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Ethics in the Sunshine. Division of State Purchasing (rev. 5/22/08). Ethics in the Sunshine. Ethics in Government The Sunshine Law Public Records. Ethics in the Sunshine. Part I Ethics in Government. Code of Ethics Authority. Article I, Section 24 Florida Constitution

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Ethics in the Sunshine

Division of State Purchasing

(rev. 5/22/08)


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Ethics in the Sunshine

  • Ethics in Government

  • The Sunshine Law

  • Public Records


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Ethics in the Sunshine

Part I

Ethics in Government


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Code of Ethics Authority

Article I, Section 24 Florida Constitution

Chapter 112, Part III, Florida Statutes

Governor Crist’s Executive Order 07-01

Governor Crist’s Code of Ethics


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Article I, Section 24 Florida Constitution

  • (a)  Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.


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Article I, Section 24 Florida Constitution

  • (b)  All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.


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Chapter 112, Part III, Florida Statutes

Code of Ethics for Public Officers and Employees

  • It is hereby declared to be the policy of the state that no officer or employee of a state agency or of a county, city, or other political subdivision of the state, and no member of the Legislature or legislative employee, shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity; or incur any obligation of any nature which is in substantial conflict with the proper discharge of his or her duties in the public interest. . … It is the intent of the Legislature that this code shall serve not only as a guide for the official conduct of public servants in this state, but also as a basis for discipline of those who violate ...


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Wester v. Belote, 103 Fla. 976, 138 So. 721 (Fla. 1931).

  • “[The laws] originated, perhaps, in the distrust of public officers whose duty it is to make public contracts, but they also serve the purpose of affording to the business men and taxpayers of the counties and other governmental subdivisions affected by them a fair opportunity to participate in the benefits flowing from such contracts, which are nowadays amongst the most important items of the present day business world.”


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Chapter 112.313, Florida Statutes

  • (2)  SOLICITATION OR ACCEPTANCE OF GIFTS.--No public officer, employee of an agency, local government attorney, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, local government attorney, or candidate would be influenced thereby.


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Chapter 112.313, Florida Statutes

  • 3)  DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators ...


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Chapter 112.313, Florida Statutes

  • (4)  UNAUTHORIZED COMPENSATION.--No public officer, employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer, employee, or local government attorney knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer, employee, or local government attorney was expected to participate in his or her official capacity.


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Chapter 112.313, Florida Statutes

  • (6)  MISUSE OF PUBLIC POSITION.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others.…


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Chapter 112.313, Florida Statutes

(9)  POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.–

-3.  No member of the Legislature, appointed state officer, or statewide elected officer shall personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or member for a period of 2 years following vacation of office. No member of the Legislature shall personally represent another person or entity for compensation during his or her term of office before any state agency other than judicial tribunals or in settlement negotiations after the filing of a lawsuit.


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(9)  POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.–

(12)  EXEMPTION.–

(b)  The business is awarded under a system of sealed, competitive bidding to the lowest or best bidder …

(e)  The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure

(f)  The total amount of the transactions in the aggregate between the business entity and the agency does not exceed $500 per calendar year.


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Governor Crist’s Executive Order 07-01

….. by accepting an elected, appointed, or other position in our state government, we have each chosen to take on the responsibility of public service dedicated to the people of Florida;

  • ….. that commitment to service must prevail in the Office of the Governor and each executive agency within its purview;


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Governor Crist’s Executive Order 07-01

  • ….. an honest, open, and ethical structure within which government decisions are made is an important factor in building the people’s trust and confidence in their government and its ability to serve the people;

  • ….. to further the goal of maximizing service by the public’s servants, the people of Florida must have access to their state government and their elected and appointed officials, our state government must be responsive to citizens who seek assistance from it, and our state government must communicate in a clear, easily understood manner.

