Does leaking what was said in a closed shade meeting violate Florida's Sunshine Law?

Subject

Sunshine Law -- Shade Meetings

Plain-English summary

The Naples City Attorney, writing for the city council, asked what happens when a council member publicly reveals what was discussed in a closed "shade meeting." A shade meeting is the narrow exception in section 286.011(8), Florida Statutes, that lets a board meet privately with its attorney to talk about pending litigation strategy or settlement, as long as a court reporter records the session and the transcript is released once the litigation ends.

The AG's office (responding through Senior Assistant Attorney General Gerry Hammond) explained that the Sunshine Law's penalty provision, section 286.011(3), is aimed at attendance at meetings held outside the law's requirements, not at after-the-fact disclosure of what was said. So a council member who talked publicly about the closed session did not appear to violate section 286.011(3). The opinion also stressed that this office cannot definitively decide whether a violation occurred, because investigating and prosecuting Sunshine Law violations belongs to the State Attorney.

The opinion then pointed to several other statutes that might be in play, without deciding any of them: section 112.313(8) on disclosure or use of non-public information for personal gain (complaints go to the Commission on Ethics), section 839.26 on misuse of confidential information (a criminal matter for the State Attorney), and sections 112.51 and 100.361, which allow suspension and removal or recall of municipal officers. Whether the council member breached duties under local ordinances or a fiduciary duty to the city was, the AG said, outside this office's authority to determine.

Currency note

This opinion was issued in 2014. 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.

Common questions

What is a "shade meeting" in Florida?
It is a closed-door session a public board may hold with its attorney under section 286.011(8) to discuss strategy or settlement in litigation the board is actively party to. Strict conditions apply: the attorney must announce at a public meeting that advice is needed, the topic is limited to settlement or litigation-expenditure strategy, a certified court reporter records everything, public notice is given, and the transcript becomes public once the litigation concludes.

Did the council member break the Sunshine Law by talking about it?
The AG concluded that the disclosure did not appear to fall under section 286.011(3), the Sunshine Law's penalty provision, because that provision targets attending meetings held outside the open-meeting rules, not revealing what was said in a properly closed session.

Who decides whether a Sunshine Law violation actually happened?
The State Attorney for the judicial circuit where the alleged violation occurred. The AG's office explicitly said it could not definitively pass on whether a violation occurred, because investigation and prosecution of Sunshine Law violations are the province of the State Attorney.

Could the council member face any other consequences?
Possibly, under other statutes the AG identified but did not decide. The opinion mentioned the ethics rule in section 112.313(8) (complaints to the Commission on Ethics), the criminal misuse-of-confidential-information statute section 839.26 (complaints to the State Attorney), and the suspension/removal and recall provisions in sections 112.51 and 100.361.

Can a city release a shade-meeting transcript before the case is over?
The AG noted prior opinion 2013-21, which treated section 286.011(8) as a tool a board may use at its discretion rather than a prohibition on early release, and recognized that the collegial body itself could waive the exemption and release the transcript before the litigation concluded.

Background and statutory framework

Section 286.011, the Government in the Sunshine Law, requires that meetings of public boards and commissions where official action is taken be open to the public. Subsection (8) is a limited exception for attorney-client litigation strategy sessions, subject to the recording, notice, and post-litigation disclosure conditions listed in the statute. Florida courts read exceptions to the Sunshine Law narrowly to serve their specific purpose, a point the AG supported with City of Dunnellon v. Aran and School Board of Duval County v. Florida Publishing Company.

The penalty provision, section 286.011(3), makes a public officer who violates the section liable for a noncriminal infraction, and makes a board member who knowingly attends a meeting not held in accordance with the section guilty of a second-degree misdemeanor. The AG read that language as directed at how and where meetings are held, not at later disclosure of their contents.

The other statutes the opinion flagged operate in different channels: section 112.313(8) sits within the Code of Ethics and is enforced by the Commission on Ethics; section 839.26 is a criminal statute enforced by the State Attorney; and sections 112.51 and 100.361 provide the separate mechanisms of executive suspension and removal and of recall by elector petition.

Citations

• Section 286.011, Florida Statutes (including (3) and (8))
• Section 112.313(8), Florida Statutes; section 839.26, Florida Statutes
• Sections 112.51 and 100.361, Florida Statutes
• Attorney General Opinions 2013-21, 94-33, 94-64, 85-89, and 84-81
• City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995)
• School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/sunshine-law-shade-meetings
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1542

Original opinion text

Mr. Robert D. Pritt

City of Naples Attorney

Office of the City Attorney

735 Eighth Street South

Naples, Florida 34102-6796

Dear Mr. Pritt:

As City Attorney and on behalf of the Naples City Council, you have asked for assistance in determining whether the unauthorized disclosure by a council member of information discussed during a "shade meeting" pursuant to section 286.011(8), Florida Statutes, would violate the Government in the Sunshine Law or have other legal consequences. Attorney General Bondi has asked me to respond to your letter.

Section 286.011, Florida Statutes, is Florida's "Sunshine Law" requiring that meetings of governmental boards or commissions at which official actions are to be taken must be open to the public. Section 286.011(8), Florida Statutes, provides a limited exception to this general openness requirement and makes litigation strategy or settlement meetings private when they are held between a board and its attorney and the board is a party before a court or administrative agency. The statute limits the persons who may attend such a meeting, the subject of any such meeting, and the length of time the record of the meeting may be kept closed. The statute provides:

"(8) Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity's attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, provided that the following conditions are met:

(a) The entity's attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation.

