Meeting
Notice • The Requirements
Columbia County, FL (posted April
1, 2009)
By Stew Lilker
In January of 2006, the Observer contacted the First
Amendment Foundation for an opinion regarding the
improper meetings by County Commissioners and improper
meeting notices posted by County Manager, Dale Williams,
on behalf the County Commission. The Observer would like
to report that things have changed, but that is not the
case in Columbia County.
The Board and the County Manager have dug in their
heels, continue to have questionable meetings and
continue to refuse to post even the minimum legally
required notices announcing their meetings in the lobby
of the annex.
Ms. Harper, who is now the director of the First
Amendment Foundation, wrote:
Dear Stuart,
Thank you for contacting me today regarding the notice
requirements for meetings of your local county
commission.
I have copied for you
below, relevant portions of the
Government-in-the-Sunshine Manual which can we viewed
at www.myfloridalegal.com.
Please note in BOLD, those comments that I felt
particularly pertained to your issue.
As I mentioned earlier, it seems
the commission is not properly noticing their meetings
if they are posting notices that fail to contain even a
brief line about the subject matter of the meeting -
arguably, this does not provide the public with adequate
notice. How can the public participate in the
governmental decision-making process if they don't know
which meetings to attend or what is being discussed in
the meetings? It would be helpful to provide a
summarization of the dates and meetings.
Good luck. Adria Harper
The following answer was e-mailed to the Observer by
Ms Harper. It is presented in its entirety, as written:
What kind of
notice of the meeting must be given?
a. Reasonable notice required
A vital element of the Sunshine Law is the requirement
that boards subject to the 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 1995, many court decisions had
stated prior to the statutory amendment that in order
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 DCA
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 knowledge" and are not conducted in a closed
door manner. TSI Southeast, Inc. v. Royals, 588
So. 2d 309, 310 (Fla. 1st DCA 1991). "Governmental
bodies who hold unnoticed meetings do so at their
peril." Monroe County v. Pigeon Key Historical Park,
Inc., 647 So. 2d 857, 869 (Fla. 3d DCA 1994).
Reasonable public notice is required for all meetings
subject to the Sunshine Law. Thus, notice is required
for meetings between members of a public board even
though a quorum is not present. AGOs 90-56 and 71-346.
The 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 notice
in an area set aside for that purpose may be sufficient;
in others, publication 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 media and the general public to attend the meeting.
AGOs 80-78 and 73-170. And 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 to 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 a reasonable time
to make an appearance if they wish. Cf.,
Lyon v. Lake County, 765 So. 2d 785, 790 (Fla. 5th
DCA 2000) (where county attorney provided citizen with
"personal due notice" of a committee meeting and its
function, it would be "unjust to reward" the citizen by
concluding that a meeting lacked adequate notice because
the newspaper advertisement failed to correctly name the
committee). And see, Suncam, Inc. v. Worrall,
No. CI97-3385 (Fla. 9th Cir. Ct. May 9, 1997)
(Sunshine Law requires notice to the general public;
agency not required to provide "individual notice" to
company that wished to be informed when certain meetings
were going to occur).
While the Attorney General's Office cannot specify
the type of notice which must be given in all cases, 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.
The notice
procedures set forth above should be considered as
suggestions which will vary depending upon the
circumstances of each particular situation. See,
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 rights to be affected, the
essential requirements for notice in that situation will
suggest themselves.").
Thus, in Rhea v. City of Gainesville, 574 So. 2d
221 (Fla. 1st DCA 1991), the court held that a complaint
alleging that members of the local news media were
contacted about a special meeting of the city commission
one and one-half hours before the meeting stated a
sufficient cause of action that the Sunshine Law had
been violated. Compare, Yarbrough v. Young,
462 So. 2d 515 (Fla. 1st DCA 1985) (three days' notice
of special meeting deemed adequate); and News and
Sun-Sentinel Company v. Cox, 702 F. Supp. 891 (S.D.
Fla. 1988) (no Sunshine Law violation occurred when on
March 31, a "general notice" of a city commission
meeting scheduled for April 5 was posted on the bulletin
board outside city hall). And see, Yarbrough v. Young,
supra, at 517, n.1 (Sunshine Law does not require
city council to give notice "by paid advertisements" of
its intent to take action regarding utilities system
improvements, although the Legislature "has required
such notice for certain subjects," see e.g.,
166.041[3][c], F.S.).
