Overview of the Sunshine and Public Records Laws*

 

Patricia R. Gleason

 

I.          GOVERNMENT IN THE SUNSHINE LAW

 

            A.        WHAT IS THE SCOPE OF THE SUNSHINE LAW?

 

            Florida's Government in the Sunshine Law, commonly referred to as the Sunshine Law, provides a right of access to governmental proceedings at both the state and local levels.  The law is equally applicable to elected and appointed boards and has been applied to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action.  There are three basic requirements of section 286.011, Florida Statutes:

 

(1)        meetings of public boards or commissions must be

open to the public;

(2)        reasonable notice of such meetings must be given; and

(3)        minutes of the meetings must be taken.

 

            A right of access to meetings of collegial public bodies is also recognized in the Florida Constitution.  Article I, section 24, Florida Constitution, was approved by the voters in the November 1992 general election and became effective July 1, 1993.  Virtually all collegial public bodies are covered by the open meetings mandate of the open government constitutional amendment with the exception of the judiciary and the state Legislature which has its own constitutional provision requiring access.  The only exceptions are those established by law or by the Constitution.

 

            B.        WHAT AGENCIES ARE COVERED BY THE SUNSHINE LAW?

 

                        1.         Are all public agencies subject to the Sunshine Law?

 

            The Government in the Sunshine Law applies to "any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision."  The statute thus applies to public collegial bodies within this state, at the local as well as state level.  City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971).  It is equally applicable to elected and appointed boards or commissions.  Op. Att'y Gen. Fla. 73-223 (1973).  The judiciary and the Legislature are not subject to the Sunshine Law.  See, Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992); Op. Att'y Gen. Fla. 83-97 (1983).

 

            Federal agencies, i.e., agencies created under federal law, operating within the state do not come within the purview of the state Sunshine Law.  Op. Att'y Gen. Fla. 71-191 (1971).  Cf., Inf. Op. to Markham, September 10, 1996 (technical oversight committee established by state agencies as part of settlement agreement in federal lawsuit subject to Sunshine Law).

 

            Boards or commissions created by law or by a public agency are clearly subject to the provisions of section 286.011, Florida Statutes.  A public officer may be an "agency" for purposes of creating a board or commission subject to section 286.011, Florida Statutes.  For example, in Krause v. Reno, 366 So. 2d 1244

 

(* Portions highlighted in bold are new additions to the outline for 2002.)

 

 

(Fla. 3d DCA 1979), the court held that a city manager was an "agency" for purposes of section 286.011, Florida Statutes.  Therefore, when he utilized an advisory group to assist him in screening applications and making recommendations for the position of chief of police, he created a "board" to which the Sunshine Law was applicable.

 

 2.        Are advisory boards which make recommendations or committees established for fact-finding only subject to the Sunshine Law?

 

a.         Publicly created advisory boards which make recommendations

 

            Advisory boards whose powers are limited to making recommendations to a public agency and which possess no authority to bind that agency in any way are subject to the Sunshine Law.  Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974).  See also, Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (Sunshine Law applies to a university's search and screening committee).  And see, Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (Sunshine Law applies to site plan review committee created by county commission to serve in an advisory capacity to the county manager).

 

b.         Fact-finding committees

 

            A limited exception to the applicability of the Sunshine Law to advisory committees has been recognized for committees established for fact-finding only.  When a committee has been established strictly for, and conducts only, fact-finding activities, i.e., strictly information gathering and reporting, the activities of that committee are not subject to section 286.011, Florida Statutes.  Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985).

 

3.         Are private organizations providing services to public agencies subject to the Sunshine Law?

 

            This office has recognized that private organizations which are not state or local governmental agencies or subject to the control of the Legislature and which do not serve in an advisory capacity to state or local governmental agencies, are generally not subject to section 286.011, Florida Statutes.  Op. Att'y Gen. Fla. 83-1 (1983).  Thus, the Sunshine Law would not generally apply to meetings of a homeowners' association.  Inf. Op. to Fasano, June 7, 1996.

