Preview
Filing # 186413885 E-Filed 11/17/2023 05:01:13 PM
EXHIBIT 33
OVERVIEW OF THE SUNSHINE AND PUBLIC RECORDS LAWS
2018 edition
Patricia R. Gleason
I. GOVERNMENT IN THE SUNSHINE LAW
A. WHAT IS THE SCOPE OF THE SUNSHINE LAW?
Florida's Government in the Sunshine Law, commonly referred to as the
Sunshine Law, provides a right of access to governmental proceedings of public boards
or commissions 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 section 286.011, Florida
Statutes:
(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 and promptly
recorded.
A right of access to meetings of collegial public bodies is also recognized in the
Florida Constitution. Article I, section 24, Florida Constitution, was approved by the
voters in the November 1992 general election and became effective July 1, 1993.
Virtually all collegial public bodies are covered by the open meetings mandate of the
open government constitutional amendment with the exception of the judiciary and the
state Legislature which has its own constitutional provision requiring access. The only
exceptions are those established by law or by the Constitution.
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, municipal
corporation, or political subdivision." The statute thus applies to public collegial bodies
within this state, at the local as well as state level. City of Miami Beach v. Berns, 245
So. 2d 38 (Fla. 1971). It is equally applicable to elected and appointed boards or
commissions. Op. Att'y Gen. Fla. 73-223 (1973).
The judiciary and the Legislature are not subject to the Sunshine Law. See,
Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992); Op. Att'y Gen. Fla. 83-97 (1983).
1
***ELECTRONICALLY FILED 11/17/2023 05:01:12 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
Note: February 2018 updates are marked in bold text.
Federal agencies, i.e., agencies created under federal law, operating within the
state do not come within the purview of the state Sunshine Law. Op. Att'y Gen. Fla. 71-
191 (1971). Cf., 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).
2. Are advisory boards which make recommendations or
committees established for fact-finding only subject to the
Sunshine Law?
a. Publicly created advisory boards which make
recommendations
Advisory boards created pursuant to law or ordinance or otherwise established
by public agencies may be subject to the Sunshine Law, even though their
recommendations are not binding upon the agencies that create them. Town of Palm
Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). See also, Wood v. Marston, 442 So. 2d
934 (Fla. 1983) (Sunshine Law applies to a university's search and screening
committee). 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).
b. Fact-finding committees
A limited exception to the applicability of the Sunshine Law to advisory
committees has been recognized for advisory committees established for fact-finding
only. “[A] committee is not subject to the Sunshine Law if the committee has only been
delegated information-gathering or fact-finding authority and only conducts such
activities.” Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So.
3d 755, 762 (Fla. 2010). And see, Cape Publications, Inc. v. City of Palm Bay, 473 So.
2d 222 (Fla. 5th DCA 1985).
However, when a committee has been delegated a decision-making function
(i.e., sorting through options and making recommendations to the governmental body),
in addition to fact-finding, the Sunshine Law applies. Inf. Op. to Randolph, June 10,
2010. Moreover, the ‘fact-finding exception’ does not apply to boards, like school
boards, that have the “ultimate decision-making authority”; thus the school board could
not take a fact-finding tour without compliance with the Sunshine Law. Finch v.
Seminole County School Board, 995 So. 2d 1068 (Fla. 5th DCA 2008). See Citizens
for Sunshine, Inc. v. School Board of Martin County, 125 So. 3d 184 (Fla. 4th DCA
2013) (three members of school board violated Sunshine Law when they visited an
adult education center without providing reasonable notice).
2
3. Are private organizations providing services to public
agencies subject to the Sunshine Law?
“Generally . . . the Government in the Sunshine Law does not apply to private
organizations providing services to a state or local government, unless the private entity
has been created by a public entity, there has been a delegation of the public entity’s
governmental functions, or the private organization plays an integral part in the
decision-making process of the public entity.” Op. Att’y Gen. Fla. 07-27 (2007). Thus,
the Sunshine Law would not ordinarily apply to meetings of a homeowners' association.
Inf. Op. to Fasano, June 7, 1996. Compare, Op. Att’y Gen. Fla. 07-44 (2007) (property
owners association subject to open government laws when it is acting on behalf of a
municipal services taxing unit).
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 necessarily subject to the Sunshine Law unless the public
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 representatives subject to the
Sunshine Law).
However, although private organizations are generally 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, 383 (Fla. 1999). Thus, a
not-for-profit corporation that contracted with a city to carry out affordable housing
responsibilities and also reviewed and screened applicant files was determined to be
an agency for purposes of the Sunshine Law. Op. Att’y Gen. Fla. 08-66 (2008).
Similarly, the Sunshine Law applies to a private economic development council
when there has been a delegation of the county commission’s authority to conduct
public business such as carrying out the terms of the county’s strategic economic
development plan. Op. Att’y Gen. Fla. 10-30 (2010). See also, Op. Att’y Gen. Fla. 11-
01 (2011) (Biscayne Park Foundation, a charitable foundation created by the Village of
Biscayne Park to serve as ‘the Village’s fundraising arm,’ subject to the Sunshine Law.
Compare, Inf. Op. to Gaetz and Coley, December 17, 2009, concluding that the open
government laws did not apply to Florida’s Great Northwest, Inc., a private not-for-profit
corporation, since no delegation of a public agency’s governmental function was
apparent and the corporation did not appear to play an integral part in the decision-
making process of a public agency.
4. Does the Sunshine Law apply to staff?
Meetings of staff of boards or commissions covered by the Sunshine Law are not
ordinarily subject to section 286.011, Florida Statutes. Occidental Chemical Company
3
v. Mayo, 351 So. 2d 336 (Fla. 1977), disapproved in part on other grounds, Citizens v.
Beard, 613 So. 2d 403 (Fla. 1992). Thus, a state agency did not violate the Sunshine
Law when agency employees conducted an investigation into a licensee's alleged
failure to follow state law, and an assistant director made the decision to file a
complaint. Baker v. Florida Department of Agriculture and Consumer Services, 937 So.
2d 1161 (Fla. 4th DCA 2006).
Similarly, in Sarasota Citizens for Responsible Government v. City of Sarasota,
48 So. 3d 755, 766 (Fla. 2010), the Supreme Court ruled that a deputy county
administrator delegated authority to negotiate with a baseball team considering a move
to the area for spring training, did not violate the Sunshine Law when he consulted with
county staff because the administrator’s “so-called negotiations team only served an
informational role.” And see, Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000),
in which the court concluded that the Sunshine Law did not apply to informal meetings
of staff where the meetings 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; 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").
However, when a staff member ceases to function in a staff capacity and is
appointed to a committee which is given “a policy-based decision-making function,” the
staff member loses his or her identity as staff while working on the committee and the
Sunshine Law applies to the committee. 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). And see, Evergreen the Tree Treasurers
of Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So.
2d 526 (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 the shoes of such public officials" insofar as the
Sunshine Law is concerned).
For example, in Wood v. Marston, supra, the Court concluded that a committee
composed of staff which was created for the purpose of screening applications and
making recommendations for the position of a law school dean was subject to section
286.011, Florida Statutes, since the committee members performed a decision-making
function outside of their normal staff activities. By screening applicants and deciding
which applicants to reject from further consideration, the committee performed a policy-
based, decision-making function delegated to it by the president of the university.
Similarly, in Silver Express Company v. Miami-Dade Community College, 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
4
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]overnmental advisory committees which have offered up structured
recommendations such as here involved -- at least those recommendations 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, Op. Att'y Gen. Fla. 05-06 (2005) (city
development review committee composed of several city officials and representatives of
various city departments to review and approve development applications, is subject to
the Sunshine Law); and Op. Att’y Gen. Fla. 07-54 (2007), concluding that while post-
termination hearings held before the city manager are not subject to the Sunshine Law,
hearings held before a three member panel appointed by the city manager pursuant to
the city personnel policy should be held in the Sunshine.
