HomeMy WebLinkAbout2006 01 31 Document Handed Out to Board Members Regular Regular 300Date: January 31, 2006
DOCUMENT HANDED OUT TO THE
BOARD OF TRUSTEE MEMBERS AT
THE JANUARY 31, 2006 REGULAR
MEETING REGARDING AGENDA ITEM
REGULAR 3 00.
PUBLIC PENSION
TRUSTEE HANDBOOK
James W. Linn
Lewis, Longman & Walker, P.A.
Post Office Box 10788
Tallahassee, FL 32302
(850) 222-5702
CONTENTS
Duties and Responsibilities of a Governmental Pension Board of Trustees
2. Government in the Sunshine Law
3. Conflicts of Interest, Financial Disclosure, Gift Laws, etc.
4. Part VII, Section 112, Florida Statutes ("Florida Protection of Public Employee
Retirement Benefits Act")
DUTIES AND RESPONSIBILITIES OF A
GOVERNMENTAL PENSION BOARD OF TRUSTEES
James W. Linn
Lewis, Longman & Walker, P.A.
I. BASIC FIDUCIARY PRINCIPLES
A. A fiduciary shall discharge his duties with respect to a Plan solely in the interest
of the participants and beneficiaries for the exclusive purpose of providing
benefits to participants and their beneficiaries and defraying reasonable expenses
of administering the Plan. Section 112.656(1), Florida Statutes.
B. A fiduciary must act with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
chazacter and with like aims. 29 United States Code section 1104(a)(1).
C. A fiduciary must administer the Plan in accordance with the Plan documents so
long as they aze consistent with applicable law. A fiduciary must be familiaz with
the provisions of the Plan documents and local, state and federal laws so as to
avoid violations of law and breach of fiduciary duty.
D. The Board of Trustees is responsible. for administering the Plan. Duties of
fiduciaries include but aze not limited to the following:
1. Determination of issues involving eligibility for plan membership and
benefits.
2. Approval of benefits, service and compensation.
3. Maintenance of service and employment records.
4. Distribution to participants of a Summary Plan Description and a summary
of financial and actuarial data pertaining to the Plan. Section 112.66,
Florida Statutes.
5. Verification of collection and deposit of contributions and other monies.
6. Contract for the preparation of actuarial studies.
7. Investment of Fund assets and adoption of an investment policy. Section
112.661, F.S.
8. Hiring of consultants to assist and advise in the performance of the duties.
Section 112.656, Florida Statutes.
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9. Familiarity with local, state and federal laws and Plan provisions and
procedures (i.e. Section 112.66, Florida Statutes).
10. Filing plan documents and reports with the Division of Retirement.
Chapter 112, Florida Statutes.
11. Authorization of disbursements from the Fund.
E. Recommendations to assist in avoiding fiduciary liability.
1. Maintain accurate minutes of meetings and written records of action taken,
reports given, discussions and factors considered, including all steps taken
to acquire information bearing on the issue to be decided. Because the
approved minutes are the official record of Board action, they should be
reviewed carefully by each fiduciary prior to approval.
2. Periodic review of the Plan documents to assure that you are familiaz with
the Plan provisions and that the Plan is amended as necessary to reflect
any changes in law or procedures as they occur.
3. Monitor the performance of all consultants.
4. Periodic review of the contracts with the consultants to assure that they
reflect on a current basis the services being provided, the amount and
method of payment for such services and that they are in compliance with
rules, procedures and laws.
II. WRITTEN DOCUMENTS RECOMMENDED FOR PRUDENT ADMINISTRATION
A. Plan document containing original plan and all amendments.
B. Rules and Procedures of the Board (if any).
C. Investment Policy Statement
D. Proxy Voting Policy Statement
E. Contracts with consultants
F. Summary Plan Description
G. Minutes of meetings
H. Notices and agendas
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Overview of the Sunshine and Public Records Laws
Patricia R. Gleason
I. GOVERNMENT IN THE SUNSHINE LAW
A. WHAT IS THE SCOPE OF THE SUNSHINE LAW?
Florida's Government in the Sunshine Law, commonly referred to as the Sunshine Law,
provides a right of access to governmental proceedings at both the state and local levels. The law is
equally applicable to elected and appointed boards and has been applied to any gathering of two or
more members of the same board to discuss some matter which will foreseeably come before that
board for action. There are three basic requirements of section 286.011, Florida Statutes:
(1) meetings of public boards or commissions must be
open to the public;
(2) reasonable notice of such meetings must be given; and
(3) minutes of the meetings must be taken.
A right of access to meetings of collegial public bodies is also recognized in the Florida Constitution.
Article I, section 24, Florida Constitution, was approved by the voters in the November 1992 general election
and became effective July 1, 1993. Virtually all collegial public bodies are covered by the open meetings
mandate of the open government constitutional amendment with the exception of the judiciary and the state
Legislature which has its own constitutional provision requiring access. The only exceptions are those
established bylaw or by the Constitution.
B. WHAT AGENCIES ARE COVERED BY THE SUNSHINE LAW?
1. Are all public agencies subject to the Sunshine Law?
The Government in the Sunshine Law applies to "any board or comirussion of any state agency or
authority or of any agency or authority of any county, rrninicipal corporation, or political subdivision." The
statute thus applies to public collegial bodies within this state, at the local as well as state level. City of
Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971). It is equally applicable to elected and appointed boards
or commissions. Op. Att'y Gen. Fla. 73-223 (1973). The judiciary and the Legislature are not subject to the
Sunshine Law. See, Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992); Op. Att'y Gen. Fla. 83-97 (1983).
Federal agencies, i. e., agencies created under federal law, operating within the state do not come
within the purview of the state Sunshine Law. Op. Att'y Gen. Fla. 71-191 (1971). Cf., Inf. Op. to Markham,
September 10, 1996 (technical oversight committee established by state agencies as part of settlement
agreement in federal lawsuit subject to Sunshine Law).
Boards or commissions created by law or by a public agency are clearly subject to the provisions of
section 286.011, Florida Statutes. A public officer may be an "agency" for purposes of creating a board or
commission subject to section 286.011, Florida Statutes. For example, in Krause v. Reno, 366 So. 2d 1244
(Fla. 3d DCA 1979), the court held that a city manager was an "agency" for purposes of section 286.011,
Florida Statutes. Therefore, when he utilized an advisory group to assist him in screening applications and
making recommendations for the position of chief of police, he created a "board" to which the Sunshine Law
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was applicable.
2. Are advisory boards which make recommendations or committees established for
fact finding only subject to the Sunshine Law?
a. Publicly created advisory boards which make recommendations
Advisory boards created pursuant to law or ordinance or otherwise established by public agencies
are subject to the Sunshine Law, even though their recommendations are not binding upon the agencies that
create them Town ofPalm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). See also, Wood v. Marston, 442
So. 2d 934 (Fla. 1983) (Sunshine Law applies to a university's search and screening committee). And see,
Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (Sunshine Law applies to site plan review
committee created by county commission to serve in an advisory capacity to the county manager).
b. Fact-finding committees
A limited exception to the applicability of the Sunshine Law to advisory committees has been
recognized for committees established for fact-finding only. When a committee has been established strictly
for, and conducts only, fact-finding activities, i.e., strictly information gathering and reporting, the activities
of that committee are not subject to section 286.011, Florida Statutes. Cape Publications, Inc. v. City of
Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985).
3. Are private organizations providing services to public agencies subject to the
Sunshine Law?
This office has recognized that private organizations which are not state or local governmental
agencies or subject to the control of the Legislature and which do not serve in an advisory capacity to state
or local governmental agencies, are generally not subject to section 286.011, Florida Statutes. Op. Att'y Gen.
Fla. 83-1 (1983). Thus, the Sunshine Law would not generally apply to meetings of a homeowners'
association. Inf. Op. to Fasano, June 7, 1996.
Thus, a private corporation which performs services for a public agency and receives compensation
for such services pursuant to a contract or otherwise, is not by virtue of this relationship alone necessarily
subject to the Sunshine Law unless the public agency's governmental or legislative functions have been
delegated to it. McCoy Restaurants, Inc, v. City of Orlando, 392 So. 2d 252 (Fla. 1980) (airlines are not by
virtue of their lease with the aviation authority public representatives subject to the Sunshine Law).
However, although private organizations are generally not subject to the Sunshine Law, open
meetings requirements can apply if the public entity has delegated "the performance of its public purpose"
to the private entity. Memorial Hospital-West Yolusia, Inc v. News-Journal Corporation, 729 So. 2d 373,
383 (Fla. 1999). In Memorial, the Supreme Court held that a private nonprofit corporation which entered
into a lease with a public hospital authority to operate a hospital was subject to the open meetings
requirements found in the Sunshine Law and those contained in article I, section 24(b) of the Florida
Constitution.
Similarly, this office has concluded that if a county commission dissolves its cultural affairs council
and designates a nonprofit organization to fulfill that role for the county, the nonprofit organization would
be subject to the Sunshine Law. Op. Att'y Gen. Fla. 98-49 (1998). And see, Op. Att'y Gen. Fla. 02-53 (2002)
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(Martin County Golf and Country Club, anot-for-profit corporation which was specifically created to
contract with the county for the operation of a public golf course on county property acquired by public
funds, is subject to open meetings requirements); Op. Att'y Gen. Fla. 99-53 (1999) (architectural review
committee of a homeowners' association is subject to the Sunshine Law where the committee, pursuant to
county ordinance, must review and approve applications for county building permits) and Op. Att'y Gen. Fla.
00-08 (2000) (meetings of the Lee County Fire Commissioner's Forum, a nonprofit entity created by fire
districts as a vehicle for networking and discussion of comrmn concerns, would be subject to the Sunshine
Law if the Forum operates as a collegial body for incipient decision making).
4. Does the Sunshine Law apply to staff?
Meetings of staff of boards or commissions covered by the Sunshine Law are not ordinarily
subject to section 286.011, Florida Statutes. Occidental Chemical Company v. Mayo, 351 So. 2d 336
(Pia. 1977), disapproved in part on other grounds, Citizens v. Beard, 613 So. 2d 403 (Pia. 1992). And see,
Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000), in which the court concluded that the
Sunshine Law did not apply to informal meetings of staff where the meetings were "merely
informational;" where none of the individuals attending the meetings had any decision-making
authority during the meetings; and where no formal action was taken or could have been taken at the
meetings; Knox v. District School Board of Brevarci; 821 So. 2d 311, 315 (Fla. 5th DCA 2002) ("A
sunshine violation does not occur when a governmental executive uses staff for afact-Ending and
advisory function in fulfilling his or her duties"); and Molina v. City of Miami, 28 F.L.W. D8a (Pia. 3d
DCA December 18, 2002) (police department discharge of firearms review committee, composed of
three deputy chiefs is not subject to the Sunshine Law because the committee "is nothing more than
a meeting of staff members who serve in afact-finding, advisory capacity to the chief ').
However, when a staff member ceases to function in a staff capacity and is appointed to a committee
which is delegated authority normally within the public board or commission, the staff member loses his or
her identity as staff while working on the committee and the Sunshine Law is applicable to the committee.
It is the nature of the act performed, not the makeup of the committee or the proximity of the act to the final
decision, which determines whether a committee composed of staff is subject to the Sunshine Law. Wood
v. Marston, 442 So. 2d 934 (Fla. 1983). And see, Evergreen the Tree Treasurers of Charlotte County, Inc.
v. Charlotte County Board of County Commissioners, 810 So. 2d 526 (Fla. 2d DCA 2002) (when public
officials delegate their fact-finding duties and decision-making authority to a committee of staff members,
those individuals no longer function as staff members but "stand in the shoes of such public officials" insofar
as the Sunshine Law is concerned).
For example, in Wood v. Marston, supra, the Court concluded that a committee composed of staff
which was created for the purpose of screening applications and making recommendations for the position
of a law school dean was subject to section 286.011, Florida Statutes, since the committee members
performed adecision-making function outside of their normal staff activities. By screening applicants and
deciding which applicants to reject from further consideration, the committee performed apolicy-based,
decision-making function delegated to it by the president of the university.
In a more recent case, Silver Express Company v. Miami-Dade Community College, 691 So. 2d 1099
(Fla. 3d DCA 1997), the district court determined that a committee (composed of staff and one outside
person) that was created by a college purchasing director to assist and advise her in evaluating contract
proposals was subject to the Sunshine Law. According to the court, the committee's job was to weed through
the various proposals, to determine which were acceptable and to rank there accordingly. This function was
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sufficient to bring the committee within the scope of the Sunshine Law because "governmental advisory
committees which have offered up structured recommendations such as here involved -- at least those
recommendations which eliminate opportunities for alternative choices by the final authority, or which rank
applications for the final authority -- have been determined to be agencies governed by the Sunshine Law."
691 So. 2d at 1101. And see, Inf. Op. to Lewis, March 15, 1999 (panels established by state comrrrission to
create requests for proposals and evaluate vendor responses are subject to the Sunshine Law).
5. Does the Sunshine Law apply to members of public boards who also serve as
administrative officers or employees?
There may be occasions in which members of public boards also serve as administrative officers or
employees. The Sunshine Law is not applicable to discussions of those individuals when serving as
administrative officers or employees, provided such discussions do not• relate to matters which will come
before the public board on which they serve. Thus, a board member who also serves as an employee of an
agency may meet with another board member on issues relating to ]us duties as an employee provided such
discussions do not relate to matters that will come before the board for action. See, Op. Att'y Gen. Fla. 92-79
(1992).
C. WHAT IS A MEETING SUBJECT TO THE SUNSHINE LAW?
1. Number of board members required to be present
The Sunshine Law extends to the discussions and deliberations as well as the formal action taken
by a public board or commission. There is no requirement that a quorum be present for a meeting of
members of a public board or comrrrission to be subject to section 286.011, Florida Statutes. 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).
2. Circumstances in which the Sunshine Law may apply to a single individual or
where two board members are not physically present
The Sunshine Law applies to public boards and commissions, i.e., collegial bodies. As discussed
supra, section 286.011, Florida Statutes, applies to meetings of "two or more members" of the same board
or commission when discussing some matter which will foreseeably come before the board or commission.
Therefore, section 286.011, Florida Statutes, would not ordinarily apply to an individual member
of a public board or commission or to public officials who are not board or commission members. See,
Deerfield Beach Publishing, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988) (requisite to application of
the sunshine law is a meeting between two or more public officials); City of Sunrise v. News and Sun-
Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989); Mitchell v. School Board of Leon County, 335 So.
2d 354 (F7a. 1st DCA 1976).
Certain factual situations, however, have arisen where, in order to assure public access to the
decision-making processes of public boards or commissions, it has been necessary to conclude that the
presence of two individuals of the same board or commission is not necessary to trigger application of section
286.011, Florida Statutes. As stated by the Supreme Court, the Sunshine Law is to be construed "so as to
frustrate all evasive devices." Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974).
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a. Written correspondence between board members
The use of a written report by one commissioner to inform other commissioners of a subject which
will be discussed at a public meeting is not a violation of the Sunshine Law if prior to the meeting there is
no interaction related to the report among the commissioners. In such cases, the report, which is subject to
disclosure under the Public Records Act, is not being used as a substitute for action at a public meeting as
there is no interaction among the commissioners prior to the meeting. Op. Att'y Gen. Fla. 89-23 (1989).
If, however, the report is circulated among board members for comments with such comments being
provided to other members, there is interaction among the boazd members which is subject to section
286.011, Florida Statutes. Op. Att'y Gen. Fla. 90-3 (1990). See also, Op. Att'y Gen. Fla. 96-35 (1996),
stating that a school board member may prepare and circulate an informational memorandum or position
paper to other boazd members; however, the use of a memmrandum to solicit comment from other board
members or the circulation of responsive memoranda by other board members would violate the Sunshine
Law.
b. Telephone conversations and meetings
As discussed previously, the Sunshine Law applies to the deh`berations and discussions between two
or more members of a board or comirrission on some matter which foreseeably will come before that board
or commission for action. The use of a telephone to conduct such discussions does not remove the
conversation from the requirements of section 286.011, Florida Statutes. Therefore, members of a board
seeking to discuss board business or conduct a meeting of the board by telephone should ensure that the
requirements of the Sunshine Law have been satisfied by providing notice and access to the public.
A related issue is whether a board is authorized to conduct its meetings through the use of a
telephone conference call or other type of corYUYaznications technology. In Op. Att'y Gen. Fla. 98-28 (1998),
this office concluded that section 120.54(5)(b)2., Florida Statutes, authorizes state agencies to conduct
meetings via electronic means provided that the board complies with uniform rules of procedure adopted by
the state Administration Commission. These rules contain notice requirements and procedures for providing
points of access for the public. See, Rule 28-109, Florida Administrative Code.
As to local boards, this office has noted that the authorization in section 120.54(S)(b)2., to conduct
meetings entirely through the use of comrrnunications media technology applies only to state agencies. Op.
Att'y Gen. Fla. 98-28 (1998). Thus, since section 1001.372(2)(b), Florida Statutes, requires a district school
board to hold its meetings at a "public place in the county," a quorum of the board must be physically present
at the meeting of the school board. However, as long as a quorum of the board is physically present at the
meeting site, the board may use electronic media technology to allow a physically absent member of the
board to attend the meeting. Id. Compliance with the requirements of section 286.011, Florida Statutes,
"would involve providing notice and access to the public at such meetings through the use of such devices
as a speaker telephone that would allow the absent member to participate in discussions, to be heard by the
other board members and the public and to hear discussions taking place during the meeting." Op. Att'y Gen.
Fla. 94-55 (1994).
c. Use of computers
The use of computers to conduct public business is becoming increasingly commonplace.
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While there is no provision generally prohibiting the use of computers to carry out public business,
their use by members of a public board or commission to communicate among themselves on issues
pending before the board, is subject to the Sunshine Law. Op. Att'y Gen. Fla. 89-39 (1989). See also,
Op. Att'y Gen. Fla 96-34 (1996) ("E-mail" is a public record).
Airport authority members may conduct informal discussions and workshops over the
Internet, provided proper notice is given, and interactive access by members of the public is provided.
Op. Att'y Gen. Fla. 01-66 (2001). Such interactive access must include not only public access via the
Internet but also designated places within the authority boundaries where the airport authority makes
computers with Internet access available to members of the public who may not otherwise have
Internet access. Id. For meetings, however, where a quorum is necessary for action to be taken,
physical presence of the members making up the quorum would be required in the absence of a statute
providing otherwise. Id. Internet access to such meetings, however, may still be offered to provide
greater public access. Id.
However, the use of an electronic bulletin board to discuss matters over an extended period
of days or weeks, which does not permit the public to participate online, violates the Sunshine Law by
circumventing the notice and access provisions of that law. Op. Att'y Gen. Fla. 02-32 (2002).
d. Delegation of authority to single individual
If a member of a public board is authorized only to explore various contract proposals with the
applicant selected for the position of executive director, with such proposals being related back to the
governing body for consideration, the discussions between the board member and the applicant are not
subject to the Sunshine Law. Op. Att'y Gen. Fla. 93-78 (1993). If, however, the board member has been
delegated the authority to reject certain options from further consideration by the entire board, the board
member is performing adecision-making function that must be conducted in the sunshine. And see, Leach-
Wells v. City of Bradenton, 734 So. 2d 1168 (Fla. 2d DCA 1999) (committee charged with evaluating
proposals violated the Sunshine Law when the city clerk unilaterally tallied the results of the committee
members" individual written evaluations and ranked them; the court held that the "short-listing was formal
action that was required to be taken at a public meeting"). Compare, Lee County v. Pierpont, 693 So. 2d 994
(Fla. 2d DCA 1997) (authorization to county attorney to make settlement offers to landowners not to exceed
appraised value plus 20%, rather than a specific dollar amount, did not violate the Sunshine Law).
It rrnust be recognized, however, that the applicability of the Sunshine Law relates to the discussions
of a single individual who has been delegated decision-making authority on behalf of a board or commmission.
If the individual, rather than the board, is vested by law, charter or ordinance with the authority to take
action, such discussions are not subject to section 286.011, Florida Statutes. See, City of Sunrise v. News
and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989).
e. Use of nonmembers as liaisons between board members
The Sunshine Law is applicable to meetings between a board member and an individual who is not
a member of the board when that individual is being used as a liaison between, or to conduct a de facto
meeting of, board members. For example, in Blackford v. School Board of Orange County, 375 So. 2d 578
(Fla. 5th DCA 1979), the court held that a series of scheduled successive meetings between the school
superintendent and individual members of the school board were subject to the Sunshine Law. While
normally meetings between the school superintendent and an individual school board member would not be
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subject to section 286.011, Florida Statutes, these meetings were held in "rapid-fire succession" in order to
avoid a public airing of a controversial redistricting problem They amounted to a de facto meeting of the
school board in violation of section 286.011, Florida Statutes.
Not all decisions taken by staff, however, need to be made or approved by a board. Thus, the district
court concluded in Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA
1978), that the decision to appeal made by legal counsel to a public board after discussions between the legal
staff and individual members'of the commission was not subject to the Sunshine Law.
D. WHAT TYPES OF DISCUSSIONS ARE COVERED BY THE SUNSHINE LAW?
I. Investigative meetings or meetings to consider
confidential material
The Sunshine Law is applicable to investigative inquiries of public boards or commissions. The fact
that a meeting concerns alleged violations of laws or regulations does not remove it from the scope of the
law. Op. Att'y Gen. Fla. 74-84 (1974); Canney v. Board of Public Instruction of Alachua County, 278 So.
2d 260 (Fla. 1973). The Florida Supreme Court has stated that in the absence of a statute exempting a
meeting in which privileged material is discussed, section 286.011, Florida Statutes, should be construed as
containing no exceptions. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971).
Section 119.07(5), Florida Statutes, provides that an exemption fromsection 119.07, Florida Statutes,
"does not imply an exemption from or exception to section 286.011, Florida Statutes. The exemption from
or exception to section 286.011, Florida Statutes, must be expressly provided." Thus, exceptions to or
exemptions from Chapter 119, Florida Statutes, do not by implication allow a public agency to close a
meeting in which exempted material is to be discussed in the absence of a specific exemption or exception
to section 286.011, Florida Statutes. Accord, Op. Att'y Gen. Fla. 95-65 (1995) (district case review
committee); Op. Att'y Gen. Fla. 93-41(1993) (county criminal justice commission); Op. Att'y Gen. Fla. 91-88
(1991) (pension board); and Op. Att'y Gen. Fla. 91-75 (1991) (school board).
2. Legal matters
In the absence of legislative exemption, discussions between a public board and its attorney are
subject to section 286.011, Florida Statutes. Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla.
1985) (section 90.502, Florida Statutes, which provides for the confidentiality of attorney-client
communications under the Florida Evidence Code, does not create an exemption for attorney-client
communications at public meetings). Cf., section 90.502(6), Florida Statutes, stating that a discussion or
activity that is not a meeting for purposes of the Sunshine Law shall not be construed to waive the attorney-
client privilege).
There are statutory exemptions, however, which apply to some discussions of pending litigation
between a public board and its attorney.
a. Attorney-client discussions
Section 286.011(8), Florida Statutes, provides:
Notwithstanding the provisions of subsection (1), any board or commission
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of any state agency or authority or any agency or authority of any county,
municipal corporation, or political subdivision, and the chief administrative
or executive officer of the governmental entity, may meet in private with
the entity's attorney to discuss pending litigation to which the entity is
presently a parry before a court or administrative agency, provided that the
following conditions are met:
(a) The entity's attorney shall advise the entity at a public
meeting that he or she desires advice concerning the
litigation.
(b) The subject matter of the meeting shall be confined to
settlement negotiations or strategy sessions related to
litigation expenditures.
(c) The entire session shall be recorded by a certified court
reporter. The reporter shall record the times of
commencement and termination of the session, all
discussion and proceedings, the names of all persons
present at any time, and the names of all persons speaking.
No portion of the session shall be off the record. The
court reporter's notes shall be fully transcribed and filed
with the entity's clerk within a reasonable time after the
meeting.
(d) The entity shall give reasonable public notice of the time
and date of the attorney-client session and the names of
persons who will be attending the session. The session
shall commence at an open meeting at which the persons
chairing the meeting shall announce the commencement
and estimated length of the attorney-client session and the
names of the persons attending. At the conclusion of the
attorney-client session, the meeting shall be reopened and
the person chairing the meeting shall announce the
termination of the session.
(e) The transcript shall be made part of the public record upon
conclusion of the litigation. (e.s.)
(l) Is section 286.OI1(8), Florida Statutes, to be
liberally or strictly construed?
It has been held that the Legislature intended a strict construction of section 286.011(8), Florida
Statutes. City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. Sth DCA 1995); School Board of Duval County
v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996).
(2) Who may call an attorney-client meeting?
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While section 286.011(8), Florida Statutes, does not specify who calls the closed attorney-client
meeting, it requires as one of the conditions that must be met that the governmental entity's attorney "shall
advise the entity at a public meeting that he or she desires advice concerning the litigation." Thus, one of
the conditions that must be met prior to holding a closed attorney-client meeting is that the city attorney must
indicate to the city council at a public meeting that he or she wishes the advice of the city council regarding
the pending litigation to which the city is presently a party before a court or administrative agency. Inf. Op.
to Vock, July 11, 2001.
(3) Who may attend?
Only those persons listed in the statutory exemption, i.e., the entity, the entity's attorney, the chief
administrative officer of the entity, and the court reporter are authorized to attend a closed attorney-client
session. Other staff members or consultants aze not allowed to be present. School Board of Duval County
v. Florida Publishing Company. And see, Zorc v. City of Yero Beach, 722 So. 2d 891, 898 (Fla. 4th DCA
1998), review denied, 735 So. 2d 1284 (Fla. 1999) (rejecting city's argument that charter provision requiring
that city clerk attend all council meetings authorized clerk to attend closed attorney-client meeting); and Op.
Att'y Gen. Fla. 01-10 (2001) (clerk of court not authorized to attend).
However, because the entity's attorney is permitted to attend the closed session, if the school board
hires outside counsel to represent it in pending litigation, both the school board attorney and the litigation
attorney may attend a closed session. Op. Att'y Gen. Fla. 98-06 (1998). And see, Zorc v. City of Vero Beach
(attendance of Special Counsel authorized).
(4) Is substantial
compliance with the
conditions established
in the statute adequate?
In City of Dunnellon v. Aran, supra, the court said that a city council's failure to announce the names
of the lawyers participating in a closed attorney-client session violated the Sunshine Law. The court rejected
the city's claim that when the mayor announced that attorneys hired by the city would attend the session [but
did not give the names of the individuals], his "substantial compliance" was sufficient to satisfy the statute.
Cf., Zorc v. City of Yero Beach, at 901, noting that deviation from the agenda at an attorney-client session
is not authorized; while such deviation is permissible if a public meeting has been properly noticed, "there
is no case law affording the same latitude to deviations in closed door meetings."
(5) What kinds of matters
may be discussed of the
attorney-client session?
Section 286.011(8) states that the subject matter of the meeting shall be confined to settlement
negotiations or strategy sessions related to litigation expenditures. Section 286.011(8)(b), Florida Statutes.
If a board goes beyond the "strict parameters of settlement negotiations and strategy sessions related to
litigation expenditures" and takes "decisive action," a violation of the Sunshine Law results. Zorc v. City
of Vero Beach, at 900. And see, Op. Att'y Gen. Fla. 99-37 (1999) (closed-meeting exemption may be used
only when the attorney for a governmental entity seeks advice on settlement negotiations or strategy relating
to litigation expenditures; such meetings should not be used to finalize action or discuss matters outside these
two narrowly prescribed areas).
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The legislative history of the exemption indicates that it was intended to apply only to discussions,
rather than final action, relating to settlement negotiations or litigation expenditures. See, Staff of Fla. H.R.
Comm on Gov't Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement 2 (Fla.
State Archives), noting at p. 3: "No final decisions on litigation matters can be voted on during these private,
attorney-client strategy meetings. The decision to settle a case, for a certain amount of money, under certain
conditions is a decision which must be voted upon in a public meeting."
Thus, "[t]he settlement of a case is exactly that type of final decision contemplated by the drafters
of section 286.011(8) which must be voted upon in the sunshine." Zorc v. City of Yero Beach, at 901. See
also, Freeman v. Times Publishing Company, 696 So. 2d 427 (Fla. 2d DCA 1997) (discussion of methods
or options to achieve continuing compliance with along-standing federal desegregation mandate [such as
whether to modify the boundaries of a school zone to achieve racial balance] must be held in the Sunshine).
Compare, Brudtner v. Ciry of Dania Beach, 823 So. 2d 167> 172 (Fla. 4th DCA 2002) (closed city
commission meeting to discuss various options to settle a lawsuit involving a challenge to a city resolution,
including modification of the resolution, authorized because the commission "neither voted, took official
action to amend the resolution, nor did it formally decide to settle the litigation"); and Brown v. City of
Lauderhill, 654 So. 2d 302, 303 (Fla. 4th DCA 1995) (closed-door session between city attorney and board
to discuss claims for attorney's fees, authorized).
(6) When is an agency a
"party to pending
litigation" for purposes
of the exemption?
In Brown v. Ciry of Lauderhill, supra, the court said it could "discern no rational basis for concluding
that a city is not a 'party' to pending litigation in which it is the real party in interest." And see, Zorc v. City
of Yero Beach, at 900 (city was presently a party to ongoing litigation by virtue of its already pending claims
in bankruptcy proceedings).
Although the Brown decision established that the exemption could be used by a city that was a real
party in interest on a claim involved in pending litigation, that decision does not mean that an agency may
meet in executive session with its attorney where there is only the threat of litigation. See, Op. Att'y Gen.
Fla. 98-21 (1998) (section 286.011 [8] exemption "does not apply when no lawsuit has been filed even though
the parties involved believe litigation is inevitable").
(7) When is litigation
"concluded" for
purposes of section
286.O11(8)(e)?
Litigation that is ongoing but temporarily suspended pursuant to a stipulation for settlement has not
been concluded for purposes of section 286.011(8), and a transcript of meetings held between the city and
its attorney to discuss such litigation may be kept confidential until conclusion of the litigation. Op. Att'y
Gen. Fla. 94-64 (1994). And see> Op. Att'y Gen. Fla. 94-33 (1994), concluding that to give effect to the
purpose of section 286.011(8), a public agency may maintain the confidentiality of a record of a strategy or
settlement meeting between a public agency and its attorney until the suit is dismissed with prejudice or the
applicable statute of limitations has run. Cf., Op. Att'y Gen. Fla. 96-75 (1996) (disclosure of medical records
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to a city council during aclosed-door meeting under section 286.011 [8], Florida Statutes, does not affect the
requirement that the transcript of such a meeting be made a part of the public record at the conclusion of the
litigation).
b. Risk management
Section 768.28(15)(c), Florida Statutes, states that portions of meetings and proceedings relating
solely to the evaluation of claims or to offers of compromise of claims filed with a risk management program
of the state, its agencies and subdivisions, are exempt from section 286.011, Florida Statutes. The minutes
of such meetings and proceedings are also exempt from public disclosure until the termination of the
litigation and settlement of all claims arising out of the same incident. Section 768.28(15)(d), Florida
Statutes. And see, Op. Att'y Gen. Fla. 00-20 (2000), noting application of the exemption to a risk
management meeting conducted by a district school board and attended by risk management personnel that
relates solely to the evaluation of a tort claim filed with the risk management program or that relates solely
to an offer of compromise of a tort claim filed with the risk management program The exemption is not
applicable to meetings held prior to the filing of a tort claim with the risk management program Op. Att'y
Gen. Fla. 92-82 (1992).
