LORENZAR BROWN AND DAVID KAMINSKY, APPELLANTS,
v.
CITY OF LAUDERHILL, A MUNICIPAL CORPORATION, APPELLEE

Fla. 4th DCA | 1995-05-10
No. 94-0743
FARMER and STEVENSON, JJ., concur.
654 So. 2d 302 Florida District Court of Appeal, Fourth District (1995) Caution
Cited by 6 cases

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Holding

The court held that a city is a 'party' to litigation for the purpose of executive sessions under the Sunshine Law when it is the real party in interest, even if a nominal party is involved.


Headnotes

[1] A governmental entity may meet in private with its attorney to discuss pending litigation to which the entity is presently a party, even if the litigation is nominally br…

[2] The term "party" in the context of executive session exceptions to public meeting laws includes the real party in interest, not just the nominal party.

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Facts & Procedural History

Appellants challenged a city's claim for legal fees incurred by its mayor and sought minutes of a private meeting between city officials and their att…

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Opinion of the Court
STONE, Judge.

STONE, Judge.

We affirm a final judgment denying Appellants’ claim for injunctive and declaratory relief against the city. Appellants are attempting to prevent the city from claiming legal fees incurred on behalf of its mayor in her successful defense of a charge before the Florida Ethics Commission that was initiated by Appellants. All claims against the mayor were dismissed by the state and an attorney’s fee claim was filed against Appellants in the name of the mayor, pursuant to section 112.317, Florida Statutes, alleging that the ethics commission charges were frivolous and brought with malicious intent. The petition for attorney’s fees was referred to the state division of administrative hearings (DOAH), pursuant to rule 34-5.029, Florida Administrative Code. In this proceeding, Appellants also seek production of minutes of a private meeting conducted between the commissioners and the city’s attorney, alleging that the meeting was in violation of Florida’s sunshine' and public records laws.

The record supports the trial court’s conclusion that the city is the real party in interest on the attorney’s fee claims. Although the mayor is the nominal party in all proceedings, the record reflects that the city retained its attorney to defend the charges and to prosecute the attorney’s fee action. The trial court did not err in concluding that the meeting with counsel is permitted under section 286.011(8), Florida Statutes, which recognizes the right of a governmental entity to meet in executive session with its attorney to discuss pending litigation. Although the administrative proceedings before DOAH is brought in the name of the mayor, in her official capacity, the mayor at all times has recognized the city’s real interest in any attorney’s fee recovery.

Subsection (8) of the statute provides, in part:

(8) Notwithstanding the provisions of subsection (1), any board or commission of any state agency 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.

§ 286.011(8), Fla.Stat. (1993)

We recognize that the sunshine láw, section 286.011, Florida Statutes, must be liberally construed in favor of open government. E.g. Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979).

However, we can 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. To so narrowly construe the term “party” as to exclude those instances in which a governmental entity pursues and finances litigation in the name of a nominal party would indeed yield an absurd result. See Williams v. State, 492 So. 2d 1051 (Fla.1986).

Had the legislature intended such a restriction on the subsection (8) exception, it would certainly have included language to that effect, given the numerous circumstances in which governmental entities have recognized interests in litigation nominally involving officials. See generally, Thomber v. City of Ft. Walton Beach, 568 So. 2d 914 (Fla.1990); Lomelo v. City of Sunrise, 423 So. 2d 974 (Fla. 4th DCA 1982), rev. dismissed, 431 So. 2d 988 (Fla.1983); Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981).

See also Florida State Racing Commission v. McLaughlin, 102 So. 2d 574 (Fla.1958); Chavez v. City of Tampa, 560 So. 2d 1214, 1218 (Fla. 2d DCA 1990), rev. denied, 576 So. 2d 285 (Fla.1990); Markham v. Department of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974), cert. denied, 309 So. 2d 547 (Fla.1975).

We note that often the term “party” is recognized as including those who are real parties in interest. E.g. Fabre v. Marin, 623 So. 2d 1182 (Fla.1993); Lage v. Blanco, 521 So. 2d 299 (Fla. 3d DCA), rev. denied, 531 So. 2d 1354 (Fla.1988). See also Fla.R.Civ.P. 1.210(a).

Here, even though the recovery of fees will be in the mayor’s name, as these proceedings must be brought in the name of the public official, the city would, in any event, have a claim for subrogation as it is not contended that the mayor individually incurred the attorney’s fee obligation.

We also note that section 286.011(8) applies to litigation to which the entity is “presently” a party. The word presently is not defined as “now,” i.e., this precise point in time. Rather, that word is properly applied to a time period from now into the immediate future;1 in other words, a short while. Therefore, although the city of Laud-erhill was not a nominal party in the attorney’s fee litigation at the time of the meeting with its counsel, its interest certainly dictates that it would soon be involved in any litigation necessary to protect or enforce its interest in the fee.

Therefore, the judgment is affirmed.

FARMER and STEVENSON, JJ., concur. . For this insight the panel is indebted to Judge Farmer.


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  • Zorc v. City OF Vero Beach, 722 So. 2d 891 (Fla. 4th DCA 1998)
    …too was the City’s adversarial claim concerning the Consent Decree and the contamination issue. Presently a party As to the second element, we find that the City was “presently a party” to pending litigation. In Brown v. City of [*900] Lauderhill, 654 So. 2d 302, 303 (Fla. 4th DCA 1995), this court held that “presently” a party within section 286.011(8) “is not defined as ‘now,’ i.e., this precise point in time. Rather, that word is properly applied to a time period from now into the immediate future; in ot…
  • The Sch. Bd. OF Duval Cnty. v. Fla. Publ'g Co., 670 So. 2d 99 (Fla. 1st DCA 1996)
    …69). . Wood v. Marston, 442 So. 2d 934, 938 (Fla.1983); Florida Parole & Probation Comm'n v. Thomas, 364 So. 2d 480, 481 (Fla. 1st DCA 1978). . In reaching our decision, we have not overlooked appellants’ argument that Brown v. City of Lauderhill, 654 So. 2d 302 (Fla. 4th DCA 1995), placed an expansive interpretation on the 1993 amendment which is contrary to that of the attorney general's. We cannot agree. No issue was before the court in Brown, as here, regarding whether administrative personnel could law…
  • …ation expenditures in the federal case. For example, if the Board were ordered by the federal court to pay attorneys’ fees to the plaintiffs, it is possible that a closed door negotiation session might be authorized. See Brown v. City of Lauderhill, 654 So. 2d 302 (Fla. 4th DCA 1995) (city attorney may meet with commissioners in private to discuss claim for attorneys’ fees). One can at least hope that a day may come when this lawsuit is no longer necessary to achieve integration in the schools. At that time,…

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