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Attorney General Opinion TALLAHASSEE, FLORIDA 32399-1050 Ronln A. BUTTERWORTH Attorney General Stall! of norMa April 1, 2002 The Honorable Mark Kohl State Attorney 16th Judicial Circuit 530 Whitehead Street Key West, Florida 33040 Dear Mr. Kohl: This is in response to your ~ecent correspondence requesting that this office provide a letter of guidance regarding a complaint alleging a violation of the Sunshine Law. After a review, your office has concluded that there does not appear to be an intentional violation of the law. However, in an effort to provide guidance in future situations, you have asked that this office comment upon the applicability of the Sunshine Law in the following circumstances: The members of the Tourist Development Council (TDC) are appointed by the individual county commissioners. The TDC sits as a board and approves expenditures of money from tourism taxes. The TOe acts in an advisory capacity for the board of county commissioners. Some time in the past the TOC approved the expenditure of $268~000.oO to assist in the sinking of the Spiegel Grove as an artificial reef. The money has been allocated but never expended and must be re-approved every so often by TDC Board action. The Spiegel Grove project has incurred cost overruns and at its November meeting the board of county commissioners (with only 3 out of 5 in attendance) approved the expenditure of $300,000.00 of infrastructure tax revenues to assist in completion of the project. AN AFFIRM" TlVE A(;J]()NlEauA~ OPPORTVNfTY li:MPl.OYF.~ GO'd vOO'oN SS:6 GO,61 ~dtJ :G1 The Honorable Mark Kohl Page Two At least one of the commission members absent on that day made a public statement that the issue of the $300,000.00 would be brought up at the December meeting of the BOCC. By virtue of being elected Mayor, one of the county commissioners (in this instance Charles "SonnyU McCoy) sits as a member of the TOe. On November 29, 2001, the TDC held its meeting with adequate public notice. On the agenda was the re-approval of the $268,000.00 as a rollover. Prior to the meeting McCoy spoke with a reporter, Ann Henson, from a local newspaper. The reporter heard McCoy tell the TDC Board Chairman that he wanted on the agenda. The reporter saw another county commissioner, Murray Nelson, enter the room. She told McCoy that he needed to be aware of the Sunshine Law because "Murray" was present. Nelson approached McCoy and asked why he was at the meeting. McCoy informed him that he was a member of the TOe. Nelson aSked McCoy if he was aware of the agenda item for the $268,000.00. McCoy replied that he was and said that he was going to solve the nother problem" with the TOC. The "other problem" being the issue of the $300,000.00. McCoy said something to the effect of "Ann (Henson) said we need to watch out for the Sunshine Law, to hell with the Sunshine Law.u He later admitted this in a radio interview. Nelson says that he did not hear the comment by McCoy and he reportedly said to McCoy that they Would discuss it at the next commission meeting. Nelson maintains that was the end of the conversation. fO'd VOO'oN SS:6 <:0,61 CJdCl :01 The Honorable Mark Kohl Page Three Legal Analysis Section 286.011, Florida Statutes, 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 recogni~ed in the Florida Constitution.1 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. 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. 2 Accordingly, discussions between two members of a three-member complaint review board regarding their selection of the third member of the board mUst be conducted in accordance with the Sunshine Law.J vO'd vOO'oN 9S:6 ~O,61 ~d~ :G1 The Honorable Mark Kohl Page Four It is the how and the why officials decided to so act which interests the public, not merely the final decision. Thus, the court recognized in Times Publishing Company v. Williams:4 Every thought, as well as every affirmative act, of a public official as it relates to and is within the scope of his official duties, is a matter of public concernj and it is the entire decision-making process that the legislature intended to affect by the enactment of the statute before UB. Thus, the fact that board members characterize business as "non- substantive" does not necessarily remove it from the ambit of the Sunshine Law. If the "nonSUbatantive" business involves the approval or consideration of the entire board or concerns matters which should appropriately he considered and discussed by the board, then section 286.011, Florida Statutes, requires that such business be conducted in the sunshine.s The courts have recognized that the mere fact that a meeting is held in a public room does not make it public within the meaning of the Sunshine Law.6 For a meeting to be "PUblic," the public must be given advance notice and provided with a reasonable opportunity to attend.? A violation of the Sunshine Law may occur if, during a recess of a public meeting, board members discuss issues before the board in a manner not generally audible to