Does Florida's Sunshine Law apply to an unopposed candidate for a community development district before election day?

Plain-English summary

Greg Popowitz was running unopposed for the Monterra Community Development District in Broward County in 2016. The Broward County Supervisor of Elections told him he was "elected without opposition." That phrase triggered a question: did he immediately become a member-elect of the CDD board, and therefore subject to Florida's Government in the Sunshine Law (open-meetings requirements)?

Senior Assistant AG Ellen B. Gwynn, responding on behalf of AG Pam Bondi, said no. She pointed to Attorney General Opinion 98-60, which had held that an unopposed candidate did not become a member-elect, and therefore was not subject to Sunshine Law, until the election was actually held. The 2016 letter confirmed that no statutory changes had altered the result. Once the November 2016 election occurred, Popowitz would be a member-elect and would have to follow open-meetings rules.

The letter also addressed a complicating wrinkle. The Florida Supreme Court's 2010 Advisory Opinion to the Governor re Judicial Vacancy Due to Resignation (42 So. 3d 795) had language some readers thought might mean that an unopposed candidate was elected as of the close of the qualifying period. The AG's letter explained that the 2010 advisory opinion arose in a narrow factual context (an unopposed judge who resigned after qualifying but before the election) and said nothing about section 286.011 or about CDD members. So the 2010 ruling did not change the AGO 98-60 result.

A footnote noted that the Division of Elections had reached a similar conclusion in 2010: the "date of election" depends on the specific factual context (election day, certification date, court order, or other date).

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Florida's Government in the Sunshine Law, codified at section 286.011, Florida Statutes, requires that meetings of a public board or commission, where official acts are to be taken, be open to the public. The law applies to members of public bodies and, at least in some circumstances, to "members-elect" who have been chosen but not yet seated. The animating concern is that decisions can be effectively made at the member-elect stage, before formal seating, if those discussions are insulated from public view.

The line between "candidate" and "member-elect" matters because Sunshine Law applies to one and not the other. Two AG opinions had set the line:

• Op. Att'y Gen. Fla. 92-5 (1992): non-incumbent candidates are outside the scope of section 286.011 prior to election day.
• Op. Att'y Gen. Fla. 98-60 (1998): an unopposed candidate is also outside the Sunshine Law's reach until the election is actually held, despite being characterized as "elected without opposition" in some statutory provisions.

The relevant election statutes were sections 101.151(7) and 105.051(1)(c), Florida Statutes. Section 105.051(1)(c) provides that an unopposed candidate "is considered to have voted for himself or herself" and is deemed elected to the office, language that creates ambiguity about when the election takes effect. AGO 98-60 (and this 2016 letter) read those provisions to mean that the formal election date governs.

Hough v. Stembridge, 278 So. 2d 288 (Fla. 1973), the supporting Florida Supreme Court case, established that members-elect of a public body are subject to Sunshine Law in their pre-seating discussions. The post-election trigger point did not change in the years between AGO 98-60 (1998) and this 2016 letter; section 286.011's text and the two election statutes remained substantively unchanged.

Common questions

Q: At the time of this opinion, did Sunshine Law apply to an unopposed CDD candidate before election day?
A: No. AGO 98-60, reaffirmed here, said no. The candidate became subject to Sunshine Law only after the actual election date.

Q: What changed after election day?
A: The candidate became a "member-elect" and Sunshine Law attached. Pre-seating discussions among members-elect about CDD business had to be conducted in noticed, open meetings.

Q: Did the 2010 Judicial Vacancy advisory opinion change anything?
A: No. The court was addressing whether the Governor could appoint a replacement when an unopposed judge resigned after qualifying but before the election. The case did not interpret section 286.011 and did not change how AGO 98-60 applied to local-board candidates.

Q: Did the Division of Elections weigh in on when a candidate is 'officially elected'?
A: Yes. In Div. of Elections Op. 10-09 (July 26, 2010), the Division concluded that the "date of a candidate's election to office could be deemed to be either the date specified by a court in an election case, election day itself, the date the final canvassing board certifies the election results, or some other date, depending upon the particular factual situation involved." So the Division agreed there was no single answer; context matters.

