The Ledger is reporting a story under the headline: “Public records expert: School Board members violated Sunshine Law“. If you have not read it, stop, read it, and come back.

I disagree.

The question relates to an email exchange between newly elected Board member Billy Townsend and Board Chair Kay Fields. Mr. Townsend was asking for a discussion about School Board attorney Wes Bridges’ employment to be placed on the agenda for the next meeting. There was a brief back and forth about which agenda it would be on, a regular meeting or a workshop.

Florida’s Sunshine Law has two components. One requires that all government board decisions be discussed and made at a public meeting. The second requires that all public records be subject to disclosure. Clearly, only the first requirement is implicated, if at all, here.

The applicable statute is Fla. Stat. 286.011(1), which provides that:

All meetings of any board or commission … at which official acts are to be taken are declared to be public meetings open to the public at all times…

There is a similar provision in the Florida Constitution. Courts have interpreted this language and extended its meaning to conclude that it’s not just the decision that must happen at the meeting. The substantive discussion and debate leading up to a decision is part and parcel of the “official acts” that must occur at a public meeting.

Under this requirement, for example, Board members cannot debate what to actually do about Wes Bridges in emails before the meeting. They must reserve that discussion for the actual meeting so the public can be present to witness it.

But what is wrong with asking that that discussion be placed on the agenda? Is a discussion about the logistics of which agenda an item will be on an “official act” that must, itself take place at a public meeting?

The question was addressed in an informal attorney general opinion: Inf. Op. to Kessler, November 14, 2007. That opinion involves a local county commission rule regarding moving an item from a consent agenda to full agenda item for discussion:

However, if a commissioner desires to withdraw an item from the consent agenda for individual voting, he or she must make a written request to the chairman of the commission at least twenty-four hours before the meeting. Thus, the provision requires that a written record be presented to the chair of the commission indicating that an individual member of the commission wishes to take up an agenda item more thoroughly at a public meeting.

This is, essentially, what Mr. Townsend was doing. He was not expressing an opinion on the status of Bridge’s contract with Fields. He was merely asking that that discussion be placed on the agenda. Ms. Fields was responding to that, not the merits of the agenda item, itself.

The author of the attorney general opinion agreed that such communications do not violate the Sunshine Law, provided that no substantive discussion about the agenda item takes place:

This provision does not call for any discussion between members of the commission; rather, it provides a written record of an administrative request that a matter be discussed more thoroughly at a regularly scheduled public meeting. I see no violation of the Government in the Sunshine Law in requiring a written request be made of the chair of the county commission to remove items of discussion from the consent agenda. However, the members of the county commission must be mindful of the law and careful not to discuss substantive issues which may come before the council in their consideration of whether to withdraw a subject from the consent agenda.

One difference is apparent between the rule at issue there and the emails here: the rule invited no response, but Fields actually responded. However, I am aware of nothing to indicate that Fields and Townsend ever discussed their substantive opinions on the agenda item. All they were apparently discussing was the procedural question of when that item would appear on the agenda. The same logic would appear to apply.

This interpretation of the law is consistent with common sense. Did the Sunshine Law really intend to criminalize a request that something be placed on an agenda so that it can be debated in public? That seems like a pretty tortured reading of the law to me. It would be akin to making it a crime to report a crime.

This opinion is subject to a few caveats:

  1. I have not seen the actual emails. I am assuming that what is reported in the paper is accurate and thorough. My opinion would change if there was an indication of either party’s position on the underlying question in the emails.
  2. My conclusion rests on an Informal Attorney General Opinion, which is not necessarily binding, but which may provide a defense to any criminal charges that stem from this.
  3. A court may see this differently than me. Obviously, Barbara Peterson of the First Amendment Foundation disagrees with me. I would like for her to explain why, in light of Inf. Op. to Kessler, November 14, 2007, especially with regards to any criminal liability.
  4. Emails between commissioners are fraught with peril. My opinion of what the right answer is in this situation is different from what I might advise the Board to actually do. They would be well advised to eliminate each other from their respective address books entirely.

In the interest of full disclosure, I supported Townsend’s campaign financially and consider him a friend. However, I have not spoken to him about this matter in any way to date.

UPDATE 12/5/2016: The State Attorney’s Office has made a determination that there was no violation of the Sunshine Law.