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Misled Interested Citizens and Florida’s Public Meeting Laws

City, County and Local Government

Florida’s Government in the Sunshine Law, F.S. 286.011, has long required meetings of governing bodies of public agencies to be noticed and open to the public.1 While the Sunshine Law has long granted the public a right of access to such meetings, there was no general requirement for public comment until 2013, when the legislature enacted F.S. 286.0114. Section 286.0114(2) provides: “Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission.”

The statute fails to define what constitutes a “reasonable” opportunity. To date, the issue has not been interpreted by the courts. This article attempts to do so.

A conservative application of the statute would restrict every relevant commission or board from considering matters not noticed on a pre-circulated agenda. This approach would be unworkable. All amendments, secondary motions, incidental motions, privileged motions, reconsiderations, or walk-on items arising during a meeting could potentially violate the statute. Debate could not occur. Virtually anything2 that is beyond the call or notice of a meeting would need to be continued, so it could be properly noticed, and the public given an opportunity to be heard.

Ironically, a conservative approach would also shackle the public’s ability to participate. Action on matters raised in the public’s comments, petitions, and initiatives would also need to be continued so that they could be noticed, and the public given an opportunity to be heard.

The Concern That Considering Matters Not Noticed on the Agenda Will “Mislead Interested Citizens”
A general requirement for an opportunity to provide public comment appears to stem from a concern that citizens interested in a matter will be misled into not attending a meeting if the matter is not noticed on an agenda. In Law & Info. Services, Inc. v. City of Riviera Beach, 670 So. 2d 1014, 1016 (Fla. 4th DCA 1996), the court said:

“We are, of course, concerned that a board’s failure to publicize an agenda item may mislead interested citizens into assuming that a matter will not be addressed at a scheduled public meeting. However, whether to impose a requirement that restricts every relevant commission or board from considering matters not on an agenda is a policy decision to be made by the legislature.”

In the Riviera Beach case, the city council voted to hire the deputy and acting city manager to be their city manager. The meeting was noticed. There was an agenda, but the agenda did not include this item. The court held that if a meeting itself is properly noticed, there is no requirement that a governmental body give notice of potential deviation from a previously announced agenda.

In Yarbrough v. Young, 462 So. 2d 515 (Fla. 1st DCA 1985), the city had announced on October 25 that utility improvements of $1.3 million would be on the agenda for a meeting on October 28. However, an updated report set the cost at $8.8 million, an amount never mentioned before announced at a public meeting until October 28, at which time the council adopted the report. The court ruled the city’s three days’ notice was reasonable notice; postponing deliberations on the difference between the $8.8 million amount approved by the council and the $1.3 million amount that was noticed was not only unnecessary under the Sunshine Law, but also unreasonable.

In Rhea v. City of Gainesville, 574 So. 2d 221 (Fla. 1st DCA 1991), the city commission authorized the mayor to write a letter to a local delegation conveying the commission’s position on a regional utility matter and offering the commission’s support regarding it. Notice of the meeting was provided one-and-a-half hours before the meeting. The court held the short notice was not reasonable.

In Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), the precirculated meeting agenda included approval of minutes. The draft meeting minutes, however, were not among the documents available to the public. The city’s employee represented the minutes would not be released to the public until after approval by the commission. The court held the denial of the public records request not only breached the duty to provide such records at a reasonable time and under reasonable conditions, but also contravened the purpose and mandate of our public records law. Because the damage occurred when the city refused to produce the minutes, production after the fact did nothing to mollify appellants’ injury, the deprivation of constitutional and statutory rights.

In Transparency for Florida v. City of Port St. Lucie, 240 So. 3d 780 (Fla 4th DCA 2018), three different notices of a special meeting to consider the city manager’s separation from the city were provided. The first notice stated that there would be a special meeting for the removal of the city manager. The second revised notice listed the “discussion of a separation agreement for the city manager” and “cancellation of the city manager’s employment agreement” as agenda items. The third notice listed the same date and time for the meeting, but it only listed discussion of a separation agreement.

The trial court did not conclude that a Sunshine Law violation had occurred, but determined that, even if it did, any violation was cured by a noticed special meeting of the council. The district court reversed the summary judgment, finding a factual issue existed as to whether the city’s notice of the special meeting less than 24 hours before the meeting was reasonable. The district court specifically mentioned that the public was never invited to speak.

The sufficiency of the notice was contested in each of the cases above. The plaintiffs all complained of being misled. Because no bright-line rule for notice exists, the results depended upon a fact-specific inquiry. If the meetings were properly noticed and open to the public, the courts generally held the public’s ability to participate in the decision-making process was not violated.

Other Notice and Public Comment Requirements
The adoption of ordinances requires notice and public comment. Proposed ordinances may be read by title, or in full, on at least two separate days and shall, at least 10 days prior to adoption, be noticed once in a newspaper of general circulation in the municipality.3 Interested parties may appear at the meeting and be heard with respect to the proposed ordinance.

