Can a Florida university presidential search committee use a search firm to anonymously survey its members and rank candidates outside of a public meeting?
Plain-English summary
Florida Attorney General Ashley Moody concluded that Florida's Government in the Sunshine Law applies to university and state college presidential search committees, and that the practice of using a search firm to anonymously survey committee members and rank candidates outside of a public meeting is unlawful. The opinion was issued in response to a request from the General Counsel of the Board of Governors regarding planned changes to the search-and-selection process.
The proposed practice — committee members privately ranking applicants through an outside firm, with the firm later presenting the rankings at a meeting "to streamline discussion" — is what the Sunshine Law calls an "evasive device." Even though no committee member talks directly to another, the aggregated rankings function as the committee's collective decision-making, which Florida courts have repeatedly held must occur in public.
There is an exemption available — § 1004.098, Florida Statutes, lets a presidential-search committee meet privately to identify and vet applicants — but only if every statutory condition is met, including recording the entire closed portion of the meeting. An exemption you don't fully comply with is no exemption at all.
What this means for you
If you serve on a Florida university or state college presidential search committee
Treat the committee as fully subject to the Sunshine Law. That means:
- Don't rank candidates anonymously through a search firm or any third-party intermediary outside a public meeting
- Don't use individual feedback channels that aggregate into a committee preference order
- Discussion of candidates must happen in public, at a properly noticed meeting — unless you are using the § 1004.098 exemption AND recording the entire closed session AND meeting all other statutory conditions
- Even if your individual ranking "feels" private, it becomes a Sunshine Law violation when combined with others' rankings to produce a collective list
If you're a search firm working with a Florida public university
Your contract should now include explicit Sunshine-Law compliance procedures. Practices that may be standard nationally — collecting member preference surveys, producing private ranked shortlists, "facilitating" off-the-record candidate discussions — are likely unlawful in Florida.
The Board of Governors regulation already requires search firms to "demonstrate ability to become familiar with Florida's Sunshine laws." This opinion sharpens that requirement: your processes must avoid serving as an indirect channel for committee deliberation.
If you're general counsel for a Florida public agency
This opinion's reasoning extends well beyond university presidents. Any advisory committee or working group with decision-making authority — including the power to make recommendations the parent body will likely adopt — is covered by the Sunshine Law. Watch for analogous patterns:
- Members evaluating candidates or vendor proposals through individual surveys
- Consultants tallying private rankings to produce shortlists
- Sequential one-on-one meetings between an executive and individual board members on the same topic ("de facto meetings")
If you're a journalist or member of the public
You have the right to attend and observe presidential search committee meetings (and most other Florida public-body meetings). If a committee's deliberation appears to have happened "off-stage" — with the meeting only ratifying a pre-determined ranking — the ranking process itself may be a Sunshine Law violation.
If you're using the § 1004.098 exemption
It is conditional, not blanket. To rely on it, the committee must:
- Use the exemption only for the specific portion of the meeting addressing identifying or vetting applicants
- Record the entire exempt portion (the recording is exempt from public records disclosure)
- Comply with every other statutory condition
Partial compliance means the exemption doesn't apply, and the meeting must have been held openly. When in doubt, default to public.
Common questions
Q: Why does the Sunshine Law apply to a search committee — isn't it just advisory?
A: Florida courts apply a "decision-making authority" test. A committee that vets, screens, ranks, or recommends candidates exercises decision-making authority — even if the parent board could theoretically reject its recommendation. The 2nd DCA's Leach-Wells decision (vendor short-listing) and the 5th DCA's textbook-evaluation case both held that recommending bodies are covered.
Q: What is an "evasive device"?
A: A practice — even one with no intent to violate the Sunshine Law — that effectively replaces public deliberation with private deliberation. Blackford v. School Board of Orange County held that a series of one-on-one meetings between a superintendent and individual board members violated the Sunshine Law because they collectively functioned as a board meeting. Anonymous-ranking surveys fall in the same category.
Q: Does the search committee have to discuss every candidate publicly?
A: Public deliberation is the default. The § 1004.098 exemption allows the committee to identify and vet applicants in closed session — but only with full compliance, including recording. Final recommendations and ranking deliberations that affect what the committee will consider must occur publicly unless the exemption is fully invoked.
