Shade Meetings: Overview, Pitfalls, and Recommended Changes
This article discusses the scope of the attorney-client exemption to the Sunshine Law and the procedures that must be followed to properly hold an attorney-client session. The article also analyzes case law interpreting the attorney-client exemption and then concludes with specific recommendations to amend the statute to make it more useful for government entities.
It is the public policy of the State of Florida that all meetings of any board or commission of any state agency or authority, or any agency or authority of any county, municipal corporation, or political subdivision in which official acts are to be taken must be open to the public, and no formal action may be taken outside such a public meeting.1 The legislature has also broadly conferred standing upon any citizen to bring an action in the circuit court to enjoin a violation of this law, which is commonly referred to as the “Sunshine Law.”2 Any public officer who participates in a meeting in violation of the Sunshine Law is subject to a multitude of penalties, including a fine not exceeding $500,3 a second degree misdemeanor,4 and attorneys’ fees at the trial level5 and on appeal.6
When engaging in litigation a private citizen may hold private discussions with an attorney to discuss litigation strategy and expenditures. However, prior to 1993, there was no exemption from the Sunshine Law that permitted a government attorney to meet with clients to discuss litigation strategy and expenditures.7 In 1993, the Florida Legislature amended the Sunshine Law to allow government bodies to meet in private with the entity’s attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency.8
Procedure to Hold Attorney-Client Session
To hold a private meeting with a board, commission, or agency, the entity’s attorney must carefully comply with the statutory procedures governing such exemption. Specifically, the initial request for an attorney client session must be made by the attorney to the governing body at a public meeting.9 Prior to holding the attorney client session, the government entity must give reasonable public notice of the time and date of the attorney-client session and the names of the persons who will be attending the session. Additionally, the attorney-client session must commence at an open meeting in which the entity’s chair announces the commencement of the private attorney-client session, the estimated length of the session, and the names of the persons who will be attending the session.10 The discussion occurring at the private attorney-client session must be confined to settlement negotiations or strategy related to litigation expenditures.11 Also, the entire attorney-client session must be transcribed by a court reporter and the transcript of the session filed with the entity’s clerk within a reasonable time after the session.12 However, the transcript of the session is not available for public inspection until after the conclusion of the litigation.13 Upon the conclusion of the attorney-client session, the public meeting is reopened, and the entity’s chair must announce that the attorney-client session has concluded.14
• Presence of Unauthorized Persons
A government entity’s attorney is the individual who is ultimately responsible to provide the board, body, or commission with the necessary advice on how to properly hold an attorney-client session. When faced with lawsuits brought by parties challenging the procedure employed for an attorney-client session, one of the major problems experienced by government entities involves the attendees at the session. It is the normal practice of government bodies to have the entity’s clerk at all meetings to properly record and take minutes of the meeting. Government entities also regularly invite assistant city managers, assistant county administrators, or department directors who have knowledge of the topic to be discussed at a meeting. However, the attorney-client session statutory exemption only permits the entity’s attorneys (including outside counsel), chief administrator, and the government body to meet in private, to the exclusion of all other staff and consultants.15
In School Board of Duval County v. Florida Publishing Co., 670 So. 2d 99 (Fla. 1st DCA 1996), a newspaper filed a petition for writ of mandamus seeking to compel the school board to make available for the newspaper’s inspection the transcripts of an attorney-client session held by the school board. The appellate court upheld the trial court’s decision requiring the production of the transcripts because the school board had converted the attorney-client “shade” session into a public meeting by inviting unauthorized staff members and a consultant into the attorney-client session. To avoid the embarrassing consequences associated with bringing unauthorized individuals into an attorney-client session, the attorney for the government entity should discuss the issue prior to the session with the entity’s chief administrator.
• No Voting or Final Decisions
A government attorney also must ensure that the subject matter of the attorney-client session does not stray beyond the discussions authorized by the statutory exemption. Specifically, the attorney should ensure that no votes are taken during the session and that no final decisions concerning settlement are made.16 Instead, the client’s position can be ascertained by asking each individual public official for his or her thoughts on a proposed strategy or settlement.