 

            Thus, a private corporation which performs services for a public agency and receives compensation for such services pursuant to a contract or otherwise, is not by virtue of this relationship alone necessarily subject to the Sunshine Law unless the public agency's governmental or legislative functions have been delegated to it.  McCoy Restaurants, Inc. v. City of Orlando, 392 So. 2d 252 (Fla. 1980) (airlines are not by virtue of their lease with the aviation authority public representatives subject to the Sunshine Law).

           

            However, although private organizations are generally not subject to the Sunshine Law, open meetings requirements can apply if the public entity has delegated "the performance of its public purpose" to the private entity.  Memorial Hospital-West Volusia, Inc v. News-Journal Corporation, 729 So. 2d 373, 383  (Fla.  1999). In Memorial, the Supreme Court held that a private nonprofit corporation which entered into a lease with a public hospital authority to operate a hospital was subject to the open meetings requirements found in the Sunshine Law and those contained in article I, section 24(b) of the Florida

Constitution.

 

            Similarly, this office has concluded that if a county commission dissolves its cultural affairs council and designates a nonprofit organization to fulfill that role for the county, the nonprofit organization would be subject to the Sunshine Law.  Op. Att'y Gen. Fla. 98-49 (1998).  And see, Op. Att'y Gen. Fla. 99-53 (1999) (architectural review committee of a homeowners' association is subject to the Sunshine Law where the committee, pursuant to county ordinance, must review and approve applications for county building permits) and Op. Att'y Gen. Fla. 00-08 (2000) (meetings of the Lee County Fire Commissioner's Forum, a nonprofit entity created by fire districts as a vehicle for networking and discussion of common concerns, would be subject to the Sunshine Law if the Forum operates as a collegial body for incipient decision making).

 

4.         Does the Sunshine Law apply to staff?

 

            Meetings of staff of boards or commissions covered by the Sunshine Law are not ordinarily subject to section 286.011, Florida Statutes.  Occidental Chemical Company v. Mayo, 351 So. 2d 336 (Fla. 1977), disapproved in part on other grounds, Citizens v. Beard, 613 So. 2d 403 (Fla. 1992).  And see, Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000), in which  the  court concluded that the Sunshine Law did not apply to  informal meetings of staff where the meetings were "merely informational;" where none of the individuals attending the meetings had any decision-making authority during the meetings; and where no formal action was taken or could have been taken at the meetings.  Knox v. District School Board of Brevard, 27 F.L.W. D1017 (Fla. 5th DCA May 3, 2002) ("A sunshine violation does not occur when a governmental executive uses staff for a fact-finding and advisory function in fulfilling his or her duties").

 

            However, when a staff member ceases to function in a staff capacity and is appointed to a committee which is delegated authority normally within the public board or commission, the staff member loses his or her identity as staff while working on the committee and the Sunshine Law is applicable to the committee.  It is the nature of the act performed, not the makeup of the committee or the proximity of the act to the final decision, which determines whether a committee composed of staff is subject to the Sunshine Law.  Wood v. Marston, 442 So. 2d 934 (Fla. 1983).  And see, Evergreen the Tree Treasurers of Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So. 2d 526 (Fla. 2d DCA 2002) (when public officials delegate their fact-finding duties and decision-making authority to a committee of staff members, those individuals no longer function as staff members but "stand in the shoes of such public officials" insofar as the Sunshine Law is concerned).

 

            For example, in Wood v. Marston, supra, the Court concluded that a committee composed of staff which was created for the purpose of screening applications and making recommendations for the position of a law school dean was subject to section 286.011, Florida Statutes, since the committee members performed a decision-making function outside of their normal staff activities.  By screening applicants and deciding which applicants to reject from further consideration, the committee performed a policy-based, decision-making function delegated to it by the president of the university.

 

            In a more recent case, Silver Express Company v. Miami-Dade Community College, 691 So. 2d 1099 (Fla. 3d DCA 1997), the district court determined that a committee (composed of staff and one outside person) that was created by a college purchasing director to assist and advise her in evaluating contract proposals was subject to the Sunshine Law.  According to the court, the committee's job was to weed through the various proposals, to determine which were acceptable and to rank them accordingly.  This function was sufficient to bring the committee within the scope of the Sunshine Law because  "governmental advisory committees which have offered up structured recommendations such as here involved -- at least those recommendations which eliminate opportunities for alternative choices by the final authority, or which rank applications for the final authority -- have been determined to be agencies governed by the Sunshine Law."  691 So. 2d at 1101.  And see, Inf. Op. to Lewis, March 15, 1999 (panels established by state commission to create requests for proposals and evaluate vendor responses are subject to the Sunshine Law).

