By: Jamie Cole, Susan Trevarthen, David Tolces, David Wolpin, Chad Friedman, Anthony Soroka and Haydee Sera (Special Counsel to Local Government Practice Group)
In light of the current public health emergency due to COVID-19, government and health officials are recommending that the public avoid any large public gatherings. It is possible that officials may recommend cancellation of all public gatherings. Notwithstanding the recommendation to restrict or cancel public gatherings, a local government’s governing body may still need to hold public meetings to address essential public business.
In anticipation of this possible scenario, and to avoid any uncertainty, on March 3, 2020, our firm requested that Governor DeSantis grant an exemption from Section 286.011, Fla. Stat., so that official acts may be taken during meetings where a quorum of the governing body is only telephonically or electronically present. As of the date of this memorandum, Governor DeSantis has not responded to our request; however, discussions with his office and other state officials regarding this important issue are ongoing. This memo may be updated or revised if we receive further guidance from the state, or based on other developments. At this time, the Florida Legislature continues to meet in person.
In light of the uncertainty regarding a governing body’s ability to meet at a public meeting, we are providing the following guidance to our municipal clients regarding the ability of a governing body to hold public meetings telephonically or electronically (“virtual public meetings”):
Sunshine Law Requirements.
The Florida Constitution requires that public meetings be “open and noticed to the public.” See Article I, Section 24(b) (the “Sunshine Law”). The Florida Legislature is empowered to provide by general law for an exemption of meetings from these requirements, if the law “states with specificity the public necessity justifying the exemption” and “is no broader than necessary to accomplish the stated purpose of the law.” See Article I, Section 24(c).
The Florida Legislature adopted Section 286.011, Fla. Stat., echoing the requirements of the Florida Constitution and requiring meetings to be “open to the public at all times” following the provision of reasonable notice, and requiring the keeping of minutes of such meetings. It has created limited exemptions from the Sunshine Law for meetings related to litigation, security, and collective bargaining. It has not adopted any law addressing meetings during emergencies. Virtual public meetings are not specifically authorized or prohibited by the Florida Constitution or the Florida Statutes, and no caselaw has addressed this issue.
However, the Florida Attorney General has repeatedly opined that in order to comply with Section 286.011, Fla. Stat., a local governing body must have a physical quorum present in order to hold a public meeting at which action may be taken. See, e.g., Attorney General Opinion 2010-34, August 25, 2010. These opinions, however, have been in a non-emergency context.
Restrictions on Public Gatherings
The recommendation to limit public gatherings was issued in response to a public health emergency and state of emergency declared by Governor DeSantis for the State of Florida (Executive Orders 20-51 and 20-52), as well as an emergency declared by both Miami-Dade and Broward Counties during the week of March 9, 2020. The Governor’s Executive Order 20-52 acknowledges that special duties and responsibilities placed on state, regional and local agencies in responding to the emergency may require them to suspend the application of the statutes, rules, ordinances and orders they administer. Section 4(D) of Executive Order 20-52 provides for political subdivisions within the State to “waive the procedures and formalities otherwise required . . . by law pertaining to:
- Performance of public work and taking whatever prudent action is necessary to ensure the health, safety and welfare of the community;
- Entering into contracts . . .;
- Incurring obligations;
- Employment of permanent and temporary workers;
- Utilization of volunteer workers;
- Rental of equipment;
- Acquisition and distribution, with or without compensation, of supplies, materials and facilities; and
- Appropriation and expenditure of public funds.”
The Executive Order thus authorizes a local government to take prudent action to ensure the health, safety, and welfare of the community, which could include holding virtual public meetings.
During this declared health emergency, compliance with the physical quorum and public attendance requirements could jeopardize the health of the governing body members and the general public. The declared emergency therefore impedes a governing body’s ability to meet the Attorney General’s guidance under the Sunshine Law. Literal compliance with both the health recommendations and the Attorney General Opinions could prevent the governing body from performing essential public business.
Recommendations For Substantial Compliance with the Sunshine Law During This Emergency
Local governments vary greatly in their population and scope, and a meeting of a small city commission might involve the gathering of only a few dozen persons while a meeting of a larger government might routinely draw more than 100 persons together. The circumstances of these governments will also vary; some governments may have active and documented cases of COVID-19 in or near their jurisdiction while others may not. Technological abilities vary as well. In short, different cities may make different choices in this emergency.
Some cities may desire to hold virtual public meetings in this emergency. In light of the Attorney General opinions and the purpose of the Sunshine Law, in order to conduct essential public business and meet the conflicting demands of this emergency, we believe that a governing body should be allowed to hold a virtual public meeting (with no members physically present) by: (1) properly noticing the meeting, (2) taking minutes, and (3) making the meeting open to the public through technological means that are made available to the public, such as by teleconference or online video-conference.
Matters to be discussed or decided at such a meeting should be limited to essential matters that are related to the public health, safety and welfare. Findings and a record should be made of the specific public necessity justifying the virtual public meeting.
The agenda items should be limited to those public necessities so that the meeting is, as indicated by Section 24(b) of the Florida Constitution, “no broader than necessary to accomplish the stated purpose” of having it as a virtual public meeting. At this time, we would also recommend that no land use or zoning matters requiring public hearings or quasi-judicial hearings should be handled in this manner. These recommended restrictions result in a narrowly tailored virtual public meeting that meets the intent of the Sunshine Law as fully as possible under the circumstances.
The governing body’s steps to substantially comply with the Sunshine Law’s requirements as stated above would allow for the public’s essential business to continue, and provide the public with reasonable, safe access to such a public meeting in conformance with the recommendation to avoid public gatherings.
