City workshop focuses on 'Sunshine Law'
By Bari Auerbach

Joseph M. Centorino, Division Chief of the Miami-Dade State Attorney's Public Corruption Unit, recently addressed the Sunny Isles Beach City Commission during a workshop held on the topic of Florida's Sunshine Law.

"There are a lot of areas we [address] such as criminal laws regarding corruption, bribery, unlawful compensation and official misconduct," Centorino said. "We also deal with ethics statutes, fraud and theft - and to some degree, mismanagement. In the past few years, we've significantly increased county resources that deal with public corruption.

"There was a time when resources were not focused on it because we had such a violent crime problem.Times have changed and now law enforcement, in general, is focused on corruption like never before. The Miami-Dade Police Department has 40 detectives working full time on nothing but corruption; the Miami-Dade Inspector General's office [also deals with corruption] and the Miami-Dade Ethics Commission focuses on ethical issues covering all municipalities including Sunny Isles Beach.

"You're [likely] to hear from authorities more often than people have in the past [because this is a time] when the focus of law enforcement has been directed towards the behavior of public officials; and people are more informed about some of the things that are occurring as well as the rules and laws that apply.

"As public officials you're doing the right thing by informing yourselves as much as possible about the applicable rules.They aren't rules that necessarily everyone agrees with.If we were to start from scratch and try to design a perfect system [we may not have] necessarily written [the laws] the same way - but they are the rules and as public officials, you swear to uphold the law.The first thing is to inform yourselves about [the laws].Work with your city attorneys and hopefully that will result in you not having to meet me in less pleasant circumstances.

"The Sunshine Law is probably the strongest state law in the country in terms of the strictness of its requirements and the burden it imposes on public officials communicating [with each other]. 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. 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.it applies to members of public boards and [your City Commission] is the most prominent public board in Sunny Isles Beach.

"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."

Citing the court case Town of Palm Beach vs. Gradison, Centorino said, "This particular decision used words that always come back in any case that talks about Sunshine Law.The statute should be construed to frustrate all evasive devices.When applying the criminal law, it's usually interpreted in favor of the defendant.Courts have said, 'We're going to construe this expansively - so if it's a close call, it will go against the person who the complaint is made against."

Sunshine Law Review
Going on to discuss matters pertinent to city commissioners, Centorino explained, "Courts have given direction and opinions have come out of the Attorney General's office interpreting the Sunshine Law.probably the most significant thing is what used to be something that applied only to the board as a whole can now be applied to any two or more people on a public board.

"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.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."

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."

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.

"The purpose of the Sunshine Law is 'public access to the deliberative process.' 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."

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."

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].

"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.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."

"[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). 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."

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."

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."

'The Right Advice'
In conclusion, Centorino commended the Sunny Isles Beach City Commission for having "a very capable city attorney and deputy city attorney." He advised, "If you talk to your city attorney before you do something and ask, 'Can I do this or not?' -even if your city attorney were wrong, you're probably taking yourself completely out of the criminal realm.You can't be committing a 'knowing' violation if you're following the advice of your city attorney.With cases I've handled, the real problem is not anything more than a failure to get the right advice and to follow it."

'High Ethical Standards'
Before the workshop concluded, a discussion arose as to when it might be appropriate for commissioners to recuse themselves from voting on issues they might personally benefit from in some way. Mayor Norman Edelcup pointed out the Sunny Isles Beach City Commission has 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."

The city's disclosure ordinance further requires city commissioners and members of city staff to reveal any dealings they may have with developers building properties in Sunny Isles Beach that could possibly affect decisions being made. The verbiage of the ordinance prohibits "interests in conflict with official duties, including unwarranted privileges unless disclosure is first made; providing for dissemination of such disclosure by City Clerk; and providing for disciplinary action."

Other ordinances adopted by the Sunny Isles Beach City Commission in order to create a stronger "code of ethics" have established procedures governing ex-partie communications with local public officials concerning quasi-judicial matters; and 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.

"In terms of having an interest in a matter you're going to vote on, the county's ordinance talks about 'controlling financial interest,'" Centorino said. "The general rule is, if you stand to gain from something, you really shouldn't be voting on it.Generally the problem [arises if you're talking about a personal] special private benefit.If you're part of a large group of people who may be affected by [what's being voted on] generally speaking, that won't raise a conflict of interest.Presumably, every time you vote, you're trying to benefit the lives of everyone who lives [in the city.]" 

 

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