11-30-17 Minutes Sunshine Law Training- v MINUTES
SUNSHINE LAW TRAINING
November 30, 2017, 1:00 PM
ATLANTIC BEACH CITY HALL,
COMMISSION CHAMBER, 800 SEMINOLE ROAD
THOSE IN ATTENDANCE:
Commissioners:
Mayor Ellen Glasser
Commissioner Candace Kelly
Commissioner Brittany Norris
Commissioner John Stinson
Board Member Review Committee Member:
Sally Clemens
Code Enforcement Board Member:
Kirk Hansen
Community Development Board Member:
Brian Major(term beginning 1/1/18)
Environmental Stewardship Committee Members:
Chip Drysdale
Dawn Scott
General Employees' Pension Board of Trustees Members:
Timmy Johnson, also Recreation and Special Events Director
Ray Brandstaetter
Parking and Pedestrian Safety Advisory Resource Committee Member:
Dale Wappes
Police Officers' Pension Board of Trustees Member:
Bill Tomson
Staff:
Brenna Durden, City Attorney
Joe Gerrity, City Manager
Kevin Hogencamp, Deputy City Manager
Donna L. Bartle, City Clerk
Russell Caffey, Finance and IT Director
Dan Arlington, Building Official
Michelle Cook, Police Chief
Scott Williams, Public Works Director
Derek Reeves, Interim Community Development Director/City Planner
Brian Broedell, Planner
Patty Drake, Purchasing Manager
Debbie White, Code Enforcement Officer
November 30,2017 SUNSHINE LAW TRAINING Page 2
Deputy City Manager Kevin Hogencamp called the meeting to order at 1:00 p.m. He welcomed
everyone and introduced the speaker, Barbara Petersen, President of the First Amendment
Foundation. Mr. Hogencamp explained the format of the meeting and recognized elected
officials in attendance.
Ms. Peterson explained her experience working with open government and the First Amendment
Foundation and gave an overview of the organization. She explained reports are available on
their website and offered to add email addresses to the distribution list to receive copies of those
reports by email.
Ms. Peterson recommended that the attendees ask questions as she goes through the material.
She presented a slide show (which is attached and made part of this Official Record as
Attachment A) explaining the topics of Public Records and Open Meeting Law and answered
questions from the audience. Between the two topics, a break was taken from 2:50 pm to 3:00
pm.
The training meeting ended at 4:45 p.m.
7/6/
ATTEST: Ellen Glasser
Mayor/Presiding Officer
pa9n44.44, 074-11.d4_,
Donna L. Bartle, CMC
City Clerk
ATTACHMENT A
Minutes 11-30-17
Florida, The Sunshine State
Florida is one of only a handful of states that has both a constitutional
and statutory right of access to the records and meetings of its
government.
The First Amendment Foundation Our public records law was first enacted in 1909. Before that,state
Protecting Your Right to Know for 30 Years! courts recognized a common law right of access to government
2017 records.
Today's Sunshine Law was enacted in 1968. However, Florida's first
Sunshine Training open meetings law was passed in 1905.
City of Atlantic Beach In 1992, Florida voters overwhelming approved a constitutional right
of access to the records of all three branches of state government,
.. and the meetings of state agencies and local governments.
FLORIDA'S CONSTITUTION
Access to Government Records
Article I, section 24(a)
"Every person has the right to inspect or copy any public record
made or received in connection with the official business of
any public body, officer, or employee of the state, or persons
acting on their behalf. . .This section specifically includes the
Florida's legislative, executive, and judicial branches of government; . . .
Public Records Law counties, municipalities, and districts; and each constitutional
Article I, s. 24(a), Fla. Con. officer, board, and commission . . . ."
Chapter 119, F.S.
ATTACHMENT A
Minutes 11-30-17
Access to Government Who's Responsible for
/
Records Providing Access?
State Agencies 84 Local Government— • Section 119.07(1)(a): "Every person who has custody of a
public record shall permit the record to be inspected and
Chapter 119, Florida Statutes copied by any person . . . at any reasonable time, under
reasonable conditions, and under supervision by the
custodian of the public records.
The Florida Legislature —
Section 11.0431, Florida Statutes • Section 119.011(5): Defines "custodian of public records" as
the person who is responsible for "maintaining the office
having public records . . . ."
