THE SCHOOL BOARD OF DUVAL COUNTY, FLORIDA AND LARRY L. ZENKE, ED.D., SUPERINTENDENT, DUVAL COUNTY SCHOOLS, APPELLANTS,
v.
FLORIDA PUBLISHING COMPANY, A CORPORATION, D/B/A THE FLORIDA TIMES-UNION, APPELLEE

Fla. 1st DCA | 1996-02-20
No. 95-1965
MINER and LAWRENCE, JJ., concur.
670 So. 2d 99 Florida District Court of Appeal, First District (1996) Positive Treatment
Cited by 11 cases

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Synopsis

The School Board of Duval County appealed a mandamus order requiring it to disclose transcripts and recordings of closed-door meetings held to discuss desegregation litigation. The court affirmed, holding that Florida's 1993 Sunshine Law exemption for attorney-client strategy sessions does not permit attendance by administrative staff or consultants beyond the designated governmental officials and attorney.


Holding

The court affirmed that section 286.011(8) does not expressly authorize attendance by staff members or consultants at closed litigation strategy sessions. The exemption is narrowly limited to the governmental entity, its chief administrative or executive officer, and its attorney. The presence of staff and consultants violated the statute's requirements, and the transcripts and documents must be disclosed.


Headnotes

[1] The Sunshine Law requires governmental entities to conduct their business at open public meetings.

[2] A statutory exemption to the Sunshine Law permits governmental entities to meet privately with their attorney to discuss pending litigation, provided specific conditions…

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Key Quotes

“by its terms, is not expansive but is limited to particular individuals who are, in their official capacity, authorized to discuss particular limited subjects, i.e., litigation strategy or settlement negotiations. Nothing in the language of the statute authorizes the attendance of persons other than those officials who are designated to participate in these private strategy sessions.”

Establishes the narrow scope of the Sunshine Law exemption and that only designated officials may attend closed attorney-client sessions.

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Facts & Procedural History

The School Board and Superintendent held closed "shade" meetings in January and February 1995 to discuss pending desegregation litigation and settleme…

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Opinion of the Court
ERVIN, Judge.

ERVIN, Judge.

This is an appeal from a final order granting a petition for writ of mandamus filed by appellee, Florida Pubhshing Company, d/b/a The Florida Times-Union, and directing appellants, the School Board of Duval County and Superintendent Larry L. Zenke, to make available to Florida Publishing aU transcripts and recordings of “shade” meetings held in January and February 1995, as weU as desegregation proposals and documents created at those meetings. AppeEants raise five issues on appeal, and, although we affirm aE, we deem it necessary to address only the contention that the trial court erred in finding that the presence of staff members and a consultant at the meetings constituted a violation of the requirements of section 286.011(8), Florida Statutes (1993).

Florida requires governmental entities to conduct their business at open public meetings, that is, “in the sunshine.” § 286.011(1), Fla.Stat. (1993). The following exemption to the sunshine law was created in 1993: (8) 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 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 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.

§ 286.011(8), Fla.Stat. (1993) (emphasis added).

Before the enactment of this exemption, the sunshine law had been construed to apply to all meetings between governmental agencies and their attorneys conducted for the purpose of discussing settlement of pending litigation. No attorney-client privilege was recognized. Neu v. Miami Herald Pub. Co., 462 So. 2d 821 (Fla.1985); Staff of Fla. H.R.Comm. on Gov’t Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement 2 (Fla.State Archives) (hereinafter “Final Staff Analysis”). Additionally, while section 119.07(3)(n), Florida Statutes, authorized a limited work-product exemption to the public records act, this exemption was restricted to documents prepared by the agency’s attorney; it did not exempt any type of return communication from the governmental client to the attorney. Final Staff Analysis, at 2.

As explained in the analysis, the 1993 addition to section 286.011(8) permits any governmental agency, its chief executive and attorney to meet in private if the agency is a party to litigation and the attorney desires advice concerning settlement negotiations or strategy. The amendment was not, however, intended to permit nondesignated personnel to discuss settlement matters in private with the agency, as was emphasized in the following excerpt from the Staff Analysis:.

This act 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.

Final Staff Analysis, at 3.