3. Personnel matters
Meetings of a public board or commission at which personnel matters are discussed are not exempt
from the provisions of section 286.011, Florida Statutes, in the absence of a specific statutory exemption.
Times Publishing Company v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved in part on other
grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985).
a. Collective bargaining discussions
A limited exemption from section 286.011, Florida Statutes, exists for discussions between the chief
executive officer of the public employer and the legislative body of the public employer relative to collective
bargaining. Section 447.605(1), Florida Statutes. Cf.> Op. Att'y Gen. Fla. 99-27 (1999), noting that a
committee (composed of the city manager and various city managerial employees) formed by the city
manager to represent the city in labor negotiations qualifies as the "chief executive officer" and thus may
participate in closed executive sessions conducted pursuant to this section.
The above exemption applies only when there are actual and impending collective bargaining
negotiations. City of Fort Myers v. News-Press Publishing Company, Inc., 514 So. 2d 408 (Fla. 2d DCA
1987). It does not apply to other nonexempt topics which maybe discussed during the course of the same
meeting. Op. Att'y Gen. Fla. 85-99 (1985). Moreover, the collective bargaining negotiations between the
chief executive officer and a bargaining agent are not exempt and, pursuant to section 447.605(2), Florida
Statutes, must be conducted in the Sunshine.
b. Complaint review boards, disciplinary
hearings, and grievance committees
A complaint review board of a city police department is subject to the Government in the Sunshine
Law. Barfield v. City of West Palm Beach, No. 94-2141-AC (Fla. 15th Cir. Ct. May 6, 1994). Accord, Op.
Att'y Gen. Fla. 78-105 (1978) (police complaint review board) and Op. Att'y Gen. Fla. 80-27 (1980) (sheriff
civil service board). Similarly, a meeting of a municipal housing authority commission to conduct an
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employee termination hearing is subject to the Sunshine Law. Op. Att'y Gen. Fla. 92-65 (1992).
The Sunshine Law applies to board discussions concerning grievances and other personnel matters.
Op. Att'y Gen. Fla. 76-102 (1976). A staff grievance committee created to make nonbinding
recommendations to a county administrator regarding disposition of employee grievances is also subject to
section 286.011, Florida Statutes. Op. Att'y Gen. Fla. 84-70 (1984). And see, Palm Beach County Classroom
Teacher's Association v. School Board of Palm Beach County, 411 So. 2d 1375 (Fla. 4th DCA 1982), in
which the court affirmed the lower court's refusal to issue a temporary injunction to exclude a newspaper
reporter from a grievance hearing. A collective bargaining agreement cannot be used "to circumvent the
requirements of public meetings" in section 286.011, Florida Statutes. Id, at 1376.
Where, however, a mayor as chief executive officer, rather than the city council, is responsible under
the city charter for disciplining city employees, meetings between the mayor and a city employee concerning
discipline of the employee are not subject to the Sunshine Law. City of Sunrise v. News and Sun-Sentinel
Company, 542 So. 2d 1354 (Fla. 4th DCA 1989).
c. Interviews
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. Op. Att'y Gen. Fla. 89-37
(1989).
d. Screening advisory committees
In Wood v. Marston, 442 So. 2d 934 (Fla. 1983), a committee composed of staff which was created
for the purpose of screening applications for the position of a law school dean and making recommendations
to the faculty senate was held to be subject to section 286.011, Florida Statutes, since the committee
performed adecision-making function outside of their normal staff activities. By screening applicants and
deciding which applicants to reject from further consideration, the committee performed apolicy-based,
decision-making function delegated to it by the president of the university.
A selection committee appointed to screen applications, and rank selected applicants for submission
to the city council was determined to be subject to the Sunshine Law even though the city council was not
bound by the committee's rankings. Op. Att'y Gen. Fla. 80-20 (1980). Accord, Op. Att'y Gen. Fla. 80-51
(1980). However, if the sole function of the screening committee is simply to gather information for the
decision-maker, rather than to accept or reject applicants, the committee's activities are outside the Sunshine
Law. See, Cape Publications, Inc. v. City ofPalm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985); Knox v. District
School Board of Brevard, 821 So. 2d 311 (Fla. 5th DCA 2002).
4. Quasi judicial proceedings
The Florida Supreme Court has stated that there is no exception to the Sunshine Law which would
allow closed-door hearings or deliberations when a board or commission is acting in a "quasi-judicial"
capacity. Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973).
5. Real property negotiations
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In the absence of a statutory exemption, the negotiations by a public board or commission for the
sale or purchase of property must be conducted in the sunshine. See, City of Miami Beach v. Berns, 245 So.
2d 38 (Fla. 1971). In addition, if the authority of the public board or commission to acquire or lease property
has been delegated to a single member, that member is subject to section 286.011, Florida Statutes, and is
prohibited from negotiating the acquisition or lease of the property in secret. Op. Att'y Gen. Fla. 74-294
(1974).
E. DOES THE SUNSHINE LAW APPLY TO:
1. Members-elect or candidates
Members-elect of boards or commissions are subject to the Sunshine Law. See, Hough v.
Stembridge, 278 So. 2d 288, 289 (Fla. 3d DCA 1973). The Sunshine Law does not apply to candidates for
office, unless the candidate is an incumbent seeking reelection. Op. Att'y Gen. Fla. 92-OS (1992).
2. Members of different boards
The Sunshine Law does not apply to a meeting between individuals who are members of di, f,~erent
boards unless one or more of the individuals has been delegated the authority to act on behalf of his board.
Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984). Accord, Inf. Op. to McClash, April 29, 1992
(Sunshine Law generally not applicable to county commissioner meeting with individual member of
metropolitan planning organization).
3. A mayor and a member of the city council
If the mayor is a member of the council or has a voice in decision-making through the power to break
tie votes, meetings between the mayor and a member of the city council to discuss some matter which will
come before the city council are subject to the Sunshine Law. Ops. Att'y Gen. Fla. 83-70 (1983) and 75-210
(1975).
Where, however, the mayor is not a member of the city council and does not possess any power to
vote even in the case of a tie vote but only possesses the power to veto legislation, then the mayor may
privately meet with an individual member of the city council without violating the Sunshine Law, provided
he or she is not acting as a liaison between members and neither the mayor nor the council member has been
delegated the authority to act on behalf of the council. Ops. Att'y Gen. Fla. 90-26 (1990) and 85-36 (1985).
4. Aboard member and his or her alternate
Since the alternate is authorized to act only in the absence of a board or commission member, there
is no meeting of two individuals who exercise independent decision-making authority at the meeting. There
is, in effect, only one decision-making official present. Therefore, a meeting between a board member and
his or her alternate is not subject to the Sunshine Law. Op. Att'y Gen. Fla. 88-45 (1988).
5. Community forums sponsored by private organizations
A "Candidates' Night" sponsored by a private organization at which candidates for public office,
including several incumbent city council members, will speak about their political philosophies, trends, and
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issues facing the city, is not subject to the Sunshine Law unless the council members discuss issues coming
before the council among themselves. Op. Att'y Gen. Fla. 92-5 (1992).
Similarly, in Op. Att'y Gen. Fla. 94-62 (1994), this office concluded that the Sunshine Law does not
apply to a political forum sponsored by a private civic club during which county commissioners express their
position on matters that may foreseeably come before the commission, so long as the commissioners avoid
discussions among themselves on these issues. However, caution should be exercised to avoid situations in
which private political or community forums may be used to circumvent the statute's requirements. Id. See,
Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974) (Sunshine Law is to be construed "so as
to frustrate all evasive devices").
6. Board members attending meetings of another public board
In Op. Att'y Gen. Fla. 98-14 (1998), this office was asked whether members of a metropolitan
planning organization (MPO) who also serve as city council members m4tst separately notice a MPO meeting
when they plan to discuss MPO matters at an advertised city council meeting. The opinion concluded that
separate notice of the MPO meeting was not required as long as the agenda of the city council mentioned that
MPO business would be discussed. See also, Op. Att'y Gen. Fla. 00-68 (2000) (Sunshine Law does not
prohibit city comrrrissioners from attending other city board meetings and commenting on agenda items that
may subsequently come before the commission for final action; however, city commssioners attending such
meetings may not discuss those issues among themselves).
7. Social events
Members of a public board or commission are not prohibited under the Sunshine Law from meeting
together socially, provided that matters which may come before the board or commission are not discussed
at such gatherings. Op. Att'y Gen. Fla. 92-79 (1992). Thus, there is no per se violation of the Sunshine Law
for a husband and wife to serve on the same public board or commission so long as they do not discuss board
business without complying with the requirements of section 286.011, Florida Statutes. Op. Att'y Gen. Fla.
89-6 (1989).
F. WHAT ARE THE NOTICE AND PROCEDURAL REQUIREMENTS OF THE
SUNSHINE LAW?
1. What kind of notice of the meeting must be given?
a. Reasonable notice required
A key element of the Sunshine Law is the requirement that boards subject to the law provide
"reasonable notice" of all meetings. See, section 286.011(1), Florida Statutes. Although section 286.011 did
not contain an express notice requirement until 1995, many court decisions had stated prior to the statutory
amendment that in order for a public meeting to be in essence "public," reasonable notice of the meeting rmist
be given. Hough v. Stembridge, 278 So. 2d 288, 291(Fla. 3d DCA 1973). Accord, Yarbrough v. Young, 462
So. 2d 515, 517 (Fla. 1st DCA 1985). Notice is required even though meetings of the board are "of general
knowledge" and are not conducted in a closed door manner. TSI Southeast, Inc. v. Royals, 588 So. 2d 309
(Fla. 1st DCA 1991).
The type of notice that must be given is variable, however, depending on the facts of the situation
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and the board involved. In some instances, posting of the notice in an area set aside for that purpose may
be sufficient; in others, publication in a local newspaper may be necessary. In each case, however, an agency
must give notice at such time and in such a manner as will enable interested members of the public to attend
the meeting. Ops. Att'y Gen. Fla. 73-170 (1973) and 80-78 (1980). Cf., Lyon v. Lake County, 765 So. 2d 785
(Fla. Sth DCA 2000) (where county attorney provided citizen with "personal due notice" of a committee
meeting and its function, it would be "unjust to reward" the citizen by concluding that a meeting lacked
adequate notice because the newspaper advertisement failed to correctly name the committee).
b. Notice requirements when quorum not
present or when meeting adjourned to
a later date
Reasonable public notice is required for all meetings subject to the Sunshine Law. Thus, notice is
required for meetings between members of a public board even though a quorum is not present. Ops. Att'y
Gen. Fla. 71-346 (1971) and 90-56 (1990). If a meeting is to be adjourned and reconvened later to complete
the business fromthe agenda of the adjourned meeting, the second meeting should also be noticed. Op. Att'y
Gen. Fla. 90-56 (1990).
c. Effect of notice requirements imposed
by other statutes, codes or ordinances
The Sunshine Law only requires that reasonable public notice be given. As stated above, the type
of notice required is variable and will depend upon the circumstances. A public agency, however, may be
subject to additional notice requirements imposed by other statutes, charter or code. In such cases, the
requirements of that statute, charter, or code nn~st be strictly observed. Inf. Op. to Michael Mattirmre,
February 6, 1996.
For example, a board or commission subject to Chapter 120, Florida Statutes, the Administrative
Procedure Act, rmist comply with the notice requirements of that act. See, e. g., section 120.525, Florida
Statutes.
d. Notice requirements when board acting
as quasi-judicial body or taking action
affecting individual rights
Section 286.0105, Florida Statutes, requires:
Each board, commission, or agency of this state or of any political
subdivision thereof shall include in the notice of any meeting or hearing,
if notice of the meeting or hearing is required, of such board, commission,
or agency, conspicuously on such notice, the advice that, if a person
decides to appeal any decision made by the board, agency, or commission
with respect to any matter considered at such meeting or hearing, he or she
will need a record of the proceedings, and that, for such purpose, he or she
may need to ensure that a verbatim record of the proceedings is made,
which record includes the testimony and evidence upon which the appeal
is to be based.
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Where a public board or commission acts as aquasi-judicial body or takes official action on matters
that affect individual rights of citizens, in contrast with the rights of the public at large, the board or
commission is subject to the requirements of section 286.0105, Florida Statutes. Op. Att'y Gen. Fla. 81-06
(1981).
2. Does the Sunshine Law require that an agenda be made
available prior to board meetings or restrict the board
from taking action on matters not on the agenda?
This office recommends publication of an agenda, if available, in the notice of the meeting; if an
agenda is not available, subject matter summations might be used. Particularly if the item is controversial
or one of critical public concern, the Attorney General's Office advises that the public board or commission
postpone taking any action on the issue until it has been noticed. Inf. Op. to Evans, June 7, 1989.
The Sunshine Law, however, does not mandate that an agency provide notice of each item to be
discussed via a published agenda. Such a specific requirement has been rejected by the courts because it
could effectively preclude access to meetings by members of the general public who wish to bring specific
issues before a governmental body. See, Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). And
see, Yarbrough v. Young, 462 So. 2d S15 (Fla. 1st DCA 1985) (posted agenda unnecessary; public body not
required to postpone meeting due to inaccurate press report which was not part of the public body's official
notice efforts). Accord, Law and Information Services v. City of Riviera Beach, 670 So. 2d 1014, 1016 (Fla.
4th DCA 1996) ("[W]hether to impose a requirement that restricts every relevant commission or board from
considering matters not on an agenda is a policy decision to be made by the legislature."). See, Inf. Op. to
Mattimore, February 6, 1996 (notice of each item to be discussed at public meeting is not required under
section 286.011, Florida Statutes, although other statutes, codes, or rules, such as Chapter 120, Florida
Statutes, may impose such a requirement).
3. Does the Sunshine Law limit where meetings of a public
board or commission may be held?
a. Out-of--town meetings
The courts have recognized that the mere fact that a meeting is held in a public room does not make
it public within the meaning of the Sunshine Law. Bigelow v. Howze, 291 So. 2d 645> 647-648 (Fla. 2d DCA
1974). For a meeting to be "public," the public rmist be given advance notice and provided with a reasonable
opportunity to attend. Id. Accordingly, a school board workshop held outside county limits over 100 miles
away from the board's headquarters violated the Sunshine Law where the only advantage to the board
resulting from the out-of--town gathering (elimination of travel time and expense due to the fact that the board
members were attending a conference at the site) did not outweigh the interests of the public in having a
reasonable opportunity to attend. Rhea v. School Board of Alachua County, 636 So. 2d 1383 (Fla. 1st DCA
1994).
b. Meetings at facilities that discriminate
or unreasonably restrict access
prohibited
Section 286.011, Florida Statutes, prohibits boards or commissions subject to its provisions from
holding their meetings at any facility which discrirrunates on the basis of sex, age, race, creed, color, origin,
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or economic status, or which operates in such a manner as to unreasonably restrict public access to such a
facility. Section 286.011(6), Florida Statutes. Thus, a police pension board should not hold its meetings in
a facility where the public has limited access and where there may be a "chilling" effect on the public's
willingness to attend by requiring the public to provide identification, to leave the such identification while
attending the meeting and to request permission before entering the room where the meeting is held. Op.
Att'y Gen. Fla. 96-55 (1996).
c. Inspection trips
Members of a public board or commission are not prohibited under the Sunshine Law from
conducting inspection trips. However, if discussions relating to the business of the board will occur
between board members during an inspection trip, then the requirements of section 286.011, Florida
Statutes, must be. Op. Att'y Gen. Fla. 76-141 (19717. And see, Op. Att'y Gen. Fla. 02-24 (2002) (two
or more members of an advisory group created by a city code to make recommendations to the city
council or planning commission on proposed development may conduct vegetation surveys without
subjecting themselves to the notice and minutes requirements of the Sunshine Law, provided that they
do not discuss among themselves any recommendations the committee may make to the council or
planning commission, or comments on the proposed development that the committee may make to city
officials).
4. Can restrictions be placed on the public's attendance at,
or participation in, a public meeting?
a. Exclusion of certain members of the public
The term "open to the public" as used in the Sunshine Law means open to all who choose to attend.
Op. Att'y Gen. Fla. 99-53 (1999). A board's request that certain members of the public "voluntarily" leave
the room during portions of a public meeting is not authorized. For example, in Port Everglades Authority
v. International Longshoremen's Association, Local 1922-1, 652 So. 2d 1169 (Fla. 4th DCA 1995), the
appellate court affirmed a lower court ruling finding that a meeting of a procurement committee in which
the chairman asked each presenter "as a courtesy" to leave the meeting room while the committee considered
competing presentations violated the Sunshine Law.
Staff of a public agency clearly are members of the public as weIl as employees of the agency; they
cannot, therefore, be excluded from public meetings. Op. Att'y Gen. Fla. 79-01 (1979). Section 286.011,
Florida Statutes, however, does not preclude the reasonable application of ordinary personnel policies, for
example, the requirement that annual leave be used to attend meetings, provided that such policies do not
frustrate or subvert the purpose of the Sunshine Law. Id
b. Cameras and tape recorders
Reasonable rules and policies which ensure the orderly conduct of a public meeting and which
require orderly behavior on the part of those persons attending a public meeting may be adopted by
the board or commission. However, a board may not ban videotaping of an otherwise public meeting.
Pinellas County School Board v. Suncam, Inc., 829 So. 2d 989 (Fla. 2d DCA 2002). Similarly, a rule or
policy that prohibits nondisruptive or silent tape recording devices at public meetings is invalid. Op.
Att'y Gen. Fla. 77-122 (1977).
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c. Public's right to participate in a meeting
In providing an opportunity for public participation, the Attorney General's Office is of the view that
reasonable rules and policies, which ensure the orderly conduct of a public meeting and which require
orderly behavior on the part of those persons attending, may be adopted by a board. For example, a rule
which limits the amount of time an individual may address the board could be adopted provided that the time
limit does not unreasonably restrict the public's right of access. But see, Evergreen the Tree Treasurers of
Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So. 2d 526 (Fla. 2d DCA
2002) (county development review committee should have allowed public comment before making its
decision on a project). Compare, Law and Information Services v. City of Riviera Beach, 670 So. 2d 1014
(Fla. 4th DCA 1996) (public does not have a right to speak on all issues prior to board's resolution of the
issue); Homestead-Miami Speedway, LLC. v. City of Miami, 828 So. 2d 411 (Fla. 3d DCA 2002) (city did
not violate the Sunshine Law where there was public participation and debate in some but not all of the
meetings concerning a proposed contract).
Although not directly considering the Sunshine Law, the court in Jones v. Heyman, 888 F.2d 1328,
1333 (11th Cir. 1989), recognized that "to deny the presiding officer the authority to regulate irrelevant
debate and disruptive behavior at a public meeting -- would cause such meetings to drag on interminably,
„
and deny others the opportunity to voice their opinions. Thus the court concluded that a mayor s actions
in attempting to confine the speaker to the agenda item in the city commission meeting and having the
speaker rermved 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.
5. Must written minutes be kept of all sunshine meetings?
Section 286.011, Florida Statutes, specifically requires that minutes of a meeting of a public board
or commission be promptly recorded and open to public inspection. The minutes required to be kept for
"workshop" meetings are not different than those required for any other meeting of a public board or
commission. Op. Att'y Gen. F1a.74-62 (1974).
Draft minutes of a board meeting maybe circulated to individual board members for corrections and
studying prior to approval by the board, so long as any changes, corrections, or deletions are discussed and
adopted during the public meeting when the board adopts the minutes. Ops. Att'y Gen. Fla. 02-51 (2002)
and 74-294 (1974). The minutes are public records when the person responsible for preparing the minutes
has performed his or her duty even though they have not yet been sent to the board members or officially
approved by the board. Op. Att'y Gen. Fla. 91-26 (1991).
6. In addition to minutes, does the Sunshine Law also
require that meetings be transcribed or tape recorded?
Minutes of Sunshine Law meetings need not be verbatim transcripts of the meetings; rather the use
of the term "minutes" in section 286.011, Florida Statutes, contemplates a brief summary or series of brief
notes or mermranda reflecting the events of the meeting. Op. Att'y Gen. Fla. 82-47 (1982).
There is no requirement that tape recordings be made by the public board or comrrrission at each
public meeting. However, once made, such recordings are public records and their retention is controlled
by section 119.041, Florida Statutes, and the schedules established by the Division of Library and
Information Services of the Department of State. Op. Att'y Gen. Fla. 86-21 (1986).
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7. May members of a public board vote by written or secret ballot?
Board members are not prohibited from using written ballots to cast a vote as long as the votes are
made openly at a public meeting, and the ballots are maintained and made available for public inspection in
accordance with the Public Records Act. Op. Att'y Gen. Fla. 73-344 (1973).
By contrast, a secret ballot violates the Sunshine Law. See, Op. Att'y Gen. Fla. 73-264 (1973)
(members of a personnel board may not vote by secret ballot during a hearing concerning a public employee).
Accord, Ops. Att'y Gen. Fla. 72-326 (1972) and 71-32 (1971) (board may not use secret ballots to elect the
chairman and other officers of the board).
G. WHAT ARE THE CONSEQUENCES IF A PUBLIC BOARD OR
COMMISSION FAILS TO COMPLY WITH THE SUNSHINE LAW?
1. Criminal penalties
Any member of a board or commission or of any state agency or authority of a county, rmmicipal
corporation, or political subdivision who knowingly violates the Sunshine Law is guilty of a misdemeanor
of the second degree. Section 286.011(3)(b), Florida Statutes. Conduct which occurs outside the state which
constitutes a knowing violation of the Sunshine Law is a second degree misdemeanor. Section 286.011(3)(c),
Florida Statutes. Such violations are prosecuted in the county in which the board or commission normally
conducts its official business. Section 910.16, Florida Statutes. The criminal penalties apply to members
of advisory councils subject to the Sunshine Law as well as to members of elected or appointed boards. Op.
Att'y Gen. Fla. 01-84 (2001) (school advisory council members).
2. Removal from office
When a method for removal from office is not otherwise provided by the Constitution or by law, the
Governor may suspend an elected or appointed public officer who is indicted or informed against for any
misdemeanor arising directly out of his official duties. Section 112.52, Florida Statutes. If convicted, the
officer maybe removed from office by executive order of the Governor. A person who pleads guilty or nolo
contendere or who is found guilty is, for purposes of section 112.52, Florida Statutes, deemed to have been
convicted, notwithstanding the suspension of sentence or the withholding of adjudication. Cf., section
112.51, Florida Statutes, and article IV, section 7, Florida Constitution.
3. Noncriminal infractions
Section 286.011(3)(a), Florida Statutes, imposes noncriminal penalties for violations of the Sunshine
Law by providing that any public official violating the provisions of the Sunshine Law is guilty of a
noncriminal infraction, punishable by a fine not exceeding $500. The state attorney may pursue actions on
behalf of the state against public officials for violations of section 286.011, Florida Statutes, which result
in a fording of guilt for a noncriminal infraction. Op. Att'y Gen. Fla. 91-38 (1991).
4. Attorney's fees
Reasonable attorney's fees will be assessed against a board or commission found to have violated
section 286.011, Florida Statutes. Such fees may be assessed against the individual members of the board
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except in those cases where the board sought, and took, the advice of its attorney, such fees may not be
assessed against the individual members of the board. Section 286.011(4), Florida Statutes.
Section 286.011(4) also authorizes an award of appellate fees if a person successfully appeals a trial
court order denying access. School Board of Alachua County v. Rhea, 661 So. 2d 331 (Fla. 1st DCA 1995),
review denied, 670 So. 2d 939 (Fla. 1996). However, this statute "does not supersede the appellate rules,
nor does it authorize the trial court to make an initial award of appellate attorney's fees." Id, at 332. Thus,
a person prevailing on appeal must file an appropriate motion in the appellate court in order to receive
appellate attorney's fees.
5. Civil actions for injunctive or declaratory relief
Section 286.011(2), Florida Statutes, states that the circuit courts have jurisdiction to issue
injunctions upon application by any citizen of this state. The burden of prevailing in such actions has been
significantly eased by the judiciary in sunshine cases. While normally irreparable injury must be proved by
the plaintiff before an injunction maybe issued, in Sunshine Law cases the mere showing that the law has
been violated constitutes "irreparable public injury." Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla.
1974); Times Publishing Company v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved in part on
other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985).
Although a court cannot issue a blanket order enjoining any violation of the Sunshine Law on a
showing that it was violated in particular respects, a court may enjoin a future violation that bears some
resemblance to the past violation. Port Everglades Authority v. International Longshoremen's Association,
Local 1922-1, 652 So. 2d 1169, 1173 (Fla. 4th DCA 1995). The future conduct mast be "specified, with such
reasonable definiteness and certainty that the defendant could readily know what it must refrain from doing
without speculation and conjecture." Id., quoting fromBoard of Public Instruction v. Doran, 224 So. 2d 693,
699 (Fla. 1969).
6. Validity of action taken in violation of the
Sunshine Law and subsequent corrective action
Section 286.011, Florida Statutes, provides that no resolution, rule, regulation or formal action shall
be considered binding except as taken or made at an open meeting.
Recognizing that the Sunshine Law should be construed so as to frustrate all evasive devices, the
courts have held that action taken in violation of the law was void ab initio. Town of Palm Beach v.
Gradison, 296 So. 2d 473 (Fla. 1974), cert. denied, 307 So. 2d 448 (Fla. 1974); Blackford v. School Board
of Orange County, 375 So. 2d 578 (Fla. Sth DCA 1979) (resolutions made during meetings held in violation
of section 286.011, Florida Statutes, had to be re-examined and re-discussed in open public meetings); and
TSI Southeast, Inc. v. Royals, 588 So. 2d 309 (Fla. 1st DCA 1991) (contract for sale and purchase of real
property voided because board failed to properly notice the meeting under section 286.011, Florida Statutes).
Where, however, a public board or commission does not merely perfunctorily ratify or ceremoniously
accept at a later open meeting those decisions which were made at an earlier secret meeting but rather takes
"independent ,final action in the sunshine," the decision of the board or commission will not be disturbed.
Tolar v. School Board of Liberty County, 398 So. 2d 427, 429 (Fla. 1981). Cf., Zorc v. City of Vero Beach,
722 So. 2d 891, 903 (Fla. 4th DCA 1998) (meeting did not cure the Sunshine defect because it was not,a
"full, open public hearing convened for the purpose of enabling the public to express its views and participate
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in the decision-making process")
II. PUBLIC RECORDS
A. WHAT IS A PUBLIC RECORD WHICH IS OPEN TO INSPECTION?
1. What materials are public records?
Section 119.011(1), Florida Statutes, defines "public records" to include:
all documents, papers, letters, maps, books, tapes, photographs, films,
sound recordings, data processing software, or other material, regardless of
the physical form, characteristics, or means of transmission, made or
received pursuant to law or ordinance or in connection with the transaction
of official business by any agency.
The Florida Supreme Court has interpreted this definition to encompass all materials made or
received by an agency in connection with official business which are used to perpetuate, comrrninicate or
formalize knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640
(Fla. 1980). All such materials, regardless of whether they are in final form, are open for public inspection
unless the Legislature has exempted them from disclosure. Wait v. Florida Power & Light Company, 372
So. 2d 420 (Fla. 1979). Cf., Media General Convergence, Inc. v. Chief Judge of the Thirteenth Judicial
Circuit, 28 F.L. W. S 129, 132 (Fla. February 13, 2003) (while "general e-mails, notes or invitations regarding
social gatherings most likely would not constitute documents made or received in the course of official court
business ... it is another matter where ...the requested records relate to complaints of sexual harassment
or sexually inappropriate comments made at the courthouse by a judge to a court employee").
2. When are notes or nonjinal drafts of agency proposals
subject to Chapter 119, Florida Statutes?
There is no "unfinished business" exception to the public inspection and copying requirements of
Chapter 119, Florida Statutes. If the purpose of a document prepared in connection with the official business
of a public agency is to perpetuate, communicate, or formalize knowledge, then it is a public record
regardless of whether it is in final form or the ultimate product of an agency. Shevin v. Byron, Harless,
Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980). See also, Warden v. Bennett, 340 So. 2d 977
(Fla. 2d DCA 1976) (working papers used in preparing a college budget were public records).
Accordingly, any agency document, however prepared, if circulated for review, comment or
information, is a public record regardless of whether it is an official expression of policy or marked
"preliminary" or "working draft" or similar label. Examples of such materials would include interoffice
memoranda, preliminary drafts of agency rules or proposals which have been submitted for review to anyone
within or outside the agency, and working drafts of reports which have been furnished to a supervisor for
review or approval.
In each of these cases, the fact that the records are part of a preliminary process does not detract from
their essential character as public records. See, Times Publishing Co. v. City of St. Petersburg, SS8 So. 2d
A87, 494 (Fla. 2d DCA 1990) (while the mere preparation of documents for submission to a public body
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does not create public records, the documents can become public records when exhibited to public officials
and revised as part of a bargaining process); and Op. Att'y Gen. Fla. 91-26 (1991) (minutes of city council
meetings are public records once minutes have been prepared by clerk even though minutes have not yet been
sent to city council members and have not been officially approved by the city council). It follows then that
such records are subject to disclosure unless the Legislature has specifically exempted the documents from
inspection or has otherwise expressly acted to make the records confidential. See, for example, section
119.07(3)(1), Florida Statutes, providing a limited work product exemption for agency attorneys.
However, "under chapter 119 public employees' notes to themselves which are designed for their
own personal use in remembering certain things do not fall within the definition of 'public record."' The
Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 823 So. 2d 185,
192 (Fla. 1st INCA 2002). Accord, Coleman v. Austin, 521 So. 2d 247 (Fla. 1st DCA 1988), holding that
preliminary handwritten notes prepared by agency attorneys and intended only for the attorneys' own
personal use are not public records.
Nevertheless, so-called "personal" notes can constitute public records if they are intended to
communicate, perpetuate or formalize knowledge of some type. See, e.g., City of Pinellas Park, Florida v.
Times Publishing Company, No. 00-008234CI-19 (Fla. 6th Cir. Ct. January 3, 2001) (rejecting city's
argument that employee responses to survey are "notes" which are not subject to disclosure because "as to
each of the employees, their responses were prepared in connection with their official agency business and
they were 'intended to perpetuate, comrrnxnicate, or formalize knowledge' that they had about their
department").
B. WHAT AGENCIES ARE SUBJECT TO THE PUBLIC RECORDS ACT?
Section 119.011(2), Florida Statutes, defines "agency" to include:
any state, county, district, authority, or municipal officer, department,
division, board, bureau, commission, or other separate unit of government
created or established by law including, for the purposes of this chapter, the
Commission on Ethics, the Public Service Commission, and the Office of
Public Counsel, and any other public or private agency, person, partnership,
corporation, or business entity acting on behalf of any public agency.
