Can a Florida mayor who is also personally sued still attend closed 'shade meetings' about the city's lawsuit?

Plain-English summary

The City Attorney for Port St. Lucie asked whether the city's mayor could sit in on closed "shade meetings" with the council's lawyer about two lawsuits, given that the mayor was personally named as a defendant in both suits (in his official and individual capacities). Attorney General Pam Bondi answered that section 286.011(8), Florida Statutes, did not keep him out: because he was a voting member of the city council, and the council was a party to the pending litigation, he could attend meetings to discuss settlement negotiations and litigation-expenditure strategy.

The fact that the plaintiffs also sued the mayor individually, alleging "willful and wanton" conduct, did not change the answer. Personal liability is not decided until the case ends on the merits, and the statute lets an official who is "presently a party" to "pending litigation" attend while the case is active.

On the second question, whether the Ethics Code limited the mayor's participation or voting, the office declined to opine. Under section 112.322(3), the Florida Commission on Ethics is the body that issues advisory opinions on the Ethics Code.

Currency note

This opinion was issued in 2015. 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.

What the opinion addressed

Mayors who are voting council members

The opinion treated the mayor as part of the council for Sunshine Law purposes because the city charter made him a voting member. On that basis, section 286.011(8) allowed him to attend the council's closed litigation meetings. The opinion contrasted an earlier situation (AGO 90-26) where a mayor who was not a council member and had no vote was not subject to the Sunshine Law at all.

City attorneys

The opinion described the shade-meeting exception as narrow. It covers two subjects only: settlement negotiations and strategy sessions related to litigation expenditures. Final action to approve a settlement or an expenditure still has to be taken in a public meeting. The opinion also read "pending litigation" as a suit that has been filed and is ongoing, not yet completed.

Residents and journalists

The opinion reaffirmed the default rule that city council meetings, including meetings with the council's attorney about pending litigation, are public under section 286.011(1). The shade exception is a limited carve-out, and the public vote on any settlement remains open.

On the ethics and voting question

The opinion did not decide whether the Ethics Code (Part III, Chapter 112) restricted the mayor's participation or voting. It expressly declined and pointed the City Attorney to the Florida Commission on Ethics. This page does not answer that question either, because the AG did not.

Common questions

Q: What is a "shade meeting"?
A: It is a closed-door meeting that section 286.011(8) allows between a government body, its chief executive officer, and its attorney to discuss pending litigation the body is a party to. The discussion is limited to settlement negotiations or litigation-expenditure strategy.

Q: Does being personally sued keep an official out of a shade meeting?
A: Under this opinion, no. The AG concluded that potential individual liability does not bar an official from attending while the case is active, because liability is not determined until the case is finally decided on the merits.

Q: Can a settlement be approved in the closed meeting?
A: No. The opinion stressed that final action to approve a settlement or a litigation expenditure must be voted on in a public meeting.

Q: Did the Attorney General decide the ethics or recusal question?
A: No. The office declined to comment and directed the question to the Florida Commission on Ethics under section 112.322(3).

Background and statutory framework

Section 286.011, Florida's Government-in-the-Sunshine Law, requires boards and commissions of state and local agencies to conduct business at open meetings. The Florida Supreme Court has treated city councils as agencies covered by the statute (City of Miami Beach v. Berns) and has held that meetings between a council and its attorney about pending litigation are themselves public (Neu v. Miami Herald Publishing Co.). Subsection (8) creates the limited "shade meeting" exception, which the courts and the Attorney General have read to cover only settlement and litigation-expenditure strategy (Chmielewski v. City of St. Pete Beach; Zorc v. City of Vero Beach).

Citations and references

Statutes:

• § 286.011, Fla. Stat. (Government in the Sunshine)
• § 112.322, Fla. Stat. (Commission on Ethics)

Cases:

• City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971), Florida Supreme Court; city councils are agencies under the Sunshine Law
• Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1985), Florida Supreme Court; council-attorney litigation meetings are public
• Chmielewski v. City of St. Pete Beach, 161 So. 3d 521 (Fla. 2d DCA 2014), district court of appeal; scope of the shade-meeting exception
• Zorc v. City of Vero Beach, 722 So. 2d 891 (Fla. 4th DCA 1998), district court of appeal; final action must be taken in public
• Nuzum v. Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981), district court of appeal; personal liability is not determined until the case is finally decided

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/sunshine-law-litigation-mayor
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1526

Original opinion text

Ms. Pam E. Booker

City Attorney

Office of the City Attorney

City of Port St. Lucie

121 Southwest Port St. Lucie Boulevard

Port St. Lucie, Florida 34984

RE: SUNSHINE LAW – LITIGATION – MAYOR – applicability to mayor of exception for meetings between city council and its attorney to discuss settlement and litigation expenditures. s. 286.011(8), Fla. Stat.

Dear Ms. Booker:

As City Attorney for the City of Port St. Lucie, you have asked for my opinion on the following question:

1. Pursuant to section 286.011(8), Florida Statutes, is the mayor, who is a named defendant in two lawsuits filed against the City and various City officials, prohibited from attending “shade meetings” with counsel to discuss the litigation?

2. If the mayor is statutorily permitted to attend shade meetings, would provisions within Florida’s Ethics Code, Part III, Chapter 112, Florida Statutes, prohibit him from participating in discussions at such meetings, and from voting on decisions relating to the litigation during Sunshine meetings?

