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Sunshine Law Workshop 12/23/2002
Sunshine Law Public Records Ethics Ex Parte Communications David C. Weigel County Attorney Revised 12-23-02 OFFICE INFORMATIONAL r zPeseritation Sunshine Law 1 Public Records 2 Ethics 3 Ex Parte Communications 4 TABS OF CONTENTS �K e; -v Power point Presentation 1 Government In The Sunshine Law Outline 3 December 22, 1995 Memo relating to 6 Government -In -The -Sunshine Law Newspaper Articles 11 Sections of the Government -in -the -Sunshine 27 Manual i SUNSHINE LAW County Attorney's Office David C. Weigel, County Attorney What i.c the Scope of the Srcnshine Luw? + Meeting of public boards or commissions must be open to the public * Reasonable notice of such meetings must be given * Minutes of the meeting must be taken V hw Agencie.c are Covered w flie Sunshine Law? • Are advisory boards that make recommendations or committees established only for fact-finding subject to the Sunshine Law? • Does the Sunshine Law apply to staff? • Does the Sunshine Law apply to members of public boards who also serve as administrative officers or employees? 1 2 « Number of board members required to be present « Written correspondence between board members « Telephone conversations and meetings « Use of computers « Delegation of authority to single individual « Use of nonmembers as a liaison between board members What h pe,. of Discussiuns are Coverecl b\ the Sunshine biw. t • Informal discussions and workshops t "[11he Sunshine Law does not provide that cases be treated differently based upon their level of public importance." 2 GOVERNMENT IN THE SUNSHINE LAW I) What is the scope of the Sunshine Law? A) Florida's Government in the Sunshine Law, commonly referred to as the Sunshine Law, provides a right of access to governmental proceedings at both the state and local levels. The law is equally applicable to elected and appointed boards and has been applied to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action. There are three basic requirements of s. 286.011, F.S.: 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 B) A right of access to meetings of collegial public bodies is also recognized in the Florida Constitution. Article I. S. 24, Fla. Const. II) What agencies are covered by the Sunshine Law? A) Are advisory boards which make recommendations or committees established only for fact-finding subject to the Sunshine Law? 1) Publicly created advisory boards which make recommendations — advisory boards whose powers are limited to making recommendations to a public agency and which posses no authority to bind that agency in any way are subject to the Sunshine Law. 2) Fact-finding committees — a limited exception to the applicability of the Sunshine Law to advisory committees has been recognized for committees established for fact-finding only. When a committee has been established strictly for, and conducts only, fact-finding activities, i.e., strictly information gathering and reporting, the activities of that committee are not subject to s. 286.011, F.S. B) Does the Sunshine Law apply to staff? 1) Meetings of staff of boards or commissions covered by the Sunshine Law are not ordinarily subject to s. 286.011, F.S. C) Does the Sunshine Law apply to members of public boards who also serve as administrative officers or employees? 1) There may be occasions in which members of public boards also serve as administrative officers or employees. The Sunshine Law is not applicable to discussions of those individuals when serving as administrative officers or employees, provided such discussions do not relate to matters which will El come before the public board on which they serve. Thus, a board member who also serves as an employee of an agency may meet with another board member on issues relating to his or her duties as an employee provided such discussions do not relate to matters what will come before the board for consideration or action. III) What is a meeting subject to the Sunshine Law? A) Number of board members required to be present — The Sunshine Law extends to the discussions and deliberations as well as the formal action taken by a public board or commission. There is no requirement that a quorum be present for a meeting of members of a public board or commission to be subject to s. 286.011, F.S. Instead the law is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission. B) Written correspondence between board members — The use of a written report by one commissioner to inform other commissioners of a subject which will be discussed at a public meeting is not a violation of the Sunshine Law if prior to the meeting, there is not interaction related to the report among the commissioners. In such cases, the report, which is subject to disclosure under the Public Reports Act, is not being used as a substitute for action at a public meeting as there is no response from or interaction among the commissioners prior to the meeting. AGO 89-23. If, however, the report is circulated among board members for comments with such comments being provided to other members, there is interaction among the board members which is subject to s. 286.011, F.S. Q Telephone conversations and meetings — The Sunshine Law applies to the deliberations and discussions between two or more members of a board or commission on some matter which foreseeably will come before that board or commission for action. The use of a telephone to conduct such discussions does not remove the conversation from the requirement of s. 286.011, F.S. A county commission may permit an ill county commissioner to participate and vote in commission meetings through the use of an interactive video and telephone. D) Use of computers — The use of computers to conduct public business is becoming increasingly commonplace. While there is not provision generally prohibiting the use of computers to carry out public business, their use by members of a public board or commission to communicate among themselves on issues pending before the board, is subject to the Sunshine Law. E) Delegation of authority to single individual — "The Sunshine Law does not provide for any `government by delegation' exception; a public body cannot escape the application of the Sunshine Law by undertaking to delegate the conduct of public business through an alter ego." F) Use of nonmembers a liaison between board members — The Sunshine Law is applicable to meetings between a board member and an individual who is not a member of the board when that individual is being used as a liaison between, or to conduct a de facto meeting of, board members. Thus, a city manager should refrain from asking each commissioner to state his or her position on a specific matter which will foreseeably be considered by the commission at a public meeting in order to provide the information to the members of the commission. Not all decisions taken by staff, however, need to be made or approved by a board. Thus, the district court concluded in Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. ls` DCA 1978), that the decision to appeal made by legal counsel to a public board after discussions between the legal staff and individual members of the board was not subject to the Sunshine Law. IV) What types of discussions are covered by the Sunshine Law? A) Informal discussions, workshops — The Sunshine Law is, therefore, applicable to all functions of covered boards and commissions, whether formal or informal, which relate to the affairs and duties of the board or commission. "[T]he Sunshine Law does not provide that cases be treated differently based upon their level of public importance." M E M O R A N D U M DATE: December 22, 1995 TO: All Members of All Boards Established by the Board of County Commissioners (including Advisory Boards, Quasi -Judicial Boards and Ad Hoc Committees) FROM: David C. Weigel, County Attorney RE: Government -In -The -Sunshine Law D (Section 286.011, Florida Statutes) As a result of several questions that our office has received from both advisory board members, staff members and members of the public attending meetings, I believe it would be helpful to summarize and clarify the Government -In -The -Sunshine Law to assure that advisory board members (including quasi-judicial board members and ad hoc committee members) are aware of the basic compliance requirements of that law. The Florida Government -In -The -Sunshine Law, Section 286.011, Florida Statutes, commonly referred to as the "Sunshine Law," is a state statute dhich guarantees a public right of access to governmental proceedings and is equally applicable to elected and appointed boards. There are a few exceptions to the Sunshine Law, but for your purposes the Sunshine Law will almost always be applicable to you and your proceedings and, unless otherwise advised by this office, it is critical that you conduct your activities and proceedings with the understanding that the Sunshine Law is applicable to you in all situations. There are other requirements of the Law that _ are usually addressed by County staff (e.g., notice and minutes), however this memo is intended only to address the Sunshine Law as it is applicable to the various board and committee members. This memorandum is not intended to be all-inclusive but rather only to remind you of the basic requirements of the law based on questions that I have recently received. The Sunshine Law prohibits the discussion by two or more members of the same board of anv matter which is before that or action, except at a properly noticed meeting of that board (staff handles the notice requirements). In other words, if two or more board members are talking about county business which is handled by their board, the Sunshine Law considers such activity to be a "meeting" and reasonable notice must be given to the public of any meeting. The reason for this is to provide an opportunity for the public to be present at. the board's decision -making process and to assure that the public 'All Members of All Boards Established by the 7 Board of County Commissioners December 22, 1995 Page 2 is aware of how decisions are made. Below are some commonly asked questions and the answers which may clarify this issue for you. 1. Question: If I have a question about an issue which I know will be discussed at an upcoming meeting, can I communicate with another board member regarding the issue either in person or through the use of a telephone, a fax machine, a computer, letters or memos? Answer: It is a violation of the Sunshine Law to discuss the County business matter which you know will come before your board or which will foreseeably come before your board except at a properly noticed meeting. Although nothing prohibits you from calling another member to ask the time or location of a meeting, any discussion or communica(tion. in person, by telephone or otherwise, of the substance, merits or issues of any County business matter before your board or which foreseeably will come before your board, is a violation of the Sunshine Law. 2. Question: If I am at a meeting of my board and we are on a "break," can I discuss issues before the board with another member during that recess? Answer: It is a violation of the Sunshine Law to discuss matters which are before your board or which foreseeably could come before your board except while you're in session at a properly noticed meeting. Discussion in the hallway or on the way to the meeting or after the meeting are "outside of the sunshine" and are prohibited by the statute. 3. Question: If I am at a breakfast function with six people in attendance and one of them is also an advisory board member (same Board) for the County, is it a violation of the Sunshine Law if an issue to be considered by the advisory board is discussed and, if so, what if I consider it rude to leave the breakfast meeting to avoid being present during such discussion? Answer: I can only advise you on the law and the Sunshine Law requires that you and any other board member present refrain from discussing All Members of All Boards Established by the 8 Board of County Commissioners - -"- December 22, 1995 Page 3 matters on which foreseeable action may be taken. The practical answer is to ask that the matter not be discussed or, at the very_ least, do not participate in the discussion at all (although some Attorney General Opinions do recommend that you actually leave the function, at least during the discussion of such matters). 4. Question: A friend and I, prior to our appointment to an advisory board, always discussed matters that our board now addresses and the only reason we both joined the advisory board was to participate in the process and assist the County. Since we have always discussed these matters, can't we still do so even though we now belong to the same advisory board? Answer: There is no exception in the Sunshine Law for prior interest in the subject matter of the board or prior mutual interests of members of the board. Once you become a member of a county advisory board, the Sunshine Law is applicable and any such discussion of any matter which is scheduled to come before that board or which may foreseeably come before that board is a violation of the Sunshine Law. 5. Question: Can another member of my advisory board and I schedule a meeting with a prominent local businessman, or a local public official or the president of a civic group or any other person to discuss matters which are pending before our advisory board or which may foreseeably come before our advisory board, for example to solicit help or support? Answer: There is no exception to the Sunshine Law for this type of situation and it would be prohibited by the statute. There is no prohibition, however, if only one member of the advisory board is present at a private meeting. 6. Question: My advisory board has a membership of fifteen persons and there are five subcommittees of three members each. Are the subcommittees subject to the Sunshine Law? Answer: There is no exception to the Sunshine Law for subcommittees and all subcommittee meetings -A11 Members of All Boards Established by,the Board of County Commissioners 9 December 22, 1995 Page 4 should be noticed and the public have the opportunity to attend just as if it were a meeting of your full board. This matter will be discussed with the various staff liaisons to the advisory boards and, if it is not being done in every case, it will be done in the future. 7. Question: Can my advisory board adopt rules and policies for the conduct of the board's public meeting? And what about audio or video type recordings of meetings by members of the public? Answer: Reasonable rules and policies which ensure the orderly conduct of.a public meeting and which require orderly behavior on the part of those persons attending a public meeting may be adopted by the board. A rule or policy which prohibits the use of nondisruptive or silent audio or video type recording devices or cameras by the media or others, however, is unreasonable and arbitrary and is,' therefore, invalid. i a. Question: Are there any penalties for violation of the Sunshine Law? Answer:. Any member of a board or commission of any state agency or authority of a county, municipal corporation or political subdivision (which includes all advisory boards) who knowingly violates the Sunshine Law is guilty of a misdemeanor of the second degree. The statutes also impose non -criminal penalties for violation of the Sunshine Law by providing that any public official violating the provisions of the Sunshine Law is guilty of a non -criminal infraction, punishable by a fine not exceeding five hundred dollars. It should be noted that t prohibited by the Sunshine Law meetings (two or more advisory reasonable public notice. The members of the same board from together, golfing or any other which are pending before their come before their board are no ze above situations would be because they are defined as board members present) without Sunshine Law does not prohibit socializing, attending functions activity as long as matters board or which may foreseeably t discussed. All Members of All Boards Established by the 10 Board of County Commissioners December 22, 1995 Page 5 If after reading this memo you have come to the conclusion that the Sunshine Law is construed very strictly and that it places a strict prohibition on your ability to discussyour board's issues with other board members outside of a public meeting, you are absolutely correct. The courts do construe the Sunshine Law very strictly, and I'm sure they will continue to do so. I know that the Board of County Commissioners has always been very appreciative of the work that is done by the members of its various boards and committees and neither the Board of County Commissioners nor this office would want any advisory board member to run into a problem in the course of your assistance to the County. Therefore, my advice would be to,approach this issue cautiously and, when in doubt, assume the Sunshine Law applies. If you would like additional information regarding this matter or if I can provide further details regarding any issue addressed in this memo, please let me know. My office also has copies of the Government -In -The -Sunshine Manual, which is a very comprehensive and well written bock prepared by the Attorney General's office, and we can provide that book to you on a loan basis or for review in our office. dcw/ w113737 cc: Board of County Commissioners Staff Liaisons to Advisory and Quasi -Judicial Boards and Committees naplesnews.com I Printed story To print this page, select File then Print from your browser. URL: httpa/www.naplesnews.com/01/O5/perspective/tl62§063a_htm 11 Perspective I Napir:, Dailil 1rtm, ® EL Perspective front I Perspective archive I help Phil Lewis: Some public servants do care about the public's right to know Sunday, May 27, 2001 By PHIL LEWIS, ppiewis@naplesnews.com I must admit I was cynical. I wasn't expecting much from agenda item No. 2 at this month's Collier County Airport Authority meeting. Three lawyers on the county government payroll had just arrived with a stack of books, a laptop computer and a Powerpoint presentation. They were there to review the state Sunshine Law, the Florida public records law and the various laws concerning ethics as they pertain to public officials. It was part of a continuing mission by Collier County government to school its various public boards on open government and the public's right to know. I guess I was expecting a dog -and -pony show that, at best, would give lip service to the importance of open meetings, open records and ethics in government. At worst, I was prepared to hear ways that public officials could follow the letter of the law while skirting the intent if that was their desire. I'll blame my cynicism on years of frustration trying to get public agencies to follow what essentially are simple, straightforward laws. The frustration has put me on first -name basis with a half -dozen First Amendment attorneys. A few short minutes into the presentation by county attorneys David Weigel, Ramiero Manalich and Michael Pettit, I had a sudden urge to pinch myself. This was too good to be true. Phil Lewis is the editor of the Naples Daily News. These guys were echoing the comments of the attorneys who show up at press association conventions to beat the drum For the public's right to know. These guys read the law the way I read the law. At the end of their 90-minute presentation, it struck me that of all the public agencies the newspaper has dealt with the past four or five years, Collier County government has been the most open. Delays in providing public documents have been rare. So have run-arounds by attorneys and public information officers. There have been no unwarranted, hefty bills assessed for finding public documents. I found myself wishing that the Board of County Commissioners could loan out their legal team to a number of other public boards and agencies. A short list follows: 1. The Collier County School Board. Four of the elected members have met more than once at local restaurants following board meetings. They insist the meetings are innocent. The message from the county legal team would be simple: "Don't eat lunch together." 2. Lee County School Board. Elected members met behind closed doors in April to discuss land donation involving a http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story 12 developer in the Bonita Springs area. They incorrectly surmised the private meeting was allowed by state law because they might be party to a lawsuit involving the development. The message from the Collier County legal team would be simple: "The threat of litigation is not sufficient" to hold a closed meeting. 3. North Naples Fire District. There have been so many problems here, the legal team could schedule a multi -day retreat. This spring, repeated requests for public records were routinely put on the back burner for weeks at a time. Unwarranted fees were initially charged for providing public documents. Now, the newspaper is being told there's a chance some public documents will never be found because of "Y2K" problems. The message from the Collier County legal team would be: "The restrictions a public entity may place on access to public records for reasons of administrative convenience, cost or other factors are narrow and limited." They don't include, "We'll give them to you when we find them." 4. A second visit to both the Collier and Lee County school boards. Administrators for both boards admit they give elected board members public documents days before they will release the same documents to the public. That's a clear violation of law. The county legal team's guide book states: "Any local enactment of policy which purports to dictate additional conditions or restrictions on access to public records is of dubious validity." Dubious indeed. Agenda item No. 2 at the Collier County Airport Authority meeting this month was a refreshing reminder that some public servants do care about the public's right to know and do take seriously the laws that safeguard open government. Phil Lewis is the editor of the Naples Dail, News. He can be reached via e-mail at lewis@naplesnews.com. ® E_mai_this-story to a_friend_. i�.L Format this story for printing_ A Search our archive for related stories: advanced search Navigation: Go to today's Persoective section front Go to our 7-day Perspective_archive Go to another section... Also in today's Perspective section: Editorial: Airoort security Editorial: Stadium Naples Guest commentary: 'I'm old —antl owed' Guest commentary: China's three lies Guest commentay: Could Prozac have saved the dinosaurs Guest commentary: Rename your city for fun and profit Guest commentary: The rush to get around campaign finance reform Guest editorial: A green light to soy Guest editorial: Airport security, 14 months later Guest editorial: Crying wolf — Guest editorial: Fiohting for reform in Iran Guest editorial Res h a oingyovernment Guest editorialk Spying, but on whom Guest editorial: The IFK file Guest editorial: Wafflino on the West Bank Jay Ambrose- Dreamers and tyranny _ Letters to the editor Martin Schram: Abba Eban's LB] experience http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story To print this page, select File then Print from your browser. UFL: http://www.naplesnews.coM01/O6/perspective/tl635539a.htm 13 Perspective I 'Naplr!, +liaitij lrwm, iL A Perspective front I Ferspective archive I help Editorial: Local governmental bodies should embrace 'openness' Tuesday, June 19, 2001 Daily News Southwest Florida politicians — elected by the public to do the public's business — wrestle with the state's Sunshine Law these days. Too many of them regard Florida's collective open meetings and records legislation, among the finest in the nation, as a nuisance. That becomes a self-fulfilling prophecy when the media and other citizens belatedly learn of impromptu discussions held outside full public view, as was the case last week with some members of the Marco City Council, or even happen upon a "non -meeting" meeting over lunch, as was the case last month with some members of the Collier County School Board. The best and most fundamental way to accentuate the positive of what a political board is doing for the public is to do what the law says — meet and talk only in full public view. If more opportunities were sought out to do that, it would be a better atmosphere for all. If elected officials are offended by that as antagonism by an adversarial press, so be it. We'll keep siding with the public's right to know. ® E-mail this story to a friend IL Format this story for printing. A Search our archive for related stories: l advanced search Navigation: -- Go to today's Perspective section front Go to our 7-day Perspective archive Go to another section... Also in today's Perspective section: Editorial, Airport security Editorial• Stadium Naples Guest commentary: 'I'm old — and owed' Guest commentary: China's three lies Guest commentary: Could Prozac have saved the dinosaurs? Guest commentary: Rename your city for fun and grofit http://cfapps.napiesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story To print this page, select File then Print from your browser. UHL: http://www.naplesnews.com/02/03/marco/d772526a_hlm 14 Perspective � `�-1E�C�� 5_-1�1L� L:'�GL= IL A perfective front i Perspective an i_v_e I help Editorial: Let the sun shine Wednesday, March 11, 2007 Eagle sataff 3pen access to government proceedings and open public records are essential for the functioning of democracy. Democracy only works if the people know what's going on in their government. That's why Florida's landmark open ,ecords act, passed in 1967, is called the "Sunshine" Law. It illuminates the dark dealings and lets the public view the workings of government. In the broad sense, what the Sunshine Law does is establish the presumption that all state and local governments must operate in the open. In a more narrow and practical sense, it does things like making it unlawful for a public body, like a city council, to negotiate contracts or strike deals in secret. It forces disclosure of the financial ties of public officials. It enables :itizens to discover if a candidate for office has a criminal record, such as DUI. It lets citizens find out if a candidate for a public position, such as school board superintendent, has been discharged from a similar position with cause. Every year, the legislature is bombarded with bills that call for exemptions to the Sunshine Law. Usually, they're pushed by special interests that don't want their dealings to be open to the light. This year is no different, with no fewer than 14 amendments approved by a Senate committee on Monday alone. Often, the exemptions are cited as necessary because of the voracious curiosity of newspapers and other news media. But that's just a smokescreen. Newspapers and media have the resources to obtain information on their own, Sunshine Act or no. It's the people whose interest the Sunshine Law protects. Tell your state representatives you don't need exemptions to your right to know. E-mail this story to a friend_ I Format this story for printing, A Search our archive for related stories: advanced search Navigation: 50 to today's Perspective section front 3o to our 7-day Perspective archive Go to another section... Also in today's Perspective section: Editorial: Airport 4e urit _ http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story To print this page, select File then Print from your browser. URL http://www.naplesnews.pom/01/OS/nap-es/d636000_a.him 15 Naples 11t*5 +lcli1l11clll, ® E 0 Naples front I Naples archive I help Sheriff's Office investigating possible Sunshine Law violations by school board members Friday, May 11, 2001 Daily News staff The Collier County Sheriffs Office is investigating possible Sunshine Law violations by Schools Superintendent Dan White and four School Board members during lunch last week at a local delicatessen. Assistant State Attorney Amira Swett said Thursday that the Sheriffs Office is doing the investigation, and that it may be turned over to her office after investigators report their findings. "It gets to our office sometime down the road after the Sheriffs Office completes its investigation," said Swett, who heads the Naples prosecutors office. Sgt. David White, who heads the economics crimes unit for the Sheriffs Office, said he assigned the investigation to an investigator Thursday morning. White said he didn't know how long the investigation would take. A local watchdog group, the Collier Alliance for Responsible Education, decided Tuesday to ask for an investigation. But when its president, Nancy Neal, later called local state officials to ask what the procedure was, she said she was told the Sheriffs Office was investigating. "It sounds like they're taking it seriously," Neal said Thursday morning. "We'll see how they handle it. I'm looking forward to it." Linda Abbott, the only board member who did not attend the lunch, has said her colleagues gave the wrong impression by dining together and showed a "blatant disregard of the law." Florida's Government in the Sunshine laws, which govern what elected officials can and can't do under state statutes, don't prohibit members of the same elected body from meeting for lunch or other social events. But the laws do prohibit them from discussing School Board matters that may come before them for consideration. White, School Board Chairwoman Anne Goodnight, Vice Chairman Don York and board member Pam Cox were sitting together at a table at Schlotzsky's restaurant on Airport -Pulling Road after the May 3 board meeting when Daily News reporter Marci Elliott walked in and saw them sitting together. Board member Nelson Faerber came in later, pulled up a chair and joined the group. Elliott said she walked up to the table where the School Board members were sitting and said, "I thought the board meeting had ended." Elliott said she then excused herself and walked away, while the board members and White kept on talking. http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story 16 Elliott said she sat at a nearby table and could hear White and the board members talking, though she couldn't decipher everything that was being said over the restaurant's ambient music. But she said she did hear White say, "Boy Scouts" and "She's pushing it." "I nearly fell out of my chair," Elliott said. Earlier, at the School Board meeting, Abbott had asked if there were a waiver to the School District's facility -use policy regarding use of schools by non-profit groups. Abbott, who's on the Boy Scout District Council, said the scouts were being charged $5,000 to use Naples High School this year for a week-long Cub Scout day camp and didn't have that kind of money. Abbott said the charge had been $1,275 the year before, and $500 the year before that. She said representatives from the Boy Scout council needed to know soon if they could get a waiver because they were on a tight deadline since the camp is supposed to start the week after school is out. No decision was made on Abbott's request for a waiver, and White said he would check on it immediately after the School Board meeting. The board is scheduled to revisit the matter May 17. Later when contacted by Elliott, White said he couldn't recall saying "Boy Scouts" or "She's pushing it" at lunch with the board members. Neither could Goodnight, York, Cox and Faerber. Each of them denied discussing School Board business at Schlotzsky's. ® E-mail this story to a friend, Ir---L Format_ this story for printing. A Search our archive for related stories: advanced search Navigation: Go to today's Naples section front Go to our 7-day Naples archive IGo to another section.._ Also in today's Naples section: Collier approves plan to settle Manatee Resort issue Commissioners adopt growth plan changes Commissioners approve settlement offer in Apuaport lawsuit Dilute divides members of Hispanic Affairs Advisory Boartl Estates residents urged to have wells tested Halas Coyle sworn in as Collier commissioners Idea of niaht commission meetinpsplit to sleep Jury deliberations in Roshod Hampton case to go into second day Lights out' Collier pulls the olug on neon signs Man's body found west of Gordon Pass in Gulf of Mexico New School Board selects Abbott chairwoman Photo: Colonial Day Police Beat: Crime reports for Collier County Police: Man broke into neighbor's home kissed woman Price tag still an issue in Norris Center plans Public's help sought in finding wayward manatee Response negative on proposed designs for three Naples marinas Feedback: E-mail the naplesnews com staff Write a letter to the editor View our directory of Daily News staff Sign up to receive our free Digital Digest by e-mail Send a Daily News reporter a story suggestion http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story 17 To print this page, select File then Print from your browser. URL ntp://www.naplesnews.corN01/05// s ve/d617542a.hlm Perspective 11apL5 !�ai1i1 Xrimr, ® IL Perspective front I Perspective archive I he_W Collier County School Board: Appearances do matter Wednesday, May 9, 2001 The Naples Daily News It's the kind of story that brings taxpayers' blood to a near -instant boil: Four of the five Collier County School Board members and the superintendent enjoy lunch together at a sandwich shop after Thursday's board meeting. Spotted by chance by a reporter who had thought the board was through meeting for the day, their conversation was overheard to mention public business — after-hours school rentals to Boy Scouts, raised at the formal meeting by the lone board member who was not invited to dine, Linda Abbott. If invited, Abbott would have had in mind the admonition of the lobby that looks out for the interests of board members statewide: don't go; eat on your own. What brings public blood from simmer to boil is the contempt displayed by these four board members and the superintendent for the public and public -interest govemment-in-the-sunshine laws. They expect citizens — who know Abbott is the outcast because she is new and asks hard questions — to play along with the explanation that everything is OK with lunch because the banter was private and casual, they don't dine together in private all that often and it was sort of coincidental that they wound up at the same place, Schlotzky's. And some Collier County staff members and former county commissioners thought all those ethical scandals were just about golf. At least the School Board is consistent. Most members' allegiance to sunshine laws matches their regard for no -gifts or conflict -of -interest laws: Who needs them? Trust us. Rather, they ought to know what their constituents know — that conflicts, like cozy lunches, are to be avoided for the appearance of wrongdoing. That goes double when $14 million is tossed around for a five -story administration building targeted for downsizing by so many citizens while board members, except Abbott, are unwavering in their support. School Board members are not elected to be pals or do lunch. If that were their goal they should have skipped running for public office. The hyper -concerned political culture of Marco Island, where police last year reported a secretive City Council mini - meeting in a classic case of mistaken identity, is better than this board's clubby, nonchalant approach. Compare two comments: e Board member Nelson Faerber: "Under the law you can do that, as long as you don't discuss School Board business." e Watchdog group leader Nancy Neal: "They constantly amaze me with their ignorance and their arrogance." http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story Neal's measured assessment is more in sync with the public. 18 ® E-mail this story to a_friend, II Format this story for printing, A Search our archive for related stories:. �— ' advanced search Navigation: Go to today's Perspective section front Go to our 7-day—Perspective archive Go to another section... . Also in today's Perspective section: Editorial: Airport security Editorial: Stadium Naples Guest commentary: 'I'm old — and owed' Guest_ commentary: China's three lies Guest commentary: Coufd Prozac have saved the dinosaurs? Guest commentary: Rename your city for fun and profit Guest commentary: The rush to get arountl campaign finance reform Guest editorial: A greenlight to soy, Guest editorial: Airport security. 14 months later Guest editorial; Crying wolf Guest editorial_ Fighting for reform in Iran Guest editorial: Reshaping.gove_rnment Guest editorial Spying but on whom? Guest editorial: The JFK file Guest editorial: Waffling on the West Bank Jay Ambrose: Dreamers and tvrann Letters to the editor Martin Schram: Abba Eban's LB) experience Paul Krugman: Victors and spoils Feedback: E-mail the naplesnews.com staff Write a letter to the editor View our directory of Daily News staff Sign up to receive our free Digital Digest by a -mail Send a Daily News reporter a story suggestion I/l Copyright O 2000 Naples Daily News. All rights reserved. A Scripps Howard newspaper. Please read our user agreement and privacy policy. http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story IV, To print this page, select File then Print from your browser. URL: ham://www_naplesnews coMQl/Q6/marco/tl649491 a,htm Marco I1 t}ilr J 1il}� 1r111� cd E A Marco front I Marco archive I help Dignitary's visit fuels Sunshine Law questions Spending cap discussed at meeting of three councilmen, Tallahassee mayor Saturday, June 16, 2001 By ALAN SCHER ZAGIER, aszagier@naplesnews.com MARco ISLAND — An invitation -only meeting of Marco Island city officials and the mayor of Tallahassee this week led to an impromptu discussion of the fiscal spending cap by three City Council members, raising questions of a potential Sunshine Law violation. The Monday meeting in the office of City Manager Bill Moss was billed as a visit by Scott Maddox, mayor of the Panhandle city and president of the Florida League of Cities. Moss extended invitations to the five council members in a June 5 memo, writing that "should your schedule permit, please stop by to meet with Mayor Maddox." Three council members did stop by — Mike Minozzi, Kjell Pettersen and Glenn Tucker. A Daily News reporter also attended the session by invitation. Among the issues raised, by Minozzi, was the upcoming referendum on the spending cap, which by city charter limits municipal spending to a 3 percent increase from the previous year's expenditures, plus a cost -of -living increase. Each of the three council members in attendance favors repeal of the cap. State open government laws require that "reasonable notice" of city meetings be given to the public. For council meetings and other official proceedings, that typically includes published legal notices in local newspapers, press releases and posted notices in public locations. According to the state Attorney General's Government in the Sunshine Manual, the law applies to "any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission." City participants said the meeting was essentially ceremonial, and that the presence of a reporter fulfilled the public notification requirements. "The press was there," TUCker said. "All the dialogue was between a council member and Mr. Maddox. Council members aren't prohibited from being in the same place as long as they don't discuss public business with each other. Each one of us had a few comments with the mayor, but we didn't discuss anything with each other." Minozzi prefaced his remarks about the cap by asking Moss if such a discussion would violate Sunshine Law tenets. Moss said it wouldn't, and on Friday he reiterated that opinion. "I did not consider that to be a public meeting," he said. "There was no intent to keep anything out of the sunshine." At least one active opponent to removing the cap felt differently. http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story 20 "It certainly is something that should be questioned," said Robert Duklauer, who with several other cap supporters recently took out a full -page ad in local papers under the moniker of the "Cap the Blank Check Team." "If three councilmen meet, they must make the meeting known in advance. They're justifying it after the fact." At Collier County government headquarters, county attorneys and public information workers routinely issue press releases about gatherings that aren't official meetings of commissioners if it's anticipated that two or more elected officials might attend, County Attorney David Weigel said Friday. Most recently, the county sent advance notice about a meeting of the local Republican Party, where more than one commissioner showed up to discuss the proposed tax increase to finance indigent health care. "We knew we had the potential for more than one commissioner to be at a function ... on an issue that is before them," Weigel said. "It can be called precautionary, but it can also be called good government... We go the extra measure." Maddox, who is visiting more than 400 Florida cities on his statewide tour, said he leaves notification of the public up to each individual community. Some cities have scheduled special council meetings where "the only thing on the agenda is me," he said. But even at those sessions, "no one (from the public) has ever showed up," Maddox noted. "What I'm talking about is what kind of job the League of Cities can do for them in Tallahassee. It's pretty boring." Boring or not, local governments have an obligation to let citizens know when public business might be discussed by their elected officials, no matter how informal the setting or how brief the dialogue, Daily News Editor Phil Lewis said. "When elected officials get together to discuss the public business, the public should be aware," he said. "There was no notice that there might be a discussion by public officials on the spending cap... Even though we had a reporter there, the public should be afforded an opportunity to attend." E-mail this story to a friend. & Format this story for printing. A Search our archive for related stories: 'advanced search Navigation: Go to today's Marco section front Go to our 7-day Marco archive Go to another section.._; Also in this week's Marco Island Eagle: 'Tis the season to volunteer for Christmas Style events 'Vegas Night' a no-oamble win for Tommie Barfield Angler's Outlook: Smells like a fin, tastes like a fish it probably is a fish Anglers now tell of fish that got awav after officer's visit At the Movies: New Potter movie naturally sticks to the original's formula_ Beach advisory oroect is overdue Bimini's fund-raiser to help blind twins Citzens for a Better Marco to discuss spending cap Clam farming plans stalled as few quahogs found for study_ Community Notes Editorial Cartoon Editorial, Collier Boulevard project has merit Estate Planning: 'Trust' your insurance for oreater flexibilityand distribution http://cfapps.naplesnews.con>/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story fo print this page, select File then Print from your browser. JRU htip://www.naplesnews.poM02/03/naples/g773939a.htm 21 Naples � 1a}tlr�� 1t1i1>.� lrul, Naples front I Naples archiv I halo Sunshine Law questions arise over Collier EAC e-mail exchanges 'riday, March 8, 2002 3y ERIC STAATS, emstaats@naolesnews.com The Collier County Attorney's Office is looking into whether recent e-mail exchanges between members of the county's Environmental Advisory Council violate the state's open meetings law, the office's chief assistant attorney said. The law, commonly called the Sunshine Law, forbids members of elected or appointed public boards from discussing, tutside of a public meeting, matters that could come before their board. The e-mails at issue deal with a proposal to guide growth across 15,000 acres in North Belle Meade, a rural area north A Interstate 75 and east of Collier Boulevard. The area falls under a 1999 state order requiring the county to do a better ,ob protecting the environment. EAC member Michael Coe objects to the proposal on the grounds that it didn't receive proper county scrutiny before ;ounty commissioners voted Monday to make it part of the county's response to the 1999 order. A final vote is set for June 18. hief Assistant County Attorney Ramiro Manalich said this week that he hadn't seen the a -mails at issue nor come to any conclusions about whether they violated the Sunshine Law. 'At this point we will follow up on this to see what we're dealing with," Manalich said. oe, who sent an initial e-mail that prompted questions about compliance with the Sunshine Law, said the a -mails were .vithin the bounds of the law. 'There is no Sunshine Law being broken," said Coe, a retired stockbroker. "There's no doubt in my mind." Coe wrote an e-mail Feb. 23 to six other EAC members and county environmental reviewer Barbara Burgeson, a :ounty staff liaison to the EAC. The e-mail said: "I would like to have the North Belle Meade agreement brought before the EAC at our next meeting Vlarch 6 as it by-passed our committee. I want to make sure it meets the county environmental directives, codes, etc. ?lease e-mail me whether you agree or disagree. I intend to notify staff to have all the players there and to ensure that it is a public meeting. Mickey." EAC members Ed Carlson, Erica Lynne and Tom Sansbury responded to Coe's e-mail, indicating they agreed or had no objection to putting the North Belle Meade agreement on the agenda. EAC member Allie Santoro responded that she too agreed, commenting that she was unclear about the agreement's effect and asking that it be mailed ahead of time. http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story 22 3AC member Bill Hill wasn't included in the list of e-mail recipients. Two other EAC members, Larry Stone ana Alfred Gal, said Thursday that they didn't respond to the e-mail. Dn Feb. 24, Coe sent an e-mail to Burgeson and Community Development and Environmental Services Administrator Joe Schmitt notifying them that a majority of EAC members wanted to put the agreement on the March 6 agenda. vlanalich said the Sunshine Law generally does not prohibit "one-way communications" to fellow members of appointed boards like the EAC but that "it may be problematic" if the communication invites a response or results in a response. Discussions about scheduling issues "may or may not be a Sunshine issue," Manalich said. kt its March 6 meeting, the EAC voted 4-2 to approve the deal, with Coe and EAC member Alfred Gal dissenting, but needed a vote of five in favor to make a formal recommendation to the County Commission. The vote was conditioned on county reviewers having a chance to fine-tune the agreement before the June 18 vote. The agreement is the result of negotiations among Florida Wildlife Federation, Collier Audubon Society, North Belle Meade landowner East Naples Land Co. and the Collier County School District. The deal settles part of a lawsuit the environmental groups filed against Collier County in 2000 to challenge the Boundaries of proposed Natural Resource Protection Areas, including in North Belle Meade. North Belle Meade would be divvied up into areas where growth would be encouraged and where growth would be -estricted. In exchange for giving up rights to half of its 3,000 acres or so, East Naples Land Co. would be able to develop its -)they holdings in North Belle Meade with an exemption from county rules to protect wildlife and groundwater and and clearing. _oe criticized the agreement Wednesday as being hatched "under the table and out of the eyes of the Sunshine." E-mail this story to a friend, L Format this story for orintina p Search our archive for related stories: 'advanced search 4avigation: Go to today's Naples section front Go to our 7-day Naples archive rGo to another section... j 41so in today's Naples section: http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story To print this page, select File then Print from your browser. 23 URL: hn» t ://www.nap_lesnews.coM02/05/bonita/d7O6721a.htm Bonita I Bonita Banner 2 a ,p Bonita front I Bonita archive I help A look at Bonita's elected officials and the Sunshine Law Saturday, May 4, 2002 By CHRISTINE GIRARDIN, crgirardin@naplesnews.com and JEREMY COX, jgcox@naplesnews.com Fraternal Order of Eagles officials are pleading their case for longer drinking hours. The decision is up to Bonita Springs City Council members. To the uninformed visitor, the sight of the six council members and mayor sitting purposefully on one side of a long table might resemble Michelangelo's painting, "The Last Supper." They're arranged that way for a reason: The public's ability to hear their elected officials and participate in debate are foundations of the political process. But Eagles Club members aren't hearing everything their representatives have to say during the April 3 City Council meeting. Tilting away from the table and his microphone, Councilman Wayne Edsall mutters something he intends only Councilman Bob Wagner to hear. Did that whispered conversation have anything to do with the fate of the Eagles' request? Only Edsall and Wagner will ever know. As innocuous as this incident seems, it's just one of many similar incidents Banner reporters observed in April. Springs ; imendc' 7 rt: strict; "', Bonita Springs City Council members Bob Wagner and David Piper discuss the boundaries of a proposed map of new city council districts during a break in the April 17 council meeting. After this photo was taken, Mayor Paul Pass and City Attorney Audrey Vance reminded council members that discussions away from the microphone during meetings could violate the state's Sunshine Law. Photo by Cameron Gillie Whether conversations were murmured behind cupped hands during public meetings or spoken over the lunchtime din at Dolly's Restaurant, it's impossible to tell if council members were doing all of the public's business in earshot of the public. Under Florida statutes governing public records and meetings, collectively known as the Sunshine Law, people must be informed in advance of any meeting of two or more council members when they are talking about anything the full board is also likely to discuss. The law is designed to give the public access to the decision -making process used by elected officials. In the two years since they took office, Bonita Springs City Council members have been reminded time and again the importance of following the Sunshine Laws. But in April alone, a Banner investigation turned up dozens of potential violations of the law committed by council members. For example, Mayor Paul Pass and Councilman Jay Arend regularly lunch together and have been overheard discussing the city's draft comprehensive plan and a proposed ordinance to regulate garage sales. Other council members routinely http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story 24 Nave private discussions during public meetings simply by leaning away from their microphones. They also huddle during recesses. At the April 3 meeting, there were at least 12 instances in which two council members spoke to each other away from the microphones, including conversations between Arend and Edsall, Councilmen David Piper and John Warfield, and Wagner and Edsall. Council members don't deny having occasional conversations together but insist the content of those talks doesn't break he law. "We may have talked about city business, but it's nothing that may come up for a vote," Arend said, adding he may lave discussed with other council members some issues that have been settled. Florida Sunshine Laws, however, do not recognize a difference between old and new city business, says Barbara Petersen, president of the First Amendment Foundation. In addition, once public officials have been warned about the .aw, they cannot claim ignorance of it and face the possibility of stiffer penalties for violating it, she said. The watchdog group monitors the state's Sunshine Laws and any legislative attempts to change them. "ity Attorney Audrey Vance said council members were educated about the Sunshine Laws in several workshops, some with Petersen. Vance didn't admit or deny that council members may have violated the laws. 'It's like speeding. Some people are going to follow (the speed limit), some people are not," Vance said, adding that some people don't object to breaking laws they deem minor. Petersen, however, said the Sunshine Laws are anything but minor inconveniences to public officials. 'The fact is they are elected to office and in taking office they swear to uphold the (Florida) Constitution and laws of this state, and if they're not interested in upholding the Constitution and laws of this state, they have no business running for office," Petersen said. Phe penalties for breaking the Sunshine Laws are also more severe than those for speeding. Public officials who unintentionally violate the Open Meetings Law can face a fine up to $500. Knowingly violating the law can bring a second-degree misdemeanor charge, up to 60 days in jail and -or a fine of up to $500. Elected officials who knowingly violate the law can also be removed from office, according to the 357-page Government -in - .he -Sunshine Manual, a reference guide to the laws. Vance said what may seem like violations to someone who watches council meetings might not meet the standard for breaking the law. Only courts have the final say in that. But if a court finds that public officials' actions did involve secret meetings or discussions, it can reverse decisions that resulted from those meetings. Prosecutions do happen. Petersen said City Council members should take notice of the actions state officials are taking against Escambia County commissioners this week. In the Panhandle county, a state grand jury indicted four of the county's five commissioners, including former Florida Senate President W.D. Childers, on charges of violating Florida's Sunshine Laws. Investigators say the commissioners were involved in secret meetings and accepted bribes from real estate brokers, who sold the county two defunct business for $6.3 million, according to published reports. Gov. Jeb Bush has suspended the commissioners. Pass is adamant that Bonita Springs council members are not guilty of any wrongdoing regarding Sunshine Laws. http://cfapps.naplesnews.com/sendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story 25 "If you have a specific date, time and place, prosecute us. Don't try to stir up rumor and innuendo when in tact there's nothing there," he said. Pass and Arend had lunch together at least three times in April and on at least one of those occasions they were joined by Wagner. City Manager Gary Price also attends the lunches and reminds council members not to discuss city business, said Arend. Lunches among some council members is not a new phenomenon. It's been happening since shortly after they took office in 2000. Councilman Ben Nelson said he has been asked many times to join his colleagues for lunch, but always declines oecause he worries observers could assume everyone at the table is discussing official business. "It would be so tempting to say, 'Hey, did you see that streetlight down there? Let's do something about it.' It's just that easy," Nelson said. Nelson may have a point. Arend, Pass and Price met at Dolly's for lunch after a two-hour public hearing April 22 in which council members approved the Bonita Village town center project. Over the special of the day, beef stroganoff, Pass asked Arend to tell him what he had missed at the previous hearing about the city's draft comprehensive plan. They did so with a Banner reporter in attendance. Arend told Pass all that was left were minor details such as the conservation/coastal element. The two also talked about the feasibility of setting up an ordinance to handle garage sales. Asked about the conversation Thursday, Pass said he did not recall it taking place. Arend sees the lunches as a harmless opportunity to visit with a friend. "It's all perception, really. I don't feel I've done any violating, and I don't think Paul's done any violating. There's no law that says we can't be together. I respect and honor Paul, and I wouldn't do anything to jeopardize or harm his future," Arend said. In early April, Price, Arend and Pass met with Capt. Richard Younger, the new commander at the Lee County Sheriffs South District in Bonita Springs. Younger said the meeting in city offices lasted 30 to 45 minutes and was primarily social, but they did briefly discuss a city plan to contract two deputies for extra patrols in the city. "It was more of a social -get -to -know -each -other business meeting," Younger said. On April 10, City Council members met in a special workshop to discuss the then -proposed routes for the leg of Three Oaks Parkway between East Terry Street and the area of Sand Road. During the two-hour meeting, Warfield and Piper had several conversations away from the microphones, often referring to each other's information packets. On one occasion, Piper shaded his mouth as he whispered in Warfield's ear. Warfield says he knows he -has those types of conversations, but added he's usually talking about mundane topics such as Piper's recent marriage and the price of new trucks. "It had nothing to do with the meeting," Warfield said. Piper said he is confident he has never violated Sunshine Laws at council meetings, but sometimes has trouble hearing all the conversations. "I read every bit of my material, but sometimes I turn to Ben (Nelson) or John Warfield and say, 'Where are we?' Never have I said anything that could be unethical," Piper said. http://cfapps.napiesnews.conVsendlink/printthis.cfm 11/20/2002 naplesnews.com I Printed story 26 These unrecorded discussions during meetings are common. During a 10-minute recess at the April 1 / meeting, Arend and Nelson wandered over to a proposed map of new city political districts. With their backs turned to the rest of the room, they pointed at areas on the map in reference to their districts. "But Dean Street is the dividing line," Arend said. "But I have all my constituents in here and have done a lot of work in there," Nelson replied. Also at that meeting, Wagner and Piper spent some time discussing the district lines while standing in front of the map. After a Banner photographer recorded the incident, Pass and Vance reminded council members that discussions away from the microphone during meetings could violate the Sunshine Laws. Dn Wednesday, council members approved a new district map. The vote was unanimous. Wagner said he knows the Sunshine Laws by heart, so he keeps his chats with fellow council members general. He added that he didn't bring up city business on the few occasions he golfed with Edsall. 'Wayne (Edsall) and I absolutely make a supreme effort not to discuss city business. I think the closest we come to that s maybe to discuss individuals. Like, maybe I wonder why Jay (Arend) doesn't join us. He works at Copperleaf (Golf Club), maybe he could get us a free round. It's just social," Wagner said. He hasn't golfed with Edsall in several months, he added. Denials and hearsay make it difficult for investigators to prosecute alleged Sunshine Law violations. Although any :itizen can file a complaint with the State Attorney's Office, prosecutors don't typically get involved unless violations are obvious and willful, said Petersen. Complaints also can be filed with the Florida Commission on Ethics. 'I certainly think the weakest point in the law is the enforcement provisions," she said. Several council members say they have nothing to fear from an investigation into their conduct. Chats over a lunch .able don't stray into the city's goings-on. Conversations during council meetings are harmless, they say. As for whisperings during meetings, Edsall said nothing but generalities are exchanged. 'I can tell you it is absolutely never a conversation on how are you voting on this or what do you think about this," he said. But he admitted that the lunchtime meetings could give the appearance of impropriety. Vance said council members should do everything within their power to avoid just that. Violating the Sunshine Laws is a criminal activity that should be taken seriously, she said. Piper agreed. 'I think the Sunshine Law is spectacular," he said. "Sometimes it might slow down progress, but I like it that way oecause the public knows what's going on, and everything's being done above board." MEN Contact Christine Girardin at 213-6036 or by e-mail at crgirardirf @naplesnews.cont; contact Jeremy Cox at 213-6041 or by e-mail at Jgcox@naplesnews.com E-mail this story to a friend. Format this story for orintmg. http://cfapps.naplesnews.con/sendlink/printthis.cfm 11/20/2002 27 Government -in -the -Sunshine Manual Chapter updated. 01/17/2002 What agencies are covered by the Sunshine Law? B. WHAT AGENCIES ARE COVERED BY THE SUNSHINE LAW? 1. Are all public agencies subject to the Sunshine Law? The Government in the Sunshine Law applies to "any board or commission of any state agency or authority or of any agency or authority of any county, nunicipal corporation, or political subdivision." The statute thus applies to public collegial bodies within this state, at the local as well as state level. City _?f Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971). It is equally applicable to alected and appointed boards or commissions. AGO 73-223. Florida courts have stated that it was the Legislature's intent to extend application of the Sunshine Law so as to bind "every 'board or commission' of the state, or of any county or political subdivision over which it has -dominion and control." Times Publishing Company v. Williams, 222 So. 2d 470, 4-73 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami 'Ierald Publishing Company, 462 So. 2d 821 (Fla. 1985). And see, Turner v. Wainwright, 379 So. 2d 148, 155 (Fla. 1st DCA 1980), affirmed and remanded, 389 So. 2d 1181 (Fla. 1980) (rejecting a board's argument that a .egislative requirement that certain board meetings must be open to the public implies that the board could meet privately to discuss other matters). Based upon the specific terms of the statute and the "dominion and control" test approved by the courts, the following are some of the entities which have been found by this office to fall within the scope of the Sunshine Law: civil service boards--AGOs 79-63, 73-370, 71-29 (municipal) and 80-27 (sheriTf); county and municipal boards--AGOs 85-55 (downtown redevelopment task force), 83-43 (board of adjustment), 76-230 (beautification committee), and 73-366 (board of governors of municipal country club); interlocal agreement boards--AGOs 84-16 (five -county consortium created pursuant to Florida Interlocal Cooperation Act), 82-66 http://legal I.fim.edu/sun.nsf/ I a9972cc3Oebe4Od852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 1R (regional sewer facility board), 76-193 (Central Florida Commission on the Status of Women), and Inf. Op. to Nicoletti, November 18, 1987 (Loxahatchee Council of Governments, Inc.); mental health boards --AGO 76-202; regulatory boards--AGOs 76-225 (accountancy), and 74-84 (dentistry); special district boards--AGOs 74-169 (fire control district), and 73- 08 (mosquito control district). 2. Are advisory boards which make recommendations or committees established only for fact-finding subject to the Sunshine Law? a. Publicly created advisory boards which make recommendations Advisory boards whose powers are limited to making recommendations to a public agency and which possess no authority to bind that agency in any way are subject to the Sunshine Law. Town of Palm Beach v. Gradison, 296 So. 2d 173 (Fla. 1974). Accord, Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535 So. 2d 694 (Fla. 3d DCA 1988). "Mhe Sunshine Law equally binds all members of governmental bodies, be they advisory committee members or elected officials." Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 869 (Fla. 3d DCA 1994). And see, Lyon v. Lake County, 765 So. 2d . 785 (Fla. 5th DCA 2000) (Sunshine Law applies to site plan review committee created by county commission to serve in an advisory capacity to the county manager). This office has issued numerous opinions discussing the application of the Sunshine Law to advisory committees. The following are some of the advisory -omtnittees which have been found to be subject to the Sunshine Law: community issues advisory bodies--AGOs 98-13 (citizen advisory committee appointed by city council to make recommendations to the council regarding city government and city services), 93-41 (criminal justice commission established by county ordinance to develop and make recommendations on criminal justice issues in the county), and 85-55 (community certification committee organized for the purpose of qualifying city as a blue chip community under a program of the Department of Commerce); employee or personnel advisory bodies -- AGOs 96-32 (employee advisory committee), 92-26 (committee responsible for making recommendations to city council on personnel matters), 84-70 and 74-290 (grievance committees); http://legal l .fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5 afd852566f30055f8c 5... 12/4/2002 29 education advisory bodies -- AGO 74-267 (Council of Deans appointed by state university president), Inf. Ops. to Hughes, February 17, 1995, and Boyd, March 14, 1994 (school advisory councils); land planning or property acquisition advisory bodies -- AGOs 87-42 (ad hoc committee appointed by mayor to meet with the Chamber of Commerce to discuss a proposed transfer of city property), and 86-51 (land selection committee appointed by water management district to evaluate and recommend projects for acquisition); legislation implementation advisory bodies -- AGOs 92-79 (advisory committee appointed to assist state agency with the implementation of legislation), and 85-76 (ad hoc committee appointed by mayor for purpose of making recommendations concerning legislation). Che Sunshine Law applies to advisory committees that are appointed by a single public official as well as those appointed by a collegial board. See, e.g., 'Vood v. Marston, 442 So. 2d 934 (Fla. 1983) (Sunshine Law applies to an ad ioc advisory committee appointed by university president to screen applications and make recommendations for the position of dean of the law ;chool); Silver Express Company v. District Board of Lower Tribunal Trustees, 391 So. 2d 1099 (Fla. 3d DCA 1997) (committee established by community college purchasing director to assist and advise her in evaluating various ;ontract proposals must meet in the Sunshine); and Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979) (advisory board appointed and used by city manager +o screen applications and make recommendations for the position of chief of )olice is subject to s. 286.011, F.S.). And see, Inf. Op. to Lamar, August 2, 1993, regarding the application of the Sunshine Law to a transition team made ip of citizens appointed by a mayor to make recommendations on the :eorganization of city government. vloreover, the fact that an advisory committee's recommendations are subject co review prior to submission to the final authority does not insulate the committee from the Sunshine Law because "[n]o official act which is in and of tself decision -making can be'remote' from the decision -making process, regardless of how many decision -making steps go into the ultimate decision." Wood v. Marston, 442 So. 2d at 941. b. Fact-finding committees A limited exception to the applicability of the Sunshine Law to advisory committees has been recognized for committees established for fact-finding 3nly. When a committee has been established strictly for, and conducts only, fact-finding activities, i.e., strictly information gathering and reporting, the activities of that committee are not subject to s. 286.011, F.S. Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985). Accord, AGO 95-06 (when a group, on behalf of a public entity, functions solely as a fact -finder or information gatherer with no decision -making nttp://legal l.fim.edu/sun.nsf/1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 kill zuthority, no "board or commission" subject to the Sunshine Law is created). -or example, the court in Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976), held that a fact-finding committee appointed by a community college president to report to him on employee working conditions was not subject to he Sunshine Law. Later, in Wood v. Marston, the Supreme Court approved the holding in Bennett that such fact-finding consultations are not subject to s. 286.011, F.S. And see, Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA >_000) (Sunshine Law did not apply to informal meetings of staff where the discussions were "merely informational"; where none of the individuals attending the meetings had any decision -making authority during the meetings; and where no formal action was taken or could have been taken at the meetings). iiowever, when a committee possesses or exercises not only the authority to conduct fact-finding but also to make recommendations, the committee is )articipating in the decision -making process and is subject to the Sunshine Law. Thus, for example, the Sunshine Law applies to the meetings of a negotiating team that was created by a city commission to negotiate with a 'Ports organization on behalf of the city. AGO 94-21. Even though the resolution creating the team provided that the negotiations were subject to •atification and approval by the city commission, the team was authorized to do _pore than mere fact-finding in that it would be "participating in the decision - making process by accepting some options while rejecting others for )resentment of the final negotiations to the city commission." Id. 3. Are private organizations subject to the Sunshine Law? A more difficult question is presented with private organizations which are -3roviding services to state or local government. This office has recognized that .3rivate organizations generally are not subject to the Sunshine Law unless the private organization has been delegated the authority to perform some ;overnmental function. See, e.g., Inf. Op. to Fasano, June 7, 1996 (Sunshine Law does not apply to meetings of a homeowners' association board). Thus, the Sunshine Law does not apply to a private nonprofit corporation established by local business people to foster economic development where no delegation of legislative or governmental functions by any local governmental :ntity has occurred and the corporation does not act in an advisory capacity to any such entity. Inf. Op. to Hatcher and Thornton, September 15, 1992. And see, Inf. Op. to Armesto, September 18, 1979, concluding that meetings of 2olitical parties are not subject to s. 286.011, F.S. However, the Sunshine Law has been held to apply to private entities created ay law or by public agencies, and also to private entities providing services to governmental agencies and acting on behalf of those agencies in the performance of their public duties. Each of these circumstances is discussed more fully below. attp://legal l.fim.edu/sun.nsf/1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 31 i. Private entities created pursuant to law or by public agencies -lorida case law provides that the Sunshine Law should be liberally construed o give effect to its public purpose. See, e.g., Wood v. Marston, 442 So. 2d 934 (Fla. 1983); Board of Public Instruction of Broward County v. Doran, 224 So. ?d 693 (Fla. 1969) (statute should be broadly construed to effect its remedial and protective purposes). Thus, the Supreme Court stated that "[t]he Legislature intended to extend application of the 'open meeting' concept so as o bind every 'board or commission' of the state, or of any county or political subdivision over which [the Legislature] has dominion or control." City of Wiami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971). Similarly, an entity that tcts on behalf of a governmental entity in the performance of its public duties may also be subject to open meetings requirements. See, Town of Palm Beach ). Gradison, 296 So. 2d 473, 478 (Fla. 1974) (Sunshine Law applies to an advisory committee that was established by a city council and was "active on fits] behalf'). And see, Memorial Hospital -West Volusia, Inc. v. News -Journal orporation, 729 So. 2d 373, 383 (Fla. 1999) (agency's "delegation of official acts" to private entity brings the private entity within s. 286.011, F.S.). Applying these principles, this office concluded that the Board of Directors of Enterprise Florida, Inc., must comply with the Sunshine Law. AGO 92-80. ven though the organization was acting as a nonprofit corporation, it was created by a statute which also prescribed its membership, powers and duties. Id. Similarly, in AGO 97-17, this office advised that the Sunshine Law applied to a not -for -profit corporation created by a city redevelopment agency to assist in he implementation of the agency's redevelopment plan. See also, AGO.98-55 (meetings of the board of directors of the Council on Aging of St. Lucie, Inc., a -lonprofit organization incorporated pursuant to the "Community Care for the elderly Act," must comply with the Sunshine Law); AGO 98-42 (Florida High School Activities Association, Inc., having been legislatively designated as the ;overning organization of athletics in Florida public schools, is subject to the Sunshine Law); AGO 98-01 (Sunshine Law applies to board of trustees of insurance trust fund created pursuant to collective bargaining agreement )etween city and employee union); AGO 97-32 (s. 286.011, F.S., applies to meetings of board of trustees of pension fund of not -for -profit corporation created by a county to manage the county's public transit system); AGO 94-35 meetings of board of directors of Sunshine State One -Call of Florida, Inc., a not -for -profit corporation created by statute to serve a public purpose must -omply with s. 286.011, F.S.); and AGO 94-32 (private nonprofit association -stablished pursuant to a plan adopted by the Department of Insurance in accordance with statutory authorization, is subject to the Sunshine Law). b. Private entities providing services to public agencies Much of the litigation regarding the application of the open government laws to private organizations providing services to public agencies has been in the area of public records. E.g., News and Sun -Sentinel Company v. Schwab, http://legal l.fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 32 Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992). The courts, however, have looked to Ch. 119, F.S., in determining the applicability )f the Sunshine Law. See, Cape Coral Medical Center, Inc. v. News -Press Publishing Company, Inc., 390 So. 2d 1216, 1218 n.5 (Fla. 2d DCA 1980) (inasmuch as the policies behind Ch. 119, F.S., and s. 286.011, F.S., are similar, they should be read together); Wood v. Marston, 442 So. 2d 934, 938 (Fla. 1983); and Krause v. Reno, 366 So. 2d 1244, 1252 (Fla. 3d DCA 1979). Accordingly, as the courts have emphasized in analyzing the application of Ch. 119, F.S., to entities doing business with governmental agencies, the mere -eceipt of public funds by private corporations, is not, standing alone, sufficient �o bring the organization within the ambit of the open government requirements. See, News and Sun -Sentinel Company v. Schwab, Twitty & Vanser Architectural Group, Inc., supra (records of private architectural firm not subject to Ch. 119, F.S., merely because firm contracted with school board); Stanfield v. Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997) contract between Salvation Army and county to provide services does not in and of itself subject the organization to the Public Records Act). Cf.., Campus ommunications, Inc. v. Shands Teaching Hospital and Clinics, Inc., 512 So. 2d 999 (Fla. lst DCA 1987), review denied, 531 So. 2d 1352 (Fla. 1988). Thus, a private corporation which performs services for a public agency and receives compensation for such services pursuant to a contract or otherwise, is not by virtue of this relationship alone subject to the Sunshine Law unless the ?ublic agency's governmental or legislative functions have been delegated to it. McCoy Restaurants, Inc. v. City of Orlando, 392 So. 2d 252 (Fla. 1980) ,airlines are not by virtue of their lease with the aviation authority public -epresentatives subject to the Sunshine Law); AGO 98-47 (Sunshine Law does not apply to private nongovernmental organization when the organization -ounsels and advises private business concerns on their participation in a federal loan program made available through a city); and AGO 80-45 (the receipt of Medicare, Medicaid, government grants and loans, or similar funds :)y a private nonprofit hospital does not, standing alone, subject the hospital to the Sunshine Law). However, although private organizations generally are not subject to the Sunshine Law, open meetings requirements can apply if the public entity has delegated "the performance of its public purpose" to the private entity. Memorial Hospital -West Volusia, Inc. v. News -Journal Corporation, 729 So. 2d 373, 382-383 (Fla. 1999). In Memorial, the Supreme Court held that a private nonprofit corporation which entered into a lease with a public hospital authority to operate a hospital was subject to the open meetings requirements found in the Sunshine Law and those contained in Art. 1, s. 24(b), Fla. Const. Thus, in AGO 00-03, this office found that meetings of the board of directors of the Family Services Coalition, Inc., an entity performing services for the Department of Children and Family Services pursuant to statute, which services would normally be performed by the department, were subject to the hapl/legal I .fim.edu/sun.nsf/l a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 33 Sunshine Law. And see, AGO 92-53, advising that the Sunshine Law applies to a direct -support organization which was created as a private nonprofit corporation for the purpose of assisting a public museum (the John and Mable Ringling Museum of Art). Cf., AGO 96-43 (Astronauts Memorial Foundation, a nonprofit corporation, is subject to the Government in the Sunshine Law when performing those duties funded under the General Appropriations Act). Additionally, this office concluded that if a county commission dissolves its cultural affairs council and designates a nonprofit organization to fulfill that role for the county, the nonprofit organization would be subject to the Sunshine Law. AGO 98-49. As noted in the opinion, the nonprofit organization would be providing services in place of the county council and would receive the public funding formerly provided to the council to carry out that purpose. Id. And see, AGO 00-08 (meetings of the Lee County Fire Commissioner's Forum, a nonprofit entity created by fire districts as a vehicle for networking and discussion of common concerns, would be subject to the Sunshine Law if the Forum operates as a collegial body for incipient decision making); AGO 85-55 (even though a downtown redevelopment task force was not appointed by the city commission, the task force's actions in analyzing methods for downtown improvement would be subject to the Sunshine Law because it in effect stood in place of the city commission when considering downtown improvement issues); AGO 83-95 (where a county has accepted the technical services of a nongovernmental advisory committee appointed by a private nonprofit corporation in the recodification and amendment of the county's zoning laws, the meetings of such a committee should be conducted in the sunshine); and AGO 77-43 (a committee selected by a county bar association on behalf of the school board to screen applicants and make recommendations for the position of school board attorney must comply with s. 286.011, F.S.). c. Homeowners' associations The Sunshine Law does not generally apply to meetings of a homeowners' association board of directors. Inf. Op. to Fasano, June 7, 1996. Other statutes govern access to records and meetings of these associations. See, e.g., s. 720.303(2), F.S. (homeowners' association board of directors); s. 718.112(2) (c), F.S. (condominium board of administration); s. 719.106(1)(c), F.S. (cooperative board of administration); and s. 723.078(2)(c), F.S. (mobile home park homeowners' association board of directors). Cf.., AGO 99-53 (an architectural review committee of a homeowners' association is subject to the Sunshine Law where that committee, pursuant to county ordinance, must review and approve applications for county building permits). 4. Are federal agencies subject to the Sunshine Law? Federal agencies, i.e., agencies created under federal law, operating within the state, do not come within the purview of the state Sunshine Law. AGO 71-191. See also, Cincinnati Gas and Electric Company v. General Electric Company, 854 F.2d 900 (6th Cir. 1988) (public has no right of access to negotiations leading to settlement of a case in federal court). http://legal l.fim.edu/sun.nsf/1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 34 Thus, meetings of a federally -created private industry council are not subject to 286.011, F.S. AGO 84-16. Cf., Inf. Op. to Green, December 11, 1998 (tri- atate river commission established pursuant to state and federal law is subject to the Sunshine Law); and Inf. Op. to Markham, September 10, 1996 (technical Oversight committee established by state agencies as part of settlement agreement in federal lawsuit subject to Sunshine Law). i. Does the Sunshine Law apply to the Governor and Cabinet? The courts have limited the application of s. 286.011, F.S., to those functions )f the Governor and Cabinet which are statutory responsibilities as opposed to duties arising under the Constitution. Thus, the Governor and Cabinet in iispensing pardons and the other forms of clemency authorized by Art. IV, s. 8 ,a), Fla. Const., are not subject to s. 286.011, F.S. Cf.., In re Advisory Opinion of the Governor, 334 So. 2d 561 (Fla. 1976) (Constitution sufficiently 3rescribes rules for the manner of exercise of gubernatorial clemency power; legislative intervention is, therefore, unwarranted). Section 286.011, F.S., however, does apply to the Governor and Cabinet sitting in their capacity as a board created by the Legislature, such as the Board of Trustees of the Internal Improvement Trust Fund. In such cases, the Governor and Cabinet are not exercising powers derived from the Constitution but are subject to the "dominion and control" of the Legislature. Moreover, Art. I, s. 24, Fla. Const., requires that meetings of "any collegial public body of the executive branch of state government" be open and noticed :o the public. The only exceptions to this constitutional right of access are those meetings which have been exempted by the Legislature pursuant to Art. 1, s. 24, Fla. Const., or which are specifically closed by the Constitution. And see, Art. III, s. 4(e), Fla. Const., providing, in relevant part, that "all prearranged gatherings, between ... the governor, the president of the senate, 3r the speaker of the house of representatives, the purpose of which is to agree apon formal legislative action that will be taken at a subsequent time, or at which formal legislative action is taken, regarding pending legislation or amendments, shall be reasonably open to the public." 6. Does the Sunshine Law apply to commissions created by the Constitution? The courts have determined that boards or commissions created by the Constitution which prescribes the manner of the exercise of their constitutional powers are not subject to s. 286.011, F.S., when carrying out such constitutionally prescribed duties. See, Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977) (judicial nominating commissions are not subject to s. 286.011, F.S.). Cf.., In re Advisory Opinion of the Governor, 334 So. 2d 561 (Fla. 1976) (clemency power does not exist by virtue of legislative enactment; rather Constitution sufficiently prescribes rules for the manner of exercise of the power); AGO 77-65 (Ch. 120, F.S., inapplicable to Constitution Revision http://legal I.fim.edu/sun.nsf/1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 35 ommission established by Art. XI, s. 2, Fla. Const.). Compare, Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA), affirmed and remanded, 389 So. ?d 1181 (Fla. 1980), holding that the Parole Commission, which Art. IV, s. 8 Ic), Fla. Const., recognizes may be created by law, is subject to s. 286.011, F.S. 3owever, Art. I, s. 24, Fla. Const., establishes a constitutional right of access to meetings of any collegial public body of the executive branch of state government by providing that such meetings must be open and noticed to the )ublic unless exempted by the Legislature pursuant to Art. I, s. 24, Fla. Const., or specifically closed by the Constitution. 1. Does the Sunshine Law apply to the Legislature? Article I, s. 24, Fla. Const., requires that meetings of the Legislature be open and noticed as provided in Art. III, s. 4(e), Fla. Const., except with respect to those meetings exempted by the Legislature pursuant to Art. I, s. 24, Fla. onst., or specifically closed by the Constitution. Pursuant to Art. III, s. 4(e), Fla. Const., the rules of procedure of each house of he Legislature must provide that all legislative committee and subcommittee meetings of each house and joint conference committee meetings be open and noticed. Such rules must also provide: [A]ll 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 which is to agree upon formal legislative action that will be taken at a subsequent time, or at which formal legislative action is taken, regarding pending legislation or amendments, shall be reasonably open to the public. All open meetings shall be subject to order and decorum. This section shall be implemented and defined by the rules of each house, and such rules shall control admission to the floor of each legislative chamber and may, where reasonably necessary for security purposes or to protect a witness appearing before a committee, provide for the closure of committee meetings. Each house shall be the sole judge for the interpretation, implementation, and enforcement of this section. The votes of members during the final passage of legislation pending before a ommittee and, upon request of two members of a committee or subcommittee, Dn any other question, must be recorded. Article III, s. 4(c), Fla. Const. S. Does the Sunshine Law apply to the judiciary? The open meetings provision found in Art. I, s. 24, Fla. Const., does not include meetings of the judiciary. In addition, separation of powers principles make it unlikely that the Sunshine Law, a legislative enactment, could apply to the courts established pursuant to Art. V, Fla. Const. AGO 83-97. Thus, http://Iegal I .fim.edu/sun.nsf/1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 36 questions of access to judicial proceedings usually arise under other constitutional guarantees relating to open and public judicial proceedings, Amend. VI, U.S. Const., and freedom of the press, Amend. I, U.S. Const. However, a circuit conflict committee established by the Legislature to approve attorneys handling conflict cases is subject to the Sunshine Law, even :hough the chief judge or his or her designee is a member, because the "circuit conflict committees are created by the Legislature, subject to its dominion and control." AGO 83-97. And see, Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973) (Sunshine Law applies to quasi- judicial functions; a board exercising quasi-judicial functions is not a part of :he judicial branch of government). a. Criminal proceedings A court possesses the inherent power to control the conduct of proceedings before it. Miami Herald Publishing Company v. Lewis, 426 So. 2d 1 (Fla. 1982); State ex rel. Miami Herald Publishing Company v. McIntosh, 340 So. 2d 904 (Fla. 1977). A three -pronged test for criminal proceedings has been developed to provide "the best balance between the need for open government and public access, through the media, to the judicial process, and the paramount right of a defendant in a criminal proceeding to a fair trial before an impartial jury." Lewis, supra at 7. Closure in criminal proceedings is acceptable only when: 1) it is necessary to prevent a serious and imminent threat to the administration of justice; 2) no alternatives are available„other than change of venue, which would protect the defendant's right to a fair trial; and 3) closure would be effective in protecting the defendant's rights without being broader than necessary to accomplish that purpose. 4nd see, Bundy v. State, 455 So. 2d 330, 339 (Fla. 1984), noting that the trial court properly used a combination of alternative remedies for possible prejudicial effects of pretrial publicity instead of barring public access to pretrial proceedings. Article I, s. 16(b), Fla. Const., provides that victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused. See, Sireci v. State, 587 So. 2d 450 (Fla. 1991), cert. denied, 112 S.Ct. 1500 (1992) (court did not err by allowing the wife and son of the victim to remain in the courtroom after their testimony). See also, s. 960.001(1)(e), F.S., restricting exclusion of victims, their lawful representatives, or their next of kin. b. Civil proceedings http://Iegal I .fim.edu/sun.nsf/1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 37 ;tressing that all trials, civil and criminal, are public events and that there is a strong presumption of public access to these proceedings, the Supreme Court n Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), .,et forth the following factors which must be considered by a court in determining a request for closure of civil proceedings: 1) a strong presumption of openness exists for all court proceedings; 2) both the public and news media have standing to challenge any closure order with the burden of proof being on the party seeking closure; 3) closure should occur only when necessary a) to comply with established public policy as set forth in the Constitution, statutes, rules or case law; b) to protect trade secrets; c) to protect a compelling governmental interest; d) to obtain evidence to properly determine legal issues in a case; e) to avoid substantial injury to innocent third parties; or f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed. 4) whether a reasonable alternative is available to accomplish the desired result and if none exists, the least restrictive closure necessary to accomplish its purpose is used; 5) the presumption of openness continues through the appellate review process and the party seeking closure continues to have the burden to justify closure. -n a more recent decision, the Court reiterated its support for the Barron standards and explained that "public access to court proceedings and records [is] important to assure testimonial trustworthiness; in providing a wholesome effect on all officers of the court for purposes of moving those officers to a strict conscientiousness in the performance of duty; in allowing nonparties the opportunity of learning whether they are affected; and in instilling a strong ;onfidence in judicial remedies, which would be absent under a system of secrecy." Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d 208, 209 (Fla. 1998). c. Depositions Xhile the courts have recognized that court proceedings are public events and the public generally has access to such proceedings, the general public and the .3ress do not have a right under the First Amendment or the rules of procedure co attend discovery depositions. See, Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378, 380 (Fla. 1987), cert. denied, 108 S.Ct. 346 (1987), stating that while discovery depositions in criminal cases are judicially compelled for the purpose of allowing parties to investigate and prepare, they are not judicial attp://legal 1.fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 38 ?roceedings. Accord, Post -Newsweek Stations, Florida, Inc. v. State, 510 So. 2d 896 (Fla. 1987) (media not entitled to notice and opportunity to attend pretrial discovery depositions in criminal cases). However, the First District has held that in order to exclude a nonparty witness From a deposition in a civil action, the party seeking to exclude the witness must move for a protective order and make a showing of good cause in support of the motion; the "rule" of sequestration of witnesses applies to court )roceedings, not depositions. Smith v. Southern Baptist Hospital of Florida, Inc., 564 So. 2d 1115 (Fla. 1st DCA 1990). And see, Fla. R. Civ. P. 1.280(c). 