HomeMy WebLinkAbout07282007RETREATCC an' of
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HOME OF PELICAN ISLAND
SEBASTIAN CITY COUNCIL
RETREAT/ WORKSHOP
MINUTES
SATURDAY, JULY 28, 2007 - 9:00 A.M.
SEBASTIAN YACHT CLUB
INDIAN RIVER DRIVE
SEBASTIAN, FLORIDA
1. Mayor Coy called the retreat workshop to order at 9:05 am, followed by the Pledge of
Allegiance.
ROLL CALL
City Council Present:
Mayor Andrea Coy
Vice Mayor Sal Neglia
Council Member AI Paternoster
Council Member Dale Simchick
Council Member Eugene Wolff
Staff Present
City Manager, AI Minner
City Attorney, Rich Stringer
City Clerk, Sally Maio
Mayor Coy said for the record we are audio taping the workshop, read an excerpt from and
distributed to each member an Attorney General Opinion relative to participation in meetings
and allowing the Mayor to set reasonable rules for orderly conduct of meetings without
violating someone's First Amendment rights (see attached). She also distributed to each
member a Notice of Claim filed the previous day in City Hall by Damian Gilliams, Joe
Scozzari and Julie Scozzari alleging violation of their First Amendment rights (see attached).
Mayor Coy said public comment will be allowed at the end of the workshop and Vice Mayor
Neglia recommended each speaker be allowed three minutes. Mayor Coy said she would
rather address during the Public Comment period.
Retreat Workshop
July 28, 2007
Page Two
2. CHARTER OFFICERS
(Charter Language Designation, Appointment and Removal Procedures)
a. City Clerk
i. Council Direction for Role/Function of City Clerk
ii. Evaluation Process
3-26 (Contract, Charter/Code Provisions, Duties List, Evaluation Criteria)
b. City Attorney
i. Council Direction for Role/Function of City Attorney
ii. Evaluation Process
27-44 (Contract, Charter Provision, Evaluation Criteria)
c. City Manager
i. Council Direction for Role/Function of City Manager
ii. Evaluation Process
45-62 (Contract, Charter Provision, Evaluation Criteria)
City Council discussed the Charter Officer evaluation process in general.
In response to Mr. Paternoster, the City Manager explained the evaluation process in place
whereby one month before the date of employment for each officer, an evaluation form is
sent out by HR, they come back to HR and the Officer reviews them, it is encouraged that
Council members sit down with Charter Officers, and as long as they are satisfactory there
is the automatic merit increase, but if a member wants to give more or less they would place
the issue on a Council agenda. The City Attorney said the COLA is in the contract as is
provided to CWA employees. He said the merit is voted on by the Council if they want to
give more than or less than 3%.
Mr. Paternoster read from the Attorney's contract regarding evaluation and asked if this
required a public Council meeting.
The City Clerk said Charter evaluations were done publicly until about three years ago,
when Council made a motion to change the process to the process just explained by the
City Manager.
Mr. Paternoster read from Attorney General Opinion 89-37 and 93-90 (see attached) relative
to the evaluation process being subject to the Sunshine Law. He asked the City Attorney, if
he is interpreting it properly, this process has to be done at a public meeting.
The City Attorney stated this is saying you can't skirt the Sunshine Law by saying
"everybody send in your number and we'll average them" or some other type of thing where
you come up with a number outside of the Sunshine. He said a couple of years ago Council
voted, and it is subject to change at any time upon three votes, that in the absence of
unsatisfactory evaluations there would be an automatic three percent after the evaluation
date, which is the CWA standard merit increase, unless there was an
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Retreat Workshop
July 28, 2007
Page Three
indication from Council that there was dissatisfaction or that some Council member
specifically brought it forward. He said this was done by a motion and vote of Council.
Ms. Simchick said she was concerned about newly elected officials having to evaluate a
Charter Officer right after election to office and that Council should be goal setting for each
Officer. It was noted the Charter Officers' evaluation periods are -City Attorney, April -City
Manager, June -City Clerk, October based on their employment anniversary in accordance
with employment contracts.
Discussion took place on evaluating all atone time and moving the time away from the
election which is now in November.
Mr. Wolff said clear direction is missing and agreed with the need for goal setting.
The City Clerk said the majority of Council members have not come to her during the
evaluation to speak about her performance and she felt that this is a very important part of
the process and is supposed to be done. She added that sometimes evaluations are simply
not done.
She said she believed the reason that the existing process was put in place was because for
many years, Council was typically giving each Officer the same 5% or 5'/z % merit
increases each year on top of COLA every year at a public meeting and it seemed they did
this so as to provide the same to each and not hurt anyone's feelings.
The City Attorney added that sometimes a majority of evaluations didn't come in until four
months after the evaluation time. He said currently there is a presumption that you are ok
unless there is a negative.
Mr. Paternoster said on the form there is a space for an increase percentage, and asked if
this recommendation is not a vote and how can it be an official recommendation if there is
no vote on it which takes place in the public.
The City Attorney said the form predates the current policy and unless there is
unsatisfactory or someone brings it forward there is an automatic 3% the same as CWA.
Discussion followed on establishing a public meeting to establish Charter Officer goals.
Mayor Coy asked if this would be an executive decision of Council and if it would be subject
to public input. The City Attorney said it would be executive and would not have to be
subject to public input.
Ms. Simchick said that Council could possibly allow public comment, not debate, at the end
of its business, and noted we are getting into too much debate with the public.
Mr. Wolff recommended that Council could allow the public to speak on this issue at the
beginning of the meeting because Council might hear something it hadn't thought of. Mr.
Paternoster agreed with this.
Retreat Workshop
July 28, 2007
Page Four
Mr. Paternoster said each new Council member should have at least six months before they
have to prepare an evaluation.
Mr. Neglia suggested doing all three evaluations at once and recommended October.
It was the consensus of Council to evaluation all three at one time, that it would take at least
sixty days to become familiar with the Council role, and discussion took place on
establishing a schedule for the goal setting and evaluation process. Mayor Coy suggested
goals in January and evaluation in July.
Ms. Simchick said she will not turn her written evaluation in until she has an oral
conversation with the Officer, because of her concern for people reviewing the evaluations
that are handed in to HR and then coming to another Council member to tell him or her what
the others wrote in their evaluations. She felt that these people were breaking the sunshine
law by doing this.
Mr. Wolff asked if he has a beef with a Charter Officer, when does he get the opportunity to
talk to other Council members.
Mayor Coy recommended private issues be discussed with the Officer and then Council can
make policies at its meetings.
Mr. Wolff asked for example, what if he found out an Officer was not returning calls, how
would he convey that to other members. The City Attorney said a member of Council can
send an a-mail to the Officer and copy it to other members of Council. Mayor Coy said it
can also be addressed under his or her matters.
