The Florida legislature is considering a law that will ensure the citizens’ right to speak at public meetings, defining a right under Sunshine Law that was tested locally.
Senate bill 206, entitled “Public Meetings,” was filed last week by State Senator Joe Negron (R-Stuart) to amend Florida Statutes Section 286.011 with the following (emphasis mine):
Members of the public shall be given an opportunity to be heard on a proposition before the board or commission. The opportunity to be heard need not occur at the same meeting at which the board or commission takes official action on the item, if the opportunity occurs at a meeting that meets the same notice requirements as the meeting at which the board or commission takes official action on the item, occurs at a meeting that is during the decisionmaking process, and is within reasonable proximity to the meeting at which the board or commission takes the official action. The opportunity to be heard is subject to reasonable rules or policies adopted by the board or commission to ensure the orderly conduct of a public meeting, as provided in subparagraph 3. A resolution, rule, or formal action is not binding unless taken or made in compliance with this paragraph.
The bill was co-sponsored by Panhandle State Senators Don Gaetz and Greg Evers — and rightly so, considering that a Pensacola lawsuit was a major impetus for the bill.
In 2009, Byron Keesler and LeRoy Boyd filed suit against the Community Maritime Park Associates board, alleging that the board had violated Sunshine Law by not allowing the public to speak at CMPA meetings. The suit asked that all official actions made by the board in noncompliant meetings (that is, all of them) be declared void ab initio.
The wording of the Sunshine Law says only that the meetings must be “open to the public,” a phrase that is not statutorily defined, though several decisions of the Florida Supreme Court, like the 1969 Board of Instruction of Broward County v. Doran, have equated the explicit “right to be present” with an implicit “right to be heard.” Ultimately the argument boiled down to whether the CMPA had violated Sunshine Law by allowing citizens to attend meetings, but not to speak. Circuit Court Judge Frank Bell ruled the CMPA had not violated the law, and in 2010 the First District Court of Appeals affirmed that decision.
While I agree that the CMPA suit was rightly decided, I am very glad to see the broader interpretation making its way into law.
Introducing the bill at last Wednesday’s Subcommittee on Ethics and Elections meeting, Senator Negron read a PNJ quote (which he described as the “amusing lawyer comment of the year”) attributed to CMPA attorney Ed Fleming that said “the board would have difficulty recruiting and retaining members if meetings dragged on for hours due to public participation.”
Craig Kahn, a lobbyist with the League of Cities, expressed concerns about the bill as written — that unintentional violations of the law could result in ab initio voiding of government actions, for example, or that it would preclude reasonable limits on meeting occupancy set by a fire marshall. Senator Gaetz had stern words in response.
“I’m troubled by the testimony of the League of Cities here today,” Gaetz said. “Other than the fear of unreasonable lawsuits, which we all share, why is the League of Cities so afraid of its constituents and their voices and their placards?”
Senator Chris Smith defended the League’s concerns.
“All the League is saying is, sometimes a technical mistake could be made,” Smith said. “Don’t nullify our law or have us in court trying to fix a technical mistake because we told a person you can’t have a poster with an offensive word on it, and we pass the law. Then that person will go to court and say, ‘hey, under this statute, they didn’t let me hold my placard, therefore this ordinance should be nullified.’ That’s all the League is saying.”
State Representatives Marty Kiar (R-Davie) and Evan Jenne (D-Dania Beach) have filed a similar bill in the House. I wish that Panhandle Representatives Clay Ford and Clay Ingram had co-sponsored the House version — “LeRoy’s Law” has a nice ring to it — but this is definitely a victory for the citizens of Florida.
3 comments
Diane Mack says:
Jan 17, 2012
This clarification is long overdue, and I hope the bill passes. This is, in part, a tribute to attorney Sharon Barnett, who represented LeRoy Boyd and Byron Keesler at great expense to herself and her family and with much personal sacrifice. Also, I sent a personal email to Clay Ingram asking him to sign on as a sponsor of the bill, but never received even a reply.