In making the determination as to whether a staff committee has “decision-
making authority” so as to bring the group within the scope of the Sunshine Law, a key
factor may be whether the committee deliberates with the person who makes the final
decision. For example, the Fourth District held that deliberations of a pre-termination
panel composed of the department head, personnel director and equal opportunity
director should have been held in the Sunshine. Dascott v. Palm Beach County, 877 So.
2d 8 (Fla. 4th DCA 2004). Compare, McDougall v. Culver, 3 So. 3d 391, 394 (Fla. 2d
DCA 2009) (circulation of memoranda by senior officials in sheriff’s office which
contained findings and recommendations in connection with an internal affairs
investigation did not constitute a “meeting” for purposes of the Sunshine Law because
the sheriff alone made the final decision on discipline; “the senior officials provided only
a recommendation to the Sheriff but they did not deliberate with him nor did they have
decision-making authority.”); Jordan v. Jenne, 938 So. 2d 526, 530 (Fla. 4th DCA 2006)
(“Because the [group] provided only a recommendation to the inspector general and did
not deliberate with the inspector general, the ultimate authority on termination, we
conclude that the [group] does not exercise decision-making authority so as to
constitute a ‘board’ or commission within the meaning of section 286.011, and as a
result, its meetings are not subject to the Sunshine Act”); and Sarasota Citizens for
Responsible Government v. City of Sarasota, 48 So. 3d 755, 763 (Fla. 2010) (county
administrator’s consultations with staff did not violate the Sunshine Law because the
individuals served “an informational role;” “[t]his is not a situation where the
[administrator] and the individuals he consulted made joint decisions”).
5. Does the Sunshine Law apply to members of public
boards who also serve as administrative officers or
employees?
Occasionally, 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 before the public board on which they serve. Thus, a
5
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 prov REDACT
discussions do not relate to matters that will come before the board for action. See,
Ops. Att'y Gen. Fla. 93-41 (1993) and 11-04 (2011). Cf. section 286.01141, Florida
Statutes (2013), providing an exemption for portions of meetings of local advisory
criminal justice commissions.
C. 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
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 section 286.011, Florida Statutes. 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. Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973).
Thus, two members of a civil service board violated the Sunshine Law when they
held a private discussion of a pending employment appeal during a recess of the board
meeting. Citizens for Sunshine, Inc. v. City of Sarasota, No. 2010CA4387NC (Fla. 12th
Cir. Ct. February 27, 2012). Compare Op. Att'y Gen. Fla. 04-58 (2004) ("coincidental
unscheduled meeting of two or more county commissioners to discuss emergency
issues with staff" during a declared state of emergency not subject to s. 286.011 if the
issues do not require action by the county commission).
2. Circumstances in which the Sunshine Law may apply to a
single individual or where two board members are not
physically present
The Sunshine Law applies to public boards and commissions, i.e., collegial
bodies. As discussed supra, section 286.011, Florida Statutes, applies to meetings of
"two or more members" of the same board or commission when discussing some matter
which will foreseeably come before the board or commission.
Therefore, section 286.011, Florida Statutes, would not ordinarily apply to an
individual member of a public board or commission or to public officials who are not
board or commission members. See, Deerfield Beach Publishing, Inc. v. Robb, 530 So.
2d 510 (Fla. 4th DCA 1988) (requisite to application of the sunshine law is a meeting
between two or more public officials); City of Sunrise v. News and Sun-Sentinel
Company, 542 So. 2d 1354 (Fla. 4th DCA 1989); Mitchell v. School Board of Leon
County, 335 So. 2d 354 (Fla. 1st DCA 1976); and Sarasota Citizens for Responsible
Government v. City of Sarasota, 48 So. 3d 755 (Fla. 2010) (private one-on-one
informational briefings between individual county commissioners and staff did not
violate the Sunshine Law).
6
Certain factual situations, however, have arisen where, in order to assure public
access to the decision-making processes of public boards or commissions, it has been
necessary to conclude that the presence of two individuals of the same board or
commission is not necessary to trigger application of section 286.011, Florida Statutes.
As stated by the Supreme Court, the Sunshine Law is to be construed "so as to frustrate
all evasive devices." Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla.
1974).
a. Written communications between board members
A city commissioner may, outside a public meeting, send documents that the
commissioner wishes other members of the commission to consider on matters coming
before the commission for official action, provided that there is no response from, or
interaction related to such documents among, the commissioners prior to the public
meeting. Op. Att’y Gen. Fla. 07-35 (2007). In such cases, the records, which are
subject to disclosure under the Public Records Act, are not being used as a substitute
for action at a public meeting as there is no interaction among the commissioners prior
to the meeting. Op. Att'y Gen. Fla. 89-23 (1989).
If, however, a 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 section 286.011, Florida Statutes. Op. Att'y Gen. Fla. 90-3
(1990). Accordingly, while a school board member may prepare and circulate an
informational memorandum or position paper to other board members, the use of a
memorandum to solicit comment from other board members or the circulation of
responsive memoranda by other board members would violate the Sunshine Law. Op.
Att'y Gen. Fla. 96-35 (1996).
Similarly, a procedure whereby a board takes official action by circulating a
memorandum for each board member to sign whether the board member approves or
disapproves of a particular issue, violates the Sunshine Law. Inf. Op. to Blair, May 29,
1973. And see Leach-Wells v. City of Bradenton, 734 So. 2d 1168, 1171 (Fla. 2d DCA
1999) (selection committee created by city council 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 was required to be taken at a public meeting”). Compare,
Carlson v. Department of Revenue, 42 F.L.W. D2083 (Fla. 1st DCA September 29,
2017) (agency evaluation team members who individually reviewed competing
proposals and did not rank competitors or exclude any from consideration by the
ultimate decider, were not required to hold public meetings).
b. Meetings conducted over the telephone or using
electronic media technology
(1) Discussions conducted via telephones, email, text
7
messaging or other electronic means are not
exempted from the Sunshine Law.
As stated previously, the Sunshine Law applies to 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 requirements of section
286.011, Florida Statutes. See, State v. Childers, No. 02-21939-MMC; 02-21940-MMB
(Escambia Co. Ct. June 5, 2003), per curiam affirmed, 886 So. 2d 229 (Fla. 1st DCA
2004) (telephone conversation during which two county commissioners and the
supervisor of elections discussed redistricting violated the Sunshine Law).
Similarly, board members may not use computers to conduct private discussions
among themselves about board business. Op. Att'y Gen. Fla. 89-39 (1989). Thus, while
a city commissioner is not prohibited from posting comments on the city’s Facebook
page, commissioners “must not engage in an exchange or discussion of matters that
foreseeably will come before the board or commission for official action.” Op. Att’y Gen.
Fla. 09-19 (2009). Cf., Inf. Op. to Galaydick, October 15, 1995, advising that school
board members may share a laptop computer even 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 means of communication between members; and
Op. Att’y Gen. Fla. 01-20 (2001) (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 subjects requiring council action, does not constitute a
meeting subject to the Sunshine Law; however, such e-mail communications are public
records).
(2) Authority of boards to conduct public meetings via
electronic media technology (e.g. telephone or
video conferencing).
A related issue is whether a board is authorized to conduct public meetings via
electronic media technology (e.g., telephone or video conferencing). The answer to this
question depends upon whether the board is a state or local government agency.
In Op. Att'y Gen. Fla. 98-28 (1998), the Attorney General’s Office concluded that
section 120.54(5)(b)2., Florida Statutes, authorizes state agencies to conduct meetings
via electronic means provided that the board complies with uniform rules of procedure
adopted by the state Administration Commission. These rules contain notice
requirements and procedures for providing points of access for the public. See, Rule
28-109, Florida Administrative Code.