• Litigation Must be Pending
At times, a government entity may receive a notice of claim or may otherwise have good reason to believe that litigation against it is imminent. In such a case, the entity’s attorney may be approached by a public official desiring to hold an attorney-client session with other members of the governing body. However, the statute only provides for an attorney-client session to discuss pending litigation and, therefore, no attorney-client session may occur until a lawsuit or other legal proceeding is actually instituted.17 A lawsuit filed against or involving one of the agency’s public officials may be considered pending litigation against the entity if the entity is the real party in interest.18
• Transcript Becomes Public Record
Many public officials have never had their depositions taken and when they see that there is no audience, some officials may tend to speak more freely than the entity’s attorney desires. In fact, in serving as an attorney for a public entity, I had the experience in one attorney-client session of having an elected official refer to a developer as a crook. At the outset of the session, the public officials should be reminded that there is a court reporter and that upon the conclusion of the litigation the press and individuals will be permitted to inspect and copy the transcript of the attorney-client session.
F.S. §286.011(8) should be amended in several ways to make attorney-client sessions more useful to public entities. First, the statute should be amended to permit consultants and appropriate staff to attend the attorney-client sessions. In complex litigation, the entity’s attorney and chief administrative officer may not have all of the technical expertise to provide the governing body with the detailed, pertinent information required to evaluate a lawsuit. Often, expert witnesses retained by the entity in connection with the litigation and the entity’s administrative staff are best suited to respond to inquiries by the governing body concerning the technical aspects of the lawsuit. In the context of labor negotiations, there is statutory precedent for allowing staff members with knowledge of the issues to attend closed door meetings with the governing body.19
Second, the statute should be amended to permit the public entity to hold an attorney-client session upon receiving a notice of claim.20 This amendment would serve the public interest because it would allow the public entity to consider and potentially resolve a claim before protracted and expensive litigation is instituted.
The attorney-client session is a great tool to be utilized by an attorney representing a government entity. However, the entity must strictly comply with the statutory procedures because a great deal of harm can be caused if those procedures are not followed. q
1 Fla. Stat. §286.011(1).
2 Fla. Stat. §286.011(2). The “Sunshine Law” moniker is also commonly used to refer to the public records law, which is not discussed in this article, but can be found at Fla. Stat. §119.07.
3 Fla. Stat. §286.011(3)(a).
4 Fla. Stat. §286.011(3)(b).
5 Fla. Stat. §286.011(4).
6 Fla. Stat. §286.011(5).
7 Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1985).
8 Fla. Stat. §286.011(8).
9 Fla. Stat. §286.011(a).
10 Fla. Stat. §286.011(8)(d); City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th D.C.A. 1995).
11 Fla. Stat. §286.011(8)(b).
12 Fla. Stat. §286.011(8)(c).
13 Fla. Stat. §286.011(8)(e).
14 Fla. Stat. §286.011(d).
15 Zorc v. City of Vero Beach, 722 So. 2d 891 (Fla. 4th D.C.A. 1998).
16 Bruckner v. City of Dania Beach, 823 So. 2d 167 (Fla. 4th D.C.A. 2002); Zorc v. City of Vero Beach, 722 So. 2d 891 (Fla. 4th D.C.A. 1998).
17 Op. Att’y Gen. Fla. 98-21.
18 Brown v. City of Lauderhill, 654 So. 2d 302 (Fla. 4th D.C.A. 1995).
19 Fla. Stat. §447.605(1).
20 Fla. Stat. §768.28(6).
Mark Goldstein is a partner in the Miami law firm of Wolfe & Goldstein, P.A. He practices in the field of local government litigation. Prior to entering private practice Mr. Goldstein served as the city attorney of the City of Hallandale Beach and as a senior assistant city attorney for the City of Miami Beach. He received his B.A. from Yeshiva University in New York City and his J.D. from the University of Miami School of Law.
This column is submitted on behalf of the City, County and Local Government Law Section, Kenneth W. Buchman, chair, and Jewel W. Cole, editor.