Q: What was AGO 98-60 in summary?
A: It held that a candidate who is unopposed is not considered a member-elect subject to the Government in the Sunshine Law until the election has been held. This 2016 letter confirmed it remained good law and applied to the CDD context.

Q: Why is the line between candidate and member-elect important to community development districts?
A: CDDs handle infrastructure financing, special assessments, and other matters with real dollar stakes. Once the Sunshine Law attaches, decisions among members-elect about budgets, contracts, and policy have to be made in noticed open meetings, not private conversations.

Citations and references

Cases:

• Hough v. Stembridge, 278 So. 2d 288 (Fla. 1973) (Florida Supreme Court)
• Advisory Opinion to the Governor re Judicial Vacancy Due to Resignation, 42 So. 3d 795 (Fla. 2010) (Florida Supreme Court)

Statutes:

• § 286.011, Fla. Stat. (Government in the Sunshine Law)
• § 101.151(7), Fla. Stat.
• § 105.051(1)(c), Fla. Stat.

Prior AG opinions referenced:

• Op. Att'y Gen. Fla. 92-5 (1992)
• Op. Att'y Gen. Fla. 98-60 (1998) (foundational opinion)

Other authority:

• Div. of Elections Op. 10-09 (July 26, 2010)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/candidates-member-elect-sunshine-law
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1507

Original opinion text

Mr. Greg Popowitz

3964 NW 82 Drive

Cooper City, Florida 33024

Dear Mr. Popowitz:

This is in response to your letter sent July 28, 2016, asking Attorney General Pam Bondi whether, as an unopposed candidate seeking election to a community development district, you are subject to the open-meetings law prior to election day. Attorney General Bondi has asked me to respond to your question.

You state that you are running for the Monterra Community Development District and that the election will be held in November 2016. The Broward County Supervisor of Elections informed you that you are unopposed and thus you are considered "elected without opposition."

As a result of the election, you will be a member-elect of the community development district board, subject to the open-meetings law found in section 286.011, Florida Statutes.[1] As you acknowledge, this office previously stated in Attorney General Opinion 98-60 that a candidate who is unopposed is not considered to be a member-elect subject to the Government in the Sunshine law until the election has been held.[2]

You ask whether Attorney General Opinion 98-60 is still applicable in light of any statutory revisions that may have been made since it was issued. There have been no substantive changes to the language of sections 101.151(7) and 105.051(1)(c), Florida Statutes, that apply to your situation.[3] Accordingly, in light of the facts you have provided, Attorney General Opinion 98-60 continues to constitute this office's statement of the law on this question.[4] Attorney General Opinions are, by statute, advisory rather than binding, and constitute this office's best legal advice on the particular question presented.

Sincerely,

Ellen B. Gwynn

Senior Assistant Attorney General

[1] See Hough v. Stembridge, 278 So. 2d 288, 289 (Fla. 1973).

[2] This office has also specifically excluded non-incumbent candidates from the scope of section 286.011, Florida Statutes, prior to election day. Op. Att'y Gen. Fla. 92-5 (1992).

[3] You also express concern about Advisory Opinion to the Governor re Judicial Vacancy Due to Resignation, 42 So. 3d 795 (Fla. 2010), and whether the Florida Supreme Court can be considered to have found an unopposed judicial candidate to have been elected as of the close of the qualifying period. Without offering an interpretation of the court's language, I note that the court was addressing the particular situation of a judge who was unopposed yet had resigned after the qualifying period had ended and before the election, but who intended to resume his place on the bench during the next term by virtue of his unopposed election. The issue was whether the governor was instead permitted to appoint a replacement. The case did not involve section 286.011, Florida Statutes, much less its application to a member-elect of a local board.

[4] In 2010, the Division of Elections was asked to provide a "clear definition as to the date on which a candidate is officially elected to office." After considering the various statutes involved, the Advisory Opinion, id., and certain Attorney General Opinions, the Division concluded that the date of a candidate's election to office could be deemed to be either the date specified by a court in an election case, election day itself, the date the final canvassing board certifies the election results, or some other date, depending upon the particular factual situation involved. Div. of Elections Op. 10-09 (July 26, 2010).