Fair report privilege, public notice of school board hearings and more in today’s Legal Hotline recap.
Q. We have a city councilman who sits on the board of directors for his condo complex. He is accused of forging signatures on absentee owner ballots to remain in his chairman of the board seat. The official complaint is 60 pages+ long. The condo association has referred it to the city police department and sheriff’s office as a criminal case but for various reasons it will be referred to FDLE.
As a matter of fairness, we want to include portions of the complaint so it isn’t in our words but is directly from the complaint. We have the entire complaint as it was sent to all condo owners. However, with it going to FDLE as a criminal case, can we put the complaint in its entirety online or can we take excerpts to put in an article to describe what he is accused of doing? We will of course give him an opportunity to respond.
A. I think you can do both– post the complaint and write an article about it so long as it is fair and accurate. One note of caution is to be sure that the full complaint was actually provided to the various law enforcement agencies so that the paper is sure it is a public record. If the police and sheriff aren’t investigating, but have instead forwarded the complaint to FDLE, I’d also want to make that fact clear in the story.
Q. A further question for you regarding the above. The councilman asked we not run the article, saying it is a malicious attack against him. He told the reporter, ‘we will own your house’ if we proceed. He was quick to clarify that HE wasn’t threatening us, they were the words of his attorney, not him. I suggested we quote him as saying “These are malicious accusations. They will prove to be false.” He has agreed. Here is my question: the police chief is quoted saying these documents are not subject to public records requests as it is an active investigation, and they cannot comment. Can we still use them? [The original complaint came to us through an owner.]
A. You can rely on the statements in the complaint even if it is in the confidential investigation stage if it’s an accurate copy and legally obtained. I assume you got the complaint from the lawyer for the condo resident? Assuming you trust that the lawyer provided you with an accurate copy of what was filed with the agency, the paper has a privilege (i.e., a defense to any libel action) to report fairly and accurately upon it.
Many thanks to Jim McGuire at Thomas & LoCicero firm in Tampa for his input on the above two questions.
Q. Can you point me to the governing statute regulating what constitutes public notice as it applies to governmental agencies? I have noticed that our local school board has held several public hearings recently (for instance a student drug screening policy and administration of marijuana policy) and don’t recall them being legally noticed in the paper.
I have been noticing a drop in the legal notices run in our local paper by local governmental agencies and wanted to check and see if public notice requirements are being met.
I thought before researching statutes myself one of you would probably have immediate access to the applicable law.
A. Scanning the school board statutes, it looks like s. 1001.372 requires the board to set up a “schedule” for regular monthly meetings in the superintendent’s office but I do not see any specific newspaper requirement for these monthly meetings—probably because they are to occur a regular time each month.
“Special meetings” should also take place at the superintendent’s office but again I do not see any newspaper requirement. HOWEVER, if any meeting is held in another place besides the superintendent’s office, newspaper notice is required.
Note that the Sunshine Law in general does not mandate that an agency (e.g. school board) use a paid advertisement to provide public notice of a meeting—although more specific laws or local polices may do so and many are scattered throughout the statutes. Some city/county local ordinance actions, for example, may require more specific/newspaper notice. Also, I do know that some cities and counties publish bid info. notices in the newspaper.
Q. Following up on the above questions, the school board says it must provide “reasonable notice” but that seems pretty vague. Any thoughts?
A. “Reasonable notice” of all meetings is required but the SL does not define that term. Therefore, the type of notice is variable and depends upon the facts of the situation and the board involved.
In each case, an agency must give notice at such time and in such a manner as to enable the media and the general public to attend the meeting. AGOs 04-44, 80-78 and 73-170. And see Rhea v. City of Gainesville, 574 So. 2d 221, 222 (Fla. 1st DCA 1991) (purpose of the notice requirement is to apprise the public of the pendency of matters that might affect their rights, afford them the opportunity to appear and present their views, and afford them a reasonable time to make an appearance if they wish).
Finally, the AG Office has suggested notice guidelines such as time and place of the meeting; general subject matter; prominently displayed in the area in the agency’s offices and on the agency’s website; generally notice provided at least 7 days prior to the meeting; special meetings no less than 24 and preferably at least 72 hours notice. See AGO 73-170, 00-08, 94-62 and 90-56.
Q. Our latest editorial contains critical remarks about an individual who has filed a federal handicap access lawsuit against the city which resulted in the city partially shutting down its website to city resident. We are wary of being sued by this person and have only relied upon official public documents in the city or court clerk’s office, e.g., plaintiff’s letters and complaint. Are we on solid legal grounds here?
A. The fair report privilege should protect you from liability — even if you publish something that is defamatory — if you relied upon an official public document or statement by a public official for the false information, made clear that the document or statement was your source, and fairly and accurately used the source. This privilege enables you to freely report or present opinions, for example, about what people say during a council meeting or from the witness stand during a trial or to quote from public records. In this case, in general you should be able to rely on the attached court documents in your article. That said, there is one sentence that gives me some pause: “It’s obvious that [plaintiff’s] motivation is collecting settlement checks from cities in our state that may not have their websites up to snuff.” Maybe the paper should say “It is obvious to us that [plaintiff]. . .”, just to make clear it is an opinion.
Q. I have a technical question regarding Form 1, Statement of Financial Interests, which is the form for disclosing financial interests and clients presented before agencies. 112.3145(3)(b)2, F.S.. A person who owns a for-profit business or has a share of a business–it is supposed to listed, correct? Example, a 2017 Form 1 is filed, the business should be listed. Second example, if the business files for Chapter 7 bankruptcy in 2018, it would still need to listed on Form 1, if they are required to file such a form, correct?
A. It looks like the 2017 Form 1 Part B (Secondary Sources of Income) has detailed instructions about disclosure of major customers, clients, and other sources of income to businesses in which you own an interest, including examples. I would refer you to this link: http://www.ethics.state.fl.us/Documents/Forms/Form%201_2017i.pdf.