Tuesday, December 23, 2014
TOWN & GOWN SUNSHINE VIOLATION?: EXCERPTS FROM FLORIDA ATTORNEY GENERAL MANUAL EXCERPTS
EXCEPTS FROM 2014 FLORIDA ATTORNEY GENERAL SUNSHINE MANUAL
2. Are advisory boards which make recommendations or committees established only for fact-finding subject to the Sunshine Law?
a. Publicly created advisory boards which make recommendations
advisory boards and committees created by public agencies may be subject to the sunshine law, even though their recommendations are not binding upon the entities that create them. The “dispositive question” is whether the committee has been delegated “decision-making authority,” as opposed to mere “information-gathering or fact-finding authority.” Sarasota Citizens for Responsible Government v. City of Sarasota, 48 so. 3d 755, 762 (Fla. 2010). “Where the committee has been delegated decision-making authority, the committee’s meetings must be open to public scrutiny, regardless of the review procedures eventually used by the traditional governmental body.” Id.
For example, in Town of Palm Beach v. Gradison, 296 so. 2d 473 (Fla. 1974), a citizen planning committee appointed by a city council to assist in revision of zoning ordinances was found to be subject to the sunshine law. The Gradison court, concluding that the committee served as the alter ego of the council in making tentative decisions, stated that “any committee established by the town Council to act in any type of advisory capacity would be subject to
the provisions of the government in the sunshine law.” Id. at 476. See also Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535 so. 2d 694, 695 (Fla. 3d DCa 1988) (committee which compiled a report that was perfunctorily accepted by the board made a significant ruling affecting decision-making process and was subject to s. 286.011; an “ad hoc advisory board, even if its power is limited to making recommendations to a public agency and even if it possesses no authority to bind the agency in any way, is subject to the sunshine law”); and Lyon v. Lake County, 765 so. 2d 785 (Fla. 5th DCa 2000) (sunshine law applies to site plan review committee created by county ordinance to serve in an advisory capacity to the county manager). Accord agos 98-13 (citizen advisory committee appointed by city council to make recommendations to the council regarding city government and city services), and 01-84 (school advisory council created pursuant to former s. 229.58 [now s. 1001.452], F.s).
The sunshine law does not establish a lesser standard for members of advisory committees that are subject to the sunshine law. See Monroe County v. Pigeon Key Historical Park, Inc., 647 so. 2d 857, 869 (Fla. 3d DCa 1994) (“[t]he sunshine law equally binds all members of governmental bodies, be they advisory committee members or elected officials”). accordingly, in the absence of statutory exemption, any gathering of two or more members to discuss any matter on which foreseeable action may be taken must be open to the public, noticed to the public, and minutes kept.
b. Advisory committees appointed by a single public official
The sunshine law applies to advisory committees appointed by a single public official as well as those appointed by a collegial board. For example, in Wood v. Marston, 442 so. 2d 934 (Fla. 1983), the Florida supreme Court determined that the sunshine law applied to an ad hoc advisory committee appointed by a university president to screen applications and make recommendations for the position of law school dean, because the committee, in deciding which applicants to reject from further consideration, performed a policy-based, decision-making function. See also Silver Express Company v. District Board of Lower Tribunal Trustees, 691 so. 2d 1099 (Fla. 3d DCa 1997) (committee established by agency purchasing director to consider and rank various contract proposals subject to sunshine law). Accord agos 05-05 (fact that advisory group was created by chief of police and not city commission and its recommendations were made to police chief would not remove group from ambit of the sunshine law); 85-76 (ad hoc committee appointed by mayor for purpose of making recommendations concerning legislation); 87-42 (ad hoc committee appointed by mayor to meet with Chamber of Commerce and draft proposal for transfer of city property); and inf. op. to lamar, august 2, 1993 (transition team appointed by mayor to make recommendations regarding governmental reorganization).
c. Fact-finding committees
a limited exception to the applicability of the sunshine law to advisory committees has been recognized for advisory committees established for fact-finding only. “[a] committee is not subject to the sunshine law if the committee has only been delegated information-gathering or fact-finding authority and only conducts such activities.” Sarasota Citizens for Responsible Govern- ment v. City of Sarasota, 48 so. 3d 755, 762 (Fla. 2010). See also Cape Publications, Inc. v. City of Palm Bay, 473 so. 2d 222 (Fla. 5th DCa 1985). Accord ago 95-06 (when a group, on behalf of a public entity, functions solely as a fact-finder or information gatherer with no decision-making authority, no “board or commission” subject to the sunshine law is created).
“in determining whether a committee is subject to the sunshine law, the actual function of the committee must be scrutinized to determine whether it is exercising part of the decision- making function by sorting through options and making recommendations to the governmental body.” inf. op. to randolph, June 10, 2010. Thus, if an advisory committee has a decision- making function in addition to fact-finding, the sunshine law is applicable. See Wood v. Marston, 442 so. 2d 934, 938 (Fla. 1983), recognizing that while a “search and screen” committee had a fact-gathering role in soliciting and compiling applications, the committee also “had an equally undisputed decision-making function in screening the applicants” by deciding which of the applicants to reject from further consideration, and thus was subject to the sunshine law.
similarly, in ago 94-21, the attorney general’s office advised that the sunshine law governed the meetings of a negotiating team (composed of the mayor, the city manager’s designee, and a person designated by the sports authority) that was created by a city commission to negotiate with a sports organization on behalf of the city. even though the resolution creating the team provided that the negotiations were subject to ratification and approval by the city commission, the team was authorized to do more than mere fact-finding in that it would be “participating in the decision-making process by accepting some options while rejecting others for presentment of the final negotiations to the city commission.” Id.
moreover, the “fact-finding exception” applies only to advisory committees and not to boards that have “ultimate decision-making governmental authority.” Finch v. Seminole County School Board, 995 so. 2d 1068, 1071-1072 (Fla. 5th DCa 2008). in Finch, the court held that the “fact-finding exception” did not apply to a school board as the ultimate decision-making body; thus the board could not take a fact-finding bus tour without complying with the sunshine law even though school board members were separated from each other by several rows of seats, did not discuss their preferences or opinions, and no vote was taken during the trip.