Mr. Paternoster said, though you are trying to get away from tearing each part of the
evaluation apart, it is going to have to be that way in an open meeting. Mayor Coy said the
evaluation is not as important as the goal setting meeting and then we as Council members
use that in our evaluations.
Ms. Simchick asked then how do you get your average, describing the system she used.
Mr. Paternoster said the evaluation process has to be done in public, and Ms. Simchick
agreed. She suggested the evaluations should be done one month after the goal review
meeting.
The City Manager said he really thinks the Sunshine Law hurts this process and there is no
good way, there needs to be some private discussion, in other states the process has been
done at an executive session. He said the form has its place, each member of Council
should do some type of communication, and then there needs to be a culmination
collectively of what you all think and Florida does that in the Sunshine.
The City Clerk said she greatly appreciates aone-on-one discussion, is not fond of being
publicly evaluated though she knows it comes with the job and agrees with them as long as
members of Council can be very honest in their evaluations.
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July 28, 2007
Page Five
It was the consensus of Council to publicly set goals in January for each Charter Officer and
then publicly review the goals in July and reset them as necessary.
Mayor Coy called recess at 10:07 am.
Mayor Coy reconvened the workshop at 10:15 am and the City Clerk started SIDE II at this
time. All members were present.
Mayor Coy recapped that Council has agreed that in January and July Council will, at public
meetings, set and review Charter Officer goals.
Discussion took place on the evaluation process. Mr. Paternoster asked the City Attorney to
check out the AGO he had read earlier, which states the review and appraisal process
needs to be done in an open forum according to 286.011.
It was the consensus of Council to evaluate all three officers at one time.
The City Attorney advised that this will take an amendment of each Officer's employment
contract.
It was the consensus of Council to recommend the following schedule:
January -set goals
June -submit evaluations at a special meeting in June
July -review goals and reset them if necessary
Mr. Paternoster clarified that this process does not circumvent that each Council member
can sit down individually with a Charter Officer, and asked how this process would be
adopted, and the City Attorney said it could be done by resolution or ordinance amending
Chapter 2.
It was the consensus of Council that Human Resources should submit the forms to Council
six weeks before the Special Meeting in June.
It was also the consensus of Council that they can use the forms provided, write their own
narrative, or whatever each member deems most appropriate. Mr. Paternoster suggested
writing a narrative under each of the goals.
The City Manager asked if there is an assumption that the COLA stays the same for the
Officers and are we are talking just about the merit.
Following some discussion about the fact that Charter Officers receive the same COLA as
other employees, and the fact that some taxpayers do not receive COLA, it was decided that
the Human Resources Department should provide the COLA percentage for a particular
year when providing the evaluation forms to Council.
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July 28, 2007
Page Six
3. COUNCIL MEETING OPERATIONS
a. Agenda Preparation/Prioritization
i. Examination/Definition of Headings (Coy)
63-78 (Currently Utilized Agenda Headings, R-07-18, Procedures Since 82)
City Council reviewed the agenda headings and explanations therefor as provided in
the packet.
Agenda Modifications, Additions or Deletions
It was the consensus of Council that the current procedures resolution (R-07-18)
should read "Modifications and additions need unanimous vote. Deletions do not
apply." (This will require an amending resolution)
Proclamations, Announcements, and Presentations
Mayor Coy noted we have been allowing a dialogue, action under presentations and
public input and this should not be allowed unless a member of Council brings it back
as an action item or unless an issue is time sensitive.
The City Attorney said that typically an item is first listed under Presentations when
someone has information to provide to Council and then if action is needed it is listed
on the agenda as a follow up item or a Council member can make a motion to take
action on it.
The City Manager said he was concerned Council is limiting itself from being reactive
if it needed to take action.
The City Clerk advised that the heading Presentations originally was created for
someone to make a presentation to the City or for the City to make presentations
such as certificates and were not related to City "issues".
The City Manager said maybe these issue matters should be under New Business or
Introduction of New Business from the Public. The City Attorney advised that
Council can currently pass a motion to suspend rules with four affirmative votes and
then could take action on an item under Presentations.
It was the consensus of Council that Presentation is defined as someone giving an
award to the City or the City giving something.
The City Manager discussed the possibility of changing the title of Introduction of
New Business from the Public to Public Input. Ms. Simchick said maybe Public
Input/Information.
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July 28, 2007
Page Seven
Mr. Paternoster asked if members of Council could make brief and timely
announcements at this time rather than waiting for Council Matters.
Mr. Wolff suggested important date sensitive announcements can be provided ahead
of time and posted during Council meeting breaks on Channel 25. Ms. Simchick said
these notices can be placed on Channel 25 at any time.
The City Clerk noted that MIS would need these at least the day before the meeting.
Ms. Simchick said maybe the announcements could be written and handed to the
Mayor for her to read.
It was the consensus of Council that Council could make brief general
announcements during that time.
Council agreed with changing the heading to "Proclamations, Presentations and
Announcements".
Consent Agenda
Discussion but no changes.
Committee Reports/Recommendations
Mayor Coy requested clarification as to whether actionable items should be listed
here. The City Clerk noted that Committee appointments are listed here.
The City Attorney said it would be better to put the item on an agenda before action
is taken because it gives the public time to see what the report is and staff time to
review the report.
It was the consensus of Council that this be changed to "Committee Reports and
Appointments" and that it would be for City Committee reports to Council, Council
member reports on their County and Regional meetings, and City Committee
appointments. It was also the consensus of Council that there would be no public
input on Committee Reports.
Unfinished Business
Discussion but no changes.
Mayor Coy called recess at 11:15 am.
Mayor Coy reconvened the workshop at 11:28 pm and the City Clerk started SIDE III
at this time. All members were present.
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Page Eight
Introduction of New Business from the Public
Ms. Simchick read from public input forms and procedures from Indian River County,
Fellsmere and Vero Beach. She recommended adopting some of these procedures,
and said no props such as hats, etc. should not be allowed. She said we want
respect.
A lengthy discussion took place on input procedures, signup sheets and whether
time limits should be imposed. Ms. Simchick noting Indian River County and Vero
impose three minutes, and Fellsmere and Indian River Shores impose five minutes.
Mr. Paternoster said he had championed elimination of time limits and it would not sit
right with him or people he represented to put it back into effect. He said the
average person speaks about four minutes.
Ms. Simchick said the grandstanding that has been going on has to stop and the
props have to end, and if you want respect you have to give it. She discussed
interrupters and people who want to put fifteen items on the agenda.
Mr. Wolff said Council should still welcome someone saying things that we don't like
to hear because it is so important to hear that other side.
Mayor Coy said a lot of times people are not discussing issues but are discussing
personal vendettas against people.
Ms. Simchick again read from Fellsmere procedures regarding not allowing personal
and slanderous remarks (see attached).
Mayor Coy recommended a three minute time limit with three votes to extend.
