When may a Florida public body hold a closed 'shade meeting' with its attorney under the Sunshine Law's litigation exception?

Plain-English summary

This was an informal opinion. The North Broward Hospital District's general counsel asked the AG when the District could hold a "shade meeting" under section 286.011(8), Florida Statutes, the narrow exception that lets a Florida public body meet privately with its lawyer about litigation. Because the request came from staff counsel rather than from a majority of the District's board, the Attorney General's office declined to issue a formal opinion. Senior Assistant Attorney General Gerry Hammond instead offered informal comments.

The informal answer was that the District's situation did not fit the shade-meeting exception. Section 286.011(8) lets a board, commission, or executive officer meet privately with the entity's attorney about pending litigation, but only if the entity is then "a party before a court or administrative agency," and only if a long list of procedural conditions is satisfied: the attorney must publicly announce the need for advice; the discussion is confined to settlement or strategy on litigation expenditures; the entire session is transcribed by a certified court reporter; the public gets reasonable notice; the meeting opens and closes in public; and the transcript is released after the litigation ends.

The materials the District had sent showed an investigation and a subpoena, but no pending court or administrative proceeding to which the District was already a party. Florida appellate courts had read section 286.011(8) strictly (see City of Dunnellon v. Aran and School Board of Duval County v. Florida Publishing Company), so an investigation alone was not enough to invoke the exception.

The counsel also asked whether section 905.27, the grand jury secrecy statute, allowed a shade meeting "to protect the attorney-client relationship." The AG's informal response was that section 905.27 prohibits disclosing grand jury testimony and evidence but does not itself authorize a public body to meet in private; in any event, nothing in the materials provided indicated that a grand jury had been impaneled.

What the opinion meant at the time for similar entities

At the time of issuance, the shade-meeting trigger required an actually-pending judicial or administrative proceeding in which the public body was a named party. The Attorney General's office and the Florida appellate courts had repeatedly rejected attempts to read the exception more broadly. Section 286.011(8) did not cover:

• Pre-litigation mediation (Op. Att'y Gen. Fla. 06-03)
• Mediation under the Florida Governmental Conflict Resolution Act (Op. Att'y Gen. Fla. 09-14)
• Mandatory arbitration with no pending court proceeding (Op. Att'y Gen. Fla. 13-17)
• Bert Harris Act pre-suit notice letters where the entity was not yet a party to litigation (Op. Att'y Gen. Fla. 09-25)
• Investigations and subpoenas with no court or administrative case pending (this opinion)

A public-body attorney who wanted to brief the board on an investigation, an audit, or a subpoena had to do it in a public meeting or in one-on-one communications outside a meeting. The exception's procedural conditions also had to be followed strictly, including the certified court reporter, the public open-and-close, and post-litigation release of the transcript.

Currency note

This opinion was issued in 2016. 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.

Common questions

Q: What was a "shade meeting" under Florida law?
A: A shade meeting was the colloquial name for the closed-door attorney-client session authorized by section 286.011(8), Florida Statutes. It was a narrow exception to the otherwise-strict open meeting rule of Florida's Government in the Sunshine Law.

Q: What conditions had to be met to hold one?
A: Five conditions. The attorney had to announce at a public meeting that advice on the litigation was needed. The closed session had to be confined to settlement negotiations or strategy on litigation expenditures. The entire session had to be transcribed by a certified court reporter (no off-the-record discussion). The public had to get reasonable notice of the session, the persons attending, and the estimated length, with the meeting opening and closing in public. The transcript had to be released as a public record at the end of the litigation.

Q: What triggered the exception?
A: The entity had to currently be a "party before a court or administrative agency." A criminal or administrative investigation, a subpoena, an audit, a pre-suit notice, or a mediation typically did not qualify.

Q: Why couldn't the District use it for an investigation and subpoena?
A: Because there was no pending court or administrative proceeding in which the District was already a party. An investigation can generate a subpoena, but the District was not a defendant or respondent in a case before a court or agency. The appellate courts had read the exception strictly, so the District's situation fell outside it.

Q: Did section 905.27 (grand jury secrecy) help?
A: The informal opinion said it did not. Section 905.27 prohibited disclosing grand jury testimony and other evidence received by a grand jury, but it did not itself authorize a public body to meet in private. And the materials provided did not establish that any grand jury had even been impaneled.

Q: Why did the AG decline to issue a formal opinion?
A: Because section 286.011(8) is about a collegial body's actions. The AG's longstanding policy for opinions about a collegial body's duties is to require the request come from a majority of the body's members, not from staff counsel alone.

Q: What were public bodies supposed to do when an investigation began?
A: Take attorney advice individually or outside the meeting context, or hold the discussion in public if a meeting was required. Once an actual court or administrative case was filed, the public body could invoke the shade-meeting procedure for that case (provided every procedural condition was followed).