1. Grand juries Section 905.24, F.S., provides that "[g]rand jury proceedings are secret," thus, these proceedings are not subject to s. 286.011, F.S. See, Clein v. State, 52 So. 2d 117, 120 (Fla. 1951) (it is the policy of the law to shield the proceedings of grand juries from public scrutiny); In re Getty, 427 So. 2d 380, 383 (Fla. 4th DCA 1983) (public disclosure of grand jury proceedings "could result in a myriad of harmful effects"); and AGO 73-177, stating that it is the public policy of the state to keep secret the proceedings of the grand jury. The grand jury has also been referred to as a "coordinate branch of the judiciary, and as an arm, appendage, or adjunct of the circuit court." State ex rel. Christian v. Rudd, 302 So. 2d 821, 828 (Fla. 1st DCA 1974). Cf., Butterworth v. Smith, 110 S.Ct. 1376 (1990), striking down a Florida statute to the extent that it prohibited a witness from disclosing his own testimony before a grand jury after the grand jury's term has ended. In addition, hearings on certain grand juryprocedural motions are closed. The procedural steps contemplated in s. 905.28(1), F.S., for reports or presentments of the grand jury relating to an individual which are not accompanied by a true bill or indictment, are cloaked with the same degree of secrecy as is enjoyed by the grand jury in the receipt of evidence, its deliberations, and final product. Therefore, a newspaper has no right of access to grand jury procedural motions and to the related hearing. In re Grand Jury, Fall Term 1986, 528 So. 2d 51 (Fla. 2d DCA 1988). And see, In re Subpoena to Testify Before Grand Jury Directed to Custodian of Records, 864 F.2d 1559 (llth Cir. 1989), stating that while a court must hold a hearing and give reasons for closure of criminal court proceedings, a court is not required to give newspapers a hearing and give reasons for closure of grand jury proceedings. e. Judicial nominating-commissions/Judicial Qualifications Commission Judicial nominating commissions for the Supreme Court of Florida, the district courts of appeal, or for a judicial circuit for the trial courts within the circuit are not subject -to the Sunshine Law. Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977). The Florida Constitution, however, requires that except for its deliberations, the proceedings of a judicial nominating commission and its records are open to the public. Article V, s. 11(d), Fla. Const. While the deliberations of a commission are closed, such a limitation would appear to be http://legal l.fim.edu/sun.nsf/1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 39 1pplicable to that point in the proceedings when the commissioners are weighing and examining the reasons for and against a choice. Inf. Op. to tussell, August 2, 1991. The statewide judicial nominating commission for workers' compensation udges, however, is not a judicial nominating commission as contemplated by the Constitution. Thus, the statewide judicial nominating commission created -pursuant to the workers' compensation law is subject to s. 286.011, F.S. AGO )0-76. proceedings of the Judicial Qualifications Commission are confidential. -iowever, upon a finding of probable cause and the filing of formal charges against a judge or justice by the commission with the Clerk of the Supreme ;ourt, all further proceedings of the commission are public. Article V, s. 12(a) k4), Fla. Const. '. Mediation proceedings Court -ordered mediation and arbitration are to be conducted according to the ules of practice and procedure adopted by the Florida Supreme Court. Sections 44.102(l) and 44.103(1), F.S. Florida Rule of Civil Procedure 1.720(e) )rovides that the mediator may meet and consult privately with any party or darties or their counsel. 3ublic access to mediation proceedings involving governmental agencies was raised in News -Press Publishing Company, Inc. v. Lee County, Florida, 570 So. 2d 1325 (Fla. 2d DCA 1990). The case involved litigation between two .ities and a county. As the litigation progressed, the trial judge ordered the parties to participate in mediation. In its initial order appointing a mediator, the 'udge required the parties to have present a representative "with full authority o bind them." After the news media protested the closure of the mediation proceeding to the public, the judge entered an amended order that limited the tuthority of the representatives so that no final settlement negotiations, .decisions, or actual settlement could be made during the mediation conference. Che news media appealed the amended order, but the district court noted that no two members of any of the public boards would be present at the mediation proceedings. And, the narrow scope of the mediation proceedings in the case iid not give rise to a substantial delegation affecting the decision -making function of the boards so as to require that the mediation proceeding be open to he public. 570 So. 2d at1327. See also, O'Connell v. Board of Trustees, 1 ?.L.W. Supp. 285 (Fla. 7th Cir. Ct. Feb. 9, 1993) (as to public agencies, mediation is subject to the Sunshine Law; thus, no more than one member of a collegial body should attend the mediation conference). And see, Fla. R. Civ. P. 1.720(b), stating that "[i]f a party to mediation is a public entity required to conduct its business pursuant to chapter 286, Florida Statutes, that party shall )e deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision -making body of the entity." nttp://legal l .fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5 afd852566f30055f8c 8... 12/4/2002 40 9. Does the Sunshine Law apply to staff. Meetings of staff of boards or commissions covered by the Sunshine Law are not ordinarily subject to s. 286.011, F.S. Occidental Chemical Company v. Wayo, 351 So. 2d 336 (Fla. 1977), disapproved in part on other grounds, Citizens v. Beard, 613 So. 2d 403 (Fla. 1992). See also, School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99, 101 (Fla. 1st DCA 1996) (staff personnel not subject to the Sunshine Law); and AGO 89-39 (aides of county commissioners are not subject to the Sunshine Law unless they have been delegated decision -making functions outside of the ambit of normal staff Cunctions, are acting as liaisons between board members, or are acting in place of the board members at their direction). :However, when a staff member ceases to function in a staff capacity and is appointed to a committee which is delegated authority to make recommendations to a board or official, the staff member loses his or her identity as staff while working on the committee and the Sunshine Law applies to the committee. Thus, it is the nature of the act performed, not the makeup of the committee or the proximity of the act to the final decision, which determines whether a committee composed of staff is subject to the Sunshine Law. Wood v. Marston, 442 So. 2d 934 (Fla. 1983). See, News -Press Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 548 (Fla. 2d DCA 1982), concluding that it would be "ludicrous" to hold that "a certain committee is governed by the Sunshine Law when it consists of members of the public, who are presumably acting for the public, but hold a committee may escape the Sunshine Law if it consists of individuals who owe their allegiance to, and receive their salaries from, the governing authority." And see, AGO 96- 32 (Sunshine Law applies to employee advisory committee established to make recommendations to governing board); AGO 86-51 (land selection committee appointed by water management district to evaluate and recommend projects for acquisition must comply with Sunshine Law "even though such committee may be composed entirely of district staff and its decisions and recommendations are subject to further action by the district's governing board"); and AGO 84-70 (Sunshine Law applies to staff grievance committee created to make nonbinding recommendations to county administrator regarding disposition of employee grievances). In a more recent case, Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997), the district court determined that a committee (composed of staff and one outside person) that was created by a college purchasing director to assist and advise her in evaluating contract proposals was subject to the Sunshine Law. According to the court, the committee's job was to "weed through the various proposals, to determine which were acceptable and to rank them accordingly." This function was sufficient to bring the committee within the scope of the Sunshine Law because "[g]ovemmental advisory committees which have offered up structured recommendations such as here involved -- at least those http://legal l.fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 41 -eeommendations which eliminate opportunities for alternative choices by the final authority, or which rank applications for the final authority -- have been determined to be agencies governed by the Sunshine Law." 691 So. 2d at 1101. And see, Inf. Op. to Lewis, March 15, 1999 (staff panels established by board to create requests for proposals and evaluate vendor responses are subject to s. ?86.011, F.S.). Moreover, the fact that a staff committee's recommendations are subject to -eview does not insulate the committee from the Sunshine Law because "[n]o official act which is in and of itself decision -making can be 'remote' from the decision -making process, regardless of how many decision -making steps go .nto the ultimate decision." Wood v. Marston, 442 So. 2d at 941. Thus, the Court concluded that a committee created by a university president for the )urpose of screening applications and making recommendations for the position of a law school dean was subject to s. 286.011, F.S., even though the committee's recommendations were subject to review by the faculty. Id. "[T]he Fact that the results were submitted to the faculty as a whole, which had the authority to review the work of the screening committee, [does not] render the ommittee's function any less policy -based or decision -making." Id. at 938- 339. Dn the other hand, a committee composed of staff which is merely responsible for informing the decision -maker through fact-finding consultations would not be subject to the Sunshine Law. Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976) (fact-finding committee appointed by community college president to report to him on employee working conditions not subject to Sunshine Law). For example, this office concluded that an "agenda preparation group" whose duties were limited to "fact-finding pertaining to School Board agenda items, including any necessary supportive information as backup to assist the Board in its deliberations" was not subject to s. 286.011, F.S., because there was no indication that the agenda preparation group made recommendations to the school board or otherwise participated in.the decision -making process. Inf. Op. to Centorino, February 4, 1994. Similarly, in Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000), the appellate court ruled that the Sunshine Law did not apply to informal meetings of staff where the discussions were "merely informational," where none of the individuals attending the meetings had any decision -making authority during the meetings, and where no formal action was taken or could have been taken at the meetings. 10. Does the Sunshine Law apply to members of public boards who also serve as administrative officers or employees? There may be occasions in which members of public boards also serve as administrative officers or employees. The Sunshine Law is not applicable to discussions of those individuals when serving as administrative officers or employees, provided such discussions do not relate to matters which will come http://Iegal I .fim.edu/sun.nsf/l a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 42 before the public board on which they serve. Thus, a board member who also serves as an employee of an agency may meet with another board member on issues relating to his or her duties as an employee provided such discussions do not relate to matters that will come before the board for consideration or action. See, AGO 92-79 (when two or more members of a public board are participating in other meetings or functions unconnected with the board, they must refrain from discussing matters on which foreseeable action may be taken by the board but are not otherwise restricted in their actions). For example, the Sunshine Law would not apply to meetings between the mayor and city commissioners where a mayor performs the duties of city nanager and the city commissioners individually serve as the head of a city department when the meeting is held solely by these officers in their capacity is department heads for the purpose of coordinating administrative and operational matters between executive departments of city government for which no formal action by the governing body is required or contemplated. Those matters which normally come before, or should come before, the city commission for discussion or action must not, however, be discussed at such meetings. AGO 81-88. Accord, AGOs 83-70 and 75-210 (mayor may discuss matters with individual city council member which concern his administrative functions and would not come before the council for consideration and further action). Similarly, a conversation between a state attorney and sheriff about a specific criminal investigation involving an assault related to a youth gang would not violate the Sunshine Law even though both officials are members of a county criminal justice commission and the commission is -studying and making recommendations on the problem of youth gangs in the community. AGO 93- 41. Discussions between the sheriff and the state attorney of matters which may foreseeably come before or are currently being considered by the criminal justice commission, would be subject to the Sunshine Law. However, to the extent that these discussions relate to an ongoing criminal case or investigation or relate to factual inquiries or matters upon which -the commission is not required to act, these discussions would not fall within s. 286.011, F.S. Id. This office has also issued informal opinions regarding the application of the Sunshine Law to members of school advisory councils created pursuant to s. 229.58, F.S., who also serve as faculty members, school administrative officials or who are parents. For example, the Sunshine Law would not ordinarily apply to a meeting of school faculty simply because two or more members of the school advisory council who are also faculty members attend the faculty meeting, as long as the council members refrain from discussing matters that may come before the council for consideration. Inf. Op. to Hughes, February 17, 1995; and Inf. Op. to Boyd, March 14, 1994. I lame I News I _opinions I Consumers I Lemon Law I Crime Victims I open Government Prosecution I Criminal Justice I Florida's AG I SG I Services I Jobs I Directory I Maps http://legal I .fim.edu/sun.nsf/I a9972cc30ebe40d852563cb004e9d73/a342f688127d5afd852566f30055f8c8... 12/4/2002 43 Government -in -the -Sunshine Manual 'hapter updated: 01/18/2002 What is a meeting subject to the Sunshine Law? :. WHAT IS A MEETING SUBJECT TO THE SUNSHINE LAW? 1. Number of board members required to be present The Sunshine Law extends to the discussions and deliberations as well as the `ormal action taken by a public board or commission. There is no requirement Zat a quorum be present for a meeting of members of a public board or commission to be subject to s. 286.011, F.S. Instead, the law is applicable to ny gathering, whether formal or casual, of two or more members of the same ,oard or commission to discuss some matter on which foreseeable action will be taken by the public board or commission. Hough v. Stembridge, 278 So. 2d 88 (Fla. 3d DCA 1973). And see, City of Miami Beach v. Berns, 245 So. 2d 38 kFla. 1971); Board of Public Instruction of Broward County v. Doran, 224 So. "d 693 (Fla. 1969); and Wolfson v. State, 344 So. 2d 611 (Fla: 2d DCA 1977). 'hus, discussions between two members of a three -member complaint review board regarding their selection of the third member of the board must be onducted in accordance with the Sunshine Law. AGO 93-79. It is the how and the why officials decided to so act which interests the public, of merely the final decision. Thus, the court recognized in Times Publishing ,ompany v. Williams, 222 So. 2d 470,473 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. d 821 (Fla. 1985): 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. �. Circumstances in which the Sunshine Law may apply to a single individual or where two board members are not physically present Section 286.011, F.S., applies to meetings of "two or more members" of the -ame board or commission when discussing some matter which will .,ttp:Hlegal l.fim.edu/sun.nsf/l a9972cc3Oebe4Od852563cb004e9d73/eO82al c703d lbf52852566f30056c 1 i... 11/20/2002 44 .oreseeably come before the board or commission. Therefore, the statute would not ordinarily apply to an individual member of a public board or commission r to public officials who are not board or commission members. Inf. Op. to oillener, January 5, 1990 (Sunshine Law not normally applicable to meeting of *own council member with private citizens). See, City of Sunrise v. News and un-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989); Deerfield Beach Publishing, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988) (requisite to pplication of the Sunshine Law is a meeting between two or more public _fficials); Mitchell v. School Board of Leon County, 335 So. 2d 354 (Fla. 1st DCA 1976). But cf., Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d DCA 991), review denied, 598 So. 2d 75 (Fla. 1992), stating that ex parte (i.e., from one side only) communications in quasi-judicial proceedings raise a -resumption that the contact was prejudicial to the decision -making process; nd s. 286.0115, F.S., enacted in response to the Jennings case, relating to access to local public officials in quasi-judicial proceedings. 'ertain factual situations, however, have arisen where, in order to assure public access to the decision -making processes of public boards or commissions, it as been necessary to conclude that the presence of two individuals of the same .,oard or commission is not necessary to trigger application of s. 286.011, F.S. As stated by the Supreme Court, the Sunshine Law is to be construed "so as to ltstrate all evasive devices." Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974). Written correspondence between board members The use of a written report by one commissioner to inform other ommissioners of a subject which will be discussed at a public meeting is not a violation of the Sunshine Law if prior to the meeting, there is no interaction dated to the report among the commissioners. In such cases, the report, which subject to disclosure under the Public Records Act, is not being used as a substitute for action at a public meeting as there is no response from or iteraction among the commissioners prior to the meeting. AGO 89-23. And see, AGO 01-20 (e-mail communication of factual background information from one city council member to another is a public record and should be zaintained by the records custodian for public inspection and copying; however, such communication of information, when it does not result in the xchange of council members' comments or responses on subjects requiring _ouncil action, does not constitute a meeting subject to the Sunshine Law). f, however, the report is circulated among board members for comments with ouch comments being provided to other members, there is interaction among the board members which is subject to s. 286.011, F.S. AGO 90-03. See also, 1GO 96-35, stating that a school board member may prepare and circulate an informational memorandum or position paper to other board members, ' iowever, the use of a memorandum to solicit comments from other board aembers or the circulation of responsive memoranda by other board members would violate the Sunshine Law. i ittp://Iegal I .fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/e082alc703dlbf52852566f30056c U... 11/20/2002 45 -'hus, if a memorandum reflecting the views of a board member on a pending board issue is circulated among the board members with each indicating his or er approval or disapproval and, upon completion of the signatures, the memorandum has the effect of becoming the official action of the board, there ;s a violation of the Sunshine Law. Inf. Op. to Blair, June 29, 1973. And see, .GO 01-21, noting that a process whereby city council members distribute their own position papers to other council members is "problematical" and ,ould violate the Sunshine Law to the extent that any such communication is a ;sponse to another council member's statement. Thus, the city council's discussions and deliberations on matters coming before the council must occur a duly noticed city council meeting and the circulation of position statements must not be used to circumvent the requirements of the statute. Id. imilarly, a board that is responsible for assessing the performance of its chief executive officer (CEO) should conduct the review and appraisal process in a -roceeding open to the public as prescribed by s. 286.011, F.S., instead of sing a review procedure in which individual board members evaluate the CEO's performance and send their individual written comments to the board hairman for compilation and subsequent discussion with the CEO. AGO 93- _0. . Telephone conversations and meetings As discussed in this manual, the Sunshine Law applies to the deliberations and iscussions between two or more members of a board or commission on some matter which foreseeably will come before that board or commission for -otion. The use of a telephone to conduct such discussions does not remove the onversation from the requirements of s. 286.011, F.S. related issue is whether a board is authorized to conduct its meetings through ie use of a telephone conference call or other type of communications technology. In AGO 98-28, this office concluded that s. 120.54(5)(b)2., F.S., uthorizes state agencies to conduct meetings via electronic means provided unat the board complies with uniform rules of procedure adopted by the state Administration Commission. These rules contain notice requirements and rocedures for providing points of access for the public. See, Rule 28-109, F.A.C. Cf., s. 456.011(3), F.S. (licensing boards within the Department of 'lealth must conduct meetings through teleconferencing or other technological leans, except for certain disciplinary hearings or "controversial" rule hearings or unless otherwise approved in advance by the director of the Division of 4edical Quality Assurance). As to local boards, this office has noted that the authorization in s. 120.54(5)(b) ., to conduct meetings entirely through the use of communications media , technology applies only to state agencies. AGO 98-28. Thus, since s. 230.17, - I.S., requires a district school board to hold its meetings at a "public place in ie county," a quorum of the board must be physically present at the meeting of the school board. However, as long as a quorum of the board is physically resent at the meeting site, the board may use electronic media technology to uttp://legal l.fim.edu/sun.nsf/ la9972cc30ebe40d852563cb004e9d73/e082alc703dl bf52852566f30056c l(... 11/20/2002 s. plow a physically absent member of the board to attend the meeting. Id. similarly, in AGO 92-44, this office concluded that a county commission may permit an ill county commissioner to participate and vote in commission meetings through use of an interactive video and telephone system that )ermitted her to see and hear the other members of the board and audience, provided that a legal quorum of the commission meet in a public place in the ,.ounty, as required by statute. Also, in AGO 94-55, this office advised that a nuseum board may agree to allow an out-of-state member to participate in board meetings provided that the meeting is otherwise open to the public. -ompliance with the requirements of s. 286.011, F.S., "would involve providing notice and access to the public at such meetings through the use of such devices as a speaker telephone that would allow the absent member to iarticipate in discussions, to be heard by the other board members and the public and to hear discussions taking place during the meeting." Id. And see, 'nf. Op. to Henry, July 26, 1982 (city commissioner voting by telephone from iospital room). . Use of computers The use of computers to conduct public business is becoming increasingly ommonplace. While there is no provision generally prohibiting the use of ..omputers to carry out public business, their use by members of a public board or commission to communicate among themselves on issues pending before he board, is subject to the Sunshine Law. AGO 89-39. Thus, the use of an electronic newsletter to facilitate communication among the members of a public board or commission on matters that, foreseeably may come before the Body for official action would be subject to the Government in the Sunshine Law. Inf. Op. to Syrkus, October 31, 2000. Cf., Inf. Op. to Galaydick, October 9, 1995, advising that school board members may share a laptop computer -ven though the hard drive of the computer contains information reflecting the ideas of an individual member as long as the computer is not being used as a weans of communication between members; and AGO 01-20 (a one-way e- mail communication from one city council member to another, when it does not result in the exchange of council members' comments or responses on ubjects requiring council action, does not constitute a meeting subject to the Sunshine Law; however, such e-mail communications are public records and nust be maintained by the records custodian for public inspection and ;opying). airport authority members may conduct informal discussions and workshops over the Internet, provided proper notice is given, and interactive access by members of the public is provided. AGO 01-66. Such interactive access must nclude not only public access via the Internet but also designated places within the authority boundaries where the airport authority makes computers with 'ntemet access available to members of the public who may not otherwise have ntemet access. Id. For meetings, however, where a quorum is necessary for action to be taken, physical presence of the members making up the quorum itttp:Hlegal l.fim.edu/sun.nsf/ l a9972cc3Oebe4Od852563cb004e9d73/eO82al c7O3dlbf52852566f30056c 1(... 11/20/2002 47 vould be required in the absence of a statute providing otherwise. Id. Internet access to such meetings, however, may still be offered to provide greater public ccess. Id. d. Delegation of authority The Sunshine Law does not provide for any 'government by delegation' Pxception; a public body cannot escape the application of the Sunshine Law by ndertaking to delegate the conduct of public business through an alter ego." IDS Properties, Inc. v. Town of Palm Beach, 279 So. 2d 353, 359 (Fla. 4th -)CA 1973), certified question answered sub nom., Town of Palm Beach V. 3radison, 296 So. 2d 473 (Fla. 1974). See also, News -Press Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 547-548 (Fla. 2d DCA 1982) (when ,ublic officials delegate de facto authority to act on their behalf in the formulation, preparation, and promulgation of plans on which foreseeable -ction will be taken by those public officials, those delegated that authority tand in the shoes of such public officials insofar as the Sunshine Law is concerned). Cf., Leach -Wells v. City of Bradenton, 734 So. 2d 1168, 1171 (Fla. ',d DCA 1999) (committee charged with evaluating proposals violated the sunshine Law when the city clerk unilaterally tallied the results of the committee members' individual written evaluations and ranked them; the court eld that the "short -listing was formal action that was required to be taken at a public meeting"). 'hus, this office has concluded that a single member of a board who has been delegated the authority to act on behalf of the board in negotiating a lease "is �ubject to the Sunshine Law and, therefore,;cannot negotiate for such a lease in ecret." AGO 74-294. A meeting between representatives of a private organization and a city commissioner appointed by the city commission to act ,n its behalf in considering the construction and funding of a cultural center nd performing arts theater would also be subject to s. 286.011, F.S. AGO 84- 54. Jimilarly, when an individual member of a public board, or a board member and the executive director of the board, conducts a hearing or investigatory ,roceeding on behalf of the entire board, the hearing or proceeding must be held in the sunshine. AGOs 75-41 and 74-84. Cf., State, Department of Wanagement Services v. Lewis, 653 So. 2d 467 (Fla. lst DCA 1995), stating hat the issuance of an order of reconsideration by a board chair did not violate the Sunshine Law where the purpose of the order was to provide notice to the parties and allow them an opportunity to provide argument on the issue. On the other hand, if a board member or designee has been authorized only to rather information or function as a fact -finder, the Sunshine Law does not apply. AGO 95-06. For example, if a member of a public board is authorized ,)nly to explore various contract proposals with the applicant selected for the position of executive director, with such proposals being related back to the governing body for consideration, the discussions between the board member ;nd the applicant are not subject to the Sunshine Law. AGO 93-78. .ittp://legal l.fim.edu/sun.nsf/1 a9972cc3Oebe4Od852563cb004c9d73/e082a 1 c703dl bf52852566f30056c 1t... 11/20/2002 48 If, however, the board member has been delegated the authority to reject ertain options from further consideration by the entire board, the board member is performing a decision -making function that must be conducted in the sunshine. AGOs 95-06 and 93-78. For example, in AGO 90-17, this office tated that it is not a violation of the Sunshine Law for a city council member to meet with a private garbage contractor if the purpose of the meeting is -ssentially information gathering. But, if the board member has been uthorized, formally or informally, to exercise any decision -making authority on behalf of the board, such as approving or rejecting certain contract irovisions, the board member is acting on behalf of the board and the meetings ,.re subject to s. 286.011, F.S. Where a statute requires that the county commission approve a lease -purchase agreement, the commission's approval "must be made'in the Sunshine."' rrankenmuth Mutual Insurance Company v. Magaha, 769 So. 2d 1012, 1021 Fla. 2000). And see, Broward County v. Conner, 660 So. 2d 288, 290 (Fla. 4th DCA 1995), review denied, 669 So. 2d 250 (Fla. 1996) (since Sunshine Law )rovides that actions of a public board are not valid unless they are made at an )pen public meeting, a county's attorneys would not be authorized to enter into a contract on the commission's behalf "without formal action by the county ommission at a meeting as required by the statute"). Compare, Lee County v. .'ierpont, 693 So. 2d 994 (Fla. 2d DCA 1997), affirmed, 710 So. 2d 958 (Fla. 1998) (authorization to county attorney to make settlement offers to andowners not to exceed appraised value plus 20%, rather than a specific dollar amount, did not violate the Sunshine Law). t must be recognized, however, that the applicability of the Sunshine Law relates to the discussions of a single individual who has been delegated lecision-making authority on behalf of a board or commission. If the -ndividual, rather than the board, is vested by law, charter or ordinance with the authority to take action, such discussions are not subject to s. 286.011, F.S. ,nor example, in City of Sunrise v. News and Sun -Sentinel Company, 542 So. 2d 1.354 (Fla. 4th DCA 1989), the court held that since the mayor was responsible ender the city charter for disciplining city employees and since the mayor was not a board or commission and was not acting for a board, meetings between 'he mayor and a city employee concerning the employee's duties were not subject to s. 286.011, F.S. Use of nonmembers as liaisons between board members The Sunshine Law is applicable to meetings between a board member and an ndividual who is not a member of the board when that individual is being used as a liaison between, or to conduct a de facto meeting of, board members. See, AGO 74-47 (city manager is not a member of the city council and thus, may neet with individual council members; however, the manager may not act as a liaison for board members by circulating information and thoughts of .ndividual council members). Compare, AGO 89-39 (aides to county uttp://legal l.fim.edu/sun.nsf/la9972cc3Oebe4Od852563cb004e9d73/eO82a lc7O3dlbf52852566f30056c 1(... 11/20/2002 Ns9 _ommissioners would not be subject to the Sunshine Law unless they have been delegated decision -making functions outside of the ambit of normal staff inctions, are acting as liaisons between board members, or are acting in place of the board or its members at their direction). or example, in Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979), the court held that a series of scheduled successive -ieetings between the school superintendent and individual members of the chool board were subject to the Sunshine Law. While normally meetings between the school superintendent and an individual school board member 7ould not be subject to s. 286.011, F.S., these meetings were held in "rapid-fire .succession" in order to avoid a public airing of a controversial redistricting problem. They amounted to a de facto meeting of the school board in violation f s. 286.011, F.S. similarly, in Sentinel Communications Company v. School Board of Osceola .ounty, No. CI92-0045 (Fla. 9th Cir. Ct. April 3, 1992), the court found that a series of private meetings between a school superintendent and individual chool board members which were scheduled by the superintendent to present nd consider staff recommendations concerning the administrative structure of the school system and to privately address any objections or concerns that the oard might have, should have been held in the sunshine. The court said that its uecision should not be construed to prohibit individual board members from meeting privately with staff or the superintendent for informational purposes or n an ad hoc basis. However, "[i]t shall be construed to prohibit the scheduling of a series of such meetings which concern a specific agenda." Thus, the court -njoined the board and its superintendent "from holding any further closed oor meetings to formulate Board policy, discuss matters where Board action is contemplated, or otherwise conduct the public's business." _n Citizens for a Better Royal Palm Beach, Inc. v. Village of Royal Palm Beach, No. CL 91-14417 AA (Fla. 15th Cir. Ct. May 14, 1992), the court ivalidated a contract for the sale of municipal property when it determined Mat after the proposal to sell the property which had been discussed and -pproved at a public meeting collapsed, the city manager met individually with ouncil members and from those discussions the property was sold to another group. The circuit court found that these meetings resulted in a substantial hange in the terms of sale and that the execution of the contract, therefore, ,iolated the Sunshine Law. 'hus, a city manager should refrain from asking each commissioner to state his or her position on a specific matter which will foreseeably be considered by the commission at a public meeting in order to provide the information to the embers of the commission. AGO 89-23. See also, AGO 75-59 (the spirit, if not the letter, of the Sunshine Law requires official decisions to be made in -)ublic after a full discussion by the board members; thus, the board's director hould refrain from calling each member of the board separately and asking each member to state his or her position on a matter which will foreseeably be .ittp://legal I.fim.edu/sun.nsf/l a9972cc3Oebe4Od852563cb004e9d73/eO82alc7O3dlbf52852566f30056c 1 i... 11/20/2002 50 resented for consideration to the entire board in open session). Cf., AGO 81- 42 (the fact that a city council member has expressed his or her views or voting itent on an upcoming matter to a news reporter prior to the scheduled public ..ieeting does not violate the Sunshine Law so long as the reporter is not being used by the member as an intermediary in order to circumvent the requirements f s. 286.011, F.S.). Not all decisions taken by staff, however, need to be made or approved by a oard. Thus, the district court concluded in Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), that the decision > appeal made by legal counsel to a public board after discussions between the ,gal staff and individual members of the board was not subject to the Sunshine Law. Accord, Inf. Op. to Biasco, July 2, 1997 (administrative officers or staff 7ho serve public boards should not poll board members on issues which will .oreseeably come before the board in order to avoid being used as a liaison hetween board members, although an administrative officer is not precluded •om contacting individual board members for their views on a matter when the officer, and not the board, has been vested with the authority to take action). Name I News I Opinions I Consumers I Lemon Law Crime Victims I Open. Government Prosecution I Criminal Justice I Florida'_AG I SG Services I Jobs] Directory I Males ,ttp:Hlegal 1.fim.edu/sun.nsf/ 1 a9972cc 3Oebe4Od852563cb004e9d73/eO82a 1 c7O3d 1 bf52852566f30056c 1 t... 11 /20/2002 51 Government -in -the -Sunshine Manual Chapter updated: 01/18/2002 What types of discussions are covered by the Sunshine Law? J. WHAT TYPES OF DISCUSSIONS ARE COVERED BY THE SUNSHINE LAW? x. Informal discussions, workshops is discussed in s. C.1., supra, the Sunshine Law applies to any gathering, whether formal or casual, of two or more members of the same board or ^ommission to discuss some matter on which foreseeable action will be taken y the public board or commission. As the Florida Supreme Court said, "collective inquiry and discussion stages" are embraced within the terms of the tatute. Town of Palm Beach v. Gradison, 296 So. 2d 474, 477 (Fla. 1974). Vith these principles in mind, this office has stated that the following gatherings are subject to the Sunshine Law: "executive work sessions" held by board of commissioners of a housing authority to discuss policy matters, AGO 76-102; "conciliation conferences" of a human relations board, AGO 74- 158; "workshop meetings" of a planning and zoning commission, AGO 74-94; conference sessions" held by a town council before its regular meetings, AGO 74-62; discussions of preaudit report of Auditor General by governing body of special district, AGO 73-08. And see, Ruff v. School Board of Collier County, 26 So. 2d 1015 (Fla. 2d DCA 1983) (organizational meeting of task force subject to s. 286.011, F.S.); Nocera v. School Board of Lee County, Florida, 4o. 91-1828 CA-WCM (Fla. 20th Cir. Ct. November 25, 1991) (workshop .neeting of school board at which school rezoning or desegregation order discussed subject to Sunshine Law). f he Sunshine Law is, therefore, applicable to all functions of covered boards ^nd commissions, whether formal or informal, which relate to the affairs and luties of the board or commission. "[T]he Sunshine Law does not provide that cases be treated differently based upon their level of public importance." 11onroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 868 (Fla. id DCA 1994). 'hus, the fact that a board characterizes business as "non -substantive" does not necessarily remove it from the ambit of the Sunshine Law. If the "nonsubstantive" business requires the approval or consideration of the entire >oard or concerns matters which should appropriately be considered and http://legal l .fim. edu/sun.nsf/ 1 a9972cc3Oebe4Od852563cb004e9d73/d7b6960216b3f 10b852566f3005718... 11/20/2002 6PA discussed by the board, then s. 286.011, F.S., requires that such business be -onducted in the sunshine. AGO 75-37. And see, Inf. Op. to Nelson, May 19, .980 (meeting with congressman and city council members to discuss "federal budgetary matters which vitally concern their communities" should be held in he sunshine because "it appears extremely likely that discussion of public ausiness by the council members [and perhaps decision making] will take place at the meeting"). 2. Investigative meetings or meetings to consider confidential material t. Investigative meetings The Sunshine Law is applicable to investigative inquiries of public boards or ;ommissions. The fact that a meeting concerns alleged violations of laws or regulations does not remove it from the scope of the law. AGO 74-84; Canney Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973). A number of statutory exemptions to the Sunshine Law have been enacted to ;lose meetings of some agencies (usually state agencies) when those agencies are making investigatory determinations. See, e.g, s. 112.324(1), F.S. (Florida Commission on Ethics or county Commission on Ethics and Public Trust )roceedings relating to investigation of ethics complaints confidential either until preliminary investigation completed or confidentiality waived); and s. 455.225(4), F.S. (meetings of probable cause panels of the Department of 3usiness and Professional Regulation confidential until 10 days after probable cause is found to exist or until confidentiality waived by subject of nvestigation). For additional information regarding exemptions from s. 286.011, F.S., that elate to investigatory proceedings, please consult Appendix D and the Index. b. Meetings to consider confidential material fhe Florida Supreme Court has stated that in the absence of a statute Pxempting a meeting in which privileged material is discussed, s. 286.011, -.S., should be construed as containing no exceptions. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971). fhe Public Records Act was amended in 1991 after several district courts held that certain proceedings could be closed when considering confidential naterial. See, e.g., The Tribune Company v. D.M.L., 566 So. 2d 1333 (Fla. 2d DCA 1990), review denied, 577 So. 2d 1330 (Fla. 1991); Florida Society of Newspaper Editors, Inc. v. Florida Public Service Commission, 543 So. 2d t262 (Fla. lst DCA), review denied, 551 So. 2d 461 (Fla. 1989); Capeletti Brothers, Inc. v. Department of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1986), review denied, 509 So. 2d 1117 (Fla. 1987); Marston v. Gainesville Sun °ublishing Company, Inc., 341 So. 2d 783 (Fla. 1st DCA 1976), cert. denied, 352 So. 2d 171 (Fla. 1977). http://legal I.fim.edu/sun.nsf/ 1 a9972cc3Oebe4Od852563cb004e9d73/d7b6960216b3f 1 OM 52566f3005718... 11/20/2002 53 Section 119.07(5), F.S., now clearly provides that an exemption from s. t 19.07, F.S., "does not imply an exemption from or exception to s. 286.011. 'he exemption from or exception to s. 286.011 must be expressly provided." Thus, exceptions to or exemptions from Ch. 119, F.S., do not by implication Dow a public agency to close a meeting in which exempted material is to be iscussed in the absence of a specific exemption or exception to s. 286.011, F.S. Accord, AGO 95-65 (district case review committee); AGO 93-41 (county riminal justice commission); AGO 91-88 (pension board); and AGO 91-75 school board). n AGO 96-75, this office advised that because the transcript of a closed attorney -client session held pursuant to s. 286.011(8), F.S., is open to public .nspection upon conclusion of the litigation, the city and its attorney should be ensitive to any discussions of confidential medical reports that are reviewed during such a meeting and "should take precautions to protect the onfidentiality of an employee's medical reports and condition such that when .he transcript of the closed -door meeting is made a part of the public record, the privacy of the employee will not be breached." Cf., AGO 96-40 (a town nay not require a complainant to sign a waiver of confidentiality before accepting a whistle -blower's complaint for processing since the Legislature has provided for confidentiality of the whistle -blower's identity). 3. Legal matters n the absence of a legislative exemption, discussions between a public board and its attorney are subject to s. 286.011, F.S. Neu v. Miami Herald Publishing ,ompany, 462 So. 2d 821 (Fla. 1985) (s. 90.502, F.S., which provides for the .,onfidentiality of attorney -client communications under the Florida Evidence Code, does not create an exemption for attorney -client communications at )ublic meetings; application of the Sunshine Law to the discussions of a public commission with its attorney does not usurp the constitutional authority of the Supreme Court to regulate the practice of law, nor is it at odds with Florida Bar ules providing for attorney -client confidentiality). Cf., s. 90.502(6), F.S., stating that a discussion or activity that is not a meeting for purposes of s. �86.011, F.S., shall not be construed to waive the attorney -client privilege. And ee, Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), stating that all decisions taken by legal counsel to a )ublic board need not be made or approved by the board; thus, the decision to appeal made by legal counsel after private discussions with the individual members of the board did not violate s. 286.011, F.S. There are statutory exemptions, however, which apply to some discussions of -)ending litigation between a public board and its attorney. a. Settlement negotiations or strategy sessions related to litigation ,xpenditures Section 286.011(8), F.S., provides: http://legal l .fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/d7b6960216b3f 10b852566f3005718... 11/20/2002 54 Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity's attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, provided that the following conditions are met: (a) The entity's attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation. (b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. (c) The entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter's notes shall be fully transcribed and filed with the entity's clerk within a reasonable time after the meeting. (d) The entity shall give reasonable public notice of the time and date of the attomey-client session and the names of persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney - client session and the names of the persons attending. At the conclusion of the attorney -client session, the meeting shall be reopened and the person chairing the meeting shall announce the termination of the session. (e) The transcript shall be made part of the public record upon conclusion of the litigation. (e.s.) 1) Is s. 286.011(8) to be liberally or strictly construed? It has been held that the Legislature intended a strict construction of s. 286.011 8), F.S. City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995). The clear requirements of the statute are neither onerous nor difficult to ,wisfy." Id. at 1027. Accord, School Board of Duval County v. Florida 'ublishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996). http://legall. fim.edu/sun.nsf/1 a 9972cc30ebe40d852563cb004e9d73/d7b6960216b3f10b8525660005718... 11/20/2002 55 12) Who may call an attorney -client meeting? While section 286.011(8), F.S., does not specify who calls the closed attorney- lient meeting, it requires as one of the conditions that must be met that the overnmental entity's attorney "shall advise the entity at a public meeting that he or she desires advice concerning the litigation." Thus, one of the conditions zat must be met prior to holding a closed attomey-client meeting is that the ,,ity attorney must indicate to the city council at a public meeting that he or she wishes the advice of the city council regarding the pending litigation to which ie city is presently a party before a court or administrative agency. Inf. Op. to Vock, July 11, 2001. "If the city attorney does not advise the city council at a -ublic meeting that he or she desires the council's advice regarding the tigation, the city council is not precluded from providing such advice to the city attorney but it must do so at a public meeting." Id. ,3) Who may attend? )nly those persons listed in the statutory exemption, i.e., the entity, the entity's attorney, the chief administrative officer of the entity, and the court reporter are authorized to attend a closed attorney -client session. Other staff members or onsultants are not allowed to be present. School Board of Duval County v. Florida Publishing Company, 670 So. 2d at 101. And see, Zorc v. City of Vero Reach, 722 So. 2d 891, 898 (Fla. 4th DCA 1998) (city charter provision equiring that city clerk attend all council meetings does not authorize clerk to attend closed attomey-client session; municipality may not authorize what the ,egislature has -expressly forbidden); and AGO 01-10 (clerk of court not .,uthorized to attend). lowever, because the entity's attorney is permitted to attend the closed session, if the school board hires outside counsel to represent it in pending litigation, both the school board attorney and the litigation attorney may attend a closed ession. AGO 98-06. And see, Zorc v. City of Vero Beach, 722 So. 2d at 898 (attendance of Special Counsel authorized). n rejecting the argument that the exemption should be construed so as to allow staff to attend closed attorney -client sessions, the courts have noted that udividual board members are free to meet privately with staff at any time since staff members are not subject to the Sunshine Law." Zorc v. City of Vero Beach, 722 So. 2d at 899. Accord, School Board of Duval County v. Florida 'ublishing Company, 670 So. 2d at 101. Cf., AGO 95-06 (s. 286.011[8], F.S., does not authorize the temporary adjournment and reconvening of meetings in -)rder for members who are attending such a session to leave the room and consult with others outside the meeting). And see, s. C.2.e., supra, regarding the application of the Sunshine Law to meetings between individual board embers and staff, if staff is being used as a liaison between, or to conduct a de facto meeting of, board members. 4) Is substantial compliance with the conditions established in the statute http://legal l.fim.edu/sun,nsf/l a9972cc30ebe40d852563cb004e9d73/d7b6960216b3f10b8525660005718... 11/20/2002 56 adequate? n City of Dunnellon v. Aran, supra, the court said that a city council's failure to announce the names of the lawyers participating in a closed attorney -client ession violated the Sunshine Law. The court rejected the city's claim that ✓hen the mayor announced that attorneys hired by the city would attend the session (but did not give the names of the individuals), his "substantial ompliance" was sufficient to satisfy the statute. Cf.., Zorc v. City of Vero deach, 722 So. 2d at 901, noting that deviation from the agenda at an attorney- rlient session is not authorized; while such deviation is permissible if a public aeeting has been properly noticed, "there is no case law affording the same latitude to deviations in closed door meetings." 5) What kinds of matters may be discussed at the attorney -client session? 'ection 286.011(8)(b), F.S., states that the subject matter of the meeting shall -)e confined to settlement negotiations or strategy sessions related to litigation expenditures. If a board goes beyond the "strict parameters of settlement egotiations and strategy sessions related to litigation expenditures" and takes decisive action," a violation of the Sunshine Law results. Zorc v. City of Vero Reach, 722 So. 2d at 900. And see, AGO 99-37 (closed -meeting exemption nay be used only when the attorney for a governmental entity seeks advice on settlement negotiations or strategy relating to litigation expenditures; such neetings should not be used to finalize action or discuss matters outside these wo narrowly prescribed areas). -he legislative history of the exemption indicates that it was intended to apply inly to discussions, rather than final action, relating to settlement negotiations or litigation expenditures. See, Staff of Fla. H.R. Comm. on Gov't Operations, Is 491 (1993) Final Bill Analysis & Economic Impact Statement 2 (Fla. State Archives), noting at p. 3: "No final decisions on litigation matters can be -oted on during these private, attorney -client strategy meetings. The decision 3 settle a case, for a certain amount of money, under certain conditions is a decision which must be voted upon in a public meeting." 'hus, "[t]he settlement of a case is exactly that type of final decision contemplated by the drafters of section 286.011(8) which must be voted upon n the sunshine." Zorc v. City of Vero Beach, 722 So. 2d at 901. See also, .%reeman v. Times Publishing Company, 696 So. 2d 427 (Fla. 2d DCA 1997) (discussion of methods options to achieve continuing compliance with a ong-standing federal desegregation mandate [such as whether to modify the boundaries of a school zone to achieve racial balance] must be held in the -unshine). Compare, Brown v. City of Lauderhill, 654 So. 2d 302, 303 (Fla. 4th MCA 1995) (closed -door session between city attorney and board to discuss claims for attorney's fees, authorized). ,6) When is an agency a party to "pending litigation" for purposes of the exemption? http://legal l .fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/d7b6960216b3f 1 Ob852566f3005718... 11 /20/2002 57 Section 286.011(8) permits an entity to use the exemption if the entity "is -presently a party before a court or administrative agency ...." A city council nd its attorney may, therefore, hold a closed -door meeting pursuant to this statute to discuss settlement negotiations or strategy related to litigation xpenditures for pending litigation involving a workers' compensation claim .✓here a petition for benefits as prescribed in s. 440.192, F.S., has been filed. AGO 96-75. The system prescribed in Ch. 440, F.S., operates as a means of djudicating workers' compensation claims before an administrative tribunal and would be considered litigation before an administrative agency that falls Within the purview of s. 286.011(8). Id. In Brown v. City of Lauderhill, 654 So. 2d 302 (Fla. 4th DCA 1995), the court aid it could "discern no rational basis for concluding that a city is not a 'party' pending litigation in which it is the real party in interest." And see, Zorc v. City of Vero Beach, 722 So. 2d at 900 (city was presently a party to ongoing ,tigation by virtue of its already pending claims in bankruptcy proceedings). Although the Brown decision established that the exemption could be used by a ity that was a real party in interest on a claim involved in pending litigation, that decision does not mean that an agency may meet in executive session with �Is attorney where there is only the threat of litigation. See, AGO 98-21 (s. 86.011[8] exemption "does not apply when no lawsuit has been filed even though the parties involved believe litigation is inevitable"). 17) When is litigation "concluded" for purposes of s. 286.011(8)(e)? .itigation that is ongoing but temporarily suspended pursuant to a stipulation .or settlement has not been concluded for purposes of s. 286.011(8), F.S:; and a transcript of meetings held between the city and its attorney to discuss such ,tigation may be kept confidential until conclusion of the litigation. AGO 94- 04. And see, AGO 94-33, concluding that to give effect to the purpose of s. -)86.011(8), F.S., a public agency may maintain the confidentiality of a record ,f a strategy or settlement meeting between a public agency and its attorney until the suit is dismissed with prejudice or the applicable statute of limitations as run. Cf., AGO 96-75 (disclosure of medical records to a city council during closed -door meeting under s. 286.011 [8], F.S., does not affect the requirement that the transcript of such a meeting be made a part of the public ecord at the conclusion of the litigation). b. Risk management exemption Section 768.28(15)(c), F.S., states that portions of meetings and proceedings -elating solely to the evaluation of claims or to offers of compromise of claims iled with a risk management program of the state, its agencies and subdivisions, are exempt from s. 286.011, F.S. The minutes of such meetings nd proceedings are also exempt from public disclosure until the termination of ,he litigation and settlement of all claims arising out of the same incident. Section 768.28(15)(d), F.S. http://legal l.fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/d7b6960216b3f10b852566f3005718... 11/20/2002 6V This exemption is limited and applies only to those meetings which relate olely to the evaluation of a claim filed with a risk management program for ort liability or an offer of compromise of such a claim. AGO 92-82. The exemption is not applicable to meetings held prior to the filing of a tort claim vith the risk management program. Id. And see, AGO 00-20, discussing the application of the exemption to a risk management meeting conducted by a district school board and attended by risk management personnel that relates olely to the evaluation of a tort claim filed with the risk management program or that relates solely to an offer of compromise of a tort claim filed with the -isk management program. c. Notice of settlement of tort claim 1 governmental entity, except a municipality or county, that settles a claim in tort which requires the expenditure of more than $5,000 in public funds, is equired to provide notice pursuant to Ch. 50, F.S., of the settlement in the county in which the claim arose within 60 days of entering into the settlement. No notice is required if the settlement has been approved by a court of ;ompetent jurisdiction. Section 69.081(9), F.S. 4. Personnel matters Meetings of a public board or commission at which personnel matters are liscussed are not exempt from the provisions of s. 286.011, F.S., in the absence )f a specific statutory exemption. Times Publishing Company v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. ✓liami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985). As the court ,n that case recognized, personnel matters are not legally privileged or insulated from legislative control. a. Collective bargaining discussions 1) Strategy sessions A, limited exemption from s. 286.011, F.S., exists for discussions between the thief executive officer of the public employer, or his or her representative, and the legislative body of the public employer relative to collective bargaining. Section 447.605(1), F.S. A similar exemption is contained in s. 110.201(4), .�.S., for discussions between the Department of Management Services and the Governor, and between the department and the Administration Commission or agency heads, or between any of their respective representatives, relative to collective bargaining. k duly -appointed labor negotiating committee of a city that does not have a city manager or city administrator qualifies'as the "chief executive officer" for )urposes of s. 447.605(1), F.S., and may use the exemption when meeting with :he city council to discuss collective bargaining. AGO 85-99. And see, AGO 99-27, concluding that a committee (composed of the city manager and various 'ity managerial and supervisory employees) formed by the city manager to http://legal 1.fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/d7b6960216b3f10b8525660005718... 11/20/2002 0 represent the city in labor negotiations may participate in closed executive ,ssions conducted pursuant to s. 447.605(l), F.S. The exemption also extends Lu meetings of the negotiating committee itself which are held to discuss labor negotiation strategies. Id. Thus, during active negotiations, the committee may ljourn to hold a caucus among its members to determine the strategy to be employed in ongoing negotiations. Id. owever, if a school superintendent's responsibility to conduct collective bargaining on behalf of the school board has been completely delegated to a ;parate labor negotiating committee and the superintendent does not rarticipate in the collective bargaining negotiations, the exemption afforded by s. 447.605(1), F.S., applies to discussions between the labor negotiating :)mmittee and the school board only and does not encompass discussions among the committee, school board and superintendent. AGO 98-06. he exemption afforded by s. 447.605(1), F.S., applies only in the context of actual and impending collective bargaining negotiations. AGO 85-99. The -xemption does not allow private discussions of a proposed "mini-PERC rdinance" or discussions regarding the attitude or stance a public body intends to adopt in regard to unionization and/or collective bargaining. AGO 75-48. 4oreover, a public body may not conduct an entire meeting outside the unshine Law merely by discussing one topic during the course of that meeting which may be statutorily exempt from s. 286.011, F.S. AGOs 85-99 and 75-48. k2) Negotiations 'he collective bargaining negotiations between the chief executive officer and a bargaining agent are not exempt and, pursuant to s. 447.605(2), F.S., must be -onducted in the sunshine. Once the collective bargaining process begins, ihenever one side or any of its representatives at any time, whether before or after the declaration of an impasse, meets with the other side or any of its -presentatives to discuss anything relevant to the terms and conditions of the -mployer-employee relationship, such a meeting is subject to the Sunshine Law. City of Fort Myers v. News -Press Publishing Company, Inc., 514 So. 2d 08, 412 (Fla. 2d DCA 1987). Accord, AGO 99-27. As with other meetings subject to s. 286.011, F.S., minutes of the negotiation meeting must be kept. Tnf. Op. to Fulwider, June 14, 1993. The Legislature has, therefore, divided Sunshine Law policy on collective argaining for public employees into two parts: when the public employer is -neeting with its own side, it is exempt from the Sunshine Law; when the public employer is meeting with the other side, it is required to comply with he Sunshine Law. City of Fort Myers v. News -Press Publishing Company, Inc., 514 So. 2d at 412; AGO 76-102. 'rior to the enactment of the Public Employees Collective Bargaining Act, Ch. 447, F.S., the Florida Supreme Court determined that a constitutional exception `o the Sunshine Law existed for collective bargaining under Art. I, s. 6, Fla. onst. Bassett v. Braddock, 262 So. 2d 425 (Fla. 1972). The purpose of Ch. A, ... 1 l /20/2002 U 447, F.S., is to provide statutory implementation of Art. I, s. 6, Fla. Const. 'herefore, to the extent that Bassett directly conflicts with s. 447.605(2), F.S., ie statute appears to control. See, City of Fort Myers v. News -Press Publishing Company, Inc., supra. Complaint review boards complaint review board of a city police department is subject to the vovernment in the Sunshine Law. Barfield v. City of West Palm Beach, No. CL94-2141-AC (Fla. 15th Cir. Ct. May 6, 1994). Accord, AGO 78-105 (police omplaint review boards convened pursuant to s. 112.532[2], F.S., are subject to the Sunshine Law). And see, AGO 93-79 (discussions between two members f a three -member complaint review board regarding their selection of the third lember of the board must be conducted in accordance with s. 286.011, F.S.). Disciplinary proceedings, grievances, and appeals A meeting of a commission to conduct an employee termination hearing is ubject to the Sunshine Law. AGO 92-65. And see, News -Press Publishing %.:ompany v. Wisher, 345 So. 2d 646, 647-648 (Fla. 1977), in which the Court disapproved of a county's use of "pseudonyms or cloaked references" during a Zeeting held to reprimand an unnamed department head. Cf.., Inf. Op. to Gerstein, July 16, 1976, noting that a discussion between two city councilmen - nd the city manager regarding the city manager's resignation was subject to ie Sunshine Law. -'he Sunshine Law applies to board discussions concerning grievances. AGO . 6-102. And see, Palm Beach County Classroom Teacher's Association v. School Board of Palm Beach County, 411 So. 2d 1375 (Fla. 4th DCA 1982), in vhich the court affirmed the lower tribunal's refusal to issue a temporary injunction to exclude a newspaper reporter from a grievance arbitration hearing. A collective bargaining agreement cannot be used "to circumvent the equirements of public meetings" in s. 286.011, F.S. Id. at 1376. "See also, AGO 84-70 (staff committee created to make nonbinding recommendations to a ounty administrator regarding disposition of employee grievances is subject to . 286.011, F.S.). � meeting of a municipal housing authority commission to consider an . mployee's appeal of his or her dismissal by the executive director must be open to the public. AGO 92-65. See also, AGO 77-132 (personnel council omposed of citizens appointed by members of county commission to hear appeals from county employees who have been disciplined not authorized to deliberate in secret); and AGO 80-27 (civil service board created by special act o administer a civil service system for deputy sheriffs and employees of the office of the sheriff is subject to s. 286.011, F.S.). 1Vhere, however, a mayor as chief executive officer, rather than the city council, is responsible under the city charter for disciplining city employees, neetings between the mayor and a city employee concerning discipline of the http://legal l .fim.edu/sun.nsf/l a9972cc3Oebe4Od852563cb004e9d73/d7b6960216b3fI M852566BO05718... 11/20/2002 employee are not subject to the Sunshine Law. City of Sunrise v. News and 'Zun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989). d. Employee advisory boards idvisory boards whose powers are limited to making recommendations to a public agency and which possess no authority to bind that agency in any way re subject to the Sunshine Law. Town of Palm Beach v. Gradison, 296 So. 2d .73 (Fla. 1974). Thus, an employee advisory committee established pursuant to a special act of the Legislature to make recommendations to a hospital uthority board is subject to the Sunshine Law. AGO 96-32. See also, AGO 92-26 (personnel committee responsible for making recommendations to the ^ity council on personnel matters subject to s. 286.011, F.S.). A limited exemption to the applicability of the Sunshine Law has been -1cognized for citizen or staff advisory committees established for fact-finding nly. Thus, in Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976), the court held that a fact-finding committee appointed by a community college president report to him on employee working conditions was not subject to the ounshine Law. 'or more information on this subject, please refer to the discussion on advisory bodies found in s. 13.2., supra. . Evaluations '4eetings of a board to evaluate employee performance are not exempt from ie Sunshine Law. See, AGO 89-37 (Sunshine Law applies to meetings of a board of county commissioners when conducting job evaluations of county mployees). A board that is responsible for assessing the performance of its chief executive fficer (CEO) should conduct the review and appraisal process in a proceeding open to the public as prescribed by s. 286.011, F.S., instead of using a review procedure in which individual board members evaluate the CEO's performance nd send their individual written comments to the board chairman for compilation and subsequent discussion with the CEO. AGO 93-90. However, aeetings of individual school board members with the superintendent to :iscuss the individual board members' evaluations do not violate the Sunshine Law when such evaluations do not become the board's evaluation until they are ompiled and discussed at a public meeting by the school board for adoption oy the board. AGO 97-23. Compare, Leach -Wells v. City of Bradenton, 734 So. 2d 1168, 1171 (Fla. 2d DCA 1999) (city selection committee charged with :valuating proposals violated the Sunshine Law when the city clerk unilaterally ranked the proposals based on the committee members' individual written -valuations; the court found that "the short -listing was formal action that was equired to be taken at a public meeting"). Interviews http://legall .fim.edu/sun.nsf/ l a9972cc3Oebe4Od852563cbOO4e9d73/d7b6960216b3f l Ob852566f3005718... 11/20/2002 62 The Sunshine Law applies to meetings of a board of county commissioners Shen interviewing applicants for county positions appointed by the board, when conducting job evaluations of county employees answering to and °rving at the pleasure of the board, and when conducting employment :rmination interviews of county employees who serve at the pleasure of the board. AGO 89-37. And see, AGO 75-37 (state commission must conduct iterviews relating to hiring of its lawyer in public); and AGO 71-389 (district school board conducting employment interviews for district school superintendent applicants would violate the Sunshine Law if such interviews ,ere held in secret). Selection and screening committees The Sunshine Law applies to advisory committees created by an agency to ssist in the selection process. For example, in Wood v. Marston, 442 So. 2d 34 (Fla. 1983), a committee created to screen applications and make recommendations for the position of a law school dean was held to be subject s. 286.011, F.S. By screening applicants and deciding which applicants to eject from further consideration, the committee performed a policy -based, decision -making function delegated to it by the president of the university. And 3e, Dore v. Sliger, No. 90-1850 (Fla. 2d Cir. Ct. July 11, 1990) (faculty of university law school prohibited from conducting secret ballots on personnel `iring matters). A selection committee appointed to screen applications, and rank selected pplicants for submission to the city council was determined to be subject to __te Sunshine Law even though the city council was not bound by the committee's rankings. AGO 80-20. Accord, AGO 80-51. .lowever, if the sole function of the screening committee is simply to gather information for the decision -maker, rather than to accept or reject applicants, ie committee's activities are outside the Sunshine Law. Thus, in Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985), `he district court considered whether certain activities of the city and the city tanager violated the Sunshine Law. The city charter placed sole responsibility for the selection of the police chief in the city manager. However, when it ecame necessary to select a new chief of police, the city manager asked ,everal people to sit in on the interviews. The only function of this group was to assist the city manages' in acquiring information on the applicants he had hosen by asking questions during the interviews and then discussing the qualifications of each candidate with the city manager after the interview. The -ourt stated at page 225: Because the record demonstrates that the committee selected by the city manager had the sole function of assisting him with "fact-finding," to supply him with the necessary information so that he could properly exercise his duties and responsibility in selecting a new chief of http://legal I.fim.edu/sun.nsf/I a9972cc30ebe40d852563cb004e9d73/d7b6960216b3f10b852566f3005718... 11/20/2002 63 police, and because the committee had no decision - making function such as authority to screen, interview or recommend applicants to the city manager, the group was not a "board" within the contemplation of the Sunshine Law. T7or more information on this subject, please refer to the discussion on advisory odies found in s. B.2., supra. Purchasing or bid evaluation committees A committee appointed by a college's purchasing director to consider proposals ubmitted by contractors was deemed to be subject to the Sunshine Law oecause its function was to "weed through the various proposals, to determine which were acceptable and to rank them accordingly." Silver Express Company . District Board of Lower Tribunal Trustees, 691 So. 2d 1099, 1100 (Fla. 3d DCA 1997). Accord, Inf. Op. to Lewis, March 15, 1999 (panels established by 'Late agency to create requests for proposals and evaluate vendor responses are ubject to the Sunshine Law). And see, Leach -Wells v. City of Bradenton, 734 So. 2d 1168, 1171 (Fla. 2d DCA 1999) (selection committee created by city ouncil to evaluate proposals violated the Sunshine Law when the city clerk Unilaterally ranked the proposals based on the committee members' individual written evaluations; the court held that "the short -listing was formal action that as required to be taken at a public meeting"). Tz Port Everglades Authority v. International Longshoremen's Association, ,ocal 1922-1, 652 So. 2d 1169, 1170 (Fla. 4th DCA 1995), the court ruled that a board's selection and negotiation committee violated the Sunshine Law by -questing that bidders voluntarily excuse themselves from each others' Jesentations. The court found that the committee's actions "amounted to a de facto exclusion of the competitors, especially since the 'request' was made by n official directly involved with the procurement process." Cf., AGO 91-28 kcity may not prohibit a citizen from videotaping the meetings of a city council through the use of nondisruptive video recording devices); and Suncam, Inc. v. Vorrall, No. CI97-3385 (Fla. 9th Cir. Ct. May 9, 1997) (agency not authorized to adopt a policy that allows videotaping by the general public and the media, ut bars filming for commercial purposes). 6. Quasi-judicial proceedings :he Florida Supreme Court has stated that there is no exception to the Sunshine Law which would allow closed -door hearings or deliberations when a oard or commission is acting in a "quasi-judicial" capacity. Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973). See also, Occidental Chemical Company v. Mayo, 351 So. 2d 336, 340 n. 7 (Fla. 1977), 'isapproved in part on other grounds, Citizens v. Beard, 613 So. 2d 403 (Fla. 1992), in which the Supreme Court noted that the characterization of the Public 'ervice Commission's decision -making process as "quasi-judicial" did not nttp://legal I.fim.edu/sun.nsf/1 a9972cc30ebe40d852563cb004e9d73/d7b6960216b3f 10b852566f3005718... 11/20/2002 m exempt it from s. 286.011, F.S. And see, Palm Beach County Classroom Toacher's Association v. School Board of Palm Beach County, 411 So. 2d 1375 'Ia. 4th DCA 1982), in which the court affirmed the lower court's refusal to issue a temporary injunction to exclude a newspaper reporter from a grievance ,aring. This office has concluded that deliberations of the following boards or )mmissions are subject to s. 286.011, F.S., notwithstanding the fact that the Boards or commissions are acting in a "quasi-judicial" capacity: municipal housing authority, AGO 92-65; municipal board of adjustment, AGO 83-43; -,rsonnel council created to hear appeals of disciplined employees, AGO 77- 132; assessment administration review commission, AGO 75-37; civil service ' Dard, AGOs 73-370 and 71-29; fair housing and employment appeals board, if. Op. to Beare, April 20, 1977. Real property negotiations In the absence of a statutory exemption, the negotiations by a public board or )mmission for the sale or purchase of property must be conducted in the �anshine. See, City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971) (city commission not authorized to hold closed sessions to discuss )ndemnation issues). In addition, if the authority of the public board or commission to acquire or lease property has been delegated to a single --iember, that member is subject to s. 286.011, F.S., and is prohibited from --gotiating the acquisition or lease of the property in secret. AGO 74-294. dvisory committees charged with land acquisition responsibilities are also _ lbject to the Sunshine Law. See, AGOs 87-42 (ad hoc committee appointed by mayor to meet with the Chamber of Commerce to discuss a proposed ansfer of city property); and 86-51 (land selection committee appointed by water management district to evaluate and recommend projects for acquisition). A limited exemption from the Public Records Act, Ch. 119, F.S., exists for --_rtain records pertaining to the purchase of real property by counties, umicipalities, and school boards. Sections 125.355, 166.045, and 235.054, F.S. Each statute, however, provides that "[n]othing in this section shall be iterpreted as providing an exemption from, or an exception to, s. 286.011." ee, AGO 95-06 (s. 166.045, F.S., does not authorize a city or its designee to conduct negotiations for purchase of property outside the Sunshine Law or to cep records other than those specifically designated in the statute from public disclosure). Accord, Inf. Op. to Garvey, October 21, 1993. Home I News I Opinions I Consumers I Lemon Law Crime Victims Open Government Prosecution I Criminal Justice ( Florida's AG SG Services I Jobs Directory Malls http://legal I.fim.edu/sun.nsf/1 a9972cc30ebe40d852563cb004e9d73/d7b6960216b3fI M852566f3005718... 11/20/2002 65 Government -in -the -Sunshine Manual Chapter updated: 01/18/2002 Does the Sunshine Law apply to: E. DOES THE SUNSHINE LAW APPLY TO: 1. members -elect or candidates; 2. meetings between members of different boards; 3. meetings between a mayor and a member of the city council; 4. meetings between a board member and his or her alternate; 5. community forums sponsored by private organizations; 6. board members attending meetings of another public board; social events; or a husband and wife serving on the same board? . Members -elect or candidates Members -elect of boards or commissions are subject to the Sunshine Law. See, lough v. Stembridge, 278 So. 2d 288, 289 (Fla. 3d DCA 1973), stating that an individual, upon election to public office, loses his or her status as a private individual and acquires a position more akin to that of a public trustee; thus, uch individuals as members -elect to a public board or commission are subject to s. 286.011, F.S. And see, AGO 74-40 (members -elect may be liable for "sunshine" violations). However, the Sunshine Law does not apply to a briefing session between a etiring mayor and the mayor -elect who is not an incumbent council member -ince the mayor and the mayor -elect do not, and will not once the mayor -elect takes office, serve together on the city council. AGO 93-04. Nor does the ;unshine Law apply to candidates for office, unless the candidate is an incumbent seeking reelection. AGO 92-05. And see, AGO 98-60 (although a ^andidate running for city commission may be unopposed, he or she is not onsidered to be elected until the election has been held; therefore, the candidate is not a member -elect for purposes of the Government in the 'unshine Law until that time). 2. Members of different boards .'he Sunshine Law does not apply to a meeting between individuals who are members of different boards unless one or more of the individuals has been http://legal l.fim.edulsun.nsf/1 a9972cc3Oebe4Od852563cb004e9d73/a69eb 19509b l9e8O852566f300579f.... 11/20/2002 Uelegated the authority to act on behalf of his or her board. Rowe v. Pinellas .Sports Authority, 461 So. 2d 72 (Fla. 1984). Accord, AGO 84-16 (meeting etween the chair of a private industry council created pursuant to federal law and the chair of a five -county employment and training consortium created -ursuant to state law not subject to Sunshine Law, unless there is a delegation f decision -making authority to the chair of the consortium); and Inf. Op. to McClash, April 29, 1992 (Sunshine Law generally not applicable to county ommissioner meeting with individual member of metropolitan planning .,rganization). And see, News -Press Publishing Company, Inc. v. Lee County, Florida, 570 So. 2d 1325 (Fla. 2d DCA 1990) (Sunshine Law not applicable to iediation proceeding attended by individual members of city and county boards who were in litigation because only one member of each board was -resent at the proceedings and no final settlement negotiations, decisions, or ctual settlement could be made during the mediation conference). ,n individual city council member may, therefore, meet privately with an idividual member of the municipal planning and zoning board to discuss a recommendation made by that board since two or more members of either oard are not present, provided that no delegation of decision -making authority ,,as been made and neither member is acting as a liaison. AGO 87-34. And see, AGO 99-55 (school board member meeting with member of advisory ommittee established by school board); and AGO 97-52 (discussions between individual member of community college board of trustees and school board --iember regarding acquisition of property by school board). 3. A mayor and a member of the city council the mayor is a member of the council or has a voice in decision -making through the power to break tie votes, meetings between the mayor and a iember of the city council to discuss some matter which will come before the ,ity council are subject to the Sunshine Law. AGOs 83-70 and 75-210. And cee, AGO 92-26 (if the mayor and city administrator are both members of a ommittee which is responsible for making recommendations to the city council on personnel matters, discussions between the mayor and city -dministrator on matters which foreseeably will come before the personnel ommittee for action are governed by s. 286.011, F.S.). Vhere, however, the mayor is not a member of the city council and does not ..ossess any power to vote even in the case of a tie vote but possesses only the power to veto legislation then the mayor may privately meet with an ldividual member of the city council without violating the Sunshine Law, provided the mayor is not acting as a liaison between members and neither the -Mayor nor the council member has been delegated the authority to act on ehalf of the council. AGOs 90-26 and 85-36. I a decision falls within the administrative functions of the mayor and would .ot come before the city council for consideration, discussions between an individual member of the city council and the mayor are not subject to the sunshine Law since such discussions do not relate to a matter which will nttp://legal I .fim.edu/sun.nsf/1 a9972cc3Oebe4Od852563cb004e9d73/a69eb l9509b l9e80852566f300579f:... 11/20/2002 .,n .oreseeably come before the city council for action. AGOs 83-70 and 75-210. See, s. B.10., supra. Cf., City of Sunrise v. News and Sun -Sentinel Company, ;42 So. 2d 1354 (Fla. 4th DCA 1989) (since mayor was responsible under the city charter for disciplining city employees, mayor in carrying out this function ,vas not subject to s. 286.011, F.S.). 4. A board member and his or her alternate since the alternate is authorized to act only in the absence of a board or commission member, there is no meeting of two individuals who exercise .idependent decision -making authority at the meeting. There is, in effect, only ne decision -making official present. Therefore, a meeting between a board member and his or her alternate is not subject to the Sunshine Law. AGO 88- 5. 4. Community forums sponsored by private organizations A "Candidates' Night" sponsored by a private organization at which candidates `-)r public office, including several incumbent city council members, will speak bout their political philosophies, trends, and issues facing the city, is not subject to the Sunshine Law unless the council members discuss issues coming efore the council among themselves. AGO 92-05. Similarly, in AGO 94-62, this office concluded that the Sunshine Law does not pply to a political forum sponsored by a private civic club during which ,-ounty commissioners express their position on matters that may foreseeably come before the commission, so long as the; commissioners avoid discussions mong themselves on these issues. However, caution should be exercised to avoid situations in which private political or community forums may be used to ircumvent the statute's requirements. Id. See, Town of Palm Beach v. rradison, 296 So. 2d 473, 477 (Fla. 1974) (Sunshine Law is to be construed "so as to frustrate all evasive devices"). Board members attending meetings of another public board i AGO 98-14, this office was asked whether members of a metropolitan planning organization (MPO) who also serve as city council members must Qeparately notice an MPO meeting when they plan to discuss MPO matters at n advertised city council meeting. The opinion concluded that separate notice of the MPO meeting was not required as long as the agenda of the city council, ieeting mentioned thatIvfPO business would be discussed. See also, AGO 00- 8 (Sunshine Law does not prohibit city commissioners from attending other city board meetings and commenting on agenda items that may subsequently ome before the commission for final action; however, city commissioners attending such meetings may not discuss those issues among themselves); AGO 99-55 (a school board member may attend a public meeting of an dvisory committee without prior notice of his or her attendance; if, however, it is known that two or more members of the school board are planning to be in ttendance and participate, it would be advisable to note their attendance in the n ttp:Hlegal 1.fim.edu/sun.nsf/ 1 a9972cc3Oebe4Od852563cb004e9d73/a69eb 19509b 19e8O852566f300579f:... 11/20/2002 notice of the advisory committee meeting); AGO 98-79 (city commissioner ^iay attend a community development board meeting held to consider a roposed city ordinance and express his or her views on the proposed ordinance even though other city commissioners may be in attendance; owever, the city commissioners in attendance may not engage in a discussion _r debate among themselves); AGO 91-95 (county commissioner's participation in advertised meeting of appointed county board on which another ounty commissioner serves as a board member does not violate the Sunshine Law); and AGO 77-138 (Sunshine Law does not prohibit members of a city -ommission from attending public meetings of a board established by the ommission and subsequently voting at a public meeting of the commission on recommendations submitted by that board). Social events - 4mbers of a public board or commission are not prohibited under the -unshine Law from meeting together socially, provided that matters which may come before the board or commission are not discussed at such atherings. Thus, when two or more members of a public board are attending or participating in meetings or other functions unconnected with their board they must refrain from discussing matters on which foreseeable action may be iken by the board but are not otherwise restricted in their actions. AGO 92-79. . luncheon meeting held by a private organization for members of a public board or commission at which there is no discussion among such officials on tatters relating to public business would not be subject to the Sunshine Law _ierely because of the presence of two or more members of a covered board or commission. AGO 72-158. Accord, Inf. Op. to Batchelor, May 27, 1982 Sunshine Law inapplicable when the gathering of two or more members of a uoard or commission is entirely for social purposes and no public business is Hiscussed). K. A husband and wife serving on the same board 'here is no per se violation of the Sunshine Law for a husband and wife to serve on the same public board or commission so long as they do not discuss oard business without complying with the requirements of s. 286.011, F.S. _ .GO 89-06. Home I News I Opinions I Consumers I Lemon Law I Crime Victims Open Government Prosecution I Criminal Justice I Florida's AG I SG I Services I Jobs Directory I Maps hnp:Hlegal l .fim.edu/sun. n sf/ 1 a9972cc3Oebe4Od852563cb004e9d73/a69eb 19509b 19e8O852566f3o0579f:... 11/20/2002 Government -in -the -Sunshine Manual Chapter updated: 01/18/2002 What are the notice and procedural requirements of the Sunshine Law? .. WHAT ARE THE NOTICE AND PROCEDURAL REQUIREMENTS OF THE SUNSHINE LAW? i. What kind of notice of the meeting must be given? Reasonable notice required A vital element of the Sunshine Law is the requirement that boards subject to ie law provide "reasonable notice" of all meetings. See, s. 286.011(1), F.S. Although s. 286.011, F.S., did not contain an express notice requirement until 995, many court decisions had stated prior to the statutory amendment that in .,rder for a public meeting to be in essence "public," reasonable notice of the meeting must be given. Hough v. Stembridge, 278 So. 2d 288, 291 (Fla. 3d ICA 1973). Accord, Yarbrough v. Young, 462 So. 2d 515, 517 (Fla. 1st DCA 1985). Notice is required even though meetings of the board are "of general Unowledge" and are not conducted in a closed door manner. TSI Southeast, Inc. Royals, 588 So. 2d 309, 310 (Fla. lst DCA 1991). "Governmental bodies who hold unnoticed meetings do so at their peril." Monroe County v. Pigeon "'ey Historical Park, Inc., 647 So. 2d 857, 869 (Fla. 3d DCA 1994). Reasonable public notice is required for all meetings subject to the Sunshine ,aw. Thus, notice is required for meetings between members of a public board ,,ven though a quorum is not present. AGOs 90-56 and 71-346. 'he type of notice that must be given is variable, however, depending on the facts of the situation and the board involved. In some instances, posting of the -otice in an area set aside for that purpose may be sufficient; in others, ublication in a local newspaper may be necessary. In each case, however, an agency must give notice at such time and in such a manner as will enable the iedia and the general public to attend the meeting. AGOs 80-78 and 73-170. nd see, Rhea v. City of Gainesville, 574 So. 2d 221, 222 (Fla. 1st DCA 1991), citing to AGO 73-170, and stating that the purpose of the notice requirement is 3 apprise the public of the pendency of matters that might affect their rights, afford them the opportunity to appear and present their views, and afford them reasonable time to make an appearance if they wish. Cf.., Lyon v. Lake .ounty, 765 So. 2d 785, 790 (Fla. 5th DCA 2000) (where county attorney h tt)://)eeal l .fim.edu/sun.n sf/ 1 a9972cc3Oebe4Od852563cb004e9d73/a47b8f3e8f3cccdf852566f300582c9... 11/20/2002 Fill provided citizen with "personal due notice" of a committee meeting and its `unction, it would be "unjust to reward" the citizen by concluding that a ieeting lacked adequate notice because the newspaper advertisement failed to correctly name the committee). And see, Suncam, Inc. v. Worrall, No. CI97- 385 (Fla. 9th Cir. Ct. May 9, 1997) (Sunshine Law requires notice to the beneral public; agency not required to provide "individual notice" to company that wished to be informed when certain meetings were going to occur). vVhile this office cannot specify the type of notice which must be given in all c-ases, it has suggested the following notice guidelines: 1. The notice should contain the time and place of the meeting and, if available, an agenda (or if no agenda is available, subject matter summations might be used); 2. the notice should be prominently displayed in the area in the agency's offices set aside for that purpose, e.g., for cities, in city hall; 3. emergency sessions should be afforded the most appropriate and effective notice under the circumstances and special meetings should have at least 24 hours reasonable notice to the public; and 4. the use of press releases and/or phone calls to the wire services and other media is highly effective. On matters of critical public concern such as rezoning, budgeting, taxation, appointment of public officers, etc., advertising in the local newspapers of general circulation would be appropriate. he notice procedures set forth above should be considered as suggestions which will vary depending upon the circumstances of each particular situation. ee, AGO 73-170 ("If the purpose for notice is kept in mind, together with the character of the event about which notice is to be given and the nature of the -fights to be affected, the essential requirements for notice in that situation will uggest themselves."). See also, Rhea v. City of Gainesville, 574 So. 2d 221 (Fla. 1st DCA 1991), in which the court held that a complaint alleging that iembers of the local news media were contacted about a special meeting of ..ie city commission one and one-half hours before the meeting stated a sufficient cause of action that the Sunshine Law had been violated. Compare, 'arbrough v. Young, 462 So. 2d 515 (Fla. 1st DCA 1985) (three days' notice of special meeting deemed adequate). n Nocera v. School Board of Lee County, Florida, No. 91-1828 CA-WCM (Fla. 20th Cir. Ct. Nov. 25, 1991), the circuit court held that reasonable notice "or school rezonings, a matter of critical public concern, mandated that such _neetings be noticed in a newspaper of general circulation. Notice for various meetings of an attendance zone advisory committee responsible for making ecommendations regarding redistricting and desegregation had included posting a notice outside the meeting room the night before or day of the meeting, sending letters home with the affected elementary school children http://legal l .fim.edu/sun.nsf/I a9972cc30ebe40d852563cb004e9d73/a47b8f3e8f3ccedf852566f300582c9... 