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Town attorney informs on Sunshine Law

March 6, 2013
By BOB PETCHER ( , Fort Myers Beach Bulletin, Fort Myers Beach Observer

Town Attorney Marilyn Miller explained the ins and outs of Government in the Sunshine to members of Town staff and advisory committees Thursday afternoon.

The so-called "Sunshine Law" deals with three specific laws: public meetings law; public records law; and ethics law.

Miller, who is a practicing attorney with Fowler White Boggs, reviewed the many facets of the first two sub-laws during the informative seminar. The ethics law is broader in scope.

Article Photos

Town Attorney Marilyn Miller discusses the public records law at Town Hall Thursday.

"Ethics laws require certain forms of financial disclosure and prohibit certain types of transactions," said Miller. 'A lot of the provisions apply to (council members) but do not apply to advisory board members."

Here is a slide-by-slide look of some of the talking points shown and discussed via power point presentation:

Public Meetings Law involves official acts (voting) at declared public meetings for the government entity. It applies to both elected and appointed board members, to any meeting of two or more members of the same board, to any committee that makes recommendations, to members-elect but not candidates, to ex-officio non-voting members and to procedural as well as substantive matters.

There are exceptions. They are collective bargaining sessions, attorney-client sessions to discuss litigation strategy, meetings to discuss building security plans and committee meetings that are purely fact finding.

"If a committee is purely fact finding, like counting birds on the beach, it would be subject to the Sunshine," said Miller.

Council and committee members must be careful during inspection trips, because they are known as an "ultimate decision-making authority." Miller related a story about school board members who were in violation during a school bus trip to view a neighborhood affecting by re-zoning.

"Even though they didn't talk to each other, no decisions were made and they even had members of the press along, the court found it a violation," she said.

There are definitive procedural requirements in the Sunshine Law. Reasonable notice must be given of meetings, depending on subject matter and circumstances. Posting an agenda is recommended but not required. Issues not on the agenda can be discussed. A meeting notice posted at Town Hall is normally sufficient notice, although hearing notices such as zoning, land use, budget and adoption of ordinances do require newspaper advertisement.

The reason for such advertisement is to give reasonable opportunity for the public to attend, though not necessarily the right to participate through public comment, depending on the executive versus legislative functions. Statutory requirements cite both council and committees to keep minutes but not necessarily record meetings.

Regarding voting, one cannot abstain from voting unless there is "an actual or apparent conflict of interest." That abstention must involve "special private gain" according to that particular Florida statute.

"If the gain is remotely speculative, it is not a conflict (of interest)," said Miller.

There are restrictions on board member interaction. They may not use email or telephone to conduct a private discussion about board business. One-way communication is suitable as long as there is no response to the communication except at a public meeting.

The public has a right to observe every step of the decision-making process. When a decision is made, council members should still remain quiet about discussing the item that was deciding on due to reconsideration.

"It might come back again," said Miller.

The consequences of a violation in public meetings law involve a second-degree misdemeanor (up to 60 days in jail and a $500 fine) for a "knowing" violation. One can be removed from office and be held liable for non-criminal fines and attorney fees. Since the decided action is violated, it becomes void and a "do over" with meaningful discussion is required.

The Sunshine Law on public records includes all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software or other materials made or received in connection with a transaction or official business by any agency.

Some examples include anonymous complaint letters sent to Town, computer records not printed, travel itineraries, calendars, draft legislation, handwritten notes during meetings, email messages on home computers that relate to Town business. Statutory exemptions appear throughout the Florida Statutes.

An answer to a public records request cannot be unreasonably delayed, depending on the size of the request. There is no obligation to respond to a standing request.

Violators for this type of Sunshine Law may face a first degree misdemeanor or a noncriminal infraction, punishable by a fine not to exceed $500, suspension as well as removal from office or impeachment.

Records can be destroyed once a retention period is over, yet some have a permanent retention requirement.

"Once the retention is up, we destroy the records," said Miller. "Sometimes, when you get into litigation about something, you might want that record. On the other hand, it may be to your benefit you no longer have that record."



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