As to local boards, the Attorney General's Office advised that the authorization in
section 120.54(5)(b)2., Florida Statutes, to conduct meetings entirely through the use of
communications media technology applies only to state agencies. Op. Att'y Gen. Fla.
98-28 (1998). Thus, since section 1001.372(2)(b), Florida Statutes, requires a district
8
school board to hold its meetings at a "public place in the county," a quorum of the
board must be physically present at the meeting of the school board. Id.
However, if a quorum of a local board is physically present at the public meeting
site, "the participation of an absent member by telephone conference or other
interactive electronic technology is permissible when such absence is due to
extraordinary circumstances such as illness[;] . . . [w]hether the absence of a member
due to a scheduling conflict constitutes such a circumstance is a determination that
must be made in the good judgment of the board." Op. Att'y Gen. Fla. 03-41 (2003).
For example, if a quorum of a local board is physically present at the public
meeting site, a board may allow a member with health problems to participate and vote
in board meetings through the use of such devices as a speaker telephone that allow
the absent member to participate in discussions, to be heard by other board members
and the public, and to hear discussions taking place during the meeting. Op. Att’y Gen.
Fla. 94-55 (1994). See also, Op. Att'y Gen. Fla. 02-82 (2002) (physically-disabled
members of a city advisory committee participating and voting by electronic means).
However, the use of electronic media technology does not satisfy quorum
requirements necessary for official action to be taken by local boards. Op. Att’y Gen.
Fla. 06-20 (2006). “[W]here a quorum is necessary for action to be taken, physical
presence of the members making up the quorum is required in the absence of a statute
requiring otherwise.” Op. Att’y Gen. Fla. 09-56 (2009). Accordingly, a city may not
adopt an ordinance allowing members of a city board to appear by electronic means to
constitute a quorum. Op. Att’y Gen. Fla. 10-34 (2010).
The physical presence of a quorum has not been required, however, where
electronic media technology (such as video conferencing and digital audio) is used to
allow public access and participation at workshop meetings where no formal action will
be taken. Thus, the Attorney General’s Office concluded that local boards may use
electronic media technology to conduct informal discussions and workshops over the
Internet, provided that proper notice is given, and interactive access by members of the
public is provided. Op. Att’y Gen. Fla. 01-66 (2001). See also Op. Att’y Gen. Fla. 06-
20 (2006).
However, the use of an electronic bulletin board to discuss matters over an
extended period of days or weeks violates the Sunshine Law by circumventing the
notice and access provisions of that law. Op. Att'y Gen. Fla. 02-32 (2002). Compare,
Op. Att’y Gen. Fla. 08-65 (2008) (city advisory boards may conduct workshops lasting
no more than two hours using an on-line bulletin board if proper notice is given and
interactive access to members of the public is provided and the city ensures that
operating-type assistance is available where the computers for the public are located).
c. Delegation of authority to single individual
If a member of a public board is authorized only to explore various contract
9
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 and the applicant are not subject to the Sunshine Law. Op.
Att'y Gen. Fla. 93-78 (1993). If, however, the board member has been delegated the
authority to reject certain options from further consideration by the entire board, the
Attorney General’s Office has concluded that the board member is performing a
decision-making function that must be conducted in the sunshine. Ops. Att’y Gen. Fla.
95-06 (1995) and Op. Att’y Gen. Fla. 93-78 (1993). Compare, Lee County v. Pierpont,
693 So. 2d 994 (Fla. 2d DCA 1997) (authorization to county attorney to make settlement
offers to landowners not to exceed appraised value plus 20%, rather than a specific
dollar amount, did not violate the Sunshine Law).
Thus, the Attorney General’s Office has advised that while the Sunshine Law
would not ordinarily apply to an individual member of a public board or commission or to
public officials who are not board or commission members, the Sunshine law does
apply when there has been a delegation of a board’s decision-making authority. Op.
Att’y Gen. Fla. 10-15 (2010).
More recently, the First District Court of Appeal ruled that a statute
requiring a “committee” of a national insurance rating organization to comply
with the Sunshine Law when meeting to discuss the need to alter Florida rates
did not apply to an actuary who performed this function instead of a committee.
National Council on Compensation Insurance v. Fee, 219 So. 3d 172 (Fla. 1st DCA
2017). In Fee, the court noted that the term “committee” has been defined as a
“subordinate group,” not a single person and that “the multi-person concept of
the term committee further finds support in well-established precedent
construing the Sunshine Law.”
Moreover, if the individual, rather than the board, is vested by law, charter or
ordinance with the authority to take action, such discussions are not subject to section
286.011, Florida Statutes. See, City of Sunrise v. News and Sun-Sentinel Company,
542 So. 2d 1354 (Fla. 4th DCA 1989). Cf. Op. Att’y Gen. Fla. 13-14 (2013) (where
contract terms regarding the police chief’s employment have been discussed and
approved at a public city commission meeting, Sunshine Law does not require that the
written employment contract drafted by the town attorney as directed by the commission
be subsequently presented to, considered and approved by the commission at another
commission meeting).
d. Use of nonmembers as liaisons between board
members or to conduct a “de facto” meeting of 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. For example, in
Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979), the
10
court held that a series of scheduled successive meetings between the school
superintendent and individual members of the school board were subject to the
Sunshine Law. While normally meetings between the school superintendent and an
individual school board member would not be subject to section 286.011, Florida
Statutes, 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 of section 286.011, Florida Statutes.
Not all staff decisions, however, are required to be made or approved by the
board. Thus, the district court concluded in Florida Parole and Probation Commission v.
Thomas, 364 So. 2d 480 (Fla. 1st 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 commission was not subject to the Sunshine Law.
D. WHAT TYPES OF DISCUSSIONS ARE COVERED BY THE SUNSHINE
LAW?
1. Investigative meetings or meetings to consider confidential
material
The Sunshine Law is applicable to investigative inquiries of public boards or
commissions. The fact that a meeting concerns alleged violations of laws or regulations
does not remove it from the scope of the law. Op. Att'y Gen. Fla. 74-84 (1974); Canney
v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973). The
Florida Supreme Court has stated that in the absence of a statute exempting a meeting
in which privileged material is discussed, section 286.011, Florida Statutes, should be
construed as containing no exceptions. City of Miami Beach v. Berns, 245 So. 2d 38
(Fla. 1971).
Section 119.07(7), Florida Statutes, provides that an exemption from section
119.07, Florida Statutes, "does not imply an exemption from s. 286.011. The exemption
from s. 286.011 must be expressly provided." Thus, exemptions from the Public
Records Act, do not by implication allow a public agency to close a meeting in which
exempted material is to be discussed in the absence of a specific exemption from the
Sunshine Law. See, Ops. Att'y Gen. Fla. 10-04 (2010) (school board discussing
confidential student records) and 91-88 (1991) (pension board). Cf. Op. Att’y Gen. Fla.
12-20 (2012) (county board designated as “appropriate local official” authorized by
statute to receive and investigate whistle-blower complaints must comply with the
Sunshine Law, and must also “protect the confidential information it is considering at a
meeting and must not disclose the name of the whistle-blower unless one of the specific
circumstances listed in the [whistle-blower law] is present”).
2. Legal matters
In the absence of legislative exemption, discussions between a public board and
its attorney are subject to section 286.011, Florida Statutes. Neu v. Miami Herald
11
Publishing Company, 462 So. 2d 821 (Fla. 1985) (section 90.502, Florida Statutes,
which provides for the confidentiality of attorney-client communications under the
Florida Evidence Code, does not create an exemption for attorney-client
communications at public meetings). Cf., section 90.502(6), Florida Statutes, stating
that a discussion or activity that is not a meeting for purposes of the Sunshine Law shall
not be construed to waive the attorney-client privilege.
