Office of , . , _. _ ,,-,., ... America* First SettlementCity Attorney _ , ,, , ,

Established 1559May 3, 2012

The Honorable William E. Eddins

State Attorney190 Governmental Center

Pensacola, Florida 32502

Re: Claim of Sunshine Law Violation

Dear Mr. Eddins:

The Mayor has directed me to transmit the attached documents and request thatyou investigate the claim of a Sunshine Law violation.

The Sunshine Law violation claim was made by a Councilmember and the allegedviolator is the City Administrator; therefore, the Mayor thought it more appropriate to haveyour office investigate the matter. In order to aid in your investigation, the CityAdministrator has executed the attached affidavit with the relevant emails.

I have expressed the opinion that the circulation of the document at the crux of thematter was not a violation of the Sunshine Law, as my understanding is that theinformation was not being utilized for discussion amongst members. In that regard, pleasesee the attached email and relevant Attorney General Opinions.

My office stands ready to assist you in any way possible. Please ensure that I amcontacted at (850) 435-1615 if you have further comments or inquiries concerning thismatter.

Sincerely,

>%James M. MesserCity Attorney

JMM/jImEnclosures

Ashton Hayward, III, MayorMaren DeWeese, City CouncilmemberWilliam H. Reynolds, City AdministratorJohn Asmar, Chief of Staff

P.O. Box 12910 32521 180 Governmental Center Pensacola, Florida (850)435-1615 FAX (850) 595-1290

IN RE: Florida Sunshine Law - Alleged Violation

AFFIDAVIT OF WILLIAM H. REYNOLDS

STATE OF FLORIDA

COUNTY OF ESCAMBIA

BEFORE ME, the undersigned Notary Public, in and for the County and Stateaforesaid, personally appeared WILLIAM H. REYNOLDS who, being by me first dulysworn, deposes and says:

1. Affiant is over the age of 21 and has personal knowledge of the matters setforth herein.

2. Affiant is the City Administrator of the City of Pensacola, Florida.

3. On Tuesday, May 1, 2012, I responded to an email from Maren DeWeeseregarding her desire to present operational issues under the authority of the Office ofthe Mayor at a meeting of the Parks and Recreation Subcommittee. My response wasto explain to Ms. DeWeese the Mayor's position.

4. The response was addressed to Ms. DeWeese, and was copied to thosewhom she had originally copied, with the deletion of some junior staff and the addition ofMayor Hayward. I included in the response some comments by the Chair of theCommittee, Mr. Jake Renfroe, regarding his thoughts on the underlying conflict betweenMs. DeWeese and Bill Bonds Baseball. These comments were provided to me via anemail from Mr. David Flaherty. Prior to including the comments from Mr. Refroe, I calledMr. Flaherty to ask who Mr. Renfroe was. Mr. Flaherty told me at that time that he wasthe Chair of the Parks and Recreation Subcommittee.

5. One of the individuals that were copied on my response to Ms. DeWeese hadan Escambia County email address. I had no idea who that was, and had assumed thatsince it was an Escambia County email that it was the contact between Bill BondsBaseball and the County.

6. At 8:36 in the evening, Ms. DeWeese sent an email making an allegation thatI had violated the Florida Sunshine law. At 8:53 I replied stating that my actions were toanswer her email, and that I had no knowledge of who the other individual was. I alsosuggested that she forward her concerns to the State

7. All emails are attached and made part of this affidavit.

FURTHER AFFIANT SAYETH NOT.

WfcLIAM /R/REYNOLDS\ty

The foregoing instrument was sworn to and subscribed before me on the 2nd dayof May, 2012, by William H. Reynolds who is personally known to me.

NOTARY PUBLIC

Signatuj-^uVYU'W um/n -fV)73XL3*—>Print: TPfr^-r Ih &4L JJa.ftg^fl/J

aSNotary for the State'ofFloridaMy Commission Expires: io-1«-13

JANET LYNN MATTES0NNotary Public, State of Florida

My Comm. Expires Oct. 11, 2013Comm. No DD 81937b

Bill Reynolds

From: Maren DeweeseSent: Tuesday, May 01,2012 8:58 PMTo: Bill Reynolds; Jim Messer; Ashton HaywardSubject: RE: League Use discussion item

Good Evening,

Thank you for your email.

I appreciate your response yet await Mr. Messer's reply for clarification of the issue.

