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Agenda 06/24/2008 Item # 9C Page 1 of I Agenda Item No. 9C June 24, 2008 Page 1 of 16 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: Meeting Date: 9C Commissioner Henning item for discussion. 6/2412008 90000 AM Prepared By Sam Tucker Executive Aide to the BCe Date Board of County Commissioners BCC Office 6/171200811 :46:08 AM Approved By Sue Fi Ison Executive Manager to the BCe Date Board of County Commissioners Bce Office 6/17/200811:56AM Approved By John A. Yonkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 6/17/200812:40 PM Approved By James V. Mudd Board of County Commissioners County Manager Date County Manager's Office 6/17/20083:19 PM file:/ IC:\Agenda Test\Export\ II 0-June%2024, %202008\09. %20BOARD%200F%20COUN... 61l 8/2008 .' Agenda Item No. 9C June 24, 2008 Page 2 of 16 May 8, 2008 Re: Meeting Summary Minutes - Clam Bay Permit meeting on 04/30/08 with FDEP at Fort Myers office. From: Gary McAlpin -------- Attendees: Jon IgIeheart - Ft. Meyers FDEP Lucy Blair - Ft. Meyers FDEP Lainie Edwards -Tallahassee, Beach and Coastal Systems - FDEP (By Conference Call) Mike Bauer - City of Naples Doug Findley - Mooring Bay and City of Naples David Busier - Seagate Homeowners Association and City of Naples Jim Burke - Pelican Bay Services Division (PBSD) and Coastal Advisory Committee Tim Hall- PDSD consulting engineer Marsha Cravens - PBSD's Mangrove action Committee David Roellig - PBSD Summary Minutes: 1. The Board of Commissioners directed on 4/2212008 that the existing 10 year permit not be renewed and sunset after the one year extension has been granted.. They directed that Pelican Bay continue to perform mangrove maintenance with a 5 year mangrove maintenance permit ( the longest they can get up to 5 years) if approved and appropriate with FDEP. Additionally they directed Collier County staff to develop a master plan for the estuary of which mangrove maintenance would be one portion. Any permits required to execute the master plan would be the responsibility of and obtained by Collier County. 2. A meeting was held with FDEP on April 30, 2008 to discuss and resolve permitting issues based on direction received from the Board of County Commissioners on 4/2212008. a. FDEP also confirmed that the existing 10 year permit will sunset and no new 10 year permit will be issued. A one year extension of the existing permit has been applied for and is being processed by FDEP in Tallahassee. This extension is being processed and it seems as though there are no objections to its issuance. This extension would allow: i. The Estuary discussion group's time to complete their studies required. to develop a new pennit and master plan. John Igelhart indicated that from the pass south, it may take several years to work through the studies, science and permitting. ii. Dredging of the pass if necessitated by storm activity. b. Jon Igleheart, FDEP Ft. Meyers stated that the maintenance of the existing channels and mangroves could be rmdertaken without a new permit since this would be maintenance of already permitted activities. The mangrove .' Agenda Item No. 9C June 24. 2008 Page 3 of 16 related work falls within a maintenance category and does not require a permit either. c. If any new work was considered., then permits for that work would be required. d. Conversion of the ClllTent permit to an operational permit was discussed. Tills would make the management plan permanent for mangrove maintenance. Lainie Edwards, FDEP Tallahassee was not sure that this was a possibility with the existing permit and will look into it. e. Mike Bauer indicated that the current management plan may have been good for the mangroves but not necessarily good for sea grasses or water quality in Outer Clam Bay. f: This new permit would be based on the configuration of the existing permit until such time (if any) that the county can justify a new tidal prism and dredge configuration. 3. Additionally, the following items were discussed in the 4/30 meeting with FDEP not directly related to mangrove maintenance activities or the one year extension application: a. 33 channel signs! markers will be set to resolve compliance issues b. The major study anticipated is the mixing studies for the entire estuary. It . will be conducted by Collier County staff with PBSD cooperating as required. c. Development of the new management plan will be the responsibility of Collier County and be the product of the work of the Estuary Discussion Groups. This master plan will not be required to have begin-end dates. It will, in effect, be an "operational" management plan used by the county and not regulated by FDEP. 4. The new permit will bear the name of Collier County with the PBSD being a permittee for mangrove maintenance ouly. >* Agenda Item No. 9C June 24, 2008 TuRRELL, HALL & ASSOCIATES, 1Ne.16 MARINE &: ENVIRONMENTAL CONSULTING 3584 Exchange A\'enuc., Suite B . Naples, Florida 34104-3732. (239) 643-0166 . Fax (239) 643-6632 April 30, 2008 Membel'll of the Bowd, I wanted to provide a written SUlWIllIIY of meetings line! discussions that I bave been involved in during !be pasl month. 