There are statutory exemptions, however, which apply to some discussions of
pending litigation between a public board and its attorney.
a. Settlement negotiations or strategy sessions related to
litigation expenditures
Section 286.011(8), Florida Statutes, provides:
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 attorney-client
12
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 section 286.011(8), Florida Statutes, to be
liberally or strictly construed?
It has been held that the Legislature intended a strict construction of section
286.011(8), Florida Statutes. City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA
1995); School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99
(Fla. 1st DCA 1996).
(2) Who may call an attorney-client meeting?
While section 286.011(8), Florida Statutes, does not specify who calls the closed
attorney-client meeting, it requires as one of the conditions that must be met that the
governmental entity's attorney "shall advise the entity at a public meeting that he or she
desires advice concerning the litigation."
The requirement that the board's attorney advise the board at a public meeting
that he or she desires advice concerning litigation, is not satisfied by a previously
published notice of the closed session. Op. Att'y Gen. Fla. 04-35 (2004). Rather, such
an announcement must be made at a public meeting of the board. Id. Cf., Op. Att’y
Gen. Fla. 07-31 (2007) (a board attorney’s request for a section 286.011[8], Florida
Statutes, meeting may be made at a special meeting of the board provided that the
special meeting at which the request is made is open to the public, reasonable notice
has been given, and minutes are taken).
(3) Who may attend?
Only 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
consultants are not allowed to be present. School Board of Duval County v. Florida
Publishing Company. And see, Zorc v. City of Vero Beach, 722 So. 2d 891, 898 (Fla.
4th DCA 1998), review denied, 735 So. 2d 1284 (Fla. 1999) (rejecting city's argument
13
that charter provision requiring that city clerk attend all council meetings authorized
clerk to attend closed attorney-client meeting); Op. Att’y Gen. Fla. 09- REDACT9)
(attorneys representing superintendent of schools in an administrative action where the
school board is a named party not authorized to meet privately with school board); and
Op. Att'y Gen. Fla. 01-10 (2001) (clerk of court not authorized to attend).
However, 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 session. Op. Att'y
Gen. Fla. 98-06 (1998). And see, Zorc v. City of Vero Beach (attendance of Special
Counsel authorized). And, a qualified interpreter may attend to interpret for hearing
impaired board members without violating the Sunshine Law. Op. Att’y Gen. Fla. 08-42
(2008).
(4) Is substantial compliance with the conditions
established in the statute adequate?
In 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 session
violated the Sunshine Law. The court rejected the city's claim that when the mayor
announced that attorneys hired by the city would attend the session [but did not give the
names of the individuals], his "substantial compliance" was sufficient to satisfy the
statute. Cf., Zorc v. City of Vero Beach, at 901, noting that deviation from the agenda at
an attorney-client session is not authorized; while such deviation is permissible if a
public meeting 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?
Section 286.011(8) states that the subject matter of the meeting shall be confined
to settlement negotiations or strategy sessions related to litigation expenditures.
Section 286.011(8)(b), Florida Statutes.
Moreover, section 286.011(8), Florida Statutes, “simply provides a governmental
entity’s attorney an opportunity to receive necessary direction and information from the
government entity. No final decisions on litigation matters can be voted on during these
private, attorney-client strategy meetings. The decision to settle a case, for a certain
amount of money, under certain conditions is a decision which must be voted upon in a
public meeting.” School Board of Duval County v. Florida Publishing Company, 670 So.
2d 99, 100 (Fla. 1st DCA 1996), quoting Staff of Fla.H.R.Comm. on Government
Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement at 3. If
a board goes beyond the "strict parameters of settlement negotiations and strategy
sessions related to litigation expenditures" and takes "decisive action," a violation of the
Sunshine Law results. Zorc v. City of Vero Beach, at 900. And see, Op. Att'y Gen. Fla.
99-37 (1999).
14
Thus, "[t]he settlement of a case is exactly that type of final REDACT
contemplated by the drafters of section 286.011(8) which must be voted upon in the
sunshine." Zorc v. City of Vero Beach, at 901. Accord, Op. Att’y Gen. Fla. 08-17 (2008)
(“any action to approve a settlement or litigation expenditures must be voted on in a
public meeting”). See also, Anderson v. City of St. Pete Beach, 161 So. 3d 548 (Fla. 2d
DCA 2014) (city violated the Sunshine Law when it held closed meetings that “covered
a wide range of political and policy issues not connected to settlement of the pending
litigation or relating to the expenses of litigating the pending cases, which at that point
were on appeal”). Compare, Bruckner v. City of Dania Beach, 823 So. 2d 167, 172 (Fla.
4th DCA 2002) (closed city commission meeting to discuss various options to settle a
lawsuit involving a challenge to a city resolution, including modification of the resolution,
authorized because the commission "neither voted, took official action to amend the
resolution, nor did it formally decide to settle the litigation"); and Brown v. City of
Lauderhill, 654 So. 2d 302, 303 (Fla. 4th DCA 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?
In Brown v. City of Lauderhill, supra, the court said it could "discern no rational
basis for concluding that a city is not a 'party' to pending litigation in which it is the real
party in interest." Accord, Op. Att’y Gen. 09-15 (2009) (where city is a “real party in
interest” of a pending lawsuit, it may conduct a closed attorney-client session even
though it is not a named party to the litigation at the time of the meeting). And see, Zorc
v. City of Vero Beach, at 900 (city was presently a party to ongoing litigation by virtue of
its already pending claims in bankruptcy proceedings).
Although the Brown decision established that the exemption could be used by a
city 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 its attorney
where there is only the threat of litigation. See, Op. Att'y Gen. Fla. 98-21 (1998)
(section 286.011[8] exemption "does not apply when no lawsuit has been filed even
though the parties involved believe litigation is inevitable"). And see, Ops. Att’y Gen.
Fla. 09-25 (2009) (town council that has received a pre-suit notice under the Bert J.
Harris Act is not a party to pending litigation and, therefore, may not conduct a closed
meeting to discuss settlement negotiations), 06-03 (2006) (exemption not applicable to
pre-litigation mediation proceedings); 13-17 (2013) (exemption may not be used to
conduct a closed meeting during a mandatory arbitration proceeding, when there is no
pending legal proceeding in a court or before an administrative agency); and Inf. Op. to
Barrett, February 17, 2016 (board not entitled to use exemption to discuss pending
investigation and subpoena where there is no on-going judicial or administrative
proceeding).
Accordingly, discussions between the city attorney and the city commission
relating to settlement of a conflict under the Florida Governmental Conflict Resolution
15
Act would not come within the scope of the exemption because “[n]othing in section
286.011(8), Florida Statutes, extends the coverage of the exemption to discussions of
mediated disputes or to issues arising through the conflict resolution procedure whether
or not litigation has been filed.” Op. Att’y Gen. Fla. 09-14 (2009).
(7) When is litigation "concluded" for purposes of
section 286.011(8)(e)?
Section 286.011(8)(e), Florida Statutes, provides that transcripts of closed
meetings “shall be made part of the public record upon conclusion of the litigation.” The
exemption does not continue for “derivative claims” made in separate, subsequent
litigation. Op. Att’y Gen. Fla. 13-13 (2013). For example, a transcript of a closed
meeting to discuss settlement of a lawsuit became a public record upon the entry of a
final judgment in that case even though the same parties were now embroiled in an
inverse condemnation lawsuit. Chmielewski v. City of St. Pete Beach, 161 So. 3d 521
(Fla. 2d DCA 2014).
However, litigation that is ongoing but temporarily suspended pursuant to a
stipulation for settlement has not been concluded for purposes of section 286.011(8),
and a transcript of meetings held between the city and its attorney to discuss such
litigation may be kept confidential until conclusion of the litigation. Op. Att'y Gen. Fla.
94-64 (1994). And see, Op. Att'y Gen. Fla. 94-33 (1994), concluding that to give effect
to the purpose of section 286.011(8), a public agency may maintain the confidentiality of
a record of 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 has run.
