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..."

978

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.

81

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).

86

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."

1988

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.

7 238 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.

96 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...

90

02

The Court then reinforced the Williams 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:

98

"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..." 98

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. After lauding its accomplishments the editorial continued:

101

"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." 102

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.10 "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.

1 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.

94 Id.

95 Id.

96 Id.

" Id.

95 Id.

Id.

100 Gainesville Sun, February 3, 1971. pg. 4.

101 Id. at pg. 8.

102 Id.

103 Gainsville Sun, February 8, 1971. pg. 15.

Governor Askew was required to throw open an "invitation only" dinner meeting between himself, the Cabinet and Capital Center architects, on March 10, 1971, because of the Sunshine Law.104

On March 3, 1971 Attorney General Shevin rendered an opinion that held inter alia that the press and public had the right to listen in on telephone conversations between public officials.105

Responding to this, H. G. "Buddy" Davis, the Pulitzer Prize winning journalist who wrote the "Statehouse Orgy" editorial in the Gainesville Sun, was quoted as saying: "When a responsible guy goes around and says two officials have to invite reporters to listen to a phone conversation-that's ridiculous." 100

"Loving" the law to death, Davis said, "would make the law so obnoxious and so impossible, and so unworkable, it'll have to be changed or repealed. It's just that simple.'

99 107

Attorney General Shevin in the telephone opinion had also ruled that the phrase "at all times" prevents a board from holding a secret ballot, though the vote would be replayed at a subsequent public meeting. 108 If members of the press and the public were deliberately excluded from the public offices furnished for the conduct of the public's business, there would then be a Sunshine Law violation in the opinion of the Attorney General.100

Then perhaps Mr. Davis overstated the impact of the "telephone" ruling. Relying on Williams and Doran, certain telephone conversations which are part of the deliberative process which would ultimately lead to recorded action at a formal public meeting could not be conducted covertly.10

In a March 6, 1971 interview with the Gainesville Sun's Capital Bureau correspondent, the author of the Sunshine Law, J. Emory Cross, mused that the public-meeting law has suffered "telling damage from recent Court and Attorney General opinions." ." "What they do is make it absurd," categorizing Shevin's telephone ruling as "way out" absurd." The other major snafu according to Cross is the Supreme Court ruling that the law applies, even if there is less than a quorum present. "Cross said he thought that was clearly put, indicating he did not intend to prevent a couple of public officials meeting for dinner or talking on the phone for fear of violating the law." 113

Perhaps hardest hit by the Sunshine Law are the county officials, because they work on problems requiring decisions daily. What happens when several, say two, county commissioners meet with the public utilities director, or plan board member; or if they sit down and talk over a cup of coffee; are they taking "official action?" Must they give prior notice?

Most city or county commissioners polled by the Melbourne Times in 1971 felt that it was not a violation, and if it was, then the law was too extreme." 114 If I had a choice of the Sunshine Law or nothing, I'd take the Sunshine Law." 115

Refining the law

In an effort to clarify an earlier opinion the Attorney General of Florida opined on March 31, 1971 that if a school board voted for a new superintendent by code number rather than by name there would be no per se violation of the law, provided that all the facts available to the board would also be available to the public and press, and that all such votes or other actions of the board be open to the press and public."

116

On the question of the validity or invalidity of action taken by a public body in violation of the law, it was Shevin's opinion that it is not void ab initio, but rather voidable, and may be corrected by subsequent re-enactment nunc pro tunc.117

104 Id.

105 Tampa Tribune, February 8, 1971. It should be noted that Senator Askew voted for the Cross bill.

108 Id. at 4. The opinion actually uses the words "purposely secret." There is no invitation requirement. See, Op. Atty, Gen. 071-32 (March 1971).

109 Id.

110 Id.

111 Gainesville Sun, March 6, 1971. pg. 6.

112 Id.

113 Id.

114 Melbourne Times, March 19, 1971.

115 Id. Commissioner Steele of Brevard County.

116 Op. Atty. Gen. 071-58. (March 1971).

117 Id. The opinion contains a warning against using the nunc pro tunc reenactment to avoid the effect of the law.

In the 1971 Legislative session several bills were successfully introduced to modify the Sunshine Law. One bill listed six exceptions to be written into the law that would have virtually repealed open-meeting requirements. The amendment provided that quasi-judicial bodies, matters of national security, land transactions, personnel problems, conferences with attorneys, and other "sensitive matters" would be allowed behind closed doors.119

Another defeated amendment would have provided for closed door sessions to deal with "matters which, if discussed in public, would be likely to benefit a party whose interests are adverse to those of the general community." 190

In testimony before the House Governmental Organization and Efficiency Committee, Attorney General Shevin urged defeat of the above bills charging public officials: "Give politicians an excuse to violate the government-in-thesunshine law, and that's what they will do." 1"

"If you give these exemptions 1-2-3-4, they will do more than 1-2-3-4 when they get behind closed doors. I think it would be a step backwards to amend this law." ." 122 The law, according to the Attorney General, was not hard to interpret as long as the basic point, that elected officials are to be prohibited from deliberately trying to exclude press and public, is kept in mind at all times.

