I CALL TO ORDER

The meeting was opened by Mayor Anita T. Cereceda at 1:10 P.M.

on Friday, February 23, 1996.

In attendance at the meeting were Mayor and Council Member

Anita T. Cereceda; Vice Mayor and Council Member; Ted Fitzsimons; Interim

Town Manager Marsha Segal-George and Council Members Rusty Isler, Ray

Murphy and Garr Reynolds. Town Attorney Richard Roosa was also in

attendance.

Mayor Cereceda announced that there would be no public input at

this meeting and that it was strictly an educational workshop for the Council.

II PRESENTATION BY ROBERT PRITT,

CITY ATTORNEY, CITY OF SANIBEL

Mr. Pritt passed out pages for reference to each council member. Mr. Pritt then advised that it was important to have a workshop on Florida law whenever possible because the laws change once a year when the legislative body is in session, at least in the ethics laws and possibly in the government and sunshine laws.

A. Government and Sunshine Law

This law is easy to say and hard to obey. For members of the same public commission, or in this case the town council, it has to do with their interrelationship. When the town council has other boards and commissions, it will have to know how to function and operate with them. Except in an open meeting, council members may not communicate with each other concerning matters which may come before the council . This only applies within the council itself. There would be an exception if one of the members is delegated the authority by the other members to actually act on behalf of the town council. This is okay as long as it is only fact finding and reporting back to the board. It could even apply to a city manager's committee if the city manager is delegated the authority by the council. It is not okay if the function is only to advise in decision making. If the city manager takes her legislative powers, along with the authority of all the council members, and gives them to one of the council members and says that he is to go out and do something that is binding on the city, then those negotiations could trigger a government and sunshine situation. You have to be a little cautious about doing that. Be careful that you are not actually delegating the authority of the city to a liaison.

The statute says to actually have a meeting. Anything that you can't do directly, you are prohibited by law from doing indirectly. Can you write a report and send it to other members of a commission? Occasionally you can, but you cannot circulate a memo for each person to sign off and give comments. This would constitute a meeting that is being done indirectly instead of directly.

No council member should tell another council member a third party's views on a matter, in other words, serve as a conduit of information.

Matters before a council refers to matters currently before a council and also matters that will come before a council in the foreseeable future. Foreseeable future is a tough concept -- is it a year? two years? When it comes to a comprehensive plan, you could be planning that for the next 30 years. Is that a foreseeable future?

Matters have a way of coming before commissions and councils, especially elective bodies, time and time again. If you are keeping statistics, you might want to see what you talk about the most in the first five years of existence. Let's say that you have just decided a matter and you're done. Matters are often repealable. If they go to court they can come back. If you have to talk about them, make sure that they are done and over and dead.

Exceptions to requirements. A fact finding committee that sticks to fact finding is not subject to the sunshine law. But often they don't and you should be real careful if you appoint one.

Educational missions. That's very similar to fact finding committees. Does the government sunshine law prohibit two or three of you from going to a conference on the sunshine law? No, you can go and learn and be together in the learning process. But if you use it as an opportunity to talk about matters that are going to come before you in the foreseeable future, then the exception would not apply.

There are about 22 things that you have to do if you want to have an executive session in order to settle a case. If you miss any one of them, that will be deemed to be improper. Executive sessions have only been permitted for the past three or four years.

Specific problem matters that may come up are:

a. Invitations from civic organizations or citizens groups;

b. Groups to provide a forum for more than one council member. Learn to say no to this type of forum, or at least to the format where it says we want all five of you or two of you. Try to educate the organization and try if you can to appear in a series: do one this week, then someone else next month, etc. There is a law in effect that you can go and you can present your views even though one or the other of you may also be there presenting his views. But if you think about it, it gets real difficult to just present your views and sit down without the inevitable question and answer period. And pretty soon you've gotten into a dialogue and you can have a real problem there. Try to avoid that or, if you can't and are going to have three or four of you there at the same time, make sure they understand the ground rules. Mr. Pritt here referred to a copy of a city attorney's opinion on this issue that each council member had received.

c. Social functions. It's inevitable that when one or two council members are at a social gathering, someone will want to discuss things that members shouldn't talk about. Try to avoid that. Explain to your public that you can't talk about it. Always have sparkling conversation ready on other subjects, Mr. Pritt humorously suggested.

d. Publicly created or appointed committee. The temptation is almost irresistible to have a lot of committees. My recommendation is to think twice about having those committees be city-run or sponsored committees. They talk among themselves about issues. When you make them part of the Fort Myers Beach function, they can no longer talk to each other outside of a meeting. You've cut off a lot of their intercommunication among themselves.

Mayor Cereda advised Mr. Pritt that the council has a resolution coming up about a traffic committee. She assumed the traffic committee would have to operate just like the town council operates: they would have to advertise; minutes would have to be taken and recorded. It would be just like creating another town council, she said. Mr. Pritt agreed with her.

What would the difference be between the committee being a town committee and not being a town committee, Mayor Cereceda wanted to know. Mr. Pritt advised that as a town committee they no longer can talk among themselves about the issue that has brought them together. The second thing that may occur, he continued, depending on how you structure your committee, is that they may have to file with the supervisor of elections just as the council has done. All types of rules start applying to a town committee.

Mr. Roosa said that two examples are the following: You need to have a local planning agency, so there's no question that that needs to be a formal governmental committee. It needs to be restricted to government and the sunshine because their deliberations need to be public and public input is needed. If the issue is a public issue, then I think it qualifies for a municipal committee. And then provide the facilities for it. Provide the meeting room, provide the notice, provide the minutes and make it an official committee. But if it's something that's more of a social nature and not of great concern to the public, like a first anniversary birthday party, you probably wouldn't want to have that as an official city committee.

