If a Florida county mayor personally appoints a constituent advisory group, does the Sunshine Law require the group to meet in public?

Plain-English summary

Broward County Mayor Mark Bogen wanted to set up an advisory group of volunteers from his commission district to give him feedback on issues important to his constituents. The group would not be created by the County Commission; the Commission would not delegate any authority to the mayor regarding it; and members would all be unpaid volunteers. The Broward County Attorney's office asked AG Pam Bondi whether the group's meetings would have to be open to the public under section 286.011, Florida Statutes (the Sunshine Law).

Senior Assistant Attorney General Ellen B. Gwynn answered with the standard Florida framework: it depends on what the group does, not how it was created or who pays its members.

The fact that one elected official (rather than a collegial body) creates the group does not exempt it. The fact that members are volunteers does not exempt it. What matters is the function. If the group has only "fact-finding" or "information-gathering" authority and only conducts those activities, it falls outside the Sunshine Law (Sarasota Citizens for Responsible Government v. City of Sarasota). If the group has been "delegated decision-making authority," its meetings must be public. The line between those categories has been worked out across roughly fifty years of cases.

The AG walked through the leading examples. Wood v. Marston (1983) treated a faculty committee that screened applicants for a law-school deanship as decision-making, because deciding who was "most qualified" required judgment, not just fact-collection. Town of Palm Beach v. Gradison (1974) treated a citizens' committee that guided zoning planners and made tentative recommendations as decision-making. Cape Publications, Inc. v. City of Palm Bay (1985) treated police-chief interview panel members who asked questions and discussed candidates with the city manager but did not recommend a hire as fact-finding. Bennett v. Warden (1976) treated meetings between a college president and employees about working conditions as fact-finding.

Applied to Mayor Bogen's group: the AG declined to give a categorical answer. If the group's function is to convey individual constituent concerns to the mayor (a fact-finding function), the Sunshine Law does not apply. If the group meets collectively to formulate recommendations on matters the County Commission might foreseeably act upon, those meetings must be public. The AG advised the deputy county attorney to work with the mayor to define the group's specific responsibilities, then apply the test.

The closing reminder: the Sunshine Law is to be liberally construed in favor of openness, and doubts resolve in favor of public access (Bd. of Public Instruction of Broward Cty. v. Doran).

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 286.011, Florida Statutes, requires that "[a]ll meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision… at which official acts are to be taken are declared to be public meetings open to the public at all times." Reasonable notice is required, and a violation by a public officer is punishable by a non-criminal fine up to $500.

The statute speaks of "boards or commissions," but Florida courts have read it broadly to apply to advisory groups that perform a delegated function in the governmental decision-making process. The Florida Government-in-the-Sunshine Manual, maintained by the Office of the Attorney General, collects the leading cases and is the standard reference.

The fact-finding/decision-making test goes back to Town of Palm Beach v. Gradison and was refined in Sarasota Citizens for Responsible Government. The boundary is not always sharp. Two markers help. First, ask whether the group makes recommendations or just conveys individual perspectives. A group that aggregates members' views into a collective recommendation is generally on the decision-making side of the line. Second, ask whether the topics discussed could foreseeably come before a public body for action; if so, the conversations are part of the inquiry stage that Town of Palm Beach v. Gradison held was covered.

The Sunshine Law applies regardless of whether the appointing official is a single person or a multimember body. Krause v. Reno (advisory board appointed by an executive officer), Silver Express Co. (committee established by a purchasing director), and Wood v. Marston (committee appointed by a university president) all confirm this. Op. Att'y Gen. Fla. 2005-05 says directly: "The fact that an advisory group is created by a single public official rather than by a collegial body such as the city commission does not alter the application of the Sunshine Law to such a group."

The 2018 Linares v. District School Board of Pasco County circuit court decision (cited in the opinion) extended the framework to electronic communication: members of an advisory committee violated the Sunshine Law by discussing matters via emails and social-media posts, and by holding inaudible breakout sessions during public meetings. The decision is on the AG's website. Sunshine compliance covers more than just the in-person meeting.

A Sunshine violation does not require intent or proof of harm. Zorc v. City of Vero Beach held that the violation is established by the conduct itself.