Mr. Neglia agreed that grandstanding has to stop, and cited the positive input
received during the Fleming Street issue, that people should be allowed to raise their
hand to be recognized but have a three minute limit.
Mr. Wolff said we need to allow responses to questions and a member of the public
should be allowed to request information. Ms. Simchick said the public should be
addressing Council and then Council can ask the City Manager to look into an issue.
Ms. Simchick Council should be protecting the Charter Officers from badgering and
answers from the City Manager can be obtained by phone calls.
Mr. Wolff said he recognizes we are not getting through meetings, but we don't want
to be too authoritarian, though we need to try to stop the circus atmosphere.
Retreat Workshop
July 28, 2007
Page Nine
Council debated whether three or five minutes was more appropriate and decided
that they will decide the time at the next regular meeting. Ms. Simchick wanted
assurance we will still adopt some language tracking Fellsmere's procedures for
public participation (see attached). She also suggested prohibiting props or items to
be carried to the podium without approval.
Mayor Coy added political campaigning and shirts and paraphenalia.
It was the consensus of Council to bring back action on limiting, public input to three
or five minutes for all public input.
Mayor Coy said she would like flexibility to stop meetings before the end to allow
Council members or Charter Officers to provide input that may be time sensitive.
ii. Minimize Proclamations/Certificates (Wolff)
79 (No. for 2006)
Mr. Wolff asked if we could get more creative with proclamations to shorten time
spent on them at meetings.
Ms. Simchick said she would still like to recognize outstanding citizens.
It was the consensus of Council that perhaps long proclamations can be synopsized
by the City Clerk prior to reading by the Mayor.
iii. Time Sensitive Issues (Coy
Mayor Coy said if something is not time sensitive she would recommend not adding
it to a full agenda.
The City Clerk changed to SIDE IV at 12:30 pm.
Mayor Coy said it is her goal to finish meetings, so there will be no carryover items.
Ms. Simchick suggested if something is really big it be placed on a Special Meeting
agenda.
Mayor Coy suggested that an item note specifically its time requirement.
Mr. Wolff suggested organizing the agenda to put more important and time sensitive
issues first.
Council recessed for lunch at 12:38 p.m.
The workshop reconvened at 1:50 p.m. All members were present. (Still on SIDE IV)
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Page Ten
b. Public Input Issues
81-83 (Hudson Article)
i. Reconsider Time Limit (Neglia)
This item was considered previously.
ii. Move Introduction of New Business Further Up on Agenda (Paternoster)
Mr. Paternoster recommended moving IONBFP forward on the agenda, but after
some Council discussion relative to meeting business, public priorities, and
attendance by elderly people who have to wait, he agreed to hold his
recommendation for sixty days until Council assesses how some of the other
changes made as a result of today's discussion will work out It was decided to place
this item on an agenda sixty days from now as recommended by Mr. Neglia
(September 26, 2007).
c. Public Requests
i. Introduction of New Business from the Public vs. Presentations (Minner)
ii. Reconsider Sign-up Sheets (Maio)
85 (Indian River County Form)
This issue was considered previously.
d. Councillssues
i. Civility -Public and Council Expectations (Coy)
ii. Council Function -Business or Politics? (Coy)
Mayor Coy said although we are politicians we are not a political forum, but are
conducting business meetings. She said we have stepped over the edge to making
political speeches from the floor and would like to hear other Council members'
feelings on the issue, stating we need to be civil to the public and they need to be
civil to us.
The City Attorney said Council cannot stifle things because it is a personal attack
and they don't like it, but a personal attack that is not going toward the business of
the City is inappropriate, citing case law relative to this issue. He also cited a case
whereby Cocoa prohibited campaigning at the podium and it was upheld.
Mr. Wolff said when someone comes to the podium respect has to be given, and it is
up to Council to set the bar professionally, stating that Council cannot lower itself to
people's values who come before us. He said when he first started coming to
meetings, he felt there were two camps in Sebastian and the camp you were in
determined how you were treated. He said this Council got off to a bad start, said
people can disagree but can get along and it is sad to see bad relationships on
Council. He urged Council to put the past behind, get a fresh start, agree to disagree
and be civil.
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July 28, 2007
Page Eleven
Mr. Neglia said meetings have been getting better and he would like to see this
continue.
Mayor Coy said she needs help from Council in enforcing rules so she isn't always
the bad guy and that she wants Council to be a role model.
Ms. Simchick said we have been referred to as the "gladiator pit", and if everyone
plays fair and if rules are being followed it will go nice. She extended an olive branch
and said she would like to see an all around new tone.
Mr. Paternoster said five people have different mind sets, we have to practice what
we preach, it is a privilege to serve the public and not the other way around, need to
be tolerant of one another, and questioned the use of point of order at meetings. He
said he would like to see more civility displayed toward the public.
Mayor Coy said to be fair it is only two people and not the general public we serve
that we are talking about.
Mr. Paternoster said every City has instigators and while everyone is saying we
should play nice with each other, we should develop a thicker skin and not let
emotions take over.
Mr. Wolff said Mayor Coy did a wonderful job at the last meeting and did not take the
bait.
The City Attorney said it is stated within Roberts Rules of Order that it is truly
designed for larger bodies and in application to small, collegial bodies they often
times take a more relaxed approach, and if Robert Rules is impeding business,
Council can feel free to suspend the rules.
Mr. Wolff said interruption of speakers is not appropriate.
Mr. Paternoster said our procedures states that we will follow Roberts Rules of Order
as a general guideline. He said maybe the City Attorney can put something together
to guide Council and the public as to the procedures we are following.
The City Attorney said with a small body like this, as long as it doesn't interrupt the
flow, it is probably okay to offer a point of information while someone is speaking,
and said the key word in the City's procedures resolution is that Roberts Rules will
be followed as a "general" guideline, and not strictly.
Mr. Wolff said we can all agree to be very sensitive to the person who has the floor
going forward from today and see if that works.
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July 28, 2007
Page Twelve
Mr. Paternoster said we expect that from the public but we are not portraying it, and
said he was asking for a set of guidelines and now understands the we are not going
to operate by any type of guidelines unless it is convenient and now knows the game
he is in.
The City Attorney said it states in Roberts Rules if the meeting is flowing smoothly
you don't need to stop.
The City Clerk started SIDE V at 2:47 pm.
The City Attorney said the only thing he had any concern about when he came to
Sebastian was the Mayor making motions. In response to Mr. Paternoster, the City
Attorney said the AGO's are simply opinions and do not set guidelines.
Mr. Paternoster recommended that the City Manager not schedule Executive
Sessions on the same day as Regular Meetings because he does not want to be
rushed.
Mr. Paternoster said the City Attorney is referred to by the general public as the sixth
Council member and influences Council deliberations when he provides input.