And see Inf. Op. to Boutsis, December 13, 2012, noting that the exemption continues
through the appeals segment of the litigation.
The release by the city council of attorney-client transcripts from meetings held
pursuant to section 286.011(8), Florida Statutes, prior to the “conclusion of litigation”
would not constitute a violation of that statutory provision, but would represent a waiver
of the limited exemption afforded to government agencies and their attorneys to discuss
pending litigation issues. Op. Att’y Gen. Fla. 13-21 (2013).
b. Risk management
Section 768.28(16)(c), Florida Statutes, states that portions of meetings and
proceedings relating solely to the evaluation of claims or to offers of compromise of
claims filed with a risk management program of the state, its agencies and subdivisions,
are exempt from the Sunshine Law.
This exemption is limited and applies only to tort claims for which the agency
may be liable under section 768.28, Florida Statutes. Op. Att'y Gen. Fla. 04-35 (2004).
The exemption is not applicable to meetings held prior to the filing of a tort claim with
the risk management program. Op. Att'y Gen. Fla. 92-82 (1992). Moreover, a meeting
of a city's risk management committee is exempt from the Sunshine Law only
Preview
Filing # 186413885 E-Filed 11/17/2023 05:01:13 PM EXHIBIT 33 OVERVIEW OF THE SUNSHINE AND PUBLIC RECORDS LAWS 2018 edition Patricia R. Gleason I. GOVERNMENT IN THE SUNSHINE LAW A. WHAT IS THE SCOPE OF THE SUNSHINE LAW? Florida's Government in the Sunshine Law, commonly referred to as the Sunshine Law, provides a right of access to governmental proceedings of public boards or commissions 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 section 286.011, Florida Statutes: (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 and promptly recorded. A right of access to meetings of collegial public bodies is also recognized in the Florida Constitution. Article I, section 24, Florida Constitution, was approved by the voters in the November 1992 general election and became effective July 1, 1993. Virtually all collegial public bodies are covered by the open meetings mandate of the open government constitutional amendment with the exception of the judiciary and the state Legislature which has its own constitutional provision requiring access. The only exceptions are those established by law or by the Constitution. 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, municipal corporation, or political subdivision." The statute thus applies to public collegial bodies within this state, at the local as well as state level. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971). It is equally applicable to elected and appointed boards or commissions. Op. Att'y Gen. Fla. 73-223 (1973). The judiciary and the Legislature are not subject to the Sunshine Law. See, Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992); Op. Att'y Gen. Fla. 83-97 (1983). 1 ***ELECTRONICALLY FILED 11/17/2023 05:01:12 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*** Note: February 2018 updates are marked in bold text. Federal agencies, i.e., agencies created under federal law, operating within the state do not come within the purview of the state Sunshine Law. Op. Att'y Gen. Fla. 71- 191 (1971). Cf., 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). 2. Are advisory boards which make recommendations or committees established for fact-finding only subject to the Sunshine Law? a. Publicly created advisory boards which make recommendations Advisory boards created pursuant to law or ordinance or otherwise established by public agencies may be subject to the Sunshine Law, even though their recommendations are not binding upon the agencies that create them. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). See also, Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (Sunshine Law applies to a university's search and screening committee). 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). b. Fact-finding committees A limited exception to the applicability of the Sunshine Law to advisory committees has been recognized for advisory committees established for fact-finding only. “[A] committee is not subject to the Sunshine Law if the committee has only been delegated information-gathering or fact-finding authority and only conducts such activities.” Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010). And see, Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985). However, when a committee has been delegated a decision-making function (i.e., sorting through options and making recommendations to the governmental body), in addition to fact-finding, the Sunshine Law applies. Inf. Op. to Randolph, June 10, 2010. Moreover, the ‘fact-finding exception’ does not apply to boards, like school boards, that have the “ultimate decision-making authority”; thus the school board could not take a fact-finding tour without compliance with the Sunshine Law. Finch v. Seminole County School Board, 995 So. 2d 1068 (Fla. 5th DCA 2008). See Citizens for Sunshine, Inc. v. School Board of Martin County, 125 So. 3d 184 (Fla. 4th DCA 2013) (three members of school board violated Sunshine Law when they visited an adult education center without providing reasonable notice). 2 3. Are private organizations providing services to public agencies subject to the Sunshine Law? “Generally . . . the Government in the Sunshine Law does not apply to private organizations providing services to a state or local government, unless the private entity has been created by a public entity, there has been a delegation of the public entity’s governmental functions, or the private organization plays an integral part in the decision-making process of the public entity.” Op. Att’y Gen. Fla. 07-27 (2007). Thus, the Sunshine Law would not ordinarily apply to meetings of a homeowners' association. Inf. Op. to Fasano, June 7, 1996. Compare, Op. Att’y Gen. Fla. 07-44 (2007) (property owners association subject to open government laws when it is acting on behalf of a municipal services taxing unit). 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 necessarily subject to the Sunshine Law unless the public 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 representatives subject to the Sunshine Law). However, although private organizations are generally 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, 383 (Fla. 1999). Thus, a not-for-profit corporation that contracted with a city to carry out affordable housing responsibilities and also reviewed and screened applicant files was determined to be an agency for purposes of the Sunshine Law. Op. Att’y Gen. Fla. 08-66 (2008). Similarly, the Sunshine Law applies to a private economic development council when there has been a delegation of the county commission’s authority to conduct public business such as carrying out the terms of the county’s strategic economic development plan. Op. Att’y Gen. Fla. 10-30 (2010). See also, Op. Att’y Gen. Fla. 11- 01 (2011) (Biscayne Park Foundation, a charitable foundation created by the Village of Biscayne Park to serve as ‘the Village’s fundraising arm,’ subject to the Sunshine Law. Compare, Inf. Op. to Gaetz and Coley, December 17, 2009, concluding that the open government laws did not apply to Florida’s Great Northwest, Inc., a private not-for-profit corporation, since no delegation of a public agency’s governmental function was apparent and the corporation did not appear to play an integral part in the decision- making process of a public agency. 4. Does the Sunshine Law apply to staff? Meetings of staff of boards or commissions covered by the Sunshine Law are not ordinarily subject to section 286.011, Florida Statutes. Occidental Chemical Company 3 v. Mayo, 351 So. 2d 336 (Fla. 1977), disapproved in part on other grounds, Citizens v. Beard, 613 So. 2d 403 (Fla. 1992). Thus, a state agency did not violate the Sunshine Law when agency employees conducted an investigation into a licensee's alleged failure to follow state law, and an assistant director made the decision to file a complaint. Baker v. Florida Department of Agriculture and Consumer Services, 937 So. 2d 1161 (Fla. 4th DCA 2006). Similarly, in Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755, 766 (Fla. 2010), the Supreme Court ruled that a deputy county administrator delegated authority to negotiate with a baseball team considering a move to the area for spring training, did not violate the Sunshine Law when he consulted with county staff because the administrator’s “so-called negotiations team only served an informational role.” And see, Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000), in which the court concluded that the Sunshine Law did not apply to informal meetings of staff where the meetings 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; 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"). However, when a staff member ceases to function in a staff capacity and is appointed to a committee which is given “a policy-based decision-making function,” the staff member loses his or her identity as staff while working on the committee and the Sunshine Law applies to the committee. 