 

5.         Does the Sunshine Law apply to members of public boards who also serve as administrative officers or employees?

 

            There may be occasions in which members of public boards also serve as administrative officers or employees.  The Sunshine Law is not applicable to discussions of those individuals when serving as administrative officers or employees, provided such discussions do not relate to matters which will come before the public board on which they serve.  Thus, a board member who also serves as an employee of an agency may meet with another board member on issues relating to his duties as an employee provided such discussions do not relate to matters that will come before the board for action.  See, Op. Att'y Gen. Fla. 92-79 (1992).

 

            C.        WHAT IS A MEETING SUBJECT TO THE SUNSHINE LAW?

 

                        1.         Number of board members required to be present

 

            The Sunshine Law extends to the discussions and deliberations as well as the formal action taken by a public board or commission.  There is no requirement that a quorum be present for a meeting of members of a public board or commission to be subject to section 286.011, Florida Statutes.  Instead, the law is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission.  Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973).

 

2.         Circumstances in which the Sunshine Law may apply to a single individual or where two board members are not physically present

 

            The Sunshine Law applies to public boards and commissions, i.e., collegial bodies.  As discussed supra, section 286.011, Florida Statutes, applies to meetings of "two or more members" of the same board or commission when discussing some matter which will foreseeably come before the board or commission. 

            Therefore, section 286.011, Florida Statutes, would not ordinarily apply to an individual member of a public board or commission or to public officials who are not board or commission members.  See, Deerfield Beach Publishing, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988) (requisite to application of the sunshine law is a meeting between two or more public officials); City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989); Mitchell v. School Board of Leon County, 335 So. 2d 354 (Fla. 1st DCA 1976).

 

            Certain factual situations, however, have arisen where, in order to assure public access to the decision-making processes of public boards or commissions, it has been necessary to conclude that the presence of two individuals of the same board or commission is not necessary to trigger application of section 286.011, Florida Statutes.  As stated by the Supreme Court, the Sunshine Law is to be construed "so as to frustrate all evasive devices."  Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974).

 

                                    a.         Written correspondence between board members

 

            The use of a written report by one commissioner to inform other commissioners of a subject which will be discussed at a public meeting is not a violation of the Sunshine Law if prior to the meeting there is no interaction related to the report among the commissioners.  In such cases, the report, which is subject to disclosure under the Public Records Act, is not being used as a substitute for action at a public meeting as there is no interaction among the commissioners prior to the meeting.  Op. Att'y Gen. Fla. 89-23 (1989). 

 

            If, however, the report is circulated among board members for comments with such comments being provided to other members, there is interaction among the board members which is subject to section 286.011, Florida Statutes.  Op. Att'y Gen. Fla. 90-3 (1990).  See also, Op. Att'y Gen. Fla. 96-35 (1996), stating that a school board member may prepare and circulate an informational memorandum or position paper to other board members; however, the use of a memorandum to solicit comment from other board members or the circulation of responsive memoranda by other board members would violate the Sunshine Law.

 

                                    b.         Telephone conversations and meetings

 

            As discussed previously, the Sunshine Law applies to the deliberations and discussions between two or more members of a board or commission on some matter which foreseeably will come before that board or commission for action.  The use of a telephone to conduct such discussions does not remove the conversation from the requirements of section 286.011, Florida Statutes.  Therefore, members of a board seeking to discuss board business or conduct a meeting of the board by telephone should ensure that the requirements of the Sunshine Law have been satisfied by providing notice and access to the public. 

