Local Government Law Corner: A Well-Written Concurring Opinion for Elected and Appointed Officials Subject to the Sunshine Law

attorney Zach Lombardo

By Zachary W. Lombardo, B.C.S., Local Government Law attorney

It may be surprising to learn there are over 40 local governments in Collier County.

The County itself is a local government, but so are the three Cities (Naples, Marco, and Everglades City), the School Board, and many special districts (including fire districts, community development districts, the mosquito control district, etc.). All these local governments are geographically within Collier County. All of those 40-plus local governments combined have several hundred elected and appointed officials between them, and all of these elected officials, and many of the appointed officials, even those that serve the smallest of these local governments, are governed by the Sunshine Law.

For that reason, I wanted to take this opportunity to highlight a recent concurring opinion from a decision of the Fourth District Court of Appeal, Parris v. State, 359 So. 3d 1178 (Fla. 4th DCA 2023), wherein the opining Judge Ciklin, summarized the Sunshine Law and the stakes involved.

First, the Sunshine Law is both constitutional (Art. I, § 24) and statutory (§ 286.011, Fla. Stat.) and requires:

(1) meetings of public boards or commissions must be open to the public;
(2) reasonable notice of such meetings must be given; and
(3) minutes of the meetings must be taken and promptly recorded.

To help understand this, the concurring opinion from Parris v. State includes the below simple takeaways in a case where local government officials were criminally convicted for violating the Sunshine Law and were sentenced to jail time.

What is most interesting in the opinion, and why an article spreading the word is warranted, in my opinion, is that Judge Ciklin states it was concerning that the appellate briefs in the matter argued the Sunshine Law was “vague and unclear” or “weak and unprovable”. Further, Judge Ciklin states that he suspects that if the officials involved in the case had even imagined they would be facing jail time that they would have resisted the temptation of violating the Sunshine Law. Parris, 359 So. 3d at 1189-90.

Without further ado, Judge Ciklin wrote as follows:

Even though ample publications, and just as many available seminars, meetings, discussions, and groups, are specifically charged with fully educating officials subject to the Sunshine Law (which, ironically, all three charged city councilmembers attended), here are my very easy takeaways from the current state of the Florida Sunshine Law.

1. Meetings of two or more fellow government officials who are subject to the Sunshine Law are not allowed if any words of any type pertaining to any possible foreseeable issue will be communicated in any way unless they are open to the public to whom reasonable notice has been provided.

2. There is rarely any purpose for a private meeting or communication between two or more government officials who are both subject to the Sunshine Law. Those who engage in such activity widely open themselves to allegations that some aspect of the governmental decisional process has unlawfully occurred behind closed doors. Any aspect of the decisional process—ranging from whether to conduct a meeting in the first instance to the concept of terminating administrative staff to the seemingly inane decision as to which government officials will even make a motion to begin open public discussion—is part of the official decisional process and must be wide-open and advertised in advance to the public.

3. Under Florida law, there is no such thing as an “informal” conference or “unofficial” caucus or pass-you-in-the-hallway information gathering (or sharing) by two or more government officials subject to the Sunshine Law which would thereby remove such communication from the Sunshine Law’s ambit. Indeed, such “innocuous” meetings have been held to be illegal and nothing short of the unlawful crystallization of secret decisions to a point just short of public discussion and ceremonial acceptance. And whether done personally or through surrogates (such as aide-to-aide), such meetings are illegal under Florida’s Sunshine Law.

4. Any attempt to distinguish between a “formal,” “informal,” “ministerial,” “informational gathering-only,” or “just a listening” meeting between two or more government officials—for purposes of determining whether the Sunshine Law applies—is by itself alien to the law’s design, exposing it to the very evasions which it was designed to prevent.

5. Because a violation of Florida’s Sunshine Law can be investigated and charged as a crime, all of those law enforcement and prosecutorial techniques, such as the issuance of subpoenas for cell phone records, is but a signature away. In these cases, prosecutors easily gathered data and produced it for the jury showing numerous texts, emails, telephone conversations and voicemails over a wide-ranging period between all three city councilmembers. The flow chart prepared by the prosecution and shown to the jury highlighted the dates of the calls, to whom they were made, the duration of the calls and the overall sequence of communications.

6. When in any doubt as to whether a meeting or communication, either directly or indirectly, between two or more government officials, may be illegal under the Sunshine Law, the easy answer is: “LEAVE.” See City of Miami v. Berns, 245 So. 2d 38, 41 (Fla. 1971) (“The evil of closed door operation of government without permitting public scrutiny and participation is what the law seeks to prohibit. If a public official is unable to know whether by any convening of two or more officials, he is violating the law, he should leave the meeting forthwith.”).

7. Lying, under oath, about any matter that is material to an alleged Sunshine Law violation is considered as an additional crime of perjury, and every individual lie constitutes an individual statutory crime against each person with each separate charge carrying a possible penalty of 1 year in the county jail. Plus, a $1000 fine. Plus, substantial court costs. Plus, 12 months of probation. Per lie. And just as is the case with the underlying Sunshine Law crime, no statutory sentencing guidelines exist for this type of crime in Florida and thus, consecutive jail sentences and consecutive probationary periods are permitted and within the trial judge’s unfettered discretion.

Id. at 1190-92.

The above clear language is a helpful reminder that the Sunshine Law is straightforward and serious. This is important because the mechanics of the Sunshine Law results in inefficiencies. The goal of the Sunshine Law, however, is not efficiency; the goal is access to the decision-making process, which I often think of as what we learned in our geometry classes; it does not matter if you can get to the answer, what matters is if you show your work.

If you represent local governments or serve as an elected or appointed official, I suggest you share the above wise words of Judge Ciklin with your clients and colleagues.

Originally published in the Collier County Bar Association (CCBA) Adverse Witness magazine, September, 2023: https://online.flippingbook.com/view/496171070/16/

Related post: Local Government Law