Common questions

Q: How do we tell if our advisory committee is subject to the Sunshine Law?
A: Ask: does the committee, as a group, make recommendations or otherwise contribute to a governmental decision-making process? If yes, the Sunshine Law applies. If the committee's role is limited to gathering facts or relaying individual citizen concerns, it likely does not.

Q: What if the mayor talks to advisory members one-on-one rather than as a group?
A: Individual conversations with constituents are not Sunshine meetings. The Sunshine Law applies to "meetings" of a "board or commission," which means group discussion. A series of one-on-one conversations is not a meeting (though if used to circumvent the law, that is a separate problem).

Q: Can group members talk to each other outside the formal meeting?
A: Not about matters within the committee's purview. Linares v. Pasco County applied the Sunshine Law to email and social-media exchanges among committee members. If committee members have the kind of work that would require public meetings, all forms of substantive group communication on those matters must be in public.

Q: What if the volunteers are not formally appointed?
A: Lack of formal appointment does not avoid the Sunshine Law. The AG opinion is clear that a group's function (fact-finding versus decision-making) controls. If it acts as a committee, the Sunshine Law treats it as one.

Q: What does "foreseeably could come before" the County Commission mean?
A: A topic falls within Sunshine coverage if the public body might act on it down the line. The standard is foreseeability, not certainty. Town of Palm Beach v. Gradison applied the Sunshine Law to a citizens' committee that advised on a zoning ordinance the town council was likely to take up.

Q: What are the consequences of a Sunshine violation?
A: A non-criminal fine up to $500 per violation against the public officer; potential invalidation of any action taken in violation; and possible additional remedies in declaratory or injunctive litigation. The fine itself is small, but the political and legal cost (invalidated decisions, public-records litigation) is often much larger.

Citations

Statutes:

• § 286.011, Fla. Stat. (2018)

Cases:

• Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755 (Fla. 2010)
• Wood v. Marston, 442 So. 2d 934 (Fla. 1983)
• Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974)
• Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985)
• Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976)
• Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979)
• Silver Express Co. v. Dist. Bd. of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997)
• Bd. of Public Instruction of Broward Cty. v. Doran, 224 So. 2d 693 (Fla. 1969)
• Zorc v. City of Vero Beach, 722 So. 2d 891 (Fla. 4th DCA 1998)
• Op. Att'y Gen. Fla. 98-13 (1998); 2005-05

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/open-meetings-advisory-group
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1483

Original opinion text

Ms. Angela J. Wallace

Deputy County Attorney

115 South Andrews Avenue, Suite 423

Fort Lauderdale, Florida 33301

Dear Ms. Wallace:

This office has received your letter requesting an opinion as to whether an advisory group formed by Broward County Mayor Mark Bogen is subject to the public meetings law. Attorney General Pam Bondi has asked me to respond to your question.

Section 286.011, Florida Statutes (2018), provides, in part:

“(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

• • *

(3)(a) Any public officer who violates any provision of this section is guilty of a noncriminal infraction, punishable by fine not exceeding $500.”

You state that the Broward County Commission would not establish the advisory group, nor would the Commission delegate any authority to Mayor Bogen regarding such group. Instead, Mayor Bogen alone would create the advisory committee to “provide feedback to him regarding issues of importance to his constituents.” In addition, the group would only consist of “volunteers from his Commission district[.]” In the first place, advisory groups appointed by a single public official are not immunized from the public-meetings requirement. It is the nature of their functions rather than the manner of

their appointment that must be scrutinized.[1] Nor is there an exception for a group composed of volunteers.

A limited exception to the open-meeting requirement applies to an advisory committee that is established for fact-finding only. “[A] committee is not subject to the Sunshine Law if the committee has only been delegated information-gathering or fact-finding authority and only conducts such activities.” Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010). “Where the committee has been delegated decision-making authority, the committee's meetings must be open to public scrutiny, regardless of the review procedures eventually used by the traditional governmental body.” Id. You question whether the function of providing feedback to Mayor Bogen on issues of importance to constituents would be considered fact-finding. Because all advisory committees by their very nature are created to provide input or feedback, that factor alone is not dispositive of the status of the committee for Sunshine purposes. Instead, the key determination will be the exact nature of the feedback being requested and provided.