'This is provided to give you an updale on various activities on-going in the System as ....."Il as to inform )IOU about items tbB.t you might not be aware of. I have been attending several SIIbcomrnittee meetings that were formed as part of the Clam Bay Estuary Improvement Discussion Group under Mr. Gary McAlpin's direction. I have also been cooperating with the Coastal Zone Management office in reganb to the "Idle Sp<<d" and informational signage that is required Ill; part of the existing pennit. NavieatioD Group This group met on April 9 and discussed red and green navigational marloors that would run from juSI outside of Clam Pass down to Seagate. My office produced lIll exhibit that shows the proposed locatiollS for the markers that the group discussed. The Coastal Zone Management office is pursuing the required peoni1s for these mark.c:rs from DEP. Coast Guard, and FWC. 1b.is group also briefly discussed the lnfonnational signage but I will go into more detail on that below. Water Oualitv and SAmnlin9 11Jis Group met on April 11 and discussed existL'Ig sampling in the s~'SItC1 as well as proposals for increased or additional sampling. 11Jis discussion was limited to Outer Clam Bay. P8SD CUlTeIltly collects 3 samples from tbis bay and it was the opinion of the group that an additional 2 samples would provide a better picture. PBSO collects water from the Seagate culverts. the canoe launch area, and the south boardwalk area. Additional samples from the middle of the bay and from the Seagale canal area were discussed. 'The PBSD samples include testing for or collection of about 18 different parameters. The proposed testing would follow the City of Naples' protocols cstablisbcd in their kSling of Naples Bay acd would include testing for or collection of about Z8 diffen:n.t parametel"l. Additional parametel1i not included in the current PBSD testing include various metals su<:h as c:oppe:r. aluminum, zinc, and arsenic as weU as some additional field measurements sucb as salinity, color, and seccl1i depth. I can provide a complete list if anyone Wllnts to see this, Also discussed was cenification of the people collecting the samples. If the intent of the sampling is to be able to provide data to tbe Stale (througb STORET or other database) then ocrtain criteria have to be met with l'1lgard to the sample collection and subsequent testing. The County Lab<Jralmy is certJfled for the le&ling but nollC of Kyle's people are. If PBSD wants to be able to provide data to the state !ben II sampling certiflcatiOll needs to be obtained. Training is a one-day course offeted in Gainesville, Fl. Information on the training IS online 81 hUp:/fwww.treeo.uft.edulcourse.a.sp,,?c=23J4&v=39. L <>r someone from my office. will be getting this training lIS well. Marine Life includine SeaeNsses This group melon April 23 to discuss tbe seagrass monitoring as well as any additional information collo::tion that could be useful in the formulation offutwe management decisions within the system. Again, this dj'lCu""ion was pretty much limitod to Outer Clam Bay with respect to the seagrasses but included the northern portions of the s~!em as well in the ciiSCllSsioDs !elated to fish and invenebrares. Diffetent techniques for monitoring of the seagrasses were di;;cu~d along with the benefits and/or limitations 118sociated with the different techniques. The Agenda Item No. 9C . June_ ~4, .J008 di&cussion led to a consensus tIIlU in order to track trends tIrougIK)~1 th: Bay llD&lcad elf 10 smaller kDPll-~lIM" done now), II program of hi-annual moni1oring of 30 SItes randomly chosen witIti1 Outer OlllL Bay would be betttr suited to this than the transect monitoring currently collected (which is deo.ig:ned 10 track changes in ,;maD defined. areas.) lfthe goaJ is to track actU8l acreageof!1Cagras5es, thc:D three or five YeM syslcmatic surveys of the ~ Bay L:OUld also bc conduclCd in addition to the bi-annual moniloring. Also dismilSed was the JlOssibility of a mapping ~ffort to delineate the other ~nthic communities wit.hin the system (sucb lIS clams, oysters, ere,) and to catalog !he m)tiacl ofspecies found within the system, bolh plant and animal. This would indude algae, lOvc:rtebrates (snails, conchs, nmicares, womu:, etc.), and fish. All of this dula would be assembled 00 give an overall picture of the Estuary lilld could be used for comparison purposes witb other systems throughou: the County to provide an overview on the health of the system (i.e, healthier systems should support healthier communitiC5 of dh'crse org!lD.isms). Development