Who can attend a Florida public board's closed attorney-client settlement meeting under the Sunshine Law?

Plain-English summary

The Monroe County School Board accepted its superintendent's recommendation to terminate a teacher, who appealed to an administrative law judge. After the judge issued a recommended order, the attorneys for the superintendent asked to meet privately with the school board to discuss settlement, invoking the Sunshine Law's closed attorney-client exception in section 286.011(8), Florida Statutes. The board's attorney asked the Attorney General whether the superintendent's lawyers could sit in on such a closed meeting.

Attorney General Bill McCollum said no. Section 286.011(8) is a narrow exception to Florida's open-meeting requirement. It lets a board or commission that is presently a party to litigation meet in private with its own attorney, and only to discuss settlement negotiations or litigation-expenditure strategy, under strict conditions (a court reporter records everything, the transcript becomes public once the case ends, and notice is given). In this case the named party in the administrative proceeding was the school board itself, so the board could meet privately with the board's attorney. The superintendent's attorneys, however, did not represent the party entitled to the exception and so could not attend the closed session.

Currency note

This opinion was issued in 2009. 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 does the section 286.011(8) exception actually allow?
A: It lets a public board that is currently a party to litigation meet privately with its own attorney to discuss settlement negotiations or strategy about litigation expenditures. The session must be recorded in full by a certified court reporter, public notice must be given of who attends, and the transcript becomes a public record once the litigation concludes. It is not a general attorney-client privilege for all board meetings.

Q: Why couldn't the superintendent's lawyers attend?
A: Because the exception belongs to the entity that is the party to the litigation, and here that party was the school board. The superintendent's attorneys represented the superintendent, not the board, so they fell outside the narrow exception, which the AG (following AGO 95-06) stressed must be read narrowly.

Q: Who is the "party" in this kind of administrative case?
A: Under the Administrative Procedures Act, a "party" is a person whose substantial interests will be affected and who appears as a party. The pleadings named the Monroe County School Board as the petitioner, and the school code makes the board responsible for prosecuting district litigation and for suspending or dismissing employees, so the board was the party for purposes of the exception.

Q: Does this mean the board can keep all settlement talks secret?
A: No. The exception is limited and procedural. Discussions are confined to settlement and litigation-expenditure strategy, everything is transcribed, and the transcript is released when the case ends. The Sunshine Law is construed broadly and its exceptions narrowly.

Background and statutory framework

Florida's Government in the Sunshine Law (section 286.011) requires meetings of public boards to be open, and it is construed liberally for the public's benefit while its exceptions are read narrowly (City of Dunnellon v. Aran; Board of Public Instruction of Broward County v. Doran). Subsection (8) carves out a tightly conditioned attorney-client session for pending litigation, available only when the entity is "presently a party" before a court or administrative agency. The AG drew on AGO 95-06, approved in School Board of Duval County v. Florida Publishing Company, which held that the exception does not create a blanket attorney-client shield and reaches only settlement and litigation-expenditure discussions.

Identifying the party was the crux. The administrative pleadings named the school board as petitioner, and under section 120.52(13) and the school code (including section 1001.41(4) and section 1012.22), the board is the entity that prosecutes district litigation and controls employee discipline. The superintendent, by contrast, had no role in settling the action or in litigation-expenditure strategy. The AG also cited Zorc v. City of Vero Beach for the principle that a local entity cannot authorize someone to attend a closed attorney-client session when the Legislature has not, reinforcing that only the board and its attorney could participate.

Citations and references

Statutes:

• s. 286.011(8), Fla. Stat. (closed attorney-client litigation meetings; conditions)
• s. 286.011(1), Fla. Stat. (open meetings requirement)
• s. 1001.41(4), Fla. Stat. (school board as contracting agent; may sue and be sued)
• s. 120.52(13), Fla. Stat. (definition of "party")
• s. 1012.22, Fla. Stat. (school board personnel authority)

Cases:

• School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996)
• City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995)
• Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, 699 (Fla. 1969)
• Zorc v. City of Vero Beach, 722 So. 2d 891, 898 (Fla. 4th DCA 1998)

Subject

Sunshine Law, attendance at settlement meetings

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/sunshine-law-attendance-at-settlement-meetings
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1732

Original opinion text

Mr. Joshua T. Hauserman

Vernis & Bowling of the Florida Keys, P.A.

Islamorada Professional Center

81990 Overseas Highway, 3rd Floor

Islamorada, Florida 33036

RE: GOVERNMENT IN THE SUNSHINE LAW – LITIGATION – ADMINISTRATIVE HEARINGS – SETTLEMENT – private meetings between school board and attorneys for superintendent to discuss settlement of administrative proceeding. ss. 286.011(8), 1012.22, and 1001.41, Fla. Stat.

Dear Mr. Hauserman:

As attorney for the School Board of Monroe County, Florida, you have requested my opinion on substantially the following question:

May attorneys representing a superintendent of schools in an administrative action before the Department of Administrative Hearings meet with the school board to discuss settlement of the administrative proceedings pursuant to section 286.011(8), Florida Statutes?

