Imágenes de páginas
PDF
EPUB

tions which "may never result in any action taken," the Court neatly comes full circle to conclude that the Sunshine Law does not apply "where there is no relationship at all to any meeting at which any foreseeable action is contemplated." "" In concluding its opinion the Court felt that common sense and fair play required the Board to be allowed to privately confer with its negotiator, because the public employees could do so at any time. The Court apparently forgot that public employees do not have the right to strike under the 1968 constitution.

In a stinging dissent, Justice Adkins declared: "Thus far the government in the sunshine law has withstood various attacks where a few misguided local boards and agencies have attempted to seek a means by which they could circumvent the law so as to resume secret meetings."

142

"The right of the public to be present, to be heard, and to participate should not be circumvented by having secret meetings of various committees appointed by the Board and vested with authority to make recommendations or suggestions to the Board concerning a matter on which foreseeable action may be taken." 145

CONCLUSION-THE FUTURE-THE AUTHOR

Perhaps more than anything else this history of the Sunshine Law has indicated several of the problems, potential solutions, opinions and reactions to the Government in the Sunshine Law. I have deliberately waited to this point to relate my own interview with the law's author, Emory Cross.1

Mr. Cross's major concern is two fold: (1) The debilitating effect of the "quasijudicial" exception; and (2) "Shevin's absurd ruling" that the law applies when two or more public officials congregate. "The quasi-judicial ruling in Canney is like Lincoln's old saying: calling a dog's tail a leg does not make it so-calling an agency quasi-judicial does not make it so." As to the Attorney General's two-ormore ruling, Cross cannot understand it," Shevin supported the bill as a legislator in 1967, how could he do this! I meant a quorum, because final action is impossible without a quorum. If they had interpreted it like I wrote it, they would have been able to exempt personnel problems.'

When I queried the former Senator as to some of the oddities the law fostered he became emotional, claiming he never thought the media would crash a cabinet meeting unless there was a quorum present. Also, he felt that Jerry Thomas was wrong "The Senate is included in the law-the new constitution cuts down the right to go into executive session-right down to the bone."

Cross feels that had the courts not fumbled the "final action" notion, the main argument (personnel problems) against the law would have withered away. Cross likes to tell an anecdote to those who favor secret personnel sessions. He tells the story of the Racing Commission attorney who argued in favor of secrecy because "we get all kinds of addicts and felons etc. applying for jobs, and welloccasionally one slips by us." My goodness, bellowed Cross, that's exactly why we need the law!

The former Senator is sure that there are "people working underground to screw it up. Legislators dislike it but they are afraid to change it because the press and the public like it." Because of this he doubts if any amendments will pass for quite some time: "The media has a right and a responsibility to be there and inform the people they have acquired the responsibility to see it is not repealed."

When I questioned the former state senator on his views on amendments he offered three:

(1) spell out the need for a quorum to reverse Shevin's ruling:

(2) include quasi-judicial functions of administrative agencies (reverse Canney);

(3) require the prior publication of agendas at all regularly scheduled meetings, and also at special meetings if there is sufficient time to do so.

On the possibility of a federal "Sunshine Law" he thought it was feasible provided that some court or body not subject to the law could determine before hand whether certain items were "national secret" exceptions.

Mr. CHILES. Mr. President, Florida government and citizens of the Sunshine State have greatly benefited from the law. Certainly, our government there is not perfect, but it is open and more effective, I think.

[blocks in formation]

144 One hour interview with Senator Cross at his Gainesville office. July 7, 1972.

I ask unanimous consent that a recent excellent review of the Florida law by Ruth Mayes Barnes be printed in the Record.

There being no objection, the review was ordered to be printed in the Record, as follows:

1

GOVERNMENT IN THE SUNSHINE: PROMISE OR PLACEBO?

In 1967 the Florida Legislature enacted the "Government in the Sunshine Law," which attempts to open the deliberations of state and local governments to the public. Since its passage, the Sunshine Law has been the subject of continued debate. This note attempts to place this debate in perspective by examining the scope and effect of the Act, analyzing cases and statutes of Florida and other states having similar laws, and evaluating the statute's present and potential impact.

THE DEMAND FOR OPEN GOVERNMENT

The supporters of senate bill 9 (later the Sunshine Law) felt that certain state and local practices, manifested in closed meetings and behind-the-scenes manipulation, indicated an urgent need for abolition of secretive government practices.* However, without media influence and pressure, "Government in the Sunshine" might never have survived committee action. In 1967 reapportionment of the legislature had increased the proportional representation of the urban centers in central and South Florida. Generally, the urban representatives were more sensitive to the influence of the media than the rural legislators who dominated the legislature before reapportionment. The media's active endorsement of the measure helped convince the legislators of the popularity of an open meeting regulation and provided significant impetus for passage of the Sunshine Law.3 Legislative recognition of the desire for open government was not unique to Florida. Five other states enacted open-meeting laws while Florida's bill was being debated. The increased demands for open government in the United States since World War II seem to have had no specific origin, but an aversion to undue centralization and irresponsible government revealed itself in such political issues as reapportionment and home rule. The emergence of an affluent and better educated society whose attention focused on sophisticated issues strengthened the demands for political responsibility. The increased impact of mass media on society played an important role in directing public attention to inadequacies and abuses of government. Whatever its source, the public's urge to participate more fully in legislative decisions was evident.