Q: Can individual members do their own private research on candidates?
A: An individual member's solo research and reflection is not a "meeting." What triggers the Sunshine Law is communication between two or more members, or any channel (including a third party) that aggregates members' views to influence collective action. A member privately reading résumés is fine; an outside firm collecting and tallying members' rankings is not.
Q: What about meetings between just two committee members?
A: The Sunshine Law applies to any gathering of "two or more members" of the same board where matters that may foreseeably come before the board are discussed. Two-person discussions about candidates count.
Q: Can the committee use a search firm at all?
A: Yes — search firms can identify candidates, conduct background research, present qualifications information, and assist administratively. What they cannot do is serve as a conduit for the committee's collective deliberation by collecting and aggregating individual preferences outside a public meeting.
Q: What's the consequence of a Sunshine Law violation in this context?
A: Action taken in violation of the Sunshine Law can be voided. A presidential appointment that resulted from a tainted process could be challenged. There are also potential statutory penalties for willful violations. The reputational and legal risk is substantial.
Background and statutory framework
Florida's Government in the Sunshine Law derives from Article I, Section 24 of the Florida Constitution and the implementing statutes. It guarantees public access to meetings of any "collegial public body" of the executive branch (and of counties, municipalities, school districts, and special districts) where official acts are taken or public business is discussed.
The Sunshine Law applies to advisory boards when they have decision-making authority — and Florida courts have read that broadly. The power to recommend, screen, evaluate, or rank counts as decision-making authority because of the "potential for rubber-stamping" by the body that delegated authority. The 2nd DCA's 2021 textbook-evaluation case made this explicit.
Exemptions from the Sunshine Law require a two-thirds vote of each legislative house, must specify the public necessity for the exemption, and must not be broader than necessary. Each exemption sunsets after five years unless extended. To rely on an exemption, every statutory condition must be satisfied — partial compliance does not partially apply the exemption.
The university-president exemption at § 1004.098 was enacted in 2022. It allows search committees and trustees to hold closed-door portions of meetings to identify and vet applicants, but the closed portion must be recorded, and the recording itself is exempt from public records disclosure. The legislature thus presumed there would be discussion (treating it as Sunshine-Law-covered) and provided a narrow, conditional path for that discussion to occur outside public view — on the record.
The opinion connects the dots: the proposed practice (anonymous rankings via search firm) doesn't fall within § 1004.098 because the rankings happen outside any meeting (closed or open), eliminate discussion entirely, and produce a collective committee preference without any record. That is the prototypical "evasive device" courts have rejected.
Citations and references
Statutes:
- § 16.01(3), Fla. Stat. (Attorney General; opinions)
- § 1004.098, Fla. Stat. (Public meeting exemption for university and college president searches)
Cases:
- Blackford v. School Board of Orange County (Fla. 5th DCA) — series of one-on-one meetings between superintendent and individual school board members held to violate Sunshine Law as "de facto meetings"
- Leach-Wells v. City of Bradenton (Fla. 2d DCA) — committee task of "short-listing" vendor proposals subject to Sunshine Law even without intent to evade
- Transparency for Florida, Inc. v. City of Port St. Lucie (Fla. 4th DCA) — Sunshine Law applied where city attorney polled council members about a severance agreement before a meeting
Original opinion text
The full opinion as issued by Attorney General Ashley Moody:
Rachel Kamoutsas
General Counsel
Board of Governors, State University System of Florida
325 W. Gaines Street
Tallahassee, FL 32301
Dear Ms. Kamoutsas:
This office received your letter, dated September 18, 2023, requesting a legal opinion pursuant to section 16.01(3), Florida Statutes. You ask substantially the following question:
Does Florida's Government in the Sunshine Law permit members of a university presidential search and selection committee to use a search firm to survey the committee's members anonymously and subsequently use the survey results to "summarize preferences" and rank the applicants for consideration at a future committee meeting?
