a. Collective Bargaining Discussions
(1) Strategy Sessions
A limited exemption from s. 286.011, F.S., exists for discussions between the chief executive officer of the public employer, or his or her representative, and the legislative body of the public employer relative to collective bargaining. Section 447.605(1), F.S. A similar exemption is contained in s. 110.201(4), F.S., for discussions between the Department of Management Services and the Governor, between the department and the Administration Commission or agency heads, or between any of their respective representatives, relative to collective bargaining.A duly-appointed labor negotiating committee of a city that does not have a city manager or city administrator qualifies as the “chief executive officer” for purposes of s. 447.605(1), F.S., and may use the exemption when meeting with the city council to discuss collective bargaining. AGO 85-99. And see AGO 99-27, concluding that a committee formed by the city manager to represent the city in labor negotiations may participate in closed executive sessions conducted pursuant to s. 447.605(1), F.S. The exemption also extends to meetings of the negotiating committee itself which are held to discuss labor negotiation strategies, including when the committee adjourns during negotiations to hold a caucus among its members to determine the strategy to be employed in ongoing negotiations. Id.
If a school superintendent’s responsibility to conduct collective bargaining on behalf of the school board has been completely delegated to a separate labor negotiating committee and the superintendent does not participate in the collective bargaining negotiations, the exemption afforded by s. 447.605(1), F.S., applies to discussions between the committee and the school board only and does not encompass discussions among the committee, school board and superintendent. AGO 98-06.
The exemption afforded by s. 447.605(1), F.S., applies only in the context of actual and impending collective bargaining negotiations. AGO 85-99. It does not allow private discussions of a proposed “mini-PERC ordinance” or the stance a public body intends to adopt in regard to unionization and/or collective bargaining. AGO 75-48. Moreover, a public body may not conduct an entire meeting outside the Sunshine Law merely by discussing one topic during the course of that meeting which may be statutorily exempt from s. 286.011, F.S. AGO 85-99.
Section 447.605(1), F.S., does not directly address the dissemination of information that may be obtained at the closed meeting, but there is clear legislative intent that matters discussed during such meetings are not to be open to public disclosure. AGO 03-09.
(2) Negotiations
The collective bargaining negotiations between the chief executive officer and a bargaining agent are not exempt and pursuant to s. 447.605(2), F.S., must be conducted in the sunshine. Once the collective bargaining process begins, when one side or its representative, whether before or after the declaration of an impasse, meets with the other side or its representative to discuss anything relevant to the terms and conditions of the employer-employee relationship, the meeting is subject to the Sunshine Law. City of Fort Myers v. News-Press Publishing Company, Inc., 514 So. 2d 408, 412 (Fla. 2d DCA 1987). Accord Brown v. Denton, 152 So. 3d 8 (Fla. 1st DCA 2014), review denied, No. SC 16-2490 (Fla. February 24, 2016). See also AGO 99-27. As with other meetings subject to s. 286.011, F.S., minutes of the negotiation meeting must be kept. Inf. Op. to Fulwider, June 14, 1993.The Legislature has, therefore, divided Sunshine Law policy on collective bargaining for public employees into two parts: when the public employer is meeting with its own side, it is exempt from the Sunshine Law; when the public employer is meeting with the other side, it is required to comply with the Sunshine Law. City of Fort Myers v. News-Press Publishing Company, Inc., 514 So. 2d at 412. And see Brown v. Denton, 152 So. 3d at 12 (By holding closed-door negotiations that resulted in changes to public employee pension benefits, “the [city and pension board] ignored an important party who also had the right to be in the room -- the public.”). Cf. Palm Beach County Classroom Teachers’ Association v. School Board of Palm Beach County, 411 So. 2d 1375, 1376 (Fla. 4th DCA 1982) (collective bargaining agreement cannot be used “to circumvent the requirements of public meetings” in s. 286.011, F.S.).
b. Disciplinary, Grievance, and Complaint Review Proceedings
Meetings of a board or commission to conduct disciplinary proceedings are subject to the Sunshine Law. See, e.g., AGO 92-65 (employee termination hearing conducted by housing authority commission). And see News-Press Publishing Company v. Wisher, 345 So. 2d 646, 647-648 (Fla. 1977), in which the Court disapproved of a county’s use of “pseudonyms or cloaked references” during a county commission meeting held to reprimand an unnamed department head.Thus, two members of a civil service board violated the Sunshine Law when they held a private discussion about a pending employment appeal during a recess of a board meeting. Citizens for Sunshine, Inc. v. City of Sarasota, No. 2010CA4387NC (Fla. 12th Cir. Ct. February 27, 2012), available online in the Cases database at the open government site at MyFloridaLegal.com. And see Barfield v. City of West Palm Beach, No. CL94-2141-AC (Fla. 15th Cir. Ct. May 6, 1994), available online in the Cases database at the open government site at MyFloridaLegal.com. (complaint review board of a city police department is subject to the Sunshine Law); AGO 80-27 (sheriff civil service board created by special act is subject to the Sunshine Law). Cf. AGO 93-79 (discussions between two members of a three-member complaint review board regarding their selection of the third member of the board must be conducted in accordance with s. 286.011, F.S.).
Similarly, in Dascott v. Palm Beach County, 877 So. 2d 8 (Fla. 4th DCA 2004), the court held that a meeting of a pre-termination conference panel established pursuant to county ordinance and composed of a department head, personnel director, and equal opportunity director should have been held in the Sunshine. Even though the county administrator had the sole authority to discipline employees, that authority had been delegated to the department head who in turn chose to share that authority with the other members of the panel. See also AGO 10-14 (team created by charter school board of directors to review employment decisions is subject to the Sunshine Law). Cf. AGO 77-132 (personnel council composed of citizens appointed by members of county commission to hear appeals from county employees who have been disciplined not authorized to deliberate in secret).