In Florida, while not all governmental units were felt to be deceptive or corrupt, closed sessions provided a shield for occasional instances of irresponsibility and corruption that public disclosure might have prevented. Furthermore, testimony before the house committees revealed that the existing need for more responsible government was not confined to the local level. One of the state commissions advised that the law not be enacted because many of the commission's applicants for employment were convicted felons, known drug addicts, or otherwise unqualified for state employment. The commission disclosed that it sometimes employed these people either unknowingly or inadvertently and urged that such practices should not be exposed. In reaction, proponents of the Sunshine Law demanded the inclusion of personnel matters in the Act and emphasized that this testimony indicated an immediate need for the bill."

LEGISLATIVE HISTORY OF GOVERNMENT IN THE SUNSHINE

After its passage in the Senate," the "Government in the Sunshine Law" was submitted to the house, where several amendments were proposed. Although

1 Fla. Stat. § 286.011 (1969).

2 Interview with J. Emory Cross. State Senator from Gainesville, Florida, in Gainesville, Florida, April 14, 1970; interview with John S. Rawls, Judge, First District Court of Appeal, in Tallahassee, Florida, March 26, 1970 [hereinafter cited as interviews]. 3 Interviews, note 2 supra.

4 Ark. Stat. Ann. § 12-12805 (1968): Cal Gov's Code §§ 54950-60 (West 1966); Ind. Ann Stat. $$ 57-601 et seq. (1967); N.J. Rev. Stat. §§ 10:4-1 et seq. (Supp. 1963); N.M. Stat. Ann. § 5-6-17 (1953). It should be noted that the Florida bill was debated for ten years. It was introduced in every regular session of the legislature from 1957 until its passage in 1967.

[blocks in formation]

some of these amendments might have resolved subsequent problems concerning the law's applicability, the senate refused to concur in any restriction of its original proposal.' As a result, only one amendment was adopted at the Act's passage, and that amendment gave the law additional impact. It provided standing to any citizen of the state, jurisdiction in the circuit courts, and injunctive relief to enable citizens to protect their new right.1 The Sunshine Law, as finally enacted, states: "1

11

"(1) All meetings of any board or commission of any state agency of authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meeting.

"(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded and such records shall be open to public inspection. The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state.

"(3) Any person who is a member of a board or commission or of any state agency or authority of any county, municipal corporation or any political subdivision who violates the provisions of this section by attending a meeting not held in accordance with the provisions thereof is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than five hundred dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment."

15

PRECEDENT FOR THE SUNSHINE LAW

16

12

Florida's statute is not without precedent. Other states, especially western ones, have supported open meetings in constitutions, statutes,13 and case law." In 1953 New Mexico and California were the first states to pass comprehensive open meeting laws, which are similiar to the Florida act. New Mexico's law requires that all final decisions of all governing bodies of state or local subdivisions supported by public funds be made at public meetings." California's comprehensive Brown Act is limited in its application to local government levels, but it applies even to library boards and recreation commissions.18 Moreover, Florida Statutes, section 165.22, is precedent for the Sunshine Law. Enacted in 1905, that section requires that all city and town meetings be open to the public. On its face, the Sunshine Law seems to reiterate the provisions of this earlier statute, which declares: 19

"All meetings of any city or town council or board of aldermen of any city or town in the state, shall be held open to the public of any such city or town, and all records and books of any such city or town shall be at all times open to the inspection of any of the citizens thereof.

The House considered repeal of the existing public meeting law applicable to city and town councils, exemption of purely administrative acts of affected agencies, and specific inclusion of the Florida Education Association within the scope of the Act. The representatives rejected these proposals, but submitted the following for senate approval: an amendment giving circuit courts jurisdiction to issue injunctions to enforce the statute, an amendment granting an exemption from application of the law to hearings involving individuals charged with violation of law or regulations respecting employment, and an amendment prohibiting application of the enforcement provisions of the Act to personnel matters. Fla. S. Jour. 679 (June 1967); Fla. H.R. Jour. 958-59 (June 1967).

