The Sunshine law and open government resources for Florida's city clerks

1. Patricia R. Gleason Special Counsel for Open Government Attorney General Pam Bondi The Sunshine law and open government resources for Florida's city clerks

2. What is the Scope of the Sunshine law

3. 2011 Sunshine Law Overview What is the Scope of the Sunshine law • Florida's Government in the Sunshine Law, commonly referred to as the Sunshine Law, provides a right of access to governmental proceedings at both the state and local levels. The law is equally applicable to elected and appointed boards and has been applied to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action. The Sunshine Law does not apply to the judiciary or to the Legislature.

4. 2011 Sunshine Law Overview What is the Scope of the Sunshine law • There are three basic requirements of section 286.011, Florida Statutes : • 1) Meetings of public boards or commissions must be open to the public • 2) Reasonable notice of such meetings must be given • 3) Minutes of the meetings must be taken, promptly recorded and open to public inspection

5. Only the Legislature may create an exemption to the Sunshine Law (by a 2/3 vote) and allow a board to close a meeting. Exemptions are narrowly construed. SCOPE OF THE SUNSHINE lAW

6. Are advisory boards which make recommendations or committees established for fact-finding only subject to the Sunshine Law? What is the Scope of the Sunshine law

7. 2011 Sunshine Law Overview What is the Scope of the Sunshine law • Publicly created advisory boards which make recommendations • Advisory boards created pursuant to law or ordinance or otherwise established by public agencies may be subject to the Sunshine Law, even though their recommendations are not binding upon the agencies that create them.

8. 2011 Sunshine Law Overview What is the Scope of the Sunshine law • Fact-finding committees • A limited exception to the applicability of the Sunshine Law to advisory committees has been recognized for advisory committees established for fact-finding only. When an advisory committee has been established strictly for, and conducts only, fact-finding activities, i.e., strictly information gathering and reporting, the activities of that committee are not subject to section 286.011, Florida Statutes. However, the “fact-finding exception” applies only to advisory committees and not to the ultimate decision-making body.

9. Are private organizations providing services to public agencies subject to the Sunshine Law? Private organizations which are not state or local governmental agencies orsubject to the control of the Legislature and which do not serve in an advisory capacityto state or local governmental agencies, are generally not subject to section 286.011,Florida Statutes. However, although private organizations are generally not subject to theSunshine Law, open meetings requirements can apply if the public entity has delegated"the performance of its public purpose" to the private entity. What is the Scope of the Sunshine law

10. Does the Sunshine Law apply to Staff? Meetings of staff are not ordinarily subject to section 286.011, Florida Statutes. However, a committee composed of staff can be subject to the Sunshine Law if the committee is delegated “decision-making authority” as opposed to mere information gathering or fact-finding. What is the Scope of the Sunshine law

11. Does the Sunshine Law apply to members of public boards who also serve as administrative officers or employees? • There may be occasions in which members of public boards also serve as administrative officers or employees. These board members are not prohibited from discussing matters relating to their administrative role as long as these discussions do not relate to matters which will come before the public board on which they serve. What is the Scope of the Sunshine law

12. A legislator, city commissioner and judge are members of a committee that is planning its first meeting. Which of the following statements is true? If the committee was created by statute, it is subject to the Sunshine Law. If the committee was created by a judge, it is not subject to the Sunshine Law. Both A and B are correct. Neither A nor B are correct. Scope of the Sunshine Law questions

13. Two members of the city council are talking to each other at a football game. A reporter is with the council members and able to hear the entire conversation. The council members: Have not violated the Sunshine Law because even if they were discussing city council business, the meeting was public because a newspaper reporter was present. Have violated the Sunshine Law if they were talking about matters that forseeably could come before the city council for discussion or action. Have violated the Sunshine Law if they were talking about city council matters that have been scheduled for a vote by the city council. Both B and C are correct. Scope of the Sunshine Law questions

14. WhAT is a Meeting subject to the sunshine law?

15. 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 section 286.011, Florida Statutes. WhAT is a Meeting subject to the sunshine law?

16. Circumstances in which the Sunshine Law may apply to a single individual or where two board members are not physically present. WhAT is a Meeting subject to the sunshine law?

17. 1. Electronic communications Board members may not use electronic communications (i.e. emails, text messages, Facebook or the telephone) to conduct a private discussion about board business. WhAT is a Meeting subject to the sunshine law?

18. A board member may send a “one-way” communication to another board member IF the communication is kept as a public record and there is no response to the communication except at an open public meeting. Accordingly, any “one-way” communications (for example one board member wants to forward an article to the board members for information) should be kept by clerk so they can be preserved as public records and ensure that any response to the communication is made only at a public meeting. WhAT is a Meeting subject to the sunshine law?