and Submittal of 10 >lear Manal!elDcnl Plan 'This group also met on April 23 to discuss the d.''elopmenl of a new lll>lDagernellt plan. An overview of tile minuteS of this meeting is below: . A Mangrove Maintenance permit would be developed. applied foc and submitted by Pelican Bay Services Division. i, The permit would be submitted to tile County Manager for approval. ~i, The permit would be issued to Collier County-Pelican Bay Services Division_ iii. The permit would be forwarded to the FOE.? and USACE lor approval ar.d issue iv. FDEP would determine the length of issue but 5 years was discussed at the Bee meeting. . A second permit fur everything else would be developed by Collier County fur the balance of the Estuary. It was abio dIscussed in this meeting that: · The., work task groups would continue to discuss and ~ol vc the areas of concern tbat were previously identified. · The work groups output would form the basis for a master plan tblll would be used to manage the eSlIlary. The MllIlgrove maintenance g!'OUp ove:-seen by PBSD would be one additional piece of the rna..ter plan. . The master plllll VI'Ould be presented to The BCe, the City of Naples and the PBSD for approval, · Any permits that would be needed to execute pottions of rite master p~an would be obtained for thai specifIC pi"c;e. · This master plan would not necessarily be presented to FDEP far inclu.,ion into any permit bUl would rather be a local communit)' working document. Ancillary to lhis meeting, there was a meeting with DE? 011 April 30 to discuss potenti1l.l concerns that DEP might bllve and 10 get direction from DEP on permining 1I.lternstives_ Local DEP representatives stated that the maintenance of the existillg cbannels and possibly the mangrove trinurung as well could be undertaken without d new permil since this would be maintenance of already pernlltled activities. However, jf !ltIy new work was considered. tllen pennilS for that work woold be reqL'ired. Also discussed WlIS the con,'clSion of the current permit to an opc.rat;cnal permit which would in effect make the managcment plan permanent and allow ongoing activities, Howe.er, the TaDollassee DEP representative was not sure that!hi< "'AS 3 possibility with the exi.ling permit. The extensior, i~ being pt\XJellsed and it seems as though there are 110 objections to its issuance. With the exlnl year, PBSD can procen a IIlWlgrove management plan (Maintenance and Mmagemmt Plan) that can be permitted through the local Ft. Myers office of DE?, This new permit would be issued accOfwn@to the new manageIllCllt plan and would have the ability to be converted to an opcratiOlllll Slatus which would make the Management Plan a permlll1cnl do..-urnent. Agenda Item No. 9C . June 24, 2008 lntOrma!ion Sil!Illme Page 6 of 16 According to the dircclion of the Boa.nl. I ha\'e been working on tr)ing to resolve the idle speed and seagr/lllS information signage with DF.P and the FWC. TIlt Coastal. Zone Management office bas also been working on this issue. It is appa..-mt that the existing permit must be modified due to the fact that the signage required can not be permitted by FWC. To modify the permit. there are essentially three optiOll5: . Remove the &pedal condition completdy and eliminate the requirement for thelle signs. . Leave the Idle Speed sign requirement but eliminale the requiremellt for the Tilt Motor sign. . Leave the Idle Speed sign requirement and change the language of the Tilt Motor sign to something that would be allowed by FWC. The Coastal Zone Management office is pursuing the third option in thm they are requesting coniumation from the FWC that the language "Sea.gra~!\Ci and Natural Resources Present - Please Proceed with Caution" could be permitted lllld would then replace the tilt motor language cumntly req aired in the Permit. Since the permit has to be modified, I am teqlU'Sting that the signage locaIi.on also be moditied so that the signs could be placed on the existing bridges instead of on separate poles in the bays. This would eliminale four poles and make installatioo and maintenance IllIlCh easier. A pole would still be needed at the entrance to the Passlllld the one at Seagate willlikel)' need to be replaced. Canoe Trail Based on !101IlC calls to FWC with respect to the navigational markezs, questions arose <IS to the nature and Slal"" of the canoe trail. I have agreed 10 pn)Vide a package to FWC regarding the current staros lIIId condition of the trail markeIll. They (Tara Alford) have requested this update on the status to make sure that this permit is sliU in complill1\ce. I will be coordinating With Kyle to identify md ~Ia.ce any signage that tI'.ay be degraded. Manll2effient Plan I have "".,en incorporating conunents ODd changes into the plan hlllied on the past months activities relllled to the BOCC decision and Ibe agreement that PBSD will