My Best,

Maren DeWeese

District 3 Representative2435 Semoran Drive

Pensacola FL 32503-8203

850-436-5796

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From: Bill ReynoldsSent: Tuesday, May 01, 2012 8:53 PMTo: Maren Deweese; Jim Messer; Ashton HaywardSubject: RE: League Use discussion item

Councilwoman,Ianswered youremail, and had no knowledge of who the other individual was. But to make itvery easy foryou, I suggest that you forward your concerns to the state directly.

Sent from my Verizon Wireless Phone

—Original message—From: Maren Deweese <MDeweese@citvofpensacola.com>

To: Bill Reynolds <BRevnolds@citvofpensacola.com>. Jim Messer <imesser@citvofpensacola.com>Sent: Wed, May 2,2012 01:36:55 GMT+00:00Subject: RE: League Use discussion item

Good Evening,

Thank you for your email.

1appreciate your comments below, but I think there needs to be some clarification.

As Iexpect you are aware, the information from Board Chairman Jake Renfroe that he sent to most ofthe Parks and Recreation Board was in violation of the Florida Government in the Sunshine laws.

I am concerned that by your forwarding the email yet again to Board member David Forte this has furthercomplicated the situation.

Mr. Messer will need to weigh in on this matter of Sunshine law and clarify the issue of a conduit role youmay have played in forwarding this information from one board member to another. I imagine this is aninadvertent communication on your part.

Please advise as to next steps or actions to be taken in order to remedy this situation.

My Best,

Maren DeWeese

District 3 Representative2435 Semoran Drive

Pensacola FL 32503-8203

850-436-5796

Nott» Horttateamrynraadpaolcrecanblaw. ^ writtencomift»UoD8 toor tiro state andavaBatfetotbBpabteamlniafetwnregrat Ym»mairamirtMiiimimiyi«irti^

From: Bill ReynoldsSent: Tuesday, May 01, 2012 11:12 AMTo: Maren Deweese

Cc: Ashton Hayward; John Myslak; David Flaherty; DVFORTEtaco.escambia.fl.usSubject: RE: League Use discussion item

Councilwoman Deweese,

Iappreciate your comments below, but I think there needs to be some clarification.

In regardsto the use agreement (MOU), it isn't a policy doc

Bill Reynolds

From: Maren DeweeseSent: Tuesday, May 01,2012 8:36 PMTo: Bill Reynolds; Jim MesserSubject: RE: League Use discussion item

Importance: High

Good Evening,

Thank you for your email.

I appreciate your comments below, but I think there needs to be some clarification.

As I expect you are aware, the information from Board Chairman Jake Renfroe that he sent to most ofthe Parks and Recreation Board was in violation of the Florida Government in the Sunshine laws.

Iam concerned that by your forwarding the email yet again to Board member David Forte this has furthercomplicated the situation.

Mr. Messer will need to weigh in on this matter ofSunshine law and clarify the issue ofaconduit role youmay have played in forwarding this information from one board member to another. Iimagine this isaninadvertent communication on your part.

Please advise as to next steps or actions to be taken in order to remedy thissituation.

My Best,

Maren DeWeese

District 3 Representative2435 Semoran Drive

Pensacola FL 32503-8203850-436-5796

Noun ^taawr»bralp^n^avJanb to tte pubic and r^^rawst TrjrmalcajiimiiatiiBtmayrHirtt^ttnrrt^^Mrf,

From: Bill ReynoldsSent: Tuesday, May 01, 2012 11:12 AMTo: Maren Deweese

Cc: Ashton Hayward; John Myslak; David Flaherty; DVFORTE@co.escambia.fl.usSubject: RE: League Use discussion item

Councilwoman Deweese,

Bill Reynolds

From: Bill ReynoldsSent: Tuesday, May 01,201211:12 AMTo: Maren DeweeseCc: Ashton Hayward; John Myslak; David Flaherty; DVFORTE@co.escambia.fl.usSubject: RE: League Usediscussion item

Councilwoman Deweese,

Iappreciate yourcomments below, but Ithinkthere needs to be some clarification.