A grievance committee established as “the final hearing body for all matters determined to be grievances and [authorized] to uphold, modify, or deny any grievance” is subject to the Sunshine Law “because the [committee] clearly exercises decision-making authority.” Dascott v. Palm Beach County, supra at 13. And see AGO 84-70 (Sunshine Law applies to staff grievance committee created to make a determination of “all facts and circumstances” and nonbinding recommendations to a county administrator regarding disposition of employee grievances). Cf. Palm Beach County Classroom Teacher’s Association v. School Board of Palm Beach County, 411 So. 2d 1375 (Fla. 4th DCA 1982), in which the court affirmed the lower tribunal’s refusal to issue a temporary injunction to exclude a newspaper reporter from a grievance arbitration hearing. A collective bargaining agreement cannot be used “to circumvent the requirements of public meetings” in s. 286.011, F.S. Id. at 1376.
By contrast, in Jordan v. Jenne, 938 So. 2d 526, 530 (Fla. 4th DCA 2006), the court determined that the Sunshine Law did not apply to a professional standards committee responsible for reviewing charges against a sheriff’s deputy and making recommendations to the inspector general, because the inspector general made the “ultimate decision” on discipline and did not deliberate with the committee. See also McDougall v. Culver, 3 So. 3d 391 (Fla. 2d DCA 2009) (Internal Affairs memorandum containing findings and recommendations circulated to senior officials for review and comment before submission to the sheriff for a decision on disciplinary action did not constitute a meeting under the Sunshine Law since officials only provided a recommendation but did not deliberate with the sheriff or have decision-making authority).
Similarly, if the mayor as chief executive officer, rather than the city council, is responsible under the city charter for disciplining city employees, meetings between the mayor and a city employee concerning discipline of the employee are not subject to the Sunshine Law. City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989). And see AGO 07-54 (while post-termination hearings before city manager are not subject to the Sunshine Law, hearings before a three-member panel appointed by the city manager should be open).
c. Evaluations
The Sunshine Law applies to meetings of a board of county commissioners when interviewing applicants for county positions appointed by the board, when conducting job evaluations of county employees answering to and serving at the pleasure of the board, and when conducting employment termination interviews of county employees who serve at the pleasure of the board. AGO 89-37.A board that is responsible for assessing the performance of its chief executive officer (CEO) should conduct the review and appraisal process in a proceeding open to the public as prescribed by s. 286.011, F.S., instead of using 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. AGO 93-90. However, meetings of individual school board members with the superintendent to discuss the individual board members’ evaluations do not violate the Sunshine Law when such evaluations do not become the board’s evaluation until they are compiled and discussed at a public meeting by the school board for adoption by the board. AGO 97-23.
d. Selection and Screening Committees
The Sunshine Law applies to advisory committees created by an agency to assist in the selection process. In Wood v. Marston, 442 So. 2d 934 (Fla. 1983), a committee created to screen applications and make recommendations for the position of a law school dean was held to be subject to s. 286.011, F.S. By screening applicants and deciding which applicants to reject from further consideration, the committee performed a policy-based, decision-making function delegated to it by the president of the university. See also Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979) (Sunshine Law governs advisory group created by city manager to assist in screening applications and to recommend several applicants for the position of chief of police), and AGO 77-43 (Sunshine Law applies to committee selected by a county bar association on behalf of the school board to screen applicants and make recommendations for the position of school board attorney). Cf. Dore v. Sliger, No. 90-1850 (Fla. 2d Cir. Ct. July 11, 1990), available online in the Cases database at the open government site at MyFloridaLegal.com. (faculty of university law school prohibited from conducting secret ballots on personnel hiring matters).However, if the sole function of the screening committee is simply to gather information for the decision-maker, rather than to accept or reject applicants, the committee’s activities are outside the Sunshine Law. See Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985), holding that the Sunshine Law was not violated when the city manager, who was responsible for selecting the new police chief, asked several people to sit in on the interviews, as the only function of this group was to assist the city manager in acquiring information on the applicants he had chosen by asking questions during the interviews and then discussing the qualifications of each candidate with the city manager after the interview. And see Knox v. District School Board of Brevard, 821 So. 2d 311, 314 (Fla. 5th DCA 2002), holding that an interview team composed of staff was not subject to s. 286.011, F.S., even though the team made recommendations since “all the applications went to the superintendent and he decided which applicants to interview and nominate to the school board.”
Moreover, s. 1004.098(2)(a), F.S., provides that any portion of a meeting held for the purpose of identifying or vetting applicants for president of a state university or a Florida College System institution, including any portion of a meeting which would disclose personal identifying information of applicants which is otherwise confidential under s. 1004.098(1), F.S., is exempt from disclosure requirements. Section 1004.28(1), F.S., establishes confidentiality for personal identifying information of these applicants. The age, race, and gender of applicants who met the minimum qualifications for the position who were considered and the personal identifying information of applicants included in the final group of applicants are no longer confidential beginning at the earlier of the date the final group of applicants is established or 21 days before the date of a meeting at which an interview of an applicant will be conducted or at which final action or a vote is to be taken on the offer of employment of an applicant. A complete recording is required of any portion of the closed meeting. The recording is exempt from disclosure requirements.
Section 1004.098(2)(a), F.S., does not apply to any portion of a meeting held to establish qualifications for the position or establishing a compensation framework to be offered to an applicant. The exemption also does not apply to meetings held after a final group of applicants for the position has been established. Section 1004.098(2)(c).