Florida Courts — • Section 119.07(1)(b): Authorizes the custodian to designate
Rule 2.420, Florida Rules of Judicial another to permit inspection and copying; requires disclosure
of designee' s identity.
Administration
40_ Who's Responsible for Who's Responsible for
/ Providing Access? Providing Access?
Section 119.011(2), F.S., defines"agency" as any state, county,
NOTE: Although s. 119.011(5), F.S., defines "custodian of district, authority, . . . division, board, bureau, commission, . . .
public records" as the person who is responsible for And any other public or private agency, person, partnership,
"maintaining the office having public records," the corporation, or business entity acting on behalf of any public
Florida courts have concluded that the statutory agency."
reference to the records custodian does not alter the Section 119.0701, F.S., stipulates that all public agency contracts for
"duty of disclosure" imposed by s. 119.07(1) upon services contain a provision requiring the contractor to comply
"every person "who has custody of a public record." Puts v. with the public records law and to provide the public with access
to public records under the same terms and conditions—and at
City of Port St.Lucie 678 So.2d 514(Fla.4thDCA 1996)
the same cost—as the public agency. The contracting agency is
responsible for ensuring that its contractors comply with the
disclosure requirements.
ATTACHMENT A
Minutes 11-30-17
Who Can Request • Who Can Request
Public Records? Public Records?
The word "person" is defined to include "individuals, firms, A "person' s motive in seeking public records is irrelevant."
associations,joint []ventures, partnerships, estates, trusts, . . .
Timoney v. City of Miami Civilian Investigative Panel,917 So.2d 885,886n.3
(Fla.3rdDCA 2005)
corporations, and all other groups or combinations." Section
1.01(3),F.S.
Thus, "the motivation of the person seeking the records does
not impact the person' s right [of access] under the Public
The "law provides any member of the public access to public Records Act." Curry v.State,811 So.2d 736,742(Fla.4th DCA 2002)
records, whether he or she be the most outstanding civic
citizen or the most heinous criminal." Church of Scientology Flag "The fact that aerson seekingaccess to public records wishes
Service Org.,Inc v. Wood,No.97-688C1-07(Fla.6th Cir.Ct.Feb.27,1997) p
to use them in a commercial enterprise does not alter his or
her rights under Florida' s public records law." Microdecisions,Inc.
v.Skinner,889 So.2d 871,875(Fla.2"d DCA 2004)
/•� What is a Public Record? •� What is a Public Record?
The term "public record" means "all documents, papers, letters, E-Mail
maps, books, tapes, photographs, films, sound recordings, E-mail messages made or received by agency officers and
data processing software, or other material, regardless of the employees in connection with agency business are public
physical form, characteristics, or means of transmission, made records and subject to disclosure [and retention
or received pursuant to law or ordinance or in connection requirements] absent a specific statutory exemption. AGos96-
with the transaction of official business by any agency. Section 34 and 01-20
119.011(11),F.S.
Text Messages
This includes "any material prepared in connection with official The Attorney General has said that the "same rules that apply to
agency business which is intended to perpetuate, e-mail should be considered for electronic communications"
communicate, or formalize knowledge of some type. Shevin v. including text messages and instant messaging. Inf.Op.to
Byron,Harless,Schaffer,Reid and Assoc.,379 So.2d 633,640(Fla.1980)
Browning,March 17,2010
ATTACHMENT A
Minutes 11-30-17
What is a Public Record?
/ •�
What is a public record?
