Shade meetings: overview, pitfalls, and recommended changes.

• Author: Goldstein, Mark

This article discusses the scope of the attorney-client exemption to the Sunshine Law and the procedures that must be followed to properly hold an attorney-client session. The article also analyzes case law interpreting the attorney-client exemption and then concludes with specific recommendations to amend the statute to make it more useful for government entities.

Overview

It is the public polity of the State of Florida that all meetings of any board or commission of any state agency or authority, or any agency or authority of any county, municipal corporation, or political subdivision in which official acts are to be taken must be open to the public, and no formal action may be taken outside such a public meeting. (1) The legislature has also broadly conferred standing upon any citizen to bring an action in the circuit court to enjoin a violation of this law, which is commonly referred to as the "Sunshine Law." (2) Any public officer who participates in a meeting in violation of the Sunshine Law is subject to a multitude of penalties, including a fine not exceeding $500, (3) a second degree misdemeanor, (4) and attorneys' fees at the trial level (5) and on appeal. (6)

When engaging in litigation a private citizen may hold private discussions with an attorney to discuss litigation strategy and expenditures. However, prior to 1993, there was no exemption from the Sunshine Law that permitted a government attorney to meet with clients to discuss litigation strategy and expenditures. (7) In 1993, the Florida Legislature amended the Sunshine Law to allow government bodies to meet in private with the entity's attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency.(8)

Procedure to Hold Attorney-Client Session

To hold a private meeting with a board, commission, or agency, the entity's attorney must carefully comply with the statutory procedures governing such exemption. Specifically, the initial request for an attorney client session must be made by the attorney to the governing body at a public meeting. (9) Prior to holding the attorney client session, the government entity must give reasonable public notice of the time and date of the attorney-client session and the names of the persons who will be attending the session. Additionally, the attorney-client session must commence at an open meeting in which the entity's chair announces the commencement of the private attorney-client...