‘Let the Sunshine in’
Commission makes great strides to abide Sunshine Law
By Bari Auerbach

At a Feb. 10 workshop and City Commission meeting, public discussions shed light on the goal of the Sunny Isles Beach Mayor and Commissioners to abide Florida’s Sunshine Law - one of the strongest state laws in terms of the strictness of its requirements and the burden it imposes on public officials regarding communication with each other.

The Sunshine Law was recently brought to the forefront in Sunny Isles Beach when members of the City Commission (excluding Commissioner Danny Iglesias) met with city staff during a meeting that was not publicly noticed to discuss the grand opening celebration program for the city’s Government Center.

“ I have directed staff from now on that we will not participate in any meetings that are not noticed properly,” City Manager Christopher Russo noted at the Feb. 10 City Commission meeting. “The City Clerk will make that determination and if the Clerk has any questions, [she] will check with the City Attorney for [clarification].”

Learning the Law

“ The State of Florida has a strong policy about openness in government and the courts have interpreted the law in such a way that has made the Sunshine Law even stricter,” explained Joseph M. Centorino, Division Chief of the Miami-Dade State Attorney’s Public Corruption Unit while addressing the Sunny Isles Beach City Commission during a workshop on Florida’s Sunshine Law held last year.

“ The value of the [Sunshine Law is that it gives] the public access to decision makers so people know what happened [at a meeting] and we don’t have a situation where we have meetings occurring outside of the sunshine.

“[The Sunshine Law] is talking about the fact that all meetings of any state agency, county municipal corporation or political sub-division where official acts are to be taken are declared to be public meetings open to the public at all times - or nothing that’s done at those meetings will be binding.

“All local officials and local [public] boards of any kind are covered by the Sunshine Law. The Sunshine Law doesn’t apply to individual administrators such as the City Manager, City Attorney or City Clerk…A number of court decisions have begun to flush out what [the Sunshine Law] really means…There are three basic requirements…”

Meetings have to be open to the public:
“ We’ve had complaints filed against local city commissions for excluding people from meetings and this is a very dangerous situation,” Centorino said. “There are a few exceptions when you can have an executive session meeting but they’re very rare. Almost without exception, when you’re talking about public business, you’re going to have be doing it in public.”

Reasonable notice:
” The city clerk [usually] gives notice [of meetings],” Centorino said. “Cities differ in terms of how they implement that – but there has to be some kind of posting…If people don’t know there’s going to be a meeting it really can’t be called a public meeting.”

Minutes of the meeting:
“ Minutes have to be taken providing some basis for what occurred at the meeting, what was decided and what votes were taken and recorded,” Centorino said. “Minutes are crucial because not everyone can attend every meeting and for people to have access to the decision making process there ought to be a record.”

Exploring ‘Ex-Parte communication’
On Feb. 10, the Commission passed an ordinance on first reading implementing provisions of Florida statutes to establish a procedure governing ex-parte communications with public officials concerning quasi-judicial matters related to zoning applications. Generally, ex- parte communication can be defined as “oral or written, off-the record communication made to or by commissioners without notice to parties directed to the merits or outcome of an on-the-record proceeding.”

Prior to passage of the resolution regarding ex-parte communication, the City Commission participated in a workshop to gain a greater conceptual understanding.

City Attorney Lynn Dannheisser explained, “This ordinance provides a procedure by which an inadvertent ex-parte communication can be disclosed at a public hearing. It also provides a process for that public hearing; shields both the Commission and public who may make such an inadvertent communication; and [can help prevent] an approved application being overturned.”

“If [Commission members] receive an oral ex-parte communication, which will inevitably happen inadvertently and not deliberately, this [ex-parte communication] ordinance will allow [Commission members] an opportunity to say so on the record and disclose it.”

Dannheisser also explained, “The reason this is coming up now is because originally when I suggested this ordinance be passed [shortly after the city incorporated] I was concerned about protecting you as a Commission from any lobbying attack - and I was also protecting our applicants and our citizens to the extent that if they got the decision they wanted it could be overturned simply because you were approached and lobbied - so it’s a shield for everyone.

“At some point in time, Mayor Norman Edelcup requested and the commission agreed that we should repeal this so the message would be sent we shouldn’t have any lobbying on zoning matters. I can’t tell you why the lobbying continued to occur and my concern came again that we really do need to have the shield in place. Since the boundary really wasn’t being respected on this matter, this would be the best way I know to protect you.”

‘No ex-parte exceptions’
During the workshop Commissioner Roslyn Brezin asked whether or not written communications should also be disclosed. In response, Dannheisser said, “Yes – any communication, written or oral, is still a communication. If you see right away it’s regarding an upcoming zoning matter just walk it over to my office and give it to me and you can then disclose it and I’ll remind you to do so for the record. Remember - any communication prior to your listening to both sides may have a prejudicial effect…you may be swayed - it’s only natural.”

