VAB Backup Documents 02/10/2020 Item #12 Patricia L. Morgan
From: holly@cosbylaw.com
Sent: Monday, February 10, 2020 4:05 PM
To: SolisAndy; SaundersBurt; 'Carter, Erick'; 'Rebecca Earney'; 'Ron Kezeske'; 'Jill Rosenfeld'
Cc: value adjustment board; Patricia L. Morgan
Subject: Answer to Inquiry re: Telephonic Appearance
Attachments: AGO 2003-41 - Sunshine, participation by telephone.pdf
External Message: Please use caution when opening attachments, clicking links, or replying to this message.
Good afternoon, Collier County Value Adjustment Board.
Pursuant to your inquiry this morning, with regards to Value Adjustment Board (VAB) members
appearing telephonically, please accept the following as my answer to the same:
So long as the VAB has quorum physically present during a meeting, an absent Board member may
appear by telephone. Pursuant to Florida Statute Section 194.015, quorum shall be achieved by
having at least one (1) commissioner, one (1) appointed citizen member and the School Board
member physically present at the properly scheduled and advertised meeting. Attorney General
Opinion (AGO) 2003-41 is on point on this issue, please see attached.
At this time, so long as nothing is issued between now and July 27th to the contrary, and so long as
we have quorum physically present in the Commission Chambers during the 2020 Organizational
Meeting, which is set to commence at 2:00 pm, Mr. Kezeske may appear via telephone. Of course, it
is certainly preferable to have all Board members present during all official VAB meetings, but it is
understandable that there are unavoidable conflicts that may arise.
Please let me know if you have any further questions or concerns.
It is truly a pleasure and my honor to continue representing the Collier County Value Adjustment
Board. Thank you for your continued faith and trust in me.
Respectfully,
Holly Cosby
HOLLY E. COSBY
LAW OFFICE OF HOLLY E. COSBY, P.A.
602 CENTER ROAD
FORT MYERS, FLORIDA 33907
(239) 931-0006
(239) 41 8-0006 (FAx)
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Advisory Legal Opinion- Sunshine,participation by telephone http://www.myfloridalegal.com/ago.nsf/printview/EA5C812F3FF2CE3...
Florida Attorney General
Advisory Legal Opinion
Number: AGO 2003-41
Date: September 3, 2003
Subject: Sunshine, participation by telephone
Mr. Sidney R. Payne
Chair, Tampa Human Rights Board
102 East 7th Avenue
Tampa, Florida 33602
RE: MUNICIPALITIES-GOVERNMENT IN THE SUNSHINE-participation of board
member by telephone due to scheduling conflict when quorum of board
members physically present at meeting. s . 286 . 011, Fla. Stat.
Dear Mr. Payne:
On behalf of the City of Tampa Human Rights Board, you ask substantially
the following question:
May a member of the human rights board who is physically absent from a
board meeting because of a scheduling conflict participate in the meeting
by means of a telephone conference when a quorum of the members of the
board is physically present at the meeting?
Section 286. 011 (1) , Florida Statutes , Florida ' s Government-in-the-
Sunshine Law, 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. "
This office has been asked on several occasions to provide assistance to
local governmental boards or commissions regarding the participation of
its members in a public meeting through use of telecommunications media
and the compliance of such meetings with the Government-in-the-Sunshine
Law. In Attorney General' s Opinion 92-44 , this office concluded that a
county commissioner who was physically unable to attend a commission
meeting because of medical treatment could participate in the meeting by
using an interactive video and telephone system that allowed her to see
the other members of the board and the audience at the meeting and that
allowed the board and audience to see her. This office recognized that
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Advisory Legal Opinion- Sunshine,participation by telephone http://www.myfloridalegal.com/ago.nsf/printview/EA5C8I2F3FF2CE3...
section 125 . 001 , Florida Statutes , required that meetings of the county
commission be held in a public place in the county but noted that a
quorum of the members of the county commission would be present at the
public place. [1]
A similar conclusion was reached in Attorney General ' s Opinion 98-28,
which concluded that a district school board could use electronic media
technology in order to allow a physically absent member to attend a
public meeting if a quorum of the members of the board is physically
present at the meeting site. More recently, in Attorney General Opinion
02-82 , this office concluded that physically-disabled members of the City
of Miami Beach Barrier-free Environment Committee could participate and
vote on board matters by electronic means if they are unable to attend,
as long as a quorum of the members of the board is physically present at
the meeting site. [2]
The City of Tampa Human Rights Board was created by ordinance to, among
other things, receive and initiate complaints alleging violations of the
city' s human rights ordinance, which prohibits discrimination in
employment, housing and public accommodations based on race, color,
religion, national origin, sex, sexual orientation, age, handicap,
familial status, or marital status . [3] As a public board created by
ordinance to carry out a governmental purpose, the board is clearly
subject to the Government-in-the-Sunshine Law. [4]
According to your letter, regular board meetings are held once every two
months , with special meetings called by the board chair. You state that
the rules of the board provide that its meetings are to be held at the
city' s Office of Community Relations . Such a requirement would appear to
be analogous to the statutory requirements that meetings of the county
commission or the school board be held at an appropriate place in the
county. [5] Thus , the code clearly contemplates the physical presence of
board members at public meetings .