As you are aware, there are numerous judicial decisions that govern a proper analysis of the issue. These decisions focus on the nature of the responsibilities assigned and actually performed by the advisory committees. See, e.g., Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755 (Fla. 2010) (individuals who provided “advice and information” to a county official who was negotiating with a baseball team regarding a spring-training site were not subject to the Sunshine Law); Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (a fact-gathering faculty committee formed to solicit and review applications for the position of law-school dean and to determine who were the most qualified applicants was engaged in a policy-based, decision-making function and thus subject to Sunshine Law); Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974) (a committee of lay citizens that met with a planning consultant to guide zoning planners, make tentative decisions, and advise town council with regard to revision of zoning ordinance was required to meet in the Sunshine); Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985) (committee members who, with city manager, met with applicants for position of police chief, asked questions of the applicants, and discussed qualifications of the applicants afterward with city manager, but did not make recommendations, were not subject to Sunshine Law); Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976) (meetings between college president with employees to discuss problems relevant to employee conditions were fact-finding sessions and not required to be held in the open); Op. Att’y Gen. Fla. 98-13 (1998) (distinguishing between citizen groups that meet to discuss common concerns and develop issues to present to a community advisory committee for consideration – who were not subject to Sunshine Law – from the community advisory committee itself, which was responsible for making recommendations to the city commission about the concerns passed on by city residents that the city commission might foreseeably act upon – which was subject to Sunshine Law).

We recommend that you consult with the Mayor to determine the specific duties and responsibilities he intends to assign to the advisory committee. From this you will be able to more accurately determine whether the committee will be engaged in fact-finding alone or would have the authority to go further and make recommendations that would constitute part of a greater decision-making process. The conveyance of individual thoughts and concerns regarding constituent issues could fall within the scope of fact-finding, whereas meeting as a group and making recommendations to the Mayor on issues that might foreseeably come before the Broward County Commission would presumably require an open meeting under section 286.011. The Florida Supreme Court has stated that the Sunshine Law applies to “the collective inquiry and discussion stages … as long as such inquiry and discussion … relates to any matter on which foreseeable action will be taken.”[2]

The authorities cited herein demonstrate that the nature of the information the group is tasked to collect and provide will determine whether the group’s meetings with the Mayor must be held in the Sunshine. As a final comment, the Supreme Court has

consistently stated that the Sunshine Law should be liberally construed and that doubts involving its applicability should be resolved in favor of the public.[3]

Sincerely,

Ellen B. Gwynn

Senior Assistant Attorney General

EBG/tsh

[1] See Government-in-the-Sunshine Manual, p. 2 (2018 ed.), citing the following opinions in which groups appointed by single officials were found to be subject to section 286.011: Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (advisory committee appointed by a university president); Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979) (advisory board appointed by an executive officer); Silver Express Co. v. Dist. Bd. of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997) (committee established by agency purchasing director); Op. Att’y Gen. Fla. 2005-05 (“The fact that an advisory group is created by a single public official rather than by a collegial body such as the city commission does not alter the application of the Sunshine Law to such a group.”).

[2] Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974). See also Linares v. Dist. Sch. Bd. of Pasco County, 6th Jud. Cir., Case No. 17-00230-CA (Jan. 10, 2018) (members of an advisory committee who otherwise complied with open-meetings law violated the statute by discussing matters electronically via emails and social-media posts, and by holding breakout sessions during public meetings that were inaudible to the public) (available on the website of the Office of the Attorney General, http://myfloridalegal.com/sun.nsf/cases/29C95A1EF1A43B058525823C0046A4A1/$file/Linares+v.+District+School+Board+of+Pasco+County.pdf).

[3] See, e.g., Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974) (“When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State.”); Bd. of Public Instruction of Broward Cty. v. Doran, 224 So. 2d 693, 699 (Fla. 1969) (regarding section 286.011: “Statutes enacted for the public benefit should be interpreted most favorably to the public.”). In addition, violation of the Sunshine Law “does not depend on a finding of intent to violate the law or resulting prejudice.” Zorc v. City of Vero Beach, 722 So. 2d 891, 902 (Fla. 4th DCA 1998).