John W. Bakas, Jr.
Attorney at Law

Brandon, Florida


 

What is the Sunshine Law?

What is the Public Records Law?

How does an attorney work with
and advise a public client
in an open decision-making process?

The Sunshine Law

Board Guidelines for Compliance
with the Sunshine Law

 

 

 

 

What is the Sunshine Law?

The Sunshine Law requires the governing board of governmental bodies to advertise their meetings, and to hold all meeting in the open so that members of the public can attend.  

What is the Public Records Law?

The Public Records law requires all governmental entities to allow members of the public to inspect and copy virtually all documents and records (including computer data) made or received by the governmental body.

I have had nearly daily contact with both the Public Records Law and the Sunshine Law since 1974, and I have litigated in both areas. I have litigated direct questions regarding what is and is not a public record, and respond frequently to inquiries from the media, private attorneys, and citizens. I give practical guidance to public clients on how to avoid even the appearance of violating these laws. I provide clear advice that also avoids potential sunshine-law issues.

I am experienced with the newest, and perhaps most significant public records issue affecting local government: access to information stored in computer data bases. As public bodies place more information in electronic storage while maintaining the paper file as well, to what extent must a government develop special programs to generate custom reports for private use?

I am familiar with the evolution of the Sunshine Law and I am committed to open government and believe the best public decisions are made when the process of decision-making is accountable to an informed public. I also understand when certain communications are confidential. Understanding the body of law from which these distinctions arise comes with years of experience. I have an extensive background to advising public entities on compliance with the Sunshine Law and Public Records Law.

 

How does an attorney work with and advise a public client in an open decision-making process?

I am familiar with the intent of laws permitting an agency's constituents to know what is happening and how to become involved. I am comfortable with participating in and giving legal advice in an open decision-making process:

  1. Staff brings a potential problem or situation needing some action in the future to the governing body prior to problem's impact on the agency. In this process, the staff consults with their attorney regarding any public record or sunshine issues and other potential legal ramifications.

  2. In this initial informational stage, the governing board reviews the potential problem and asks the staff to list the options and the possible results.

  3. The governing body then gives direction on a limited number of listed options and asks for a complete analysis of the narrowed options at an upcoming meeting. At this stage the attorney would be consulted again on the various methods to actually implement the options so as to avoid any legal problems and criticisms.

  4. Subsequently, the governing body receives the completed analysis and recommendation from staff in time to address the problem or situation and vote on a particular option. If the governing body wants to understand the legal considerations in more detail, it consults with its attorney as it is considering the staff reports. The governing body then votes, and the selected option is implemented by the staff.


The Sunshine Law

TEXT OF THE SUNSHINE LAW ADOPTED BY THE FLORIDA LEGISLATURE:

Current through 2007

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

(1) 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, 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.

(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded, and such records shall be open to public inspection. The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state.

(3)(a) Any public officer who violates any provision of this section is guilty of a noncriminal infraction, punishable by fine not exceeding $500.

(b) Any person who is a member of a board or commission or of any state agency or authority of any county, municipal corporation, or political subdivision who knowingly violates the provisions of this section by attending a meeting not held in accordance with the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(c) Conduct which occurs outside the state which would constitute a knowing violation of this section is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(4) Whenever an action has been filed against any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision to enforce the provisions of this section or to invalidate the actions of any such board, commission, agency, or authority, which action was taken in violation of this section, and the court determines that the defendant or defendants to such action acted in violation of this section, the court shall assess a reasonable attorney's fee against such agency, and may assess a reasonable attorney's fee against the individual filing such an action if the court finds it was filed in bad faith or was frivolous. Any fees so assessed may be assessed against the individual member or members of such board or commission; provided, that in any case where the board or commission seeks the advice of its attorney and such advice is followed, no such fees shall be assessed against the individual member or members of the board or commission. However, this subsection shall not apply to a state attorney or his or her duly authorized assistants or any officer charged with enforcing the provisions of this section.

(5) Whenever any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision appeals any court order which has found said board, commission, agency, or authority to have violated this section, and such order is affirmed, the court shall assess a reasonable attorney's fee for the appeal against such board, commission, agency, or authority. Any fees so assessed may be assessed against the individual member or members of such board or commission; provided, that in any case where the board or commission seeks the advice of its attorney and such advice is followed, no such fees shall be assessed against the individual member or members of the board or commission.

(6) All persons subject to subsection (1) are prohibited from holding meetings at any facility or location which discriminates on the basis of sex, age, race, creed, color, origin, or economic status or which operates in such a manner as to unreasonably restrict public access to such a facility.

(7) Whenever any member of any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision is charged with a violation of this section and is subsequently acquitted, the board or commission is authorized to reimburse said member for any portion of his or her reasonable attorney's fees.

(8) Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may 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, provided that the following conditions are met:

(a) The entity's attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation.

(b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.

(c) The entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter's notes shall be fully transcribed and filed with the entity's clerk within a reasonable time after the meeting.

(d) The entity shall give reasonable public notice of the time and date of the attorney-client session and the names of persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney-client session and the names of the persons attending. At the conclusion of the attorney-client session, the meeting shall be reopened, and the person chairing the meeting shall announce the termination of the session.

(e) The transcript shall be made part of the public record upon conclusion of the litigation.

286.012. Voting requirement at meetings of governmental bodies

No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act; and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases, said member shall comply with the disclosure requirements of s. 112.3143.