The City Attorney said it is his obligation to let Council know all the alternatives
available before it makes a decision and sometimes he provides historical
information that may have an impact on a decision.
Ms. Simchick said maybe before Council action, Council could ask if there is
anything from legal, to which the City Attorney responded that it would then seem he
was more acting as the sixth Council.
Mayor Coy said she hoped he would jump in if they were going down an illegal path.
The City Attorney said he would more likely advise each member in a recess if that
was the case.
Mayor Coy said if someone wants to bring Roberts Rules back for discussion they
should put in on an agenda.
e. Consensus vs. Voting
Mayor Coy clarified that if Council wants to give some direction it is by three votes or
by consensus of Council.
The City Manager requested that Council give clear direction to him by consensus of
Council and it is reflected in the minutes.
Mr. Paternoster asked what was happening with the Charter Officer evaluations that
are hanging in the balance. The City Attorney said his had already passed by
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July 28, 2007
Page Thirteen
submission of a satisfactory evaluation and he had received his 3% merit in April.
The City Manager said he had received three satisfactory evaluations and also
received his 3% merit.
Mr. Paternoster asked the City Attorney to check Florida statutes to see if it is
necessary to have a vote of City Council to approve salary increases for Charter
officers or if our procedures are satisfactory. The City Attorney said he thought our
procedure was good because there was already a specific number voted upon at an
open meeting.
Mayor Coy called recess at 3:00 pm.
Mayor Coy reconvened the workshop at 3:15 pm. All members were present. The
City Attorney left the workshop at recess.
4. GOALS AND OBJECTIVES
Council decided to move on to Affordable Housing.
a. Council Policy Directives
i. Annexation
ii. Affordable Housing (Simchick)
Ms. Simchick said she wanted to introduce this to put it on the table. She said she asked the
Ruth Meyer, Coalition of Housing, to give an overview of what they do, send a packet to
Council, the City Manager and City Attorney and then we can review and she calf the City
Manager for a presentation.
It was decided to skip to Capital Projects and then short term and long term goals.
iii. Taxation
iv. Overlay Districts
v. General Service Expectations
b. Capital Projects
The City Manager said he was still waiting for CIP recommendations from Council members,
and he will be bring the CIP issue back in August.
c. Short Term Goals
Mr. Wolff said he would like to see monthly updates from the City Manager including people
he had been contacted by. He said he would like to see updates from the City Attorney
relative to his contacts and litigation updates.
Mr. Paternoster asked the City Attorney to provide case law and statutes when he is
bringing an issue to Council rather than Council having to research.
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July 28, 2007
Page Fourteen
Mr. Wolff asked if the Council agenda packet can stay on the website after the meeting for a
short time, and the City Clerk advised that the packets are posted to Laserfiche on the
website immediately and stay there.
The City Clerk said she would like to see more information on the City website, such as
agendas for all boards. Mr. Wolff said he does find some frustration when he is seeking
information and will make some specific notes. The City Clerk said she understands that
MIS is very busy and if departments don't give what is needed MIS is not going to beg for
them.
Mr. Paternoster asked the City Clerk to follow up with a telephone message when she sends
out important information by a-mail.
Ms. Simchick asked if a video of meetings can be played on the website, and the City Clerk
said that she had looked into how the County was doing it, but found out from MIS that a T1
line is needed at a cost of $800 per month to be able to do this. She said we are doing the
best we can with what we have.
Ms. Simchick said maybe we can talk about this at budget time.
d. Long Term Goals
Ms. Simchick asked everyone to think about vision and where we want to be and asked to
add an item to the next agenda entitled "Vision/Wish List" to agree on a format to follow.
5. PUBLIC COMMENT
Joe Scozzari, Thornhill Lane, Sebastian, said the City Attorney is giving Council bad
information;discussed automatic raises for Charter Officers; asked if Council will have a
three minute time limit to speak; said one vote of Council should be enough to ask a
member of the public to continue speaking; told Ms. Simchick to stop talking about Indian
River County; said Council is not there to protect staff but to make sure they do their job;
that it is really rough to reach Mayor Coy and that she misled him early on regarding a code;
apologized for any disrespect and asked to start anew and that he will give her the same
respect she gives him.
Todd Klitenic said we should go to three cuts for Conlon. He was advised that issue is not
on this agenda and he could bring it up at the next regular meeting.
Chuck Lever, Sebastian, said the City Manager has made several mistakes in his
estimation, including the airport mobile home, always looking for direction from Council.
Mayor Coy said Council has set a time frame for evaluations. Mr. Lever said when Council
is in violation of the Sunshine Law they are subject to fines and penalties.
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July 28, 2007
Page Fifteen
Mr. Wolff thanked Mr. Lever for bringing the information about public input at workshops to
Council's attention, Council asked Mr. Stringer to look into it and he did and public input was
provided for. Ms. Simchick said this was an Attorney General opinion only, Council decided
it was in the best interest but did not acknowledge that it was required, but thanked him for
his information. Mr. Lever responded that it is also case law.
Jay Dunaway, recommended development of a community enterprise objective to assist the
Council in seeking information and doing legwork that they may not have time to do.
Mr. Wolff agreed that it is time for a citizen volunteer group.
Mr. Dunaway cited the need for a community center, and offered his assistance in fact
finding. He said he would start the ball rolling to encourage City unity for our community.
6. Being no further business, Mayor Coy adjourned the Workshop at 3:58 pm.
Approved at the August 8`h, 2007 Regular City Council meeting.
V`J .
Andrea Coy, Mayor
ATTEST•
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Sally A. Maio MC -City Clerk
15
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Florida Attorney General
Advisory Legal Opinion
Number: INFORMAL
Date: January 27, 1994
Subject: Sunshine Law, right of public to participate
The Honorable John Thrasher
Representative, District 19
859 Park Avenue, Suite 108
Orange Park, Florida 32073
RE: SUNSHINE LAW--MUNICIPALITIES--WORKSHOPS--right of public to
participate in meetings and workshops. 3. 286.011, Fla. 3tat. (1993).
Dear Representative Thrasher
Thank you for contacting this office on behalf of a member of the
Orange Park Town Council who has questions regarding the right of the
public to participate in meetings held pursuant to s. 286.011, Fla.
Stat. (1993), Florida's Sunshine Law.
In an effort to be of assistance, I offer the following observations.
The Sunshine Law applies to any gathering where two or more members
of the same board or co~mmissioa gather to discuss some matter on
which foreseeable action will be taken by the public board or
commission. Thus, this office has stated that the following
gatherings are subject to the Sunshine Law; "workshop meetings" of a
planning and zoning commission; [1] "conference sessions" held by a
town council before its regular meetings; [2] "conciliation
conferences" of a human relations board; [3] and discussions relating
to a preaudit report of the Auditor General by the governing body of
a special district.[4]
The Sunshine Law is, therefore, applicable to all functions of
covered boards and commissions, whether formal or informal, that
relate to the affairs and duties of the board or commission. The fact
that a board characterizes business as "nonsubstantive" does not
necessarily remove it from the scope of the Sunshine Law. If the
"nonsubstantive" business xequires the approval or consideration of
the entire board or concerns matters that should appropriately be
considered and discussed by the board, then, s. 286.011, Fla. Stat.
