What Can and Cannot Happen Behind Closed Doors

Another Special Meeting today behind closed doors. This one for the Commission to meet with the City Attorney and outside counsel regarding the City's suit against our sub-regional sewer customers, the City of Atlantis et al. Also present will be the Acting City Manager, Steve Carr, who I hope is there more in his capacity as Finance Director. The purpose of these kinds of closed door meetings is strictly limited to discussion on settlement negotiations or strategy related to the cost of litigation. See Here

Any other kind of discussion related to this, or any pending litigation, is NOT exempt from Sunshine. Let me say that again: Discussion at closed door meetings is STRICTLY LIMITED to discussion on settlement negotiation or strategy related to the cost of litigation. NO DECISIVE ACTION, may be taken. That means no voting. A decision to settle a case, for a certain amount of money, under a certain set of circumstances, is a decision which must be voted upon in a public meeting. 

We won't know what was discussed in this or any closed door Special Meeting until after the litigation has concluded. At that point the verbatim transcript is available to the public. 

Here's what the Sunshine Manual has to say:


Section 286.011(8)(b), F.S., states that the subject matter of the meeting shall be confi ned to settlement negotiations or strategy sessions related to litigation expenditures. If a board goes beyond the "strict parameters of settlement negotiations and strategy sessions related to litigation expenditures" and takes "decisive action," a violation of the Sunshine Law results. Zorc v. City of Vero Beach, 722 So. 2d at 900. And see, AGO 99-37 (closed meeting exemption may be used only when the attorney for a governmental entity seeks advice on settlement negotiations or strategy relating to litigation expenditures; such meetings should not be used to finalize action or discuss matters outside these two narrowly prescribed areas). Accord, AGO 04-35.

The legislative history of the exemption indicates that it was intended to apply only to discussions, rather than final action, relating to settlement negotiations or litigation expenditures. See, Staff of Fla. H.R. Comm. on Gov't Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement 2 (Fla. State Archives), noting at p. 3: "No final decisions on litigation matters can be voted on during these private, attorney-client strategy meetings.

The decision to settle a case, for a certain amount of money, under certain conditions is a decision which must be voted upon in a public meeting." Thus, "[t]he settlement of a case is exactly that type of final decision contemplated by the drafters of section 286.011(8) which must be voted upon in the sunshine." Zorc v. City of Vero Beach, 722 So. 2d at 901. See also, Freeman v. Times Publishing Company, 696 So. 2d 427 (Fla. 2d DCA 1997) (discussion of methods or options to achieve continuing compliance with a long-standing federal desegregation mandate [such as whether to modify the boundaries of a school zone to achieve racial balance] must be held in the sunshine). Compare, Bruckner v. City of Dania Beach, 823 So. 2d 167, 172 (Fla. 4th DCA 2002) (closed city commission meeting to discuss various options to settle a lawsuit involving a challenge to a city resolution, including modification of the resolution, authorized because the commission "neither voted, took official action to amend the resolution, nor did it formally decide to settle thelitigation"); and Brown v. City of Lauderhill, 654 So. 2d 302, 303 (Fla. 4th DCA 1995) (closed-door session betweencity attorney and board to discuss claims for attorney's fees, authorized).


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