Me, Myself, and I: Does Florida’s Sunshine Law Apply to Communications of a Lone Member of a Board or Commission?
Assume you are a newly elected member of a city council. Your election platform promised voters that you would fight to get funding for a new water treatment plant. You raise the matter with your fellow council members at a city council meeting and tell them that you’ve already begun researching funding options and talking to different experts. They tell you, “Sounds like a nice initiative. Please follow up and let us know if you can pull something together.” You then go about your efforts of speaking to city utility and finance staff, working with the federal EPA, and even drafting a grant application proposal. You come back to your council and present a proposed grant agreement that would provide the needed funding for the new facility. Your fellow council members vote to approve the grant application and the chairperson signs it and sends it off. Did your work outside of the publicly noticed council meetings violate Florida’s Sunshine Law?
Florida is home to 67 counties; over 400 cities, towns, and villages; and thousands of other districts, boards, committees, and commissions. The work they perform can vary between infrequent meetings to produce advice on a narrow range of topics to governing large, general purpose governments. Through initiative or by official request, an individual member may undertake actions, including meetings and discussions with third parties, that will eventually become some proposal presented to the board or commission. This article discusses if, and how, the Sunshine Law may apply in such circumstances.
The Sunshine Law
F.S. §286.011, commonly referred to as the “Florida Government-in-the-Sunshine Law,” provides, in relevant part:
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 … 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.
This law is a complement to Fla. Const. art. I, §24(b), which provides, in relevant part: “All meetings of … any collegial public body of a county… 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….”
While the statutory language is not explicit on the point, various decisions of Florida’s appellate courts have made it clear that the law covers not only “formal” meetings, but also “any gathering, whether formal or informal, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by that board or commission.”1 It is, therefore, clear that when an individual board or commission member communicates in an unnoticed, nonpublic way with one or more of his or her fellow board or commission members concerning a matter on which foreseeable action will be taken, and that fellow member communicates back, even if the communication is in passing at the grocery store or is exchanged in a series of text messages, the Sunshine Law is violated. It is also clear that members of boards or commissions cannot use third-person intermediaries to carry messages between them concerning public business outside of a noticed public meeting.2
Sunshine Law Does Not Apply to a Member of a Collegial Body Speaking to Third Persons
There are a variety of scenarios in which a public board or commission might come to rely on or request the assistance of one of its members to work on a matter. One example could be when a member with contracting experience examining building plans speaks to a contractor and then advises his or her board or commission on ways it may reduce construction costs. Another could be when a member with a special interest in tourism works directly with potential theme park developers and brings back to his or her board proposals on how to bring such a park to the jurisdiction. And, as occurred in a recent Florida case, a board or commission may rely on one of its members to discuss potential contract terms with an agency chief executive. In these instances, as long as the individual member goes about the task in a way that does not include direct or indirect communications with his or her fellow members, the Sunshine Law would not be violated.
As noted earlier, both the constitutional provision and the statute apply, by their respective express terms, to meetings of “any collegial public body” and “any board or commission.” Thus, Florida courts have consistently ruled that for the Sunshine Law to be violated, two or more members of the board or commission must “meet” outside the Sunshine. The obvious converse of this rule is that the Sunshine Law will not be implicated concerning communications of a single member of a board or commission with persons who are not fellow members. This is so, even if the communications occur with the prior consent, request, or direction of the board or commission, and even if they may result in some idea, proposal, or other action item being brought back to the board or commission for consideration.
