Item H4 J �� BOARD OF COUNTY COMMISSIONERS
County of Monroe � ��r�i
�r � s�� Mayor Heather Carruthers,District 3
The Florida.Keys Mayor Pro Tem Michelle Coldiron,District 2
Craig Cates,District 1
David Rice,District 4
Sylvia J.Murphy,District 5
County Commission Meeting
April 15, 2020
Agenda Item Number: H.4
Agenda Item Summary #6795
ADD ON LAND AUTHORITY ITEM A F MEETING: -4
BULK ITEM: No DEPARTMENT: Land Authority Governing Board
TIME APPROXIMATE: STAFF CONTACT: Charles Pattison (305) 295-5180
N/A
AGENDA ITEM WORDING: Approval of a resolution ratifying and adopting rules of procedure
for the conduct of public meetings via Communications Media Technology ("CMT") during the
declared State of Emergency due to the Covid-19 virus.
ITEM BACKGROUND: Florida law requires public bodies such as the Land Authority Governing
Board to meet in a public place. While remote participation is permissible in extraordinary
circumstances, the quorum must be physically present to conduct business. The COVID-19 virus
has caused federal, state, and local leaders to prohibit gatherings of more than 10 people in order to
lessen the spread of the infection.
In order to permit local governments to meet without having to gather in one location contrary to the
Centers for Disease Control guidelines, Governor DeSantis issued Executive Order 20-69 which
authorized local governments to dispense with the requirement in Florida law that local government
bodies must meet at a specific public place to establish a quorum. That order directs local
governments to adopt rules of procedure for holding meetings using teleconferencing and
videoconferencing technology, or "communications media technology" (CMT) as that term is
defined in F.S. 120.54.
The proposed resolution would adopt such rules for conducting meetings of the Land Authority
Governing Board and Land Authority Advisory Committee during the state of emergency. The
temporary rules adopted today would authorize final action. The temporary rules would expire at the
expiration of Executive Order No. 20-52 or Executive Order No. 20-69, including any extensions.
The proposed rules of procedure are modeled after the rules established for State agency meetings
that are conducted by CMT.
PREVIOUS RELEVANT BOCC ACTION: N/A
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Proposed Resolution
Executive Order 20-69
Attorney General Opinion 2020-03
FINANCIAL IMPACT:
Effective Date: 4/15/2020
Expiration Date: TBD
Total Dollar Value of Contract: n/a
Total Cost to County: n/a
Current Year Portion: n/a
Budgeted: n/a
Source of Funds: n/a
CPI: n/a
Indirect Costs: n/a
Estimated Ongoing Costs Not Included in above dollar amounts: n/a
Revenue Producing: No If yes, amount:
Grant: n/a
County Match: n/a
Insurance Required: No.
Additional Details: n/a
REVIEWED BY:
Charles Pattison Completed 04/13/2020 9:22 AM
Paunece Scull Completed 04/13/2020 9:38 AM
Kathy Peters Completed 04/13/2020 9:59 AM
Board of County Commissioners Pending 04/15/2020 9:00 AM
RESOLUTION NO. -2020
A RESOLUTION OF THE MONROE COUNTY
COMPREHENSIVE PLAN LAND AUTHORITY RATIFYING
AND ADOPTING TEMPORARY RULES OF PROCEDURE
FOR THE CONDUCT OF PUBLIC MEETINGS VIA
COMMUNICATIONS MEDIA TECHNOLOGY ("CMT")
DURING THE PERIOD OF DECLARED STATE OF
EMERGENCY DUE TO THE COVID-19 VIRUS,PURSUANT
TO EXECUTIVE ORDER 20-69.