In regards to the use agreement (MOU), it isn't a policy document. It is an operational document that enacts the policyof the city in granting sports leagues the opportunity to use park facilities. It is long overdue and well within theexecutive responsibilities of the Office of the Mayor. Frankly, the city council can change their policy in regards to thatrelationship at any time - including charging for the use and requiring upkeep by the user groups (both which have beenattempted by the County with very mixed results). If the council was to change their policygoverning that relationship,we would ensure that we have the necessary use agreements implemented. The use agreements are not the purview ofthe Parks and Recs Board either.

Mayor Hayward has been clearin his direction. Wewill addressan obvious shortcoming (useagreements) that werediscovered as a part ofthis process. Ihave yet to review the proposed agreement that has been provided by staff. Ihope todo so this week. Iam happy to provide you with acopy of that draft and with the final product. However, citystaff will not insert ourselves into a matter that is essentially a disagreement between parents and the Bill BondsBaseball program. Iknow in my discussions with Mr. Myslak that there is some concern in regards towhether the BillBond organization is subject to or complies with the Sunshine Laws. That however is not acity issue (the city has noability to determine if Bill Bonds is covered by the law, nor to force compliance if that is the case). That is adetermination that must be made by the State of Florida, and Iurge you to address at that level if you believe it to be anissue. If there are some policy issues that you would like to address, Iurge you to bring those issues before City Council.

As for the Parks and Rec Board, here is the opinion of Mr. Renfroe. The text of his email on the issue is as follows:

With regards to the issue brought before us about Bill Bond Baseball, and after havinglZr7LiaZ5 1° ?lges\.th? discussion from our April meeting, I believe the Parks and RecBoard has no business tryxng to settle any disagreements there may be between parents and/orcoaches and the Bill Bond governing board. I stated in the meeting that the only issue weneed to clarify was that normal access to documents and records of public record based on ther^ro^k"65 bS made aVailable *> Mr. Myslak and Mrs. DeWeese. Members of ?he Parks andRec Board have zero business in questioning wins and losses, or trying to offer a solution ofhow the program could be more competitive, or how to pick teams, or how a particular board2S?fSi I mf:bers' Thfe are manV y°"th baseball programs in and out of ?he City Jha? areavailable to those who do not agree with the policies of another.

If I remember correctly, Mr. Flaherty assured our board and Mr. Myslak that the Bill BondMw!iiWa?/:hg:°d °rdeP' and he agreed t0 Drovide anv Public documents available to Mrwith" the iuTl PHqReSthha? bSen satisfled' the Pa<*s and Rec Board has no further businessilTJal III\l d "J-6"911 Pro^am- sh°uld anyone from that program wish to speak on the!« «* ?• y !?eetu?8' Please advise them tnat we wil1 0NLY "ear discussion that reliesto City policy and public record. We cannot become involved with the intricacies plannineand policies of the Bill Bond program. mirxcacies, planning,

Thanks,Jake Renfroe

My best,

Bill

William H. Reynolds

City Administrator

City of Pensacola

222 W Main St.

Pensacola FL 32502

850-435-1623

www.cityofpensacola.com

For Non-Fmergency Citizen Requestsor visit iVnsacola311.com

Notice: Florida has a very broad public records law. Most written communications to or from state and local officials regardinggovernment business are public records available to the public and media upon request. Your email communications may be subject

to public disclosure.

From: Maren Deweese

Sent: Tuesday, May 01, 2012 12:33 AMTo: DVFORTE@co.escambia.fl.usCc: Kathy Condon; Elaine Mager; John Myslak; David Flaherty; Bill ReynoldsSubject: League Use discussion item

Good Evening,

In preparation for the league use discussion at the P & R Athletics subcommittee:

Department of Neighborhood ServicesThe missionof tho Neighborhood Services Departmon!is to improveand promote the qualityof lifeforall citizensand visitorsof Pensacola by protectingthe heritage or our pants whiteproviding a widorange ofrecreational, social, and educational opportunities

Neighborhood Services

Increase PropertyValue.Helpto AttractNowBusinesses, Helpto Boost tne LocalEconomy.Create Community throughPeople, Parks. & Programs. PromotoHealth&Wellness. Foster Community Pride. ProtectEnvironmental Resources. Increase Cultural Unrty. Create Lifetime Expenences. Strengthen Community image & Sense of Place

The Department has three major divisions Officeof the Oiroctor. Recreation (Includes Athletics). Library Services.

