Open Meetings

The Sunshine Law requires that government boards and commissions meet in public when they consider or take official action. The law permits citizens to observe the decision-making process from initial deliberations to the final vote. The law also requires governmental bodies to provide reasonable prior notice of their meetings and to keep minutes of the proceedings.

Which Governmental Bodies are Covered?

The Sunshine Law applies to most state, county, and municipal governmental bodies. Florida courts have ruled this includes all public boards, commissions, and regional agencies under the "dominion and control" of the state Legislature, whether they are elected or appointed. The Sunshine Law applies to members-elect of boards or commissions as well. Also, the Law may apply to private bodies as well, if decision-making duties are delegated to it by a body otherwise covered by the Sunshine Law. Government may not avoid the law by simply delegating its decision-making authority to another entity. When decision-making authority is delegated to staff members, staff members also become subject to the Sunshine Law when discussing these matters.

The Sunshine Law does not ordinarily apply to administrative proceedings or meetings of government staff when the function of staff members is to inform and advise the decision-making body. Also, if confidentiality is necessary, for example in a meeting to discuss litigation strategy, the Law does not apply.

State and local governmental bodies covered by the Sunshine Law include, but are not limited to:

• County and city commissions;
• School boards;
• Planning and zoning boards;
• Appointed boards or commissions;
• Civil service boards;
• Regulatory boards, such as boards under the Department of Professional Regulation;
• University committees searching for presidents or deans;
• Public hospital boards;
• Private organizations providing services to public agencies; and
• Economic development boards.

Florida courts have ruled that most advisory boards -- even those whose powers are limited to making recommendations to a public agency and that possess no decision-making authority -- still are subject to the Sunshine Law. Courts have ruled that it is the type of action performed by the board or committee, and not its make-up, that determines whether an advisory committee is subject to the law.

The following types of advisory committees have been found by Florida courts to be subject to the Sunshine Law:

• Community advisory committees;
• Architectural review committees of a homeowner's association;
• A public hospital advisory board;
• A private corporation given control of a hospital district by the legislature;
• A criminal justice commission created by county ordinance to make recommendations about criminal justice issues;
• A municipal planning commission;
• A committee appointed by a mayor to recommend legislation; and
• An ad hoc committee appointed to investigate charges against a local police chief.
  

Advisory committees that are established solely for the purpose of fact-finding and reporting to public bodies are exempt from the Sunshine Law
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In addition, the Sunshine Law does not apply to federal agencies within the state. In 1976, however, Congress passed the federal Sunshine Act, which requires about 60 federal agencies to meet in public. The act generally applies to agencies subject to the Freedom of Information Act, discussed later.

Does the Sunshine Law Apply to the Governor and Cabinet?

State lawmakers have no power to require the governor or Cabinet members to meet in public when they are exercising their constitutional administrative duties or acting as a policy-making board created by the Legislature, such as the State Board of Education. For instance, the governor's deliberations with Cabinet members about whether to grant a pardon or clemency are not covered by the Sunshine Law because they involve constitutional duties, not statutory duties.

What Legislative Meetings are Covered?

The Sunshine Law does not specifically cover the Legislature. However, the Sunshine Amendment approved by voters in 1992 specifically includes the Legislature and states that "all meetings of the Legislature shall be open and noticed."

Another constitutional amendment, approved by voters in 1990, requires legislators to adopt procedural rules ensuring that meetings of committees, subcommittees, and joint-conference committees are open and the public is notified.

The constitutionally required rules also must provide that informal, pre-arranged meetings of three or more legislators, or meetings involving legislative leaders and the governor, be open where formal action is taken or agreed to be taken later. The amendment does not require notice of these informal meetings.

Legislators may adopt rules controlling admission to the floor of each chamber and providing for closure of committee meetings in limited circumstances.

Are Private Organizations Covered?

The Sunshine Law does not usually cover private organizations, but there are exceptions.

If a governmental body delegates its functions to a private organization, its actions are subject to the Sunshine Law.

Private organizations that play an integral part in a public body's decision-making process by acting in an advisory capacity must comply with the Sunshine Law. For example, if a county commission requests that a private, non-profit corporation hold a workshop to gather information relating to land development regulations and make recommendations, the workshop must be open to the public.

If private organizations invite members of a public board or commission, these meetings should be open to the public if public business is discussed.

It is important to note that public funding alone does not bring the private body under the requirements of the Sunshine Law. For example, a private hospital that receives Medicare or Medicaid funds would not be subject to the Sunshine Law for that reason alone, but one governed by a legislatively-created body would be.

A private corporation that is paid to perform services for a public agency but is not delegated any governmental or legislative duties would similarly not be subject to the Sunshine Law.

What Activities Are Covered?

The Sunshine Law covers "meetings" of public boards and commissions. That includes deliberations, discussions, and workshops, as well as formal actions. Florida courts have ruled that whenever tow or more members of a governmental body discuss matters on which forseeable action could be taken by the body, that "meeting" is subject to the Sunshine Law. This would apply even if two members of a commission were having a casual dinner, and public business came up in the course of conversation.

