CITIZENS OF THE STATE OF FLORIDA, APPELLANT,
v.
THOMAS M. BEARD, ETC., ET AL., APPELLEES
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The Florida Supreme Court resolved a procedural dispute regarding whether a staff memorandum and transcript of a Public Service Commission agenda conference should be included in the appellate record. The Court held that staff memoranda authored by those who actively participated in the hearing may be included, and that agenda conference transcripts, being public records, may be included in the record on appeal.
Staff memoranda prepared by advisory staff who neither testified nor actively participated in the hearing should not be part of the record on appeal; however, memoranda from staff who testified or actively participated in the hearing may be included. Because agenda conferences are public meetings and their transcripts are public records, transcripts of such conferences may be made part of the appellate record. The proper procedure for challenging designated record materials requires filing a motion to strike, not unilateral exclusion by the clerk.
[1] A party seeking to exclude documents designated for inclusion in the record on appeal must file a motion to strike, rather than advising the clerk not to include them.
[2] Memoranda of advisory staff are not part of the record on appeal if the staff neither testified nor actively participated in the hearing.
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Join FLexlaw to unlock all legal intelligence“If the Commission believes that certain documents designated in the directions to the clerk should not be part of the record on appeal, its attorney should file a motion to strike, thereby presenting the issue for resolution to this Court.”
Establishes the proper procedure for challenging record materials—through motion practice rather than unilateral exclusion by the clerk.
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Join FLexlaw to unlock all legal intelligencePublic counsel filed directions to the clerk requesting inclusion of a staff memorandum dated January 23, 1992, and a transcript of a PSC agenda confe…
The full statement of facts, procedural history, and disposition for this case are member content.
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ORDER ON MOTION TO COMPEL PUBLIC SERVICE COMMISSION CLERK TO COMPLY WITH APPELLANT’S DIRECTION TO CLERK
GRIMES, Justice.
In the course of pursuing an appeal, public counsel filed directions to the clerk requesting that the record on appeal include a staff memorandum dated January 23, 1992, and a transcript of the commission agenda conference of February 4, 1992. Upon the instructions of the attorney for the Public Service Commission, the Chief of the Bureau of Records, acting for the Clerk of the Commission, wrote a letter to this Court advising that the staff memorandum and the agenda conference were not properly part of the record on appeal and would not be included unless this Court directed otherwise. This was not the proper procedure for determining what should be in the record on appeal. If the Commission believes that certain documents designated in the directions to the clerk should not be part of the record on appeal, its attorney should file a motion to strike, thereby presenting the issue for resolution to this Court. Gator Freightways, Inc. v. Mayo, 328 So. 2d 444 (Fla.1976).
Notwithstanding, we must now decide whether the staff memorandum and the agenda conference should be included within the record on appeal.
With respect to the staff memorandum, both parties offered differing interpretations of what is meant by sections 120.57(l)(b)(6)(g) and 120.66, Florida Statutes (1991).
However, these statutes appear to be inapplicable because they are directed toward communications with the hearing officer. See Citizens v. Wilson, 569 So. 2d 1268 (Fla.1990). This case was heard by a commission panel, and there was no hearing officer involved. Analogous to memoranda prepared by law clerks of this Court, we believe that memoranda of advisory staff should not be considered part of the record on appeal where the advisory staff neither testified nor actively participated in the hearing. On the other hand, the memoranda of staff who testify or otherwise become involved in the hearing may properly be considered part of the record on appeal. As we understand it, the staff attorney who wrote the memorandum at issue in this case cross-examined a witness at the hearing.
Therefore, this memorandum falls in the latter category. The agenda conference is a discussion among the commissioners where the decisions are made. It is somewhat akin to the discussion of appellate judges in conference during the course of reaching a collegial decision.
However, because an agenda conference is a public meeting and because the transcript of an agenda conference is a public record, we are inclined toward the view that the transcript of an agenda conference may be made part of the record on appeal. Any staff recommendations which are orally presented during the agenda conference will be necessarily included.
Accordingly, we direct that the staff memorandum and the agenda conference be made part of the record on appeal. We recede from Occidental Chemical Co. v. Mayo, 351 So. 2d 336 (Fla.1977), to the extent that the dictum of footnote 9 could be interpreted as being inconsistent with our ruling.
It is so ordered.
BARKETT, C.J., and OVERTON, MCDONALD, SHAW, KOGAN and HARDING, JJ., concur.
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Sierra Club v. Brown, 243 So. 3d 903 (Fla. 2018)…6, 341 (Fla. 1977) ("Obviously, the Commission was not required to include in its order a summary of the testimony it heard or a recitation of every evidentiary fact on which it ruled."), receded from on other grounds by Citizens of State v. Beard , 613 So. 2d 403, 405 (Fla. 1992). Competent, Substantial Evidence The only other matter for us to consider is whether competent, substantial evidence supported the Commission's public interest finding in the Final Order. See Citizens I , 146 So. 3d at 1164. We an…
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Evergreen the Tree Treasurers OF Charlotte Cnty., Inc. v. Charlotte Cnty. Bd. OF Cnty. Comm'rs, 810 So. 2d 526 (Fla. 2d DCA 2002)…o exceptions, the “staff exception” and the exception for “remoteness from the decision-making process.” See generally Occidental Chem. Co. v. Mayo, 351 So. 2d 336 (Fla.1977), receded from on other grounds in, Citizens of the State of Fla. v. Beard, 613 So. 2d 403 (Fla.1992); Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976). The circuit court applied the staff exception in the present case and concluded that the petitioners had no right to participate in the DRC meeting because DRC members were merely carr…
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J.I. v. Dep't of Child. & Families, 922 So. 2d 405 (Fla. 4th DCA 2006)…. The permanency staffing review is not a meeting of a board or commission within the meaning of the Sunshine Law. See Occidental Chem. Co. v. Mayo, 351 So. 2d 336 (Fla.1977), receded from on other grounds by Citizens of the State of Fla. v. Beard, 613 So. 2d 403 (Fla.1992) (holding that not all meetings of staff of board or commission are necessarily subject to Sunshine Law). No official action is taken at the staffing meeting. The official action is the filing of the petition to terminate parental rights,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Occidental Chem. Co. v. Mayo, 351 So. 2d 336 (Fla. 1977)
- Gator Freightways, Inc. v. Mayo, 328 So. 2d 444 (Fla. 1976)
- Citizens OF the State OF Fla. v. Wilson, 569 So. 2d 1268 (Fla. 1990)