Parks and Recreation Board

ThoParksand Recreation Board shallprovido, conductand supervise public playgrounds, athletic fields, recreation confersand otherrecreation facilities and activities on anycf the properties ownedorcontrolled bythecity, after the playgrounds, fields, recreation and amusoment contors have been designated by the council, or on other properties with the consent of tho ownors and authonties thereof. The board shall havo the power toconduct ony form of rocroation or cultural activity Wat will employ loisuro time of tho people in a constructive end wholesome manner

Momborshlp: Seven members, appointed by tho City Council

League Use discussion: based on both the Neighborhood Services description as well as the Parks andRecreation Board's mission it seems the issue of league use should be addressed within the agenda of theParks and Recreation Board's ongoing business and subcommittee.

There has been a new Memo of Understanding developed by City staff for their operational considerations ofCity facilities & NFP's, yet this use agreement is also a consideration for the Parks and Recreation board as itapplies to their mission and their supervision of facility use.

I have also requested that during the City staff and Parks and Recreation's review of the proposed MOU that asimpler version of a league use agreement be considered.

The alternate proposal is based on ensuring simple access for the citizens of the City of Pensacola and allowsfor internal checks and balances within the registration process.

In order to be good stewards of City of Pensacola assets, there must be a uniformity to what is expected withregard to citizen access to NFP organizations when those organizations are to the benefit of City assets.

Simply put, by registering with an NFP for league play on any City of Pensacola field this should allow/createaccess to the following:

1. An annual meeting of the membership, this meeting can be held one week following the close ofregistration, (creates internal checks and balances for compliance of NFP's)

2. Ability to nominate board members upon registration for league play, vote to be taken at annual meeting byvote of entire membership present, (citizen access)

These 2 items should be part of the registration form provided to each individual registering for league playbeing offered by NFP's. These are basic requirements that can be easily carried out for league play. Thesemeasures will ensure citizen access to their fields, parks and facilities & a use agreement will create parity andpublic trust in the City of Pensacola's efforts.

As I stated during my discussion with Mr. Flaherty that followed the February meeting with Bill Bondrepresentatives, I am not interested in getting involved with the underlying issues of the Bill Bond League. Ifeel once the City of Pensacola has a sound use agreement in place the other issues will take care ofthemselves.

I look forward to further discussion of this issue with the Athletics subcommittee as well as the Parks andRecreation Board at the monthly meeting in May.

Thank you for your volunteer efforts on behalf of the City Council and the citizens of our fair City. Please letme know if you have any questions or concerns. I can be reached on my cell phone: 316-7671.

Note: As this issue has facilitated my recent efforts and communication with you and the rest of the Parks andRecreation Board, please let me know if there is a more formal way of communication that you wish for me tofollow, i.e. City Staff contact or your board's secretary (please advise). I am just concerned about yourBoard's Sunshine requirements and don't want to create communication between two or more of yourmembers.

My Best,

Maren DeWeese

District 3 Representative2435 Semoran Drive

Pensacola FL 32503-8203

850-436-5796

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Bill Reynolds

From: David FlahertySent: Monday. April 30, 2012 2:33 PMTo: Bill ReynoldsSubject: FW: Parks and Recreation Board Minutes 04-19-12

FYI. After reading, let me know if you need a clarification or have a question(s).

David FlahertyDirector, Neighborhood Services222 West Main St. | Pensacola, FL 32502850.436.5670

For Non-Emergency Citizen Requests, Dial 311 or visit Pensacola311.com

Notice: Florida has a very broad public records law. Most written communications to or fromstate and local officials regarding government business are public records and available tothe public and media upon request. Your email communications may be subject to publicdisclosure.

Original MessageFrom: iakerenfroeOcox.net rmailto:iakerenfroeOcox.net1

Sent: Monday, April 30, 2012 2:22 PMTo: David Forte; Kathy Condon; Wesley Pate; 'Eric Schade'; 'Richard Sherrill';'dmayojr@gmail.com'Cc: David Flaherty; Robyn TiceSubject: Re: Parks and Recreation Board Minutes 04-19-12

Thanks, Kathy. The minutes look good.

With regards to the issue brought before us about Bill Bond Baseball, and after havingseveral days to digest the discussion from our April meeting, I believe the Parks and RecBoard has no business trying to settle any disagreements there may be between parents and/orcoaches and the Bill Bond governing board. I stated in the meeting that the only issue weneed to clarify was that normal access to documents and records of public record based on theCity's policies be made available to Mr. Myslak and Mrs. DeWeese. Members of the Parks andRec Board have zero business in questioning wins and losses, or trying to offer a solution ofhow the program could be more competitive, or how to pick teams, or how a particular boardchooses its members. There are many youth baseball programs in and out of the City that areavailable to those who do not agree with the policies of another.