WHEREAS, on March 9, 2020, Governor DeSantis declared a State of Emergency for the
entire state of Florida in Executive Order 20-52 due to the outbreak of the COVID-19 virus; and
WHEREAS, pursuant to the COVID-19 virus, the Centers for Disease Control and the
Florida Department of Health have warned against gatherings of ten (10) or more individuals; and
WHEREAS, pursuant to his powers during a declared State of Emergency, Governor
DeSantis issued Executive Order 20-69, which authorized local governments to dispense with the
requirement in Florida law that local government bodies must meet at a specific public place to
establish a quorum; and
WHEREAS, the Monroe County Comprehensive Plan Land Authority Governing Board
(hereinafter "Governing Board") finds that conducting meetings via communications media
technology ("CMT") will further the public interest of the residents of Monroe County by
permitting the Governing Board and the Monroe County Comprehensive Plan Land Authority
Advisory Committee(hereinafter"Advisory Committee")to meet in a virtual public meeting while
safeguarding the public against the spread of COVID19; and
WHEREAS,the Governing Board and the Advisory Committee are required to meet in the
Sunshine and cannot meet without the adoption of rules; and
WHEREAS, it is necessary for the Governing Board and the Advisory Committee to meet
to conduct the business of the Land Authority; and
WHEREAS, holding a public meeting by traditional means of gathering in one location
would violate the social distancing guidelines issued by the Centers for Disease Control and various
executive orders issued by the Governor; and
WHEREAS, the Governor issued Executive Order 20-91, directing all Floridians to stay
at home unless conducting essential services or engaged in essential activities; and
WHEREAS, the Monroe County Attorney has consulted with the Attorney General's
Office on the requirements necessary to hold a meeting exclusively via communications media
technology; and
Page 1 of 3
WHEREAS,the Administrator of the Monroe County Health Department has advised that
due to the social distancing directives against public gatherings that is advisable to only conduct
the meeting using communications media technology and advised against designating a public
place for members of the public to gather and give comment to the Board; and
WHEREAS, the Land Authority Counsel, in consultation with the County Attorney's
Office, has drafted rules that are consistent with and implement the intent of Executive Order 20-
69 and the Government in the Sunshine Law; and
WHEREAS, the Land Authority Counsel, in consultation with the County Attorney's
Office, has drafted proposed rules of procedure for the Governing Board's consideration, a copy
of which is attached hereto and incorporated herein as Exhibit to the Resolution; and
NOW THEREFORE, BE IT RESOLVED BY THE MONROE COUNTY
COMPREHENSIVE PLAN LAND AUTHORITY:
Section 1. The above recitals are incorporated herein as findings of fact.
Section 2. The Rules of Procedure attached hereto and incorporated into this Resolution as Exhibit
A are hereby approved and adopted.
Section 3. This resolution shall take effect immediately upon adoption and shall apply
retroactively to the beginning of the meeting during which the rules are adopted.
Section 4. These rules shall expire at the expiration of Executive Order 20-52 or Executive Order
20-69, including any extensions, whichever is lifted earlier.
Section 5. If a court of competent jurisdiction shall determine that any particular rule or portion of
a rule set forth in Exhibit A is unlawful, the other rules shall remain in full force and
effect.
[The remainder of this page is intentionally blank.]
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PASSED AND ADOPTED by the Monroe County Comprehensive Plan Land Authority,
at a regular meeting of said Board held on the day of 2020.
Chairman David Rice
Vice Chairman Michelle Coldiron
Mayor Heather Carruthers
Commissioner Craig Cates
Commissioner Sylvia Murphy
(SEAL) MONROE COUNTY COMPREHENSIVE
Attest: PLAN LAND AUTHORITY
By By
Charles G. Pattison David P. Rice
Executive Director Chairman
Approved as to form and legality:
Adele V. Stones, Esquire
Page 3 of 3
Exhibit A
LAND AUTHORITY'S TEMPORARY RULES FOR USE OF COMMUNICATIONS
MEDIA TECHNOLOGY DURING COVID-19 EMERGENCY
These rules are promulgated pursuant to the authority set forth in Executive Order 20-
69, issued by Governor DeSantis on March 20, 2020:
Section. 1. Definitions and Applicability
1. For purposes of these rules, the term "agency' shall mean the Monroe County
Comprehensive Plan Land Authority Governing Board (hereinafter Governing
Board), the Monroe County Comprehensive Plan Land Authority Advisory
Committee (hereinafter Advisory Committee), and/or a committee of Land
Authority staff serving in any capacity that triggers the applicability of the
Government in the Sunshine Law, chapter 286, Florida Statutes.