Thirty years ago, in Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984), the Florida Supreme Court considered a bond validation case in which it was alleged that the bonds to build a stadium were invalid because the matter was discussed in meetings of elected officials and staff of the Authority, Pinellas County, and the City of St. Petersburg. The court disagreed, and in a unanimous opinion expounded on the requirement that two or more members of a collegial body be present for a violation to occur:3
The record shows, however, that no meetings involving these bonds occurred with two or more members of any one of the three governmental entities present. We do not construe that language to apply to the gatherings here between individual members and staff of the different governmental entities. definition , then, no violation of the law occurred. There was never any meeting where any two individuals with decision-making capacity were present . The individuals could only report back to their respective governmental bodies . The subsequent discussions and decisions of all three of the governing bodies took place in open, public meetings. Appellants’ reliance on Wood v. Martson , 442 So. 2d 934 (Fla. 1983), is misplaced. In that case we held that the search-and-screen committee was clearly a “board or commission” of a state agency subject to the Sunshine Law. Even if we were to include the gatherings that occurred here under the definition of the Sunshine Law, these gatherings do not rise to the level of decision-making which is required to violate the act. The record does show that some private discussions occurred where the stadium financing was mentioned. However, since no two individuals who were members of the same governing body were present at any one of these discussions, no decision-making official acts could occur that would violate the act.
The court reiterated this view of the law more recently in Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 2d 755 (Fla. 2010), wherein the court held: “[M]eetings within the meaning of the Sunshine Law include any gathering, formal or informal, of two or more members of the same board or commission where the members deal with some matter on which foreseeable action will be taken by the [b]oard.”4
As the Third District stated:
In order for there to be a violation of F.S. §286.011… a meeting between two or more public officials must take place which is violative of the statute’s spirit, intent, and purpose. The obvious intent of the Government in the Sunshine Law … was to cover any gathering of some of the members of a public board where those members discuss some matters on which foreseeable action may be taken by the board.5
To be sure, in cases in which a superior collegial body bestows upon a subordinate board, commission, committee, or citizen/staff group some part of its governmental authorities or duties, the members of such boards, commissions, committees, or groups become subject to the Sunshine Law:
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 application of the [g]overnment in the Sunshine Law is concerned.6
However, this analysis does not, ipso facto, also mean that when a collegial body delegates some task or authority to an individual person that, in theory, it could elect to collectively exercise itself, the individual person, when performing such task or exercising such authority, must operate in the Sunshine. This is so even when this individual meets with others.
One area of delegation to a single member of a board or commission is when the governmental entity is engaged in litigation and must attend mediation. Often, the governing body will assign a single member to participate in the mediation proceedings. The clash between Sunshine Law and mediation confidentiality arose (at least prior to current Fla. R. Civ. P. 1.720(d)) when a governmental entity would be ordered to attend mediation with full authority to settle, yet, often times, only the governing board had such authority. While meetings of such boards must be in the Sunshine, mediations are closed and confidential.
This conflict of policy was examined in the case of O’Connell v. Board of Trustees for the Florida School for the Deaf and the Blind of the Department of Education, State of Florida, Case No. 90-199CA, Fla. L. Weekly Supp. 285b (7th Cir. 1993). The O’Connell court considered the issue of the participation of members of the board at a court-ordered mediation. Specifically, the school was ordered to mediation and to bring someone with full authority to settle. However, since the board was a Sunshine body, the school asked the court to remedy the inherent conflict. The circuit judge correctly observed that “the mediation conference scheduled would come under open scrutiny under Florida Statutes 286.011 if more than one trustee of the [a]gency met.”7 Resolving this clash of policy, and relying on News-Press Pub. Co., Inc. v. Lee County, 570 So. 2d 1325 (Fla. 2d DCA 1990), which had addressed a similar issue, the court ordered:
No more than one (1) [t]rustee of the [a]gency…is required to attend the conference. It is understood by the [c]ourt that if the parties present agree on a compromise and settlement, it would necessarily have to be presented in good faith to the entire [b]oard at open meeting before it could be finalized.8
In both the O’Connell and News-Press cases, the courts authorized one member of a collegial body to participate in mediation on behalf of that member’s entire board in a non-Sunshine setting, with the understanding that any agreement would require ratification of the full board. Some would argue that such participation by a single member would be a violation of the Sunshine Law and that any resulting settlement agreement would be null and void. The law does not support such a conclusion.
