However, there have been circumstances where the application of the Sunshine Law to individual board members has been considered. As stated by the Supreme Court, the Sunshine Law is to be construed “so as to frustrate all evasive devices.” Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974). And see AGO 89-39 (aides to county commissioners are not 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).
a. Individual Board Member Meeting with a Member of Another Public Board
The Sunshine Law does not apply to a meeting between individuals who are members of different boards unless one or more of the individuals has been delegated the authority to act on behalf of his or her board. Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984). Accord AGO 84-16 (meeting between the chair of a private industry council created pursuant to federal law and the chair of a five-county employment and training consortium created pursuant to state law is not subject to Sunshine Law, unless there is a delegation of decision-making authority to the chair of the consortium); and Inf. Op. to McClash, April 29, 1992 (Sunshine Law generally not applicable to county commissioner meeting with individual member of metropolitan planning organization). And see News-Press Publishing Company, Inc. v. Lee County, Florida, 570 So. 2d 1325 (Fla. 2d DCA 1990) (Sunshine Law not applicable to mediation proceeding attended by individual members of city and county boards who were in litigation because only one member of each board was present at the proceedings and no final settlement negotiations could be made during the mediation conference).An individual city council member may, therefore, meet privately with an individual member of the municipal planning and zoning board to discuss a recommendation made by that board since two or more members of either board are not present, provided that no delegation of decision-making authority has been made and neither member is acting as a liaison. AGO 87-34. Accord AGOs 99-55 (school board member meeting with member of advisory committee established by school board), and 97-52 (discussions between individual member of community college board of trustees and school board member regarding acquisition of property by school board).
b. Mayor Meeting with Individual City Commissioner or City Council Member
If the mayor is a member of the council or has a voice in decision-making through the power to break tie votes, meetings between the mayor and a member of the city council to discuss some matter which will come before the city council are subject to the Sunshine Law. AGO 83-70. And see Inf. Op. to Ardaman, June 24, 2021 (Sunshine Law applies to discussions between a member of the city council and a mayor who serves as a non-voting member of the council).On the other hand, if the mayor is not a member of the city council and does not possess any power to vote even in the case of a tie vote but possesses only the power to veto legislation, the mayor may privately meet with an individual member of the city council without violating the Sunshine Law, provided the mayor is not acting as a liaison between members and neither individual has been delegated the authority to act on behalf of the council. AGOs 90-26 and 85-36. And see Inf. Op. to Cassady, April 7, 2005 (mayor who is not a member of the city council and cannot vote even in the event of a tie, may meet with an individual council member to discuss the mayor’s recommendations to the council concerning prospective appointees). Cf. City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989) (since mayor was responsible under the city charter for disciplining city employees, mayor in carrying out this function was not subject to s. 286.011, F.S.).
c. Use of Non-Board Members or Staff to Act as Liaisons or to Conduct a de facto Meeting of the Board
As a general rule, individual board members “may call upon staff members for factual information and advice without being subject to the Sunshine Law’s requirements.” Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755, 764 (Fla. 2010). And see 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.). Compare, State v. Dorworth, No. 14-MM-5841 (Fla. Orange Co. Ct. October 21, 2014), affirmed, No. 14-AP-48 (Fla. 9th Cir. Ct. August 19, 2015), available in the Cases database at the open government site at MyFloridaLegal.com, dismissing a misdemeanor charge against a lobbyist who was accused of violating the Sunshine Law by relaying information between board members and thereby aiding the members to meet without complying with the Sunshine Law. The trial judge determined that by charging the lobbyist, the state attorney “expanded the reach of the Sunshine Law to private citizens; and, the Legislature did not intend for the statute to apply to private citizens.”However, because the Sunshine Law must be construed to “frustrate all evasive devices,” the law is implicated by a meeting between a board member and a nonboard member who is being used as a liaison for board members. See Transparency for Florida, Inc. v. City of Port St. Lucie, 240 So. 3d 780 (Fla. 4th DCA 2018), citing to AGOs 96-35 (city manager may not ask each commissioner to state his or her position on a specific matter that will foreseeably be considered by the commission at a public meeting, in order to provide the information to the members of the commission) and 75-59 (city manager may meet individually with city council members “to discuss city business provided that the manager does not act as a liaison for board members by circulating information and thoughts of individual councilmembers to the rest of the board”).
Therefore, 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 Inf. Op. to Goren, October 28, 2009 (while individual city commissioners may seek advice or information from staff, city should be cognizant of the potential that commissioners seeking clarification by follow-up with staff when staff responses are provided to all commissioners could be considered to have participated in a de facto meeting of the commissioners by using staff as a conduit between commissioners). Compare Sarasota Citizens for Responsible Government v. City of Sarasota, supra at 765 (private staff meetings with individual county commissioners in preparation for a public hearing on a proposed memorandum of understanding [MOU] did not violate the Sunshine Law because the meetings were “informational briefings regarding the contents of the MOU” and “[t]here is no evidence that [county] staff communicated what any commissioner said to any other commissioner”).
Additionally, 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. Thus, even though the superintendent was “adamant that he did not act as a go-between during these discussions and [denied] that he told any one board member the opinions of the others,” the one-to-one meetings amounted to a de facto meeting of the school board in violation of s. 286.011, F.S. Id. at 580. See also Transparency for Florida, Inc. v. City of Port St. Lucie, 240 So. 3d 780 (4th DCA 2018) (evidence did not “conclusively refute” allegations that a series of telephone calls between the city attorney and individual city councilmembers to discuss termination of and severance pay to, the city manager did not constitute a Sunshine Law violation; accordingly, trial court should not have entered summary judgment in favor of the city). Cf. State v. Foster, 12 F.L.W. Supp. 1194a (Fla. Broward Co. Ct. September 26, 2005). In Foster, the judge rejected the argument made by the commissioners, that the Sunshine Law permitted city commissioners to attend a private breakfast meeting at which the sheriff spoke and the commissioners individually questioned the sheriff but did not direct comments or questions to each other. The court denied the commissioners’ motion for summary judgment and ruled that the discussion should have been held in the Sunshine because the sheriff was a “common facilitator” who received comments from each commissioner in front of the other commissioners.
Similarly, 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), available in the Cases database at the open government site at MyFloridaLegal.com, 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. See also Sentinel Communications Company v. School Board of Osceola County, No. CI92-0045 (Fla. 9th Cir. Ct. April 3, 1992), available in the Cases database at the open government site at MyFloridaLegal.com (series of private meetings between school superintendent and individual school board members to consider staff recommendations concerning administrative structure of the school system and to privately address any of the board’s concerns, should have been held in the sunshine; while individual board members are not prohibited from meeting privately with staff or the superintendent for informational purposes or on an ad hoc basis, the Sunshine Law “shall be construed to prohibit the scheduling of a series of such meetings which concern a specific agenda”); and AGO 93-90 (board that is responsible for assessing the performance of its chief executive officer [CEO] should not use a review procedure in which individual board members evaluate the CEO’s performance and send their individual written comments to the board chair for compilation and subsequent discussion with the CEO).
Not all staff decisions, however, are required 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 that board was not subject to the Sunshine Law. And see 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 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).
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).
