85

On appeal, the appellants contended that “injunctive relief is available to the members of the public to enjoin and prohibit the Board of Public Instruction of Pinellas County, Florida, from holding meetings at which official acts are to be taken if the public is to be excluded." Appellants also urged that whenever the board met "informally" or for any purposes relating to the operation of the schools and excluded the public, the board was violating the statute and should likewise be enjoined from holding such secret meetings.

The court found, as a matter of law, that since the act relates to ". . . all meetings... at which official acts are to be taken. . .", it is obvious the legislature intended to extend application of the "open meeting" concept so as to bind every board or commission of the state, or of any county or political subdivision over which it has dominion or control."

The Court felt that the Government in the Sunshine Law was a "declaration of public policy, the frustration of which constituted” irreparable injury to the public interest. To effectuate this policy, it was the entire decisionmaking process that the legislature intended to affect by the enactment of the statute. "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 concern." Every step in the process culminating in a decision, is an indispensable requisite to "formal action"; it therefore follows that each such step constitutes an "official act," an indispensable requisite to "formal action," within the meaning of the act.

1188

In interpreting the intent of the legislature, the Court came to the conclusion that "official acts" cannot be limited to "formal action." The formal act of voting on an issue, or the formal execution of an official document, easily ascertainable from the record, encompassed only a fraction of the real need for the act's creation. "It is how and why the officials decided to so act which interests the public."""... the legislature could only have meant to include therein the acts of deliberation, díscussion, and deciding occurring prior and leading up to the affimative "formal action" which renders official the final decisions of the governing bodies." "1

The Court then went on to deal with the questiton of exceptions to the open meeting mandate of the act; specifically, where personnel matters were involved. As a matter of law the court held that, “any rights or privileges (here personnel matters)... third parties might have must be found elsewhere," and the agencies, etc. governed by the sunshine law could not rely on the rights and privileges of these third parties to disregard and circumvent the provisions of the act.12

In keeping with the notion that personnel matters were not legally protected, the Court left open the door for future "real" privileges. "The attorney-client relationship is a unique one under the law. Within this relationship both the attorney and the client enjoy rights and privileges independent of each other." Clearly, the area of the attorney-client relationship which is excepted from the statute is that which would conflict with the ethical obligations of the profession. "It is our conclusion, therefore, that the legislature is fully aware of its constitutional limitations and did not intend . . . to place attorneys in a position of having no alternative but to violate the Canons of Ethics."" All other consultations between the public agency and its counsel are precluded, "since the public has waived any privilege of confidentiality it may have by virtue of such relationship."

19 45

35 Id. at 472. Compare these contentions with the allegations in the complaint in Berns, supra. See also, appellant's brief at 10.

36 222 So. 2d at 473. The Court then referred to Walling v. Carlton, 190 Fla. 97, 147 So. 236 (1933) where "official act" was defined as: "any act done by the officer in his official capacity under color and by virtue of his office."

37222 So. 2d at 473.

28 Id. See also, appellant's brief at 25-6.

Id.

42 Id. The Court stated that the public interest may not be served by closed door personnel hearings. "The public has chosen to deny any privilege or discretion in appellee and similar governmental bodies to conduct closed meetings."

43 222 So. 2d at 475. See Florida Bar v. Massfeller, 170 So. 2d 834 (Fla. 1965).

44 222 So. 2d at 476.

45 Id. The Court later receded from this position in Bassett v. Braddock, 262 So. 2d 425 (Fla. 1972).

FORESEEABLE ACTION TEST: APPENDIX D

46

In Board of Public Instruction of Broward County v. Doran 4 the Florida Supreme Court held that the statute was sufficiently precise and afforded adequate standards to afford due process to those charged with violations of the law. As per the previous cases the plaintiffs alleged violations of law, seeking an injunction to prevent such future activity.

In its answer, the defendant school board admitted that members of the board meet for an informal conference at which no official acts were to be taken or were taken, and at which time the public was excluded; thereafter the board would hold "open," public meetings. The affidavits of the several parties indicated that there were several occasions when the board retired to discuss matters in private, though no formal action was taken."

In determining that the statutory language provided adequate guidelines the court adopted a "foreseeable action" test. "The obvious intent was to cover any gathering of the members where the members deal with some matter on which foreseeable action will be taken by the board." 48

40

In short, the statutory language conveyed a definite warning as to proscribed conduct when measured by common understanding or practices." "Statutes enacted for the public benefit should be interpreted most favorably to the public." "One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their good intentions, these specified boards and commisions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made." 50

51

In referring to the law as clarified by the Court, one official described it as "that idiot decision." "1 "If it doesn't make liars out of us, it makes connivers out of us." 5

52

In retrospect, compliance at first was slow and officials in some areas seemed convinced the law implicitly contained certain exemptions.