19. Telephone conversations and meetings: Board members cannot telephone each other to engage in private discussions about board business. State law authorizes state agencies to conduct telephone conference call meetings provided that notice to and access by the public is provided. Members of local boards however cannot allow board members to participate by telephone unless a quorum of the board is physically present in the meeting room. WhAT is a Meeting subject to the sunshine law?

20. Use of computers: While there is no provision generally prohibiting the use of computers to carry out public business, board members may not use electronic communications (i.e. e-mail, text messages, Facebook or the telephone) to conduct private discussions about matters on which foreseeable action could be taken by the board. WhAT is a Meeting subject to the sunshine law?

21. Delegation of authority to single individual: If a member of a public board is authorized only to explore various contracts or proposals with the applicant selected for the position of executive director, 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. WhAT is a Meeting subject to the sunshine law?

22. 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. WhAT is a Meeting subject to the sunshine law?

23. 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. WhAT is a Meeting subject to the sunshine law?

24. School board member Smith is concerned about the school superintendent’s proposal to raise teacher salaries. She writes a letter to the other school board members about her concerns and files a copy of the letter as a public record in the school district offices. No school board members respond to Smith’s letter. Several weeks later, Smith noticed that there is an item on the agenda which calls for a school to be closed. She wants the school to remain open. Smith calls school board member Brown to ask him to vote with her on the issue. He responds that he hasn’t decided which way to vote and will have to wait until the meeting to make up his mind. Which of the following statements is correct: Smith’s letter to the school board members and the telephone conversation with Brown violated the Sunshine Law. Neither Smith’s letter to the school board members nor the telephone conversation with Brown violated the Sunshine Law. Smith’s letter to the school board members did not violate the Sunshine Law, but the phone conversation with Brown violated the Sunshine Law. Smith’s letter to the school board members violated the Public Records Law. Meeting Subject to the Sunshine Law Questions

25. A newspaper reporter conducts separate individual interviews with city commissioners Smith and Jones as well as with city clerk Brown about their views on an upcoming agenda item. After his interview, Smith telephones the clerk and they discuss what each said to the reporter. Smith then calls Jones to discuss her conversation with both the reporter and clerk Brown. Which of the following statements is correct? The individual one on one interviews between each commissioner and the reporter violated the Sunshine Law because the reporter asked each commissioner how she felt about an upcoming agenda item. Smith’s telephone call with the clerk violated the Sunshine Law. Smith’s telephone call with Jones violated the Sunshine Law. All of the above. Meeting Subject to the Sunshine Law Questions

26. What types of discussions are covered by the sunshine law

27. Investigative meetings or meetings to consider confidential material: The Sunshine Law is applicable to investigative inquiries of public boards or commissions. Section 119.07(7), Florida Statutes, provides that an exemption from section 119.07, Florida Statutes, “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 in which exempted material is to be discussed in the absence of a specific exemption from the Sunshine Law. What types of discussions are covered by the sunshine law

28. Legal matters: In the absence of legislative exemption, discussions between a public board and its attorney are subject to section 286.011, Florida Statutes. There are statutory exemptions, however, which apply to some discussions of pending litigation between a public board and its attorney. However, these exemptions are narrow in scope and are initiated only by the board’s attorney for the purpose of seeking advice on settlement or expenses in pending litigation. What types of discussions are covered by the sunshine law

29. Personnel Matters: Meetings of a public board or commission at which personnel matters are discussed are not exempt from the Sunshine Law. 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 What types of discussions are covered by the sunshine law

30. There is a limited exemption from the Sunshine Law in s.445.607(1), F.S., for strategy sessions between a public employer and its bargaining agent. However, the negotiations between the employer and the employee representative are subject to the Sunshine Law. What types of discussions are covered by the sunshine law

31. Purchasing meetings: There is a limited exemption in s. 286.0113, F.S., for certain purchasing discussions, provided that all closed sessions must be recorded. What types of discussions are covered by the sunshine law

32. Real estate: While there is an exemption from the Public Records Law for certain records relating to a board’s proposed purchase of real property, this does not create an exemption from the Sunshine Law for board discussions. What types of discussions are covered by the sunshine law

33. Security: While there is no general exemption from open meetings requirements that applies to all discussions relating to “security”, s. 281. 301, F.S., provides that meetings relating to the security systems for any property owned by or leased to the state or any of its political subdivisions or for any privately owned or leased property which is in the hands of an agency are exempt from s. 286.011, F.S. What types of discussions are covered by the sunshine law

34. If a city council believes that it is in the public interest, which of the following meetings may be CLOSED to the public: Meetings to discuss sensitive personnel issues involving accusations of sexual harassment against the city manager. Meetings to discuss an ongoing investigation of a city department. A hearing on a complaint alleging that a city resident has violated the building code. None of the above. types of discussions are covered by the sunshine law questions