In sum:

1. Section 286.011(8), Florida Statutes, does not prohibit the mayor, who is a voting member of the city council, from attending meetings between the city council and its attorney to discuss settlement negotiations and/or strategy related to litigation expenditures in connection with the pending lawsuits in which the council is a party.

2. This office will not comment on your questions pertaining to prohibitions that may exist in the Ethics Code. Pursuant to section 112.322(3), Florida Statutes, the Ethics Commission is responsible for issuing advisory opinions on questions regarding application of the Ethics Code. [1]

As you acknowledge, meetings between members of the city council to conduct city business are public meetings under section 286.011(1), Florida Statutes, which requires governmental entities, including municipalities, to conduct their business at open meetings “in the sunshine.”[2] Subsection (1) provides:

“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.”

Meetings between members of the city council and the council’s attorney to discuss pending litigation in which the city council is a party are also public meetings subject to section 286.011(1), Florida Statutes.[3] The Legislature has created a narrow exception in subsection (8), however, to allow meetings “in the shade” between the same governmental entities enumerated in subsection (1), along with chief administrative or executive officers, and their attorney for the purpose of discussing certain limited issues related to pending litigation:[4]

“(8) 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:

• • *

(b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.”

This exception gives an attorney who is representing the governmental entity in a lawsuit or administrative action the opportunity to obtain information and direction regarding “two narrowly prescribed areas”: settlement negotiations and strategy sessions regarding litigation expenditures.[5] Final action to approve a settlement or litigation expenditure must still be voted upon in a public meeting.[6]

You report that two lawsuits have been filed in St. Lucie County Circuit Court, each naming as defendants, among others, the City of Port St. Lucie and the then-City Manager, who is now the mayor, in both his official and individual capacities. Your concern is whether the mayor may attend shade meetings under section 286.011(8), Florida Statutes, which applies to “any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision[.]” (e.s.) The Florida Supreme Court has characterized city councils as municipal agencies under section 286.011, Florida Statutes.[7] The Charter of the City of Port St. Lucie, Florida,[8] provides in Article III, section 3.01: “There shall be a city council with all legislative powers of the city vested therein consisting of one member residing in each of the council districts, and a mayor[.]” Section 3.05 provides, in part: “The mayor shall be a voting member of the city council[.]”[9] This office has observed that when the mayor is a member of the city council, the Sunshine Law applies to discussions between the mayor and other members of the council.[10] Because the mayor of the City of Port St. Lucie is a voting member of the city council, which is a party in the ongoing litigation, he is not precluded from attending shade meetings with the council regarding the suits under subsection (8).[11]

The fact that the plaintiffs in these lawsuits have also sued the mayor in his individual capacity, alleging “willful and wanton” conduct toward the plaintiffs, does not take him outside the scope of section 286.011(8), Florida Statutes. Personal liability of a public official is not determined until a case has been finally terminated on the merits.[12] By its terms, section 286.011(8) allows a government official who is “presently a party” to “pending litigation” to discuss settlement and expenditures during the pendency of the action. This office has previously construed “pending” in subsection (8) as referring to a lawsuit that has been filed and is ongoing and not yet completed.[13] Hence, the possibility that the mayor will be found individually liable after the merits of the case are decided does not preclude him from attending shade meetings while the case is active pursuant to section 286.011(8), Florida Statutes.

In conclusion, it is my opinion that section 286.011(8), Florida Statutes, does not prohibit the mayor from attending meetings between the city council and its attorney to discuss settlement negotiations and/or strategy regarding litigation expenditures in connection with the pending lawsuits in which the council is a party. I am unable to comment on your questions regarding possible prohibitions within the Ethics Code as to the mayor’s participation in meetings about the litigation. These questions may instead be directed to the Florida Commission on Ethics.

Sincerely,

Pam Bondi

Attorney General

PB/tebg

[1] See Op. Att’y Gen. Fla. 89-18 (1989); Op. Att’y Gen. Fla. 87-17 (1987).

[2] See City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971).

[3] See Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1985).

[4] See Chmielewski v. City of St. Pete Beach, 161 So. 3d 521, 523 (Fla. 2d DCA 2014).

[5] See Op. Att’y Gen. Fla. 04-35 (2004).

[6] See Zorc v. City of Vero Beach, 722 So. 2d 891, 901 (Fla. 4th DCA 1998); Op. Att’y Gen. Fla. 08-17 (2008).

[7] City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971).

[8] https://www.municode.com/library/fl/port_st._lucie/codes/code_of_ordinances?nodeId=CHPOSTLUFL.

[9] Id.

[10] See Op. Att’y Gen. Fla. 90-26 (1990) (concluding that a mayor who was not a member of the city council and had no voting power on the council was not subject to the Government-in-the-Sunshine Law). Accord Ops. Att’y Gen. Fla. 85-36 (1985), 75-210 (1975).

[11] In contrast, a governmental entity in Op. Att’y Gen. Fla. 09-52 (2009) – the school superintendent – was not a party to the pending administrative action and thus could not attend a shade meeting with the school board, which was a party.

[12] See Nuzum v. Valdes, 407 So. 2d 277, 279 (Fla. 3d DCA 1981).

[13] See Op. Att’y Gen. Fla. 06-03 (2006).