If I remember correctly, Mr. Flaherty assured our board and Mr. Myslak that the Bill Bondboard was in good order, and he agreed to provide any public documents available to Mr.Myslak. If that request has been satisfied, the Parks and Rec Board has no further businesswith the Bill Bond Baseball program. Should anyone from that program wish to speak on theissue at the May meeting, please advise them that we will ONLY hear discussion that relatesto City policy and public record. We cannot become involved with the intricacies, planning,and policies of the Bill Bond program.

Thanks,

Dake Renfroe

Kathy Condon <KCondonOcitvofpensacola.com> wrote:> PARKS AND RECREATION BOARD MEETING

> April 19, 2012>

> PRESENT: Dake Renfroe, David V. Forte, Eric Schade, and Richard Sherrill>

> ABSENT: Wesley Pate and David Mayo>

> STAFF MEMBERS PRESENT: David Flaherty, Emily Stewart, Kim Carmody, Buddy Connelly, and DeffPohlman

>

> VISITORS: UWF Students, Dottie Dubison, Councilwoman DeWeese, and Dohn Myslak>

> The meeting was called to order at 8:15am by Mr. Dake Renfroe.>

>

>

> The City of Pensacola adheres to the Americans with Disabilities Act and will makereasonable accommodations for access to city services, programs, and activities. Please call436-5670 for further information. Requests must be made at least 48 hours in advance of theevent in order to allow the city time to provide the requested services.>

>

> Kathy Condon> Marketing Coordinator> Neighborhood Services> 222 West Main St. | Pensacola, FL 32502> 850.436.5670

> www.playpensacola.com

>

>

> rcid:imaee001.iPBfil01CD26C3.66BAF8A01

>

> For Non-Emergency Citizen Requests, Dial 311 or visitPensacola311.com<http://citvofpensacola.com/311>

>

> Notice: Florida has a very broad public records law. Most written communications to or fromstate and local officials regarding government business are public records and available tothe public and media upon request. Your email communications may be subject to publicdisclosure.

>

Janet Matteson

from: Janet Matteson on behalf of Jim MesserSent: Thursday, May 03,2012 10:40 AMTo: Ashton Hayward; Maren Deweese; Bill Reynolds; John AsmarCc: jakerenfroe@cox.net; Sharon Barnett; David Flaherty; Ericka BurnettSubject: RE: Potential Sunshine Law Violation and Open records requirements

Your email raises several issues which Iwill try to respond toas succinctly as possible.

1. Regarding Sunshine Law Opinions: The sole procedure to obtain an opinion as to whetherBill Bond baseball is subject to the Sunshine law is to request such opinion from the AttorneyGeneral's Office. In order to trigger her duty to render an opinion, it is required that the City Councilmake the request. She will not render an opinion to either an individual Council person or aconcerned citizen. Further, her opinion is advisory only. Actual resolution of this matter is a functionof a court of law.

2. Regarding any potential Sunshine Law Violation: My working hypothesis is based on myunderstanding that the information is not being utilized as a substitute for action at a public meetingand that it does not solicit any interaction or response from Board members prior to their meeting. AsI understand the facts, there is no violation of the Sunshine law.

3. Regarding remedies:

a. Ifasked, I would be glad to meet with the Board or any Board member to brief them on theSunshine law;

b. Since this is a City board, Council may remove any member;

c. I do not want to commence a policy of attendance at Board meetings, but would be glad tocontinue my policy of fully briefing any and all Boards on the public records and Sunshine law;

d. At this point I do not believe there is any duty to bring the matter to the attention of theState Attorney; however, as we have discussed on previous occasions, accusations of Sunshine lawviolations are serious matters that are investigated by the State Attorney.