You state that a quorum of the board would be physically present at the
meeting. The member who wishes to participate by telephone conference
cannot physically attend the meeting, due not to illness but rather to a
scheduling conflict.
You note the reluctance of this office to extend public officials '
participation in public meetings by electronic means to situations other
than those involving a serious medical condition and the presence
otherwise of a quorum at the public meeting place. For example, in
Attorney General Opinion 98-28, this office noted that state agencies and
their boards and commissions are authorized by Chapter 120, Florida
Statutes, to adopt rules providing procedures for conducting public
meetings by means of communications media technology. [6] The opinion
recognized the rationale behind statutory authorization for state agency
use, as contrasted with local agency utilization, of communications media
technology for conducting meetings :
"Allowing state agencies and their boards and commissions to conduct
meetings via communications media technology under specific guidelines
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Advisory Legal Opinion- Sunshine,participation by telephone http://www.myfloridalegal.com/ago.nsf/printview/EA5C812F3FF2CE3...
recognizes the practicality of members from throughout the state
participating in meetings of the board or commission. While the
convenience and cost savings of allowing members from diverse
geographical areas to meet electronically might be attractive to a local
board or commission such as a school board, the representation on a
school board is local and such factors would not by themselves appear to
justify or allow the use of electronic media technology in order to
assemble the members for a meeting. "
Concerns about the validity of official actions taken by a public body
when less than a quorum is present argue for a very conservative reading
of the statutes . Thus , this office has concluded that, in the absence of
a statute to the contrary, a quorum of the members must be physically
present at a meeting in order to take action. [7]
Where, as here, the statute or rules contemplate that the meeting will be
held in a public place with the members physically present, this office
has considered the participation of an absent member by telephone
conference or other interactive electronic technology permissible when
such absence is due to extraordinary circumstances such as illness. To
conclude otherwise would alter the intent and purpose of such a statute
or rule.
Accordingly, it is my opinion that where a rule or statute contemplates
that a meeting will be held in a public place with the members physically
present, the participation of an absent member in the meeting by
telephone conference should be permitted only in extraordinary
circumstances and when a quorum of the board members is physically
present at the meeting. Whether the absence of a member due to a
scheduling conflict constitutes such a circumstance is a determination
that must be made in the good judgment of the board.
Sincerely,
Charlie Crist
Attorney General
CC/tjw
[1] And see Op. Att'y Gen. Fla. 94-55 (1994) , in which this office
concluded that a member of the board of trustees of a public museum could
participate in public meetings through the use of a telephone when a
quorum of the board was physically present at the public meeting. The
member who was requesting to participate by telephone had health problems
that precluded his attendance at the publicly designated meeting place.
[2] The Barrier-free Environment Committee was created by ordinance for
the purpose of providing accessibility-related input to a number of
departments within city government. This office concluded that the city
code contemplated the physical presence of board members at public
meetings.
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[3] Section 12-5, City of Tampa Code.
[4] See, e.g. , City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971)
(Sunshine law applies to any board or commission or any state agency or
authority or of any agency or authority of any county, municipal
corporation, or political subdivision) .
[5] See s. 125. 001 and s . 1001 . 372 (2) , Fla. Stat. , respectively.
[6] See s. 120 . 54 (5) (b) 2 . , Fla. Stat.
[7] See, e.g. , Ops. Att'y Gen. Fla. 83-100 (1983) , and 89-39 (1989) ,
quoting 62 C. J. S. Municipal Corporations s . 399, p. 757 , which provides :
"In order to constitute a quorum the requisite number of members must be
actually present at the meeting and the requisite number cannot be made
up by telephoning absent members and obtaining their vote over the
telephone. "
Cf. Penton v. Brown-Crummer Inv. Co. , 131 So. 14 (Ala. 1930) (where there
was no quorum present at meeting of city council, but resolution was
attempted to be passed by calling up absent members over the telephone,
resolution of city council was ineffective) ; Fargnoli v. Cianci, 397 A.2d
68 (R. I. 1979) (in determining whether "quorum" was present at city
council meeting, it was error to include member who was not physically
present) .
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