Update: April 21, 2025: The proposal to outsource the St. Johns County Attorney job should be reversed, by way of a Motion to Reconsider at the April 15, 2025 St. Johns County Commission meeting. Who among us supports the proposed outsourcing of the St. Johns County Attorney job to a politically-connected dodgy law firm that refuses to list its corporate client? "Let justice be done though the heavens fall." I have requested that the St. Johns Clerk of Courts and Comptroller and County Inspector General investigate the proposed County Attorney contract. See below:
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d. Delegation of authority to individual to act on behalf of the board
“The Sunshine Law does not provide for any ‘government by delegation’ exception; a
public body cannot escape the application of the Sunshine Law by undertaking to delegate the
conduct of public business through an alter ego.” IDS Properties, Inc. v. Town of Palm Beach, 279 So. 2d 353, 359 (Fla. 4th DCA 1973), certified question answered sub nom., Town of Palm Beach. v. Gradison, 296 So. 2d 473 (Fla. 1974). See also News-Press Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 547-548 (Fla. 2d DCA 1982) (when public officials delegate de facto authority to act on their behalf in the formulation, preparation, and promulgation of plans on which foreseeable action will be taken by those public officials, those delegated that authority stand in the shoes of such public officials insofar as the Sunshine Law is concerned).
In News-Press Publishing Company v. Lee County, 570 So. 2d 1325 (Fla. 2d DCA 1990), a
newspaper challenged the trial court’s decision to require the parties (two cities and a county) to
participate in mediation and to each appoint a representative “with full authority to bind them.”
The judge then amended the order to allow the parties to limit the representatives’ authority so
that no final settlement decisions could be made during the mediation conference. On appeal,
the district court concluded that the mediation’s narrow scope did not give rise to a substantial
delegation affecting the board’s decision-making function so as to require the mediation to be
open to the public. 570 So. 2d at 1327. And see Broward County v. Conner, 660 So. 2d 288,
290 (Fla. 4th DCA 1995), review denied, 669 So. 2d 250 (Fla. 1996) (since Sunshine Law
provides that actions of a public board are not valid unless they are made at an open public
meeting, a county’s attorneys would not be authorized to enter into a settlement agreement
on the commission’s behalf “without formal action by the county commission at a meeting as
required by the statute”). Compare Lee County v. Pierpont, 693 So. 2d 994 (Fla. 2d DCA 1997),
affirmed, 710 So. 2d 958 (Fla. 1998) (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).Moreover, the Attorney General’s Office has advised that a single
member of a board who has been delegated the authority to negotiate the terms of a lease on
behalf of the board “is subject to the Sunshine Law and, therefore, cannot negotiate for such a
lease in secret.” AGO 74-294. Accord AGO 84-54. Similarly, when an individual member of a
public board, or a board member and the executive director of the board, conducts a hearing or
investigatory proceeding on behalf of the entire board, the hearing or proceeding must be held
in the sunshine. AGOs 75-41 and 74-84. And see AGO 10-15 (special magistrate subject to the
Sunshine Law when exercising the delegated decision-making authority of the value adjustment
board).
The Attorney General’s Office has advised that a single member of a board who has been
delegated the authority to negotiate the terms of a lease on behalf of the board “is subject to the
Sunshine Law and, therefore, cannot negotiate for such a lease in secret.” AGO 74-294. Accord
AGO 84-54. Similarly, when an individual member of a public board, or a board member and
the executive director of the board, conducts a hearing or investigatory proceeding on behalf
of the entire board, the hearing or proceeding must be held in the sunshine. AGOs 75-41 and
74-84. And see AGO 10-15 (special magistrate subject to the Sunshine Law when exercising the delegated decision-making authority of the value adjustment board).
However, if the board member has been authorized only to gather information or function
as a fact-finder, the Attorney General’s Office has concluded that the Sunshine Law does not
apply. See e.g. AGOs 95-06, 93-78, and 90-17 (if board member is authorized only to explore
various contract proposals, 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). Cf. State, Department of Management Services v. Lewis, 653 So. 2d 467 (Fla.
1st DCA 1995) (issuance of an order of reconsideration by a board chair does not violate the
Sunshine Law where the purpose of the order is to provide notice of a hearing to the parties and allow them an opportunity to provide argument on the issue).
More recently, the First District Court of Appeal ruled that a statute (s. 627.091[6], F.S.),
requiring a “committee” of a national insurance rating organization to comply with the Sunshine Law when meeting to discuss the need to alter Florida rates, did not apply to an actuary who performed this function instead of a committee. National Council on Compensation Insurance v. Fee, 219 So. 3d 172, 179 (Fla. 1st DCA 2017). In Fee, the court noted that the term “committee” has been defined as a “subordinate group,” not a single person, and that “the multi-person
concept of the term ‘committee’ further finds support in well-established precedent construing
the Sunshine Law.”
Moreover, 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 s. 286.011, F.S. See City
of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989) (since the mayor was responsible under the city charter for disciplining city employees and since the mayor was not a board or commission and was not acting for a board, meetings between the mayor and a city employee concerning the employee’s duties were not subject to s. 286.011, F.S.). Cf. AGO 13-14 (where contract terms regarding the police chief’s employment have been discussed and approved at a public city commission meeting, Sunshine Law does not require that the consistent written employment contract drafted by the town attorney as directed by the commission be subsequently presented to and approved at another commission meeting).
1 comment:
You'll know if they have a conflict of interest when that becomes apparent through his actions. And from the looks of all the bogus claims and intentions to violate his privacy rights... that's enough reason for him to work with BGK throughout his term as county attorney.
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