Modern Sunshine: Attending Public Meetings in the Digital Age
A city council member is called to New York on urgent family business. A fire district commissioner is recovering from surgery at a regional hospital. A zoning appeals board member’s flight is cancelled, and she is stuck out of town. A local health official quarantines a majority of a county commission for two weeks because they are infected with the H1N1 virus. In each case, these public officials may very well have the ability and desire to attend scheduled meetings of their respective boards, councils, or commissions, and they may have local access to communication technology to permit them to fulfill their public duties, yet does the law allow them to do so?
Most Floridians have at least a passing understanding of the concept that the law requires most governmental bodies to conduct their meetings in “the sunshine” and to refrain from discussing public business outside of such settings. However, few citizens truly know the exact laws applying to this concept, and many attorneys practicing in the area of government law have not really contemplated how current communication technology can be used to conduct meetings subject to Florida’s Sunshine Law. Interestingly, Florida’s appellate courts have not weighed in on this topic, and the body of advisory opinions from successive attorneys general provide an inconsistent and, in the author’s view, incorrect analysis.
This article will review the Sunshine Law’s provisions as they relate to a public official’s duty to conduct public business at public meetings and, further, how this law has been construed by the Attorney General’s Office over the years on the issue of remote electronic attendance. Finally, an analysis of what the law actually requires will be provided, as well as suggestions on how policy clarity may be brought to the topic that would balance the public’s right to see and hear what their public officials are doing with the efficiencies created by broader use of modern communication technologies.
Laws Applicable to Public Meetings
Fla. Const. art. I, §24(b) provides:
All meetings of any collegial public body of the executive branch of the state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and notice. . . except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.
In turn, art. I, §24(c) gives the legislature authority to adopt statutes to implement this provision, including any exceptions or exemptions thereto. The legislature did so by adoption of what is now known generically as “the Government in the Sunshine Law” (hereinafter referred to as the Sunshine Law). The relevant portion of that law provides:
All meetings of any board or commission of any state agency or authority or 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 provide reasonable notice of all such meetings.1
What Is a Meeting?
Although these provisions may seem fairly simple and clear, they beg one very central question: What exactly is a “meeting” as used in the Constitution and statute? The Sunshine Law does not provide any definition for the word and, although the courts have had occasion to discuss the term in the context of individual office holders violating the Sunshine Law, they have not addressed the corollary question of meeting via remote electronic appearance.
Initially, it should be observed that, without regard to how “meeting” is defined, the Sunshine Law requires any meeting to be held at an accessible, public place where the public may hear public officials and other speakers, where public officials may hear each other and all other speakers, and, in quasi-judicial matters, where public officials and the parties can see exhibits and other evidence. Given the lack of any constitutional or statutory definition of the word “meeting,” coupled with the ability of modern technology to allow meetings to be attended by persons physically located in different countries, a plain language reading of the word would seem to allow meetings subject to the Sunshine Law to be conducted and attended electronically. Citizens could either watch remotely online or attend in person at the designated physical meeting place, wherein they could hear and — with video feeds — see each of their elected representatives, who in turn could see the audience, as well as any documents or other items offered for the public body’s consideration.
Attorney General Opinions Over Time
While successive attorneys general have, over the decades, given their best efforts to help guide a steady stream of public officials questioning the ability to remotely appear at meetings, their opinions have become inconsistent and, in the author’s opinion, do not reach the correct legal conclusion. As early as 83-100 Op. Att’y Gen. (1983), Attorney General Jim Smith was asked by the Escambia County attorney if a county commissioner was permitted to attend a commission meeting via real-time telephonic means and to participate and cast votes when the other commissioners physically present at the meeting did. In his opinion, the attorney general analogized the meeting requirement to the need, in the public and corporate world, to obtain a quorum. Citing dictionaries and case authorities, some dating back to the 1930s discussing the need for a quorum, the attorney general opined:
The word “present” is generally defined as “being in view or at hand” which I take to mean physical presence. In order to constitute a quorum the requisite number of members must be actually present at the meeting and the requisite number cannot be made up by telephoning absent members and obtaining their vote over the phone.