the public attending the meeting. Although such a meeting is not clandestine, it nonetheless violates the letter and spirit of the law.a Under the Sunshine Law, a meeting is either fully open or fully closed; there are no intermediate categories.9 Conclusion The correspondence from your office describes a very brief conversation between two county commissioners on a funding issue SO'd VOO'oN 9S:6 GO.61 <:IdtJ :01 The Honorable Mark Kohl Page Five which had previously been considered at a recent county commission meeting. Although the discussion was not clandestine, or motivated by any apparent desire to avoid public scrutiny, it did not take place in a county commission meeting held in compliance wi.th the Sunshi.ne Law. The conversation waa audible only to those in immediate proximity of the county commissioners and no notice of the discussion was provided to the general public. While the Sunshine Law does not prohibit board members from attending meetings of another public board or from attending social events together, board members attending such events are not permitted to discuss among themselves any matter on which foreseeable action could be taken by their board. For example, two or more county commissioners may not discuss among themselves any matter on which foreseeable action may be taken by the county commission except at a publicly noticed meeting of the county commission. Thus, in an effort to provide guidance for the future, it is recommended that board members conduct all discussions, regardless of how brief or insubstantial, that concern matters on Which foreseeable action could be taken by the board, in a public meeting of that board held in compliance with the Sunshine Law. Thank you for contacting this office. I trust that the preceding informal COmnletnts will be of assistance in providing guidance, in the t"uture. Sincerely, .:; cU--. ~ \ patr@aR. Gleason General Counsel PRG/lm --------------~--------------~------------------------------ 90'd vOO'oN lS:6 <:0,61 Cldl:J :01 The Honorable Mark Kohl Page Six See, Frankenmuth Mutual Insurance Company v. Magaha, 769 So. 2d 1012, 1021 (Fla. 2000), noting that the Sunshine Law "is of both constitutional and statutory dimension." Article I, s.24, Fla. Canst., was approved by the voters in the November 1992 general election and becam~ effective July 1, 1993. 2 Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). And see, City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971); Board of Public Ins~ruction or Sroward County v. Doran, 224 ~o. 2d 693 (Fla. 1969); and Wolfson v. State, 344 So. 2d 611 (Fla. 2d DCA 1977) . ,} Op. Att'y Gen. Fla. 93~79 (1993). 4 222 So. 2d 470, 473 (Fla. 2d DCA 1969), disapproved in part On o~her grounds, Neu v. Miami Herald Publishing Company, 462 $0. 2d 821 (Fla. 1985). 5 See, Op. Att'y Gen. Fla. 75-37 (1975). And see, Inf. Op. to Bill Nelson, May 19, 1980 (meeting with congressman and city council members to discuss "federal budgetary matters which vitally concern their communities" should be held in the sunshine because "it appears extremely likely that discussion of public business by the council members [and perhaps decision making] will take place at the meeting") . Ii B.igelow v. Howze, 291 So. 2d 645, 647-64B (Fla. 2d DCA 1974). '/ Id, S RacklefE v. Bishop, No. 89-235 (Fla. 2d Cir. Ct. March 5, 1990). And see, Op. Att'y Gen. Fla. 71-159 (1971), Btating that discussions of public business which are audible only to "a select few" who are at the table with the board members may violate the "openness" requirement of the law. 9 Neu v. Miami Herald Publishing Company, 462 So. 2d 821, 823 (Fla. 1985). ~O'd VOO'oN ~S:6 (;0,61 ~dtJ :01 RECEIVED ~.. ?-d:L MAYOR McCOY MARK E. KOHL &kh~ QWU,YMWJ/ SIXTEENTH JUlJICIAL CIRCUIT OF rT .ORIDA 530 WIHTEHHAIJ STREET KEY WEST. FLURIDA 3.1040-6547 TELEPHONE 305.292.3400 Slale Attorney April 5, 2002 Charles "Sonny" McCoy 530 Whitehead Street Key West, Florida 33040 DC.lr Mayor McCoy: My office has concluded it's investigation into the alleged Sunshine Law violation stemming from the TDC meeting on November 29,2001. We have made the detennination that there was no criminal offense committed by either you or Commissioner Nelson. We have also detenllined that no civil infraction has occurred as a results of the incidents alleged in that meeting. A copy of our investigation was referred to the Attorney General's office tor their review also. The Attorney General's office has reviewed the file and submitted a letter of guidance which they would likc [or us to share with you. I hope that the attached letter of guidance will assist you in bettcr understanding the Sunshine Law and [ hope that it will help avoid any future problems. Please share this letter with the other County Commissioners, so that perhaps, they too, can learn some of the technicalities of the Sunshine Law becausc I feel that there is valuable information that we can all learn from in the Attorney General's opinion. MEKfda attachment Sincerely yours, ~{# Mark E- Kohl State Attorney 10'd VOO'oN VS:6 GO,61 ~dtJ :01