Facebook Posts Requests for Information
The Attorney General has also said placement of material on an Florida's public records law requires an agency to provide
agency's Facebook page presumably would be in connection with access to public records. But an agency is not required to
the transaction of official business and thus subject to the public
records law, and that the agency is under an obligation to follow provide information from those records. AGO 92-38
retention schedules established by law.AGO 09-19
Tweets Florida's public records law provides a right of access to
And although neither the AGO nor the courts have directly addressed inspect and copy an agency's existing public records; it
the issue of tweets as a public record,we can safely assume that does not mandate that an agency create new records in
such records, if"intended to perpetuate, communicate, or formalize
knowledge"related to official agency business are subject to the order to accommodate a request for information from
requirements of the public records law. the agency. Wooten v.Cook,590 So.2d 1039(Fla.1"DCA 1991)
/•` What is a Public Record? /• Reasonable Conditions
Record Retention Requirements Agency Imposed Restrictions
Section 119.021(2)(a), F.S., requires the Division of Library and An agency may not impose a rule or condition on the right of
Information Services (DOS)to adopt rules establishing retention access that operates to restrict or circumvent that right. AGO
schedules and a disposal process for public records. 75-50
Section 257.36(6), F.S.,says that public records can be destroyed or Absent specific statutory authority, an agency cannot
otherwise disposed of"only in accordance with retention schedules require:
established by the division." • that requests for records be made in writing; or
Dade Aviation Consultants v.Knight Ridder,Inc.,800 So.2d 302(Fla.3d DCA 2002)
Division of Library& Information Services • that a requestor provide identity or the reason for the
•
State Records Center request.AGOs 92-38 and 91-76
850/245-6750
RecMgt@dos.state.fl.us
http://dlis.dos.state.fl.us/RecordsManagers
ATTACHMENT A
Minutes 11-30-17
40, Reasonable Conditions •L Fees & Costs
Prompt Response v. Reasonable Production The custodian of public records must furnish a copy or a
Section 119.07(1)(c), F.S., requires that requests to inspect certified copy of the [requested] record upon payment of
or copy public records be acknowledged promptly and in the fee prescribed by law. Section 119.07(4),F.S.
good faith. Authorized Fees
This is separate from the reasonable production • 15 C a page for paper copies up to 81/2x 14 inches, plus an
requirement in s. 119.07(1)(a). The Florida Supreme additional 5 C for two-sided copies.
Court has said that "reasonable" means the time it takes or
to locate a record, review it for exempt information, and • The actual cost of duplication for large size paper or non-
provide a copy to the requestor. Tribune Company v.Cannella,458 paper copies. Section 119.07(4)(a),F.S.
So.2d 1075,1078(Fla.1984)
/•� Fees & Costs •� Fees & Costs
"Actual cost of duplication" means the cost of the material and Extensive Use
supplies actually used to duplicate the public record. Labor Section 119.07(4)(d), F.S., allows an agency to charge a
and overhead costs are specifically excluded and such costs reasonable fee for the extensive use of agency resources—
can't be passed on to the requestor. Section 119.011(1),F.S. personnel, information technology,gy, or both —in addition to
Other Authorized Fees the actual cost of duplication.
• Fees prescribed by statute. Section 119.07(4),F.S. Such fees must be reasonable and based on actual costs
• $1.00 per copy for certified copies of public records. Section incurred. Section 119.07(4)(d),F.S.
119.07(4)(b),F.S. Automatic application is prohibited. AGO 90-07
• Charges for county maps or aerial photographs supplied by Agencies should have
county constitutional officers can include reasonable labor — a definition of"extensive use" and
and overhead costs associated with duplication. Section
119.07(4)(c),F.S. — a justification for the definition. 2016 Sunshine Manual,pp.163-
164.
ATTACHMENT A
Minutes 11-30-17
/•� Fees & Costs 1111111 '
Fees & Costs
Fees for Those Who Make Their Own Copies Inspection of Public Records
If a requester makes his own copies or provides the materials Generally, an agency can't charge for the mere inspection of
public records. AGO 75-50
and supplies necessary to duplicate the record, the custodian
can' t charge copy fees but may charge a supervisory service
However, an agency may charge a reasonable fee based on
charge if supervision requires an extensive use of agency actual labor costs for clerical personnel who are required, due
resources.AGO 82-23 to the nature or volume of a request, to safeguard such
records from loss or destruction during the inspection. AGO 00-
11
However, it is difficult to justify the imposition of a fee for
supervisory time if the personnel providing such supervision is But again, if the employee supervising continues to perform
simultaneously performing regular duties. AGO 00-11 regular duties, the person inspecting shouldn't be charged for
supervisory time. AGO 00-11
/•� Electronic Records /•� Electronic Records
Electronic Format .PDF v. Requested Electronic Format
Everyone has a right to public records in "some meaningful Although neither the Attorney General nor the courts have
form." directly addressed the issue of providing a .pdf in lieu of
Seigle v.Barry,422 So.2d 63,66(Fla.4th DCA 1982)
the requested format, there is an Attorney General
Opinion, AGO 91-61, which is analogous.