Attorney General Opinions Are Inconsistent and Not Persuasive
As mentioned, while the appellate decisions reviewed above addressing this issue consistently apply the rule that two or more members must be present to implicate the Sunshine Law, members of the public and even attorneys advising governmental entities may become concerned when reviewing attorney general opinions seeming to take the position that the Sunshine Law applies to a lone individual given authority to act in some way by a collegial governmental body. The primary opinions leaning in this direction are as follows:
• AGO 74-84 — A single member of the Florida Board of Dentistry must comply with the Sunshine Law if he or she conducts an investigatory hearing even if no other board members are present.
• AGO 74-294 —A single member of the Sarasota/Manatee Airport Authority board cannot negotiate a lease without complying with the Sunshine Law even if no other authority board member is present during negotiations.
• AGO 84-54 — A single Hallandale City commissioner cannot meet on his own with a local nonprofit arts group to discuss a possible referendum vote regarding a new cultural center unless the meeting is treated like a Sunshine meeting.
However, while these opinions favor the view that the Sunshine Law does apply to a lone individual asked to perform some task by a governmental board or commission, as explained below, these opinions are not thoroughly reasoned, are not consistent with other attorney general opinions or case law, and they should, therefore, not be followed by courts or government law practitioners.
Attorney general opinions, which deserve careful consideration by Florida courts, are not binding on the courts, and may be rejected, particularly if not consistent over time.9 When one examines the underlying analysis of the opinions mentioned above, flaws emerge. For instance, in AGO 74-294, the only support for the conclusion that an individual board member may not negotiate terms of a lease outside of the Sunshine is a citation to I.D.S. Properties v. Town of Palm Beach, 279 So. 2d 353 (Fla. 4th DCA 1973). In addition to the published opinion citing an erroneous Southern Reporter volume number (270 versus the correct 279), the passage the attorney general opinion cites merely states: “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.”10
This generally worded passage does not provide any specific rule of law. It is dictum within the opinion. When one reads I.D.S. Properties, one sees that it dealt with a local advisory body that did not meet in the Sunshine and, ultimately, helped produce land use codes approved by the governing body. The case addressed whether the subsequent Sunshine-compliant adoption cured the earlier violation. While the cited dictum is not in dispute (one board or commission cannot remove a matter it would act on from the Sunshine by delegating the taking of action to a subordinate body), the facts of that case had absolutely nothing to do with a single member of a collegial body or lone staff member taking some action delegated to him or her by a governing board or commission.
Turning to another flawed opinion, in AGO 83-70 (emphasis added) (internal citations omitted), the attorney general stated:
In passing I would also note that you state that one of the members of the city council had been designated by the city council to act as liaison between the nonprofit corporation and the city council. While generally the presence of two or more members of the public body is required in order for the [Sunshine Law] to be applicable, certain factual circumstances have arisen where in order to assure public access to the decision-making process of public boards or commissions, the presence of two individuals is not always necessary in order for a violation…to occur….
If the council has delegated its authority to act on its behalf to the individual council member, then the requirements of [the Sunshine Law] may still be applicable to the discussions of the individual city council member with the nonprofit corporation.
The problem with this opinion is that the case it cites to support its conclusion that two or more members need not always be present is Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). However, the attorney general cites this case only for its passage that the Sunshine Law should be applied “to frustrate all evasive devices”11 designed to avoid it. Anyone who reads Gradison will realize that the facts of the case had absolutely nothing to do with delegation from a collegial body to a single member of that body or other individual person. In issuing AGO 83-70, not only did the attorney general elect to arrive at a desired policy conclusion by plucking a sentence from a case not even dealing with the facts under review, but ends the paragraph quoted above by saying, “ But see, Florida S.T.O.P., Inc., v. Goodrum, Case No. 80-3775 (10th Cir. Polk Co., 1980), aff’d, 415 So. 2d 1372 (Fla. 2d DCA 1982)….” This was a case in which the Second District upheld a ruling of the circuit court that the Sunshine Law did not apply to a single member of a housing authority board appointed by that board to search for property. It is striking that, rather than rely on a case that actually addressed the “delegation to a single member” scenario, the attorney general relied upon a generalized comment in a case not dealing with that scenario and failed to discuss why the facts were different from those in the Florida S.T.O.P., Inc. , case. Clearly, such thin reasoning should not be given even persuasive effect when courts or governmental attorneys address the question of if and how the Sunshine Law applies to conversations a lone individual has on behalf of a collegial governmental body.