2. The term "communications media technology' (abbreviated "CMT") shall have the
same meaning as provided for in F.S. 120.54(5)(b)2, and chapter 2017-214, Laws
of Florida.
3. These rules are separate and distinct from those rules adopted in Monroe County
Resolution 299-2017, for purposes of implementing 2017-214, Laws of Florida.
4. For purposes of these rules, the term "meeting" means any gathering of two or
more members of the Governing Board, Advisory Committee, and/or a
commission of Land Authority staff serving in any capacity that triggers the
applicability of the Government in the Sunshine Law, chapter 286, Florida
Statutes. The term "meeting" including a public hearing or workshop meeting.
5. Meetings of the Governing Board or Advisory Committee or of Land Authority
staff, which are required to be held in public as set forth in F.S. 286.011 may be
held by CMT provided such meeting follows these rules.
Section 2. Conducting Proceedings by Communications Media Technology (CMT):
1. A meeting may be held exclusively by CMT.
2. If technical issues arise during a CMT meeting that prevent all interested persons
from attending, the meeting shall terminate until the problems have been
corrected. Termination of the meeting shall not be required if at least one means
of audio communication remains available.
3. When a meeting is to be held via CMT, the Land Authority shall provide notice in
the same manner as required by a non-CMT meeting, shall plainly state that such
a meeting is to be conducted using CMT, and identify the specific type of CMT to
be used. Multiple methods of CMT are permissible for conducting a meeting.
The Land Authority must provide notice to describe how interested persons may
attend. That notice shall include:
a. The method by which a member of the public may access the meeting
using CMT.
b. An address, email, and phone number where a person may write/call for
additional information; and
c. The address, email, and designated person to whom someone may submit
written or other physical evidence which he/she intends to offer into
evidence during a CMT proceeding.
4. Any evidence, testimony, argument, or other information which is offered utilizing
CMT shall be afforded equal consideration as if it were offered in person, and
shall be subject to the same objections. In situations where sworn testimony is
required by the agency, person(s) offering such testimony shall be responsible for
making appropriate arrangements for offering sworn testimony including but not
limited to providing for the attendance of a notary public or other official
authorized by law to place a person under oath.
5. All agency meetings 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, decision,
or formal action shall be considered binding except as taken or made at such
meeting.
6. Pursuant to Section 2 of Executive Order 20-69, a quorum may be established by
members attending the meeting via CMT.
STATE OF FLORIDA
OFFICE OF THE GOVERNOR
EXECUTIVE ORDER NUMBER 20-69
(Emergency Management - COVID-19- Local Government Public Meetings)
WHEREAS, on March 1, 2020, I issued Executive Order 20-51 directing the Florida
Department of Health to issue a Public Health Emergency as a result of COVID-19; and
WHEREAS, on March 1, 2020, the State Surgeon General and State Health Officer
declared a Public I lealth Emergency exists in the State of Florida as a result of COVID-19; and
WHEREAS, on March 9, 2020, 1 issued Executive Order 20-52 declaring a state of
emergency for the entire State of Florida as a result of COVID-19; and
WHERE,AS, on March 16, 2020, President Donald J. Trump and the Centers for Disease
Control and Prevention (``CDC") issued the "15 Days to Slow the Spread" guidance advising
individuals to adopt far-reaching social distancing measures, such as working from home and
avoiding gatherings of more than 10 people; and
WHEREAS, on March 17, 2020, I wrote a letter to Attorney General Ashley Moody
seeking an advisory opinion regarding concerns raised by local government bodies about their
ability to hold meetings through teleconferencing and other technological means in order to protect
the public and follow the CDC guidance regarding social distancing; and
WHEREAS, on March 19, 2020, Attorney General Ashley Moody delivered an opinion
to me indicating that certain provisions of Florida law require a physical quorum be present for
local government bodies to conduct official business, and that local government bodies may only
conduct meetings by teleconferencing or other technological means if either a statute permits a
quorum to be present by means other than in person, or that the in person requirement for
constituting a quorum is lawfully suspended during the state of emergency: and
WHEREAS,'AS, it is necessary and appropriate to take action to ensure that COVID-19
remains controlled, and that residents and visitors in Florida remain safe and secure,
NOW, THEREFORE, 1, RON DESANTIS, as Governor of Florida, by virtue of the
authority vested in me by Article IV, Section (1)(a) of the Florida Constitution, Chapter 252,
Florida Statutes, and all other applicable laws, promulgate the following Executive Order to take
immediate effect:
Section 1. 1 hereby suspend any Florida Statute that requires a quorum to be present in
person or requires a local govermnent body to meet at a specific public place.