An agency must provide a copy of a public record in the format
requested if the record is maintained in that format. Section In this opinion, the Attorney General opined that if an
119.01(f),F.S.
agency is asked for a copy of an electronic record, the
If the record is not in the format requested, an agency has the agency must provide a copy of the record in its original
option of converting the record and charging a fee pursuant to format—a typed transcript does not satisfy the
s 119.07(4). F.S. requirements of s. 119.07(1), F.S.
ATTACHMENT A
Minutes 11-30-17
/•�
•
Presumption of Openness ` Exemptions
All records are presumed open and subject to disclosure Burden of Proof
unless there is a specific statutory exemption. Art.I,s.24(a), The public records law is to be liberally construed in favor of open
Fla.Con government, and exemptions from disclosure are to be narrowly
construed so they are limited to their stated purpose. Krischerv.
Only the Legislature can create an exemption to our D'Amato,674 So.2d 909,911(Fla.4th DCA 1996)
constitutional right of access. Art.I,s.24(c), Fla.Con. An agency claiming an exemption bears the burden of proving the right
to an exemption. woo/ling v.Lamar,764 So.2d 765,768(Fla.5th DCA 2000)
Even the "courts cannot judicially create any exceptions, If an agency denies a request public records in whole or in part,the
or exclusions to Florida's Public Records Act." Board of agency must put the denial in writing, provide the exact statutory
County Commissioners of Palm Beach County v.D.B.,784 So.2d 585,591(Fla.4th citation authorizing the denial, and explain "with particularity"the
DCA 2001) conclusion that the record is exempt if asked to do so by the
• requestor.Section 119.07(1)(f),F.S.
•� Exemptions W10/ Exemptions
Redacting Exempt Information Exempt v. Confidential and Exempt
If a record contains both exempt and non-exempt information, If information is exempt from public disclosure, the custodial
the keeper of the record must redact (delete)that which is agency may allow access to such information. Williams v.City of
exempt and provide access to the remainder. Section 119.07(1)(d), Minneola,575 So.2d 683(Fla.5th DCA),review denied,589 So.2d 289(Fla.1991)
F.S. and 2016 Sunshine Manual at pp.158-159.
An agency may not ordinarily charge for the cost to review
records for exempt information. AGO 84-81 Information that is confidential and exempt cannot be released
except as specified by the exemption. WFTV,Inc.v.School Board of
However, an extensive use fee may be imposed if review and Seminole County,874 So.2d 48(Fla.5th DCA 2004),review denied, 892 So.2d
redaction require an extensive use of agency resources. Florida 1015(Fla.2004)and 2016 Sunshine Manual at p.158.
Institutional Legal Services v.Florida Department of Corrections,579 So.2d 267,
269(Fla.1"DCA 1991),review denied,592 So.2d 680(Fla.1991)
ATTACHMENT A
Minutes 11-30-17
\ Other Restrictions •� Other Restrictions
Effect of Federal Law Access to Copyrighted Material
Access to records subject to public disclosure under Florida law In the absence of statutory authorization, a public agency cannot
can be denied only when there is an absolute conflict copyright material produced in connection with the
between state and federal law relating to confidentiality of transaction of agency business. Microdecisions,Inc.v.Skinner,889 So.
such records. 2016 Sunshine Manual,pp.160—62 2d 871(Fla.2d DCA 2004),review denied,902 So.2d 291(Fla.2005),cert.denied,
126 S.Ct.746(2005)
If a federal statute requires particular records to be closed and
the state is clearly subject to the provisions of the statute,the The fact that material received by a public agency may be
state must keep the records confidential.State ex.Rel.Cummer v. copyrighted does not preclude the material from constituting
Pace,159 So.679(Fla.1935) a public record. AGO 97-84 and 201 Sunshine Manual at pp.160-162
•� Sanctions
• Suspension or removal from office. Section 112.52(1),F.S. door0.27'
41".„
• An intentional violation of the public records law is a 1St
degree misdemeanor punishable by a fine of up to $1,000 and
a jail term not exceeding one year. Sections 119.10(1)(b)and(2),F.S.