In addition to the group of attorney general opinions that rely upon dicta or out-of-context excerpts, several attorney general opinions on this topic are inconsistent. For instance, in AGO 81-88, the attorney general was informed that the City of North Port was a weak-mayor/no-manager form of government. Thus, the mayor was in charge of running overall operations, while each council member was assigned to be a department head of the various city operating departments. While recognizing that the Sunshine Law applies to “every step in the deliberative process,” the attorney general, nonetheless, opined that as long as the mayor and council members only talked about coordination of executive functions of the city departments, they did not have to meet in the Sunshine, even if the entire body met at once. However, the Sunshine Law does not contain an administrative function exception, and it seems unlikely that at least some of the administrative needs, issues, or challenges discussed at such meetings would not eventually become relevant to foreseeable action by the council. Indeed, if the attorney general could authorize an entire city council to meet outside the Sunshine on some matter each was delegated to handle by himself or herself, how can that same office opine that a lone elected official, also delegated to handle some matter by himself or herself, was subject to Sunshine?
Another inconsistent opinion is AGO 90-17. In that opinion, the Sunrise City Council asked the attorney general if it could formally assign one of its members to meet and negotiate in private with a garbage contractor when “the member has not been delegated any final decision-making authority to reach an agreement but has specifically been instructed to bring back the results of his or her negotiations for discussion by the full council at a public meeting.” In response, the attorney general first noted:
You have not advised me of the nature of the “negotiations” under consideration here, i.e ., whether the purpose of such “negotiations” is merely discussion and exploration of contract proposals and terms which will be related to the city council itself or whether acceptance or rejection of contractual terms on behalf of the council is being undertaken.
The attorney general went on, however, to opine:
It is not a violation of the [Sunshine Law] for a city council member, either formally or with the informal approval of the council, to meet with a private garbage contractor if the purpose of such meeting is essentially information gathering and the council member has not been delegated a portion of the decision-making authority of the council itself.
So, in this opinion, the attorney general is saying that if a governing body formally approves one of its members to conduct negotiations on a contract, such negotiations may proceed in private as long as the purpose of such negotiations is merely discussion and exploration of contract proposals and terms that will be related back to the governing body for it to exercise its collective policymaking authority. Clearly this opinion is at extreme tension with, if not outright inconsistent with, the prior opinions of AGO 74-84, AGO 74-284, and AGO 84-54.
Several opinions of the attorney general from the 1990s seem to take a direction more in line with the case law. For instance, in AGO 93-78, the Clearwater Community Redevelopment Agency needed to hire a new executive director. It had, as a body, selected the candidate it felt was most qualified for the job. However, it needed to negotiate the specific terms and conditions of the candidate’s employment contract and didn’t want to engage in a potentially lengthy, fractured, and unproductive group discussion of the many possible options for a total compensation and benefits package. It decided that the best approach would be to appoint its chair to negotiate on such matters and report back to the board on proposed employment contract terms. However, in an abundance of caution, the board sought an opinion from the attorney general first. The attorney general answered the question as follows:
If the chairman of the community redevelopment agency is authorized only to explore various contract proposals with the selected applicant, with such proposals being related back to the governing body for consideration, the discussions between the chairman and the applicant are not subject to the [Sunshine Law]. If, however, the chairman has been delegated the authority to reject certain options from further consideration by the entire governing body, he is performing a decision-making function that must be conducted in the sunshine.
