Can a Florida hospital district pay a board member's attorney fees for help responding to a public records request?

Plain-English summary

A South Broward Hospital District commissioner hired a private attorney to help respond to a public records request that swept in records on her personal computer and phone (the district had not provided official email or phones for commissioners). Allegations of a Sunshine Law violation surfaced, but no formal charge or lawsuit was ever filed. The district's general counsel then asked the AG whether the district could pay the commissioner's private legal bills out of public funds.

Attorney General Pam Bondi said no. The narrow Florida statute that authorizes a public board to reimburse a member's attorney's fees, § 286.011(7), is triggered only when (1) the member is "charged with" a Sunshine Law violation and (2) the member is later acquitted of that charge. Both events have to occur. Mere allegations or anticipated litigation are not enough. Because no formal charge was filed against the commissioner, that statute did not authorize reimbursement.

The AG also found no provision for reimbursing this commissioner's private counsel fees in the district's enabling act or the public-records provisions it discussed. The letter notes that section 119.12 concerns fees in a successful action against an agency for refusing records access. As a statutory entity, the district can exercise express powers and those necessarily implied; the AG concluded it lacked authority to reimburse the fees incurred in these circumstances.

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: When can a board reimburse a member's attorney's fees under § 286.011(7)?
A: Only after both events occur: the member was "charged with a violation" of the Sunshine Law in a formal proceeding, and the member is "subsequently acquitted." If either box is empty, the statute does not apply.

Q: Why did the AG read the statute so narrowly?
A: The statute requires a charge of a Sunshine Law violation followed by an acquittal. The letter also explains that a statutory agency has only express powers and those necessarily implied, with reasonable doubt about a claimed power resolved against its exercise.

Q: What about § 111.07, which lets agencies provide a defense attorney for officers?
A: The letter cites section 111.07 in a footnote. It concerns providing an attorney to defend a civil action arising from a complaint for damages or injury related to official conduct. The statute's bad-faith limitation in the quoted footnote concerns tort actions. The letter does not treat a records request, without a filed action, as such a civil defense.

Q: What about § 119.12, the records-act fee provision?
A: § 119.12 only shifts fees to a prevailing plaintiff who sued an agency that "unlawfully refused" to allow inspection. It is not a reimbursement vehicle for the agency or its members.

Q: What is the lesson for special districts and their members?
A: In this case, the commissioner used a personal computer and phone for district business, so records on those devices had to be reviewed for the request. She retained private counsel without any suit, claim, charge, or action against her. The AG concluded the district lacked authority to reimburse those fees. Check the actual statutory authority before promising reimbursement in a different situation.

Q: Did the letter authorize the district to provide counsel proactively?
A: No such question was decided. The commissioner was unwilling to give her records to district counsel for review or use district IT staff made available to extract and copy responsive material. The question asked whether the district could reimburse the private lawyer she retained while no action was pending against her.

Background and statutory framework

Florida's Public Records Law provides access to district records unless an exemption or confidentiality law applies. The South Broward Hospital District was created by Chapter 2004-397, Laws of Florida. Its enabling act gives the commissioners broad operational powers, requires them to keep "true and accurate minutes and records," and makes those records available for public inspection.

Section 286.011(7) authorizes reimbursement after a board member is charged with a Sunshine Law violation and acquitted. The letter cites s. 119.12 for attorney's fees when a plaintiff sues to enforce records access and a court finds the agency unlawfully refused inspection or copying. The opinion applies these provisions to the requested reimbursement for private counsel retained when no suit, claim, charge, or action had been instituted against the commissioner.

The letter cites s. 111.07 in a footnote. It permits specified public agencies to provide an attorney to defend an officer in a civil action arising from a complaint for damages or injury related to official conduct. Its quoted limitation for bad-faith or wanton conduct applies in a tort action. The commissioner was responding to a records request with no action filed against her, so that defense provision did not supply reimbursement authority here.

The cited decisions, State ex rel. Greenberg v. Fla. State Bd. of Dentistry, 297 So. 2d 628 (Fla. 1st DCA 1974), and Fiat Motors of North America, Inc. v. Calvin, 356 So. 2d 908 (Fla. 1st DCA 1978), explain that an administrative agency has only the powers expressly granted by statute and those necessarily implied. Doubts about a particular power are resolved against its exercise. The AG concluded this district lacked authority to reimburse these fees.

Citations

• § 286.011(7), Fla. Stat. (Sunshine Law fee reimbursement: charge plus acquittal)
• § 119.07(1), Fla. Stat. (public records inspection right)
• § 119.12, Fla. Stat. (fees to a successful records-enforcement plaintiff)
• § 111.07, Fla. Stat. (agency-provided defense in civil actions)
• Ch. 2004-397, Laws of Florida (South Broward Hospital District enabling act)
• Greenberg v. Fla. State Bd. of Dentistry, 297 So. 2d 628 (Fla. 1st DCA 1974) (statutory-creature doctrine)
• Fiat Motors of North America, Inc. v. Calvin, 356 So. 2d 908 (Fla. 1st DCA 1978) (limits on agency powers)
• Gardinier, Inc. v. Fla. Dep't of Pollution Control, 300 So. 2d 75 (Fla. 1st DCA 1974) (doubts resolved against power)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/south-broward-hospital-district-public-records
• Official print view: https://www.myfloridalegal.com/print/pdf/node/1502

Original opinion text

Ms. Kimarie Stratos

General Counsel

Memorial Healthcare System

South Broward Hospital District

3111 Stirling Road

Fort Lauderdale, Florida 33312

RE: SOUTH BROWARD HOSPITAL DISTRICT – PUBLIC RECORDS – ATTORNEY'S FEES – PUBLIC FUNDS – authority of district to reimburse attorney's fees to individual commissioner retaining private counsel to respond to public record request. ss. 119.07 and 286.011, Fla. Stat.