be subl!l.it'dng tbe management plan for review and undel'T.ak:ing future oversight of the mangrove maintenance. It is my undezstanding that this wlll go to the Clam Bay subcommittee firs: and then be presented to tlle full Board at the subsequent meeting. Sincerely, Tim Hall Senior Biologist Agenda Item No. 9C June 24, 2008 Page 7 of 16 May 8, 2008 Chairman Sorey stated he visited the site and recognized the erosion taking place in the area. Mr. Hendel moved that the Coastal Advisory Committee approve the project of putting in T-Grolns In Marco Island at Hideaway Beach on the theory that Hideaway Beach is subject to high erosion and that erosion control structures or T-Groins are an appropriate permanent solution to the problem. Further, after all the presentations, the Coastal Advisory Committee (CAC) makes a recommendation to the Board of County Commissioners that the CAC favors using "public interest" as a mechanism for approving this project. Second by Mr. Rios. Carried unanimously 8-0. Mr. Pires abstained. Ms. Kulpa noted in reference to the previous Marco Island T-groin project, she researched the issues with this project and it was started during turtle season which created all sorts of issues and problems and recommended that the new approval and subsequent construction take this into consideration and seek to avoid these problems. IX. Old Business 1. Wiggins Pass Modeling Work Group update Gary McAlpin noted the Group met on April 3, 2008 and submitted the minutes from the meeting as well a summary entitled "Wiggins Pass Modeling Group Discussion Meeting, April 3, 2008." Ms. Kulpa, Group Leader noted that at the last Estuary Conservation Meeting Gary McAlpin provided a presentation on the Work Group. The meeting was well attended by the boating community and the presentation was well received. She noted that the solution is for the 3' draft vessel requirement. 2. Clam Bay Navigational Markers Gary McAlpin submitted a letter prepared by Tim Hall of Turrell, Hall and Associates, Inc. that provided a summary of the issues involved with the Clam Bay Permit application. There have been a number of meetings on the navigational markers and they are moving forward on getting the marker locations identified. He noted that Pelican Bay Services Division states there is no violation in this area and further the Division has possibly indicated they will not fund the placement of the navigational markers. This issue will need to be resolved. There are a variety of sub-work groups working within the Clam Bay Discussion Group. In respect to the application submittal, Pelican Bay Services Division will be responsible for the Mangrove Maintenance portion of the overall management plan for the County and there is clear direction from the Board of County Commissioners on how to proceed. They have applied for a 1 year extension of the permit for emergency operation purposes. 6 Agenda Item No. 9C June 24, 2008 Page 8 of 16 May 8, 2008 Mr. Buser noted he attended the Department of Environmental Protection meetinl!S. Mr. Burke noted the channel markers are not deemed in "violation", but are now deemed "compliance issues." The Pelican Bay Services Division is moving forward with the I year extension of the permit. Mr. Buser noted that the permit was very detailed and not everyone understood all of the components of the permit and this lack of understanding of these components has led to misinformation for various individuals. He commended Gary McAlpin's handling ofthis issue with the various groups involved. X. Public Comments Marsba Cravens, Mangrove Action Group stated that in respect to the Clam Bay Permit signage requirement she has been in contact with Tara Alford and Major Ouellette of Florida Fish and Wildlife Commission, (FWC) and studied the permit. Thc signage for "raise your props" is not doable via the Statute. With respect to the markers, this area is not a maintained navigable waterway and therc are a variety of navigable waterway definitions depending on the various agencies contacted. The permit is not in violation or in non-compliance in this aspect. Mr. Buser noted the Clam Bay Restoration Management Plan requires the channel be marked by Coast Guard approved navigational markers. The Corp of Engineers permit incorporated the plan as official language in their permit. The Department of Environmental Protection permit addresses the signage regarding tilt motors up, etc. The decision regarding appropriate sign language is addressed by FWC and this compliance could be an issue. He further stated the definition of navigation is not determined at the local level, it is determined by the State and Federal Government and is clear, it is either a navigable waterway or not. The channel is a navigable waterway by definition and the argument should be set aside. Chairman Sorey noted that the Coastal Advisory