Article I, section 24, Florida Constitution, establishes a constitutional right of access to any public
record made or received in connection with the official business of any public body, officer, or employee of
the state, or persons acting on their behalf, except those records exempted by law pursuant to Article I,
section 24, Florida Constitution, or specifically made confidential by the Constitution. This right of access
to public records applies to the legislative, executive, and judicial branches of government; counties,
municipalities, and districts; and each constitutional officer, board, and commission, or entity created
pursuant to law or by the Constitution. However, although a right of access exists under the Constitution to
all three branches of government, the Public Records Act, as a legislative enactment, does not apply to the
Legislature or the judiciary. See, Locke v. Hawkes> 595 So. 2d 32 (Fla. 1992).
1. Advisory boards
The definition of "agency" for purposes of Chapter 119, Florida Statutes, is not limited to
governmental entities. A "public or private agency, person, partnership, corporation, or business entity acting
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on behalf of any public agency" is also subject to the requirements of the Public Records Act. See also,
Article I, section 24, Florida Constitution, providing that the constitutional right of access to public records
extends to "any public body, officer, or employee of the state, or persons acting on their behalf...." (e.s.)
2. Private organizations
A more complex question is posed when a private corporation or entity, not otherwise connected with
government, provides services for a governmental body. The term "agency" as used in the Public Records
Act includes private entities "acting on behalf of any public agency." Section 119.011(2), Florida Statutes.
The Florida Supreme Court has stated that this broad definition of "agency" ensures that a public
agency cannot avoid disclosure by contractually delegating to a private entity that which would otherwise
be an agency responsibility. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural
Group, Inc., 596 So. 2d 1029 (Fla. 1992). Cf., Booksmart Enterprises, Inc. v. Barnes & Noble College
Bookstores, Inc.> 718 So. 2d 227, 229 n.4 (Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999)
(private company operating college bookstores was an "agency" as defined in section 119.011 [2], Florida
Statutes, "notwithstanding the language in its contract with the universities that purports to deny any agency
relationship").
a. Receipt of public funds by private entity
not dispositive
There is no single factor which is controlling on the question of when a private corporation becomes
subject to the Public Records Act. For example, a private corporation does not act "on behalf of a public
agency merely by entering into a contract to provide professional services to the agency. News and Sun-
Sentinel Company v. Schwab, Twitty &HanserArchitectural Group, Inc., supra. And see, Weekly Planet,
Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970 (Fla. 2d DCA 2002) (fact that private
development is located on land the developer leased from a governmental agency does not transform the
leases between the developer and other private entities into public records).
Similarly, the receipt of public funds, standing alone, is not diapositive of the organization's status
for purposes of Chapter 119, Florida Statutes. See, Sarasota Herald-Tribune Company v. Community Health
Corporation, Inc., 582 So. 2d 730 (Fla. 2d DCA 1991), in which the court noted that the mere provision of
public funds to the private organization is not an important factor in this analysis, although the provision of
a substantial share of the capitalization of the organization is important. See also, Times Publishing
Company v. Acton, No. 99-8304 (Fla. 13th Cir. Ct. November S, 1999) (attorneys retained by individual
county commissioners in a criminal matter were not "acting on behalf of a public agency so as to become
subject to the Public Records Act, even though the board of county commissioners subsequently voted to pay
the legal expenses in accordance with a county policy providing for reimbursement of legal expenses to
individual county officers who successfully defend criminal charges filed against them arising out of the
performance of their official duties).
b. "Totality of factors" test
Recognizing that "the statute provides no clear criteria for determining when a private entity is 'acting
on behalf of a public agency," the Supreme Court adopted a "totality of factors" approach to use as a guide
for evaluating whether a private entity is subject to Chapter 119, Florida Statutes. News and Sun-Sentinel
Company v. Schwab, Twitty &HanserArchitectural Group, Inc. ,supra at 1031. Accord, Memorial Hospital
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West-Volusia, Inc. v. News-Journal Corporation, 729 So. 2d 373 (Fla. 1999) (private entities should look
to the factors announced in Schwab to determine their possible agency status under Chapter 119 and under
Article I, section 24 of the Florida Constitution).
The factors listed by the Supreme Court include the following:
1) the level of public funding;
2) commingling of funds;
3) whether the activity was conducted on publicly-owned
property;
4) whether services contracted for are an integral part of the
public agency's chosen decision-making process;
5) whether the private entity is performing a governmental
function or a function which the public agency otherwise
would perform;
6) the extent of the public agency's involvement with,
regulation of, or control over the private entity;
7) whether the private entity was created by the public
agency;
8) whether the public agency has a substantial financial
interest in the private entity;
9) for whose benefit the private entity is functioning.
c. Private entfties created pursuant to law
or by public .agencies
The fact that a private entity is incorporated as a nonprofit corporation is not dispositive as to its
status under the Public Records Act. The issue is whether the entity is "acting on behalf of an agency. This
office has issued numerous opinions advising that if a nonprofit entity is established by law, it is subject to
Chapter 119 disclosure requirements. See, Op. Att'y Gen. Fla. 94-32 (1994) (Florida Windstorm Joint
Underwriting Association, a private nonprofit association established pursuant to a plan adopted by rule of
the Department of Insurance in accordance with statutory authorization).
d. Private entities providing services to
public agencies
As stated previously, the mere fact that a private entity is under contract with, or receiving funds
from, a public agency is not sufficient, standing alone, to bring that agency within the scope of the Public
Records Act. See, Stanfield v. Salvation Army, 695 So. 2d 501, 503 (Fla. Sth DCA 1997) (contract between
Salvation Army and county to provide services does not in and of itself subject the organization to Chapter
119 disclosure requirements).
However, there is a difference between a party contracting with a public agency to provide services
to the agency and a contracting party which provides services in place of the public body. News-Journal
Corporation v. Memorial Hospital-West Yolusia, Inc., 695 So. 2d 418 (Fla. Sth DCA 1997), approved, 729
So. 2d 373 (Fla. 1999). Stated another way, business records of entities which merely provide services for
an agency to use (such as legal professional services, for example) are probably not subject to the open
government laws. Id. But, if the entity contracts to relieve the public body from the operation of a public
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obligation (such as operating a jail or providing fire protection) the open government laws do apply. Id.
Thus, in Stanfield v. Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997), the court ruled that
the Salvation Army was subject to the Public Records Act when it completely assumed the
responsibility to provide misdemeanor probation services pursuant to a contract with Marion County.
And see, Putnam County Humane Society, Inc. v. Woodward, 740 So. 2d 1238 (Fla. 5th DCA 1999)
(where county humane society assumed governmental function pursuant to statute to investigate acts
of animal abuse and to seize animals, society's records that were created and maintained pursuant to
its statutory authority are subject to the Public Records Act); and Dade Aviation Consultants v. Knight
Ridder, Inc., 800 So. 2d 302 (Fla. 3d DCA 2001) (a consortium of private businesses created to manage
a massive renovation of an airport is an "agency" for purposes of the Public Records Act because it
was created for and had no purpose other than to work on the airport contract; "when a private entity
undertakes to provide a service otherwise provided by the government, the entity is bound by the Act,
as the government would be").
If a private organization contracting with a public agency is deemed to be an "agency," the terms
of Chapter 119, Florida Statutes, are applicable to those materials made or received by the private
organization in the course of its contract with the public agency. See, Shevin v. Byron, Harless, Schaffer,
Reid and Associates, 379 So. 2d 633 (Fla. 1980) (private consultant retained to conduct confidential
employment search for city electric authority was an "agency" for purposes of Chapter 119, Florida Statutes;
thus, letters, memoranda, resumes, and travel vouchers made or received by consultant in connection with
search were public records); and Wallace v. Guzman, 68? So. 2d 1351, 1353 (Fla. 3d DCA 1997) (public
official's assumption that financial documents submitted to the agency's consultants, rather than to the
agency's staff, would be exempt from disclosure "clearly was wrong," citing to Shevin v. Byron, Harless).
e. Private company delegated authority to
keep certain records
In Times Publishing Company v. City of St. Petersburg, 858 So. 2d 487> 494 (Fla. 2d DCA 1990),
a private entity (the White Sox baseball organization) refused to allow access to draft lease documents and
other records generated in connection with negotiations between the White Sox and a city for use of a
rminicipal stadium The court determined that both the White Sox and the city improperly attempted to
circumvent the Public Records Act by agreeing to keep all negotiation documents confidential and in the
custody of the White Sox. However, the plan to withhold the documents from public inspection failed. The
court ruled that both the city and the White Sox had violated Chapter 119, Florida Statutes. See also, Wisner
v. City of Tampa, 601 So. 2d 296 (Fla. 2d DCA 1992) (city may not allow a private entity to maintain
physical custody of public records [polygraph chart used in police internal affairs investigation] "to
circumvent the public records chapter").
Thus, if a public agency has delegated its responsibility to maintain records necessary to perform its
functions, such records will be deemed accessible to the public. Op. Att'y Gen. Fla. 98-54 (1998)
(registration and disciplinary records stored in a computer database maintained by a national securities
association which are used by the Deparh~nt of Banking and Finance in licensing and regulating securities
dealers doing business in Florida are public records). See also, Harold v. Orange County, 668 So. 2d 1010
(Fla. Sth DCA 1996) (where a county hired a private company to be the construction manager on a renovation
project and delegated to the company the responsibility of maintaining records necessary to show compliance
with a "fairness in procurement ordinance," the company's records for this purpose were public records).
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C. WHAT KINDS OF AGENCY RECORDS ARE SUBJECT TO THE
PUBLIC RECORDS ACT?
1. Computer records
In 1982, the Fourth District Court of Appeal stated that information stored in a public agency's
computer "is as match a public record as a written page in a book or a tabulation in a file stored in a filing
cabinet ...." Seigle v. Barry, 422 So. 2d 63, 65 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla.
1983). Thus, the Public Records Act includes computer records as well as paper documents, tape recordings,
and other more tangible materials. See, e.g., Op. Att'y Gen. Fla. 98-54 (1998) (applications and disciplinary
reports maintained in a computer system operated by a national securities dealers association which are
received electronically by state agency for use in licensing and regulating securities dealers doing business
in Florida are public records subject to Chapter 119); Op. Att'y Gen. Fla. 91-61 (1991) (computer data
software disk is a public record); Op. Att'y Gen. Fla. 89-39 (1989) (information stored in computer utilized
by county commissioners to facilitate and conduct their official business is subject to Chapter 119, Florida
Statutes); and Op. Att'y Gen. Fla. 85-03 (1985) (computer tapes are public records).
Thus, computerized public records are governed by the same rule as written documents and other
public records -- the records are subject to public inspection unless a statutory exemption exists which
removes the records from disclosure. Cf., AGO 90-04, stating that a county official is not authorized to
assign the county's right to a public record (a computer program developed by a former employee while he
was working for the county) as part of a settlement of a lawsuit against the county.
a. "E-Mail"
"E-mail" messages made or received by agency employees in connection with oft3cial business
are public records and subject to disclosure in the absence of a statutory exemption from public
inspection. Op. Att'y Gen. Fla. 96-34 (1996). Such messages are subject to the statutory restrictions
on destruction of public records, which require agencies to adopt a schedule for the disposal of records
no longer needed Id. See, section 257.36(6), Florida Statutes, stating that a public record. may be
destroyed only in accordance with retention schedules established by the Division of Library and
Information Services of the Department of State. Id.
The nature of information -- that is, that It is electronically generated and transferred -- has
been determined not to alter Its character as a public record under the Public Records Act. Op. Att'y
Gen. Fla. 01-20 (2001). Thus, the a-mail communicatfon of factual background information and
position papers from one official to another is a public record and should be retained in accordance
with the retention schedule for other records relating to performance of the agency's functions and
formulation of policy. Id.
There is no exception from the Public Records Act for so-called "personal" a-mail on agency-
owned computers. Inf. Op. to Harris, July 18, 2001. However, private email stored in government
computers does not automatically become a public record by virtue of that storage. Times Publishing
Company v. City of Clearwater, 830 So. 2d 844 (Fla. 2d DCA 2002), review pending, No. SC02-1694 (Fla.
2002).
b. Formatting issues
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Each agency that maintains a public record in an electronic recordkeeping system shall provide to
any person, pursuant to Chapter 119, a copy of any public record in that system which is not exempted by
law from public disclosure. Section 119.083(5), Florida Statutes. An agency that maintains a public record
in an electronic recordkeeping system must provide a copy of the record in the medium requested by the
person making a Chapter 119 demand, if the agency maintains the record in that medium, and the fee charged
shall be in accordance with Chapter 119, Florida Statutes. Id Thus, a custodian of public records must, if
asked for a copy of a computer software disk used by an agency, provide a copy of the disk in its original
format; a typed transcript would not satisfy the requirements of section 119.07(1}, Florida Statutes. Op. Att'y
Gen. Fla. 91-61 (1991).
However, an agency is not generally required to reformat its records to meet a requestor's particular
needs. As stated in Seigle v. Barry, the intent of C'h. 119, Florida Statutes, is "to make available to the public
information which is a matter of public record, in some meaningful form, not necessarily that which the
applicant prefers." 422 So. 2d at 66. Thus, this office concluded that a school district was not required to
furnish electronic public records in electronic format other than the standard format routinely maintained by
the district. Op. Att'y Gen. Fla. 97-39 (1997).
Despite the general rule, however, the Seigle court recognized that an agency may be required to
provide access through a specially designed program prepared by or at the expense of the applicant where:
(1) available programs do not access all of the public records
stored in the computer's data banks; or
(2) the information in the computer accessible by the use of
available programs would include exempt information
necessitating a special program to delete such exempt
items; or
(3) for any reason the form in which the information is
proffered does not fairly and meaningfully represent the
records; or
(4) the court determines other exceptional circumstances exist
warranting this special remedy. 422 So. 2d at 66, 67.
c. Remote access
Section 119.085, Florida Statutes, authorizes but does not require agencies to provide remote
electronic access to public records. However; unless otherwise .required by law, the custodian may charge
a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may
include the direct and indirect costs of providing such access. Fees for remote electronic access provided
to the general public must be in accordance with the provisions of section 119.07(1), Florida Statutes.
Section 119.085 also requires that the custodian provide safeguards to protect the contents of the
public records from unauthorized electronic access or alteration and to prevent the disclosure or modification
of those portions of the records which are exempt from disclosure. See, Inf. Op. to Honorable Shirley Brown,
July 21, 1993 (in providing remote electronic access, Department of Highway Safety and Motor Vehicles
is required to provide certain safeguards, as required by section 320.05(2), Florida Statutes, prior to release
of public motor vehicle registration information).
2. Financial records
-2~-
Many agencies prepare or receive financial records as part of their official duties and responsibilities.
As with other public records, these materials are generally open to inspection unless a specific statutory
exemption exists. See, Op. Att'y Gen. Fla. 96-96 (1996) (financial information submitted by harbor pilots
in support of a pilotage rate increase application is not exempt from disclosure requirements).
a. Audit reports
The audit report prepared by the Auditor General is a public record when it has been finalized.
Section 11.45(4)(c), Florida Statutes. The audit workpapers and notes are not a public record; however,
those workpapers necessary to support the computations in the final audit report maybe made available by
a majority vote of the Legislative Auditing Committee after a public hearing showing proper cause. Id. At
the conclusion of the audit, the Auditor General provides the head of the agency being audited with a list of
the adverse findings so that the agency head may explain or rebut thembefore the report is finalized. Section
11.45(4)(d), Florida Statutes. This list of adverse audit findings is a public record. Op. Att'y Gen. Fla. 79-75
(1979).
The audit report of an internal auditor prepared. for or on behalf of a unit of local government
becomes a public record when the audit becomes final. Section 119.07(3)(y), Florida Statutes. The audit
becomes final when the audit report is presented to the unit of local government; until the audit becomes
final, the audit workpapers and notes related to such audit report are confidential. Id Thus, a draft audit
report of a county legal department which was prepared by the clerk of court, acting in her capacity as county
auditor, did not become subject to disclosure when the clerk submitted copies of her draft report to the county
administrator for review and response. Nicolai v. Baldwin, 715 So. 2d 1161 (Fla. 5th DCA 1998). Pursuant
to section 119.07(3)(y), Florida Statutes, the report would become "final," and hence subject to disclosure,
when presented to the county commission. Id.
b. Bids
Section 119.07(3)(m), Florida Statutes, provides an exemption for "sealed bids or proposals received
by an agency pursuant to invitations to bid or requests for proposals" until such time as the agency provides
notice of a decision or intended decision pursuant to section 120.57(3}(a) or within 10 days after bid or
proposal opening, whichever is earlier.
c. Budgets
Budgets and working papers used to prepare them are normally subject to inspection. Bay County
School Board v. Public Employees Relations Commission, 382 So. Zd 747 (Fla. 1st DCA 1980); Warden v.
Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976); City of Gainesville v. State ex. rel. International Association
of Fire Fighters Local No. 2157, 298 So. 2d 478 (Fla. 1st DCA 1974).
d. Personal financial records
In the absence of statutory exemption, financial information prepared or received by an agency is
usually subject to Chapter 119> Florida Statutes. See, Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA
1997) (personal income tax returns and financial statements submitted by public officials as part of an
application to organize a bank are subject to disclosure).
B ank account numbers and debit, charge, and credit card numbers held by an agency are exempt from
-28-
public disclosure. Section 119.07(3)(dd), Florida Statutes.
e. Security interests
Records regarding ownership of, or security interests in, registered public obligations are not open
to inspection. Section 279.11, Florida Statutes.
f. Telephone bills
Records of telephone calls made from agency telephones are subject to disclosure in the absence of
statutory exemption. See, Crespo v. Florida Entertainment Direct Support Organization, No. 94-4674 (Fla.
11th Cir. Ct. April 10, 1995) (telephone bills for calls made by agency official open to public inspection).
Accord, Gillum v. Times Publishing Company, No. 91-2689-CA (Fla. 6th Cir. Ct. July 10, 1991). The
telephone numbers contained in the school district's records of calls made on school district telephones are
public records even when those calls may be personal and the employee pays or reimburses the school district
for the calls. Op. Att'y Gen. Fla. 99-74 (1999). And see, Media General Operation, Inc., v. Feeney, No. 02-
2849 (Fla. 1st DCA February 21, 2003) (those portions of cellular phone records of legislative employees
which relate to official business are public record, notwithstanding the fact that the phones and phone service
are provided by a political party rather than the legislature; however, those portions of the records which the
employees designate as private maybe redacted).
g. Trade secrets
The Attorney General's Office has concluded that the fact that information constitutes a trade secret
under section 812.081 does not, in and of itself, remove it from the requirements of the Public Records Act.
Op. Att'y Gen. Fla. 92-43 (1992). Compare, Sepro Corporation v. Florida Department of Environmental
Protection, 28 F.L.W. D492 (Fla. 1st DCA February 12, 2003) (section 815.045, Florida Statutes, exempts
trade secrets from public disclosure; thus, documents designated by private company as confidential trade
secrets and submitted to a state agency are exempt from disclosure requirements).
3. Investigation records of non law enforcement agencies
In the absence of a specific legislative exemption, investigative records made or received by public
agencies are open to public inspection pursuant to Chapter 119, Florida Statutes. State ex rel. Peale v. City
of Boca Raton, 353 So. 2d 1194 (Fla. 4th DCA 1977), cert. denied, 360 So. 2d 1247 (Fla. 1978). Accord,
Op. Att'y Gen. Fla. 91-75 (1991) (documents containing information compiled by school board employees
during an investigation of school district deparhnents are open to inspection in the absence of statutory
exemption). Cf., Carney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973) (no
quasi-judicial exception to the Sunshine Law which would allow closed door hearings or deh~erations when
a board or commission is acting in a "quasi-judicial" capacity).
Section 119.07(3)(b) through (i), Florida Statutes, contains limited exemptions from disclosure for
specified law enforcement records which, absent statutory authority, do not apply to investigations conducted
by agencies outside the criminal justice system See, Douglas v. Michel, 410 So. 2d 936, 939 (Fla. 5th DCA
1982), questions answered and approved, 464 So. 2d 545 (Fla. 1985) (exemption for "information revealing
surveillance techniques or procedures or personnel" [now found at section 119.07(3)(d)) does not apply to
a hospital's personnel files). See also, Op. Att'y Gen. Fla. 87-51 (1987), concluding that complaints from
employees of the Department of Labor and Employment Security relating to departmental integrity and
-29-
efficiency do not constitute criminal intelligence information or criminal investigative information.
4. Litigation records
a. Attorney-client communications
subject to Chapter 119, Florida
Statutes
The Public Records Act applies to communications between attorneys and governmental agencies;
there is no judicially created privilege which exempts these documents from disclosure. Wait v. Florida
Power & Light Company> 372 So. 2d 420 (Fla. 1979) (only the Legislature and not the judiciary can exempt
attorney-client comtrntnications fromChapter 119, Florida Statutes). See also, City of North Miami v. Miami
Herald Publishing Company, 468 So. 2d 218 (Fla. 1985) (although section 90.502, Florida Statutes, of the
Evidence Code establishes an attorney-client privilege for public and private entities, this evidentiary statute
does not rermve comtrnnications between an agency and its attorney from the open inspection requirements
of Chapter 119, Florida Statutes).
Moreover, public disclosure of these documents does not violate the public agency's constitutional
rights of due process, effective assistance of counsel, freedom of speech, or the Supreme Court's exclusive
jurisdiction over The Florida Bar. City of North Miami v. Miami Herald Publishing Company, supra.
Accord, Brevard County v. Nash, 468 So. 2d 240 (Fla. 5th DCA 1984); Edelstein v. Donner, 450 So. 2d 562
(Fla. 3d DCA 1984), approved, 471 So. 2d 26 (Fla. 1985).
b. Limited statutory work product exemption
(1) Scope of exemption
The Supreme Court has .ruled that the Legislature and not the judiciary has exclusive authority to
exempt litigation records from the scope of Chapter 119, Florida Statutes. Wait v. Florida Power & Light
Company, 372 So. 2d 420 (Fla. 1979). With the enactment of section 119.07(3)(1), Florida Statutes, the
Legislature has created a narrow exemption for certain litigation work product of agency attorneys.
Note that this statutory exemption applies to attorney work product that has reached the status of
becoming a public record; as discussed more extensively in the section relating to "attorney notes," certain
preliminary trial preparation materials, such as handwritten notes for the personal use of the attorney, are not
considered to be within the definitional scope of the term "public records" and, therefore, are outside the
scope of Chapter 119, Florida Statutes. See, Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998).
a. Attorney bills and payments
Only those records which reflect a "mental impression, conclusion, litigation strategy, or legal
theory" are included within the parameters of the work product exemption. Accordingly, a contract between
a county and a private law firm for legal counsel and documentation for invoices submitted by such firm to
the county do not fall within the work product exemption. Op. Att'y Gen. Fla. 85-89 (1985). If the bills and
invoices contain some information exempted by section 119.07(3)(1) -- i.e., "mental impression[s],
conclusion[s], litigation strateg[ies], or legal theor[ies]," -- the exempt material may be deleted and the
remainder disclosed. Id However, information such as the hours worked or the hourly wage clearly would
not fall within the scope of the exemption. Id
-sa
Thus, an agency which improperly "blocked out" most notations on invoices prepared in connection
with services rendered by and fees paid to attorneys representing the agency, "improperly withheld"
nonexempt material when it failed to limit its redactions to those items "genuinely reflecting its 'mental
impression, conclusion, litigation strategy, or legal theory. "' Smith & Williams, P.A. v. West Coast Regional
Water Supply Authority, 640 So. 2d 216 (Fla. 2d DCA 1994). And see, Op. Attu Gen. Fla. 00-07 (2000)
(records of outside attorney fee bills received by the county's risk management office for the defense of the
county, as well as its employees who are sued individually, for alleged civil rights violations are public
records subject to disclosure).
b. Investigations
Section 119.07(3)(1), Florida Statutes, does not create a blanket exception to the Public Records Act
for all attorney work product. Op. Att'y Gen. Fla. 91-75 (1991). The exemption is narrower than the work
product privilege recognized by the courts for private litigants. Op. Att'y Gen. Fla. 85-89 (1985). In order
to qualify for the work product exemption, the records rrnist have been prepared exclusively for or in
anticipation of litigation or adversarial administrative proceedings; records prepared for other purposes may
not be converted into exempt material simply because they are also used in or related to the litigation.
Moreover, only those records which are prepared by or at the express direction of the agency
attorney and reflect "a mental impression, conclusion, litigation strategy, or legal theory of the attorney or
the agency" are exempt from disclosure until the conclusion of the proceedings. (e.s.) See, City of North
Miami v. Miami Herald Publishing Company, 468 So. 2d 218, 219 (Fla. 1985) (noting application of
exemption to "government agency, attorney-prepared litigation files during the pendency of litigation"); and
City of Miami Beach v. DeLapp, 472 So. 2d 543 (Fla. 3d DCA 1985) (opposing counsel not entitled to city's
legal memoranda as such material is exempt work product). Compare, City of Orlando v. Desjardins, 493
So. 2d 1027, 1028 (Fla. 1986) (trial court rrnist examine city's litigation file in accident case and prohibit
disclosure only of those records reflecting mental impression, conclusion, litigation strategy or legal theory
of attorney or city).
Thus, a circuit judge refused to apply the exemption to tapes, witness statements and interview notes
taken by police as part of an investigation of a drowning accident at a city summer camp. Sun-Sentinel
Company v. City of Hallandale, No. 95-13528(05) (Fla. 17th Cir. Ct. October 11, 1995). The court, in the
Sun-Sentinel case, also stated that the section 768.28[ 15][b], Florida Statutes, exemption for risk management
files did not apply. See also, Op. Att'y Gen. Fla. 91-75 (1991) (work product exemption not applicable to
documents generated or received by school district investigators, acting at the direction of the school board
to conduct an investigation of certain school district departments).
(2) Commencement and termination of exemption
Unlike the open meetings exemption in section 286.011(8), Florida Statutes, for certain attomey-
client discussions between a governmental agency and its attorney, section 119.07(3)(1), Florida Statutes, is
not limited to records created for pending litigation or proceedings, but applies also to records prepared "in
anticipation of imtinent civil or criminal litigation or imminent adversarial adrrunistrative proceedings."
See, Op. Att'y Gen. Fla. 98-21 (1998), discussing the differences between the public records work product
exemption in section 119.07(3)(1), and the Sunshine Law exemption in section 286.011.
But, the exemption from disclosure provided by section 119.07(3)(1), Florida Statutes, is temporary
and limited in duration. City of North Miami v. Miami Herald Publishing Co., supra. The exemption exists
-31-
only until the "conclusion of the litigation or adversarial administrative proceedings" even if other issues
remain. Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586
(Fla. 1988).
For example, if the state settles a claim against one company accused of conspiracy to fix prices, the
state has concluded the litigation against that company. Thus, the records prepared in anticipation of
litigation against that company are no longer exempt from disclosure even though the state has commenced
litigation against the alleged co-conspirator. State v. Coca-Cola Bottling Company of Miami, Inc., 582 So.
2d 1 (Fla. 4th DCA 1990). And see, Tribune Company v. Hardee Memorial Hospital, No. CA-91-370 (Fla.
10th Cir. Ct. Aug. 19, 1991) (settlement agreement not exempt as attorney work product even though another
related case was pending, and agency attorneys feared disclosure of their assessment of the merits of the case
and their litigation strategy). Cf., Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718
So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999) (private prison company under
contract with sheriff to provide medical services for inmates at county jail must release records relating to
a settlement .agreement with an inmate because all of its records that would normally be subject to the Public
Records Act if in the possession of the public agency, are likewise covered by that law, even though in the
possession of the private corporation).
The Legislature has, however, established specific exemptions which address disclosure of some risk
management files when other related claims remain. See, e.g. section 768.28(15), Florida Statutes, providing
an exemption for claim files maintained by agencies pursuant to a risk management program for.tort liability
until the termination of the litigation and settlement of all claims arising out of the same incident. The
exemption afforded by section 768.28(15)(d), Florida Statutes, however, is limited to tort claims for which
the agency may be liable under section 768.28, Florida Statutes, and does not apply to federal civil rights
actions under 42 U.S.C. section 1983. Ops. Att'y Gen. Fla. 00-20 and 00-07. And see, Op. Att'y Gen. Fla.
92-82 (1992) (open meetings exemption provided by section 768.28, Florida Statutes, applies only to
meetings held after a tort claim is filed with the risk management program).
Regarding draft settlements received by an agency in litigation, a circuit court has held that draft
settlement agreements furnished to a state agency by a federal agency were public records despite the
department's agreement with the federal agency to keep such documents confidential. Florida Sugar Cane
League, Inc. v. Department of Environmental Regulation, No. 91-2108 (Fla. 2d Cir. Ct. Sept. 20, 1991),
a,/jirmed, 606 So. 2d 1267 (Fla. 1st DCA 1992).
c. Attorney notes
Relying on its conclusion in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So.
2d 633 (Fla. 1980), the Florida Supreme Court has recognized that "not all trial preparation materials are
public records." State v. Kokal, 562 So. 2d 324, 327 (Fla. 1990). l:n Kokal, the Court approved the decision
of the Fifth District in Orange County v. Florida Land Co., 450 So. 2d 341, 344 (Fla. Sth DCA), review
denied, 458 So- 2d 273 (Fla. 1984), which described certain documents as not within the term 'public
records.'
Similarly, in Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998), the Court ruled that "outlines, time
lines, page notations regarding information in the record, and other similar items" in the case file, did not fall
within the definition of public record, and thus were not subject to disclosure. See also, Lopez v. State, 696
So. 2d 725 (Fla. 1997) (handwritten notes dealing with trial strategy and cross examination of witnesses, not
public records); and Atkins v. State, 663 So. 2d 624 (Fla. 1995) (notes of state attorney's investigations and
-32-
annotated photocopies of decisional case law, not public records).
By contrast, documents prepared to communicate, perpetuate, or formalize knowledge constitute
public records and are, therefore, subject to disclosure in the absence of statutory exemption. See, Byron,
Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980), in which the Court noted that
"[i]nter-office memoranda and infra-office memoranda corrurninicating information from one public
employee to another or merely prepared for filing, even though not a part of an agency's later, formal public
product, would nonetheless constitute public records inasmuch as they supply the final evidence of
knowledge obtained in connection with the transaction of official business."
Thus, in Orange County v. Florida Land Company, supra, the court concluded that trial preparation
materials consisting of interoffice and intraoffice memoranda comnntnicating information from one public
employee to another or merely prepared for filing, even though not part of the agency's formal work product,
were public records. As public records, such circulated trial preparation materials might be exempt from
disclosure pursuant to section 119.07(3)(1), Florida Statutes, while the litigation is ongoing; however, once
the case is over the materials would be open to inspection.
5. Personnel records
The general rule with regard to personnel records is the same as for other public records; unless the
Legislature has expressly exempted an agency's personnel records from disclosure or authorized the agency
to adopt rules limiting access to such records, personnel records are subject to public inspection under section
119.07(1), Florida Statutes. Michel v. Douglas, 464 So. 2d 545 (Fla. 1985).
a. Privacy concerns
The courts have rejected claims that constitutional privacy interests operate to shield agency
personnel records from disclosure. See, Michel v. Douglas, 464 So. 2d 545, 546 (FIa.1985), holding that
the state constitution "does not provide a right of privacy in public records" and that a state or federal
right of disclosural privacy does not exist. "Absent an applicable statutory exception, pursuant to
Florida's Public Records Act ...public employees (as a general rule) do not have privacy rights in
such records." Alters Healthcare Corporation v. Estate of Shelley, 527 So. 2d 936, 940n.4 (Fla. 2002).
