Memo: Applicability of Sunshine Law to Advisory Boards File: OP06-9601-098° Clearwater
City Attorney's Office
Interoffice Correspondence Sheet
TO: Advisory Board Members
FROM: Pamela K. Akin, City Attorney
SUBJECT: Applicability of Sunshine Law to Advisory Boards
Our File Number: OP06-9601-098
CC: Rosemarie Call
DATE: November 10, 2010
At a recent meeting of a City Advisory Board, a member questioned the applicability of
the Sunshine Law to advisory boards. I asked Assistant City Attorney Leslie Dougall-
Sides to reduce her opinion to writing to be transmitted to all members of each advisory
board as a refresher.
As you will see as you review her opinion, the Sunshine Law has consistently been
interpreted broadly by the courts and the Attorney General's Office to ensure public
access to meetings of collegial public bodies including advisory boards. If you have any
questions about the Sunshine Law or Public Records Law please ask your board
attorney or contact me.
/gmd
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Clearwater
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City Attorney's Office
Interoffice Correspondence Sheet
TO: Pamela K. Akin, City Attorney
FROM: Leslie K. Dougall-Sides, Assistant City Attorney
SUBJECT: Applicability of Sunshine Law to City of Clearwater Advisory Boards
DATE: November 9, 2010
ISSUE: This memorandum addresses whether City of Clearwater advisory
boards are subject to Florida's "Government in the Sunshine Law", Florida Statutes
Section 286.011.
DISCUSSION: A number of boards of the City of Clearwater have been
established by ordinance. See Code of Ordinances Chapter 2, Article III. Certain
boards have development approval functions, others are regulatory, and still others
are established in order to provide advice and recommendations to the City Council
in their respective subject areas. Note that the provisions of Code of Ordinances
Chapter 2 do not make such functional distinctions. Section 2.061(2)(a) defines
"Board of the city" or "board" to mean "a board, committee, authority, or other entity
established by an ordinance or resolution adopted by the city council or by a special
act of the Florida Legislature relating solely to the city, and for which the city council
has the authority to establish the qualifications for membership." All members of
boards are appointed by the City Council, with some boards having qualification
requirements for some or all positions. Those boards which do not approve
development or regulate persons, property, or activities are generally referred to as
"advisory boards". Such advisory boards do, however, take official action in
approving minutes and voting concerning recommendations to the City Council.
Florida Statutes Section 286.011(1) (2009) provides that "[a]II meetings of any
board or commission of any state agency or authority or of any agency or authority of
any county, municipal corporation, or political subdivision, except as otherwise
provided in the Constitution, at which official acts are to be taken are declared to be
public meetings open to the public at all times, and no resolution, rule, or formal
action shall be considered binding except as taken or made at such meeting. The
board or commission must provide reasonable notice of all such meetings."
Subsection (2) provides that minutes shall be promptly recorded and be open to
public inspection.
Florida courts have held in several cases that advisory boards created pursuant
to law or ordinance, including those which make recommendations as opposed to
making final determinations or regulatory approvals and denials, are subject to the
Sunshine Law. In Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974), the
Florida Supreme Court held that a citizens' planning committee created to make
tentative decisions guiding the city planners and advising the city council as to the
ultimate direction the proposed land development code would take must conduct
noticed public meetings. There, the council "delegated to the committee much of their
administrative and legislative decisional zoning formulation authority which is ordinarily
exercised by a city governing body itself-and particularly the [portion] of the process
where the affected citizens expect to be officially heard." The committee was
characterized as "an arm of the Town Council", "conceived and formed ...for the
purpose of working with the planning consultant so that the plan produced would be
consistent with the land-use controls intended by the citizens." Id. at 476. The Court
stated: "any committee established by the Town Council to act in any type of advisory
capacity would be subject to the provisions of the government in the sunshine law
[emphasis added]."The Court characterized the governing principle in determining
whether the Sunshine Law is applicable as being: "[w]hen in doubt, the members of
any board, agency, authority or commission should follow the open-meeting policy of
the State." Id. at 477 [citation omitted]. See also related case, IDS Properties, Inc. v.
Town of Palm Beach, 279 So. 2d 353 (Fla. 4t" DCA 1973).
In Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535 So. 2d 694
(Fla. 3rd DCA 1988), the Third District Court of Appeal expanded on the Gradison
theme, stating that
The law is quite clear. An ad hoc advisory board, even if its power is
limited to making recommendations to a public agency and even if it
possesses no authority to bind the agency in any way, is subject to the
Sunshine Law.
The Third District Court of Appeal addressed the issue in Monroe County
v. Pigeon Key Historical Park, Inc., 647 So. 2d 857 (Fla. 3rd DCA 1994). There,
the Monroe County Commission appointed a Pigeon Key Advisory Board and
directed it to negotiate a lease with a foundation and report back to the County
Commission. The Court found that "[i]t is well settled that an advisory body like
the Pigeon Key Advisory Board is governed by the Open Meetings Law" and
found that action regarding the lease taken without holding a noticed public
meeting was a violation of the Sunshine Law.
The Florida Attorney General's Office has concluded that local advisory
committees were subject to the Sunshine Law in the following opinions:
AGO 98-13: Hillsborough County Metropolitan Planning Organization's Citizen
Advisory Committee;
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AGO 93-41: Hillsborough County criminal justice commission established by
ordinance to present recommendations on such issues;
AGO 85-55: New Smyrna Beach Industrial Development Board acting as Blue
Chip Community Committee;
AGO 2002-24: Sanibel Vegetation Committee created by ordinance to make
recommendations to City Council and Planning Commission regarding vegetation
and proposed development.
See also Government-in-the-Sunshine Manual, Part I.B.2.a. (First Amendment
Foundation: Tallahassee, Florida 2010).
The opinion that advisory boards are subject to the Sunshine Law has been
consistently held by the City Attorney's Office. See previous opinion memorandum
dated January 31, 1990.
A limited exception for certain "fact-finding committees" delegated such
powers by the local governing body is inapplicable to normal City advisory board
business. See, etc.., Sarasota Citizens for Responsible Government v. City of
Sarasota, 2010 WL 4237584 (Fla. 2010) (consultation by deputy county administrator
with individuals while negotiating memorandum of understanding with baseball team
not subject to Sunshine Law); Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA
2000) (Sunshine Law inapplicable to meetings of pre-technical review committee).
The penalties for violation of the Sunshine Law can be substantial. Florida
Statutes Section 286.011(3)(a) provides that any public officer who violates Section
286.011 is guilty of a noncriminal infraction punishable by fine not exceeding
$500.00. Subsection (3)(b) calls for a stricter penalty for any person who is a
member of a board or commission and who knowingly violates the Section by
attending a meeting not held in accordance with its provisions; such action is
considered a second-degree misdemeanor.
Finally, certain Boards are obligated by ordinance to comply with the Sunshine
Law. For instance, Code of Ordinances Section 2.161(2) provides that the
Environmental Advisory Board and its members shall comply with the public records
and public meeting laws and other applicable laws of the State of Florida,
CONCLUSION: City of Clearwater advisory boards are subject to Florida
Statutes Section 286.011. Their meetings should be noticed and conducted in
accordance with that Section, and communications should not occur between board
members outside noticed meetings on matters which may reasonably come before
the boards.
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