(1993), requires that such business be conducted in the sunshine.[5]
The courts have recognized the right of members of the public to
participate in open meetings and to present their views. The Florida
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Supreme Court has stated that "specified boards aad commissions .
should not be allowed to deprive the public of this inalienable right
to be present and to be heard at all deliberations wherein decisions
affecting the public are being made."[6]
However, while the right of a person to attend a meeting subject to
s. 286.011, Fla. Stat. (1993), has been upheld by courts of this
state, the courts have not expressly addressed the question of the
extent to which a citizen must be allowed to speak. While the
importance of public participation in public meetings has been
recognized, the courts have not set forth any clear standards as to
what extent an agency is required to provide for public participatioa
under the Sunshine Law.
In addition, The Florida Supreme Court has indicated that with regard
to certain types of executive meetings, there may not be a right
under s. 286.011, Fla. Stat. (1993), for a member of the public to
speak. Ia Wood v. Masstosi,[7] the Court examined the applicability of
the Sunshine Law to a staff committee that had been delegated the
authority by the university president to recommend candidates for a
university position. Reviewing the activities conducted without
public input, the Court stated:
"Respondents vigorously contend that opeaing the committee's meetings
would threaten dearly held rights of academic freedom. This Court
recognizes the necessity for the free exchange of ideas in acade~mi.c
forums, without fear of governmental reprisal, to foster deep thought
and intellectual growth We hasten to reassure respondents
that nothing in this decision gives the public the right to be more
than spectators. The public has no authority to participate in or to
interfere with the decision-making process. Were the chilling effect
respondents apprehend balanced against any less compelling a
consideration that Florida's commitment to open government at all
levels, we might agree that the burdens herein imposed were unduly
onerous."[8]
Until the matter is clarified, this office has recognized that when
certain committees are carrying out certain executive functions that
traditionally have been conducted without public input, the public
has the right to attend but may not have the authority to
participate. On the other hand, if a committee or board is carrying
out legislative functions, this office has advised that the public
should be afforded a meaningful opportunity to participate at each
stage of the decision-~A~~ ~.Trcce~~ ~-a~ ,._
A board or commission may adopt reasonable rules and policies to
ensure the orderly conduct of a public meeting and require orderly
behavior on the part of those persons attending. A public board,
therefore, may adopt rules and policies for the orderly conduct of a
meeting that, for example, limit the time an individual has to
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address the board. At meetings where a large number of the public is~
in attendance and may wish to address the board or commission, a
public board may request that a representative or representatives of
each group or faction on an issue, rather than all members of the
group or faction, address the board, provided that such rules do not
unreasonably restrict the public's right of access. However, to the
extent that rules or policies adopted by a public board or comomission
seek to unreasonably restrict the public's participation in, or
attendance at, the meeting, such rule or policy may mall violate the
public access requirement of s. 286.011 Fla. 3tat. (1993).
Although not directly considering the Sunshine Law, the federal court
in Jones v. Heyman[10] recognized that "to deny the presiding officer
the authority to regulate irrelevant debate and disruptive behavior
at a public meeting mould cause such meetings to drag on
interminably, and deny others the opportunity to voice their
opinions." Thus, the court concluded that a major's actions in
attempting to confine the speaker to the agenda item in the city
commission meeting and having the speaker removed when the speaker
appeared to become disruptive constituted a reasonable time, place,
and manner regulation and did not violate the speaker's First
Amendment rights.
Thus, chile the courts have distinguished between executive and
legislative meetings of public bodies for purposes of public
attendance and participation, this office has determined that
workshop meetings of such bodies are generally subject to the
Sunshine Law. However, a town council or other public body may adopt
rules and policies for the orderly conduct of public meetings.
~'`~rust that these advisory comments will be of some assistance to
you and Ms. Griffith, a member of the Orange Park Town Council.
Sincerely,
Robert A. Buttes~vorth
Attorney General
RAB/twd
[1] See, Op. Att'y Gen'. Fla. 74-94 (1974). And see, Nocera v. School
Board of Zee County, Florida, Case No. 91-1828 CA-WCM (20th Cir. Lee
Co., November 25, 1991) (workshop meeting of school board at which
school rezoning or desegregation order discussed subject to Sunshine
Law) .
[2] See, Op. Att'y Gen. Fla. 74-62 (1974).
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[3] See, Op. Att'y Gen. Fla. 74-358 (1974).
[4] See, Op. Att'y Gen. Fla. 73-8 (193).
[5] See, Op. Att'y Gen. Fla. 75-37 (1975).
[6] Board of Public Iastzuctioa of Brossard County v. Doran, 224 So.2d
93, 699 (Fla. 1969). And see, To~va of Palm Beach v. Gradisoa, 296
So.2d 473, 475 (Fla. 1974), in which the Court spoke of a meeting as
being "a marketplace of ideas, so that the governmental agency may
have sufficient input from the citizens xho are going to be affected
by the subsequent action of the [public agency],"; and Krause v.
Reno, 366 So.2d 1244, 1250 (3 D.C.A. Fla., 1979), referring to the
"citizen input factor" and stating that this public input was an
important aspect of public meetings.
[7] 442 So.2d 934 (Fla. 1983).
[8] Id. at 941.
[9] Inf. Op. To David G. Conn, May 7, 1987.
[10] 888 F.2d 1328, 1333 (11th Cir. 1989) .
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'7• z~-7
NOTICE OF CLAIM
Plaintiffs:
Damien Gilliams Together with Joseph & Julia
Scozzari:
V
Defendant:
City of Sebastian ,Mayor Andrea Coy, Richard Stringer:
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Damien Gilliams, residing at 713 Layport Dr Sebastian 32958, Joseph & Julia ~
Scozzari residing at 1401 Thornhill La. Sebastian 32958 plaintiffs reside in the city
of Sebastian currently and have continued to reside in the county of Indian River in
the city of Sebastian.
Defendants: City of Sebastian and Mayor Andrea Coy located within the city of
Sebastian at 1225 Main st. Sebastian 32958
1) In or about the month of November 2006 through July 2007 at 1225 Main St.
,Sebastian and in the city council chambers. Claimants First amendment
rights were violated, in that claimants were dismissed, physically escorted
and removed from the city council chambers by police, claimants were
personally singled out With malice then further were damaged by being
prohibited from speaking after invitation to do so, during a city of Sebastian
council public meeting. Notice was given in objection to the unreasonable
disruption of claimants right to comment on city affairs as taxpayers.
