia, Inc. v. News-Journal Corp., 30 (BNA) Med. L. Rptr. 1300, 1305 (Fla. 7th Jud. Cir. 2002).
BOTH THE STATUTORY COMMAND AND THE CONSTITUTIONAL RIGHT HAVE BEEN CONSTRUED CONSISTENTLY WITH THE BROAD PURPOSE OF THE REFORM OF 1967.
The statutory version of the Sunshine law, which has been largely unchanged since originally adopted in 1967 provides:
(1) All meetings of a board or commission of any state agency or authority of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, 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 give reasonable notice of all such meetings.
(2) The minutes 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 the state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application of any citizen of this state.
§ 286.011, Fla. Stat. (2002).
The courts have agreed that the constitutional language adopted by the electors in 1992 is intended to be given the same meaning and construction as this statutory language had been given by the courts. Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 868 (Fla. 3d DCA 1994).
Accordingly, the terms "formal action" "board or commission" "meetings" "considered binding" and other key parameters of the historic statutory construction carry through to the meaning of equivalent terms in the constitution. Id.
Also, the statutory version of the Sunshine Law was not repealed by the 1992 constitutional amendment, and so it continues to operate concurrently. The Supreme Court has said that "Florida's Sunshine Law ... is of both constitutional and statutory dimension." Frankenmuth at 1021.
THE SPECIFIC REQUIREMENTS OF THE SUNSHINE LAW HAVE BEEN DISTILLED AND CONSTRUED BY THE COURTS OVER THE PAST THIRTY-FIVE YEARS INTO A CLEAR CODE OF CONDUCT FOR PUBLIC BODIES AND THEIR MEMBERS.
A "board or commission" or "collegial governmental body" (hereafter, "Sunshine body") that is subject to the Sunshine law includes all collegial bodies of the state or local government. See generally Florida, Attorney General, Government-in-the-Sunshine Manual (2002) at 1-2 (hereafter, "Sunshine Manual"). However, the judicial branch is not covered by the Sunshine Law. Art. I, § 24(b), Fla. Const. and the legislature has a separate rule in Article III for their meetings. Art. III, § 4(b) & (e).
A Sunshine body includes not only official bodies but also ad hoc volunteer groups that perform an integral role in the decision-making process. Gradison
An independent private group to which an official body delegates an advisory role in the decision-making process is subject to the Sunshine law when performing that function. See Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., 729 So. 2d 373, 381 (Fla. 1999); Putnam County Humane Soc., Inc. v. Woodward, 740 So. 2d 1238, (Fla. 5th DCA 1999);.Stansfield v. Salvation Army, 695 So.2d 501 (Fla. 5th DCA 1997)
A "meeting" of a Sunshine body consists of any communication through any medium between any two or more members of a collegial body upon any subject that foreseeably may come before the body. Sunshine Manual at 14-17.
The law applies not only to the official meetings of a body but to any discussion of foreseeable business by members of official bodies or informal bodies to which official business has been delegated. Id.
All forms of communication are included, mail, telephone, e-mail, or personal messenger or "conduit." Id.
The Sunshine law does not prohibit unilateral communication from one member to another, such as memoranda and e-mail communications, but a member who responds to such a communication would be in violation. What is prohibited outside a proper meeting is the interchange (directly or indirectly) between members. Id.
The Attorney General has opined that the members of a collegial body may attend forum discussions and the like at which each member is queried concerning his views so long as the members do not discuss with each other these views. AGO 94-62
Although the distinction between a discussion between or among members and a discussion between members and their audience in the presence of each other is dubious, that is a distinction recognized by the Attorney General.
Members of political bodies have many legitimate ways of learning the views of their colleagues outside of the forum of noticed meetings.
They often read, see, or hear in the media the statements of their colleagues made to reporters.
They often receive e-mails, memoranda, or other unilateral communications disclosing these views.
They hear rumors, word of mouth, or other sources on the "grapevine" concerning their views.
The distinction between the lawful and unlawful forms of communication outside of meetings must be understood in light of the core purpose of the law: "to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance." Gradison, at 477.
Any course of communication that has the purpose and effect of crystalizing a decision through indirect reciprocal exchanges of communication outside a properly noticed meeting is a violation of the Sunshine law. Id.
The distinction between innocent "grapevine buzz" and illicit intermediation depends on the intent of the member and not of the intermediary.
In AGO 81-42, the Attorney General opined that that statements of intent concerning voting made by a member to a reporter for publication ordinarily would not violate the Sunshine Law with the following caveat, that would apply as well to lobbyists, activists, staff, or others.