• An unintentional violation of the law is a non-criminal Florida's
infraction punishable by a fine not exceeding$500. Section
119.10(1)(a),ES. Open Meetings Law
• Attorney's fees and court costs. Section 119.12,F.S. Article I, s. 24(b), Fla. Con.
Section 286.011, F.S.
ATTACHMENT A
Minutes 11-30-17
FLORIDA'S CONSTITUTION
•\ •� Florida Legislature
Access to Government Meetings
Article I, section 24(b)
Note that the Florida Legislature is not subject to the
"All meetings of any collegial body of the executive branch meetings provision in Article I, section 24(b),
of state government or of any . . . county, municipality, of Florida's Constitution.
school district, or special district, at which official acts are
to be taken or at which public business . . . is to be However, the Legislature is bound by the requirements
transacted or discussed, shall be open and noticed to the of Article III, s. 4(e) Ha. Con., which says that pre
public . . . ." arranged meetings between more than 2 members
of the Legislature must be "reasonably" open to the
public.
FLORIDA'S SUNSHINE LAW
/•` Florida Courts Section 286.011, F.S.
Three Requirements
Florida courts are not bound by the meetings
requirements in Article I, section 24(b), Fla. Con.
However, Amendments I and VI of the U.S. Constitution 1. Meetings of public agencies must be open to the
guarantee open judicial proceedings, and although a public;
court has the inherent power to control its
proceedings, there is a "strong presumption of 1. Reasonable notice of such meetings must be given;
openness" in both criminal and civil proceedings. In and
each case a court must balance the interests of the
parties against those of the public.
1. Minutes must be taken.
ATTACHMENT A
Minutes 11-30-17
A
Abe:::"/
What is a "meeting?" 01, What is a meeting?"
Evasive Devices
Generally, the Sunshine Law applies to any gathering, The Sunshine Law applies, generally, to deliberations and
whether formal or informal of two or more discussions between two or more members of the board on
members of the same board or commission to any issue on which foreseeable action might be taken, and the
discuss some issue on which foreseeable action will use of a telephone to conduct such discussions does not
remove the conversations from the requirements of the law.
be taken by the board or commission. Hough v.Stembridge, State v.Childers,No.02-21939-MMC;02-21940-MMB(Escambia Co.Ct.June 5,
278 So.2d 288(Fla.3d DCA 1973) 2003),per curiam off'd.,886 So.2d 229(15L DCA 2004)
Similarly, members of a public board can't use computers to
conduct private discussions among themselves about board
business. AGO 89-39
ON, What is a "meeting?" •� What is a meeting?"
Who is Covered by the Sunshine Law? Who is Covered by the Sunshine Law?
• All public agencies in the state: state agencies, local Advisory boards or committees created pursuant to law or
governments, school boards, and special districts. ordinance or otherwise established by public agencies are
Advisory boards and committees. subject to the Sunshine Law even if their recommendations
• are not binding. Town of Palm Beach v.Gradison,296 So.2d 473(Fla.1974)
• Private companies doing business on behalf of a Staff meetings are not generally subject to the Sunshine Law.
government agency. School Board of Duval County v.Florida Publishing Company,670 So.2d 99,101
• One person acting on behalf of a board or commission. (Fla.1S2DCA 1996)
But staff should refrain from polling board members on specific
• Members-and Officers elect. issues which will come before the board for consideration.
AGO 75-59
ATTACHMENT A
Minutes 11-30-17
•� What is a "meeting?" � What is a "meeting?"
Who is Covered by the Sunshine Law? Who is Covered by the Sunshine Law?
The sunshine law applies to meetings between a board member Members-elect of boards or commissions are subject to the
and an individual who is not a board member when that sunshine law at the point election results are certified.
individual is being used as a liaison between, or to conduct a Hough v.Stembridge,287 So.2d 288(Fla.3d DCA 1973)and Section 286.011,F.S.
de facto meeting of, board members. AGO 74-47
A single member of a board or commission will be subject to the The sunshine law applies to transition teams appointed by a
sunshine law if that one person has been delegated the member- or officer-elect for the purpose of making
authority to act on behalf of the entire board or commission. recommendations. Inf.Op to Lamar,August 2,1993
AGOs 74-294;75-41; and 10-15
/•� What is a "meeting?" /•� What is a "meeting?"