 

            A related issue is whether a board is authorized to conduct its meetings through the use of a telephone conference call or other type of communications technology.  In Op. Att'y Gen. Fla. 98-28 (1998), this office concluded that section 120.54(5)(b)2., Florida Statutes, authorizes state agencies to conduct meetings via electronic means provided that the board complies with uniform rules of procedure adopted by the state Administration Commission.  These rules contain notice requirements and procedures for providing points of access for the public.  See, Rule 28-109, Florida Administrative Code.

 

            As to local boards, this office has noted that the authorization in section 120.54(5)(b)2., to conduct meetings entirely through the use of communications media technology applies only to state agencies. Op. Att'y Gen. Fla. 98-28 (1998).  Thus, since section 230.17, Florida Statutes, requires a district school board to hold its meetings at a "public place in the county," a quorum of the board must be physically present at the meeting of the school board.  However, as long as a quorum of the board is physically present at the meeting site, the board may use electronic media technology to allow a physically absent member of the board to attend the meeting.  Id.  Compliance with the requirements of section 286.011, Florida Statutes, "would involve providing notice and access to the public at such meetings through the use of such devices as a speaker telephone that would allow the absent member to participate in discussions, to be heard by the other board members and the public and to hear discussions taking place during the meeting."  Op. Att'y Gen. Fla. 94-55 (1994).

   

                                    c.         Use of computers

 

            The use of computers to conduct public business is becoming increasingly commonplace.  While there is no provision generally prohibiting the use of computers to carry out public business, their use by members of a public board or commission to communicate among themselves on issues pending before the board, is subject to the Sunshine Law.  Op. Att'y Gen. Fla. 89-39 (1989).  See also, Op. Att'y Gen. Fla. 96-34 (1996) ("E-mail" is a public record). 

 

            Airport authority members may conduct informal discussions and workshops over the Internet, provided proper notice is given, and interactive access by members of the public is provided.  Op. Att'y Gen. Fla. 01-66 (2001).  Such interactive access must include not only public access via the Internet but also designated places within the authority boundaries where the airport authority makes computers with Internet access available to members of the public who may not otherwise have Internet access.  Id.  For meetings, however, where a quorum is necessary for action to be taken, physical presence of the members making up the quorum would be required in the absence of a statute providing otherwise.  Id.  Internet access to such meetings, however, may still be offered to provide greater public access.  Id.

 

            However, the use of an electronic bulletin board to discuss matters over an extended period of days or weeks, which does not permit the public to participate online, violates the Sunshine Law by circumventing the notice and access provisions of that law.  Op. Att'y Gen. Fla. 02-32 (2002).

 

                                    d.         Delegation of authority to single individual

 

            If a member of a public board is authorized only to explore various contract proposals with the applicant selected for the position of executive director, with such proposals being related back to the governing body for consideration, the discussions between the board member and the applicant are not subject to the Sunshine Law.  Op. Att'y Gen. Fla. 93-78 (1993).  If, however, the board member has been delegated the authority to reject certain options from further consideration by the entire board, the board member is performing a decision-making function that must be conducted in the sunshine.  And see, Leach-Wells v. City of Bradenton, 734 So. 2d 1168 (Fla. 2d DCA 1999) (committee charged with evaluating proposals violated the Sunshine Law when the city clerk unilaterally tallied the results of the committee members' individual written evaluations and ranked them; the court held that the "short-listing was formal action that was required to be taken at a public meeting").  Compare, Lee County v. Pierpont, 693 So. 2d 994 (Fla. 2d DCA 1997) (authorization to county attorney to make settlement offers to landowners not to exceed appraised value plus 20%, rather than a specific dollar amount, did not violate the Sunshine Law).

 

            It must be recognized, however, that the applicability of the Sunshine Law relates to the discussions of a single individual who has been delegated decision-making authority on behalf of a board or commission.  If the individual, rather than the board, is vested by law, charter or ordinance with the authority to take action, such discussions are not subject to section 286.011, Florida Statutes.  See, City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989). 