James M. Messer, City Attorney

From: Maren Deweese

Sent: Wednesday, May 02, 2012 9:21 AMTo: Jim Messer

Cc: jakerenfroe@cox.net; Sharon BarnettSubject: FW: Potential Sunshine Law Violation and Open records requirements

Ireceived the following email on Monday. It clearly discusses issues which will be on the agenda for thenext Parks & Recreation Board meeting. Based on my understanding of the law it potentially constitutesa violation of Florida's Sunshine Law.

b. Written correspondence, e-mails, and other electronic communications between boardmembers

The SunshineLaw requires boards to meet in public; boards may not takeaction on orengagein privatediscussionsof board business via writtencorrespondence, e-mailsor otherelectronic communications. Therefore, membersofa publicboard may not usecomputers toconduct private discussions among themselves about boardbusiness. AGO 89-39.

Mr. Messer, I request that you weigh in as to "if the email is a violation of the law" and "must" thispotential violation be reported to the State Attorney's office or do we have discretion here locally toremedy the violation?

I am requesting a written opinion on the above questions as I am unsure of my responsibilities to reportknown acts under the law as an elected official.

Additionally, how will the situation impact discussion as Board Member Renfroe has tainted the issue tocome before the Board?

Mr. Messer, regardless of the opinion you reach, I would like to ask you as City attorney to attend the nextParks and Rec Board meeting as several issues with regards to open meetings will be raised.

Namely, the question Is whether Bill Bond Baseball Inc. is subject to sunshine laws in as much as the Cityhas delegated the performance of its role in overseeing a directly supported select baseball league forthe City.

From; lakerenfroe@cox.netTo: David V.Forte; Kathy Condon; Wesley Pate; "Eric Schade"; "Richard Sherrill"; "dmayolrffltamall.com"Cc: David Flaherty; Robyn TiceSubject: Re: Parksand Recreation Board Minutes 04-19-12Date: Monday, April 30,2012 2:21:42 PM

Thanks, Kathy. The minutes look good.With regards to the issue brought before us about Bill Bond Baseball, and afterhaving several days todigest the discussion from our April meeting, I believe the Parks and Rec Board has nobusiness tryingto settleanydisagreements there maybe between parents and/or coaches and the Bill Bond governingboard. I stated in the meeting that the only issue we need to clarify was that normal access todocuments and records of public record based on the City's policies be made available to Mr. Myslakand Mrs. DeWeese. Members of the Parks and Rec Board have zero business in questioning wins andlosses, or trying to offera solution of how the program could be more competitive, or how to pickteams, or how a particular board chooses its members. There are many youth baseball programs in andout of the City that areavailable to those whodo not agree with the policies of another.If I remember correctly, Mr. Flaherty assured ourboard and Mr. Myslak that the Bill Bond board was ingood order, and he agreed to provide any public documents available to Mr. Myslak. If that request hasbeen satisfied, the Parks and Rec Board has no further business with the Bill Bond Baseball program.Should anyone from that program wish to speak on the issue at the May meeting, please advise themthat we will ONLY hear discussion that relates to City policy and public record. We cannot becomeinvolved with the intricacies, planning, and policies of the Bill Bond program.Thanks,Jake Renfroe

Thank you for your time and attention to this matter, I look forward to hearing from you as soon aspossible.

Best Regards,

Maren DeWeese

District 3 Representative2435 Semoran Drive

Pensacola FL 32503-8203

850-436-5796

Kotte HorfdateSBveiYin'oadpiiIiloreiairilBfaw. Mottwlttmeauaiatatoavalatila tottnpolilo and tnetts unat) raqsssl Yaar cmal conQnanJBStJans may ba s^Jsot topablo (QaJosuTa.

Advisory Legal Opinion - Sunshine Law, use ofwritten reports by bd. members Page 1of2

Florida Attorney GeneralAdvisory Legal Opinion

Number: INFORMAL

Date: May 21,2009Subject: Sunshine Law, use of written reports by bd. members

Ms. Marilyn Bainter

36811 North County Road 44-AEustis, Florida 32736

Dear Ms. Bainter:

The Office of Attorney General Bill McCollum has received your letterasking about your duties under the Government in the Sunshine Law,section 286.011, Florida Statutes, as a member of a hospitaldistrict's governing board.

In order for this office to formally comment upon this matter, arequest should come from the head of the public agency. As the head ofthe agency is a board, a majority of the members of that board mustrequest the opinion. The request should be submitted on the agency'sofficial letterhead (or the agency attorney's letterhead) and beaccompanied by a memorandum of law prepared by the agency attorney.

