Sunshine Law and Ethics Presentation -City Attorney Durden - 5-4-21A "meeting" for purposes of the
Sunshine Law happens when:
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a) A Board member gives a speech about issues?
b) The City Manager discusses Board business with a
Board member?
c) Two or more Board members have a phone call to
discuss matters that may come before Board?
d) Two or more Board members attend a FLC
meeting in Tallahassee?
The Three Basic Requirements of
the Sunshine Law
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a) All board meetings must
be open to the public
b) Reasonable notice of a
meeting must be given
c) Minutes of meeting must
be taken and promptly
recorded
A "meeting" for Sunshine Law
purposes can occur
a) Via email?
b) Via text message?
c) In the ladies room/men's room?
d) Through whispers at noticed board meeting?
e) All of the above?
Would a Sunshine Law problem
be caused by:
a) Board Member A asking the Planning Director
about his conversation with Board Member B on
an upcoming agenda item?
b) Committee Member A asking the City Attorney
what Board Member B thinks about an upcoming
purchase of police vehicles?
c) Committee Member A asking a City Commissioner
how Committee Member B feels about the tree
ordinance?
Under some circumstances a meeting of a city
staff (no Committee or Board Members present)
can be subject to the Sunshine Law.
a) True
b) False
Under some circumstances a meeting of one
Board Member could be subject to Sunshine
Law requirements.
a) True
b) False
Do I have a Sunshine Law issue when I:
a) Send an email to another Board Member (on the
same Board as me) and ask them to respond or
react to the information sent?
b) Send an informational email to a fellow
Committee Member specifically asking recipient
not to respond?
c) Forward an email to a fellow Board Member that
says unless you forward this email to at least 10
people in the next 24 hours you will be swarmed
by locusts?
Transparency for Florida vs. City of Port St. Lucie
240 So. 3d 780 (Fla. 4th DCA 2018)
Super Bowl Sunday - 2013
• Councilman Bowen calls City Attorney —asks him to
determine whether other Council members are
interested in terminating City Manager. Bowen also
speaks to Mayor.
• City Attorney calls two Council members — they
won't talk about it with him outside of public
meeting.
• City Attorney calls Councilman Bowen breport
no support for firing, but also calls City
"suggest" he resign with severance package.
Transparency for Florida vs. City of Port St. Lucie
In anticipation of reaching agreement, 3 notices are
prepared fora 9:00 a.m. meeting of Council
scheduled for, Thursday February 7:
1. Hand written notice posted in City Hall on
February 6 (21 hours before meeting) — "Special
Meeting for Removal of City Manager"
2. Revised posted notice on February 6 (an hour
later) — "Discussion of Separation Agreement with
City Manager" or "Cancellation of City Manager's
Employment Agreement"
3. Third posted notice — only lists "Discus
Separation Agreement"
Transparency for Florida vs. City of Port St. Lucie
Two Council Members tell City Attorney they don't
want any discussion or debate on agreement — no
line byline description of terms of and reasons for
agreement
Transparency for Florida vs. City of Port St. Lucie
• February 7 -meeting starts at 9:00 a.m.
• Meeting immediately recesses so City Attorney can
work out more changes to agreement
• One hour later, meeting reconvenes
• Separation agreement is approved unanimously
with little discussion. No copies are provided to the
public
Transparency for Florida vs. City of Port St. Lucie
Discussion
• At what points did meeting(s) occur here?
• Were matters likely to come before City Council
discussed?
• Were meeting(s) noticed beforehand?
• Was notice given for February 7 meeting adequate?
• Are there any public records act issues raised here?
Transparency for Florida vs. City of Port St. Lucie
• Law must be construed "so as to frustrate all evasive
devices"
This can be accomplished by embracing the collective
inquiry and discussion stages within the terms of the
statute
• Sunshine Law violation cannot be "cured" by a
perfunctory ratification of action taken outside of
the sunshine
Penalties for Violating Sunshine Law
Knowing Violation
Second Degree Misdemeanor
$500 fine and/or
60 days in County Jail
All Other violations (unknowing
violations)
$500 non -criminal fine
Attorney fees for Complaining
Party
"Public Record"
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• §119.011(12) "Public records"
means all documents, papers,
letters, maps, books, tapes,
photographs, films, sound
recordings, data processing
software, or other material
regardless of the physical form,
characteristics, or means of
transmission, made or received
pursuant to law or ordinance or in
connection with the transaction of
official business by any agency.
• Florida courts have interpreted the
above to include all materials made
or received by an agency in
connection with official business
which are used to perpetuate,
communicate or formalize
knowledge.
What is a "Public Record„ under
Chapter 119, Florida Statutes?
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a) Any vinyl, non -digital recording by the Beatles?
b) All photographs on a Board Member's cell phone?
c) Any document or other item, regardless of physical
form, that is received in connection with
transaction of official business by you or the City?
d) Social media (text, instagram, blogs, twitter)?
Public Records Law
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Chapter 119, Florida Statutes
• (1) It is the policy of this state
that all state, county and
municipal records are open for
personal inspection and
copying by any person.
Providing access to public
records is a duty of each
agency.
What must be done with a public
record when received?