  • ….. by virtue of the authority vested in me by Article IV, Section (1)(a) of the Florida Constitution, and all other applicable laws, do hereby promulgate the following Executive Order, to take immediate effect:


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Governor Crist’s Executive Order 07-01

  • Section 1.

  • ….. direct the immediate adoption and implementation of a Code of Ethics by the Office of the Governor. This Code of Ethics applies to all employees within the Office of the Governor, as well as the secretaries, deputy secretaries, and chiefs of staff of all executive agencies under my purview. This Code of Ethics imposes clear, understandable standards that often go beyond the statutory Code of Ethics set forth in Chapter 112, Part III, Florida Statutes

  • Each agency secretary is further directed to review and evaluate the current policies adopted at his or her agency in light of this Code of Ethics, with a view to using this Code as the base standard for his or her agency and adjusted for those unique program requirements and variables for his or her agency. Agency secretaries are to implement any agency-specific adjustments to the Code within forty-five (45) days of the date of this Order.


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Governor Crist’s Executive Order 07-01

  • Each agency secretary is further directed to designate an individual at his or her agency to act as the agency’s chief ethics officer. The agency’s ethics officer will make reasonable efforts to ensure that the employees responsible for adhering to this Code become familiar with relevant ethics, public records and open meeting requirements.

  • Each agency secretary is further directed to attend training on the subjects of ethics, public records, open meetings, records retention, equal opportunity and proper personnel procedures.


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Governor Crist’s Executive Order 07-01

  • Section 3

  • ….. create the Office of Open Government within the Office of the Governor. The Office of Open Government is charged with providing the Office of the Governor and each of the executive agencies under my purview with the guidance and tools to serve Florida with integrity and transparency.

  • ….. the Office’s primary functions will be:

    • (1) to assure full and expeditious compliance with Florida’s open government and public records laws, and

    • (2) to provide training to all executive agencies under my purview on transparency and accountability.


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Governor Crist’s Executive Order 07-01

Each agency secretary is further directed to designate a person at his or her agency who will act as the agency’s public records/open government contact person.

  • That individual will be responsible for complying with public records/open government requests and compliance at their respective agency and will also be the primary liaison between that agency and the Office of Open Government for purposes of training and compliance.


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Chapter 112 Ethics

  • Prohibits Certain Actions or Conduct

  • Restrictions on employment of relatives

  • Requires Certain Disclosures be made to the Public

  • Independent Commission on Ethics to Oversee Compliance of Chapter 112, Part III, Florida Statutes

  • Governor’s Code of Ethics, applicable to executive agencies, is often more restrictive.


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Gifts

“Gift” – Anything accepted by a person or on that person’s behalf, whether directly or indirectly, for that person’s benefit and for which no payment is made.


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Real Property

Tangible Personal Property

Intangible Personal Property

Preferential Treatment

Debt forgiveness

Transportation

Lodging

Food and Drinks

Dues and Fees

Tickets

Plants and Flowers

Personal Services

Any Thing or Service having a Value

What is a Gift?


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Salary and Benefits

Campaign Contributions

Honoraria and Expenses …see 112.3149  Solicitation and disclosure of honoraria

Honorary Memberships

Public Service Awards

Use of Public Property

Transportation for Official Business

Gifts from Professional Development or Governmental Organizations

A Gift Is Not:


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Solicitation and Acceptance of Gifts

Can I solicit

a gift?

NO!


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Solicitation and Acceptance of Gifts

When can I

accept a gift?


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Gift Acceptance

  • Any gift valued at over $25.00 (if not specifically exempted) either may not be accepted or must be reported to the Ethics Commission

  • Under the Governor’s Code of Ethics (adopted by DMS) no gift (regardless of value) may be accepted from a principal or lobbyist

  • Four Limited Exceptions:

    -Gifts from Relatives

    -Most Gifts from Personal Friends

    - On-site Consumption of Food and Drink at Functions in which Attendance is Part of Official Duties

    -Gifts Accepted by the Department as having a Public Purpose


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Reporting Requirements

COE Forms 9 and 10 (www.ethics.state.fl.us)

Employees must report and disclose any gift that has a value over $25.00, unless the gift is received from a relative.