Two years later, the attorney general’s office issued AGO 95-06, in which the office opined that a hospital advisory board could designate a single member of the board to meet with representatives of the City of Destin to discuss the possible terms of the hospital outside the Sunshine, as long as the final decision-making authority did not rest with the member. In AGO 99-55, the attorney general opined that a single member of a school board may meet with an advisory board member to discuss redistricting issues to come before the board outside the Sunshine, as long as no other members of the school board participated.
While these opinions from the 1990s do not attempt to explain why, the opinions are directly at odds with the earlier opinions in AGO 74-84, AGO 74-284, and AGO 84-54. Indeed, the later opinions do not even reference the earlier opinions. Nevertheless, while the more recent attorney general opinions on the topic of “meetings of one” have drawn closer to the consistent (and, in the author’s view, correct) judicial opinions on the topic, they are, as a group, not consistent over time, making judicial reliance on any of them unwarranted.12
As did the Clearwater Community Redevelopment Agency in the 1990s, in 2013, the Manatee County Commission desired to negotiate a new employment agreement with its incumbent county administrator. Among the normal duties of a county administrator in Florida is to negotiate contracts and other agreements, subject to delegated authority or county commission approval. Obviously, one of the very few agreements a county administrator could not lawfully negotiate on behalf of the county would be his or her own employment contract. Negotiation of an employment contract with an executive-level employee (in the public or private sector) can be difficult, not only because of the give-and-take of the many details of such an agreement, but also because it can entail discussions concerning personal and family circumstances of the candidate. Nevertheless, the Sunshine Law makes no exception for this topic of discussion. As the First District observed in Tolar v. School Board of Liberty County, 363 So. 2d 144, 145 and n.2 (Fla. 1st DCA 1978):
Unlike statutes from other states…Section 286.011 does not except personnel matters from disclosure. The statute has been criticized as being overly broad in that regard….
At least one commentator has suggested that the statute be amended by excluding from public disclosure deliberations concerning the appointment, employment, or dismissal of public officers.
Such criticism aside, however, no current exemption from the Sunshine Law applies to meetings at which agency personnel matters are discussed, including the discussion of employment contracts for agency officials hired directly by the governing board. Thus, had two or more Manatee County commissioners discussed the county administrator’s contract outside of a noticed public meeting, they would have been violating the Sunshine Law.
To ensure a Sunshine violation did not occur, and to facilitate an efficient negotiation process, the Manatee County Commission voted to delegate negotiation duties to its chairman. It also asked its attorney to provide needed legal services to the chairman. Two one-hour meetings were conducted between the chairman and the administrator, with attorneys for both parties also present. Because the county did not view these meetings as those of a collegial governmental board or commission, they were not advertised as Sunshine meetings. The draft agreement that was developed after the two meetings was presented to the full commission at a subsequent noticed public meeting of the commission. The draft agreement was also published on the website of the newspaper in the county, and while not required by law (at the time, F.S. §286.0114 had not been enacted), members of the public were permitted to speak to the draft contract, which was eventually adopted by the commission.
Subsequent to that action, a local online-only news publication filed suit against the county seeking invalidation of the agreement and alleging the two meetings between the chairman and administrator were Sunshine Law violations. After cross-motions for summary judgment were heard, the circuit court, relying on many of the appellate decisions reviewed in this article, issued an order rejecting that contention and granting judgment for the county in The Bradenton Times, Inc. v. Manatee County, Case No. 2013-CA-2597 (Fla. 12th Cir. 2013), aff’d, per curiam, 136 So. 3d 598 (Fla. 2d DCA 2014).