Thus, even though his office had issued an informal opinion a year earlier (Inf. Op. to Bryan W. Henry, July 26, 1982) stating it was not a violation of the Sunshine Law for a hospitalized commissioner to vote by telephone during a televised meeting of a city commission, the attorney general concluded that, in the absence of statutory authority allowing for telephonic meetings, telephonic appearance and voting by public officials was not permitted. While lavishing attention on the meaning of the word “quorum” (a word that does not appear in the Sunshine Law), the opinion never attempts a statutory construction of the word meeting. This formal opinion appears to be the first to create the “physical presence” standard of the Sunshine Law’s meeting requirement.
Almost a decade later, Attorney General Robert Butterworth issued 92-44 Op. Att’y Gen. (1992) in response to an inquiry from the Hillsborough County attorney. There, the attorney general opined that the law did not prohibit a commissioner who was undergoing medical treatment from attending a commission meeting via voice and video feed, as well as participating and voting on matters, so long as a quorum of members was physically present. The attorney general noted that use of technology to conduct meetings was “once considered to be experimental and controversial, now commonplace,” and the capability of communications technology had “dramatically improved” in its ability to allow for full remote participation in meetings. The opinion noted that the interactive technology to be used would allow for “extensive participation” by the remote commissioner, including the ability to see and hear all fellow commissioners and the audience. It also observed that the legislature, by adopting F.S. §120.53(6) (currently found at F.S. §120.54(5)(b)(2)), had even ordered all state agencies to draft plans to allow for electronic meetings by state officials and boards.
Amazingly, 92-44 Op. Att’y Gen. (1992) makes no mention of the physical presence standard established in 83-100 Op. Att’y Gen. (1983). Instead, the attorney general concluded that remote electronic attendance would be permitted if 1) a quorum of commissioners was physically present at the meeting, and 2) the remote commissioner was unable to attend due to medical condition. He further concluded that any “action taken by the commissioner would be presumptively valid” unless a court found otherwise. This opinion created the “sick + quorum” standard, used in subsequent opinions such as 94-55 Op. Att’y Gen. (1994) (city museum board member) and 98-28 Op. Att’y Gen. (1998) (school board member).
In 02-82 Op. Att’y Gen. (2002), Attorney General Richard Doran was asked whether physically disabled members of the Miami Beach Barrier-Free Environment Committee could appear and vote by electronic means. Following the “sick + quorum” standard, the attorney general sanctioned the electronic attendance. The opinion specifically recognized the argument that, since F.S. §120.54(5)(b)(2) allowed state agencies and their boards to meet and vote via electronic means regardless of physical ailments or disabilities, local and regional boards should be allowed the same option because the Florida Constitution addressed them all in the same paragraph discussing open meetings. However, the attorney general, quoting from 98-28 Op. Att’y Gen. (1998), opined:
While the convenience and cost savings of allowing members from diverse geographic areas to meet electronically might be attractive to a local board or commission such as a school board, the representation on a school board is local and such factors would not by themselves appear to justify or allow the use of electronic media technology in order to assemble the members for a meeting.
He also relied upon the city code’s requirement for a quorum (which applies to many state agency boards as well) to require physical presence absent illness or disability preventing physical attendance. In doing so, the attorney general made the wholly conclusory statement, “clearly, a quorum is required to conduct agency, board or committee business and the code contemplates the physical presence of board members at public meetings.”2
Although this opinion rejected the logic (that if the people’s right to open government as to state agencies and boards was satisfied by electronic appearance as provided for in F.S. §120.54(5)(b)(2), then the same technology should satisfy the same rights for local boards), such logic was not always so rejected by the attorney general. In fact, in 94-55 Op. Att’y Gen. (1994), Attorney General Butterworth advised the Miami Beach City Attorney that an out-of-state member of the Bass Museum board could appear and vote by speaker phone, even though the museum board was not a state agency. The attorney general went on to say the “board may look to the model rules promulgated pursuant to this statute for direction in conducting telephone meetings” as a way to ensure compliance with the Sunshine Law’s meeting requirement.