53

The 1969 decision in Times Publishing Co. v. Williams, supra,63 was a significant step in developing an expansive interpretation. Subsequent rulings removed all clouds as to the full impact of the law. A survey by the Associated Press revealed that dramatic changes in the management of government had begun. Among the more striking examples.

55

(1) The Orange County Commission no longer bodily removes reporters when they are not wanted;

(2) The Broward County School Board (the defendant in the Doran case) acquiesced;'

57

(3) The State Cabinet's longstanding practice of breakfast at the Duval Hotel and coffee in the governor's office prior to the regular meeting has collapsed; (4) The State Board of Regents' frequently-invoked rule of excluding reporters when selection of a University president has come up has been ended;

50

(5) The Miami Beach City Council, famous for its meetings in the back room of Mendelson's Meat Market, is now conducting business in the open;

60

40 224 So. 2d 693 (Fla. 1969), reh. denied, July 29, 1969. In the rehearing petition, school board attorney Shanleweiler contended that the court's decision "seems to be broader than the express language of the act itself", and that "it is difficult to conceive why the narrower sunshine law is given the broadest interpretation by the court." See, Tampa Tribune, July 30, 1969.

47 224 So. 2d at 696. "Items were passed by letter and number and it was impossible for the public to understand the items being considered."

48 Id. at 698.

49 The Court did imply that the statute does require a charge and proof of scienter even though it is not specified as a specific element of the offense.

50 Id. at 699. The injunction was accordingly affirmed.

51 Tampa Tribune, August 3, 1969, referring to the Williams decision.

52 Id. Paul Pickett, then Orange County Commission Chairman.

53 See note 33.

54 But see Bassett v. Braddock, 262 So. 2d 425 (Fla. 1972) abruptly reversing the snowballing trend established in these cases.

55 Tampa Tribune, August 3, 1969.

58 Id. Chairman Pickett was not happy about the Supreme Court Opinion, when informed by the County Attorney.

57 Id. Whenever we have a quorum present we shall be open to the press and public: Supt. Ralph Staten.

58 Id. "I believe that it should be the policy of the governor and all Cabinet members to take care that at such times as they are together, the press and public should have complete access to the meetings . . ." Letter to Governor Kirk, by Attorney General Earl Faircloth.

Go Id.

(6) The Leon County School Board no longer holds secret sessions while discussing integration, and choice of a consultant;

61

(7) The Lee County School Board no longer closes its doors in attempting to deal with recurring teacher disputes; "2 and

62

(8) The St. Petersburg City Council has abandoned its long famous "executive session," partly because of the Supreme Court, partly because the three new members elected had all campaigned against the practice.63

The radical changes brought by the Sunshine Law seemed to catch many officials in a state of shock and disbelief.

Two schemes designed to circumvent the effects of the newly vitalized law were quickly instituted: (1) two-party meetings and (2) proliferating memoranda.“ The two-party meeting operated thus: The head of the board would meet with other members of the board, one at a time, on a touchy subject until some consensus had been arrived at, or at least until all the members of the board had been briefed sufficiently on its background, so that no debate need occur at a formal meeting. Utilization of memos, one after the other between commissioners or board members would eventually "type out" an issue.

Perhaps the greatest challenge to the law came in the form of threatened libel suits for damaging and libeling discharged public employees." One Commission Chairman voiced his intent to seek legislative changes in 1970 to exempt personnel, legal matters, and condemnation proceedings from the law's purview."

THE QUASI-JUDICIAL EXCEPTION: APPENDIX E

68

On January 27, 1970, the First District Court of Appeal admitted an exception to the Government in the Sunshine Law. In Canney v. Bd. of Public Instruction of Alachua County," petitioner sought review of the board's action in suspending him from school, for failing to comply with a hair styling regulation.

While the main thrust of the opinion was concerned with the fulfillment of due process requirements in administrative proceedings, and the validity of a regulation pursuant to legislative authority in the absence of some judicial determination, the question of Government in the Sunshine arose in connection with the board's recess to reach a decision in the case.70

The Court held that the School Board was acting "in a quasi-judicial capacity," and the conference held by it was privileged and did not fall within the purview of the (Sunshine) statute."