CJ Lewis says:
Jan 17, 2012
Florida’s Sunshine Law was introduced in 1957 to replace an ineffective 1905 law. The original bill’s sponsor submitted it ten times before it became law in 1967. The key issue in Keesler v. CMPA, Inc. is nothing more complicated than the Court’s interpretation of Florida’s Government-in-the-Sunshine Law phrase “open to the public” as the Court has looked to its purpose incrementally more broadly construing it in favor of the public.
Starting in 1969, the Florida appellate courts began interpreting the Sunshine Law to provide the public with an ever more expansive right. The landmark 1973 Florida Supreme Court Doran decision contains the pivotal phrase, “The right to be present and to be heard….” As far as I know, Doran has not been reversed. Most often quoted is this section below. Note the use of the often-overlooked phrase “this inalienable right.”
“The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country. . . . Regardless of their good intentions, these specified boards and commission, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.” Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, 699 (Fla. 1969)
Not mentioned here in the story is Sharon Barnett who represented plaintiffs Byron Keesler and LeRoy Boyd. She worked tirelessly fighting for her clients who stepped forward on behalf of all Pensacolians and all Floridians. Barnett deserves “Hero of the City” status and inclusion in a City Proclamation honoring her, Keesler and Boyd. She needs to write a book about the case to create a permanent record describing how a few persistent citizens can make a BIG difference.
Michelle Caldwell is an unsung hero. On August 8, 2008, she several times attempted to be recognized to address the CMPA. An irritated CMPA Chairman Senior U.S. Federal Judge Lacey Collier stopped Caldwell’s final effort to speak by banging his gavel and directing her to leave the room, “Please leave…Ma’am, You’re not going to convince anybody. Why don’t you leave?” Caldwell then left the room. Mayor John Fogg was then a member of the CMPA Board further reinforcing that Collier was standing in the shoes of the Council and acting in its name.
Collier was later offended by the lawsuit, “It is shameful and disgusting to be treated in such a fashion.” I was offended that he was offended, especially because he is a retired Naval Officer. Addressing the Council in September 2008, Collier defiantly asserted, “Quite frankly, I am not sure that I care what some other citizen thinks…because that’s just their opinion, and I am the one that’s got to, to cast that vote.” He and Sam Hall are kindred spirits.
The CMPA public speaking “issue” had two elements, one political and one legal. The political issue arose because the Council was intimidated by the well-connected CMPA members, the people backing them and pulling their strings, and Collier in particular. The relationship between the City and the CMPA seems to be a continuously moving target involving a lot of cryptic wordplay to tell different groups whatever they want to hear.
The CMPA is now an “instrumentality” of the City but perhaps not really. If the CMPA is an instrumentality of the City, that makes a strong case for the three Council members Larry Johnson, Brian Spencer and Megan Pratt not serving on the CMPA Board of Trustees. Right now, they vote on decisions as CMPA Board members they then ratify as Community Redevelopment Agency Board members and then again as Council members. Mayor Ashton Hayward openly controls Johnson and Spencer giving him two surrogate votes and voices on the CMPA, CRA and the Council. He owns Hall too but only on the CRA and Council.
At any point going back to the CMPA’s first public meeting in September 2006, the Council could have ordered the CMPA to adhere to its rules for public input at public meetings. The CMPA is building a public project on public property using public money for a public purpose.
That happened in part in September 2008, but the Council did not follow up to supervise the effort. The CMPA created a public forum segment its attorney Ed Fleming later assured the Court took place “before” the decision-making process. It was a weak half-measure.
The political issue was only resolved after Keesler and Boyd had already lost in Court for the third time. In April 2010, Barnett addressed the Council. Most Council members openly did not care. It was as if she was talking to the dummies at a wax museum. I was offended that they were not listening to her. I filled out a blue card to speak.
Councilwoman Maren DeWeese saw that I had or was about to blow a gasket and took pity unwilling to let me go further as I was on the verge of angry tears. I cannot remember every being so utterly disgusted. DeWeese picked up the gauntlet, forced the issue with the others and the next day the public was allowed to speak for the first time at a CMPA meeting.