Additionally, the judiciary has refused to deny access to personnel records based on clairns that the
release of such information could prove embarrassing or unpleasant for the employee. See, News-Press
Publishing Company, Inc. v. Gadd, 388 So. 2d 276 (Fla. 2d DCA 1980), stating that a court is not free to
consider public policy questions regarding the relative significance of the public's interest in disclosure and
damage to an individual or institution resulting from such disclosure.
b. Conditions for inspection of personnel records
An agency is not authorized to unilaterally impose special conditions for the inspection of personnel
records. An automatic delay in the production of such records is invalid. Tribune Company v. Cannella, 458
So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985)
(automatic 48 hour delay unauthorized by Chapter 119, Florida Statutes).
Absent a statutory exemption for such records, a city may not agree to remove counseling slips and
written reprimands from an employee's personnel file and maintain such documents in a separate disciplinary
-33-
file. Op. Att'y Gen. Fla. 94-54 (1994). Similarly, an agency is not authorized to "seal" disciplinary notices
and thereby remove such notices from disclosure under the Public Records Act. Op. Att'y Gen. Fla. 94-75
(1994). Cf., section 69.081(8)(x), Florida Statutes, providing, subject to limited exceptions, that any portion
of an agreement or contract which has the purpose or effect of concealing information relating to the
settlement or resolution of a claim against the state or its subdivisions is "void, contrary to public policy, and
may not be enforced."
c. Collective bargaining
A collective bargaining agreement between a public employer and its employees may not validly
make the personnel records of public employees confidential or exempt the same from the Public Records
Act. Op. Att'y Gen. Fla. 77-48 (1977). Thus, employee grievance records are disclosable even though
classified as confidential in a collective bargaining contract because "to allow the elimination of public
records from the mandate of Chapter 119 by private contract would sound the death knell of the Act."
Section 447.605(3), Florida Statutes, provides an exemption for "work products developed by the
public employer in preparation for negotiations, and during negotiations." The exemption is limited and
does not remove budgetary or fiscal information from the purview of Chapter 119, Florida Statutes. See, Bay
County School Board v. Public Employees Relations Commission, 382 So. 2d 747, 749 (Fla. 1st DCA 1980),
noting that "[r]ecords which are prepared for other purposes do not, as a result of being used in negotiations,
come within the exemption of section 447.605(3)."
6. Social security numbers
Section 119.0721, Florida Statutes, states that social security numbers held by an agency or its
agents, employees, or contractors are confidential and exempt from disclosure requirements, and may
be released only as provided in the exemption. Disclosure to another governmental agency is
authorized if disclosure is necessary to the performance of the agency's duties and responsibilities.
Section 119.0721(2), Florida Statutes. The receiving agency must maintain the confidential and
exempt status of such numbers. Id.
Upon verified written request, a commercial entity engaged in a commercial activity as defined in
section 14.203, Florida Statutes, is allowed access fora 'legitimate business purpose" as defined in the
exemption. Note, however, that pursuant to subsection 10 of section 119.0721, Florida Statutes, the
provisions of this exemption do not supersede any other applicable public records exemptions existing prior
to May 13, 2002, the effective date of section 119.0721, Florida Statutes. See, e.g., section 193.114(6),
Florida Statutes, providing that the social security number submitted on an application for a tax exemption
is confidential.
D. TO WHAT EXTENT MAY AN AGENCY REGULATE OR LIMIT
INSPECTION AND COPYING OF PUBLIC RECORDS?
1. May an agency impose its own restrictions on access to
or copying of public records?
Any local enactment or policy which purports to dictate additional conditions or restrictions on
access to public records is of dubious validity since the legislative scheme of the Public Records Act has
preempted any local regulation of this subject. See> Tribune Company v. Cannella, 458 So. 2d 1075 (Fla.
-34
1984), appeal dismissed sub nom., DePerte v. Tribune Company, lOS S.Ct. 2315, (1985). See, James v.
Loxahatchee Groves Water Control District, 820 So. 2d 988 (Fla. 4th DCA 2002) (trial court should have
held a hearing before denying a request to inspect records at the agency's offices rather than at an off-
premises location).
2. What agency employees are responsible for responding
to public records requests?
Section 119.021, Florida Statutes, provides that the elected or appointed state, county, or municipal
officer charged with the responsi~iliry of maintaining the office having public records, or his or her designee,
shall be the custodian of the public records. However, this statute does not alter the "duty of disclosure"
imposed by section 119.07(1), Florida Statutes, upon "[eJvery person who has custody of a public record."
Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996). [Emphasis supplied by the court].
Thus, the term "custodian" for purposes of the Public Records Act refers to all agency personnel who
have it within their power to release or communicate public records. Mintus v. City of West Palm Beach, 711
So. 2d 1359 (Fla. 4th DCA 1998), citing to> Williams v. City ofMinneola, 575 So. 2d 683, 687 (Fla. Sth DCA
1991). But, "the mere fact that an employee of a public agency temporarily possesses a document does not
necessarily mean that the person has custody as defined by section 119.07." Mintus, supra, at 1361.
3. What individuals are authorized to inspect and receive
copies of public records?
Section 119.01, Florida Statutes, provides that "[i]t is the policy of this state that all state,
county, and municipal records shall be open for personal inspection by any person." (e.s.) See, Curry
v. State, 811 So. 2d 736 (Fla. 4th DCA 2002) (defendant's conduct in making over 40 public records
requests concerning victim constituted a "legitimate purpose" within the meaning of the aggravated
stalking law "because the right to obtain the records is established by statute and acknowledged in the
state constitution").
4. Must an individual show a "special interest" or
"legitimate interest" in public records before being
allowed to inspect or copy same?
No. Chapter 119, Florida Statutes, requires no showing of purpose or "special interest" as a
condition of access to public records. See, State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905) (abstract
companies may copy documents from the clerk's office for their own use and sell copies to the public for a
profit); Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc. , 718 So. 2d 227, 228 at n.2
(Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999) ("Booksmart's reason for wanting to view
and copy the documents is irrelevant to the issue of whether the documents are public records").
Note, however, that section 817.568, Florida Statutes, provides criminal penalties for unauthorized
use of personal identification information for fraudulent or harassment purposes. And see, section 817.569,
Florida Statutes, providing penalties for criminal use of a public record or public records information.
S. May an agency refuse to allow inspection or copying of
public records on the grounds that the request for such
records is "overbroad" or lacks particularity?
-35-
No. The custodian is not authorized to deny a request to inspect and/or copy public records because
of a lack of specifics in the request. See> Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985), review
denied, 475 So. 2d 695 (Fla. 1985), recognizing that the "breadth of such right [to inspect] is virtually
unfettered, save for the statutory exemptions ...."
6. When must an agency respond to a public records
request?
The Public Records Act does not contain a specific time limit (such as 24 hours or 10 days) for
compliance with public records requests. The Florida Supreme Court has stated that the only delay in
producing records permitted under Chapter 119, Florida Statutes, is the reasonable time allowed the
custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt.
Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., Deperte v. Tribune
Company, 105 S.Ct. 2315 (1985).
A municipal policy which provides for an automatic delay in the production of public records is
impermissible. Tribune Company v. Cannella, 458 So. Zd 1075 (Fla. 1984), appeal dismissed sub nom.,
Deperte v. Tribune Company, 105 S.Ct. 2315 (1985). Thus, an agency is not authorized to delay inspection
of personnel records in order to allow the employee to be present during the inspection of his records.
Tribune Company v. Cannella, supra. Similarly, this office has advised that a board of trustees of a police
pension fund may not delay release of its records until such time as the request is submitted to the board for
a vote. Op. Att'y Gen. Fla. 96-55 (1996).
An agency's unreasonable and excessive delays in producing public records can constitute an
unlawful refusal to provide access to public records. Town of Manalapan v. Rechler, 674 So. 2d 789 (Fla.
4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996). See also, State v. Webb, 786 So. 2d 602, 604
(Fla. 1st DCA 2001), in which the court held that it was error for a lower court judge to vacate a
misdemeanor conviction of a records custodian who had been found guilty of willfully violating section
119.07 (1) (a), Florida Statutes, based on her "dilatory" response to public records requests filed by a citizen.
An agency is not authorized to establish an arbitrary time period during which records may or may
not be inspected. Op. Att'y Gen. Fla. 81-12 (1981).
7. Mayan agency require that a request to examine or copy
public records be made in writing or require that the
requestor furnish background information to the
custodian?
No. Nothing in Chapter 119, Florida Statutes, requires that a requesting party make a demand for
public records in person or in writing. See, Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d
302, 305n. 1 (Fla. 3d DCA 2001) ("There is no requirement in the Public Records Act that requests for
records nnist be in writing"). If a public agency believes that it is necessary to provide written documentation
of a request for public records, the agency may require that the custodian complete an appropriate form or
document; however, the person requesting the records cannot be required to provide such documentation as
a precondition to the granting of the request to inspect or copy public records. See, Sullivan v. City of New
Port Richey, No. 86-1129CA (Fla. 6th Cir. Ct. May 22, 1987), affirmed, 529 So. 2d 1124 (Fla. 2d DCA
1988), noting that a demandant's failure to complete a city form required for access to documents did not
-36-
authorize the custodian to refuse to honor the request to inspect or copy public records.
8. Is an agency required to give out information from
public records or to otherwise produce records in a
particular form as demanded by the requestor?
A custodian is not required to give out information from the records of his office. Op. Att'y Gen.
Fla. 80-57 (1980). The Public Records Act does not require a town to produce an employee, such as the
financial officer, to answer questions regarding the financial records of the town. Op. Att'y Gen. Fla. 92-38
(1992). Nor is the clerk of court required to provide an inmate with a list of documents from a case file
which may be responsive to some forthcoming request. Wootton v. Cook, 590 So. 2d 1039 (Fla. 1st DCA
1991).
9. May an agency refuse to comply with a request to inspect
or copy the agency's public records on the grounds that
the records are not in the physical possession of the
custodian?
No. An agency is not authorized to refuse to allow inspection of public records on the grounds that
the documents have been placed in the actual possession of an agency or official other than the records
custodian. See, Tober v. Sanchez, 417 So. 2d 1053 (Fla. 3d DCA 1982), review denied sub nom.,
Metropolitan Dade County Transit Agency v. Sanchez, 426 So. 2d 27 (Fla. 1983) (official charged with
maintenance of records may not transfer actual physical custody of records to county attorney and thereby
avoid compliance with request for inspection under Chapter 119, Florida Statutes).
10. May an agency refuse to allow access to public records
on the grounds that the records are also maintained by
another agency?
No. The fact that a particular record is also maintained by another agency does not relieve the
custodian of the obligation to permit inspection and copying in the absence of an applicable statutory
exemption. Op. Att'y Gen. Fla. 86-69 (1986).
11. In the absence of express legislative authorization, may
an agency refuse to allow public records made or
received in the normal course of business to be inspected
or copied if requested to do so by the maker or sender of
the document?
No. To allow the maker or sender of documents to dictate the circumstances under which the
documents are to be deemed confidential would permit private parties as opposed to the Legislature
to determine which public records are subject to disclosure and which are not. Such a result would
contravene the purpose and terms of Chapter 119, Florida Statutes. See, Browning v. Walton, 351 So.
2d 380 (Fla. 4th DCA 1977) (a city cannot refuse to allow inspection of records containing the names
and addresses of city employees who have filled out forms requesting that the city maintain the
confidentiality of all material in their personnel files). Accord, Sepro Corporation v. Florida Department
of Environmental Protection, 28 F.L.W. D492 (Fla 1st DCA February 12, 2003) (private party cannot
render public records exempt from disclosure merely by designating information it furnishes a
-37-
governmental agency confidential). Cf., Hill v. Prudential Ins. Co. of America, 701 So. 2d 1218 (Fla.
1st DCA 1997), review denied, 717 So. 2d 536 (Fla 1998) (materials obtained by state agency from
anonymous sources during the course of its investigation of an insurance company were public records
and subject to disclosure in the absence of statutory exemption, notwithstanding the company's
contention that the records were "stolen" or "misappropriated" privileged documents that were
delivered to the state without the company's permission).
Similarly, it has been held that an agency "cannot bargain away its Public Records Act duties with
promises of confidentiality in settlement agreements." The Tribune Company v. Hardee Memorial Hospital,
No. CA-91-370 (Fla. 10th Cir. Ct. Aug. 19, 1991), stating that a confidentiality provision in a settlement
agreement which resolved litigation against a public hospital did not remove the document from the Public
Records Act. Cf., section 69.081(8), Florida Statutes, part of the "Sunshine in Litigation Act," providing,
subject to certain exceptions, that any portion of an agreement which conceals information relating to the
settlement or resolution of any claim or action against an agency is void, contrary to public policy, and may
not be enforced, and requiring that settlement records be maintained incompliance with Chapter 119, Florida
Statutes.
12. Must an agency state the basis for its refusal to release
an exempt record?
Yes. Section 119.07(2)(a), Florida Statutes, states that a custodian of a public record who contends
that a record or part of a record is exempt from inspection must state the basis for the exemption, including
the statutory citation to the exemption. Additionally, upon request, the custodian must state in writing and
with particularity the reasons for the conclusion that the record is exempt from inspection. Id. See, Weeks
v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000)(agency's response that it had provided all records "with the
exception of certain information relating to the victim" deemed inadequate because the response "failed to
identify with specificity either the reasons why the records were believed to be exempt, or the statutory basis
for any exemption"). Cf., City of St. Petersburg v. Romine, 719 So. 2d 19, 21 (Fla. 2d DCA 1998), noting
that the Public Records Act "may not be used in such a way as to obtain information that the Legislature has
declared must be exempt from disclosure."
13. May an agency refuse to allow inspection and copying of
an entire public record on the grounds that a portion of
the record contains information which is exempt from
disclosure?
No. Where a public record contains some information which is exempt from disclosure, section
119.07(2)(x), Florida Statutes, requires the custodian of that document to delete ~or excise only that
portion or portions of the record for which an exemption is asserted and to provide the remainder of
the record for examination. See, Ocala Star Banner Corp. v. McGhee, 643 So. 2d 1196 (Fla. 5th DCA
1994) (city may redact confidential Identifying information from police report but must produce the
rest for inspection). The fact that an agency believes that it would be impractical or burdensome to
redact confidential information from its records does not excuse noncompliance with the mandates
of the Public Records Act. Op. Att'y Gen. Fla. 99-52 (1999). Cf., Op. Att'y Gen. Fla. 02-73 (2002)
(agency must redact confidential and exempt Information and release the remainder of the record;
agency is not authorized to release records containing confdential information, albeit anonymously.)
14. May an agency refuse to allow inspection of public
-38-
records because the agency believes disclosure could
violate privacy rights?
It is well established in Florida that "neither a custodian of records nor a person who is the subject
of a record can claim a constitutional right of privacy as a bar to requested inspection of a public record
which is in the hands of a government agency." Williams v. City ofMinneola, 575 So. 2d 683, 687 (Fla. 5th
DCA), review denied, 589 So. 2d 289 (Fla. 1991).
15. What is the liability of a custodian for release of public
records?
It has been held that there is nothing in Chapter 119, Florida Statutes, indicating an intent to give
private citizens a right to recovery for negligently maintaining and providing information from public
records. Friedberg v. Town of Longboat Key, 504 So. Zd 52 (Fla. 2d DCA 1987).
However, a custodian is not protected against tort liability resulting from that person intentionally
comrrninicating public records or their contents to sorreone outside the agency which is responsible for the
records unless the person inspecting the records has made a bona fide request to inspect the records or the
communication is necessary to the agency's transaction of its official business. Williams v. City of Minneola,
575 So. 2d 683 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991).
E. WHAT IS THE LEGAL EFFECT OF STATUTORY EXEMPTIONS
FROM DISCLOSURE?
1. Creation of exemptions
"Courts cannot judicially create any exceptions, or exclusions to Florida's Public Records Act."
Board of County Commissioners of Palm Beach County v. D.B., 784 So. 2d 585, 591 (Fla. 4th DCA 2001).
Accord, Wait v. Florida Power and Light Company, 372 So. 2d 420, 425 (Fla. 1979) (Public Records Act
"excludes any judicially created privilege of confidentiality;" only the Legislature may exempt records from
public disclosure).
Article I, section 24(c), Florida Constitution, authorizes the Legislature to enact general laws creating
exemptions provided that such laws "shall state with specificity the public necessity justifying the exemption
and shall be no broader than necessary to accomplish the stated purpose of the law." See, Memorial
Hospital-West Volusia v. News-Journal Corporation, 729 So. 2d 373, 380 (Fla. 1999), in which the Court
refused to "imply" an exemption from open records requirements, stating "we believe that an exemption from
public records access is available only after the legislature has followed the express procedure provided in
Article I, section 24(c) of the Florida Constitution."
A 2002 amendment to Article I, section 24, stipulates that laws providing exemptions from public
records or public meetings requirements must be passed by atwo-thirds vote of each house of the Legislature.
2. Exemptions are strictly construed
The Public Records Act is to be liberally construed in favor of open government, and exemptions
from disclosure are to be narrowly construed so they are limited to their stated purpose. Krischer v.
D'Amato, 674 So. 2d 909 (Fla. 4th DCA 1996); Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA
-39-
1987), review denied, 520 So. 2d 586 (Fla. 1988). And see, Halifaz Hospital Medical Center v. News-
Journal Corporation, 724 So. 2d 567 (Fla. 1999) (1995 exemption to the Sunshine Law for certain hospital
board meetings ruled unconstitutional because it did not meet the constitutional standard for exemptions set
forth in article I, section 24[b] and [c], Florida Constitution).
An agency claiming an exemption from disclosure bears the burden of proving the right to an
exemption. See, Florida Freedom Newspapers, Inc. v. Dempsey, 478 So. 2d 1128 (Fla. 1st DCA 1985).
Access to public records is a substantive right. Memorial Hospital-West Volusia, Inc. v. News-
Journal Corporation, 784 So. 2d 438 (Fla. 2001). Thus, a statute affecting that right is presumptively
prospective and there must be a clear legislative intent for the statute to apply retroactively. Id. However,
if the Legislature is "clear in its intent," an exemption may be applied retroactively. Campus
Communications, Inc. v. Earnhardt, 821 So. 2d 388, 396 (Fla. 5th DCA 2002), review pending, No. SCOZ-
1635 (Fla. 2002) (statute exempting autopsy photographs from disclosure is remedial and may be
retroactively applied).
3. Release or transfer of confidential or exempt records
It is important to note that there is a difference between those records the Legislature has determined
to be exempt from the mandatory public inspection requirements of section 119.07(1), Florida Statutes, and
those which are exempt and confidential. If the Legislature makes certain information confidential, with no
provision for its release such that its confidential status will be maintained, such information may not be
released to anyone other than to the persons or entities designated in the statute. See, Op. Att'y Gen. Fla. 89-
12 (1989) (Department of Business and Professional Regulation prohibited from releasing patient records
or information identifying a patient by name to law enforcement agency or other regulatory agency).
On the other hand, if the records are not made confidential but are simply exempt from the
mandatory disclosure requirements in section 119.07(1), Florida Statutes, the agency is not prohibited from
disclosing the documents in all circumstances. See, Williams v. Ciry of Minneola, 575 So. 2d 683 (Fla. 5th
DCA), review denied, 589 So. 2d 289 (Fla. 1991), in which the court observed that pursuant to section
119.07(3)(d), Florida Statutes, [now section 119.07(3)(b), Florida Statutes] "active criminal investigative
~~
information was exempt from the requirement that public records be made available for public inspection.
However, as stated by the court, "the exemption does not prohibit the showing of such information." 575
So. 2d at 686.
In City of Riviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th DCA 1994), review denied, 651 So.
2d 1192 (Fla. 1995), the court stated that when a criminal justice agency transfers exempt information to
another criminal justice agency, the information retains its exempt status. And see, Ragsdale v. State, 720
So. 2d 203, 206 (Fla. 1998) (the focus in determining whether a document has lost its status as a public
record must be on the policy behind the exemption and not on the simple fact that the information has
changed agency hands").
F. TO WHAT EXTENT DOES FEDERAL LAW PREEMPT STATE
LAW REGARDING PUBLIC INSPECTION OF RECORDS?
The general rule is that records which would otherwise be public under state law are unavailable for
public inspection only when there is an absolute conflict between federal and state law relating to
confidentiality of records. If a federal statute requires particular records to be closed and the state is clearly
-~a
subject to the provisions of such statute, then pursuant to the Supremacy Clause of the United States
Constitution, Article VI, section 2, United States Constitution, the state rriust keep the records confidential.
State ex rel. Cummer v. Pace, 159 So. 679 (Fla. 1935); Ops. Att'y Gen. Fla. 90-102 (1990), 85-3 (1985), 81-
101 (1981), 80-31 (1980), 74-372 (1974), and 73-278 (1973).
In a more recent decision, an appellate court ruled that tenant records of a public housing authority
are not exempt, by reason of the Federal Privacy Act, from disclosure otherwise required by the Florida
Public Records Act. Housing Authority of the City of Daytona Beach v. Gomillion, 639 So. 2d 117 (Fla. 5th
DCA 1994). And see, Wallace v. Guzman, 687 So. 2d 1531 (Fla. 3d DCA 1997) (exemptions fromdisclosure
in Federal Freedom of Information Act apply to documents in the custody of federal agencies; the Act is not
applicable to state agencies).
G. WHAT FEES MAY LAWFULLY BE IMPOSED FOR INSPECTING
AND COPYING PUBLIC RECORDS
1. When may an agency charge a fee for the mere
inspection of public records?
As noted in Op. Att'y Gen. Fla. 85-03 (1985), providing access to public records is a statutory duty
imposed by the Legislature upon all record custodians and should not be considered aprofit-making or
revenue-generating operation. Thus, public information rtntst be open for inspection without charge unless
otherwise expressly provided by law. See, State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905).
Section 119.07(1)(b), Florida Statutes, authorizes the imposition of a special service charge when
the nature or volume of public records to be inspected is such as to require extensive use of information
technology resources, or extensive clerical or supervisory assistance, or both. The charge rrnist be reasonable
and based on the labor or computer costs actually incurred by the agency. Thus, an agency may adopt a
policy imposing a reasonable special service charge based on the actual labor cost (base hourly salary) for
personnel who are required, due to the nature or volume of a public records request, to safeguard such
records from loss or destruction during their inspection. Op. Att'y Gen. Fla. 00-11 (2000). In doing so,
however, the county's policy should reflect no more than the actual cost of the personnel's tirn and be
sensitive to accommodating the request in such a way as to ensure unfettered access while safeguarding the
records. Id
2. Is an agency required to provide copies of public records
if asked, or may the agency allow inspection only?
Section 119.07(1), Florida Statutes, provides that the custodian shall furnish a copy or a certified
copy of a public record upon payment of the fee prescribed by law. See, Fuller v. State ex rel. O'Donnell,
17 So. 2d 607 (Fla. 1944) ("The best-reasoned authority in this country holds that the right to inspect public
records carries with it the right to make copies.")
3. What fees may be charged for copies?
Chapter 119 does not prohibit agencies from providing informational copies of public records
without charge. Op. Att'y Gen. Fla. 90-81 (1990). An agency may, however, charge a fee for copies
provided that the amount of the fee does not exceed that authorized by Chapter 119, Florida Statutes, or
established elsewhere in the statutes for a particular record. See, Roesch v. State, 633 So. 2d 1, 3 (Fla. 1993)
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(indigent inmate not entitled to receive copies of public records free of charge nor to have original state
attorney files mailed to him in prison; prisoners are "in the same position as anyone else seeking public
records who cannot pay" the required costs).
If no fee is prescribed elsewhere in the statutes, section 119.07(1)(a), Florida Statutes, authorizes
the custodian to chazge a fee of up to 15 cents per one-sided copy for copies that are 14 inches by 8 ~!z inches
or less. An agency may charge no more than an additional S cents for each two-sided duplicated copy. A
charge of up to $1.00 per copy maybe assessed for a certified copy of a public record.
For other copies, the charge is limited to the actual cost of duplication of the record. Section
119.07(1)(a), Florida Statutes. The phrase "actual cost of duplication" is defined to mean "the cost of the
material and supplies used to duplicate the record, but it does not include the labor cost and overhead cost
associated with such duplication." Id An exception, however, exists for copies of county maps or aerial
photographs supplied by county constitutional officers which may include a reasonable charge for the labor
and overhead associated with their duplication. Id And see, the discussion on the special service charge.
4. May an agency charge for travel costs, search fees,
development costs and other incidental costs?
With the exception of county maps or aerial photographs supplied by county constitutional officers,
section 119.07(1)(a), Florida Statutes, does not authorize the addition of overhead costs such as utilities or
other office expenses to the charge for public records. Op. Att'y Gen. Fla. 99-41 (1999). Thus, an agency
may not charge for travel time and retrieval costs for public records stored off-premises. Op. Att'y Gen. Fla.
90-07 (1990). And see, Op. Att'y Gen. Fla. 02-37 (2002) (although an agency may contract with a private
company to provide information also obtainable through the agency, it may not abdicate its duty to provide
such records for inspection and copying by requiring those seeking public records to do so only through its :,
designee and then paying whatever fee that company may establish for its services).
Similarly, an agency may not charge fees designed to recoup the original cost of developing or
producing the records. Op. Att'y Gen. Fla. 88-23 (1988) (state attorney not authorized to impose a charge
to recover part of costs incurred in production of a training program; the fee to obtain a copy of the videotape
of such programis limited to the actual cost of duplication of the tape). And see, State, Department of Health
and Rehabilitative Services v. Southpointe Pharmacy, 636 So. 2d 1377, 1382 (Fla. 1st DCA 1994) (once a
transcript of an administrative hearing is filed with the agency, the transcript becomes a public record
regardless of who ordered the transcript or paid for the transcription; the agency can charge neither the
parties nor the public a fee that exceeds the charges authorized in section 119.07[1], Florida Statutes).
5. When may an agency charge a special service charge for
extensive use of clerical or supervisory labor or extensive
information technology resources?
Section 119.07(1)(b), Florida Statutes, states that if the nature or volume of public records to be
inspected or copied requires the extensive use of information technology resources or extensive clerical or
supervisory assistance, or both, the agency may charge a reasonable service charge based on the cost actually
incurred by the agency for such extensive use of information technology resources or personnel. Cf., Cone
& Graham, Inc. v. State, No. 97-4047 (Fla. 2d Cir. Ct. October 7, 1997) (an agency's decision to "archive"
older o-mail messages on tapes so that they could not be retrieved or printed without a systems programmer
was analogous to an agency's decision to store records off-premises in that the agency rather than the
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requestor must bear the costs for retrieving the records and reviewing them for exemptions).
Moreover, the statute mandates that the special service charge be "reasonable." See, Carden v. Chief
of Police, 696 So. 2d 772, 773 (Fla. 2d DCA 1996), stating that an "excessive charge" under section
119.07(1)(b), Florida Statutes, "could well serve to inhibit the pursuit of rights conferred by the Public
Records Act."
Section 119.07(1)(b), Florida Statutes, does not contain a definition of the term "extensive." In 1991,
a divided First District Court of Appeal upheld a hearing officer's order rejecting an inmate challenge to a
Department of Corrections (DOC) rule that defined "extensive" for purposes of the special service charge.
Florida Institutional Legal Services, Inc. v. Florida Department of Corrections, 579 So. 2d 267 (Fla. 1st
DCA), review denied, 592 So. 2d 680 (Fla. 1991). The agency rule defined "extensive" to mean that it would
take more than 15 minutes to locate, review for confidential information, copy and refile the requested
material.
In light of the lack of clear direction in the statute as to the meaning of the term "extensive" and the
possible limited application of the Institutional Legal Services case, it maybe prudent for agencies to define
"extensive" in a manner that is consistent with the purpose and intent of the Public Records Act and that does
not constitute an unreasonable infringement upon the public's statutory and constitutional right of access to
public records.
An agency is not ordinarily authorized to charge for the cost to review records for statutorily exempt
material. Op. Att'y Gen. Fla. 84-81 (1984). However, the special service charge may be imposed for this
work if the volume of records and the number of potential exemptions make review and redaction of the
records atime-consuming task. See, Florida Institutional Legal Services v. Florida Department of
Corrections, 579 So. 2d at 269. And see, Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9,
1998), noting that "it would not be unreasonable in these types of cases [involving many documents and
several different exemptions) to charge a reasonable special fee for the supervisory personnel necessary to
properly review the materials for possible application of exemptions."
In State v. Gudinas, No. CR 94-7132 (Fla. 9th Cir. Ct. June 1, 1999), the court approved an agency's
charge for providing copies in response to a large public records request based on the clerk's base rate of pay,
excluding benefits. The court also concluded that an agency could charge only a clerical rate for the time
spent making copies, even if due to staff shortages, a more highly paid person actually did the work
H. WHAT ARE THE OPTIONS IF AN AGENCY REFUSES TO
PRODUCE PUBLIC RECORDS FOR INSPECTION AND
COPYING?
1. Mediation
Section 16.60, Florida Statutes, establishes the open government mediation program as a voluntary
alternative for resolution of public access disputes. For rmre information about mediation, please contact
the Attorney General's Office at the following address: The Capitol, PL-O1, Tallahassee, Florida 32399-
1050; telephone: (850) 245-0157; email: ag@oag.state.fl.us.
2. Civil action
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a. Remedies
Any person denied the right of inspection and/or copying under Chapter 119, Florida Statutes, may
institute a civil action in circuit court against an agency which has violated the provisions of Chapter 119,
Florida Statutes, in order to compel compliance with that law. Pursuant to section 119.11(1), Florida
Statutes, such actions, when filed, are entitled to an iincr~ediate hearing and take priority over other pending
cases.
Generally, mandarrnus is the appropriate remedy to enforce compliance with the public records act.
Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA), review dismissed, 605 So. 2d 1266 (Fla. 1992).
However, it has been held that mandamus is not appropriate when the language of an exemption statute
requires an exercise of discretion. See, Shea v. Cochran, 680 So. 2d 628 (Fla. 4th DCA 1996) (mandamus
was an inappropriate remedy where sheriff provided a specific reason for refusing to comply with a public
records request by claiming the records were part of an active criminal investigation).
Mandamus is a "one time order by the court to force public officials to perform their legally
designated employment duties." Town ofManalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996).
Thus, a trial court erred when it retained continuing jurisdiction to oversee enforcement of a writ of
mandamus granted in a public records case. Id However, it has been recognized that injunctive relief may
be available upon an appropriate showing for a violation of Chapter 119, Florida Statutes. See, Daniels v.
Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989).
b. Procedural issues
(1) In camera inspection
Section 119.07(2)(b), Florida Statutes, provides that in any case in which an exemption to the public
inspection requirements in section 119.07(1), Florida Statutes, is alleged to exist pursuant to paragraphs (c),
(d), (e), (k), (1), or (o) of section 119.07(3), Florida Statutes, the public record or part of the record in
question shall be submitted to the trial court for an in camera examination.