71

For purposes of controlling authority, one district is not bound by the decision of a sister district, and therein lies the basis of conflict certiorari to the Florida Supreme Court," The District Court of Appeal for the First District observed that notwithstanding the Second District's dicta to the effect that quasi-judicial functions were not excepted by the Legislature from the application of said statute," "the Legislature is not empowered, by statute or otherwise, to prescribe the conduct of the internal government of the judicial branch." 74

The rationale used to reach this result was ambiguous at best. The Court at the outset established that the Legislature may create and vest county school boards with quasi-judicial functions; however, once so endowed with judicial" characteristics, the Legislature's prerogatives ceased to exist."

61 Id.

2 Id.

Id. One of the campaigning councilwomen said that, "It was my reason for running, and I feel the Sunshine Law has given us a little bit of backbone."

Id. The two-party meeting was popularized by Orange County Commission Chairman Pickett. See note 60 and accompanying text. Pickett conceded that he may well be violating the intent if not the letter of the Court's order but he refused to put himself in a position of discussing charges against a county employee in public if they were unsubstantiated. See Op. Atty. Gen. 071-032 (1971). Two Broward County School Board employees resigned and threatened suit because of a critical remark made by a member of the Board.

Tampa Tribune, August 3, 1969.

88 Canney v. Board of Public Instruction of Alachua County, 231 So. 2d 34 (1 D.C.A. Fla. 1970) reh. denied, January 27, 1970.

Id.

70 Id. at 39.

" Id.

72 Fla. Const. art. V, § 4 (2) (1968).

Time Publishing Company v. Williams, 222 So. 2d 470, 474 (2d D.C.A. Fla. 1969), footnote 2.

Canney v. Board of Public Instruction of Alachua County, 231 So. 2d 34 (1 D.C.A. Fla. 1970).

75 The abrupt shift in terminology from quasi-judicial functions to judicial characteristics, is unexplained as well as unwarranted. It is this slip in terminological consistency that leads to the eventual result.

Canney v. Board of Public Instruction of Alachua County, supra.

80-459-77-4

Analyzing the school board's recess to the "conference room of the Supreme court of Florida" or the "petit jury room" when the deliberations are taking place," the Court held that "neither the public nor the press has any more right to enter into the judicial deliberations of the members of a county school board of public instruction..."' 78

RENEWED NOTICE UNNECESSARY: APPENDIX F

In Shaughnessy v. Metropolitan Dade County," the Third District Court of Appeal held that a continued matter may be disposed of at a later specified meeting without the necessity of repeating the notice or public hearing requirements of the Sunshine Law.80

The Zoning Appeals Board of Dade County, after notice and public hearing, deadlocked over whether to grant an application for a special use permit, and set the matter over to a later specified date, and acted thereon without further notice or public hearing. When the county commissioner ratified the Board's action, the appellant commenced this action.

The appellant's allegations specified that the Zoning Appeals Board failed to abide by the provisions of the Sunshine Law, in that it failed to give the required public notice about the meeting wherein the second vote was to be taken.*

82

The per curiam opinion held that "all official action of the Board as it appears from this record was taken in open public meeting," and did not thus violate either the provisions of the law or those appellate decisions interpreting the

same.

83

BERNS REVISITED: APPENDIX G

84

The following year the Berns case was reviewed by the Florida Supreme Court, sub nom, City of Miami Beach v. Berns, The Court held on rehearing that where public officials meet at a time and place to avoid being seen or heard by the public to transact or agree to transact public business at a future time in a certain manner, they violate the Sunshine Law, regardless of the formality or lack of formality the meeting takes.

Section 165.22, Florida Statutes provides in part that:

All meetings of any city or town council or board of aldermen of any city or town shall be held open to the public... (emphasis added).

88

In Turk v. Richard, a 1950 case, the Court held that the open meeting requirement only applied when a municipal council was assembled in a formal session attended by a quorum.

The crux of the Court's rationale in the Berns case, prohibiting any meeting whether or not a quorum is present, rested on the language the legislature chose not to follow when drafting section 286.011, Florida Statutes "... (I)f the intent of the Legislature had been to include only formal assemblages for the transaction of official business," it would not have been necessary to "include a provision declaring certain meetings as public meetings.'

