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2015 11 17 Memo re: Sunshine + Justin York Decline Benson Request to Resign PDF Print E-mail
Written by Justin York   
Wednesday, 25 November 2015

Memorandum

to:

SEMINOLE SOIL AND WATER CONSERVATION DISTRICT

from:

JUSTIN K. YORK, ESQ. – DISTRICT SUPERVISOR – GROUP 3

subject:

sunshine/ BYLAWS

date:

November 17, 2015

cc:

 

 

 

At our last meeting, concern was expressed that our District was not in compliance with Florida’s Sunshine Law for a myriad of reasons. Having had the opportunity to consult with experienced counsel and research the relevant statutes and opinions of the Attorney General’s Office, I can now say with confidence that indeed our District has complied with Florida’ Sunshine Law.

Agendas

To begin with, I referenced the Government in the Sunshine Manual published by the Florida’s Attorney General’s Office with input from the First Amendment Foundation Board of Trustees.

First, the Sunshine Law does not mandate that an agency provide notice of each item to be discussed via a published agenda. The Attorney General’s Office has recommended the publication of an agenda if available. At the same time, the courts have rejected a requirement that agendas be posted and found that posting an agenda was not necessary. Yarbrough v. Young, 462 So. 2d 515 (Fla. 1st DCA 1985). Even in situations where a press report is inaccurate with regard to the subject of the meeting, agencies are not required to postpone their meetings. Id. In the absence of a published agenda, agencies are even authorized to use consent agendas and procedures. It also appears that the agencies may proceed to meet without the use of an agenda at all.

As applied to our District, our agendas have been publicized shortly before the meetings this past year. They have been typically general. Nonetheless, our District has technically exceeded the requirements of the Sunshine Law.

Meeting Minutes

Section 286.011(2) of Florida Statutes require that the minutes of a public board be “promptly recorded” and “open to public inspection.” This includes workshop meeting minutes. AGOs 08-65 and 74-62.

According to AGO 82-47, the term “minutes” as used in Section 286.011 contemplates a brief summary or series of brief notes or memoranda reflecting the events of the meeting. A verbatim transcript is not required. This year, our minutes have been precisely that: brief notes and memoranda reflecting the events of the meeting. As an example from outside our District, I have obtained copies of the Orange County Soil and Water Conservation District; their minutes are similar in that they are brief notes reflecting the meeting’s events.

Now, as I mentioned in a prior email (for the public record), according to Attorney General Opinion’s 02-51 and 74-294, draft minutes of a board meeting may be circulated to individual board members for corrections and studying prior to approval by the board, so long as any changes, corrections or deletions are discussed and adopted during the public meeting when the board adopts its minutes.  

However, on this issue, I had with Catherine Reischmann, a highly respected local government attorney. In fact, she is the City Attorney for the cities of Lake Mary and Casselberry, and she has served as the General Counsel for Seminole State College. She explained to me that we cannot get emails from other Board members regarding Board business except for “position papers” where we do not reply or collate the responses. She did not believe it would be good practice for changes to be emailed to the Secretary, even if the changes were not relayed among the Board or if no changes were made prior to a duly noticed meeting. Personally, from my experience with other public boards, typically staff, say of a city or county, prepares minutes from recordings. Those minutes are made available to the members of the board prior to the meeting for their review and approval. Considering what Ms. Reischmann has told me and my experience, I believe the distinction is that we do not have staff to circulate minutes to Board members independent of Board member to Board member communication.

During my conference and emails with Ms. Reischmann, she confirmed that based on our practices with minutes and agenda, we have complied with the Sunshine Law.  

I also conferenced with Ms. Pat Gleason, special counsel for open government in the Office of the Attorney General at Ms. Reischmann’s suggestion. Ms. Gleason is considered a foremost expert on the subject and the author of the Government in the Sunshine Manual I referenced earlier, which is also publicized on the Florida Bar as the authority on the Sunshine Law. As I did with Ms. Reischmann, I relayed in detail our practices with agendas and minutes, and she did not believe there was any violation of the Sunshine Law, now or in the past.

Ms. Gleason did however make a suggestion that I would now relay to the Board. Due to the desired level of specificity requested, I believe we should tape record our meetings, either independently or utilizing the system in place in the Longwood city chambers. We are not required by the Sunshine Law to do so but it may be good practice. That way, we can have a record of everything said during a meeting; the recording can then be reduced to writing by the Secretary and provided to the Board. I believe this will be more effective than any individual manually recording statements by the Board or the public as we have done in recent years. Should there be any dispute about omitted statements or erroneous statements, the recording can be referenced to resolve the issue in a timely fashion. It is my understanding this was done in the past; why it was not continued, I do not know. We also can consider live streaming our meetings if technology permits and/or video record our meetings and place those recordings on our website. However, I would caution that these recordings cannot be substituted for minutes.

Finally, there has been much discussion in the past about the publication of approved minutes on our website. As I have said before, and as has been confirmed by Ms. Gleason and Ms. Reischmann, there is no legal requirement that the Board publish its minutes on our website under the Sunshine Law. While I believe it is a good practice to publish approved minutes, at no point have we ever hazarded a violation of the Sunshine Law due to non-publication of minutes. I would mention again that if we adopt the practice of audio recording of minutes, we can avoid delays over alleged omissions of statements made and approve finalized minutes for website publication.

 

In sum, I hope these findings will allay concern on the part of my fellow Supervisors and insure them that we have complied with the Sunshine Law. I also hope that it can be a springboard to continue going above and beyond the requirements of the Sunshine Law.

I now move that we resume audio recording meetings of the Seminole Soil and Water Conservation District.

Bylaws – Secretary Duties

As we have now had the opportunity to discuss the Sunshine Law, I understand there is a deep desire on this Board to make sure we not only comply with the Law but exceed its requirements for the benefit of the public. But, I implore the Board not to selectively follow laws which govern this organization. We must also follow our Bylaws.

These bylaws were established by the Board in 2006 to control the actions of its members. Under the paragraph entitled “Governing Body,” it states that this District shall be administered by the Board of five Supervisors, duly elected under provisions of chapter 582.18 of Florida Statutes. As your bylaws and Florida Statutes make clear, each Supervisor holds equal authority under this Board; no Supervisor has any right to diminish the authority of the other.

Continuing, the Bylaws state that at the first meeting, the five Supervisors will elect from among themselves a chairperson, a vice chairperson, a secretary, a treasurer and a public relations officer to hold office for the term of one year. It is clear the only persons who can hold these positions on the Board are duly elected Supervisors.  Our Handbook, while not binding, it is clearly stated on page 25 that only Supervisors can hold these positions.

The Bylaws continue, stating what specific duties each position has. As it relates to our last meeting, it is the responsibility of the Secretary for the minutes of this Board. It also provides that the Board can assign additional duties to the Secretary. In fact, each officer position can be assigned additional duties by the Board; but nowhere does it state any Supervisor, who again stands on equal footing with the others, can transfer or diminish the responsibilities of the other.

So in sum, on this issue, the prior motion removing my responsibilities as Secretary with regards to minutes and agendas was not proper under the letter or spirit of our Bylaws. I would also add that while our Board can aspire to continue exceeding the Sunshine Law’s requirements, we were indeed in compliance.

Hence, I moved that the Board affirm that the Secretary remains responsible for the recording of minutes at duly noticed meetings of the Board.

In response to correspondence from the Chair, I see no reason to resign as she has requested.

 

 

 

Last Updated ( Tuesday, 02 February 2016 )
 
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