Me, myself, and I: does Florida's sunshine law apply to communications of a lone member of a board or commission?

• Author: Eschenfelder, Robert Michael
• Position: City, County and Local Government Law

Assume you are a newly elected member of a city council. Your election platform promised voters that you would fight to get funding for a new water treatment plant. You raise the matter with your fellow council members at a city council meeting and tell them that you've already begun researching funding options and talking to different experts. They tell you, "Sounds like a nice initiative. Please follow up and let us know if you can pull something together." You then go about your efforts of speaking to city utility and finance staff, working with the federal EPA, and even drafting a grant application proposal. You come back to your council and present a proposed grant agreement that would provide the needed funding for the new facility. Your fellow council members vote to approve the grant application and the chairperson signs it and sends it off. Did your work outside of the publicly noticed council meetings violate Florida's Sunshine Law?

Florida is home to 67 counties; over 400 cities, towns, and villages; and thousands of other districts, boards, committees, and commissions. The work they perform can vary between infrequent meetings to produce advice on a narrow range of topics to governing large, general purpose governments. Through initiative or by official request, an individual member may undertake actions, including meetings and discussions with third parties, that will eventually become some proposal presented to the board or commission. This article discusses if, and how, the Sunshine Law may apply in such circumstances.

The Sunshine Law

F.S. [section] 286.011, commonly referred to as the "Florida Government-in-the-Sunshine Law," provides, in relevant part:

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 ... including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, 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.

This law is a complement to Fla. Const. art. I, [section] 24(b), which provides, in relevant part: "All meetings of ... any collegial public body of a county. at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public...."

While the statutory language is not explicit on the point, various decisions of Florida's appellate courts have made it clear that the law covers not only "formal" meetings, but also "any gathering, whether formal or informal, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by that board or commission." (1) It is, therefore, clear that when an individual board or commission member communicates in an unnoticed, nonpublic way with one or more of his or her fellow board or commission members concerning a matter on which foreseeable action will be taken, and that fellow member communicates back, even if the communication is in passing at the grocery store or is exchanged in a series of text messages, the Sunshine Law is violated. It is also clear that members of boards or commissions cannot use third-person intermediaries to carry messages between them concerning public business outside of a noticed public meeting. (2)

Sunshine Law Does Not Apply to a Member of a Collegial Body Speaking to Third Persons

There are a variety of scenarios in which a public board or commission might come to rely on or request the assistance of one of its members to work on a matter. One example could be when a member with contracting experience examining building plans speaks to a contractor and then advises his or her board or commission on ways it may reduce construction costs. Another could be when a member with a special interest in tourism works directly with potential theme park developers and brings back to his or her board proposals on how to bring such a park to the jurisdiction. And, as occurred in a recent Florida case, a board or commission may rely on one of its members to discuss potential contract terms with an agency chief executive. In these instances, as long as the individual member goes about the task in a way that does not include direct or indirect communications with his or her fellow members, the Sunshine Law would not be violated.

As noted earlier, both the constitutional provision and the statute apply, by their respective express terms, to meetings of "any collegial public body" and "any board or commission." Thus, Florida courts have consistently ruled that for the Sunshine Law to be violated, two or more members of the board or commission must "meet" outside the Sunshine. The obvious converse of this rule is that the Sunshine Law will not be implicated concerning communications of a single member of a board or commission with persons who are not fellow members. This is so, even if the communications occur with the prior consent, request, or direction of the board or commission, and even if they may result in some idea, proposal, or other action item being brought back to the board or commission for consideration.

Thirty years ago, in Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984), the Florida Supreme Court considered a bond validation case in which it was alleged that the bonds to build a stadium were invalid because the matter was discussed in meetings of elected officials and staff of the Authority, Pinellas County, and the City of St. Petersburg. The court disagreed, and in a unanimous opinion expounded on the requirement that two or more members of a collegial body be present for a violation to occur. (3)

The record shows, however, that no meetings involving these bonds occurred with two or more members of any one of the three governmental entities present. We do not construe that language to apply to the gatherings here between individual members and staff of the different governmental entities. By definition, then, no violation of the law occurred. There was never any meeting where any two individuals with decision-making capacity were present. The individuals could only report back to their respective governmental bodies. The subsequent discussions and decisions of all three of the governing bodies took place in open, public meetings. Appellants' reliance on Wood v. Martson, 442 So. 2d 934 (Fla. 1983), is misplaced. In that case we held that the search-and-screen committee was clearly a "board or commission" of a state agency subject to the Sunshine Law. Even if we were to...