PB: SDM Disagrees With Village Attorney Boutsis

by SDM

SDM, in our continuing obsession of the month, will continue to disagree with Palmetto Bay’s eminent village attorney on a very important and relevant component of the Florida Sunshine Law.

As a predicate, let us say that the village attorney is understandably interpreting the law most favorably to the council, rather than most favorably toward open records. It is understandable given her client’s (Mayor Stanczyk’s) preference for non-disclosure.

But fundamentally, Ms. Boutsis is not advising her client properly regarding the council’s prerogatives and limitations under the Sunshine Law. It is important to understand that the exemption provided to the village council is permissive in one sense: the council, according to the statute, “may meet in private with the entity’s attorney to discuss pending litigation…” Note that the statute does not require a municipality to meet in private in a shade session; the legislature merely grants the municipality the option to do so.

Now, let’s take a look at the village attorney’s verbatim recommendation from Wednesday night’s council meeting. SDM highlighted two sections for further discussion:

BOUTSIS: (17:00) The only concern I have – and I haven’t found the cases on any of this because I think we’re in a bit of a new territory, in the sense of…we’ve had 4 cases or 5 appeals, between appeals and civil litigation all tied up together and that’s been part of the process – having said that, the only thing I can direct you on is that the state law is written…you either have a shade session or not and if you have a shade session it [i.e., the release of the transcripts] should be at the conclusion of the litigation. After that, it is your choice to do what you decide to do, but the clear direction of the state legislature that you have this exemption through to the end of the litigation. The end of the litigation, ordinarily, is that final judgment. (17:51)

SDM believes that the concept that shade session transcripts must be or should be released only at the conclusion of the litigation is not supported by the statute. The statute says the municipality must maintain a transcript and that the transcript “shall be made part of the public record upon conclusion of the litigation.”

Ms. Boutsis seems to read this language to mean that the only time the transcript can be released is at the conclusion of the litigation. In other words, once the council decides to hold a shade session, it is somehow barred from releasing the transcript until the conclusion of the litigation. Of course, she cites no cases supporting such a claim because there aren’t any in existence…and for good reason.

For those of you who like this stuff, you may want to read the Florida Attorney General Opinion No. 94-33, which addressed the question of whether a municipality, which had reason to believe that its adversary would voluntarily dismiss its case after the municipality met in a shade session for purpose of re-filing the litigation after reading the transcripts, could withhold the transcripts even though the litigation had concluded (because of the dismissal). The Attorney General concluded as follows:

Accordingly, it is my opinion that to give effect to the purpose of section 286.011(8), Florida Statutes, a public agency may maintain the confidentiality of a record of a strategy or settlement meeting between a public agency and its attorney until the suit is dismissed with prejudice or the applicable statute of limitations has run. Emphasis added by SDM.

Since there is no case law on point, an Attorney General’s opinion carries lots of weight. Here, the A.G. is saying that the municipality has discretion on when to release the transcript under these facts. She did not say that the municipality “shall release the transcript” upon dismissal. Her opinion is logical since the exemption is a tool the legislature granted to municipalities, but it is not a cudgel.

Another opinion, No. 94-64, relates to releasing transcripts after settlement but before the litigation has concluded. The A.G. said (note the use of the word “may”):

Litigation that is ongoing but temporarily suspended pursuant to a stipulation for settlement has not been concluded for purposes of section 286.011(8), Florida Statutes, and a transcript of meetings held between the city and its attorney to discuss such litigation may be kept confidential until conclusion of the litigation. Emphasis added by SDM.

There is really no other reasonable reading of this opinion other than the municipality can either keep the records confidential or release them, as the city fathers and mothers see fit.

SDM happens to agree with Ms. Boutsis that “the clear direction of the state legislature that you have this exemption through to the end of the litigation.” Where we diverge is on the question of whether the village has the option of releasing its transcripts whenever a majority of the council decides to do so.

Opining that the council must only release transcripts at the conclusion of the litigation violates the Sunshine Law’s basic principle that the public be granted the greatest access possible under our state’s constitution and laws.

SDM Says: The reason to release the Palmer transcripts is that the public – more specifically, the residents and taxpayers of Palmetto Bay – have sufficient reason to be concerned about how the village leadership handled this litigation in the past and their past actions are a good indicator as to what may be motivating their future decisions.

In short, had this litigation not become such a clusterf*** -both politically and legally - most of us would have let you deal with it. But information has been leaking like a sieve from these sessions, and so now we are forced to be concerned about what you are doing behind closed doors.

Lastly, some of us – or at least those of us here at SDM based on our reading of the Palmer transcripts – believe your lawyer is letting you run well outside the statute’s limitations. You are keeping relevant information from us and you should not be allowed to do so anymore.

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Below is the full text of the Sunshine Law exemption that authorizes the use of shade sessions:

(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.

§ 286.011, Fla. Stat. Ann.

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