There is no requirement that a quorum or majority be present for a discussion to be subject to the Sunshine Law.

Every step in the decision-making process, however preliminary, constitutes an action subject to the law. For example, board members may not use written memos, intermediaries, or staff members to avoid a public meeting.

Examples of activities covered by the law include:

• Telephone conference calls;
• Deliberations of a regional planning council;
• Collective bargaining sessions between a public employer and employees or their representatives;
• Workshop or conference sessions;
• Lunch meetings prior to formal meetings;
• Meetings at which personnel matters are discussed; and
• Negotiations by a public board or commission for the sale or purchase of property.

Exemptions

The Florida Supreme Court has ruled that the Sunshine Law has no exemptions except those provided by statute. The Sunshine Amendment to the Florida Constitution embodies this principle and limits exemptions to those listed in the Constitution and the Sunshine Law.

The Legislature has enacted more than 200 exemptions to the Sunshine Law, passing new exemptions almost every year.
A few examples include:
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• Meetings between city councils and city attorneys when discussing pending litigation involving the city;
• Proceedings of peer review panels, committees, and governing bodies of public hospitals or surgical centers relating to disciplinary actions;
• Certain meetings of Judicial Nominating Commissions and Judicial Qualifications Commissions;
• Some deliberations of the Public Employees Relations Commission;
• Certain meetings of the State Lottery Commission;
• Strategy discussions between a governmental body and its chief executive officer prior to collective bargaining negotiations;
• Grand jury proceedings; and
• Meetings of the Spaceport Florida Authority at which trade secrets are discussed.

How Should Government Provide Access?

The public must be notified about public meetings. Notice should include the meeting's time, place, and the agenda, if available. The notice should be prominently displayed in the agency's offices or meeting area.

The type of notice depends upon the facts of the situation and the board involved. The goal of the public official should always be to provide adequate notice to enable any interested citizen to find out about the meeting.

In some instances, posting of the notice in a public area may suffice; in others, publication in a local newspaper may be necessary.

Additional notice may be given in any reasonable fashion, including telephone calls to interested persons, press releases sent to local news media or advertisements placed in the media. Because methods of publishing vary widely among jurisdictions, persons interested in attending a government meeting should check with a government body to determine how it provides notice.

Emergency sessions should be announced through the most appropriate and effective channels under the circumstances. The public should have at least 24 hours notice of emergency meetings.

The Sunshine Law does not specify where a public meeting may be held, but it does prohibit facilities that discriminate on the basis of sex, age, race, creed, color, origin, or economic status, or which unreasonably restrict public access. Private buildings, even if open to the public, should be used only as a last resort. The goal, as always, should be maximum public attendance at the meeting.

Also, boards and commissions generally must meet at or near their headquarters or within their jurisdiction. For example, a Florida court ruled that a local board attending an out-of-town conference could not meet at the conference site simply because it was convenient for the board.

While bodies may institute reasonable rules to ensure orderly conduct at meetings, they should take reasonable steps to ensure that the facility will accommodate the anticipated turnout. Attendance at the meeting cannot be restricted, and the public body cannot prohibit tape recorders or cameras unless they are disrupted.

Written minutes must be kept of all meetings and those minutes must be open for public inspection. Voting must be in the open and all members are required to cast votes unless they abstain because of a stated conflict of interest. The Sunshine Law does not allow the use of "secret ballots."

What if a Meeting is Improperly Closed?

If it is known in advance that a meting will be closed in violation of the Sunshine Law, the chairperson of the public body or its attorney should be notified. If time permits, the notice should be in writing. The written request should inform the public body of its duties under the Sunshine Law and should ask the public body to cite the exemption it is relying upon to close the meeting. The written notice may be sent by certified mail to ensure proof of receipt by the public body.

If officials continue to refuse to open a meeting after receiving a formal request, or if closure is expected for other reasons, a circuit court may issue an injunction to prevent the closed meeting. Citizens may contact the State Attorney's Office in the appropriate judicial circuit or a private attorney to request help with securing an injunction of taking other legal action.
If a court finds that a public board or commission failed to comply with the Sunshine Law, its members could be subject to criminal or civil penalties and may even be removed from office. Florida courts may also invalidate, or declare null and void, any votes or other actions taken by the public body in violation of the law.

If you seek entry to a meeting at which official matters are to be considered and you are prohibited from entry, you should inform the presiding official that: "Florida Statute 286.011, the Government-in-the-Sunshine Law, requires that all meetings of state or local governmental boards or commissions be open to the public unless there is a specific statutory exemption. If I am ordered to leave (or forbidden to enter) this meeting, I ask that you advise me of the statutory authority for your action. Otherwise, I must insist on my right to attend this meeting."

The Sunshine Law provides for recovery of attorneys fees from governmental bodies if a court finds a violation. However, the law also permits a governmental body ro recover attorney's fees from an individual if a court rules a suit was frivolous or filed in bad faith.