When the Sunshine Law does not apply: When the Sunshine Law does not apply:
When a committee has been established for the sole Community or political forums sponsored by a private
purpose of fact-finding—gathering information and organization are not subject to the sunshine law even though
reporting the facts—the Sunshine Law will not apply. Cape two or more members of the same board or commission are
Publications, Inc. v. City of Palm Bay,473 So.2d 222(Fla.5t;DCA 1985) in attendance and discussing issues that may come before
them in their official capacity. AGOs 92-05 and 94-62
However, the "fact-finding exception" applies only to
advisory committees and not to boards with "ultimate The sunshine law will apply, however, if the members of the
decision-making" authority. Finch v.Seminole County School board or commission discuss such issues among themselves.
Board, 995 So.2d 1068(Fla.5th DCA 2008)
ATTACHMENT A
Minutes 11-30-17
o
•� What is a "meeting?" /•� Procedural Requirements
1. Notice
When the Sunshine Law does not apply:
•
The Sunshine Law does not apply to social gatherings Must be sufficient so as to inform; and
•
attended by two or more members of the same board or Must be reasonable in terms of
commission provided that public business is not — Content
discussed. AGO 92-79 — Timing
— Placement
NOTE: Other statutes, codes or ordinances may impose different—and
more stringent notice requirements—than those required by s.
286.011.
/•� Procedural Requirements •` Procedural Requirements
The type of notice that must be given is variable, depending on 2. Public Participation
the facts of the situation and the board involved. In each The Florida Supreme Court has said that government
case, an agency must give notice at such time and in such a
manner as will enable the media and the general public to boards and commissions should not be allowed to
attend the meeting. AGos04-44,80-78,and 73-170. deprive the public of the "inalienable right to be
present and to be heard at all deliberations
The purpose of the notice requirement is to apprise the public of wherein decisions affecting the public are being
the pendency of matters that might affect their rights, afford made. Board of Public Instruction of Bra word County v.Doran,224 So.2d
them the opportunity to appear and present their views, and 693,699(Fla.1969)
afford them a reasonable time to make an appearance if they
wish. Rhea v.City of Gainesville,574 So.2d 221,222(Fla.1"DCA 1991)
ATTACHMENT A
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41N, Procedural Requirements 40, Procedural Requirements
Section 286.0114, F.S., requires boards and commissions to Reasonable Rules
provide the public with a "reasonable opportunity to be A government agency may adopt reasonable rules which require
heard" on propositions before the board or commission. orderly behavior and allow for the orderly progression of
public meetings. Section 286.0114, F.S.
The right to speak doesn't have to be at the same meeting at
which the proposition will be considered, but it must occur To remove a speaker who has become disruptive during a
within reasonable proximity to the meeting at which official meeting does not violate the speaker's First Amendment
action will be taken. Rights. Jones v.Heyman,888 F.2d 1328(11th Cir.1989)
The law allows for the adoption of reasonable rules requiring However, the use of non-disruptive recording devices, whether
orderly conduct and the orderly progression of a meeting, cameras or tape recorders, cannot be banned. Pinellas County
subject to a few minor exceptions. School Board v.Suncam,Inc.829 So.2d 989(Fla.2d DCA 2002)
/•� Procedural Requirements •,_ Procedural Requirements
3. Location 3. Location/Out-of-Town Meetings
A government agency - Public access to meetings of public boards or commissions is the"key
element"of the Sunshine Law,and public agencies are advised to avoid
holding meetings in places not easily accessible to the public. 2016
• Cannot hold a meeting at any facility which Sunshine Manual,p.40
discriminates based on age, race, etc.; The fact that a meeting is held in a public room does not make it public within
• Cannot unreasonably restrict public access; and the meaning of the Sunshine Law;fora meeting to be"public,"the public
Must hold meetings in a facility of sufficient size so must be given advance notice and provided with a reasonable opportunity
• to attend. Bigelow v.Howze,291 So.2d 645(Fla.2d DCA 1974)
as to accommodate the anticipated turnout. 2016
Sunshine Manual,pp.40 41 Some statutes limit where board meetings may be held—s. 125.011(county
commissions) and s. 1001.372(school boards)—and the Attorney General
has opined that city commissions should hold meetings within city
boundaries. AGOs 08-01 and 03-03
ATTACHMENT A
Minutes 11-30-17
Procedural Requirements Procedural Requirements
4. Inaudible Discussions 5. Voting
A violation of the sunshine law may occur if board Board members may use written ballots to cast a vote if the
members discuss board business in a manner not votes are made openly at a public meeting,the name of the
generally audible to the public attending the person who voted and his or her selection are written on
ballot, and the ballots are maintained and made available for
meeting. Although such a meeting is not
public inspection. AGO 73-344
clandestine, it nonetheless violates the letter and
spirit of the law. Rackleff v.Bishop,No.89-235(Fla.2d Cir.Ct.March 5, A member of a state, county, or municipal board who is present
1990) at a meeting cannot abstain from voting unless there is, or
ears to be, a possible conflict of interest under the code
Ethics for Public Officers and Employees. Section 286.012,F.S.
