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.
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.
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.