19 Fla. S. Jour. 679 (June 1967).

11 Fla. Stat. § 286.001 (1969).

The Texas Constitution states that all trials must be open to the public. In 1935 the Texas Court of Civil Appeals held that the relevant section applied to the county commissioner's court: "They [the commissioners] meet as a court and transact the county business in open session. Such requirement is substantial, both that the members

may have the benefit of the knowledge and opinions of the other members, as well as that the public may know when and where its affairs are being transacted." Tarrant County v. Smith, 81 S.W. 2d 537, 538 (Tex. Civ. App. 1935).

11 Cal. Gov't Code 88 54950-60 (West 1966); N.M. Stat. Ann § 5-6-17 (1953); Utah Rev. Stat. § 202 (1898).

14 Tarrant County v. Smith, 81 S.W. 2d 537 (Tex. Civ. App. 1935); Acord v. Booth, 33 Utah 279, 93 P. 734 (1908).

15 N.M. Stat. Ann. § 5-6-17 (1953).

14 Cal. Gov't Code 88 54950-60 (West 1966).

17 N.M. Stat. Ann. § 5-6-17 (1953).

18 Cal. Gov't Code 88 54952.5, 5493 (West 1966).

19 Fla. Stat. §§ 165.22 (1969).

In addition to a fine or imprisonment enforcement provision, the earlier law demands vacation of office by any violator of the act.20

However, in Turk v. Richard" the Supreme Court of Florida considerably limited the effect of section 165.22 by enunciating the so-called "formal meeting" doctrine. The early law was held applicable only to "formal assemblies of the council sitting as a joint deliberative body as . . . required or authorized by law... [and] held for the transaction of official municipal business. . . ." 22 Thus the statute, which opened meetings of city or town councils or boards of aldermen to the public, was coupled with a judicial interpretation requiring potential voting as a necessary prerequisite for the enforcement of open meetings. As a result, city and town government meetings were required to be open only when votes "could be taken, though [they were] not necessarily certain to be taken." "23 The narrow literal scope of the statute and its further limitation by the judiciary left much governmental activity immune from public scrutiny. For this reason, the 1905 law was largely ineffective.

PRESENT CONSTRUCTION OF GOVERNMENT IN THE SUNSHINE

19 25

Superficially, the Government in the Sunshine Law seems similar to its town council predecessor. However, relying on legislative intent, the Florida courts have given the Sunshine Law wider application than the former act." Because the Sunshine Law appears overly broad and ambiguous in certain areas, it was challenged on the ground that it was "void for vagueness." Opponents of the statute asserted it violated the constitutional doctrine that a "statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." 20 Rejecting this contention, the Florida supreme court held that the law properly expressed its legislative intent and provided a substantially clear mandate."

Although the Sunshine Law is constitutionally valid, the breadth of its language has raised problems of construction. The terms of the law are not tempered by any practical exceptions, nor do they provide precise guidelines for operational compliance. Judicial interpretation has corrected some of the drafting flaws, but three basic, interrelated legal issues remain. The Sunshine Law does not state which bodies are not affected by the law; it does not exclude any types of deliberation from its scope; and it fails to recognize any stage in the deliberative process that might not be subject to the requirements of the Act. While courts have not explicitly delineated the issues in this manner, the Second District Court of Appeal indicated in Times Publishing Co. v. Williams,28 that comprehension of the full meaning of the law requires such analytical divisions.

No Florida court has faced the question of which agencies might fall outside the application of the law. The only litigation to date deals with those agencies to which inherent applicability is assumed, such as city councils and boards of education. The language of the Act applies to all facets of government;30 however, the question of applicability is unresolved with regard to groups such as ad hoc committees, which act in a purely advisory capacity.

It is conceivable that unlimited application of the law could produce undesirable results. The goals of certain investigatory groups, such as those fighting organized crime, might be jeopardized by premature exposure of important procedures and information. Where an ad hoc committee is purely advisory and exercises no real powers, where it reaches no final determination. and where its findings will result in later action by an authority subject to the Sunshine Laws or the courts, the application of the law could create ineffectiveness or inefficiency to the disadvantage of the state. One solution to the dilem

[blocks in formation]

27 at 544.

Times Publishing Co v. Williams, 222 So. 2d 470, 473 (2d D.C.A. Fla. 1969).

24 See Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971), aff'g 231 So. 2d 847 (3d D.C.A. Fla 1970), aff'd 32 Fla. Sup. 7 (11th Cir. 1969): Board of Pub. Instr. v. Doran, 224 So. 2d 693 (Fla. 1969): Carreu v. Board of Pub. Instr., 231 So. 2d 34 (1st D.C.A. Fla. 1970); Times Publishing Co v. Williams, 222 So. 2d 470 (2d D.C.A. Fla. 1969).