In sum:
Unless and until judicially or legislatively determined otherwise, I conclude that the Government in the Sunshine Law (hereinafter, "Sunshine Law") applies to a university presidential search and selection committee and that the Law does not permit such members to use a search firm to anonymously rank candidates to affect which candidates the committee will consider at a future meeting. While an exemption is available for portions of certain meetings of the search committee, this exemption applies only when the committee fulfills all criteria of the exemption, such as recording the entire portion of the exempt meeting.
Background
You indicate that the Board of Governors currently intends to modify Board of Governors Regulation 1.002, which sets forth the process for each Board of Trustees that selects a president of a state university or Florida College System institution, subject to confirmation by the Board of Governors. The regulation currently states that a Board of Trustees must conduct a search and selection process to identify a candidate. As part of that process, the Chair of the Board of Trustees, in consultation with the Chair of the Board of Governors, appoints a search committee of no more than 15 members. Among other things, the search committee is responsible for "vetting applicants" and "recommending an unranked list of applicants who are qualified." The Board of Trustees then selects a "final qualified candidate . . . as president-elect for recommendation to the Board of Governors for confirmation."
While the regulation states that a Board of Trustees and its search committee may use the services of a search firm or consultant for the search and selection process, it lacks a specific procedure for ensuring compliance with the Sunshine Law. In your request, you state that, in some instances, search committees have used search firms to "conduct a preference survey from committee members, outside of a meeting and off the record, in order to rank and narrow the pool of applicants, and streamline the discussion of applicants, at a future meeting." You describe a "survey process" wherein committee members anonymously rank applicants, after which the search firm "privately" collects the rankings, determines which candidates are the top candidates, and presents the order of ranked applicants at a future meeting. You question whether such a practice is consistent with the Sunshine Law.
Legal Framework
The Florida Constitution states as follows:
All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public.
These provisions give Floridians a right of access to governmental proceedings. For decades, courts have recognized that meetings of public bodies must occur in public, as such meetings should be "a marketplace of ideas." For this reason, the Sunshine Law applies to any gathering of two or more members of the same board to discuss any matter that might foreseeably come to that board for action.
Advisory Boards
The Sunshine Law may apply to advisory boards or committees that a public agency creates. The primary test to employ when determining whether the Sunshine Law applies to such boards is whether the board has been delegated "decision-making authority," or only possesses mere "information-gathering or fact-finding authority." Importantly, the power to make recommendations may qualify as decision-making authority even though the entity delegating that authority has the power to reject the recommendation. In 2021, for example, the Second District Court of Appeal determined that textbook evaluation committees, which a superintendent had created pursuant to school board policy concerning recommendations of textbooks, possessed sufficient decision-making authority even though only the school board could make the final decision to approve textbooks. While this broad approach to the Sunshine Law may seem counter-intuitive, courts have concluded that "the potential for rubber-stamping" and "circumvention of the Sunshine Law" may justify treating a body authorized to make recommendations as if it has received a delegation.
Exemptions
The Legislature is authorized to establish, by general law passed by two-thirds vote of each house, exemptions from the Sunshine Law's open meeting requirements. Any such legislation must state with specificity the public necessity that justifies the exemption, which must not be broader than necessary to accomplish its stated purpose. Pursuant to the fundamental principle that the Sunshine Law requires openness, each exemption expires after five years unless the Legislature enacts an extension of it.
To apply an exemption and hold a meeting outside the public domain, the entity holding the meeting must comply with all conditions specified in the exemption. When an exemption does not apply due to lack of compliance with its conditions, the requirement to hold meetings in a public domain and pursuant to the requirements of the Sunshine Law remains effective: when compliance with an exemption is lacking, boards must proceed as though the exemption does not exist.