In sum:

Section 286.011(8), Florida Statutes, provides a limited exception to the open meetings requirements of the Government in the Sunshine Law for meetings between the school board, which is the named party in this administrative action, and that entity's attorney. The attorneys representing the superintendent of schools are not within the scope of this exception and may not meet with the school board to discuss settlement negotiations or strategy sessions related to litigation expenditures.

According to your letter, the superintendent of schools in Monroe County recommended, in an administrative complaint to the school board, that a teacher's employment be terminated. The school board accepted the superintendent's recommendation and suspended the teacher without pay. An appeal was taken and an administrative hearing was held before an administrative law judge assigned by the Department of Administrative Hearings who issued a recommended order. The attorneys for the superintendent have requested a closed meeting with the school board pursuant to section 286.011(8), Florida Statutes, to discuss settlement negotiations or strategy sessions related to litigation expenditures.

Section 286.011(8), Florida Statutes, makes litigation strategy or settlement meetings confidential when they are held between a board and its attorney and the board is a party before a court or administrative agency. The statute allows access to the record of such meeting when the litigation is concluded. Specifically, the statute 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 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."

As this office recognized in Attorney General Opinion 95-06:

"Section 286.011(8), Florida Statutes, does not create a blanket exception to the open meeting requirement of the Sunshine Law for all meetings between a public board or commission and its attorney. The exemption is narrower than the attorney-client communications exception recognized for private litigants. Only discussions on pending litigation to which the public entity . . . is presently a party are subject to its terms. Such discussions are limited to settlement negotiations or strategy sessions related to litigation expenditures."[1]

It is well settled that the Sunshine Law was enacted for the benefit of the public and should be construed liberally to give effect to its public purpose, while exceptions to its terms should be construed narrowly.[2] Section 286.011(8), Florida Statutes, refers to pending litigation to which the entity is presently a party before a court or administrative agency. The term "presently" is defined as "[i]mmediately; now; at once" while "pending" is defined as:

"Begun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in process of settlement or adjustment. Thus, an action or suit is "pending" from its inception until the rendition of final judgment."[3]

By its terms, section 286.011(8), Florida Statutes, limits discussions at these closed meetings to settlement negotiations or strategy sessions dealing with litigation expenditures. Provisions of the school code make the district school board the contracting agent for the district school system and make the board responsible for prosecuting litigation involving the district.[4] Thus, it does not appear that the superintendent exercises any authority over the settlement of an administrative action or has any role in strategy sessions dealing with litigation expenditures.

Further, the pleadings involved in the administrative action before the Division of Administrative Hearings, case number 08-6398, identify the Monroe County School Board as the petitioner in this action. Pursuant to the Administrative Procedures Act, a "party" is "any person . . . whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party."[5] The petitioner in an action is a named "party" to that action.[6] Provisions of the school code make it the responsibility of the school board to suspend or dismiss employees, including instructional staff.[7] Thus, it appears that the School Board of Monroe County is the party named in pleadings in the administrative action before the Department of Administrative Hearings and it is the school board and the school board's attorney that are authorized by section 286.011(8), Florida Statutes, to meet to discuss settlement negotiations or strategy sessions related to litigation expenditures.[8]

In sum, it is my opinion that section 286.011(8), Florida Statutes, provides a limited exception to the open meetings requirements of the Government in the Sunshine Law for meetings between the school board, which is the named party in this administrative action, and that entity's attorney. The attorneys representing the superintendent of schools are not within the scope of this exception and may not meet with the school board to discuss settlement negotiations or strategy sessions related to litigation expenditures pursuant to section 286.011(8), Florida Statutes.

Sincerely,

Bill McCollum

Attorney General

BM/tgh

[1] And see School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996), agreeing with and quoting Op. Att'y Gen. Fla. 95-06 (1995). See also Op. Att'y Gen. Fla. 04-35 (2004) (s. 286.011[8]'s application limited to pending litigation; it does not apply when no lawsuit has been filed even though the parties involved believe litigation is inevitable).

[2] See City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995), and Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, 699 (Fla. 1969).

[3] Black's Law Dictionary, pp. 1066 and 1021 (5th ed. 1979), respectively. And see Black's Law Dictionary Present ("Now existing . . . Being considered"), p. 1221; and Pending (awaiting decision; under consideration; throughout the continuance of; during), p. 1169 (8th ed. 2004).

[4] See s. 1001.41(4), Fla. Stat. And see s. 1001.42(12)(g), Fla. Stat., providing that school board approves and pays accounts.

[5] See s. 120.52(13), Fla. Stat.

[6] See Rule 1.210(a), Fla. R. Civ. P., stating that "[e]very action may be prosecuted in the name of the real party in interest[.]"

[7] See ss. 1012.22(1)(f) and 1012.33(6)(a), Fla. Stat.; and see s. 1001.41(4), Fla. Stat., providing that the district school board may contract and can sue and be sued; and making the district school board the contracting agent for the district school system.

[8] See Zorc v. City of Vero Beach, 722 So. 2d 891, 898 (Fla. 4th DCA 1998), review denied, 735 So. 2d 1284 (Fla. 1999) (city charter provision requiring that city clerk attend all county meetings does not authorize clerk to attend closed attorney-client session; municipality may not authorize what the Legislature has expressly forbidden); Op. Att'y Gen. Fla. 01-10 (2001) (clerk of court not authorized to attend).