2 Board of Pub. Instr. v. Doran, 224 So. 2d 693 (Fla. 1969).

28 Connally v. General Constr. Co.. 269 U.S. 385. 391 (1926). Board of Pub. Instr. v. Doran, 224 So. 2d 693 (Fla. 1969).

28 292 So. 2d 470 (2d D.C.A. Fla. 1969)

20 Board of Pub. Instr. v. Doran, 224 So. 2d 693 (Fla. 1969): Canney v. Board of Pub. Instr. 231 So. 2d 34 (1st D.C.A. Fla. 1970): Times Publishing Co. v. Williams, 222 So. 2d 470 (2d D.C.A. Fla. 1969): Berns v. Miami Beach, 32 Fla. Supp. (11th Cir. 1969). 30 See text accompanying note 11 supra.

ma would be to require only that such a committee state publicly the purpose of the group and announce its membership. In such instances, especially in investigatory actions, the committee should be entitled to conduct private sessions. This would accomplish minimum compliance with the basic purpose and policy of the Sunshine Law while providing for confidential meetings when necessary.

If this exception were made, a problem would arise concerning which ad hoc or advisory bodies should be excluded from application of the law. A broad exclusion would permit many to hide behind this shield and undermine the effectiveness of the law. Unless a showing of good cause is made to warrant exclusion, all such groups will remain within the scope of the Sunshine Law.31 A group in need of confidential hearings could insure its privacy by requesting a court order upon proof of the advisability of closed sessions. Such a procedure would place the burden upon the committee or group involved to show that the open meeting policy of the state was not being unnecessarily evaded.32

85

The type and stage of deliberation to which the law is applicable has in several cases been delineated by the courts. Rejecting the "formal meeting" doctrine of Turk v. Richard,33 the court in Times Publishing Co. held that the law applies to the "entire decision making process." 34 The Florida supreme court upheld this interpretation in Miami Beach v. Berns, and further emphasized the applicability of the Sunshine Law, even to informal assemblies, by stating that section 286.011 in effect repeals section 165.32.36 The fact that no voting will take place at a particular meeting is no longer a bar to the necessity of open sessions.37 Any stage in a proceeding-from proposals and reports to discussions and recommendations-is a proper subject of public scrutiny.

38

The ruling in Berns was portended by Board of Public Instruction v. Doran. in which a school board, relying upon the Turk formal meeting doctrine, continued to hold executive sessions from which reporters were barred. The school board had asserted that only formal action was subject to the mandate of the Sunshine Law and argued that the legislature, cognized of existing case law, had only intended the new law to extend the scope of Florida Statutes, section 165.22, beyond the city and town and council level. The court provided a clue to the missing definition of "meetings" by declaring that the law "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." 39

The most explicit clarification in this regard, however, is found in Berns v. Miami Beach, in which the trial judge states:

40

"The Florida legislature has mandated that. . . . Deliberations, sessions, conferences, briefings, expressions, discussions, proposals, recommendations, actions, reports, etc. must be open and public, for these are as much 'official acts' as the final vote itself."

See Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971).

See id.

33 47 So. 2d 543 (Fla. 1950).

4 222 So. 2d 470, 474 (2d D.C.A. Fla. 1969).

5245 So. 2d 38 (Fla. 1971). Citing Times Publishing Co. and Berns the Attorney General of Florida has stated the opinion that the use of a secret ballot to elect a school board chairman violated the Sunshine Law. Op. Att'y Gen. Fla. (Jan. 27, 1971).

36 Id at 40.

The court clearly rejected any requirement of a quorum by stating: "[W]e have held that the open door policy announced by the statute applies to informal as well as formal meetings of a board at which there is a collective decision or collective commitment of a majority of the members to take action in a particular manner on a matter affecting the public. Any action so taken is an official act within the contemplation of the statute and rule which we have announced. When a minority of the members meet to investigate or discuss a public matter then it becomes a factual issue to determine in each case whether the majority has fragmentized itself into minority groups merely to collaborate on a decision in private for the purpose of thus secretly concluding the matter." Id. at The Attorney General of Florida has stated, however, that an informal telephone conversation or an informal discussion between two or more school board members is not a prosecutable offense" if there is no attempt to exclude any member of the public or press seeking admission to the place of discussion." Where a quorum is present at informal meeting, however, "the obligation rests on the board members to discontinue meeting or discussion of public business until reasonable notice [is] given since such discussion without such notice constitutes violation." Op. Att'y Gen. Fla. (Jan. 27, 1971). Editor's Note: Since the writing of this note the Supreme Court of Florida has affirmed the holding of the First District Court of Appeal in Canney. Thus, exception of quasiJudicial matters from the effect of the Sunshine Law is now firmly established Canney v. Board of Pub. Instr., Nos. 39,473 and 39,474 (Fla., Feb. 24, 1971).

38 224 So. 2d 693 (Fla. 1969).

Id. at 698 (emphasis added).

40 32 Fla. Supp. 7, 9 (11th Cir. 1969).

« AnteriorContinuar »