Members of the Florida Society of Newspaper Editors felt that politicians were exaggerating when they said newsmen wanted to listen in on telephone conversations. "Our concern is with closed meetings or hideaway meetings by a quorum or committee with the authority to act." 128

On May 5, 1971, four years after the bill passed into law, the first convictions under the Sunshine Law were recorded.124 The Mayor and Vice-Mayor of Fort Lauderdale were convicted of holding "many secret" meetings, including one discussing the future dismissal of the town's police chief. This particular secret meeting was held in the back of a town police cruiser.

The Florida Sunshine Law does not apply to federal agencies operating in Florida. According to an Attorney general's opinion, the Sunshine Law only applies to state agencies. The question may again be brought up, because the agency in this particular case had open meeting rules promulgated by the Director of the program, under the 1964 Economic Opportunity Act. For most purposes, section 1.01 Florida Statutes, defining "political subdivision," is applicable to determine the Sunshine Law's status and effect.

In his effort to bring the most sunshine possible to bear on public meetings, the Attorney General, in late October of 1971, announced that notice of an official meeting should be given when official matters are to be considered and discussed, even though the public body's membership is less than a quorum.'

126

On November 11, 1971, the father of the bill announced that it was never the intention of the statute to prohibit governmental bodies from appointing committees to deal with sensitive personnel matters, "as long as final action was taken publicly." There is no reason why "committees of less than quorums ought not to be able to handle the gory details without throwing it all in the open."

"128

129

Cross welcomed the Attorney General's Opinion requiring prior notice. Cross had hoped to introduce an amendment to the law to achieve that desired goal, "it was never my intention just to let in the press and call it a public meeting." The former state senator also was heard to say that the Canney decision's "quasijudicial" rule would "be a tremendous blow to the Sunshine Law because every time a board wants to close a meeting it can invoke the quasijudicial ruling." In what may be the first interpretation loosening the Sunshine Law's stringent requirements. the Attorney General ruled on November 11. 1971 that members of a public body may jointly inspect the physical characteristics of a matter upon which they are to take subsequent official action.11 Shevin ruled that even though

the public is not invited to attend or participate, it is not a secret meeting which is outlawed by the Sunshine Law. The prcss and staff were present, which minimizes the posibility of secret action.

Is the public's receiving adequate advance notice no longer a prerequisite? Does presence of media representatives vitiate the secret meeting aspects of this particular excursion, or has it come to mean that the media may stand in place of the public to preserve the open meeting status of a public body's function?

One month later Shevin ruled that a purely advisory body is not within the purview of the law, but a body having statutory powers and duties that are governmental in nature should hold its meetings in the sunshine even though it functions only in an advisory capacity.132

An opinion reaching even further was published in January, 1972, holding that two or more legislators may not hold a secret meeting with the intention of excluding the press and public, so as to decide upon a course of action pertaining to legislative matters." 133 According to the opinion there would appear to be no violation if it were in full view, without prior arrangement, where the press or public could have access.

One month later, Senate President Jerry Thomas announced that the law does not apply to the Senate, but only to boards or agencies, and therefore legislators could ignore the previously noted Attorney General's Opinion."

A NEW EXCEPTION IS CREATED: APPENDIX I

184

The latest chapter in the Sunshine Law's turbulent history concerns collective bargaining of public employees and the effect of the Sunshine Law. In Bassett v. Braddock decided on May 17, 1972, the Florida Supreme Court held that labor negotiators employed by a school board in preliminary or tentative teacher contract negotiations could negotiate outside of public meetings without violating the Sunshine Law, and that these negotiators would be instructed or consulted by the school board privately.

The Court felt constrained to "merely affirm the lower court's action," so as not to "deny the public employees' rights to bargain collectively as guaranteed" by the Florida Constitution. It could be well argued that the Court was with reservation "judicially implementing" the Constitutional collective bargaining provision in the absence of statutory guidance, without regard to the means employed.

The appellee school board's argument was simply that the statute's "intensity of the sunrays . . . could cause a damaging case of sunburn to these employees or to the public which elected the board."

99 187

The Court sustained the lower court's finding of fact that "meaningful collective bargaining would be destroyed if full publicity were accorded at each step of negotiations." 188

The public's negotiators. the Court went on, must not face the "Goliath" (employee negotiators) with all its cards exposed. There must be "an equal position" afforded the school board in relation to those with whom it must deal. "The public should not suffer a handicap at the expense of a purist view or open public meetings, so long as the ultimate debate and decisions are public and the official acts' and 'formal action' specified by the statute are taken in open public meetings.'

99 139

In this particular instance the negotiator could not bind the Board, and in fact his recommendations were later modified by the Board in open public meetings. Whether Attorney General Shevin pointed to his earlier opinion on the subject in the State's amicus curiae brief is unknown at this time."

140

The Court clarifies its earlier position by shifting the emphasis from "matters on which foreseeable actions will be taken by the Board" to "official actions" taken at "meetings." Classifying the labor negotiations as preliminary delibera

132 Op. Atty. Gen. 071-380 (December 1971).

133 Op. Atty. Gen. 072-16 (January 1972).

134 Gainesville Sun, February 9, 1972. Jerry Thomas co-sponsored the bill in 1967. He felt that if he was correct then the law should be amended to include legislators, "but only if it strictly spelled out what specific functions were excluded."

135 262 So. 2d 425 (Fla. 1972).

138 Id. at 476.

137 Jd.

138 Id.

139 Id. at 427.

140 Ap. Atty. Gen. 071-32A (July 1971).