Disclosure includes providing a description of the gift, its approximate value, the donor’s name and address, the date of receipt, and a copy of any receipt for the gift provided by the donor


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Gift Acceptance

“ ‘Relative,’ unless otherwise specified in this part, means an individual who is related to a public officer or employee as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, half sister, grandparent, great grandparent, grandchild, great grandchild, step grandparent, step great grandparent, step grandchild, step great grandchild, person who is engaged to be married to the public officer or employee or who otherwise holds himself or herself out as or is generally known as the person whom the public officer or employee intends to marry or with whom the public officer or employee intends to form a household, or any other natural person having the same legal residence as the public officer or employee.” F.S. § 112.312(21)


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Gift Acceptance

  • You receive a Ming Dynasty antique vase from your Aunt Martha as a congratulatory gift on your new position.

  • Can you accept?


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Gift Acceptance

  • It’s OK to accept

  • Value unimportant

  • No reporting required


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Gift Acceptance

You may accept gifts from a personal friend, regardless of value, provided he or she is not:

A.A lobbyist;

B.The partner, firm, employer or principal of a lobbyist;

C.A person with a pecuniary interest in a matter pending before the Department;

D.A person who provides goods or services to the Department under contract or agreement; or

E.A person seeking business with the Department


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Gift Acceptance

  • Expensive gift from a “new friend” in Tallahassee.

  • Can you accept?


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Gift Acceptance

  • Lobbyist, favors, or contracts -- NO

  • Non-lobbyist, seeking no favors or contracts -- YES

  • But: Must report if over $25.00


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Receptions

Can you attend receptions by members of your industry groups?


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RECEPTIONS

  • No restrictions on acceptance, even if valued at over $25.00, provided your attendance is a reasonable exercise of your official duties.

  • Must report if over $25.00


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LUNCH BUDDIES

Can you go to lunch with a vendor at the Governor’s Club once a month to “catch up” on things?


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LUNCHES

  • Even if each meal is less than $25.00, frequency can give rise to the appearance that lunch is being paid for in circumvention of the rules.

  • Pay for yourself!


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Agency Awards

The Department is awarded a Davis Productivity Award.

Can the Secretary accept?


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Agency Awards

An Agency Head may accept awards and other forms of recognition if a public purpose for doing so is shown.


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Spouses

What about my wife? Can she accept an expensive gift from a lobbyist or vendor?


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Spouses

No!

Any gift that cannot be received directly cannot be received indirectly


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Prior to Accepting Any Gift

NO GIFT, regardless of value, may be accepted until you answer each of these questions:


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1. Is this gift being given or accepted with the intent that my official action or judgment would be influenced by the gift?

Yes – Even if valued at under $25.00 the gift may NOT be accepted.

No – Go to next question.

Prior to Accepting Any Gift


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2. Do I know, or with the exercise of reasonable care, should I know that the gift is being given to influence my official actions or judgment?

Yes – Even if valued at under $25.00 the gift may NOT be accepted.

No – Go to next question.

Prior to Accepting Any Gift


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3. Is the value of this gift LESS than $25.00

If valued under $25.00, have I accepted several gifts, even if nominal in value, from the same source, such that on the whole it looks like I am trying to get around the Code of Ethics?

Yes – Cannot accept.

No – Okay to accept.

Prior to Accepting Any Gift


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3. Is the value of this gift LESS than $25.00

If valued over $25.00, is the gift from a relative, is it the on-site consumption of food and drink, or is it being accepted by the agency such that the value limit does not apply?

Yes – Okay to accept.

No – Cannot accept.

Prior to Accepting Any Gift


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Outside Employment

Can you serve on the board of your hometown bank?