Evasive Devices
Courts consistently interpret the Sunshine Law to prohibit "evasive devices" designed to circumvent open government. In Blackford v. School Board of Orange County, for example, the Fifth District Court of Appeal held that the Sunshine Law applied to a series of meetings between a school superintendent and individual members of a school board because the meetings occurred in succession in order to avoid public deliberation. The single meetings, the court held, amounted to "de facto meetings" of the school board. The court recognized that the school board had not engaged in a "willful violation" of the Sunshine Law, but rather "an attempt [n]ot to violate it"; regardless of this lack of intent, the court held the board violated the Sunshine Law because the individual discussions resulted in de facto meetings by two or more members of the board at which official action was taken. Similarly, in Leach-Wells v. City of Bradenton, the Second District Court of Appeal held that a committee's task to "short-list" vendors' responses to a request for proposal was a meeting to which the Sunshine Law applied. The court recognized that the committee did not intend to evade the Sunshine Law and that committee members "never discussed [the] task with one another and never held any secret meetings" but that, because committee members' individual evaluations were tallied and acted upon, the action of winnowing down proposals should have occurred at a public meeting under the Sunshine Law.
Analysis
The Sunshine Law applies to the search committees that you describe in your request for an opinion. The Board of Governors' regulations provide as much. For example, they require a search firm hired by such a committee to "demonstrate its ability to become familiar . . . with Florida's Sunshine laws." Moreover, according to the regulations, search committees evaluate various candidates for leadership positions and recommend, after "vetting" each applicant, the qualified applicants the board should consider. Under the authorities discussed above, this process renders search committees an advisory committee subject to the Sunshine Law.
Similarly, because the Sunshine Law applies to matters that could foreseeably come before the decision-making body, it applies to a search committee's deliberations regarding the ranking of candidates. The penultimate action of vetting and ranking candidates or options foreseeably, and likely inevitably, leads directly to the search committee's ultimate recommendations of certain candidates. Such a conclusion is consistent with how courts have treated analogous issues. For example, the Fourth District Court of Appeal held in Transparency for Florida, Inc. v. City of Port St. Lucie that the Sunshine Law applied when the city attorney polled city council members about a severance agreement "leading up to [a] meeting" at which members reached a decision to approve the agreement. The court explained that the frustration of all evasive devices "can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion … relates to any matter on which foreseeable action will be taken." Similarly, the Third District Court of Appeal held in 1997 that the Sunshine Law applied to a purchasing director's act of "weed[ing] through the various proposals, to determine which were acceptable and rank them accordingly." This conclusion is consistent with Leach-Wells, in which the Second District Court of Appeal held that the task of creating a short list of vendors' proposals was an action to which the Sunshine Law applied, as it led to the ultimate decision.
It follows from the above that the process you describe in your request violates the Sunshine Law. Specifically, you describe a survey process wherein committee members anonymously rank applicants by providing their feedback to a search firm. The search firm then collects the rankings and presents the order of ranked applicants at a meeting in order to eliminate or curtail discussion at the meeting. As a result, committee members do not disclose to one another their preferences for candidates in response to the survey. This process is inconsistent with the Sunshine Law because it uses an evasive device to circumvent public deliberation. In fact, it appears that the very purpose of the process you describe is to inject secrecy into the deliberative process.
To be sure, section 1004.098, Florida Statutes, which the Legislature enacted in 2022, contains an exemption that permits state universities and Florida College System institutions to hold closed-door meetings in limited circumstances, pursuant to certain conditions. With regard to the open meetings requirements of the Sunshine Law, the statute provides that any portion of a meeting held for identifying or vetting applicants for the position of president of such university or institution is exempt from the requirement to hold a meeting open to the public. But the statute specifically requires recording any closed portion of any such meeting and provides an exemption from public records disclosure requirements for the recording. In other words, the statute assumes discussion will occur when a search committee begins to consider applicants and treats that discussion as subject to the Sunshine Law. It merely provides that such discussion may occur outside public view so long as it occurs on the record.
Conclusion
Based on the foregoing, unless and until judicially or legislatively determined otherwise, I conclude that the acts of members of a presidential search and selection committee evaluating and ranking candidates are actions to which the Sunshine Law applies. Florida's Government in the Sunshine Law does not permit members to use anonymous communications with an intermediary search firm about their preferences for certain candidates when such communications are subject to the Sunshine Law and the search firm gathers such input in lieu of the members' discussion. Overall, in the absence of an applicable exemption, the Sunshine Law prohibits ranking that occurs by way of anonymously surveying and organizing members' input, even if those rankings are not a final vote and are only used to replace or limit discussion at a future meeting.
Sincerely,
Ashley Moody
Attorney General