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Here’s The Scoop … The February Caribbean Party Is Off … For Now … Is It Time To Let The Sunshine In? …


Dear Readers …apparently the $6,000 Feb. 23rd Caribbean party is off …for now …. The Town Manager contacted the commission today to report the following (a public record due to being sent electronically) … The question this writer had upon hearing once again of this Ad Hoc “Group” that is made up of those unknown to the taxpayers footing the bill as well as the commission was don’t they fall under the Florida Sunshine Laws?… I looked it up and found the following information posted below the TM’s email… It appears to me that they could fall under it from what we’ve heard about them thus far …If you look at b. – the fact-finding committees the fine line is if they only gather information but are not involved in the decision making but there is this portion of a decision made … “the team was authorized to do more than mere fact-finding in that it would be “participating in the decision-making process by accepting some options while rejecting others for presentment of the final negotiations to the city commission.” … Was this the case in the Caribbean party planned by the group and will they do even more in the process in the future?… I believe this Ad Hoc Group should be made known to the public with their meetings posted and their minutes a public record…especially if it’s my money they are spending…. Please take note that while the TM and her Asst. to the TM state the following concerning the future plans this Ad Hoc Group wants …”Town staff will be working with a LBTS marketing firm to develop the marketing plan for that.” and to deal with retailers west of A1A …”We are going to need some professional assistance to help us with the retailers as that will be time-intensive and we just don’t have the staff time to handle it. We will work on finding a company that can assist us with # 4.” (the west Comm. businesses) … More companies and more consultants… How come we don’t have enough staff?… We have an abundance of staff with very prestigious titles for a town this size and besides on Tuesday night there seemed to be enough staff to do the Feb. 23rd Caribbean party!… The next Commission meeting should include the names of those in the Ad Hoc Marketing “group” as well as their minutes to date with all future meetings distributed to the Commission in their monthly backup as well as giving ample notice of this group’s upcoming meetings to them and the public…

“From: Connie Hoffmann [mailto:[email protected]]
Sent: Thursday, December 15, 2011 12:55 PM
To: Birute Ann Clottey; Chris Vincent; Roseann Minnet; Scot Sasser; stuart dodd; Stuart Dodd
Cc: [email protected] ; Pat Himelberger
Subject: February Special Event & Other Marketing Activities


We met with the Marketing Ad Hoc Group this morning and, with the short time frame ahead of us and the Commission’s suggestion that we come up with a different theme for the new February event, it was agreed that there wasn’t sufficient time to re-theme the event and pull off a quality event. Instead, the group suggested we:

1) Promote the events that are already planned for that week (Taste of the Beach, Friday night’s Aruba pig roast and Village Grille’s Jazz on the Square, Saturday’s Alley Oop Skim boarding and Dance Contest and Athena’s Music event) under the umbrella title of “Festival by the Sea”. Town staff will be working with a LBTS marketing firm to develop the marketing plan for that.

2) Concentrate on planning the June program to fill hotel rooms and marketing LBTS as a shore diving destination.

3) Hold a new event in February of 2013, which will give us plenty of time to assure it’s a great event.

4) Start working with the retailers on the western part of Commercial Boulevard on a program to stimulate business activity there.

I think that is a great plan and one that is in keeping with the Town Commission’s goals, so we will proceed unless the Commission directs me to the contrary. I will include this information in my Town Manager’s report in January so it is known to the general public.

We are going to need some professional assistance to help us with the retailers as that will be time-intensive and we just don’t have the staff time to handle it. We will work on finding a company that can assist us with # 4.

I am copying Judy Swaggerty on this email so she knows the Town will not be using their tent this year and so that she can convey to the Chamber’s Board of Directors what we are planning.

Pat, please advise the people on our business mailing list who were not able to attend today’s meeting of this plan, too.”

Excerpts from the Office of the Attorney General of Florida -Pam Biondi

“Government-in-the-Sunshine Manual
Chapter updated: 01/14/2011
What agencies are covered by the Sunshine Law?

2. Are advisory boards which make recommendations or committees established only for fact-finding subject to the Sunshine Law?

a. Publicly created advisory boards which make recommendations

Advisory boards created pursuant to law or ordinance or otherwise established by public agencies are subject to the Sunshine Law, even though their recommendations are not binding upon the entities that create them. See Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974) (citizen planning committee appointed by city council to assist in revision of zoning ordinances subject to Sunshine Law). The Gradison court, concluding that the committee served as the alter ego of the council in making tentative decisions, stated that “any committee established by the Town Council to act in any type of advisory capacity would be subject to the provisions of the government in the sunshine law.” Id. at 476. Accord Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535 So. 2d 694, 695 (Fla. 3d DCA 1988) (committee which compiled a report that was perfunctorily accepted by the board made a significant ruling affecting decision-making process and was subject to s. 286.011; “ad hoc advisory board, even if its power is limited to making recommendations to a public agency and even if it possesses no authority to bind the agency in any way, is subject to the Sunshine Law”); Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 869 (Fla. 3d DCA 1994) (committee established by county commission to negotiate lease agreement subject to s. 286.011: “the Sunshine Law equally binds all members of governmental bodies, be they advisory committee members or elected officials”); and Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (Sunshine Law applies to site plan review committee created by county ordinance to serve in an advisory capacity to the county manager).