2) Plaintiffs were injured in there mental state, publicly humiliated, defamed
and suffered physical illness in that Plaintiffs were rendered sick and sore
with emotional distress,
3) Defendant: Mayor Andrea Coy, acting in concert with Richard Stringer (city
attorney) did continue to violate the United States Constitution First
Amendment right of freedom of speech and freedom of expression,
guaranteed under the First Amendment to the claimants. Even after notice
was given that they were in violation of claimants Civil Rights.
4) Claimants intend to seek jury award of $5,000,000.00 for past pain and
suffering, future pain and suffering, continued medical treatment via mental
health professionals, or whatever award the court deems reasonable.
5) Other plaintiffs may become a
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party to this action at a later date
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DIVISION 2. MEETINGS*
*Charter references: Meetings of city council, §§ 3.05, 3.09(a).
Sec. 2-41. Public participation.
Yage 1 of 4
Any individual may address the city council during a regular council meeting under the following
agenda headings:
(1) Public hearing. A public hearing for the purpose of hearing comments from the
audience on a topic on the agenda listed under this heading. Individuals desiring to
address the council should raise their hands when the mayor or presiding officer
requests comments from the audience on the particular item.
(2) Public comments. Individuals may address the council on any matter of concern.
Preference will be given as follows:
a. To those persons who have notified the city clerk in writing prior to the council
meeting that they desire to speak and the topic (list any special handicap
requirements).
b. To those persons who have informed the mayor or city clerk at the beginning
of the council meeting that they desire to speak on a specific topic or agenda
item.
c. By raising hands when the mayor or presiding officer requests comments
from the audience.
(3) Procedure.
a. Speakers must come to the lectern and clearly state their name and address
for the record.
b. Special interest groups should select one representative to speak on their
behalf to conserve time and avoid repetition. However, no one will be denied the
privilege of speaking.
c. Afive-minute time limit may be imposed on all speakers.
d. All questions directed to the council must be addressed through the mayor or
presiding officer.
All speakers must address the council as a body, not individually.
f. Personal, impertinent, or slanderous remarks, and applauding, are not
permitted and may result in expulsion from the meeting.
(Ord. . _ - ~, ~ _ _ )
Sec. 2-42. Meeting dates.
The city council shall hold a regular meeting on the first and third Thursdays of each month
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ll1V181UNl. Mr;~'1'1NCiS* Yage "L of 4
unless changed by a majority vote of the council to avoid special conflicts. All regularly
scheduled meetings shall begin at 7:00 p.m. unless otherwise noted.
(Ord. No. 06-14, § II, 2-16-06)
Sec. 2-43. Duty of council members to attend meetings.
Each member of the city council shall attend every meeting promptly at the hour fixed by the city
council unless excused by action of council.
(Ord. No. 06-14, § II, 2-16-06)
Charter references: Vacation of office by councilmembers for failure to attend meetings, § 3.08(b)
(4).
Sec. 2-44. Suspension of rules.
Any rule may be suspended temporarily for special reasons by unanimous consent of the
members of city council present.
(Ord. No. 06-14, § II, 2-16-06)
Sec. 2-45. Temporary absence from meetings.
No member shall absent himself from any meeting for a period of more than ten minutes without
consent of the mayor.
(Ord. No. 06-14, § II, 2-16-06)
Sec. 2-46. Quorum; adjournment for less than quorum.
A majority of the members of the city council shall be necessary to constitute a quorum, but a
smaller number may adjourn from time to time until a quorum is obtained. No official meeting or action
can take place unless a quorum is present.
(Ord. No. 06-14, § II, 2-16-06)
Sec. 2-47. Reading and passage of ordinances or resolutions; require vote for passage.
In acting upon ordinances or resolutions, a proposed ordinance shall be read by title, or in full,
during at least two separate meetings, a proposed resolution shall be read by title, or in full, at one
meeting. Vote on final passage of ordinances shall be taken by yeas and nays on the call of the roll.
Votes on passage of resolutions shall either be by yeas and nays on the call of the roll or by vote
without a roll call at the discretion of the mayor. An affirmative vote of three-fifths of all members of the
city council shall be necessary for the passage of any ordinance or resolution.
(Ord. No. 06-14, § II, 2-16-06)
Sec. 2-48.Order of business.
(a) All business transacted by the city council shall be in the following order:
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ll1Vl~lUNL. MY;~'1'1NCi~* Yage 3 of 4
(1) Call to order.
(2) Roll call.
(3) Pledge of allegiance to the flag.
(4) Invocation.
(5) Proclamations/announcements.
(6) Presentations and awards.
(7) Approval of minutes.
(8) Budget and finance report.
(9) Public hearings.
(10) Public comments.
(11) Consent agenda.
(12) Old business.
(13) Manager's matters.
(14) Mayor's matters.
(15) Council member's matters.
(16) City attorney's matters.
(17) Newbusiness.
(18) Adjournment.
(b) Consent agenda items, if any, shall be listed numerically and any council member shall
have the right to request that an item be removed from the consent agenda and discussed and
voted on separately.
(Ord. No. 06-14, § II, 2-16-06)
Sec. 2-49. Reports to be in writing; filing.
All reports of committees shall be in writing and shall be filed by the clerk of the city council.
(Ord. No. 06-14, § II, 2-16-06)
Sec. 2-50. Resolution of questions of order; limitations on speaking.
The mayor shall decide all questions of order without debate at the discretion of the mayor. No
member may speak more than twice on the same question at any meeting, not for more than five
minutes at any time.
(Ord. No. 06-14, § II, 2-16-06)
Sec. 2-51. When yeas and nays are to be taken by roll call.
The yeas and nays on any question shall be taken by roll call at the request of any member of
the city council or the mayor.
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ll1Vl~lUNL. M~~'1'1N(iS* Yage 4 of 4
(Ord. No. 06-14, § II, 2-16-06)
Sec. 2-52. Reconsideration of questions.
After the decision on any question, it shall be in order for a meeting voting in the majority to
request reconsideration of the question at the same meeting or at the next regular meeting. If the
reconsideration motion is lost, the question shall not be renewed without the unanimous consent of the
city council.
(Ord. No. 06-14, § II, 2-16-06)
Sec. 2-53. Name of person introducing matters to be voted on to be included.
The name of any member of the city council offering any resolution or ordinance shall
accompany such resolution or ordinance.
(Ord. No. 06-14, § II, 2-16-06)
Sec. 2-54. Recording of proceedings.
It shall be the duty of the city clerk to see that the proceedings of every meeting are properly
and promptly recorded and transcribed, as required by state law.
(Ord. No. 06-14, § II, 2-16-06)
Secs. 2-55--2-75. Reserved.