“The same thing applies to [other forms] of evidence such as e-mails, maps, pictures – anything that would be shown to you at the hearing should not be received by you beforehand. Like a judge has access to a file and can study the file and the case before going in to listen, you have access to the file application (copies of the site plan, traffic engineer and planners report). Those are things you can look at the way a judge would look at a file - but you can’t look at evidence until you get into the room.

“The question is asked, can you visit a site because that might be considered taking evidence. The Attorney General has said you can visit a site alone or with a member of staff. Of course [commissioners] cannot visit the site together because you’re going to convene as a judicial body in the sunshine.”

Vice Mayor Lewis Thaler later asked, “Doesn’t this open the door to all the lobbyists walking into our offices?” Dannheisser replied, “In the end, it’s up to [commissioners] to send folks away and say, ‘The law requires me to stop this communication; I’m acting in a quasi-judicial capacity; I have to hear it at the public hearing in the Sunshine.’ That is when it needs to occur.”

Mayor Edelcup pointed out, “We’re not encouraging [lobbying]…By passing this ordiannce, it gives us at least a way to correct an inadvertent meeting and disclose the fact that it did take place. Under our current ordinance, we don’t have that way of correcting it and if it has occurred we have no way of remedying it.

“[Presently], lobbyists have to sign in at [the Government Center reception] desk and disclose why they’re coming - and if it’s about a zoning matter we’re supposed to automatically not allow them to come in…The main thing is we have to make sure we explain that for zoning matters we can’t talk to anyone – but we can on other matters when we’re acting on a legislative basis.”

Discussions on zoning ‘off limits’
Dannehisser reiterated, “This [ordinance only pertains to] zoning matters…it’s not so much about lobbying…It addresses lobbying, but it’s really about taking evidence of which oral communications and arguments are only a part…Think about a zoning matter in terms of being a case where you need to receive evidence. You have to receive all the evidence at the time of the hearing in the sunshine.

Commissioner Gerry Goodman subsequently noted, “I think we should write an article to publish in the paper notifying the ‘whole world’ or anybody in and around city hall that they can’t talk to us on zoning issues…The public really doesn’t understand a lot of these things…You go to Publix and they come up and start asking you questions.”

Dannheisser replied, “Most of those questions are alright - it’s just when it pertains to a specific [zoning] application.

During public commentary, Sunny Isles Beach resident Herb Abramson asked, “Does this ordinance deny citizens the right to come and talk to commissioners even on an issue they may object to?”

Brezin explained, “[Commissioners’] open door policy means anyone can come to us and we can have a discussion pertaining to an area…But you may not come to me to discuss a specific site plan that would come in front of us…we can only discuss that in the public hearing in the sunshine - not in a private office.”

‘Keep letting the sunshine in’
Dannheisser reiterated, “[People] want to have your say and certainly you should. The only restriction is you do it in the sunshine and not behind closed doors…It’s not that [Commission members] don’t want to hear from you - it’s that they can’t. But this doesn’t apply to the city manager, zoning director, planning consultant or city attorney. [The public] can always talk to us about any matter…we can hear about zoning matters – [the Commission] cannot.”

“[The public] may have questions about any matter before it comes up and maybe you want to be prepared or have information…You can ask any member of staff to supply you with that information and you can talk to staff at any time to do ‘fact finding’ and prepare yourself to testify.”

‘Ex-parte extra education’
During the workshop, Dannheisser explained, “In about 1991, the Supreme Court Jennings decision of Dade County tested the proposition as to whether a zoning matter was actually a quasi-judicial or quasi-legislative matter. In a zoning matter, the [City Commission] sits in a different capacity than it normally sits when you’re passing an ordinance.

“In a zoning matter, the [Commission] sits in a quasi-judicial capacity. That means that you act as a judge similar to the judges in the Dade County Courthouse when they hear a case…and there are standards of evidence that have to be met.

“Let’s just go back to the [Commission] acting in a judicial capacity. Like every judge in the courthouse, judges are not entitled to receive communications from either the plaintiff or defendant without both parties being present and without the matter being noticed.

“The proposition tested in [the Jennings] case is whether a zoning matter is any different from a court case and the court concluded it is not. Therefore, any communications from the applicant would be improper unless that communication occurred in the presence of the public or any objectors…And likewise, it would be improper for the Commission to receive any communications from an objector or someone who has something to say about it and needs to present evidence.

“A Commission acts a little bit differently than a judge because a Commission is an elected body representing citizens - and in that capacity need to hear form their constituency in order to make good decisions for their community.