Florida’s Sunshine Law is rooted in the noble motive of prohibiting the kind of smoke-filled room collusion among elected officials all too common in earlier times in our state’s history. The ability of citizens to witness their elected and appointed boards and commissions in the conduct of their collective work is one of the strengths of democracy and acts as a basis for citizens to have faith in their government. The statutory penalties, including potential criminal penalties, for violation of the Sunshine Law are strong motivators for officials to ensure compliance and for governmental staff and legal counsel to proceed with caution. However, as the court in Deerfield Beach Publishing, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988), observed: “Although the [S]unshine [L]aw was enacted to protect the public from ‘closed door’ politics and thus should be construed liberally in order to effect its remedial and protective purpose, it was never intended to become a millstone around the neck of the public’s representatives.”13
[I]t would be unrealistic, indeed intolerable, to require that…every contact and discussion with anyone from whom [board members] would seek counsel and consultation to assist them in acquiring the necessary information, data, or intelligence needed to advise or guide them in their capacity [on the board], be a public meeting within the description of the Sunshine Law.14
Florida’s modern local governments and special districts have become complex entities serving an ever-growing list of public needs. their nature, the governing bodies of these entities cannot possibly collectively negotiate every agreement, draft every ordinance, develop every request for proposals, or resolve every lawsuit. Rather, they must rely many times upon individuals to perform preliminary actions in advance of the policy and business decisions they collectively make. The legislature has the authority to mandate that all or some subset of these actions be fully performed from start to finish only by the full board or commission in open session. However, until that occurs, and in light of the current state of the law as reviewed in this article, the Sunshine Law does not apply to a single individual, whether a member of a collegial governmental body, or its employee, or a regular citizen, when that individual engages in discussions concerning matters that may come before such body, as long as two or more of its members are not part of such discussions.
1 Times Publishing Company v. Williams, 222 So. 2d 470, 473 (Fla. 2d DCA 1969).
2 Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979).
3 Rowe, 461 So. 2d at 75 (emphasis added).
4 Sarasota Citizens, 48 So. 2d at 764 (emphasis added); see also City of Sunrise v. News and Sun-Sentinel Co. , 542 So. 2d 1354, 1355 (Fla. 4th DCA 1989) (“[T]here must be a meeting between two or more public officials of a board, a commission or similar body in order for the Sunshine Law to apply.”); Deerfield Beach Publishing, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988) (dismissing complaint naming only one public official and ruling “[R]equisite to application of the Sunshine Law is a meeting between two or more public officials”); Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480, 481 (Fla. 1st DCA 1978) (“[R]equisite to the application of the Sunshine Law is a meeting of two or more public officials.”); Mitchell v. School Bd. of Leon County, 335 So. 2d 354, 355 (Fla. 1st DCA 1976) (“[R]equisite to application of the Sunshine Law is a meeting between two or more public officials.”).
5 Hough v. Stembridge, 278 So. 2d 288, 289 (Fla. 3d DCA 1973) (emphasis added).
6 News-Press Pub. Co., Inc. v. Carlson, 410 So. 2d 546, 547-548 (Fla. 2d DCA 1982) (internal staff budget committee given certain authority had to meet in the Sunshine).
7 O’Connell, 90-199CA at 2.
8 Id. at 1.
9 Browning v. Florida Prosecuting Attorneys Assn., Inc. , 56 So. 3d 873, n. 2 (Fla. 1st DCA 2011).
10 I.D.S. Properties, 279 So. 2d at 359.
11 Gradison, 296 So. 2d at 477.
12 Browning, 56 So. 3d 873, n. 2.
13 Deerfield Beach Publishing, Inc., 530 So. 2d at 511.
14 News-Press Pub. Co. v. Carlson, 410 So. 2d 546, 548-49 (Fla. 2d DCA 1982).
Robert Michael Eschenfelder is an assistant county attorney in the Manatee County Attorney’s Office practicing in the areas of employment, telecommunications, procurement, bankruptcy, and local government law.
This column is submitted on behalf of the City, County and Local Government Section, Dana Lynne Crosby-Collier, chair, and David Miller, editor.