HomeMy WebLinkAbout05-26-2005 Voting IssuesBROWN, GARGANESE, WEISS & D'AGRESTA, P.A.
Attorneys at Lazy
Usher L. BrownOffices in Orlando, Kissimmee, Debra S. Babb-Nutcher"
Jeffrey P. Buak" Cocoa & Viera Joseph E. Blitch
Suzanne D'Agresta" Victoria L. Cecil
Anthony A. Garganese" inc 0. E ;0 Scott J. Dornstein
Jeffrey S. Weiss Amy J. Goddard
Katherine W. Latorre
MAY 2 7 2005
'Board Certified Civil Trial Lawyer
"Board Certified City, County & Local Government Law
Andrea Lorenzo-Luaces, City Clerk
City of Winter Springs
1126 East State Road 434
Winter Springs, FL 32708
CITY OF WlNTF"R 2PRINOS Erin J. O'Leary
OFFICE OF THE CITY CLcP¢K J. W. Taylor
Of Counsel
May 26, 2005
Re: Voting Issues
City of Winter Springs - General #1193
Dear Andrea:
This letter is in response to your email of May 16 , 2005 seeking a legal opinion regarding
several voting and Sunshine Law issues involving certain city advisory boards and committees. You
indicated in your email that some advisory board and committee members need direction regarding
abstaining from voting on the approval of meeting minutes and other official decisions.
Additionally, you asked for an opinion regarding board members telephoning and emailing one
another, and for information regarding voice votes as opposed to general consent votes.
Voting and Abstention Guidelines
Municipal board members are required to vote on any official matter being considered at a
meeting at which that board member is present. See § 286.012, Fla. Stat. Thus, abstention is not
permitted unless a conflict of interest exists. Section 112.3143(3)(a), Florida Statutes, which
addresses voting conflicts, provides that no municipal officer shall vote in an official capacity upon
any measure which would inure to his or her special private gain or loss or to the private gain or loss
of a corporate principal by which he or she is retained, to the parent organization or subsidiary of a
corporate principle by which he or she is retained, or to the special private gain or loss of a relative
or business associate of the public officer.
In George v. City of Cocoa, 78 F.3d 494 (1 lth Cir. 1996), the Eleventh Circuit Court of
Appeals interpreted the term "special private gain" to almost always mean the financial interest of
a public official that is directly enhanced by the vote in question. The possibility of gain to the
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Andrea Lorenzo-Luaces, City Clerk
May 26, 2005
Page 2
public official must be direct and immediate, not remote and speculative, to constitute a prohibited
voting conflict. Id. at 498.
If such a voting conflict does exist, the public officer shall publicly state, prior to the vote
being taken, the nature of the officer's interest in the matter from which he or she is abstaining from
voting and, within 15 days after the vote occurs, disclose the nature of the conflict as a public record
in a memorandum filed with the person responsible for recording the minutes of the meeting. Such
memorandum shall be incorporated into the minutes of the meeting. See § 112.3143(3)(a), Fla. Stat.
The Florida Commission on Ethics Form 8B is the appropriate form for local public officers to
complete and submit as part of the meeting's recorded minutes.
Given the Court's interpretation of the voting conflict statute in George, board members may
not abstain from voting on the approval of meeting minutes based solely on the fact that they were
absent from the meeting for which the minutes were prepared. In such an instance, the board
member must vote to approve or disapprove the minutes, and the record may reflect that the board
member was not present at the meeting for which the minutes were prepared.
Ex Parte Communication
The Sunshine Law extends to discussions and deliberations as well as the formal actions
taken by a public board or commission. There is no requirement that a quorum be present in order
for the Sunshine Law to apply. Instead, the law is applicable to any gathering, whether formal or
casual, of two or more members of the same board or commission to discuss some matter on which
foreseeable action will be taken by the public board or commission. Hough v. Stembridge, 278 So.
2d 288 (Fla. 3d DCA 1973).
The use of a telephone to conduct such discussions does not remove the conversation from
the requirements of the Sunshine Law. See State v. Childers, No. 02-21939-MMC; 02-21950-MMB
(Escambia Co. Ct. June 5, 2003); c ff'd No. 1 D03-2430 (Fla. 1 s DCA Oct. 7, 2004). In Childers, the
court found that telephone conversations during which two county commissioners and the supervisor
of elections discussed redistricting violated the Sunshine Law. Furthermore, the use of computers
by board members to communicate among themselves on issues pending before the board is subject
to the Sunshine Law as well. See Fla. AGO 89-39. Therefore, any discussion between two or more
members of the same board, whether in person or by telephone or email, must take place "in the
sunshine."
The only variation to this general rule involves the use of a written report prepared by one
board member to inform other board members of a subject which will be discussed at a public
meeting. There is no violation of the Sunshine Law in such an instance if prior to the meeting, there
is no interaction related to the report among the board members. The report, which is subject to
disclosure under the Public Records Act, is being used for informational purposes only, and not as
a substitute for action at a public meeting, as there is no response from or interaction among the
board members prior to the meeting. See Fla. AGO 89-23.
Similarly, email communication of factual background information from one board member
to another does not violate the Sunshine Law where there is no exchange of board members'
Andrea Lorenzo-Luaces, City Clerk
May 26, 2005
Page 3
comments or responses on subjects requiring board action. The email communication, however, is
still subject to disclosure under the Public Records Act. See Fla. AGO 01-20.
Voice Votes Generally Required
Section 286.012, Florida Statutes, requires that a vote be recorded or counted for each board
member present at a public meeting unless a conflict of interest exists. Thus, for most board
business, individual voice votes should be taken. Pursuant to Robert's Rules of Order however,
general consent votes may be taken for routine or minor matters of little importance.
Notwithstanding this general rule, if, at any time, an objection is promptly made regarding a routine
or minor matter of little importance, a regular voice vote is required. See § 46, Robert's Rules of
Order. The approval of meeting minutes is an example of when general consent votes may be taken
provided there are no objections by any board member.
I hope this information sufficiently addresses your questions and concerns. Please contact
my office should you require further counsel regarding the matters addressed herein.
Very Truly Yours,
Kate Latorre
Assistant City Attorney