The determination as to who will actually prepare the
notice or agenda is essentially "an integral part of the
actual mechanics and procedures for conducting that
meeting and, therefore, aptly relegated to local
practice and procedure as prescribed by . . . charters
and ordinances." Hough, 278 So. 2d at 291.
b. Notice requirements when meeting adjourned to a later
date
If a meeting is to be adjourned and reconvened later to
complete the business from the agenda of the adjourned
meeting, the second meeting should also be noticed. AGO
90-56.
However, 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
discussion 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 meeting. The court found that the
room remained open during the discussion, no member of
the public relied to their detriment on the adjournment
by leaving the proceedings, and there was no allegation
that the alleged adjournment was utilized as a tool to
avoid the public scrutiny of governmental meetings.
And see, Greenbarg v. Metropolitan Dade County
Board of County Commissioners, 618 So. 2d 760 (Fla.
3d DCA 1993) (no impropriety in county commission
continuing its meeting until the early morning hours).
c. Notice requirements when board acting as
quasi-judicial body or taking action affecting
individual rights
Section 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 be based.
Where a public
board or commission acts as a quasi-judicial body or
takes official action on matters that affect individual
rights of citizens, in contrast with 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.
d. Effect of notice requirements imposed by other
statutes, codes or ordinances
The 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
circumstances. 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 of 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 see, Yarbrough v.
Young, 462 So. 2d 515, 517, n.1 (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 improvements, although
the Legislature "has required such notice for certain
subjects," see e.g., 166.041[3][c], F.S.).
Thus, 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.,
s. 120.525, F.S. Those requirements, however, are
imposed by Ch. 120, F.S., not s. 286.011, F.S., although
the notice of a board or commission published in the
Florida Administrative Weekly [FAW] pursuant to Ch. 120,
F.S., also satisfies the notice requirements of s.
286.011, F.S. Florida Parole and Probation Commission
v. Baranko, 407 So. 2d 1086 (Fla. 1st DCA 1982).
Cf., s. 120.551, F.S., providing that the notices
for the Department of Environmental Protection and the
Board of Trustees of the Internal Improvement Trust Fund
shall be published on an Internet website rather than in
the FAW.
2. 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 on the agenda?
The Attorney General's Office recommends publication
of an agenda, if available, in the notice of the
meeting; if an agenda is not available, subject matter
summations might be used. Particularly if the item is
controversial or one of critical public concern, the
Attorney General's Office advises that the public board
or commission postpone taking any action 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 of each item to be discussed via a
published agenda. Such a specific requirement has been
rejected by the courts because it could effectively
preclude access to meetings by members of the general
public who wish to bring 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 515 (Fla. 1st DCA
1985) (posted agenda unnecessary; public body not
required to postpone meeting due to inaccurate press
report which was not part of the public body's official
notice efforts). Thus, the Sunshine Law has been
interpreted to require notice of meetings, not of
the individual items which may be considered at
that meeting. However, other statutes, codes or
ordinances may impose such a requirement and agencies
subject to those provisions must follow them.
Accordingly, the Sunshine Law does not require boards to
consider only those matters on a published agenda. "[W]hether
to impose a requirement that restricts every relevant
commission or board from considering matters not on an
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 (Fla.
4th DCA 1996). For example, s. 120.525(2), F.S.,
requires that agencies subject 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 person in the state who requests a copy
and who pays the reasonable cost of the copy. After the
agenda has been made available, changes may be made only
for good cause. Id. Accordingly, agencies subject
to the Administrative Procedure Act must follow the
requirements in that statute. See, Inf. Op. to
Mattimore, February 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 Ch. 120, F.S., may impose such a requirement).
Authority to adopt reasonable rules
In providing an opportunity for public participation,
the Attorney General's Office has advised that
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 the 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
residents or landowners within the district, the
Attorney General's Office advised that "it is not
readily apparent how the residence of the speaker or his
or her ownership of property in a certain area would be
relevant to the orderly conduct of a meeting." Inf. Op.
to Caetano, July 2, 1996.
Although not directly considering the Sunshine Law, the
court in Jones v. Heyman, 888 F.2d 1328, 1333
(11th Cir. 1989), recognized that "to deny the presiding
officer the authority to regulate irrelevant debate and
disruptive behavior at a public meeting -- would cause
such meetings to drag on interminably, and deny others
the opportunity to voice their opinions." Thus, the
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 removed when
the speaker appeared to become disruptive constituted a
reasonable time, place and manner regulation and did not
violate the speaker's First Amendment rights.