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Outside Employment

  • No secretary or deputy secretary may have any on-going dual employment or dual compensation

  • Other SMS/SES, perhaps, but must clear with Agency Head


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Outside Employment

  • Non-profits generally OK

  • Anything that poses, or appears to pose, a conflict between private interests and public duties will not be approved!

  • Always check first


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Conflicts of Interest

A partnership in which you hold a passive interest holds the rights to land that one of the Governor’s agencies needs to buy


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Conflicts of Interest

  • Cannot participate in any official capacity in any matter that inures to your special gain or loss

  • Ought to disclose even if not participating

  • How will it look?


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Conflicts of Interest

You leave the Agency for the private sector. A vendor you worked closely with wants you to represent their interests before the Agency. Can you represent them?


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Conflicts of Interest

  • NO! SMS/SES employees may not personally represent another for compensation before the Agency for a period of two years after leaving.


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Exceptions

  • Ask General Counsel’s office at EOG

  • Ask Agency Ethics Officer

  • Always obtain prior approval


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Penalties

  • No Criminal Penalties

  • Dismissal, suspension, reprimand, demotion, reduction in or forfeiture of salary, restitution.

  • $10,000.00 fine


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When in Doubt

  • Ask yourself “how will it look?”

  • Avoid the appearance of impropriety

  • Save yourself the aggravation


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Ethics in the Sunshine

Part II

The Sunshine Law


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The Sunshine Law

  • Chapter 286, Florida Statutes – “The Government in the Sunshine Law”

  • Broad right of public access to governmental proceedings.

  • Applies to any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation or political subdivision.


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The Sunshine Law

  • Three Basic Requirements:

    -Meetings must be open to the public.

    -Meetings must be reasonably noticed.

    -Minutes must be taken.


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When is a Meeting Subject to the Sunshine Law?

  • The Sunshine law applies to all discussions or deliberations as well as any formal action taken

  • The law is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission.

  • There is no requirement that a quorum be present for a meeting to be covered under the law.


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Open Meetings

  • Cannot circumvent requirements by using:

    -Correspondence

    -Telephones

    -Email or computers

    -Alter egos or delegates


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Staff Members

Meetings of staff members are not ordinarily subject to open meeting requirements unless the members have been delegated recommendation authority.


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Application to Private Organizations

  • Receipt of state monies not enough, i.e., a mere contract for services

  • Generally not subject to the Sunshine Law unless delegated to perform some governmental function or public duty.

  • This is perhaps the most litigated area of the Sunshine Law.


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Exceptions to Open Meeting Requirements

  • No exceptions unless expressly provided by statute. Examples include

    -Security meetings

    -Litigation and settlement strategy meetings

    -Certain probable cause meetings

    -Certain collective bargaining sessions


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Exceptions to Open Meeting Requirements

These exceptions are narrowly tailored and some even require a memorialization of the meeting.

Check with the Office of the General Counsel if you believe an exemption may be applicable.


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Notice

Reasonable notice required

An agency must give notice at such time and in such manner that will enable the media and general public to attend.


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Notice Guidelines

  • Time, place and subject matter

  • Prominently displayed in agency offices

  • If of critical public concern then consider press releases and media advertising

  • If possible, make agendas available before hand


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Can the Public Memorialize the Meeting?

Yes, provided a non-obtrusive recording device is used.


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Can Meetings be held anywhere?

Meetings may not be held in areas that would tend to unreasonably restrict public access or would tend to have a “chilling effect” on the public’s willingness or desire to attend.


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Can the Public Participate?

  • If the board or commission is performing a legislative function then generally yes. (making law)

  • If the board or commission is performing an executive function then generally no. (enforcing law)


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Voting

  • May vote in writing if the ballots are preserved as public records.

  • No secret ballots

  • No pre-assigned numbers or codes to keep from identifying individuals or subjects

  • No abstentions unless there is, or appears to be a conflict of interest.


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Meeting Minutes

  • Written minutes must be taken and promptly recorded

  • Need not be verbatim

  • No requirements that meetings be video or tape recorded, but if done then must be preserved as public records.