11/20/2002 71 advising parents of meetings, and advertising in the local newspaper of general ^irculation. However, because the issue was of such great public concern, only ie notice given by advertising in the local paper was considered by the court to be sufficient. Compare, News and Sun -Sentinel Company v. Cox, 702 F. -upp. 891 (S.D. Fla. 1988) (no Sunshine Law violation occurred when on larch 31, a "general notice" of a city commission meeting scheduled for April 5 was posted on the bulletin board outside city hall). .'he determination as to who will actually prepare the notice or agenda is essentially "an integral part of the actual mechanics and procedures for inducting that meeting and, therefore, aptly relegated to local practice and procedure as prescribed by ... charters and ordinances." Hough, supra at 291. . Notice requirements when meeting adjourned to a later date Tr a meeting is to be adjourned and reconvened later to complete the business -om the agenda of the adjourned meeting, the second meeting should also be noticed. AGO 90-56. -lowever, in State v. Adams, No. 91-175-CC (Fla. Sumter Co. Ct. July 15, 1992), the county court held that s. 286.011, F.S., was not violated by a brief iscussion as to whether commission members could make an inspection trip to an industrial facility without violating s. 286.011, F.S., when the discussion took place immediately after the adjournment of a duly noticed commission leeting. The court found that the room remained open during the discussion, no member of the public relied to their detriment on the adjournment by ' saving the proceedings, and there was no allegation that the alleged djournment was utilized as a tool to avoid the public scrutiny of governmental meetings. And see, Greenbarg v. Metropolitan Dade County Board of County .ommissioners, 618 So. 2d 760 (Fla. 3d DCA 1993) (no impropriety in county . ommission continuing its meeting until the early morning hours). . Notice requirements when board acting as quasi-judicial body or taking action affecting individual rights ection 286.0105, F.S., requires: Each board, commission, or agency of this state or of any political subdivision thereof shall include in the notice of any meeting or hearing, if notice of the meeting or hearing is required, of such board, commission, or agency, conspicuously on such notice, the advice that, if a person decides to appeal any decision made by the board, agency, or commission with respect to any matter considered at such meeting or hearing, he or she will need a record of the proceedings, and that, for such purpose, he or she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to http://legal l.fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a47b8f3e8f3cccdf852566f300582c9 ... 11/20/2002 72 be based. Where a public board or commission acts as a quasi-judicial body or takes -fficial action on matters that affect individual rights of citizens, in contrast ,ith the rights of the, public at large, the board or commission is subject to the requirements of s. 286.0105, F.S. AGO 81-06. _. Effect of notice requirements imposed by other statutes, codes or ordinances ,he Sunshine Law requires only that reasonable public notice be given. As stated above, the type of notice required is variable and will depend upon the ircumstances. A public agency, however, may be subject to additional notice requirements imposed by other statutes, charters or codes. See, e.g., s. 189.417 '1), F.S., providing notice requirements for meetings of the governing bodies f special districts. In such cases, the requirements of that statute, charter, or code must be strictly observed. Inf. Op. to Mattimore, February 6, 1996. And ee, Yarbrough v. Young, 462 So. 2d 515, 517, n.l (Fla. 1st DCA 1985) ,Sunshine Law does not require city council to give notice "by paid advertisements" of its intent to take action regarding utilities system nprovements, although the Legislature "has required such notice for certain subjects," see e.g., 166.041[3][c], F.S.). 'hus, a board or commission subject to Ch. 120, F.S., the Administrative Procedure Act, must comply with the notice requirements of that act. See, e.g., 120.525, F.S. Those requirements, however, are imposed by Ch. 120, F.S., of s. 286.011, F.S., although the notice of a board or commission published in the Florida Administrative Weekly pursuant to Ch. 120, F.S., also satisfies the otice requirements of s. 286.011, F.S. Florida Parole and Probation . ommission v. Baranko, 407 So. 2d 1086 (Fla. lst DCA 1982). . Does the Sunshine Law require that an agenda be made available prior to board meetings or restrict the board from taking action on matters not "n the agenda? This office recommends publication of an agenda, if available, in the notice of 'he meeting; if an agenda is not available, subject matter summations might be sed. Particularly if the item is controversial or one of critical public concern, this office advises that the public board or commission postpone taking any .ction on the issue until it has been noticed. Inf. Op. to Evans, June 7, 1989. The Sunshine Law, however, does not mandate that an agency provide notice )f each item to be discussed via a published agenda. Such a specific requirement has been rejected by the courts because it could effectively -ireclude access to meetings by members of the general public who wish to )ring specific issues before a governmental body. See, Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). And see, Yarbrough v. Young, 462 So. 2d i15 (Fla. 1st DCA 1985) (posted agenda unnecessary; public body not required http://legal l.fim.edu/sun.nsf/1 a9972cc30ebe40d852563cb004e9d73/a47b8f3e8f3cccdf852566f300582c9... 11/20/2002 73 Lo postpone meeting due to inaccurate press report which was not part of the nublic body's official notice efforts). Thus, the Sunshine Law has been iterpreted to require notice of meetings, not of the individual items which may be considered at that meeting. However, other statutes, codes or ordinances iay impose such a requirement and agencies subject to those provisions must )llow them. .ccordingly, the Sunshine Law does not require boards to consider only those ..tatters on a published agenda. "[W]hether to impose a requirement that restricts every relevant commission or board from considering matters not on n agenda is a policy decision to be made by the legislature." Law and information Services, Inc. v. City of Riviera Beach, 670 So. 2d 1014, 1016 1vla. 4th DCA 1996). For example, s. 120.525(2), F.S., requires that agencies abject to the Administrative Procedure Act must prepare an agenda in time to ensure that a copy may be received at least seven days before the event by any erson in the state who requests a copy and who pays the reasonable cost of the -opy. After the agenda has been made available, changes may be made only for good cause. Id. Accordingly, agencies subject to the Administrative Procedure .ct must follow the requirements in that statute. See, Inf. Op. to Mattimore, rebruary 6, 1996 (notice of each item to be discussed at public meeting is not required under s. 286.011, F.S., although other statutes, codes, or rules, such as 1. 120, F.S., may impose such a requirement). '. Does the Sunshine Law limit where meetings of a public board or ommission may be held? . Inspection trips Members of a public board or commission are not prohibited under the unshine Law from conducting inspection trips. However, if discussions .alating,to the business of the board will occur between board members during an inspection trip, then the requirements of s. 286.011, F.S., must be met -- dvance notice must be given, the public must be afforded a reasonable opportunity to attend, and minutes must be promptly recorded and made -vailable for inspection. AGO 76-141. See also, Inf. Op. to Kreidler, February 0, 1996 (the mere presence of two members of human rights advocacy committee during an investigation of a group home does not make the sunshine Law applicable, provided that the members avoid discussion between .aemselves of issues that may come before the committee for official action). n some cases, it may not be possible to invite the general public to attend inspection trips. In these instances, this office has stated that inspection trips made by members of a public board, together with staff and officials of other organizations and members of the press, are not secret meetings in violation of s. 286.011, F.S., even though the general public is not invited to participate. 1GO 71-361. However, members of the public board must avoid discussions vith fellow board members regarding public business while on such trips. Board members must wait to discuss board business until such matters may be liscussed at a duly noticed public meeting where the public has an opportunity http://legal l .fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a47b8f3e8f3cccdf852566f300582c9 ... 11/20/2002 74 to attend. Bigelow v. Howze, 291 So. 2d 645 (Fla. 2d DCA 1974). . Luncheon meetings "ublic access to meetings of public boards or commissions is the key element f the Sunshine Law and public agencies are advised to avoid holding meetings in places not easily accessible to the public. This office, therefore, has iggested that public boards or commissions avoid the use of luncheon ..ieetings to conduct board or commission business. These meetings may have a "chilling" effect upon the public's willingness or desire to attend. People who •ould otherwise attend such a meeting may be unwilling or reluctant to enter a public dining room without purchasing a meal and may be financially or ^ersonally unwilling to do so. Inf. Op. to Campbell, February 8, 1999; and Inf. gyp. to Nelson, May 19, 1980. i addition, discussions at such meetings by members of the board or ommission which are audible only to those seated at the table may violate the "openness" requirement of the law. AGO 71-159. Public boards or ommissions are, therefore, advised to avoid holding meetings at places where «te public and the press are effectively excluded. AGO 71-295. Cf.., City of Miami Beach v. Berns, 245 So. 2d 38, 41 (Fla. 1971), in which the Florida upreme Court observed: "A secret meeting occurs when public officials meet at a time and place to avoid being seen or heard by the public." . Meetings at facilities that discriminate or unreasonably restrict access prohibited ection 286.011(6), F.S., prohibits boards or commissions subject to the - Sunshine Law from holding their meetings at any facility which discriminates n the basis of sex, age, race, creed, color, origin, or economic status, or which operates in such a manner as to unreasonably restrict public access to such a facility. And see, s. 286.26, F.S., relating to accessibility of public meetings to ie physically handicapped. Thus, a police pension board should not hold its meetings in a facility where ie 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, > leave such identification while attending the meeting and to request ,;ermission before entering the room where the meeting is held. AGO 96-55. (. Out-of-town meetings The courts have recognized that the mere fact that a meeting is held in a public oom does not make it public within the meaning of the Sunshine Law. Bigelow V. Howze, 291 So. 2d 645, 647-648 (Fla. 2d DCA 1974). For a -neeting to be "public," the public must be given advance notice and provided vith a reasonable opportunity to attend. Id. lccordingly, a school board workshop held outside county limits over 100 http://legal l.fim.edu/sun.nsf/1 a9972cc3Oebe4Od852563cb004e9d73/a47b8f3e8f3cccdf852566f300582c9... 11/20/2002 75 miles away from the board's headquarters violated the Sunshine Law where the ^nly advantage to the board resulting from the out-of-town gathering -11imination of travel time and expense due to the fact that the board members were attending a conference at the site) did not outweigh the interests of the ublic in having a reasonable opportunity to attend. Rhea v. School Board of .lachua County, 636 So. 2d 1383 (Fla. 1st DCA 1994). The court refused to adopt a rule prohibiting any board workshops from being held at a site more ian 100 miles from its headquarters; instead, the court held that a balancing of interests test is the most appropriate method to determine which interest predominates in a given case. As stated by the court, "[t]he interests of the ublic in having a reasonable opportunity to attend a Board workshop must be balanced against the Board's need to conduct a workshop at a site beyond the -ounty boundaries." Id. at 1385. In addition, there may be other statutes which limit where board meetings may e held. See, e.g., s. 125.001, F.S. (meetings of the board of county .,ommissioners may be held at any appropriate public place in the county); s. 230.17(2), F.S. (school board meetings may be held at any appropriate public lace in the county); and see, AGO 75-139 (town council may not hold council meetings outside town boundaries). 'onduct which occurs outside the state which would constitute a knowing violation of the Sunshine Law is a second degree misdemeanor. Section ^86.011(3), F.S. Such violations are prosecuted in the county in which the oard or commission normally conducts its official business. Section 910.16, F.S. Can restrictions be placed on the public's attendance at, or participation in, a public meeting? a. Public's right to attend or record meeting 1) Size of meeting facilities The Sunshine Law requires that meetings of a public board or commission be open to the public." For meetings where a large turnout of the public is expected, public boards and commissions should take reasonable steps to nsure that the facilities where the meeting will be held will accommodate the nticipated turnout. Meetings held at a facility which can accommodate only a small number of the public attending, when a large public turnout can easonably be expected, may violate the public access requirement of s. L86.011, F.S., by unreasonably restricting access to the meeting. If a huge public turnout is anticipated for a particular issue and the largest available lublic meeting room cannot accommodate all of those who are expected to attend, the use of video technology (e.g., a television screen outside the neeting room) may be appropriate. In such cases, as with other open meetings, easonable steps to provide an opportunity for public participation in the proceedings should also be considered. http://legal l.fim.edu/sun.nsf/l a9972cc30ebe40d852563cb004e9d73/a47b8f3e8f3cccdf852566f300582c9... 11/20/2002 76 (2) Inaudible discussions violation of the Sunshine Law may occur if, during a recess of a public meeting, board members discuss issues before the board in a manner not enerally audible to the public attending the meeting. Although such a meeting not clandestine, it nonetheless violates the letter and spirit of the law. Rackleff v. Bishop, No. 89-235 (Fla. 2d Cir. Ct. March 5, 1990). And see, AGO 1-159, stating that discussions of public business which are audible only to "a elect few" who are at the table with the board members may violate the "openness" requirement of the law. (3) Exclusion of certain members of the public 'he term "open to the public" as used in the Sunshine Law means open to all persons who choose to attend. AGO 99-53. In Port Everglades Authority v. 7ternational Longshoremen's Association, Local 1922-1, 652 So. 2d 1169, 170 (Fla. 4th DCA 1995), the court ruled that a board violated the Sunshine Law by requesting that bidders voluntarily excuse themselves from each others' resentations. The court found that the board's actions "amounted to a de facto exclusion of the competitors, especially since the 'request' was made by an official directly involved with the procurement process." Ntaff of a public agency clearly are members of the public as well as employees -f the agency; they cannot, therefore, be excluded from public meetings. AGO 9-01. Section 286.011, F.S., however, does not preclude the reasonable application of ordinary personnel policies, for example, the requirement that nnual leave be used to attend meetings, provided that such policies do not -custrate or subvert the purpose of the Sunshine Law. Id. ilthough not directly addressing the open meeting laws, courts of other states save ruled that in the absence of a compelling governmental interest, agencies may not single out and exclude a particular news organization or reporter from ress conferences. See, e.g., Times -Picayune Publishing Corporation v. Lee, 15 Media L. Rep. 1713 (E.D. La. 1988); Borreca v. Fasi, 369 F. Supp. 906 (D. Tlawaii 1974); Quad -City Community News Service, Inc. v. Jebens, 334 F. ,upp. 8 (S.D. Iowa 1971); and Southwestern Newspapers Corporation v. Curtis, 584 S.W.2d 362 (Tex. Ct. App. 1979). ,4) Cameras and tape recorders ,easonable rules and policies which ensure the orderly conduct of a public ineeting and which require orderly behavior on the part of those persons Mending a public meeting may be adopted by the board or commission. A rule jr policy which prohibits the use of nondisruptive or silent tape recording devices, however, is unreasonable and arbitrary and is, therefore, invalid. AGO "'7-122. Moreover, the Legislature has apparently recognized the public's right to ilently record public meetings. Id. Chapter 934, F.S., the Security of http://legal l .fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a47b8f3e8f3cccdf852566f300582c9... 11/20/2002 rn Communications Act, regulates the interception of oral communications. `,ection 934.02(2), F.S., however, defines "[o]ral communication" to pecifically exclude "any public oral communication uttered at a public meeting." See, Inf. Op. to Gerstein, July 16, 1976, stating that public officials iay not complain that they are secretly being recorded during public meetings i violation of s. 934.03, F.S. imilarly, a city may not prohibit a citizen from video taping the meetings of a ,.ity council through the use of nondisruptive video recording devices. AGO 91-28. Nor may an agency adopt a policy that allows videotaping by the eneral public and the media, but bars filming for commercial purposes. Suncam, Inc. v. Worrall, No. CI97-3385 (Fla. 9th Cit. Ct. May 9, 1997). Public's right to participate in a meeting '1) Importance of public participation The courts have recognized the importance of public participation in open leetings. The Florida Supreme Court has stated that "specified boards and -ommissions ... should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions ffecting the public are being made." Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, 699 (Fla. 1969). And see, City of Miami Reach v. Berns, 245 So. 2d 38, 41 (Fla. 1971) ("The evil of closed door peration of government without permitting public scrutiny and participation is what the law seeks to prohibit.") imilarly, in Town of Palm Beach v. Gradison, 296 So. 2d 473, 475 (Fla. 1974), the Court spoke of a meeting as being "a marketplace of ideas, so that ie governmental agency may have sufficient input from the citizens who are i,oing to be affected by the subsequent action of the [public agency]." Additionally, in Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535 ;o. 2d 694, 695 (Fla. 3d DCA 1988), the court observed that a board's violation of the Sunshine Law meant that "the public was not given the opportunity to -xpress views or to participate in the decision -making process." See also, :rause v. Reno, 366 So. 2d 1244, 1250 (Fla. 3d DCA 1979), referring to the "citizen input factor" and stating that public input is an important feature of iublic meetings; and AGO 73-170, noting that the purpose of the notice of a _neeting subject to the Sunshine Law is to apprise members of the public of "the opportunity to appear and present their views." k2) Meaningful opportunity for participation ]Vhile the right of a person to attend a meeting subject to s. 286.011, F.S., has been acknowledged by the courts of this state, the courts have not expressly -iddressed the question of the extent to which a citizen must be allowed to peak. Thus, although the importance of public participation in governmental proceedings has been recognized in judicial decisions, the courts have not set orth clear standards as to the extent of an agency's obligation under the http://legal l .fim.edu/sun.nsf/ 1 a9972cc3Oebe4Od852563cb004e9d73/a47b8f3e8f3cccdf852566f3O05 82c9 ... 11/20/2002 VP Sunshine Law to provide a meaningful opportunity for such participation at Board meetings. Cf., s. 286.0115(2)(b), F.S., providing that "[i]n a quasi- .tdicial proceeding on local government land use matters, a person who appears before the decisionmaking body who is not a party or a party- itervenor shall be allowed to testify before the decisionmaking body, subject control by the decisionmaking body, ... " n addition, the Supreme Court has indicated that with regard to certain types of executive meetings, there may not be a right under s. 286.011, F.S., for a member of the public to participate. In Wood v. Marston, 442 So. 2d 934, 941 Fla. 1983), the Court examined the applicability of the Sunshine Law to a staff committee delegated the authority by the university president to recommend -andidates for a university position. Reviewing the activities of a committee arrying out executive functions traditionally conducted without public input, the Court stated: This Court recognizes the necessity for the free exchange of ideas in academic forums, without fear of governmental reprisal, to foster deep thought and intellectual growth.... We hasten to reassure respondents that nothing in this decision gives the public the right to be more than spectators. Jntil the matter is clarified, this office has recognized that when committees are carrying out certain executive functions which traditionally have been ;onducted without public input (as described in the Marston decision), the public has the right to attend but may not have the authority to participate. See, Law and Information Services v. City of Riviera Beach, 670 So. 2d 1014, 1016 Fla. 4th DCA 1996), citing Marston for the principle that the public does not nave a right to speak on all issues prior to resolution of the issue by the board. )n the other hand, if a committee or board is carrying out legislative responsibilities, the Attorney General's Office has advised that the public ,hould be afforded a meaningful opportunity to participate at each stage of the iecision-making process, including workshops. See, Inf. Op. to Thrasher, January 27, 1994; and Inf. Op. to Conn, May 19, 1987. ,13) Authority to adopt reasonable rules n providing an opportunity for public participation, this office is of the view chat reasonable rules and policies, which ensure the orderly conduct of a public meeting and which require orderly behavior on the part of those persons attending, may be adopted by a public board. For example, a rule which limits the amount of time an individual may address :he board could be adopted provided that the time limit does not unreasonably restrict the public's right of access. On the other hand, in commenting on whether a district board could restrict the right to speak at public meetings to http://legal l.fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a47b8f3e8f3eccdf852566f300582c9... 11/20/2002 79 residents or landowners within the district, this office advised that "it is not --adily apparent how the residence of the speaker or his or her ownership of roperty in a certain area would be relevant to the orderly conduct of a meeting." Inf. Op. to Caetano, July 2, 1996. .lthough not directly considering the Sunshine Law, the court in Jones v. Heyman, 888 F.2d 1328, 1333 (llth Cir. 1989), recognized that "to deny the residing officer the authority to regulate irrelevant debate and disruptive ehavior at a public meeting -- would cause such meetings to drag on interminably, and deny others the opportunity to voice their opinions." Thus, ie court concluded that a mayor's actions in attempting to confine the speaker to the agenda item in the city commission meeting and having the speaker -moved when the speaker appeared to become disruptive constituted a ,asonable time, place and manner regulation and did not violate the speaker's First Amendment rights. _. May the members of a public board use codes or preassigned numbers in order to avoid identifying individuals? oection 286.011, F.S., requires that meetings of public boards or commissions he "open to the public at all times." If at any time during the meeting the roceedings become covert, secret or not wholly exposed to the view and hearing of the public, then that portion of the meeting violates the portion of s. '86.011, F.S., requiring that meetings be "open to the public at all times." bus, in Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985), the Court disapproved of a procedure by which representatives of the iedia would be permitted to attend a city council meeting provided that they -greed to "respect the confidentiality" of certain matters. "Under the Sunshine Law, a meeting is either fully open or fully closed; there are no intermediate ategories." Id. at 823. Accordingly, the use of preassigned numbers or codes at public meetings to void identifying the names of applicants violates s. 286.011, F.S., because "to permit discussions of applicants for the position of a municipal department ' ead by a preassigned number or other coded identification in order to keep the ublic from knowing the identities of such applicants and to exclude the public from the appointive or selection process would clearly frustrate or defeat the lurpose of the Sunshine Law." AGO 77-48. Accord, AGO 76-240 (Sunshine L.aw prohibits the use of coded symbols at a public meeting in order to avoid revealing the names of applicants for the position of city manager). And see, Jews -Press Publishing Company v. Wisher, 345 So. 2d 646 (Fla. 1977), in which the Supreme Court held that the procedure used by a county commission o reprimand a department head contravened the Sunshine Law. "The public ,)olicy of this state as expressed in the public records law and the open meetings statute eliminate any notion that the commission was free to conduct he county's personnel business by pseudonyms or cloaked references." Id. at o48. i. May members of a public board vote by written or secret ballot? http://legal l.firn.edu/sun.nsf/1 a9972cc3Oebe4Od852563cb004e9d73/a47b8f3e8f3cccdf852566f300582c9... 11/20/2002 Board members are not prohibited from using written ballots to cast a vote as )ng as the votes are made openly at a public meeting, and the ballots are maintained and made available for public inspection in accordance with the Public Records Act. AGO 73-344. By contrast, a secret ballot violates the Sunshine Law. See, AGO 73-264 '-nembers of a personnel board may not vote by secret ballot during a hearing oncerning a public employee). Accord, AGOs 72-326 and 71-32 (board may not use secret ballots to elect the chairman and other officers of the board). .. Are board members authorized to abstain from voting? ection 286.012, F.S., 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 ... 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 under ... s. 112.311, s. 112.313, or s. 112.3143, F.S. (e.s.) ection 286.012, F.S., thus, prohibits a member of a state, county or municipal board who is present at a meeting from abstaining from voting unless there is, -r appears to be, a possible conflict of interest under ss. 112.311, 112.313 or 12.3143, F.S., of the Code of Ethics for Public Officers and Employees. Failure of a member to vote, however, does not invalidate the entire roceedings. City of Hallandale v. Rayel Corporation, 313 So. 2d 113 (Fla. 4th JCA 1975), cause dismissed sua sponte, 322 So. 2d 915 (Fla. 1975) (to rule otherwise would permit any member to frustrate official action merely by ,fusing to participate). Cection 286.012, F.S., applies only to state, county and municipal boards. special district boards are not subject to its provisions and may adopt their own rules regarding abstention, subject to s. 112.3143, F.S. AGOs 85-78 and 78-11. f , AGO 78-117 (in the absence of statutory authority, proxy voting by board _ imbers is not allowed). :ection 112.3143(3)(a), F.S., prohibits a county, municipal, or other local public officer from voting on any measure which inures to his or her special private gain or loss; which the officer knows would inure to the special private ;ain or loss of any principal or parent organization or subsidiary of a corporate principal, other than a public agency, by whom he or she is retained; or which `he officer knows would inure to the special private gain or loss of a relative or nttp:Hlegal l,fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a47b8f3e8f3cccdf852566f300582c9... 11/20/2002 81 ousiness associate of the officer. An exception exists for a commissioner of a community redevelopment agency created or designated pursuant to s. 63.356, F.S., or s. 163.357, F.S., or an officer of an independent special tax oistrict elected on a one -acre, one -vote basis. Section 112.3143(3)(b), F.S. 'or those local officials subject to s. 112.3143(3)(a), F.S., however, no exception exists even though the abstention has the effect of preventing the )cal legislative body from taking action on the matter. AGO 86-61. Prior to ie vote being taken, the local officer must publicly state the nature of his or her interest in the matter from which he is abstaining. Within 15 days of the ote, the officer must disclose the nature of his or her interest in a memorandum filed with the person responsible for recording the minutes of the meeting who shall incorporate the memorandum in the minutes. Section 12.3143(3)(a), F.S. Itate public officers, however, are not required to abstain from voting because f a conflict of interest. Section 112.3143(2), F.S. Compare, s. 120.665(1), F.S., providing that an individual serving alone or with others as an agency ead may be disqualified from serving in an agency proceeding for bias, ,rejudice or interest. If the officer votes, however, on a matter which would inure to his or her special private gain or loss, or to the special gain or loss of ny principal or parent organization or subsidiary of a corporate principal by which the officer is retained, or to the special private gain or loss of a relative �r business associate, the officer is required to disclose the nature of his or her iterest in a memorandum. The memorandum must be filed within 15 days after the vote with the person responsible for recording the minutes of the leeting who shall incorporate the memorandum in the minutes. See, s. 12.3143(2), F.S. although a member of a state board or commission is authorized to abstain .rom voting on a question in which he or she is personally interested, the member is not disqualified from voting; the member may, therefore, be ounted for purposes of computing a quorum for a vote on that question. Once a quorum is present, a majority of those members actually voting is sufficient `-) decide the question. AGO 75-244. When a member of a local board is required to abstain pursuant to s. 112.3143 3), F.S., the local board member is disqualified from voting and may not be _ounted for purposes of determining a quorum. AGOs 86-61 and 85-40. Zuestions as to what constitutes a conflict of interest under the above statutes .hould be referred to the Florida Commission on Ethics. Is a roll call vote required? While s. 286.012, F.S., requires that each member present cast a vote either for )r against the proposal under consideration by the public board or commission, it is not necessary that a roll call vote of the members present and voting be aken so that each member's specific vote on each subject is recorded. The nttp:Hlegal l .fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a47b8f3e8f3eccdf852566f300582c9 ... 11 /20/2002 82 intent of the statute is that all members present cast a vote and that the minutes ,;o reflect that by either recording a vote or counting a vote for each member. ;uff a School Board of Collier County, 426 So. 2d 1015 (Fla. 2d DCA 1983) (roll call vote so as to record the individual vote of each such member is not --ecessary). Cf., s. 20.052(5)(c), F.S., requiring that minutes, including a record f all votes cast, be maintained for all meetings of an advisory body, commission, board of trustees, or other collegial body adjunct to an executive gency. 9. Must written minutes be kept of all sunshine meetings? ,3ection 286.011, F.S., specifically requires that minutes of a meeting of a nublic board or commission be promptly recorded and open to public aspection. While sound recordings may also be used to record the proceedings before a public body, written minutes of the meeting must be taken and romptly recorded. The minutes required to be kept for "workshop" meetings re not different than those required for any other meeting of a public board or commission. AGO 74-62. _Anutes for a previous meeting may be circulated for corrections and studying prior to an open meeting so long as any changes, corrections, or deletions are .iscussed and adopted during the properly noticed 'open" meeting. AGO 74- 294. The minutes are public records when the person responsible for preparing the minutes has performed his or her duty even though they have not yet been ent to the board members or officially approved by the board. AGO 91-26. O'ection 286.011, F.S., does not specify who is responsible for taking the ainutes of public meetings. This appears to be a procedural matter which the individual boards or commissions must resolve. Inf. Op. to Baldwin, December 1990. 10. In addition to minutes, does the Sunshine Law also require that neetings be transcribed or tape recorded? This office has concluded that the minutes of Sunshine Law meetings need not )e verbatim transcripts of the meetings; rather the use of the term "minutes" in s. 286.011, F.S., contemplates a brief summary or series of brief notes or nemoranda reflecting the events of the meeting. AGO 82-47; and see, State v. (dams, No. 91-175-CC (Fla. Sumter Co. Ct. July 15, 1992) (no violation of Sunshine Law where minutes failed to reflect brief discussion concerning a )roposed inspection trip). However, an agency is not prohibited from using a ,vritten transcript of the meeting as the minutes, if it chooses to do so. Inf. Op. to Fulwider, June 14, 1993. (here is no requirement that tape recordings be made by the public board or .ommission at each public meeting. However, once made, such recordings are )ublic records and their retention is controlled by s. 119.041, F.S., and the schedules established by the Division of Library and Information Services of he Department of State. AGO 86-21. See, s. 257.36(6), F.S., providing that a http://legal I.fim.edu/sun.nsf/l a9972cc3Oebe4Od852563cb004e9d73/a47b8f3e8f3cccdf852566f300582c9... 11/20/2002 M. public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the division. Home I News Opinions I Consumers I Leman Law Crime Victims Open Government Prosecution Criminal histice I Florida's AG I SG Services I Jobs Director v I Mks nttp://legal 1.fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/a47b8f3e8f3cccdf852566f300582c9 ... 11 /20/2002 M Government -in -the -Sunshine Manual Chapter updated: 01/18/2002 What are the statutory exceptions to the Law? T. WHAT ARE THE STATUTORY EXCEPTIONS TO THE LAW? Sunshine Law to be liberally construed while exceptions to the law to be iarrowly construed 1s a statute enacted for the public benefit, the Sunshine Law should be .iberally construed to give effect to its public purpose while exemptions should be narrowly construed. See, Board of Public Instruction of Broward County v. loran, 224 So. 2d 693 (Fla. 1969). The courts have recognized that the Sunshine Law should be construed so as to rustrate all evasive devices. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971); Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th -)CA 1979); Wolfson v. State, 344 So. 2d 611 (Fla. 2d DCA 1977). As the lorida Supreme Court stated: Various boards and agencies have obviously attempted to read exceptions into the Government in the Sunshine Law which do not exist. Even though their intentions may be sincere, such boards and agencies should not be allowed to circumvent the plain provisions of the statute. The benefit to the public far outweighs the inconvenience of the board or agency. If the board or agency feels aggrieved, then the remedy lies in the halls of the Legislature and not in efforts to circumvent the plain provisions of the statute by devious ways in the hope that the judiciary will read some exception into the law. Canney v. Board ofPublic Instruction of Alachua County, 278 So. 2d 260, 264 (Fla. 1973). f a board member is unable to determine whether a meeting is subject to the Sunshine Law, he or she should either leave the meeting or ensure that the neeting complies with the Sunshine Law. See, City of Miami Beach v. Berns, supra at 41; Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974) ("The principle to be followed is very simple: When in doubt, the members of my board, agency, authority or commission should follow the open -meeting http://legal l .fim.edu/sun.nsf/l a9972cc3Oebe4Od852563cb004e9d73/eOe4bab3dcO7f363852566f30058faS... 11/20/2002 85 ,;olicy of the State.") . Creation and review of exemptions Article I, s. 24(b), Fla. Const., requires that all meetings of a collegial public ody of the executive branch of state government or of local government, at which official acts are to be taken or at which the public business of such body to be transacted or discussed, be open and noticed to the public. All laws in ffect on July 1, 1993, that limit access to meetings remain in force until they are repealed. Article I, s. 24(d), Fla. Const. In addition, the Legislature is uthorized to provide by general law for the exemption of meetings, provided -ach law states with specificity the public necessity justifying the exemption and is no broader than necessary to accomplish the stated purpose of the law. .rticle I, s. 24(c), Fla. Const. See, Halifax Hospital Medical Center v. News - journal Corporation, 724 So. 2d 567 (Fla. 1999) (finding an open meetings -xemption to be unconstitutional because the law did not meet the onstitutional standard of specificity as to stated public necessity and limited breadth to accomplish that purpose). ection 119.15(3), F.S., the Open Government Sunset Review Act, provides for a legislative review of all newly -enacted or substantially expanded xemptions five years subsequent to enactment or substantial expansion. See, .ppendix C for a complete text of the act. . Statutory exemptions There are a number of exemptions to the Government in the Sunshine Law. 'his section, although by no means comprehensive, summarizes some of the more significant exemptions which have formed the basis of inquiries to this ffice by governmental agencies and the public, or which have been the subject f recent Attorney General Opinions or court decisions. For a more complete listing, please see Appendix D and the Index. _. Abuse meetings 'ortions of meetings of the State Child Abuse Death Review Committee or ,ocal committees which relate solely to child fatalities and in which specific persons or incidents are discussed are confidential. Section 383.410(3)(b), F.S. 4eetings of domestic violence fatality review teams during which the identity of the victim or of the victim's child are discussed are exempt from s. 286.011, I.S. Section 741.3165,1S. Portions of meetings of the statewide or local advocacy councils which relate :) the identity of clients, which relate to the identity of individuals providing .reformation about abuse or alleged violation of rights, or where testimony is orovided relating to records otherwise made confidential by law are not subject 0 open meetings requirements. Sections 402.165(8)(c) and 402.166(8)(c), F.S. b. Education meetings uttp:Hlegal I .fim.edu/sun.nsf/ 1 a9972cc3Oebe4Od852563cb004e9d73/eOe4bab3dcO7f363852566f3O058fa9... 11 /20/2002 M.- Section 228.093(3)(c), F.S., provides that hearings held in order to challenge naterial found in student records are exempt from s. 286.011, F.S., if requested oy the parent, guardian or student. Student expulsion hearings are exempt from the Sunshine Law although the student's parent or legal guardian must be given iotice of the provisions of s. 286.011, F.S., and may elect to have the hearing held in compliance with that section. Section 230.23(6)(c)l., F.S. See, AGO 13-03. Hearings on an exceptional student's placement or denial of placement in a pecial education program are exempt from s. 286.011, F.S., to the extent that ,he Commissioner of Education adopts rules establishing other procedures. Section 230.23(4)(m)5., F.S. And see, s. 402.22(3), F.S., regarding onfidentiality of information and decisions affecting students residing in residential care facilities operated by the Department of Children and Family Services. An exemption also exists for the proceedings of a probable cause panel of the ;rate Board of Nonpublic Career Education until probable cause has been ound to exist. Section 246.226(3), F.S. . Hearings involving minors Dependency adjudicatory hearings are open except on special order of the udge, who may close any hearing to the public upon determining that the public interest or the welfare of the child is best served by so doing. Section 39.507(2), F.S. And see, Mayer v. State, 52� So. 2d 1171 (Fla. 2d DCA), eview dismissed, 529 So. 2d 694 (Fla. 1988) (former version of this statute which required all such hearings to be closed did not violate First Amendment Ireedom of press rights). However, in the absence of an exemption from the ;unshine Law, meetings of district case review committees established to provide for uniform case review and approval of treatment for emotionally listurbed children and adolescents, are subject to the requirements of s. �86.011, F.S. AGO 95-65. Hearings for the appointment of a guardian advocate are confidential and closed to the public. Section 39.827(4), F.S. All hearings involving termination of parental rights are confidential. Section 39.809(4), F.S. See, Natural Parents of J.B. v. Florida Department of Children end Family Services, 780 So. 2d 6 (Fla. 2001), upholding the constitutionality of the statute. Cf., Stanfield v. Florida Department of Children and Families, 08 So. 2d 321 (Fla. 3d DCA 1997) (trial court not authorized to issue a "gag" ,)rder preventing a woman from discussing a termination of parental rights case because "[t]he court cannot prohibit citizens from exercising their First kmendment right to publicly discuss knowledge that they have gained independent of court documents even though the information may mirror the ,nformation contained in court documents"). Hearings held under the Florida Adoption Act are closed. Section 63.162(1), ;.5. See, In re Adoption of H.Y.T., 458 So. 2d 1127 (Fla. 1984) (statute nttp:Hlegall.firn edu/sun.nsf/1a9972cc30ebe40d852563cb004e9d73/e0e4bab3dc07f363852566f30058fag... 11/20/2002 m droviding that all adoption hearings shall be held in closed court is not unconstitutional). ,3xcept as provided in s. 918.16(2), the judge shall clear the courtroom, except for listed individuals, in a criminal or civil trial when any person under 16 ears of age or any person with mental retardation is testifying concerning any sex offense. Section 918.16(1), F.S. When the victim of a sex offense is `estifying concerning that offense, the court shall clear the courtroom, except or listed individuals, upon request of the victim, regardless of the victim's age or mental capacity. Section 918.16(2), F.S., Cf.., Pritchett v. State, 566 So. 2d 6 Fla. 2d DCA), review dismissed, 570 So. 2d 1306 (Fla. 1990) (where a trial .,ourt failed to make any findings to justify closure, application of s. 918.16, F.S., to the trial of a defendant charged with capital sexual battery violates the efendant's constitutional right to a public trial). 4. Hearings to obtain AIDS test results While the test results for human immunodeficiency virus infection are -onfidential and may be released only as prescribed by statute, a person may be llowed access to the results by court order if he or she demonstrates a compelling need for the results which cannot be accommodated by other neans. The court proceedings in these cases are to be conducted in camera anless the person tested agrees to a hearing in open court or the court determines that a public hearing is necessary to the public interest and the iroper administration of justice. Section 381.004(3)(e)9., F.S. See also, State v. .ienkins, No. CR 93-2698 CFA (Fla. 18th Cir. Ct. September 16, 1993), in Which the court refused to close a hearing to determine whether a criminal efendant should be compelled to undergo HIV testing. The court found that a considerable amount of information about the defendant was already public ..ue to the criminal charges pending against her; moreover, it was already a _natter of public record that the defendant's HIV status had been called into question since she was accused of biting a store manager who attempted to etain her for suspected shoplifting. e. Hospitals (1) Public hospitals and health facilities 'he meetings of peer review panels, committees and governing bodies of hospitals or ambulatory surgical centers licensed in accordance with Ch. 395, �.S., which relate to disciplinary actions and are held to achieve the objectives ,f such panels, committees, or governing boards, are exempt from s. 286.011, F.S. Section 395.0193(7), F.S. The meetings of the committees and governing Board of a licensed facility held solely for the purpose of achieving the objectives of risk management are not open to the public. Section 395.0197 (15), F.S. See, AGO 92-29, stating that to the extent a meeting of the board of lirectors and the medical staffs quality assurance committee deals with carrying out cited risk management statutes, the meeting is exempt from the )pen meeting requirements of s. 286.011, F.S. Cf.., AGO 95-10 (exemption ittp://legal I.fim.edu/sun.nsf/I a9972cc30ebe40d852563cb004e9d73/e0e4bab3dc07f363852566f30058fa9... 11/20/2002 m provided in s. 395.0193, F.S., for meetings of peer review panels of facilities licensed under Ch. 395 does not apply to the Halifax Healthy Families ,orporation). Similar exemptions for portions of meetings which relate solely to patient care uality assurance are found in ss. 381.0055(3) (Department of Health and local health agencies); 394.907(7) (community mental health centers); and 395.51 9), F.S. (trauma agencies). And see, ss. 400.119(4) (long-term care facilities); 01.425(5) (emergency medical services); 766.101(7)(c) (medical review committee proceedings); and 945.6032(3), F.S. (medical review committee reated by Correctional Medical Authority or Department of Corrections). Those portions of a meeting of a public hospital's governing board at which egotiations for contracts with nongovernmental entities occur or are reported on when such negotiations concern services that are or are reasonably expected to be provided by the hospital's competitors are exempt from public meetings -quirements. Section 395.3035(3), F.S. However, governing board meetings at which the board is scheduled to vote on contracts, except managed care ontracts, are open. Id. In addition, those portions of meetings at which certain ✓ritten strategic plans are considered are exempt from open meetings requirements. Section 395.3035(4), F.S. However, a hospital may not approve binding agreement to implement a strategic plan at any closed meeting. erection 395.3035(8), F.S. .ny portion of the meeting of the governing board, peer review panel, or committee meeting of a university health support organization during which a -onfidential- and exempt contract, document, record, marketing plan, or trade ecret is discussed is exempt from s. 286.011, F.S. Section 240.2996(3), F.S. And see, s. 409.91196(2), F.S. (portions of meetings of the Medicaid -'harmaceutical and Therapeutics Committee at which trade secrets, rebate __zformation, and manufacturer's pricing are disclosed for discussion or negotiation of a supplemental rebate agreement are exempt from open meetings --quirements). That portion of a long term care ombudsman council meeting in which the ouncil discusses information that is confidential and exempt from s. 119.07 (1), F.S., is closed to the public. Section 400.0077(2), F.S. And see, s. 641.68 '0, F.S. (managed care ombudsman committee). (2) Private or nonprofit corporations operating public health facilities _/Ieetings of the governing board of a private corporation that leases a public hospital or health care facility are exempt from open meetings requirements vhen-the public lessor complies with the public finance accountability provisions of s. 155.40(5), F.S., with respect to the transfer of any public funds to the private lessee and when the private lessee meets at least three of the five riteria set forth in the exemption. Section 395.3036, F.S. See, Indian River County Hospital District v. Indian River Memorial Hospital Inc., 766 So. 2d ^33 (Fla. 4th DCA 2000). Cf., Memorial Hospital -West Volusia, Inc. v. News- iittp://Iegal I.fim.edu/sun.nsf/1 a9972cc3Oebe4Od852563cb004e9d73/eOe4bab3dcO7f363852566f30058fa9... 11/20/2002 1:% .,ournal Corporation, 784 So. 2d 438 (Fla. 2001) (s. 395.3036 does not apply retroactively to exempt records created and meetings held prior to the effective .ate of the law, May 30, 1998). Meetings of the governing body of the not -for -profit corporation operating the 1. Lee Moffitt Cancer Center and Research Institute, or its subsidiaries, are also exempt except that meetings at which expenditures of dollars appropriated :) the corporation by the state are discussed must remain open to the public, nless made confidential or exempt by law. Section 240.512(9), F.S. Insurance meetings Proceedings and hearings relating to the Department of Insurance's actions garding an insurer's risk -based capital plan or report are exempt from s. /-86.011, F.S., except as otherwise provided in the section. Section 624.40851 (2), F.S. Portions of meetings of the Residential Property and Casualty Joint Jnderwriting Association and of the Florida Automobile Joint Underwriting Association where confidential underwriting files or confidential open claims 'Iles are discussed are closed to the public. Sections 627.351(6)(n)2. and 27.311(3)(1)2., F.S. Meetings of the statewide provider and subscriber assistance panel are open to the public unless the provider or subscriber whose rievance will be heard requests a closed meeting or the Agency for Health :are Administration or the Department of Insurance determines that certain personal, trade secret or risk management information may be revealed at the neeting, in which case that portion of the meeting shall be exempt from the Sunshine Law. Section 408.7056(15)(b), F.S. )iscussions involving officials of the Department of Insurance and an insurance company relating to investigation of fraudulent insurance claims are onfidential and exempt from s. 286.011, F.S. Section 633.175(5), F.S. And ee, s. 631.724, F.S. (certain negotiations or meetings of the Florida Life and Health Insurance Guaranty.Association are exempt); and s. 631.932, F.S. negotiations between an insurer and the Florida Workers' Compensation insurance Guaranty Association are exempt). ;. Investigative meetings For more information on this topic, please refer to the discussion in s. D.2.a., upra. .i. Litigation meetings - For more information on this topic, please refer to the discussion in s. D.3., upra. i. Security systems meetings Meetings relating to the security systems for any property owned by or leased to the state or any of its political subdivisions or for any privately owned or ❑ttp://legal l .fim.edu/sun.nsf/ 1 a9972cc3Oebe4Od852563cb004e9d73/eOe4bab3dcO7f363852566f30058faS... I 1 /20/2002 a eased property which is in the hands of an agency are exempt from s. 286.011, F.S. Section 281.301, F.S. This statute exempts meetings of a board when the ioard discusses issues relating to the security systems for any property owned or leased by the board or for any privately owned or leased property which is in the possession of the board. The statute does not merely close such meetings; it xempts the meetings from the requirements of s. 286.011, F.S., such as notice. AGO 93-86. Workforce Florida, Inc. meetings 1ny meeting or portion of a meeting held by the Department of Children and ,amily Services, Workforce Florida, Inc., or a regional workforce board or local committee created pursuant to s. 445.007, F.S., at which personal ientifying information contained in records relating to temporary cash assistance is discussed is exempt from open meetings requirements if the information identifies a participant, a participant's family or household nember. Section 414.106, F.S. And see, s. 445.007(12), F.S., creating a similar exemption. Special act exemptions ')rior to July 1, 1993, exemptions from the Sunshine Law could be created by pecial act. For example, a special act giving a teacher the option of an open or closed hearing during a disciplinary proceeding was held by the Florida iupreme Court to constitute a valid legislative exception to s. 286.011, F.S. �"ribune Company v. School Board of Hillsborough County, 367 So. 2d 627 (Fla. 1979). Article I, s. 24, Fla. Const., however, now limits the Legislature's ability to -nact an exemption from the constitutional right of access to open meetings stablished thereunder. While exemptions in effect on July 1, 1993, remain in force until repealed, the Constitution requires that exemptions enacted after nat date must be by general law. Such law must state with specificity the public necessity for the exemption and be no broader than necessary to accomplish that stated purpose. r Home I Neu s I Opinions I Consumers I Lemon Law I Crime Victims Open Government Prosecution I Criminal Justice � Florid_a's AG 18G I Services I Jobs I DirectoryI Maps r ttp:Hlegal l .firn.edu/sun.n sf/ 1 a9972cc3Oebe4Od852563cb004e9d73/eOe4bab3dcO7f363852566f30058fag... 11/20/2002 iection 112.52(3), F.S. A person who pleads guilty or nolo contendere or who is found guilty is, for purposes of s. 112.52, F.S., deemed to have been :onvicted, notwithstanding the suspension of sentence or the withholding of adjudication. Id. Cf.., s. 112.51, F.S., and Art. IV, s. 7, Fla. Const. ittp:Hlegal 1.fim.edu/sun.nsf/ 1 a9972cc3Oebe4Od852563cbOO4e9d73/26fdd486a72786f7852566f30059491... 11/20/2002 92 .,unshine violations when no formal charges were filed, although common law principles may permit such reimbursement, provided the agency has made a pecific finding that the member's actions arose from the performance of his or ner official duties and that such actions served a public purpose. AGO 86-35. :easonable attorney's fees may be assessed against the individual filing an action to enforce the provisions of s. 286.011, F.S., if the court finds that it was riled in bad faith or was frivolous. Section 286.011(4), F.S. The fact that a laintiff may be unable to prove that a secret meeting took place, however, does not necessarily mean that attorney's fees will be assessed. _nor example, in Bland v. Jackson County, 514 So. 2d 1115, 1116 (Fla. 1st DCA 1987), the court reversed an award for attorney's fees for maintaining a rivolous action, holding that a justiciable issue had been presented as to whether there was a privately agreed upon result reached in a nonpublic Meeting. Although the plaintiff was unable to prove such a meeting took place, ne evidence showed that the county commission unanimously voted on the issue in an open public meeting without identifying what they were voting on nd without any discussion: "Under these circumstances one of several aferences reasonable people might draw could be that the Commissioners had no need to discuss the action being taken because they had already discussed nd decided the issue before the public meeting." 5. Civil actions for injunctive or declaratory relief section 286.011(2), F.S., states that the circuit courts have jurisdiction to issue injunctions upon application by any citizen of this state. The burden of revailing in such actions has been significantly eased by the judiciary in sunshine cases. While normally irreparable injury must be proved by the laintiff before an injunction may be issued, in Sunshine Law cases the mere howing that the law has been violated constitutes "irreparable public injury." Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); Times 'ublishing Company v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985). The plaintiffs burden is to "establish by ie greater weight of the evidence" that a meeting which should have been held in the sunshine took place on the date alleged. Lyon v. Lake County, 765 So. 2d '85, 789 (Fla. 5th DCA 2000). In order to state a cause of action for injunctive relief, a complaint must allege y name or sufficient description the identity of the public official with whom .ae defendant public official has violated the Sunshine Law. Deerfield Beach Publishing, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988). And see, 'orehand v. School Board of Gulf County, Florida, 600 So. 2d 1187 (Fla. 1st DCA 1992) (court rejected plaintiffs argument that she was denied a fair and mpartial hearing because the board only briefly deliberated in public before a ote was taken, stating that there was no evidence that the board had privately deliberated on this issue); and Law and Information Services v. City of Riviera leach, 670 So. 2d 1014 (Fla. 4th DCA 1996) (patent speculation, absent any uttp://legal l .fim.edu/sun.nsf/ 1 a9972cc3Oebe4Od852563cb004e9d73/26fdd486a72786f7852566f30059491... 11/20/2002 93 Alegation that a nonpublic meeting in fact occurred, is insufficient to state a cause of action). .'uture violations may be enjoined by the court where one violation has been found and it appears that the future violation will bear some resemblance to the )ast violation or that the danger of future violations can be anticipated from the course of conduct in the past. Board of Public Instruction of Broward County Doran, 224 So. 2d 693 (Fla. 1969). See, Wood v. Marston, 442 So. 2d 934 Fla. 1983) (trial court's permanent injunction affirmed). Compare, Leach - Wells v. City of Bradenton, 734 So. 2d 1168, 1170 at n.1 (Fla. 2d DCA 1999), n which the court noted that had a citizen appealed the trial court's denial of .ier motion for temporary injunction based on a selection committee's alleged violation of the Sunshine Law, the appellate court "would have had the Ipportunity to review this matter before the project was completed and to direct that the City be enjoined from entering into a final contract with the -ieveloper until after such time as the ranking of the proposals could be accomplished in compliance with the Sunshine Law." k1though a court cannot issue a blanket order enjoining any violation of the sunshine Law on a showing that it was violated in particular respects, a court may enjoin a future violation that bears some resemblance to the past violation. 'ort Everglades Authority v. International Longshoremen's Association, Local 922-1, 652 So. 2d 1169, 1173 (Fla. 4th DCA 1995). The future conduct must he "specified, with such reasonable definiteness and certainty that the lefendant could readily know what it must refrain from doing without speculation and conjecture." Id. quoting from Board of Public Instruction v. loran, supra at 699. , Declaratory relief is not appropriate where no present dispute exists but where ;overnmental agencies merely seek judicial advice different from that _dvanced by the Attorney General and the state attorney, or an injunctive restraint on the prosecutorial discretion of the state attorney. Askew v. City of )cala, 348 So. 2d 308 (Fla. 1977). 6. Validity of action taken in violation of the Sunshine Law and ubsequent corrective action Section 286.011, F.S., provides that no resolution, rule, regulation or formal ction shall be considered binding except as taken or made at an open meeting. recognizing that the Sunshine Law should be construed so as to frustrate all ,vasive devices, the courts have held that action taken in violation of the law is void ab initio. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); 3lackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979) (resolutions made during meetings held in violation of s. 286.011, F.S., had to be re-examined and re -discussed in open public meetings); Silver ;xpress Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997) (agency enjoined from entering into a contract based )n a ranking established by a selection committee that did not meet in ittp://legal l.firn.eda/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/26fdd486a72786f7852566f30059491... 11/20/2002 94 ,ccordance with the Sunshine Law); and TSI Southeast, Inc. v. Royals, 588 So. 2d 309 (Fla. 1st DCA 1991) (contract for sale and purchase of real property ,oided because board failed to properly notice the meeting under s. 286.011, 1'.S.). � violation of the Sunshine Law need not be "clandestine" in order for a contract to be invalidated, because "the principle that a Sunshine Law violation -enders void a resulting official action does not depend upon a finding of intent o violate the law or resulting prejudice." Port Everglades Authority v. International Longshoremen's Association, Local 1922-1, 652 So. 2d 1169, 171 (Fla. 4th DCA 1995). But see, Killearn Properties, Inc. v. City of allahassee, 366 So. 2d 172 (Fla. 1st DCA 1979), cert. denied, 378 So. 2d 343 (Fla. 1979) (city which had received benefits under contract was estopped from laiming contract invalid as having been entered into in violation of the Sunshine Law). Where, however, a public board or commission does not merely perfunctorily ratify or ceremoniously accept at a later open meeting those decisions which vere made at an earlier secret meeting but rather takes "independent final .ction in the sunshine," the decision of the board or commission will not be disturbed. Tolar v. School Board of Liberty County, 398 So. 2d 427, 429 (Fla. 981). And see, Yarbrough v. Young, 462 So. 2d 515 (Fla. 1st DCA 1985); 2.M.Z. Corporation v. City of Oakland Park, 415 So. 2d 735 (Fla. 4th DCA 1982) (where no evidence that any decision was made in private, subsequent ormal action in sunshine was not merely perfunctory ratification of secret decisions or ceremonial acceptance of secret actions). Cf.., Board of County "ommissioners of Sarasota County v. Webber, 658 So. 2d 1069 (Fla. 2d DCA 995) (no evidence suggesting that board members met in secret during a recess to reconsider and deny a variance and then perfunctorily ratified this tecision at the public hearing held a few minutes later). Thus, in a case involving the validity of a lease approved by a board of county :ommissioners after an advisory committee held two unnoticed meetings regarding the lease, a court held that the Sunshine Law violations were cured when the board of county commisioners held open public hearings after the mnoticed meetings, an effort was made to make available to the public the minutes of the unnoticed meetings, the board approved a lease that was narkedly different from that recommended by the advisory committee, and nost of the lease negotiations were conducted after the advisory committee had concluded its work. Monroe County v. Pigeon Key Historical Park, Inc., 647 ;o. 2d 857, 860-861 (Fla. 3d DCA 1994). The court also said that the adoption of the open government constitutional amendment, found at Art. I, s. 24 of the Florida Constitution, did not overrule the Tolar "standard of remediation." Id. it 861. 't must be emphasized, however, that only a full open hearing will cure the lefect; a violation of the Sunshine Law will not be cured by a perfunctory ratification of the action taken outside of the sunshine. Spillis Candela & ittp://legal 1.fim.edu/sun.nsf/ 1 a9972cc30ebe40d852563cb004e9d73/26fdd486a72786f7852566f30059491... 11/20/2002 95 'artners, Inc. v. Centrust Savings Bank, 535 So. 2d 694 (Fla. 3d DCA 1988). For example, in Zorc v. City of Vero Beach, 722 So. 2d 891, 903 (Fla. 4th DCA 998), the Fourth District explained why a subsequent city council meeting did ,,ot cure the council's prior violation of the Sunshine Law: It is evident from the record that the meeting was not a full reexamination of the issues, but rather, was merely the perfunctory acceptance of the City's prior decision. This was not a full, open public hearing convened for the purpose of enabling the public to express its views and participate in the decision -making process. Instead, this was merely a Council meeting which was then opened to the public for comment at the City's request. There was no significant discussion of the issues or a discourse as to the language sought to be included. The City Councilmen were provided with transcripts of the hearings, but none reviewed the language previously approved, and the Council subsequently voted to deny reconsideration of the wording. similarly, a public hearing held by a county commission following an advisory committee's violation of the Sunshine Law failed to cure the "Sunshine Law 'roblem" because the county commission did not "review the complete ueliberative process fully in the sunshine." Board of County Commissioners, Monroe County, Florida v. Florida Keys Aqueduct Authority, No. CA-K-00- 170 (Fla. 16th Cir. Ct. May 16, 2001). "Where there are secret or non-public meetings by an advisory board ... the problem can be cured, but only by -cheduling a new meeting of an appropriate deliberative body which will cover -ie same subject matter previously covered in violation of the Sunshine Law." Id. Home I News I Opinions I Consumers I Lemon Law I Crime Victims I Open Government Prosecution I Criminal Justice I Florida's. AG I SG I Services I Jobs I Directory I Maps ittp://legal I.fim.edu/sun.nsf/ 1 a9972cc3Oebe4Od852563cb004e9d73/26fdd486a72786f7852566f3O059491... 11/20/2002 TABSXE OF CONTENTS Power point Presentation Public Records Outline Attorney General materials 1 7 Collier County Resolution No. 98-498 1 33 Chapter 119, Florida Statutes 35 PUBLIC RECORDS County Attorney's Office Michael W. Pettit, Assistant County Attorney gar. The Policy of the State of Florida Strongly Favors Open Access to Public Records • The public's right to inspect or copy any public record Is established in the Florida Constitution. • The legislature enacted Chu 'or 119 of the Flonda Statutes setting the policy for the state. • Florida courts have routinely held that the Public Reeords Acl is to be liberally constuvd in favor of open access to public records. The Definition of Public Records Open to Inspection to Any Person is Very Broad . A public record encompasses all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge, regardless of whether such materials are in final form. Some Public Records are Exempt from Disclosure sTa • Examples of fnguently seen exemptions include: — Rexnrds pmpared tier litigation pivccYxlings or in wniciputinn of legal pmCcediagv — Social Security nmutxta of employees m lbrnwr employees — Seulyd hits or pmixnwls Restrictions Placed on Access to Public Records 9707r 111� • The restrictions a public entity may place on access to public records for reasons of administrative convenience, cost or other factors are narrow and limited. e :Mror Penalties • Both civil and criminal penalties exist for violations of the Public Records Act. t PUBLIC RECORDS 1. The Policy Of The State Of Florida Strongly Favors Open Access To Public Records. A. Article 1, Section 24 of the Florida Constitution provides: "Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the State, or persons acting on their behalf except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution." B. Chapter 119 of the Florida Statutes, sometimes referred to as the Public Records Act, sets forth for the governing law with respect to public records. 1. Section 119.01, Florida Statutes states: "It is the policy of this state that all state, county, and municipal records shall be open for personal inspection by any person." C. Florida courts have routinely held that the Public Records Act is to be liberally construed in favor of open access to public records. II. The Definition Of Public Records A. The Florida Supreme Court interprets the definition of public records contained in Section 119.011(1), Florida Statutes, to encompass all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge, regardless of whether such materials are in final form. B. The effect of this broad definition of public records can be seen from the following examples: 1. Anonymous letters regarding school personnel which are received by school district are public records. 2. Ballots or ballot stubs in the custody of the Supervisor of Elections following election are public records. 3. Computer tapes produced by a state commission that contain the names and addresses of subscribers to a magazine published by the state agency are public records. 4. Copies of letters or other documents received by citizens which are in turn given to the mayor in his official capacity are public records. 5. Salary records of assistant state attorneys are public records. H 6. Disbursement records showing amounts paid annually by a state agency to Medicaid providers are public records. 7. Tape recordings of incoming calls to a public agency are public records. . 8. Documents circulated for review, comment or information are public records regardless of whether they are an official expression of policy or marked "preliminary" or "draft." 9. Handwritten notes are public records if they are intended to perpetuate or formalize knowledge of some type, e.g., notes which are prepared for filing or otherwise intended as final evidence of knowledge obtained in a transaction of official business constitute public records. 10. Personnel records are public records. C. Only uncirculated materials which are precursors to future documents and which are not in and of themselves intended to serve as final evidence of the knowledge to be recorded fall outside the definition of public records, e.g., uncirculated rough drafts or notes taken by a secretary as dictation. D. Despite the broad definition of public records, whether a document is in fact a public record open to inspection by anyone ultimately depends on the facts or circumstances of the document's creation or receipt. III. Some Public Records Are Exempt From Disclosure. A. There are at least 29 types of public records listed in Section 119.07(3), Florida Statutes, that are exempt from disclosure. There are also a number of other public records that are exempt from disclosure pursuant to various statutory provisions in the Florida Statutes. B. The exemptions from disclosure for public records are narrowly construed by Florida courts "to achieve the particular exemption's stated purpose while preserving Florida's policy of open access to public records. C. Some frequently seen exemptions include: Records prepared by an attorney representing the agency or prepared at the attorney's express direction, which reflect a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and which were prepared exclusively for criminal or civil litigation or for adversarial administrative proceedings, or which were prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings are exempt from 5 disclosure under Chapter 119 and the Florida Constitution until the conclusion of the litigation or adversarial administrative proceedings. 2. Social security numbers of all current and former agency employees contained in agency employment records are exempt from disclosure under the Florida Constitution and Chapter 119. 3. Sealed bids or proposals received pursuant to an invitation to bid or request for proposals are exempt from disclosure until such time as the agency provides notice of a decision or intended decision or within 10 days after bid or proposal opening, which ever is earlier. IV. The Restrictions A Public Entity May Place On Access To Public Records For Reasons Of Administrative Convenience, Cost Or Other Factors Are Narrow And Limited. A. A public entity or custodian of public records is not allowed to deny inspection or copying of public records because the request is "over- broad" or "lacks particularity." B. A public entity or custodian of public records may not require that a public records request be made in writing. C. The Public Records Act does not contain a specific time limit for compliance with public records requests. The Florida Supreme Court states that the only delay allowed in producing public records under Chapter 119, Florida Statutes, is the reasonable time allowed a custodian to retrieve the record and delete those portions of the records the custodian asserts are exempt. In this regard, a public entity or custodian of public records is not authorized to establish an arbitrary time period during which records may or may not be inspected. D. A distinction should be made between requests for information and requests to inspect records. A public entity or custodian is not required to give out information from public records maintained by the public entity or custodian. E. A public entity or custodian of public records may charge for costs associated with the inspection and copying of public records. The charge must be reasonable and based on the labor or computer costs actually incurred by the public entity in responding to the request. Collier County has adopted Resolution No. 98-498 in order to make its policy for imposing fees for the inspection, examination and duplication of public records consistent for all County departments and with Florida law. 0 V. Both Civil And Criminal Penalties Exist For Violations Of The Public Records Act. A. Section 119.120), Florida Statutes, states that if a court determines an agency has unlawfully refused to permit a public record to be inspected, examined, or copied, the court shall assess against the agency the reasonable cost of enforcement including the reasonable attorney's fees incurred for prosecuting the Public Records Act claim. B. Aside from civil remedies, a public officer who knowingly violates the provisions of Section 119.07(1), Florida Statutes, i.e., knowingly violates the provisions allowing for open access to public records, is subject to suspension or removal or impeachment and is guilty of a misdemeanor of the first degree. In addition, Section 119.10, Florida Statutes, further provides that a violation of any provision of Chapter 119, Florida Statutes, by a public official is a noncriminal infraction, punishable by fine, not exceeding $500.00. H:Public\Mike\PUBLIC RECORDS Outline [These materials were presented at a seminar entitled Government in the Sunshine on January 18, 2002. The materials are the product of Patricia Gleason. Ms. Gleason serves as General Counsel in the Office of the Attorney General and is the Editor of the Government in the Sunshine Manual.] IL PUBLIC RECORDS A. WHAT IS A PUBLIC RECORD WHICH IS OPEN TO INSPECTION? L What materials are public records? Section 119.011(1), Florida Statutes, defines "public records" to include: all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. The Florida Supreme Court has interpreted this definition to encompass all materials made or received by an agency in connection with official business which are used to perpetuate, communicate o: formalize knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc.; 379 So. 2d 633, 640 (Fla. 1980). All such materials, regardless of whether they are in final form, are open for public inspection unless the Legislature has exempted them from disclosure. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). Z When are notes or nonfmal drafts of agency proposals subject to Chapter 119, Florida Statutes? There is no "unfinished business" exception to the public inspection and copying requirements of Chapter 119, Florida Statutes. Ifthe purpose of a document prepared in connection with the official business of a public agency is to perpetuate, communicate, or formalize knowledge, then it is a public record regardless of whether it is in final form or the ultimate product of an agency. Shevin v. Byron, Harless, Schaffer, ReidandAssociates, Inc., 379 So. 2d 633 (Fla. 1980). See also, Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976) (working papers used in preparing a college budget were public records). Accordingly, any agency document, however prepared, if circulated for review, comment or information, is a public record regardless of whether it is an official expression of policy or marked "preliminary" or "working draft" or similar label. Examples of such materials would include interoffice memoranda, preliminary drafts of agency rules or proposals which have been submitted for review to anyone within or outside the agency, and working drafts of reports which have been furnished to a supervisor for review or approval. In each ofthese cases, the fact that the records are part of a preliminary process does not detract from their essential character as public records. See, Times Publishing Co. v. City of St. Petersburg, 558 So. 2d 487, 494 (Fla. 2d DCA 1990) (while the mere preparation of documents for submission to a public body does not create public records, the documents can become public records when exhibited to public officials and revised as part of a bargaining process); and Op. Atty Gen. Fla. 91-26 (1991) (minutes of city council meetings are public records once minutes have been prepared by clerk eventhough minutes have not yet been sent to city council members and have not been officially approved by the city council). It follows then that such records are subject to disclosure unless the Legislature has specifically exempted the documents from inspection or has otherwise expressly acted to make the records confidential. See, for example, section 119.07(3)0), Florida Statutes, providing a limited work product exemption for agency attorneys. It is important to emphasize, however, that a nonfinal document need not be communicated to anyone in order to constitute a public record. So called "personal" notes are public records if they are intended to perpetuate or formalize knowledge of some type. Stated another way, notes which are prepared for filing or otherwise intended as final evidence of knowledge obtained in the transaction of official business constitute public records. See, e.g., Church ofSaientologyFlag Service Org., Inc. v. Wood, No. 97-688CI-07 (Fla. 6th Cir. Ct February 27, 1997) (drafts and notes of an autopsy performed by the medical examiner are public records); and Florida Sugar Cane League v. Florida Department of Environmental Regulation, No. 91-4218 (Fla. 2d Cir. Ct. June 5, 1992), stating that handwritten notes of agency staff, "utilized to communicate and formulate knowledge within [the agency), are public records subject to no exemption;" and Inf. Op. to McLean, dated December 31, 1998 (handwritten notes prepared by a council member regarding research on a matter under discussion by the council and used as a reference in discussing the member's position are public records). Accordingly, it is only those uncirculated materials which are merely preliminary or precursors to future documents, and which are not in and of themselves intended to serve as final evidence of the knowledge to be recorded, which fall outside the definitional scope of public records. Examples of such preliminary material cited by the Byron, Harless Court include notes to be used in preparing some other documentary material, tapes or notes taken by a secretary as dictation, and (uncirculated) rough drafts. See also, State v. Kokal, 562 So. 2d 324, 327 (Fla. 1990), noting that "not all trial preparation materials [of agency attorneys) are public records" and that a state attorney was not required to disclose certain trial preparation documents which were described as preliminary guides intended to aid the attorneys when they later formalized the knowledge. Accord, Coleman v. Austin, 521 So. 2d 247 (Fla. Ist DCA 1988), holding that preliminary handwritten notes prepared by agency attorneys and intended only for the attorneys' own personal use are not public records. B. WHAT AGENCIES ARE SUBJECT TO THE PUBLIC RECORDS ACT? Section 119.011(2), Florida Statutes, defines "agency" to include: any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, forthe purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business muity acting on behalf of any public agency. Article I, section 24, Florida Constitution, establishes a constitutional right of access to any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except those records exempted by law pursuant to Article I, section 24, Florida Constitution, or specifically made confidential by the Constitution. This right of access to public records applies to the legislative, executive, and judicial branches of government; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or by the Constitution. However, although a right of access exists under the Constitution to all three branches of government, the Public Records Act, as a legislative enactment, does not apply to the Legislature or the judiciary. See, Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992). L Advisory boards The definition of "agency" for purposes of Chapter 119, Florida Statutes, is not limited to govemmenta l entities. A "public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency' is also subject to the requirements of the Public Records Act. See also, Article I, section 24, Florida Constitution, providing that the constitutional right of access to public records extends to "any public body, officer, or employee of the state, or persons acting on their behalf...." (e.s.) 2. Private organizations A more complex question is posed when a private corporation or entity, not otherwise connected with government, provides services for a governmental body. The term "agency" as used in the Public Records Act includes private entities "acting on behalf of any public agency." Section 119.011(2), Florida Statutes. The Florida Supreme Court has stated that this broad definition of "agency" ensures that a public agency cannot avoid disclosure by contractually delegating to a private entity that which would otherwise be an agency responsibility. News and Sun -Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992). Cf., Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 229 at n.4 (Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999) (private company operating college bookstores was an "agency" as defined in section 119.011[2], Florida Statutes, "notwithstanding the language in its contract with the universities that purports to deny any agency relationship"). a Receipt of public funds by private entity not dispositive There is no single factor which is controlling on the question of when a private corporation becomes subject to the Public Records Act. For example, a private corporation does not act "on behalf of apubhc agency merely by entering into a contract to provide professional services to the agency. News and Sun - Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra. Similarly, the receipt of public funds, standing -alone, is not dispositive of the organization's status forpurposes of Chapter 119, Florida Statutes. See, SarasotaHerald-TribuneCompanyv. Community Health Corporation, Inc., 582 So. 2d 730 (Fla. 2d DCA 1991), in which the court noted that the mere provision of public funds to the private organization is not an important factor in this analysis, although the provision of 10 a substantial share of the capitalization of the organization is important. See also, Times Publishin., Company v. Acton, No. 99-8304 (Fla. 13th Cir. Ct. November 5, 1999) (attorneys retained by individual county commissioners in a criminal matter were not "acting on behalf of a public agency so as to become subject to the Public Records Act, even though the board of county commissioners subsequently voted to pay the legal expenses in accordance with a county policy providing for reimbursement of legal expenses to individual county officers who successfully defend criminal charges filed against them arising out of the performance of their official duties). b. "Totality of factors" test Recognizing that "the statute provides no clear criteria for determining when a private entity is'acting on behalf of a public agency," the Supreme Court adopted a "totality of factors" approach to use as a guide for evaluating whether a private entity is subject to Chapter 119, Florida Statutes. News and Sun -Sentinel Company v. Schwab, Twitty &HanserArchitectural Group, Inc., supra at 1031. Accord,Memorial Hospital West-Volusta, Inc. v. News -Journal Corporation, 729 So. 2d 373 (Fla. 1999) (private entities should look to the factors announced in Schwab to determine their possible agency status under Chapter 119 and under Article I, section 24 of the Florida Constitution). The factors listed by the Supreme Court include the following: 1) the level of public funding; 2) commingling of funds; 3) whether the activity was conducted on publicly -owned property; 4) whether services contracted for are an integral part of the public agency's chosen decision -making process; 5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; 6) the extent of the public agency's involvement with, regulation of, or control over the private entity; 7) whether the private entity was created by the public agency, 8) whether the public agency has a substantial financial interest in the private entity; 9) for whose benefit the private entity is functioning. C. Private entities created pursuant to law or by public agencies The fact that a private entity is incorporated as a nonprofit corporation is not dispositive as to its status under the Public Records Act. The issue is whether the entity is "acting on behalf of an agency. This office has issued numerous opinions advising that if a nonprofit entity is established by law, it is subject to Chapter 119 disclosure requirements. See, Op. Att'y Gen. Fla. 94-32 (1994) (Florida Windstorm Joint Underwriting Association, a private nonprofit association established pursuant to a plan adopted by rule of the Department of Insurance in accordance with statutory authorization); Op. Att'y Gen. Fla. 95-17 (1995) (South Florida Fair and Palm Beach County Expositions, Inc., created pursuant to Chapter 616, Florida Statutes); and Op. Att'yGen. Fla. 94-35 (1994) (Sunshine State One -Call of Florida, Inc, created as anot-for- 11 profit corporation pursuant to section 556.103, Florida Statutes). See also, Op. Att y Gen. Fla. 99-53 (1999) (architectural review committee of a homeowners' association is subject to the Public Records Act where the committee, pursuant to county ordinance, must review and approve applications for county building permits). d. Private entities providing services to public agencies As stated previously, the mere fact that a private entity is under contract with, or receiving funds from, a public agency is not sufficient, standing alone, to bring that agency within the scope of the Public Records Act, See, Stanfield v. Salvation Army, 695 So. 2d 501, 503 (Fla. 5th DCA 1997) (contract between Salvation Army and county to provide services does not in and of itself subject the organization to Chapter 119 disclosure requirements). However, there is a difference between a party contracting with a public agency to provide services to the agency and a contracting party which provides services in place ofthe public body. News -journal Corporation v. Memorial Hospital -West Volusia, Inc., 695 So. 2d 418 (Fla. 5th DCA 1997), approved, 729 So. 2d 373 (Fla. 1999). Stated another way, business records of entities which merely provide services for an agency to use (such as legal professional services, for example) are probably not subject to the open government laws. Id But, if the entity contracts to relieve the public body from the operation of a public obligation (such as operating a jail or providing fire protection) the open government laws do apply. Id Thus, in Stanfield v. Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997), the court ruled that the Salvation Army was subject to the Public Records Act when it completely assumed the responsibility to provide misdemeanor probation services pursuant to a contract with Marion County. And see, Putnam County Humane Society, Inc. v. Woodward, 740 So. 2d 1238 (Fla. 5th DCA 1999) (where county humane society assumed governmental function pursuant to statute to investigate acts of animal abuse and to seize animals, society's records that were created and maintained pursuant to its statutory authority are subject to the Public Records Act); Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999) (private prison company under contract with sheriff to provide medical services for inmates at county jail must release records relating to a settlement agreement with an inmate because all of its records that would normally be subject to the Public Records Act if in the possession of the public agency, are likewise covered by that law, even though in the possession of the private corporation); and DadeAviation Consultants v. KnightRidder, Inc., 26 F.L.W. D2613, 2614 (Fla. 3d DCA October 31, 2001) (a consortium of private businesses created to manage a massive renovation of an airport is an "agency" for purposes of the Public Records Act because it was created for and had no purpose other than to work on the airport contract; "when a private entity undertakes to provide a service otherwise provided by the government, the entity is bound by the Act, as the government would be"). If a private organization contracting with a public agency is deemed to be an "agency," the terms of Chapter 119, Florida Statutes, are applicable to those materials made or received by the private organization in the course of its contract with the public agency. See, Shevin v. Byron, Harless, Schafer, Reid and Associates, 379 So. 2d 633 (Fla. 1980) (private consultant retained to conduct confidential employment search for city electric authority was an "agency" for purposes of Chapter 119, Florida Statutes; thus, letters, memoranda, resumes, and travel vouchers made or received by consultant in connection with search were public records); and Wallace v. Guzman, 687 So. 2d 1351, 1353 (Fla. 3d DCA 1997) (public official's assumption that financial documents submitted to the agency's consultants, rather than to the agency's staff, would be exempt from disclosure "clearly was wrong," citing to Shevin v. Byron, Harless). 12 e. Private company delegated authority to keep certain records In Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487,494 (Fla. 2d DCA 1990), a private entity (the White Sox baseball organization) refused to allow access to draft lease documents and other records generated in connection with negotiations between the White Sox and a city for use of a municipal stadium. The court determined that both the White Sox and the city improperly attempted to circumvent the Public Records Act by agreeing to keep all negotiation documents confidential and in the custody of the White Sox. However, the plan to withhold the documents from public inspection failed. The court ruled that both the city and the White Sox had violated Chapter 119, Florida Statutes. See also, Wisner v. City of Tampa, 601 So. 2d 296 (Fla. 2d DCA 1992) (city may not allow a private entity to maintain physical custody of public records [polygraph chart used in police internal affairs investigation] "to circumvent the public records chapter"). Thus, if a public agency has delegated its responsibility to maintain records necessary to perform its functions, such records will be deemed accessible to the public. Op. Att'y Gen. Fla. 98-54 (1998) (registration and disciplinary records stored m a computer database maintained by a national securities association which are used by the Department of Banking and Finance in licensing and regulating securities dealers doing business in Florida are public records). See also, Harold v. Orange County, 668 So. 2d 1010 (Fla. 5th DCA 1996) (where a county lured a private company to be the construction manager on a renovation project and delegated to the company the responsibility of maintaining records necessary to show compliance with a "fairness in procurement ordinance," the company s records for this purpose were public records). C. WHAT HINDS OF AGENCY RECORDS ARE SUBJECT TO THE PUBLIC RECORDS ACT? Computer records In 1982, the Fourth District Court of Appeal stated that information stored in a public agency's computer "is as much a public record as a written page in a book or a tabulation in a file stored in a filing cabinet ...." Seigle v. Barry, 422 So. 2d 63, 65 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983). Thus, the Public Records Act includes computer records as well as paper documents, tape recordings, and other moretangible materials. See, e.g., Op. Att'y Gen. Fla. 98-54 (1998) (applications and disciplinary reports maintained in a computer system operated by a national securities dealers association which are received electronically by state agency for use in licensing and regulating securities dealers doing business in Florida are public records subject to Chapter 119); Op. AtVy Gen. Fla. 91-61 (1991) (computer data software disk is a public record); Op. Atty Gen. Fla. 89-39 (1989) (information stored in computer utilized by county commissioners to facilitate and conduct their official business is subject to Chapter 119, Florida Statutes); and Op. Aey Gen, Fla. 85-03 (1985) (computer tapes are public records). Thus, computerized public records are governed by the same rule as written documents and other public records — the records are subject to public inspection unless a statutory exemption exists which removes the records from disclosure. Cf., AGO 90-04, stating that a county official is not authorized tr, assign the crnmty's right to a public record (a computer program developed by a former employee while he was working for the county) as part of a settlement of a lawsuit against the county. a. "E-Mail" pq 13 M-mail" messages made or received by agency employees in connection with official business are public records and subject to disclosure in the absence of a statutory exemption from public inspection. Op. Att'y Gen. Fla. 96-34.