Board Guidelines for Compliance with the
Sunshine Law

DO NOT DISCUSS THE BOARD'S BUSINESS OUTSIDE AN OPEN AND NOTICED PUBLIC MEETING:

The Sunshine Law, 286.011, Florida Statutes, applies to all gatherings, whether formal or casual, of two or more members of the Board to discuss some matter on which foreseeable action may be taken by Board. The fact that the business to be discussed may be characterized as "non-substantive" does not necessarily remove it from the scope of the Sunshine Law. To the extent such business requires the approval or consideration of the entire Board or concerns matters which should appropriately be considered and discussed by the Board, then 286.011, Florida Statutes, requires that such business of the Board must be conducted in the sunshine.

However, members of the Board are not prohibited under the Sunshine Law from meeting together socially or in other situations, provided that matters which may come before the Board are not discussed at such gatherings. A luncheon meeting held by a private organization for members of the Board at which there is no discussion among the Board members on matters relating to the business of the Board would not be subject to the Sunshine Law merely because two or more members of the Board are present.

Likewise, 286.011, Florida Statutes, does not prohibit two members of the Board from serving on the board of directors of a corporation or on other committees. However, if the board of the corporation or the other committee discusses some matter which may be brought before the Board, the Board members should excuse themselves from the meeting or hold the meeting in the sunshine.

In the event that a Board member is unable to determine whether a meeting is subject to the Sunshine Law, she or he should either leave the meeting or ensure that the meeting complies with the Sunshine Law.

No Conduits: A nonmember of the Board may not serve as a conduit to relay statements between Board members if those statements are about the Board's business.

One-way Letters OK: Board members may send written material to other members describing a matter that will be presented in a sunshine meeting.

GIVE NOTICE OF EACH DISCUSSION OF BOARD BUSINESS:

Reasonable public notice must be given of each meeting between two or more members of the Board or of the full Board. Seven days prior notice is a good rule to apply. Emergency situations involve an immediate threat to life or property and permit a shorter notice period, but still require as much notice as possible in the situation. Notice is typically provided to the media and other interested parties expressing a desire to receive such notice.

MINUTES MUST BE KEPT OF EACH BOARD MEETING:

Minutes must be kept of each Board meeting. How each person voted must be recorded in the minutes.

NO ONE MAY ABSTAIN UNLESS THERE IS A CONFLICT:

Every member present must vote on each matter and may not abstain unless she or he has a conflict of interest. The Board may not vote by secret ballot or by proxy. Documents may not be referred to by codes.

DO NOT MEET IN A PRIVATE CLUB THAT DISCRIMINATES:

The Board may not meet in a facility that discriminates on the basis of sex, age, race, creed, color, origin, or economic status, or which operates in such a manner as to unreasonably restrict public access to such facility.

CLOSED MEETINGS TO DISCUSS LITIGATION:

Sections 286.011(8) and 768.28(14), Florida Statutes, both permit closed meetings to discuss litigation. Under 286.011(8), Florida Statutes, the following requirements apply:

(a) The entity's attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation.

(b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.

(c) The entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter's notes shall be fully transcribed and filed with the entity's clerk within a reasonable time after the meeting.

(d) The entity shall give reasonable public notice of the time and date of the attorney-client session and the names of persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney-client session and the names of the persons attending. At the conclusion of the attorney-client session, the meeting shall be reopened, and the person chairing the meeting shall announce the termination of the session.

(e) The transcript shall be made part of the public record upon conclusion of the litigation.

 

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Under 768.28(16), Florida Statutes, which is a part of the statute waiving sovereign immunity for tort actions:

(c) Portions of meetings and proceedings conducted pursuant to any risk management program administered by the state, its agencies, or its subdivisions, which relate solely to the evaluation of claims filed with the risk management program or which relate solely to offers of compromise of claims filed with the risk management program are exempt from the provisions of s. 286.011 and s. 24(b), Art. I of the State Constitution. Until termination of all litigation and settlement of all claims arising out of the same incident, persons privy to discussions pertinent to the evaluation of a filed claim shall not be subject to subpoena in any administrative or civil proceeding with regard to the content of those discussions.

(d) Minutes of the meetings and proceedings of any risk management program administered by the state, its agencies, or its subdivisions, which relate solely to the evaluation of claims filed with the risk management program or which relate solely to offers of compromise of claims filed with the risk management program are exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until termination of all litigation and settlement of all claims arising out of the same incident.

 

COMMITTEES OF NONBOARD MEMBERS MAY ALSO BE SUBJECT TO THE SUNSHINE LAW:

Read a summary of a case decided in August, 2000, illustrating the key issues in deciding whether a meeting is open to the public.  You will also read the three things that must occur for a meeting to comply with the Sunshine Law.  Learn when a mini meeting of staff members is and is not subject to the Sunshine Law.  It's the case of the Reluctant Excavator. 

In Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535 So.2d 694 (Fla. 3d DCA 1988), the Third District Court stated:

The law is quite clear. An ad hoc advisory board, even if its power is limited to making recommendations to a public agency and even if it possesses no authority to bind the agency in any way, is subject to the Sunshine Law. The committee here, made a ruling affecting the decision-making process and it was of significance. As a result, it was improper for the committee to reach its recommendation in private since that constituted a violation of the Sunshine Law.

The same court said:

The purchasing director's committee is governed by the Sunshine Law. Its closed selection meeting violated that law, thus its actions taken at the meeting are void ab initio.

Silver Express Company v. The District Board of Lower Tribunal Trustees of Miami-Dade Community College, 691 So.2d 1099 (Fla. 3d DCA 1997).

THERE ARE CRIMINAL PENALTIES FOR VIOLATING THE SUNSHINE LAW:

There are criminal penalties of imprisonment for 60 days and fines of $500.00 for violating the Sunshine law.