Minutes for February 9,
2007
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DRAFT
Board of Trustees
Workshop – Sunshine Law
Friday, February 9, 2007
1:00 p.m. – Building D&E
Chairman John Keegan called the meeting to order at 1:00 p.m. Mr. Keegan introduced Wayne Holmes, Assistant State’s Attorney, and head attorney for the State of Florida.
Mr. Torpy said he often hears that public officials don’t like the Sunshine Law; it makes doing their jobs difficult. He understands, but it is the law. The Sunshine Law has sanctions of criminal penalties.
Wayne Holmes, Chief of Operations in the State Attorney’s office, has been involved with the Sunshine Law since 1985. Mr. Homes commented the goal of the Sunshine Law was to not have anyone come into the criminal justice system.
Mr. Holmes referred to the outline of the Sunshine Law he gave the Board of Trustees. (Exhibit A) Article I, Section 24, is the constitution of the State of Florida. The intent behind the law is that any decision concerning the people of the State of Florida should not be made in secret; should not be made and then imposed upon the public. The public has a right to have some input into that process, not only at the ballot box when you elect a Board, but a certain amount of public input that can be presented at an open meeting so everyone can hear and that should be considered part of the process and the deliberations in making your decision. A companion part of that law is the Public Records Law. Just as you meet in public, the records that you create are almost all public records, open to disclosure and inspection and copying in any point in time. It’s important for the representation of the public for them to know what their monies are going to and what their elected officials are doing.
Mr. Holmes commented the message he wanted to bring to the Board members is that they should strive to understand the basics of the law, to bring it to the simplest form of what do [you] need to do and then stick with that. Mr. Holmes said when Boards try to get imaginative with the Sunshine Law they start delegating authority. When a Board delegates, the Sunshine has to go with that delegation. When the sub-committee meets with another delegation that should be under Sunshine Law, too. Clearly, this Board is under the Sunshine Law.
A meeting is two or more members of the Board. A meeting is talking about matters that are currently before the Board, or could be expected to be before the Board in the foreseeable future. It can be as simple as a phone call, an email; those things can constitute meetings. Mr. Holmes’s recommendation to the Board is do not communicate between Board members by email. Any type of communication that is communicating the business of the Board between the two members that can run afoul of the Sunshine Law.
The meeting can also apply to an individual if you delegated authority to them. If you take a vote and say, ok this particular trustee now has the authority to make the decisions for the Board as a whole . . . .. . . .if they, in turn, meet with people and talk about that authority they have to make decisions, they then can come under the Sunshine and have to give notice of that meeting, have minutes, et cetera. That is one of the ways that Boards, inadvertently, fall into a Sunshine Law issue when you start delegating your authority away. Or, you decide to delegate one of your Board members to go on a particular issue and meet with a County Commissioner. You’re now carrying that authority with you. Even though you could go pick up the phone and call a County Commissioner, they’re not on this Board. You’re not on their Board. But if you delegate to one of the Board members the authority to act on your behalf to negotiate, fact find issues with an individual commissioner or the commission as a whole, now Sunshine Law follows you as you go through that process. That’s an area to be very careful of.
Another way a meeting can occur is by conduits. You can’t do indirectly what you can’t do directly. It is permissible to talk to staff in the form of the Community Manager. If you have no staff, a Board member may be a secretary and take minutes; other Board members may conduct business, but not as a conduit. Not to carry messages among Board members. City Managers often take the role of creating an agenda in the absence of staff. Factual information that all the Board should have benefit of can go to that manager who makes it a matter of public record in anticipation of the meeting. Also beware of the meeting that takes place off microphone where the decision making process begins to occur as you compare notes on the material presented. The Board may not use the Community Manager as a conduit.
At the County Commissioner level, when a big issue requires a huge amount of information be read, staff will meet with the individual commissioners and give them a briefing, not as to what should be done, but just as to here are the issues, here’s the research, take it a week in advance to read it and digest it so you are able to come into the meeting and carry on in an intelligent and efficient manner.
