CONSEQUENCES OF TOWS COUNCILORS FAIL TO COMPLY WITH THE SUNSHINE LAWS

WHAT ARE THE CONSEQUENCES IF A PUBLIC BOARD
OR COMMISSION FAILS TO COMPLY WITH THE
SUNSHINE LAW?

1. Criminal penalties
Any member of a board or commission or of any state agency or authority of a county, municipal corporation, or political subdivision who knowingly violates the Sunshine Law is guilty of a misdemeanor of the second degree. Section 286.011(3)(b), Florida Statutes. Conduct which occurs outside the state which constitutes a knowing violation of the Sunshine Law is a second degree misdemeanor. Section 286.011(3)(c),Florida Statutes. Such violations are prosecuted in the county in which the board or  commission normally conducts its official business. Section 910.16, Florida Statutes.The criminal penalties apply to members of advisory councils subject to the Sunshine Law as well as to members of elected or appointed boards. Op. Att’y Gen. Fla. 01-84

2. Removal from office
When a method for removal from office is not otherwise provided by the
Constitution or by law, the Governor may suspend an elected or appointed public officer who is indicted or informed against for any misdemeanor arising directly out of his 30 official duties. Section 112.52, Florida Statutes. If convicted, the officer may be removed from office by executive order of the Governor. A person who pleads guilty or nolo contendere or who is found guilty is, for purposes of section 112.52, Florida Statutes, deemed to have been convicted, notwithstanding the suspension of sentence or the withholding of adjudication. Cf., section 112.51, Florida Statutes, and article IV, section 7, Florida Constitution.

3. Noncriminal infractions
Section 286.011(3)(a), Florida Statutes, imposes noncriminal penalties for
violations of the Sunshine Law by providing that any public official violating the
provisions of the Sunshine Law is guilty of a noncriminal infraction, punishable by a fine not exceeding $500. The state attorney may pursue actions on behalf of the state  against public officials for violations of section 286.011, Florida Statutes, which result in a finding of guilt for a noncriminal infraction. State v. Foster, 12 F.L.W. Supp. 1194a (Fla. Broward Co. Ct. September 26, 2005). Accord, Op. Att’y Gen. Fla. 91-38 (1991).
4. Attorney’s fees
Reasonable attorney’s fees will be assessed against a board or commission
found to have violated section 286.011, Florida Statutes. Such fees may be assessed
against the individual members of the board except in those cases where the board
sought, and took, the advice of its attorney, such fees may not be assessed against the individual members of the board. Section 286.011(4), Florida Statutes.
Section 286.011(4) also authorizes an award of appellate fees if a person
successfully appeals a trial court order denying access. See, School Board of Alachua County v. Rhea, 661 So. 2d 331 (Fla. 1st DCA 1995), review denied, 670 So. 2d 939(Fla. 1996).
5. Civil actions for injunctive or declaratory relief
Section 286.011(2), Florida Statutes, states that the circuit courts have
jurisdiction to issue injunctions upon application by any citizen of this state. The burden  of prevailing in such actions has been significantly eased by the judiciary in sunshine cases. While normally irreparable injury must be proved by the plaintiff before an injunction may be issued, in Sunshine Law cases the mere showing that the law has been violated constitutes “irreparable public injury.” Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); Times Publishing Company v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985). And see, Lozman v. City of Riviera Beach, No. 502007CA007552XXXXMBAN (Fla. 15th Cir. Ct. June 9, 2009) per curiam affirmed, 46 So. 3d 573 (Fla. 4th DCA 2010) (injunctive relief to enjoin city from future violations of the Sunshine Law due to a failure to record minutes of certain meetings is “appropriate” in light of City’s past conduct and consistent refusal to record minutes even after being advised to do so by the City Attorney and also because the City “has 31 continuously taken the legal position that local governments are not required by the Sunshine Law to record minutes.”).
Although a court cannot issue a blanket order enjoining any violation of the
Sunshine Law on a showing that it was violated in particular respects, a court may
enjoin a future violation that bears some resemblance to the past violation. Port
Everglades Authority v. International Longshoremen’s Association, Local 1922-1, 652
So. 2d 1169, 1173 (Fla. 4th DCA 1995). The future conduct must be “specified, with
such reasonable definiteness and certainty that the defendant could readily know what it must refrain from doing without speculation and conjecture.” Id., quoting from Board of Public Instruction v. Doran, 224 So. 2d 693, 699 (Fla. 1969).
6. Validity of action taken in violation of the Sunshine Law and
subsequent corrective action
Section 286.011, Florida Statutes, provides that no resolution, rule, regulation or
formal action shall be considered binding except as taken or made at an open meeting. “Therefore, where officials have violated section 286.011, the official action is void ab initio.” Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010). And see, Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979) (resolutions made during meetings held in violation of section 286.011, Florida Statutes, had to be re-examined and re-discussed in open public meetings); TSI Southeast, Inc. v. Royals, 588 So. 2d 309 (Fla. 1st DCA 1991) (contract for sale and purchase of real property voided because board failed to properly notice the meeting under section 286.011, Florida Statutes); and Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010) (city could have cured Sunshine Law violation by reconsidering the matter, but did not; accordingly, action taken in violation of the law was void)
Where, however, a public board or commission does not merely perfunctorily
ratify or ceremoniously accept at a later open meeting those decisions which were
made at an earlier secret meeting but rather takes “independent final action in the
sunshine,” the decision of the board or commission will not be disturbed. Tolar v.
School Board of Liberty County, 398 So. 2d 427, 429 (Fla. 1981). See, Finch v.
Seminole County School Board, 995 So. 2d 1068, 1073 (Fla. 5th DCA 2008) (school
board remedied inadvertent violation of the Sunshine Law when it subsequently held
full, open and independent public hearings prior to adopting a rezoning plan) and
Sarasota Citizens for Responsible Government v. City of Sarasota, supra (any possible violations that occurred when county commissioners circulated e-mails among each other were cured by subsequent public meetings). Cf., Zorc v. City of Vero Beach, 722 So. 2d 891, 903 (Fla. 4th DCA 1998) (meeting did not cure the Sunshine defect because it was not a “full, open public hearing convened for the purpose of enabling the public to express its views and participate in the decision-making process”); and Bert Fish Foundation v. Southeast Volusia Hospital District, No. 2010-20801-CINS (Fla. 7th Cir. Ct. February 24, 2011) (series of public meetings did not “cure” Sunshine Law 32 violations that resulted from 21 closed door meetings over 16 months; “[t]here was so much darkness for so long, that a giant infusion of sunshine might have been too little or too late”).
Moreover, “even when an illicit action is ‘cured” it does not absolve a public body
of its responsibility for violating the Sunshine Law in the first instance; it simply provides a way to salvage a void act by reconsidering it in Sunshine.” Anderson v. City of St. Pete Beach, 161 So. 3d 548 (Fla. 2d DCA 2014).
7. Damages
“The only remedies available pursuant to the Sunshine Act are a declaration of
the wrongful action as void and reasonable attorney’s fees.” Dascott v. Palm Beach
County, 988 So. 2d 47, 49 (Fla. 4th DCA 2008), review denied, 6 So. 3d 51 (Fla. 2009).
Accordingly, an employee who prevailed in a lawsuit alleging that her termination
violated the Sunshine Law “may not recover the equitable relief of back pay because
money damages are not a remedy provided for by the Act.” Id.