Recognizing Commissions are slightly different from judges, the Legislature attempted to correct what they perceived to be a problem with this [Jennings] decision and passed a law that said, ‘Every city can adopt an ordinance which would set forth a procedure to be followed such that if any communications are made on a zoning matter inadvertently, it can be disclosed and therefore shield both the Commission and the parties…The applicant [is specifically shielded] from having their application, if granted overturned.

Why zoning proceedings are ‘judicial’
“ I would like to explain just how ‘judicial’ a zoning procedure is,” Dannheisser said. “When listening to a zoning matter, [commissioners are] listening for the evidence and record that’s being created. ‘Burdens’ tell you just how judicial a zoning matter is.

“An applicant’s counsel has several burdens to meet when they’re presenting a zoning application. The first burden is consistency with the [city’s] Comprehensive Plan… the applicant must next present evidence that the application satisfies all the requirements of our Land Development Regulations - whether it’s a site plan approval, variance or regardless of what the request is.

“On appellate review, the courts still enforce the local code requirements and search the record which is replete with evidence to make sure that it meets the applicable criteria and that the evidence sustains the decision [the Commission has] made.

“If there are objectors to the application, they too have a burden to meet. They have to martial evidence to show the converse of the applicant’s case and prove they have standing…They have the right to be speaking on this application which is the cornerstone to their case and they have to produce testimony.

“Local government [also has] a burden to meet in an appeal of a decision. While we don’t present evidence, we have to comb the record of the hearing for evidence and facts to support approval or denial.

“What is ‘substantial competent evidence’? It’s the nature of the evidence that has to be met. It forms the basis of fact from which the fact can be reasonably inferred. It means there has to be enough evidence in the record to support your decision.

“When a lay person from the community gets up and testifies they don’t like this application ‘because…’that testimony is only evidence. In certain cases, they can’t tell you that application is going to create too much traffic - that requires expert opinions from a traffic engineer – it’s not enough for a member of the public to say that to you. However, they can say, ‘That building is so out of scale with the one next to it it’s not compatible’ - that is substantial competent evidence.”

‘Irrefutable evidence’
“ The point is, whether you realize it or not, [as a Commission], you’re taking evidence, you’re listening to evidence - and ultimately it is that evidence that will either be able to sustain your decision one way or the other in the appellate courts,” Dannheisser said. “So in essence, [certain zoning issues] are judicial proceeding and as such, [the Commission] really needs to avoid communications from either neighbors, citizens of the community or applicants.

“[City] staff can communicate with [the Commission and the public]…Normally when there is no communication beforehand from an applicant [or the public] trying to sway [the Commission’s] opinion, staff will just give you their report as to whether or not this application meets code requirements and issues you need to listen to evidence for. [Staff] will not lobby you.

“In the past, when there has been communications, it has been necessary for [staff] at times to counteract this information you may have received. But if there are no communications we’re not put in that position and we can be just completely neutral when giving you staff recommendations…and then the decision is left up to you.”

‘High Ethical Standards’
In keeping with the philosophies of the Sunshine Law and openness in government, the Sunny Isles Beach City Commission has also passed a strict ethics ordinance requiring disclosure of possible conflicts of interest.

The city’s Code of Ethics now includes a disclosure ordinance requiring that all disclosures of information presented by parties making representations or requests to the City Commission or city staff be “true and accurate and represent complete and full disclosure.” The ordinance also states that upon a finding by the City Commission that this provision was violated, any action taken with respect to the matter will be rendered “voidable.”

Other ordinances adopted by the Sunny Isles Beach City Commission in order to create a stronger “code of ethics” have established procedures providing for limitations on purchases and competitive bidding. It has also been rendered “unlawful” for any elected or appointed official or employee of the city to cancel or void a traffic summons issued by the city’s Police Department or Code Enforcement Department. The only exception is if a police or code enforcement officer concludes the issuance of the summons was in error.

More Sunshine Law edicts

According to Joseph M. Centorino, Division Chief of the Miami-Dade State Attorney’s Public Corruption Unit:

‘Talking about city business’
“ Any time two people on a public board have a conversation about a matter that could foreseeable come before the board for a vote - that is a [considered] a public meeting the public has a right of access to,” Centorino said. “You can still [participate] in social outings with fellow board members - but if talk turns to city business, you’re in an area that is restricted and must occur in a public domain.”

‘One person board’
Regarding delegation to one board member, Centorino said, “If there is a situation where the board [tells one member] to go out and interview people or do certain preliminary work, that person becomes a ‘one person board’ and needs to conduct those activities in the Sunshine.”