The Attorney General’s Office has issued numerous opinions discussing the application of the Sunshine Law to advisory committees. The following are some of the advisory committees which have been found to be subject to the Sunshine Law:

community issues advisory bodies–AGOs 98-13 (citizen advisory committee appointed by city council to make recommendations to the council regarding city government and city services), 93-41 (criminal justice commission established by county ordinance to develop and make recommendations on criminal justice issues in the county), and 85-55 (community certification committee organized by city to act on its behalf in seeking designation of city as a blue chip community under a Department of Commerce program);

employee or personnel advisory bodies–AGOs 96-32 (employee advisory committee established pursuant to special law), 92-26 (committee responsible for making recommendations to city council on personnel matters), and 84-70 (grievance committees established pursuant to county personnel manual and responsible for bringing about “a fair and equitable settlement of the complaint”);

education advisory bodies–AGOs 03-28 (business assistance center advisory council created by community college board of trustees), 01-84 (school advisory councils created pursuant to former s. 229.58 [now s. 1001.452], F.S.), and 74-­267 (Council of Deans appointed by state university president);

legislation implementation advisory bodies–AGOs 92-79 (advisory committee authorized by statute to assist state agency with the implementation of legislation), and 85-76 (ad hoc committee appointed by mayor for purpose of making recommendations concerning legislation);

planning or property acquisition advisory bodies–AGOs 05-07 (lake restoration council legislatively created to advise water management district board), 02-24 (vegetation committee created by city code to make recommendations to city council and planning department regarding vegetation and proposed development), and 86-51 (land selection committee appointed by water management district to create proposed land acquisition list).

The Sunshine Law applies to advisory committees appointed by a single public official as well as those appointed by a collegial board. See, e.g., Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (Sunshine Law applies to ad hoc advisory committee appointed by university president to screen applications and make recommendations for position of law school dean as committee, in deciding which applicants to reject from further consideration, performed a policy-based, decision-making function); Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997) (committee established by community college purchasing director to consider and rank various contract proposals must meet in the Sunshine); and Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979) (Sunshine Law governs advisory group created by city manager to assist in screening applications and to recommend several applicants for the position of chief of police). Accord AGOs 05-05 (fact that advisory group was created by chief of police and not city commission and its recommendations were made to police chief would not remove group from ambit of the Sunshine Law), 87-42 (ad hoc committee appointed by mayor to meet with Chamber of Commerce and draft proposal for transfer of city property); and Inf. Op. to Lamar, August 2, 1993 (transition team made up of citizens appointed by mayor to make recommendations on city government’s reorganization).

b. Fact-finding committees

A limited exception to the applicability of the Sunshine Law to advisory committees has been recognized for advisory committees established for fact-finding only. When a committee has been established strictly for, and conducts only, fact-finding activities, i.e., strictly information gathering and reporting, the activities of that committee are not subject to s. 286.011, F.S. Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985). Accord AGO 95-­06 (when a group, on behalf of a public entity, functions solely as a fact-finder or information gatherer with no decision-making authority, no “board or commission” subject to the Sunshine Law is created). “In determining whether a committee is subject to the Sunshine Law, the actual function of the committee must be scrutinized to determine whether It is exercising part of the decision-making function by sorting through options and making recommendations to the governmental body.” Inf. Op. to Randolph, June 10, 2010.

For example, the court in Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976), held that a fact-finding committee appointed by a community college president to report to him on employee working conditions was not subject to the Sunshine Law. And see Wood v. Marston, 442 So. 2d 934 (Fla. 1983); and Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (Sunshine Law did not apply to informal meetings of staff where the discussions were “merely informational,” where none of the individuals attending the meetings had any decision-making authority during the meetings, and where no formal action was taken or could have been taken at the meetings).

This ‘fact-finding’ exception, however, applies only to advisory committees and not to boards that have “ultimate decisionmaking authority.” See Finch v. Seminole County School Board, 995 So. 2d 1068 (Fla. 5th DCA 2008), holding that the fact-finding exception did not apply to a school board as the ultimate decision-making authority; thus the board could not take a fact-finding tour without complying with the Sunshine Law even though school board members were separated from each other by several rows of seats, did not discuss their preferences or opinions, and no vote was taken during the trip.

When a committee has a decision-making function in addition to fact-finding, the Sunshine Law is applicable. See Wood v. Marston, supra at 938, recognizing that while a “search and screen” committee appointed by a university president had a fact-gathering role in soliciting and compiling applications, the committee also “had an equally undisputed decision-making function in screening the applicants” by deciding which of the applicants to reject from further consideration, and thus was subject to the Sunshine Law. And see Roscow v. Abreu, No. 03-CA-1833 (Fla. 2d Cir. Ct. August 6, 2004) (committee created by the state department of transportation and composed of officials from state, local and federal agencies was subject to the Sunshine Law because the committee was responsible for screening and evaluating potential corridors and alignments for a possible expansion of the Suncoast Parkway).

Similarly, in AGO 94-21, the Attorney General’s Office advised that the Sunshine Law governed the meetings of a negotiating team that was created by a city commission to negotiate with a sports organization on behalf of the city. Even though the resolution creating the team provided that the negotiations were subject to ratification and approval by the city commission, the team was authorized to do more than mere fact-finding in that it would be “participating in the decision-making process by accepting some options while rejecting others for presentment of the final negotiations to the city commission.” Id.”

more to come….

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