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The Sunshine Law and Advisory Committees
by Pat Gleason
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“[T]he Sunshine Law equally binds all members of governmental bodies, be they advisory committee members or elected officials.”1
For more than 30 years,2 Florida’s Sunshine Law has required state and local boards to hold meetings that are open to the public. The comprehensive application of the Sunshine Law to discussions of public business was guaranteed when the courts determined that the law applies to any gathering of two or more members of a public board when those members meet to discuss any matter on which foreseeable action may be taken.3
The broad scope of the Sunshine Law to the decision-making process was further secured when the Florida Supreme Court announced that in addition to traditional elected or appointed governing boards such as school districts or state licensing boards, the Sunshine Law also applied to advisory boards created by public agencies. In a key decision handed down in 1974, the court ruled that a citizen advisory committee created by a town council to advise the council and a planning firm on proposed changes to the zoning code was subject to the Sunshine Law.4 As succinctly stated by the court, “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.”5 According to the court, a truly open decision-making process can be achieved only if the “collective inquiry and discussion stages” are included within the scope of the Sunshine Law.6
In the years that followed, Florida courts applied the Sunshine Law to a variety of advisory groups on both the state and local levels. These decisions have established the following general principles:
1. Advisory boards created by law or ordinance or otherwise established by public officials are subject to the Sunshine Law even though their recommendations are not binding on the entities that created them.7
The following are examples of advisory committees that have been found to be subject to the Sunshine Law:
A criminal-justice commission established by county ordinance to develop and make recommendations on criminal-justice issues in the county.8 |
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A community certification committee organized for the purpose of qualifying the city as a “blue chip community” pursuant to a state program.9
A business assistance center advisory council created by a community college board of trustees.10
A citizen advisory committee appointed by the city council to make recommendations to the council regarding city government and city services.11
A vegetation committee created by the city code to make recommendations to the city council and planning department regarding vegetation and proposed development.12
2. While advisory committees ordinarily are created by a collegial board, such as a town council or school board, a single official also may create an advisory committee that is subject to the Sunshine Law. For example, in one case,13 the Supreme Court held that the Sunshine Law applied to an ad-hoc advisory committee appointed by a university president to screen applications and make recommendations for the position of dean of the law school. Similarly, an advisory board appointed and used by a city manager to screen applications and make recommendations for the position of chief of police was required to comply with the Sunshine Law.14
3. Although as a general rule, staff committees are not subject to the Sunshine Law,15 a staff committee can be subject to the law if the committee is delegated decision-making functions that the courts deem to be outside the ambit of ordinary staff responsibilities. As one court stated, 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.”16 In another case, a court held that a committee composed of staff and one outside person that was created by a college purchasing director to rank contract proposals was subject to the Sunshine Law.17
4. Advisory committees that violate the Sunshine Law may suffer the same consequences faced by elected or appointed boards. Thus, Florida’s attorney general has advised that the criminal penalties resulting from a willful violation of the law also can apply to advisory committee members.18 An action taken by an advisory committee that failed to comply with the Sunshine Law may be invalidated.19
5. Citizen or staff committees created for and performing only fact-finding or information-gathering responsibilities have been found to be outside the Sunshine Law.20 However, if a “fact-finding” or information-gathering committee moves away from its initial charge and becomes a traditional advisory committee that furnishes recommendations to the appointing authority, the Sunshine Law follows. Thus, many boards that have contemplated creating a “fact-finding” advisory committee in order to avoid the requirements of the Sunshine Law have reconsidered based on the very real concern that the advisory committee members might forget their fact-finding role over time and become a standard advisory committee to which the Sunshine Law can and should apply.
Moreover, as the Florida Supreme Court observed in its 1974 landmark opinion applying the Sunshine Law to advisory committees, the public interest is served by broad public access to the entire decision-making process:
One purpose of the government in the Sunshine Law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance. Rarely could there be any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken.21
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Pat Gleason is general counsel for the Office of the Attorney General. She may be contacted by phone at (850) 245-0203 or via e-mail at Pat_Gleason@oag.state.fl.us. Additional information on the Florida Sunshine Law, including an abridged electronic edition of the “Government in the Sunshine Manual,” information about the open government mediation program and answers to frequently asked questions, is available on the Office of the Attorney General Web site at http://myfloridalegal.com.
Endnotes
1Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 869 (Fla. 3d DCA 1994).
2The Sunshine Law, s. 286.011, Fla. Stat., was enacted in 1967.
3Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). And see, City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971); Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969).
4Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974).
5Id. at 476.
6Id. at 477.
7See, e.g., Town of Palm Beach v. Gradison, supra; Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535 So. 2d 694 (Fla. 3d DCA 1988); and Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000).
8Attorney General Opinion 93-41 (1993).
9Attorney General Opinion 85-55 (1985).
10Attorney General Opinion 03-28 (2003).
11Attorney General Opinion 98-13 (1998).
12Attorney General Opinion 02-24 (2002).
13Wood v. Marston, 442 So. 2d 934 (Fla. 1983).
14Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979).
15See, e.g., School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99, 101 (Fla. 1st DCA 1996); Knox v. District School Board of Brevard, 821 So. 2d 311, 315 (Fla. 5th DCA 2002). (“A Sunshine violation does not occur when a governmental executive uses staff for a fact-finding and advisory function in fulfilling his or her duties.”)
16News-Press Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 548 (Fla. 2d DCA 1982).
17Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997). And see Evergreen the Tree Treasurers of Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So. 2d 526, 531-532 (Fla. 2d DCA 2002). (When public officials delegate their fact-finding duties and decision-making authority to a committee of staff members, those individuals no longer function as staff members but "stand in shoes of such public officials" insofar as the Sunshine Law is concerned.)
18Attorney General Opinion 01-84 (2001).
19See, Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974).
20Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985); Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976).
21Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974).
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