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a) Delete it immediately?
b) Run it through a shredder?
c) Send it to the Library of Congress?
d) Make sure it is retained and is available for
viewing by the public upon request?
Retention Requirements
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All public records must be retained in accordance
with a retention schedule adopted by the agency,
which must be consistent with the schedules
established by the Division of Library and Information
Services.
Electronic Communications
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Records Retention case:
SDE Media v. City of Doral and Daniel Esposito, City Attorney,
25 F.L.W.Supp 243a (Fla. 11th Cir. Ct. May 5, 2017) (online at
myfloridalegal.com). City violated public records law "by
failing to maintain electronic communications [which were
located on city officials' private cellphones] in a manner that
prevents their accidental destruction or deletion by individual
city officials." The Court ordered the defendants to require all
City Officials or employees who use electronic devices to
communicate regarding matters of official business to conduct
those communications only on devices that record those
communications onto servers directly accessible by the City's
Public Records Custodian.
Violations of Public Records Law
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Knowing Violation
First Degree misdemeanor
Up to one year in jail
Up to $1,000 fine
Other Violation (non -knowing)
Up to $500 non -criminal fine
Payment of Attorneys' Fees
Ethics
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According to Article III, Section 8, Florida
Constitution, service in Public Office is which of the
following:
a) A good thing on your resume?
b) A chance to make some real money?
c) A public trust?
d) Easy work if you can get it?
Ethics for Public Officers
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Art. III, Sec. 8, Fla. Constitution
"A public office is a public trust. The
people have the right to secure and
sustain that trust against abuse."
Sec. 112.311(1), Fla. Stat.
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(1) It is essential to proper conduct and operation of
government that public officials be independent and
impartial and that public office not be used for
private gain other than the remuneration provided
by law. The public interest, therefore, requires that
the law protect against any conflict of interest and
establish standards for the conduct of elected officials
and government employees in situations where
conflicts may exist.
Conduct Covered in Part III of Chapter 112,
Fla. Stat.
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• Solicitation or acceptance of gifts
• Unauthorized compensation
• Misuse of public position
• Disclosure or use of certain information
• Doing business with one's own agency
• Conflicting employment or contractual relationship
• Voting conflicts (Form 8B)
• Nepotism
• Financial disclosure (Form 1)
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Ethics —Section 112.313(2), F.S.
Gifts
Regarding asking for or receiving items of value from a third
party, which statements are true? A Board or Committee
Member:
a) Is entitled to get as much as they can while in office?
b) May not accept anything of value if given for purpose of
influencing judgment or vote?
c) Can take gifts intended to influence vote as long as Board
of Committee Member doesn't ask for it?
d) May not ask for anything of value if purpose is to influence
judgment or vote?
Ethics—Section 112.313(2), F.S.
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Regarding acceptance of compensation or items of
value offered by a third party, which statements are
true? A Board or Committee Member:
a) Can take it as long as it goes through Board or
Committee Member's spouse?
b) Can take it as long as nobody finds out about it?
c) Cannot take it if Board or Committee Member
knows or should have known it is given to
influence his/her vote or other action related to
office?
Gifts—Section 112.3148, F.S.
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Which of the following "gifts" may be accepted if
properly reported?
a) A gift I requested from a vendor or lobbyist at my
agency?
b) A Cadillac Escalade?
c) A gift worth more than $100.00 from a vendor or
lobbyist at my agency that I didn't ask for?
d) None of the above?
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Section 112.313, F.S.
Scenario
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My business sells/rents uniforms and I want the City
as a customer. I can or cannot do which of the
following:
a) Make a deal directly with the agency's City
Manager
b) Contract to sell goods or services to the City
c) Sell goods or services to the City through a sealed
competitive bid process provided I have no hand
in developing bid specs
Disclosure —Form 3A
Section 112.3148, F.S.
Scenario 11
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Being a Board or
Committee Member allows
me to:
a) Get out of traffic tickets
b) Get free use of the
Adele Grage Center
c) Intimidate staff
members
d) Avoid paying tolls on
state toll roads
e) None of the above
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My husband Walter just loves to play
golf -he'd rather play golf than eat. As
good fortune would have it, George - the
owner of land in the City - has invited
him on an all -expenses -paid weekend of
golf at Arnold Palmer's Bay Hill Club in
Orlando. He even gave him a brand new
set of irons to play with and let him keep
them! The timing is kind of crazy because
George wants to rezone his land where 1
serve as CDB Chair. George even called
me to say "don't forget who is taking care
of your old man's golfing needs."
It's okay for my Walter to have a little fun
with George paying the tab -isn't it?
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Scenario — a variation on the previous
scenario regarding Walter
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Assume the prior set of facts, but change it to say that instead of
George "offering" to give the trip and the golf clubs to Walter,
the board chair "asks" George to provide the trip and the golf
clubs to Walter.
Would that be a problem?
Scenario IV
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My son-in-law is the sole owner of a
cleaning service business. He made a
proposal to do the cleaning service for
the community centers in the City, for
the City where I serve as a CARAC
committee member. The staff has
negotiated a contract with his firm,
which is coming up for a vote on our
agenda next week. I had nothing to do
with any of the selection or contracting
process.
When this comes up for a vote, what
should I do?
Disclosure — Form 4A