Behind closed doors 1

NEWS ANALYSIS

Though Moss has no legal authority to negotiate on behalf of the City, or to act with O’Connor as an ad hoc committee, that clearly seems to be what she is doing. Her actions, and those of O’Connor, could well be in violation of Florida’s open government laws.

MARK SCHUMANN

Jim O’Connor

Laura Moss

Today, representatives of the Florida Municipal Power Agency, the Orlando Utilites Commission, Florida Power and Light and the City of Vero Beach are to meet to discuss the proposed sale of Vero Electric to FPL.  Representing the City will be City Manager Jim O’Connor and Councilwoman/Mayor Laura Moss.

In explaining why the discussions will not be open to the public, and why other members of the City Council are not allowed to attend, O’Connor described the meeting as “administrative.”  The meeting may well be “administrative,” but it is also part of the entire decision-making process, or what Florida’s courts have described as “the inquiry and discussion stages.” These discussions, the courts have ruled, are also subject to the Sunshine Law.

Though Moss has no legal authority to negotiate on behalf of the City, or to act with O’Connor as an ad hoc committee, that clearly seems to be what she is doing. Her actions, and those of O’Connor, could well be in violation of Florida’s open government laws.

Addressing a similar situation, then Florida Attorney General Robert Butterworth wrote that for the Sunshine Law provisions requiring open meetings to apply, “2 or more members of a body or other entity or group to which the Sunshine Law applies must be present, or there must be delegation of decision-making by such a body to either a single member thereof or to an advisory group or committee used by the covering entity.” (Below is the full text of the Attorney General’s opinion.)

The City Council has never voted to delegate to Moss the authority to represent the City in its negotiations on the proposed sale of Vero Electric, but the Council’s acquiescence in Moss’ assertion of authority to do so could well be construed as consent.

If Moss, and now O’Connor, are skirting, if not violating, Florida’s open government laws and the City’s policies for handling public records, it will not be the first time. Last summer, as Chair of the Utilities Commission, Moss wrote the head of the Florida Public Service Commission, but failed to forward the correspondence to the City Clerk’s Office. More recently, Moss wrongly claimed as “privileged” documents that should have been public record, and Moss and O’Connor seemed to have collaborated in delaying the release of those documents until FPL was ready to make a public announcement relating to the documents.

Moss has publicly likened her role “like being the queen of Vero Beach.” If Moss is assuming she is above the law because “the monarch can do no wrong,” then she must think she is living in some country other than the United States of America.

At stake here is the interest of the City and the people of Vero Beach. With only Moss and O’Connor in the room, who is looking out for the people of Vero Beach?

Given that Moss was aided in her election by a $50,000 contribution from FPL to a political action committee supporting her, it is difficult to imagine how she can be expected to do anything other than capitulate to FPL’s every demand.

For his part, ever since assuming his position as City Manager, O’Connor has focused on protecting his job by shifting his priorities to conform to changes in the Council majority. Given that O’Connor well knows the current proposal is not a fair deal for Vero Beach, his going along with Moss can be seen as nothing other than malicious obedience.

The Honorable Jerry Hill

State Attorney

Tenth Judicial Circuit

250 North Wilson Avenue

Bartow, Florida 33830

RE: GOVERNMENT-IN-THE SUNSHINE–MUNICIPALITIES–meeting of ad hoccommittee of city officials to draft land transfer proposal, subject to Sunshine Law. s. 286.011, F.S.

Dear Mr. Hill:

This is in response to your request for an opinion on substantially the following question:

Is a meeting of an ad hoc committee, appointed by the mayor and composed of city officials, with officials of the Chamber ofCommerce to discuss a proposal to donate or sell city land to the chamber subject to the Sunshine Law, s. 286.011, F.S.?

Your inquiry indicates that the ad hoc committee, consisting of onemember of the city council, the city manager and the city attorney, was appointed by the mayor to meet with officials of the chamber to explore a proposal to give city land to the chamber. The committeewas not empowered to enter into an agreement with the Chamber ofCommerce; however, I have been informed that the committee was appointed by the mayor to determine the financial and other conditions of the transfer of the land from the city to the chamber. The meeting between the members of the committee and the chamber resulted in the preparation of a draft deed which was presented by the committee to the city council. Based upon these factual circumstances, you inquire whether the Government-in-the- Sunshine Law is applicable to meetings between the ad hoc committeeand the Chamber of Commerce.