Florida’s Sunshine Law requires “reasonable notice” for public meetings.4 However, the Sunshine Law does not expressly define what notice is “reasonable.” The Florida attorney general has opined that the precise type of notice required is variable and must be determined in the context of a particular situation.5 Additionally, the attorney general has explained that the reasonable notice requirement does not require publication of an agenda:6

“[W]hile Florida courts have recognized that notice of public meetings is a mandatory requirement of the Government in the Sunshine Law, the preparation of an agenda that reflects every issue that may come before the governmental entity at a noticed meeting is not.”

If the meeting itself is properly noticed, the Sunshine Law does not require the governmental entity to “give notice of potential deviation from a previously announced agenda.”7 Thus, it has been held that the Sunshine Law does not “contemplate” that an item must be placed on an agenda before it can be considered.8

“The Public Shall Be Given a Reasonable Opportunity to Be Heard on a Proposition”
Section 286.0114 requires members of the public to be given a reasonable opportunity to be heard on a proposition before a board or commission. Under Robert’s Rules of Order, a proposition is another word for a motion; “motions are the formal proposals by members, that the assembly take a certain action.”9 Indeed, Robert’s Rules provides:10

“The basic principle of decision in a deliberative assembly is that, to become the act or choice of the body, a proposition must be adopted by a majority vote; that is, direct approval — implying assumption of responsibility for the act — must be registered by more than half of the members present and voting on the particular matter, in a regular or properly called meeting of the body.”

Until there is a motion proposing a specific action, nothing can be debated. Not all motions result in votes; some are ruled out of order, some may be withdrawn, and some may be adopted by consensus. Secondary motions change main motions. Secondary motions interrupt, possibly alter, postpone, or kill main motions. An example of a secondary motion would be a motion to amend in order to modify the wording of a pending motion before the pending motion itself is acted upon. If during a meeting the latest information or a changed situation makes it appear that a different motion might reflect the true will of the assembly, a member can amend the motion. Reports from officers and comments from the public may also invite new motions. The public’s opportunity to be heard potentially applies in all of the above situations.

Agendas are typically prepared by an administrator, manager, or clerk. Agendas are only advisory until one is formally adopted with a motion and a vote. Not until a motion to approve an agenda is made, seconded, and restated by the presiding officer is the motion a pending question before an assembly. Not until adopted does an agenda become a binding general order of the assembly.

The court in Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973), summarized the use of agendas as follows:

“Although the drawing up of an agenda is a matter related to a noticed public meeting, it essentially is an integral part of the actual mechanics and procedures for conducting that meeting and, therefore, aptly relegated to local practice and procedure as prescribed by city charters and ordinances. Furthermore, the necessity of items to appear on an agenda before they could be heard at a meeting would foreclose easy access to such meeting to members of the general public who wish to bring specific issues before the governmental body.”

All reports, communications, contract documents, or other matters, including position approvals, administrative discussion items, and consent agenda items, to be submitted to a board or a commission must be delivered to the administrator, manager, or clerk on or before some time before a meeting at which such matter is to be considered. The administrator, manager, or clerk arranges an agenda list of such matters and furnishes a copy to the governing body.

Whether to consider such matters is, of course, the prerogative of the legislative body. Members are free to adopt, amend, or reject any item on an administrator’s, manager’s, or clerk’s agenda.

Fla. Const. Art. III, 6: The Single-Subject Clause
The parameters for enacting legislation are that “every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.”11

“Properly connected therewith” means “if the provision is “necessary” to the subject, “fairly and naturally germane” to the subject, or promotes the purposes of the legislation as set forth in the subject, the provision may be regarded as properly connected.”12

The Supreme Court provided the following test to determine when a matter is properly connected therewith: A connection between a provision and the subject is proper 1) if the connection is natural or logical; or 2) if there is a reasonable explanation for how the provision is a) necessary to the subject or b) tends to make effective or promote the objects and purposes of legislation included in the subject.13

The historical backdrop for the constitutional mandate is like the concerns described above about misleading interested citizens about discussion of items at public meetings. The Supreme Court has explained:14

“It had become quite common for legislative bodies to embrace in the same bill incongruous matters having no relation to each other, or to the subject specified in the title, by which means measures were often adopted without attracting attention. And frequently such distinct subjects, affecting diverse interests, were combined in order to unite members who favored either in support of all. And the failure to indicate in the title the object of the bill often resulted in members voting ignorantly for measures which they would not knowingly have approved. And not only were the members thus misled, but the public also; and legislative provisions were sometimes pushed through which would have been made odious by popular discussion and remonstrance if their pendency had been seasonably demonstrated by the title of the bill.”

The purpose of art. III, 6, was to avoid the confusion incident to the evil, which had grown out of “omnibus” legislation.15 Subjects that are properly connected do not violate the single-subject rule. Properly connected subjects are permitted.