Section 2. Focal government bodies may utilize communications media technology,
such as telephonic and video conferencing, as provided in section 120.54(5)(b)2., Florida Statutes.
Section 3. This Executive Order does not waive any other requirement under the
Florida Constitution and "Florida's Government in the Sunshine Laws," including Chapter 286,
Florida Statutes.
Section 4. This Executive Order shall expire at the expiration of Executive Order 20-
52, including any extension.
IN TESTIMONY WHEREOF, I have hereunto
° set my hand and caused the Great Seal of the
State of Florida to be affixed, at Tallahassee, this
20th day of March, 2020
1ON DESANTIS, GOVERNOR
ATTEST:
z
uo
4SERETARY OF STATE
CIO
1
Florida Attorney General
Advisory Legal Opinion
Number: AGO 2020-03
Date: March 19, 2020
Subject: Public meeting quorums using technology
..........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................
The Honorable Ron DeSantis
Governor
The Capitol
Tallahassee, Florida 32399-0001
Dear Governor DeSantis:
Our office has received your letter dated March 17, 2020, requesting an
opinion pursuant to Section 16.01(3), Florida Statutes, in light of recent
developments arising from the spread of COVID-19. On March 9, 2020, you
issued Executive Order No. 20-52, declaring a state of emergency statewide
and requiring Florida government officials to take necessary and timely
precautions to protect their communities.
You state that, as a result of the dangers of COVID-19, public safety directives
encourage citizens to engage in "social distancing" and to avoid public
gatherings, where possible. As a result, your office "has been contacted by
numerous county and local government bodies regarding concerns for public
meetings held in light of the COVID-19 public health emergency. These
entities raise issues involving Florida Statutes and Attorney General Advisory
Opinion interpretations that limit the ability to hold public meetings using
communications media technology."'
Question Presented
Under these circumstances, you ask the following question:
Whether, and to what extent, local government bodies may utilize
teleconferencing and/or other technological means to convene
meetings and conduct official business, while still providing public
access to those meetings?
Page 1 of 6
It is my opinion under existing law that, if a quorum is required to conduct
official business, local government bodies may only conduct meetings by
teleconferencing or other technological means if either (1) a statute permits a
quorum to be present by means other than in person, or (2) the in-person
requirement for constituting a quorum is lawfully suspended during the state of
emergency. If such meetings are conducted by teleconferencing or other
technological means, public access must be afforded which permits the public
to attend the meeting. That public access may be provided by
teleconferencing or technological means.
Discussion
Article I, Section 24(b) of the Florida Constitution provides that "[a]II
meetings...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[.]" Florida's Sunshine Law, found in chapter 286,
Florida Statutes, provides that "[a]II meetings of any...agency or authority 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
at such meeting." § 286.011(1), Fla. Stat. (2019). Section 286.0114, Florida
Statutes, also provides, with respect to certain "propositions" before a board
or commission, that an opportunity for public comment must be afforded.
Though the Florida Constitution and the Sunshine Law both require that,
unless exempt by law, meetings of a local government body must be "public
meetings" that are "open to the public," the text of neither provision requires
that members of the public body be physically present during the meeting. Nor
does either provision prescribe any particular means of holding meetings.