In an effort to be of assistance, however, I would note that thisoffice has stated that the use of a written report by one commissionerto inform other commissioners of a subject which will be discussed ata public meeting is not a violation of the Sunshine Law if prior tothe meeting, there is no interaction related to the report among thecommissioners. In such cases, the report, which is subject todisclosure under the Public Records Act, is not being used as asubstitute for action at a public meeting as there is no response fromor interaction among the commissioners prior to the meeting. SeeAttorney General Opinion 89-23. And see Attorney General Opinion 01-20(e-mail communication of factual background information from one citycouncil member to another is a public record and should be maintainedby the records custodian for public inspection and copying; however,such communication of information, when it does not result in theexchange of council members' comments or responses on subjectsrequiring council action, does not constitute a meeting subject to theSunshine Law).

The Government in the Sunshine Law, however, would be implicated ifthe report is circulated among board members for comments with suchcomments being provided to other members as there is interaction among

http://www.myfloridalegal.com/ago.nsf/printview/57CFF09CE84733F08525764A00653E77 5/3/2012

Advisory Legal Opinion -Sunshine Law, use of written reports by bd. members Page 2of2

the board members. See Attorney General Opinion 90-03. And seeAttorney General Opinions 96-35 and 08-07. Moreover, as this officediscussed in Attorney General Opinion 01-21 in the event that councilmembers distribute their own position papers to other council memberson the same issue would be "problematical" and may violate theSunshine Law. And see Attorney General Opinion 07-35. You may accessthe Attorney General Opinions online at:http://myfloridaleqal.com/opinions.

You may wish to review the Government in the Sunshine Manual whichdiscusses both the Government in the Sunshine Law and the PublicRecords Law. An abridged edition of the manual is available online at:http://www.myfloridalegal.com/sun.nsf/manual.

Thank you for contacting the Attorney General's Office.

Sincerely,

Joslyn WilsonAssistant Attorney General

JW/tsh

http://www.myfloridalegal.com/ago.nsf/printview/57CFF09CE84733F08525764A00653E77 5/3/2012

Advisory Legal Opinion - Sunshine Law,exchange of documents Page 1 of 4

Florida Attorney GeneralAdvisory Legal Opinion

Number: AGO 2007-35

Date: August 28, 2007Subject: Sunshine Law, exchange of documents

Mr. Timothy P. Driscoll146 Second Street North

Suite 202-A

St. Petersburg, Florida 33701

RE: GOVERNMENT IN THE SUNSHINE-MUNICIPALITIES- city commissioner

exchanging documents with other commissioners on matter that will comebefore commission, s. 286.011, Fla.

Stat.

Dear Mr. Driscoll:

On behalf of the St. Pete Beach City Commission, you ask substantiallythe following question:

May city commissioners, outside a public meeting, exchange documentsthat they wish other members of the commission to consider on matterscoming before the commission for official action, and if so, whatlimitations exist?

You have not provided this office with any specific facts; therefore,my comments must be general in nature.

Florida's Government in the Sunshine Law, section 286.011, FloridaStatutes, provides that all meetings of any board or commission of anystate agency or authority or any agency or authority of any county,municipal corporation, or political subdivision at which official actsare to be taken are declared to be public meetings open to the publicat all times. The statute has been interpreted by the courts to applyto any gathering between two or more members of a board or commissionto discuss some matter on which foreseeable action may be taken by theboard or commission.[1]

While the Sunshine Law generally applies to meetings of "two or more"members of the same board or commission,[2] the Florida Supreme Courthas stated that the Sunshine Law is to be construed "so as tofrustrate all evasive devices."[3] Thus, the courts and this officehave found that there are instances where the physical presence of twoor more members is not necessary in order to find the Sunshine Law

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applicable. For example, this office has concluded that the use ofmemoranda among members of a board or commission to avoid a publicmeeting may be a violation of the Sunshine Law, even though twomembers of the board or commission are not physically present. In sucha situation, if a memorandum reflecting the views of a board member iscirculated among the other board members with each indicating his orher approval or disapproval, upon completion of the members signingoff, the memorandum has the effect of becoming official action of theboard in violation of the Government in the Sunshine Law.[4]

