Wednesday, January 26, 2022

Talking Sunshine: The Law of Public Communication

By Danielle Dodder

Four elected officials enter a café for lunch. What happens next can turn out to be a punch line or a prosecutable offense, depending on how they communicate with each other if they hold office in Florida, thanks to its Sunshine Laws. City Attorney Burt Saunders gave a presentation for committee volunteers and city council at the February 4th workshop, to outline the do’s and don’ts of communicating with each other and members of the public under the law. Saunders shared an anecdote from the beginning of his career: upon seeing all four Dade County commissioners sitting at separate tables in a courthouse café, “I thought, ‘Do these guys dislike each other so much, they can’t even sit together at lunch?’” Turns out, they couldn’t afford to give even the impression of improper communication during their break from a commission meeting.

Sunshine Law basically dictates that the public is entitled to access to government business, through public records or public meetings, and it applies to the appointed members of Marco city committees as well as city council. According to Saunders, the Attorney General’s Office uses intent to interpret Sunshine Law, as in, if a public official’s behavior can be interpreted to show intent to conduct public business ‘behind the scenes,’ a violation has occurred.

Because two or more members of the same committee (or council) can’t discuss an issue before them in private, socializing on a small island full of active constituents can be tricky. Key points of Saunders’ advice included:
• All members of committees and council are discouraged from using private email accounts to respond to questions from the public and each other. To automatically create a public record of communication, Richard Shanahan of the Waterways Committee copies his city liason when emailing and Councilman Larry Magel BCC’s his city account when responding to the public from home.
• Saunders encouraged all officials to attend public and private events around the island. Any single official can, and should, openly voice an opinon on an issue, but it cannot be discussed with members of the same committee or council at the event.
• A member of the public can freely ask all members of council or a committee for their position on an issue, but if that member of the public then attempts to “lobby” a member by telling him or her how others will vote, it’s a violation that the member cannot respond to.
• Text messaging and even note-taking can become public documents if they pertain to city business, and tossing or deleting can lead to a felony conviction.

And finally, there’s always the threat of nonsense lawsuits to contend with. Saunders added that in addition to legitimate prosecution of violations, a legal cottage industry has sprung up in Florida to capitalize on the city, county or state’s obligation to pay a plaintiff’s legal fees in a Sunshine Law public records case.

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