Dear Ms. Stratos:

As general counsel to the South Broward Hospital District, you submit substantially the following question:

May the district reimburse a board member's attorney's fees incurred by her in responding to a public records request pertaining to her board service when no suit, claim, charge, or action has been instituted against the commissioner during the time the attorney's fees were incurred?

In sum:

The South Broward Hospital District is not authorized to reimburse a board member for attorney's fees incurred by her in responding to a public records request when no suit, claim, charge or action has been instituted against the commissioner during the time the attorney's fees were incurred.

You have provided the following background. The South Broward Hospital District (hospital district) was conducting a search for a new chief operating officer. A public records request was made of all commissioners in relation to the search. Allegations of violation of section 286.011, Florida Statutes (Government in the Sunshine Law) were made, but no legal action was filed, and the subject commissioner retained private counsel to assist in her response to the public records request. The district did not provide a district email address or phone for individual commissioners to conduct district business such that the commissioner's private computer and telephone records had to be reviewed to recover the requested public records. Due to her concerns about the independence of the district's counsel, the commissioner was unwilling to turn over all of her records to the district's counsel for review or to make use of the district's information technology staff who were made available to all commissioners to extract and copy responsive material from their individual devices. At no point were any legal charges filed against the commissioner.

Section 286.011(7), Florida Statutes, provides:

"Whenever any member of any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision is charged with a violation of this section and is subsequently acquitted, the board or commission is authorized to reimburse said member for any portion of his or her reasonable attorney's fees."

While the language in section 286.011(7), Florida Statutes, is clear in the parameters which must be met before a member of a board may be reimbursed for his or her attorney's fees in successfully defending a charge of violation of the Government in the Sunshine Law, the facts in this situation are that no legal action has been filed against the commissioner and she retained private counsel in order to respond to a public records request.[1] The authority extended by section 286.011(7), Florida Statutes, to reimburse attorney's fees, therefore, is not applicable.

Chapter 2004-397, Laws of Florida, is the enabling legislation for the South Broward Hospital District. The act sets forth the broad powers of the district's governing board to carry out the district's purpose of providing health care services.[2] The commissioners are required to

"cause true and accurate minutes and records to be kept of all business transacted by them, and shall keep full, true, and complete books of account and minutes, which minutes, records, and books of account shall at all reasonable times be open and subject to the inspection of inhabitants of the district; and any person desiring to do so may make or procure a copy of the minutes, records, or books of account, or such portions thereof as he may desire."[3]

There is no question that all records of the district are public records, subject to inspection and copying by anyone requesting same, unless exempted or made confidential by law.[4] While there is provision for the recovery of attorney's fees when a plaintiff files a civil action against an agency to enforce the provisions of this chapter and the court determines that such agency unlawfully refused to permit a public record to be inspected or copied,[5] there is no provision similar to that found in section 286.011(7), Florida Statutes, nor is there authority for the reimbursement of attorney's fees to a public official who has hired a private attorney to assist in the production of public records.

As an administrative agency created by statute, the South Broward Hospital District is constrained to exercise those powers expressly granted or by implication necessary to carry out the express authority granted them by statute.[6] Any reasonable doubt as to the lawful existence of a particular power sought to be exercised must be resolved against the exercise thereof.[7]

Therefore, it is my opinion that the South Broward Hospital District is not authorized to reimburse a board member for attorney's fees incurred by her in responding to a public records request when no suit, claim, charge, or action has been instituted against the commissioner during the time the attorney's fees were incurred.

Sincerely,

Pam Bondi

Attorney General

PB/tals

________________

[1] See also s. 111.07, Fla. Stat., authorizing any agency of the state, or any county, municipality, or political subdivision of the state to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of any of its officers, employees, or agents for an act or omission arising out of and in the scope of his or her employment or function, unless, in the case of a tort action, the officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

[2] See s. 4, Ch. 2004-397, Laws of Fla.

[3] Section 5, Ch. 2004-397, Laws of Fla.

[4] See s. 119.07(1), Fla. Stat.

[5] See s. 119.12, Fla. Stat.

[6] See State ex rel. Greenberg v. Fla. State Bd. of Dentistry, 297 So. 2d 628, 634 (Fla. 1st DCA 1974) (administrative agencies are creatures of statute and have only such powers as statutes confer); Fiat Motors of North America, Inc. v. Calvin, 356 So. 2d 908, 909 (Fla. 1st DCA 1978).

[7] See, e.g., Gardinier, Inc. v. Fla. Dep't of Pollution Control, 300 So. 2d 75, 76 (Fla. 1st DCA 1974); Williams v. Fla. Real Estate Comm'n, 232 So. 2d 239, 240 (Fla. 4th DCA 1970).