Section 119.07(2)(b), Florida Statutes, provides that if an exemption is alleged under paragraph (b)
of section 119.07(3), Florida Statutes (the exemption for active criminal investigation or intelligence
information), an inspection is discretionary with court. However, in Tribune Company v. Public Records,
493 So. 2d 484 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327
(Fla. 1987), the court stated that notwithstanding the trial court's discretion to provide an in camera
examination if a section 119.07(3)(b), Florida Statutes, exemption is asserted, it is always the better practice
to conduct such an inspection in cases where an exception to the Public Records Act is in dispute. According
to the court, inspection lends credence to the decision of the trial court, helps dispel public suspicion, and
provides a rmich better basis for appellate review.
Similarly, in Woolling v. Lamar, 764 So. 2d 765, 768-769 (Fla. 5th DCA 2000), review denied, 786
So. 2d 1186 (Fla. 2001), the Fifth District concluded that because the state attorney presented "no evidence
to meet its burden that the records are exempt" under section 119.07(3)(b), Florida Statutes, an "in camera
inspection by the lower court is therefore required so that the trial judge will have a factual basis to decide
if the records are exempt under [that statute]." And see, Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA
2000), in which the First District said: "We fail to see how the trial court can [determine whether an agency
is entitled to a claimed exemption] without examining the records."
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(2) Mootness
In Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996), the court noted that
"[p]roduction of the records after the [public records] lawsuit was filed did not rmot the issues raised in the
complaint." The court remanded the case for an evidentiary hearing on the issue of whether, under the facts
of the case, there was an unlawful refusal of access to public records. See also, Mazer v. Orange County,
Florida, 811 So. 2d 857 (Fla. 5th DCA 2002) ("the fact that the requested documents were produced in the
instant case after the action was commenced, but prior to final adjudication of the issue by the trial court,
does not render the case moot or preclude consideration of [the petitioner's] entitlement to fees under the
statute").
(3) Stay
If the person seeking public records prevails in the trial court, the public agency must comply with
the court's judgment within 48 hours unless otherwise provided by the trial court or such determination is
stayed within that period by the appellate court. Section 119.11(2), Florida Statutes. An automatic stay shall
exist for 48 hours after the filing of the notice of appeal for public records and public meeting cases. Rule
9.310(b)(2), Florida Rules of Appellate Procedure.
(4) Attorney's fees
Section 119.12(1), Florida Statutes, provides that if a civil action is filed against an agency to enforce
the provisions of this chapter and the court determines that the agency unlawfully refused to permit a public
record to be inspected, examined, or copied, the court shall assess and award against the agency responsible
the reasonable costs of enforcement including reasonable attorney's fees. See, Florida Department of Law
Enforcement v. Ortega, 508 So. 2d 493 (Fla. 3d DCA 1987).
Attorney's fees are recoverable even where access is denied on a good faith but mistaken belief that
the documents are exempt from disclosure. News and Sun-Sentinel Company v. Palm Beach County, S 17
So. 2d 743 (Fla. 4th DCA 1987); Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487 (Fla.
2d DCA 1990). And see, Weeks v. Golden, 798 So. 2d 848 (Fla. 1st DCA 2001)(where prison inmate made
public records request and state attorney offered no reason for failing to respond to request, trial judge erred
in refusing to award costs to inmate).
Attorney's fees may also be awarded for a successful appeal of a denial of access. Downs v. Austin,
559 So. 2d 246 (Fla. 1st DCA 1990). However, in order to obtain appellate fees, a motion must be filed in
the appellate court. Id.
(5) Venue
In Department of Children and Families v. Sun-Sentinel, Inc., No. 4D02-4466 (Fla. 4th DCA
February 19, 2003), the court ruled that "the correct use of the general venue statute in a case involving
access to public records entirely located in one county is that such an action may be brought where the
records are being kept and where access is being denied." Judge Shahood dissented, and said that the
Department's rmtion for change of venue to its headquarters in Leon County should have been granted.
c. Criminal penalties
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In addition to judicial remedies, section 119.02, Florida Statutes, provides that a public officer who
knowingly violates the provisions of section 119.07(1), Florida Statutes, is subject to suspension and removal
or impeachment and is guilty of a misdemeanor of the first degree, punishable by possible criminal penalties
of one year in prison, or $1,000 fine, or both. See, State v. Webb, 786 So. 2d 602 (Fla. 1st DCA 2001).
Section 119.10, Florida Statutes, provides that a violation of any provision of Chapter 119, Florida
Statutes, by a public official is a noncriminal infraction, punishable by fine not exceeding $500. A state
attorney may prosecute suits charging public officials with violations of the Public Records Act, including
those violations which may result in a finding of guilt for a noncriminal infraction. Op. Att'y Gen. Fla. 91-38
(1991).
I. HOW LONG MUST AN AGENCY RETAIN A PUBLIC RECORD?
1. Delivery of records to successor
Section 119.05, Florida Statutes, provides that whoever has custody of public records shall deliver
such records to his successor at the expiration of his term of office or, if there is no successor, to the records
and information management program of the Division of Library and Information S ervices of the Department
of State. See, Maxwell v. Pine Gas Corporation, 195 So. 2d 602 (Fla. 4th DCA 1967) (state, county, and
municipal records are not the personal property of a public officer).
2. Retention and disposal of records
Pursuant to section 257.36(6), Florida Statutes, "[a] public record may be destroyed or otherwise
disposed of only in accordance with retention schedules established by the [Division of Library and
Information Services of the Department of State]."
This statutory mandate applies to exempt records as well as those subject to public inspection. See,
Ops. Att'y Gen. Fla. 94-75 (1994), 87-48 (1987) and 81-12 (1981). Questions regarding record destruction
schedules should be referred to the Department of State, Bureau of Archives and Records Management at
(850)487-2180.
F:\Users\Cap_stafU.ISA\Tiavel\March 26 CLE.wpd
Revised as of February 24, 2003
Access all Formal Attorney General Opinions, as well as those Informal Opinions cited in the
Government in the Sunshine Manual, at the Office of the Attorney General Website at:
http://myfloridalegal.com
Access cucuit court cases cited in the Government in the Sunshine Manual by contacting Lisa Massa
by telephone (850) 245-0157; by facsimile (850) 414-2641; or by email: lisa_massa@oag.state.fl.us.
To contact Pat Gleason via email: pat_,gleason@oag.state.fl.us; or by telephone or facsimile at the
above numbers.
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CONFLICTS OF INTEREST. FINANCIAL DISCLOSURE.
GIFT LAWS, POSTEMPLOYMENT RESTRICTIONS, AND MORE
UNDER PART III. CHAPTER 112. FLORIDA STATUTES
(CODE OF ETffiCS FOR PUBLIC OFFICERS AND EMPLOYEES)
POLICE OFFICERS' & FIREFIGHTERS' PENSION TRUSTEES' CONFERENCE
MARCH 2003. TALLAHASSEE, FLORIDA
C. Christopher Anderson III, Staff Attorney. Florida Commission on Ethics
P.O. Drawer 15709, Tallahassee, Florida 32317-5709
(8501488-7864, telephone; 278-7864, Suncom: (8501488-3077 facsimile
www.ethics.state.fl.us
(outline updated 3-2-03)
I. PERSONS GOVERNED BY THE ETHICS LAWS
A. Public Officers
1. A "public officer" is defined in F.S. 112.313(1) and 112.3143(lxa) to include
persons "elected or appointed to hold office in any agency, including any person serving on an advisory
body." One can be "appointed" by various means (CEO 02-15).
2. Officers and directors of nonprofit corporations organized under Ch. 617, F.S. aze
not public officers subject to the Code of Ethics. CEO 84-17, CEO 91-41.
3. Members of advisory board ofcity-operated charter school aze public officers.
CEO 99-2. However, in a particulaz context, officers and directors of nonprofit governing organization of
a charter school were not found to be public officers. CEO 99-10.
B. Public Employees
1. The teen "employee" is not defined in the Code of Ethics, but the First District
Court of Appeal has applied in an ethics context the same definition of "employee" as is used in tort
actions. Wright v. Commission on Ethics, 389 So.2d 662 (Fla. 1st DCA 1980).
2. "Independent contractors" are not employees and therefore are not governed by
provisions in the Code that are applicable to public employees. CEO 81-48, CEO 81-61. But see this
outline below regarding "local government attorneys."
3. See CEO 99-10 regarding charter school employees.
C. Candidates for public office [defined in F.S. 112.312(6) to mean any person who has filed
financial disclosure and qualification papers, has taken the candidate's oath, and seeks to become a public
officer by election] are subject to a limited number of Code provisions; and successful former candidates
who have not yet taken office are subject to the gifts law contained in F.S. 112.3148.
D. "Local government attorneys" (see below) also are subject to a limited number of Code
provisions.
II. ANTI-NEPOTISM PROHIBITION
A. The anti-nepotism law (F.S. 112.3135) prohibits a public official from appointing,
employing, promoting, or advancing, or advocating the appointment, employment, promotion, or
advancement of a relative. It does not prohibit two relatives from being employed within the same agency.
CEO 90-62, CEO 93-1, CEO 94-26. The law addresses placement in "a position in [an) agency," and thus
does not address situations in which a relative is hired as an independent contractor. CEO 96-13.
B. At the State level, the law applies to all agencies (executive, legislative, and judicial),
except for "an institution under the jurisdiction of the Division of Universities of the Department of
Education. At the local level, the law applies to counties, cities, and "any other political subdivision,"
except for school and community college districts. F.S. 112.3135(1)(a), (AGO 72-72, AGO 82-48).
However, the Florida K-20 Education Code prohibits a district school board member from employing or
appointing a "relative" (as defined in F.S. 112.3135) to work under the direct supervision of the member.
F.S. 1012.23(2). The law applies to appointments made by a community redevelopment agency (CRA)
and by a city commission to the city's enterprise zone development agency. CEO 96-5, affd by PCA sub
nom. City of Gainesville v. State Commission on Ethics, 683 So. 2d 487 (Fla. l st DCA 1996).
C. The definition of "relative" for purposes of the anti-nepotism law is broader than the term
as used in the voting conflicts law, but narrower than the term as it applies in the context of the gift law.
Compare F.S. 1 ]2.312(21), 112.3135(Ixd), and 112.3143(1)(b). One's mother's sister's husband is not
one°s "uncle" under the anti-nepotism law. CEO 99-5. A person is not one's "sister-in-law" by virtue of
marriage to one's wife's brother. CEO 96-6. One's paramour is not one's "relative." CEO 02-3.
D. The anti-nepotism law does not apply to actions other than appointment, employment,
promotion, advancement, or advocacy of the same. Supervising or assigning work to a relative is not
addressed or prohibited in the law. CEO 90-62, CEO 00-17. An advancement or promotion is "only an
increase in grade which elevates an employee to a higher rank or position of greater personal dignity or
importance ...." (Slaughter v. City of Jacksonville, 338 So. 2d 902 (Fla. 1st DCA 1976)); however, see
CEO 94-30 (in which the Commission found that designation of the position of chief deputy property
appraiser for inclusion into the Florida Retirement System's Senior Management Service Class was an
advancement or promotion) and compare CEO 94-26 (in which the Commission found that a special pay
increase for a brother of the Secretary of the Department of Community Affairs was not a promotion or
advancement); see also CEO 94-39 (action labeled "lateral transfer" substantively a promotion or
advancement) and CEO 98-23 (sheriff's brother-in-law's promotion to deputy first class not a "promotion"
or "advancement" under the law). Also, when a seemingly prohibited relationship develops after lawful
employment (such as via marriage of a public official and an existing employee of the same agency),
discharge of the employee is not required, as there is a "grandfathering"; but the employee cannot be
advanced or promoted. CEO 94-6, CEO 91-27. However, "rehires" are not grandfathered. CEO 92-10
(county commission hiring relative of commissioner as correctional officer when commission takes over
jail operations from sheriff who formerly employed the relative).
E. Under the former law, when an appointment was made by a board or commission, a
relative of one of the board members could be appointed so long as the board member did not participate in
the decision or advocate the appointment. Citv of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993).
F. However, an amendment to the statute after Galbut specifies that a relative of a board
member cannot be appointed by the board, regardless of whether the related board member does not
participate. An exception is made in municipalities of less than 35,000 population for appointments to
boards not having land-planning or zoning responsibilities. This exception applies regardless of whether
the related public official voted on the appointment and regardless of whether the appointment was made
before the exception was adopted. Kinzer v. Commission on Ethics, 654 So. 2d ] 007 (3d DCA 1995).
See CEO 98-22 regarding the meaning of"land-planning or zoning responsibilities."
G. The receipt of delegated authority to hire, promote, or advance will bring one under the
statute in regard to his or her relatives; but one vested with hiring/promotion/advancement authority cannot
avoid the statute by attempted delegation of the authority. Morris v. Seeley, 541 So. 2d 659 (Fla. 1st DCA
l 989). Merit promotions/advancements going to the highest-scoring applicant and involving no discretion
have been found, in at least one instance, not to be violative of the statute. CEO 98-2 (promotions of
wildlife ofT{icer sons of GFC Commission member). A county commission is not necessarily the "public
official" vested with hiring/promotion/advancement authority in relation to all county positions; see CEO
93-1, in which the Commission found that the law was not violated where a county commissioner's wife
was promoted in the count}rs solid waste department because under the count}rs charter the county
manager held the promotion authority). Also, there is support for the position that the law does not apply
in situations where a public official merely has the ability to approve or disapprove (rather than make) the
hire or appointment (AGO 83-13, AGO 73-75, AGO 71-158); however, be very careful in such situations
not to confuse approval/disapproval with attempted delegation of the authority to hire or appoint.
H. The law applies to paid and unpaid positions (CEO 95-12) and to reappointments (CEO
95-12).
I. Certain volunteer emergency medical, volunteer firefighting, and volunteer police services
positions are exempted from the law.
J. Agencies may authorize by regulation temporary employment in the event of an
emergency as defined in F.S. 252.34(3).
III. DOING BUSINESS WITH ONE'S AGENCY PROHIBITION
A. F.S. 112.313(3) contains two prohibitions, the first of which prohibits a public officer
acting in an official capacity or public employee acting in an official capacity as a purchasing agent from
directly or indirectly purchasing, renting, or leasing realty, goods, or services for the person's own agency
from a business entity of which the person or the person's spouse or child (or any combination of them) is
an officer, partner, director, proprietor, or the owner of a "material interest." Note that neither the first nor
the second prohibition of F.S. 112.313(3) prohibits a public officer's or public employee's purchase of
realty, goods, or services from his or her political subdivision or an agency thereof (CEO 01-16); however,
such a purchase may be violative of F.S. 112.313(7xa). Also, note that a director or officer can come
within the prohibition whether or not he or she is paid or compensated; and that nonprofit corporations are
"business entities." CEO 94-17.
1. "Purchasing agent" is defined in F.S. 112.312(20).
2. "Material interest" is defined in F.S. 112.312(15) to mean the direct or indirect
ownership of more than 5% of the total assets or capital stock of a business entity.
3. "Indirectl}r' doing business does not include situations where the officer's or
employee's corporation does business with a business entity that is selling to his or her agency. CEO 78-
83. See also CEO 00-21 regarding a county manager's sale of land to an entity that in tum donates the land
to the county; however, this opinion is of little precedent value in that it is expressly limited to its peculiaz
facts.
B. The second prohibition in 1]2.313(3) is against a public officer or employee acting in a
private capacity to rent, lease, or sell any realty, goods, or services to the person's agency, or to the political
subdivision served by the person, or any agency of the political subdivision.
1. "Acting in a private capacit}r' includes situations where one personally is involved
with the sale to the agency or political subdivision (CEO 81-50 and CEO 94-3), as well as where one is an
officer, director, or owner of more than a 5% interest in a business that is selling to the agency or political
subdivision. CEO 81-2. The statute does not apply to a situation where one merely is an employee of a
business entity and personally is uninvolved with the sale (CEO 94-3); however, see F.S. 112.313(7)
below.
2. The statute applies to prevent an agency employee from being a partner in a law
firm which is providing services to the agency. Howard v. Commission on Ethics 421 So. 2d 37 (Fla. 3d
DCA 1982). [But see "local government attorneys" below.]
C. Donations to one's agency do not fall within the scope of this prohibition. CEO 82-15.
Neither does a real estate sale involving a public official as a real estate professional without a commission
(CEO 82-50), the bringing of a lawsuit (CEO 77-14), nor the condemnation of an official's land by the
off cial's agency (CEO 78-8). Note that the statute does not address purchases from one's agency or
political subdivision; but also note the possible applicability of F.S. 112.313(7). CEO 82-50, CEO 01-16.
D. Exceptions to the prohibition:
1. F.S. 112.313(3) expressly "grandfathers" in certain existing contracts, including
those entered into prior to qualification for elective office, appointment to public office, or beginning
public employment. CEO 96-30. However, changes in contracts after a person assumes a public position
are deemed to be new contracts not subject to this exemption (CEO 85-40 and CEO 84-43 ), unless the
renewals are completely nondiscretionary (CEO 82-10); but see CEO 02-14. Further, the Commission has
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used Section 112.316, Florida Statutes, to grandfather contracts entered into between qualification for
elective office and assumption of office (CEO 95-13).
2. Other express exemptions are contained in F.S. 112.313(12), as follows:
a. Advisory board members may receive a waiver in a particular instance by
the appointing authority, made in a public meeting after a written disclosure is made on Commission Form
4A. F.S. l 12.313(12). Note that advisory status requires a detailed examination of the attributes of the
governmental body, and is not controlled by any perceived insignificance of the body (CEO 96-19, county
fine arts council not advisory); and note that for purposes of the exemption in F.S. 112.313(12), but not for
purposes of financial disclosure under F.S. 112.3145, that an advisory board need only be "solely
advisory," irrespective of the amount of its budget or authorized expenditures (CEO 77-178).
b. At the local government level, when the business is to be transacted by
rotation among all qualified suppliers, the official's business may be placed on the rotation list. "Qualified"
means that reasonable, but not unduly restrictive, conditions may be placed on the suppliers by the
purchasing agency, such as the ability to supply merchandise of acceptable quality or specifications. F.S.
112.313(12xa). CEO 89-64 and CEO 92-27. The use of selection criteria that include the volume of
current and prior work done with a firm does not constitute a "rotation system." CEO 96-23. See also
CEO O1-1 S (rotation cannot include providers from outside of the political subdivision).
c. When the business is to be transacted through a sealed, competitive
bidding process, the official's business may submit a bid and be awarded the contract. F.S.
112.313(12)(b). However, the official must file a written disclosure prior to or at the time the bid is
submitted (Commission Form 3A), and must not participate in the process. Contracts awarded under the
Consultants' Competitive Negotiation Act (F.S. 287.055) do not constitute a sealed bidding process. CEO
81-28 and CEO 01-15. Nor do RFPs (CEO 89-48). However, while the exemption will insulate one from
conflicts based upon the business between the official's public agency and the provider of goods, services,
or realty to the public agency, it will not exempt conflicts arising independent of the competitively bid
business. CEO 96-7.
d. Legal advertising in a newspaper, utilities service, and passage on a
common carrier are exempted. F.S. 112.313(12xc). Legal advertising means only that advertising
required by law. CEO 90-57. Utilities service includes telephone service (CEO 83-7), but does not
include bulk fuel oil (CEO 95-8). The exemption for passage on a common carrier applies to purchase of
tickets by the agency directly from the carrier, but does not apply to purchases from a travel agency (CEO
80-1).
e. Emergency purchases are exempted, but only when made "in order to
protect the health, safety, or welfare" of the citizens. F.S. 112.313(12)(d).
f. When the official's business is the only source of supply within the
political subdivision, an exemption is provided, as long as disclosure is made prior to the transaction, on
Commission Form 4A. F.S. 112.313(12)(e). A television station has been found, in a certain context, to
be a sole source of supply. CEO 00-10. As with the rotation exemption, note that the sole source
exemption is not available to State-level agencies.
g. Transactions not exceeding $500 in the aggregate in a calendar year may
be made between the agency and the official's business. F.S. 112.313(12xf).
h. A municipal, county, or district public official may be a stockholder,
officer, or director of a bank acting as a depository of the agency's funds, provided that the governing body
of the agency (e.g., city commission, county commission, school board, water management district board)
has determined that the official has not favored that bank over other qualified banks. F.S. 112.313(12xg),
CEO 83-48, and CEO 83-81. Note that this applies only when the bank will be acting as a depository;
other banking functions, such as loans, are not encompassed by the exemption.
i. The transaction is made pursuant to F.S.1004.22 or F.S. 1004.23 and is
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specifically approved by the president and the chair of the university board of trustees. F.S.
112.313 (12)(h).
3. When the public officer or employee has and had no influence or public
responsibility in relation to the business between the agency and the private business entity with which the
officer or employee is connected, the Commission has viewed F.S. 112.316 as negating the literal language
of the prohibition in 112.313(3). CEO 76-38. As a result, members of subordinate boards of a city or
county would not be prohibited from doing business with the city or county, so long as their board had
nothing to do with the transaction. See, for example, CEO 81-66, CEO 88-17, and In re Stephen Huie, 13
FALR 1852 (Comm. on Ethics 10/26/89). Also, via F.S. 112.316, a county commissioner is not prohibited
from serving as acounty-funded indigent defense counsel specially appointed by the court (under a scheme
set prior to his becoming a commissioner), although the statute would not legitimize the commissioner's
contracting with the county as a special contract public defender (CEO 02-6).
IV. CONFLICTING EMPLOYMENT AND CONTRACTUAL RELATIONSHIPS
A. F.S. 112.313(7) prohibits a public officer or employee from having a contractual
relationship or employment with an agency or a business entity that is either subject to the regulation of, or
doing business with, the officer's or employee's agency.
1. "Employment" requires that one be compensated, or receive some consideration.
CEO 76-21; CEO 80-29. "Employment" is not limited to a master/servant relationship, but also includes
being an owner, partner, or sole proprietor of a business (CEO 84-95), and includes compensated directors
of nonprofit entities (CEO 85-89). Refusal, in advance and in writing, of compensation has been held to
negate the required element of compensation (CEO 00-23).
2. Whether a "contractual relationship" exists has been governed by the substantive
law of contract.
a. It has not been limited to contracting parties, but has been found to
include third party beneficiazies. CEO 76-85.
b. Sales of goods or realty, the provision of services for compensation, and
the ownership of shares of stock (CEO 99-13) have been found to constitute contractual relationships.
c. Members (partners, shareholders, associates), but not "of counsel
attorneys," of law firms have contractual relationships with each client of the firm regazdless of whether a
particular attorney performs or supervises work for a particulaz client (CEO 80-79, CEO 94-5, CEO 96-1),
and proprietors of unincorporated insurance agencies have been found to hold contractual relationships
with each client of the insurance agency (CEO 94-10).
d. Uncompensated service does not constitute a contractual relationship,
even if travel and lodging expenses aze received (CEO 93-23); however, lack of compensation is not
controlling if consideration or substitutes for consideration are present, or if services under professional
licensure (e.g., insurance agent licensure) are involved (CEO 95-28). Marriage does not constitute a
contractual relationship between the husband and wife. CEO 90-77.
e. The holding of an office (e.g., a county/city commission seat) is not
employment or a contractual relationship, even if it is a compensated position. CEO 92-39.
3. Past or possible future contractual relationships do not violate the statute; the
contractual relationship or employment must exist simultaneously with the other elements of the statute.
CEO 88-11.
4. A "business entit}r' is deftned in F.S. 112.312(5). A private university is a
business entity (CEO 99-11), as is a nonprofit youth center (CEO 78-18). Parent and subsidiary
corporations have been found to be separate business entities (CEO 86-12), except for situations involving
holding companies or subsidiazies where the parent owns only the asset of the subsidiary (CEO 94-5, CEO
99-13, CEO 03-1).
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5. "Agency" is defined at F.S. 112.312(2). The definition does not necessarily
include the entire department or political subdivision of the officer or employee, but rather refers to the
lowest departmental unit within which a public officer's or employee's influence might reasonably be
considered to extend. CEO 93-31 and CEO 99-7. Determining the "agency" of the officer or employee
can be critical to an analysis of how the statute applies. For example, the "agency" of some appointed
boazd members has been found to be that board (CEO 90-7), while the "agency" of other board members,
pazticulazly boards with only ad hoc advisory authority, may be the unit of government they are advising
(CEO 94-36, CEO 99-2, CEO 99-11). A city planning boazd is a separate agency from the city
commission (CEO 01-16). A school board member's "agency" does not include the county value
adjustment board where he or she is not one of the two school boazd appointees to the boazd and where the
remaining members of the school boazd could be asked to substitute for the named appointees but seldom
have (CEO 02-5). At the State level, one's agency may only be one's bureau (CEO 92-48) or one's district
(CEO 01-7) and not the whole of an executive department. However, the whole of a water management
district has been found to be the agency of a water management district engineer (CEO 96-3).
6. A business entity is "subject to the regulation of an agency when the business'
operations or modes of doing business aze subject to the control or authority of the agency. CEO 74-8.
Occupational licensing for revenue purposes is not "regulation." CEO 79-82. Incidental or passive
governmental influence, such as the enactment of ordinances that affect a broad number of people, does
not constitute "regulation." CEO 78-59. County phosphate mining ordinances have been held not to
constitute "regulation" by county commissions of mining companies. CEO 00-14. The enforcement of
criminal laws of general applicability does not constitute"regulation." CEO 91-22. However, an agency
may be subject to the regulation of another agency, as in CEO 97-03, where the State Board of Community
Colleges was found to regulate community colleges. A city building and planning department regulates
licensed contractors doing business in the city (CEO 96-15), but a city commission usually does not (CEO
99-7).
7. A business entity is "doing business with" an agency where the parties have
entered into a lease, contract, or other type of arrangement where one party would have a cause of action
against the other in the event of a breach or default. CEO 86-24. A lawsuit between a business entity and
an agency does not constitute "doing business" (CEO 77-14); nor does the mere donation of property to an
agency (CEO 82-13). Agreements between governmental entities for the provision of services generally do
not constitute "doing business" (CEO 76-2 and CEO 8l -5), but the extension of a grant from one agency to
another may (CEO 77-65).
8. Examples of conflicts under this prohibition include the following: city
commissioner prohibited from being employed by brokerage firm if firm is selected as underwriter for one
or more city bond issues (CEO 85-29); county commissioner prohibited from employment with national
brokerage firm contracting with county for underwriting services for proposed bond issue (CEO 88-80);
city commissioner employed by two city franchisees (Gordon v. Commission on Ethics, 609 So. 2d 125
(Fla. 4th DCA 1992)).
B. F.S. 112.313(7) also prohibits a public officer or employee from having a contractual
relationship or employment that will create a "continuing or frequently recurring" conflict of interest, or
that would "impede the full and faithful discharge" of public duties.
1. The statute is grounded in the principle that one cannot serve two masters. It does
not require proof that the public officer or employee has failed to perform his responsibilities or has acted
corruptly; the statute is entirely preventative in nature, intended to prevent situations in which private
economic considerations may override the faithful dischazge of public responsibilities. It is concerned with
what might happen, with the temptation to dishonor. See Zerweck v. Commission on Ethics, 409 So. 2d
57 (Fla. 4th DCA 1982), finding the statute not unconstitutionally vague.
2. An impediment to public duty can be based on a single incident or transaction.
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For example, the Commission has concluded that representing a client before the board of which one is a
member interferes with the full and faithful discharge of one's public duties and, where such
representations aze frequent, presents a continuing or frequently recurring conflict. CEO 77-126, CEO 78-
86. The same conflict would exist when another member or employee of the public officer's professional
firm undertakes to represent a client before the officer's board (CEO 88-40), or where a member or
employee of a law firm of which the public officer is "of counsel" seeks to represent a client before the
officer's board [CEO 96-1, afPd by PCA sub nom. Korman v. State Commission on Ethics 710 So. 2d 553
(Fla. 1 st DCA 1996].
3. This prohibition can interface with other aspects of the Code, such as F.S.
112.313(8), regazding the temptation to disclose or use information not available to the general public and
gained by reason of one's official position (CEO 92-18, deputy clerks of court developing softwaze for sale
to other clerks' offices having access to proprietary information via their public positions.)
4. The statute would prohibit a county commission candidate from entering into a
binding contract containing campaign promises and a penalty clause with a political action committee.
CEO 96-24 and CEO 96-25. It also would prohibit a county probation officer from being employed by an
entity that is providing services to probationers. CEO 96-28. It would prohibit a city mayor from
contracting to promote charter schools with a subsidiary of a company doing business with the city. CEO
O 1-9.
5. The Commission on Ethics has wide discretion to interpret the statute, and courts
must defer to its interpretation unless cleazly erroneous. Velez v. Commission on Ethics 739 So. 2d 686
(Fla. 5th DCA 1999).
C. Exemptions to the Application of 112.313(7):
1. When the agency is a special tax district created for the purpose of financing,
constructing, and maintaining improvements in the district, or is a Ch. 298 F.S. water control district,
employment or contracts with the business entity developing the property will not be prohibited, per se.
However, the district must be created by general or special law, as opposed to local ordinance. CEO 84-4.
F.S. l 12.313(7)(a)1.
2. When the agency is a legislative body and the regulatory power exercised over the
business entity resides in another agency or is exercised strictly through the enactment of laws or
ordinances, employment and contracts with the business entity are not prohibited. CEO 91-1. F.S.
112.313(7)(x)2.
3. When legislative act or local ordinance requires or allows certain public officers
or employees to engage in certain occupations or professions in order to be qualified to hold their public
positions, then 112.313(7) does not prohibit the officer or employee from practicing in that occupation or
profession. F.S. 112.313(7)(b). For example, in CEO 84-63, a port authority member was required to be a
representative of business entities doing business with or at the port; the member's employment as vice
president of a shipping company at the port was considered exempted. In Brevard County v. Commission
on Ethics, 678 So. 2d 906 (Fla. 1st DCA 1996), the court affirmed CEO 95-27, an opinion concluding that
the county's firefighters would be prohibited from being employed by local ambulance companies and that
F.S. 112.313(7)(b) would not allow the County to exempt its firefighters' employment from the prohibition
of F.S. 1 ] 2.313(7)(a). See also CEO 01-10 [Section 112.313(7)(b) not applicable to Florida Building
Commission member].
4. An elected public officer may be employed by a "501(c)" tax-exempt organization
that contracts with the officer's agency, as long as the off'icer's employment is not compensated as a result
of the contract, the officer does not participate in the agency's decision to contract, and the officer abstains
from voting on matters involving the officer's employer and otherwise follows the voting conflicts law.
F.S. 112.313(15), CEO 97-05, and CEO 01-4. Note that this exemption only applies to "employment"; it
does not apply to "contractual relationships" (CEO 98-11, footnote 2).
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5. The exemptions contained in F.S. 112.313(12) (noted above) are applicable to
exempt conflicts under 112.313(7): for advisory board members; depositories of public funds; passage on a
common carrier; contracts awarded by sealed, competitive bid; emergency purchases; legal advertising;
aggregated transactions not exceeding $500; at the local government level, work handled through a
rotation system; sole sources of supply (for political subdivisions); and utilities service.