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Advisory Legal Opinion -Sunshine law, employee related mattters Page 1 of 5
Florida Attorney General
Advisory Legal Opinion
Number: AGO 89-37
Date: June 9, 1989
Subject: Sunshine law, employee related mattters
Mr. Warren R. Ross
Acting County Attorney
Charlotte County
18500 Murdock Circle
Port Charlotte, Florida 33948-1094
RE: GOVERI~Il4LNT IN THE SUNSHINE-COUNTIES-BOARD OF COUNTY
COMMISSIONERS-board meetings to interview job applicant, discuss
employee evaluations, conduct job termination interviews,
discuss memoranda on issue before board, subject to Sunshine
Law. s. 286.011, F.S.
Dear Mr. Ross:
You ask substantially the following question:
Does the Government in the Sunshine Law apply to meetings of the
board of county commissioners when:
a) interviewing prospective job applicants for positions
appointed by the board;
b) conducting job evaluations of county employees who answer to,
and serve at the pleasure of, the board;
c) conducting employment termination interviews of employees who
serve at the pleasure of the board; or
d) discussing memoranda prepared by county employees answering
directly to the board.
In sum, I am of the opinion that:
The Government in the Sunshine Law applies to meetings of the
board of county commissioners when:
a) interviewing applicants for county positions appointed by the
board;
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b) conducting job evaluations of county employees Mho answer to,
and serve at the pleasure of, the board;
c) conducting employment termination interviews of county
employees who serve at the pleasure of the board; and
d) discussing memoranda prepared by staff relating to board
business.
The Government in the Sunshine Law, s. 286.011, F.S., requires
that all meetings of a public board or commission at which
official acts are taken be open to the public.[1] The statute
has been held to extend to the discussions and deliberations of,
as well as formal action taken by, a public board or commission.
[2] Thus, the Sunshine Law applies to any gathering where two or
more members of a public board or commission deal with some
matter on which foreseeable action will be taken by that board
or commission. [3]
The discussion of personnel matters by a public board or
commission does not, in the absence of a specific exemption,
remove the meeting from the ambit of s. 286.011, F.S. As the
court in Times Publishing Company v. Willisms[4] recognized,
personnel matters are not legally privileged or insulated from
legislative control. In response to arguments that the public
interest would best be served when matters relating to the
hiring of personnel was accomplished in a closed meeting, the
court stated:
"Regardless of the wisdom of its position and regardless of good
motive on its part, the power or discretion to decide questions
of closed meetings for such purposes is no longer the [public
agency's] to exercise. [A]ppellee, no less than any other
governmental body, is an agency of the public-at-large, and
possesses just so much delegated authority and privileges as the
public (in this case through the constitutional vehicle of
legislation) chooses to give it. The public has chosen to deny
any privilege or discretion in appellee and similar governmental
bodies to conduct closed meetings."[5]
You ask, however, whether meetings of the board of county
commissioners to discuss personnel matters constitute fact-
finding meetings within the meaning of Bennett v. T~arden[6] and
Cape Publications, Inc. v. City of Palm Bay.[7]
In Bennett, the court held that meetings between a junior
college president and advisors for the purpose of fact-finding
to assist the president in the execution of his duties were not
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meetings under the Government in the Sunshine Law. Similarly, in
Cape Publications, the court held that meetings between a city
manager, prospective employees and an advisory committee that
did not have any decision-making functions, were not "meetings"
subject to s. 286.011, F.S.
The advisory committee in Cape Publications attended the meeting
only to ask technical questions and offer comments. The
committee, however, "did no screening, conducted no interviews
and made no recommendations to the city manager"[8] who was
responsible for interviewing and selecting an applicant.
Therefore, since the committee "had the sole function of
assisting [the city manager] with 'fact-finding,' and
because the committee had no decision-making function such as
authority to screen, interview or recommend applicants to the
city manager, the group was not a 'board' within the
contemplation of the Sunshine Law and its meetings mere not
required to be open to the public."[9]
In each of the above cases, it was the responsibility of the
executive, the junior college president or city manager, to take
action. The advisory committees were established only to assist
the executive in fact-finding and not to exercise any decision-
makinq functions.
In the instant inquiry, however, it appears that the meetings in
question concerned matters on which the board of county
commissioners is responsible for taking action. You state that
the positions for which the county commission is interviewing
applicants, evaluating job performance, and conducting
termination interviews, are positions which are responsible to
and serve at the pleasure of the county commission. In
conducting such meetings, therefore, the board of county
commissioners is carrying out the affairs and duties of the
county commission and is not acting as an advisory body
assisting the executive solely with fact-finding. Thus, the
decisions of Bennett and Cape Publications, would appear to be
inapplicable.
As previously stated, the Government in the Sunshine Law is
applicable to meetings of public boards or commissions, such as
the board of county commissioners in carrying out the affairs
and duties of the board. Accordingly, to the extent that the
board of county commissioners is responsible for interviewing
prospective applicants for county employment, conducting job
evaluations or employment termination interviews, or discussing
memoranda prepared by staff on issues which normally come, or
should come, before the board for action or discussion, such
meetings of the board are subject to the provisions of the
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Advisory Legal Opinion -Sunshine law, employee related mattters Page 4 of 5
Government in the Sunshine Law.[10]
Sincerely,
Robert A. Butterworth
Attorney General
RAB/ tj w
---------------------------------------------------
[1] See, s. 286.011(1), F.S., stating that "[a]ll 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, at which official acts are to be taken are
declared to be public meetings open to the public at all times.
.'
[2] See, Times Publishing Company v. Williams, 222 So.2d 470,
473 (2 D.C.A. Fla., 1969) (entire decision-making process
affected by the Sunshine Law).
[3] Board of Public Instruction of Bro~ard County v. Doraa, 224
So.2d 693 (Fla. 1969).
[4] 222 So.2d 470 (2 D.C.A. Fla., 1969).
[5] 222 So.2d at 474.
[6] 333 So.2d 97 (2 D.C.A. Fla., 1976).
[7] 473 So.2d 222 (5 D.C.A. Fla., 1985).
[8] 473 So.2d at 225.
[9] Id.
[10] Compare, City of Sunrise v. News and Sua-Sentinel Company,
14 FLW 1026 (4 D.C.A. Fla., filed April 26, 1989), holding that
a mayor could hold a private meeting concerning the discipline
of a city employee. Finding that the mayor had sole authority
over the discipline over city personnel under the charter and
the city commission had no jurisdiction, either directly or by
review, over such personnel matters, the court held that such
meetings of the mayor are not subject to s. 286.011, F.S.: "This
is not a situation where the [city] commission has such
authority and has designated someone else to exercise the
authority." 14 FLW at 1027.