Initially, I note that this office is not authorized to comment upon the validity of actions which have already occurred; such a determination is one which the judiciary, and not this office, must make. My comments are limited to a discussion of the applicabilityof the Government-in-the-Sunshine Law to such an ad hoc committeeand no comment is expressed regarding the validity of any actions which may have been taken by the committee.

The “Government-in-the-Sunshine Law,” s. 286.011(1), F.S., provides in pertinent part:

“All meetings of any board or commission . . . of any agency or authority of any county, municipal corporation, or political subdivision . . . 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, or formal action shall be considered binding except as taken or made at such meeting.”

It has been stated by this office and the Florida courts that the Sunshine Law is applicable to any gathering where two or more members of a public board or commission discuss matters on which foreseeable action will be taken by the board or commission. See, e.g., Times Publishing Company v. Williams, 222 So.2d 470, 473 (2 D.C.A. Fla., 1969); AGO’s 84-55 and 84-16.

In AGO 84-16, this office determined that “for s. 286.011 to apply to a particular meeting, 2 or more members, of a body or other entity or group to which the Sunshine Law applies, must be present, or there must have been delegation of decision-making by such a body to either a single member thereof or to an advisory group orcommittee used by the covered entity.” See, e.g., Hough v. Stembridge, 278 So.2d 288 (3 D.C.A. Fla., 1973). Consistent with this view of the law, the courts have held that an ad hoc advisory board or committee, appointed by a governmental body to make recommendations to the appointing authority and deliberating on matters upon which foreseeable action will be taken, is subject to the Sunshine Law. See Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla. 1974). See also AGO 86-51 (advisory committee delegated authority to consider projects to be included or excluded from listof proposed acquisition projects to be recommended to and acted on by the governing board was subject to s. 286.011, F.S.); AGO 85-76 (ad hoc committee appointed by the mayor for the purpose of making recommendations concerning legislation was subject to s. 286.011, F.S.). Compare Krause v. Reno, supra, in which it was held that an advisory group used by a city manager to assist in screening applications and making recommendations for the position of police chief was a “board” which was subject to the Sunshine Law, withCape Publications, Inc. v. City of Palm Bay, 473 So.2d 222 (4 D.C.A. Fla., 1985), which held that the Sunshine Law did not apply to a group of persons asked to sit in on interviews of candidates for chief of police where the group’s sole function was to acquire information by asking questions during the interviews and when the group was delegated no authority, did not select or screen applicants and was not authorized or delegated the responsibilityof making recommendations.

Therefore, to the extent that public agencies utilize ad hoccommittees, delegating to the committees a portion of the decision-making process, such committees are subject to and must comply with the requirements of s. 286.011, F.S. There is no “government by delegation” exception to the Sunshine Law and public agencies may not conduct their business through the use of an “alter ego.” IDS Properties, Inc. v. Town of Palm Beach, 279 So.2d 353, 359 (4 D.C.A. Fla., 1973). For as the courts of this state have recognized, it is the entire decision-making process which the Legislature intended to affect by the enactment of s. 286.011, F.S., including the inquiry and discussion stages. See, e.g., Times Publishing Company v. Williams, supra at 473 (“Every step in the decision-making process . . . constitutes an ‘official act,’ an indispensable requisite to ‘formal action,’ within the meaning ofthe act.”). Cf. AGO 86-51, in which a land selection committeeappointed by a district governing board to evaluate and recommend projects for acquisition was found to be subject to s. 286.011, F.S.

In the instant inquiry, the ad hoc committee was delegated the authority to meet with officials of the Chamber of Commerce to discuss and formulate a land-transfer proposal to be recommended to and acted upon by the city council. Thus it appears that thecommittee, responsible for proposing a land-transfer deed and the conditions for such transfer, played an integral part in the decisional process. Accordingly, it is my opinion that such an ad hoc committee is subject to and must comply with the requirementsof the Government-in-the-Sunshine Law, s. 286.011, F.S., even though the committee‘s decisions and recommendations are subject to further action by the city council.

In sum, it is my opinion, unless and until legislatively or judicially determined otherwise, that meetings of an ad hoccommittee appointed by the mayor and playing an integral part in the decisional process with respect to matters upon which foreseeable action will be taken by the agency or authority are subject to the provisions of Florida’s Government-in-the-Sunshine Law.

Sincerely,

Robert A. Butterworth

Attorney General

Prepared by:

Lagran Saunders

Assistant Attorney General

One comment

  1. In my opinion,any officer holder who has accepted large amounts of campaign cash should and must recuse himself/herself from any and all negotiations/discussions with that donor no matter if that donor is a company or individual. At the very least an “appearance of conflict of interest exists.”

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