6. When a public officer or employee privately purchases goods or services from a
business entity which is doing business with his or her agency, the transaction is exempted from
112.313(7) if the purchase is "at a price and upon terms available to similarly situated members of the
general public." F.S. 112.313(12)(1).
7. Similarly, an officer or employee may purchase goods or services from a regulated
business when the price and terms are available to similarly situated members of the public and full
disclosure of the relationship is made prior to the transaction to the State agency head or local governing
body (e.g., county commission). F.S. 112.313(12)(j).
8. The Commission has applied F.S. 112.316 to "grandfather" in employment or
contractual relationships with business entities doing business with the officer's or employee's agency,
when the employment or contractual relationship and the business relationship with the agency predate the
officer's holding office or the employee's public employment. CEO 82-10, CEO 96-31, CEO 96-32, CEO
02-14, CEO 02-19 (employee county attorney). Also, as with situations under F.S. 112.313(3), F.S.
112.316 may apply to negate conflict under F.S. 112.313(7) occasioned by matters in which a public
officer or employee played and plays no material public role regarding his or her business or secondary
employer. See, for example, CEO 01-12 and CEO 02-6 [county commissioner serving ascounty-funded,
court-appointed indigent defense counsel (but not as special public defender contracting with county),
under scheme set prior to his becoming a commissioner].
V. PROHIBITION AGAINST EMPLOYEES HOLDING OFFICE
A. No person may both be an employee of a county, municipality, special taxing district, or
other political subdivision and hold office as a member of the governing board, council, or commission
which is his or her employer. F.S. 112.313(10).
B. However, a school teacher may take a leave of absence without pay to serve on the school
board without violating this prohibition. Wright v. Commission on Ethics, 389 So. 2d 662 (Fla. 1st DCA
1980).
C. Does not prohibit simultaneous employment/office-holding for different political
subdivisions. For example, a public school teacher or other employee is not prohibited by this provision
from serving as a member of the city council of a city located within the school district. CEO 02-4.
D. Afire district commissioner's service as a district firefighter, provided he refuses in
advance and in writing his compensation (per-run payments), is not violative of the statute. CEO 00-23.
VI. RESTRICTION ON PROFESSIONAL AND OCCUPATIONAL LICENSING BOARD
MEMBERS
A. No officer, director, or administrator of a Florida state, county, or regional professional or
occupational organization or association, while holding such position, shall be eligible to serve as a
member of a State examining or licensing board for the profession or occupation. FS 112.313(11).
B. However, the restriction does not encompass enumerated service with a national or
regional (e.g., southern states) organization or association (CEO 85-74 and CEO 83-68); and the
restriction applies only to enumerated positions within a covered organization or association (CEO 90-61).
VII. MISUSE OF PUBLIC POSITION PROHIBITION
A. Public officers, public employees, and local government attorneys may not corruptly use
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or attempt to use their official position or any property or resource within their trust, or perform their
official duties, to secure a special privilege, benefit, or exemption for themselves or another. F.S.
112.313(6).
B. "Corruptl}~' is defined in F.S. 112.312(9) to mean
done with a wrongful intent and for the purpose of obtaining, or
compensating, or receiving compensation for, any benefit resulting from
some act or omission of a public servant which is inconsistent with the
proper performance of his or her public duties.
C. The statute has been upheld as not being void for vagueness. Tenney v. Commission on
Ethics, 395 So. 2d 1244 (Fla. 2d DCA 1981); Garner v. Commission on Ethics 415 So. 2d 67 (Fla. 1st
DCA 1982).
D. In order to have acted "corruptly," one must have acted "with reasonable notice that
conduct was inconsistent with the proper performance of her public duties and would be a violation of the
law or the code of ethics." Blackburn v. Commission on Ethics 589 So.2d 431 (Fla. 1st DCA 1991). A
determination that one acted corruptly must be supported by substantial competent evidence. Kinzer v.
Commission on Ethics. 654 So. 2d 1007 (Fla. 3d DCA 1995). The standazd of proof is clear and
convincing evidence. Latham v. Florida Commission on Ethics 694 So. 2d 83 (Fla. 1st DCA 1997).
E. Mismanagement, "waste in government," and negligent acts aze not sufficient; there must
be intentional conduct to benefit oneself or another.
F. Sexual harassment (use of position to benefit oneself) can be a violation. See Bruner v.
Commission on Ethics, 384 So.2d 1339 (Fla. 1st DCA 1980), and Garner v. Commission on Ethics 415
So.2d 67 (Fla. 1st DCA 1982); also Garner v. Commission on Ethics 439 So.2d 894 (Fla. 2d DCA 1983).
G. See CEO 02-13 regarding proper/improper use of public agency "business cards."
VIII. PROHIBITION AGAINST DISCLOSURE OR USE OF CERTAIN INFORMATION
Public officers, public employees, and local government attorneys aze prohibited from disclosing
or using information not available to members of the general public and gained by reason of their official
position for their personal gain or benefit or for the personal gain or benefit of any other person or business
entity. F.S. 112.313(8).
IX. PROHIBITION AGAINST SOLICITATION AND ACCEPTANCE OF CERTAIN GIFTS
A. Public officers, public employees, local government attorneys, and candidates for
nomination or election are prohibited from soliciting or accepting anything of value to the recipient based
on any understanding that the vote, official action, or judgment of the official, employee, attorney, or
candidate would be influenced thereby. F.S. 112.313(2).
B. Things of value under this provision include, but are not limited to, gifts, loans, rewards,
promises of future employment, favors, and services.
C. Essentially amounts to bribery and requires a quid pro quo.
X. PROHIBITION AGAINST UNAUTHORIZED COMPENSATION/GIFTS
A. Public officers, employees, and local government attorneys, and their spouses and minor
children, are prohibited from accepting any compensation, payment, or thing of value when the official
knows or, with the exercise of reasonable care, should know that it is given to influence a vote or other
action in which the official was expected to participate in his/her official capacity. F.S. 112.313(4).
B. The Commission has found this standard violated when a legislator received alobbyist-
paid hunting trip, when a legislator received alobbyist-paid trip to Key West, when a mayor received free
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cable television service from the city's cable franchisee, and when city officials received free memberships
from a country club leasing its facilities from the city. Also, this provision would be violated were an
employee of the Department of Children and Family Services to receive $100 for participation in a brief
survey regarding a company doing business with the Department. CEO 01-2.
C. The Third District Court of Appeal held the statute unconstitutionally vague in Bazker v.
Commission on Ethics. 654 So. 2d 646 (Fla. 3d DCA 1995), but the Supreme Court reversed in
Commission on Ethics v. Bazker. 677 So. 2d 254 (Fla. S. Ct. 1996). The First District Court of Appeal
held the statute not to be unconstitutionally vague. Goin v. Commission on Ethics. 658 So. 2d 1131 (Fla.
1st DCA 1995).
XI. GIFT PROHIBITIONS AND DISCLOSURES FOR "REPORTING INDIVIDUALS" AND
"PROCUREMENT EMPLOYEES"
A. NReporting Individuals" and "Procurement Employees" (RIPEs) also are subject to the
detailed gift law provided in F.S. 112.3148.
1. "Reporting individuals" are defined to include persons who aze required by law to
file the full financial disclosure statement specified in Art. II, Sec. 8, Fla. Const. (CE Form 6), and persons
required to file the limited financial disclosure statement specified in FS 112.3145 (CE Form 1). FS
112.3148(2)(d). "Procurement employees" are defined to include any employee of an officer, department,
board, commission, or council of the executive branch or judicial branch of state government who
participates through decision, approval, disapproval, recommendation, preparation of any part of a
purchase request, influencing the content of any specification or procurement standard, rendering of
advice, investigation, or auditing or in any other advisory capacity in the procurement of contractual
services or commodities ad defined in s. 287.012, if the cost of such services or commodities exceeds
$1,000 in any year.
2. Local government attorneys who are RIPEs (by virtue of filing limited disclosure)
generally aze only the city attorney or the county attorney. Assistant city or county attorneys, attorneys for
local government boards, and attorneys for special districts aze not RIPEs. See CEO's 83-56, 84-5, 85-49.
District School Board attorneys are not RIPEs, unless they come within a generic definition [e.g.,
"purchasing agent" as defined in Section 112.3145(lxa)3., Florida Statutes (a F.S. 287.017 CATEGORY
ONE purchasing agent).]
3. Based on information submitted by State and local agencies, the Commission
prepares lists of persons required to file full and limited disclosure. F.S. 112.3145(6). These lists are
helpful as a starting point for information about who is a reporting individual.
B. Prohibition against RIPEs Soliciting Gifts: A RIPE is prohibited from soliciting any gift
from a lobbyist who lobbies the RIPE's agency, from the partner, firm, employer, or principal of such a
lobbyist, or from a political committee or committee of continuous existence as defined in the election laws
(FS l 06.011), if it is for the personal benefit of the RIPE, another RIPE, or a pazent, spouse, child, or
sibling of a RIPE. FS 112.3148(3).
1. The prohibition against solicitation is comprehensive, there is no valuation
threshold, and it applies even to food and beverages.
2. The gift must be for the personal benefit of the RIPE, a family member, or one or
more other RIPEs. Therefore, a RIPE cannot solicit lobbyists for contributions toward a banquet for other
RIPEs. But, solicitation of a gift intended for one's agency or for a chazity, for example, is not prohibited.
CEO 91-52.
C. General Rule on Accepting Gifts: Subject to specific, limited exceptions, a RIPE (and any
other person on behalf of the RIPE) is prohibited from knowingly accepting a gift which he or she knows
or reasonably believes has a value exceeding $100: (1) directly or indirectly from a lobbyist who lobbies
the RIPE's agency or from a political committee or committee of continuous existence; or (2) directly or
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indirectly made on behalf of the partner, firm, employer, or principal of such a lobbyist. FS 112.3148(4).
I . On the issue of knowledge, note that Commission Rule 34-13.310(4), F.A.C.,
provides that "reasonable inquiry" should be made of the source of the proposed gift to determine whether
it is prohibited. [All further citations to Commission rules are to F.A.C. Chapter 34-13.]
2. Where the gift is given to someone other than a RIPE by one of the prohibited
group of donors and is given with the intent to benefit the RIPE, the gift is considered an indirect gift to the
RIPE. Rule 310(6). This rule also provides examples of what would be considered prohibited and
permitted indirect gifts, as well as the factors the Commission considers in determining whether an indirect
gift has been made. See CEO 99-6 (Republican party fundraiser at Disney World attended by public
officers).
3. Exceptions. Aside from the exemption for gifts from relatives, there are only
three express exceptions to the general rule against accepting gifts worth more than $ l 00 from one of the
prohibited group of donors:
a. When the gift is accepted on behalf of a governmental entity or a
charitable organization. In this instance, the recipient may maintain custody of the gift for only the time
reasonably necessary to arrange for the transfer of custody and ownership of the gift. FS 112.3148(4).
These gifts need not be reported. Rule 400(2)(d). Note that Rule 320(1)(6) defines "charitable
organization" to mean an organization described in s. 501(c)(3) of the Internal Revenue Code and exempt
from tax under S. 501(a).
b. When the gift is from one of certain kinds of governmental entities (an
entity of the legislative or judicial branch, a department or commission of the executive branch, a county, a
municipality, an airport authority, a water management district, the Tri-County Commuter Rail Authority,
the Technological Research and Development Authority, a county, a municipality, an airport authority, or a
school board), provided that a public purpose can be shown for the gift. FS 112.3148(6xa). These gifts
must be reported; however, in CEO 01-14, the Commission on Ethics found that office space made
f available by a municipality to a Legislator for use as his district office was not a "gift." Note that Rule
320(2) defines "public purpose," specifies that there must be a public purpose for the entitys having given
the gift and for the RIPE's accepting the gift, and concludes that there is no public purpose for a gift
involving attendance at a spectator event unless the donee has direct supervisory or regulatory authority
over the event, persons participating in the event, or the entity which gave the tickets. See also CEO 9l -53
(county provides telephone service to legislative delegation).
c. When the gift is from adirect-support organization (DSO) specifically
authorized by law to support a governmental entity, so long as the RIPE is an officer or employee of that
governmental entity. FS 112.3148(6)(a). These gifts must be reported. See CEO 92-14 (DSO for state
university).
D. Gift Disclosures for RIPEs.
1. Quarterly Gift Disclosure (CE Form 9): Each RIPE must file this form to list each
gift worth over $100 accepted by the RIPE, except for gifts from relatives, gifts required to be disclosed on
other forms, and gifts the RIPE is prohibited from accepting. The deadline is the last day of the calendar
quarter following the calendar quarter in which the gift was received. The form need not be filed if no
reportable gift was received during the calendar quarter. However, note that the Commission rule requires
a RIPE to disclose a gift reportable on this form received during the time the RIPE held his or her public
position, regardless of whether the position was vacated before the form is due. The form is filed with the
Commission. FS 112.3148(8); Rule 400.
2. Annual Gift Disclosure (CE Form 10). Each RIPE must file this form to list each
gift worth over $100 received by the RIPE: from a governmental entity, for which a public purpose can be
shown; or from adirect-support organization. The deadline is July 1 of the year following the year in
which the gift was received. The form is filed along with the annual financial disclosure form. The form
need not be filed if no reportable gift was received. FS 112.3148(6)(d); Rule 410.
E. Gift Prohibitions for Donors
1. A lobbyist who lobbies a RIPE's agency; the partner, firm, employer, or principal
of a lobbyist; another on behalf of the lobbyist or partner, firm, principal, or employer of the lobbyist; and a
political committee or committee of continuous existence are prohibited from giving, either directly or
indirectly, a gift that has a value in excess of $100 to the RIPE or any other person on the RIPE's behalf.
FS 112.3148(Sxa).
2. Exceptions to this prohibition minor those for RIPEs: a gift worth over $100 may
be given if it is intended to be transferred to a governmental entity or charitable organization; a gift worth
over $100 may be given by certain governmental entities if a public purpose can be shown for the gift; a
gift worth over $100 may be given by adirect-support organization to an officer or employee of the agency
supported by the DSO.
F. Gift Disclosures Applicable to Donors.
1. Quarterly Gift Disclosure (CE Form 30): Each lobbyist who lobbies a RIPE's
agency, or the partner, firm, employer, or principal of such a lobbyist, who makes or directs another to
make a gift having a value over $25 but not over $ l 00 to a RIPE of that agency, must file this form to
report the gift. Each political committee or committee of continuous existence which makes or directs
another to make a gift having a value over $25 but not over $100 to a reporting individual or procurement
employee must file this form to report the gift. In addition, the donor must notify the intended recipient at
the time the gift is made that the donor, or another on the donor's behalf, will report the gift. The report is
filed with the Commission, except with respect to gifts to RIPES of the legislative branch (of State
government), in which case the report shall be filed with the Division of Legislative Information Services
in the Office of Legislative Services. FS 112.3148(Sxb); Rule 420.
a. The disclosure requirement does not apply to the following gifts: those
which the donor knows will be accepted on behalf of a governmental entity or charitable organization;
those from a direct support organization (DSO) to a RIPE of the agency supported by the DSO; or those
from an entity of the legislative or judicial branch, a department or commission of the executive branch, a
water management district, the Tri-County Commuter Rail Authority, the Technological Research and
Development Authority, a county, a municipality, an airport authority, or a school board.
b. The deadline is the last day of the calendar quarter following the calendar
quarter in which the gift was made. The same gift need not be reported by more than one person or entity,
and the form need not be filed if no reportable gift was made during the calendar quarter. -
c. Note that the Commission rule requires the donor to disclose a gift
reportable on this form, regardless of whether the donor is within the prohibited group at the time the form
is due.
2. Annual Gift Statements by Governmental Entities and DSOs. No later than
March 1 of each year, each governmental entity or DSO which has given a gift worth over $100 to a RIPE
during the previous calendar year (where the gift is exempted) must give the RIPE a statement describing
the gift, the date of the gift, and the value of the total gifts given by the entity or DSO to that RIPE during
the calendar year. A governmental entity may provide a single statement covering gifts provided by the
entity and any associated DSO. No form has been promulgated by the Commission for this statement. FS
112.3148(6xc); Rule 430.
G. Gifts from Relatives:
1. Gifts solicited or accepted by a RIPE from a relative are not prohibited or
reportable by either the RIPE or the relative, regardless of whether the relative is a lobbyist or the partner,
employer, or principal of a lobbyist. FS 112.3148(1); Rules 300(3), 320(4), 400(2), 420(7).
2. The definition of "relative" is expansive, including not only family members such
as in-laws and step-relatives, but also persons engaged to RIPEs, persons who hold themselves out as or
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are generally known as intending to marry or form a household with the RIPE, and any person having the
same legal residence as the RIPE. See FS 112.312(21).
H. The Definition of "Gift." Although comprehensive in many respects, including what may
be provided to the donee directly, indirectly, or through another, the definition of "gift" (FS 112.312(12))
contains several important exceptions. Since the definition is uniformly applicable to the prohibitions and
disclosures, this has the effect of exempting transactions within an exception to the definition of gift (e.g.,
gifts from relatives, items received in exchange for equal or greater consideration) from being prohibited or
subject to disclosure. (As the definition contains a long list of examples of what is a gift and what is not, it
is not quoted here; only major concepts and exceptions are reviewed.)
1. Included in the definition are several items that might not normally be considered
a gift. These include the use of real or personal (tangible and intangible) or real property; a preferential
rate or terms on a debt, loan, goods, or services, which rate is not a government rate or available to
similarly situated members of the general public by virtue of certain private attributes; transportation (other
than transportation provided by an agency in relation to officially approved governmental business),
lodging, and parking; personal and professional services; and any other service or thing having an
attributable value.
2. If equal or greater consideration is given (within 90 days of receipt of the gift), it
is not a gift; "consideration" does not include a promise to pay or otherwise provide something of value
unless the promise is in writing and enforceable through the courts. F.S. 112.312(12)(a) and
112.312(12)(d). Based upon this concept, the Commission's rule specifies that salary, benefits, services,
fees, or other expenses (including travel expenses when a public purpose for the travel exists) received by a
RIPE from his or her public agency do not constitute gifts. However, services rendered by the RIPE on
behalf of the RIPE's agency by use of official position do not count as consideration for a gift from a
person or entity other than the agency. The rule provides that substantiating equal or greater consideration
is the responsibility of the donee. CEO 01-13. This can be done by providing information demonstrating
the fair market value of items of merchandise, supplies, raw materials, or finished goods provided by the
donee to the donor. In the case of personal labor or effort for the benefit of the donor, the length of time,
value of the service provided, and whether others providing similar services for the donor received a
comparable gift will be reviewed by the Commission. Rule 210. CEO 01-13.
3. There is a significant exclusion for salary, benefits, services, fees, commissions,
expenses, and even gifts associated primarily with the donee's employment or business, or with the donee's
service as an officer or director of a corporation or organization. Rule 214 states that this means those
things associated with the donee's principal employer or business occupation and unrelated to the donee's
public position. EXAMPLE: Fees or even gifts received by a RIPE from a client of his or her private law
practice, with no other relationship between the RIPE and the client, would not be a prohibited or
reportable gift. However, in CEO 92-33 tickets from one's agency to theater performances were not
considered "benefits" under the rule, unlike benefits typically associated with employment.
4. Contributions or expenditures reported under the campaign financing law,
campaign-related personal services provided by volunteers, and any other contribution or expenditure by a
political party are exempted.
5. An honorarium or expense related to an honorarium event paid to a RIPE or
spouse is exempted. These are treated exclusively under the honorarium law.
6. Effective January 1, 1997, food and beverages consumed at a single sitting or
event came within the definition of gift. Chapter 96-328, Laws of Florida. Therefore, a cup of coffee or a
meal may be prohibited or reportable, depending on value.
I. The Definition of "Lobbyist." A "lobbyist" is defined to mean any natural person who is
compensated for seeking to influence the governmental decisionmaking of a RIPE or the agency of a RIPE
or for seeking to encourage the passage, defeat, or modification of any recommendation or proposal by a
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RIPE or the RIPE's agency; it also includes any person who did so during the preceding l2 months. FS
112.3148(1)(b); Rule 240.
I . A lobbyist is being compensated when receiving a salary, fee, or other
compensation for the action taken. Rule 240. Thus, any employee of an organization, including the chief
executive officer or a salesperson, who is contacting the agency as part of his or her job may be lobbying.
On the other hand, an unpaid volunteer member of a nonprofit organization who seeks to influence
governmental decision making will not be a lobbyist (but see 4, below, for a possible exception).
2. All types of governmental decisionmaking or recommendations are included,
whether they fall in the area of procurement, policy making, investigation, adjudication, or any other area.
Rule 240(3).
3. A purely informational request made to an agency and not intended in any way to
directly or indirectly affect a decision, proposal, or recommendation of a RIPE or an agency does not
constitute lobbying. One must have the intent to affect a decision, proposal, or recommendation and take
some action that directly or indirectly furthers or communicates one's intention. Rule 240(4).
4. For agencies that have established by rule, ordinance, or law a registration or other
designation process for persons seeking to influence decision making or to encourage the passage, defeat,
or modification of any proposal or recommendation by such agency or an employee or official of the
agency, a "lobbyist" includes only a person who is required to be registered or otherwise designated as a
lobbyist in accordance with that process or who was so required during the preceding 12 months. FS
l 12.3148(2xb). However, the local registration system must be at least as broad in defining who is a
"lobbyist" as the Legislature's registration system in order to define who is a lobbyist for purposes of the
gift and honoraria laws.
J. Valuation of Gifts.
1. The general rule for valuation uses the actual cost to the donor (less taxes and
gratuities) rather than fair market value of the gift, but several exceptions are provided. The rule specifies
that "actual cost" means the price paid by the donor which enabled the donor to provide the gift to the
donee; if the donor is in the business of selling the item or service (other than personal services), the
donor's actual cost includes the total costs associated with providing the items or services divided by the
number of units of goods or services produced. FS 112.3148(7); Rule 500(1).
2. Personal services provided by the donor, meaning individual labor or effort
performed by one person for the benefit of another, are valued at the reasonable and customary charge
regularly charged for such service in the community in which the service is provided. FS 112.3148(7xa);
Rule 500(2).
3. Compensation provided by the donee to the donor is deducted from the value of
the gift in determining the value of the gift. Under the Commission's rule, compensation includes only
payment by the donee to the donor and excludes personal services rendered by the donee for the benefit of
the donor. However, recall that services by the donee may constitute equal or greater consideration, with
the result that no gift has been made. The compensation principle gives rise to the so called "$100
deductible," under which the official pays all but $100 of the value of the gift in order to be allowed to
accept the gift; but see H.2 above regarding the requirement of payment within 90 days.
4. If the actual value attributable to a participant at an event cannot be determined,
the total costs are prorated among all invited persons, including nonRIPEs. FS l 12.3148(7xc).
5.. Transportation is valued on a round-trip basis and is a single gift, unless only one-
way transportation is provided. Transportation in a private conveyance is given the same value as
transportation provided in a comparable commercial conveyance. The rule specifies that this means a
similar mode and class of transportation which is available commercially in the community, transportation
in a private plane is valued as an unrestricted coach fare. If the donor transports more than one person in a
single conveyance at the same time, the value to each person is the same as if it had been in a comparable
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commercial conveyance. FS 112.3148(7)(d); Rule 500(4).
6. Lodging on consecutive days is a single gift. Lodging in a private residence is
valued at $29 per night (the per diem rate less the meal rate provided in FS 112.061). FS 112.3148(7)(e).
7. Where the gift received by a donee is a trip and includes payment or provision of
the donee's transportation, lodging, recreational, or entertainment expenses by the donor, the value of the
trip is equal to the total value of the various aspects of the trip. Rule 500(3).
8. Food and beverages consumed at a single sitting or event are considered a single
gift, valued according to what was provided at that sitting or meal; other food or beverages provided on the
same calendar day are considered a single gift, valued at the total provided on that day. FS 112.3148(f). If
the gift is food, beverage, entertainment, etc. provided at a function for more than ten people, the value of
the gift is the total value of the items provided divided by the number of persons invited, unless the items
are purchased by the donor on a per person basis.
9. Tickets and admissions to events, functions, and activities are a frequent source of
inquiries. Generally, the rule is that the value is the face value of the ticket or admission fee, but if the gift
is an admission ticket to a charitable event and is given by the charitable organization, that portion of the
cost which represents a charitable contribution is not included in valuing the gift. F.S. 112.3148(7)(k).
Rule 500(5) provides a number of specific examples and principles for valuing this type of gift, especially
relating to football tickets, booster fees, and seating in a skybox. Skybox tickets given by a county for
professional basketball playoff games would be valued at the cost of admission to persons with similaz
tickets. CEO 95-36 and CEO 96-02. Multiple tickets received at one time by a RIPE to be used by the
RIPE or given to others are valued by multiplying the number of tickets given times the face value of each
(CEO 92-33).
10. Where the donor is required to pay additional expenses as a condition precedent to
being eligible to purchase or provide the gift, and where the expenses are for the primary benefit of the
donor or are of a charitable nature, those expenses are not included in determining the value of the gift.
EXAMPLES: A lobbyist's golf club membership fees, for the personal benefit of the lobbyist, are not
included when valuing the gift of a round of golf; and the portion of a skybox leasing fee allocated to the
FSU Foundation, Inc. (expenses of a charitable nature) is not included in the value of a skybox seat. Rule
500(7) and CEO 94-43.
11. Membership dues paid to one organization during any 12 month period are
considered a single gift. FS 112.3148(7)(g).
12. Unless otherwise noted, a gift is valued on a per occurrence basis, meaning each
separate occasion on which a donor gives a gift to a donee.
K. Multiple donors.
1. In determining whether a gift is prohibited, the value of the gift provided to a
RIPE by any one donor equals the portion of the gift's value attributable to that donor based upon the
donor's contribution to the gift. The value of the portion provided by any lobbyist or other prohibited
donor cannot exceed $100; if it does, the RIPE cannot accept the gift. Rules 310(5), 5 10(2).
2. Regardless of whether the gift is provided by multiple donors, the RIPE must
disclose it if the value of the gift as a whole exceeds $100. Rule 510(1).
3. In determining whether a donor must disclose a gift ($25-$100) or provide a
statement to the RIPE about the gift (over $100), the value of the gift provided by any one donor equals the
portion of the gift's value attributable to that donor based upon the donor's contribution to the gift. If that
value exceeds the threshold, the donor must disclose the gift or provide the statement. Rules 420(9),
430(4), 510(3).
XII. HONORARIA AND HONORARIUM EVENT-RELATED EXPENSES
A. An "honorarium" is defined to mean a payment of money or anything of value, directly or
-IS-
indirectly, to a RIPE or to any other person on the RIPE's behalf, as consideration for a speech, address,
oration, or other oral presentation; or for a writing (other than a book) which is or is intended to be
published. F.S. 112.3149.
1. The Commission's rule specifies that the speech or other oral presentation means a
formal address, lecture, panel discussion, or other presentation which a RIPE has been invited to make to a
gathering of persons, and further provides examples of documentation evidencing a genuine presentation
by the RIPE, rather than a subterfuge to allow an otherwise prohibited gift. FS 112.3149(l)(a); Rule 220.
2. The term "honorarium" specifically excludes: payment for services related to
outside employment; ordinary payments or salary received for services related to the RIPE's public duties;
a campaign contribution reported as required by law; and the payment or provision of actual and
reasonable transportation, lodging, event or meeting registration fees, and food and beverage expenses
related to the honorarium event for the RIPE and spouse. FS 112.3149(1)(a). Rule 220(3) concludes that
to the extent that the expenses paid or provided for exceed those that are actual and reasonable, that
amount constitutes an honorarium. The rule also specifies a number of circumstances the Commission will
consider in determining the reasonableness of expenses paid or provided, again in an effort to see that this
exception does not allow an otherwise prohibited gift or honorarium.
B. A RIPE is prohibited from soliciting an honorarium from anyone, regardless of amount,
when the subject of the speech or writing relates to the RIPE's public office or duties. FS 112.3149(2).
C. Prohibition Against Accepting or Providing Honoraria. A RIPE is prohibited from
knowingly accepting an honorarium from: a lobbyist; the employer, principal, partner, or firm of a
lobbyist; and a political committee or committee of continuous existence. Similarly, these persons and
entities are prohibited from providing an honorarium to a RIPE. There is no $100 threshold for honoraria,
as there is for gifts. As with gifts, the Commission's rule states that "reasonable inquiry" should be made
by the RIPE to determine whether the honorarium is prohibited. FS l 12.3149(3) & (4); Rules 620 & 630.
D. A RIPE must disclose the receipt of payment for, or the provision of, expenses related to
an honorarium event from a person or entity that is prohibited from paying an honorarium to the RIPE.
There is no $100 threshold for this disclosure requirement. Honoraria or honorarium event-related
expenses paid or provided by any other person or entity are not required to be disclosed. CEO 91-57. The
statement (CE Form 10) is due by July 1 for expenses paid for or provided during the prior calendar year,
but the form need not be filed if there is nothing to report. The form is filed along with the annual
financial disclosure. FS 112.3149(6); Rule 710.
E. No later than 60 days after the honorarium event, the person or entity paying or providing
a RIPE's honorarium event-related expenses must provide to the RIPE a statement listing the name and
address of the person or entity, a description of the expenses provided each day, and the total value of the
expenses provided for the event. This applies only to persons and entities that are prohibited from paying
an honorarium to the RIPE. No form has been promulgated by the Commission for this statement. FS
112.3149(5).
XIII. LOCAL GOVERNMENT ATTORNEYS
A. "Local government attorneys" are subject to the provisions of the Code of Ethics contained
in F.S. 112.313(2), (4), (5), (6), & (8). F.S. 112.313(]6); CEO 02-19.
B. A "local government attorney" is defined to mean "any individual who routinely serves as
the attorney for a unit of local government." "Unit of local government" includes, but is not limited to,
municipalities, counties, and special districts. Expressly excluded from the definition are attorneys who
render services limited to a specific issue or subject, to specific litigation, or to a specific administrative
proceeding.
C. Unless the local government attorney is a full-time employee or governing board member
of the unit of local government, it is not conflicting under F.S. 112.313(3) or 112.313(7) for the attorney's
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law firm to provide services to the governmental unit; however, the local government attorney may not
refer legal work to his or her firm unless authorized by contract. Also, the firm may not represent private
clients before the governmental unit. F.S. 112.313(16).
XIV. POST OFFICE-HOLDING AND POST EMPLOYMENT (REVOLVING DOOR)
RESTRICTIONS
A. FS 112.313(9) contains atwo-year prohibition on former legislators, selected exempt
service employees, senior management service employees, and certain others representing persons or
entities before their former agencies.
1. Usually does not apply to former career service employees. CEO 00-09. Under
certain circumstances, does not apply to former career service employees subjected to an en masse transfer
to selected exempt service. CEO 02-1.
2. If applicable, effects are broad due to definition of "represent" codified in FS
112.312(22).
3. To be applicable, the representation must be regarding a matter "before one's
former agency" (but see CEO 02-12 regarding the possibly broad construction of "agency").