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Advisory Legal Opinion -Sunshine Law/personnel procedure of hospital district
Florida Attorney General
Advisory Legal Opinion
Number: AGO 93-90
Date: December 13, 1993
Subject: Sunshine Law/personnel procedure of hospital district
Mr. Kenneth C. Jenne, II
General Counsel
North Brovrard Hospital District
Post Office Box 14723
Fort Lauderdale, Florida 33302
Page 1 of 4
RE: GOVERNMENT IN THE SUNSHINE LAW--PUBLIC MEETINGS--PERSONNEL
14ATTERS--HOSPITAL DISTRICTS--SPECIAL DISTRICTS--applicability of
Sunshine Laa to personnel procedure of hospital district. s.
286.011, F.S.
Dear Mr. Jenne:
On behalf of the Board of Commissioners of the North Brovrard
Hospital District, you ask for my opinion on substantially the
following question:
Are the members of the Board of Commissioners of the North
Bro~vard Hospital District authorized to reviev~ the performance
of the district's chief executive officer through a process in
phich each individual commissioner evaluates the chief executive
officer's performance and sends his or her ovritten comments to
the chairman of the board for compilation and subsequent
discussion v~ith the chief executive officer?
In sum:
Pursuant to the special act creating the district, the Board of
Commissioners of the North Brov~ard Hospital District is
responsible for assessing the performance of its chief executive
officer and this reviev~ and appraisal process must be performed
by the board in accordance v~ith the provisions of s. 286.011,
F.S., the Government in the Sunshine Lam.
According to your letter, the North Brovvard Hospital District
(the district) has entered into a five-year employment agreement
v~ith its president/chief executive officer (CEO). This contract
makes provision for salary and annual performance revievrs.
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Pursuant to this agreement, the district and its CEO will "agree
on either the appropriate entity to perform the review or the
appropriate standards by which the review shall be conducted."
You state that, under the agreed upon procedure, members of the
board are to complete individual performance appraisal and
review questionnaires. These individual writtea responses will
be forwarded to the chairman of the board, who will prepare a
handwritten summary of these responses. The chairman will then
meet with the CEO and provide him or her with an evaluation. It
is the preparation of these performance appraisal and review
questionnaires and their submission to the chairman of the board
with which you are concerned.
The North Broward Hospital District was created by special act
of the Legislature in 1951.[1] Section 4 of the act sets forth
the powers of the Board of Commissioners of the North Broward
Hospital District and, with regard to personnel matters,
provides that the board may "appoint and employ a superintendent
and such other agents and employees as said Board may deem
advisable ."[2] Thus, the enabling legislation makes this
power exercisable by the board as a collegial body.
The Government in
that all meetings
official acts are
has been held to
as well as formal
[3]
the Sunshine Law, s. 286.011, F.S., requires
of a public board or commission at which
to be taken be open to the public. The statute
extend to the discussions and deliberations of,
action taken by, a public board or commission.
Generally, meetings of a public board or commission at which
personnel matters are discussed are not exempt from the
provisions of s. 286.011, F.S., in the absence of a specific
statutory exemption.[4] Thus, this office has determined that
the Sunshine Law applies to meetings of a board of county
commissioners when interviewing applicants for county positions
appointed by the board, when conducting job evaluations of
county employees answering to and serving at the pleasure of the
board, and when conducting employment termination interviews of
county employees who serve at the pleasure of the board.[5] In
contrast, when the mayor, as the chief executive officer of a
municipality, rather than the city council, is responsible under
a city charter for disciplining city employees, meetings between
the mayor and a city employee concerning discipline are not
meetings subject to the Sunshine Law.[6]
In analyzing the applicability of the Sunshine Law, The Supreme
Court of Florida has stated that the statute must be construed
"so as to frustrate all evasive devices."[7] Accordingly, this
office has stated that the physical presence of two or more
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Advisory Legal Opinion -Sunshine Law/personnel procedure of hospital district Page 3 of 4
members of a board or commission may not be necessary.[8] For
example, this office has previously determined that the use of a
memorandum by a board or commission to avoid a public meeting
may constitute a violation of the Sunshine Law even though two
members are not physically present. If a memorandum reflecting
the views of a board member on an issue pending before the board
is circulated to other board members with each indicating
approval or disapproval and upon completion of the signatures
the memorandum has the effect of becoming the official action of
the board, there is a violation of the Sunshine Law.[9]
Most recently, in AGO 90-3, a regional transit authority asked
whether a proposed contract could be circulated among the
members of the governing board of the authority for each member
to make comments that could be provided to the other board
members, without violating the Government in the Sunshine Law.
The authority proposed to make the contract with the board
members' comments available to the press and the public and to
discuss the contract at a subsequent public meeting. The opinion
concluded that a proposed contract could not be circulated among
board members for comments to be provided to the other members,
as this would be communication among the board members on an
issue upon which the board would take official action and would
therefore be subject to the Government in the Sunshine Law.
The special act creating the North Broward Hospital District
makes personnel matters the responsibility of the board of
commissioners of the district as a collegial body and such a
meeting of a board or commission would be subject to the
Sunshine Law.[10] The board cannot abrogate or modify that
responsibility by contract or rule. The written comments of
board members evaluating the performance of the CEO communicate
information to the chairman of the board, who is also a board
member, and such "discussions" must comply with the requirements
of the Government in the Sunshine Lavr .
Thus, it is my opinion that the review
assessing the performance of its chief
conducted by the Board of Commissioners
Hospital District in a proceeding open
prescribed by s. 286.011, F.S.
Sincerely,
Robert A. Butterworth
Attorney General
and appraisal process for
executive officer must be
of the North Broward
to the public as
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Advisory Legal Opinion -Sunshine Law/personnel procedure of hospital district Page 4 of 4
~tAa/tit
[1] See, Ch. 27438, 1951, Lams of Florida.
[2] While s. 4, Ch. 27438, Laws of Florida, has been amended a
number of times, the pertinent language relating to the
appointment and employment of personnel has not been changed.
See, Chs. 80-464, 80-468, 84-399, 86-369, 90-485, and 91-351,
Laws of Florida .
[3] See, Times Publishing Company v. i~illiams, 222 So.2d 470,
473 (2 D.C.A. Fla., 1969) (entire decision-making process
affected by the Sunshine Law).
[4] Id.
[5] See, AGO 89-37.
[6] See, City of Sunrise v. News and Sun-Sentinel Company, 542
So.2d 1354 (4 D.C.A. Fla., 1989).
[7] Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla.
1974) .
[8] See, e. g., AGO 84-54 (meeting between representatives of a
private organization and city commissioner appointed to act on
the comomission's behalf is subject to s. 286.011, F.S.) and AGO
74-47 (city manager who acts as liaison between board members or
acts in place of board memnbers at their direction is subject to
s. 286.011, F.S.).
[9] See, Informal Opinion to Mr. John Blair, June 29, 1973.
[10] With regard to the applicability of the Government in the
Sunshine Law to special districts, see, AGO 74-169 (fire control
district), AGO 73-8 (mosquito control district), and AGO 71-171
(special taxing district).
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