Legal Update

From the Legal Hotline (877-NEWS-LAW)

Social media and the Sunshine Law, employment ads and more in today’s Legal Hotline recap.

Q. We recently learned that several county commissioners will each meet individually with utility company reps. for 30 minutes at different times throughout the day. When I asked if we could attend the meetings, the response I got back from the PIO was “They are individual meetings in each individual commissioner’s office and not public meetings.” So are we supposed to rely on the county administrator to keep everything above board as far as the Sunshine Law is concerned? What is to keep the utility company officials from slipping up and saying something about a meeting with one of the other commissioners?

A. “Rapid fire” one-on-one successive meetings that are used to circumvent the SL are illegal. 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 subject to the SL, these meetings were held in “rapid-fire succession” in order to avoid a public airing of a controversial redistricting problem. Thus, even though the superintendent was “adamant that he did not act as a go-between during these discussions and [denied] that he told any one board member the opinions of the others,” the one-to-one meetings amounted to a de facto meeting of the school board in violation of the SL.

I would have the same concerns in this case and would object to this method of meeting in secret.

Q. We have a local county commissioner who seems to be confused about his role as an elected official and that of a public information officer. What are the dangers of an elected official regularly posting county business on social media, especially in regards to things coming up before the commission? Can an elected official have dialogue on social media regarding issues that may come up for a vote?

The most recent example took place last night. In an on-line conversation, the commissioner talked about complaint forms that should be filled out by those who have concerns about garbage collection. In one of his comments he said, “a few commissioners (3 to be exact) will be meeting with some of the waste collection company execs this week to talk about a few issues and possible ideas.” No notice to the press. We are in the process now of trying to find out the other two commissioners who are attending and if this is a meeting that the county PIO is aware of.

A. The Sunshine Law requires boards to meet in public and they may not take action on or engage in private discussions of board business via written correspondence, e-mails, text messages, or other electronic communications. Regarding social media and Facebook in particular, commission members may not engage on the city’s Facebook page in an exchange or discussion of matters that foreseeably will come before the board or commission for official action. Ago 09-19. (“While there would not appear to be a prohibition against a board or commission member posting comments on the city’s Facebook page, members of the board or commission must not engage in an exchange or discussion of matters that foreseeably will come before the board or commission for official action.”)

Q. As for the previous question about Facebook, I should have said that it is the commissioner’s personal FB page, not the county’s FB page. Is there any difference there?

A. The same thing goes for personal Facebook. The commissioner can’t use it to engage with other commissioners about public business.

Q. Our city council met recently and one of the council members who was absent sent a letter to the council addressing her position on a fairly innocuous item. The letter was passed out to the members but not the public. The city manager was about to read it out loud when the mayor (who is apparently a voting member of council) interjected and asked that it NOT be read into the record—so it wasn’t. This particular mayor fancies himself an expert on the SL but I am unsure why he did this.

Do you see any problem with this procedure—the letter not being entered in the record, and the public being unaware of what it contained (until after the meeting when it was apparently circulated).

A.We asked Barbara at FAF to weigh in on this one. She believes this reflects poor public policy, but she does not see a sunshine law violation unless the absent council member was allowed to cast a vote on the issue.

Q. Attached is an email from a councilman-elect to the city administrator (CA) as well as three current sitting council members. To make a long story short, two council members will leave their seats in November and Mr. New Guy will be sworn-in; the property in question will be discussed for a re-zoning issue in the coming year. The question I have is does this pass the Sunshine Law? Is it allowable for council members-elect to email current council members?

A. Members-elect are subject to the Sunshine Law in the same manner as board members who are currently in office. Such board members may not take action on or engage in private discussions of board business via written correspondence, e-mails, text messages, or other electronic communications.

In this case, the email is from member-elect New Guy to the CA and he copies several sitting members of the Council. The purpose of the New Guy email seems more like bringing information to the attention of the CA (and the other members via cc) then in trying to engage in discussions with or obtain a response from the other members.

So, I would say while the email communication is definitely a public record, it does not seem to rise to the level where it would constitute a meeting subject to the SL. That said, it seems like bad policy for Mr. New Guy to communicate about City business in this fashion.

Q. Would you please check this ad and let me know if it’s ok to publish. We changed some verbiage but I still want to run it past you.

Retired person welcome.
City resident preferred. Grow your income as our business grows. Use your own pick-up, minivan or SUV to make deliveries. No heavy lifting. Average pay over $1.00 per loaded mile. Must have vehicle insurance pass background check, be clean and have a good driving record. Call Joe’s Delivery.

A. Age (over 40) is a protected class in Florida so I usually advise not including age-related (“youthful”) criteria. However, this ad does not discriminate based on older age but does the reverse by “welcoming” that class. So there does not seem to be a problem with the ad. In any event, for employment ads, keep in mind the newspaper will not be liable—that only applies regarding housing ads.