4. Is ameliorated by certain "grandfatherings." CEO 94-20; CEO 00-01.
5. Applies only to representations before one's former "agency," and not to
representations before all of State government. CEO 00-20, CEO 00-11. Actions necessary to carry out,
as opposed to actions to obtain, a contract with one's former agency appazently do not constitute
"representation" within the meaning of the prohibition (CEO 00-6 and CEO Ol-5); but see F.S. 112.3185
below.
6. Does not apply vicariously to other members of one's post-public-service firm.
CEO 00-20.
7. Former employees are exempt if their new employment is with another agency of
~ " State (not local or regional) government.
8. Former legislators are not expressly exempted via taking State-level public
employment; but in certain contexts the Commission on Ethics has constructed such an exemption. CEO
00-07.
B. Elected county, municipal, school district, and special district officers aze prohibited by FS
112.313(14) from representing another person or entity for compensation before the governing body
of which they were members for atwo-year period after leaving office.
C. At the option of the local governing body through ordinance or resolution, appointed
county, municipal, school district, and special district officers and employees of these entities may be
subjected to a similar two-year prohibition, except for collective bargaining matters, under FS 112.313(13).
XV. ADDITIONAL RESTRICTIONS REGARDING STATE-LEVEL EMPLOYEES
A. FS 112.3185(2) prohibits certain public employees who have a role in the procurement of
"contractual services" (as set forth in Chapter 287) from simultaneously being an employee of a public
agency and an employee of a person contracting with the agency.
B. FS 112.3185(3) contains a restriction, unlimited in duration, on former public employees
holding employment or a contractual relationship with a business entity in connection with any contract in
which the employee participated personally and substantially (see CEO 02-17 regarding meaning of
"substantial' through decision, approval, disapproval, recommendation, rendering of advice, or
investigation. Does not apply to work for a governmental entity (CEO 88-32); applies only to
employment/contractual relationship " in connection with" the contract (CEO 01-6); and can apply to
contracts coming into existence before or after one leaves public employment (CEO 00-6).
C. FS 112.3185(4) is a two-year restriction on former public employees holding employment
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or a contractual relationship with a business entity in connection with any contract for "contractual
services" which was within the employee's responsibility. But see CEO 01-5 (former DBPR employee
"outsourcing" with DBPR) and B above. "Within responsibilit}r' is not mere incidental contact with the
contract (CEO 93-2). Unlike FS 112.3185(3), cannot apply to contract not in existence until after
employee leaves public employment (CEO 84-30 and CEO 00-6).
D. FS 112.3185(5) caps the amount of money (at the amount of annual salary at severance
from public employment) a former public employee can be paid by his or her former agency for
°contractual services" provided to the agency during the first year after the employee vacates his or her
public employment. This prohibition may be waived by the agency head for a particular contract, upon a
time/cost savings to the State determination by the head. CEO 01-5. Applies to situations where a former
employee (personally or through aclosely-held entity) contracts with his or her former agency; does not
apply to situations where one works arms length for a business entity contracting with his or her former
agency [this is the type of situation addressed by FS 112.3185 (3) & (4)]; see CEO 93-2 and CEO 00-6.
E. FS 112.3185(6) contains a prohibition similar to that contained in FS 112.313(3).
However, the prohibition is broader in that it applies in part to one's "relative," as defined in FS
112.312(21), and not just to one's spouse or child.
F. Regarding FS 112.3185, see, for example, CEO 86-21 (former FDOT attorney, note that
definition of "contractual services" has changed since opinion issued); CEO 87-8 (former FDOT engineer);
CEO 93-2 (former FDOT public transit specialist); CEO 00-1; CEO 00-6 (FDOT selected exempt service
employee); and CEO 01-5 (former DBPR employee "outsourcing" with DBPR).
G. Also, Article II, Section 8(e), Florida Constitution, and F.S. 112.313(9xa)3 contain term-
of-office representation restrictions for legislators.
XVI. VOTING CONFLICTS OF INTEREST
A. A voting conflict arises when the official is called upon to vote on:
any measure which would inure to the officer's special private gain or
loss; which he or she knows would inure to the special private gain or loss
of any principal by whom the officer is retained or to the parent
organization or subsidiary of a corporate principal by which the officer is
retained; or which the officer knows would inure to the special private
gain or loss of a relative or business associate of the public officer ... .
F.S. 112.3143.
1. A "principal by whom the officer is retained" includes: the officer's employer
(CEO 78-27); a client of the officer's legal or other professional practice (CEO 84-11, CEO 84-1, CEO 76-
107, CEO 78-59, CEO 79-2, CEO 85-14); a corporation for which the officer serves as a compensated
director (CEO 84-107); and clients of an official who is an insurance agent (CEO 94-10).
2. Situations where the person or entity in question has not been found to be a
"principal by whom the officer is retained" include: the officer's church (CEO 90-24); the officer's landlord
(CEO 87-86); a homeowner's association of which the officer is a member (CEO 84-80); anon-profit
corporation of which the officer is an uncompensated director (CEO 84-50); the hospital where the officer
is on the medical staff (CEO 84-3, CEO 02-16); and customers of the officer's retail store (CEO 76-209).
3. One's "relative" is defined to include only one's father, mother, son, daughter,
husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. F.S.
112.3143 (1)(b).
4. "Business associate" is defined to mean "any person or entity engaged in or
carrying on a business enterprise with a public officer, public employee, or candidate as a partner, joint
venturer, corporate shareholder where the shares of such corporation are not listed on any national or
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regional stock exchange, or coowner of property." F.S. 112.312(4). In order for persons to be "business
associates" they must be engaged in a common business undertaking (a "business enterprise"); it is not
sufficient that they merely hold a nominal status in relation to one another; see CEO 98-9 in which the
Commission found that common ownership of a houseboat used for recreational (not commercial)
purposes (even via ownership of shares of stock of afor-profit corporation holding title to the houseboat)
did not make the owners business associates of one another. Also, see CEO O1-17 (county commissioner
member of educationaUnetworking forum not a business associate of other forum members by virtue of
forum membership).
5. A "public officer" is any person elected or appointed to hold office in an agency,
including persons serving on an "advisory body." F.S. 112.3143(1)(a).
6. Note that members of school boards are subject to the voting conflicts law (F.S.
112.3143) regarding measures which would inure to the special private gain or loss of their relatives (e.g.,
measures to hire their relatives to school positions), even though the anti-nepotism law (F.S. 112.3135) is
not applicable to school boards and school districts. CEO 87-50, AGO 72-72, AGO 82-48.
B. Voting Conflict Duties of State Public Officers
1. Unlike local public officers (dealt with below), State-level public officers are not
prohibited from voting on any measure. However, if the measure is one which will inure to an elected
State public officer's special private gain or loss, or to that of the various persons or entities enumerated in
the statute, he or she must make a disclosure of interest via CE Form 8A within 15 days of the vote on the
measure. Similar to appointed local officers, appointed State officers have requirements regarding
"participation" in certain matters that are not applicable to elected officers. FS 112.3143(2) & (4) and CE
Form 8A.
C. Voting Conflict Duties of Local Public Officers
1. If there is a voting conflict under the terms of the statute, a local official holding
an elective position must:
a. Abstain from voting on the measure;
b. Before the vote, publicly state to the assembly the nature of his or her
interest in the matter; and
c. Within 15 days of the vote, file a memorandum of voting conflict
(Commission Form 8B) with the person responsible for recording the minutes of the meeting, who
incorporates the form in the minutes.
[Note that elected officials are not subject to the same limitation on their ability to "participate" in the
matter as appointed officials. ("Participate" is defined in F.S. 112.3143(4)(c) to mean "any attempt to
influence the decision by oral or written communication, whether made by the officer or at the officer's
direction.")]
2. Local officials holding appointive positions must follow more complex guidelines.
If they do not intend to "participate" in the measure, they follow the same procedures as elected officials:
make the oral declaration, abstain, and follow up with the written form within 15 days. If they do intend to
"participate," they must abstain but must make their disclosure before they participate. This is
accomplished by either:
a. Filing the memorandum of voting conflict (Form 8B) prior to the meeting,
in which case the memorandum is to be provided immediately to the other members of the agency and is to
be read publicly at the next meeting after its filing; or
b. If the disclosure has not been made prior to the meeting at which the
measure will be considered or the conflict was unknown prior to the meeting, making the disclosure orally
at the meeting before "participating," followed by the written memorandum (Form 8B) within I S days after
the oral disclosure, which would be provided immediately to the other members of the agency and be read
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at the next meeting after its filing.
D. Special Private Gain or Loss--Size of the Class of Persons Affected
1. Obviously, a measure to reduce taxes would inure to the private gain of each
taxpayer, including the public officials who are to vote on the proposal. The Commission has recognized
that the concept of "special" gain must relate to the number of persons affected, stating:
[w]hether a measure inures to the special private gain of an officer or his
principal will tum in part on the size of the class of persons who stand to
benefit from the measure. Where the class of persons is large, a special
gain will result only if there are circumstances unique to the officer or
principal under which he stands to gain more than the other members of
the class. Where the class of persons benefiting from the measure is
extremely small, the possibility of special gain is much more likely. [CEO
77-129.]
2. On the one hand, where the official would be the only beneficiary of the measure,
there clearly would be "special" gain. See CEO 89-16 (citizen advisory task force member prohibited from
voting to recommend the approval of his own application to receive community development block grant
funds).
3. On the other hand, the Commission advised that a city council member would not
be prohibited from voting on a proposed sign ordinance where the council member owned a commercial
art shop that produced signs, among other products, and other members who owned an advertising
business that recommended and purchased billboard space for its clients and who owned an electrical
contracting company that had contracted to do work for a sign company also could vote on the ordinance.
As the ordinance would have only an indirect effect on the council members' businesses and there was no
indication that the members would be affected by the ordinance to a significantly greater or lesser degree
than other affected businesses, the Commission concluded that the ordinance would not inure to the
"special" gain of the members. (CEO 86-59)
4. Subsequent decisions by the Commission indicate that the threshold for "special
gain" occurs when the official constitutes around 1-2% of the size of the class of persons affected. The
Commission has concluded that a vote on an ordinance limiting the number of wrecker businesses on a city
wrecker rotation list from 18 to 1 l violated the statute when the city councilman worked for one of the I 1
wrecker companies. In re Thomas R. Tona, 13 FALR 1845 (Fla. Comm. on Ethics 1989). Similarly, the
Commission concluded that a county commissioner had been prohibited from voting to pave the road to his
residence, where his was one of 13 residences on the paved portion and he owned the majority of the land
abutting one side of the paved portion of the road. In re T. Butler Walker, Comm. on Ethics Compl. No.
92-30 (1994).
5. In groups of a larger size, the Commission advised in CEO 93-10 that a town
council member was prohibited from voting on a measure to resolve a real property ownership dispute
between the town and 43 private property owners, including the council member. In CEO 90-64, the
Commission concluded that a city commissioner was prohibited from voting on a renovation project that
would benefit property in which he owned an interest, where part of the cost of the project would be
assessed against the property owners. There, the commissioner owned 50% of one of 55 parcels that
would be affected, the parcels were owned by over 40 persons or entities, and the property's frontage was
2.7% of the total frontage upon which the assessment would be based. In CEO 92-37, the Commission
advised that a city commissioner would be prohibited from voting on a measure to add to a local historic
preservation district an area that included five hotel or apartment buildings owned by closely-held
corporations that were owned by him and his relatives. There, the buildings constituted either 5 of 60 sites
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to be included or 5 of 168 sites to be included, depending on how the measure was framed. More recently,
in CEO 95-4, the Commission advised that a county planning commissioner would be prohibited from
voting on a comprehensive plan amendment affecting the designation of 1,200 acres of property owned by
the planning commissioner, his relatives, and his business associates, where the measure would have
affected a total of approximately 32,000 acres.
6. A series of other opinions involve situations where the class of persons affected
was sufficiently large that no "special" gain was deemed to occur. In CEO 90-55, the Commission advised
that a city mayor was not required to abstain from voting on measures involving the proposed expansion
and renovation of a private club of 2,000 members. In CEO 87-18, the Commission concluded that a
planning commissioner was not required to abstain from voting on a comprehensive plan amendment that
would have affected 29,000 acres because his principal was leasing 300 acres of the affected area. In CEO
90-71, the Commission advised that a town commissioner was not prohibited from voting on issues
relating to a project that would benefit his neighborhood and that would be assessed against the property
owners in the neighborhood, when the commissioner owned 1.2% of the 83 lots that would be included in
the assessment. Also, see CEO 99-12 (regarding an airport authority commissioner) and CEO 00-13
(regarding a city commissioner receiving and voting on pension benefits).
7. Other decisions involve officials whose interests are proportionately large, when
compared to the other members of the class of persons affected. For example, in one case the Commission
concluded that a county commissioner should not have voted on the extension of a road along a boundary
of her property, where the commissioner owned 260 acres, was one of 32 property owners along the
proposed road extension, and was the fifth largest land owner along the road extension, with the next
largest land owner having 20 acres. In re Jeanne McElmurrav, Comm. on Ethics Compl. Nos. 87-24 & 26
(Stipulated Final Order 1988).
8. Budgets and appropriations acts are another type of measure that have a broad
impact, but that may, in one aspect, inure to the gain of the voting official. In CEO 88-20, the Commission
advised that a city commissioner was not prohibited from voting on the approval of a city budget that
included funding for in-kind services to be provided in connection with the activities of his employer. See
also CEO 89-19 and CEO 92-43 for situations that involve voting on a city's budget that contains items
that the official would be prohibited from voting on if the items were considered individually.
E. Special Private Gain or Loss--Remote or Speculative
1. In some situations the Commission has concluded that any gain or loss resulting
from the measure would be so remote or speculative that it could not be said to inure to the official's
special gain or loss. In CEO 85-46, the Commission advised that a city commissioner could vote on a
petition for annexation of property, where the commissioner's employer had sold the property, retained a
mortgage, and also owned adjoining property. In CEO 93-4, a city commissioner was advised that he
could vote on rent increases for a mobile home park owned by the city and located near a proposed
recreational vehicle park he owned, because the possibility that he could in the future justify charging
higher rent for his park if the cit}~s park had higher rent was too speculative to conclude that the rent
increases would inure to his special gain. In CEO 88-27, the Commission concluded that a city
commissioner was not prohibited from voting on the rezoning of property that was being sold contingent
upon rezoning, where the commissioner supported another group that was interested in purchasing the
same property and the commissioner probably would have been the building contractor for that group in
the event the group were to purchase the property. There, the Commission reasoned that the failure of the
rezoning measure would not be the only contingency that would have to occur for the commissioner to
benefit from the development of the property, as the existing owner would have to agree to sell to the
group. However, the Commission noted, if the property were sold to the group, the commissioner could
not vote on matters affecting the development of the property so long as he were the contractor for the
development. See also CEO 00-8 and CEO 01-18.
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2. Several Commission opinions have involved the impact of nearby development on
a business owned by the voting official or employing the official--all of these have concluded that any gain
resulting from the development was too remote and speculative to inure to the special gain of the official or
employer. See CEO 85-77, CEO 85-87, CEO 86-44, CEO 89-32, and CEO 91-70. However, compare
CEO 01-8.
3. Not every instance of indirect gain has been classified as too remote and
speculative to constitute "special gain," however. In CEO 88-27, the Commission advised that a city
commissioner should abstain from voting on the rezoning of property where his employer had contracted
to purchase the property contingent upon its receiving a particular zoning designation from the city. In
CEO 93-29, the Commission concluded that a city commissioner would be prohibited from voting on
matters involving the cit}~s proposed purchase of property where the commissioner and his son owned
interests in the mortgage encumbering the property. The Commission also has found a violation where a
city/county planning commissioner voted to rezone a parcel of property to permit a higher density, when
the commissioner had assigned his contract to purchase the property to the rezoning applicant and he was
owed $10,000 by the applicant as part of the assignment. In re John S. Mooshie. 15 FALR 382 (1992),
affirmed, per curiam, as Mooshie v. State Commission on Ethics. 629 So. 2d 138 (Fla. 1st DCA 1993).
4. In some situations, a series of decisions are made, some of which would inure to
the special gain of the official and others of which would not, depending on the circumstances and the
extent of the official's private participation in the process. Construction projects provide a good example
of this. In CEO 89-45, the Commission considered a situation where a city commissioner owned a steel
company that designed and bid steel packages to general contractors and developers, who generally would
appear before the city commission prior to the commissioner's having submitted a bid on the proposed
project. The Commission advised that if the commissioner had not submitted a proposal at the time of the
vote, then any perceived gain to him would be too speculative to require him to abstain. However, if the
commissioner had contacted or was in the process of negotiating with the contractor or developer, but had
not yet submitted a proposal, then he would be required to abstain. See also CEO 00-5 (effect of transient
rental ordinance on a grocery store not remote and speculative).
F. Special Private Gain or Loss- Procedural or Preliminary Issues
1. Some measures are simply procedural or preliminary to the later actions that
would result in actual gain or loss, and therefore do not present voting conflicts for officials who would
have voting conflicts if called to vote on more substantive measures concerning the same subject. See
CEO 78-74 (removing item from consent agenda, to enable it to be discussed). However, in CEO 93-10
the Commission concluded that a town council member who was prohibited from voting on a measure to
resolve a real property ownership dispute between the town and private property owners, including the
council member, also would be prohibited from voting on a measure to order a survey regarding the
disputed property. The Commission reasoned that, since the dispute could not be resolved without a
survey being done and the resolution of the dispute would inure to the special gain of the council member,
the decision not to order a survey would effectively preclude the resolution of the dispute. Therefore,
ordering a survey of the disputed property would not simply be preliminary to an issue where gain or loss
could occur.
G. Exceptions to the Voting Conflict Rules
1. When the principal retaining the official is a public agency, the Commission has
concluded that the official is not prohibited from voting on a measure inuring to the special gain of the
agency and is not required to make any specific disclosures. CEO 86-86, CEO 88-20, CEO 91-20. See
F.S. 112.312(2) for the definition of "agency."
2. Commissioners of community redevelopment agencies created or designated
pursuant to F.S. 163.356 or 163.357, as well as officers of independent special tax districts elected on a
one-acre, one-vote basis, are not prohibited from voting. F.S. 112.3143(3xb). In CEO 86-13, the
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Commission advised that a CRA official may vote on matters affecting his or her interests but still would
be required to publicly announce the conflict and file a voting conflict memorandum. Similazly, see CEO
87-66, regazding a community development district supervisor elected on a one-acre, one-vote basis.
3. Public officers aze not prohibited from voting on matters affecting their salary,
expenses, or other compensation as a public officer, as provided by law. F.S. 112.313(5).. Note also that
this provision specifies that local government attorneys may consider matters affecting their salary,
expenses, or other compensation as the local government attorney, as provided by law.
XVII. FINANCIAL DISCLOSURE (FORM 6- "FULL" DISCLOSURE,
A. Who Must File?
1. "Full" disclosure (Commission Form 6--Full and Public Disclosure of Financial
Interests) is required of persons holding and seeking elective constitutional office, and is required of other
public officers, candidates, and public employees as determined by law . Art. II, Sec. 8(a) and (h), Fla.
Const.
2. Elective constitutional offices include, at the State and local level, the following:
Governor, Lieutenant Governor, Cabinet member, Legislator, Circuit Judge, County Judge, State Attorney,
Public Defender, Clerk of Circuit Court, Sheriff, Tax Collector, Property Appraiser, Supervisor of
Elections (CEO 82-87), County Commissioner, elected Superintendent of Schools (CEO 77-100), District
School Board member, Mayor of Jacksonville, Jacksonville City Council member.
3. Appointive position holders required to file Fonm 6 include: Supreme Court
Justices; DCA Judges; Judges of Compensation Claims; the Duval County Superintendent of Schools; and
members of the Florida Housing Finance Corporation Board, the Florida Prepaid College Board, and the
Florida Commission on Tourism.
B. When Is the Form Due, and Where Is It Filed?
1. Incumbents file with the Commission on Ethics in Tallahassee no later than July 1
of each year. If the form is not filed timely, the Commission sends a reminder notice, advising of a grace
period until September 1st; those who ignore the grace period will face an "automatic" $25-per-day-late
fine, up to a maximum of $1,500, and may face additional penalties if an ethics complaint is filed. F.S.
112.3144(4).
2. Candidates must file prior to or at the time they file their qualifying papers, with
the officer before whom they qualify. Plante v. Smathers, 372 So. 2d 933 (Fla. 1979); F.S. 99.061(4).
3. Persons leaving public positions must file (Commission Form 6F) within 60 days
of leaving, unless within the 60-day period the person takes another position requiring full disclosure. F.S.
112.3144(5).
C. What Must Be Disclosed?
1. Each asset worth more than $1,000 must be described and valued (household
goods and personal effects may be reported in a lump sum--see F.S. 112.3144(3)). Art. II, Sec. 8(a) and
(h), Fla. Const. The Commission has advised that an "asset" includes all forms of property interests that
can be sold to be applied to the payment of one's debts. CEO 87-84 and CEO 78-1. The asset should be
valued at fair market value, as of the date used for reporting one's net worth. Property owned solely by
one's spouse need not be reported. CEO 77-158. However, the full value of property held in tenancy by
the entirety (held by husband and wife) must be reported. CEO 74-27. Assets held jointly, other than in
tenancy by the entirety, can be reported based on the percentage of value owned by the reporting person.
2. Each liability worth in excess of $1,000 must be described and valued (Art. II,
Sec. 8(a) and (h), Fla. Const.), except for credit card and retail installment accounts, taxes owed unless
reduced to a judgment, indebtedness on a life insurance policy owed to the company of issuance,
contingent liabilities, and accrued income taxes on net unrealized appreciation (F.S. 112.312(14)).
Valuation depends on the face amount of the debt and the basis for liability (e.g., joint or several).
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Liability on a promissory note only as a guarantor (CEO 86-40) or as a partner (CEO 95-1) is contingent
and not reportable. Liability as a comaker of the note must be reported. CEO 89-5.
3. The net worth of the reporting person as of the close of the prior calendar yeaz, or
a more cun•ent date. Art. II, Sec. 8(a) and (h), Fla. Const.
4. Income reporting requirements can be satisfied in one of two ways:
a. Attaching a complete copy of the reporting individual's most recent
income tax return (including all attachments); or
b. Reporting the name and address, and amount, of each source of income
exceeding $1,000 received during the prior yeaz, including a statement of all "secondary sources" of
income. "Secondary sources" mean each source of income exceeding 10% of the gross income of a
business entity of which the reporting individual owned more than a 5% interest and from which the
reporting individual received more than $1,000 of gross income. Amounts of secondary income aze not
disclosed. Art. II, Sec. 8(h), Fla. Const.; Commission Rule Ch. 34-8, F.A.C.
5. Amendments (Commission Form 6X) to full disclosure filings are allowed;
however, amendments are only potentially mitigative regarding an ethics complaint proceeding. F.S.
112.3144(6).
XVIII. FINANCIAL DISCLOSURE (FORM l- "LIMITED" DISCLOSURE)
A. Who Must File? "State officers" (CEO 02-15), "local officers," and "specified state
employees" (for example, full-time state employees serving as counsel or assistant counsel to a state
agency), as defined in F.S. 112.3145(1), are required to file the "limited" financial disclosure statements
(Commission Form 1-Statement of Financial Interests). Support Enforcement Hearing Officers appointed
pursuant to Rule 12.491(c), Florida Family Law Rules of Procedure are not required to file (CEO 02-18).
"Local off cers" include the following:
1. Persons elected to office in any political subdivision, or appointed to fill a vacancy
in such an office, except for the elected constitutional officers who file Form 6. F.S. 112.3144(2).
2. Candidates for such local offices. F.S. 112.3145(2xa).
3. Members of appointed governing bodies of political subdivisions; expressway
authorities or transportation authorities established by general law; community college or junior college
district boazds of trustees; boards having the power to enforce local code provisions; planning or zoning
boards, boards of adjustment, boards of appeals, or other board having the power to recommend, create, or
modify land planning or zoning within the political subdivision, except for citizen advisory committees,
technical coordinating committees, and such other groups who only have the power to make
recommendations to planning or zoning boards (see CEO 01-11, law not applicable to members of a
community land-use planning panel); and pension boards or retirement boards having the power to invest
pension or retirement funds or the power to make a binding detenmination of one's entitlement to or
amount of a pension or other retirement benefit. F.S. 112.3145(1)(x)2. CEO 01-20.
4. Any appointed member of a local government board who is required to file a
statement of financial interests by the appointing authority or the enabling legislation, ordinance, or
resolution creating the boazd. F.S. 112.3145(1 xa)2.
5. Persons holding any of the following positions:
mayor; county or city manager; chief administrative employee of a
county, municipality, or other political subdivision; county or municipal
attorney; chief county or municipal building inspector; county or
municipal water resources coordinator; county or municipal pollution
control director; county or municipal environmental control director;
county or municipal administrator, with power to grant or deny a land
development permit; chief of police; fire chief; municipal clerk; district
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school superintendent (other than those superintendents who file Form 6);
community college president; district medical examiner; or purchasing
agent having the authority to make any purchase exceeding $15,000 (F.S.
287.017 CATEGORY ONE purchasing agent) for any political
subdivision of the state or any entity thereof. F.S. 112.3145(1)(a)3.
a. "County or municipal attorney" includes only the city or county attorney,
and not assistant city or county attorneys. CEO 85-49.
b. Rather than simply reviewing an employee's title, a functional analysis of
the employee's duties is required to determine if the employee is a "local officer." Thus, a city building
and zoning director not having the power to grant or deny a building permit and lacking purchasing
authority would not be required to file. CEO 84-61. A city public utilities department director whose
responsibilities include the operation of the cit}~s water and sewer facilities would be considered a water
resources coordinator, required to file. CEO 84-70.
c. A "purchasing agent" is defined in F.S. l 12.312(20) to mean "a public
officer or employee having the authority to commit the expenditure of public funds through a contract for,
or the purchase of, any goods, services, or interest in real property for an agency, as opposed to the
authority to request or requisition a contract or purchase by another person." Thus, this category may
include a number of administrative personnel whose positions are not specified otherwise. See CEO 88-
62.
B. When Is the Form Due, and Where Is It Filed?
1. Candidates for local office must at the time they file their qualifying papers, with
the officer before whom they qualify. F.S. 99.061(4), 112.3145(2)(a), and 112.3145(2)(c).
2. Others must file within 30 days of their appointment or employment and annually
thereafter, by July 1st, with the supervisor of elections of the county where they reside (if they are not
permanent residents of any county, they file where their agency is headquartered). F.S. 112.3145(2xc).
State officers and specified State employees file with the Commission on Ethics. If the form is not filed
timely, a reminder notice advising of a grace period until September 1st is sent. Those who ignore the
notice and grace period will face an "automatic" $25-per-day-late fine, up to a maximum of $1,500, and
may face additional penalties if an ethics complaint is filed. F.S. 112.3145(6).
3. The obligation to file accrues at the close of a calendar year in which the officer or
employee holds his or her office or employment. However, persons who leave their office or employment
must file Commission Form 1F within 60 days after leaving, unless another reporting position is taken
within the 60-day period. F.S. 112.3145(2)(b). The form must be filed even if there is nothing to report.
F.S. 112.3145(3).
C. What Must Be Disclosed (note that a disclosure option is now available; see D below)?
1. The Form l disclosure is considered "limited" disclosure, because it requires no
disclosure of dollar amounts for income, assets, or liabilities. Disclosure thresholds are relative, based on
percentages or comparisons, rather than based on absolute dollar amounts.
2. The "disclosure period" covered by the form is the taxable year, whether calendar
or fiscal, immediately preceding the last day of the period during which the statement is required to be
filed. F.S. 112.312(10).
3. All sources of income in excess of 5% of the reporting person's gross income
received by the person in his or her name "or by any other person for his or her use or benefit." Public
salary need not be reported, although it should be included when calculating the total amount of one's
gross income; nor are sources belonging only to one's spouse or business partner to be reported. F.S.
112.3145(3)(a); CEO 75-19.
4. Secondary sources of income (major clients or customers of businesses owned by
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the reporting individual) must be disclosed. "Secondary sources" mean each source of income exceeding
10% of the gross income of a business entity of which the reporting individual owned more than a 5%
interest and from which the reporting individual received more than ] 0% of his or her gross income, and at
least $1,500. F.S. 112.3145(3)(a)2.
5. The location or description of Florida real property, except for residences and
vacation homes, in which the reporting person owns directly or indirectly more than 5% of the value of the
property must be disclosed. "Indirect" ownership includes ownership of a beneficial interest in a trust
owning the property or in a corporation owning the property, but does not include ownership by a spouse
or minor child. F.S. 112.312(13) and 112.3145(3xa)3; CEO 83-3; CEO 76-162.
6. Intangible personal property worth more than 10% of the reporting individual's
total assets must be reported. F.S. 112.3145(3)(a)3.
7. Any liability which equals more than the reporting individual's net worth must be
disclosed, except for credit card and retail installment accounts, taxes owed unless reduced to a judgment,
indebtedness on a life insurance policy owed to the company of issuance, contingent liabilities, and
accrued income taxes on net unrealized appreciation. F.S. 112.312(14) and 112.3145(3xa~. Valuation
depends on the face amount of the debt and the basis for liability (e.g., joint or several). Liability on a
promissory note only as a guarantor (CEO 86-40) or as a partner (CEO 95-1) is contingent and not
reportable. Liability as a comaker of the note would be reportable. CEO 89-5.
8. For valuation purposes, property held by husband and wife as tenancy by the
entirety should be valued at full value; other joint property should be based on the percentage of
ownership. CEO 82-30. Bank accounts where each joint tenant is authorized to withdraw the full amount
are valued at full value. CEO 82-30.
D. However, the following disclosure option is available under F.S. 112.3135(3x6):
1. All sources of gross income in excess of $2,500.
2. All sources of income to a business entity in excess of 10 percent of the gross
income of a business entity in which the reporting person held a material interest and from which he or she
received gross income exceeding $5,000 during the disclosure period.
3. The location or description of real property in Florida, except for residences and
vacation homes, owned directly or indirectly by the reporting person, when such person owns in excess of
5 percent of the value of such real property.
4. A general description of any intangible property worth in excess of $10,000.
5. Every liability in excess of $10,000.
E. Amendments (Commission Form 1X) are allowed; however, the effect of an amendment is
potentially mitigative (not curative) in an ethics complaint context. F.S. 112.3145(9).
XIX. DISCLOSURE OF SPECIFIED BUSINESS INTERESTS
A. Persons required to file Form 6 or Form 1 who are or were during the disclosure period an
officer, director, partner, proprietor, or agent (other than a resident agent solely for service of process), or
who own or owned more than a 5% interest in one of certain types of business entities, are required to
disclose the fact as part of their Form 6 or Form 1 disclosures. F.S. 112.3145(5).
B. The only types of businesses for which this disclosure must be made are the following:
state and federally chartered banks, state and federal savings and loan associations, cemetery companies,
insurance companies (including insurance agencies), mortgage companies, credit unions, small loan
companies, alcoholic beverage licensees, pari-mutuel wagering companies, utility companies, entities
controlled by the PSC, and entities granted a franchise to operate by either a city or a county government.
F.S. 112.312(19).
XX. CLIENT DISCLOSURE (OUARTERLYI
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A. Who Must File?