This office has stated, however, that the use of a written report byone commissioner to merely inform other commissioners of a subjectwhich will be discussed at a public meeting is not a violation of theSunshine Law provided that there is no response from, or interactionrelated to the report among, the commissioners prior to the publicmeeting. In Attorney General Opinion 89-23, this office stated that insuch cases, the report, which is subject to disclosure under thePublic Records Act, is not being used as a substitute for action at apublic meeting as there is no response from or interaction among thecommissioners prior to the meeting.[5] If, however, the report iscirculated among board members for comments with such comments beingprovided to other members, there is interaction among the boardmembers which is subject to section 286.011, Florida Statutes.[6]

In Attorney General Opinion 01-21, this office was asked whether the

preparation and distribution of individual position statements on thesame subject by several city council members to all other councilmembers would constitute an interaction or exchange by the councilthat would be subject to the requirements of the Government in theSunshine Law. This office determined that such a practice wouldviolate the Sunshine Law to the extent that any such communication is

a response to another council member's statement. In reaching itsconclusion, this office noted that the city council's discussions and

deliberations on matters coming before the council must occur at aduly noticed city council meeting and the circulation of positionstatements must not be used to circumvent the requirements of the

statute.

As noted above, this office has not been provided with informationabout the documents being transmitted or how this is to beaccomplished. Based upon the above opinions, however, a commissionermay send informational material to the other commissioners outside ofa public meeting provided that there is no interaction between orresponse from the other commissioners. In order to avoid theappearance of impropriety, it may be advisable to forward suchinformation to the other commissioners rather than physically meet toexchange the materials. If the commissioners intend to exchangeindividual position papers on the same subject, this office wouldexpress the same concerns as were raised in Attorney General Opinion01-21. While it is not a direct violation of the Sunshine Law for

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members to circulate their own written position statements to othercouncil members so long as the council members avoid any discussion ordebate among themselves on these statements, the members' discussionsand deliberations on matters coming before the commission must occurat a duly noticed city commission meeting and the circulation of theseposition statements must not be used to circumvent the requirements ofthe statute. Thus, as stated in Attorney General Opinion 01-21, thisoffice would strongly discourage such a practice.

Accordingly, I am of the opinion that a city commissioner may, outsidea public meeting, send documents that the commissioner wishes othermembers of the commission to consider on matters coming before thecommission for official action, provided that there is no response

from, or interaction related to such documents among, thecommissioners prior to the public meeting.

Sincerely,

Bill McCollum

Attorney General

BM/tjw

[1] See Board of Public Instruction of Broward County v. Doran, 224So. 2d 693, 698 (Fla. 1969) (intent of the Sunshine Law is to "coverany gathering of the members where the members deal with some matteron which foreseeable action will be taken by the board").

[2] Hough v. Stembrldge, 278 So. 2d 288 (Fla. 3rd DCA, 1973). And seeCity of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354(Fla. 4th DCA 1989); Deerfield Beach Publishing, Inc. v. Robb, 530 So.2d 510 (Fla. 4th DCA 1988) (requisite to application of the SunshineLaw is a meeting between two or more public officials); and Mitchellv. School Board of Leon County, 335 So. 2d 354 (Fla. 1st DCA 1976).

[3] See, e.g., Town of Palm Beach v. Gradison, 296 So. 2d 473, 477(Fla. 1974); Blackford v. School Board of Orange County, 375 So. 2d578 (Fla. 5th DCA 1979).

[4] See Inf. Op. to the Honorable John Blair, May 29, 1973. And seeOps. Att'y Gen. Fla. 90-03 (1990) (proposed contract may not becirculated among board members for comments to be provided to othermembers, as this would be communication among the members on an issueupon which the board will take official action subject to the SunshineLaw) and 93-90 (1993) (board responsible for assessing the performanceof its chief executive officer should conduct the review and appraisalprocess in a proceeding open to the public, instead of using a reviewprocedure in which individual board members evaluate the CEO's

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performance and send their individual written comments to the boardchairman for compilation and subsequent discussion with the chief

executive officer).

[5] See also Op. Att'y Gen. Fla. 01-20 (2001) (e-mail communication of

factual background information from one city council member to anotherwhich does not result in the exchange of council members' comments orresponses on subjects requiring council action, does not constitute a

meeting subject to the Sunshine Law; e-mail, however, is a publicrecord).

[6] See, e.g., Op. Att'y Gen. Fla. 96-35 (1996), stating that a schoolboard member may prepare and circulate an informational memorandum orposition paper to other board members; however, the use of amemorandum to solicit comments from other board members or the

circulation of responsive memoranda by other board members wouldviolate the Sunshine Law.

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