35. A county commission is holding a special meeting to consider whether to discipline an employee for sexually harassing several coworkers. The coworkers have asked the commission to close the meeting because of the embarrassing nature of the sexual harassment. The commission would like to close the meeting to the public in order to protect the privacy of the sexual harassment victims. If a county commission believes that the commission meeting should be closed to protect privacy rights, it can… Close the meeting only if the Legislature has passed a law which exempts that type of meeting from the Sunshine Law. Close the meeting based on the right of privacy provision in the Florida Constitution. Both A and B are correct. None of the above. types of discussions are covered by the sunshine law questions

36. A city council is considering whether to buy a piece of property. A statute exempts records showing the market value of the property from the public records law, but there is no statute which exempts city council meetings to discuss a purchase from the Sunshine Law. The council wants to close the meeting while it decides what to offer for the property. Which of the following statements is true: The council can close the meeting if it first determines that the public benefit in closing the meeting (council can obtain a better deal for the property) outweighs the benefits of keeping the meeting open. The council can close the meeting because the Legislature has enacted a statute making the market value records of the property confidential and the council therefore has implied authority from the Legislature to close the meeting. The council cannot close the meeting. A and B are correct. types of discussions are covered by the sunshine law questions

37. WhO does the sunshine law apply to?

38. Members-elect or candidates: Members-elect are subject to the Sunshine Law. The Sunshine Law does not apply to candidates for office, unless the candidate is an incumbent seeking reelection. Does the Sunshine law apply to:

39. Members of different boards The Sunshine Law does not apply to a meeting between individuals who are members of different boards unless one or more of the individuals has been delegated the authority to act on behalf of his or her board. Does the Sunshine law apply to:

40. Meetings between an ex officio, non-voting board member and a voting member of the board: Meetings between a member of a board and a member who serves as a member of the board in an ex officio capacity, are subject to the Sunshine Law. Does the Sunshine law apply to:

41. Community forums sponsored by private organizations: A community forum sponsored by a private organization at which candidates for public office, including several incumbent city council members, will speak about their political philosophies and issues facing the city, is not subject to the Sunshine Law unless the council members discuss issues coming before the council among themselves or the forum is being used to circumvent the Sunshine Law. Does the Sunshine law apply to:

42. Social events: Members of a public board or commission are not prohibited under the Sunshine Law from meeting together socially, provided that matters which may come before the board are not discussed at such gatherings. Does the Sunshine law apply to:

43. Meetings between the mayor and a member of the city commission: If the mayor is a member of the city commission and has the power to vote, even if that power is limited to breaking a tie, the Sunshine Law applies to meetings between a mayor and a member of the city commission. But, if the mayor is not a member of the city commission, and has no power to vote under any circumstances, then the Sunshine Law does not apply, even if the mayor has the power to veto legislation. Does the Sunshine law apply to:

44. Husband and wife serving on the same board There is no per se violation of the Sunshine Law for a husband and wife to serve on the same public board so long as they do not discuss board business without complying with the requirements of the Sunshine Law. Does the Sunshine law apply to:

45. A county commissioner, county manager, sheriff, city commissioner and city police chief want to meet to discuss whether the county should make improvements to the jail. Which of the following statements is correct? The meeting should be open to the public because both the city commissioner and county commissioner must comply with the Sunshine Law. The meeting is not subject to the Sunshine Law. The meeting is subject to the Sunshine Law because the sheriff and county commissioner are elected officers of the county. The meeting is subject to the Sunshine Law because all of these individuals bear some responsibility for the county jail. What does the sunshine law apply to questions

46. The following persons are subject to the Sunshine Law: A state agency division director who is an ex officio nonvoting member of a state advisory council. A mayor who is a member of the city council but can vote only to break a tie. A mayor who is not a member of the city council but can veto legislation. Both A and B are correct. Who does the sunshine law apply to questions

47. A husband and wife have both been elected to the city council. Which of the following statements is correct? Both the husband and wife must resign from the city council or get a divorce. Either the husband or wife has to resign because the Sunshine Law prohibits them from serving together on the council. Both the husband and wife may serve on the council but must comply with the Sunshine Law when they discuss city council business. Both the husband and wife may serve on the council but must file a conflict of interest form before each city council meeting. Who does the sunshine law apply to questions

48. What are the notice requirements of the sunshine law?

49. Reasonable notice required: The Sunshine Law requires “reasonable notice” of all meetings. Publication (i.e. paid ad) in news media is not required, but a board must comply with any other ordinances or laws that may impose additional notice requirements. See e.g. s. 166.041, F.S. (adoption of ordinances). What are the notice requirements of the sunshine law?

50. Adjournment of meeting If a meeting is adjourned and reconvened later to complete the business from the agenda of the first meeting, the second meeting must also be noticed. What are the notice requirements of the sunshine law?