(1996). Such messages are subject to the statutory restrictions on destruction of public records, which require agencies to adopt a schedule for the disposal of records no longer needed. Id. See, section 257.36(6), Florida Statutes, stating that a public record may be destroyed only in accordance with retention schedules established by the Division of Library and Information Services of the Department of State. Id. The nature of information — that is, that it is electronically generated and transferred — has been determined not to alter its character as a public record under the Public Records Act. Op. Att'y Gen. Fla. 01- 20 (2001). Thus, the e-mail communication of factual background information and position papers from one official to another is a public record and should be.retained in accordance with the retention schedule for other records relating to performance of the agency's functions and formulation of policy. Id. There is no exception from the Public Records Act for so-called "personal" e-mail on agency -owned computers; such material is subject to disclosure unless it falls under a specific legislative exemption. Inf. Op. to Harris, July 18, 2001. Cf., Times Publishing Companyv. City ofClearwater, No. 00-8232-CI-13 (Fla. 6th Cit. Ct. May 17, 2001), appeal pending, No. 01-3055 (Fla. 2d DCA June 8, 2001) (city not required to permit inspection of personal a -mail of certain employees). b. Formatting issues Each agency that maintains a public record in an electronic recordkeeping system shall provide to any person, pursuant to Chapter 119, a copy of any public record in that system which is not exempted by law from public disclosure. Section 119.083 (5), Florida Statutes. An agency that maintains a public record in an electronic recordkeeping system must provide a copy of the record in the medium requested by the person making a Chapter 119 demand, if the agency maintains the record in that medium, and the fee charged shall be in accordance with Chapter 119, Florida Statutes. Id. Thus, a custodian of public records must, if asked for a copy of a computer software disk used by an agency, provide a copyof the disk in its original format; a typed transcript would not satisfy the requirements of section 119.07(1), Florida Statutes. Op. Att'y Gen. Fla. 91-61 (1991). However, an agency is not generally required to reformat its records to meet a requesters particular needs. As stated in Seigle v. Barry, the intent of Ch. 119, Florida Statutes, is "to make available to the public information which is a matter of public record, in some meaningful form, not necessarily that which the applicant prefers." 422 So. 2d at.66. Thus, this office concluded that a school district was not required to furnish electronic public records in electronic format other than the standard format routinely maintained by the district. Op. Att'y Gen. Fla. 97-39 (1997). Despite the general rule, however, the Seigle court recognized that an agency may be required to Provide access through a specially designed program prepared by or at the expense of the applicant where: (1) available programs do not access all of the public records stored in the computer's data banks; or (2) the information in the computer accessible by the use of available programs would include exempt inforination necessitating a special program to delete such exempt items; or 14 (3) for any reason the form in which the information is proffered does not fairly and meaningfully represent the records; or (4) the court determines other exceptional circumstances exist warranting this special remedy. 422 So. 2d at 66- 67. C. Remote access Section 119.085, Florida Statutes, authorizes but does not require agencies to provide remote electronic access to public records. However, unless otherwise required by law, the custodian may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect costs of providing such access. Fees for remote electronic access provided to the general public must be in accordance with the provisions of section 119.07(1), Florida Statutes. Section 119.085 also requires that the custodian provide safeguards to protect the contents of the public records from unauthorized electronic access or alteration and to prevent the disclosure or modification of those portions ofthe records which are exempt from disclosure. See, Inf. Op. to Honorable Shirley Brown, July 21, 1993 (in providing remote electronic access, Department of Highway Safety and Motor Vehicles is required to provide certain safeguards, as required by section 320.05(2), Florida Statutes, prior to release of public motor vehicle registration information). 2 Financial records Many agencies prepare or receive financial records as part of their official duties and responsibilities. As with other public records, these materials are generally open to inspection unless a specific statutory exemption exists. See, Op. Att y Gem Fla. 96-96 (1996) (financial information submitted by harbor pilots in support of a pilotage rate increase application is not exempt from disclosure requirements). IL Audit reports The audit report prepared by the Auditor General is a public record when it has been finalized. Section 11.45(4)(c), Florida Statutes. The audit workpapers and notes are not a public record; however, those workpapers necessary to support the computations in the final audit report may be made available by a majority vote of the Legislative Auditing Committee after a public hearing showing proper cause. Id. At the conclusion of the audit, the Auditor General provides the head of the agency being audited with a list of the adverse findings so that the agency head may explain or rebut them before the report is finalized. Section 11.45(4)(d), Florida Statutes. This list of adverse audit findings is a public record. Op. AWy Gen. Fla. 79-75 (1979). The audit report of an internal auditor prepared for or on behalf of a unit of local government becomes a public record when the audit becomes final. Section 119.07(3)(y); Florida Statutes. The audit becomes final when the audit report is presented to the unit of local government; until the audit becomes final, the audit workpapers and notes related to such audit report are confidential. Id Thus, a draft audit report of a county legal department which was prepared by the clerk of court, acting in her capacity as county auditor, did not become subject to disclosure when the clerk submitted copies of her draft report to the county administrator for review and response. Nicolai Y. Baldwin, 715 So. 2d 1161 (Fla. 5th DCA 1998). Pursuant to section I I9.07(3)(y), Florida Statutes, the report would become "final," and hence subject to disclosure, when presented to the county commission. Id. 15 b. Bids Section 119.07(3)(m), Florida Statutes, provides an exemption for "sealed bids or proposals received by an agency pursuant to invitations to bid or requests for proposals" until such time as the agency provides notice of a decision or intended decision pursuant to section 120.57(3)(a) or within 10 days after bid or proposal opening, whichever is earlier. C. Budgets Budgets and worldng papers used to prepare them are normally subject to inspection. Bay County School Board v. Public Employees Relations Commission, 382 So. 2d 747 (Fla. Ist DCA 1980); Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976); City of Gainesville v. State ex. rel. International Association of Fire Fighters Local No. 2157, 298 So. 2d 478 (Fla. 1st DCA 1974). d. Personal financial records In the absence of statutory exemption, financial information prepared or received by an agency is usually subject to Chapter 119, Florida Statutes. See, Wallace v.'GuzmaA 687 So. 2d 1351 (Fla. 3d DCA 1997) (personal income tax returns and financial statements submitted by public officials as part of an application to organize a bank are subject to disclosure). There are some specific exemptions, however, that are applicable to certain payment records or information. Credit card account numbers in the possession of a state agency, unit of local govemment, or the judicial branch are confidential and exempt. Section 215.322(6), Florida Statutes. Bank account numbers, credit card numbers and certain insurance information furnished by an individual pursuant to federal, state, or local housing assistance programs are confidential. Section I I9.07(3)(cc), Florida Statutes. Bank account munbers or debit, charge, or credit card numbers given to an agency for the purpose ofpayment of any fee or debt owing are also exempt from public disclosure. Section 119.07(3)(z), Florida Statutes. e. Security interests Records regarding ownership of, or security interests in, registered public obligations are not open to inspection. Section 279.11, Florida Statutes. Telephone bills Records of telephone calls made from agency telephones are subject to disclosure in the absence of statutory exemption. See, Crespo v. Florida Entertainment Direct Support Organization, No. 94-4674 (Fla. I lth Cir. Ct. April 10, 1995) (telephone bills for calls made by agency official open to public inspection). Accord, Gillum v. Times Publishing Company, No. 91-2689-CA (Fla. 6th Cir. Ct. July 10, 1991). The telephone numbers contained in the school district's records of calls made on school district telephones are public records even when those calls may be personal and the employee pays or reimburses the school district for the calls. Op. Att'y Gen. Fla. 99-74 (1999). g. Trade secrets This office has concluded that the fact that information constitutes a trade secret under section 16 812.081 does not, in and of itself, remove it from the requirements of the Public Records Act. Op. Att'y Gen. Fla. 92-43 (1992), Thus, an agency is under a duty to release public records even though such records may constitute trade secrets when there is no statute making the information confidential or exempt from disclosure under Chapter 119, Florida Statutes. Op, Att'y Gen. Fla. 95-58 (1995). See also, Op. Att'y Gen. Fla. 97-87 (1997) (building plans and building design calculations which are labeled "trade secret" and filed with a local building department are not exempt from disclosure). In Seta Corporation ofBoca, Inc. v. Office ofthe Attorney General, 756 So. 2d 1093 (Fla. 4th DCA 2000), the Fourth District upheld a trial court order requiring a corporation to produce information to the state despite the corporation's contention that the documents contained alleged trade secrets. The appellate court noted that the lower tribunal "wisely provided in the order requiring production that the state could not produce any of the information it receives pursuant to a request under the public records law without giving petitioner ten days notice to seek a court order." 756 So. 2d at 1094. 3. Investigation records of non law enforcement agencies In the absence of a specific legislative exemption, investigative records made or received by public agencies are open to public inspection pursuant to Chapter 119, Florida Statutes. State ex rel. Peale v. City ofBoca Raton, 353 So. 2d 1194 (Fla. 4th DCA 1977), cert. denied, 360 So. 2d 1247 (Fla. 1978). And see, Caswell v. Manhattan Fire and Marine Insurance Company, 399 F.2d 417 (5th Cir. 1968) (ordering that certain investigative records of the State Insurance Commission be produced for inspection under Chapter 119, Florida Statutes). Accord, Op. Atfy Gen. Fla. 91-75 (1991) (documents containing information compiled by school board employees during an investigation of school district departments are open to inspection in the absence of statutory exemption); and Op. Att'y Gen. Fla. 71-243 (1971) (inspection reports made or received by a school board in connection with an official investigation constitute public records). Cf., Canney v, Board ofPublic Instruction ofAlachua County, 278 So. 2d 260 (Fla. 1973) (no quasi-judicial exception to the Sunshine Law which would allow closed door hearings or deliberations when a board or commission is acting in a "quasi-judicial" capacity). Section 119.07(3)(b) through (i), Florida Statutes, contains limited exemptions from disclosure for specified law enforcement records which, absent statutory authority, do not apply to investigations conducted by agencies outside the crhninal justice system. See, Douglas v. Michel, 410 So. 2d 936, 939 (Fla. 5th DCA 1982), questions answered and approved, 464 So. 2d 545 (Fla. 1985) (exemption for "information revealing surveillance techniques or procedures or personnel" [now found at section 119.07(3)(d)] does not apply to a hospital's personnel files). See also, Op. AtVy Gen. Fla. 87-51 (1987), concluding that complaints from employees of the Department of Labor and Employment Security relating to departmental integrity and efficiency do not constitute criminal intelligence information or criminal investigative information. 4. Litigation records a. Attorney -client communications subject to Chapter 119, Florida Statutes The Public Records Act applies to communications between attomeys.and governmental agencies; there is no judicially created privilege which exempts these documents from disclosure. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979) (only the Legislature and not the judiciary can exempt attorney -client communications from Chapter 119, Florida Statutes). See also, City ofNorth Miami v. Miami 17 Herald Publishing Company, 468 So. 2d 218 (Fla. 1985) (although section 90.502, Florida Statutes, of the Evidence Code establishes an attorney -client privilege for public and private entities, this evidentiary statute does not remove communications between an agency and its attorney from the open inspection requirements of Chapter 119, Florida Statutes). Moreover, public disclosure of these documents does not violate the public agency's constitutional rights of due process, effective assistance of counsel, freedom of speech, or the Supreme Court's exclusive jurisdiction over The Florida Bar. City of North Miami v. Miami Herald Publishing Company, supra. Accord, Brevard County v. Nash, 468 So. 2d 240 (Fla. 5th DCA 1984); Edelstein v. Donner, 450 So. 2d 562 (Fla. 3d DCA 1984), approved, 471 So. 2d 26 (Fla. 1985). b. Limited statutory work product exemption (1) Scope of exemption The Supreme Court has ruled that the Legislature and not the judiciary has exclusive authority to exempt litigation records from the scope of Chapter 119, Florida Statutes. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). With the enactment of section 119.07(3)0), Florida Statutes, the Legislature has created a narrow exemption for certain litigation work product of agency attorneys. Note that this statutory exemption applies to attorney work product that has reached the status of becoming a public record; as discussed more extensively in the section relating to "attorney notes," certain preliminary trial preparation materials, such as handwritten notes for the personal use ofthe attorney, are not considered to be within the definitional scope of the term "public records" and, therefore, are outside the scope of Chapter 119, Florida Statutes. See, Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998), a. Attorney bills and payments Only those records which reflect a "mental impression, conclusion, litigation strategy, or legal theory" are included within the parameters of the work product exemption. Accordingly, in Op. Att'y Gen. Fla. 85-89 (1985), this office concluded that a contract between a county and a private law firm for legal counsel and documentation for invoices submitted by such firm to the county do not fall within the work product exemption. If the bills and invoices contain some information exempted by section 119.07(3)(1) -- i.e., "mental impression[s], conclusion[s], litigation strateg[ies], or legal theor[ies]," --the exempt material may be deleted and the remainder disclosed. Id. However, information such as the hours worked or the hourly wage clearly would not fall within the scope of the exemption. Id. Thus, an agency which improperly 'blocked out" most notations on invoices prepared in connection with services rendered by and fees paid to attorneys representing the agency, "improperly withheld" nonexempt material when it failed to limit its redactions to those items "genuinely reflecting its 'mental impression, conclusion, litigation strategy, or legal theory."' Smith & Williams, P.A. v. West Coast Regional Water Supply Authority, 640 So. 2d 216 (Fla. 2d DCA 1994). And see, Op. Att'y Gen. Fla. 00-07 (2000) (records of outside attorney fee bills received by the county s risk management office for the defense of the county, as well as its employees who are sued individually, for alleged civil rights violations are public records subject to disclosure). b. Investigations "I - -- E=Mwq 18 Section 119.07(3)(1), Florida Statutes, does not create a blanket exception to the Public Records Act for all attorney work product. Op. Att'y Gen. Fla. 91-75 (1991). The exemption is narrower than the work product privilege recognized by the courts for private litigants. Op. Att'y Gen. Fla. 85-89 (1985). In order to qualify for the work product exemption, the records must have been prepared exclusively for or in anticipation oflitigation or adversarial administrative proceedings; records prepared for otherpurposes may not be converted into exempt material simply because they are also used in or related to the litigation Moreover, only those records which are prepared by or at the express direction of the agency attorney and reflect "a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency" are exempt from disclosure until the conclusion of the proceedings. (e.s.) See, City of North Miami v. Miami Herald Publishing Company, 468 So, 2d 218, 219 (Fla. 1985) (noting application of exemption to "government agency, attomey-prepared litigation files during the pendency of litigation"); and City ofMiami Beach v. DeLapp, 472 So. 2d 543 (Fla. 3d DCA 1985) (opposing counsel not entitled to city's legal memoranda as such material is exempt work product). Compare, City of Orlando v. Desjardins, 493 So. 2d 1027, 1028 (Fla. 1986) (trial court must examine city's litigation file in accident case and prohibit disclosure only of those records reflecting mental impression, conclusion, litigation strategy or legal theory of attorney or city). Thus, a circuit judge refused to apply the exemption to tapes, witness statemetrts and interview notes taken by police as part of an investigation of a drowning accident at a city summer camp. Sun -Sentinel Company v. City of Hallandale, No. 95-13528(05) (Fla. 17th Cir. Ct. October 11, 1995). The court, in the Sun -Sentinel case, also stated that the section 768.28[151[b], Florida Statutes, exemption for risk management files did not apply. See also, Op. Atfy Gen, Fla. 91-75 (1991) (work product exemption not applicable to documents generated or received by school district investigators, acting at the direction of the school board to conduct an investigation of certain school district departments). (2) Commencement and termination of exemption Unlike the open meetings exemption in section 286.011(8), Florida Statutes, for certain attorney - client discussions between a governmental agency and its attorney, section 119.07(3)(1), Florida Statutes, is not limited to records created for pending htigation or proceedings, but applies also to records prepared "in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings." See, Op. Att'y Gen. Fla. 98-21 (1998), discussing the differences between the public records work product exemption in section 119.07(3)(1), and the Sunshine Law exemption in section 286.011. But, the exemption from disclosure provided by section 119.07(3)0), Florida Statutes, is temporary and limited in duration City ofNorth Miami v. Miami Herald Publishing Co., supra. The exemption exists only until the "conclusion of the litigation or adversarial administrative proceedings" even if other issues remain. Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988). Cf., New Times, Inc. v. Ross, No. 92-5795 CIV 25 (Fla. 1Ith Cit. Ct. March 17, 1992), holding that papers in a closed civil forfeiture file which subsequently became part of a criminal investigation were open to inspection. The court reasoned that the civil litigation materials could not be considered criminal investigative information because the file was closed prior to the commencement of the criminal investigation. For example, if the state settles a claim against one company accused of conspiracy to fix prices, the state has concluded the litigation against that company. Thus, the records prepared in anticipation of litigation against that company are no longer exempt from disclosure even though the state has commenced pq 19 litigation against the alleged co-conspirator. State v. Coca-Cola Bottling Company ofMiami, Inc., 582 So. 2d 1 (Fla. 4th DCA 1990). And see, Tribune Company v. Hardee Memorial Hospital, No. CA-91-370 (Fla. 10th Cit. Ct. Aug. 19, 1991) (settlement agreement not exempt as attorney work product even though another related case was pending, and agency attorneys feared disclosure of their assessment of the merits of the case and their litigation strategy). Cf., Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So, 2d 909 (Fla. 1999) (private prison company under contract with sheriff to provide medical services for inmates at county jail must release records relating to a settlement agreement with an inmate because all of its records that would normally be subject to the public Records Act if in the possession of the public agency, are likewise covered by that law, even though in the possession of the private corporation). The Legislature has, however, established specific exemptions which address disclosure of some risk management files when other related claims remain. See, e.g. section 768.28(15), Florida Statutes, providing an exemption for claim files maintained by agencies pursuant to a risk management program for tort liability until the termination of the litigation and settlement of all claims arising out of the same incident. The exemption afforded by section 768.28(15)(d), Florida Statutes, however, is limited to tort claims for which the agency may be liable under section 768.28, Florida Statutes, and does not apply to federal civil rights actions under 42 U.S.C. section 1983. Ops. Att'y Gen. Fla. 00-20 and 00-07. And see, Op. Att'y Gen. Fla. 92-82 (1992) (open meetings exemption provided by section 768.28, Florida Statutes, applies only to meetings held after a tort claim is filed with the risk management program). Regarding draft settlements received by an agency in litigation, a circuit court has held that draft settlement agreements famished to a state agency by a federal agency were public records despite the department's agreement with the federal agency to keep such documents confidential. Florida Sugar Cane League, Inc. v. Department of Environmental Regulation, No. 91-2108 (Fla. 2d Cit. Ct. Sept. 20, 1991), affirmed, 606 So. 2d 1267 (Fla. 1st DCA 1992). And see, Florida Sugar Cane League, Inc. v. Florida Department ofEhWronmental Regulation, No. 91-4218 (Fla. 2d Cir. Ct. June 5, 1992) (technical documents or data which were not prepared for the purpose of carrying litigation forward but rather were jointly authored among adversaries to promote settlement are not exempted as attorney work product). c. Attorney notes Relying on its conclusion in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980), the Florida Supreme Court has recognized that "not all trial preparation materials are public records." State v. Kokal, 562 So. 2d 324, 327 (Fla. 1990). In Kokal, the Court approved the decision of the Fifth District in Orange County v. Florida Land Co., 450 So. 2d 341, 344 (Fla. 5th DCA), review denied, 458 So. 2d' 273 (Fla. 1984), which described certain documents as not within the term 'public records.' Similarly, in Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998), the Courtruledthat "outlines, time lines, page notations regarding information in the record, and other similar items" in the case file, did not fall within the definition of public record, and thus were not subject to disclosure. See also, Lopez v. State, 696 So. 2d 725 (Fla. 1997) (handwritten notes dealing with trial strategy and cross examination of witnesses, not public records); and Atkins v. State, 663 So. 2d 624 (Fla. 1995) (notes of state attorney's investigations and annotated photocopies of decisional case law, not public records). By contrast, documents prepared to communicate, perpetuate, or formalize knowledge constitute public records and are, therefore, subject to disclosure in the absence of statutory exemption. See, Byron, 20 Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980), in which the Court noted that "[i]nter-office memoranda and intro -office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency's later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business." Thus, in Orange County v. Florida Land Company, supra, the court concluded that trial preparation materials consisting of interoffice and mtraoffice memoranda communicating information from one public employee to another or merely prepared for filing, even though not part of the agency's formal work product, were public records. As public records, such circulated trial preparation materials might be exempt from disclosure pursuant to section 119.07(3)(1), Florida Statutes, while the litigation is ongoing; however, once the case is over the materials would be open to inspection. 5. Personnel recordc The general rule with regard to personnel records is the same as for other public records; unless the Legislature has expressly exempted an agency's personnel records from disclosure or authorized the agency to adopt rules limiting access to such records, personnel records are subject to public inspection under section 119.07(1), Florida Statutes. Michel v. Douglas, 464 So. 2d 545 (Fla. 1985). a. Privacy concerns The courts have rejected claims that constitutional privacy interests operate to shield agency personnel records from disclosure. See, Michel v. Douglas, 464 So. 2d 545, 546 (Fla. 1985), holding that the state constitution "does not provide a right of privacy in public records" and that a state or federal right of disclosural privacy does not exist. Additionally, the judiciary has refused to deny access to personnel records based on claims that the release of such information could prove embarrassing or unpleasant for the employee. See, News Press Publishing Company, Inc. v. Gadd, 388 So. 2d 276 (Fla. 2d DCA 1980), stating that a court is not free to consider public policy questions regarding the relative significance of the public's interest in disclosure and damage to an individual or institution resulting from such disclosure. b. Conditions for inspection of personnel records An agency is not authorized to unilaterally impose special conditions for the inspection of personnel records. An automatic delay in the production of such records is invalid. Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985) (automatic 48 hour delay unauthorized by Chapter 119, Florida Statutes). Absent a statutory exemption for such records, a city may not agree to remove counseling slips and written reprimands from an employee's personnel file and maintain such documents in a separate disciplinary file. Op. Atty Gem Fla. 94-54 (1994). Similarly, an agency is not authorized to "seal" disciplinary notices and thereby remove such notices from disclosure under the Public Records Act. Op. Att'y Gen. Fla. 94-75 (1994). Cf., section 69.081(8)(a), Florida Statutes, providing, subject to limited exceptions, that any portico, of an agreement or contract which has the purpose or effect of concealing information relating to the settlement or resolution of a claim against the state or its subdivisions is "void, contrary to public policy, and may not be enforced." C. Collective bargaining i 21 A collective bargaining agreement between a public employer and its employees may not validly make the personnel records of public employees confidential or exempt the same from the Public Records Act. Op. Att'y Gen. Fla. 77-48 (1977). Thus, employee grievance records are disclosable even though classified as confidential in a collective bargaining contract because "to allow the elimination of public records from the mandate of Chapter 119 by private contract would sound the death knell of the Act." Section 447.605(3), Florida Statutes, provides an exemption for "work products developed by the public employer in preparation for negotiations, and during negotiations." The exemption is limited and does not remove budgetary or fiscal information from the purview of Chapter 119, Florida Statutes. See, Bay County School Board v. Public Employees Relations Commission, 382 So. 2d 747, 749 (Fla. 1st DCA 1980), noting that "[reecords which are prepared for other purposes do not, as a result of being used in negotiations, come within the exemption of section 447.605(3)." D. TO WHAT EXTENT MAY AN AGENCY REGULATE OR LIMIT INSPECTION AND COPYING OF PUBLIC RECORDS? 1. May an agency impose its own restrictions on access to or copying of public records? Any local enactment or policy which purports to dictate additional conditions or restrictions on access to public records is of dubious validity since the legislative scheme of the Public Records Act has preempted any local regulation of this subject. See, Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315, (1985). Z What agency employees are responsible for responding to public records requests? Section 119.021, Florida Statutes, provides that the elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee, shall be the custodian of the public records. However, this statute does not after the "duty of disclosure" imposed by section 119.07(1), Florida Statutes, upon "felvery person who has custody of a public record." Puls v. City ofPort St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996). [Emphasis supplied by the court]. Thus, the term "custodian" for purposes of the Public Records Act refers to all agency personnel who have it within their power to release or communicate public records. Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA 1998), citing to, Williams v. CityofMinneola, 575 So. 2d 683, 687 (Fla. SthDCA 1991). But, "the more fact that an employee of a public agency temporarily possesses a document does not necessarily mean that the person has custody as defined by section 119.07." Mintus, supra, at 1361. 3. What individuals are authorized to inspect and receive copies ofpublic records? Section 119.01, Florida Statutes, provides that "[i]t is the policy of this state that all state, county, and municipal records shall be open for personal inspection by arty person." (e.s.) A former state citizenship requirement was deleted from the law in 1975, 4. Must an individual show a "special interest' or 22 "legitimate interest" in public records before being allowed to inspect or copy same? No. Chapter 119, Florida Statutes, requires no showing of purpose or "special interest" as a condition of access to public records. See, State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905) (abstract companies may copy documents from the clerk's office for their own use and sell copies to the public for a profit); Booksmart Enterprises, Inc. v. Barnes &Noble College Bookstores, Inc., 718 So. 2d 227, 228 at n.2 (Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999) ("Booksmare's reason for wanting to view and copy the documents is irrelevant to the issue of whether the documents are public records"). Note, however, that section 817.568, Florida Statutes, provides criminal penalties for unauthorized use of personal identification information for fraudulent or harassment purposes. 5. May an agency refuse to allow inspection or copying of public records on the grounds that the request for such records is "overbroad" or lacks particularity? No. The custodian is not authorized to deny a request to inspect and/or copy public records because of a lack of specifics in the request. See, Lore! v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985), recognizing that the "breadth of such right [to inspect] is virtually unfettered, save for the statutory exemptions ...." 6, R%en must an agency respond to a public records request? The Public Records Act does not contain a specific time limit (such as 24 hours or 10 days) for compliance with public records requests. The Florida Supreme Court has stated that the only delay in producing records permitted under Chapter 119, Florida Statutes, is the reasonable time allowed the custodian to retrieve the record and delete those portions of the'record the custodian asserts are exempt. Tribune Companyv. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., Deperte v. Tribune Company, 105 S.Ct. 2315 (1985). A municipal policy which provides for an automatic delay in the production of public records is impermissible. Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., Deperte v. Tribune Company, 105 S.Ct. 2315 (1985). Thus, an agency is not authorized to delay inspection of personnel records in order to allow the employee to be present during the inspection of his records. Tribune Company v. Cannella, supra. Similarly, this office has advised that a board of trustees of a police pension fiord may not delay release of its records until such time as the request is submitted to the board for a vote. Op. Att'y Gem Fla. 96-55 (1996). An agency's unreasonable and excessive delays in producing public records can constitute an unlawful refusal to provide access to public records. Town ofManalapan v. Rechler, 674 So. 2d 789 (Fla. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996). See also, State v. Webb, 786 So. 2d 602, 604 (Fla. 1st DCA 2001), in which the court held that it was error for a lower court judge to vacate a misdemeanor conviction of a records custodian who had been found guilty of willfully violating section 119.07 (1) (a), Florida Statutes, based on her "dilatory" response to public records requests filed by a citizen. An agency is not authorized to establish an arbitrary time period during which records may or may 23 not be inspected. Op. Att'y Gen. Fla. 81-12 (1981). 7. Mayan agency require that a request to examine or copy public records be made in writing or require that the requestor furnish background information to the custodian? No. Nothing in Chapter 119, Florida Statutes, requires that a requesting party make a demand for public records in person or in writing. See, Dade Aviation Consultants v. Knight Ridder, Inc., 26 F.L.W. D2613, 2614 (Fla. 3d DCA October 31, 2001) ("There is no requirement in the Public Records Act that requests for records must be in writing"). If a public agency believes that it is necessary to provide written documentation of a request for public records, the agency may require that the custodian complete an appropriate form or document; however, the person requesting the records cannot be required to provide such documentation as a precondition to the granting of the request to inspect or copy public records. See, Sullivan v. City ofNew Pon Richey, No. 86-1129CA (Fla. 6th Cir. Ct. May 22, 1987), affirmed, 529 So. 2d 1124 (Fla. 2d DCA 1988), noting that a demnandant's failure to complete a city form required for access to documents did not authorize the custodian to refuse to honor the request to inspect or copy public records. 8. Is an agency required to give out information from public records or to otherwise produce records in a particular form as demanded by the requestor? A custodian is not required to give out information from the records of his office. Op. Airy Gen. Fla. 80-57 (1980). The Public Records Act does not require a town to produce an employee, such as the financial officer, to answer questions regarding the financial records of the town, Op. Att y Gen. Fla. 92-38 (1992). Nor is the clerk of court required to provide an innate with a list of documents from a case file which may be responsive to some forthcoming request. Wootton v. Cook, 590 So. 2d 1039 (Fla. 1st DCA 1991). 9. May an agency refuse to comply with a request to inspect or copy the agency's public records on the grounds that the records are not in the physical possession of the custodian? No. An agency is not authorized to refuse to allow inspection of public records on the grounds that the documents have been placed in the actual possession of an agency or official other than the records custodian. See, Tober v. Sanchez, 417 So. 2d 1053 (Fla. 3d DCA 1982), review denied sub nom., Metropolitan Dade County Transit Agency v. Sanchez, 426 So. 2d 27 (Fla. 1983) (official charged with maintenance of records may not transfer actual physical custody of records to county attorney and thereby avoid compliance with request for inspection under Chapter 119, Florida Statutes). 10. May an agency refuse to allow access to public records on the grounds that the records are also maintained by another agency? No. The fact that a particular record is also maintained by another agency does not relieve the custodian of the obligation to permit inspection and copying in the absence of an applicable statutory exemption. Op. Att'y Gen. Fla. 86-69 (1986). 24 11. In the absence of express legislative authorization, may an agency refuse to allow public records made or received in the normal course ofbusiness to be inspected or copied if requested to do so by the maker or sender of the document? No. To allow the maker or sender of documents to dictate the circumstances under which the documents are to be deemed confidential would permit private parties as opposed to the Legislature to determine which public records are subject to disclosure and which arc not. Such a result would contravene the purpose and terms of Chapter 119, Florida Statutes, See, Browning v. Walton, 351 So. 2d 380 (Fla. 4th DCA 1977) (a city cannot refuse to allow inspection of records containing the names and addresses of city employees who have filled out forms requesting that the city maintain the confidentiality of all material in their personnel files). Cf., Hill v. Prudential Ins. Co. ofAmerica, 701 So. 2d 1218 (Fla. 1st DCA 1997), review denied, 717 So, 2d 536 (Fla. 1998) (materials obtained by state agency from anonymous sources during the course of its investigation of an insurance company were public records and subject to disclosure in the absence of statutory exemption, notwithstanding the company's contention that the records were "stolen" or "misappropriated" privileged documents that were delivered to the state without the company's permission). Similarly, it has been held that an agency "cannot bargain away its Public Records Act duties with promises of confidentiality in settlement agreements." The Tribune Company v. Hardee Memorial Hospital, No. CA-91-370 (Fla. loth Cir. Ct. Aug. 19, 1991), stating that a confidentiality provision in a settlement agreement which resolved litigation against a public hospital did not remove the document from the Public Records Act. Cf., section 69.081(8), Florida Statutes, part of the "Sunshine in Litigation Act," providing, subject to certain exceptions, that any portion of an agreement which conceals information relating to the settlement or resolution of any claim or action against an agency is void, contrary to public policy, and may not be enforced, and requiring that settlement records be maintained in compliance with Chapter 119, Florida Statutes. 12. Must an agency state the basis for its refusal to release an exempt record? Yes. Section 119.07(2)(a), Florida Statutes, states that a custodian of a public record who contends that a record or part of a record is exempt from inspection must state the basis for the exemption, including the statutory citation to the exemption. Additionally, upon request, the custodian must state in writing and with particularity the reasons for the conclusion that the record is exempt from inspection. Id. See, Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000)(agency's response that it bad provided all records "with the exception of certain information relating to the victim" deemed inadequate because the response "failed to identify with specificity either the reasons why the records were believed to be exempt, or the statutory basis for any exemption")- Cf., City of St. Petersburg v. Romine, 719 So. 2d 19, 21 (Fla. 2d DCA 1998), noting that the Public Records Act "may not be used in such a way as to obtain information that the Legislature has declared must be exempt from disclosure." 13. May an agency refuse to allow inspection and copying of an entire public record on the grounds that a portion of the record contains information which is exempt from disclosure? 25 No. Where a public record contains some information which is exempt from disclosure, section 119.07(2)(a), Florida Statutes, requires the custodian of that document to delete or excise only that portion or portions of the record for which an exemption is asserted and to provide the remainder of the record for examination. See, Ocala Star Banner Corp. v. McGhee, 643 So. 2d 1196 (Fla. 5th DCA 1994),(city may redact confidential identifying information from police report but must produce the rest for inspection). The fad that an agency believes that it would be impractical or burdensome to redact confidential information from its records does not excuse noncompliance with the mandates of the Public Records Ad. Op. Att'y Gen. Fla. 99-52 (1999). 14, May an agency refuse to allow inspection of public records because the agency believes disclosure could violate privacy rights? It is well established in Florida that "neither a custodian of records nor a person who is the subject of a record can claim a constitutional right of privacy as a bar to requested inspection of a public record which is in the hands of a government agency." Williams v. City ofMinneola, 575 So. 2d 683, 687 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991). 15. What is the liability of a custodian for release of public records? It has been held that there is nothing in Chapter 119, Florida Statutes, indicating an intent to give private citizens a right to recovery for negligently maintaining and providing information from public records. Friedberg v. Town of Longboat Key, 504 So. 2d 52 (Fla. 2d DCA 1987). However, a custodian is not protected against tort liability resulting from that person intentionally communicating public records or their contents to someone outside the agency which is responsible for the records unless the person inspecting the records has made a bona fide request to inspect the records or the communication is necessaryto the agency's transaction of its official business. Williams v. City ofMinneola, 575 So. 2d 683 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991). E. WHAT IS THE LEGAL EFFECT OF STATUTORY EXEMPTIONS FROM DISCLOSURE? 1. Creation of exemptions "Courts cannot judicially create any exceptions, or exclusions to Florida's Public Records Ad." Board of County Commissioners ofpalm Beach County v. D.B., 784 So. 2d 585, 591 (Fla. 4th DCA 2001). Accorc4 Wait v. Florida Power and Light Company, 372 So. 2d 420, 425 (Fla. 1979) (Public Records Ad "excludes any judicially created privilege of confidentiality," only the Legislature may exempt records from public disclosure). Article I, section 24(c), Florida Constitution, authorizes the Legislature to enact general laws creating exemptions provided that such laws "shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law." See, Memorial Hospital -West Yolusia v. News -Journal Corporation, 729 So. 2d 373, 380 (Fla. 1999), in which the Court refuscl to "imply" an exemption from open records requirements, stating "we believe that an exemption from public records access is available only after the legislature has followed the express procedure provided in Article I, section 24(c) ofthe Florida Constitution" Accord, Indian River County Hospital District v. Indian 26 River Memorial Hospital, Inc., 766 So. 2d 233, 237 (Fla. 4th DCA 2000) ("Only after the legislature provided by general law for the exemption of records, stating with specificity the public necessity for the exemption and providing that the law was no broader than necessary, would an exemption from public records access be available.") 2. Exemptions are strictly construed The Public Records Act is to be liberally construed in favor of open government, and exemptions from disclosure are to be narrowly construed so they are limited to their stated purpose. Krischer v. D'4mato, 674 So. 2d 909 (Fla. 4th DCA 1996); Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988). And see, Halifax Hospital Medical Center v. News -Journal Corporation, 724 So. 2d 567 (Fla. 1999) (1995 exemption to the Sunshine Law for certain hospital board meetings ruled unconstitutional because it did not meet the constitutional standard for exemptions set forth in article I, section 24[b] and [c], Florida Constitution). An agency claiming an exemption from disclosure bears the burden of proving the right to an exemption. See, Florida Freedom Newspapers, Inc, v. Dempsey, 478 So. 2d 1128 (Fla. ist DCA 1985). 3. Release or transfer of confidential or exempt records It is important to note that there is a difference between those records the Legislature has determined to be exempt from the mandatory public inspection requirements of section 119.07(1), Florida Statutes, and those which are exempt and confidential. If the Legislature makes certain information confidential, with no provision for its release such that its confidential status will be maintained, such information may not be released to anyone other than to the persons or entities designated in the statute. See, Op. Att'y Gen. Fla. 89- 12 (1989) (Department of Business and Professional Regulation prohibited from releasing patient records or information identifying a patient by name to law enforcement agency or other regulatory agency). On the other hand, if the records are not made confidential but are simply exempt from the mandatory disclosure requirements in section 119.07(1), Florida Statutes, the agency is not prohibited from disclosing the documents in all circumstances. See, Williams v. City ofMinneola, 575 So. 2d 683 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991), in which the court observed that pursuant to section 119.07(3)(d), Florida Statutes, [now section 119.07(3)(b), Florida Statutes] "active criminal investigative information" was exempt from the requirement that public records be made available for public inspection - However, as stated by the court, "the exemption does not prohibit the showing of such information." 575 So. 2d at 686. In City ofRiviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995), the court stated that when a criminal justice agency transfers exempt information to another criminal justice agency, the information retains its exempt status. And see, Ragsdale v. State, 720 So. 2d 203, 206 (Fla. 1998) ("the focus in determining whether a document has lost its status as a public record must be on the policy behind the exemption and not on the simple fact that the information has changed agency hands"). F. TO WHAT EXTENT DOES FEDERAL LAW PREEMPT STATE LAW REGARDING PUBLIC INSPECTION OF RECORDS? The general rule is that records which would otherwise be public under state law are unavailable for public inspection only when there is an absolute conflict between federal and state law relating to 27 confidentiality of records. If a federal statute requires particular records to be closed and the state is clearly subject to the provisions of such statute, then pursuant to the Supremacy Clause of the United States Constitution, Article VI, section 2, United States Constitution, the state must keep the records confidential. State ex ref. Cummer v. Pace, 159 So. 679 (Fla. 1935); Ops. Att'y Gen. Fla. 90-102 (1990), 85-3 (1985), 81- 101 (1981), 80-31 (1980), 74-372 (1974), and 73-278 (1973). In a more recent decision, an appellate court ruled that tenant records of a public housing authority are not exempt, by reason of the Federal Privacy Act, from disclosure otherwise required by the Florida Public Records Act. HousingAutho?Wy ofthe City ofDaytona Beach v. Gomillion, 639 So. 2d 117 (Fla. 5th DCA 1994). And see, Wallace v. Guzman, 687 So. 2d 1531 (Fla. 3d DCA 1997) (exemptions from disclosure in Federal Freedom of Information Act apply to documents in the custody of federal agencies; the Act is not applicable to state agencies). G. WHAT FEES MAY LAWFULLY BE IMPOSED FOR INSPECTING AND COPYING PUBLIC RECORDS 1. When may an agency charge a fee for the mere inspection ofpublicrecords? As noted in Op. Atey Gen. Fla. 85-03 (1985), providing access to public records is a statutory duty imposed by the Legislature upon all record custodians and should not be considered a profit -making or revenue -generating operation. Thus, public information must be open for inspection without charge unless otherwise expressly provided by law. See, State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905). Section 119.07(l)(b), Florida Statutes, authorizes the imposition of a special service charge when the nature or volume of public records to be inspected is such as to require extensive use of information technology resources, or extensive clerical or supervisory assistance, or both. The charge must be reasonable and based on the labor or computer costs actually incurred by the agency. Thus, an agency may adopt a policy imposing a reasonable special service charge based on the actual labor cost (base hourly salary) for personnel who are required, due to the nature or volume of a public records request, to safeguard such records from loss or destruction during their inspection. Op. Att'y Gen. Fla. 00-11 (2000). In doing so, however, the county's policy should reflect no more than the actual cost of the personnels time and be sensitive to accommodating the request in such a way as to ensure unfettered access while safeguarding the records. Id. 2. Is an agency required to provide copies ofpublic records if asked, or may the agency allow inspection only? Section 119.07(1), Florida Statutes, provides that the custodian shall furnish a copy or a certified copy of a public record upon payment of the fee prescribed by law. See, Fuller v. State ex rel. O'Donnell, 17 So. 2d 607 (Fla. 1944) ("The best -reasoned authority in this country holds that the right to inspect public records carries with it the right to make copies.") 3. What fees my be charged for copies? Chapter 119 does not prohibit agencies from providing informational copies of public records without charge. Op. Atey Gen. Fla. 90-81 (1990). An agency may, however, charge a fee for copies provided that the amount of the fee does not exceed that authorized by Chapter 119, Florida Statutes, or established elsewhere in the statutes for a particular record. See, Roesch v. State, 633 So. 2d 1, 3 (Fla. 1993) 28 (indigent inmate not entitled to receive copies of public records free of charge nor to have original state attorney files mailed to him in prison; prisoners are "in the same position as anyone else seeking public records who cannot pay" the required costs). If no fee is prescribed elsewhere in the statutes, section 119.07(1)(a), Florida Statutes, authorizes the custodian to charge a fee of up to 15 cents per one-sided copy for copies that are 14 inches by 8 %z inches or less. An agency may charge no more than an additional 5 cents for each two-sided duplicated copy. A charge of up to $1.00 per copy may be assessed for a certified copy of a public record. For other copies, the charge is limited to the actual cost of duplication of the record. Section 119.07(1)(a), Florida Statutes. The phrase "actual cost of duplication" is defined to mean "the cost of the material and supplies used to duplicate the record, but it does not include the labor cost and overhead cost associated with such duplication." Id. An exception, however, exists for copies of county maps or aerial photographs supplied by county constitutional officers which may include a reasonable charge for the labor .and overhead associated with their duplication. Id. And see, the discussion on the special service charge. 4. May an agency charge for travel costs, search fees, development costs and other incidental costs? With the exception of county maps or aerial photographs supplied by county constitutional officers, section I I9.07(1)(a), Florida Statutes, does not authorize the addition of overhead costs such as utilities or other office expenses to the charge for public records. AGO 99-41. Thus, an agency may not charge for travel time and retrieval costs for public records stored off -premises. Op. Att'y Gen. Fla. 90-07 (1990) Similarly, an agency may not charge fees designed to recoup the original cost of developing or producing the records. Op. Att'y Gen. Fla. 88-23 (1988) (state attorney not authorized to impose a charge to recover part of costs incurred in production of a training program; the fee to obtain a copy of the videotape of such program is limited to the actual cost of duplication ofthe tape). And see, State, Department ofHealth and Rehabilitative Services v. Southpointe Pharmacy, 636 So. 2d 1377, 1382 (Fla. 1st DCA 1994) (once a transcript of an administrative hearing is filed with the agency, the transcript becomes a public record regardless of who ordered the transcript or paid for the transcription; the agency can charge neither the parties nor the public a fee that exceeds the charges authorized in section 119.07[l], Florida Statutes). S. When may an agency charge a special service charge for extensive use ofclerical orsupervisory labor or extensive information technology resources? Section I I9.07(1)(b), Florida Statutes, states that if the nature or volume of public records to be inspected or copied requires the extensive use of information technology resources or extensive clerical or supervisory assistance, or both, the agency may charge a reasonable service charge based on the cost actually incurred by the agency for such extensive use of information technology resources or personnel. Cf, Cone & Graham, Inc. v. State, No. 974047 (Fla. 2d Cit. Ct. October 7, 1997) (an agency's decision to "archive" older e-mail messages on tapes so that they could not be retrieved or printed without a systems programmer was analogous to an agency s decision to store records off -premises in that the agency rather than the requestor must bear the costs for retrieving the records and reviewing them for exemptions). Moreover, the statute mandates that the special service charge be "reasonable." See, Carden v. Chief of Police, 696 So. 2d 772, 773 (Fla. 2d DCA 1996), stating that an "excessive charge" under section 119.07(l)(b), Florida Statutes, "could well serve to inhibit the pursuit of rights conferred by the Public Records Act." Section 119.07(l)(b), FloridaStawtes, does not contain a definition ofthe term "extensive." in1991, a divided First District Court of Appeal upheld a hearing officer's order rejecting an inmate challenge to a Department of Corrections (DOC) rule that defined "extensive" for purposes of the special service charge. Florida Institutional Legal Services, Inc. v. Florda Department of Corrections, 579 S. 2d 267 (Fla. 1st DCA), review denied, 592 So. 2d 680 (Fla. 1991). The agency rule defined "extensive." to mean that it would take more than 15 minutes to locate, review for confidential information, copy and refile the requested material. Judge Zehmer dissented, saying that the rule was inconsistent with legislative intent and exceeded the agency's delegated authority under section 119.07 (1)(b), Florida Statutes. In light of the lack of clear direction in the statute as to the meaning of the term "extensive" and the possible limited application of the Institutional Legal Services case, it may be prudent for agencies to define "extensive" in a manner that is consistent with the purpose and intent of the Public Records Act and that does not constitute an unreasonable infringement upon the public's statutory and constitutional right of access to public records. An agency is not ordinarily authorized to charge for the cost to review records for statutorily exempt material. Op. Att'y Gen. Fla. 84-81 (1984). However, the special service charge may be imposed for this work if the volume of records and the number of potential exemptions make review and redaction of the records a time-consuming task. See, Florida Institutional Legal Services v. Florida Department of Corrections, 579 So. 2d at 269. And see, Herskovitz v. Leon County, No. 98-22 (Fla.. 2d Cit. Ct. June 9, 1998), noting that "it would not be unreasonable in these types of cases (involving many documents and several different exemptions) to charge a reasonable special fee for the supervisory personnel necessary to properly review the materials for possible application of exemptions." In State v. Gudinas, No. CR 94-7132 (Fla. 9th Cit. Ct. June 1, 1999), the court approved an agency's charge for providing copies in response to a large public records request based on the clerk's base rate of pay, excluding benefits. The court also concluded that an agency could charge only a clerical rate for the time spent malting copies, even if due to staff shortages, a more highly paid person actually did the work H. WHAT ARE THE OPTIONS IF AN AGENCY REFUSES TO PRODUCE PUBLIC RECORDS FOR INSPECTION AND COPYING? L Mediation Several years ago, Attorney General Butterworth established an informal voluntary mediation program within the Office of the Attorney General to resolve open government disputes. In 1995, this program was codified in section 16.60, Florida Statutes. For more information about the voluntary mediation program, please contact the Office of the Attorney General at the following address: Office of the Attorney General, PLO I, The Capitol, Tallahassee, Florida, 32399-1050; telephone (850) 245-0157. 2 Civil action a. Remedies Any person denied the right of inspection and/or copying under Chapter 119, Florida Statutes, may institute a civil action in circuit court against an agency which has violated the provisions of Chapter 119, 30 Florida Statutes, in order to compel compliance with that Iaw. Pursuant to section 119.11(1), Florid: Statutes, such actions, when filed, are entitled to an immediate hearing and take priority over other pending cases. Generally, mandamus is the appropriate remedy to enforce compliance with the public records act. Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA), review dismissed, 605 So. 2d 1266 (Fla. 1992). However, it has been held that mandamus is not appropriate when the hurguage of an exemption statute requires an exercise of discretion. See, Shea v. Cochran, 680 So. 2d 628 (Fla. 4th DCA 1996) (mandamus was an inappropriate remedy where sheriff provided a specific reason for refusing to comply with a public records request by claiming the records were part of an active criminal investigation). Mandamus is a "one time order by the court to force public officials to perform their legally designated employment duties." Town ofManalapan v. Rechler, 674 So. 2d789,790 (Fla. 4th DCA 1996). Thus, a trial court erred when it retained continuing jurisdiction to oversee enforcement of a writ of mandamus granted in a public records case. Id. However, it has been recognized that injunctive relief may be available upon an appropriate showing for a violation of Chapter 119, Florida Statutes, See, Daniels v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989). b. Procedural issues (1) In camera inspection Section I I9.07(2)(b), Florida Statutes, provides that in any case in which an exemption to the public inspection requirements in section 119.07(1), Florida Statutes, is alleged to exist pursuantto paragraphs (c), (d), (e), (k), 0), or (o) of section 119.07(3), Florida Statutes, the public record or part of the record in question shall be submitted to the trial court for an in camera examination. Section 119.07(2)(b), Florida Statutes, provides that if an exemption is alleged under paragraph (b) of section 119.07(3), Florida Statutes (the exemption for active criminal investigation or intelligence information), an inspection is discretionary with court. However, in Tribune Company v. Public Records, 493 So. 2d 484 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987), the court stated that notwithstanding the trial courts discretion to provide an in camera examination if a section 119.07(3)(b), Florida Statutes, exemption is asserted, it is always the better practice to conduct such an inspection in cases where an exception to the Public Records Act is in dispute. According to the court, inspection lends credence to the decision of the trial court, helps dispel public suspicion, and provides a much better basis for appellate review. Similarly, in Woolling v. Lamar, 764 So. 2d 765, 768-769 (Fla. 5th DCA 2000), review denied, 786 So. 2d 1186 (Fla. 2001), the Fifth District concluded that because the state attorney presented "no evidence to meet its burden that the records are exempt" under section 119.07(3)(b), Florida Statutes, an "in camera inspection by the lower court is therefore required so that the trial judge will have a factual basis to decide if the records are exempt under [that statute]." And see, Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000), in which the First District said: "We fail to see how the trial court can [determine whether an agency is entitled to a claimed exemption] without examining the records." (2) Mootness In Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996), the court noted that [P]roducGon of the records after the [public records] lawsuit was filed did not moot the issues raised in the i 31 complaint." The court remanded the case for an evidentiary hearing on the issue of whether, under the facts ofthe case, there was an unlawful refusal of access to public records. Compare, Jacksonville Television, Inc. v. Shorstein, 608 So. 2d 592 (Fla. 1st DCA 1992) (where public records lawsuit was determined to be moot because records were delivered to television station prior to entry of writ of mandamus, appellate court would not issue an "advisory opinion" as to whether trial court's voluntary conclusion that agency acted properly by initially withholding the records was correct). (3) Stay If the person seeking public records prevails in the trial court, the public agency must comply with the court's judgment within 48 hours unless otherwise provided by the trial court or such determination is stayed within that period by the appellate court. Section 119.11(2), Florida Statutes. An automatic stay shall exist for 48 hours after the filing of the notice of appeal for public records and public meeting cases. Rule 9.310(b)(2), Florida Rules of Appellate Procedure. (4) Attorney's fees Section 119.12(1), Florida Statutes, provides that if a civil action is filed against an agencyto enforce the provisions of this chapter and the court determines that the agency unlawfully refused to permit a public record to be inspected, examined, or copied, the court shall assess and award against the agency responsible the reasonable costs of enforcement including reasonable attorney's fees. See, Florida Department of Law Enforcement v. Ortega, 508 So. 2d 493 (Fla, 3d DCA 1987). Attorney's fees are recoverable even where access is denied on a good faith but mistaken belief that the documents are exempt from disclosure. News and Sun -Sentinel Company v. Palm Beach County, 517 So. 2d 743 (Fla. 4th DCA 1987); Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990). And see, Weeks v. Golden, 26 F.L.W. D2622 (Fla. 1st DCA November 2, 2001)(where prison inmate made public records request and state attorney offered no reason for failing to respond to request, trial judge erred in refusing to award costs to inmate). Attorney's fees may also be awarded for a successfid appeal of a denial of access. Downs v. Austin, 559 So. 2d 246 (Fla. 1st DCA 1990). However, in order to obtain appellate fees, a motion must be filed in the appellate court. Id. C. Criminal penalties In addition to judicial remedies, section 119.02, Florida Statutes, provides that a public officer who knowingly violates the provisions of section 119.07(1), Florida Statutes, is subject to suspension and removal or impeachment and is guilty of a misdemeanor of the first degree, punishable by possible criminal penalties of one year in prison, or $1,000 fine, or both. See, State v. Webb, 786 So. 2d 602 (Fla. 1st DCA 2001). Section 119.10, Florida Statutes,,provides that a violation of any provision of Chapter 119, Florida Statutes, by a public official is a noncriminal infraction, punishable by fine not exceeding $500. A state attorney may prosecute suits charging public officials with violations of the Public Records Act, including those violations which may result in a finding of guilt for a noncriminal infraction. Op. Att'y Gen. Fla. 91-38 (1991). I. HOW LONG MUST AN AGENCY RETAIN A PUBLIC RECORD? 32 L Delivery of records to successor Section 119.05, Florida Statutes, provides that whoever has custody of public records shall deliver such records to his successor at the expiration of his term of office or, if there is no successor, to the records and information management program of the Division of Library and hiforrnation Services ofthe Department of State. See, Maxwell v. Pine Gas Corporation, 195 So. 2d 602 (Fla. 4th DCA 1967) (state, county, and municipal records are not the personal property of a public officer); Op. Ate'y Gen. Fla. 75-282 (1975) (all public records regardless of usefulness or relevancy must be turned over to the custodians successor in office or to the appropriate division in the Department of State; documents statutorily exempt from public inspection are also included within the records which must be delivered). 2. Retention and disposal of records Pursuant to section 257.36(6), Florida Statutes, "[a] public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the [Division of Library and Information Services of the Department of State]." This statutory mandate applies to exempt records as well as those subject to public inspection..See, Ops. At(y Gen. Fla. 94-75 (1994), 8748 (1987) and 8 1- 12 (1981). Questions regarding record destruction schedules should be referred to the Department of State, Bureau of Archives and Records Management at (850)487-2180. 33 I 1 11 I 1 I I I I �J I I i I RESOLUTION NO.98- 4 98 RESOLUTION ESTABLISHING A UNIFORM COUNTY POLICY IMPOSING FEES FOR THE INSPECTION, EXAMINATION AND DUPLICATION OF PUBLIC RECORDS PURSUANT TO SECTION 119.07, FLORIDA STATUTE& WHEREAS, Section 119.07(1), Florida Statutes, authorizes the custodian of public records to charge a fee for copying public records provided upon request; and WHEREAS, Section 119.07(1)(b), Florida Statutes, allows for the imposition of a special service charge,for public records requests which require extensive use of clerical or supervisory labor, and WHEREAS, The Board of County Commissioners has determined that a policy should be created establishing the allowable copying fees and defining what is extensive use of clerical or supervisory labor, and WHEREAS, The Board of County Commissioners has determined that such a policy is necessary in order to create uniformity in application of those fees and to guide staff in determining when imposition of such fees is acceptable and appropriate (legally sufficient); and WHEREAS, The Board of County Commissioners has found that it is within the public's best interest for the County to impose such a fee in order to cover the actual cost of duplication and to cover the actual cost of extensive clerical or supervisory time required to respond to a public records request. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMIV?ISSIONERS OF COLLIER COUNTY, FLORIDA, that: 1. Staff shall charge the following fees for duplication of public records: A. 15 cents per one-sided copy which is 14 inches by 8 1/2 inches or less. B. an additional 5 cents for each two-sided duplicated copy. C. 51.00 per copy for a certified copy of a public record. D. The actual cost of duplication for all other copies. "Actual cost of duplication" is defined in §119.07(1), Florida Statutes, as, "the cost of the material and supplies used to duplicate the record," but it does not include the labor cost and overhead cost associated with such duplication. Staff may, however, charge for the reasonable labor and overhead costs associated with copying county maps or aerial photographs supplied by county constitutional officers. 1 34 I I I I I I I 2. If the nature or volume of public records requested to be inspected, examined, or copied is such as, to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the County office, department or agency involved, or both, the office, department or agency shall charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both. "Information technology resources" shall have the same meaning as in Section 282.303(I3), Florida Statures. "Extensive use" shall be defined as requiring more than an hour of clerical or supervisory time to locate, review for confidential information, copy and reftle the requested material. Time incurred shall be based upon the nature or volume of the request and not solely by the location of the requested documents. 3. This Resolution applies to all offices, agencies and departments authorized and organized as Collier County government of the Board of Collier County Commissioners 4. This Resolution shall be effective and implemented as of the date of adoption. This Resolution adopted this %day of c 1998, after motion, second and majority vote in favor of adoption. ATTEST:' Clerk 1 Deputy Clerk � • 'Attest as to D4firlmn's ,•51Qfgt¢rC cdlti, 1 Approved as to form- and legal sufficiency: David C. Weigel County Attorney b:pubtie�M"tua✓Reuluti"na/pnblie�"mN� rm BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FL A By: B ARA B. BERR r, C a 1 2 statutes ->View Statutes: flsenate.gov 35 The 2002 Florida Statutes Title_X. Cha.Pter 119 View -Entire Chapter PUBLIC OFFICERS, EMPLOYEES, AND RECORDS PUBLIC RECORDS CHAPTER 119 PUBLIC RECORDS 119.01 General state policy on public records. 119.011 Definitions. 119.0115 Videotapes and video signals; exemption from chapter. 119.012 Records made public by public fund use. 119.02 Penalty. 119.021 Custodian designated. 119.031 Keeping records in safe places; copying or repairing certified copies. 119.041 Destruction of records regulated. 119.05 Disposition of records at end of official's term. 119.06 Demanding custody. 119.07 Inspection, examination, and duplication of records; exemptions. 119.071 General exemptions from inspection or copying of public records. 119.072 Criminal intelligence or investigative information obtained from out-of-state agencies. 119.0721 Social security number exemption. 119.08 Photographing public records. 119.084 Definitions; copyright of data processing software created by governmental agencies; sale price and licensing fee; access to public records; prohibited contracts. 119.085 Remote electronic access to public records. 119.09 Assistance of the Division of Library and Information Services, records and information management program, of the Department of State. 119.092 Registration by federal employer's registration number. 119.10 Violation of chapter; penalties. 119.105 Protection of victims of crimes or accidents. 119.11 Accelerated hearing; immediate compliance. http://www.fIsenate. gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov Q 119.12 Attorney's fees. 119.15 Legislative review of exemptions from public meeting and public records requirements. 119.19 Capital postconviction public records production. 119.01 General state policy on public records.-- (1) It is the policy of this state that all state, county, and municipal records shall be open for personal inspection by any person. (2) The Legislature finds that, given advancements in technology, providing access to public records by remote electronic means is an additional method of access that agencies should strive to provide to the extent feasible. If an agency provides access to public records by remote electronic means, then such access should be provided in the most cost-effective and efficient manner available to the agency providing the information. (3) The Legislature finds that providing access to public records is a duty of each agency and that automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must ensure reasonable access to records electronically maintained. (4) Each agency shall establish a program for the disposal of records that do not have sufficient legal, fiscal, administrative, or archival value in accordance with retention schedules established by the records and information management program of the Division of Library and Information Services of the Department of State. History.--s. 1, ch. 5942, 1909; RGS 424; CGL 490; s. 1, ch. 73-98; s. 2, ch. 75-225; s. 2, ch. 83-286; s. 4, ch. 86-163; ss. 1, 5, ch. 95-296. 119.011 Definitions. --For the purpose of this chapter: (1) "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. (2) "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. (3)(a) "Criminal intelligence information" means information with respect to an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity. (b) "Criminal investigative information" means information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports of investigators or informants, or any type of surveillance. (c) "Criminal intelligence information" and "criminal investigative information" shall not include: 1. The time, date, location, and nature of a reported crime. 2. The name, sex, age, and address of a person arrested or of the victim of a crime except as http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: fisenate.gov 37 provided in s. 119.07(3)(f). 3. The time, date, and location of the incident and of the arrest. 4. The crime charged. 5. Documents given or required by law or agency rule to be given to the person arrested, except as provided in s. 119.07(3)(f), and, except that the court in a criminal case may order that certain information required by law or agency rule to be given to the person arrested be maintained in a confidential manner and exempt from the provisions of s. 119.07(1) until released at trial if it is found that the release of such information would: a. Be defamatory to the good name of a victim or witness or would jeopardize the safety of such victim or witness; and b. Impair the ability of a state attorney to locate or prosecute a codefendant. 6. Informations and indictments except as provided in s. 905.26. (d) The word "active" shall have the following meaning: 1. Criminal intelligence information shall be considered "active" as long as it is related to intelligence gathering conducted with a reasonable, good faith belief that it will lead to detection of ongoing or reasonably anticipated criminal activities. 2. Criminal investigative information shall be considered "active" as long as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future. In addition, criminal intelligence and criminal investigative information shall be considered "active" while such information is directly related to pending prosecutions or appeals. The word "active" shall not apply to information in cases which are barred from -prosecution under the provisions of s. 775.15 or other statute of limitation. (4) "Criminal justice agency" means any law enforcement agency, court, or prosecutor. The term also includes any other agency charged by law with criminal law enforcement duties, or any agency having custody of criminal intelligence information or criminal investigative information for the purpose of assisting such law enforcement agencies in the conduct of active criminal investigation or prosecution or for the purpose of litigating civil actions under the Racketeer Influenced and Corrupt Organization Act, during the time that such agencies are in possession of criminal intelligence information or criminal investigative information pursuant to their criminal law enforcement duties. The term also includes the Department of Corrections. History.--s. 1, ch, 67-125; s. 2, ch. 73-98; s. 3, ch. 75-225; ss. 1, 2, ch. 79-187; s. 8, ch. 85- 53; s. 1, ch. 88-188; s. 5, ch. 93-404; s. 5, ch. 93-405; s. 5, ch. 95-207; s. 6, ch. 95-296; s. 10, ch. 95-398; s. 40, ch. 96-406; s. 2, ch. 97-90. 119.0115 Videotapes and video signals; exemption from chapter. --Any videotape or video signal which, under an agreement with an agency, is produced, made, or received by, or is in the custody of, a federally licensed radio or television station or its agent is exempt from this chapter. History.--s. 1, ch. 80-1. 119.012 Records made public by public fund use. --If public funds are expended by an agency defined in s. 119.011(2) in payment of dues or membership contributions to any person, corporation, foundation, trust, association, group, or other organization, then all the financial, business, and membership records pertaining to the public agency from which or on whose behalf the payments are made, of the person, corporation, foundation, trust, association, group, or http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 38 organization to whom such payments are made shall be public records and subject to the provisions of s. 119.07. History.--s. 3, ch. 75-225; s. 3, ch. 93-405. 119.02 Penalty. --A public officer who knowingly violates the provisions of s. 119.07(1) is subject to suspension and removal or impeachment and, in addition, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. History.--s. 2, ch. 5942, 1909; RGS 425; CGL 491; s. 1, ch. 17173, 1935; CGL 1936 Supp. 7520 (6); s. 73, ch. 71-136; s. 6, ch. 75-225; s. 4, ch. 84-298. 119.021 Custodian designated. --The elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee, shall be the custodian thereof. History.--s. 2, ch. 67-125; s. 3, ch. 83-286; s. 753, ch. 95-147. 119.031 Keeping records in safe places; copying or repairing certified copies. --Insofar as practicable, custodians of vital, permanent, or archival records shall keep them in fireproof and waterproof safes, vaults, or rooms fitted with noncombustible materials and in such arrangement as to be easily accessible for convenient use. All public records should be kept in the buildings in which they are ordinarily used. Record books should be copied or repaired, renovated, or rebound if worn, mutilated, damaged, or difficult to read. Whenever any state, county, or municipal records are in need of repair, restoration, or rebinding, the head of such state agency, department, board, or commission, the board of county commissioners of such county, or the governing body of such municipality may authorize that such records be removed from the building or office in which such records are ordinarily kept for the length of time required to repair, restore, or rebind them. Any public official who causes a record book to be copied shall attest it and certify on oath that it is an accurate copy of the original book. The copy shall then have the force and effect of the original. History.--s. 3, ch. 67-125; s. 4, ch. 83-286. 119.041 Destruction of records regulated.-- (1) Every public official shall systematically dispose of records no longer needed, subject to the consent of the records and information management program of the Division of Library and Information Services of the Department of State in accordance with s. 257.36. (2) Agency orders that comprise final agency action and that must be indexed or listed pursuant to s. 120.53 have continuing legal significance; therefore, notwithstanding any other provision of this chapter or any provision of chapter 257, each agency shall permanently maintain records of such orders pursuant to the applicable rules and guidelines of the Department of State. History.--s. 4, ch. 67-125; ss. 10, 35, ch. 69-106; s. 5, ch. 83-286; s. 5, ch. 86-163; s. 1, ch. 91-30; s. 1, ch. 91-191; s. 17, ch. 96-410. 119.05 Disposition of records at end of official's term. --Whoever has the custody of any public records shall, at the expiration of his or her term of office, deliver to his or her successor or, if there be none, to the records and information management program of the Division of Library and Information Services of the Department of State all records, books, writings, letters, and documents kept or received by him or her in the transaction of official business. History.--s. 5, ch. 67-125; ss. 10, 35, ch. 69-106; s. 6, ch. 86-163; s. 754, ch. 95-147. 119.06 Demanding custody. --Whoever is entitled to the custody of public records shall demand them from any person having illegal possession of them, who shall forthwith deliver the same to him or her. Any person unlawfully possessing public records shall upon demand of any http://www.fisenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov PQ person and within 10 days deliver such records to their lawful custodian unless just cause exists for failing to deliver such records. History.--s. 6, ch. 67-125; s. 755, ch. 95-147. 119.07 Inspection, examination, and duplication of records; exemptions.-- (1)(a) Every person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or the custodian's designee. The custodian shall furnish a copy or a certified copy of the record upon payment of the fee prescribed by law or, if a fee is not prescribed by law, for duplicated copies of not more than 14 inches by 8'/2 inches, upon payment of not more than 15 cents per one-sided copy, and for all other copies, upon payment of the actual cost of duplication of the record. An agency may charge no more than an additional 5 cents for each two-sided duplicated copy. For purposes of this section, duplicated copies shall mean new copies produced by duplicating, as defined in s. 283.30. The phrase "actual cost of duplication" means the cost of the material and supplies used to duplicate the record, but it does not include the labor cost or overhead cost associated with such duplication. However, the charge for copies of county maps or aerial photographs supplied by county constitutional officers may also include a reasonable charge for the labor and overhead associated with their duplication. Unless otherwise provided by law, the fees to be charged for duplication of public records shall be collected, deposited, and accounted for in the manner prescribed for other operating funds of the agency. An agency may charge up to $1 per copy for a certified copy of a public record. (b) If the nature or volume of public records requested to be inspected, examined, or copied pursuant to this subsection is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both. "Information technology resources" means data processing hardware and software and services, communications, supplies, personnel, facility resources, maintenance, and training. (c) When ballots are produced under this section for inspection or examination, no persons other than the supervisor of elections or the supervisor's employees shall touch the ballots. The supervisor of elections shall make a reasonable effort to notify all candidates by telephone or otherwise of the time and place of the inspection or examination. All such candidates, or their representatives, shall be allowed to be present during the inspection or examination. (2)(a) A person who has custody of a public record and who asserts that an exemption provided in subsection (3) or in a general or special law applies to a particular public record or part of such record shall delete or excise from the record only that portion of the record with respect to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and examination. If the person who has custody of a public record contends that the record or part of it is exempt from inspection and examination, he or she shall state the basis of the exemption which he or she contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute, and, if requested by the person seeking the right under this subsection to inspect, examine, or copy the record, he or she shall state in writing and with particularity the reasons for the conclusion that the record is exempt. (b) In any civil action in which an exemption to subsection (1) is asserted, if the exemption is alleged to exist under or by virtue of paragraph (c), paragraph (d), paragraph (e), paragraph (k), paragraph (1), or paragraph (o) of subsection (3), the public record or part thereof in question shall be submitted to the court for an inspection in camera. If an exemption is alleged to exist under or by virtue of paragraph (b) of subsection (3), an inspection in camera will be discretionary with the court. If the court finds that the asserted exemption is not applicable, it shall order the http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 40 public record or part thereof in question to be immediately produced for inspection, examination, or copying as requested by the person seeking such access. (c) Even if an assertion is made by the custodian of a public record that a requested record is not a public record subject to public inspection and examination under subsection (1), the requested record shall, nevertheless, not be disposed of for a period of 30 days after the date on which a written request requesting the right to inspect, examine, or copy the record was served on or otherwise made to the custodian of the record by the person seeking access to the record. If a civil action is instituted within the 30-day period to enforce the provisions of this section with respect to the requested record, the custodian shall not dispose of the record except by order of a court of competent jurisdiction after notice to all affected parties. (d) The absence of a civil action instituted for the purpose stated in paragraph (c) will not relieve the custodian of the duty to maintain the record as a public record if the record is in fact a public record subject to public inspection and examination under subsection (1) and will not otherwise excuse or exonerate the custodian from any unauthorized or unlawful disposition of such record. (3)(a) Examination questions and answer sheets of examinations administered by a governmental agency for the purpose of licensure, certification, or employment are exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. A person who has taken such an examination shall have the right to review his or her own completed examination. (b)1. Active criminal intelligence information and active criminal investigative information are exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. 2. A request of a law enforcement agency to inspect or copy a public record that is in the custody of another agency, the custodian's response to the request, and any information that would identify the public record that was requested by the law enforcement agency or provided by the custodian are exempt from the requirements of subsection (1) and s. 24(a), Art. I of the State Constitution, during the period in which the information constitutes criminal intelligence information or criminal investigative information that is active. This exemption is remedial in nature, and it is the intent of the Legislature that the exemption be applied to requests for information received before, on, or after the effective date of this subparagraph. The law enforcement agency shall give notice to the custodial agency when the criminal intelligence information or criminal investigative information is no longer active, so that the custodian's response to the request and information that would identify the public record requested are available to the public. This subparagraph is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15 and shall stand repealed October 2, 2007, unless reviewed and saved from repeal through reenactment by the Legislature. (c) Any information revealing the identity of a confidential informant or a confidential source is_ exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. (d) Any information revealing surveillance techniques or procedures or personnel is exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. Any comprehensive inventory of state and local law enforcement resources compiled pursuant to part I, chapter 23, and any comprehensive policies or plans compiled by a criminal justice agency pertaining to the mobilization, deployment, or tactical operations involved in responding to emergencies, as defined in s. 252.34(3), are exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution and unavailable for inspection, except by personnel authorized by a state or local law enforcement agency, the office of the Governor, the Department of Legal Affairs, the Department of Law Enforcement, or the Department of Community Affairs as having an official need for access to the inventory or comprehensive policies or plans. (e) Any information revealing undercover personnel of any criminal justice agency is exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. (f) Any criminal intelligence information or criminal investigative information including the photograph, name, address, or other fact or information which reveals the identity of the victim of http://www.fIsenate. gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov m the crime of sexual battery as defined in chapter 794; the identity of the victim of a lewd or lascivious offense committed upon or in the presence of a person less than 16 years of age, as defined in chapter 800; or the identity of the victim of the crime of child abuse as defined by chapter 827 and any criminal intelligence information or criminal investigative information or other criminal record, including those portions of court records and court proceedings, which may reveal the identity of a person who is a victim of any sexual offense, including a sexual offense proscribed in chapter 794, chapter 800, or chapter 827, is exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. (g) Any criminal intelligence information or criminal investigative information which reveals the personal assets of the victim of a crime, other than property stolen or destroyed during the commission of the crime, is exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. (h) All criminal intelligence and criminal investigative information received by a criminal justice agency prior to January 25, 1979, is exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. (i)1. The home addresses, telephone numbers, social security numbers, and photographs of active or former law enforcement personnel, including correctional and correctional probation officers, personnel of the Department of Children and Family Services whose duties include the investigation of abuse, neglect, exploitation, fraud, theft, or other criminal activities, personnel of the Department of Health whose duties are to support the investigation of child abuse or neglect, and personnel of the Department of Revenue or local governments whose responsibilities include revenue collection and enforcement or child support enforcement; the home addresses, telephone numbers, social security numbers, photographs, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from the provisions of subsection (1). The home addresses, telephone numbers, and photographs of firefighters certified in compliance with s. 633.35; the home addresses, telephone numbers, photographs, and places of employment of the spouses and children of such firefighters; and the names and locations of schools and day care facilities attended by the children of such firefighters are exempt from subsection (1). The home addresses and telephone numbers of justices of the Supreme Court, district court of appeal judges, circuit court judges, and county court judges; the home addresses, telephone numbers, and places of employment of the spouses and children of justices and judges; and the names and locations of schools and day care facilities attended by the children of justices and judges are exempt from the provisions of subsection (1). The home addresses, telephone numbers, social security numbers, and photographs of current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors; the home addresses, telephone numbers, social security numbers, photographs, and places of employment of the spouses and children of current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors; and the names and locations of schools and day care facilities attended by the children of current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors are exempt from subsection (1) and s. 24(a), Art. I of the State Constitution. 2. The home addresses, telephone numbers, social security numbers, and photographs of current or former human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers of any local government agency or water management district whose duties include hiring and firing employees, labor contract negotiation, administration, or other personnel -related duties; the names, home addresses, telephone numbers, social security numbers, photographs, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from subsection (1) and s. 24(a), Art. I of the State Constitution. This subparagraph is subject to the Open Government Sunset Review Act of 1995 in accordance with S. 119.15, and shall stand repealed on October 2, 2006, unless reviewed and saved from repeal through reenactment by the Legislature. 