 

e.         Use of nonmembers as liaisons between board members

 

            The Sunshine Law is applicable to meetings between a board member and an individual who is not a member of the board when that individual is being used as a liaison between, or to conduct a de facto meeting of, board members.  For example, in Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979), the court held that a series of scheduled successive meetings between the school superintendent and individual members of the school board were subject to the Sunshine Law.  While normally meetings between the school superintendent and an individual school board member would not be subject to section 286.011, Florida Statutes, these meetings were held in "rapid-fire succession" in order to avoid a public airing of a controversial redistricting problem.  They amounted to a de facto meeting of the school board in violation of section 286.011, Florida Statutes. 

 

            Not all decisions taken by staff, however, need to be made or approved by a board.  Thus, the district court concluded in Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), that the decision to appeal made by legal counsel to a public board after discussions between the legal staff and individual members of the commission was not subject to the Sunshine Law.

 

D.        WHAT TYPES OF DISCUSSIONS ARE COVERED BY THE SUNSHINE LAW?

 

                        1.         Investigative meetings or meetings to consider confidential material

 

            The Sunshine Law is applicable to investigative inquiries of public boards or commissions.  The fact that a meeting concerns alleged violations of laws or regulations does not remove it from the scope of the law.  Op. Att'y Gen. Fla. 74-84 (1974); Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973).  The Florida Supreme Court has stated that in the absence of a statute exempting a meeting in which privileged material is discussed, section 286.011, Florida Statutes, should be construed as containing no exceptions.  City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971).

 

            Section 119.07(5), Florida Statutes, provides that an exemption from section 119.07, Florida Statutes, "does not imply an exemption from or exception to section 286.011, Florida Statutes.  The exemption from or exception to section 286.011, Florida Statutes, must be expressly provided."  Thus, exceptions to or exemptions from Chapter 119, Florida Statutes, do not by implication allow a public agency to close a meeting in which exempted material is to be discussed in the absence of a specific exemption or exception to section 286.011, Florida Statutes.  Accord, Op. Att'y Gen. Fla. 95-65 (1995) (district case review committee); Op. Att'y Gen. Fla. 93-41 (1993) (county criminal justice commission); Op. Att'y Gen. Fla. 91-88 (1991) (pension board); and Op. Att'y Gen. Fla. 91-75 (1991) (school board).

 

2.         Legal matters

 

            In the absence of legislative exemption, discussions between a public board and its attorney are subject to section 286.011, Florida Statutes.  Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985) (section 90.502, Florida Statutes, which provides for the confidentiality of attorney-client communications under the Florida Evidence Code, does not create an exemption for attorney-client communications at public meetings).  Cf., section 90.502(6), Florida Statutes, stating that a discussion or activity that is not a meeting for purposes of the Sunshine Law shall not be construed to waive the attorney-client privilege).

 

            There are statutory exemptions, however, which apply to some discussions of pending litigation between a public board and its attorney.

 

                                    a.         Attorney-client discussions

 

            Section 286.011(8), Florida Statutes, provides:

 

Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may 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, provided that the following conditions are met:

 

(a)        The entity's attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation.

 

(b)        The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.

 

(c)        The entire session shall be recorded by a certified court reporter.  The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking.  No portion of the session shall be off the record.  The court reporter's notes shall be fully transcribed and filed with the entity's clerk within a reasonable time after the meeting.

 

(d)        The entity shall give reasonable public notice of the time and date of the attorney-client session and the names of persons who will be attending the session.  The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney-client session and the names of the persons attending.  At the conclusion of the attorney-client session, the meeting shall be reopened and the person chairing the meeting shall announce the termination of the session.

 

(e)        The transcript shall be made part of the public record upon conclusion of the litigation.  (e.s.)

 

(1)        Is section 286.011(8), Florida Statutes, to be liberally or strictly construed?

 

            It has been held that the Legislature intended a strict construction of section 286.011(8), Florida Statutes.  City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995); School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996). 

 

(2)        Who may call an attorney-client meeting?

 

            While section 286.011(8), Florida Statutes, does not specify who calls the closed attorney-client meeting, it requires as one of the conditions that must be met that the governmental entity's attorney "shall advise the entity at a public meeting that he or she desires advice concerning the litigation."  Thus, one of the conditions that must be met prior to holding a closed attorney-client meeting is that the city attorney must indicate to the city council at a public meeting that he or she wishes the advice of the city council regarding the pending litigation to which the city is presently a party before a court or administrative agency.  Inf. Op. to Vock, July 11, 2001.