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). And see, Evergreen the Tree Treasurers of Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So. 2d 526 (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 the shoes of such public officials" insofar as the Sunshine Law is concerned). For example, in Wood v. Marston, supra, the Court concluded that a committee composed of staff which was created for the purpose of screening applications and making recommendations for the position of a law school dean was subject to section 286.011, Florida Statutes, since the committee members performed a decision-making function outside of their normal staff activities. By screening applicants and deciding which applicants to reject from further consideration, the committee performed a policy- based, decision-making function delegated to it by the president of the university. Similarly, in Silver Express Company v. Miami-Dade Community College, 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 4 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]overnmental advisory committees which have offered up structured recommendations such as here involved -- at least those recommendations 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, Op. Att'y Gen. Fla. 05-06 (2005) (city development review committee composed of several city officials and representatives of various city departments to review and approve development applications, is subject to the Sunshine Law); and Op. Att’y Gen. Fla. 07-54 (2007), concluding that while post- termination hearings held before the city manager are not subject to the Sunshine Law, hearings held before a three member panel appointed by the city manager pursuant to the city personnel policy should be held in the Sunshine. In making the determination as to whether a staff committee has “decision- making authority” so as to bring the group within the scope of the Sunshine Law, a key factor may be whether the committee deliberates with the person who makes the final decision. For example, the Fourth District held that deliberations of a pre-termination panel composed of the department head, personnel director and equal opportunity director should have been held in the Sunshine. Dascott v. Palm Beach County, 877 So. 2d 8 (Fla. 4th DCA 2004). Compare, McDougall v. Culver, 3 So. 3d 391, 394 (Fla. 2d DCA 2009) (circulation of memoranda by senior officials in sheriff’s office which contained findings and recommendations in connection with an internal affairs investigation did not constitute a “meeting” for purposes of the Sunshine Law because the sheriff alone made the final decision on discipline; “the senior officials provided only a recommendation to the Sheriff but they did not deliberate with him nor did they have decision-making authority.”); Jordan v. Jenne, 938 So. 2d 526, 530 (Fla. 4th DCA 2006) (“Because the [group] provided only a recommendation to the inspector general and did not deliberate with the inspector general, the ultimate authority on termination, we conclude that the [group] does not exercise decision-making authority so as to constitute a ‘board’ or commission within the meaning of section 286.011, and as a result, its meetings are not subject to the Sunshine Act”); and Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755, 763 (Fla. 2010) (county administrator’s consultations with staff did not violate the Sunshine Law because the individuals served “an informational role;” “[t]his is not a situation where the [administrator] and the individuals he consulted made joint decisions”). 5. Does the Sunshine Law apply to members of public boards who also serve as administrative officers or employees? Occasionally, 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 before the public board on which they serve. Thus, a 5 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 prov REDACT discussions do not relate to matters that will come before the board for action. See, Ops. Att'y Gen. Fla. 93-41 (1993) and 11-04 (2011). Cf. section 286.01141, Florida Statutes (2013), providing an exemption for portions of meetings of local advisory criminal justice commissions. C. 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 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 section 286.011, Florida Statutes. 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. Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). Thus, two members of a civil service board violated the Sunshine Law when they held a private discussion of a pending employment appeal during a recess of the board meeting. Citizens for Sunshine, Inc. v. City of Sarasota, No. 2010CA4387NC (Fla. 12th Cir. Ct. February 27, 2012). Compare Op. Att'y Gen. Fla. 04-58 (2004) ("coincidental unscheduled meeting of two or more county commissioners to discuss emergency issues with staff" during a declared state of emergency not subject to s. 286.011 if the issues do not require action by the county commission). 2. Circumstances in which the Sunshine Law may apply to a single individual or where two board members are not physically present The Sunshine Law applies to public boards and commissions, i.e., collegial bodies. As discussed supra, section 286.011, Florida Statutes, applies to meetings of "two or more members" of the same board or commission when discussing some matter which will foreseeably come before the board or commission. Therefore, section 286.011, Florida Statutes, would not ordinarily apply to an individual member of a public board or commission or to public officials who are not board or commission members. See, Deerfield Beach Publishing, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988) (requisite to application of the sunshine law is a meeting between two or more public officials); City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989); Mitchell v. School Board of Leon County, 335 So. 2d 354 (Fla. 1st DCA 1976); and Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755 (Fla. 2010) (private one-on-one informational briefings between individual county commissioners and staff did not violate the Sunshine Law). 6 Certain factual situations, however, have arisen where, in order to assure public access to the decision-making processes of public boards or commissions, it has been necessary to conclude that the presence of two individuals of the same board or commission is not necessary to trigger application of section 286.011, Florida Statutes. As stated by the Supreme Court, the Sunshine Law is to be construed "so as to frustrate all evasive devices." Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974). a. Written communications between board members A city commissioner may, outside a public meeting, send documents that the commissioner wishes other members of the commission to consider on matters coming before the commission for official action, provided that there is no response from, or interaction related to such documents among, the commissioners prior to the public meeting. Op. Att’y Gen. Fla. 07-35 (2007). In such cases, the records, which are subject to disclosure under the Public Records Act, are not being used as a substitute for action at a public meeting as there is no interaction among the commissioners prior to the meeting. Op. Att'y Gen. Fla. 89-23 (1989). If, however, a 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 section 286.011, Florida Statutes. Op. Att'y Gen. Fla. 90-3 (1990). Accordingly, while a school board member may prepare and circulate an informational memorandum or position paper to other board members, the use of a memorandum to solicit comment from other board members or the circulation of responsive memoranda by other board members would violate the Sunshine Law. Op. Att'y Gen. Fla. 96-35 (1996). Similarly, a procedure whereby a board takes official action by circulating a memorandum for each board member to sign whether the board member approves or disapproves of a particular issue, violates the Sunshine Law. Inf. Op. to Blair, May 29, 1973. And see Leach-Wells v. City of Bradenton, 734 So. 2d 1168, 1171 (Fla. 2d DCA 1999) (selection committee created by city council 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 was required to be taken at a public meeting”). Compare, Carlson v. Department of Revenue, 42 F.L.W. D2083 (Fla. 1st DCA September 29, 2017) (agency evaluation team members who individually reviewed competing proposals and did not rank competitors or exclude any from consideration by the ultimate decider, were not required to hold public meetings). b. Meetings conducted over the telephone or using electronic media technology (1) Discussions conducted via telephones, email, text 7 messaging or other electronic means are not exempted from the Sunshine Law. As stated previously, the Sunshine Law applies to 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 requirements of section 286.011, Florida Statutes. See, State v. Childers, No. 02-21939-MMC; 02-21940-MMB (Escambia Co. Ct. June 5, 2003), per curiam affirmed, 886 So. 2d 229 (Fla. 1st DCA 2004) (telephone conversation during which two county commissioners and the supervisor of elections discussed redistricting violated the Sunshine Law). Similarly, board members may not use computers to conduct private discussions among themselves about board business. Op. Att'y Gen. Fla. 89-39 (1989). Thus, while a city commissioner is not prohibited from posting comments on the city’s Facebook page, commissioners “must not engage in an exchange or discussion of matters that foreseeably will come before the board or commission for official action.” Op. Att’y Gen. Fla. 09-19 (2009). Cf., Inf. Op. to Galaydick, October 15, 1995, advising that school board members may share a laptop computer even 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 means of communication between members; and Op. Att’y Gen. Fla. 01-20 (2001) (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 subjects requiring council action, does not constitute a meeting subject to the Sunshine Law; however, such e-mail communications are public records). (2) Authority of boards to conduct public meetings via electronic media technology (e.g. telephone or video conferencing). A related issue is whether a board is authorized to conduct public meetings via electronic media technology (e.g., telephone or video conferencing). The answer to this question depends upon whether the board is a state or local government agency. In Op. Att'y Gen. Fla. 98-28 (1998), the Attorney General’s Office concluded that section 120.54(5)(b)2., Florida Statutes, authorizes state agencies