Since 1997, Florida law has allowed many state agencies to conduct public
meetings, hearings and workshops by "communications media technology" in
full compliance with the Sunshine Law, and they regularly do so. See §
120.52(5)(b)2., Fla. Stat. (2019); Ch. 28-109, Fla. Adm. Code. No reported
judicial decision has held that meetings conducted by such means violate the
Florida Constitution or the Sunshine Law. The Legislature has also, by statute,
permitted certain public entities other than state agencies to conduct meetings
using communications media technology.2
Page 2 of 6
When asked similar questions by local government bodies in the past, the
Attorney General's office has made it clear that any requirement for physical
presence of members derives from other law specifying that a quorum be
present to lawfully conduct public business or that the meeting of a local
government body be held at a place within the body's jurisdiction. See Ops.
Att'y Gen. Fla. 1983-100 (1983), 1998-28 (1998), 2006-20 (2006). How a
quorum is lawfully constituted, or where a meeting is "held," are questions
distinct from the Sunshine Law and governed by other law. Indeed, a quorum
is not required to be present for a meeting to be otherwise subject to the
Sunshine Law.3
Some statutes governing the conduct of business by local government bodies
(such as section 166.041 , Florida Statutes) specifically include the
requirement of a "quorum" or that a quorum be "present" to conduct certain
kinds of public business, such as the adoption of ordinances or resolutions.
See § 166.041(4), Fla. Stat. (providing that, for municipalities, a majority of
members constitutes a quorum and an affirmative vote of a "majority of a
quorum present" is necessary to adopt an ordinance or resolution). Other
statutes require that meetings be held in a place within the jurisdiction of the
local government body. For example, section 125.001(1), Florida Statutes,
requires that meetings of a board of county commissioners "may be held at
any appropriate place in the county." These statutes have not defined the term
"quorum" or what it means to be "present." Nor have they defined what it
means for a meeting to be "held" in a place.
Absent any statutory definition of these terms, the Attorney General's office
has, in prior opinions, relied upon the plain meanings of the terms "quorum"
and "present" by resorting to legal dictionaries and dictionaries of common
usage. See Op. Att'y Gen. Fla. 2010-34 n.5-6 (referring to unabridged
dictionary and legal dictionary for definition of term "quorum", which included
the word "present", and concluding that "a quorum requirement, in and of
itself, contemplates the physical presence of the members of a board or
commission at any meeting subject to the requirement."). Doing so is a
universally accepted mode of interpretation repeatedly endorsed by Florida
courts. See Lee Mem. Health Sys. v. Progressive Select Ins. Co., 260 So. 3d
1038, 1043 (Fla. 2018); Berkovich v. Casa Paradiso North, Inc., 125 So. 3d
938, 941 (Fla. 4th DCA 2013) ("The common usage of the term `quorum'
requires the presence of individuals.") (citing Black's Law Dictionary 1284 (8th
ed.2004)).
Page 3 of 6
The term "quorum" is defined as "who must be present for a deliberative
assembly to legally transact business." Black's Law Dictionary (11th ed.
2019). The word "present," is defined as "in attendance; not elsewhere."
Black's Law Dictionary (11th ed. 2019); see also Webster's Third New
International Dictionary Unabridged 1793 (2002 ed.) (defining "present" as
"being before, beside, with, or in the same place as someone or something
<both men were present at the meeting>.").
Thus, in the absence of a statute to the contrary, the Attorney General's office
historically has taken a conservative approach, out of concern for the validity
of actions taken by the public body, concluding that any statutory quorum
requirement to conduct public business requires the quorum of members to be
physically present and that members present by electronic means could not
count toward establishing the quorum. A long line of opinions by my
predecessors contain conclusions to that effect.
For example, in Attorney General Opinion 83-100, Attorney General Smith
concluded that a county could not conduct a meeting unless members
constituting a quorum were physically present (and, even then, that a
physically absent member could not participate by telephone). Op. Atty' Gen.
