Sunshine Law violation shows need for legal certainty

January 8, 2014 

Even the most well intended government negotiations can run afoul of Florida's tough Sunshine Law, as the city of Jacksonville discovered in a court ruling last week.

A circuit court judge found the city guilty of breaking open-government laws over private talks on proposed changes in police and firefighter pensions. The defendants argued that the negotiations fell outside Sunshine restrictions because a federal court-ordered mediation in the case, justifying the privacy. The judge rejected that reasoning. Now the city's on the hook for the plaintiff's legal bills.

Had Jacksonville officials consulted with the state attorney general's office, they would have learned that the Sunshine Law exemption in section 286.011(8) does not apply to mandatory and binding arbitration. That legal opinion on open-government issues is just one of many the attorney general addresses annually in response to queries.

Thus, elected and appointed officials would be prudent to seek legal advice from the highest office in the state instead of relying solely on local opinions.

In the Jacksonville case, Circuit Judge Waddell Wallace equated the federal mediation sessions with collective bargaining between the city and pension board, thus requiring public negotiations.

The Florida Times-Union sued last summer after the city suddenly announced a new pension agreement after holding "confidential, non-public collective bargaining negotiations," as the judge stated in his opinion.

This unique case demonstrates the delicate nature of the Sunshine Law and the need for certainty in standing on solid legal ground. It should send a signal to officials about securing that confidence.

Still, the frequency with which elected and appointed officials at all levels of government break open government and records laws -- down to the smallest entities -- continues to be appalling. Violations of the public trust cannot be tolerated.

Either through arrogance, ignorance or bad legal advice, officials put taxpayers at risk when crossing the line. Officials also become exposed to personal liabilities and state fines.

The Brechner Center for Freedom of Information at the University of Florida's College of Journalism and Communications issues a monthly newsletter outlining Sunshine violations and other public access issues. The sheer number of cases and issues is striking, an indication that violations are widespread and never ending.

Thanks to government watchdogs -- led by Florida's First Amendment Foundation -- complacency is not an option.

This month's Brechner newsletter spotlights a Sarasota open-government case whereby the city settled a lawsuit with Citizens for Sunshine at a cost of $17,680 in plaintiff's attorney's fees. Overall, the case cost the city about $50,000. It involved two city commissioners meeting privately with business owners to hear about homelessness. The two commissioners faced personal liability as well.

Citizens for Sunshine brought another lawsuit against Sarasota last year over the planning of a development project. Overall, the city paid out $80,000 last year to settle lawsuits.

That pales in comparison with the city of Venice -- walloped in 2009 with a $775,000 bill for legal fees in a lawsuit over the use of private email accounts to confer on city business, yet another victory for the nonprofit Citizens for Sunshine.

Those cases and many others should serve as a warning that while the average citizen may not spot open-government violations, professionals are at hand -- a veritable cottage industry of litigants eager to catch officials deviating from the law. All watchdogs protect the public interest, even those that profit.

Officials and governments, beware. Tread lightly and err on the side of caution, lest taxpayers get stuck paying bills for poor judgment and faulty legal opinions.

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