In 2003-41 Op. Att’y Gen (2003), the matter becomes even more clouded. There, Attorney General Charlie Crist was asked by the Tampa Human Rights Board if one of its members could attend electronically due, not to illness or medical condition, but to a regularly recurring scheduling conflict related to the member’s business interests. The board confirmed that a quorum of its members would be physically present for meetings when the absent official would appear electronically. The attorney general concluded that since the statutes contemplated the physical presence of members, his office would consider telephonic appearances permissible only when a quorum was otherwise present and when absence was due to “extraordinary circumstances such as illness.”3
This pretextual expansion of the “sick + quorum” exception now contemplates other extraordinary circumstances that could justify remote appearances. Thus was born the “extraordinary circumstance + quorum” standard. In this case, was a scheduling conflict an extraordinary circumstance? Attorney General Crist ended his opinion by declining to opine, saying instead that the question was “a determination that must be made in the good judgment of the board.”
The attorney general, in 06-20 Op. Att’y Gen. (2006), seems to back away from requiring any unique reason to be absent, such as illness, disability, or extraordinary circumstance. Instead, the Hillsborough County Metropolitan Planning Organization (MPO) was advised that it could use video links to link its citizens’ advisory committee (CAC) with the CACs of other MPOs, as long as each committee had a physical quorum present. Of significant interest, this opinion states:
The use of interactive electronic media to increase public participation in meetings and the use of such media to allow members of a board or commission to participate in a duly noticed public meeting does not necessarily raise Sunshine Law issues, but rather implicates the ability of an entity to conduct official business with a quorum.4
This opinion, adopting the “any reason + quorum” standard, appears for the first time to acknowledge that the Sunshine Law simply does not define the term “meeting,” and the reality of the modern world is that meetings can and do occur electronically. Noting the right the legislature gave state agencies and boards to meet electronically, the opinion encourages the MPO to seek legislative authorization that would allow regional boards spanning multiple counties to meet electronically.
In addition to establishing physical quorum as a criterion in determining whether a public official may electronically attend a meeting, the attorneys general have created an additional distinction with dubious logic. In 01-66 Op. Att’y Gen. (2001), Attorney General Butterworth was asked whether the Leesburg Regional Airport Authority could conduct workshop meetings and discussions over the Internet. Again, with no basis in statutory or constitutional authority, the attorney general concluded such meetings were permitted — but only if the entity provided “interactive Internet access” for citizens at private locations and made computers available for those citizens who did not have their own access at “designated places within the authority boundaries.” The opinion confirmed that, as long as no official action is to be taken, a physical quorum was not needed. The Attorney General’s Office followed its own advice in a November 29, 2005, informal opinion to the Monroe County Commission, wherein it acknowledged the county’s “unique geography spanning 120 miles connected by bridges” and five-hour round trip time for staff and commissioners and, thereafter, sanctioned the use of digital conferencing to conduct special meetings and workshops where no action would be taken.
This “workshop + access” line of opinions raises a larger question, which is outside the scope of this article, and that is: Has the judicial branch, in interpreting the Sunshine Law, expanded its reach beyond the actual wording of the law, since it only addresses “meetings at which official acts are to be taken”? If the matter were left there, one could assume workshops simply were not within the ambit of the Sunshine Law. However, the constitutional provision from which the statute is derived more broadly includes meetings where the public’s business is “transacted or discussed.” The Florida Supreme Court has, thus, observed that, “the intent of the Sunshine Law is to cover any gathering of the members of the [b]oard where the members deal with some matter on which foreseeable action will be taken by the [b]oard.”5 To the extent the constitutional language captures even discussions of future actions, there does not seem to be any legal basis for the distinction made between action meetings and workshop meetings.
Recently, Attorney General Bill McCollum had the opportunity to weigh in on the subject of remote attendance and the Sunshine Law. In 09-56 Op. Att’y Gen. (2009), the Coral Gables Retirement Board inquired whether it could promulgate a rule allowing for remote attendance at its meetings via electronic means and further, allow for such electronic attendance to constitute a member’s presence for purposes of establishing a quorum. In framing the issue, the board noted its difficulty in obtaining participation by its members, many of whom were busy professionals with scheduling conflicts. The board also noted that each time it had to reschedule its out-of-town paid financial advisors, the city incurred significant expense. Significantly, the board made clear that the city code did not require physical presence to constitute a quorum for the retirement board.