Committee does consider the channel as a navigable waterway. XI. Announcements Gary McAlpin stated that Eddie Chesser, Sr. Beach Operator has been selected as Employee of the month. He is the first County Employee to receive this award twice. Chairman Sorey requested Mr. Chesser's presence at the June meeting for an official "Thank you." XII, Committee Member Discussion Mr. Sullivan stated this is his last meeting as his term has expired. He has enjoyed serving on the Committee. He encourages other citizens to take advantage of serving on the County Advisory Committees. The Committee thanked Mr. Sullivan for his service. Chairman Sorey requested Gary McAlpin make a recommendation in June on the status of whether the Committee will or will not meet in July. 7 Advisory Legal Opinion - Location of public meeting; release of public records Agenda!lllgc lilcoflfi: June 24, 2008 Page 9 of 16 Florida Attorney General Advisory Legal Opinion Number: AGO 96.55 Date: July 15, 1996 Subject: Location of public meeting; release of public records Mr. Jeffrey D. Olson Sunrise City Attorney 10770 West Oakland Park Boulevard Sunrise, Florida 33351 RE: GOVERNMENT IN THE SUNSHINE LAW--PUBLIC RECORDS LAW-- MONICIPALITIES-meeting to be held in public facility normally open to public; release of board records not dependent upon vote of pension board. ss. 119.07, 286.011, Fla. Stat. Dear Mr. Olson: On behalf of the City of Sunrise, you ask the following questions: 1. May the police pension board hold public meetings in a conference room located in a building that may be accessed by the public only by providing identification and leaving such identification with the duty officer as security for a numbered electronic key used to access the building's elevators, and where permission must be given in order to enter the room where the meeting is held? 2. May a police pension board submit a public records request to the board for a vote as a condition to release of its records? In sum: 1. The cit~police pension board should not hold its meetinqs in a facility where the public has limited access and where there may be a "chilling" effect on the public'S willingness to attend by requiring the public to provide identification, to leave such identification while attending the meeting and to request permission before entering the room where the meeting is held. 2. A police pension board may not condition the release of its records upon a vote of the board; such records are open to the public in the absence of a statute providing for the confidentiality or exemption of such records. According to information provided to this office, the city is http://myfloridalega1.comlago.ns1Jprintview/EE6B4C7469BAFBC7852563690055A232 6/17/2008 Advisory Legal Opinion - Location of public meeting; release of public records Agenda ~ I2CofJ~ June=:!4, 2008 Page 10 of 16 concerned about the J.iabiJ.ity it may incur if an agency of the city is deemed to he in vioJ.ation of the open government J.aws. Question One You state that in order to access the fourth fJ.oor conference room in the city's PubJ.ic Safety CompJ.ex, a member of the pubJ.ic must go to the officer on duty and provide identification. Such identification must be J.eft with the duty officer as security in exchange for a numbered eJ.ectronic key card, which is used to access the entrance to the first fJ.oor area where the buiJ.ding's eJ.evators are J.ocated. Once an eJ.ectronic key is obtained, the person must then take an eJ.evator to the fourth fJ.oor, where a receptionist's permission must be obtained to enter the inner offices area in which the conference room is J.ocated. You state that, other than for pension board meetings, the conference room is not normaJ.J.y avaiJ.abJ.e for pubJ.ic meetings. According to your J.etter, other faciJ.ities are avaiJ.abJ.e for the pension board's use. The Government in the Sunshine Law, section 286.011, FJ.orida Statutes, requires that meetings of a pubJ.ic board or commission be "open to the pubJ.ic."[1] As a board created by the city to administer the city's pension pJ.an and its poJ.ice retirement trust fund, the five-member poJ.ice pension board is subject to the requirements of section 286.011, FJ.orida Statutes. [2] PubJ.ic access to meetings of pubJ.ic boards or commissions is a key eJ.ement of the Sunshine Law. Section 286.011(6), FJ.orida Statutes, specificaJ.J.y provides that "[a]J.J. persons subject to subsection (J.) are prohibited from hoJ.ding meetings at any faciJ.ity or location which discriminates on the basis of sex, age, race, creed, coJ.or, origin, or economic status or which operates in such a manner as to unreasonably restrict pubJ.ic access to such a facility." Moreover, as you note, section 120.53(6), FJ.orida statutes, whiJ.e not appJ.icabJ.e to the pension board, seeks to impJ.ement the public's right of access by stating in reJ.evant part: "Limiting points of access to meetings, hearings, and workshops subject to the provisions of s. 286.011 to pJ.aces not normaJ.J.y open to the pubJ.ic shaJ.J. be presumed to violate the right of access of the pubJ.ic; and any officiaJ. action taken under such circumstances is void and of no effect."