State officers, local officers, specified state employees, and elected constitutional officers
are required to report, on a quarterly basis, the names of clients represented for a fee or commission before
agencies at their level of government, using Commission Form 2. F.S. 112.3145(4).
B. When Is the Form Due and Where Is It Filed?
The form should be filed only when a reportable representation is made during a calendar
quarter, no later than the last day of the quarter following the quarter in which the representation is made.
"Local officers" file with the supervisor of elections of the county in which the officer is principally
employed or is a resident. Elected constitutional officers, state officers, and specified state employees file
with the Commission on Ethics. F.S. 112.3145(4).
C. What Should Be Disclosed?
1. The names of clients and the names of the agencies before which the clients were
represented by the reporting individual or by any partner or associate of a professional firm of which the
reporting individual is a member, when the reporting individual has actual knowledge of the
representation.
2. Although the statute requires that reportable representations be at the reporting
individual's "level of government," Commission opinions have required only disclosure of representations
within the political subdivision served by a given local officer. CEO 80-63, CEO 85-33.
3. Appearances in ministerial matters are not reportable. A "ministerial matter" is
one involving "action that a person takes in a prescribed manner in obedience to the mandate of legal
authority, without the exercise of the person's own judgment or discretion as to the propriety of the action
taken." F.S. 112.312(]7).
4. "Representation" includes actual physical attendance on behalf of a client in an
agency proceeding, letters written or documents filed on behalf of the client, and personal communications
made with the officers or employees of the agency on behalf of the client. F.S. 112.312(22).
~ ~ 5. Under F.S. 112.3145(4), the following also do not have to be reported:
a. Appearances before any court;
b. Appearances before compensation claims judges;
c. Representations on behalf of one's agency in one's official capacity,
d. Preparing and filing forms and applications merely to obtain or transfer a
license based on a quota, a franchise of the agency, or a license or operation permit to engage in a
profession, business, or occupation, when the action does not require substantial discretion, a variance, a
special consideration, or a certificate of public convenience and necessity.
XXI. AUTHORITY TO ADOPT MORE STRINGENT STANDARDS
Agencies, by rule, and political subdivisions, by ordinance, are expressly authorized to adopt
"additional or more stringent standards of conduct and disclosure requirements," provided that they do not
otherwise conflict with the provisions of the Code of Ethics. F.S. 112.326.
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PART VII
ACTUARIAL SOUNDNESS OF
RETIREMENT SYSTEMS
112.60 Short title.
112.61 Legislative intent.
112.62 Application.
112.625 Definitions.
112.63 Actuarial reports and statements of actuarial impact; review.
112.64 Administration of funds; amortization of unfunded liability.
112.65 Limitation of benefits.
112.656 Fiduciary duties; certain officials included as fiduciaries.
112.658 Office of Program Policy Analysis and Government Accountability to determine compliance of the Florida
Retirement System.
112.66 General provisions.
112.661 Investment policies.
112.665 Duties of Department of Management Services.
112.67 Special acts prohibited.
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112.60 Short title.--This part may be cited as the "Florida Protection of Public Employee Retirement Benefits Act."
History.--s. 1, ch. 78-170.
112.61 Legislative intent.--It is the intent of the Legislature in implementing the provisions of s. 14, Art. X of the State
Constitution, relating to governmental retirement systems, that such retirement systems or plans be managed, administered,
operated, and funded in such a manner as to maximize the protection of public employee retirement benefits. Inherent in
this intent is the recognition that the pension liabilities attributable to the benefits promised public employees be fairly,
orderly, and equitably funded by the current, as well as future, taxpayers. Accordingly, except as herein provided, it is the
intent of this act to prohibit the use of any procedure, methodology, or assumptions the effect of which is to transfer to
future taxpayers any portion of the costs which may reasonably have been expected to be paid by the current taxpayers.
Actuarial experience may be used to fund additional benefits, provided that the present value of such benefits does not
exceed the net actuarial experience accumulated from all sources of gains and losses. This act hereby establishes minimum
standards for the operation and funding of public employee retirement systems and plans.
History.--s. 1, ch. 78-170; s. 13, ch. 79-183; s. 1, ch. 83-37; s. 3, ch. 94-259.
112.62 Application.--The provisions of this part are applicable to any and all units, agencies, branches, departments,
boards, and institutions of state, county, special district, and municipal governments which participate in, operate, or
administer a retirement system or plan for public employees, funded in whole or in part by public funds. The provisions of
this part supplement and, to the extent there are conflicts, prevail over the provisions of existing laws and local ordinances
relating to such retirement systems or plans.
History.--s. 1, ch. 78-170.
112.625 Definitions.--As used in this act:
(1) "Retirement system or plan" means any employee pension benefit plan supported in whole or in part by public funds,
provided such plan is not:
(a) An employee benefit plan described in s. 4(a) of the Employee Retirement Income Security Act of 1974, which is not
exempt under s. 4(b)(1) of such act;
(b) A plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation
for a select group of management or highly compensated employees;
(c) A coverage agreement entered into pursuant to s. 218 of the Social Security Act;
(d) An individual retirement account or an individual retirement annuity within the meaning of s. 408, or a retirement bond
within the meaning of s. 409, of the Internal Revenue Code of 1954;
(e) A plan described in s. 401(d) of the Internal Revenue Code of 1954; or
(f) An individual account consisting of an annuity contract described in s. 403(b) of the Internal Revenue Code of 1954.
(2) "Plan administrator" means the person so designated by the terms of the instrument or instruments, ordinance, or
statute under which the plan is operated. If no plan administrator has been designated, the plan sponsor shall be considered
the plan administrator.
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(3) "Enrolled actuary" means an actuary who is enrolled under Subtitle C of Title III of the Employee Retirement Income
Security Act of 1974 and who is a member of the Society of Actuaries or the American Academy of Actuaries.
(4) "Benefit increase" means a change or amendment in the plan design or benefit structure which results in increased
benefits for plan members or beneficiaries.
(5) "Governmental entity" means the state, for the Florida Retirement System, and the county, municipality, special district,
or district school board which is the employer of the member of a local retirement system or plan.
(6) "Pension or retirement benefit" means any benefit, including a disability benefit, paid to a member or beneficiary of a
retirement system or plan as defined in subsection (1 ).
(7) "Statement value' means the value of assets in accordance with s. 302(c)(2) of the Employee Retirement Income Security
Act of 1974 and as permitted under regulations prescribed by the Secretary of the Treasury. Assets for which a fair market
value is not provided shall be excluded from the assets used in the determination of annual funding cost.
(8) "Named fiduciary," "board," or "board of trustees" means the person or persons so designated by the terms of the
instrument or instruments, ordinance, or statute under which the plan is operated.
(9) "Plan sponsor" means the local governmental entity that has established or that may establish a local retirement system
or plan.
History.--s. 14, ch. 79-183; s. 2, ch. 83-37; s. 1, ch. 2000-264; s. 7, ch. 2004-305.
112.63 Actuarial reports and statements of actuarial impact; review.--
(1) Each retirement system or plan subject to the provisions of this act shall have regularly scheduled actuarial reports
prepared and certified by an enrolled actuary. The actuarial report shall consist of, but shalt not be limited to, the
following:
(a) Adequacy of employer and employee contribution rates in meeting levels of employee benefits provided in the system
and changes, if any, needed in such rates to achieve or preserve a level of funding deemed adequate to enable payment
through the indefinite future of the benefit amounts prescribed by the system, which shall include a valuation of present
assets, based on statement value, and prospective assets and liabilities of the system and the extent of unfunded accrued
liabilities, if any.
(b) A plan to amortize any unfunded liability pursuant to s. 112.64 and a description of actions taken to reduce the
unfunded liability.
(c) A description and explanation of actuarial assumptions.
(d) A schedule illustrating the amortization of unfunded liabilities, if any.
(e) A comparative review illustrating the actual salary increases granted and the rate of investment return realized over the
3-year period preceding the actuarial report with the assumptions used in both the preceding and current actuarial reports.
(f) A statement by the enrolled actuary that the report is complete and accurate and that in his or her opinion the
techniques and assumptions used are reasonable and meet the requirements and intent of this act.
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The actuarial cost methods utilized for establishing the amount of the annual actuarial normal cost to support the promised
benefits shall only be those methods approved in the Employee Retirement Income Security Act of 1974 and as permitted
under regulations prescribed by the Secretary of the Treasury.
(2) The frequency of actuarial reports must be at least every 3 years commencing from the last actuarial report of the plan
or system or October 1, 1980, if no actuarial report has been issued within the 3-year period prior to October 1, 1979. The
results of each actuarial report shall be filed with the plan administrator within 60 days of certification. Thereafter, the
results of each actuarial report shall be made available for inspection upon request. Additionally, each retirement system or
plan covered by this act which is not administered directly by the Department of Management Services shall furnish a copy of
each actuarial report to the Department of Management Services within 60 days after receipt from the actuary. The
requirements of this section are supplemental to actuarial valuations necessary to comply with the requirements of s.
218.39.
(3) No unit of local government shall agree to a proposed change in retirement benefits unless the administrator of the
system, prior to adoption of the change by the governing body, and prior to the last public hearing thereon, has issued a
statement of the actuarial impact of the proposed change upon the local retirement system, consistent with the actuarial
review, and has furnished a copy of such statement to the division. Such statement shall also indicate whether the proposed
changes are in compliance with s. 14, Art. X of the State Constitution and with s. 112.64.
(4) Upon receipt, pursuant to subsection (2), of an actuarial report, or upon receipt, pursuant to subsection (3), of a
statement of actuarial impact, the Department of Management Services shall acknowledge such receipt, but shall only
review and comment on each retirement system's or plan's actuarial valuations at least on a triennial basis. If the
department finds that the actuarial valuation is not complete, accurate, or based on reasonable assumptions or otherwise
materially fails to satisfy the requirements of this part, if the department requires additional material information necessary
to complete its review of the actuarial valuation of a system or plan or material information necessary to satisfy the duties
of the department pursuant to s. 112.665(1), or if the department does not receive the actuarial report or statement of
actuarial impact, the department shall notify the administrator of the affected retirement system or plan and the affected
governmental entity and request appropriate adjustment, the additional material information, or the required report or
statement. The notification must inform the administrator of the affected retirement system or plan and the affected
governmental entity of the consequences for failure to comply with the requirements of this subsection. If, after a
reasonable period of time, a satisfactory adjustment is not made or the report, statement, or additional material
information is not provided, the department may notify the Department of Revenue and the Department of Financial
Services of such noncompliance, in which case the Department of Revenue and the Department of Financial Services shall
withhold any funds not pledged for satisfaction of bond debt service which are payable to the affected governmental entity
until the adjustment is made or the report, statement, or additional material information is provided to the department.
The department shall specify the date such action is to begin, and notification by the department must be received by the
Department of Revenue, the Department of Financial Services, and the affected governmental entity 30 days before the date
the action begins.
(a) Within 21 days after receipt of the notice, the affected governmental entity may petition for a hearing under ss. 120.569
and 120.57 with the Department of Management Services. The Department of Revenue and the Department of Financial
Services may not be parties to any such hearing, but may request to intervene if requested by the Department of
Management Services or if the Department of Revenue or the Department of Financial Services determines its interests may
be adversely affected by the hearing. If the administrative law judge recommends in favor of the department, the
department shall perform an actuarial review, prepare the statement of actuarial impact, or collect the requested material
information. The cost to the department of performing such actuarial review, preparing the statement, or collecting the
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requested material information shall be charged to the affected governmental entity of which the employees are covered by
the retirement system or plan. If payment of such costs is not received by the department within 60 days after receipt by
the affected governmental entity of the request for payment, the department shall certify to the Department of Revenue
and the Department of Financial Services the amount due, and the Department of Revenue and the Department of Financial
Services shall pay such amount to the Department of Management Services from any funds not pledged for satisfaction of
bond debt service which are payable to the affected governmental entity of which the employees are covered by the
retirement system or plan. If the administrative law judge recommends in favor of the affected governmental entity and the
department performs an actuarial review, prepares the statement of actuarial impact, or collects the requested material
information, the cost to the department of performing the actuarial review, preparing the statement, or collecting the
requested material information shalt be paid by the Department of Management Services.
(b) In the case of an affected special district, the Department of Management Services shall also notify the Department of
Community Affairs. Upon receipt of notification, the Department of Community Affairs shall proceed pursuant to the
provisions of s. 189.421 with regard to the special district.
(5) Payments made to the fund as required by this chapter shalt be based on the normal and past service costs contained in
the most recent actuarial valuation, subject to being state-accepted.
(6) Beginning July 1, 1980, each retirement system or plan of a unit of local government shall maintain, in accurate and
accessible form, the following information:
(a) For each active and inactive member of the system, a number or other means of identification; date of birth; sex; date
of employment; period of credited service, split, if required, between prior service and current service; and occupational
classification.
(b) For each active member, current pay rate, cumulative contributions together with accumulated interest, if credited,
age at entry into system, and current rate of contribution.
(c) For each inactive member, average final compensation or equivalent and age at which deferred benefit is to begin.
(d) For each retired member and other beneficiary, a number or other means of identification, date of birth, sex, beginning
date of benefit, type of retirement and amount of monthly benefit, and type of survivor benefit.
History.--s. 1, ch. 78-170; s. 15, ch. 79-183; s. 3, ch. 83-37; s. 48, ch. 92-279; s. 55, ch. 92-326; s. 23, ch. 94-249; s. 1418,
ch. 95-147; s. 2, ch. 96-324; s. 16, ch. 96-410; s. 21, ch. 99-255; s. 1, ch. 99-392; s. 31, ch. 2001-266; s. 132, ch. 2003-261;
s. 8, ch. 2004-305; s. 14, ch. 2005-2.
112.64 Administration of funds; amortization of unfunded liability.--
(1) Employee contributions shall be deposited in the retirement system or plan at least monthly. Employer contributions
shall be deposited at least quarterly; however, any revenues received from any source by an employer which are specifically
collected for the purpose of allocation for deposit into a retirement system or plan shall be so deposited within 30 days of
receipt by the employer. All employers and employees participating in the Florida Retirement System and other existing
retirement systems which are administered by the Department of Management Services shall continue to make contributions
at least monthly.
(2) From and after October 1, 1980, for those plans in existence on October 1, 1980, the total contributions to the
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retirement system or plan shall be sufficient to meet the normal cost of the retirement system or plan and to amortize the
unfunded liability, if any, within 40 years; however, nothing contained in this subsection permits any retirement system or
plan to amortize its unfunded liabilities over a period longer than that which remains under its current amortization
schedule.
(3) For a retirement system or plan which comes into existence after October 1, 1980, the unfunded liability, if any, shall be
amortized within 40 years of the first plan year.
(4) The net increase, if any, in unfunded liability under the plan arising from significant plan amendments adopted, changes
in actuarial assumptions, changes in funding methods, or actuarial gains or tosses shall be amortized within 30 plan years.
(5)(a) If the amortization schedule for unfunded liability is to be based on a contribution derived in whole or in part from a
percentage of the payroll of the system or plan membership, the assumption as to payroll growth shall not exceed the
average payroll growth for the 10 years prior to the latest actuarial valuation of the system or plan unless a transfer,
merger, or consolidation of government functions or services occurs, in which case the assumptions for payroll growth may
be adjusted and may be based on the membership of the retirement plan or system subsequent to such transfer, merger, or
consolidation.
(b) An unfunded liability amortization schedule that includes a payroll growth assumption and is in existence on September
30, 1996, or is established thereafter, may be continued using the same payroll growth assumption, or one not exceeding the
payroll growth assumption established at the start of the schedule, regardless of the actual 10-year average payroll growth
rate, provided that:
1. The assumptions underlying the payroll growth rate are consistent with the actuarial assumptions used to determine
unfunded liabilities, including, but not limited to, the inflation assumption; and
2. The payroll growth rate is reasonable and consistent with future expectations of payroll growth.
(c) An unfunded liability amortization schedule that does not include a payroll growth assumption and is in existence on
September 30, 1996, or is established thereafter, may be continued or modified to include a payroll growth assumption,
provided that such assumption does not exceed the 10-year average payroll growth rate as of the actuarial valuation date
such change in the amortization schedule commences. Such schedule may be continued thereafter, subject to the reasonable
and consistent requirements in paragraph (b).
(6) Nothing contained in this section shall result in the allocation of chapter 175 or chapter 185 premium tax funds to any
other retirement system or plan or for any other use than the exclusive purpose of providing retirement benefits for
firefighters or police officers.
History.--s. 1, ch. 78-170; s. 16, ch. 79-183; s. 2, ch. 84-266; s. 2, ch. 96-368; s. 22, ch. 99-255.
112.65 Limitation of benefits.--
(1) ESTABLISHMENT OF PROGRAM.--The normal retirement benefit or pension payable to a retiree who becomes a member
of any retirement system or plan and who has not previously participated in such plan, on or after January 1, 1980, shalt not
exceed 100 percent of his or her average final compensation. However, nothing contained in this section shalt apply to
supplemental retirement benefits or to pension increases attributable to cost-of-living increases or adjustments. For the
purposes of this section, benefits accruing in individual participant accounts established under the Public Employee Optional
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Retirement Program established in part II of chapter 121 are considered supplemental benefits. As used in this section, the
term "average final compensation" means the average of the member's earnings over a period of time which the
governmental entity has established by statute, charter, or ordinance.
(2) RESTRICTION.--No member of a retirement system or plan covered by this part who is not now a member of such plan
shall be allowed to receive a retirement benefit or pension which is in part or in whole based upon any service with respect
to which the member is already receiving, or will receive in the future, a retirement benefit or pension from a different
employer's retirement system or plan. This restriction does not apply to social security benefits or federal benefits under
chapter 67, Title 10, United States Code.
History.--s. 1, ch. 78-170; s. 17, ch. 79-183; s. 4, ch. 88-382; s. 723, ch. 95-147; s. 2, ch. 99-392; s. 1, ch. 2000-169.
112.656 Fiduciary duties; certain officials included as fiduciaries.--
(1) A fiduciary shalt discharge his or her duties with respect to a plan solely in the interest of the participants and
beneficiaries for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable
expenses of administering the plan.
(2) Each retirement system or plan shall have one or more named fiduciaries with authority to control and manage the
administration and operation of the retirement system or plan. However, the plan administrator, and any officer, trustee,
and custodian, and any counsel, accountant, and actuary of the retirement system or plan who is employed on a full-time
basis, shall be included as fiduciaries of such system or plan.
(3) A retirement system or plan may purchase insurance for its named fiduciary to cover liability or losses incurred by reason
of act or omission of the fiduciary.
History.--s. 18, ch. 79-183; s. 724, ch. 95-147.
112.658 Office of Program Policy Analysis and Government Accountability to determine compliance of the Florida
Retirement System.--
(1) The Office of Program Policy Analysis and Government Accountability shall determine, through the examination of
actuarial reviews, financial statements, and the practices and procedures of the Department of Management Services, the
compliance of the Florida Retirement System with the provisions of this act.
(2) The Office of Program Policy Analysis and Government Accountability shall employ an independent consulting actuary
who is an enrolled actuary as defined in this part to assist in the determination of compliance.
(3) The Office of Program Policy Analysis and Government Accountability shall employ the same actuarial standards to
monitor the Department of Management Services as the Department of Management Services uses to monitor local
governments.
History.--s. 18, ch. 79-183; s. 4, ch. 83-37; s. 3, ch. 96-368; s. 23, ch. 99-255.
112.66 General provisions.--The following general provisions relating to the operation and administration of any retirement
system or plan covered by this part shall be applicable:
(1) The provisions of each retirement system or plan shall be contained in a written summary plan description, to be
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published on a biennial basis, in a manner calculated to be understood by the average plan participant and sufficiently
accurate and comprehensive to apprise participants of their rights and obligations under the plan and which shall include a
report of pertinent financial and actuarial information on the solvency and actuarial soundness of the plan. Such summary
plan description shall be furnished to a member of the system or plan upon initial employment or participation in such plan
and, thereafter, with each new biennial publication by the administrator. The administrator of each plan shall publish the
summary plan description not later than 210 days after the end of the plan year in which publication is required. During
those years when a complete summary plan description is not published, the administrator of each plan or retirement system
shall publish a supplement of changes during the previous year to be furnished to new members of the system upon initial
employment or participation in the plan.
(2) The plan description shall contain the following information: the name and type of administration of the plan; the name
and address of the person designated as agent for the service of legal process, if such person is not the administrator; the
name and address of the administrator; the names, titles, and addresses of any trustee or trustees, if they are persons
different from the administrator; a description of the relevant provisions of any applicable collective bargaining agreement;
the plan's requirements respecting eligibility for participation and benefits; a description of the provisions providing for
nonforfeitable pension benefits; the circumstances which may result in disqualification, ineligibility, or denial or forfeiture
of benefits; the source of financing of the plan and the identity of any organization through which benefits are provided; the
date of the end of the plan year and whether the records of the plan are kept on a calendar, policy, or fiscal year basis; the
procedures to be followed in presenting claims for benefits under the plan and the remedies available under the plan for the
redress of claims which are denied in whole or in part; citations to the relevant provisions of state or local law and
regulations governing the establishment, operation, and administration of the plan; a description of those provisions which
specify the conditions under which pension benefits become vested pension benefits; and a report of pertinent financial and
actuarial information on the solvency and actuarial soundness of the plan.
(3) Each retirement system or plan shalt provide for a plan administrator.
(4) Any provision in a legal agreement, contract, or instrument which purports to relieve a fiduciary of a retirement system
or plan from responsibility or liability is void as being against public policy.
(5) A civil action may be brought by a member or beneficiary of a retirement system or plan to recover benefits due to him
or her under the terms of his or her retirement system or plan, to enforce the member's or beneficiary's rights, or to clarify
his or her rights to future benefits under the terms of the retirement system or plan.
(6) The governmental entity responsible for the administration and operation of a retirement system or plan may sue or be
sued as an entity.
(7) There shall be timely adequate written notice given to any member or beneficiary whose claim for benefits under the
terms of his or her retirement system or plan has been denied, setting forth the specific reasons for such denial. Unless
otherwise provided by law, the terms of the retirement system or plan shall provide for a full and fair review in those cases
when a member or beneficiary has had his or her claim to benefits denied.
(8) The assets and liabilities of a retirement system or plan shall remain under the ultimate control of the governmental unit
responsible for the retirement system or plan, unless an irrevocable trust has been or is established for the purpose of
managing and controlling the retirement system or plan, in which case the board of trustees shall have ultimate control over
the assets and liabilities of the retirement system or plan. Nothing herein shall absolve the governmental unit from being
ultimately responsible for the payment of its contribution to a retirement system or plan nor remove from the governmental
unit the ultimate authority to adjust benefits consistent with the Florida Statutes and the retirement system or plan;
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however, nothing contained herein shall be construed to permit the creation of such irrevocable trust except by special act
of the Legislature.
(9) The instrument or instruments, ordinance, or statute under which a retirement system or plan operates shall provide
that all assets of such retirement system or plan shall be held in trust by the board of trustees or, when an irrevocable trust
does not exist, by the governmental entity.
(10) No plan shall discriminate in its benefit formula based on color, national origin, sex, or marital status. Nothing herein
shall preclude a plan from actuarially adjusting benefits or offering options based on age, early retirement, or disability.
History.--s. 1, ch. 78-170; s. 20, ch. 79-183; s. 3, ch. 90-274; s. 725, ch. 95-147.
112.661 Investment policies.--Investment of the assets of any local retirement system or plan must be consistent with a
written investment policy adopted by the board. Such policies shall be structured to maximize the financial return to the
retirement system or plan consistent with the risks incumbent in each investment and shall be structured to establish and
maintain an appropriate diversification of the retirement system or plan's assets.
(1) SCOPE.--The investment policy shall apply to funds under the control of the board.
(2) INVESTMENT OBJECTIVES.•-The investment policy shall describe the investment objectives of the board.
(3) PERFORMANCE MEASUREMENT.--The investment policy shall specify performance measures as are appropriate for the
nature and size of the assets within the board's custody.
(4) INVESTMENT AND FIDUCIARY STANDARDS.--The investment policy shall describe the level of prudence and ethical
standards to be followed by the board in carrying out its investment activities with respect to funds described in this section.
The board in performing its investment duties shall comply with the fiduciary standards set forth in the Employee Retirement
Income Security Act of 1974 at 29 U.S.C. s. 1104(a)(1)(A)-(C). In case of conflict with other provisions of law authorizing
investments, the investment and fiduciary standards set forth in this section shall prevail.
(5) AUTHORIZED INVESTMENTS.--
(a) The investment policy shall list investments authorized by the board. Investments not listed in the investment policy are
prohibited. Unless otherwise authorized by law or ordinance, the investment of the assets of any local retirement system or
plan covered by this part shall be subject to the limitations and conditions set forth in s. 215.47(1)-(8), (10), and (16).
(b) If a local retirement system or plan has investments that, on October 1, 2000, either exceed the applicable limit or do
not satisfy the applicable investment standard, such excess or investment not in compliance with the policy may be
continued until such time as it is economically feasible to dispose of such investment. However, no additional investment
may be made in the investment category which exceeds the applicable limit, unless authorized by law or ordinance.
(6) MATURITY AND LIQUIDITY REQUIREMENTS.--The investment policy shall require that the investment portfolio be
structured in such manner as to provide sufficient liquidity to pay obligations as they come due. To that end, the investment
policy should direct that, to the extent possible, an attempt will be made to match investment maturities with known cash
needs and anticipated cash-flow requirements.
(7) PORTFOLIO COMPOSITION. •-The investment policy shall establish guidelines for investments and limits on security issues,
issuers, and maturities. Such guidelines shall be commensurate with the nature and size of the funds within the custody of
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the board.
(8) RISK AND DIVERSIFICATION.--The investment policy shall provide for appropriate diversification of the investment
portfolio. Investments held should be diversified to the extent practicable to control the risk of loss resulting from
overconcentration of assets in a specific maturity, issuer, instrument, dealer, or bank through which financial instruments
are bought and sold. Diversification strategies within the established guidelines shall be reviewed and revised periodically, as
deemed necessary by the board.
(9) EXPECTED ANNUAL RATE OF RETURN.--The investment polity shall require that, for each actuarial valuation, the board
determine the total expected annual rate of return for the current year, for each of the next several years, and for the long
term thereafter. This determination must be filed promptly with the Department of Management Services and with the plan's
sponsor and the consulting actuary. The department shall use this determination only to notify the board, the plan's sponsor,
and consulting actuary of material differences between the total expected annual rate of return and the actuarial assumed
rate of return.
(10) THIRD-PARTY CUSTODIAL AGREEMENTS.--The investment policy shall provide appropriate arrangements for the holding
of assets of the board. Securities should be held with a third party, and all securities purchased by, and all collateral
obtained by, the board should be properly designated as an asset of the board. No withdrawal of securities, in whole or in
part, shall be made from safekeeping except by an authorized member of the board or the board's designee. Securities
transactions between abroker-dealer and the custodian involving purchase or sale of securities by transfer of money or
securities must be made on a "delivery vs. payment" basis, if applicable, to ensure that the custodian will have the security
or money, as appropriate, in hand at the conclusion of the transaction.
(11) MASTER REPURCHASE AGREEMENT.--The investment polity shall require alt approved institutions and dealers transacting
repurchase agreements to execute and perform as stated in the Master Repurchase Agreement. All repurchase agreement
transactions shall adhere to the requirements of the Master Repurchase Agreement.
(12) BID REQUIREMENT.--The investment policy shall provide that the board determine the approximate maturity date based
on cash-flow needs and market conditions, analyze and select one or more optimal types of investment, and competitively
bid the security in question when feasible and appropriate. Except as otherwise required by taw, the most economically
advantageous bid must be selected.
(13) INTERNAL CONTROLS.--The investment polity shall provide for a system of internal controls and operational procedures.
The board shalt establish a system of internal controls which shall be in writing and made a part of the board's operational
procedures. The policy shall provide for review of such controls by independent certified public accountants as part of any
financial audit periodically required of the board's unit of local government. The internal controls should be designed to
prevent losses of funds which might arise from fraud, error, misrepresentation by third parties, or imprudent actions by the
board or employees of the unit of local government.
(14) CONTINUING EDUCATION.--The investment polity shall provide for the continuing education of the board members in
matters relating to investments and the board's responsibilities.
(15) REPORTING.--The investment policy shall provide for appropriate annual or more frequent reporting of investment
activities. To that end, the board shall prepare periodic reports for submission to the governing body of the unit of local
government which shall include investments in the portfolio by class or type, book value, income earned, and market value
as of the report date. Such reports shall be available to the public.
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'(16) FILING OF INVESTMENT POLICY.--Upon adoption by the board, the investment policy shall be promptly filed with the
Department of Management Services and the plan's sponsor and consulting actuary. The effective date of the investment
policy, and any amendment thereto, shalt be the 31st calendar day following the filing date with the plan sponsor.
(17) VALUATION OF ILLIQUID INVESTMENTS.--The investment policy shall provide for the valuation of illiquid investments for
which a generally recognized market is not available or for which there is no consistent or generally accepted pricing
mechanism. If those investments are utilized, the investment policy must include the criteria set forth in s. 215.47(6),
except that submission to the Investment Advisory Council is not required. The investment policy shall require that, for each
actuarial valuation, the board must verify the determination of the fair market value for those investments and ascertain
that the determination complies with all applicable state and federal requirements. The investment policy shall require that
the board disclose to the Department of Management Services and the plan's sponsor each such investment for which the fair
market value is not provided.
History.--s. 2, ch. 2000-264.
112.665 Duties of Department of Management Services.--
(1) The Department of Management Services shall:
(a) Gather, catalog, and maintain complete, computerized data information on all public employee retirement systems or
plans in the state, based upon a review of audits, reports, and other data pertaining to the systems or plans;
(b) Receive and comment upon all actuarial reviews of retirement systems or plans maintained by units of local government;
(c) Cooperate with local retirement systems or plans on matters of mutual concern and provide technical assistance to units
of local government in the assessment and revision of retirement systems or plans;
(d) Issue, by January 1 annually, a report to the President of the Senate and the Speaker of the House of Representatives,
which report details division activities, findings, and recommendations concerning all governmental retirement systems. The
report may include legislation proposed to carry out such recommendations;
(e) Issue, by January 1 annually, a report to the Special District Information Program of the Department of Community
Affairs that includes the participation in and compliance of special districts with the local government retirement system
provisions in s. 112.63 and the state-administered retirement system provisions as specified in part I of chapter 121; and
(f) Adopt reasonable rules to administer the provisions of this part.
(2) The department may subpoena actuarial witnesses, review books and records, hold hearings, and take testimony. A
witness shall have the right to be accompanied by counsel.
History.--s. 19, ch. 79-183; s. 7, ch. 84-254; s. 34, ch. 89-169; s. 49, ch. 92-279; s. 55, ch. 92-326; s. 24, ch. 94-249; s. 24,
ch. 99-255; s. 14, ch. 2000-169.
112.67 Special acts prohibited.--Pursuant to s. 11(a)(21), Art. III of the State Constitution, the Legislature hereby prohibits
special laws or general laws of local application in conflict with the requirements of this part.
History.--s. 2, ch. 78-170.
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