3. The home addresses, telephone numbers, social security numbers, and photographs of current or former code enforcement officers; the names, home addresses, telephone numbers, social security numbers, photographs, and places of employment of the spouses and children of such http://www.fIsenate.gov/Statutes/i ndex.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov [�a persons; and the names and locations of schools and day care facilities attended by the children of such persons are exempt from subsection (1) and s. 24(a), Art. I of the State Constitution. This subparagraph is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15, and shall stand repealed on October 2, 2006, unless reviewed and saved from repeal through reenactment by the Legislature. 4. An agency that is the custodian of the personal information specified in subparagraph 1., subparagraph 2., or subparagraph 3. and that is not the employer of the officer, employee, justice, judge, or other person specified in subparagraph 1., subparagraph 2., or subparagraph 3, shall maintain the confidentiality of the personal information only if the officer, employee, justice, judge, other person, or employing agency of the designated employee submits a written request for confidentiality to the custodial agency. (j) Any information provided to an agency of state government or to an agency of a political subdivision of the state for the purpose of forming ridesharing arrangements, which information reveals the identity of an individual who has provided his or her name for ridesharing, as defined in s. 341.031, is exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. (k) Any information revealing the substance of a confession of a person arrested is exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution, until such time as the criminal case is finally determined by adjudication, dismissal, or other final disposition. (1)1. A public record which was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney's express direction, which reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and which was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or which was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings. For purposes of capital collateral litigation as set forth in s. 27.7001, the Attorney General's office is entitled to claim this exemption for those public records prepared for direct appeal as well as for all capital collateral litigation after direct appeal until execution of sentence or imposition of a life sentence. 2. This exemption is not waived by the release of such public record to another public employee or officer of the same agency or any person consulted by the agency attorney. When asserting the right to withhold a public record pursuant to this paragraph, the agency shall identify the potential parties to any such criminal or civil litigation or adversarial administrative proceedings. If a court finds that the document or other record has been improperly withheld under this paragraph, the party seeking access to such document or record shall be awarded reasonable attorney's fees and costs in addition to any other remedy ordered by the court. (m) Sealed bids or proposals received by an agency pursuant to invitations to bid or requests for proposals are exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution until such time as the agency provides notice of a decision or intended decision pursuant to s. 120.57(3)(a) or within 10 days after bid or proposal opening, whichever is earlier. (n) When an agency of the executive branch of state government seeks to acquire real property by purchase or through the exercise of the power of eminent domain all appraisals, other reports relating to value, offers, and counteroffers must be in writing and are exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution until execution of a valid option contract or a written offer to sell that has been conditionally accepted by the agency, at which time the exemption shall expire. The agency shall not finally accept the offer for a period of 30 days in order to allow public review of the transaction. The agency may give conditional acceptance to any option or offer subject only to final acceptance by the agency after the 30-day review period. If a valid option contract is not executed, or if a written offer to sell is not conditionally accepted by the agency, then the exemption from the provisions of this chapter shall expire at the conclusion of the condemnation litigation of the subject property. An agency of the http://www.f[senate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 43 executive branch may exempt title information, including names and addresses of property owners whose property is subject to acquisition by purchase or through the exercise of the power of eminent domain, from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution to the same extent as appraisals, other reports relating to value, offers, and counteroffers. For the purpose of this paragraph, "option contract" means an agreement of an agency of the executive branch of state government to purchase real property subject to final agency approval. This paragraph shall have no application to other exemptions from the provisions of subsection (1) which are contained in other provisions of law and shall not be construed to be an express or implied repeal thereof. (o) Data processing software obtained by an agency under a licensing agreement which prohibits its disclosure and which software is a trade secret, as defined in s. 612.081, and agency -produced data processing software which is sensitive are exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. The designation of agency -produced software as sensitive shall not prohibit an agency head from sharing or exchanging such software with another public agency. As used in this paragraph: 1. "Data processing software" means the programs and routines used to employ and control the capabilities of data processing hardware, including, but not limited to, operating systems, compilers, assemblers, utilities, library routines, maintenance routines, applications, and computer networking programs. 2. "Sensitive" means only those portions of data processing software, including the specifications and documentation, used to: a. Collect, process, store, and retrieve information which is exempt from the provisions of subsection (1); b. Collect, process, store, and retrieve financial management information of the agency, such as payroll and accounting records; or c. Control and direct access authorizations and security measures for automated systems. (p) All complaints and other records in the custody of any unit of local government which relate to a complaint of discrimination relating to race, color, religion, sex, national origin, age, handicap, marital status, sale or rental of housing, the provision of brokerage services, or the financing of housing are exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution until a finding is made relating to probable cause, the investigation of the complaint becomes inactive, or the complaint or other record is made part of the official record of any hearing or court proceeding. This provision shall not affect any function or activity of the Florida Commission on Human Relations. Any state or federal agency which is authorized to have access to such complaints or records by any provision of law shall be granted such access in the furtherance of such agency's statutory duties, notwithstanding the provisions of this section. This paragraph shall not be construed to modify or repeal any special or local act. (q) All complaints and other records in the custody of any agency in the executive branch of state government which relate to a complaint of discrimination relating to race, color, religion, sex, national origin, age, handicap, or marital status in connection with hiring practices, position classifications, salary, benefits, discipline, discharge, employee performance, evaluation, or other related activities are exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution until a finding is made relating to probable cause, the investigation of the complaint becomes inactive, or the complaint or other record is made part of the official record of any hearing or court proceeding. This provision shall not affect any function or activity of the Florida Commission on Human Relations. Any state or federal agency which is authorized to have access to such complaints or records by any provision of law shall be granted such access in the furtherance of such agency's statutory duties, notwithstanding the provisions of this section. (r) All records supplied by a telecommunications company, as defined by s. 364.02, to a state or local governmental agency which contain the name, address, and telephone number of subscribers http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 44 are confidential and exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. (s)1. Any document that reveals the identity, home or employment telephone number, home or employment address, or personal assets of the victim of a crime and identifies that person as the victim of a crime, which document is received by any agency that regularly receives information from or concerning the victims of crime, is exempt from the provisions of subsection (1) and s. 24 (a), Art. I of the State Constitution. Any information not otherwise held confidential or exempt from the provisions of subsection (1) which reveals the home or employment telephone number, home or employment address, or personal assets of a person who has been the victim of sexual battery, aggravated child abuse, aggravated stalking, harassment, aggravated battery, or domestic violence is exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution, upon written request by the victim, which must include official verification that an applicable crime has occurred. Such information shall cease to be exempt 5 years after the receipt of the written request. Any state or federal agency that is authorized to have access to such documents by any provision of law shall be granted such access in the furtherance of such agency's statutory duties, notwithstanding the provisions of this section. 2. Any information in a videotaped statement of a minor who is alleged to be or who is a victim of sexual battery, lewd acts, or other sexual misconduct proscribed in chapter 800 or in s. 794.011, s. 827.071, s. 847.012, s. 847.0125, s. 847.013, s. 847.0133, or s. 847.0145, which reveals that minor's identity, including, but not limited to, the minor's face; the minor's home, school, church, or employment telephone number; the minor's home, school, church, or employment address; the name of the minor's school, church, or place of employment; or the personal assets of the minor; and which identifies that minor as the victim of a crime described in this subparagraph, is confidential and exempt from subsection (1) and s. 24(a), Art. I of the State Constitution. Any governmental agency that is authorized to have access to such statements by any provision of law shall be granted such access in the furtherance of the agency's statutory duties, notwithstanding the provisions of this section. This subparagraph is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15, and shall stand repealed on October 2, 2003. 3. A public employee or officer who has access to the videotaped statement of a minor who is alleged to be or who is a victim of sexual battery, lewd acts, or other sexual misconduct proscribed in chapter 800 or in s. 794.011, s. 827.071, s. 847.012, s. 847.0125, s. 847.013, s. 847.0133, or s. 847.0145, may not willfully and knowingly disclose videotaped information that reveals that minor's identity to a person who is not assisting in the investigation or prosecution of the alleged offense or to any person other than the defendant, the defendant's attorney, or a person specified in an order entered by the court having jurisdiction of the alleged offense. 4. A person who violates subparagraph 3. commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775,083. (t) Any financial statement which an agency requires a prospective bidder to submit in order to prequalify for bidding or for responding to a proposal for a road or any other public works project is exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. (u) Where the alleged victim chooses not to file a complaint and requests that records of the complaint remain confidential, all records relating to an allegation of employment discrimination are confidential and exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. (v) Medical information pertaining to a prospective, current, or former officer or employee of an agency which, if disclosed, would identify that officer or employee is exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. However, such information may be disclosed if the person to whom the information pertains or the person's legal representative provides written permission or pursuant to court order. (w)1. If certified pursuant to subparagraph 2., an investigatory record of the Chief Inspector General within the Executive Office of the Governor or of the employee designated by an agency head as the agency inspector general under s. 112.3189 is exempt from the provisions of http://www. flsenate. gov/Statutes/i ndex.cfm?App_mode=Di splay_Statute& U R L=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 4s subsection (1) and s. 24(a), Art. I of the State Constitution until the investigation ceases to be active, or a report detailing the investigation is provided to the Governor or the agency head, or 60 days from the inception of the investigation for which the record was made or received, whichever first occurs. Investigatory records are those records which are related to the investigation of an alleged, specific act or omission or other wrongdoing, with respect to an identifiable person or group of persons, based on information compiled by the Chief Inspector General or by an agency inspector general, as named under the provisions of s. 112.3189, in the course of an investigation. An investigation is active if it is continuing with a reasonable, good faith anticipation of resolution and with reasonable dispatch. 2. The Governor, in the case of the Chief Inspector General, or agency head, in the case of an employee designated as the agency inspector general under s. 112.3189, may certify such investigatory records require an exemption to protect the integrity of the investigation or avoid unwarranted damage to an individual's good name or reputation. The certification shall specify the nature and purpose of the investigation and shall be kept with the exempt records and made public when the records are made public. 3. The provisions of this paragraph do not apply to whistle -blower investigations conducted pursuant to the provisions of ss. 112.3187, 112.3188, 112.3189, and 112,31895. (x) The social security numbers of all current and former agency employees which numbers are contained in agency employment records are exempt from subsection (1) and exempt from s. 24 (a), Art. I of the State Constitution. As used in this paragraph, the term "agency" means an agency as defined in s. 119.011. (y) The audit report of an internal auditor prepared for or on behalf of a unit of local government becomes a public record when the audit becomes final. As used in this paragraph, "unit of local government" means a county, municipality, special district, local agency, authority, consolidated city -county government, or any other local governmental body or public body corporate or politic authorized or created by general or special law. An audit becomes final when the audit report is presented to the unit of local government. Audit workpapers and notes related to such audit report are confidential and exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution until the audit is completed and the audit report becomes final. (z) Any data, record, or document used directly or solely by a municipally owned utility to prepare and submit a bid relative to the sale, distribution, or use of any service, commodity, or tangible personal property to any customer or prospective customer shall be exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. This exemption commences when a municipal utility identifies in writing a specific bid to which it intends to respond. This exemption no longer applies when the contract for sale, distribution, or use of the service, commodity, or tangible personal property is executed, a decision is made not to execute such contract, or the project is no longer under active consideration. The exemption in this paragraph includes the bid documents actually furnished in response to the request for bids. However, the exemption for the bid documents submitted no longer applies after the bids are opened by the customer or prospective customer. (aa) Upon a request made in a form designated by the Department of Highway Safety and Motor Vehicles, personal information contained in a motor vehicle record that identifies the requester is exempt from subsection (1) and s. 24(a), Art. I of the State Constitution except as provided in this paragraph. Personal information includes, but is not limited to, the requester's social security number, driver identification number, name, address, telephone number, and medical or disability information. For purposes of this paragraph, personal information does not include information relating to vehicular crashes, driving violations, and driver's status. Such request may be made only by the person who is the subject of the motor vehicle record. For purposes of this paragraph, "motor vehicle record" means any record that pertains to a motor vehicle operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by the Department of Highway Safety and Motor Vehicles. Personal information contained in motor vehicle records exempted by an individual's request pursuant to this paragraph shall be released by the department for any of the following uses: http://www.fIsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov m 1. For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles and dealers by motor vehicle manufacturers; and removal of nonowner records from the original owner records of motor vehicle manufacturers, to carry out the purposes of the Automobile Information Disclosure Act, the Motor Vehicle Information and Cost Saving Act, the National Traffic and Motor Vehicle Safety Act of 1966, the Anti -Car Theft Act of 1992, and the Clean Air Act. 2. For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a federal, state, or local agency in carrying out its functions. 3. For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles, motor vehicle parts, and dealers; motor vehicle market research activities, including survey research; and removal of nonowner records from the original owner records of motor vehicle manufacturers. 4. For use in the normal course of business by a legitimate business or its agents, employees, or contractors, but only: a. To verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and b. If such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against, the individual. 5. For use in connection with any civil, criminal, administrative, or arbitral proceeding in any court or agency or before any self -regulatory body for: a. Service of process by any certified process server, special process server, or other person authorized to serve process in this state. b. Investigation in anticipation of litigation by an attorney licensed to practice law in this state or the agent of the attorney. c. Investigation by any person in connection with any filed proceeding. d. Execution or enforcement of judgments and orders. e. Compliance with an order of any court. 6. For use in research activities and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals. 7. For use by any insurer or insurance support organization, or by a self -insured entity, or its agents, employees, or contractors, in connection with claims investigation activities, anti -fraud activities, rating, or underwriting. 8. For use in providing notice to the owners of towed or impounded vehicles. 9. For use by any licensed private investigative agency or licensed security service for any purpose permitted under this paragraph. Personal information obtained based on an exempt driver's record may not be provided to a client who cannot demonstrate a need based on a police report, court order, or a business or personal relationship with the subject of the investigation. http://www. flsenate. gov/Statutes/i ndex. cfm?App_mode=Display_Statute&U R L=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 47 10. For use by an employer or its agent or insurer to obtain or verify information relating to a holder of a commercial driver's license that is required under the Commercial Motor Vehicle Safety Act of 1986, 49 U.S.C. App. 2710 et seq. 11. For use in connection with the operation of private toll transportation facilities. 12. For bulk distribution for surveys, marketing, or solicitations when the department has implemented methods and procedures to ensure that: a. Individuals are provided an opportunity, in a clear and conspicuous manner, to prohibit such uses; and b. The information will be used, rented, or sold solely for bulk distribution for survey, marketing, and solicitations, and that surveys, marketing, and solicitations will not be directed at those individuals who have timely requested that they not be directed at them. 13. For any use if the requesting person demonstrates that he or she has obtained the written consent of the person who is the subject of the motor vehicle record. 14. For any other use specifically authorized by state law, if such use is related to the operation of a motor vehicle or public safety. Personal information exempted from public disclosure according to this paragraph may be disclosed by the Department of Highway Safety and Motor Vehicles to an individual, firm, corporation, or similar business entity whose primary business interest is to resell or redisclose the personal information to persons who are authorized to receive such information. Prior to the department's disclosure of personal information, such individual, firm, corporation, or similar business entity must first enter into a contract with the department regarding the care, custody, and control of the personal information to ensure compliance with the federal Driver's Privacy Protection Act of 1994 and applicable state laws. An authorized recipient of personal information contained in a motor vehicle record, except a recipient under subparagraph 12., may contract with the Department of Highway Safety and Motor Vehicles to resell or redisclose the information for any use permitted under this paragraph. However, only authorized recipients of personal information under subparagraph 12. may resell or redisclose personal information pursuant to subparagraph 12. Any authorized recipient who resells or rediscloses personal information shall maintain, for a period of 5 years, records identifying each person or entity that receives the personal information and the permitted purpose for which it will be used. Such records shall be made available for inspection upon request by the department. The department shall adopt rules to carry out the purposes of this paragraph and the federal Driver's Privacy Protection Act of 1994, Title XXX, Pub. L. No. 103-322. Rules adopted by the department shall provide for the payment of applicable fees and, prior to the disclosure of personal information pursuant to this paragraph, shall require the meeting of conditions by the requesting person for the purposes of obtaining reasonable assurance concerning the identity of such requesting person, and, to the extent required, assurance that the use will be only as authorized or that the consent of the person who is the subject of the personal information has been obtained. Such conditions may include, but need not be limited to, the making and filing of a written application in such form and containing such information and certification requirements as the department requires. (bb)1. Medical history records, bank account numbers, credit card numbers, telephone numbers, and information related to health or property insurance furnished by an individual to any agency pursuant to federal, state, or local housing assistance programs are confidential and exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. Any other information produced or received by any private or public entity in direct connection with federal, state, or local housing assistance programs, unless the subject of another federal or state exemption, is subject to subsection (1). 2. Governmental agencies or their agents are entitled to access to the records specified in this paragraph for the purposes of auditing federal, state, or local housing programs or housing assistance programs. Such records may be used by an agency, as needed, in any administrative or judicial proceeding, provided such records are kept confidential and exempt, unless otherwise http://www.fisenate. gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov M ordered by a court. 3. This paragraph is repealed effective October 2, 2003, and must be reviewed by the Legislature before that date in accordance with s. 119.15, the Open Government Sunset Review Act of 1995. (cc) All personal identifying information; bank account numbers; and debit, charge, and credit card numbers contained in records relating to an individual's personal health or eligibility for health -related services made or received by the Department of Health or its service providers are confidential and exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution, except as otherwise provided in this paragraph. Information made confidential and exempt by this paragraph shall be disclosed: 1. With the express written consent of the individual or the individual's legally authorized representative. 2. In a medical emergency, but only to the extent necessary to protect the health or life of the individual. 3. By court order upon a showing of good cause. 4. To a health research entity, if the entity seeks the records or data pursuant to a research protocol approved by the department, maintains the records or data in accordance with the approved protocol, and enters into a purchase and data -use agreement with the department, the fee provisions of which are consistent with paragraph (1)(a). The department may deny a request for records or data if the protocol provides for intrusive follow -back contacts, has not been approved by a human studies institutional review board, does not plan for the destruction of confidential records after the research is concluded, is administratively burdensome, or does not have scientific merit. The agreement must restrict the release of any information, which would permit the identification of persons, limit the use of records or data to the approved research protocol, and prohibit any other use of the records or data. Copies of records or data issued pursuant to this subparagraph remain the property of the department. This paragraph is subject to the Open Government Sunset Review Act of 1995, in accordance with s. 119.15, and shall stand repealed on October 2, 2006, unless reviewed and saved from repeal through reenactment by the Legislature. (dd) Bank account numbers and debit, charge, and credit card numbers held by an agency are exempt from subsection (1) and s. 24(a), Art. I of the State Constitution. This exemption applies to bank account numbers and debit, charge, and credit card numbers held by an agency before, on, or after the effective date of this exemption. This paragraph is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15, and shall stand repealed on October 2, 2007, unless reviewed and saved from repeal through reenactment by the Legislature. (ee) Building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats, which depict the internal layout and structural elements of a building, arena, stadium, water treatment facility, or other structure owned or operated by an agency as defined in s. 119.011 are exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. This exemption applies to building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats, which depict the internal layout and structural elements of a building, arena, stadium, water treatment facility, or other structure owned or operated by an agency before, on, or after the effective date of this act. Information made exempt by this paragraph may be disclosed to another governmental entity if disclosure is necessary for the receiving entity to perform its duties and responsibilities; to a licensed architect, engineer, or contractor who is performing work on or related to the building, arena, stadium, water treatment facility, or other structure owned or operated by an agency; or upon a showing of good cause before a court of competent jurisdiction. The entities or persons receiving such information shall maintain the exempt status of the information. This paragraph is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15, and shall stand repealed on October 2, 2007, unless reviewed and reenacted by the Legislature. http://www.fIsenate. gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: fisenate.gov 49 (ff)1. Until January 1, 2006, if a social security number, made confidential and exempt pursuant to is. 119.072, created pursuant to s. 1, ch. 2002-256, passed during the 2002 regular legislative session, or a complete bank account, debit, charge, or credit card number made exempt pursuant to s. 119.07(ee), created pursuant to s. 1, ch. 2002-257, passed during the 2002 regular legislative session, is or has been included in a court file, such number may be included as part of the court record available for public inspection and copying unless redaction is requested by the holder of such number, or by the holder's attorney or legal guardian, in a signed, legibly written request specifying the case name, case number, document heading, and page number. The request must be delivered by mail, facsimile, electronic transmission, or in person to the clerk of the court. The clerk of the court does not have a duty to inquire beyond the written request to verify the identity of a person requesting redaction. A fee may not be charged for the redaction of a social security number or a bank account, debit, charge, or credit card number pursuant to such request. 2. Any person who prepares or files a document to be recorded in the official records by the county recorder as provided in chapter 28 may not include a person's social security number or complete bank account, debit, charge, or credit card number in that document unless otherwise expressly required by law. Until January 1, 2006, if a social security number or a complete bank account, debit, charge or credit card number is or has been included in a document presented to the county recorder for recording in the official records of the county, such number may be made available as part of the official record available for public inspection and copying. Any person, or his or her attorney or legal guardian, may request that a county recorder remove from an image or copy of an official record placed on a county recorder's publicly available Internet website, or a publicly available Internet website used by a county recorder to display public records outside the office or otherwise made electronically available outside the county recorder's office to the general public, his or her social security number or complete account, debit, charge, or credit card number contained in that official record. Such request must be legibly written, signed by the requester, and delivered by mail, facsimile, electronic transmission, or in person to the county recorder. The request must specify the identification page number of the document that contains the number to be redacted. The county recorder does not have a duty to inquire beyond the written request to verify the identity of a person requesting redaction. A fee may not be charged for redacting such numbers. 3. Upon the effective date of this act, subsections (3) and (4) of is. 119.072, do not apply to the clerks of the court or the county recorder with respect to court records and official records. 4. On January 1, 2006, and thereafter, the clerk of the court and the county recorder must keep complete bank account, debit, charge, and credit card numbers exempt as provided for in 2s. 119.07(3)(ee), and must keep social security numbers confidential and exempt as provided for in is. 119.072, without any person having to request redaction. (4) Nothing in this section shall be construed to exempt from subsection (1) a public record which was made a part of a court file and which is not specifically closed by order of court, except as provided in paragraphs (c), (d), (e), (k), (1), and (o) of subsection (3) and except information or records which may reveal the identity of a person who is a victim of a sexual offense as provided in paragraph (f) of subsection (3). (5) An exemption from this section does not imply an exemption from or exception to s. 286.011. The exemption from or exception to s. 286.011 must be expressly provided. (6) Nothing in subsection (3) or any other general or special law shall limit the access of the Auditor General, the Office of Program Policy Analysis and Government Accountability, or any state, county, municipal, university, board of community college, school district, or special district internal auditor to public records when such person states in writing that such records are needed 7for a properly authorized audit, examination, or investigation. Such person shall maintain the confidentiality of any public records that are confidential or exempt from the provisions of subsection (1) and shall be subject to the same penalties as the custodians of those public records for violating confidentiality. http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 50 (7)(a) Any person or organization, including the Department of Children and Family Services, may petition the court for an order making public the records of the Department of Children and Family Services that pertain to investigations of alleged abuse, neglect, abandonment, or exploitation of a child or a vulnerable adult. The court shall determine if good cause exists for public access to the records sought or a portion thereof. In making this determination, the court shall balance the best interest of the vulnerable adult or child who is the focus of the investigation, and in the case of the child, the interest of that child's siblings, together with the privacy right of other persons identified in the reports against the public interest. The public interest in access to such records is reflected in s. 119.01(1), and includes the need for citizens to know of and adequately evaluate the actions of the Department of Children and Family Services and the court system in providing vulnerable adults and children of this state with the protections enumerated in ss. 39.001 and 415.101. However, this subsection does not contravene ss. 39.202 and 415.107, which protect the name of any person reporting the abuse, neglect, or exploitation of a child or a vulnerable adult. (b) In cases involving serious bodily injury to a child or a vulnerable adult, the Department of Children and Family Services may petition the court for an order for the immediate public release of records of the department which pertain to the protective investigation. The petition must be personally served upon the child or vulnerable adult, the child's parents or guardian, the legal guardian of that person, if any, and any person named as an alleged perpetrator in the report of abuse, neglect, abandonment, or exploitation. The court must determine if good cause exists for the public release of the records sought no later than 24 hours, excluding Saturdays, Sundays, and legal holidays, after the date the department filed the petition with the court. If the court has neither granted nor denied the petition within the 24-hour time period, the department may release to the public summary information including: 1. A confirmation that an investigation has been conducted concerning the alleged victim. 2. The dates and brief description of procedural activities undertaken during the department's investigation. 3. The date of each judicial proceeding, a summary of each participant's recommendations made at the judicial proceedings, and the rulings of the court. The summary information may not include the name of, or other identifying information with respect to, any person identified in any investigation. In making a determination to release confidential information, the court shall balance the best interests of the vulnerable adult or child who is the focus of the investigation and, in the case of the child, the interests of that child's siblings, together with the privacy rights of other persons identified in the reports against the public interest for access to public records. However, this paragraph does not contravene ss. 39.202 and 415.107, which protect the name of any person reporting abuse, neglect, or exploitation of a child or a vulnerable adult. (c) When the court determines that good cause for public access exists, the court shall direct that the department redact the name of and other identifying information with respect to any person identified in any protective investigation report until such time as the court finds that there is probable cause to believe that the person identified committed an act of alleged abuse, neglect, or abandonment. (8) The provisions of this section are not intended to expand or limit the provisions of Rule 3.220, Florida Rules of Criminal Procedure, regarding the right and extent of discovery by the state or by a defendant in a criminal prosecution or in collateral postconviction proceedings. This section may not be used by any inmate as the basis for failing to timely litigate any postconviction action. History.--s. 7, ch. 67-125; s. 4, ch. 75-225; s. 2, ch. 77-60; s. 2, ch. 77-75; s. 2, ch. 77-94; s. 2, ch. 77-156; s. 2, ch. 78-81; ss. 2, 4, 6, ch. 79-167; s. 2, ch. 80-273; s. 1, ch. 81-245; s. 1, ch. 82-95; s. 36, ch. 82-243; s. 6, ch. 83-215; s. 2, ch. 83-269; s. 1, ch. 83-286; s. 5, ch. 84-298; s. 1, ch. 85-18; s. 1, ch. 85-45; s. 1, ch. 85-73; s. 1, ch. 85-86; s. 7, ch. 85-152; s. 1, ch. 85-177; s. 4, ch. 85-301; s. 2, ch. 86-11; s. 1, ch. 86-21; s. 1, ch. 86-109; s. 2, ch. 87-399; s. 2, ch. 88- 188; s. 1, ch. 88-384; s. 1, ch. 89-29; s. 7, ch. 89-55; s. 1, ch. 89-80; s. 1, ch. 89-275; s. 2, ch. http://www.f[senate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 51 89-283; s. 2, ch. 89-350; s. 1, ch. 89-531; s. 1, ch. 90-43; s. 63, ch. 90-136; s. 2, ch. 90-196; s, 4, ch. 90-211; s. 24, ch. 90-306; ss. 22, 26, ch. 90-344; s. 116, ch. 90-360; s. 78, ch. 91-45; S. 11, ch. 91-57; s. 1, ch. 91-71; s. 1, ch. 91-96; s. 1, ch. 91-130; s. 1, ch. 91-149; s. 1, ch. 91- 219; s. 1, ch. 91-288; ss. 43, 45, ch. 92-58; s. 90, ch. 92-152; s. 59, ch. 92-289; s. 217, ch. 92- 303; s. 1, ch. 93-87; s. 2, ch. 93-232; s. 3, ch. 93-404; s. 4, ch. 93-405; s. 4, ch. 94-73; s. 1, ch. 94-128; s. 3, ch. 94-130; s._ 67, ch. 94-164; s. 1, ch. 94-176; s. 1419, ch. 95-147; ss. 1, 3, ch. 95-170; s. 4, ch. 95-207; s. 1, ch. 95-320; ss. 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, 18, 19, 20, 22, 23, 24, 25, 26, 29, 30, 31, 32, 33, 34, 35, 36, ch. 95-398; s. 1, ch. 95-399; s. 121, ch. 95-418; s. 3, ch. 96-178; s. 1, ch. 96-230; s. 5, ch. 96-268; s. 4, ch. 96-290; s. 41, ch. 96- 406; s. 18, ch. 96-410; s. 1, ch. 97-185; s. 1, ch. 98-9; s. 7, ch. 98-137; s. 1, ch. 98-255; s. 1, ch. 98-259; s. 128, ch. 98-403; s. 2, ch. 99-201; s. 27, ch. 2000-164; s. 54, ch. 2000-349; s. 1, ch. 2001-87; s. 1, ch. 2001-108; s. 1, ch. 2001-249; s. 29, ch. 2001-261; s. 33, ch. 2001-266; s. 1, ch. 2001-364; s. 1, ch. 2002-67; ss. 1, 3, ch. 2002-257; s. 2, ch. 2002-391. 'Note. --Renumbered as s. 119.0721 by the reviser incident to compiling the Florida Statutes 2002. 2Note. --Redesignated as subparagraph (3)(dd) by the reviser incident to compiling the Florida Statutes 2002. Note. --Additional exemptions from the application of this section appear in the General Index to the Florida Statutes under the heading "Public Records." 119.071 General exemptions from inspection or copying of public records. --A security system plan or portion thereof for: (1) Any property owned by or leased to the state or any of its political subdivisions; or (2) Any privately owned or leased property which plan or portion thereof is in the possession of any agency, as defined in s. 119.011, is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution. As used in this section, the term a "security system plan" includes all records, information, photographs, audio and visual presentations, schematic diagrams, surveys, recommendations, or consultations or portions thereof relating directly to the physical security of the facility or revealing security systems; threat assessments conducted by any agency as defined in s. 119.011 or any private entity; threat response plans; emergency evacuation plans; sheltering arrangements; or manuals for security personnel, emergency equipment, or security training. This exemption is remedial in nature and it is the intent of the Legislature that this exemption be applied to security system plans received by an agency before, on, or after the effective date of this section. Information made confidential and exempt by this section may be disclosed by the custodial agency to another state or federal agency to prevent, detect, guard against, respond to, investigate, or manage the consequences of any attempted or actual act of terrorism, or to prosecute those persons who are responsible for such attempts or acts, and the confidential and exempt status of such information shall be retained while in the possession of the receiving agency. This section is subject to the Open Government Sunset Review Act of 1995, in accordance with s. 119.15, and shall stand repealed on October 2, 2006, unless reviewed and saved from repeal through reenactment by the Legislature. History.--s. 1, ch. 2001-361. 119.072 Criminal intelligence or investigative information obtained from out-of-state agencies. --Whenever criminal intelligence information or criminal investigative information held by a non -Florida criminal justice agency is available to a Florida criminal justice agency only on a confidential or similarly restricted basis, the Florida criminal justice agency may obtain and use such information in accordance with the conditions imposed by the providing agency. History.--s. 3, ch. 79-187. http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 52 119.0721 Social security number exemption.-- (1) Effective October 1, 2002, all social security numbers held by an agency or its agents, employees, or contractors are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This exemption applies to all social security numbers held by an agency and its agents, employees, or contractors before, on, or after the effective date of this exemption. (2) Social security numbers may be disclosed to another governmental entity or its agents, employees, or contractors if disclosure is necessary for the receiving entity to perform its duties and responsibilities. The receiving governmental entity and its agents, employees, and contractors shall maintain the confidential and exempt status of such numbers. (3) An agency shall not deny a commercial entity engaged in the performance of a commercial activity as defined in s. 14.203 or its agents, employees, or contractors access to social security numbers, provided the social security numbers will be used only in the normal course of business for legitimate business purposes, and provided the commercial entity makes a written request for social security numbers, verified as provided in s. 92.525, legibly signed by an authorized officer, employee, or agent of the commercial entity. The verified written request must contain the commercial entity's name, business mailing and location addresses, business telephone number, and a statement of the specific purposes for which it needs the social security numbers and how the social security numbers will be used in the normal course of business for legitimate business purposes. The aggregate of these requests shall serve as the basis for the agency report required in subsection (7). An agency may request any other information as may be reasonably necessary to verify the identity of the entity requesting the social security numbers and the specific purposes for which such numbers will be used; however, an agency has no duty to inquire beyond the information contained in the verified written request. A legitimate business purpose includes verification of the accuracy of personal information received by a commercial entity in the normal course of its business; use in a civil, criminal, or administrative proceeding; use for insurance purposes; use in law enforcement and investigation of crimes; use in identifying and preventing fraud; use in matching, verifying, or retrieving information; and use in research activities. A legitimate business purpose does not include the display or bulk sale of social security numbers to the general public or the distribution of such numbers to any customer that is not identifiable by the distributor. (4) Any person who makes a false representation in order to obtain a social security number pursuant to this section, or any person who willfully and knowingly violates the provisions of this section, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. Any public officer who violates any provision of this section is guilty of a noncriminal infraction, punishable by a fine not exceeding $500. A commercial entity that provides access to public records containing social security numbers in accordance with this section is not subject to the penalty provisions of this subsection. (5)(a) On or after October 1, 2002, no person preparing or filing a document to be recorded in the official records by the county recorder as provided for in chapter 28 may include any person's social security number in that document, unless otherwise expressly required by law. If a social security number is or has been included in a document presented to the county recorder for recording in the official records of the county before, on, or after October 1, 2002, it may be made available as part of the official record available for public inspection and copying. (b) Any person, or his or her attorney or legal guardian, has the right to request that a county recorder remove, from an image or copy of an official record placed on a county recorder's publicly available Internet website or a publicly available Internet website used by a county recorder to display public records or otherwise made electronically available to the general public by such recorder, his or her social security number contained in that official record. Such request must be made in writing, legibly signed by the requester and delivered by mail, facsimile, or electronic transmission, or delivered in person, to the county recorder. The request must specify the identification page number that contains the social security number to be redacted. The county recorder shall have no duty to inquire beyond the written request to verify the identity of a person requesting redaction. No fee will be charged for the redaction of a social security number pursuant to such request. http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 53 (c) A county recorder shall immediately and conspicuously post signs throughout his or her offices for public viewing; shall immediately and conspicuously post a notice on any Internet website or remote electronic site made available by the county recorder and used for the ordering or display of official records or images or copies of official records; and shall, prior to October 1, 2002, publish on two separate dates in a newspaper of general circulation in the county where the county recorder's office is located as provided for in chapter 50, a notice, stating, in substantially similar form, the following: 1. On or after October 1, 2002, any person preparing or filing a document for recordation in the official records may not include a social security number in such document, unless required by law. 2. Any person has a right to request a county recorder to remove, from an image or copy of an official record placed on a county recorder's publicly available Internet website or on a publicly available Internet website used by a county recorder to display public records or otherwise made electronically available to the general public, any social security number contained in an official record. Such request must be made in writing and delivered by mail, facsimile, or electronic transmission, or delivered in person, to the county recorder. The request must specify the identification page number that contains the social security number to be redacted. No fee will be charged for the redaction of a social security number pursuant to such a request. (6) Beginning January 31, 2004, and each January 31 thereafter, every agency must file a report with the Secretary of State, the President of the Senate, and the Speaker of the House of Representatives listing the identity of all commercial entities that have requested social security numbers during the preceding calendar year and the specific purpose or purposes stated by each commercial entity regarding its need for social security numbers. If no disclosure requests were made, the agency shall so indicate. (7) The Legislature acknowledges that the social security number was never intended to be used for business purposes but was intended to be used solely for the administration of the federal Social Security System. The Legislature is further aware that over time this unique numeric identifier has been used extensively for identity verification purposes and other legitimate consensual purposes. The Legislature is also cognizant of the fact that the social security number can be used as a tool to perpetuate fraud against a person and to acquire sensitive personal, financial, medical, and familial information, the release of which could cause great financial or personal harm to an individual. The Legislature intends to monitor the commercial use of social security numbers held by state agencies in order to maintain a balanced public policy. (8) An agency shall not collect an individual's social security number unless authorized by law to do so or unless the collection of the social security number is otherwise imperative for the performance of that agency's duties and responsibilities as prescribed by law. Social security numbers collected by an agency must be relevant to the purpose for which collected and shall not be collected until and unless the need for social security numbers has been clearly documented. An agency that collects social security numbers shall also segregate that number on a separate page from the rest of the record, or as otherwise appropriate, in order that the social security number be more easily redacted, if required, pursuant to a public records request. An agency collecting a person's social security number shall, upon that person's request, at the time of or prior to the actual collection of the social security number by that agency, provide that person with a statement of the purpose or purposes for which the social security number is being collected and used. Social security numbers collected by an agency shall not be used by that agency for any purpose other than the purpose stated. Social security numbers collected by an agency prior to 'May 13, 2002, shall be reviewed for compliance with this subsection. If the collection of a social security number prior to 'May 13, 2002, is found to be unwarranted, the agency shall immediately discontinue the collection of social security numbers for that purpose. (9) Any affected person may petition the circuit court for an order directing compliance with this section. (10) The provisions of this section do not supersede any other applicable public records http://www. flsenate.gov/Statutes/i ndex. cfm?App_mode=Display_Statute& U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 54 exemptions existing prior to 'May 13, 2002, or created thereafter. (11) This section is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15, and shall stand repealed October 2, 2007, unless reviewed and saved from repeal through reenactment by the Legislature. History.--s. 1, ch. 2002-256; s. 3, ch. 2002-391. 'Note. --Section 3, ch. 2002-256, provides that "[t]his act shall take effect upon becoming law For purposes of codifying the Florida Statutes 2002, the Division of Statutory Revision of the Office of Legislative Services is directed to substitute the effective date of the Council Substitute for House Bill 1673, First Engrossed, for the language 'the effective date of this act' as used in section [119.0721(8) and (10)], as created by section 1 of Council Substitute for House Bill 1673, First Engrossed." The version of Council Substitute for House Bill 1673 that passed was the 2nd engrossed version. It took effect upon becoming law, May 13, 2002. 119.08 Photographing public records.-- (1)(a) In all cases where the public or any person interested has a right to inspect or take extracts or make copies from any public record, instruments or documents, any person shall hereafter have the right of access to said records, documents or instruments for the purpose of making photographs of the same while in the possession, custody and control of the lawful custodian thereof, or his or her authorized deputy. (b) This section applies to the making of photographs in the conventional sense by utilization of a camera device to capture images of documents, paper, books, receipts, paper photographs, and other similar media and excludes the duplication of microfilm in the possession of the clerk of the circuit court where a copy of the microfilm may be made available by the clerk. (2) Such work shall be done under the supervision of the lawful custodian of the said records, who shall have the right to adopt and enforce reasonable rules governing the said work. Said work shall, where possible, be done in the room where the said records, documents or instruments are by law kept, but if the same in the judgment of the lawful custodian of the said records, documents or instruments be impossible or impracticable, then the said work shall be done in such other room or place as nearly adjacent to the room where the said records, documents and instruments are kept as determined by the lawful custodian thereof. (3) Where the providing of another room or place is necessary, the expense of providing the same shall be paid by the person desiring to photograph the said records, instruments or documents. While the said work hereinbefore mentioned is in progress, the lawful custodian of said records may charge the person desiring to make the said photographs for the services of a deputy of the lawful custodian of said records, documents or instruments to supervise the same, or for the services of the said lawful custodian of the same in so doing at a rate of compensation to be agreed upon by the person desiring to make the said photographs and the custodian of the said records, documents or instruments, or in case the same fail to agree as to the said charge, then by the lawful custodian thereof. History.--s. 8, ch. 67-125; s. 1, ch. 89-57; s. 756, ch. 95-147. 119.084 Definitions; copyright of data processing software created by governmental agencies; sale price and licensing fee; access to public records; prohibited contracts.-- (1) As used in this section: (a) "Agency" has the same meaning as in s. 119.011(2), except that the term does not include any private agency, person, partnership, corporation, or business entity. (b) "Data processing software" means the programs and routines used to employ and control the http://www.f]senate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 55 capabilities of data processing hardware, including, but not limited to, operating systems, compilers, assemblers, utilities, library routines, maintenance routines, applications, and computer networking programs. (c) "Proprietary software" means data processing software that is protected by copyright or trade secret laws. (2) Any agency is authorized to acquire and hold copyrights for data processing software created by the agency and to enforce its rights pertaining to such copyrights, provided that the agency complies with the requirements of this section. (a) Any agency that has acquired a copyright for data processing software created by the agency may sell or license the copyrighted data processing software to any public agency or private person and may establish a price for the sale and a license fee for the use of such data processing software. Proceeds from the sale or licensing of copyrighted data processing software shall be deposited by the agency into a trust fund for the agency's appropriate use for authorized purposes. Counties, municipalities, and other political subdivisions of the state may designate how such sale and licensing proceeds are to be used. The price for the sale of and the fee for the licensing of copyrighted data processing software may be based on market considerations. However, the prices or fees for the sale or licensing of copyrighted data processing software to an individual or entity solely for application to information maintained or generated by the agency that created the copyrighted data processing software shall be determined pursuant to s. 119.07 M. (b) The provisions of this subsection are supplemental to, and shall not supplant or repeal, any other provision of law that authorizes an agency to acquire and hold copyrights. (3) Subject to the restrictions of copyright and trade secret laws and public records exemptions, agency use of proprietary software must not diminish the right of the public to inspect and copy a public record. (4) An agency must consider when designing or acquiring an electronic recordkeeping system that such system is capable of providing data in some common format such as, but not limited to, the American Standard Code for Information Interchange. (5) Each agency that maintains a public record in an electronic recordkeeping system shall provide to any person, pursuant to this chapter, a copy of any public record in that system which is not exempted by law from public disclosure. An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium, and the agency may charge a fee which shall be in accordance with this chapter. For the purpose of satisfying a public records request, the fee to be charged by an agency if it elects to provide a copy of a public record in a medium not routinely used by the agency, or if it elects to compile information not routinely developed or maintained by the agency or that requires a substantial amount of manipulation or programming, must be in accordance with s. 119.07(1)(b). (6) An agency may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of that agency, including public records that are on-line or stored in an electronic recordkeeping system used by the agency. Such contract may not allow any impediment that as a practical matter makes it more difficult for the public to inspect or copy the records than to inspect or copy the agency's records. The fees and costs for the production of such records may not be more than the fees or costs charged by the agency. (7) This section is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15 and shall stand repealed on October 2, 2006, unless reviewed and saved from repeal through reenactment by the Legislature. History.--s. 1, ch. 2001-251. http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 56 119.085 Remote electronic access to public records. --As an additional means of inspecting, examining, and copying public records of the executive branch, judicial branch, or any political subdivision of the state, public records custodians may provide access to the records by remote electronic means. Unless otherwise required by law, the custodian may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect costs of providing such access. Fees for remote electronic access provided to the general public shall be in accordance with the provisions of s. 119.07(1). The custodian shall provide safeguards to protect the contents of public records from unauthorized remote electronic access or alteration and to prevent the disclosure or modification of those portions of public records which by general or special law are exempt from s. 119.07(1). History.--s. 2, ch. 85-86; s. 1, ch. 90-94; s. 2, ch. 95-296. 119.09 Assistance of the Division of Library and Information Services, records and information management program, of the Department of State. --The Division of Library and Information Services, records and information management program, of the Department of State shall have the right to examine into the condition of public records and shall give advice and assistance to public officials in the solution of their problems of preserving, creating, filing, and making available the public records in their custody. Public officials shall assist the division by preparing an inclusive inventory of categories of public records in their custody. The division shall establish a time period for the retention or disposal of each series of records. Upon the completion of the inventory and schedule, the division shall (subject to the availability of necessary space, staff, and other facilities for such purposes) make space available in its records center for the filing of semicurrent records so scheduled and in its archives for noncurrent records of permanent value and shall render such other assistance as needed, including the microfilming of records so scheduled. History.--s. 9, ch. 67-125; ss. 10, 35, ch. 69-106; s. 6, ch. 83-286; s. 7, ch. 86-163. 119.092 Registration by federal employer's registration number. --Each state agency which registers or licenses corporations, partnerships, or other business entities shall include, by July 1, 1978, within its numbering system, the federal employer's identification number of each corporation, partnership, or other business entity registered or licensed by it. Any state agency may maintain a dual numbering system in which the federal employer's identification number or the state agency's own number is the primary identification number; however, the records of such state agency shall be designed in such a way that the record of any business entity is subject to direct location by the federal employer's identification number. The Department of State shall keep a registry of federal employer's identification numbers of all business entities, registered with the Division of Corporations, which registry of numbers may be used by all state agencies. History.--s. 1, ch. 77-148. 119.10 Violation of chapter; penalties.-- (1) Any public officer who violates any provision of this chapter is guilty of a noncriminal infraction, punishable by fine not exceeding $500. (2) Any person willfully and knowingly violating any of the provisions of this chapter is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (3) Any person who willfully and knowingly violates s. 119.105 commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. History.--s. 10, ch. 67-125; s. 74, ch. 71-136; s. 5, ch. 85-301; s. 2, ch. 2001-271. 119.105 Protection of victims of crimes or accidents. --Police reports are public records except as otherwise made exempt or confidential by general or special law. Every person is allowed to examine nonexempt or nonconfidential police reports. No person who inspects or copies police reports for the purpose of obtaining the names and addresses of the victims of crimes or http://www.f[senate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 57 accidents shall use any information contained therein for any commercial solicitation of the victims or relatives of the victims of the reported crimes or accidents. Nothing herein shall prohibit the publication of such information by any news media or the use of such information for any other data collection or analysis purposes. History.--s. 1, ch. 90-280. 119.11 Accelerated hearing; immediate compliance.-- (1) Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases. (2) Whenever a court orders an agency to open its records for inspection in accordance with this chapter, the agency shall comply with such order within 48 hours, unless otherwise provided by the court issuing such order, or unless the appellate court issues a stay order within such 48-hour period. (3) A stay order shall not be issued unless the court determines that there is a substantial probability that opening the records for inspection will result in significant damage. (4) Upon service of a complaint, counterclaim, or cross -claim in a civil action brought to enforce the provisions of this chapter, the custodian of the public record that is the subject matter of such civil action shall not transfer custody, alter, destroy, or otherwise dispose of the public record sought to be inspected and examined, notwithstanding the applicability of an exemption or the assertion that the requested record is not a public record subject to inspection and examination under s. 119.07(1), until the court directs otherwise. The person who has custody of such public record may, however, at any time permit inspection of the requested record as provided in s. 119.07(1) and other provisions of law. History.--s. 5, ch. 75-225; s. 2, ch. 83-214; s. 6, ch. 84-298. 119.12 Attorney's fees.-- (1) If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected, examined, or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees. (2) Whenever an agency appeals a court order requiring it to permit inspection of records pursuant to this chapter and such order is affirmed, the court shall assess a reasonable attorney's fee for the appeal against such agency. History.--s. 5, ch. 75-225; s. 7, ch. 84-298. 119.15 Legislative review of exemptions from public meeting and public records requirements.-- (1) This section may be cited as the "Open Government Sunset Review Act of 1995." (2) This section provides for the automatic application of the policy of open government as provided in ss. 119.01 and 286.011 to certain exemptions from ss. 119.07(1) and 286.011. It is the intent of the Legislature that exemptions to ss. 119.07(1) and 286.011 shall be created or maintained only if: (a) The exempted record or meeting is of a sensitive, personal nature concerning individuals; (b) The exemption is necessary for the effective and efficient administration of a governmental http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 58 program; or (c) The exemption affects confidential information concerning an entity. Thus, the maintenance or creation of an exemption must be compelled as measured by these criteria. Further, the Legislature finds that the public has a right to have access to executive branch governmental meetings and records unless the criteria in this section for restricting such access to a public meeting or public record are met and the criteria are considered during legislative review in connection with the particular exemption to be significant enough to override the strong public policy of open government. To strengthen the policy of open government, the Legislature shall consider the criteria in this section before enacting future exemptions. (3)(a) In the 5th year after enactment of a new exemption or substantial amendment of an existing exemption, the exemption shall repeal on October 2nd of the 5th year, unless the Legislature acts to reenact the exemption. A law that enacts a new exemption or substantially amends an existing exemption must state that the exemption is repealed at the end of 5 years and that the exemption must be reviewed by the Legislature before the scheduled repeal date. (b) For purposes of this section, an exemption is substantially amended if the amendment expands the scope of the exemption to include more records or information or to include meetings as well as records. An exemption is not substantially amended if the amendment narrows the scope of the exemption. (c) This section is not intended to repeal an exemption that has been amended following legislative review before the scheduled repeal of the exemption if the exemption is not substantially amended as a result of the review. (d) In the year before the repeal of an exemption under this section, the Division of Statutory Revision of the Office of Legislative Services shall certify to the President of the Senate and the Speaker of the House of Representatives, by June 1, the language and statutory citation of each exemption scheduled for repeal the following year which meets the criteria of an exemption as defined in this section. Any exemption that is not identified and certified to the President of the Senate and the Speaker of the House of Representatives is not subject to legislative review and repeal under this section. If the division fails to certify an exemption that it subsequently determines should have been certified, it shall include the exemption in the following year's certification after that determination. (e) The term "exemption" means a provision of the Florida Statutes which creates an exception to s. 119.07(1) or s. 286.011 and which applies to the executive branch of state government or to local government, but it does not include any provision of a special law or local law. (f) An exemption that is required by federal law is not subject to repeal under this section. (g) An exemption that applies solely to the Legislature or the State Court System is not subject to repeal under this section. (4)(a) The Legislature shall review the exemption before its scheduled repeal and consider as part of the review process the following: 1. What specific records or meetings are affected by the exemption? 2. Whom does the exemption uniquely affect, as opposed to the general public? 3. What is the identifiable public purpose or goal of the exemption? 4. Can the information contained in the records or discussed in the meeting be readily obtained by alternative means? If so, how? http://www.flsenate.gov/Statutes/index.ctm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 59 (b) An exemption may be created or maintained only if it serves an identifiable public purpose and may be no broader than is necessary to meet the public purpose it serves. An identifiable public purpose is served if the exemption meets one of the following purposes and the Legislature finds that the purpose is sufficiently compelling to override the strong public policy of open government and cannot be accomplished without the exemption: 1. Allows the state or its political subdivisions to effectively and efficiently administer a governmental program, which administration would be significantly impaired without the exemption; 2. Protects information of a sensitive personal nature concerning individuals, the release of which information would be defamatory to such individuals or cause unwarranted damage to the good name or reputation of such individuals or would jeopardize the safety of such individuals. However, in exemptions under this subparagraph, only information that would identify the individuals may be exempted; or 3. Protects information of a confidential nature concerning entities, including, but not limited to, a formula, pattern, device, combination of devices, or compilation of information which is used to protect or further a business advantage over those who do not know or use it, the disclosure of which information would injure the affected entity in the marketplace. (c) Records made before the date of a repeal of an exemption under this section may not be made public unless otherwise provided by law. In deciding whether the records shall be made public, the Legislature shall consider whether the damage or loss to persons or entities uniquely affected by the exemption of the type specified in subparagraph (b)2. or subparagraph (b)3. would occur if the records were made public. (d) An exemption that is created or revived and reenacted must contain uniform language that clearly states the section in the Florida Statutes from which it is exempt, s. 119.07(1) or s. 286.011. The uniform language must also provide for the maximum public access to the meetings and records as is consistent with the purpose of the exemption. An exemption that is created or substantially amended must state that the exemption is repealed at the end of 5 years and that the exemption must be reviewed by the Legislature before the scheduled date of repeal. (e) Notwithstanding s. 768.28 or any other law, neither the state or its political subdivisions nor any other public body shall be made party to any suit in any court or incur any liability for the repeal or revival and reenactment of an exemption under this section. The failure of the Legislature to comply strictly with this section does not invalidate an otherwise valid reenactment. History.--s. 2, ch. 95-217; s. 25, ch. 98-136. 119.19 Capital postconviction public records production.-- (1) As used in this section, the term "trial court" means: (a) The judge who entered the judgment and imposed the sentence of death; or (b) If a motion for postconviction relief in a capital case has been filed and a different judge has already been assigned to that motion, the judge who is assigned to rule on that motion. (2) The Secretary of State shall establish and maintain a records repository for the purpose of archiving capital postconviction public records as provided for in this section. (3)(a) Upon imposition of a death sentence or upon the effective date of this act with respect to any case in which a death sentence has been imposed but the mandate has not yet been issued in an appeal affirming the sentence, the prosecuting attorney shall promptly provide written notification to each law enforcement agency involved in the case and to the Department of Corrections. If available, the written notification must include the defendant's date of birth, sex, http://www.flsenate.gov/Statutes/index.cf m?App_mod a=D i splay_Statute&U R L=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 60 race, and police -case numbers included in the prosecuting attorney's case file. (b) Within 60 days after receipt of notification, each law enforcement agency involved in the case and the prosecuting attorney who prosecuted the case shall copy, seal, and deliver to the repository all public records, except for those filed in the trial court, which were produced in the investigation or prosecution of the case or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried. Each agency shall bear the costs of its own compliance. (c) Within 60 days after notification, the Department of Corrections shall copy, seal, and deliver to the repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried all public records determined by the department to be relevant to the subject matter of a capital postconviction claim of the person sentenced to death and where such production would not be unduly burdensome for the department. The department shall bear the costs. (4)(a) The chief law enforcement officer of each law enforcement agency that was involved in the case, whether through an investigation, arrest, prosecution, or incarceration, shall notify the Attorney General upon compliance with subsection (3) and shall certify that to the best of his or her knowledge and belief all public records in possession of the agency or in possession of any employee of the agency have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried as required by this section. (b) The prosecuting attorney who prosecuted the case shall provide written notification to the Attorney General upon compliance with subsection (3) and shall certify that to the best of his or her knowledge and belief all public records in his or her possession have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried as required by this section. (c) The Secretary of Corrections shall provide written notification to the Attorney General upon compliance with paragraph (3)(c) and shall certify that to the best of his or her knowledge and belief all public records in the department's possession have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried as required by this section. (5)(a) Within 60 days after the imposition of a death sentence or upon the effective date of this act with respect to any case in which a death sentence has been imposed but the mandate has not yet been issued in an appeal affirming the sentence, both the public defender or private counsel for the defendant and the prosecuting attorney involved in the case shall provide written notification to the Attorney General of the name and address of any person or agency in addition to those persons and agencies listed in subsection (3) which may have information pertinent to the case unless previously provided to the capital collateral regional counsel or postconviction private counsel. The Attorney General shall promptly provide written notification to each identified person or agency after receiving the information from the public defender, private counsel for the defendant, or prosecuting attorney and shall request that all public records in the possession of the person or agency which pertain to the case be copied, sealed, and delivered to the records repository. (b) Within 60 days after receiving a request for public records under paragraph (a), the person or agency shall provide written notification to the Attorney General of compliance with this subsection and shall certify that to the best of his or her knowledge and belief all public records requested have been copied, indexed, and delivered to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried. (6)(a) Any public record under this section which is confidential or exempt from the requirements of s. 119.07(1) and s. 24(a), Art. I of the State Constitution must be separately boxed, without being redacted, and sealed. The box must be delivered to the clerk of court in the county in which the capital case was tried. The outside of the box must clearly identify the public records as exempt, and the seal may not be broken without an order of the trial court. The outside of the box http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: flsenate.gov 61 must identify the nature of the public records and the legal basis under which the public records are exempt. (b) Such a box may be opened only for an inspection by the trial court in camera and only after notice giving the agency the option to have a representative present at the unsealing by the court. (7)(a) Within 180 days after a capital collateral regional counsel or private counsel is appointed to represent a defendant sentenced to death, or within 30 days after issuance of the Florida Supreme Court's mandate affirming a death sentence, whichever is later, the regional counsel, private counsel, or other counsel who is a member of The Florida Bar and is authorized by such counsel representing a defendant may send a written demand for additional public records to each person or agency submitting public records under subsection (3) and to each person or agency identified as having information pertinent to the case under subsection (5). Should the written demand include requests for records associated with particular named individuals, the written demand shall also include a brief statement describing each named person's role in the case and relationship to the defendant. Race, sex, and date of birth shall also be included in the demand if the public defender, private counsel, or capital collateral regional counsel has such information. Each person or agency notified under this subsection shall, within 60 days after receipt of the written demand, deliver to the records repository or, if the records are confidential or exempt, to the clerk of the court in the county in which the capital case was tried any additional public records in the possession of the person or agency which pertain to the case and shall certify that to the best of his or her knowledge and belief all additional public records have been delivered or, if no additional public records are found, shall recertify that the public records previously delivered are complete. (b) Within 25 days after receiving the written demand, the agency or person may file an objection in the trial court alleging that the request is overly broad or unduly burdensome. Within 30 days after the filing of an objection, the trial court shall hold a hearing and order an agency or person to produce additional public records if it finds each of the following: 1. The regional counsel or private counsel has made a timely and diligent search as provided in this section. 2. The regional or private counsel's written demand identifies, with specificity, those additional public records that are not at the repository. 3. The additional public records sought are relevant to the subject matter of a capital postconviction relief or appear reasonably calculated to lead to the discovery of admissible evidence in prosecuting such claim. 4. The additional public records request is not overbroad or unduly burdensome. (c) This statute shall not be a basis for renewing requests that have been initiated previously or for relitigating issues pertaining to production of public records upon which a court has ruled. (d) If, on October 1, 1998, the defendant had a Rule 3.850 motion denied and no Rule 3.850 motion was pending, no additional requests shall be made by capital collateral regional counsel or contracted private counsel until a death warrant is signed by the Governor and an execution is scheduled. Within 10 days of the signing of the death warrant, capital collateral regional counsel or contracted private counsel may request of a person or agency that the defendant has previously requested to produce records any records previously requested to which no objection was raised or sustained, but which the agency has received or produced since the previous request or which for any reason the agency has in its possession and did not produce within 10 days of the receipt of the previous notice or such shorter time period ordered by the court to comply with the time for the scheduled execution. The person or agency shall produce the record or shall file in the trial court an affidavit stating that it does not have the requested record or that the record has been produced previously. (8)(a) After production of additional public records or recertification as provided in subsection (7), http://www.fIse nate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 statutes ->View Statutes: fisenate.gov RYA the regional counsel or the private counsel is prohibited from making any further public records requests under this chapter. An agency is not required to produce additional public records except by court order as provided in this subsection. (b) In order to obtain additional public records beyond those provided under subsection (7), the regional counsel, private counsel, or other counsel who is a member of The Florida Bar and is authorized by the regional counsel or private counsel shall file an affidavit in the trial court which attests that he or she has made a timely and diligent search of the records repository and specifically identifies those additional public records that are not at the repository and are relevant to the subject matter of a capital postconviction claim or are reasonably calculated to lead to the discovery of admissible evidence in the prosecution of such claim. The affiant shall provide a copy of the affidavit to all affected agencies upon the filing of such affidavit in the trial court. (c) Within 15 days after the filing of an affidavit, the trial court shall order an agency to produce additional public records only if it finds each of the following: 1. The regional counsel or private counsel has made a timely and diligent search as provided in this section. 2. The regional or private counsel's affidavit identifies, with specificity, those additional public records that are not at the repository. 3. The additional public records sought are relevant to the subject matter of a claim for capital postconviction relief or appear reasonably calculated to lead to the discovery of admissible evidence in prosecuting such claim. 4. The additional public records request is not overbroad or unduly burdensome. (9) The Secretary of State shall provide the personnel, supplies, and any necessary equipment used by the capital collateral regional counsel or private counsel to copy records held at the records repository. (10) The trial court shall resolve any dispute that arises under this section, unless the appellate court has exclusive jurisdiction. (11) The capital collateral regional counsel or private counsel shall not solicit another person to make a request for public records on behalf of the regional counsel or private counsel. The trial court shall impose appropriate sanctions against any regional counsel or private counsel found in violation of this subsection. (12) Sixty days after a capital sentence is carried out, 60 days after a defendant is released from incarceration following the granting of a pardon or reversal of the sentence, or 60 days after the defendant has been resentenced to a term of years, the Attorney General shall provide written notification to the Secretary of State, who may then destroy the records held by the records repository which pertain to that case. (13) This section pertains only to the production of records for capital postconviction defendants and does not change or alter any time limitations provided by law governing capital postconviction claims and actions. Furthermore, this section does not affect, expand, or limit the production of public records for any purposes other than use in a capital postconviction proceeding. Nothing in this section constitutes grounds to expand the time limitations or allow any pleading in violation of chapter 924 or to stay an execution or death warrant. History.--s. 1, ch. 98-198; S. 3, ch. 2000-3. http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&U RL=C... 12/23/2002 CAI �.Y.E.Vr l: n eN �SI Power point Presentation 1 Ethics Laws Outline 5 2002 Florida Statutes - Part III Code of Ethics for Public Officers and Employees 8 Ethics Complaint Process 55 Collier County Ordinance No. 99-22 57 Collier County Ordinance No. 2000-58 66 Collier County Gift Disclosure Statement 76 Office of the County Manager Administrative Procedures — CAM Instruction 5311— Code of Ethics / Standards of Conduct 77 Collier County Resolution No. 95-632 80 Ethics Laws C',ounly Attorncy's Office Ramiro Mahalich, Chief Assistant County Altomcy Three Levels of Ethics Laws ■ Chapler 112, Florida Statutes, fart 111 ■ (:ol)icr (:ounty Ordinance Nos, 99-22 and 2000-58 ■ C'ollicrCounty Human Resources Practices h Proccdfn•cs, Suction 5311 Florida Ethics Statutes ■ 1'VHal1rr in,cnt ■ strnnlonkofC'nnducl firPublic Orf icefs (ilia Finployms ■ Vo11ng C'ontlicta ■ rimtm:inl l)!,C)"Surr6 ■ Rcgrmhgg:,n,lPiobibitrd Receipt or Gill, by Rclrorling hidiertlouls ■ Ilom,rlida ■ 10"liftUrvatlor I'obpc'I ruM • Ad,liiionnl Moir Strint•,ml Bland,"Is • smr (tmtmlemkm <m rtlik-» tiwiplinaryProc mClmn County Ordinances ■ Ordinance No. 99-22 . Legislative intent • Gifts from lobbyist . Lobbyist registration • County managerial employee post employment restrictions County Ordinances ■ County ordinance violations carry fail as well as fine penalties Human Resources Practices and Procedures ■ Section 5311. Code of Ethics / Sumdards of Conduct • Prohibited receipt of gifts or items of value by County employees LIA-ff-W1j1\ Resolution No. 95-632 ■ A resolution of the Board setting forth tare policy of the Board of County Commissioners with regard to providing a legal defense and paying legal expenses of County Commissioners. County staff. and County advisory board members. Resolution No. 95-632 ■ Patiial safety net Resolution No. 95-632 ■ Advisory opinions 5 ETHICS LAWS I) Three levels of ethics laws affect Collier County public officials and employees A) Chapter 112, Florida Statutes, Part III (a State Code of Ethics for Public Officers and Employees) B) Collier County Ordinance Nos. 99-22 and 2000-58 (Ethics Ordinances) C) Collier County Human Resources Practices and Procedures, Section 5311 (Code of Ethics / Standards of Conduct) 11) Florida Ethics Statutes A) Legislative Intent 1) Section 112.311, Florida Statutes B) Standards of Conduct for Public Officers and Employees 1) Section 112.313, Florida Statutes (a) Solicitation or acceptance of gifts (b) Doing business with one's agency (c) Unauthorized compensation (d) Salary and expenses (e) Misuse of public position (f) Conflicting employment or contractual relationship (g) Disclosure or use of certain information (h) Prohibition on lobbying by former local officers C) Voting Conflicts 1) Section 112.3143, Florida Statutes D) Financial Disclosures 1) Section 112.3145, Florida Statutes E) Reporting and Prohibited Receipt of Gifts by Reporting Individuals 1) Section 112.3148, Florida Statutes RI F) Honoraria 1) Section 112.3149, Florida Statutes G) Penalties 1) Section 112.317, Florida Statutes H) Felonies Involving Breach of Public Trust 1) Section 112.3173, Florida Statutes 2) Forfeiture of retirement benefits 1) Additional or More Stringent Standards May be Enacted by the Board of County Commissioners 1) Section 112.326, Florida Statutes J) State Commission on Ethics disciplinary process chart III) County Ordinances A) Ordinance No. 99-22 1) Legislative intent (a) Supplemental provisions 2) Gifts from lobbyists 3) Lobbyist registration 4) County managerial employee post employment restrictions B) Ordinance No. 2000-58 1) Legislative intent 2) Gifts from lobbyists 3) Gift definition exceptions (a) Food and beverage (b) Disclosure form 4) Additional gift prohibitions for public officials C) Penalties 1) Section 8 - $500 and/or sixty days in county jail IV) Human Resources Practices and Procedures A) Section 5311, Code of Ethics / Standards of Conduct 1) Prohibited receipt of gifts or items of value by county employees V) Collier County Resolution No. 95-632 A) A resolution setting forth the policy of the Board of County Commissioners with regard to providing a legal defense and paying legal expenses of County Commissioners, county staff, and county advisory board members B) Resolution section no. 5 — payment of legal fees and/or costs incurred in cases involving ethics charges 1) A partial "safety net' 2) Requirements for payment of legal fees and/or costs 3) Advisory opinions C) Resolution section no. 8 — administration of policy statutes ->View Statutes->2002->Chapter 112->Part III: flsenate.gov 3 f _ &t46. View Statutes Select Year: 2002! Search Statutes Constitution Order The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS PART III CODE OF ETHICS FOR PUBLIC OFFICERS AND EMPLOYEES 112.311 Legislative intent and declaration of policy. 112.312 Definitions. 112.313 Standards of conduct for public officers, employees of agencies, and local government attorneys. 112,3135 Restriction on employment of relatives. 112.3143 Voting conflicts. 112.3144 Full and public disclosure of financial interests. 112.3145 Disclosure of financial interests and clients represented before agencies. 112.3146 Public records. 112.3147 Forms. 112.3148 Reporting and prohibited receipt of gifts by individuals filing full or limited public disclosure of financial interests and by procurement employees. 112.3149 Solicitation and disclosure of honoraria. 112,3151 Extensions of time for filing disclosure. 112.316 Construction. 112.317 Penalties. 112.3173 Felonies involving breach of public trust and other specified offenses by public officers and employees; forfeiture of retirement benefits. 112.3175 Remedies; contracts voidable. 112.3185 Contractual services. http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=ChOl 12/... 12/ 18/2002 statutes ->View Statutes->2002->Chapter 112->Part III: flsenate.gov 112.3187 Adverse action against employee for disclosing information of specified nature prohibited; employee remedy and relief. 112.3188 Confidentiality of information given to the Chief Inspector General, internal auditors, inspectors general, local chief executive officers, or other appropriate local officials. 112.3189 Investigative procedures upon receipt of whistle -blower information from certain state employees. 112.31895 Investigative procedures in response to prohibited personnel actions. 112.3191 Short title. 112.320 Commission on Ethics; purpose. 112.321 Membership, terms; travel expenses; staff. 112 3213 Legislative intent and purpose. 112.3215 Lobbyists before the executive branch or the Constitution Revision Commission; registration and reporting; investigation by commission. 112,3217 Contingency fees; prohibitions; penalties. 