Modern sunshine: attending public meetings in the digital age.

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

A city council member is called to New York on urgent family business. A fire district commissioner is recovering from surgery at a regional hospital. A zoning appeals board member's flight is cancelled, and she is stuck out of town. A local health official quarantines a majority of a county commission for two weeks because they are infected with the H1N1 virus. In each case, these public officials may very well have the ability and desire to attend scheduled meetings of their respective boards, councils, or commissions, and they may have local access to communication technology to permit them to fulfill their public duties, yet does the law allow them to do so?

Most Floridians have at least a passing understanding of the concept that the law requires most governmental bodies to conduct their meetings in "the sunshine" and to refrain from discussing public business outside of such settings. However, few citizens truly know the exact laws applying to this concept, and many attorneys practicing in the area of government law have not really contemplated how current communication technology can be used to conduct meetings subject to Florida's Sunshine Law. Interestingly, Florida's appellate courts have not weighed in on this topic, and the body of advisory opinions from successive attorneys general provide an inconsistent and, in the author's view, incorrect analysis.

This article will review the Sunshine Law's provisions as they relate to a public official's duty to conduct public business at public meetings and, further, how this law has been construed by the Attorney General's Office over the years on the issue of remote electronic attendance. Finally, an analysis of what the law actually requires will be provided, as well as suggestions on how policy clarity may be brought to the topic that would balance the public's right to see and hear what their public officials are doing with the efficiencies created by broader use of modern communication technologies.

Laws Applicable to Public Meetings

Fla. Const. art. I, [section] 24(b) provides:

All meetings of any collegial public body of the executive branch of the state government or of any collegial public body of a county, municipality, school district, or special district, 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 and meetings of the legislature shall be open and notice ... except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.

In turn, art. I, [section] 24(c) gives the legislature authority to adopt statutes to implement this provision, including any exceptions or exemptions thereto. The legislature did so by adoption of what is now known generically as "the Government in the Sunshine Law" (hereinafter referred to as the Sunshine Law). The relevant portion of that law provides:

All meetings of any board or commission of any state agency or authority or of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, 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. (1)

What Is a Meeting?

Although these provisions may seem fairly simple and clear, they beg one very central question: What exactly is a "meeting" as used in the Constitution and statute? The Sunshine Law does not provide any definition for the word and, although the courts have had occasion to discuss the term in the context of individual office holders violating the Sunshine Law, they have not addressed the corollary question of meeting via remote electronic appearance.

Initially, it should be observed that, without regard to how "meeting" is defined, the Sunshine Law requires any meeting to be held at an accessible, public place where the public may hear public officials and other speakers, where public officials may hear each other and all other speakers, and, in quasi-judicial matters, where public officials and the parties can see exhibits and other evidence. Given the lack of any constitutional or statutory definition of the word "meeting," coupled with the ability of modern technology to allow meetings to be attended by persons physically located in different countries, a plain language reading of the word would seem to allow meetings subject to the Sunshine Law to be conducted and attended electronically. Citizens could either watch remotely online or attend in person at the designated physical meeting place, wherein they could hear and--with video feeds--see each of their elected representatives, who in turn could see the audience, as well as any documents or other items offered for the public body's consideration.

Attorney General Opinions Over Time

While successive attorneys general have, over the decades, given their best efforts to help guide a steady stream of public officials questioning the ability to remotely appear at meetings, their opinions have become inconsistent and, in the author's opinion, do not reach the correct legal conclusion. As early as 83-100 Op. Att'y Gen. (1983), Attorney General Jim Smith was asked by the Escambia County attorney if a county commissioner was permitted to attend a commission meeting via real-time telephonic means and to participate and cast votes when the other commissioners physically present at the meeting did. In his opinion, the attorney general analogized the meeting requirement to the need, in the public and corporate world, to obtain a...