Stew Lilker’s

Columbia County Observer

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Meeting Notice • The Requirements

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.