Florida's Government in the Sunshine Law, F.S. [section]286.011, has long required meetings of governing bodies of public agencies to be noticed and open to the public. (1) While the Sunshine Law has long granted the public a right of access to such meetings, there was no general requirement for public comment until 2013, when the legislature enacted F.S. [section]286.0114. Section 286.0114(2) provides: "Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission."
The statute fails to define what constitutes a "reasonable" opportunity. To date, the issue has not been interpreted by the courts. This article attempts to do so.
A conservative application of the statute would restrict every relevant commission or board from considering matters not noticed on a pre-circulated agenda. This approach would be unworkable. All amendments, secondary motions, incidental motions, privileged motions, reconsiderations, or walk-on items arising during a meeting could potentially violate the statute. Debate could not occur. Virtually anything (2) that is beyond the call or notice of a meeting would need to be continued, so it could be properly noticed, and the public given an opportunity to be heard.
Ironically, a conservative approach would also shackle the public's ability to participate. Action on matters raised in the public's comments, petitions, and initiatives would also need to be continued so that they could be noticed, and the public given an opportunity to be heard.
The Concern That Considering Matters Not Noticed on the Agenda Will "Mislead Interested Citizens"
A general requirement for an opportunity to provide public comment appears to stem from a concern that citizens interested in a matter will be misled into not attending a meeting if the matter is not noticed on an agenda. In Law & Info. Services, Inc. v. City of Riviera Beach, 670 So. 2d 1014, 1016 (Fla. 4th DCA 1996), the court said:
We are, of course, concerned that a board's failure to publicize an agenda item may mislead interested citizens into assuming that a matter will not be addressed at a scheduled public meeting. However, whether to impose a requirement that restricts every relevant commission or board from considering matters not on an agenda is a policy decision to be made by the legislature.
In the Riviera Beach case, the city council voted to hire the deputy and acting city manager to be their city manager. The meeting was noticed. There was an agenda, but the agenda did not include this item. The court held that if a meeting itself is properly noticed, there is no requirement that a governmental body give notice of potential deviation from a previously announced agenda.
In Yarbrough v. Young, 462 So. 2d 515 (Fla. 1st DCA 1985), the city had announced on October 25 that utility improvements of $1.3 million would be on the agenda for a meeting on October 28. However, an updated report set the cost at $8.8 million, an amount never mentioned before announced at a public meeting until October 28, at which time the council adopted the report. The court ruled the city's three days' notice was reasonable notice; postponing deliberations on the difference between the $8.8 million amount approved by the council and the $1.3 million amount that was noticed was not only unnecessary under the Sunshine Law, but also unreasonable.
In Rhea v. City of Gainesville, 574 So. 2d 221 (Fla. 1st DCA 1991), the city commission authorized the mayor to write a letter to a local delegation conveying the commission's position on a regional utility matter and offering the commission's support regarding it. Notice of the meeting was provided one-and-a-half hours before the meeting. The court held the short notice was not reasonable.
In Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), the precirculated meeting agenda included approval of minutes. The draft meeting minutes, however, were not among the documents available to the public. The city's employee represented the minutes would not be released to the public until after approval by the commission. The court held the denial of the public records request not only breached the duty to provide such records at a reasonable time and under reasonable conditions, but also contravened the purpose and mandate of our...