[3] This office has advised pubJ.ic boards or commissions to avoid hoJ.ding meetings in pJ.aces not easiJ.y accessibJ.e to the public. Thus, for exampJ.e, this office suggested that a pubJ.ic board avoid the use of J.uncheon meetings to conduct board business since such meetings may have a "chiJ.J.ing" effect on the pubJ.ic's wiJ.lingness or desire to attend. Persons who might otherwise attend such a meeting may be unwilJ.ing or reJ.uctant to enter a pubJ.ic dining room without http://myfloridalegal.comlago.nsf/printviewIEE6B4C7469BAFBC7852563690055A232 6/17/2008 Advisory Legal Opinion. Location of public meeting; release of public records AgendaRagn 1'I(I)J9~ June 24, 2008 Page 11 of16 permitted under the Public Records Law is the reasonable time for the custodian to retrieve the record and delete those portions of the record the custodian asserts are confidential or exempt, if any. [9] A procedure that provides for an automatic delay in the production of records therefore is impermissible. [10] Accordingly, a procedure whereby access to public records is delayed until the board of trustees meets to vote on whether or not to release the records appears to be contrary to the provisions of Chapter 119, Florida Statutes. I am, therefore, of the opinion that the board of trustees of the police pension board may not delay release of its records until such a time as the request is submitted to the board for a vote. Sincerely, Robert A. Butterworth Attorney General RAE/all ----------------------------------------------------------------- [1] See, s. 286.011(1), Fla. Stat., which provides: "All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, 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. The board or commission must provide reasonable notice of all such meetings." And see, Art. I, s. 24(b), Fla. Const., establishing a constitutional right of access to all meetings of any collegial public body of, among others, a municipality at which public business of such bOdy is transacted or discussed. Such meetings are required to "be open and noticed to the public .. " [2] See genera~~y, Times Pub~ishing Company v. Wi~~iams, 222 So. 2d 470, 473 (Fla. 2d DCA 1969) (intent of the Legislature to extend application of Sunshine Law to "every board or commission' of the state, or of any county or political subdivision over which it has dominion and control") . [3] Effective October 1, 1996, Ch. 96-159, Laws of Florida, substantially rewords ss. 120.53 and 120.54; the language quoted in the text is deleted from s. 120.53 and substantially identical http://myfloridaiegaI.comlago.nsf/printview/EE6B4C7 469BAFBC7852563690055A232 6/17/2008 ~"""",f"" Advisory Legal Opinion - Advisory Boards, voting requirements Agendallllglllli<DJ94: June 24, 2008 Page 12 of 16 Florida Attorney General Advisory Legal Opinion Number: AGO 2002-40 Date: June 5, 2002 Subject: Advisory Boards, voting requirements Mr. Gordon B. Johnston Marion County Attorney 601 Southeast 25th Avenue Ocala, Florida 34471 RE: ADVISORY BOARDS-COUNTIES-VOTING-GOVERNMENT IN THE SUNSHINE LAW- advisory board members subject to voting requirements of s. 286.012, Fla. Stat. Dear Mr. Johnston: You ask substantially the following question: Are advisory board members who are appointed by the Marion County Board of County Commissioners and who are responsible for making recommendations to the board of county commissioners on county issues subject to voting requirements for governmental bodies set forth in section 286.012, Florida Statutes? In sum: Advisory board members who are appointed by the Marion County Board of County Commissioners and who are responsible for making recommendations to the board of county commissioners On county issues are subject to voting requirements for state, county and mun~cipal bodies set forth in by section 286.012, Florida Statutes, requirinq a vote be recorded for each member present unless a conflict of interest exists under the Florida Code of Ethics for Public Officers and Employees. Section 286.012, Florida Statutes, provides: "No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such deCision, ruling, or act; and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest http://myfloridalegal.com/ago.nsf/printview/2D88FOB5E03DBF0485256BCF005248BB 6/17/2008 Advisory Legal Opinion - Advisory Boards, voting requirements Agenda~ Illcof94; June 24, 2008 Page 13 of 16 under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases, said member shall comply with the disclosure requirements of s. 112.3143." You recognize that the