As the COVID-19 health crisis continues to necessitate social distancing, we have more closely examined whether municipalities and unions representing municipal bargaining units may engage in collective bargaining negotiations remotely. Upon further examination, it is our opinion that remote negotiations may be conducted provided certain conditions are met.
Chapter 447 of the Florida Statutes provides that “the collective bargaining negotiations between a chief executive officer, or his or her representative, and a bargaining agent shall be in compliance with the provisions of s. 286.011 [Florida Statutes].” Section 447.605(2), Florida Statutes.
Section 286.011, Florida Statutes, states in pertinent part:
(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution . . . at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.
(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded, and such records shall be open to public inspection. The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state.
The foregoing provision historically has been interpreted to require that public meetings under Section 286.011, Florida Statutes be held in person. On March 17, 2020, Governor Ron DeSantis sought guidance from Florida Attorney General Ashley Moody as to “whether, and to what extent, local government bodies may utilize teleconferencing and/or other technological means to convene meetings and conduct official business, while still providing public access to those meetings.” In AGO 2020-03, AG Moody responded with the following opinion:
Under existing law that, if a quorum is required to conduct official business, local government bodies may only conduct meetings by teleconferencing or other technological means if either (1) a statute permits a quorum to be present by means other than in person, or (2) the in-person requirement for constituting a quorum is lawfully suspended during the state of emergency. If such meetings are conducted by teleconferencing or other technological means, public access must be afforded which permits the public to attend the meeting. That public access may be provided by teleconferencing or technological means.
Id. (underline added for emphasis). Following the issuance of AGO 2020-03, Governor DeSantis issued Emergency Order 20-69[1] (“EO 20-69”), which states in pertinent part:
Section 1. I hereby suspend any Florida Statute that requires a quorum to be present in person or requires a local government body to meet at a specific public place.
Section 2. Local government bodies may utilize communications media technology, such as telephonic and video conferencing, as provided in Section 120.54(5)(b)2., Florida Statutes.
Section 3. This Executive Order does not waive any other requirement under the Florida Constitution and “Florida’s Government in the Sunshine Laws,” including Chapter 286, Florida Statutes.
Pursuant to EO 20-69, local government bodies have been using telephones and video conferencing to establish a quorum and to conduct public meetings while respecting applicable Emergency Orders and public safety directives implemented in response to the COVID-19 public health crisis (encouraging social distancing to avoid public gatherings where possible).
EO 20-69 addresses meetings of a “governing body” or board that require a quorum to be present when official acts or actions are to be taken. Although collective bargaining negotiations are not meetings of “government bodies” and do not necessitate a quorum of any sort to conduct negotiations, we believe that Sections 1 and 2 of EO 20-69 can be interpreted to permit collective bargaining negotiations to occur without the physical presence of participants at a specific public place provided that negotiations occur via the forms of technology referenced in Section 2 of EE 20-69 and as provided in Section 120.54(5)(b)2, Florida Statutes.
Based on the foregoing, we have determined that municipalities may engage in collective bargaining negotiations with unions representing municipal bargaining units provided the other requirements of Section 286.011, Florida Statutes are met. In particular, collective bargaining negotiations may be conducted virtually (such as by video conference), provided that (1) proper notice is provided to the public in advance of the scheduled bargaining negotiations; (2) access to the bargaining negotiations is made available to members of the public; and (3) meeting minutes of bargaining negotiations are recorded/prepared. However, each public employer should be cognizant of any of its own local ordinances, resolutions and/or rules that may need to be considered when noticing and/or conducting collective bargaining negotiations using any remote meeting options.
Should you have any questions about this matter, please feel free to contact any member of our Labor and Employment Division.
[1] EO 20-69 is set to expire on May 8, 2020, unless extended by the Governor.