112.322 Duties and powers of commission. 112 3231 Time limitations. 112.3232 Compelled testimony. 112.324 Procedures on complaints of violations; public records and meeting exemptions. 112.3241 Judicial review. 112,326 Additional requirements by political subdivisions and agencies not prohibited. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright @2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0112/ ... 12/ 18/2002 statutes ->View Statutes->2002->Ch0112->Section 311: flsenate.gov 10 fts"ate-gov View Statutes Select Year: 2002 i Search Statutes Constitution Laws of Florida Order The 2002 Florida Statutes Ti_leei _Z( Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS 112.311 Legislative intent and declaration of policy.-- (1) It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts may exist. (2) It is also essential that government attract those citizens best qualified to serve. Thus, the law against conflict of interest must be so designed as not to impede unreasonably or unnecessarily the recruitment and retention by government of those best qualified to serve. Public officials should not be denied the opportunity, available to all other citizens, to acquire and retain private economic interests except when conflicts with the responsibility of such officials to the public cannot be avoided. (3) It is likewise essential that the people be free to seek redress of their grievances and express their opinions to all government officials on current issues and past or pending legislative and executive actions at every level of government. In order to preserve and maintain the integrity of the governmental process, it is necessary that the identity, expenditures, and activities of those persons who regularly engage in efforts to persuade public officials to take specific actions, either by direct communication with such officials or by solicitation of others to engage in such efforts, be regularly disclosed to the people. (4) It is the intent of this act to implement these objectives of protecting the integrity of government and of facilitating the recruitment and retention of qualified personnel by prescribing restrictions against conflicts of interest without creating unnecessary barriers to public service. (5) It is hereby declared to be the policy of the state that no officer or employee of a state agency or of a county, city, or other political subdivision of the state, and no member of the Legislature or legislative employee, shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity; or incur any obligation of any nature which is in substantial conflict with the proper discharge of his or her duties in the public interest. To implement this policy and strengthen the faith and confidence of the people of the state in their government, there is enacted a code of ethics setting forth standards of conduct required of state, county, and city officers and employees, and of officers and employees of other political subdivisions of the state, in the performance of their official duties. It is the intent of the Legislature that this code shall serve not only as a guide for the official conduct of public servants in this state, but also as a basis for discipline of those who violate the provisions of this part. (6) It is declared to be the policy of the state that public officers and employees, state and local, are agents of the people and hold their positions for the benefit of the public. They are bound to uphold the Constitution of the United States and the State Constitution and to perform efficiently and faithfully their duties under the laws of the federal, state, and local governments. Such officers and employees are bound to observe, in their official acts, the highest standards of ethics consistent with this code and the advisory opinions rendered with respect hereto regardless of http://www.flsenate.govIStatuteslindex.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 311: flsenate.gov 11 personal considerations, recognizing that promoting the public interest and maintaining the respect of the people in their government must be of foremost concern. History.--s. 1, ch. 67-469; s. 1, ch. 69-335; s. 1, ch. 74-177; s. 2, ch. 75-208; s. 698, ch. 95- 147. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright (92000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/ 18/2002 statutes ->View Statutes->2002->ChO112->Section 312; flsenate.gov 12 it note.. View Statutes Search Statutes Constitution Laws of Florida Order Select Year: 2002 The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chatter AND RECORDS GENERAL PROVISIONS 112.312 Definitions. --As used in this part and for purposes of the provisions of s. 8, Art. II of the State Constitution, unless the context otherwise requires: (1) "Advisory body" means any board, commission, committee, council, or authority, however selected, whose total budget, appropriations, or authorized expenditures constitute less than 1 percent of the budget of each agency it serves or $100,000, whichever is less, and whose powers, jurisdiction, and authority are solely advisory and do not include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relating to its internal operations. (2) "Agency" means any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. (3) "Breach of the public trust" means a violation of a provision of the State Constitution or this part which establishes a standard of ethical conduct, a disclosure requirement, or a prohibition applicable to public officers or employees in order to avoid conflicts between public duties and private interests, including, without limitation, a violation of s. 8, Art. II of the State Constitution or of this part. (4) "Business associate" means any person or entity engaged in or carrying on a business enterprise with a public officer, public employee, or candidate as a partner, joint venturer, corporate shareholder where the shares of such corporation are not listed on any national or regional stock exchange, or coowner of property. (5) "Business entity" means any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state. (6) "Candidate" means any person who has filed a statement of financial interest and qualification papers, has subscribed to the candidate's oath as required by s. 99.021, and seeks by election to become a public officer. This definition expressly excludes a committeeman or committeewoman regulated by chapter 103 and persons seeking any other office or position in a political party. (7) "Commission" means the Commission on Ethics created by s. 112.E or any successor to which its duties are transferred. (8) "Conflict" or "conflict of interest" means a situation in which regard for a private interest tends to lead to disregard of a public duty or interest. (9) "Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties. http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/ 18/2002 statutes ->View Statutes->2002->Ch0112->Section 312: flsenate.gov 13 (10) "Disclosure period" means the taxable year for the person or business entity, whether based on a calendar or fiscal year, immediately preceding the date on which, or the last day of the period during which, the financial disclosure statement required by this part is required to be filed. (11) "Facts materially related to the complaint at issue" means facts which tend to show a violation of this part or s. 8, Art. II of the State Constitution by the alleged violator other than those alleged in the complaint and consisting of separate instances of the same or similar conduct as alleged in the complaint, or which tend to show an additional violation of this part or s. 8, Art. II of the State Constitution by the alleged violator which arises out of or in connection with the allegations of the complaint. (12)(a) "Gift," for purposes of ethics in government and financial disclosure required by law, means that which is accepted by a donee or by another on the donee's behalf, or that which is paid or given to another for or on behalf of a donee, directly, indirectly, or in trust for the donee's benefit or by any other means, for which equal or greater consideration is not given within 90 days, including: 1. Real property. 2. The use of real property. 3. Tangible or intangible personal property. 4. The use of tangible or intangible personal property. 5. A preferential rate or terms on a debt, loan, goods, or services, which rate is below the customary rate and is not either a government rate available to all other similarly situated government employees or officials or a rate which is available to similarly situated members of the public by virtue of occupation, affiliation, age, religion, sex, or national origin. 6. Forgiveness of -an indebtedness. 7. Transportation, other than that provided to a public officer or employee by an agency in relation to officially approved governmental business, lodging, or parking. 8. Food or beverage. 9. Membership dues. 10. Entrance fees, admission fees, or tickets to events, performances, or facilities. 11. Plants, flowers, or floral arrangements. 12. Services provided by persons pursuant to a professional license or certificate. 13. Other personal services for which a fee is normally charged by the person providing the services. 14, Any other similar service or thing having an attributable value not already provided for in this section. (b) "Gift" does not include: 1. Salary, benefits, services, fees, commissions, gifts, or expenses associated primarily with the donee's employment, business, or service as an officer or director of a corporation or organization. http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Sectioq 312: flsenate.gov 14 2. Contributions or expenditures reported pursuant to chapter 106, campaign -related personal services provided without compensation by individuals volunteering their time, or any other contribution or expenditure by a political party. 3. An honorarium or an expense related to an honorarium event paid to a person or the person's spouse. 4. An award, plaque, certificate, or similar personalized item given in recognition of the donee's public, civic, charitable, or professional service. 5. An honorary membership in a service or fraternal organization presented merely as a courtesy by such organization. 6. The use of a public facility or public property, made available by a governmental agency, for a public purpose. 7. Transportation provided to a public officer or employee by an agency in relation to officially approved governmental business. 8. Gifts provided directly or indirectly by a state, regional, or national organization which promotes the exchange of ideas between, or the professional development of, governmental officials or employees, and whose membership is primarily composed of elected or appointed public officials or staff, to members of that organization or officials or staff of a governmental agency that is a member of that organization. (c) For the purposes of paragraph (a), "intangible personal property" means property as defined in s. .001(11)(b). (d) For the purposes of paragraph (a), the term "consideration" does not include a promise to pay or otherwise provide something of value unless the promise is in writing and enforceable through the courts. (13) "Indirect" or "indirect interest" means an interest in which legal title is held by another as trustee or other representative capacity, but the equitable or beneficial interest is held by the person required to file under this part. (14) "Liability" means any monetary debt or obligation owed by the reporting person to another person, entity, or governmental entity, except for credit card and retail installment accounts, taxes owed unless reduced to a judgment, indebtedness on a life insurance policy owed to the company of issuance, contingent liabilities, or accrued income taxes on net unrealized appreciation. Each liability which is required to be disclosed by s. 8, Art. II of the State Constitution shall identify the name and address of the creditor. (15) "Material interest" means direct or indirect ownership of more than 5 percent of the total assets or capital stock of any business entity. For the purposes of this act, indirect ownership does not include ownership by a spouse or minor child. (16) "Materially affected" means involving an interest in real property located within the jurisdiction of the official's agency or involving an investment in a business entity, a source of income or a position of employment, office, or management in any business entity located within the jurisdiction or doing business within the jurisdiction of the official's agency which is or will be affected in a substantially different manner or degree than the manner or degree in which the public in general will be affected or, if the matter affects only a special class of persons, then affected in a substantially different manner or degree than the manner or degree in which such class will be affected. (17) "Ministerial matter" means action that a person takes in a prescribed manner in obedience to the mandate of legal authority, without the exercise of the person's own judgment or discretion as http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/ 18/2002 statutes ->View Statutes->2002->Ch0112->Sectign 312: flsenate.gov 15 to the propriety of the action taken. (18) "Parties materially related to the complaint at issue" means any other public officer or employee within the same agency as the alleged violator who has engaged in the same conduct as that alleged in the complaint, or any other public officer or employee who has participated with the alleged violator in the alleged violation,as a coconspirator or as an aider and abettor. (19) "Person or business entities provided a grant or privilege to operate" includes state and federally chartered banks, state and federal savings and loan associations, cemetery companies, insurance companies, mortgage companies, credit unions, small loan companies, alcoholic beverage licensees, pari-mutuel wagering companies, utility companies, and entities controlled by the Public Service Commission or granted a franchise to operate by either a city or county government. (20) "Purchasing agent' means a public officer or employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods, services, or interest in real property for an agency, as opposed to the authority to request or requisition a contract or purchase by another person. (21) "Relative," unless otherwise specified in this part, means an individual who is related to a public officer or employee as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, half sister, grandparent, great grandparent, grandchild, great grandchild, step grandparent, step great grandparent, step grandchild, step great grandchild, person who is engaged to be married to the public officer or employee or who otherwise holds himself or herself out as or is generally known as the person whom the public officer or employee intends to marry or with whom the public officer or employee intends to form a household, or any other natural person having the same legal residence as the public officer or employee. (22) "Represent' or "representation" means actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications made with the officers or employees of any agency on behalf of a client. (23) "Source" means the name, address, and description of the principal business activity of a person or business entity. (24) "Value of real property" means the most recently assessed value in lieu of a more current appraisal. History.--s. 2, ch. 67-469; ss. 11, 12, ch. 68-35; s. 8, ch. 69-353; s. 2, ch. 74-177; s. 1, ch. 75- 196; s. 1, ch. 75-199; s. 3, ch. 75-208; s. 4, ch, 76-18; s. 1, ch. 77-174; s. 2, ch. 82-98; s. 1, ch. 83-282; s. 2, ch. 90-502; s. 2, ch. 91-85; s. 3, ch. 91-292; s. 699, ch. 95-147; s. 1, ch. 96- 328; s. 1, ch. 2000-243. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright Q2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&S earch_String=... 12/ 18/2002 statutes ->View Statutes->2002->ChO112->Section 313: flsenate.gov W fI . te. View Statutes Search Statutes Constitution Laws of Florida Order Select Year: 2002 The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS 112.313 Standards of conduct for public officers, employees of agencies, and local government attorneys.-- (1) DEFINITION, --As used in this section, unless the context otherwise requires, the term "public officer" includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body. (2) SOLICITATION OR ACCEPTANCE OF GIFTS. --No public officer, employee of an agency, local government attorney, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, local government attorney, or candidate would be influenced thereby. (3) DOING BUSINESS WITH ONE'S AGENCY. --No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to: (a) October 1, 1975. (b) Qualification for elective office. (c) Appointment to public office. (d) Beginning public employment. (4) UNAUTHORIZED COMPENSATION. --No public officer, employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer, employee, or local government attorney knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer, employee, or local government attorney was expected to participate in his or her official capacity. (5) SALARY AND EXPENSES. --No public officer shall be prohibited from voting on a matter affecting his or her salary, expenses, or other compensation as a public officer, as provided by http://www.fl senate. gov/Statutes/index.cfm?App_mode=Display_S tatute&S earch_String=... 12/ 1812002 statutes ->View Statutes->2002->Ch0112->Segtion 313: flsenate.gov 17 law. No local government attorney shall be prevented from considering any matter affecting his or her salary, expenses, or other compensation as the local government attorney, as provided by law. (6) MISUSE OF PUBLIC POSITION. --No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. (7) CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- (a) No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. 1. When the agency referred to is that certain kind of special tax district created by general or special law and is limited specifically to constructing, maintaining, managing, and financing improvements in the land area over which the agency has jurisdiction, or when the agency has been organized pursuant to chapter 298, then employment with, or entering into a contractual relationship with, such business entity by a public officer or employee of such agency shall not be prohibited by this subsection or be deemed a conflict per se. However, conduct by such officer or employee that is prohibited by, or otherwise frustrates the intent of, this section shall be deemed a conflict of interest in violation of the standards of conduct set forth by this section. 2. When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict. (b) This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance. (8) DISCLOSURE OR USE OF CERTAIN INFORMATION. --No public officer, employee of an agency, or local government attorney shall disclose or use information not available to members of the general public and gained by reason of his or her official position for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity. (9) POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.-- (a)1. It is the intent of the Legislature to implement by statute the provisions of s. 8(e), Art. II of the State Constitution relating to legislators, statewide elected officers, appointed state officers, and designated public employees. 2. As used in this paragraph: a. "Employee" means: http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 313: flsenate.gov (I) Any person employed in the executive or legislative branch of government holding a position in the Senior Management Service as defined in s. 110,402 or any person holding a position in the Selected Exempt Service as defined in s. 110.602 or any person having authority over policy or procurement employed by the Department of the Lottery. (II) The Auditor General, the director of the Office of Program Policy Analysis and Government Accountability, the Sergeant at Arms and Secretary of the Senate, and the Sergeant at Arms and Clerk of the House of Representatives. (III) The executive director of the Legislative Committee on Intergovernmental Relations and the executive director and deputy executive director of the Commission on Ethics. (IV) An executive director, staff director, or deputy staff director of each joint committee, standing committee, or select committee of the Legislature; an executive director, staff director, executive assistant, analyst, or attorney of the Office of the President of the Senate, the Office of the Speaker of the House of Representatives, the Senate Majority Party Office, Senate Minority Party Office, House Majority Party Office, or House Minority Party Office; or any person, hired on a contractual basis, having the power normally conferred upon such persons, by whatever title. (V) The Chancellor and Vice Chancellors of the State University System; the general counsel to the 'Board of Regents; and the president, vice presidents, and deans of each state university. (VI) Any person having the power normally conferred upon the positions referenced in this sub - subparagraph. b. "Appointed state officer" means any member of an appointive board, commission, committee, council, or authority of the executive or legislative branch of state government whose powers, jurisdiction, and authority are not solely advisory and include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relative to its internal operations. c. "State agency" means an entity of the legislative, executive, or judicial branch of state government over which the Legislature exercises plenary budgetary and statutory control. 3. No member of the Legislature, appointed state officer, or statewide elected officer shall personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or member for a period of 2 years following vacation of office. No member of the Legislature shall personally represent another person or entity for compensation during his or her term of office before any state agency other than judicial tribunals or in settlement negotiations after the filing of a lawsuit. 4. No agency employee shall personally represent another person or entity for compensation before the agency with which he or she was employed for a period of 2 years following vacation of position, unless employed by another agency of state government. 5. Any person violating this paragraph shall be subject to the penalties provided in s. 112.317 and a civil penalty of an amount equal to the compensation which the person receives for the prohibited conduct. 6. This paragraph is not applicable to: a. A person employed by the Legislature or other agency prior to July 1, 1989; b. A person who was employed by the Legislature or other agency on July 1, 1989, whether or not the person was a defined employee on July 1, 1989; , c. A person who was a defined employee of the State University System or the Public Service Commission who held such employment on December 31, 1994; http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/ 18/2002 statutes ->View Statutes->2002->ChO112->Section 313: f1senate.gov 19 d. A person who has reached normal retirement age as defined in s. 121.021(29), and who has retired under the provisions of chapter 121 by July 1, 1991; or e. Any appointed state officer whose term of office began before January 1, 1995, unless reappointed to that office on or after January 1, 1995. (b) In addition to the provisions of this part which are applicable to legislators and legislative employees by virtue of their being public officers or employees, the conduct of members of the Legislature and legislative employees shall be governed by the ethical standards provided in the respective rules of the Senate or House of Representatives which are not in conflict herewith. (10) EMPLOYEES HOLDING OFFICE. -- (a) No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his or her employer while, at the same time, continuing as an employee of such employer. (b) The provisions of this subsection shall not apply to any person holding office in violation of such provisions on the effective date of this act. However, such a person shall surrender his or her conflicting employment prior to seeking reelection or accepting reappointment to office. (11) PROFESSIONAL AND OCCUPATIONAL LICENSING BOARD MEMBERS. --No officer, director, or administrator of a Florida state, county, or regional professional or occupational organization or association, while holding such position, shall be eligible to serve as a member of a state examining or licensing board for the profession or occupation. (12) EXEMPTION. --The requirements of subsections (3) and (7) as they pertain to persons serving on advisory boards may be waived in a particular instance by the body which appointed the person to the advisory board, upon a full disclosure of the transaction or relationship to the appointing body prior to the waiver and an affirmative vote in favor of waiver by two-thirds vote of that body. In instances in which appointment to the advisory board is made by an individual, waiver may be effected, after public hearing, by a determination by the appointing person and full disclosure of the transaction or relationship by the appointee to the appointing person. In addition, no person shall be held in violation of subsection (3) or subsection (7) if: (a) Within a city or county the business is transacted under a rotation system whereby the business transactions are rotated among all qualified suppliers of the goods or services within the city or county. (b) The business is awarded under a system of sealed, competitive bidding to the lowest or best bidder and: 1. The official or the official's spouse or child has in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder; 2. The official or the official's spouse or child has in no way used or attempted to use the official's influence to persuade the agency or any personnel thereof to enter such a contract other than by the mere submission of the bid; and 3. The official, prior to or at the time of the submission of the bid, has filed a statement with the Department of State, if the official is a state officer or employee, or with the supervisor of elections of the county in which the agency has its principal office, if the official is an officer or employee of a political subdivision, disclosing the official's interest, or the interest of the official's spouse or child, and the nature of the intended business. (c) The purchase or sale is for legal advertising in a newspaper, for any utilities service, or for passage on a common carrier. http://www.flsenate. gov/Statuteslindex.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112,>Section 313: flsenate.gov 20 (d) An emergency purchase or contract which would otherwise violate a provision of subsection (3) or subsection (7) must be made in order to protect the health, safety, or welfare of the citizens of the state or any political subdivision thereof. (e) The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his or her interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted. (f) The total amount of the transactions in the aggregate between the business entity and the agency does not exceed $500 per calendar year. (g) The fact that a county or municipal officer or member of a public board or body, including a district school officer or an officer of any district within a county, is a stockholder, officer, or director of a bank will not bar such bank from qualifying as a depository of funds coming under the jurisdiction of any such public board or body, provided it appears in the records of the agency that the governing body of the agency has determined that such officer or member of a public board or body has not favored such bank over other qualified banks. (h) The transaction is made pursuant to s. 1004.22 or s. 1004.23 and is specifically approved by the president and the chair of the university board of trustees. The chair of the university board of trustees shall submit to the Governor and the Legislature by March 1 of each year a report of the transactions approved pursuant to this paragraph during the preceding year. (i) The public officer or employee purchases in a private capacity goods or services, at a price and upon terms available to similarly situated members of the general public, from a business entity which is doing business with his or her agency. (j) The public officer or employee in a private capacity purchases goods or services from a business entity which is subject to the regulation of his or her agency and: 1. The price and terms of the transaction are available to similarly situated members of the general public; and 2. The officer or employee makes full disclosure of the relationship to the agency head or governing body prior to the transaction. (13) COUNTY AND MUNICIPAL ORDINANCES AND SPECIAL DISTRICT AND SCHOOL DISTRICT RESOLUTIONS REGULATING FORMER OFFICERS OR EMPLOYEES. --The governing body of any county or municipality may adopt an ordinance and the governing body of any special district or school district may adopt a resolution providing that an appointed county, municipal, special district, or school district officer or a county, municipal, special district, or school district employee may not personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or employee for a period of 2 years following vacation of office or termination of employment, except for the purposes of collective bargaining. Nothing in this section may be construed to prohibit such ordinance or resolution. (14) LOBBYING BY FORMER LOCAL OFFICERS; PROHIBITION. --A person who has been elected to any county, municipal, special district, or school district office may not personally represent another person or entity for compensation before the governing body of which the person was an officer for a period of 2 years after vacating that office. (15) ADDITIONAL EXEMPTION. --No elected public officer shall be held in violation of subsection (7) if the officer maintains an employment relationship with an entity which is currently a tax- exempt organization under s. 501(c) of the Internal Revenue Code and which contracts with or - otherwise enters into a business relationship with the officer's agency and: (a) The officer's employment is not directly or indirectly compensated as a result of such contract http://www.flsenate.gov/Statuteslindex.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 313: flsenate.gov 21 or business relationship; (b) The officer has in no way participated in the agency's decision to contract or to enter into the business relationship with his or her employer, whether by participating in discussion at the meeting, by communicating with officers or employees of the agency, or otherwise; and (c) The officer abstains from voting on any matter which may come before the agency involving the officer's employer, publicly states to the assembly the nature of the officer's interest in the matter from which he or she is abstaining, and files a written memorandum as provided in s. 112.3143. (16) LOCAL GOVERNMENT ATTORNEYS. -- (a) For the purposes of this section, "local government attorney" means any individual who routinely serves as the attorney for a unit of local government. The term shall not include any person who renders legal services to a unit of local government pursuant to contract limited to a specific issue or subject, to specific litigation, or to a specific administrative proceeding. For the purposes of this section, "unit of local government" includes, but is not limited to, municipalities, counties, and special districts. (b) It shall not constitute a violation of subsection (3) or subsection (7) for a unit of local government to contract with a law firm, operating as either a partnership or a professional association, or in any combination thereof, or with a local government attorney who is a member of or is otherwise associated with the law firm, to provide any or all legal services to the unit of local government, so long as the local government attorney is not a full-time employee or member of the governing body of the unit of local government. However, the standards of conduct as provided in subsections (2), (4), (5), (6), and (8) shall apply to any person who serves as a local government attorney. (c) No local government attorney or law firm in which the local government attorney is a member, partner, or employee shall represent a private individual or entity before the unit of local government to which the local government attorney provides legal services. A local government attorney whose contract with the unit of local government does not include provisions that authorize or mandate the use of the law firm of the local government attorney to complete legal services for the unit of local government shall not recommend or otherwise refer legal work to that attorney's law firm to be completed for the unit of local government. History.--s. 3, ch. 67-469; s. 2, ch. 69-335; ss. 10, 35, ch. 69-106; s. 3, ch. 74-177; ss. 4, 11, ch. 75-208; s. 1, ch. 77-174; s. 1, ch. 77-349; s. 4, ch. 82-98; s. 2, ch. 83-26; s. 6, ch. 83-282; s. 14, ch. 85-80; s. 12, ch. 86-145; s. 1, ch. 88-358; s. 1, ch. 88-408; s. 3, ch. 90-502; s. 3, ch. 91-85; s. 4, ch. 91-292; s. 1, ch. 92-35; s. 1, ch. 94-277; s. 1406, ch. 95-147; s. 3, ch. 96-311; s. 34, ch. 96-318; s. 41, ch. 99-2; s. 29, ch. 2001-266; s. 20, ch. 2002-1; s. 894, ch. 2002-387. 'Note. --Abolished by s. 3, ch. 2001-170 Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The Information on this system Is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright 02000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate. gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/1812002 statutes ->View Statutes->2002->ChO112->Section 3135: flsenate.gov 22 f1sonate.gov View Statutes Select Year: 2Q02 Search Statutes Constitution The 2002 Florida Statutes Laws of Florida Order Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: ChARter AND RECORDS GENERAL PROVISIONS 112.3135 Restriction on employment of relatives.-- (1) In this section, unless the context otherwise requires: (a) "Agency" means: 1. A state agency, except an institution under the jurisdiction of the Division of Universities of the Department of Education; 2. An office, agency, or other establishment in the legislative branch; 3. An office, agency, or other establishment in the judicial branch; 4. A county; 5. A city; and 6. Any other political subdivision of the state, except a district school board or community college district. (b) "Collegial body" means a governmental entity marked by power or authority vested equally in each of a number of colleagues. (c) "Public official" means an officer, including a member of the Legislature, the Governor, and a member of the Cabinet, or an employee of an agency in whom is vested the authority by law, rule, or regulation, or to whom the authority has been delegated, to appoint, employ, promote, or advance individuals or to recommend individuals for appointment, employment, promotion, or advancement in connection with employment in an agency, including the authority as a member of a collegial body to vote on the appointment, employment, promotion, or advancement of individuals. (d) "Relative," for purposes of this section only, with respect to a public official, means an individual who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister. (2)(a) A public official may not appoint, employ, promote, or advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the agency in which the official is serving or over which the official exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to a position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or http://www.flsenate,gov/Statuteslindex.cfm?App_mode=Display_Statute&Search_StTing=... 12/19/2002 statutes ->View Statutes->2002->Ch0112->Section 3135: flsenate.gov 23 control over the agency, who is a relative of the individual or if such appointment, employment, promotion, or advancement is made by a collegial body of which a relative of the individual is a member. However, this subsection shall not apply to appointments to boards other than those with land -planning or zoning responsibilities in those municipalities with less than 35,000 population. This subsection does not apply to persons serving in a volunteer capacity who provide emergency medical, firefighting, or police services. Such persons may receive, without losing their volunteer status, reimbursements for the costs of any training they get relating to the provision of volunteer emergency medical, firefighting, or police services and payment for any incidental expenses relating to those services that they provide. (b) Mere approval of budgets shall not be sufficient to constitute "jurisdiction or control" for the purposes of this section. (3) An agency may prescribe regulations authorizing the temporary employment, in the event of an emergency as defined in s. 252.34(3), of individuals whose employment would be otherwise prohibited by this section. (4) Legislators' relatives may be employed as pages or messengers during legislative sessions. History.--ss. 1, 2, 3, ch. 69-341; ss. 15, 35, ch. 69-106; s. 70, ch. 72-221; s. 3, ch. 83-334; s. 1, ch. 89-67; s. 4, ch. 90-502; s. 2, ch. 94-277; s. 1407, ch. 95-147; s. 1, ch. 98-160; s. 42, ch. 99-2. Note. --Former s. 116.111. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright 9)2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index. cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3143: flsenate.gov 24 View Statutes Search Statutes Constitution Laws of Florida Order Select Year: 2002 The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS 112.3143 Voting conflicts.-- (1) As used in this section: (a) "Public officer" includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body. (b) "Relative" means any father, mother, son, daughter, husband, wife, brother, sister, father-in- law, mother-in-law, son-in-law, or daughter-in-law. (2) No state public officer is prohibited from voting in an official capacity on any matter. However, any state public officer voting in an official capacity upon any measure which would inure to the officer's special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which the officer is retained; or which the officer knows would inure to the special private gain or loss of a relative or business associate of the public officer shall, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. (3)(a) No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. (b) However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357, or an officer of an independent special tax district elected on a one -acre, one -vote basis, is not prohibited from voting, when voting in said capacity. (4) No appointed public officer shall participate in any matter which would inure to the officer's special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained; or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his or her interest in the matter. (a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum http://www.flsenate.gov/Statuteslindex.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3143: flsenate.gov 25 filed with the person responsible for recording the minutes of the meeting, prior to the meeting it which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the Fling of this written memorandum. (b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum. (c) For purposes of this subsection, the term "participate" means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer's direction. (5) Whenever a public officer or former public officer is being considered for appointment or reappointment to public office, the appointing body shall consider the number and nature of the memoranda of conflict previously filed under this section by said. officer. History.--s. 6, ch. 75-206; s. 2, ch. 84-318; s. 1, ch. 84-357; s. 2, ch. 86-148; s. 5, ch. 91-85; s. 3, ch. 94-277; s. 1408, ch. 95-147; s. 43, ch. 99-2. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright C2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->ChQ112->Section 3144: flsenate.gov 26 View Statutes Search Statutes Constitution Laws of Florida Order Select Year: 2002 The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS 112.3144 Full and public disclosure of financial interests.-- 1(1) An officer who is required by s. 8, Art. II of the State Constitution to file a full and public disclosure of his or her financial interests for any calendar or fiscal year shall file that disclosure with the Florida Commission on Ethics. (2) A person who is required, pursuant to s. 8, Art. II of the State Constitution, to file a full and public disclosure of financial interests and who has filed a full and public disclosure of financial interests for any calendar or fiscal year shall not be required to file a statement of financial interests pursuant to s. 112.3145(2) and (3) for the same year or for any part thereof notwithstanding any requirement of this part, except that a candidate for office shall file a copy of his or her disclosure with the officer before whom he or she qualifies. (3) For purposes of full and public disclosure under s. 8(a), Art. II of the State Constitution, the following items, if not held for investment purposes and if valued at over $1,000 in the aggregate, may be reported in a lump sum and identified as "household goods and personal effects": (a) Jewelry; (b) Collections of stamps, guns, and numismatic properties; (c) Art objects; (d) Household equipment and furnishings; (e) Clothing; (f) Other household items; and (g) Vehicles for personal use. (4) Forms for compliance with the full and public disclosure requirements of s. 8, Art. II of the State Constitution shall be created by the Commission on Ethics. The commission shall give notice of disclosure deadlines and delinquencies and distribute forms in the following manner: (a) Not later than May 1 of each year, the commission shall prepare a current list of the names and addresses of and the offices held by every person required to file full and public disclosure annually by s. 8, Art. II of the State Constitution, or other state law. In compiling the list, the commission shall be assisted by each unit of government in providing at the request of the commission the name, address, and name of the office held by each public official within the respective unit of government. (b) Not later than 30 days before July 1 of each year, the commission shall mail a copy of the http://www. flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Gh0112->Section 3144: f1senate.gov 27 form prescribed for compliance with full and public disclosure and a notice of the filing deadline to each person on the mailing list. z(c) Not later than 30 days after July 1 of each year, the commission shall determine which persons on the mailing list have failed to file full and public disclosure and shall send delinquency notices by certified mail to such persons. Each notice shall state that a grace period is in effect until September 1 of the current year. (d) Statements must be filed not later than 5 p.m. of the due date. However, any statement that is postmarked by the United States Postal Service by midnight of the due date is deemed to have been filed in a timely manner, and a certificate of mailing obtained from and dated by the United States Postal Service at the time of the mailing, or a receipt from an established courier company which bears a date on or before the due date, constitutes proof of mailing in a timely manner. (e) Any person who is required to file full and public disclosure of financial interests and whose name is on the commission's mailing list but who fails to timely file is assessed a fine of $25 per day for each day late up to a maximum of $1,500; however this $1,500 limitation on automatic fines does not limit the civil penalty that may be imposed if the statement is filed more than 60 days after the deadline and a complaint is filed, as provided in s. 112.324. The commission must provide by rule the grounds for waiving the fine and the procedures by which each person whose name is on the mailing list and who is determined to have not filed in a timely manner will be notified of assessed fines and may appeal. The rule must provide for and make specific the following: 1. The amount of the fine due is based upon the earliest of the following a. When a statement is actually received by the office. b. When the statement is postmarked. c. When the certificate of mailing is dated. d. When the receipt from an established courier company is dated 2. Upon receipt of the disclosure statement or upon accrual of the maximum penalty, whichever occurs first, the commission shall determine the amount of the fine which is due and shall notify the delinquent person. The notice must include an explanation of the appeal procedure under subparagraph 3. Such fine must be paid within 30 days after the notice of payment due is transmitted, unless appeal is made to the commission pursuant to subparagraph 3. The moneys shall be deposited into the General Revenue Fund. 3. Any reporting person may appeal or dispute a fine, based upon unusual circumstances surrounding the failure to file on the designated due date, and may request and is entitled to a hearing before the commission, which may waive the fine in whole or in part for good cause shown. Any such request must be made within 30 days after the notice of payment due is transmitted. In such a case, the reporting person must, within the 30-day period, notify the person designated to review the timeliness of reports in writing of his or her intention to bring the matter before the commission. (f) Any person subject to the annual filing of full and public disclosure under s. 8, Art. II of the State Constitution, or other state law, whose name is not on the commission's mailing list of persons required to file full and public disclosure is not subject to the fines or penalties provided in this part for failure to file full and public disclosure in any year in which the omission occurred, but nevertheless is required to file the disclosure statement. (g) The notification requirements and fines of this subsection do not apply to candidates or to the first filing required of any person appointed to elective constitutional office or other position required to file full and public disclosure, unless the person's name is on the commission's http://www.flsenate.gov/StatutWindex.cfm?App_mode=Display_Statute&Search_String=... 12118/2002 statutes ->View Statutes->2002,>Ch0112->Section 3144: flsenate.gov 28 notification list and the person received notification from the commission. The appointing official shall notify such newly appointed person of the obligation to file full and public disclosure by July 1. The notification requirements and fines of this subsection do not apply to the final filing provided for in subsection (5). (h) Notwithstanding any provision of chapter 120, any fine imposed under this subsection which is not waived by final order of the commission and which remains unpaid more than 60 days after the notice of payment due or more than 60 days after the commission renders a final order on the appeal must be submitted to the Department of Banking and Finance as a claim, debt, or other obligation owed to the state, and the department shall assign the collection of such fine to a collection agent as provided in s. 17.20. (5) Each person required to file full and public disclosure of financial interests shall file a final disclosure statement within 60 days after leaving his or her public position for the period between January 1 of the year in which the person leaves and the last day of office or employment, unless within the 60-day period the person takes another public position requiring financial disclosure under s. 8, Art. II of the State Constitution, or is otherwise required to file full and public disclosure for the final disclosure period. The head of the agency of each person required to file full and public disclosure for the final disclosure period shall notify such persons of their obligation to file the final disclosure and may designate a person to be responsible for the notification requirements of this subsection. (6) The commission shall adopt rules and forms specifying how a person who is required to file full and public disclosure of financial interests may amend his or her disclosure statement to report information that was not included on the form as originally filed. If the amendment is the subject of a complaint filed under this part, the commission and the proper disciplinary official or body shall consider as a mitigating factor when considering appropriate disciplinary action the fact that the amendment was filed before any complaint or other inquiry or proceeding, while recognizing that the public was deprived of access to information to which it was entitled. History.--s. 1, ch. 82-98; s. 3, ch. 88-358; s. 19, ch. 91-45; s. 4, ch. 94-277; s. 1409, ch. 95- 147; s. 2, ch. 2000-243; s. 30, ch. 2000-258. 'Note. --As created by s. 30, ch. 2000-258. Subsection (1), as created by s. 2, ch. 2000-243, reads: (1) A person who is required, pursuant to s. 8, Art. II of the State Constitution, to file a full and public disclosure of financial interests for any calendar or fiscal year shall file the disclosure with the Florida Commission on Ethics. 2Note.--As amended by s. 30, ch. 2000-258. Paragraph (4)(c), as amended by s. 2, ch. 2000- 243, reads: (c) Not later than 30 days after July 1 of each year, the commission shall determine which persons on the mailing list have failed to file full and public disclosure and shall send delinquency notices by certified mail to such persons. Each notice must state that a grace period is in effect until September 1 of the current year and that, if the statement is not filed by September 1 of the current year, a $25 fine for each day late will be imposed, up to a maximum penalty of $1,500; and that, if upon the filing of a sworn complaint the commission finds that the person has failed to timely file the statement within 60 days after September 1 of the current year, such person will also be subject to the penalties provided in s. 112.317. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The Information on this system Is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright ©2000-2002 State of Florida. Contact us. Privaty Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_Stting=... 12/18/2002 statutes ->View Statutes->2002, >Ch0112->Section 3145: flsenate.gov f1soltede.gey View Statutes Select Year: 2002 Search Statutes Constitution The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS 112.3145 Disclosure of financial interests and clients represented before agencies.-- (1) For purposes of this section, unless the context otherwise requires, the term: (a) "Local officer" means: 1. Every person who is elected to office in any political subdivision of the state, and every person who is appointed to fill a vacancy for an unexpired term in such an elective office. 2. Any appointed member of any of the following boards, councils, commissions, authorities, or other bodies of any county, municipality, school district, independent special district, or other political subdivision of the state: a. The governing body of the political subdivision, if appointed; b. An expressway authority or transportation authority established by general law; c. A community college or junior college district board of trustees; d. A board having the power to enforce local code provisions; e. A planning or zoning board, board of adjustment, board of appeals, or other board having the power to recommend, create, or modify land planning or zoning within the political subdivision, except for citizen advisory committees, technical coordinating committees, and such other groups who only have the power to make recommendations to planning or zoning boards; f. A pension board or retirement board having the power to invest pension or retirement funds or the power to make a binding determination of one's entitlement to or amount of a pension or other retirement benefit; or g. Any other appointed member of a local government board who is required to file a statement of financial interests by the appointing authority or the enabling legislation, ordinance, or resolution creating the board. 3. Any person holding one or more of the following positions: mayor; county or city manager; chief administrative employee of a county, municipality, or other political subdivision; county or municipal attorney; chief county or municipal building code inspector; county or municipal water resources coordinator; county or municipal pollution control director; county or municipal environmental control director; county or municipal administrator, with power to grant or deny a land development permit; chief of police; fire chief; municipal clerk; district school superintendent; community college president; district medical examiner; or purchasing agent having the authority to make any purchase exceeding the threshold amount provided for in s. 287.017 for CATEGORY ONE, on behalf of any political subdivision of the state or any entity http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12118/2002 statutes ->View Statutes->20Q2->Ch0112->Section 3145: flsenate.gov 30 thereof (b) "Specified state employee" means 1. Public counsel created by chapter 350, an assistant state attorney, an assistant public defender, a full-time state employee who serves as counsel or assistant counsel to any state agency, the Deputy Chief Judge of Compensation Claims, a judge of compensation claims, an administrative law judge, or a hearing officer. 2. Any person employed in the office of the Governor or in the office of any member of the Cabinet if that person is exempt from the Career Service System, except persons employed in clerical, secretarial, or similar positions. 3. Each appointed secretary, assistant secretary, deputy secretary, executive director, assistant executive director, or deputy executive director of each state department, commission, board, or council; unless otherwise provided, the division director, assistant division director, deputy director, bureau chief, and assistant bureau chief of any state department or division; or any person having the power normally conferred upon such persons, by whatever title. 4. The superintendent or institute director of a state mental health institute established for training and research in the mental health field or the warden or director of any major state institution or facility established for corrections, training, treatment, or rehabilitation. 5. Business managers, purchasing agents having the power to make any purchase exceeding the threshold amount provided for in s. 287,017 for CATEGORY ONE, finance and accounting directors, personnel officers, or grants coordinators for any state agency. 6. Any person, other than a legislative assistant exempted by the presiding officer of the house by which the legislative assistant is employed, who is employed in the legislative branch of government, except persons employed in maintenance, clerical, secretarial, or similar positions. 7. Each employee of the Commission on Ethics (c) "State officer" means 1. Any elected public officer, excluding those elected to the United States Senate and House of Representatives, not covered elsewhere in this part and any person who is appointed to fill a vacancy for an unexpired term in such an elective office. 2. An appointed member of each board, commission, authority, or council having statewide jurisdiction, excluding a member of an advisory body. 3. A member of the 'Board of Regents, the Chancellor and Vice Chancellors of the State University System, and the president of a state university. 4. A member of the judicial nominating commission for any district court of appeal or any judicial circuit. (2)(a) A person seeking nomination or election to a state or local elective office shall file a statement of financial interests together with, and at the same time he or she files, qualifying papers. (b) Each state:or local officer and each specified state employee shall file a statement of financial interests no later than July 1 of each year. Each state officer, local officer, and specified state employee shall file a final statement of financial interests within 60 days after leaving his or her public position for the period between January 1 of the year in which the person leaves and the last day of office or employment, unless within the 60-day period the person takes another public http://www.flsenate.gov/Statuteslindex.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->?002->Ch0112->Section 3145: flsenate.gov 31 position requiring financial disclosure under this section or s. 8, Art. II of the State Constitution or otherwise is required to file full and public disclosure or a statement of financial interests for the final disclosure period. Each state or local officer who is appointed and each specified state employee who is employed shall file a statement of financial interests within 30 days from the date of appointment or, in the case of a specified state employee, from the date on which the employment begins, except that any person whose appointment is subject to confirmation by the Senate shall file prior to confirmation hearings or within 30 days from the date of appointment, whichever comes first. (c) State officers and specified state employees shall file their statements of financial interests with the Commission on Ethics. Local officers shall file their statements of financial interests with the supervisor of elections of the county in which they permanently reside. Local officers who do not permanently reside in any county in the state shall file their statements of financial interests with the supervisor of elections of the county in which their agency maintains its headquarters. Persons seeking to qualify as candidates for local public office shall file their statements of financial interests with the officer before whom they qualify. (3) The statement of financial interests for state officers, specified state employees, local officers, and persons seeking to qualify as candidates for state or local office shall be filed even if the reporting person holds no financial interests requiring disclosure, in which case the statement shall be marked "not applicable." Otherwise, the statement of financial interests shall include, at the filer's option, either: (a)1. All sources of income in excess of 5 percent of the gross income received during the disclosure period by the person in his or her own name or by any other person for his or her use or benefit, excluding public salary. However, this shall not be construed to require disclosure of a business partner's sources of income. The person reporting shall list such sources in descending order of value with the largest source first; 2. All sources of income to a business entity in excess of 10 percent of the gross income of a business entity in which the reporting person held a material interest and from which he or she received an amount which was in excess of 10 percent of his or her gross income during the disclosure period and which exceeds $1,500. The period for computing the gross income of the business entity is the fiscal year of the business entity which ended on, or immediately prior to, the end of the disclosure period of the person reporting; 3. The location or description of real property in this state, except for residences and vacation homes, owned directly or indirectly by the person reporting, when such person owns in excess of 5 percent of the value of such real property, and a general description of any intangible personal property worth in excess of 10 percent of such person's total assets. For the purposes of this paragraph, indirect ownership does not include ownership by a spouse or minor child; and 4. Every individual liability that equals more than the reporting person's net worth; or (b)1. All sources of gross income in excess of $2,500 received during the disclosure period by the person in his or her own name or by any other person for his or her use or benefit, excluding public salary. However, this shall not be construed to require disclosure of a business partner's sources of income. The person reporting shall list such sources in descending order of value with the largest source first; 2. All sources of income to a business entity in excess of 10 percent of the gross income of a business entity in which the reporting person held a material interest and from which he or she received gross income exceeding $5,000 during the disclosure period. The period for computing the gross income of the business entity is the fiscal year of the business entity which ended on, or immediately prior to, the end of the disclosure period of the person reporting; 3. The location or description of real property in this state, except for residence and vacation homes, owned directly or indirectly by the person reporting, when such person owns in excess of 5 percent of the value of such real property, and a general description of any intangible personal http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->,2002->Ch0112->Section 3145: flsenate.gov 32 property worth in excess of $10,000. For the purpose of this paragraph, indirect ownership does not include ownership by a spouse or minor child; and 4. Every liability in excess of $10,000 (4) Each elected constitutional officer, state officer, local officer, and specified state employee shall file a quarterly report of the names of clients represented for a fee or commission, except for appearances in ministerial matters, before agencies at his or her level of government. For the purposes of this part, agencies of government shall be classified as state -level agencies or agencies below state level. Each local officer shall file such report with the supervisor of elections of the county in which the officer is principally employed or is a resident. Each state officer, elected constitutional officer, and specified state employee shall file such report with the commission. The report shall be filed only when a reportable representation is made during the calendar quarter and shall be filed no later than the last day of each calendar quarter, for the previous calendar quarter. Representation before any agency shall be deemed to include representation by such officer or specified state employee or by any partner or associate of the professional firm of which he or she is a member and of which he or she has actual knowledge. For the purposes of this subsection, the term "representation before any agency" does not include appearances before any court or the Deputy Chief Judge of Compensation Claims or judges of compensation claims or representations on behalf of one's agency in one's official capacity. Such term does not include the preparation and filing of forms and applications merely for the purpose of obtaining or transferring a license based on a quota or a franchise of such agency or a license or operation permit to engage in a profession, business, or occupation, so long as the issuance or granting of such license, permit, or transfer does not require substantial discretion, a variance, a special consideration, or a certificate of public convenience and necessity. (5) Each elected constitutional officer and each candidate for such office, any other public officer required pursuant to s. 8, Art. II of the State Constitution to file a full and public disclosure of his or her financial interests, and each state officer, local officer, specified state employee, and candidate for elective public office who is or was during the disclosure period an officer, director, partner, proprietor, or agent, other than a resident agent solely for service of process, of, or owns or owned during the disclosure period a material interest in, any business entity which is granted a privilege to operate in this state shall disclose such facts as a part of the disclosure form filed pursuant to s. 8, Art. II of the State Constitution or this section, as applicable. The statement shall give the name, address, and principal business activity of the business entity and shall state the position held with such business entity or the fact that a material interest is owned and the nature of that interest. (6) Forms for compliance with the disclosure requirements of this section and a current list of persons subject to disclosure shall be created by the commission and provided to each supervisor of elections. The commission and each supervisor of elections shall give notice of disclosure deadlines and delinquencies and distribute forms in the following manner: (a)1. Not later than May 1 of each year, the commission shall prepare a current list of the names and addresses of, and the offices or positions held by, every state officer, local officer, and specified employee. In compiling the list, the commission shall be assisted by each unit of government in providing, at the request of the commission, the name, address, and name of agency of, and the office or position held by, each state officer, local officer, or specified state employee within the respective unit of government. 2. Not later than May 15 of each year, the commission shall provide each supervisor of elections with a current mailing list of all local officers required to file with such supervisor of elections. (b) Not later than 30 days before July 1 of each year, the commission and each supervisor of elections, as appropriate, shall mail a copy of the form prescribed for compliance with subsection (3) and a notice of all applicable disclosure forms and filing deadlines to each person required to file a statement of financial interests. (c) Not later than 30 days after July 1 of each year, the commission and each supervisor of elections shall determine which persons required to file a statement of financial interests in their http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3145: flsenate.gov 33 respective offices have failed to do so and shall send delinquency notices by certified mail to such persons. Each notice shall state that a grace period is in effect until September 1 of the current year; that no investigative or disciplinary action based upon the delinquency will be taken by the agency head or commission if the statement is filed by September 1 of the current year; that, if the statement is not filed by September 1 of the current year, a fine of $25 for each day late will be imposed, up to a maximum penalty of $1,500; for notices sent by a supervisor of elections, that he or she is required by law to notify the commission of the delinquency; and that, if upon the filing of a sworn complaint the commission finds that the person has failed to timely file the statement within 60 days after September 1 of the current year, such person will also be subject to the penalties provided in s. 112. 17. (d) No later than November 15 of each year, the supervisor of elections in each county shall certify to the commission a list of the names and addresses of, and the offices or positions held by, all persons who have failed to timely file the required statements of financial interests. The certification must include the earliest of the dates described in subparagraph (f)1. The certification shall be on a form prescribed by the commission and shall indicate whether the supervisor of elections has provided the disclosure forms and notice as required by this subsection to all persons named on the delinquency list. (e) Statements must be filed not later than 5 p.m. of the due date. However, any statement that is postmarked by the United States Postal Service by midnight of the due date is deemed to have been filed in a timely manner, and a certificate of mailing obtained from and dated by the United States Postal Service at the time of the mailing, or a receipt from an established courier company which bears a date on or before the due date, constitutes proof of mailing in a timely manner. (f) Any person who is required to file a statement of financial interests and whose name is on the commission's mailing list but who fails to timely file is assessed a fine of $25 per day for each day late up to a maximum of $1,500; however, this $1,500 limitation on automatic fines does not limit the civil penalty that may be imposed if the statement is filed more than 60 days after the deadline and a complaint is filed, as provided in s. 112.324. The commission must provide by rule the grounds for waiving the fine and procedures by which each person whose name is on the mailing list and who is determined to have not flied in a timely manner will be notified of assessed fines and may appeal. The rule must provide for and make specific the following: 1. The amount of the fine due is based upon the earliest of the following a. When a statement is actually received by the office. b. When the statement is postmarked. c. When the certificate of mailing is dated. d. When the receipt from an established courier company is dated 2. For a specified state employee or a state officer, upon receipt of the disclosure statement by the commission or upon accrual of the maximum penalty, whichever occurs first, and for a local officer upon receipt by the commission of the certification from the local officer's supervisor of elections pursuant to paragraph (d), the commission shall determine the amount of the fine which is due and shall notify the delinquent person. The notice must include an explanation of the appeal procedure under subparagraph 3. The fine must be paid within 30 days after the notice of payment due is transmitted, unless appeal is made to the commission pursuant to subparagraph 3. The moneys are to be deposited into the General Revenue Fund. 3. Any reporting person may appeal or dispute a fine, based upon unusual circumstances surrounding the failure to file on the designated due date, and may request and is entitled to a hearing before the commission, which may waive the fine in whole or in part for good cause shown. Any such request must be made within 30 days after the notice of payment due is transmitted. In such a case, the reporting person must, within the 30-day period, notify the person designated to review the timeliness of reports in writing of his or her intention to bring the http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3145: flsenate.gov 34 matter before the commission. (g) Any state officer, local officer, or specified employee whose name is not on the mailing list of persons required to file an annual statement of financial interests is not subject to the penalties provided in s. 112.317 or the fine provided in this section for failure to timely file a statement of financial interests in any year in which the omission occurred, but nevertheless is required to file the disclosure statement. (h) The notification requirements and fines of this subsection do not apply to candidates or to the first or final filing required of any state officer, specified employee, or local officer as provided in paragraph (2)(b). (i) Notwithstanding any provision of chapter 120, any fine imposed under this subsection which is not waived by final order of the commission and which remains unpaid more than 60 days after the notice of payment due or more than 60 days after the commission renders a final order on the appeal must be submitted to the Department of Banking and Finance as a claim, debt, or other obligation owed to the state, and the department shall assign the collection of such a fine to a collection agent as provided in s. 17,20, (7)(a) The appointing official or body shall notify each newly appointed local officer, state officer, or specified state employee, not later than the date of appointment, of the officer's or employee's duty to comply with the disclosure requirements of this section. The agency head of each employing agency shall notify each newly employed local officer or specified state employee, not later than the day of employment, of the officer's or employee's duty to comply with the disclosure requirements of this section. The appointing official or body or employing agency head may designate a person to be responsible for the notification requirements of this paragraph. (b) The agency head of the agency of each local officer, state officer, or specified state employee who is required to file a statement of financial interests for the final disclosure period shall notify such persons of their obligation to file the final disclosure and may designate a person to be responsible for the notification requirements of this paragraph. (8) A public officer who has filed a disclosure for any calendar or fiscal year shall not be required to file a second disclosure for the same year or any part thereof, notwithstanding any requirement of this act, except that any public officer who qualifies as a candidate for public office shall file a copy of the disclosure with the officer before whom he or she qualifies as a candidate at the time of qualification. (9) The commission shall adopt rules and forms specifying how a state officer, local officer, or specified state employee may amend his or her statement of financial interests to report information that was not included on the form as originally filed. If the amendment is the subject of a complaint filed under this part, the commission and the proper disciplinary official or body shall consider as a mitigating factor when considering appropriate disciplinary action the fact that the amendment was filed before any complaint or other inquiry or proceeding, while recognizing that the public was deprived of access to information to which it was entitled. History.--s. 5, ch. 74-177; ss. 2, 6, ch. 75-196; s. 2, ch. 76-18; s. 1, ch. 77-174; s. 63, ch. 77- 175; s. 54, ch. 79-40; s. 3, ch. 82-98; S. 2, ch. 83-128; ss. 2, 5, ch. 83-282; s. 3, ch. 84-318; S. 1, ch. 88-316; s. 1, ch. 90-169; s. 5, ch. 90-502; s. 27, ch. 91-46; s. 6, ch. 91-85; s. 6, ch. 91- 292; ss. 5, 13, ch. 94-277; s. 3, ch. 94-340; s. 1410, ch. 95-147; s. 14, ch. 96-410; s. 31, ch. 97-286; s. 17, ch. 99-399; s. 2, ch. 2000-161; s. 3, ch. 2000-243; S. 31, ch. 2000-258; s. 23, ch. 2000-372; s. 3, ch. 2001-91; s. 2, ch. 2001-282. 'Note. --Abolished by s. 3, ch. 2001-170. Welcome • Session • Committees • Senators • Information Centel • Statutes and Constitution Lobbyist Information http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Scarch_String=... 12/18/2002 statutes ->View Statutes->2002->ChO112->Section 3146: flsenate.gov f1senistle.gov View Statutes Select Year: 2002 Search Statutes Constitution The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS 112.3146 Public records. --The statements required by ss. 112 313, 112 3145, 112,3148, and 112.3149 shall be public records within the meaning of s. 119.01. History.--s. 6, ch. 74-177; s. 6, ch. 90-502; s. 7, ch. 91-85. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The Information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright ©2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3147: flsenate.gov E0 View Statutes Search Statutes Constitution Laws of Florida Order Select Year: 2002 In The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Cbapter AND RECORDS GENERAL PROVISIONS 112.3147 Forms.-- (1) All information required to be furnished by ss. 112.313. 112.3143, 112.3144, 112 3145, 112.3148, and 112.3149 and by s. 8, Art. II of the State Constitution shall be on forms prescribed by the Commission on Ethics. (2)(a) With respect to reporting assets valued in excess of $1,000 on forms prescribed pursuant to S. 112.3144 which the reporting individual holds jointly with another person, the amount reported shall be based on the reporting individual's legal percentage of ownership in the property, except that assets held jointly with the reporting individual's spouse shall be reported at 100 percent of the value of the asset. For purposes of this subsection, a reporting individual is deemed to own an interest in a partnership which corresponds to the reporting individual's interest in the capital or equity of the partnership. (b)1. With respect to reporting liabilities valued in excess of $1,000 on forms prescribed pursuant to s. 112.3144 for which the reporting individual is jointly and severally liable, the amount reported shall be based upon the reporting individual's percentage of liability rather than the total amount of the liability, except, a joint and several liability with the reporting individual's spouse for a debt which relates to property owned by both as tenants by the entirety shall be reported at 100 percent of the total amount owed. 2. A separate section of the form shall be created to provide for the reporting of the amounts of joint and several liability of the reporting individual not otherwise reported in paragraph (a). History.--s. 7, ch. 74-177; s. 3, ch. 76-18; s. 7, ch. 90-502; s. 8, ch. 91-85; s. 12, ch. 2000- 243. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright @2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate. gov/Statutes/index.cfm?App_mode=Display_Statute&Search_Stting=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3148: flsenate.gov ftsefoote.gov View Statutes Select Year: 2002 Search Statutes Constitution The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS 112.3148 Reporting and prohibited receipt of gifts by individuals filing full or limited public disclosure of financial interests and by procurement employees.-- (1) The provisions of this section do not apply to gifts solicited or accepted by a reporting individual or procurement employee from a relative. (2) As used in this section: (a) "Immediate family" means any parent, spouse, child, or sibling. (b)1. "Lobbyist" means any natural person who, for compensation, seeks, or sought during the preceding 12 months, to influence the governmental decisionmaking of a reporting individual or procurement employee or his or her agency or seeks, or sought during the preceding 12 months, to encourage the passage, defeat, or modification of any proposal or recommendation by the reporting individual or procurement employee or his or her agency. 2. With respect to an agency that has established by rule, ordinance, or law a registration process for persons seeking to influence decisionmaking or to encourage the passage, defeat, or modification of any proposal or recommendation by such agency or an employee or official of the agency, the term "lobbyist" includes only a person who is required to be registered as a lobbyist in accordance with such rule, ordinance, or law or who was during the preceding 12 months required to be registered as a lobbyist in accordance with such rule, ordinance, or law. At a minimum, such a registration system must require the registration of, or must designate, persons as "lobbyists" who engage in the same activities as require registration to lobby the Legislature pursuant to s. 11.045. (c) "Person" includes individuals, firms, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. (d) "Reporting individual" means any individual, including a candidate upon qualifying, who is required by law, pursuant to s. 8, Art. II of the State Constitution or s. 112.3145, to file full or limited public disclosure of his or her financial interests or any individual who has been elected to, but has yet to officially assume the responsibilities of, public office. For purposes of implementing this section, the "agency" of a reporting individual who is not an officer or employee in public service is the agency to which the candidate seeks election, or in the case of an individual elected to but yet to formally take office, the agency in which the individual has been elected to serve. (e) "Procurement employee" means any employee of an officer, department, board, commission, or council of the executive branch or judicial branch of state government who participates through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, or auditing or in any other advisory capacity in the procurement of contractual services or commodities as defined in s. 287 012, if the cost of such services or commodities exceeds $1,000 in any year. http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3148: flsenate.gov 38 (3) A reporting individual or procurement employee is prohibited from soliciting any gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who'lobbies the reporting individual's or procurement employee's agency, or the partner, firm, employer, or principal of such lobbyist, where such gift is for the personal benefit of the reporting individual or procurement employee, another reporting individual or procurement employee, or any member of the immediate family of a reporting individual or procurement employee. (4) A reporting individual or procurement employee or any other person on his or her behalf is prohibited from knowingly accepting, directly or indirectly, a gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or directly or indirectly on behalf of the partner, firm, employer, or principal of a lobbyist, if he or she knows or reasonably believes that the gift has a value in excess of $100; however, such a gift may be accepted by such person on behalf of a governmental entity or a charitable organization. If the gift is accepted on behalf of a governmental entity or charitable organization, the person receiving the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange for the transfer of custody and ownership of the gift. (5)(a) A political committee or a committee of continuous existence, as defined in s. 11; a lobbyist who lobbies a reporting individual's or procurement employee's agency; the partner, firm, employer, or principal of a lobbyist; or another on behalf of the lobbyist or partner, firm, principal, or employer of the lobbyist is prohibited from giving, either directly or indirectly, a gift that has a value in excess of $100 to the reporting individual or procurement employee or any other person on his or her behalf; however, such person may give a gift having a value in excess of $100 to a reporting individual or procurement employee if the gift is intended to be transferred to a governmental entity or a charitable organization. (b) However, a person who is regulated by this subsection, who is not regulated by subsection (6), and who makes, or directs another to make, an individual gift having a value in excess of $25, but not in excess of $100, other than a gift which the donor knows will be accepted on behalf of a governmental entity or charitable organization, must file a report on the last day of each calendar quarter, for the previous calendar quarter in which a reportable gift is made. The report shall be filed with the Commission on Ethics, except with respect to gifts to reporting individuals of the legislative branch, in which case the report shall be filed with the Division of Legislative Information Services in the Office of Legislative Services. The report must contain a description of each gift, the monetary value thereof, the name and address of the person making such gift, the name and address of the recipient of the gift, and the date such gift is given. In addition, when a gift is made which requires the filing of a report under this subsection, the donor must notify the intended recipient at the time the gift is made that the donor, or another on his or her behalf, will report the gift under this subsection. Under this paragraph, a gift need not be reported by more than one person or entity. (6)(a) Notwithstanding the provisions of subsection (5), an entity of the legislative or judicial branch, a department or commission of the executive branch, a water management district created pursuant to s. 73 3.069, Tri-County Commuter Rail Authority, the Technological Research and Development Authority, a county, a municipality, an airport authority, or a school board may give, either directly or indirectly, a gift having a value in excess of $100 to any reporting individual or procurement employee if a public purpose can be shown for the gift; and a direct -support organization specifically authorized by law to support a governmental entity may give such a gift to a reporting individual or procurement employee who is an officer or employee of such governmental entity. (b) Notwithstanding the provisions of subsection (4), a reporting individual or procurement employee may accept a gift having a value in excess of $100 from an entity of the legislative or judicial branch, a department or commission of the executive branch, a water management district created pursuant to s. 373.069, Tri-County Commuter Rail Authority, the Technological Research and Development Authority, a county, a municipality, an airport authority, or a school board if a public purpose can be shown for the gift; and a reporting individual or procurement employee who is an officer or employee of a governmental entity supported by a direct -support organization specifically authorized by law to support such governmental entity may accept such a gift from http://www.flsenate.gov/Statuteslindex.cfm?App_mode=Display_Statute&Search_String=... 12/ 18/2002 statutes ->View Statutes->2002->Ch0112->Section 3148: flsenate.gov 39 such direct -support organization. (c) No later than March 1 of each year, each governmental entity or direct -support organization specifically authorized by law to support a governmental entity which has given a gift to a reporting individual or procurement employee under paragraph (a) shall provide the reporting individual or procurement employee with a statement of each gift having a value in excess of $100 given to such reporting individual or procurement employee by the governmental entity or direct - support organization during the preceding calendar year. Such report shall contain a description of each gift, the date on which the gift was given, and the value of the total gifts given by the governmental entity or direct -support organization to the reporting individual or procurement employee during the calendar year for which the report is made. A governmental entity may provide a single report to the reporting individual or procurement employee of gifts provided by the governmental entity and any direct -support organization specifically authorized by law to support such governmental entity. (d) No later than July 1 of each year, each reporting individual or procurement employee shall file a statement listing each gift having a value in excess of $100 received by the reporting individual or procurement employee, either directly or indirectly, from a governmental entity or a direct - support organization specifically authorized by law to support a governmental entity. The statement shall list the name of the person providing the gift, a description of the gift, the date or dates on which the gift was given, and the value of the total gifts given during the calendar year for which the report is made. The reporting individual or procurement employee shall attach to such statement any report received by him or her in accordance with paragraph (c), which report shall become a public record when filed with the statement of the reporting individual or procurement employee. The reporting individual or procurement employee may explain any differences between the report of the reporting individual or procurement employee and the attached reports. The annual report filed by a reporting individual shall be filed with the financial disclosure statement required by either s. 8, Art. II of the State Constitution or s. 112.3145, as applicable to the reporting individual. The annual report filed by a procurement employee shall be filed with the Commission on Ethics. (7)(a) The value of a gift provided to a reporting individual or procurement employee shall be determined using actual cost to the donor, less taxes and gratuities, except as otherwise provided in this subsection, and, with respect to personal services provided by the donor, the reasonable and customary charge regularly charged for such service in the community in which the service is provided shall be used. If additional expenses are required as a condition precedent to eligibility of the donor to purchase or provide a gift and such expenses are primarily for the benefit of the donor or are of a charitable nature, such expenses shall not be included in determining the value of the gift. (b) Compensation provided by the donee to the donor, if provided within 90 days after receipt of the gift, shall be deducted from the value of the gift in determining the value of the gift. (c) If the actual gift value attributable to individual participants at an event cannot be determined, the total costs shall be prorated among all invited persons, whether or not they are reporting individuals or procurement employees. (d) Transportation shall be valued on a round-trip basis unless only one-way transportation is provided. Round-trip transportation expenses shall be considered a single gift. Transportation provided in a private conveyance shall be given the same value as transportation provided in a comparable commercial conveyance. (e) Lodging provided on consecutive days shall be considered a single gift. Lodging in a private residence shall be valued at the per diem rate provided in s. 112.061(6)(a)1. less the meal allowance rate provided in s. 112.061(6)(b). (f) Food and beverages which are not consumed at a single sitting or meal and which are provided on the same calendar day shall be considered a single gift, and the total value of all food and beverages provided on that date shall be considered the value of the gift. Food and beverage consumed at a single sitting or meal shall be considered a single gift, and the value of the food http://www.flsenate. gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3148: flsenate.gov Ertl and beverage provided at that sitting or meal shall be considered the value of the gift. (g) Membership dues paid to the same organization during any 12-month period shall be considered a single gift. (h) Entrance fees, admission fees, or tickets shall be valued on the face value of the ticket or fee, or on a daily or per event basis, whichever is greater. (i) Except as otherwise specified in this section, a gift shall be valued on a per occurrence basis. (j) The value of a gift provided to several individuals may be attributed on a pro rata basis among all of the individuals. If the gift is food, beverage, entertainment, or similar items, provided at a function for more than 10 people, the value of the gift to each individual shall be the total value of the items provided divided by the number of persons invited to the function, unless the items are purchased on a per person basis, in which case the value of the gift to each person is the per person cost. (k) The value of a gift of an admission ticket shall not include that portion of the cost which represents a charitable contribution, if the gift is provided by the charitable organization. (8)(a) Each reporting individual or procurement employee shall file a statement with the Commission on Ethics on the last day of each calendar quarter, for the previous calendar quarter, containing a list of gifts which he or she believes to be in excess of $100 in value, if any, accepted by him or her, for which compensation was not provided by the donee to the donor within 90 days of receipt of the gift to reduce the value to $100 or less, except the following: 1. Gifts from relatives. 2. Gifts prohibited by subsection (4) or s. 112.313(4). 3. Gifts otherwise required to be disclosed by this section. (b) The statement shall include: 1. A description of the gift, the monetary value of the gift, the name and address of the person making the gift, and the dates thereof. If any of these facts, other than the gift description, are unknown or not applicable, the report shall so state. 2. A copy of any receipt for such gift provided to the reporting individual or procurement employee by the donor. (c) The statement may include an explanation of any differences between the reporting individual's or procurement employee's statement and the receipt provided by the donor. (d) The reporting individual's or procurement employee's statement shall be sworn to by such person as being a true, accurate, and total listing of all such gifts. (e) If a reporting individual or procurement employee has not received any gifts described in paragraph (a) during a calendar quarter, he or she is not required to file a statement under this subsection for that calendar quarter. (9) A person, other than a lobbyist regulated under s. 11.045, who violates the provisions of subsection (5) commits a noncriminal infraction, punishable by a fine of not more than $5,000 and by a prohibition on lobbying, or employing a lobbyist to lobby, before the agency of the reporting individual or procurement employee to which the gift was given in violation of subsection (5), for a period of not more than 24 months. The state attorney, or an agency, if otherwise authorized, may initiate an action to impose or recover a fine authorized under this section or to impose or http:llwww.flsenate.gov/Statuteslindex.