•� Exemptions
ivipp,
� Litigation Exemption
Section 286.011(8) , F.S.
• Presumption of Openness: All meetings between two 1. Applies to pending litigation to which the public agency is
or more members of the same board or commission presentlya party;
are open to the public unless there is a specific 2. Agency attorney must notify the agency at a public meeting;
statutory exemption. 3. Attendance is strictly limited;
4. Subject matter is limited to discussion of settlement
• Only the Legislature can create an exemption to our negotiations or strategy sessions related to litigation
constitutional right of access.Art.1,s.24(c),Fla.Con. expenditures;
5. Action is prohibited;
• If denied access to a meeting, the person denied may 6. The meeting must be recorded by a court reporter; and
demand the statutory citation authorizing closure. 7. A transcript of the meeting becomes a public record at the
conclusion of the litigation.
ATTACHMENT A
Minutes 11-30-17
Security Exemption • Competitive Solicitation Exemption
Section 286.0113(1), F.S. Section 286.0113(2), F.S.
Allows closure of portions of government meetings Those portions of a meeting at which a
1) negotiation with a vendor is conducted pursuant to a
which would reveal a security system plan. competitive solicitation;
2)vendor makes an oral presentation as part of a competitive
solicitation; or
A "security system plan" includes "all records, 3)vendor answers questions a part of a competitive
information, photographs audio and visual solicitation are exempt, as are portions of team meetings at which
negotiation strategies are discussed are exempt.Sections 286.0113(2)(b)&
presentations, schematic diagrams, surveys, (c)
recommendations, or consultations . . . relating to "Competitive solicitation" means the process of requesting and
the physical security of the facility or revealing receiving sealed bids, proposals or replies in accordance with the
security systems . . . " Section 119.071(2),F.S. terms of a competitive process, regardless of the method of
procurement.Section 85.0113(3)(a)1.
•` Cure Meetings •� Sanctions
• No resolution, rule, regulation, or formal action shall • Suspension or removal from office. Section 112.52(1),F.S.
be considered binding except as taken at an open
meeting. Section 286.011,F.S. • An unintentional violation: non-criminal infraction punishable
by a fine up to $500. Section 286.011(3)(a),F.S.
• Action taken in violation of the Sunshine Law is void
ab initlo. Town of Palm Beach v.Gradison,296 So.2d 473(Ha.1974) • A knowing violation: 2d degree misdemeanor punishable by a
• Action — but not violations - can be cured when the fine of not more than $500 and/or a jail term of not more
offending agency takes "independent final action in than 60 days. Section 286.011(3)(b),F.S.
the sunshine." Tolar v.School Board of Liberty County,398 So.2d 427,
429(Fla.1981) • Attorney fees and court costs. Sections 286.011(4)and(5),F.S.
ATTACHMENT A
Minutes 11-30-17
10"e: Need Help?
• First Amendment Foundation
— Call (800) 337-3518 or (850) 222-3518
— E-mail sunshine@floridafaf.org
• Open Government Mediation Program
— Call (850) 245-0179
— E-mail pat.gleason@myfloridalegal.com