to conduct meetings via electronic means provided that the board complies with uniform rules of procedure adopted by the state Administration Commission. These rules contain notice requirements and procedures for providing points of access for the public. See, Rule 28-109, Florida Administrative Code. As to local boards, the Attorney General's Office advised that the authorization in section 120.54(5)(b)2., Florida Statutes, to conduct meetings entirely through the use of communications media technology applies only to state agencies. Op. Att'y Gen. Fla. 98-28 (1998). Thus, since section 1001.372(2)(b), Florida Statutes, requires a district 8 school board to hold its meetings at a "public place in the county," a quorum of the board must be physically present at the meeting of the school board. Id. However, if a quorum of a local board is physically present at the public meeting site, "the participation of an absent member by telephone conference or other interactive electronic technology is permissible when such absence is due to extraordinary circumstances such as illness[;] . . . [w]hether the absence of a member due to a scheduling conflict constitutes such a circumstance is a determination that must be made in the good judgment of the board." Op. Att'y Gen. Fla. 03-41 (2003). For example, if a quorum of a local board is physically present at the public meeting site, a board may allow a member with health problems to participate and vote in board meetings through the use of such devices as a speaker telephone that allow the absent member to participate in discussions, to be heard by other board members and the public, and to hear discussions taking place during the meeting. Op. Att’y Gen. Fla. 94-55 (1994). See also, Op. Att'y Gen. Fla. 02-82 (2002) (physically-disabled members of a city advisory committee participating and voting by electronic means). However, the use of electronic media technology does not satisfy quorum requirements necessary for official action to be taken by local boards. Op. Att’y Gen. Fla. 06-20 (2006). “[W]here a quorum is necessary for action to be taken, physical presence of the members making up the quorum is required in the absence of a statute requiring otherwise.” Op. Att’y Gen. Fla. 09-56 (2009). Accordingly, a city may not adopt an ordinance allowing members of a city board to appear by electronic means to constitute a quorum. Op. Att’y Gen. Fla. 10-34 (2010). The physical presence of a quorum has not been required, however, where electronic media technology (such as video conferencing and digital audio) is used to allow public access and participation at workshop meetings where no formal action will be taken. Thus, the Attorney General’s Office concluded that local boards may use electronic media technology to conduct informal discussions and workshops over the Internet, provided that proper notice is given, and interactive access by members of the public is provided. Op. Att’y Gen. Fla. 01-66 (2001). See also Op. Att’y Gen. Fla. 06- 20 (2006). However, the use of an electronic bulletin board to discuss matters over an extended period of days or weeks violates the Sunshine Law by circumventing the notice and access provisions of that law. Op. Att'y Gen. Fla. 02-32 (2002). Compare, Op. Att’y Gen. Fla. 08-65 (2008) (city advisory boards may conduct workshops lasting no more than two hours using an on-line bulletin board if proper notice is given and interactive access to members of the public is provided and the city ensures that operating-type assistance is available where the computers for the public are located). c. Delegation of authority to single individual If a member of a public board is authorized only to explore various contract 9 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 and the applicant are not subject to the Sunshine Law. Op. Att'y Gen. Fla. 93-78 (1993). If, however, the board member has been delegated the authority to reject certain options from further consideration by the entire board, the Attorney General’s Office has concluded that the board member is performing a decision-making function that must be conducted in the sunshine. Ops. Att’y Gen. Fla. 95-06 (1995) and Op. Att’y Gen. Fla. 93-78 (1993). Compare, Lee County v. Pierpont, 693 So. 2d 994 (Fla. 2d DCA 1997) (authorization to county attorney to make settlement offers to landowners not to exceed appraised value plus 20%, rather than a specific dollar amount, did not violate the Sunshine Law). Thus, the Attorney General’s Office has advised that while the Sunshine Law would not ordinarily apply to an individual member of a public board or commission or to public officials who are not board or commission members, the Sunshine law does apply when there has been a delegation of a board’s decision-making authority. Op. Att’y Gen. Fla. 10-15 (2010). More recently, the First District Court of Appeal ruled that a statute requiring a “committee” of a national insurance rating organization to comply with the Sunshine Law when meeting to discuss the need to alter Florida rates did not apply to an actuary who performed this function instead of a committee. National Council on Compensation Insurance v. Fee, 219 So. 3d 172 (Fla. 1st DCA 2017). In Fee, the court noted that the term “committee” has been defined as a “subordinate group,” not a single person and that “the multi-person concept of the term committee further finds support in well-established precedent construing the Sunshine Law.” Moreover, if the individual, rather than the board, is vested by law, charter or ordinance with the authority to take action, such discussions are not subject to section 286.011, Florida Statutes. See, City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989). Cf. Op. Att’y Gen. Fla. 13-14 (2013) (where contract terms regarding the police chief’s employment have been discussed and approved at a public city commission meeting, Sunshine Law does not require that the written employment contract drafted by the town attorney as directed by the commission be subsequently presented to, considered and approved by the commission at another commission meeting). d. Use of nonmembers as liaisons between board members or to conduct a “de facto” meeting of 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. For example, in Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979), the 10 court held that a series of scheduled successive meetings between the school superintendent and individual members of the school board were subject to the Sunshine Law. While normally meetings between the school superintendent and an individual school board member would not be subject to section 286.011, Florida Statutes, 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 of section 286.011, Florida Statutes. Not all staff decisions, however, are required to be made or approved by the board. Thus, the district court concluded in Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st 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 commission was not subject to the Sunshine Law. D. WHAT TYPES OF DISCUSSIONS ARE COVERED BY THE SUNSHINE LAW? 1. Investigative meetings or meetings to consider confidential material The Sunshine Law is applicable to investigative inquiries of public boards or commissions. The fact that a meeting concerns alleged violations of laws or regulations does not remove it from the scope of the law. Op. Att'y Gen. Fla. 74-84 (1974); Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973). The Florida Supreme Court has stated that in the absence of a statute exempting a meeting in which privileged material is discussed, section 286.011, Florida Statutes, should be construed as containing no exceptions. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971). Section 119.07(7), Florida Statutes, provides that an exemption from section 119.07, Florida Statutes, "does not imply an exemption from s. 286.011. The exemption from s. 286.011 must be expressly provided." Thus, exemptions from the Public Records Act, do not by implication allow a public agency to close a meeting in which exempted material is to be discussed in the absence of a specific exemption from the Sunshine Law. See, Ops. Att'y Gen. Fla. 10-04 (2010) (school board discussing confidential student records) and 91-88 (1991) (pension board). Cf. Op. Att’y Gen. Fla. 12-20 (2012) (county board designated as “appropriate local official” authorized by statute to receive and investigate whistle-blower complaints must comply with the Sunshine Law, and must also “protect the confidential information it is considering at a meeting and must not disclose the name of the whistle-blower unless one of the specific circumstances listed in the [whistle-blower law] is present”). 