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3148: flsenate.gov 41 enforce a limitation on lobbying provided in this section (10) A member of the Legislature may request an advisory opinion from the general counsel of the house of which he or she is a member as to the application of this section to a specific situation. The general counsel shall issue the opinion within 10 days after receiving the request. The member of the Legislature may reasonably rely on such opinion. History.--s. 2, ch. 89-380; s. 8, ch. 90-502; s. 9, ch. 91-85; s. 7, ch. 91-292; s. 6, ch. 94-277; s. 1411, ch. 95-147; s. 2, ch. 96-328; s. 8, ch. 98-136; s. 4, ch. 2000-243; s. 32, ch. 2000-258. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright ©2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->ChO112->Section 3149: flsenate.gov 42 View Statutes Search Statutes Constitution Laws of Florida Order Select Year: ifd In The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS 112.3149 Solicitation and disclosure of honoraria.-- (1) As used in this section: (a) "Honorarium" means a payment of money or anything of value, directly or indirectly, to a reporting individual or procurement employee, or to any other person on his or her behalf, as consideration for: 1. A speech, address, oration, or other oral presentation by the reporting individual or procurement employee, regardless of whether presented in person, recorded, or broadcast over the media. 2. A writing by the reporting individual or procurement employee, other than a book, which has been or is intended to be published. The term "honorarium" does not include the payment for services related to employment held outside the reporting individual's or procurement employee's public position which resulted in the person becoming a reporting individual or procurement employee, any ordinary payment or salary received in consideration for services related to the reporting individual's or procurement employee's public duties, a campaign contribution reported pursuant to chapter 106, or the payment or provision of actual and reasonable transportation, lodging, and food and beverage expenses related to the honorarium event, including any event or meeting registration fee, for a reporting individual or procurement employee and spouse. (b) "Person" includes individuals, firms, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. (c) "Reporting individual" means any individual who is required by law, pursuant to s. B, Art. II of the State Constitution or s. 112.3145, to file a full or limited public disclosure of his or her financial interests. (d)1. "Lobbyist" means any natural person who, for compensation, seeks, or sought during the preceding 12 months, to influence the governmental decisionmaking of a reporting individual or procurement employee or his or her agency or seeks, or sought during the preceding 12 months, to encourage the passage, defeat, or modification of any proposal or recommendation by the reporting individual or procurement employee or his or her agency. 2. With respect to an agency that has established by rule, ordinance, or law a registration process for persons seeking to influence decisionmaking or to encourage the passage, defeat, or modification of any proposal or recommendation by such agency or an employee or official of the agency, the term "lobbyist" includes only a person who is required to be registered as a lobbyist in accordance with such rule, ordinance, or law or who was during the preceding 12 months required to be registered as a lobbyist in accordance with such rule, ordinance, or law. At a minimum, such a registration system must require the registration of, or must designate, persons as "lobbyists" http://www.flsenate.gov/Statuteslindex.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3149: flsenate.gov 43 who engage in the same activities as require registration to lobby the Legislature pursuant to s. 11.045. (e) "Procurement employee" means any employee of an officer, department, board, commission, or council of the executive branch or judicial branch of state government who participates through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, or auditing or in any other advisory capacity in the procurement of contractual services or commodities as defined in s. 287.012, if the cost of such services or commodities exceeds $1,000 in any year. (2) A reporting individual or procurement employee is prohibited from soliciting an honorarium which is related to the reporting individual's or procurement employee's public office or duties. (3) A reporting individual or procurement employee is prohibited from knowingly accepting an honorarium from a political committee or committee of continuous existence, as defined in s. 106.011, from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or from the employer, principal, partner, or firm of such a lobbyist. (4) A political committee or committee of continuous existence, as defined in s. 106,011, a lobbyist who lobbies a reporting individual's or procurement employee's agency, or the employer, principal, partner, or firm of such a lobbyist is prohibited from giving an honorarium to a reporting individual or procurement employee. (5) A person who is prohibited by subsection (4) from paying an honorarium to a reporting individual or procurement employee, but who provides a reporting individual or procurement employee, or a reporting individual or procurement employee and his or her spouse, with expenses related to an honorarium event, shall provide to the reporting individual or procurement employee, no later than 60 days after the honorarium event, a statement listing the name and address of the person providing the expenses, a description of the expenses provided each day, and the total value of the expenses provided for the honorarium event. (6) A reporting individual or procurement employee who receives payment or provision of expenses related to any honorarium event from a person who is prohibited by subsection (4) from paying an honorarium to a reporting individual or procurement employee shall publicly disclose on an annual statement the name, address, and affiliation of the person paying or providing the expenses; the amount of the honorarium expenses; the date of the honorarium event; a description of the expenses paid or provided on each day of the honorarium event; and the total value of the expenses provided to the reporting individual or procurement employee in connection with the honorarium event. The annual statement of honorarium expenses shall be filed by July 1 of each year for such expenses received during the previous calendar year. The reporting individual or procurement employee shall attach to the annual statement a copy of each statement received by him or her in accordance with subsection (5) regarding honorarium expenses paid or provided during the calendar year for which the annual statement is filed. Such attached statement shall become a public record upon the filing of the annual report. The annual statement of a reporting individual shall be filed with the financial disclosure statement required by either s. 8, Art. II of the State Constitution or s. 112.3145, as applicable to the reporting individual. The annual statement of a procurement employee shall be filed with the Commission on Ethics. (7) A person, other than a lobbyist regulated under s. 11.045, who violates the provisions of subsection (4) commits a noncriminal infraction, punishable by a fine of not more than $5,000 and by a prohibition on lobbying, or employing a lobbyist to lobby, before the agency of the reporting individual or procurement employee to whom the honorarium was paid in violation of subsection (4), for a period of not more than 24 months. The state attorney, or an agency, if otherwise authorized, may initiate an action to impose or recover a fine authorized under this section or to impose or enforce a limitation on lobbying provided in this section. (8) A member of the Legislature may request an advisory opinion from the general counsel of the house of which he or she is a member as to the application of this section to a specific situation. The general counsel shall issue the opinion within 10 days after receiving the request. The http://www.flsenate. gov/Statuteslindex.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3149: flsenate.gov 44 member of the Legislature may reasonably rely on such opinion. History.--s. 9, ch. 90-502; s. 7, ch. 94-277; s. 1412, ch. 95-147; s. 5, ch. 2000-243; S. 33, ch. 2000-258. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright ©2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3151: flsenate.gov 45 View Statutes Search Statutes Constitution Laws of Florida Order Select Year: 2002 The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chppter AND RECORDS GENERAL PROVISIONS 112.3151 Extensions of time for filing disclosure. --The Commission on Ethics may grant, for good cause, on an individual basis, an extension of time for filing of any disclosure required under the provisions of this part or s. 8(a), Art. II of the State Constitution. However, no extension may extend the filing deadline to a date within 20 days before a primary election. The commission may delegate to its chair the authority to grant any extension of time which the commission itself may grant under this section; however, no extension of time granted by the chair may exceed 45 days. Extensions of time granted under this section shall be exempt from the provisions of chapter 120. History.--s. 4, ch. 83-282; s. 700, ch. 95-147. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The Information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright ©2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12118/2002 statutes ->View Statutes->2002->Ch0112->Section 316: flsenate.gov m View Statutes Search Statutes Constitution Laws of Florida Order Select Year: 2002 is The 2002 Florida Statutes Title_?5 Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Cha Pter AND RECORDS GENERAL PROVISIONS 112.316 Construction. --It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved. History.--s. 6, ch. 67-469; s. 2, ch. 69-335; s. 701, ch. 95-141. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The Information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright ©2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 317: flsenate.gov 47 e View Statutes Search Statutes Constitution Laws of Florida Order Select Year: 2002 The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chanter AND RECORDS GENERAL PROVISIONS 112.317 Penalties.-- (1) Violation of any provision of this part, including, but not limited to, any failure to file any disclosures required by this part or violation of any standard of conduct imposed by this part, or violation of any provision of s. 8, Art. II of the State Constitution, in addition to any criminal penalty or other civil penalty involved, shall, pursuant to applicable constitutional and statutory procedures, constitute grounds for, and may be punished by, one or more of the following: (a) In the case of a public officer: 1. Impeachment. 2. Removal from office. 3. Suspension from office. 4. Public censure and reprimand. 5. Forfeiture of no more than one-third salary per month for no more than 12 months. 6. A civil penalty not to exceed $10,000. 7. Restitution of any pecuniary benefits received because of the violation committed. (b) In the case of an employee or a person designated as a public officer by this part who otherwise would be deemed to be an employee: 1. Dismissal from employment. 2. Suspension from employment for not more than 90 days without pay. 3. Demotion. 4. Reduction in salary level. 5. Forfeiture of no more than one-third salary per month for no more than 12 months. 6. A civil penalty not to exceed $10,000. 7. Restitution of any pecuniary benefits received because of the violation committed. http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/ 18/2002 statutes ->View Statutes->2002->Ch0112->Section 317: flsenate.gov 48 8. Public censure and reprimand. (c) In the case of a candidate who violates the provisions of this part or s. 8(a) and (i), Art. II of the State Constitution: 1. Disqualification from being on the ballot. 2. Public censure. 3. Reprimand. 4. A civil penalty not to exceed $10,000 (d) In the case of a former public officer or employee who has violated a provision applicable to former officers or employees or whose violation occurred prior to such officer's or employee's leaving public office or employment: 1. Public censure and reprimand. 2. A civil penalty not to exceed $10,000. 3. Restitution of any pecuniary benefits received because of the violation committed (2) In any case in which the commission finds a violation of this part or of s. 8, Art. II of the State Constitution and recommends a civil penalty or restitution penalty, the Attorney General shall bring a civil action to recover such penalty. No defense may be raised in the civil action to enforce the civil penalty or order of restitution that could have been raised by judicial review of the administrative findings and recommendations of the commission by certiorari to the district court of appeal. (3) The penalties prescribed in this part shall not be construed to limit or to conflict with: (a) The power of either house of the Legislature to discipline its own members or impeach a public officer. (b) The power of agencies to discipline officers or employees. (4) Any violation of this part or of s, 8, Art. II of the State Constitution by a public officer shall constitute malfeasance, misfeasance, or neglect of duty in office within the meaning of s. 7, Art. IV of the State Constitution. (5) By order of the Governor, upon recommendation of the commission, any elected municipal officer who violates any provision of this part or of s. 8, Art. II of the State Constitution may be suspended from office and the office filled by appointment for the period of suspension. The suspended officer may at any time before removal be reinstated by the Governor. The Senate may, in proceedings prescribed by law, remove from office, or reinstate, the suspended official, and for such purpose the Senate may be convened in special session by its President or by a majority of its membership. (6) Any person who willfully discloses, or permits to be disclosed, his or her intention to file a complaint, the existence or contents of a complaint which has been filed with the commission, or any document, action, or proceeding in connection with a confidential preliminary investigation of the commission, before such complaint, document, action, or proceeding becomes a public record as provided herein commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (7) In any case in which the commission finds probable cause to believe that a complainant has http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/ 18/2002 statutes ->View Statutes->2002->Ch0112->Section 317: flsenate.gov 49 committed perjury in regard to any document filed with, or any testimony given before, the commission, it shall refer such evidence to the appropriate law enforcement agency for prosecution and taxation of costs. (8) In any case in which the commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part, the complainant shall be liable for costs plus reasonable attorney's fees incurred in the defense of the person complained against, including the costs and reasonable attorney's fees incurred in proving entitlement to and the amount of costs and fees. If the complainant fails to pay such costs and fees voluntarily within 30 days following such finding by the commission, the commission shall forward such information to the Department of Legal Affairs, which shall bring a civil action in a court of competent jurisdiction to recover the amount of such costs and fees awarded by the commission. History.--s. 7, ch. 67-469; s. 1, ch. 70-144; s. 2, ch. 74-176; s. 8, ch. 74-177; s. 2, ch. 75-199; s. 7, ch. 75-208; s. 5, ch. 82-98; s. 10, ch. 90-502; s. 10, ch. 91-85; s. 8, ch. 94-277; s. 1413, ch. 95-147; s. 1, ch. 95-354; s. 13, ch. 2000-151. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright @2000-2002 State of Florida. Contact us. Privacy Statemen http://www.flsenate. gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/ 18/2002 statutes ->View Statutes->2002->ChO 1 12->Section 3173: flsenate.gov 50 fluffieft'gov View Statutes Select Year: 2002; Search Statutes Constitution Laws of Florida The 2002 Florida Statutes Order Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS 112.3173 Felonies involving breach of public trust and other specified offenses by public officers and employees; forfeiture of retirement benefits.-- (1) INTENT. --It is the intent of the Legislature to implement the provisions of s. 8(d), Art. II of the State Constitution. (2) DEFINITIONS. --As used in this section, unless the context otherwise requires, the term: (a) "Conviction" and "convicted" mean an adjudication of guilt by a court of competent jurisdiction; a plea of guilty or of nolo contendere; a jury verdict of guilty when adjudication of guilt is withheld and the accused is placed on probation; or a conviction by the Senate of an impeachable offense. (b) "Court" means any state or federal court of competent jurisdiction which is exercising its jurisdiction to consider a proceeding involving the alleged commission of a specified offense. (c) "Public officer or employee" means an officer or employee of any public body, political subdivision, or public instrumentality within the state. (d) "Public retirement system" means any retirement system or plan to which the provisions of part VII of this chapter apply. (e) "Specified offense" means: 1. The committing, aiding, or abetting of an embezzlement -of public funds; 2. The committing, aiding, or abetting of any theft by a public officer or employee from his or her employer; 3. Bribery in connection with the employment of a public officer or employee; 4. Any felony specified in chapter 838, except ss. 838.15 and 838.16; 5. The committing of an impeachable offense; or 6. The committing of any felony by a public officer or employee who, willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position. (3) FORFEITURE. --Any public officer or employee who is convicted of a specified offense http://www.flsenate.govIStatuteslindex.cfm?App_mode=Display_Statute&Search_String=... 12/ 18/2002 statutes ->View Statutes->2002->Ch0112>Section 3173: flsenate.gov 51 committed prior to retirement, or whose office or employment is terminated by reason of his or her admitted commission, aid, or abetment of a specified offense, shall forfeit all rights and benefits under any public retirement system of which he or she is a member, except for the return of his or her accumulated contributions as of the date of termination. (4) NOTICE. -- (a) The clerk of a court in which a proceeding involving a specified offense is being conducted against a public officer or employee shall furnish notice of the proceeding to the Commission on Ethics. Such notice is sufficient if it is in the form of a copy of the indictment, information, or other document containing the charges. In addition, if a verdict of guilty is returned by a jury or by the court trying the case without a jury, or a plea of guilty or of nolo contendere is entered in the court by the public officer or employee, the clerk shall furnish a copy thereof to the Commission on Ethics. (b) The Secretary of the Senate shall furnish to the Commission on Ethics notice of any proceeding of impeachment being conducted by the Senate. In addition, if such trial results in conviction, the Secretary of the Senate shall furnish notice of the conviction to the commission. (c) The employer of any member whose office or employment is terminated by reason of his or her admitted commission, aid, or abetment of a specified offense shall forward notice thereof to the commission. (d) The Commission on Ethics shall forward any notice and any other document received by it pursuant to this subsection to the governing body of the public retirement system of which the public officer or employee is a member or from which the public officer or employee may be entitled to receive a benefit. When called on by the Commission on Ethics, the Department of Management Services shall assist the commission in identifying the appropriate public retirement system. (S) FORFEITURE DETERMINATION. -- (a) Whenever the official or board responsible for paying benefits under a public retirement system receives notice pursuant to subsection (4), or otherwise has reason to believe that the rights and privileges of any person under such system are required to be forfeited under this section, such official or board shall give notice and hold a hearing in accordance with chapter 120 for the purpose of determining whether such rights and privileges are required to be forfeited. If the official or board determines that such rights and privileges are required to be forfeited, the official or board shall order such rights and privileges forfeited. (b) Any order of forfeiture of retirement system rights and privileges is appealable to the district court of appeal. (c) The payment of retirement benefits ordered forfeited, except payments drawn from nonemployer contributions to the retiree's account, shall be stayed pending an appeal as to a felony conviction. If such conviction is reversed, no retirement benefits shall be forfeited. If such conviction is affirmed, retirement benefits shall be forfeited as ordered in this section. (d) If any person's rights and privileges under a public retirement system are forfeited pursuant to this section and that person has received benefits from the system in excess of his or her accumulated contributions, such person shall pay back to the system the amount of the benefits received in excess of his or her accumulated contributions. If he or she fails to pay back such amount, the official or board responsible for paying benefits pursuant to the retirement system or pension plan may bring an action in circuit court to recover such amount, plus court costs. (6) FORFEITURE NONEXCLUSIVE. -- (a) The forfeiture of retirement rights and privileges pursuant to this section is supplemental to http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/18/2002 statutes ->View Statutes->2002->Ch0112->Section 3173: flsenate.gov 52 any other forfeiture requirements provided by law (b) This section does not preclude or otherwise limit the Commission on Ethics in conducting under authority of other law an independent investigation of a complaint which it may receive against a public officer or employee involving a specified offense. History.--s. 14, ch. 84-266; s. 4, ch. 90-301; s. 44, ch. 92-279; s. 55, ch. 92-326; s. 22, ch. 94- 249; s. 1414, ch. 95-147; s. 13, ch. 99-255. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright ©2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/ 18/2002 statutes ->View Statutes->2002->ChO112->Section 3175: flsenate.gov 53 y ,f -i'View Statutes Search Statutes ii` Constitution Laws of • •. Order Select Year: 11 "_ The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS 112.3175 Remedies; contracts voidable.-- (1) Any contract that has been executed in violation of this part is voidable: (a) By any party to the contract. (b) In any circuit court, by any appropriate action, by: 1. The commission. 2. The Attorney General. 3. Any citizen materially affected by the contract and residing in the jurisdiction represented by the officer or agency entering into such contract. (2) Any contract that has been executed in violation of this part is presumed void with respect to any former employee or former public official of a state agency and is voidable with respect to any private -sector third party who employs or retains in any capacity such former agency employee or former public official. History.--s. 8, ch. 75-208; s. 2, ch. 2001-266. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright ©2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statuteslindex.cfm?App_mode=Display_Statute&Search_String=... 12118/2002 statutes ->View Statutes->2002->ChO112->Section 326: flsenate.gov 1 54 View Statutes Search Statutes Constitution Laws of Florida Order Select Year: 2002 j in The 2002 Florida Statutes Title X Chapter 112 View Entire PUBLIC OFFICERS, EMPLOYEES, PUBLIC OFFICERS AND EMPLOYEES: Chapter AND RECORDS GENERAL PROVISIONS 112.326 Additional requirements by political subdivisions and agencies not prohibited.- -Nothing in this act shall prohibit the governing body of any political subdivision, by ordinance, or agency, by rule, from imposing upon its own officers and employees additional or more stringent standards of conduct and disclosure requirements than those specified in this part, provided that those standards of conduct and disclosure requirements do not otherwise conflict with the provisions of this part. History.--s. 5, ch. 75-196; s. 12, ch. 94-277. Welcome • Session • Committees • Senators • Information Center • Statutes and Constitution Lobbyist Information Disclaimer: The Information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright ©2000-2002 State of Florida. Contact us. Privacy Statement http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=... 12/ 18/2002 55 u ETHICS COMPLAINT PROCESS 1. Complaint Filed 2 Determination of Legal Sufficiency of No Legal Sufficiency Commission Reviews No 1 3. investigation I 4. Advocate Recommendation of Recommendation of No Probable Cause Probable Cause 5. Commission Reviews No Probable Cause Probable Cause 6a. Settlement 6b. Public Hearing 7a. Commission Reviews Hearing Officer Rejects Accepts Violation No Violation 7b. Final Action by Commission Violation Found Penalty Recommended No Violation 8. Governor, Speaker, President or Supreme Court ETHICS COMPLAINT PROCESS 56 1. Complaint Filed For the Ethics Commission to investigate, there must be a sworn Complaint. Complaints are confidential, unless confidentiality is waived by the Respondent, until a determination as to probable cause is trade or until the Compliant is dismissed for legal insufficiency. 2. Determination of Legal Sufficiency Ethics Commission attorneys review the complaint for legal sufficiency. Recommendations of sufficiency proceed to investigation. Where there is a recommendation that the Complaint is not legally sufficient, that recommendation is reviewed by the Commission. If the recommendation is accepted, the Complaint is dismissed. 3. Investigation Ethics Commission investigators gather all information related to the Complaint. 4. Advocate When the investigation is complete, it is forwarded to the Commission's "Advocate" for a recommendation as to probable cause. The Advocate is an employee of the Attorney General's Office, representing'the Commission in its prosecutorial role. 5. Commission Review on Probable Cause The Commission can reject or accept the Advocate's recommendation. Once the Commission renders its written order tither finding probable cause or dismissing the Complaint, the case becomes public. If the Commission finds probable cause, the case can either be settled or go to hearing. 6a. Settlements Settlements, -or "Joint Stipulations," are negotiated between the Respondent and the Advocate. 7a. Commission Review of Settlements The Commission is not bound to accept proposed settlements. If the Commission approves the settlement, the case goes to the Speaker of the House, President of the Senate, Governor, or Supreme Court - whichever is the entity authorized to impose the recommended penalty. If the Commission rejects the settlement, the parties can either try again or go to hearing. 6b. Public Hearing Hearings are held before a hearing officer assigned by the Division of Administrative Hearings. They are usually held in the city where the Respondent lives, and are conducted like non -jury trials. The Hearing Officer issues a Recommended Order. 7b. Final Action by Commission The parties may file written exceptions (objections) asking that the Ethics Commission reject or modify the Heating Officer's Recommended Order. Exceptions are argued to the full Commission. If the Commission finds a violation, the case goes to the entity authorized to impose the penalty. If it finds no violation, the complaint is dismissed. 8. Imposition of Penalty The Ethics Commission is the final arbiter (subject to appeal) of whether violation of the Code of Ethics has occurred, but it has no authority to impose a penalty. The Commission sends its report and recommendation to the Speaker of the House, Senate President, Governor, or Supreme Court for imposition of penalty. 61I 4 ORDINANCE NO. 99-9? HER 1999 AN ORDINANCE PROVIDING FOR TILE RECEIVED ESTABLISIIMENT OF MORE STRINGENT LOCAL n Clerk ETHICS STANDARDS AND FOR ENFORCEMENT sir of Board THEREOF; PROVIDING FOR TITLE AND CITATION; 7_ �' ••�_ PROVIDING FOR FINDINGS; PROVIDING FOR DEFINITIONS; PROVIDING FOR PROIII131TED RECEIPT OF GIFTS BY INDIVIDUALS FILING FULL OR LIMITED PUBLIC DISCLOSURE OF FINANCIAL INTERESTS AND BY PROCUREMENT EMPLOYEES; PROVIDING FOR ,.. �= o LOBBYIST REGISTRATION; PROVIDING FOIL, POST- z EMPLOYMENT RESTRICTIONS; PROVIDING FOR SUPPLEMENTAL PROVISIONS; PROVIDING FOR PENALTIES; PROVIDING FOIL INCLUSION IN TILE CODE OF LAWS AND ORDINANCES; PROVIDING Foil CONFLICT AND SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Chapter 112, Part 11I, Florida Statutes, establishes a code of ethics and provides standards of conduct for public officers and employees; and WHEREAS, Section 125.01(1), Florida Statutes, authorizes the governing body of a county to adopt ordinances mid resolutions necessary for the exercise or its powers and to prescribe fines and penalties for the violation of ordinances in accordance with the law; and WHEREAS, the Collier County Board of County Commissioners ("Board") appointed an Ad Hoc Ethics Standards Review Committee ("Committee") on June 16, 1998 by Resolution No. 98-186; and WHEREAS, said Committee met, discussed and presented a report to the Board on September 15, 1998, recommending that ilia Board adopt a local ethics code; and WHEREAS, the Board desires to adopt a local ethics law that will complement the Slate standards set forth in Chapter 112, Florida Statutes, as well as create more efficient local enforcement and provide additional requirements that will serve to promote and protect the public's trust in their local government. WHEREAS, the Board intends that the standards set forth in this ordinance shall be more stringent said in addition to those established in Chapter 112, Part III, Florida Statutes, as authorized by Section 112.326, F.S. NOW, THEREFORE, .BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA that; FY SECTION ONE: TITLE AND CITATION. This Ordinance shall be known and cited as the "Collier County Ethics Ordinance." SECTION TWO: FINDINGS. 1. The report submitted to the Collier County Board of County Commissioners ("Board') by the Ad Hoc Ethics Standards Review Committee ("Committee") recommends the adoption of a local ethics code. 2. The Board finds that the legislative intent and declaration of policiu set forth fix Section 112.311, Florida Statutes, sets forth a laudable philosophy regardilhg the purpose, scope and application of ethics laws in relation to county officers and employees. Moreover, the Board also finds, based on [lie Committee's report, that additional, more stringent requirements are needed with regard to lobbyists, gifts, and Lost -county employment restrictions in order to promote and protect the public trust in its local goverrunenl. 3. Section 112.32G, Florida Statutes, authorizes the Board to impose more stringent standards of conduct and disclosure requirements, beyond those specified in Chapter 1! 2, Part III, Florida Statutes, upon its own officers and employees provided that said staridards of conduct and disclosure requirements do not otherwise conflict with Chapte., 112, Part III, Florida Statutes. 4. Section 125.69(1), Florida Statutes, provides, in pertinent part, (list violations of county ordinances shall be prosecuted in the same manner as misdemeanors are prosecuted, Such violations shall be punished by a fine not to exceed $500.00 or by imprisomnent in the county jail not to exceed sixty (60) days or by bout such fine and imprisonment. The Board further finds that an efficient and effective method for the determination of allegations of violations of the additional more stringent ethical standards set forth in this Ordinance is through local enforcement thereof. 5. Section 112.313(13), Florida Statutes, authorizes the Board to adopt an ordinance establishing post -employment restrictions for certain designated county employees. The Board further finds that said restrictions should apply only to those certain designated County employees who began their employment with County goverment subsequent to March 9, 1999. PM 0 G. 17re Board finds that preservation of the integrity of lire governmental decision - malting process is essential to the continued functioning of an open government. Therefore, in order to preserve and maintain the integrity of 0he process and to better infomr the citizens of efforts to influence legislative branch action, ilia Board finds it appropriate to require public registration and disclosure of the identity of certain persons who attempt to influence actions of the Board or actions of any of ilia County's quasi- judicial boards. 7. Section 112.3148(2)(b), Florida Statutes, authorizes the Board to establish a local registration process for lobbyists. The Board finds Unit such a registration process serves to promote and protect governmental integrity as well as to faster open government. The Board further finds that such a public registration process for lobbyists may assist to promote full compliance by lobbyists with the lobbyist gilt reporting requirements set forth in Section 112.3148, Florida Statutes. 8. The Board finds that more stringent requirements are needed with regard to ilia value of gills which may be provided by lobbyists to public officers aid employees beyond the standards set forth in Section 112.3148, Florida Statutes. Specifically, the Board finds that a limit of $50.00, rather than $100.00 as set forth by Section 112,3148, Florida Statutes, should be enacted in order to better promote and preserve the integrity of the governmental decision -making process. 9. Collier County Office of the County Administrator, Administrative Procedure, Instruction 5311 (Code of Ethics/Standards of Conduct), restricts Collier County employees from receiving gills or other items of value fit connection with tlhe performance of official duties. Said restrictions' exist separate and independent from the provisions of this Ordfnmhce and Part III, CIL 112, Florida Statutes. 10. Nothing in this Ordinance small be construed to chill, restrict or prohibit the free exercise of any citizen's constitutional rights, including, but not limited to, the right to petition his or her County government or exercise his or her rights of free speech. 3- SECTION THREE: DCFINMONS. 60 a 1. For the purposes of this Ordinance, the definitions contained in Chapter 112, Part III, Florida Statutes, shall apply and control, in accordance wills the subject matter, unless the text and/or context of this Ordinance provides otherwise. 2. "County Managerial Employee" shall mean the County Administrator, Assistant County Administrator, County Attorney, adef Assistant County Atlorn :y and all Division Administrators and Authority Directors of Collier County Government. 3. "Lobbying" shall mean influencing or attempting to influence legislative or quasi-judicial action or non -action though oral or written communication or an attempt to obtain the good will of a member or employee of the Board or of a Collier County advisory board or a quasi judicial board. 4. "Lobbyist" shall mean: a. Any natural person who, for compensation, seeks, or sought during Ile preceding twelve months, to influence qre governmental decision -making of a reporting individual or procurement employee or his or her agency or seeks, or sought during the preceding twelve inonllts, to encourage dne passage, defeat, or modification of any proposal or recommendation by the reporting individual or procurement employee or his or her agency. b. A person who is employed and receives payment, or who contraetu for economic consideration, for the purpose of lobbying, or a person whey is principally employed for governmental affairs by another person or governmental entity to lobby on behalf of drat other person or governmental entity. C. A person who registers with the Board as a lobbyist pursuant to Scction Five of this Ordinance. 5. "Principal" shall mean the person, firm, corporation, or other entity which has employed or retained a lobbyist. 4- 61 SECTION FOUR: PROIIIBITED RECEIPT OF GIFTS BY INDIVIDUALS FILING FULL OR LIMITED PUBLIC DISCLOSURE OF FINANCIAL INTERESTS, AND BY PROCUREMENT EMPLOYEES. The following provisions regarding gills from lobbyists are enacted as additional and more stringent standards of conduct mid disclosure requirements than those specified in Section 112.3148, Florida Statutes; 1. A reporting individual or procurement employee or any otter person oil his or her behalf is prohibited from knowingly accepting, directly or indirectly, a gill from a Political committee or a cointrrittee of continuous existence, as defined in Section 106.011, Florida Statutes, or from a lobbyist wino lobbies the reporting individual's or procurement employee's agency, or directly or indirectly on behalf of the pnl,ter, firm, employer, or principal of a lobbyist, if be or site knows or reasonably believes that the gift has a value in excess of $50.00; however, such a gill may be accepted by such person an behalf of a governmental entity or a charitable organization. If the gift is accepted on behalf of a governmental entity or charitable organization, the person receiving the gilt shall not maintain custody of the gin for any period of time beyond that reasonably necessary to arrange for the transfer of custody and ownership of the gill. 2. A political committee or a committee of continuous existence, as defined in Section 106.011, Florida Statutes; a lobbyist who lobbies a reporting individthal's or procurement employee's agency; the partner, firm, employer or principal of a lobbyist; or another on behalf of the lobbyist or partner, Finn, principal, or employer of the lobbyist is prohibited from giving, either directly or indirectly, a gilt that has a value in excess of $50.00 to the reporting individual or procurement employee or any other person on his or her be however, such person may give a gin having a value in excess of $50.00 to a repotting individual or procurement employee If the gin is intended to be transferred to a governmental entity or a charitable organization. SECTION FIVE: LOBBYIST REGISTRATION. 1. All lobbyists shall, before engaging in any lobbying activities, register with the Clerk to the Board located at the Board Minutes and Records Department, Every lobbyist required to so register shall; register on forms prepared by the Clerk; pay an annual registration fee of $25,00; and state under oallh. his or her name, business name mid 5- IN address, and the name and business address of each person or entity which has employed said registrant to lobby, as of the date of said registration. Tile registration shall be on annual registration and shall not require additional registration or amendment to the registration Conn by the lobbyist even If the lobbyist subsequently engages in lobbying for additional persons or entities. The purpose of the registration is merely to identify the registrant as a lobbyist. If, subsequent to the registration, the registrant ceases to act as a lobbyist, the registrant may file a request, oil a form provided by the Clerk, to not be listed as a lobbyist. However, pursuant to Section 112.3148, Florida Statutes, said registrant shall continue to appear al the list of lobbyists until the expirati Oil of the time period set forth in said statute. hn 0ne event that the registrant neither withdraws nor re- registers, the registrant shall be placed on a "lobbyist status unknown" list for a period of twelve (12) months from the expiration of the amual registration. The rcgistration fee of $25.00 is non-refundable. .2• Annual registration shall be required an4 shall initially commenc on March 22, 1599. Thereafter, annual registration shall occur on or alter October 1., of each year. Re13istration by lobbyists shall occur at any time during the calendar year provided that it accars prior to the lobbyist engaging in any lobbying activity. 3. The registration fee required by this section shall be maintained by the Clerk to the Board and shall be deposited into a separate fund to be expended for the purpose of administering and maintaining the lobbyist registration list as well as to cover,olher related. costs. Lobbyists shall not be charged a fee for filing the form for removal from pie lobbyist list. 4. The following persons shall not be required to register as lobbyists: R. Any public officer, employee or appointee who only appears ill his or her official capacity. b. Law enforcement personnel conducting an investigation. c. Any person who only appears in his or her individual capacity for the purpose or self -representation without compensation or reimbursement, whether direct, indirect or contingent, to express support of or opposition to any item. 63 d. Any person who only appears as a representative of a neighborhood association without special compensation or reimbursement for their appearance, whether direct, indirect or contingent, to express support of or opposition to any item. 5. The Clerk to the Board shall keep accurate and complete records regarding lobbyist registration including atr up to date list of all lobbyist registrations, lobbyist withdrawals from die list and a "lobbyist status unknown" list. 6. A registration form that is not renewed (along with payment of the ° 25.00 amoral registration fee) by October 1 of each year, shall expire and may not thereafter be relied upon by the lobbyist for lobbying activities. 7. The validity of imy action or determination of the Board or of any county personnel, board or committee, sliall not be affected by the failure of miy lobbyist to comply with the provisions of this section. SECTION SIX: POST -EMPLOYMENT RESTRICTIONS. 1. No County Managerial Employee shall personally represent another person or entity for compensation before the government body or agency of which tlt �! individual was an officer or employee for a period of two years following vacation of office, resignation of employment, or termination of employment, as applicable, except ; or the purposes of collective bargaining. 2. These post -employment restrictions shall apply only to those County Managerial Employees who began employment with Collier County Government on or alter March 9, 1999. SECTION SEVEN: SUPPLEMENTAL PROVISIONS. This Ordinance sets forth more stringent supplemental standards of conduct in addition to the requirements of Chapter 112, Part III, Florida Statutes, entitled "Code of Ethics for Public Officers and Employees," This Ordinance shall not be construed to authorize or permit any conduct or activity that is in violation of Chapter 112, Part III, Florida Statutes. Iu the event of a conflict between the provisions of this Ordinance and Chapter 112, Part 111, Florida Statutes, Ilie more restrictive/stringent provisions shall apply. - 7- Z. It shall be lire duty of each commissioner and of all County Managerial Employees and reporting individuals to become familiar will, We Collier County Ethics Ordinance. To this end, tie Human Resources Director shall annually distribute to each such person a current copy of the "Florida Commission oil Ethics Guide to lire Sunshine Amendment and Code of EOnics for Public Employees" (or similar Florida Commission oil Ethics publication) and a copy of this Ordinance. The specific duties set forth ill this Section Seven regarding familiarity will, the ethics rules and distribution of informative materials shall not be all to One penallies set forth in Section Eight of this Ordinance. SECTION.EICIIT: PENALTIES. Pursuant to Section 125.69, Florida Statutes, a person wile violates any provision of this Ordinance shall be subject to prosecution in One mine of line Stale in the smile mvnaer as misdemeanors are prosecuted; and, upon conviction, such person shall be punished by a fine not to exceed S500.00 or by imprisonment in tire Collier County Jail not to exceed (60) days or by both such fine and imprisonment. SECTION NINE: INCLUSION IN THECODE OF LAWS AND ORDINAMM, The provisions of this Ordinance shall become and be made a part of tine Code c f Laws and Ordinances of Collier County, Florida, The sections of the Ordinance nnay be renumbered or re -lettered to accomplish such, and tine word 'ordinance" may be changed to "section," "article," or any other appropriate word; SECTION TEN: CONFLICT AND SEVERABILITV. In the event this Ordinance conflicts with any other Ordinance or Collier Coady or other applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is hel,d invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect tine validity of the remaining portion. 8- m SECTION ELEVEN: EFFECTIVE DATE. This Ordinance shall become effective on April 12, 1999. PASSED AND DULY ADOPTED by ilia Board of County Commissioners or Collier County, Florida, thisgµi day of-iolic't. , 1999. ATTEST:. '} ;DWIGHT E.'BROCK, Clerk 'BY.' ;'�Itt1#�aps�'j��h3fir'ittn's ' s1Wt, 'tiii'a.�ally.,e ••,,. Approved as.to form and legal sufficiency:, �:_ � anur�R o lvlafialtah Chief Assistant County Attorney I1:publiddebbles/oNtes..../19981athlce a,di..... BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA BY: t� � PAMELA S. MAC'KIE, Chairwomat: s This ordinance filed with the Secretary of State's Office the /Q�n day of 1.7 and acknowledgement of that filing received this � day of A aAc1 By —A aewn I - 9- 66 ORDINANCE NO. 2000-fig DRIUADDITIONS AN ORDINANCE AMENDING COLLIER COUNTY ORDINANCE NO.99.22, THE COLLIER COUNTY ETHICS ORDINANCE; REVISING SECTION TWO FINDINGS IN REGARD TO LIMITS ON GIFTS FROM LOBBYISTS TO PUBLIC OFFICERS AND EMPLOYEES AND THE NEED FOR ADDITIONAL GIFT PROHIBITIONS FOR PUBLIC OFFICIALS; PROVIDING IN SECTION THREE FOR AND EXCEPTIONS TO THE DEFINITION OF "GIFT" AS WELL AS OTHER DEFINITIONAL CHANGES; - CHANGING THE LIMIT ON GIFTS FROM LOBBYISTS TO PUBLIC OFFICERS AND REPORTING INDIVIDUALS TO $0 FROM $50 AND CREATING ADDITIONAL GIFT - PROHIBITIONS FOR PUBLIC OFFICIALS; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; PROVIDING FOR CONFLICT AND SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Chapter 112, Part III, Florida Statutes, 'establishes a code of ethics and provides standards of conduct for public officers and employees; and WHEREAS, the Board desires to adopt a local ethics law that will complement the State standards set forth in Chapter 112, Florida Statutes, as well as create more efficient local enforcement and provide additional requirements that will serve to promote and protect the public's trust in their local government. WHEREAS, the Board intends that the standards set forth in this ordinance &hall be more 23 t-r stringent and in addition to those established in Chapter 112, Part III, Horida5fluts, qy1 ti authorized by Section 112.326, F.S. N NOW, THEREFORE, BE IT ORDAINED BY THE BOARD 0Fn�COIJ'TT-�4 COMMISSIONERS OF COLLIER COUNTY, FLORIDA that: ym � SECTION ONE, AMENDMENT TO SECTION TWO: FINDINGS OF COLLIER COUNTY ORDINANCE NO.99-22. Section Two is hereby amended to read as follows: SECTION TWO; .FINDINGS. 1) The report submitted to the Collier County Board of County Commissioners ('Board') by the Ad Hoc Ethics Standards Review Committee ("Committee") recommends the adoption of a local ethics code. 2) The Board finds that the legislative Intent and declaration of policies set forth in Section 112311, Florida Statutes, sets forth a laudable philosophy regarding the Purpose. scope and application of ethics laws in relation to county officers and 1 67 employees. Moreover, the Board also finds, based on the Committee's report, that additional, more stringent .requirements are needed with regard to lobbyists, gifts, and post -county employment restrictions in order to promote and protect the public trust in its local government. 3) Section 112.326, Florida Statutes, authorizes the Board to impose more stringent standards of conduct and disclosure requirements, beyond those -specified in Chapter 112, Part Ill, Florida Statutes, upon its own officers and employees provided that said standards of conduct and disclosure requirements do not otherwise conflict with Chapter 112, Part III, Florida Statutes. 4) Section 125.69.(1), Florida Statutes, provides, in pertinent part, that violations of county ordinances shall be prosecuted in the same manner as misdemeanors are prosecuted. Such violations shall be punished by a fine not to exceed $500.00 or by imprisonment in the county jail not to exceed sixty (60) days or by both such fine and imprisonment. The Board further finds that an efficient and effective method for the determination of allegations+ of violations of the additional more stringent critical standards set forth in this Ordinance is through local enforcement thereof. 5) Section 112.313(13), Florida Statutes, authorizes the Board to adopt an ordinance establishing post -employment restrictions for certain designated county employees. The Board further finds4hat'said restrictions should apply only to those certain designated County employees who began their employment with County government subsequent to March 9, 1999. 6) The Board finds that preservation of the integrity of the governmental decision - making process is essential to the continued functioning of an open government. Therefore, in order to preserve and maintain the integrity of the process and to better inform the citizens of efforts to influence legislative branch action, the Board finds it appropriate to require public registration and disclosure of the Identity of certain persons who attempt to influence actions of the Board or actions of any of the County's quasi-judicial boards. M M. 7} Section .112.3148(2)(b), Florida Statutes, authorizes the Board to establish a local registration process for lobbyists. The Board finds that such a registration process serves to promote and protect governmental integrity as well as to foster open government. The Board further finds that such a public registration process for lobbyists may assist to promote full compliance by lobbyists with the lobbyist gift reporting requirements set forth in Section 112.3148, Florida Statutes: 8) The Board finds that more stringent requirements are needed with, regard to the value of gifts which may be provided by lobbyists to public officers and employees beyond the standards act forth in Section 112.3148, Florida Statutes. Specifically, the Board finds that a limiFe€$3&99zcro gift limit. rather than $100.00 as set forth by Section 112.3148, Florida Statutes, should be enacted in order to better promote and preserve the integrity of the governmental decision - making process. 2) The Board finds that additional gift Prohibitions are necessary for public officials prohibiting the receipt of any gift or any other thing of monetary value from anyone who the public official knows ar reasonably should know is any way attempting 1paffect the official actions business or finances of the county or from anyone that has an interest that may be substantially affected by the performance or nonperformance of duties of a Public official The Board further finds that Prohibitions are necessary in regard .to gifts between officials priors and subordinate public officials in order to Preserve the ethical integrity of the performance of public service by County human resources 9-.10) Collier County Office of the County Administrator, Administrative Procedure, Instruction 5311 (Code of Ethics/Standards of Conduct), restricts Collier County employees from receiving gifts or other items of value in connection with the performance of official duties. Said restrictions exist separate and independent from the provisions of this Ordinance and Part Bf, Ch. 112, Florida Statutes. 40,1.11 Nothing in this Ordinance shall be construed to chill, restrict or prohibit the free exercise of any citizen's constitutional rights, including, but not limited to, -the M Ke right to petition his`or her County government or exercise his or her rights of free speech. SECTION TWO% AMENDMENT TO SECTION THREE OF COLLIER COUNTY ORDINANCE NO.99-22. Section Three is hereby amended to read as follows: SECTION THREE: DEFINITIONS. 1. For the purposes of this Ordinance, the definitions contained in Chapter 112, Part III, Florida Statutes, shall apply and control, in accordance with the subject matter, unless the text and/or context of this Ordinance provides otherwise. 2. "Advisory Board Member" means any person appointed by the Board of County Commissioners to an County board, committee or authority which has any final decision-makine authority. Such Boards include.'but are not limited to: Aimort Authority Collier County Code Enforcement Board Collier County Planning Commission Contractors Licensing Board Library Advisory Board Public Vehicle Advisory Committee Utility Authority 20, "County Managerial Employee" shall mean the County AdminisEta*FFManaecr. Assistant County Administreter a er County Attorney, Chief Assistant County Attorney and all Division Administrators and Authority Directors of Collier County Government. A. "Elected Officer" means any member of the Board of County Commissioners 5. "Gift" shall have the definition contained in Chapter 112 Part III Florida Statutes with he following additions and excentions: 0). Additions: 1) Initiation fees b) Exceptions: "Gift" shall not include: 1) Salary, benefits services fees commissions giftassociated solely with the donee's employment business or lervice as an official or dimctor of a corporation or or aniz - 4- 70 21 Contributiohs or expenditures reported pursuant to Chanter 106 Florida Statutes, campaign -related personal services provided w't out compensation by individuals volunteering their time, or any other contribution or expenditure by a political party. 3) Gifts received where family relationships (such as those between the parents, children. or spouse) or other personal relationships or circu tt_tstances clearly demonstrate that said relationsb'ps or-c}rcumstances rather than the business of the pmons involved are the motivatin factors. 4) Food or beverage accented when (i) offered free in the course of a mfeasional or civic meeting or group function at which attendance is desirable because it will assist the person in performing his or her official duties: or (ii) provided to all panelists or speakers when a person is participating as a panelist or speaker in a Program seminar, or educational conference. Notwithstanding any other section oY this ordinance or personnel manual to the contrary. public officials and all county emplovees may accept food or beverage as mentioned above in this subsection and consumed at a single sitting or event only if the costs for said food or beymac do not cxcecd the rate for the aonrooriate per diem allowance for said meal as provided in Chapter 112 Flnridn Statutes. If order circumstances beyond the control of the donee the costs exceed the per diem rate the donee may accent said food or beverage but shall file a written disclosure statement ,within five working days of the acceptance with the County Manaaer on a form provided by the County Manager_ 5. Unsolicited advertising or promotional material such as pens penclla notepads. calendars, and other items of nominal intzinsic yi ue may accepted, as well as iob-related litemture 6. Gifts given for participation in a pMLrAM, SMOnar Qr. educational conference when such cifta are- a) Of nominal intrinsic value and - 5- 71 b) In fhe nature of a remembrance traditional to the particular sponsoring entity. ar c) Provided to all participants in the zeros aim. 7. An award, plague, certificate, or similar personalized item given in recognition of the donee's public, civic, charitable, or professional service 8 A rate or terms on a debt loan goods or services which rate and terms arc customary and are at a eovemment rate and terms available to all other similarly situated government employees or officials or rates and terms which are available to similarly situated members of the public by virtue of occupation, affiliation, age, religion, sex, or national origin 3b "Lobbying" shall mean influencing or attempting to influence legislative or quasi- judicial action or non -action through oral or written communication or an attempt to obtain the good will of a member or employee of the Hoard or of a Collier County advisoryboardora quasiludisiaigu si-'u 'cial board. 4:7. "Lobbyist" shall mean: a) Any natural person who, for compensation, seeks, or sought during the preceding twelve months, to influence the governmental decision -making of a reporting Individual or procurement employee or his or her agency or seeks, or sought during the preceding twelve months, to encourage the passage, defeat, or modification of any proposal or recoramendation by the reporting individual or procurement employee or his or her agency. b) A person who is employed and receives payment, or who contracts for economic consideration, for the purpose of lobbying, or a person who is principally employed for governmental affairs by another person or governmental entity to lobby on behalf of that other person or governmental entity. c) A person who registers with the Hoard as a lobbyist pursuant to Section Five of this Ordinance. 8 "Nominal Intrinsic Value" means anything with a value less than 50 00 3 9. 'Trincipal" shall mean the person, firm, corporation, or other entity which has employed or retained a lobbyist. - 6- 72 10 "Public Official" means any and all elected officers, advisory board members county managerial employees and the county attorney (whether servingas an employee(in house counsel or as outside counsel). SECTION THREE; AMENDMENT , TO SECTION FOUR OF COLLIER COUNTY ORDINANCE NO.99-22. Section Four is hereby amended to read as follows: SECTIONFOUR:— PROHIBITED RECEIPT OF GIFTS BY INDIVIDUALS FILING FULL OR LIMITED PUBLIC DISCLOSURE OF FINANCIAL INTERESTS, AND BY PROCUREMENT EMPLOVER947 LOYEE ADDITIONAL GIFT PROHIBITIONS FOR PUBLIC OFFICIALS li_The following provisions regarding gifts from lobbyists are enacted as additional and mom stringent standards of conduct and disclosure requirements than those specified in Section 112.3148, Florida Statutes: 4-.al A reporting individual or procurement employee or any other person on his or her behalf is prohibited from knowingly accepting, directly or indirectly, a gift from a political committee or a committee of continuous existence, as defined in Section 1,06.011, Florida Statutes, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or directly or indirectly on behalf of the partner, firm, employer, or principal of a lobbyist. However such a gift may be accepted by such person on behalf of a governmental entity or >r a charitable organization. If the gift is accepted on behalf of a governmental entity or charitable organization, the person receiving. the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange .for the transfer of custody and ownership of the gift. 2rhj A political committee or a committee of continuous existence, as defined in Section 106.011, Florida Statutes; a lobbyist who lobbies a reporting individual's or procurement employee's agency; the partner, firm, employer or principal of a lobbyist; or another on behalf of the lobbyist or partner, firm, principal, or employer of the lobbyist is prohibited from giving, either directly or indirectly, a gi ►7s1 $99.9 to the reporting individual or procurement employee or any other person on his or her behalf; however, such person may give a gifthavinga value in meass of $50.90 to a reporting individual or procurement employee if the gift is intended to be transferred to a governmental entity or a charitable organization. 2) The following gift prohibitions for public officials are enacted as additional and more stringent standards of conduct r-tian those specified Section 1123148 Florida Statutes: Public officials shall not solicit or accept directly or indirectly, a from anyone who the public official knows or reflaanahly should knew: 11 Has or is seeking to obtain contmM t or other business ar financial relations with the county denartment or board with which the public official is affiliated a) Conducts or represents a person or entity that conducts operations or activities that are regulated by the county department or board with which the public official is affiliated 31 Is seeking znning permitting or inspection approval from the county department or board with which the pgbjj2 official i affiliated. 41 Has interests that may be substantially affected by the performance or non -Performance of duties of the county publiq official, 5) Is in any way at=11tin to affect the official actions of the county public official Thia paragraph is not intended to nrohlbit a public official from obtain a loan from it financial instttution at a rate and_LeMs availableto all other similarly situated members of the public by viEgue of occ ti "R Arlon, flee religion sex or national origin, hL A nubiic official shall not solicit a contri6 tion from another personfor a itift to an official superior make a donation as a gift to an official supenor, or accept a gift from a subordinate pubk gffidal However, ti 8- 74 paragraph does not prohibit a voluntary gift of nominal value or donation in a nominal amount made on a special occasion such as marriage. birth of a child Illness or retirement Nor does this p4mararph mphlbit nubile officials _ from participating in fiend -raising activities for charitable Purposes. SECTION FOUR; INCLUSION IN THE CODE OF LAWS AND ORDINANCE, The provisions of this.Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County, Florida. The sections of the Ordinance may be renumbered or re -lettered to accomplish such, and the word "ordinance" may be changed to "section," "article," or any other appropriate word. SECTION FIVE: CONFLICT AND SEVERABILITY. InGthe event this Ordinance conflicts with any other Ordinance of Collier County or other applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION SIX. EFFECTIVE DATE, This Ordinance shall become effective upon filing with the Department of State. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this�"day of Q649a� 2000. n BOARD OF CI °B $ROCK, CLERK COLLIER CD� `:' B1eSIrfu Cr. BY: • :•�;f;F• Attest as to Chairma •.. suf kpprob...f' ncy: tofotmand SIgesture Onla. tegel'cie Ramiro Maflalic r Chief Assistant County Attorney 9- FLORIDA CHAIRMAN This ordinance filed with the Sew of S te's Office and ocknewradgOnnent of that filln eeeived thr„Z of day Z= By arW v ewc� 0 M STATE OF FLORIDA) COUNTY1OF COLLIER) I, DWIGHT E. BROCK, Clerk of Courts in and for the Twentieth Judicial Circuit, Collier County, Florida, do hereby certify that the foregoing is a true copy of: ORDINANCE 90. 2000-58 Which was; adopted by the Board of County Commissioners on the 12th day of September, 2000, during Regular Session. WITNESS my hand and the Official seal of the Beard of County Commissioners of Collier County, Florida, this 21st day of September, 2000'. DWIGHT E. BROCK Clerk of Courts and Ex-officio to Board County Commissioners Y"- —Z�� By: Ellie Roffman, Deputy Clerk 76 COLLIER COUNTY GIFT DISCLOSURE STATEMENT This disclosure statement is made in compliance with the requirements of Collier County Ordinance No. 99-22, as amended, the Collier County Ethics Ordinance. Specifically, the undersigned public official hereby discloses the acceptance of food and/or beverage which was either: (i) offered free in the course of a professional or civic meeting or group function at which attendance is desirable because it will assist the person in performing his or her official duties; or (ii) provided to all panelists or speakers when a person is participating as a panelist or speaker in a program, seminar, or educational conference. Event: Date: Location: Explanation / Comment: Dated this day of (signature of public official) (Printed or Typed Name of Public official) 77 OFFICE OF THE COUNTY MANAGER ADMINISTRATIVE PROCEDURE CMA Instruction 5311 Effective Date: May 4,1999 (Revised: October 1, 2001) SUBJECT: Code of Ethics/Standards of Conduct PURPOSE: The purpose of this Instruction is to provide for the implementation of a Code of Ethics and Standards of Conduct procedure authorized by the County Manager. CONCEPT: Code of Ethics It is the policy of the County to ensure that all employees conduct their employment duties in a manner which is free from any conflicts of interest. Additionally, the standards of conduct as outlined by the Florida Commission on Ethics and the 1991 Ethics in Government Act shall be a guideline for County employees. Violation of the Code of Ethics may be subject to disciplinary action, up to and including discharge. A. No County employee shall disclose confidential information gained by reason of their official position, nor shall they otherwise use such information for their personal gain or benefit. B. If an employee of the County is an officer, director, agent, or member of, or owns controlling interest in any corporation, firm, partnership, or other business entity which is subject to the regulation of, or which has substantial business commitments with the County or other political subdivision of the State of Florida, they must file a swom statement to this effect with the Circuit Court of Collier County and give a copy of the statement to the Division Administrator and the County Manager. C. No County employee shall transact any business, during working hours for the County, in his/her official capacity with any business entity of which he/she is an officer, director, agent, or member, or in which he/she owns a controlling interest. D. No County employee shall have personal investments in any enterprise which will create substantial conflict between his/her private interest and the public interest. E. No County employee shall purchase any County tax certificate or tax deed. The intent of this rule is to avoid any appearance of a conflict of interest on the part of either the County or the employee. F. No employee shall accept, or agree to accept, either directly or indirectly, any favor, gift, loan, fee, service or other item of value, in any form whatsoever, from any organization or individual if it is intended or gives the appearance of rewarding or influencing the employee in carrying out his or her appointed duties. Only items of nominal or intrinsic value may be accepted. G. No County employee shall serve on Board of County Commissioners' Advisory Boards or Committees, to reduce any potential perceptions of conflict of interest by the public. M. H. No County employee below the level of supervisor shall provide information concerning County business to the media during working hours. CONCEPT: Standards of Conduct The following performance standards are considered essential in providing professional service to the community. Failure to adhere to these standards may warrant disciplinary action. The following are illustrative, but are not all-inclusive, of specific behavior expected of all county employees. The County may administer discipline that is considered appropriate for violations of these standards and for other actions not specifically listed below. Severe misconduct may justify discharge without prior warning. A. Performance of assigned duties will be satisfactory and efficient. B. Proper authorization is required for removal of County property or others' personal property, or property belonging to a member of the public. C. County property, equipment and materials will be utilized only for that which it is made and will not be destroyed, damaged or used for personal purposes D. Personnel and other County records including employment applications, accident records, work records, purchase orders, timesheets, or any other report, record applications or any other documents must be truthful and contain accurate information. E. Accident benefits, worker's compensation or unemployment compensation payments for self or others will only be obtained for proper reasons consistent with County policy. F. Employees while on County property will not use, possess or be under the influence of alcohol or illegal drugs. G. Possession of any unauthorized weapon is not permitted on County property. H. County employees will not engage in sexual harassment or false accusations of sexual harassment. I. Conviction of, or pleading guilty to, or.pleading "no contest" to a felony or a misdemeanor of first or second degree as defined by Florida Statutes may be cause for disciplinary action up to and including discharge. Employees charged with a felony may be suspended or discharged depending upon the nature of the charge. J. Employee's conduct toward co-workers, supervisors, other staff or the public will remain courteous, positive and appropriate for the work situation. K. County vehicles will only be utilized when authorized. L. Driving a motor vehicle while on duty requires the appropriate State of Florida Driver's license, or commercial driver's license (CDL) and any loss or suspension of such license shall be reported to the County. It is the responsibility of the employee to report any loss, suspension or revocation of such license to their supervisor. M. Section, department or division work rules will be followed. 79 N. Loss of required license or certifications required for the job will be reported to the County. O. Employees will not engage in fights or malicious mischief while on County property. P. Employees will remain awake on duty and perform all responsibilities effectively while maintaining good use of time. Q. Injuries on the job will immediately be reported to a supervisor. R. Safety rules will be followed. S. Gambling or other games of chance for money or other valuables will not occur while on County property. T. County employees are expected to engage in lawful and proper conduct, both on and off the job, in order to not affect their relationship to County Service, other employees, or the County's reputation in the community. U. Department attendance standards, including reporting to work on time and providing proper notification of an absence, will be met or exceeded to ensure adequate personnel for department operations. V. An employee abandoning his/her position may be suspended or discharged. "Job abandonment" is defined as the unauthorized absence of an employee for three (3) or more consecutive work days in which the employee fails to contact the immediate supervisor and advise the supervisor of the absence. W. An employee who intentionally lies during an internal investigation or otherwise impedes the County's ability to properly conduct an internal investigation may be subject to disciplinary action up to and including discharge. X. An employee who intentionally makes an untruthful statement in the performance of their duties with the County may be subject to disciplinary action up to and including discharge. CURRENCY: The Human Resources Department is responsible for maintaining the currency of this Instruction. REFERENCE: Collier County Personnel Ordinance, Ordinance No. 2001-50: Code of Ethics: It is the policy of the County to ensure that all employees conduct their employment duties in a manner which is free from any conflicts of interest. Additionally, the standards of conduct as outlined by the Florida Commission on Ethics and the 1991 Ethics in Government Act shall be a guideline for County employees. Standards of Conduct: It is the policy of the County to provide certain Standards of Conduct in order to establish guidelines for successful employment and uniform guidelines for discipline. These standards have been established in the interest of providing the highest levels of professional service to the public. THOMAS W. OLLIFF County Manager n Eif, U RESCLUTION NO. 95- 632 A RESOLUTION SETTING FORTE TEE POLICY OF TEE BOARD CP COUNTY COMMISSIONERS WITS REGARD TO PROVIDING A _ LEGAL DEFENSE AND PAYING LEGAL EXPENSES OF COUNTY COMMISSIONERS, COUNTY STAFF AND COUNTY ADVISORY BOARD MEMBERS. WHEREAS, the Board of County Commissioners and the Collier County management and legal staff are constantly presented With the necessity for making decisions regarding all phases of County policy, management and legal counsel, respectively; and WHEREAS, local governments and their employees have recently become subject to increasing numbers of lawsuits based upon state and federal laws; and WHEREAS, it is essential to the effective operation of County government that policy, management and legal decisions be made competently, in, the public interest, and with the threat of personal liability for board and staff members for making said decisions being maintained at a minimum soas to avoid the "chilling effect" on the proper and diligent performance of public duties recognized by the Florida Supreme Court in Thornber v. City of Fort Walton Beach, 568 So.2d. 914 (1990); and WHEREAS, Florida statutory and case law, as well as Attorney General opinions (hereafter referred to as "AGO"), set forth the requirements and discretion which are afforded to the local governing body to formulate a policy regarding the provision of counsel and payment of legal expenses for Board members, County staff and advisory board members who are involved in litigation arising out of or in connection with the performance of official duties and while serving a valid public purpose; and WHEREAS, Collier County insurance policies currently include County employees as well as Board members and members of the Administrator's and County Attorneys staff within the scope of coverage, provided that said persons are acting within the scope of their employment and do not act criminally or fraudulently; and -1- 81 i WHEREAS, the Board of County Commissioners (hereafter also referred to as "Board") desires to hereby set forth and -. formalize its policy with regard to the provision of legal 1 counsel and the payment of legal expenses incurred by County Commissioners and administrative and legal staff so as to promote competent decisions and conduct in the public interest while reducing the threat, intimidation and chilling effect on performance of official duties created by potential personal liability for County Commissioners and County staff members while acting- in the scope of their official duties and while serving a valid public purpose. WHEREAS, the various advisory boards, quasi-judicial boards and regulatory boards (hereafter also collectively referred to as "advisory? boards)") formed by the Board of County Commissioners, and the members thereof who are appointed by the Board of County Commissioners, serve a critical function with regard to the operation of Collier County Government; and WHEREAS, the members of such boards serve on a volunteer - basis without compensation for the time spent in performing their duties and functions; and WHEREAS, said boards and board members are regarded by the Board of County Commissioners as being within the umbrella of legal protection afforded to the Board of County Commissioners and other Collier County employees; and WHEREAS, the Board hereby desires to set forth and formalize its policy with regard to the provision of legal counsel and the payment of legal expenses incurred by advisory board members so as to promote competent decisions and conduct in the public interest while reducing the threat, intimidation and chilling effect an performance of official duties created by potential personal liability for advisory board members while acting in the scope of their official duties and while serving a valid public purpose. NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: -2- 0 82 I. Definition' of "county persoa(s)'13 As used in this Resolution, the term "County person(s)-I shall mean and include the members of the Board of County Commissioners, the County Administrator and his staff, the County Attorney and his staff, all employees of the Board of county commissioners as well as the Collier County Airport Authority Director and his staff, the Director and staff of any other County -created authority, the officers and staff of any dependent or other special district for which the Collier County Board of County Commissioners is the governing body or ex-officio the governing body thereof, and any person appointed by the Board of County Commissioners to a Collier County Advisory Board, quasi-judicial board or regulatory board formed by the Board of County Commissioners of Collier County, Florida. ' - 2. Pursuant to Section 111.07, Florida Statutes, and Thornber v City of Fort Walton Beach, 568 So.Zd 914 (Fla. 1990), the Board hereby resolves to provide legal t representation to County persons in civil actions and in civil rights actions subject to the limitations set forth herein. a. Legal representation shall he provided in civil actions and in civil rights lawsuits only if the litigation involving the County person to be represented arises out of or in connection with the performance of official duties and while said County person was serving a valid public purpose. No representation shall be provided in tort actions if the County person acted or failed to act in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property. No representation shall he provided to any County person in a civil action or civil rights action where said County person acted or failed to act with intent to harm. No representation shall be provided in any case -J- 0 83 where the County person has willfully failed to follow the legal advice furnished by the Office of the County Attorney, unless the Hoard of County Commissioners specifically finds,% at a public meeting, that said failure to follow legal advice was for reason(s) within the County person's scope of employment and served a valid public purpose. Collier County shall at all times have the discretion to determine whether to directly represent such individual through the county Attorney's office or to select counsel to represent said County person in the civil action or civil eights action. If a County person chooses to obtain private legal counsel without prior authorization from Collier County, all fees and/or costs incurred by such person shall be the sale responsibility of said person. and Collier County shall accept no responsibility for payment of legal fees and/or costs. Any legal fees and/or costs properly payable under this Policy must be reasonable in amount. Pursuant to section 111.07, Florida Statutes, any attorney's fees and/or costs paid or incurred by the County for any County person who is found to be personally liable by virtue of acting outside the scone of employment, in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property, may be recovered by the County in a civil action against such County person. Notwithstanding anything else stated in this section or this Resolution, the Board shall have the sole and absolute discretion allowed by -4- e 84 Section 111.07, Florida Statutes, as well as by applicable case law, to not provide legal representation and to instead reimburse any County person for reasonable attorney, fees and/or costs in the event 'that said county person prevails in the civil or civil rights action. 3, pursuant to Sections 111.071 and 11.1.072, Florida Statutes, the County shall pay for final judgments, settlements and/or costs involving County persons in civil actions and in civil rights actions subject to the limitations provided herein. a. Collier County shall pay final judgments, settlements and/or costs involving County persons only where the litigation arose cut of ' or in connection with the performance by the County person of oflicial- duties and while serving a valid public purpose. No final judgment, settlement or casts shall be paid for by the County in a civil action or a civil rights action if the County person against whom the final judgment, settlement and/or costs have been imposed has acted or failed to act with intent to harm. The County shall not pay any final judgment, settlement and/or costs in tort actions where a County person has acted or failed to act with bad faith, malice or with wanton and willful disregard of human rights, safety or property. No judgment and/or costs ` shall be paid in any case where the County person has willfully failed to follow the legal advice furnished by the Office of the County Attorney, unless the Board of County Commissioners specifically finds, at a public meeting, that said failure to follow legal _c_ 85 advice was for reasons within the County person's scope of employment and served a valid public purpose. b. Any final judgments, settlements and/or -costs paid or incurred by the County shall be in strict adherence with the sovereign immunity recovery limits set forth in Section 769.28, Florida Statutes. c. If the County person has had private legal representation in the case, contrary to the provisions of Section (2)(b) of this Policy, 'any final judgment, settlement and/or costs imposed shall be the sale responsibility of said person and Collier County shall accept no responsibility for payment of the final judgment, settlement and/or costs. d. Pursuant to Section 111.071(4), this section is 1 not intended to be a waiver of sovereign immunity or a waiver of any other defense or immunity to such lawsuits. 4. In cases where a County person is fe^ally charged with a criminal violation, the County shall pay the legal fees and/or costs incurred by said County person only under the following circumstances: a. The charges against the County person arose cut of or in connection with the performance of official duties and while serving a valid public purpose. b. The County person has been acquitted or the - charges dismissed. Lomelo v. City of Sunrise, 423 So. 2d. 974 (4th OCA ,1982), pet. for rev. dismissed at 431 So.2d. 988 (Fla. 1983), and AGO 89-33. C. The legal fees and/or costs charged are reasonable in amount. -6- 712 d. _ The County person has first notified the County administration and legal staff of the pendency of the charges and has permitted the County the - - opportunity to either directly provide counsel or to allow said County person to choose his/her own counsel. e. The charges have not resulted from the willful failure of the County person to follow the legal advice furnished by the Office of the County Attorney, unless the Hoard of County Commissioners specifically finds, at a public meeting, that said failure to follow legal advice was for reasons within the .County 7 person's scope of employment and served a valid .public purpose. f. The legal fees and/or costs incurred by a county person during the investigatory, pre -charge stages of a criminal case shall he paid by the County only for proceedings involving potential criminal liability for the county person and where the allegations are ultimately determined to be unfounded and to have arisen from conduct related to the performance of official duties and while serving a valid public purpose. AGO 94-11. The provisions of Subsections 4b, c, d and a of this Resolution shall also covern these cases. g. In the event that the County person has been provided legal representation by the County and - the County person is found guilty of a criminal F. charge, the County may recover from the County person in a civil action all legal fees and/or - costs paid or incurred by the County. S. The County shall pay legal fees and/or costs incurred by County persons in cases involving formal et*ics charges -7- FFA subject to the a. b. e. d. f. limitations provided herein: The ethics charges arose from conduct related to the performance of official duties and while serving a valid public purpose. Ellison v-Reid, 397 So. 2d. 752 (1st DCA 1981) and AGO's 85-51 and 90-74. The County person has prevailed and successfully defended against the ethics charges. The legal fees and/or costs charged are reasonable in amount. The County person has first notified the County administration and legal staff of the pendency of the charges and has permitted the County the opportunity' to either directly provide counsel or to allow said Ccunty person to choose his/her awn counsel. The charges have not resulted from the .willful failure of the County person to follow the legal advice furnished by the Office of the county Attorney, unless the Hcard of County Commissioners specifically finds, at a public meeting, that said failure to follow legal advice was for reasons within the County person's scope of employment and served a valid public purpose. The legal fees and/or costs incurred by a County person during the investigatory, pre -charge stages of an ethics complaint shall be paid by the County only for proceedings involving potential civil and/or criminal liability and/or ethics sanctions for the County person and where the allegations are ultimately determined to he unfounded and to have arisen from conduct related to the performance of official duties and while serving a valid public purpose. AGO -e- 0 M 94-11. The provisions of Subsections 5b, c, d and a of this Resolution shall also govern these cases. - g. In the event that the County person has-. been provided legal representation by the County and the county person is found by the Florida Ethics Commission or other appropriate tribunal having ' jurisdiction over the case to have committed ethical violations, the County may recover from the County person in a civil action all legal fees and/or costs paid or incurred by the County. ' h. Nothing in this section shall be construed to preclude the County Attorney from requesting formal or informal ethics opinions on behalf of one or more commissioners. 6. The t County shall pay legal fees and/or costs incurred by county persons in cases involving ncn-county administrative and/or regulatory proceedings and/or formal charges subject to the limitations provided herein: . a. The proceedings and/or charges arose from conduct related to the performance of official duties and while serving a valid public purpose. b. The County person has prevailed and successfully defended against the proceedings and/or charges. C. The legal fees and/or costs charged are reasonable in amount. d. The County person has first notified the County Administration and legal staff of the pendency of the. proceedings and/or charges and has . permitted the County the opportunity to directly provide counsel or to allow said County person to choose his/her own counsel. e. The charges and/or proceedings have not resulted from the willful failure of the County person to -9- m follow the legal advice furnished by the office of the County Attorney, unless the Board of county commissioners specifically finds, at a public meeting, that said —failure to follow legal advice was for reasons within the County person's scope of employment and served a valid public purpose. f. The legal fees and/or costs incurred by the County person during the pendency of the proceedings and/or the investigatory, pre -charge stages of an administrative or regulatory case shall be paid by the County only for proceedings and/or charges involving potential civil and/or criminal 'liability and/or administrative/ regulatory sanctions for the County person and where the allegations are ultimately date Wined to be unfounded and to have risen from conduct t related to the performance of official duties and while serving a valid public purpose. AGO 94-11. The provisions of Subsections 6b, c, d and a of this Resolution shall also govern these cases. g. In the event that the County person has been provided legal representation by the County and the County person is found, by an administrative or regulatory agency or other appropriate tribunal having jurisdiction over the case, to have civil or criminal liability and/or to have violated administrative or regulatory rules, the County may recover from the County person in a civil action all legal fees and/or costs paid or incurred by the County. 7. The County shall pay legal fees and/or costs incurred by individual members of the Board of County Cc_issioners for instituting, as opposed to defending, litigation only where all -10- of the following circumstances are present: a. The litigation arises from or in connection with . I the Board members performance of official duties and the litigation serves a valid public purpose. b. This section shall apply only to members of the Board of County Commissioners and not to any other "County person" defined in section 1 of this Resolution. C. The Board member must prevail in said litigation. d. The lecal fees and/or costs are reasonable in amount. e. The Board member shall have first notified the Board of County Commissioners, the County Administrator and the County Attorney prior to the commencement of the litigation and shall have permitted the County the opportunity to either directly provide counsel or to allow said Commissioner to choose his/her own counsel. f. The litigation has not resulted from the willful failure to follow the legal advice furnished by ' the Office of the County Attorney, unless the _ Board of County Commissioners specifically finds, at a public meeting, that said failure to follow legal advice was for reasons within the Commissioner's scope of employment and served a - valid public purpose. g. In the event that the Commissioner has been provided legal representation by the County and the Commissioner does not prevail in the litigation, then the County may recover from the commissioner in a civil action all legal fees and/or costs paid or incurred by the County. 8. All preliminary decisions administering and -11- e 91 implementing this policy shall initially be made by the County Administrator and/or his designee and the Office of the County Attorney in cooperation and. consultation with each other's respective offices. Both offices are hereby delegated the power to make any lawful and reasonable investigation and evaluation of cases arising under this policy. Said evaluation shall take into account all available relevant information in addition to the nature, type, number and substance of the allegations contained in any pleadings filed and/or served in any legal proceeding. All final determinations regarding the implementation and administration of this policy shall be made only by the Board of County Commissioners which is in accordance with AGO's 85-51, 89-22,'90-74 and 91-58. The Board shall also make all final determinaticns regarding the provision of a legal defense and/or paying legal expenses of County persons for any type of legal claim cr suit arising frc= a County person's performance of official duties while serving a valid public purpose if said type of claim or suit is not specifically addressed by this Resolution. 9. Collier County Board of County Commissioners Resolution Nos. 85-126 and 85-178 are hereby repealed and superseded in their entirety. This Resolution adcpted after motion, second and majority vote favoring same. ,ATTEST' •'; BOARD OF COUNTY COY-mISSIONERS DHIGHT'E:,.BROCX, Clerk COLLIER COON , FLORIDA •�� - .SETTYE J. 1�:T::_,:5, Chairman Approved as to fora and 4 lega2'suf Ziciency: ' -Ramiro Manalich Chief Assistant County Attorney sm -12- r rr r ri i r r r 7 r f t TABIX. OF CONTENTS S Power point Presentation 1 Ex Parte Communication Disclosure Before 4 Local Quasi -Judicial Boards Outline Case - Dade County v. Milton Jennings, 598 7 So.2d 75 Section 286.0115, Florida Statutes 20 September 13, 1999 Memo relating to Ex Parte Communications — Quasi -Judicial Proceedings Collier County Procedures pursuant to Resolution 27 No. 95-376 and Section 286.0115, Florida Statutes Order Denying Petition for Writ of Certiorari — Hofman v. City of Marco Island, Case No. 00- 26 2514-CA-01-HDH Ex-PARTE Communication Disclosure Before Local Quasi-judicial Boards ■ County Attorney's orficc ■ Marjorie M. Student, Assistant County Attorney 12W.., Background ■ ,!rulings' Rule ■ lliildi❑}S ■ Kalion;lfc 1 carom Determination of Nature of the Hearing ■ Ix"kialkCactions ■ Quasi judicial actions • ■ [�.�cruti� c or uhninisn'alivc actions Response of Florida Legislature to the Jennings' Rule ■ Background ■ Access to govemment legislation y �_ IIIIIIIIIIIIIII 1=a1W: Collier County's Response to Jennings' Rules ■ Resolution No. 95-376 ■ '"'hen disclosure is to be made ■ Applicability MOM Application of Resolution No. 95-376 by Collier County ■ Disclosure of oral communications • ■ Disclosure of written communications ■ Sitc Osits and invCSOgations ■ Nature offdisclosurc ■ Mien made i2M= .. ow ft- ftw EX PARTE COMMUNICATION DISCLOSURE BEFORE LOCAL QUASI-JUDICIAL BOARDS I. Background. A. Jennings' Rule. 1. Based on Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d DCA 1991), rev. denied 598 So. 2d 75 (75 Fla.). — B. Factual background. 1. In the Jennings case, a Mr. Schatzman filed a request for a variance to allow a quick oil change business on property adjacent to the Jennings' property. 