Background and statutory framework

Florida's Government in the Sunshine Law, section 286.011, requires public bodies to hold their meetings in public, with reasonable notice and minutes. Section 286.011(8) carves out the only attorney-client meeting exception. The Legislature wrote the exception narrowly and the courts have been strict about it.

The two cases the AG cited each reflected this narrow reading. In City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995), the Fifth District Court of Appeal held that a city's closed session that strayed beyond the authorized topics violated section 286.011. In School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996), the First District reinforced strict compliance with the statute's procedural requirements.

The opinion does not, and cannot, change those rules. It applied them to a hospital district that had received a subpoena in an investigation and concluded that the procedural prerequisites for a shade meeting were not yet present. If the investigation had ripened into a filed case, the analysis would have been different.

Citations and references

Statutes:

• Section 286.011, Fla. Stat. (Government in the Sunshine Law)
• Section 905.27, Fla. Stat. (Grand jury testimony disclosure)

Cases:

• City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995)
• School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996)

Prior AG opinions referenced:

• Op. Att'y Gen. Fla. 13-17 (2013), exception inapplicable to mandatory arbitration with no pending case
• Op. Att'y Gen. Fla. 06-03 (2006), exception inapplicable to pre-litigation mediation
• Op. Att'y Gen. Fla. 09-14 (2009), exception inapplicable to mediation under Florida Governmental Conflict Resolution Act
• Op. Att'y Gen. Fla. 09-25 (2009), Bert Harris Act pre-suit notice does not make a town a party to pending litigation
• Op. Att'y Gen. Fla. 90-48 (1990), grand jury subpoenas not subject to Ch. 119 disclosure because of grand jury secrecy

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/shade-meetings-sunshine-law
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1523

Original opinion text

Ms. Lynn M. Barrett

General Counsel

North Broward Hospital District

1800 Northwest 49th Street, Suite 110

Fort Lauderdale, Florida 33309

Dear Ms. Barrett:

As General Counsel for the North Broward Hospital District you have asked for this office's assistance relating to "shade meetings" under section 286.011(8), Florida Statutes. Attorney General Bondi has asked me to respond to your letter.

After reviewing the information you have submitted, it does not appear that this is an issue upon which this office may formally comment. In situations involving the duties and responsibilities of a collegial body such as the Broward Health board, it is the policy of this office to require that an opinion request come from a majority of the members of the board.[1] Your letter does not contain any information on the position of the board on this request. However, in an effort to assist you, I offer the following informal comments.

Section 286.011(8), Florida Statutes, provides that:

"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 or she 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." (e.s.)

The purpose of the exemption is to provide a governmental entity's attorney an opportunity to receive necessary direction and information from the governmental entity regarding pending litigation. An entity is entitled to use the exemption if the entity "is presently a party before a court or administrative agency. . . ."

The material you have forwarded to this office reflects the existence of an investigation and subpoena, but no current on-going judicial or administrative proceeding. The courts have recognized that the Legislature intended a strict construction of section 286.011(8), Florida Statutes.[2] In the absence of an on-going judicial or administrative proceeding, the exemption provided in section 286.011(8), Florida Statutes, would not apply.[3]

You have also cited section 905.27, Florida Statutes, which prohibits the disclosure of testimony and other evidence received by a grand jury and makes it unlawful to disclose such information. You ask whether this privilege would allow for a shade meeting "to protect the attorney-client relationship under Section 905.27, Florida Statutes." Section 905.27, Florida Statutes, does prohibit the disclosure of "testimony of a witness examined before the grand jury or other evidence received by it[.]" However, this office has not been provided with any information suggesting that a grand jury has been impaneled in this matter.[4]

I trust that these informal comments will assist you in advising your client, the North Broward Hospital District.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

[1] See Department of Legal Affairs Statement Concerning Attorney General Opinions available at www.myfloridalegal.com / About the Office / AG Opinions / Frequently Asked Questions.

[2] See City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995). Accord School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996).

[3] Cf. Ops. Att'y Gen. Fla. 13-17 (2013) (s. 286.011[8], Fla. Stat., may not be used to close a meeting regarding mandatory arbitration proceedings when there is no pending legal proceeding in a court or before an administrative agency); 06-03 (2006) (exemption not applicable to pre-litigation mediation proceedings); 09-14 (2009) (exemption not applicable to discussion of terms of mediation in conflict resolution proceedings under the "Florida Governmental Conflict Resolution Act"); 09-25 (2009) (town council which received pre-suit notice letter under Bert Harris Act is not a party to pending litigation for purposes of statute).

[4] Compare Op. Att'y Gen. Fla. 90-48 (1990) (grand jury subpoenas, as part of the grand jury proceeding made secret by s. 905.24, Fla. Stat., would not be subject to disclosure under Ch. 119, Fla. Stat.).