Fla. 83-100 (1983). In Attorney General Opinion 92-44, Attorney General
Butterworth concluded that a county commissioner physically unable to attend
a meeting because of medical treatment could participate and vote in
commission meetings where a quorum of other commissioners was physically
present. Op. Att'y Gen. Fla. 92-44 (1992). In Attorney General Opinion 98-28,
Attorney General Butterworth concluded that a school board member could
attend a meeting by electronic means, so long as a quorum was physically
present at the meeting site. Op. Att'y Gen. Fla. 98-28. In Attorney General
Opinion 2002-82, Attorney General Doran concluded that physically disabled
members of a city board could participate and vote on matters as long as a
quorum was physically present. Op. Att'y Gen. Fla. 2002-82 (2002). In
Attorney General Opinion 2003-41 , Attorney General Crist concluded that a
member of a city human rights board who was physically absent from a board
meeting but participated by telephone conference could not be counted
toward the presence of a quorum. Op. Att'y Gen. Fla. 2003-41 (2003). And in
Attorney General Opinion 2010-34, Attorney General McCollum concluded
that the Coral Gables City Commission could not adopt an ordinance for the
city's retirement board declaring that the requirements to create a quorum
would be met if members of the board appeared via electronic means,
because doing so would conflict with the statutory requirement in section
Page 4 of 6
166.041 , Florida Statutes that a quorum be present. Op. Att'y Gen. Fla. 2010-
34 (2010).
Conclusion
The nature, extent, and potential duration of the current emergency involving
COVID-19 present unique circumstances. However, without legislative action,
they do not change existing law. It is my opinion that, unless and until
legislatively or judicially determined otherwise, if a quorum is required to
conduct official business, local government bodies may only conduct meetings
by teleconferencing or other technological means if either a statute permits a
quorum to be present by means other than in-person, or the in-person
requirement for constituting a quorum is lawfully suspended during the state of
emergency.
Sincerely,
Ashley Moody
Attorney General
AM/ttlm
1 Letter from Governor Ron DeSantis to Attorney General Ashley Moody dated
March 17, 2020.
2 Compare, e.g., § 163.01 , Fla. Stat. (2019) (authorizing any separate legal
entity created under subsection (7) of the Florida Interlocal Cooperation Act of
1969 to conduct public meetings and workshops by means of "conference
telephone, video conference, or other communications technology by which all
persons attending a public meeting or workshop may audibly communicate;"
providing specific requirements; and providing that the "participation by an
officer, board member, or other representative of a member public agency in a
meeting or workshop conducted through communications media technology
constitutes that individual's presence at such meeting or workshop"); §
373.079(7), Fla. Stat. (2019) (authorizing the water management district
"governing board, a basin board, a committee, or an advisory board" to
"conduct meetings by means of communications media technology in
accordance with rules adopted pursuant to s. 120.54"); § 374.983(3), Fla.
Page 5 of 6
Stat. (2019) (authorizing the Board of Commissioners of the Florida Inland
Navigation District to conduct board and committee meetings "utilizing
communications media technology, pursuant to s. 120.54(5)(b)2"); §
553.75(3), Fla. Stat. (2019) (authorizing the use of communications media
technology in conducting meetings of the Florida Building Commission or of
any meetings held in conjunction with meetings of the commission); §
1002.33(9)(p)3, Fla. Stat. (2019) (authorizing members of each charter
school's governing board to attend public meetings to "in person or by means
of communications media technology used in accordance with rules adopted
by the Administration Commission under s. 120.54(5), and specifying other
requirements) with § 349.04(8), Fla. Stat. (2019) (authorizing the Jacksonville
Transportation Authority to "conduct public meetings and workshops by
means of communications media technology, as provided in s. 120.54(5)," but
specifying that "a resolution, rule, or formal action is not binding unless a
quorum is physically present at the noticed meeting location, and only
members physically present may vote on any item").
3 Indeed, a quorum is not required to be present for a meeting to be otherwise
subject to the Sunshine Law. See Hough v. Stembridge, 278 So. 2d 288 (Fla.
3d DCA 1973).
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