2. The Zoning Appeals Board approved the variance. The approval was appealed to the Metro Dade County Commission which upheld the decision of the Zoning Appeals Board. 3. After the County Commission decision, Jennings discovered that a lobbyist for Schatzman had been to see the Commissioners on an individual basis urging the Commission to uphold the Zoning Appeals Board. 4. Jennings contended that variances are quasi-judicial in nature and because of that his federal and Florida constitutional due process rights had been denied by the ex parte meetings of Schatzman's lobbyist with the individual Commissioners. C. Holding. 1. The Third District Court of Appeal agreed holding that upon proof that a public official in a quasi-judicial proceeding was the subject of an ex parte contact, a presumption arises that the contact was prejudicial to the other party in the case. 2. The aggrieved party will be automatically entitled to have the local government's decision reversed and to receive a new and complete hearing before the Commission, unless it can be proven that the communication or contact was not, in fact, prejudicial. D. Rationale. 1. To assure that the proceedings before the quasi-judicial board are fair and impartial. 2. To provide a forum in which all sides of an issue can be presented and discussed prior to a final decision being made. II. Determination of nature of the hearing. A. Legislative actions. 1. The establishment of policy. a. Decision making body has broad discretion in reaching its decision. 2. Examples. a. County -wide rezoning actions. b. LDC amendments. c. GMP amendments. B. Quasi-judicial actions. 1. The implementation of policy which has already been established by law by the application of the law to a given set of facts. 2. Examples. a. Variances. b. Conditional uses. c. Site -specific rezonings such as rezonings to PUD. C. Executive or administrative actions. 1. The straightforward implementation of policy decisions previously reached, without the need for the exercise of discretion. 2. Examples. a. Plat approval where statutory requirements were satisfied. III. Response of Florida Legislature to the Jennings' Rule. A. Background. 1. The fact that elected officials could no longer talk to their constituents about zoning and related issues caused no end of anger among local government officials, residents, developers, environmentalists and others especially in an era when citizens are encouraged to participate in government. B. Section 286.0115(1), Florida Statutes, The Access to Government. Legislation, BB-5 (1995 Sess.). 1. This legislation removes the presumption that ex parte contacts in a quasi-judicial matter are prejudicial. 2. It provides that local governments may pass a resolution or an ordinance waiving the Jennings' Rule provided that the local government adopt procedures requiring that any ex parte contact be disclosed prior to final decision -making on an issue, that with whom the contact was made and the substance of the contact be announced and that individuals attending the hearing who hold views contrary to the substance of the ex parte communication be given an opportunity to express their contrary views. IV. Collier County response to Jennings' Rule. A. Resolution Number 95-376 adopted June 20, 1995. 1. The presumption of prejudice arising from an ex parte contact with local public officials is removed under the following circumstances. a. The substance of any oral ex parte communication is disclosed and made a part of the record. The identity of the person, group or entity with whom the oral 2 communication took place is disclosed and made part of the record. b. Any written communication must be disclosed and made a part of the record. C. The existence of any investigations, site visits, expert opinions must be disclosed and made part of the record. 2. When disclosure is to be made. a. Prior to final action on the item. i.) Must be made before or during the public hearing at which a vote is taken on the matter, so that persons who have an opinion contrary to those expressed in the ex parte communication are given a reasonable opportunity to refute or respond to the communication. 3. Applicability. a. Any elected public official who takes quasi-judicial action as a member of a county board or commission. b. Any appointed public official who recommends or takes quasi-judicial action as a member of a county board or commission. V. Application of Resolution 95-376 by Collier County. A. Disclosure of oral communications. 1. Telephone. 2. Meeting. B. Disclosure of written communications. 1. Letters. 2. Electronic mail ("e-mail'). 3. Reports from experts. C. Site visits and investigations. D. Nature of disclosure. 1. Date. 2. Name of individual(s) or entity(ies). 3. Substance of communication. E. When made. 1. At the beginning of the hearing on any given item. VI. Recent local case law. A. Hof nan v. City of Marco Island, Case No. 00-2514-CA-0I-HDH (Fla. 2& Cir. Ct. November 2000). 1. Marco Island City Council followed the essential requirements of law in making disclosure of ex parte communication despite contention that the disclosure was incomplete since not all contents of the communications were disclosed. Get a Document - by Citation - 598 So. 2d 75 7 Service: Get by LEXSEE® Citation: 598 so2d 75 47- Select for FOCUSTM or Delivery c 598 So. 2d 75; 1992 Fla. LEXIS 486, * DADE COUNTY, Petitioner, v. MILTON S. JENNINGS, Respondent. CASE NO. 79,252 SUPREME COURT OF FLORIDA 598 So. 2d 75; 1992 Fla. LEXIS 486 March 10, 1992, Decided PRIOR HISTORY: [*1] DISTRICT COURT OF APPEAL, 3RD DISTRICT NO. 88-1324, 88-1325 Original Opinion of December 17 1991 Reported at 1991 Fla App. LEXIS 12672 JUDGES: MCDONALD, Acting C.J., BARKETT, KOGAN and HARDING, JJ., concur, GRIMES, J., dissents OPINION: This cause having heretofore been submitted to the Court on jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Article V, Section 3 (b), Florida Constitution (1980), and the Court having determined that it should decline to accept jurisdiction, it is ordered that the Petition for Review is denied. No Motion for Rehearing will be entertained by the Court. See Fla. R. App. P. 9.330(d). MCDONALD, Acting C.J., BARKETT, KOGAN and HARDING, JJ., concur GRIMES, I., dissents Service: Get by LEXSEE® Citation: 598 so2d 75 View: Full Date/Time: Friday, December 20, 2002 - 2:13 PM EST About LexisNexis I Terms and Conditions CQW.rght ® 2002 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. http://www.lexis.comlresearchlretrieve?_m=bf9f07f8l b2dOa84cff85e25cab73e3l &docnui... 12/20/2002 Get a Document - by Citation - 589 So. 2d 1337 Service: Get by LEXSEEO Citation: 589 so2d 1337 .F'Select for FOCUSTM or Delivery C 589 So. 2d 1337, *; 1991 Fla. App. LEXIS 7720, **; 16 Fla. L. Weekly D 2059 MILTON S. JENNINGS, Appellant, v. DADE COUNTY and LARRY SCHATZMAN, Appellees Case Nos. 88-1324, 88-1325 COURT OF APPEAL OF FLORIDA, THIRD DISTRICT 589 So. 2d 1337; 1991 Fla. App. LEXIS 7720; 16 Fla. L. Weekly D 2059 August 6, 1991, Filed SUBSEQUENT HISTORY: [**I] Rehearing Granted December 17, 1991, Reported at 1991 Fla. App, LEXIS 12672. PRIOR HISTORY: On Petition for Writ of Certiorari. DISPOSITION: For the foregoing reasons, the application for common law certiorari is granted. The orders of the circuit court are quashed and remanded with directions. CASE SUMMARY PROCEDURAL POSTURE: Appellant landowner challenged the decision of the Dade County Commission (Florida) which upheld a decision to grant appellee landowner a variance to operate an oil change business. Appellant filed a complaint with the trial court, alleging that appellee landowner's lobbyist improperly communicated with commissioners. The trial court dismissed appellant's claim against appellee landowner and gave him leave to proceed against appellee Dade County. OVERVIEW: Following the Dade County Commission's decision to affirm the zoning board's decision to grant a variance to allow appellee landowner to operate an oil change business, appellant landowner learned that appellee landowner's lobbyist had ex parte communications with commissioners and brought an action against appellees, landowner and Dade County, alleging a procedural due process violation. The court stated that due process requirements of quasi-judicial hearings were less than those of judicial hearings, but that certain standards of basic fairness had to be met. The court held that ex parte communications were anathema to quasi-judicial proceedings, but they might be unavoidable at times and did not mandate automatic reversal. However, the court held that ex parte communications denied due process when a party alleged and proved prejudice resulted from the contact, and the court set forth criteria for trial courts to determine the prejudicial effect of an ex parte communication. The court held that the ex parte communication in this case met the criteria and entitled appellant to maintain an original equitable proceeding in the trial court to demonstrate the merits of his claim. OUTCOME: The court quashed the orders of the trial court and held that there was sufficient evidence that a lobbyist for appellee landowner had detrimental ex parte http://www.lexis.comlresearch/retrieve?_m=878b9617dadl ede4c6da496aO93f9O6d&docn... 12/20/2002 Get a Document - by Citation - 589 So. 2d 1337 communications with commissioners to permit appellant to maintain an original equitable proceeding in the trial court to demonstrate the merits of his claim. CORE TERMS: quasi-judicial, lobbyist, ex parte communication, variance, ex parte, lobbying, zoning, notice, county commission, complaining party, rezoning, administrative law, administrative body, common law, legislative act, land use, tribunal, innocent party, ordinance, administrative hearing, conclusions of law, preclusive effect, interested party, quasi -judicially, disqualification, disqualifying, contemplates, categorize, treating, litigate LexisNexis(TM) HEADNOTES - Core Concepts - * Hide Concepts R Administrative Law > Judicial Review > Reviewability > Jurisdiction & Venue HNI+A court's common law certiorari jurisdiction exists when an administrative board's order sought to be reviewed a) constitutes a departure from the essential requirements of law, and b) requires the aggrieved party to litigate a putative claim in a proceeding that cannot afford him the relief requested and for that reason does not afford him an adequate remedy. Administrative Law > Agency Adjudication > Hearings Constitutional Law > Procedural Due Process > Scone of Protection HN2+The quality of due process required in a quasi-judicial hearing is not the same as that to which a party to full judicial hearing is entitled. Quasi-judicial proceedings are not controlled by strict rules of evidence and procedure. Nonetheless, certain standards of basic fairness must be adhered to in order to afford due process. Consequently, a quasi-judicial decision based upon the record is not conclusive if minimal standards of due process are denied. A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard. In quasi-judicial zoning proceedings, the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts. Administrative Law > Agency Adjudication > Bias & Ex Parte Contacts Constitutional Law > Procedural Due Process > Scope of Protection HN3+Ex parte communications are anathema to quasi-judicial proceedings. Ideally, quasi-judicial officers should avoid all such contacts where they are identifiable. However, commissioners are elected officials in which capacity they may unavoidably be the recipients of unsolicited ex parte contacts regarding quasi- judicial matters they are to decide. The occurrence of such a communication in a quasi-judicial proceeding does not mandate automatic reversal. However, ex parte contacts deny due process only where the complaining party alleges and ultimately proves prejudice resulted from the contact. Administrative Law > Agency Adjudication > Bias & Ex Parte Contacts Constitutional Law > Procedural Due Process > Scope of Protection HNa±In determining the prejudicial effect of an ex parte communication, the trial court should consider whether, as a result of improper ex parte communications, the agency's decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair, either as to an innocent party or to the public interest that the agency was obliged to protect. In making this determination, a number of considerations may be relevant: the gravity of the ex parte communications; whether the contacts may have influenced the agency's ultimate decision; whether the party making the improper contacts benefited from the agency's ultimate decision; whether the contents of the communications were unknown to opposing parties, who therefore had no opportunity to respond; and http://www.lexis.comlresearch/retrieve?_m=878b9617dadl ede4c6da496a093f906d&docn... 12/20/2002 Get a Document - by Citation - 589 So. 2d 1337 IN whether vacation of the agency's decision and remand for new proceedings would serve a useful purpose. Any such decision must of necessity be an exercise of equitable discretion by the trial court. COUNSEL: John G. Fletcher, for appellant Robert D. Korner and Roland C. Robinson; Robert A. Ginsburg, County Attorney, and Eileen Ball Mehta and Craig H. Coller, Assistant County Attorneys, for appellees. Joel V. Lumer for The Sierra Club as Amicus Curiae. JUDGES: Barkdull, * Nesbitt and Ferguson, JJ. Barkdull, J., concurs. Ferguson, Judge, concurring in part and dissenting in part. * Judge Barkdull participated in decision only. OPINIONBY: NESBITT OPINION: [*1339] The issue we confront is the effect of an ex parte communication upon a decision emanating from a quasi-judicial proceeding of the Dade County Commission. We hold that when the communication is shown to be prejudicial to the complaining party, the aggrieved party may be entitled to a new and complete hearing before the commission. For the reasons that follow, we quash the order under review with directions. Respondent Schatzman applied for a variance to permit him to operate a quick oil change [**2] business on his property adjacent to that of petitioner Jennings. The Zoning Appeals Board granted Schatzman's request. The county commission upheld the board's decision. Six days prior to the commission's action, a lobbyist Schatzman employed to assist him in connection with the proceedings registered his identity as required by section 2-11.1(s) of the Dade County Ordinances. Jennings did not attempt to determine the content of any communication between the lobbyist and the commission or otherwise challenge the propriety of any communication prior to or at the hearing. Following the commission order, Jennings filed an action for declaratory and injunctive relief in circuit court wherein he alleged that Schatzman's lobbyist communicated with some or all of the county commissioners prior to the vote, thus denying Jennings due process both under the United States and Florida constitutions as well as section (A)(8) of the Citizens' Bill of Rights, Dade County Charter. Jennings [*1340] requested the court to conduct a hearing to establish the truth of the allegations of the complaint and upon a favorable determination then to issue a mandatory injunction prohibiting use of the property as allowed [**3] by the county. Based upon the identical allegations, Jennings also claimed in the second count his complaint that Schatzman's use of the permitted variance constituted a nuisance which he requested the court to enjoin. The trial court dismissed Count I of the complaint, against both Dade County and Schatzman. The court gave Jennings leave only against Dade County to amend the complaint and to transfer the matter to the appellate division of the circuit court. The trial court denied Schatzman's motion to dismiss Count II and required him to file an answer. Jennings then timely filed this application for common law certiorari. We have jurisdiction based on the following analysis. The trial court's order dismissed Jennings' equitable claim of non -record ex parte communications while it simultaneously reserved jurisdiction for Jennings to amend his complaint so as to seek common law certiorari review pursuant to Dade Countv, v. Marca._SA.1 326 So. 2d 183 (Fla._197j5)_ Under Marca, Jennings would be entitled solely to a review of the record as it now exists. However, since the content of ex parte contacts is not part of the existing record, such review would deny [**4] Jennings the opportunity to ascertain the contacts' impact on the proceeding. hnp://www.lexi s.com/researchlretrieve?_m=878b9617dad 1 ede4c6da496aO93f9O6d&docn... 12/20/2002 Get a Document - by Citation - 589 So. 2d 1337 11 This order has the effect then of so radically altering the relief available to Jennings that it is the functional equivalent of requiring him to litigate in a different forum. "ITThus, Jennings' timely petition activates our common law certiorari jurisdiction because the order sought to be reviewed a) constitutes a departure from the essential requirements of law, and b) requires him to litigate a putative claim in a proceeding that cannot afford him the relief requested and for that reason does not afford him an adequate remedy. See Tantillo_v.. Miliman, 87 So. 2d 413 (Fla. 1956); Norris v. Southern Bell Tel. & Tel. Co. 324 So. 2d 108 (Fla. 3d DCA 1960)• Easley v. Garden Sanctuary, Inc., 120 So. 2d 59 (Fla 3d DCA 1960) The same reasoning does not apply against Schatzman. Nonetheless, because we have jurisdiction there is no impediment to our exercising it over Schatzman as a party. HH2TAt the outset of our review of the trial court's dismissal, we note that the quality of due process required in a quasi-judicial hearing is not the same as that to which [**5] a party to full judicial hearing is entitled. See Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 42 L. Ed 2d 725 (1975); Hadley v. Department of Admin., 411 So 2d 184 (Fla 1982)_ Quasi-judicial proceedings are not controlled by strict rules of evidence and procedure. See As_tore v_ Florida Real Estate Comm'n, 374 So. 2d 40 (Fla. 3d DCA 1979); Woodham v. Williams, 207 So. 2d 320 (Fla. 1st DCA 1968). Nonetheless, certain standards of basic fairness must be adhered to in order to afford due process. See Hadley,_411 So.2d_at 18.4 City of Miam_iv_. Jervis, 139 So. 2d 513 (Fla. 3d DCA 1962)_ Consequently, a quasi-judicial decision based upon the record is not conclusive if minimal standards of due process are denied. See Morgan v. United States, 298 U.S. 4.68, 480_=8.1�56 S._Ct. 906,_80 L.Ed. 1288__(_1936 ; Western Gillette,_Inc. v. Arizona Corp. Comn 'n 121 Ariz. 541.592 P.2d 375 Ct. App. 19791_ A quasi- judicial hearing generally meets basic due process requirements if the parties [**6] are provided notice of the hearing and an opportunity to be heard. In quasi-judicial zoning proceedings, the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts. Coral Reef Nurseries. Inc, v. Babcock Co.. 410 So. 2d 648, 652 (Fla. 3d DCA 1982) nl -- -- -- ------ - - - - -- Footnotes - - - - ------ --- - - - -- ni It was conceded at oral argument that the hearing before the commission in this case was quasi-judicial, ---------- - - - - -- - End Footnotes - - - - - - - - - - - - - - - - - The reported decisions considering the due process effect of an ex parte communication upon a quasi-judicial decision are conflicting. Some courts hold that an ex parte communication does not deny due process where the substance of the communication was capable of discovery by the complaining party in time to rebut it on the record. See, e.g., Richardson v. Perales, 402 U.S.. 389 410_[.*.1341,_ 91 S. Ct. 1420,_28 L. Ed. 2d 84_2_(1971); United Air Lines, Inc._v. C.A.B.. 114 App. D.C. 17, 309 F.2d 238 (D.C. Cir. 196 ); Jarrott v. Scrivener 225 F. Supp. 827 834 (D.D.C. 1964). [**7] Other courts focus upon the nature of the ex parte communication and whether it was material to the point that it prejudiced the complaining party and thus resulted in a denial of procedural due process. E.g., Waste Management v. Pollution Control Bd., 175 III App. 3d 1023 530 N E 2d 682 125 III Dec 524 (Ct. App. 1988)' appeal denied, 125 III. 2d 575, 130 III. Dec 490 537 N E 2d 819 (1989); Professional Air TrafficControllers Or PATCO) v. Federal Labor Relations Auth., 222 Apo. D.C. 97, 685 F.2d 547 564-65 (D.C.Cir. 1982); Erdman v. Ingraham, 28 A.D 2d 5 280 N.Y.S.2d 865, 870 (Ct App. 1967). The county adopts the first position and argues that Jennings was not denied due process because he either knew or should have known of an. ex parte communication due to the mandatory registration required of lobbyists. The county further contends that Jennings failed to avail himself of section 33-316 of the Dade County Code to subpoena the lobbyist to testify at the hearing so as to detect and refute the content of any ex parte communication. http://www.lexis.comlresearch/retrieve?_m=878b9617dadl ede4c6da496aO93f9O6d&docn... 12/20/2002 Get a Document - by Citation - 589 So. 2d 1337 12 We disagree with the county's position. HN3*Ex parte communications are anathema [**8] to quasi-judicial proceedings. Ideally, quasi-judicial officers should avoid all such contacts where they are identifiable. However, we recognize the reality that commissioners are elected officials in which capacity they may unavoidably be the recipients of unsolicited ex parte contacts regarding quasi-judicial matters they are to decide. Nevertheless, the occurrence of such a communication in a quasi-judicial proceeding does not mandate automatic reversal. We hold that ex parte contacts deny due process only where the complaining party alleges and ultimately proves prejudice resulted from the contact. E.g., Waste Management; PATCO. HN4'!In determining the prejudicial effect of an ex parte communication, the trial court consider the following criteria which we adopt from PATCO. 685 F.2d at 564-65: whether, as a result of improper ex parte communications, the agency's decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair, either as to an innocent party or to the public interest that the agency was obliged to protect. In making this determination, a number of considerations may be relevant: the gravity [**9] of the ex parte communications; whether the contacts may have influenced the agency's ultimate decision; whether the party making the improper contacts benefited from the agency's ultimate decision; whether the contents of the communications were unknown to opposing parties, who therefore had no opportunity to respond; and whether vacation of the agency's decision and remand for new proceedings would serve a useful purpose. Since the principal concerns of the court are the integrity of the process and the fairness of the result, mechanical rules have little place in a judicial decision whether to vacate a voidable agency proceeding. Instead, any such decision must of necessity be an exercise of equitable discretion. Accord E & E H_a_ ulina, Inc. v. Pollution Cont_rol.Bd _ 116 III_ AppT3d 586 451 N,E.2d555 571 71 III. Dec 587 (Ct App 1983), aff'd, 107 III. 2d 33 481 N.E.2d 664, 89Ill Dec. 821 1985 . Accordingly, we hold that when an ex parte communication [*1342] in a quasi-judicial proceeding before the Dade County Commission is alleged to be prejudicial according to the above criteria, it will entitle the complaining party to maintain an original equitable [**10] proceeding in the circuit court to demonstrate the merits of the claim. n2 - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n2 In such a proceeding, the principles and maxims of equity are applicable. See 22 Fla.Jur.2d Equity §§ 44, et seq. (1980). -- -- ------ - - - - -- - End Footnotes - - - - - - - - - - - - - - - - - In the present case, Jennings' complaint does not allege that any communication which did occur caused him prejudice. Consequently, we direct that upon remand Jennings shall be afforded an opportunity to amend his complaint. Upon such an amendment and after evidentiary hearing, if the trial court determines that prejudice has occurred according to the standards established by this decision, it will be required to return the case to the commission for a new and complete hearing. n3 --------------- - - - Footnotes - - - - ---- ---- - - -- -- n3 Cf. _Irvi_ne y_Duval_Cou.nty Planning Comm'n, 504 So...2d 1265_(Fla. 1st. DCA 1986), on remand from, Irvine v. Duval County 495 So. 2d 167 (Fla. 1986). http://www.lexis.conVresearch/retrieve?_m=878b9617dadl ede4c6da496a093f906d&docn... 12/20/2002 Get a Document - by Citation - 589 So. 2d 1337 13 ---- ---------- - - - End Footnotes - - - - - - - - - - - - - - - -- [**11] For the foregoing reasons, the application for common law certiorari is granted. The orders of the circuit court are quashed n4 and remanded with directions. - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n4 Nothing in this decision shall affect our holding in Izaak Walton_Leag_ue of America v. Monroe County 448 So. 2d 1170 (Fla. 3d DCA 1984 (county commission acting in a legislative capacity). -- -------- - - - - -- - End Footnotes - - - - - - - - - - - - - - - -- CONCURBY: FERGUSON (In Part) DISSENTSY: FERGUSON (In Part) DISSENT: FERGUSON, Judge (concurring in part and dissenting in part) I concur in the result and write separately to address two arguments of the appellees: (1) The appellant waived the right to complain of the lobbying activities and, (2) this court in Coral Reef Nurseries. Inc. v. Babcock Co•• 410 So. 2d 648 (Fla. 3d DCA 1982) rejected attempts to categorize county commission hearings on district boundary changes as "legislative," while treating hearings on applications for special exceptions or variances as "quasi-judicial." It is clear from Judge Nesbitt's opinion for the court that neither argument is accepted. [**12] I disagree with that part of the majority opinion which places the burden on the innocent party to prove prejudice, where there is an ex parte communication between a member of a decision -making tribunal and an interested party regarding the case. Waiver We hold that simply registering as a lobbyist was not sufficient notice to the opposing party so as to support a waiver defense. The single page registration form, filed with the clerk only four working days before the scheduled hearing, gave only the lobbyist's name, the name and address of his employer, the case and item number, and the fact that the lobbyist had previously been employed by one of the commissioners. There was no case name, content of the communication, or certificate of mailing a copy of the filing to the opposing party. It is not sufficient, for the purpose of a waiver defense, that a party simply file a notice of a lobbyist's intervention with the clerk. Where the proceeding is quasi-judicial as a matter of law, and opposing parties have formally appeared, a timely notice of the lobbying activity must be served upon the parties. Further, there is also an obligation of commissioners to disclose on the record, [**13] at the commencement of proceedings, the fact, and content of, an ex parte communication with an interested party or his agent. See generally C.J.S. Public Administrative Law and Procedure § 126 (1983) (if evidence outside the record is received in adjudicatory hearing before administrative body, commissioner must apprise parties of the fact); 82 Am.Jur.2d Zoning & Planning § 316, at 882 (1976) (ex parte contacts should be placed on record and exposed to full view). Legislative and Quasi -Judicial Functions Distinct In support of its second argument, that "this Court has previously rejected attempts to categorize county commission hearings on district boundary changes as 'legislative,' while treating hearings on applications for special exceptions or variances as 'quasi-judicial,' Dade County cites Coral Reef Nurseries Inc v Babcock Company, 410 So 2d 648 (Fla 3d DCA I982). The argument is made for the purpose of bringing this case within what the appellees http://www.lexis.comlresearch/retrieve?_m=878b9617dad 1 ede4c6da496a093f906d&docn... 12/20/2002 Get a Document - by Citation - 589 So. 2d 1337 14 describe as a legislative -function exception to the rule against ex parte communications. Indeed, there is language in the Coral Reef opinion, particularly the dicta that "it is the character [**14] of the administrative hearing leading to the action of the administrative body that determines the label" as legislative or quasi-judicial, Coral Reef at 652, which, when read out of context, lends support to Dade County's contentions. As an abstract proposition, the statement is inaccurate. Whereas the character of an administrative hearing will determine whether the proceeding is quasi-judicial or executive, DeGroot v. Sheffield 95 So. 2d 912 915 (Fla 1957), it is the nature of the act performed that determines its character as legislative or otherwise. Suburban Medical Center v. Olathe Community Hosp 226 Kan 320 597 P 2d 654 661 (1979). See also Walgreen Co. v. Polk County, 524 So. 2d 1119, 1120 r*13431 Fla. 2d DCA 1988) ("The quasi-judicial nature of a proceeding is not altered by mere procedural flaws."). A judicial inquiry investigates, declares and enforces liabilities as they stand on present facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule to be applied thereafter [**15] to all or some part of those subject to its power. Suburban Medical Center, 5_97 P.2d at 661 (quoting Prentis v. Atlantic Coast Li Co.211 U.S. 210, 226, 29 S. Ct. 67 69 53 L. Ed. 150 (1905)). nl ------- ---- - - - - -- - Footnotes - - ----- ----- - - - - -- nl In citing Coral Reef the majority opinion refers to "quasi-judicial zoning proceedings," a confounding phrase which has its genesis in Rinker Materials Corp. v Dade County, 528 So 2d 904, 906, n.2 (Fla. 3d DCA 1987)_ There Dade County argued to this court that the according of "procedural due process" converts a legislative proceeding into a quasi-judicial proceeding, citing Coral Reef. That proposition runs afoul of an entire body of administrative law. If an act is in essence legislative in character, the fact of a notice and a hearing does not make the act a judicial act. If it would be a legislative act without notice and a hearing, it is still a legislative act with notice and a hearing. See Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S. Ct. 67. 53 L. Ed. 150 1908 - Reagan v. Farmers' Loan & Trust Co.. 154 U.S. 362, 14 S. Ct. 1047 38 L.Ed. 1014 (1894). -------------- - - - End Footnotes - - - - - - - - - - - - - -- [**16] It is settled that the enactment and amending of zoning ordinances is a legislative function -- by case law, Sch_auer.y. City ofM._iami Beach, 1.12 So. 2d 83.8...jFla. 195.9);. Machado v. Musgrove 519 So. 2d 629 (Fla. 3d DCA 1987) (en banc), rev, denied, 529 So. 2d 694 (Fla. 1988). by statute, sections 163.3161 and 166.041, Florida Statutes (1989), and by ordinance, Dade County Code § 35-303. See also Anderson, Law of Zoning, § 1.13 (2d Ed. 1976) (zoning is a legislative act representing a legislative judgment as to how land within the city should be utilized and where the lines of demarcation between the several zones should be drawn); 101 C.J.S. Zoning and Land Planning § 1 (1958) (same). It is also fairly settled in this state that the granting of variances, n2 and special exceptions or permits, are quasi-judicial actions. n3 Walgreen Co, v. Polk County, 524 So 2d 1119 1120 (Fla 2d DCA 1988); City of New Smyrna Beach v Barton 414 So 2d 542 (Fla. Sth DCA)(Cowart, J., concurring specially), rev. denied, 424 So. 2d 760 (Fla. 1982)_� City of Apopka v. Orange County, 299 So. 2d 657 (Fla. 4th DCA 1974)• [**17] Sun Ray Homes. Inc. v. County of Dade. 166 So. 2d 827 (Fla. 3d DCA 1964). - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n2 A variance is a modification of the zoning ordinance which may be granted when such http://www.lexis.com/research/retrieve?_m=878b9617dad1 ede4c6da496a093f906d&docn... 12/20/2002 Get a Document - by Citation - 589 So. 2d 1337 15 variance will not be contrary to the public interest and when, owing to conditions peculiar to the property and not the result of the actions of the applicant, a literal enforcement of the ordinance would result in unnecessary and undue hardship. 7 Fla Jur 2d, Building, Zoning, and Land Controls, § 140 (1978). The normal function of a variance is to permit a change in "building restrictions or height and density limitations" but not a change in "use classifications". George v. Miami Shores Village 154 So. 2d_729 (Fla. 3d DCA 1963)._ n3 An administrative body acts quasi -judicially when it adjudicates private rights of a particular person after a hearing which comports with due process requirements, and makes findings of facts and conclusions of law on the disputed issues. Reviewing courts scrutinize quasi-judicial acts by non -deferential judicial standards. See City of Apopka v. Orange County, 299 So. 2d 657 (Fla. 4th DCA 1974). On review of legislative acts the court makes a deferential inquiry, i.e., is the exercise of discretionary authority "fairly debatable." Southwest Ranches Homeowners Ass'n v County, 502 So. 2d_931 (Fla. 4th DCA), rev. denied, 511 So. 2_d 999 (Fla..1987).. Further, there is no requirement that a governmental body, acting in its legislative capacity, support its actions with findings of fact and conclusions of law. [**18] ------ ---- - - - - -- - End Footnotes - - - - - - - - - - - - - - - A variance contemplates a nonconforming use in order to alleviate an undue burden on the individual property owner caused by the existing zoning. Rezoning contemplates a change in existing zoning rules and regulations within a district, subdivision or other comparatively large area in a given governmental unit. Troup v. Bird 53 So. 2d 717 (Fla 1951); Mayflower Property.Inc. v. City of Fort Lauderdale 137 So. 2d 849LIa. 2d DCA 19621; 101A C.J.S. Zoning and Land Planning § 231 (1979). Coral Reef Case Clarified Coral Reef involved a legislative action. The issue before the court was whether [*1344] there was a showing of substantial and material changes in a 1979 application for a rezoning so that a 1978 denial of an application for the same changes, on the same parcel, by the same applicant, would not be precluded by res judicata principles. It was not necessary to hold the 1978 hearing quasi-judicial in character in order to find that the 1978 resolution had preclusive effect on the 1979 zoning hearing. There is a requirement for procedural fairness in [**19] all land use hearings, whether on an application for a boundary change or a variance. Adherence to that constitutional standard, however, does not alter the distinct legal differences between quasi-judicial and legislative proceedings in land use cases. We clarify Coral Reef, in accordance with its facts, as holding only that legislation denying an application for rezoning, has a preclusive effect on a subsequent application for the same rezoning, unless the applicant can show substantial and material changes in circumstances. Treister v. City of Miami. 575 So 2d 218 (Fla 3d DCA 1991), relying on Coral Reef. An interpretation of Coral Reef as holding that there is no longer a distinction between legislative actions and quasi-judicial actions of a county commission in land use cases goes far beyond the actual holding of the case, and is clearly erroneous. See note 1 infra. Reliance by the appellees on Izaak Walton League of America v Monroe County, 448 So 2d 1170 (Fla. 3d DCA 1984), is similarly misplaced. In that case we held that county commissioners, when acting in their legislative capacities, have the right to publicly [**20] _ state their views on pending legislative matters. It does not address the issue of ex parte communications or prehearing pronouncements in quasi-judicial proceedings. http://www.lexis.conVresearch/retrieve?_m=878b9617dadl ede4c6da496a093f906d&docn... 12/20/2002 Get a Document - by Citation - 589 So. 2d 1337 16 Lobbying Jennings argues here that the behind -the -scenes lobbying n4 of the commissioners by Schatzman, for the purpose of influencing the outcome of an appeal from a quasi-judicial proceeding, violated the Citizens' Bill of Rights n5 of the Dade County Charter, as well as the due process provisions of the United States and Florida Constitutions. We agree, obviously, that the lobbying actions were unlawful. Dade County and Schatzman respond that Jennings has not alleged a resulting prejudice. In the opinion for the court it is concluded that Jennings must prove that the decision granting the variance was influenced by the lobbyist's efforts. - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n4 "'Lobbying' is defined as any personal solicitation of a member of a legislative body during a session thereof, by private interview, or letter or message, or other means and appliances not [necessarily] addressed solely to the judgment, to favor or oppose, or to vote for or against, any bill, resolution, report, or claim pending, or to be introduced ..., by any person ... who is employed for a consideration by a person or corporation interested in the passage or defeat of such bill, resolution, or report, or claim, for the purpose of procuring the passage or defeat thereof." Black's Law Dictionary 1086 (rev. 4th ed. 1968). (Emphasis supplied). The work of lobbying is performed by lobbyists. A lobbyist is one who makes it a business to "see" members of a legislative body and procure, by persuasion, importunity, or the use of inducements, the passing of bills, public as well as private, which involve gain to the promoters. Id. [**21] n5 Section a(8), Citizens' Bill of Rights, Dade County Charter, provides in pertinent part: At any zoning or other hearing in which review is exclusively by certiorari, a party or his shall be entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. The decision of any such agency, board, department or authority must be based upon the facts in the record. --- ----------- - - - End Footnotes - - - - - - - - - - - - - - - Prejudice should be presumed without further proof from the mere fact that any county commissioner granted a private audience to a lobbyist, whose purpose was to solicit the commissioner to vote a certain way in an administrative proceeding for reasons not necessarily addressed solely to the merits of the petition, and that the commissioner did vote accordingly. Starting with the legal definition of lobbying, [*1345] see note 4 infra, and applying common knowledge as to how the practice works, there is a compelling reason for placing the burden of proving no prejudice on the party responsible for the [**22] ex parte communication. While I agree, reluctantly, that an ex parte communication with a quasi- judicial tribunal makes its final action voidable, rather than void per se, the better rule would be to require the party represented by the lobbyist to show by clear and convincing proof that the outcome of the administrative proceeding was not influenced by the unlawful conduct. n6 - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n6 PATCO v_ Federal Labor Relations Au 222 App. D.C._97, 685_F_2d 547_jD..C. Or. 198ZL relied on by Judge Nesbitt, supports this view. There the court was construing section 557(d)(1) of the Administrative Procedure Act, governing ex parte communications. The Act provides, in subsection (C) that a member of the body involved in the decisional process who receives any prohibited communication shall place the contents of the communication on public record. Subsection (D) states that where the communication was knowingly made by a party in violation of this subsection, the party may be required "to show cause why his claim http://www.lexis.con/researchlretrieve?_m=878b9617dad 1 ede4c6da496aO93f9O6d&docn... 12/20/2002 Get a Document - by Citation - 589 So. 2d 1337 17 or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation." 5 U.S. GA• 5.557(d)(1)(C), (D). The PATCO holding quoted in the majority opinion was based on a conclusion reached, after a full evidentiary hearing, that the challenged ex parts communications made only "accidental or passing reference to a pending case and (did] not per se deprive a party of a fair hearing." 685 F.2d at 567. PATCO did not involve lobbying and did not place the burden on the innocent party to prove prejudice. ---------- - - - - -- - End Footnotes - - - - - - - - - - - - - - - -- [**23] Ex parte lobbying of an administrative body acting quasi -judicially denies the parties a fair, open, and impartial hearing. Suburban Medical Center v Olathe Community Hoso 226 Kan 320, 597 P.2d 654 (1979). Adherence to procedures which insure fairness "is essential not only to the legal validity of the administrative regulation, but also to the maintenance of public confidence in the value and soundness of this important governmental process." Id. at 662 (citing 2 Am.Jur.2d Administrative Law § 351). The strong constitutional compulsions which led to the establishment of rules regarding the disqualification of judges apply with equal force to every tribunal exercising judicial or quasi-judicial functions. 1 Am.3ur.2d Administrative Law § 64, at 860 (1962); City of Tallahassee v. Florida Pub. Serv. Commrn 441 So._2d 620 (Fla_ 1_983) (standard used in disqualifying agency head is same standard used in disqualifying judge). See also Rogers v. Friedman, 438 F. Supp_428 (ED. Tex. 1977) (rule as to disqualification of judges is same for administrative agencies as it is for courts) (citing K. Davis, [**24] Administrative Law § 12.04, at 250 (1972)). Ritter v. Board_. of Comm'rs of Adams County, 96 Wash.2d 503 _637_P_.2d 940 1981) (same). Service: Get by LEXSEEO Citation: 589 so2d 1337 View: Full Date/Time: Friday, December 20, 2002 - 2:13 PM EST About LexisNexis I Terms and Conditions Copyright ® 2002 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. http://www.lexi s.com/research/retrieve?_m=878b9617dad lede4c6da496aO93f9O6d&docn... 12/20/2002 Check a Citation - Shepard's® - 598 So. 2d 75 18 Signal: 0 Cited and neutral analysis indicated 10 Citation: 598 So. 2d 75 (Get this Document, Table of Authorities) a ---- �J� Dade County v. Jennings, 598 So. 2d 75, 1992 Fla. LEXIS 486 (Fla. 1992) PRIOR HISTORY ( 2 citing references ) ♦ Hide Prior History Jennies v_._Dade County, 589 So. 2d 1337, 1991 Fla. App. LEXIS 7720, 16 Fla. L. Weekly D 2059 (Fla. Dist. Ct. App. 3d Dist. 1991) Remanded by, On rehearing at: Jennings v, Dade County, 1991 Fla. App. LEXIS 12672, 17 Fla. L. Weekly D 26 (Fla. Dist. Ct. App. 3d Dist. Dec. 17, 1991) Review denied by (CITATION YOU ENTERED): Dade County v. Jennings, 598 So. 2d 75, 1992 Fla. LEXIS 486 (Fla. CITING DECISIONS ( 5 citing decisions ) FLORIDA SUPREME COURT Cited by: Board of County-Com_m'rs v. 5nryder, 627 So. 2d 469, 1993 Fla. LEXIS 1628, 18 Fla. L. Weekly S 522 (Fla. 1993) Cited by: 627 So. 2d 469 p.472 FLORIDA DISTRICT COURT OF APPEALS Cited by: Mesa_y. City. of Miami _Nuisance Abatement. Bd., 673 So. 2d 500, 1996 Fla. App. LEXIS 3844, 21 Fla. L. Weekly D 910 (Fla. Dist. Ct. App. 3d Dist. 1996) Cited by: 673 So. 2d 500 p.502 Cited by: Lee County v Sunbelt Equities II Ltd Partnership, 619 So. 2d 996, 1993 Fla. App. LEXIS 5372, 18 Fla. L. Weekly D 1260 (Fla. Dist. Ct. App. 2d Dist. 1993) Cited by: 619 So. 2d 996 p1000 Cited by: Armesto v. Weidner, 615 So. 2d 707, 1992 Fla. App. LEXIS 12527, 18 Fla. L. Weekly D 6 http://www.iexis.conilresearch/retrieve?_m=10600e29dea3d0l45765e9412a l6e3d0&docr... 12/20/2002 Check a Citation - Shepard's® - 598 So. 2d 75 19 (Fla. Dist. Ct. App. 3d Dist. 1992) Cited by: 615 So. 2d 707 p710 FLORIDA Cited by: 1999 Fla. Op. Att'y Gen. No. Cited by: 1999 Fla. Op. Att'y Gen. No. 75 LAW REVIEWS AND PERIODICALS ( 1 Citing Reference ) Cited by: ARTICLE: EXECUTIVE DECISIONMAKING BY LOCAL LEGISLATURES IN FLORIDA: JUSTICE`UDICIAL REVIEW AND THE NEED FOR LEGISLATIVE REFORM, 25 Stetson L. Rev. 627 (1996) Cited by: 25 Stetson L. Rev. 627 p.632 Signal: Q Cited and neutral analysis indicated Citation: 598 So. 2d 75 (Get this Document, Table of Authorities) View: Full Date/Time: Friday, December 20, 2002 - 2:15 PM EST A44ut Lex s.Nexis I Term_s_end Conditions Copyright ® 2002 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. http://www.lexi s.comlresearch/retrieve?_m=l0600e29dea3dO l45765e9412al6e3dO&docr... 12/20/2002 Search - 1 Result - 286.0115 20 Source: Legal > States Legal - U.S. > Florida > Statutes & Regulations > FL - Florida Statutes, Constitution, Court Rules and Advance Legislative Service Q TOC: Florida Statutes, Constitution and Court Rules > / ._ / > CHAPTER 286_PUBLIC BUSINESS: MISCELLANEOUS PROVISIONS > § 286.0116. Access to local public officials; quasi -Judicial proceedings on local government land use matters Terms: 286.0116 (Edit Search) Fla. Stat. § 286.0115 LexisNexis (TM) Florida Annotated Statutes *** THIS DOCUMENT IS CURRENT THROUGH THE 2002 LEGISLATIVE SESSION *** *** December 2002 Annotation Service *** TITLE 19. PUBLIC BUSINESS CHAPTER 286. PUBLIC BUSINESS: MISCELLANEOUS PROVISIONS GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION Fla. Stat. § 286.0115 (2002) § 286.0115. Access to local public officials; quasi-judicial proceedings on local government land use matters (1) (a) A county or municipality may adopt an ordinance or resolution removing the presumption of prejudice from ex parte communications with local public officials by establishing a process to disclose ex parte communications with such officials pursuant to this subsection or by adopting an alternative process for such disclosure. However, this subsection does not require a county or municipality to adopt any ordinance or resolution establishing a disclosure process. (b) As used in this subsection, the term "local public official" means any elected or appointed public official holding a county or municipal office who recommends or takes quasi- judicial action as a member of a board or commission. The term does not include a member of the board or commission of any state agency or authority. (c) Any person not otherwise prohibited by statute, charter provision, or ordinance may discuss with any local public official the merits of any matter on which action may be taken by any board or commission on which the local public official is a member. If adopted by county or municipal ordinance or resolution, adherence to the following procedures shall remove the presumption of prejudice arising from ex parte communications with local public officials. 1. The substance of any ex parte communication with a local public official which relates to quasi-judicial action pending before the official is not presumed prejudicial to the action if the subject of the communication and the identity of the person, group, or entity with whom the communication took place is disclosed and made a part of the record before final action on the matter. 2. A local public official may read a written communication from any person. However, a written communication that relates to quasi-judicial action pending before a local public official shall not be presumed prejudicial to the action, and such written communication shall be made a part of the record before final action on the matter. 3. Local public officials may conduct investigations and site visits and may receive expert http://www.lexis-com/research/retrieve? m=4aa7e57ecd941 d81 b 192f3 87f2a072e6&_fmts... 12/20/2002 Search - 1 Result - 286.0115 21 opinions regarding quasi-judicial action pending before them. Such activities shall not be presumed prejudicial to the action if the existence of the investigation, site visit, or expert opinion is made a part of the record before final action on the matter. 4. Disclosure made pursuant to subparagraphs 1., 2., and 3. must be made before or during the public meeting at which a vote is taken on such matters, so that persons who have opinions contrary to those expressed in the ex parte communication are given a reasonable opportunity to refute or respond to the communication. This subsection does not subject local public officials to part III of chapter 112 for not complying with this paragraph. (2) (a) Notwithstanding the provisions of subsection (1), a county or municipality may adopt an ordinance or resolution establishing the procedures and provisions of this subsection for quasi-judicial proceedings on local government land use matters. The ordinance or resolution shall provide procedures and provisions identical to this subsection. However, this subsection does not require a county or municipality to adopt such an ordinance or resolution. (b) In a quasi-judicial proceeding on local government land use matters, a person who appears before the decisionmaking body who is not a party or party -intervenor shall be allowed to testify before the decisionmaking body, subject to control by the decisionmaking body, and may be requested to respond to questions from the decisionmaking body, but need not be sworn as a witness, is not required to be subject to cross-examination, and is not required to be qualified as an expert witness. The decisionmaking body shall assign weight and credibility to such testimony as it deems appropriate. A party or party -intervenor in a quasi-judicial proceeding on local government land use matters, upon request by another party or party -intervenor, shall be sworn as a witness, shall be subject to cross-examination by other parties or party -intervenors, and shall be required to be qualified as an expert witness, as appropriate. (c) In a quasi-judicial proceeding on local government land use matters, a person may not be precluded from communicating directly with a member of the decisionmaking body by application of ex parte communication prohibitions. Disclosure of such communications by a member of the decisionmaking body is not required, and such nondisclosure shall not be presumed prejudicial to the decision of the decisionmaking body. All decisions of the decisionmaking body in a quasi-judicial proceeding on local government land use matters must be supported by substantial, competent evidence in the record pertinent to the proceeding, irrespective of such communications. (3) This section does not restrict the authority of any board or commission to establish rules or procedures governing public hearings or contacts with local public officials. HISTORY: s. 1, ch. 95-352; s. 31, ch. 96-324. LexisNexis (TM) Notes: LAW REVIEWS 1. 20 Nova L. Rev. 589 _ SYMPOSIUM ARTICLE: FLORIDA'S GROWTH MANAGEMENT ACT: HOW FAR WE HAVE COME, AND HOW FAR WE HAVE YET TO GO, Richard Grosso *, Winter, 1996, Copyright (c) 1996 Nova Law Review, Nova Law Review Source: Legal > States Legal • U.S. > Florida > Statutes & Regulations > FL - Florida Statutes, Constitution, Court Rules and Advance Legislative Service d TOC: Florida Statutes Constitution and Court Rules > /_.. / > CHAPTER 286. PUBLIC BUSINESS:_ MISCELLANEcce OUS PROVISIONS > § 286.0115, Ass to local public officials; quasi-judicial proceedings on local government land use matters http://www.lexis.com/research/retrieve? m=4aa7e57ecd94ld81 b 192f3 87 f2a072e6&_fmts... 12/20/2002 22 MEMORANDUM DATE: September 13, 1999 TO: Commissioner Pamela S. Mac'Kie, Chairwoman, District #4 Commissioner Timothy J. Constantine, Vice -Chairman, District 3— Commissioner Barbara B. Berry, District 45 Commissioner John C. Norris, District #1 Commissioners James D. Carter, Ph.D., District 42 FROM: David C. Weigel, County Attorney 1_11A , SUBJECT: Ex Parte Communications - Quasi -Judicial Proceedings Collier County procedures pursuant to Resolution No. 95-376 and Section 286.0115, Florida Statutes From time to time it is appropriate to review certain procedures that have previously been established which are part of Board public hearings concerning its quasi-judicial decision making duties. As you recall, the Board adopted its Resolution No. 95-376 on June 20, 1995 to provide for public record and identification procedures pertaining to personal or written communications had or received by Board members regarding prospective quasi-judicial Board action, both on the rezular and summary agenda. Since the Board has been away for summer recess, I thought this an opportune time to "dust off' Resolution No. 95-376 and provide it for your reference. You may wish to keep it handy in the pocket portion of your weekly agenda binder. If you should have any questions in this regard, please advise. Attachment cc: Sue Filson, Administrative Assistant to BCC Robert F. Fernandez, County Administrator DCW/dda:h:/dc =os/1999BCC ex pane communications SUN t , 1995 23 RESOLUTION NO. 95-176 . A RESOLUTION RELATING TO ACCESS TO LOCAL PUBLIC OFFICIALS; PROVIDING A DEFINITION OF LOCAL PUBLIC OFFICIAL; PROVIDING FOR ACCESS TO PUBLIC OFFICIALS; AUTHORIZING INVESTIGA- TIONS AND RECEIPT OF INFORMATION; REQUIRING DISCLOSURE OF EX PARTE COMMUNICATIONS; AND REPEALING RESOLUTION NO. 95-354. WHEREAS, government in Florida is conducted in the- sun- shine pursuant to Chapter 286, Florida Statutes; and WHEREAS, the public should be able to voice its opinions to local elected public officials; and WHEREAS, elected and public officials are presumed to perform their duties in a lawful and proper manner; and WHEREAS, quasi-judicial decision -making must be based on competent, substantial evidence of record; and WHEREAS, local elected public officials have been obstructed or impeded from the fair and effective discharge of their sworn duties and responsibilities due to expansive inter- pretations of Jennings v. Dade County, �a decision rendered by the Third District Court of Appeal; and WHEREAS, Section 5, Article I of the Florida Constitution i gives the people the right peaceably to assemble, to instruct their representatives; and to petition for redress of griev- ances. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: SECTION ONE: AUTHORITY Pursuant to Subsection 286.0115, Florida Statutes, Collier County has the authority to enact this Resolution which removes the presumption of prejudice from ex parte communications with local officials by establishing the process set forth herein to disclose such communications. SECTION TWO: DEFINITION As used in this Section, the term "local public official" means any elected or appointed public official holding a county JUN ; n t995 24 office who recommends or takes quasi-judicial action as a member of such board or commission. SECTION THREE: ACCESS PERMITTED 1. Any person not otherwise prohibited by statute, charter provision, or ordinance may discuss with any local public official the merits of any matter on which action may be taken by the board or commission on which the local public official is a member. Adherence to the following procedures shall remove the presumption of prejudice arising from ex-parte communications with local public officials. (a) The substance of any ex-parte communication with a local public official which relates to quasi-judicial action pending before the official is not presumed prejudicial to the action if the subject of the communication and the identity of the person, group, or entity with whom the communication took place is disclosed and made a part of the record before final action on the matter. (b) A local public official may read a written communi- cation from any person. However a written communication that relates to quasi-judicial action pending before the local public official shall not be presumed prejudicial to the action and such written communication shall be made a part of the record of the board or commission before final action on the matter. (c) Local public officials may conduct investigations and site visits and may receive expert opinions regarding quasi- judicial action pending before them. Such activities shall not be presumed prejudicial to the action if the existence of the investigation, site visit, or expert opinion is made a part of the record before final action on the matter. (d) Disclosure made pursuant to paragraphs' (a), (b) and (c) must be made before or during the public meeting at which a vote is taken on such matters, so that persons who have opin- -2- B fox UJO FAA 11J2 i995 25 ions contrary to those expressed in the ex-parte communication are given a reasonable opportunity to refute or respond to the communication. SECTION FOUR: REPEAL OF RESOLUTION NO. 95-354 Resolution No. 95-354 is hereby repealed in.its entirety. This Resolution adopted this loth day of Sune,'1995, after motion, second and majority vote favoring'same. ATTEST:•; fry BOARD OF COUNTY COMMISSIONERS DWIGNT.E,.'BROCK, Clerk COLLIER COUNTY, FLORIDA % j ETTYE U. NXTTHEWS, Chairman Approved -as to form and legal sufficiency: Kenneth B. Cuyl County Attorne mmdtm/I]'/75 - 3 - ernK nno PAf,Cj_(fiiln 26 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION JOHN AND JEAN. HOFMAN, Petitioners, vs. CASE NO. 00�2,t5�,14-CA-RDH "V _ n CITY OF MARCO ISLAND, et al.,?�� n Respondents.'%lp. !r _ C, ORDER DENYING PETITION FOR WRIT M CERTI( a _r � �� THIS CAUSE came before this Court on a Petition for Certiorari filed � the Vetitigners-3 v seeking review of an action of the City Council of Marco Island. The Court, having been fullyy advised, hereby ORDERS AND ADJUDGES as follows: 1. The Petitioners filed this action challenging a decision by the Marco Island City Council to affirm with conditions a finding by the Marco Island Planning Council approving the Petitioners' Dock Facility Extension Petition number BD-2000-04. The City Council, acting as an appellate body, reviewed the findings of the PIanning Council and affirmed them with conditions attached. The Petitioners object to these conditions and filed this Petition. 2. In order to prevail on this action, the Petitioners must demonstrate that the City Council departed from the essential requirements of law in rendering its decision, that there was no competent substantial evidence from which the Council could have reached the conclusions it did, or List the Petitioners were denied due process of law. 3. As to the first issue, the Petitioners assert that the City Council failed to follow the essential requirements of law in reaching the conclusion they found regarding the appeal. Marco Island Ordinance 00-04(8)(3) provides that the City Council, sitting as the Board of Zoning Appeals, may affirm, affirm with conditions, deny or deny with conditions an appeal of the Planning Council regarding boat docks. The final decision of the City Council, whether classified as an affirmance with conditions or a denial with conditions, is within the allowed actions of Ordinance 00-04. Further, the Council did not conduct a de novo hearing but based its decision on the review of the record before it from the Planning Council. In light of this review, the Court finds that the City Council followed the essential requirements of 27 law in reaching its decision. 4. An allegation was also raised regarding whether the City Council correctly followed the provisions of Marco Island Ordinance 98-5 regarding the disclosure of the ex pane communications. In reviewing the transcript of the proceedings and the ordinance, the Court finds that the Council members complied with the requirements of Ordinance 98-5 in that they disclosed the ex parte communications prior to the rendering of their decision. Counsel for the Petitioners argues that the Council members did not comply with the ordinance because they did not make a complete enough disclosure in that they did not all discuss the contents of the communications. A review of the record reveals that while Counsel for the Petitioners did object to the hearing based on the existence of the ex parte communications, no specific inquiry or objection was ever made regarding the nature and specific contents of the communications and no effort was made to determine the nature of the communications in order to refute them. The Court finds therefore that the essential requirements of Ordinance 98-5 were followed. 5. The second requirement for relief in Certiorari is that there must have been some competent evidence from which the Council could have reached the decision it did. In reviewing this element, the Court notes that it must review whether the action of the City Council was supported by any competent evidence. The action of the City Council was, in essence, to apply the same test to the findings of the Planning Council. In reviewing the transcript of the City Council meeting, it appears to the Court that the City Council based its decision to add conditions to the determination of the Planning Council was based on a finding by City Council members that the Planning Council failed to take into consideration a requirement that boat dockage not exceed 50% of seawall frontage. Thus the City Council found that the Planning Council failed to follow the essential requirements of law. This finding constitutes competent evidence by which the City Council could act to add conditions to the finding of the Planning Council. In summary, there was competent evidence before the City Council to support its decision. 6. Finally, the Petitioners allege that they were denied due process based on the ex pare communications as discussed above in Paragraph 4. As noted, this Court has found that the City Council complied with the requirements of Ordinance 98-5 regarding the disclosure of ex parte communications. Further, the Court is aware that the clue process requirement of a certiorari petition relate to procedural due process. No evidence was presented by the ...,.1.. F un wa .wv 1111 1.11 J 'VVI 11'VV W3 Petitioners that they received inadequate notice of the hearing or were prevented from arguing their case to the City Council, The Court therefore finds that the Petitioners were afforded due process in the action below. Based on all of the foregoing, it is therefore: ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED. DONE AND ORDERED in Chambers at Naples, Collier County, Florida thisgpday of 2000. H CUIT C UR UDGE CERMICATE OF SERVICE SERVICE OF THIS ORDER, pursuant to Florida Rule of Civil Procedure 1.080 is made this day of _: '+/ - _, 2000, upon the following: Anthony P. Pires, Jr., Esq. Counsel for Respondents Morro 801 Laurel Oak Drive, Suite 701 Naples, FL 34108 Robert D. Pritt, Esq. Counsel For City of Marco Island 850 Park Shore Drive, 3"Floor Naples, FL 34103 Richard D. Yovanovich, Esq. Counsel for Petitioners 5001 Tamiami Trail North Naples, FL 34103 Court Administration (V) Lee County Justice Center 1700 Monroe Street Fort Myers, FL 33901 tre�w*ew�w1 --T fir. PROCEDURE FOR RESPONDING TO REQUESTS FOR PUBLIC RECORDS This procedure is designed to assist you in responding to requests for public records you receive from the public. Also included is a simplified summary of the law governing public records. Definitions: Public Records: All documents, papers, letters, -maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by the County, which are used to perpetuate, communicate or formalize knowledge. Note that this definition of public records is very broad and includes such items as handwritten notes taken by staff or materials received from members of the public, provided the notes or materials are made or received in connection with official business and intended to perpetuate, communicate or formalize knowledge. M Common Types of Public Records: Employee Personnel Files: Requests for employee personnel files will also include personnel files maintained in the various Departments as well as the Human Resources file. The employee may or may not be notified that someone has requested to review the file. The Florida Supreme Court has stated that the "[Public Records] Act does not provide that the employee be present during the inspection, nor even that the employee be given notice that an inspection has been requested or made." County policy, however, is that Human Resources personnel will, subject to certain administrative exceptions, notify the employee that a request to review the records has been made. Litigation Documents: Requests for documents relating to current or pending litigation cases should be sent to the County Attorney Office immediately for review. While some documents may be produced during litigation, others are exempt. Among the types of litigation documents that must be provided are those filed with the Clerk of Court. The person making the request can obtain these documents through the Clerk located on the sixth floor in the courthouse or, at least in many instances, from the County Attorney Office. Documents relating to litigation that are not filed with the Clerk may be exempt and the County Attorney Office will need to make the decision whether to produce them or not. Other Documents: Computer records, including electronic calendars, data bases, word processing files and e-mail, made or received by County employees in the course of transacting official business and for the purpose of perpetuating, communicating or formalizing knowledge are public records. Public record requests for a -mails should be sent to the Public Information office, which will coordinate retrieving the e-mails with the IT department. Documents Requested by the Media: All requests by the media for records should be immediately sent to the Public Information Department for review and/or handling, unless they are directed to litigation records or records in the custody of the County Attorney's Office, in which case the request should be forwarded to the County Attorney's Office. Notes or Draft Documents: Notes and draft documents that have not been circulated and which are merely preliminary or precursors to future documents and which are not in and of themselves intended to serve as final evidence of the knowledge to be recorded, generally fall outside of the definitional scope of public records. In summary, there are many types of records that are public records. If you have any questions about whether a particular record meets the definition of "public record", please call the County Attorney Office. h Some Common Exemptions: Numerous public records are exempted from disclosure either by statute or the Florida Constitution. Because the public policy and law of Florida favors broad access to public records, however, a record will only be exempt if it meets a specific and express statutory or constitutional exemption or, and this occurs only rarely, the record's disclosure would be contrary to a federal law that preempts Florida's public record laws. The County is required to take the following steps if it claims all or part of a record is exempt: 1. Delete only that portion of the record claimed to be exempt, e.g., whiting out employee social security numbers that appear on a document. (Obviously, original documents must be left intact — simply delete the exempt information from copies or cover it up on the original in such a way as to preserve the original.) 2. Produce any portion of the record that is not exempt. 3. If a record or part of it is claimed to be exempt, state the basis of the exemption including any citation to an exemption afforded by statute and, if requested, state in writing and with particularity the reasons for concluding the record is exempt from disclosure. z All decisions to exempt records from disclosure should first be reviewed and approved by the County Attorney Office unless the exemption claimed is already well known and understood by the staff person asserting the exemption. Examples of such well known and understood exemptions are the common personnel file exemptions such as social security numbers of past or current employees or addresses, telephone numbers, etc. of Code Enforcement Officers. Remember, too, that some exemptions are only temporary in duration. Security Exemptions:. Risk analysis information relative to security threats to data and information technology resources of an agency is confidential and exempt. Auditor General Audits: The audit report prepared -by the Auditor General is a public record when it has been finalized. Local Government Audits: The audit report of an internal auditor prepared for or on behalf of a unit of local government becomes a public record when the audit becomes final. Bids: Section I I9.07(3)(m), Fla. Scat., provides an exemption for "sealed bids or proposals received by an agency pursuant to invitations to bid or request for proposals" until such time as the agency provides notke of a decision or intended decision pursuant to § 120.57(3)(a), Fla. Stat., or within ten (10) days after bid or proposal opening, whichever is earlier. Any financial statement which an agency requires a prospective bidder to submit in order to pre -qualify for bidding or for responding to a proposal for a road or any other public works project is confidential and exempt from disclosure. Buildings/Blueprints: As of April 22, 2002, building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats, which depict the internal layout and structural elements of a building, arena, stadium, water treatment facility, or other structure owned or operated by an agency are exempt from disclosure. This new exemption shall stand repealed on October 2, 2007, unless reviewed and reenacted by the Legislature. Personal Financial Records: Credit card numbers, bank account numbers, certain insurance information, business records offered as part of business damages in pre -suit negotiations are exempt. Credit card account numbers in the possession of a state agency, unit of local government, or the judicial branch are confidential and exempt. Security Interests: Records regarding ownership of, or security interests in, registered public obligations are not open to inspection. Taxpayer Records: Except as otherwise provided in this section, all information contained in returns, reports, accounts or declarations received by the Department of Revenue, 3 including investigative reports and information and letters of technical advice, is confidential and exempt. Patient/Medical Records: Many types of patient/medical records or records reflecting medical treatment are exempt or subject only to limited disclosure. Be sure you know the specific exemption that applies, however, before claiming it. Whistle -blower Investigations: The identity of a whistle -blower who discloses in good faith information that alleges that an employee or agent of an agency or independent contractor has violated or is suspected of having violated any federal, state or local law, rule or regulation and thereby creating and presenting a substantial and specific danger to the public's health, safety, or welfare; or has committed or is suspected of having committed an act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty, is exempt. While the name or identity of the individual disclosing this information is confidential, the initial report of wrongdoing received by the municipality is a public record since that information was received before an investigation began. Civil Rights Investigations: Complaints and other records in the custody of a unit of local government which relate to a complaint of discrimination are exempt from § 119.07(1), Fla. Stat., until a finding is madehrelating to probable cause, the investigation becomes inactive, or the complaint or other record is made a part of the official record of any hearing or court proceeding. Where an alleged victim chooses not to file a complaint and requests that records of the complaint remain confidential, all records relating to an allegation of employment discrimination are confidential and exempt from § 119.01(1), Fla. Scat., § 119.07(3)(u), Fla. Stat. Collective Bargaining Work Product: Work product developed by the public employer in preparation for negotiations, and during negotiations, shall be confidential and exempt. Attorney Work Product: Records prepared by or at the direction of an attorney for the County exclusively for purposes of imminent or pending civil, criminal or adversarial administrative proceedings and that to reflect a mental impression, conclusion, or litigation strategy or legal theory of the attorney or County are exempt until the litigation is completed. Personnel File Exemptions: Personnel file exemptions include: Employee / Officer Exemption All Employees Annuity or Custodial Account Activities Law Enforcement Officers Complaints filed against them & investigation of those complaints 4 Employee / Officer Exemption All Employees Complaints of discrimination until a finding is made for probable cause, it becomes inactive, or is made an official record in the courts All Employees Certain Criminal History Information All Employees Deferred Compensation Information All Employees Direct Deposit Information All Employees Drug Test Results (not the consent forms, the results) All Employees Employee Assistance Program All Employees Examination questions and answer sheets of examinations administered by governmental entities for the purpose of licensure, certification or employment Active or former Law Enforcement Home address, telephone numbers, social Personnel h security numbers, photographs, places of employment of the spouses and children, names and locations of schools and day care facilities attended by the children Active or former Correctional Officers Home address, telephone numbers, social security numbers, photographs, places of employment of the spouses and children, names and locations of schools and day care facilities attended by the children Active or former Correctional Probation Home address, telephone numbers, social Officers security numbers, photographs, places of employment of the spouses and children, names and locations of schools and day care facilities attended by the children Department of Children and Family Services Home address, telephone numbers, social personnel (whose duties include the security numbers, photographs, places of investigation of abuse, neglect, exploitation, employment of the spouses and children, fraud, theft, or other criminal activities) names and locations of schools and day care facilities attended by the children Employee / Officer Exemption Department of Health personnel (whose Home address, telephone numbers, social duties are to support the investigation of security numbers, photographs, places of child abuse or neglect) employment of the spouses and children, names and locations of schools and day care facilities attended by the children Department of Revenue (whose Home address, telephone numbers, social responsibilities include revenue collection security numbers, photographs, places of and enforcement or child support employment of the spouses and children, enforcement) names and locations of schools and day care facilities attended by the children Local government personnel (whose Home address, telephone numbers, social responsibilities include revenue collection security numbers, photographs, places of and enforcement or child support employment of the spouses and children, enforcement) names and locations of schools and day care facilities attended by the children Firefighters (certified in compliance with § Home address, telephone numbers, social 633.35, Fla.Stat.) security numbers, photographs, places of h employment of the spouses and children, names and locations of schools and day care facilities attended by the children Justices of the Supreme Court, District Court Home address, telephone numbers, social of Appeal Judges, Circuit Court Judges, security numbers, photographs, places of County Court Judges employment of the spouses and children, names and locations of schools and day care facilities attended by the children Current or former State Attorneys, Assistant Home address, telephone numbers, social State Attorneys, statewide prosecutors or security numbers, photographs, places of assistant statewide prosecutors employment of the spouses and children, names and locations of schools and day care facilities attended by the children Current or former human resource, labor Home address, telephone numbers, social relations or employee relations directors, security numbers, photographs, places of assistant directors, managers or assistant employment of the spouses and children, managers of any local government or water names and locations of schools and day care management district (whose duties include facilities attended by the children hiring and firing employees, labor contract negotiation, administration, or other ersonnel-related duties) Employee / Officer Exemption Current or former Code Enforcement officers Home address, telephone numbers, social (including Animal Control Officers) security numbers, photographs, places of employment of the spouses and children, names and locations of schools and day care facilities attended by the children All Employees Medical Information All Employees Ridesharing Information All Employees Social Security Numbers of Employees, current and former, and spouse and children Social Security numbers. Does not include Social Security numbers of applicants who are not or do not become agency employees ' For detail on exemptions, please review Chapter 119, Florida Statutes, or call the County Attorney Office " An agency that is the custodian of the personal information specified above but is not the employer of the officer, employee, justice, judge or other person, shall maintain the confidentiality of the personal information only if the officer, employee, judge, or the emplo%'ng agency of the designated employee submits a written request for confidentiality to the custodial agency. § 119.07(3)(i)2, Florida Statutes Ways in Which Public Record Requests are Received: Verbally, in Person: Someone walks into an office and asks for a copy of, for example, the County Commissioners' Agenda for the next meeting, or a copy of a particular County procedure. Verbally, by Telephone: Someone calls and asks for records to be available when they come in at a later time or date. Written Requests: You receive a letter or e-mail requesting specific information to be made available. Requests — Who, When and What: Who is Responsible: Each Department Director and at least one other person in each Department should be aware of the procedures and make sure that all requests received in that Department are routed to the Department Director and his/her appointee for review and/or handling. 7 Amount of Time to Respond: The Florida Supreme Court states that the time to produce requested records "is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record that the custodian asserts are exempt." In other words, public records requests must be responded to in a reasonably prompt manner. Minimal or Substantial Requests: A minimal request, for example, would be a request for a copy of the County Commissioners' Agenda for the next meeting, a copy of a specific County policy or procedure, or any record not likely to involve exemptions and that is readily available for copying or distribution to the public. A minimal request is also one in which the response will always take less than one (1) hour. A substantial request requires the Department Director or appointee to review records for exemptions, or requests for large amounts of documents, documents in storage, or documents located within different locations/Departments. The time for response to a substantial task will generally be one (1) hour or more. Procedure for Handling Requests: Logging In Requests: The following types of requests must be logged in: M a. All requests, whether minimal or substantial, that seek correspondence, emails or memoranda created by or sent to Commissioners must be logged in with the Public Information Office. b. All substantial requests, as defined above, must be logged in with the Public Information Office. C. All requests, whether minimal or substantial, having to do with threatened or pending litigation against the County — at least to the extent such requests can be identified — must be logged in with the County Attorney Office. d. All requests from the media, whether minimal or substantial, must be logged in with the Public Information Office. Substantial requests from the media shall be coordinated with the Public Information Office. e. All requests for e-mails, whether minimal or substantial, must be logged in with the Public Information Office. E-mail requests shall be coordinated with the IT Department through the Public Information Office. How to Log In: The logging in of the request may be done by email or faxed memorandum. The information provided for the log in should be limited to: the approximate time and exact date of the request; if the request is in writing, a copy of the M request; if the request is verbal, a two or three sentence description of the request; the name, address and telephone number of the person making the request, if known. Minimal Requests: Minimal verbal requests involve small volumes of routine documents accessible enough to be produced at the time of the request, or shortly thereafter if made by telephone, email or mail. Substantial Requests: Substantial requests may be handled in the following manner: a. Read the letter/email carefully to make sure you understand what is being requested. (Substantial requests made verbally should be confirmed in writing as quickly as possible in order to avoid confusion as well as unnecessary expenditures of time and unnecessary document retrieval, copying or other costs.) b. Does the request refer to: 1) Information from a specific person or department? 2) A specific time frame? 3) A specific issug? C. Promptly write a letter or email to the person making the request to confirm receipt of the request and clarify any questions or concerns you have. d. Make sure you keep written documentation of all efforts made to locate and produce the information, including written reasons as to why the information could not be located or produced. e. Stay in touch. Explain how long the production of records may take and why. If problems arise or the response will take longer than first expected, let the person making the request know, in writing, of the status of the response. f. Determine the Departments that would most likely have the information requested. g. Write a memo to each Department, with a copy of the original request attached, and ask them to pull the information and let you know when it is ready for pick up. In some circumstances, depending upon the quantity of documents requested and the time it takes to locate them, you may need to allow several weeks for the documents to be collected. 0 h. As the documents are collected, they will need to be reviewed for exempt items or material. Exempt items shall be covered or removed prior to review by the person making the request. i. When the documents have been reviewed and exempt documents or information has been deleted or removed, call the person making the request and schedule a day and time for them to come and review the documents. Then, follow up with a letter to the requestor confirming the date and time he/she is coming to review the documents. Make sure you have given them the location and directions, if needed. It will generally be the responsibility of the responding Department Director/Appointee to identify and provide a location for the document inspection. j. While reviewing the documents, the person making the request should tab or mark the documents he/she would like copied. Remember: A person has the right both to inspect and obtain copies of public records. Don't make copies unless requested to do so! k. Once all documents have been copied for the person making the request, a separate set of the tabbed or marked documents should be copied for the County to retain as part of the record of what was produced. I. The charges for coping are $0.15 per page for one-sided copies and $0.20 per page for two-sided copies. If the nature or volume of public records to be inspected or copied requires the extensive use of information technology resources or extensive clerical or supervisory assistance, or both, the agency may charge a reasonable service charge based on the cost actually incurred by the agency for such extensive use of information technology resources or personnel. The County has defined any amount of time over one (1) hour as extensive. If an agency must review records for exempt material, the special service charge may also be imposed if the volume of records and the number of potential exemptions make review and redaction of the records a time-consuming task. The County has generally charged the base hourly rate (i.e., not including benefits) of the person inspecting and redacting exempt material, the few times it has felt the request was extensive enough to require a special service charge. This same base hourly rate may be used for a clerical employee's time when that person is safeguarding such records from loss or destruction during an inspection. The Department Head, as custodian of the Department's records and based upon his/her knowledge of the Department file contents, should assign clerical staff to protect the integrity of the files while the person making the request is reviewing them. Please review Resolution No. 98498, which is attached. A recent telephone call with the Attorney General Office (AGO) has resulted in more specific options for handling substantial requests for documents. The AGO recommends two (2) letters to the requestor when the substantial request is first received. The first letter would estimate the time it would take to find the records, the cost involved in locating the records, detail the County's understanding of the request and inquire if the 10 requestor is willing to pay those estimated costs. If the first letter generates an affirmative response, then a second letter is sent to the requestor after the County has a better idea of the cost for time to locate and examine for exemptions, and the approximate number of pages to be produced. This second letter should go to the requestor within two days of receipt of the affirmative response from the first letter, and should contain a more detailed explanation of the costs (i.e., hourly rate of person attending the review, approximate time it may take to review, hourly rate of person locating documents, time it took to locate documents, approximate number of documents). The County may request half of the estimated cost as a down payment prior to gathering the documents, but once the money has been received, the County must make every effort to produce the documents quickly. In a substantial request, if some of the documents are available and others are still being gathered, the AGO suggests that the available documents be produced immediately and the County continue to locate the remainder of the request. The AGO believes it is better to produce what is available rather than wait until the entire project is collected. Also, the AGO has informed the County that each request for different documents, whether received at different times in one day or over several days, by the same person, is to be treated as a separate request. M. Unusually large or color copies that must be sent to a copy service for reproduction, can be billed at the same amount the County was charged by the copy service for reproducing the documents. n. If the person making the request picks up the documents and brings a check with them, you will need to give them a receipt. If the person making the request wants you to mail the documents, ask them to send you a check for the total amount and you can mail the receipt with the documents. o. Once the request has been fulfilled, a general index of documents produced and all written correspondence concerning the request, any copies provided, and documents showing the effort to collect and produce the records as well as any other information pertinent to the request, should be kept together in one file and marked as a public records request with the date of the request and the name of the person making the request. p. Any questions you have on the procedure, exemptions or documents, should be directed to the County Attorney Office. General Information: 11 The more specific the request, the less time it should take to find what the person making the request needs, so try to clarify the request as much as possible. It could save time both for the County and the requestor. The County cannot refuse access to public records and the person requesting records does not have to give his/her name or the reason for the request. A delay in responding to public records could constitute an unlawful refusal to provide access to public records. Therefore it is imperative, especially concerning substantial requests, to maintain contact and updates with the person making the request and written back-up documentation and records as to the efforts -on the County's part to fulfill the request. The law does not require that the County create new records in response to a request for information, or reformat its records in a particular form as demanded by the person making the request. All contact with the person making the request should be consistent, courteous and emphasize the County's willingness to respond to the request. 4 The County is not permitted to set arbitrary times for inspecting public records. Inspection may take place at any time throughout the work day. The County cannot require that a request be made in writing; however, it can work with the person making the request to clarify a request and confirm the County's understanding of the request in writing. The Department Director and/or his or her appointee in each Department should also obtain and consult the Government -In -The -Sunshine Manual that is published each year. This publication provides answers to many common questions about public records and is updated annually. Call First Amendment Foundation at (890) 222-3518 or 1-800-337-3518 for ordering information. Revised: November 12, 2002 hAmarian\publicrecordtaskforce\draftvi iproced u reforrespon se mrc 12 RESOLIMON NO, 98- 4 ge RESOLUTION ESTADLt5111L9G A UNTMRM COUNTY P02 ICY RKPOMr. pM FOR THE: WFEMMI4, EYAMMAMON AND DUPSdf: MIJ OF rUDIX RBCIIitDS PORSUAI9TTo SECTION 119:87,YzoR=4 jr47mz F WHEVY"tj, Section 119.fff(l)_ Florida Staarrm sothoriems the custodian of paddle nxerds to charge a fee for capying public rncouda provided upon rerpresfi and. WiIEREAS, Section 119.07(1)0). FlmIda Skrtata% aifaws far the imposition of a special service 'aline for pobrs records requests which req dm esxensive use of clerical at supervisorylabor, and WDERE..%The Board of County Corrartissioners has determined that a policy should be created etab83lrins the allownbie mpying fccs and defining what is extensive use of clerical or supervisory labor, and WHEREAS, The Board of Canty Comntissiooers has deierndned that suds a poL—j is necessary is Or to ceata uniformity] in application of those fees mid to guide staff in determining When impertitien Of such tees is acsptahle and appropriate (!agony mSidestt)1 and WHEREAS The Board o£ Cmmty Commissioners has found that it is within the public's heat btterat for tine County to impose such a fee in order to cover the actual coat of duplicition and to cover the actual cost of emansive clerical or supervisory time required to respond to a public records request, NOW, THEREFORE BE IT RFSOLYED BY THE BOARD OF COUNTY COM14i3SS1ONlEDS OF'COLLMR COUIT1Y, FLORIDA, that. Staff!hail charge the tailowing fear for duplication of public records: AL 15 cats per one-sided copy which is 14 inches by a 112 inches or less. B. an additional 5 = m far each two-sided duplicated ropy, C. $1.00 per copy for a t~nilled copy of a pubGe record D. 711e actual cost of iluplicaticn for all other copies, "Actual mat of duplication" is defined in $119.07(t ), I7orfda Adutes, a,% the cost of the material and supplies used to duplicate tie record,?. but it does not include the labor cost and overhead cast associated with such duplication. Staff may, however, charge for the reasonable labor and Overhead costs associated Witch copying county traps or aeriel photographs supplied by county constitutional offers. 2 if the Dante or volume of public =Mlis requested to he impeded, examined, at cupid is such as to require extensive ttse of milarmffiiom technology resources or eztemm clerical or ssperoaamry assismnea by personnel of iha Cauniy odlce, department at aged involved, or both, the ate, de;mnmeat ar agency shall chargq in addition to ow aehuat sort of dutdicmim4 A special service dtargs, which strait be reasonable and shall be based an the affi incurred for such a temve use d iolbrmatiart teehnoiagy remuezm or the'tabor coat of the peraonnd praeiding rbe ur Aca that is acntally incurred by the agency or aruibumble to dm agency for the clerics And strpc:isary assiatanca required, or both. 'Wormation technology resources- "I have the same meaning as in Section 2112.303031 Flbridh Stomrei -Fdenatve use" shell be defined as requiring mare than an hour of clerical or mpervisaq time to Locate, review for confidential information, copy and mite the requested material. Tune inured shall he based upon the nature or-voivate of the request and not solely by the Location of the requested documents. 14 3. This Resolution applies to all ofacr s. aeences and departments authorized and arganaad as codger County gmmmment of the Board of Collier County commissioners 4. This Resolution shall be etieraive and�itnp�Lcmatted as of the dare OfAdoptiam. This Resolution adopted bids ^tt`day o' �4.u�199U, after motion, second sad maiorhy vote in favor of adoption. J1 Clerk Deputy Clerk 'i4tt�rt a3.to Ch,�drnnn's ' sdgttsL•ara calf; Approved as to farms and legal adin ieney: - David C. Wn County Attorney - BOARD OF COL'NIfY COMIoUSIONERS OF COLLIER COUN-rY, RAAUDA BARBARA B. BERR , 2