advisory board whose members are appointed by the board of county commissioners and are responsible for making recommendations to the county commission is subject to the Government in the Sunshine Law. [1] The question has been raised, however, whether such a board is subject to the voting requirements set forth in section 286.012, Florida Statutes. Your office has indicated that it believes such boards are subject to section 286.012. I concur in that conclusion. Section 286.012, Florida Statutes, refers to state, county, or municipal boards, while section 286.011, Florida Statutes, is applicable to the state and its political subdivisions. Thus, section 286.012 is narrower in scope in that it does not apply to all governmental boards, such as special district boards. [2] Both statutes, however, refer to meetings at which official acts are taken. In construing this language for section 286.011, the courts have held that the requirements of the Sunshine Law apply during the entire decision-making process. For example, in Times Pub2ishing Company v. Wi22iams, [3] the court stated: "Every thought, as well as every affirmative act, of a public official as it relates to and is within the scope of his official duties, is a matter of public concern; and it is the entire decision- making process that the legislature intended to affect by the enactment of the statute before us." In considering whether an advisory group appointed by a governmental body to make recommendations was subject to the requirements of the Sunshine Law, several courts of this state have also concluded that such groups Were subject to the provisions of section 286.012, Florida Statutes. For example, in Ruff v. Scho02 Board of C022ier County,[4] the court rejected the trial court's finding that the organizational meeting of a sex education policy task force was not subject to Chapter 286 and that section 286.012, Florida Statutes, did not apply to the task force, stating that the "conclusion of the trial court was .in error." In Krause v. Reno,[S] the state attorney had filed a complaint seeking to have the trial court declare that any meeting held by an advisory board appointed and used by the city manager to screen applications and make recommendations for the position of chief of police was subject to the provisions of sections 286.011 and 286.012, Florida Statutes. The Third District Court of Appeal affirmed the lower court's order, which provided among other things that "the defendants and any replacements or substitutions appointed in addition to or in substitution of any or either of them are subject http://myfloridalegal.com/ago.nsflprintview/2D88FOB5E03DBF0485256BCF005248BB 6/1712008 Advisory Legal Opinion - Advisory Boards, voting requirements AgendlilHge 5J(IlJt9C June 24, 2008 Page 14 of 16 to the government in the Sunshine Law and subject to Sections 286.011 and 286.012 of the Florida Statutes." Moreover, as you note, section 286.012, Florida Statutes, refers to the official decisions or acts taken by a board. The term "official" is generally defined as "belonging or relating to an office, position or trust."[6] Since the duties of the advisory board are to make recommendations to the county commission, an official act of such an advisory board would appear to encompass the voting on such recommendations. Accordingly, I am of the opinion that advisory board members who are appointed by the Marion County Board of County Commissioners and who are responsible for making recommendations to the board of county commissioners on county issues are subject to voting requirements for state, county and municipal bodies set forth in by section 286.012, Florida Statutes, requiring a vote be recorded for each member present unless a conflict of interest exists under the Florida Code of Ethics for Public Officers and Employees. Sincerely, Robert A. Butterworth Attorney General RAB/tjw [1] See, e.g., Town of Pa2m Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); .accord, Spi~~is Cande~a & Partners, Inc. v. Centrust Savings Bank, 535 So. 2d 694 (Fla, 3d DCA 1988) (the Sunshine Law equally binds all members of governmental bodies, be they advisory committee members or elected officials). But see, Knox v. District Schoo~ Board of Brevard County, Case No. 5001-2384 (Fla. 5th DCA, May 3, 2002) in which the court held that a team of staff members who interviewed and evaluated candidates for principal resulting in recommendations to the county school superintendent, was not subject to the Sunshine Law since all the applications were forwarded to the superintendent, who then decided which applicants to interview and recommend to the School Board: "AJ.though the team made recommendations, all the applications went to the superintendent and he decided which applicants to interview and nominate to the school board. Since the interview team simply had