This set of facts provided the Attorney General’s Office a prime opportunity to break away from its focus on quorums (a question actually never asked but continually invoked as support for past opinions) and confirm that the Sunshine Law, as written, simply does not prohibit electronic meetings. However, again basing his opinion on the asserted definition of quorum, Attorney General McCollum wrote, in 09-56 Op. Att’y Gen. (2009):
While I acknowledge that the City of Coral Gables ordinances creating the retirement board and empowering it do not contain language referring to the physical presence of a quorum of the members for the transaction of board business, I believe that the legislative requirement of a quorum and the designation of the number required to constitute a quorum argues for the physical presence of that number of board members at a meeting.
In so many words, this opinion seems to imply that regardless of how a local government seeks to establish what constitutes a quorum for its boards and commissions (including an affirmative statement that it may include persons appearing electronically), the attorney general will reflexively require a quorum of members to be physically present in order to authorize any other members to appear electronically.
Which View Is Right? Is There a Better Approach?
Clearly, the discussion above shows that even successive and eminent attorneys general could not come to terms with a consistent, statutorily based definition for what it means to meet under the Sunshine Law in the modern world of electronic communications. Nor do those opinions creating “sick + quorum,” “extraordinary circumstance + quorum,” “any reason + quorum,” or “workshop + access” exceptions cite to any constitutional or statutory authority to support them. The attorney general does not have the legal authority to create exceptions to the Sunshine Law, only the legislature does. So, was Attorney General Jim Smith correct in 1983 when he said quorum requires physical presence and, therefore, no public official may ever attend a Sunshine meeting unless he or she was physically present? Since neither the plain language of the statute nor the constitutional language upon which it is based discuss physical presence, it must be concluded Smith was not correct.
The term “quorum” is defined in Webster’s New Universal Unabridged Dictionary as “the number of members of a group or organization required to be present to transact business legally, usually a majority.”6 Black’s Law Dictionary says it is “the minimum number of members (usually a majority of all the members) who must be present for a deliberative assembly to legally transact business.”7 Neither of these definitions requires physical presence, just presence. As noted, most of the attorney general opinions call for the physical presence of a quorum, not just due to an overly broad reading of the word “quorum” as always requiring physical presence, but because the courts have not yet weighed in on the question, and votes cast by officials appearing electronically may be found by a future court to be void. In essence, the opinions are hedging the bet, relying on the fact that even if the courts ultimately find electronic attendance unavailable, at least a quorum is physically present to sustain the action taken. For instance, in 03-41 Op. Att’y Gen. (2003), reviewed earlier, Attorney General Crist noted his concerns “about the validity of official actions taken by a public body when less than a quorum is present.” But setting aside this second question, the logic of the opinions falls apart when one looks at the body of law interpreting violations of the Sunshine Law.
The courts have made it clear that when two or more members of a Sunshine-governed body communicate with each other on official business — regardless of how they communicate — they are having a meeting for Sunshine Law purposes, and such meeting violates the act by failing to provide notice and/or to meet at a public place.8 So, while some specific statute or a board’s or commission’s own procedural rules may define “quorum” as physical presence of a minimum number of members, the Sunshine violation cases clearly indicate that a Sunshine meeting can occur between two members via electronic means. logical extension, had those two or more members only complied with the Sunshine Law’s public notice and access requirements, they would not have violated that law by meeting outside the sunshine.
As to the need for actual physical presence, it has been made clear that two or more members using phone, Web sites, e-mails, or text messages to communicate on government business, without proper notice and public access, are conducting a meeting in violation of the Sunshine Law’s notice and public access requirements.9 In holding that such electronic communications when elected officials are not physically present with each other constitute Sunshine meetings, these authorities seem to be directly at odds with the attorney general opinions reviewed earlier asserting that Sunshine meetings may not be held electronically, at least not without a quorum physically present in a room. And, if the law is to be applied uniformly with only the legislature empowered to authorize exceptions, on what authority does the attorney general find it appropriate to attend meetings telephonically just because a commissioner is ill?