A recent attorney general’s opinion recognized the narrow exception authorized by the 1993 amendment. The City of Destín asked the attorney general to issue an opinion concerning whether section 286.011(8) authorized consultants to attend a closed meeting on litigation strategy between the city’s governing board and attorney. The attorney general answered this question in the negative, stating that section 286.011(8) did

not create a blanket exception to the open meeting requirement of the Sunshine Law for all meetings between a public board or commission and its attorney. The exemption is narrower than the attorney-client communications exception recognized for private litigants. Only discussions on pending litigation to which the public entity ... is presently a party are subject to its terms. Such discussions are limited to settlement negotiations or strategy sessions related to litigation expenditures.

Op. Att’y Gen. Fla. 95-06, 4 (1995) (footnotes omitted). The opinion continued that section 286.011(8),

by its terms, is not expansive but is limited to particular individuals who are, in their official capacity, authorized to discuss particular limited subjects, i.e., litigation strategy or settlement negotiations. Nothing in the language of the statute authorizes the attendance of persons other than those officials who are designated to participate in these private strategy sessions.

Id. at 4. The attorney general concluded, based on the rule of statutory construction recognizing that if a statute specifically sets forth those things upon which it is to operate, it is to be construed as excluding from its operation all things not expressly mentioned, that “a consultant may not attend a strategy session to provide technical support during a closed meeting held to discuss litigation strategy or settlement negotiations pursuant to section 286.011(8).” Id. In so concluding, the attorney general also relied on the rule that the sunshine law is to be liberally construed and its exemptions narrowly interpreted.

The '-ehool board argues that the opinion incorrectly construed the language of the amendment; that such an interpretation of the statute leads to an unreasonable and absurd result, because administrative staff and consultants are a necessary part of the negotiation process. See City of Boca Raton v. Gidman, 440 So. 2d 1277, 1281 (Fla.1983) (no literal interpretation should be placed on a statute that leads to an unreasonable or ridiculous result). We cannot agree.

Considering the purpose of the sunshine law, that is, the protection of the public’s right to be present and to be heard during all phases of enactments by governmental boards and commissions,1 and the principle that the act should be accorded a liberal construction to give effect to the public purpose and to frustrate evasive devices,2 we are unable to conclude that the attorney general’s interpretation of the statute is at variance with the legislative purpose. As previously observed, section 286.011(8) does not expressly refer to either staff or consultants. See City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995) (holding that legislature intended strict construction of exception in section 286.011(8)). Moreover, the superintendent and individual school board members are free to meet with staff in private at any time, in that staff personnel are not subject to the sunshine law. Blackford v. School Bd. of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979).3

AFFIRMED.

MINER and LAWRENCE, JJ., concur. . Board of Pub. Instr. of Broward County v. Doran, 224 So. 2d 693, 699 (Fla.1969).

. 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 lawfully meet in private with the responsible governmental entity to discuss pending litigation.


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  • Zorc v. City OF Vero Beach, 722 So. 2d 891 (Fla. 4th DCA 1998)
    …y, may meet in private with the entity’s attorney to discuss pending litigation. Further, subsection 268.011(8)(c) provides that the entire session be recorded by a certified court reporter. Under School Board of Duval County v. Florida Publ’g Co., 670 So. 2d 99 (Fla. 1st DCA 1996) and Attorney General Opinions 98-06 (1998) and 95-06 (1995), 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, ar…
  • Anderson v. City OF ST. Pete Beach, 161 So. 3d 548 (Fla. 2d DCA 2014)
    …a.1985). The legislative history states the Shade Exemption merely provides a governmental entity’s attorney an opportunity to receive necessary direction and information from the [*553] government entity. Sch. Bd. of Duval Cnty. v. Fla. Publ’g Co., 670 So. 2d 99, 100 (Fla. 1st DCA 1996) (quoting Staff of Fla. H.R. Comm. on Gov’t Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement at 3 (hereinafter HB 491 Staff Analysis)). The court in Zorc v. City of Vero Beach, 722 So. 2d 891, 898…
  • …g options. Prior to 1993, Florida’s Sunshine laws recognized little, if any, attorney-dent privilege for a governmental agency Ike the Board when engaged in settlement discussions. See generally School Bd. of Duval County v. Florida Publishing Co., 670 So. 2d 99 (Fla. 1st DCA 1996) (explaining earlier Imitations under Sunshine laws). In 1993, the legislature created a procedure for closed door sessions, allowing agencies and their attor [*428] neys to discuss “settlement negotiations or strategy sessions re…

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