a fact-finding or advisory role, their meetings were not governed by the Sunshine Law." [2] Cf., Art. II, s. 5(a), Fla. Const., the dual officeholding prohibition which applies to state, county and municipal offices and hftp:llmyfloridalegaI.comlago.nsf/printview/2D88FOB5E03DBF0485256BCF005248BB 6/17/2008 Advisory Legal Opinion - Sunshine, city commissioners meeting with legislator AgendaPlfga /lJ<ll19J: June 24, 2008 Page 15 of 16 Florida Attorney General Advisory Legal Opinion Number: INFORMAL Date: February 8, 1999 Subject: Sunshine, city commissioners meeting with legislator The Honorable Walter "Skip" Campbell Senator, District 33 10094 McNab Road Tamarac, Florida 33321 Dear Senator Campbell: This is in response to your request for an opinion regarding the applicability of the Sunshine Law to a luncheon at which you and the Tamarac City Commission would discuss matters of concern to the city. Florida's Government-in-the-Sunshine Law, section 286.011, Florida Statutes, provides a right of access to governmental proceedings at the state and local levels, applying to any gathering of two or more members 0% the same board or commission to discuss some matter which will toreSeeabLy come before that board for action. [1] Article I, sect10n 24, of the Florida Constitution establishes a constitutional Light o~ pUb~1C access to meet1ngs of pub11C bod1es at which official d~L~ are ~o oe ~aKen, or at wn1ch pUb~1C bus1ness of such body is to be transacted or discussed. [2] Meetings of the Legislature are required to be open and noticed as provided in Article III, section 4 (e), Florida Constitution, except with respect to those meetings exempted under Article I, section 24, Florida Constitution, or specifically closed by the Constitution. [3] In the instance you have described, a gathering of the city commission to discuss matters of concern to the city, the Sunshine Law would apply if the matters discussed would foreseeably come before the commission for action. [4] The Sunshine Law applies to any gathering, whether formal or casual, where two or more members engage in such discussion. [5] This office has advised that public boards or commissions should refrain from using luncheon meetings to conduct business.[6] Public access is the key element of the Sunshine Law and public agencies are advised to avoid holding meetings in places not readily accessible to the public. [7] In the case of a luncheon, people who might otherwise attend such a meeting may be reluctant to enter a dining room without purchasing a meal and may be financially or personally unwilling to do so. http://myfloridalega1.comlago.nsf/printview/90A22E I 450ADD9F A852567 I 3004EE7EA 6117/2008 Advisory Legal Opinion - Sunshine, city commissioners meeting with legislator Agendaflligll ~<l!lt9J; June 24, 2008 Page 16 of 16 The olear purpose of the Sunshine Law is to ensure the publio' s r.ight of aooess to meetings where offioial matters are to be disoussed. It is my opinion that the Sunshine Law's oontinued effeotiveness is dependent upon the vigilanoe of every offioer who serves on a publio board or oommission to oomply with its terms. I trust these informal oomments will be helpful in your oonsideration of this matter. Sinoerely, Robert A. Butterworth Attorney General RAB/tgk [1] See, Times Pub~ishing C~any v. Wi~~iams, 222 So. 2d 470, 473 (Fla. 2d DCA 1969); City of ~ami Beaoh v. Berns, 245 So. 2d 38 (Fla. 1971) . [2] Artiole I, s. 24 (b) , Fla. Const., states: "All meetings of any oollegial public body of the exeoutive branoh of state government or of any oollegial public body of a oounty, munioipality, sohool distriot, or speoial distriot, at whioh offioial aots are to be taken or at whioh public business of suoh body is to be transaoted or disoussed, shall be open and notioed to the public and meetings of the legislature shall be open and notioed as provided in Artiole III, Seotion 4(e), except with respect to meetings exempted pursuant to this seotion or speoifically closed by this Constitution." [3] See, Art. I, s. 24(b), Fla. Const., supra. Artiole III, s. 4(e), Fla. Const., states: "The rules of prooedure of eaoh house shall provide that all legislative oommittee and subcommittee meetings of each house, and joint conference committee meetings, shall be open and noticed to the publio. The rules of prooedure of each house shall further provide that all prearranged gatherings, between more than two members of the legislature, or between the governor, the president of the senate, or the speaker of the house of representatives, the purpose of whioh is to agree upon formal legislative aotion that will be taken at a subsequent time, or at whioh formal legislative action is taken, regarding pending legislation or amendments, shall be reasonably open http://myfloridalegaLcomlago.nsf/printview/90A22E 1450ADD9F A852567 I 3004EE7EA 61l 7/2008