It should be clear to anyone studying the current state of affairs that this less than consistent and legally questionable body of attorney general opinions is not the best way to ensure that the public’s constitutional Sunshine rights are preserved. Conversely, substituting a series of court opinions on the topic of electronic appearance at Sunshine meetings would likely exchange one confused and uncertain body of law for another. The obvious solution to this entire matter is for the Florida Legislature to finally take this matter up and bring clarity to what is and is not authorized.
To be sure, the pressures on the legislature in taking up this matter would be significant. On the one hand, if it embraces modern technology, as it did with its state agencies and boards, and allows for electronic meetings, the legislature may face criticism from citizens and open government groups. If instead, it abrogates the baseless distinctions and exceptions created by the attorney general opinions and simply requires physical attendance for all Sunshine-covered meetings, elected and appointed officials who currently benefit from those options will be displeased. Of course as a middle ground, the legislature could adopt some version of the exceptions created by the attorney general opinions, authorizing remote attendance when a quorum is present and allowing completely electronic attendance for meetings, such as workshops, where no action will be taken. Whatever the policy decisions made by the legislature, the time has come for that policy-making body to provide greater detail and guidance to local and regional boards and commissions and their attorneys as to what, if any, limits should be placed on electronic Sunshine meeting attendance.
Although the author does not advocate less open government, in an era where technology allows for corporate boards to meet across continents and presidents to confer simultaneously with military commanders and diplomats from around the world, allowing technology to help open government while using fewer precious resources seems like a positive policy move, particularly given the legislature’s blessing of remote meeting technology for its own boards and agencies. Nevertheless, the current bottom line is that until the legislature provides statutory clarification or definition of the word “meeting” to require physical presence, or alternatively confirms the availability of remote electronic participation, the plain reading of the statute is that a meeting is a meeting, whether members are present in physical form or via modern communication technology. Thus, attendance by any number of the members of a Sunshine body via electronic means does not violate the plain language of the statute as written.
1 Fla. Stat. §286.011(1).
2 02-82 Op. Att’y Gen. (2002) (emphasis added).
3 03-41 Op. Att’y Gen. (2003) (emphasis added).
4 06-20 Op. Att’y Gen. (2006) (emphasis added).
5 Frankenmuth Mutual Ins. Co. v. Magaha, 769 So. 2d 1012, 1021 (Fla. 2000).
6 Webster’s New Universal Unabridged Dictionary1588 (2003).
7 Black’s Law Dictionary1284 (8th ed. 2004).
8 See City of Sunrise v. News and Sun Sentinel Co., 542 So. 2d 1354 (Fla. 4th D.C.A. 1989); Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d D.C.A. 1973); City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971); and Wolfson v. State, 344 So. 2d 611 (Fla. 2d D.C.A. 1977). See also 93-79 Op. Att’y Gen. (1993) (discussion among two members a Sunshine violation).
9 See State v. Childers, 886 So. 2d 229 (Fla. 1st D.C.A. 2004) (per curium affirming opinion of trial court finding telephone conversation between two commissioners and supervisor of elections regarding redistricting was Sunshine meeting where notice and public access had not been provided); see also 01-20 Op. Att’y Gen. (2001) (e-mail exchanges may be Sunshine meetings if ideas are exchanged); 08-07 Op. Att’y Gen. (2008) (use of private Web sites, blogs, or message boards by commissioners to exchange ideas is a Sunshine meeting requiring notice and public access).
Robert Michael Eschenfelder is a planning commissioner for the City of St. Petersburg and is deputy county attorney in the Manatee County Attorney’s Office, practicing in the areas of employment, telecommunications, procurement, bankruptcy, and local government law.
This article is submitted on behalf of the City, County and Local Government Law Section, James L. Bennett, chair, and Jewel W. Cole, editor.