"I emphasize, however, that if the news reporter in fact has been appointed as the agent of and is being designedly used by a member or members of the council as or for the purpose of a 'liaison' or 'intermediary' to calculate and circulate among the board members the thoughts of such member or members in order to circumvent the statute, then such conversations or interviews might well be found by the courts to be violative of the letter and spirit of the law. . . . As stated in AGO 074-47, '[c]are should be taken, however, not to intentionally avoid the requirements of an open meeting by having an individual who is not a board member act as a liaison for board members by circulating information and thoughts of individual councilmen to the rest of the board.' (Emphasis supplied.) The American Heritage Dictionary of the English Language defines 'liaison' as, inter alia, an instance or means of communication between bodies, groups or units; a close relationship. The same dictionary defines an 'intermediary' as, inter alia, one that acts as an agent between persons or things.
The Attorney General concluded with this standard: "If, in fact, the news reporter [or other intermediary] is being intentionally used by the council or a member thereof as an agent of the council or council member by which to convey or circulate information or thoughts to be rest of the board then such action is in my opinion violative of the letter and spirit of the law."
A meeting must be noticed, open to the public, and documented with minutes.
There is no special form of notice for a Sunshine meeting, and there is no set notice period. Sunshine Manual, 32-33.
Generally 24 hours advance notice is required. Id.
A notice in a newspaper or posted on the customary place for publishing a notice at a city hall, courthouse, or similar place is sufficient. Id.
The Sunshine law does not require the publication of an agenda in advance, although the Administrative Procedure Act does have such a requirement applicable to certain boards, such as the community college board but not to local government boards like the city and county. Sunshine Manual at 34.
To be open to the public, the meeting must be held in a publicly accessible venue. Sunshine Manual at 35.
Although there is no strict jurisdictional rule, a meeting should be held within the body's territorial jurisdiction or reasonably convenient thereto. Rhea v. School Board of Alachua County, 636 So. 2d 1383 (Fla. 1st DCA 1994)
For example, a court held that a meeting of the school board of Alachua County was not sufficiently accessible when held at WDW. Id.
On the other hand, a meeting of the Ponce Inlet Town Council was recently held in a hotel in Daytona Beach Shores and was deemed lawful.
The meeting room or hall must be a public place. Meetings should not be held in private dining rooms, within gated subdivisions, or otherwise in a place where the public may not freely enter and monitor what transpires. Sunshine Manual at 35.
Discussion at the meeting must be audible and coherent. Sunshine Manual at 37.
Voting by secret ballot is not permissible. Sunshine Manual at 40.
Discussion of business through reference to codes or other indecipherable material is not permissible. Sunshine Manual at 39.
A meeting must be documented by appropriate minutes. It is not necessary to prepare a transcript of the discussion and it is not sufficient merely to preserve a tape recording. Minutes showing the substance of the actions taken and the votes of the members should be prepared promptly after the meeting has concluded. Sunshine Manual at 41-42.
Any "meeting" that complies with these criteria is a lawful Sunshine meeting. For example, what would otherwise be an unlawful "discussion" among members would be lawful if only it were noticed and open to the public, conducted in an accessible venue, and documented with appropriate minutes.
SERIOUS LEGAL CONSEQUENCES ATTACH TO THE VIOLATION OF THE SUNSHINE LAW.
An action taken by a Sunshine body is void ab initio if any integral step in the decision-making process was taken in violation of the Sunshine law. Gradison
Action of the official body is void where an advisory committee involved in the process violated the law even if all deliberations of the official body complied. Id.
Action of an official body is void if any two or more members engaged in unlawful discussion integral to the decision. Sunshine Manual at 13-17.
A action rendered void by violation of the Sunshine law may be reconsidered and approved by the offending body if the reconsideration is open and compliant with the Sunshine law.
The reconsideration must be a genuine and full reconsideration and not merely a pro forma re-approval. See Tolar v. School Board of Liberty County, 398 So. 2d 427 (Fla. 1981).
The effect of such a reconsideration is to "cure" the legal invalidity of the action, but it does not absolve the body of its responsibility for violating the Sunshine law. Sunshine Manual at 50-51
Although the courts will not issue injunctions that merely require persons to comply with existing legal duties, when a plaintiff shows that public officials have exhibited a pattern, practice, or tendency to violate the law in a certain way, the courts will enjoin such violations. Gradison
The courts of Florida are open to any citizen to bring an action to enforce the Sunshine law. § 286.011(4); Sunshine Manual 47-51.
A citizen may sue to set aside and declare void the action taken in violation of the Sunshine law. Id.
A citizen may sue for a declaratory decree that a given action violated the Sunshine law. Id.
A citizen may sue for an injunction to compel compliance with the Sunshine law. Id.
If in such suit a citizen establishes that the Sunshine law has been violated, the citizen recovers attorneys fees as well as court costs. Id.
There is no reciprocal recovery of attorneys' fees by the governmental defendant in the event the citizen does not prevail unless the Court finds that the suit was filed in bad faith or was frivolous. § 286.011(4). See also § 57.105.
A violation of the Sunshine Law is malfeasance or misfeasance in offices and grounds for recall. A recall petition alleging that a member has violated the recall states a ground, and it is up to the recall electoral process to judge the validity and severity of the charge made by the petition.