Official acts are any acts that are pending or foreseeable in the future. Anything that falls within your authority could foreseeably be brought before you. There is a requirement of notice to the public that the meeting is going to occur. Barefoot Bay has staff that prepares minutes. Recordings of the meetings are public records. The meeting must be held in a public place. The Board is obligated to anticipate meetings where the room would be full. If there is going to be a “hot topic”, the Board must either move to another location so everyone can be accommodated, or as the County Commissioners do it, the meeting is broadcast into adjacent meeting rooms to meet the requirement. There is a right of public input that is not directly in the Sunshine
Law but is a result of litigation. The courts have recognized there is a right to public input, although they have not said specifically what that entails or requires.
There are sanctions that can go along with violations of the Sunshine Law. One thing that creates a potential nightmare for your attorney is that a sanction can be that an individual has the right to bring a civil suit and undo the work the Board may have done if the Sunshine was violated in the process. What that can end up creating is a person’s rights to attorney’s fees to bring that suit; a right to costs, and perhaps a delay in implementing what you’re trying to do. The area of concern for the attorney with the Board is that there can be consequences and your actions can actually be undone under certain circumstances and it can be very costly. There are procedures for a civil penalty where an individual can be fined up to $500, or where the Attorney General’s office becomes involved, there is a knowing and willful violation. In the past there have been meetings with all the different Boards in the county. Pat Gleason helped write the book; recently she moved to the Governor’s office with Governor Crist, who feels the Sunshine Law is so important he has put it in the spotlight in the Governor’s office.
There are different ways to inadvertently fall into violations of the Sunshine Law. One can be comments such as, “Well, I telephoned the Board members . . . . . . . .” a comment made by a member of the School Board in Osceola County at another meeting. The press picked up on the incident and it got really out of hand. Don’t say something you don’t mean. Don’t create an appearance that something is in violation of the law. Do you greet each other when you come into this meeting? Do you talk as you go out maybe about fishing or a lot of other things? When people are looking at ways to be critical of you they will pick up on these things. When a Board member leans back and says something off microphone, people think you’re violating the Sunshine Law. Be sure you don’t take the meeting out into the parking lot. You are constantly under public scrutiny.
A few years ago in Maitland the Board members met before the meeting to have sandwiches. Other people weren’t invited. The headline in the newspaper read, “Deland Officials Dine Without Public Notice”. It resulted in a full-blown investigation that went on for several months that did not produce a violation of the Sunshine Law. By the policies and decisions you make be sure you are not creating a set of circumstances that someone is going to take advantage of. What you want to do is come to this meeting, be prepared, and the decision making occurs in this room.
Mr. Holmes said he watched one of the District’s meetings. Robert’s Rules of Order applies to the Board meeting, and if not, they should. You have motion, you have a second, and you have discussion that is built into that process. It is important to have an exchange of ideas so the public can see what your thinking is in the public light.
Ms. McCahan presented an example wherein a Commissioner has said in a meeting, “I won’t be able to support this . . . . or that . . . . . . .amendment, or bill, or etc.” to express views is not a violation? Mr. Holmes responded the meeting is where the opinions and views are supposed to be brought out. Boards that have worked together for a long time develop natural dynamics of interaction that are “alright” as long as that is occurring in the public light.
Ms. Weglein commented there are two other boards that are sanctioned by the Board of Trustees. They are also covered by the Sunshine Law? Mr. Holmes, “That is correct.” Mr. Holmes referred to the ARCC, saying that Board is charged with a certain amount of review. The Board of Trustees members must “let it come back to you” (issues) in its natural time. The Board can ask for reports from that Committee, or the liaison can come back in that capacity.
The Homeowners Association is not governed by the Sunshine Law because they are not a taxing authority. By being on this Board, you are in a different light.
Mr. Keegan asked about conduits in the age of computers and blogs and websites. Can an official of the Board post their comments on a website or a blog concerning their opinions of decisions forthcoming or past? Mr. Homes responded, “What does it take for that blog to become a conduit?” If you have another member of the Board that is also going to that blog, and another member goes to that blog, the next thing you know you have a discussion of an issue going on in that arena. There should be no reason to go there. Write a letter to the editor instead. Blogs create a certain appearance [of communication]. You’re setting yourself up to be criticized.