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Penalties

  • Second degree misdemeanor

  • Removal from office

  • Civil fines not to exceed $500.00

  • Attorneys Fees


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Validity of Actions

  • Any action taken in violation of the Sunshine Law is VOID AB INITIO!

    -An intent to violate is irrelevant

  • Violations, however, can be “cured” by “independent, final action made completely in the sunshine.”

    -Must be more than merely perfunctory or ceremonial action


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Ethics in the Sunshine

Part III

Public Records


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Public Records

Article I, Section 24, Florida Constitution

Broad Constitutional Right of Access

“the breadth of the right to inspect is virtually unfettered, save for statutory exemptions.” Lorei v. Smith


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Chapter 119, FS

  • Defines Public Records

  • Regulates Public Access to Records

  • Provides Exemptions from Disclosure

  • Provides Remedies for Violations


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What is a Public Record?

(11) “Public Records” means all documents, papers, letters, maps, books, tapes, photographs, films, sounds recordings, data processing software, or other material regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Section 119.011, Florida Statutes.


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Public Records

Huh?

In other words all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge.


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Executive Branch

Legislative Branch

Judicial Branch

Counties

Municipalities

Districts

Constitutional Officers

Boards

Commissions

Other Entities Created by Law or the Constitution

Private entities acting on behalf of public agencies.

Who is Subject to the Public Records Law?


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Access to Public Records

A Member of the Public May:

  • Inspect, Examine and Copy

  • At a reasonable time

  • Under reasonable conditions

  • Access may be supervised

  • Copies upon payment of fee


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Access to Public Records

A member of the public is not required to:

  • Put a request in writing

  • Justify or explain the reason for the request

    An Agency may not

  • Impose its own restrictions on access

  • Deny a request as overbroad


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Access to Public Records

An Agency is not required to:

  • Answer questions about its public records

  • Create new records in response to requests for information

  • Reformat its records in a particular format as demanded by the requestor


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Response to Requests

No specific time limit

Reasonable time to retrieve and delete exempt portions of the record


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Fees for Copying

  • $0.15 per page (single sided)

  • $0.20 per page (double sided)

  • $1.00 per page (certification)

  • Extensive use of clerical or supervisory labor

  • Extensive use of information technology resources

  • See s.119.07(4) Florida Statutes


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Exemptions

Is there any exemption which makes the record confidential and not subject to disclosure?

  • (7)……Such person shall maintain the exempt or confidential status of that public record and shall be subject to the same penalties as the custodian of that record for public disclosure of such record.

  • (8)  An exemption from this section does not imply an exemption from s. 286.011. The exemption from s. 286.011 must be expressly provided.


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Exemptions

  • Must be expressly created by the Legislature

    - public necessity

    - no broader than necessary

    - two-thirds vote of both Houses

  • The Courts may not create exemptions!


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Exemptions

The 119 “Laundry List”

Other Statutory Provisions

“Exempt” v. “Exempt and Confidential”


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Active criminal investigative and intelligence information

Designated employee personal information

Security Systems

Victim Information

Educational records

Health and Medical information

Social Security Numbers

Attorney Work Product

Credit Card Numbers

Some Common Exemptions


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Public Records

Notes and Drafts?

No “unfinished business” exception.

Personal notes for personal use can remain private. Caveat: Not absolute and currently under review.


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Challenge to Exemption

  • Writ of Mandamus – Circuit Court Action

  • Priority over all other cases

  • Subsequent production will not moot case

  • In camera inspection

  • Determination from court

  • 48 hour stay – produce or appeal


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Remedies and Penalties

  • Attorneys Fees and Costs

  • Knowing violation

    • First Degree Misdemeanor

    • Impeachment/removal from office.


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Retention of Public Records

Department of State

http://dlis.dos.state.fl.us/index_RecordsManagers.cfm

Records Retention Schedules


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Government in the Sunshine

  • Questions

  • Comments

  • Criticism


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