Can a Florida public board meet or approve its minutes electronically without a physical quorum under the Sunshine Law?

Plain-English summary

The attorney for the Capital Trust Agency Community Development Entity asked the Florida Attorney General's office for help drawing the line between a "workshop," "informal discussions," and "formal action" when a board wants to meet by electronic means. He also asked whether approving the minutes of a public meeting counts as "formal action."

Senior Assistant Attorney General Lagran Saunders answered informally. The Government in the Sunshine Law, section 286.011, Florida Statutes, covers any gathering of two or more members of a board where matters that may foreseeably come up for official action are discussed. Those gatherings must be open, noticed, and recorded in minutes. On the electronic-participation question, the office explained that a board member may attend remotely under certain extraordinary circumstances, but a quorum has to be physically present to carry out official business. The physical-quorum requirement is relaxed only for workshops and special meetings where no formal action will be taken; there, electronic media may be used to broaden public access and participation.

On the minutes question, the office concluded that a vote to approve minutes is official action. It relied on two earlier opinions: AGO 2002-40, which observed that a board's official decisions necessarily include voting on them, and AGO 2002-51, which treated adopting minutes as the formal record of a meeting as a step in the decision-making process that the public would be interested in. Because the Sunshine Law requires that minutes be taken and promptly recorded, a vote to approve them is official action subject to the quorum rule.

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.

Common questions

Q: Could a Florida board hold a workshop entirely by video or teleconference under this opinion?
A: At the time, the office said electronic media could be used at workshops and special meetings where no formal action would be taken, as a way to increase public access and participation. The board still had to make sure the workshop did not turn into a forum for actual decision-making.

Q: Did the opinion let a single member call in to a regular meeting?
A: It said a member could attend remotely under certain extraordinary circumstances, but that a quorum had to be physically present for the board to conduct official business. Remote attendance went to the board's ability to act with a quorum, not to whether the Sunshine Law's openness rules applied.

Q: Why did approving minutes count as formal action?
A: The office reasoned that adopting the minutes as the official record is a step in the decision-making process, and that the Sunshine Law's requirement to take and record minutes makes the approval vote an official act of the board.

Background and statutory framework

Florida's Government in the Sunshine Law, section 286.011, Florida Statutes, applies whenever two or more members of a board or commission discuss matters on which official action may foreseeably be taken. Such gatherings must be open to the public, reasonably noticed, and memorialized in minutes.

The opinion is an informal letter, not a numbered formal opinion, so it carries less weight than a formal AGO and is expressly framed as general assistance. It draws the distinction between (1) workshops and special meetings, where the office had recognized that electronic media may substitute for physical presence because no formal action is taken, and (2) meetings where the board conducts official business, which require a physically present quorum. The minutes-approval analysis rests on the office's prior opinions AGO 2002-40 and AGO 2002-51, and on an earlier informal opinion to the Honorable Charles "Sonny" McCoy dated November 29, 2005.

Citations and references

Statutes:

• Section 286.011, Florida Statutes (Government in the Sunshine Law)

Prior Attorney General opinions referenced:

• Op. Att'y Gen. Fla. 2003-41 (remote attendance under extraordinary circumstances)
• AGO 2002-40 (official decisions include voting on them)
• AGO 2002-51 (adopting minutes is a step in the decision-making process)
• Informal opinion to the Hon. Charles "Sonny" McCoy, dated November 29, 2005

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/sunshine-law-workshops-formal-action
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1524

Original opinion text

Mr. Michael J. Stebbins

Capital Trust Agency Community
Development Entity, LLC
504 North Baylen Street
Pensacola, Florida 32501

Dear Mr. Stebbins:

As the attorney for the Capital Trust Agency Community Development Entity, you ask for assistance in determining what constitutes a “workshop,” “informal discussions,” or “formal action” for purposes of conducting public meetings via electronic means. You also question whether the approval of the minutes of a public meeting is “formal action” by a board.

The Government in the Sunshine Law, section 286.011, Florida Statutes, applies to a gathering of two or more members of a board or commission where there is discussion of matters upon which official action may foreseeably be taken. While there is no question that such meetings must conform to the dictates of the Sunshine Law that they be open to the public, reasonable notice be given, and minutes be taken, your questions appear to relate to whether members may electronically participate in a gathering. This office has determined that a member of a board or commission may attend a meeting under certain extraordinary circumstances, but that a quorum of the board or commission must physically be present in order to carry out official business.[1] The physical presence of a quorum has not been required where electronic media technology is used to allow public access and participation at workshop meetings where no formal action will be taken. At workshops and special meetings where no formal action will be taken, this office has found that electronic media technology may be used. The board or commission, however, must be vigilant in adhering to the requirements of the Sunshine Law and ensure that the meetings or workshops using electronic media technology are not forums to undertake formal decisionmaking.[2]

As was previously recognized by this office, the use of electronic media technology to increase public participation in meetings and the use of such media to allow members of a board or commission to participate in a duly noticed public meeting does not necessarily raise Sunshine Law issues, but rather implicates the ability of a board or commission to conduct official business with a quorum. I am not aware of, nor have you directed my attention to, any authority which exempts a vote to approve the minutes of a public meeting from the quorum requirements. In Attorney General Opinion 2002-40, this office observed that the official decisions or acts taken by a board in carrying out its duties would necessarily encompass voting on such actions. Moreover, in Attorney General Opinion 2002-51, this office concluded that the adoption of the minutes of a city commission meeting as the formal record of that meeting would appear to be a step in the decisionmaking process in which the public would be interested, such that a vote on the concurrence and revisions of the members should be taken at a public meeting. Inasmuch as the Sunshine Law requires that minutes of public meetings be taken and promptly recorded, it would appear that a vote to approve such minutes would constitute official action of a board or commission.

I trust that these informal comments will be of assistance to you in resolving the questions you have raised.

Sincerely,

Lagran Saunders
Senior Assistant Attorney General

ALS/tsh

[1] See Op. Att’y Gen. Fla. 2003-41.

[2] See Inf. Op. to The Hon. Charles “Sonny” McCoy, dated November 29, 2005.