‘Liaisons’
In situations involving use of liaisons, Centorino noted, “This is probably the most common evasive device that happens without anyone intending it for to happen. [For example] someone goes to a commissioner, asks how they feel about an issue and then goes to the next [commissioner] and says, ‘I just had a conversation with commissioner x and this is how they’re going to vote.’

“So by speaking individually with commissioners, [a liaison may provide information on] where everyone stands…It’s not necessarily the elected official or board member’s fault – it’s somebody using their access to put together a majority of votes. [This can create a violation situation if you’re participating in a concerted effort to violate the Sunshine Law by passing information from one commissioner to another through an intermediary.

“There is nothing wrong with [members of the City Commission] individually speaking to your city attorney or manager about any issue you want…The prohibited issue is when you start talking about what somebody else on your board may have said or what they may have thought.”

‘Protecting public access’
“ The purpose of the Sunshine Law is ‘public access to the deliberative process,’ Centorino said. “It doesn’t mean you can’t go out and have conversations one-on-one with any official or citizen in your city to get whatever information you need to make a decision – but when the conversation goes into the area of, ‘this fellow commissioner or board member thinks this’ - the best advice I can give you is to stop the conversation and point out you can’t discuss it.”

‘Written and phone communications’
On the topic of written or telephonic communications, Centorino said, “You can’t write a personal letter or have a phone conversation with a fellow board member about a matter before the board – that would be an illegal meeting. If you want to, in advance of a meeting, you can let board members know how you feel [about an issue]. You can write a memorandum and make it part of the record and send it to all your board members - that’s not a violation [of the Sunshine Law]. The violation occurs when there is some communication back and forth.”

‘Workshops and sub-committee meetings’
Centorino also explained the Sunshine Law applies to city workshops as well as sub-committee meetings. “The exception is a fact-finding meeting if all you’re doing is sitting down and listening to someone talk to you or give information and you’re not deliberating or discussing the issue among yourselves - then it’s not a meeting that necessarily falls under the Sunshine Law. But inevitably, what is an ‘information meeting’ can turn into a deliberation, so it’s advisable [to have the meeting in the sunshine].

Centorino noted advisory boards and committees that citizens are appointed to serve on and give recommendations to the commission are subject to the Sunshine Law. “The most common complaints we get are often because people don’t realize that by virtue of being appointed to an advisory board, they become subject to the Sunshine Law because they’re a public body…Even though they don’t have formal decision making authority, if they’re appointed by a public decision making body, they’re subject to the Sunshine Law.”

‘Accepting invitations’
“ If [a commission member] happens to be invited to go someplace to listen to a presentation, you can go as long as [the issue being discussed] is not coming before the board,” Centorino said. “At community forums, you can certainly attend [along with other commissioners]…The rulings we’ve seen indicate that as long as board members are not communicating with each other and are there as part of the forum and speak out on a question - that’s not considered a Sunshine Law violation.”

‘Attorney/staff meetings’
“ [In the case of] attorney/client meetings, if the board is going to meet with your attorney the exception [to the Sunshine Law] is if you’re talking about pending litigation (a case filed against the city),” Centorino said. “Discussion with an attorney about strategic issues can be private. If you’re looking for general advice on the law and talking to a city attorney about matters that could come up before the board, those types of meetings should be done in public.”

In terms of staff meetings, Centorino advised, “Staff members can talk among themselves about anything that’s coming up…they’re not members of a public board unless they are
appointed by the board or mayor to act as a board to give recommendations.”

Violation consequences
Speaking about the consequences of violating the Sunshine Law, Centorino said, “People are currently facing prosecution in Miami-Dade for Sunshine Law violations…There is a criminal penalty for a knowing violation of the Sunshine Law. One of the things we look at in determining whether there’s a knowing violation is if board members have been instructed and advised of contents of the Sunshine Law.

“If it’s a knowing violation in a deliberate way, then it can be a criminal misdemeanor with a $500 fine, 60 days in jail and you are subject to removal from office by the Governor…It’s not a felony - it’s a misdemeanor charge within the Governor’s discretion. In one case where a mayor and city commissioner were both charged, the Governor’s office gave them the option of resigning or being suspended.

“There is also a non-criminal penalty for a non-knowing [Sunshine Law] violation [calling for] a $500 civil or non-criminal fine…We have filed a number of non-criminal actions against public officials for violating the Sunshine Law.”

Centorino explained loss of “time and money” can be other adverse consequences of violating the Sunshine Law. “[For example], if there is a lengthy process of deciding on a contract and somewhere during that process there is a Sunshine Law violation – but then you continue through the rest of the process with public meetings and a decision is made – if someone finds out about a ‘secret’ meeting, they can nullify the entire process and it could have to start all over from the beginning.”

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