99 88

89

The Court opined that in enacting this piece of legislation a "general revision of the law applicable to open meetings of public agencies" was intended. Therefore, in such a situation, whether or not this right to attend meetings existed at common-law, or whether or not the two statutes are harmonized, "we are

" Id. 78 Id. It is this wording that lends credence to the belief that the decision is limited to school boards dealing with students. Bassett, infra, broadened the interpretation in this reporter's opinion. I feel that the courts are carving out portions of a school board's activities because of the delicate nature of their work and the potential harm facing Florida's young, impressionable school children.

79 238 So. 2d 466 (3rd D.C.A. Fla. 1970), rehearing denied, Sept. 30, 1970.

80 The first vote resulted in a 2-2 deadlock, and the second vote, in open hearing approved the application 2-0, the balance of the quorum abstaining in accordance with the Board's rules. In accord with its own rules and general principles of administrative law, the Board continued the matter without further notice or public hearing. See, 2 Am. Jour. 2d, Admin. Law § 362.

81 238 So. 2d at 467.

821 d.

83 Id. The Court cited all the cases discussed to this point.

84 245 So. 2d 38 (Fla. 1970), on rehearing, original opinion withdrawn. See, Tampa Tribune, October 8, 1970. The District Court of Appeal certified the case to the Florida Supreme Court as a question of great public interest.

85 Id.

80 47 So. 2d 543 (Fla. 1950).

87 245 So. 2d at 40.

88 Id. See also Board of Public Instruction v. Doran, 224 So. 2d 693, 698 (Fla. 1969), supra.

89 245 So. at 40.

persuaded to apply the rule that a statute enacted for the public benefit should be construed liberally in favor of the public..."

The Court then reinforced the Williams 91 and Doran 2 principles that: (1) Legislature intended to expand the open meeting concept to bind every political subdivision or agency over which it has dominion; (2) the obvious intent was to cover gatherings where the individuals will deal with matters on which foreseeable action may be taken at a later time; and (3) the proscriptive conduct [(1) & (2)] is not to be circumvented by matters that are privileged, pertaining to the duties and responsibilities of subject bodies."

A secret meeting, the Court said, occurs when officials meet so as to avoid being seen or heard by the public." Whether the meeting is formal or not, such secretive action violates the Sunshine Law. "It is the law's intent that any meeting, relating to any matter on which foreseeable action will be taken, occur openly and publicly.

95

The opinion contains several warnings; it warns those who are in doubt whether they are convening in violation of the law to leave the meeting forthwith, and it warns those who hope to push the statute beyond debatable limits that the majority of the Court will meet future problems on a case by case basis as they arise." The Court stated:

96

"The Legislature did not intend to muzzle lawmakers and administrative boards to an unreasonable degree. It would be contrary to reason and violate the right of free speech to construe the law to prohibit any discussion whatever by public offiicals between meetings. The practice of discussing politics and government is part of our American heritage ..

Thus if there is no intentional secrecy involved, legislators can meet and discuss their business without worry. "It is only the evil of closed door operation of government without permitting public scrutiny and participation" that the law seeks to prohibit."

A joint session of the City Commission of Gainesville and the Alachua County Commission at a local inn was scuttled on February 3, 1971, in deference to the Sunshine Law.100 The same day the Gainesville Sun ran an editorial entitled "Statehouse Orgy;" its focus was the Sunshine Law.101 After lauding its accomplishments the editorial continued:

"But we are disturbed by recent developments. Not only has Secretary of State Stone removed the door from his office but . . . an Associated Press . . reporter . . . (has) . . . interrupted a corporate income tax strategy session between Governor Askew and other legislators . . . (I)t appears (that) some of these fellows are trying to love the Sunshine Law to death. What we see is an informational orgy, put on foot by officialdom and naively joined by newsmen, to make the Sunshine Law unworkable." 103

THE TELEPHONE RULING AND "STATEHOUSE ORGY”—A REACTION: APPENDIX H

I would not call it a conspiracy, but clearly a good many politicians in Tallahassee were hoping that the news media and the people would prove the law unworkable, to provide ripe justification for repealing the same. The editorial was timely warning of a growing movement.

Just five days later, Governor Askew called for moderation in the interpretation and application of the Sunshine Law. The Governor was quoted as saying that certain "difficult areas" exist in government which do not lend themselves to coverage by newsmen, citing legislative strategy meetings as an example.108 "The question is can you not talk to anyone about the business of the state until and unless the representatives of the press hear your every word?"

Id.

Times Publishing Co. v. Williams, 222 So. 2d 470 (2d D.C.A. Fla. 1969). "Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969). 245 So. 2d at 41.

Id.

95 Id.

96 Id. Id. 95 Id. " Id.