 

(3)        Who may attend?

 

            Only those persons listed in the statutory exemption, i.e., the entity, the entity's attorney, the chief administrative officer of the entity, and the court reporter are authorized to attend a closed attorney-client session.  Other staff members or consultants are not allowed to be present.  School Board of Duval County v. Florida Publishing Company.  And see,  Zorc v. City of Vero Beach, 722 So. 2d 891, 898 (Fla. 4th DCA 1998) (rejecting city's argument that charter provision requiring that city clerk attend all council meetings authorized clerk to attend closed attorney-client meeting); and Op. Att'y Gen. Fla. 01-10 (2001) (clerk of court not authorized to attend).

 

            However, because the entity's attorney is permitted to attend the closed session, if the school board hires outside counsel to represent it in pending litigation, both the school board attorney and the litigation attorney may attend a closed session.  Op. Att'y Gen. Fla. 98-06 (1998).  And see, Zorc v. City of Vero Beach  (attendance of Special Counsel authorized).

 

                                                (4)        Is substantial compliance with the conditions established in the statute adequate?

 

            In City of Dunnellon v. Aran, supra, the court said that a city council's failure to announce the names of the lawyers participating in a closed attorney-client session violated the Sunshine Law.  The court rejected the city's claim that when the mayor announced that attorneys hired by the city would attend the session [but did not give the names of the individuals], his "substantial compliance" was sufficient to satisfy the statute.  Cf., Zorc v. City of Vero Beach, at 901, noting that deviation from the agenda at an attorney-client session is not authorized; while such deviation is permissible if a public meeting has been properly noticed, "there is no case law affording the same latitude to deviations in closed door meetings."

                       

                                                (5)        What kinds of matters may be discussed at the attorney-client session?

 

            Section 286.011(8) states that the subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.  Section 286.011(8)(b), Florida Statutes.  If a board goes beyond the "strict parameters of settlement negotiations and strategy sessions related to litigation expenditures" and takes "decisive action," a violation of the Sunshine Law results.  Zorc v. City of Vero Beach, at 900.  And see, Op. Att'y Gen. Fla.  99-37 (1999)  (closed-meeting exemption may be used only when the attorney for a governmental entity seeks advice on settlement negotiations or strategy relating to litigation expenditures; such meetings should not be used to finalize action or discuss matters outside these two narrowly prescribed areas).

 

            The legislative history of the exemption indicates that it was intended to apply only to discussions, rather than final action, relating to settlement negotiations or litigation expenditures.  See, Staff of Fla. H.R. Comm. on Gov't Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement 2 (Fla. State Archives), noting at p. 3:  "No final decisions on litigation matters can be voted on during these private, attorney-client strategy meetings.  The decision to settle a case, for a certain amount of money, under certain conditions is a decision which must be voted upon in a public meeting."

 

            Thus, "[t]he settlement of a case is exactly that type of final decision contemplated by the drafters of section 286.011(8) which must be voted upon in the sunshine."  Zorc v. City of Vero Beach, at 901.  See also, Freeman v. Times Publishing Company, 696 So. 2d 427 (Fla. 2d DCA 1997) (discussion of methods or options to achieve continuing compliance with a long-standing federal desegregation mandate [such as whether to modify the boundaries of a school zone to achieve racial balance] must be held in the Sunshine).  Compare, Brown v. City of Lauderhill, 654 So. 2d 302, 303 (Fla. 4th DCA 1995) (closed-door session between city attorney and board to discuss claims for attorney's fees, authorized).

 

                                                (6)        When is an agency a "party to pending litigation" for purposes of the exemption?

 

            In Brown v. City of Lauderhill, supra, the court said it could "discern no rational basis for concluding that a city is not a 'party' to pending litigation in which it is the real party in interest."   And see, Zorc v. City of Vero Beach, at 900  (city was presently a party to ongoing litigation by virtue of its already pending claims in bankruptcy proceedings).