Judge Frank Bell summed up the key legal issue this way, “Does the ‘Government, in the Sunshine Law’, give the public the right to participate by ‘speaking to the issues’ during the public meeting?” The issue had never been raised so directly. It was a case of first impression. Florida is a leader in Open Government laws so the decision would have national consequences.
Plenty of legal decisions were quoted on both sides but nothing in a Florida appellate court decision’s “holding” directly answered the key question. Barnett only wanted the Court to clarify for Keesler and Boyd if “open to the public” meant that citizens could speak in order to be heard.
Some decisions also said the public had a right to present its views or similar verbiage. The act of speaking was inherently implied by the inalienable right of being heard. Apparently, all the Judges and Justices involved in this case disagreed proving that a passing grade on a “common sense” test should be a prerequisite to sit on the bench.
The CMPA, and City Attorney Rusty Wells too, hung their hats on 35 words taken out of context from a case called Marston. It involved the public’s right to participate in an “executive meeting,” in this case the meeting of a University of Florida staff committee tasked by the University President to recommend candidates to be Dean of the Law School.
The decision addressed a conflict between public input at an academic meeting not normally allowing public input and the “dearly held rights of academic freedom.” A Florida Attorney General Opinion dated January 27, 1994 on “Sunshine Law, right of public to participate” gives a good summary of the law as of that date through the eyes of the Attorney General’s Office. The CMPA exercises legislative authority delegated to it by the Council when making decisions about how to spend public monies. About Marston, the AG wrote:
“Until the matter is clarified, this office has recognized that when certain committees are carrying out certain executive functions that traditionally have been conducted without public input, the public has a right to attend but may not have the authority to participate. On the other hand, if a committee or board is carrying out legislative functions, this office has advised that the public should be afforded a meaningful opportunity to participate at each stage of the decision-making process.”
The “gist” of the CMPA, Council, Judge and Justice view was that the public had a right to be heard but not to actually speak so they could be heard. Their position is as ridiculous as it sounds when it is read aloud. The funniest moment in the tortuously sad affair was when Bell, who was grossly unprepared for Court and thought he was going to dismiss Barnett with a flick of his wrist, kept demanding to know where it said the people actually gets to speak to be heard.
Barnett asked if the people were expected to communicate with their elected and appointed officials using mental telepathy. Bell almost blew his own gasket when he realized he had made a fool of himself and Barnett had pointed it out on the record for the benefit of the two appellate courts. As I recall, at the time Bell was in double-dipper status being paid something like $300,000 to come unprepared to court admitting on the record that he had not even read the key documents. I was present and it seemed like a Kafkaesque show trial.
Bell seemed to struggle keeping up with Barnett who knew the relevant procedural and substantive law far better than him. Fleming just wanted it to all go away. Barnett was like a cage fighter who kept coming at him and Bell too. It really was a David vs. Goliaths contest with Bell openly siding with Fleming. At one point, Fleming realized that Barnett was not going to stop until she had everything she needed on the record for appeal. He sat down at his table and rested his head in his hands.
At the 1st DCA hearing in Tallahassee, one Judge commented that they rarely had so many members of the public fill their chambers. It was standing room only. Fleming argued that the people were demanding, “A right to vent.” The Judges used up Barnett’s remaining time ensuring she could not refute any of Fleming’s claims not supported by the facts. As I recall, I think Fleming said the Council appointed the CMPA Board members, which it did not then do.
The reason the legislature needs to make it blindingly clear that people get to speak to be heard is because we still have elected officials like Council President Sam Hall. As recently as December 12th, Hall was lecturing the public that they had no right to speak, implying that public speaking was a revocable privilege he could take away at any moment, as he did that day and on December 15th with the help of armed police officers.
What rules? says:
Jan 18, 2012
Bravo Sharon Barnett. always prepared, professional and a credit to her profession.
Bell another local double dipper on the taxpayer’s dime, unprepared and obvious GOB
Fleming never said the word ballpark but called it a commercial development, why?
Hall did insinuate that he might be changing the rules about speaking which is ironic since he used every opportunity and every minute allowed to speak to the council when he was on the Save Our City Team. What changed, Mr. Hall?