Sunshine Law--polling members by memorandum

Click title for link to Florida Attorney General opinion. An excerpt appears below:

"The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country. During past years tendencies toward secrecy in public affairs have been the subject of extensive criticism. Terms such as managed news, secret meetings, closed records, executive sessions, and study sessions have become synonymous with 'hanky panky' in the minds of public-spirited citizens. One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made." Board of Public Instruction of Broward County, supra, at 699.

The opinion then continues: "Thus, telephone conversations between public officials on aspects of the public's business are part of the process which ultimately leads up to final recorded action in a formal public meeting, and they may not be held covertly." It was held that such conversations had to be conducted under the provisions of the Sunshine Law. In so holding, it is clear that the word "meeting" is not limited to the physical coming together of the board members but, rather, includes the entire decision-making process of a public body. A memorandum containing policy suggestions passed around to members of a board for their approval, which approval gives the memorandum the effect of an official action, is not only a part of the process which leads up to final recorded action but is final action. Deliberations of the type you mention are part of the decision-making process, are of public interest and should be held in the sunshine. The memorandum method is an attempt to by-pass the Sunshine Law by not having meetings and is a violation of the intent and meaning of the law. In IDS Properties, Inc. v. Town of Palm Beach, 279 So. 2d 353 (Fla. 4th DCA 1973), which held that an advisory board to the town council fell under the purview of the Sunshine Law, the court said that "[i]t is axiomatic that public officials cannot do indirectly what they are prevented from doing directly." See also Green v. Galvin, 114 So. 2d 187 (Fla. 1st DCA 1959). Public officials legally bound to conduct their business under the Sunshine Law cannot escape this duty by acting in secret on public matters by means of such memorandums.

Section 286.011(3), Florida Statutes, provides that any member of a board who violates section 286.011(1) by attending a meeting not held in accordance with its provisions is guilty of a misdemeanor of the second degree. To hold that this section does not apply to the memorandum method since it is not a "meeting" would also be contrary to the intent of the law. If telephone conversations and memorandums are considered "meetings" so as to fall under section 286.011(1), then they must be considered meetings under the misdemeanor section, section 286.011(3). Therefore, any board member participating in conducting public business by memorandum, in violation of the Sunshine Law, would be subject to a criminal action.