           

            Although the Brown decision established that the exemption could be used by a city that was a real party in interest on a claim involved in pending litigation, that decision does not mean that an agency may meet in executive session with its attorney where there is only the threat of litigation.  See, Op. Att'y Gen. Fla. 98-21 (1998) (section 286.011[8] exemption "does not apply when no lawsuit has been filed even though the parties involved believe litigation is inevitable").

 

                                                (7)        When is litigation "concluded" for purposes of section 286.011(8)(e)?

 

            Litigation that is ongoing but temporarily suspended pursuant to a stipulation for settlement has not been concluded for purposes of section 286.011(8), and a transcript of meetings held between the city and its attorney to discuss such litigation may be kept confidential until conclusion of the litigation.  Op. Att'y Gen. Fla. 94-64 (1994).  And see, Op. Att'y Gen. Fla. 94-33 (1994), concluding that to give effect to the purpose of section 286.011(8), a public agency may maintain the confidentiality of a record of a strategy or settlement meeting between a public agency and its attorney until the suit is dismissed with prejudice or the applicable statute of limitations has run.  Cf., Op. Att'y Gen. Fla. 96-75 (1996) (disclosure of medical records to a city council during a closed-door meeting under section 286.011[8], Florida Statutes, does not affect the requirement that the transcript of such a meeting be made a part of the public record at the conclusion of the litigation).

 

                                    b.         Risk management

                         

            Section 768.28(15)(c), Florida Statutes, states that portions of meetings and proceedings relating solely to the evaluation of claims or to offers of compromise of claims filed with a risk management program of the state, its agencies and subdivisions, are exempt from section 286.011, Florida Statutes.  The minutes of such meetings and proceedings are also exempt from public disclosure until the termination of the litigation and settlement of all claims arising out of the same incident.  Section 768.28(15)(d), Florida Statutes.  And see, Op. Att'y Gen. Fla. 00-20 (2000), noting application of the exemption to a risk management meeting conducted by a district school board and attended by risk management personnel that relates solely to the evaluation of a tort claim filed with the risk management program or that relates solely to an offer of compromise of a tort claim filed with the risk management program.  The exemption is not applicable to meetings held prior to the filing of a tort claim with the risk management program.  Op. Att'y Gen. Fla. 92-82 (1992).

 

                        3.         Personnel matters

 

            Meetings of a public board or commission at which personnel matters are discussed are not exempt from the provisions of section 286.011, Florida Statutes, in the absence of a specific statutory exemption.  Times Publishing Company v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985).

 

                                    a.         Collective bargaining discussions

 

            A limited exemption from section 286.011, Florida Statutes, exists for discussions between the chief executive officer of the public employer and the legislative body of the public employer relative to collective bargaining.  Section 447.605(1), Florida Statutes.  Cf., Op. Att'y Gen. Fla. 99-27 (1999), noting that a committee (composed of the city manager and various city managerial employees) formed by the city manager to represent the city in labor negotiations qualifies as the "chief executive officer" and thus may participate in closed executive sessions conducted pursuant to this section.

 

            The above exemption applies only when there are actual and impending collective bargaining negotiations.  City of Fort Myers v. News-Press Publishing Company, Inc., 514 So. 2d 408 (Fla. 2d DCA 1987).  It does not apply to other nonexempt topics which may be discussed during the course of the same meeting.  Op. Att'y Gen. Fla. 85-99 (1985).  Moreover, the collective bargaining negotiations between the chief executive officer and a bargaining agent are not exempt and, pursuant to section 447.605(2), Florida Statutes, must be conducted in the Sunshine.

 

b.         Complaint review boards, disciplinary hearings, and grievance committees

 

            A complaint review board of a city police department is subject to the Government in the Sunshine Law.  Barfield v. City of West Palm Beach, No. 94-2141-AC (Fla. 15th Cir. Ct. May 6, 1994).  Accord, Op. Att'y Gen. Fla. 78-105 (1978) (police complaint review board) and Op. Att'y Gen. Fla. 80-27 (1980) (sheriff civil service board).  Similarly, a meeting of a municipal housing authority commission to conduct an employee termination hearing is subject to the Sunshine Law.  Op. Att'y Gen.