Using Single-Subject Rule Principles in Applying 286.0114
Like Florida’s single-subject rule, the purpose of 286.0114 is arguably to avoid confusion among the public. An application of the statute, which leans upon and draws from the single-subject rule caselaw, would provide a more workable approach to the statute. Commissions or boards could consider propositions not specifically listed on an agenda if the propositions were properly connected to subjects that were listed on the agenda.

Propositions “necessary to the subject,” and “fairly and naturally germane” to the motion provide “natural or logical connections.” If there was a reasonable explanation that the proposition involved the same subject one could argue the public had notice and was given an opportunity to be heard on the matter.

This approach is consistent with parliamentary rules of procedure. Amendments must always be germane, that is, closely related to or having a bearing on the subject of the motion to be amended.16 To be germane, an amendment must in some way involve the same question that is raised by the motion to which it is applied. Any amendment that introduces an independent question is out of order.17

Senate Bill 1092
Florida Senate Bill 1092 (2018) would have repealed 286.0114. The bill would have also amended the Sunshine Law as follows:

“Section 1. Section 286.011, Florida Statutes, is reenacted and amended to read:

“286.011 Public meetings and records; public inspection; criminal and civil penalties. —

“(1) Except as otherwise provided in the State Constitution, 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; or of any entity created by general or special law, 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 for public attendance and participation at all times. The adoption of a, and no resolution, rule, ordinance, or code, or other formal action taken, is not shall be considered binding except as taken or made at such meeting.

“(a) The board or commission must provide at least 3 days’ advance reasonable notice of all such meetings, and such notice must include publication of all agenda items and any materials or attachments that will be distributed at the meeting. The board or commission may schedule an emergency meeting if 24 hours’ advance notice is provided. If necessary, the board or commission may amend a meeting agenda after its initial publication. On the day of a meeting, the board or commission shall maintain at least two copies of the agenda, and any materials or attachments to be distributed at the meeting, at the meeting location.”

Thus, the proposed amendment would have replaced the “reasonable” notice requirement with definitive time periods and required all agenda items and materials to be included in the notice. It also would have required meetings to be open for public participation “at all times.”

There was no mention of whether motions properly connected to the subject of an agenda item, or amendments germane to a motion on an agenda item, would be permissible. Arguably, secondary motions, reconsiderations, or officer recommendations would also be restricted from being considered until they are first published on an agenda in advance of the meeting.

If a similar bill gets introduced next legislative session, hopefully it will include language allowing action on matters that are fairly and naturally connected to items contained in the noticed agenda.

A general requirement for public comment and public participation at all times is well-intentioned. However, if every new proposition must first be noticed before it can be considered, the restriction will impede public comments from being considered as well. A more measured approach would be to allow propositions necessary to the subject, and fairly and naturally germane to the motion.

Local governments by nature are deliberative bodies. They govern. Matters important to the community at-large get debated. Natural or logical amendments stemming from that debate are integral parts of the actual mechanics and procedures of their meetings. Properly connected subjects should not be prohibited.

1 Fla. Stat. 286.011.

2 Fla. Stat. 286.0114(2). Section 286.0114(4) provides four exceptions to this requirement: a) an “official act that must be taken to deal with an emergency situation affecting the public health, welfare, or safety, if compliance with the requirements would cause an unreasonable delay in the ability of the board or commission to act;” b) an “official act involving no more than a ministerial act, including, but not limited to, approval of minutes and ceremonial proclamations;” c) a “meeting that is exempt from section 286.011;” and d) a “meeting during which the board or commission is acting in a quasi-judicial capacity.” However, the exemptions provided in 286.0114(4) do “not affect the right of a person to be heard as otherwise provided by law.”

3 Fla. Stat. 66.041, 125.66.

4 Fla. Stat. 286.011(1).

5 Op. Att’y Gen. Fla. 080-78 (Sept. 22, 1980).

6 Op. Att’y Gen. Fla. 2003-53 (Nov. 3, 2003).

7 City of Riviera Beach, 670 So. 2d at 1016.

8 Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973); Yarbrough, 462 So. 2d 515 (city had no duty to give notice that it might adopt the more expensive improvements).

9 Robert’s Rules of Order Newly Revised 27 (11th ed. 2011).

10 Id. at 4.

11 Fla. Const. art. III, 6.

12 Franklin v. State, 887 So. 2d 1063 (Fla. 2004).

13 Id.

14 Id.

15 Id.

16 Robert’s Rules of Order at 131.

17 Id. at 36.

Photo of Mark MoriartyMARK MORIARTY is Florida Bar board certified in city, county, and local government law and is a certified professional registered parliamentarian. He is a past chair of the City, County and Local Government Law Section and is a member of the section’s Website/Listserv and Local Government Desk Book committees. Moriarty earned his J.D. from Delaware Law School and his B.A. from the University of Delaware.

This column is submitted on behalf of the City, County and Local Government Law Section, Michele L. Lieberman, chair, and Ellie Neiberger, editor.

City, County and Local Government