The Governor of the State of Florida issued an Executive Order on March 20, 2020, temporarily suspending any requirement under the Sunshine Law or any Florida Statute that a quorum must be physically present and a public entity board (“Public Board”) meeting must be held in a public place (the “EO”). See Executive Order No. 20-69. This waiver will remain in effect until Friday, May 8, 2020, which is when Executive Order No. 20-52 (Florida Declaration of State of Emergency) is set to expire (subject to extension).
Public Entity Sunshine Law Meetings
- The Attorney General issued an opinion on March 19, 2020, (AGO 2020-03) (“AGO”) addressing a request for legal opinion by Governor DeSantis. Governor DeSantis requested the AGO regarding Florida Statute Section 286.11 (“Sunshine Law”) provisions for Public Board meetings and physical quorum requirements given restrictions for social distancing, limitations of group gatherings of over ten (10) persons, and stay-at-home orders due to COVID-19. The Attorney General has consistently interpreted the Sunshine Law as requiring a quorum to be physically present at a Board Meeting. AGO 92-44, 98-28, 03-41, 2020-03. Additionally, a telephonic appearance of a board member should only be allowed in extraordinary circumstances, and, this can only occur when there is a physical quorum present at that Public Board meeting. AGO 03-41. However, the recent AGO, while still standing behind the aforementioned interpretations of the Sunshine Law, essentially requested the Governor to waive any such physical quorum requirements.
- Per the new EO, Public Board meetings can be held telephonically or via videoconference (“Virtual Meeting”) without a physical quorum present, and without the need for the meeting to be held in a public building open and accessible to the public, at least up through May 8, 2020. See EO 20-69. The Virtual Meeting must be held in a manner consistent with Florida Statute Section 120.54(5)(b)(2), which provides, in pertinent part, as follows:
The notice for public meetings, hearings, and workshops utilizing communications media technology shall state how persons interested in attending may do so and shall name locations, if any, where communications media technology facilities will be available. Nothing in this paragraph shall be construed to diminish the right to inspect public records under chapter 119. Limiting points of access to public meetings, hearings, and workshops subject to the provisions of s. 286.011 to places not normally open to the public shall be presumed to violate the right of access of the public, and any official action taken under such circumstances is void and of no effect. Other laws relating to public meetings, hearings, and workshops, including penal and remedial provisions, shall apply to public meetings, hearings, and workshops conducted by means of communications media technology, and shall be liberally construed in their application to such public meetings, hearings, and workshops. As used in this subparagraph, “communications media technology” means the electronic transmission of printed matter, audio, full-motion video, freeze-frame video, compressed video, and digital video by any method available.
Additionally, the EO explicitly requires that a public entity comply with all other provisions of the Sunshine Law.
If a public entity uses the authority contained within the EO to hold a Virtual Meeting, we recommend the following best practices to ensure compliance with the Sunshine Law:
- Review any local charter or other enabling act requirements for holding Public Board Meetings and/or voting requirements.
- Advertise the Public Board meeting as a Virtual Meeting and include how the public can access the meeting in the advertisement. This advertisement can be done consistent with the jurisdiction’s practice(s) for advertisement.
- Make the Public Board meeting available to the public by either (i) providing safe access to the physical office of the public entity where the Virtual Meeting can be heard or seen by the public, or (ii) provide information to the public as to where the Virtual Meeting can be accessed via electronic means.
- Provide the public a process to give public comment in a manner consistent with the jurisdiction’s practice(s) and ensure that the Public Board does not take action on an item unless the opportunity for public comment has occurred.
- If a Virtual Meeting is held via a platform such as YouTube or Facebook Live, do the best to ensure those formats are compliant with American with Disabilities Act (“ADA”) requirements.
- Enable closed caption if available (especially if conducting a live stream video via Facebook or YouTube).
- Comply with the requirement to take minutes. It may also be prudent to engage a court reporter for such Virtual Meetings. Make sure all attendees announce their names prior to speaking and that voice votes are done via roll-call vote.
- If you choose to use a court reporter, make sure they can attend remotely and ensure that they convert the transcript to a version that meets ADA requirements for the visually and audibly impaired population.
- Post on your jurisdiction’s website as soon as practical the minutes or transcripts of the Virtual Meeting in an ADA-readable format, even if they are in draft form. This gives more information to the public as to the actions taken at the Virtual Meeting.
- It would be prudent to only take up agenda items at a Virtual Meeting which are either emergency items or immediately necessary to conduct public business; we cannot recommend taking up quasi-judicial matters or other matters that require specific due process for a public hearing.
- Place language in any emergency declaration ordinance or resolution providing for the waiver/suspension of in-person attendance requirements to allow for Virtual Meetings.
- It may be good practice to later ratify actions taken at a Virtual Meeting after the EO has expired so there is no question as to the legal validity of the actions taken without a physical quorum present.
Public Records Requests
- The EO did not waive any provisions relating to Florida Statute Chapter 119 public records requests (“Public Records”).
- At this time, many jurisdictions are limiting the right of the public to enter public buildings and many public employees will be working remotely. So, Public Records requests will need to be presented either by telephone or e-mail. If that is the case, we recommend posting that information at the physical location of the public building and on the jurisdiction’s website of whether a request for Public Records can be made.
- Additionally, the requirement for compliance with a Public Records request within a “reasonable time” may be more complicated. Public Records custodians may not have ready access to documents, and Public Records searches may be more difficult, especially for jurisdictions that do not have sophisticated technology. Thus, we recommend that jurisdictions acknowledge Public Records requests with the following language:
“We are in receipt of your records request. As you are aware, COVID-19 is a global pandemic that has required certain government facilities to close due to the President and State officials’ mandate to limit the gathering of individuals in public spaces. Consistent with dealing with and adapting to this pandemic, we will use our best efforts to gather the documents you requested and respond as reasonably and timely as possible. Please be patient in our response time and realize that any delay in response is due to closures or significantly scaled-back staff of certain city facilities.”
Additional Information Helpful to Governmental Entities:
FDEM Opens Request for Public Assistance Grant Applications for COVID-19 Response Measures
- The Florida Department of Emergency Management (FDEM) is currently accepting Requests for Public Assistance (RPA) from governmental entities and certain private non-profit organizations. The RPA submission is required to be eligible for FEMA reimbursement of emergency protective-measure expenses related to COVID-19 through September 2020. Certain emergency protective measures conducted before, during, and after an event are eligible for FEMA reimbursement under Public Assistance as Category B expenses if the measures eliminate or reduce immediate threats to lives, public health, or safety. Please contact us if you have questions regarding the recordkeeping and procurement requirements for seeking FEMA reimbursement.
- The online RPA application is available at www.floridapa.org. FDEM is requesting all applications be submitted no later than Friday, April 10, 2020, as FDEM’s deadline to forward RPAs to FEMA is Sunday, April 12, 2020.