Mr. Allan commented that “right now there’s a couple of investigations going on with regards to this Board.” Mr. Holmes responded, “There are no investigations going on regarding this Board.” Mr. Allan: So the investigation that was underway with Mr. Bailey is now . . . “
Mr. Holmes: We received several letters, we received a number of items. I have responded to all of those and indicated on each of those that there was not a sufficient basis to do an investigation, and that I would be appearing and discussing the Sunshine Law here today. Mr. Allan: So we have no investigations whatsoever. Mr. Holmes: There is no good-faith basis at this point in time to go forward. Mr. Allan: I’m glad to know that.
Mr. Holmes continued, but one of the things you ought to take a look at in terms of how you address some different things, your chairman has been delegated some authority. My suggestion is that you don’t do that. Bring it back to the Board and have the Board deal with each of those items. Mr. Holmes brought secret ballots to Mr. Torpy’s attention. The only way the Board can use secret ballots is to create a ballot with the Board member’s name on it, and then make it a matter of public record. The better way to do it is to poll the Board or invite a show of hands. The public needs to know what your decisions are, and while it can be uncomfortable at times, you’re in the public light.
Ms. McCahan commented on the existing Board vacancy and how the vote is handled when choosing a nominee. Mr. Holmes said every step of the process must be open and public. Ms. McCahan said, “We can’t do that on individual papers?” Mr. Holmes said in order to do that, the ballot has to be identified to you as the voter, your vote would have to be placed on it, and it becomes part of the public record.
Mr. Torpy commented that can show you how opinions vary slightly. When the prosecutor is talking you listen to him. Your process has traditionally been everything is done in the public, but when it comes to the part where the person is actually filling the position, Barrie will hand out ballots. You will write the name of who the vote is, Barrie counts them [reads them aloud] everything is done in the public, and announces the vote, but does not announce each individual vote. Mr. Torpy has not had a problem with this in the Sunshine Law. Mr. Holmes says, “Well, maybe that’s a gray area.” So the obvious thing is to change that. A hand vote is just as good.
Mr. Holmes commented many aspects of the Sunshine Law have not been to court where laws are interpreted. One of the ways it can be interpreted is that a public entity can ask the Attorney General’s office to give an Attorney General’s opinion. That opinion does not have the full binding of law, but it is very persuasive. Some could challenge a secret ballot and put the District in civil court. If the court finds the vote should have been other than secret ballot, the District could wind up paying court costs, etc., and having to go back and undo what had been done. In the civil arena, courts interpret the law liberally to carry out what they perceive to be the intent, i.e., open government. The criminal side of the law construes the law strictly. Mr. Holmes strongly urged the Board to abandon secret ballots.
Mr. Torpy commented one of the unique challenges in Barefoot Bay is that many of the Board members have served both on the Home Owners Association Board and the Board of Trustees. As residents, Board members associate in the same circles and attend many of the same social functions. The problem of conduits in those settings concerns Mr. Torpy. He pointed out that just because [you] didn’t specifically ask someone to convey information does not mean you’re not a conduit. “Deliberate gossiping” will make you a conduit if you know it will get around. The conduit can be prosecuted.
Mr. Torpy may poll the Board members if necessary. The Manager may poll the Board members on occasion. In each conversation, nothing can be repeated from another conversation. There was a call to his office last week about this, but there was no violation. Mr. Torpy commented internet blogs are much like a newspaper. If a Board member responds to a comment on a blog, it is like responding to a comment in the newspaper. The problem starts when another Trustee responds to the first Trustee’s answer. This is where the direct communication begins and causes concern. Mr. Torpy commented the reason Mr. Holmes was here was because last Fall accusations were flying “like crazy” regarding violations of the Sunshine Law, enough of them so that Mr. Torpy was contacted and asked to consult with the Attorney General’s office. As the attorney for Barefoot Bay, Mr. Torpy’s office will always report suspected violations of the Sunshine Law.
Mr. Torpy commented the Board previously decided not to operate by Robert’s Rules. The new Board may want to bring that up again and discuss operating procedures.
Mr. Keegan adjourned the workshop at 1:55 p.m.
Note: Mr. Ferris and Ms. Donahue were excused. Mr. Malek was present as counsel.
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