2. Legal matters In the absence of legislative exemption, discussions between a public board and its attorney are subject to section 286.011, Florida Statutes. Neu v. Miami Herald 11 Publishing Company, 462 So. 2d 821 (Fla. 1985) (section 90.502, Florida Statutes, which provides for the confidentiality of attorney-client communications under the Florida Evidence Code, does not create an exemption for attorney-client communications at public meetings). Cf., section 90.502(6), Florida Statutes, stating that a discussion or activity that is not a meeting for purposes of the Sunshine Law shall not be construed to waive the attorney-client privilege. There are statutory exemptions, however, which apply to some discussions of pending litigation between a public board and its attorney. a. Settlement negotiations or strategy sessions related to litigation expenditures Section 286.011(8), Florida Statutes, provides: 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 attorney-client 12 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 section 286.011(8), Florida Statutes, to be liberally or strictly construed? It has been held that the Legislature intended a strict construction of section 286.011(8), Florida Statutes. City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995); School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996). (2) Who may call an attorney-client meeting? While section 286.011(8), Florida Statutes, does not specify who calls the closed attorney-client meeting, it requires as one of the conditions that must be met that the governmental entity's attorney "shall advise the entity at a public meeting that he or she desires advice concerning the litigation." The requirement that the board's attorney advise the board at a public meeting that he or she desires advice concerning litigation, is not satisfied by a previously published notice of the closed session. Op. Att'y Gen. Fla. 04-35 (2004). Rather, such an announcement must be made at a public meeting of the board. Id. Cf., Op. Att’y Gen. Fla. 07-31 (2007) (a board attorney’s request for a section 286.011[8], Florida Statutes, meeting may be made at a special meeting of the board provided that the special meeting at which the request is made is open to the public, reasonable notice has been given, and minutes are taken). (3) Who may attend? Only 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 consultants are not allowed to be present. School Board of Duval County v. Florida Publishing Company. And see, Zorc v. City of Vero Beach, 722 So. 2d 891, 898 (Fla. 4th DCA 1998), review denied, 735 So. 2d 1284 (Fla. 1999) (rejecting city's argument 13 that charter provision requiring that city clerk attend all council meetings authorized clerk to attend closed attorney-client meeting); Op. Att’y Gen. Fla. 09- REDACT9) (attorneys representing superintendent of schools in an administrative action where the school board is a named party not authorized to meet privately with school board); and Op. Att'y Gen. Fla. 01-10 (2001) (clerk of court not authorized to attend). However, 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 session. Op. Att'y Gen. Fla. 98-06 (1998). And see, Zorc v. City of Vero Beach (attendance of Special Counsel authorized). And, a qualified interpreter may attend to interpret for hearing impaired board members without violating the Sunshine Law. Op. Att’y Gen. Fla. 08-42 (2008). (4) Is substantial compliance with the conditions established in the statute adequate? In 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 session violated the Sunshine Law. The court rejected the city's claim that when the mayor announced that attorneys hired by the city would attend the session [but did not give the names of the individuals], his "substantial compliance" was sufficient to satisfy the statute. Cf., Zorc v. City of Vero Beach, at 901, noting that deviation from the agenda at an attorney-client session is not authorized; while such deviation is permissible if a public meeting 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? Section 286.011(8) states that the subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. Section 286.011(8)(b), Florida Statutes. Moreover, section 286.011(8), Florida Statutes, “simply provides a governmental entity’s attorney an opportunity to receive necessary direction and information from the government entity. No final decisions on litigation matters can be voted on during these private, attorney-client strategy meetings. The decision to settle a case, for a certain amount of money, under certain conditions is a decision which must be voted upon in a public meeting.” School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99, 100 (Fla. 1st DCA 1996), quoting Staff of Fla.H.R.Comm. on Government Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement at 3. If a board goes beyond the "strict parameters of settlement negotiations and strategy sessions related to litigation expenditures" and takes "decisive action," a violation of the Sunshine Law results. Zorc v. City of Vero Beach, at 900. And see, Op. Att'y Gen. Fla. 99-37 (1999). 14 Thus, "[t]he settlement of a case is exactly that type of final REDACT contemplated by the drafters of section 286.011(8) which must be voted upon in the sunshine." Zorc v. City of Vero Beach, at 901. Accord, Op. Att’y Gen. Fla. 08-17 (2008) (“any action to approve a settlement or litigation expenditures must be voted on in a public meeting”). See also, Anderson v. City of St. Pete Beach, 161 So. 3d 548 (Fla. 2d DCA 2014) (city violated the Sunshine Law when it held closed meetings that “covered a wide range of political and policy issues not connected to settlement of the pending litigation or relating to the expenses of litigating the pending cases, which at that point were on appeal”). Compare, Bruckner v. City of Dania Beach, 823 So. 2d 167, 172 (Fla. 4th DCA 2002) (closed city commission meeting to discuss various options to settle a lawsuit involving a challenge to a city resolution, including modification of the resolution, authorized because the commission "neither voted, took official action to amend the resolution, nor did it formally decide to settle the litigation"); and Brown v. City of Lauderhill, 654 So. 2d 302, 303 (Fla. 4th DCA 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? In Brown v. City of Lauderhill, supra, the court said it could "discern no rational basis for concluding that a city is not a 'party' to pending litigation in which it is the real party in interest." Accord, Op. Att’y Gen. 09-15 (2009) (where city is a “real party in interest” of a pending lawsuit, it may conduct a closed attorney-client session even though it is not a named party to the litigation at the time of the meeting). And see, Zorc v. City of Vero Beach, at 900 (city was presently a party to ongoing litigation by virtue of its already pending claims in bankruptcy proceedings). Although the Brown decision established that the exemption could be used by a city 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 its attorney where there is only the threat of litigation. See, Op. Att'y Gen. Fla. 98-21 (1998) (section 286.011[8] exemption "does not apply when no lawsuit has been filed even though the parties involved believe litigation is inevitable"). And see, Ops. Att’y Gen. Fla. 09-25 (2009) (town council that has received a pre-suit notice under the Bert J. Harris Act is not a party to pending litigation and, therefore, may not conduct a closed meeting to discuss settlement negotiations), 06-03 (2006) (exemption not applicable to pre-litigation mediation proceedings); 13-17 (2013) (exemption may not be used to conduct a closed meeting during a mandatory arbitration proceeding, when there is no pending legal proceeding in a court or before an administrative agency); and Inf. Op. to Barrett, February 17, 2016 (board not entitled to use exemption to discuss pending investigation and subpoena where there is no on-going judicial or administrative proceeding). Accordingly, discussions between the city attorney and the city commission relating to settlement of a conflict under the Florida Governmental Conflict Resolution 15 Act would not come within the scope of the exemption because “[n]othing in section 286.011(8), Florida Statutes, extends the coverage of the exemption to discussions of mediated disputes or to issues arising through the conflict resolution procedure whether or not litigation has been filed.” Op. Att’y Gen. Fla. 09-14 (2009). (7) When is litigation "concluded" for purposes of section 286.011(8)(e)? Section 286.011(8)(e), Florida Statutes, provides that transcripts of closed meetings “shall be made part of the public record upon conclusion of the litigation.” The exemption does not continue for “derivative claims” made in separate, subsequent litigation. Op. Att’y Gen. Fla. 13-13 (2013). For example, a transcript of a closed meeting to discuss settlement of a lawsuit became a public record upon the entry of a final judgment in that case even though the same parties were now embroiled in an inverse condemnation lawsuit. Chmielewski v. City of St. Pete Beach, 161 So. 3d 521 (Fla. 2d DCA 2014). However, litigation that is ongoing but temporarily suspended pursuant to a stipulation for settlement has not been concluded for purposes of section 286.011(8), and a transcript of meetings held between the city and its attorney to discuss such litigation may be kept confidential until conclusion of the litigation. Op. Att'y Gen. Fla. 94-64 (1994). And see, Op. Att'y Gen. Fla. 94-33 (1994), concluding that to give effect to the purpose of section 286.011(8), a public agency may maintain the confidentiality of a record of 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 has run. And see Inf. Op. to Boutsis, December 13, 2012, noting that the exemption continues through the appeals segment of the litigation. The release by the city council of attorney-client transcripts from meetings held pursuant to section 286.011(8), Florida Statutes, prior to the “conclusion of litigation” would not constitute a violation of that statutory provision, but would represent a waiver of the limited exemption afforded to government agencies and their attorneys to discuss pending litigation issues. Op. Att’y Gen. Fla. 13-21 (2013). b. Risk management Section 768.28(16)(c), Florida Statutes, states that portions of meetings and proceedings relating solely to the evaluation of claims or to offers of compromise of claims filed with a risk management program of the state, its agencies and subdivisions, are exempt from the Sunshine Law. This exemption is limited and applies only to tort claims for which the agency may be liable under section 768.28, Florida Statutes. Op. Att'y Gen. Fla. 04-35 (2004). The exemption is not applicable to meetings held prior to the filing of a tort claim with the risk management program. Op. Att'y Gen. Fla. 92-82 (1992). Moreover, a meeting of a city's risk management committee is exempt from the Sunshine Law only