Mr. Pritt advised they have quite a few committees in Sanibel.

You will have costs involved with your committees.

Decide if this is the type function the town council should delegate to a committee, Mr. Roosa advised.

Is ad hoc something that would be adopted by a council or would it be a citizenry group? Garr Reynolds wanted to know.

I said ad hoc as opposed to standing, Mr. Pritt replied. The difference between ad hoc and standing is that ad hoc is just for awhile or just for a project. A standing committee would be one that you plan to have going on and on for all kinds of projects.

Mr. Reynolds said his question was really would ad hoc be citizenry or would it be sanctioned by the council.

If your council appoints it, Mr. Pritt stated, it would be under the government and sunshine law.

Suppose the council wants a citizen advisory group only but not an advisory council group? Mr. Reynolds asked.

Mr. Pritt responded, let the citizens form the committee, but not yourself. Once you start controlling it, it becomes a governmental committee.

The Mayor wished to know if an individual council member could form a committee without it being a governmental committee.

Mr. Pritt responded by showing the council a copy of the 1996 edition of The Government and Sunshine Manual and suggesting that they get copies for each council member as soon as possible. The cost is $11.00 per copy for the first 15 copies. It is put out by the First Amendment Foundation, assisted by the Florida Attorney General. Mr. Pritt advised that the manual was very readable and contained a lot of questions and answers. It covers government and sunshine and public records. It has hundreds of exceptions.

If you're thinking about forming your own advisory committee, Mr. Pritt stated, make sure that that is researched very carefully.

The manual also covers such things as legal actions, civil and criminal penalties, forfeiture of office.

There is plenty of opportunity to violate the government and sunshine law accidentally, Mr. Pritt advised.

Mr. Pritt was asked to go into the difference between a town council's legislative function and their judicial function and their duty to collect information in terms of their legislative function and not to have input in the judicial function. Mr. Pritt replied that when someone has been able to figure out that they are involved in a quasi judicial function -- and the judges are even in disagreement as to what is a legislative function and what is a quasi judicial function -- if it is determined that it's a quasi judicial function, then everything changes. You almost have to pretend that you have now been given a robe and a white wig and are being asked to be a judge. You probably all thought you were being elected to be council members and didn't give a lot of thought to the fact that you might be so-called administrative judges. The legislative portion of the council isn't too hard to understand: setting policies, passing ordinances, passing resolutions, that type of thing. The harder part is the quasi judicial function, and that is where someone comes in with an application and you're called upon to see whether their application qualifies under the laws you've already passed. Sometimes you find out that the laws you passed were insufficient to do what you hoped they would do and every fiber of your legislative being says I don't want this, this is terrible, this is a bad result. Then you have to go to your laws that you or a previous council have passed and see what the law says and compare it to the application. If the application doesn't apply to the law, then you're bound to give the relief.

Whenever somebody is talking to you about a legislative matter, Mr. Pritt advised, they are free to talk all they want and lobby you. When it is a quasi judicial matter, there are some additional rules that apply, because you're not allowed to just go down and talk to the judge. You being the judge, people are going to want to come to you and tell you how you should decide a case or an application, and they're going to do it outside of a public meeting. You have to stand back and say I don't do that, we don't do that, it is quasi judicial and I can't talk about it. In 1995 there was an exception that was put into the law that was called the Access to Public Officials Act. What that says is you're not totally prohibited from talking to your constituents even though it might be a quasi judicial matter, but if you do, you have to disclose on the record what was said and it has to be done at a time prior to any votes being taken. It has to be a time when if someone disagrees, they can come up and give their side of the issue. If you haven't already, you need to look at whether you want to implement that act. Some cities have elected to implement it and some have elected not to. Mr. Pritt advised that they had implemented the act on Sanibel because it gives them safe harbor. If they decide they want to talk with someone, they talk with him and then they disclose on the record what was said. The other thing you can do is say, we're not going to talk with you.

Mr. Roosa said it was also required to give the name of the person you talked with under the Access to Public Officials Act.

There is a whole lot of fine tuning with regards to public records, Mr. Pritt advised. For example, how long does a city have to respond to a public records request? You have to do it as reasonably quick as possible, and this depends on whether or not it is easy to get. Usually what is found to be illegal is a city or town saying that if a person wants a public record they must put it in writing, give their name,

etc., and it will be responded to in a specific number of days. The courts have held that to be improper.

Can the city make people pay for public records prior to getting the records out? There is a limit in the statutes to 15 cents a page, 20 cents for a two-sided copy. But there is an exception to that. If it is a map, you can charge more. Or if you have to actually go out and produce data, there is some leeway on that because you don't have to assign someone to the task of locating and putting together material.

Some exceptions to the public records law are rooted in privacy, for example information about someone being committed for mental problems. You can't just go and give that out. If you do, there may be a different penalty.

Common exemptions likely to occur in the town of Fort Myers Beach.

1. Attorney work product.

2. Employee's portion of the personnel records. Most are open but some are exceptions.

Mr. Pritt explained that even though you may have made your final decision in a land matter, that under the Property Rights Act that was just passed there is a dispute resolution portion, a special master proceeding called Request for Relief that someone can avail himself of which is implemented between the time the town makes its final decision and when the matter goes to court.

Before you decide to build a library, try to look into CD Roms because they take up a lot less room, Mr. Pritt suggested.

A reporter from the News-Press donated her manual of the 1996 edition of The Government and Sunshine Manual to the town council.

III ADJOURNMENT

Mayor Cereceda adjourned the meeting at 2:20 P.M.

Respectfully submitted,

Lorraine Calhoun

Recording Secretary