(b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.

(c) The entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter's notes shall be fully transcribed and filed with the entity's clerk within a reasonable time after the meeting.

(d) The entity shall give reasonable public notice of the time and date of the attorney client session and the names of persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney client session and the names of the persons attending. At the conclusion of the attorney client session, the meeting shall be reopened, and the person chairing the meeting shall announce the termination of the session.

(e) The transcript shall be made part of the public record upon conclusion of the litigation."

As an exception to the broader provisions of the Sunshine Law, section 286.011(8), Florida Statutes, should be read strictly or narrowly to accomplish the specific purpose of the exception.[1] The purpose of this exemption is to put local governments and state agencies on an equal footing with the other parties in a lawsuit by allowing these governmental agencies to protect their theories of litigation strategy or settlement negotiations from the opposing party during the pendency of a lawsuit.[2] Recognizing the public's interest in this type of public business, however, this office will continue to read this exemption narrowly, as it would with any other specific exemption to the law.[3]

A local government is not required to meet in closed session to discuss settlement negotiations or strategy sessions relating to litigation expenditures, but may take advantage of the exception in section 286.011(8), Florida Statutes, so long as the conditions of the statute are met. As this office observed in Attorney General Opinion 2013-21, section 286.011(8)(e), Florida Statutes, "should be seen as a tool which governmental boards or commissions may employ in their discretion but the statute should not be read as a prohibition against the release of such records prior to the conclusion of . . . litigation."[4] In that Attorney General Opinion, it was the city council, as the collegial body to which the exemption applies, that was authorized to waive the exemption and release transcripts of meetings held pursuant to section 286.011(8), Florida Statutes, prior to the conclusion of litigation.

It appears that a member of the city council may have spoken in public about matters that were the subject of a closed council session to discuss settlement negotiations or strategy sessions relating to litigation expenditures. This action by the council member was done without the consent of the other members of the council. Whether this may represent a breach of the council member's duties under the city's ordinances or other local legislation or compromised the fiduciary duty the council member owes the city is beyond the authority of this office to determine. It does not appear, however, that this action would constitute a violation of section 286.011(3), Florida Statutes, which provides:

"(a)Any public officer who violates any provision of this section is guilty of a noncriminal infraction, punishable by fine not exceeding $500.

(b) Any person who is a member of a board or commission or of any state agency or authority of any county, municipal corporation, or political subdivision who knowingly violates the provisions of this section by attending a meeting not held in accordance with the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(c) Conduct which occurs outside the state which would constitute a knowing violation of this section is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083."

The statute appears to be directed at attendance at meetings held outside the directives of the statute and requirements for taking minutes and providing notice of meetings. Section 286.011(8), Florida Statutes, represents a discretionarily utilized exception to the open meetings law and I cannot say that the actions you have reported would fall under the proscriptions of section 286.011(3), Florida Statutes. However, this office cannot definitively pass on whether a violation may have occurred as investigations and prosecution of criminal and noncriminal violations of the Sunshine Law are the province of the State Attorney for the judicial circuit in which the violation may have occurred.[5]

"Other statutory provisions relating to the disclosure of privileged information which may apply to this situation may include section 112.313(8), Florida Statutes:

DISCLOSURE OR USE OF CERTAIN INFORMATION.(A current or former public officer, employee of an agency, or local government attorney may not disclose or use information not available to members of the general public and gained by reason of his or her official position, except for information relating exclusively to governmental practices, for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity."

As section 112.313, Florida Statutes, comes within the Code of Ethics for Public Officers and Employees, any complaints of violations of this statute should be forwarded to the Florida Commission on Ethics.

Section 839.26, Florida Statutes, provides:

"Misuse of confidential information.(Any public servant who, in contemplation of official action by herself or himself or by a governmental unit with which the public servant is associated, or in reliance on information to which she or he has access in her or his official capacity and which has not been made public, commits any of the following acts:

(1) Acquisition of a pecuniary interest in any property, transaction, or enterprise or gaining of any pecuniary or other benefit which may be affected by such information or official action;

(2) Speculation or wagering on the basis of such information or action; or

(3) Aiding another to do any of the foregoing,

shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083."

As a criminal statute, complaints of violations of section 839.26, Florida Statutes, should be directed to the State Attorney in the judicial circuit in which the violation is alleged to have taken place.

Finally, section 112.51, Florida Statutes, authorizes the suspension and removal of municipal officers for "malfeasance, misfeasance, neglect of duty, habitual

drunkenness, incompetence, or permanent inability to perform official duties" and section 100.361, Florida Statutes, provides for the recall of municipal governing board

members by elector petition.

I trust that these informal comments will be helpful to you in advising your client, the Naples City Council.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

[1] See City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995); accord, School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996).

[2] See also Op. Att'y Gen. Fla. 94-33 (1994), applying the exemption in s. 286.011(8), Fla. Stat., to voluntary dismissals.

[3] See, e.g., Op. Att'y Gen. Fla. 85-89 (1985), contracts for legal counsel between county and private law firm not within the exemption expressed in s. 119.07(3)(o), Fla. Stat. (1984 Supp.), for work product; and Op. Att'y Gen. 84-81 (1984), information revealing identity of victim of sexual battery or victim of child abuse contained in public records made part of court file and not specifically closed by order of court are not excepted or exempted from public disclosure and inspection.

[4] And see Op. Att'y Gen. Fla. 94-64 (1994).

[5] See s. 286.011(3)(a) - (b), Fla. Stat.