Last night, City Attorney RONALD WAYNE BROWN announced that he was going to meet with each City Commissioner to impart information about Donna Wendler's Bert J. Harris Private Property Protection Act lawsuit without sharing it with the Wendlers (or the public). This may be illegal and could render any action taken by Commissioners void ab initio.
Don't take my word for it. Read the Florida Attorney General's Government-in-the-Sunshine Manual (2010 Edition), republished by the First Amendment Foundation, at pp. 29-30 (Use of non-members as liaisons between board members). The AG cites 32 years of court precedents and AG's opinions for the proposition that intermediaries violates Sunshine. Of course, local governments here in St. Augustine and St. Johns County have done it for a long time.
Here is what the AG says:
d. 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. See AGO 74-47 (city manager is not a member of the city council and thus, may meet with individual council members; however, the manager may not act as a liaison for board members by circulating information and thoughts of individual council members). Compare AGO 89-39 (aides to county commissioners would not be subject to the Sunshine Law unless they have been delegated decision-making functions outside of the ambit of normal staff functions, are acting as liaisons between board members, or are acting in place of the board or its members at their direction).
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 s. 286.011, F.S., 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 s. 286.011, F.S.
Similarly, in Sentinel Communications Company v. School Board of Osceola Count, No. CI920045 (Fla. 9th Cir. Ct. April 3, 1992), the court found that a series of private meetings between a school superintendent and individual school board members which were scheduled by the superintendent to present and consider staff recommendations concerning the administrative structure of the school system and to privately address any objections or concerns that the board might have, should have been held in the sunshine. The court said that its decision should not be construed to prohibit individual board members from meeting privately with staff or the superintendent for informational purposes or on an ad hoc basis. However, "[i]t shall be construed to prohibit the scheduling of a series of such meetings which concern a specific agenda." Thus, the court enjoined the board and its superintendent "from holding any further closed door meetings to formulate Board policy, discuss matters where Board action is contemplated, or otherwise conduct the public's business."
In Citizens for a Better Royal Palm Beach, Inc. v. Village of Royal Palm Beach, No. CL 9114417 AA (Fla. 15th Cir. Ct. May 14, 1992), the court invalidated a contract for the sale of municipal property when it determined that after the proposal to sell the property which had been discussed and approved at a public meeting collapsed, the city manager met individually with council members and from those discussions the property was sold to another group. The circuit court found that these meetings resulted in a substantial change in the terms of sale and that the execution of the contract, therefore, violated the Sunshine Law.
Thus, a city manager should refrain from asking each commissioner to state his or her position on a specific matter which will foreseeably be considered by the commission at a public meeting in order to provide the information to the members of the commission. AGO 89-23. See also AGO 75-59 (the spirit, if not the letter, of the Sunshine Law requires official decisions to be made in public after a full discussion by the board members; thus, the board's director should refrain from calling each member of the board separately and asking each member to state his or her position on a matter which will foreseeably be presented for consideration to the entire board in open session). Cf. AGO 81-42 (the fact that a city council member has expressed his or her views or voting intent on an upcoming matter to a news reporter prior to the scheduled public meeting does not violate the Sunshine Law so long as the reporter is not being used by the member as an intermediary in order to circumvent the requirements of s. 286.011, F.S.).
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 board was not subject to the Sunshine Law. Accord Inf. Op. to Biasco, July 2, 1997 (administrative officers or staff who serve public boards should not poll board members on issues which will foreseeably come before the board in order to avoid being used as a liaison between board members, although an administrative officer is not precluded from contacting individual board members for their views on a matter when the officer, and not the board, has been vested with the authority to take action).
Likewise, former St. Augustine City Attorney James Patrick Wilson, now the City Attorney for West Melbourne, Florida, advised his clients on December 28, 2009:
2. Can the Sunshine Law apply to a single individual or a situation where two members
are not actually present?
While ordinarily Florida Statutes 286.011 is applicable to two or more members of
the same board, certain factual situations have arisen where the presence of two
individuals may not always be necessary in order for a violation of law to occur.
Courts have expressed a view that the Statute should be construed so as to frustrate
all evasive devices.
In one case, the use of memoranda to conduct city business was held to be subject to
the Sunshine law. A member of a city commission initiated a memorandum
reflecting his thoughts on a given subject, and appended to this memo a writing space
for other members to concur or disapprove in the position taken. The originator of
the memorandum then placed it in a receptacle at the offices of the public body. It
was determined that this was a violation of the Sunshine law and constituted a
meeting between two or more members.
The use of non-members as liaisons between board members is a violation of the
Sunshine law.
http://westmelbourne.org/archives/64/Charter0104.pdf
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