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THE RIGHT TO SPEAK


Implementing "Right to Speak" - 09/01/13

Citizens Now Have the Right to Speak - 07/03/13

Proposed Law Seeks to Pry Open Government Meetings - 01/12/12

The Citizen's Right to Speak - 10/26/11

Do You Have the Right to Speak? - 03/15/10





Implementing "Right to Speak" - 09/01/13

Because we proclaim our government to be for and by the people, it seems only right that we would give citizens the opportunity to speak before the city commission on any matter of city business in which they have an interest. However, the courts have ruled there is no such right, except when specifically required by state statute (e.g., a proposed ordinance). Of course, a local city council can allow citizens greater opportunity to speak at public meetings than is legally required.

In the case of Deerfield Beach, the commission allows two periods of free public discussion at its regular meetings "written requests" at the start of the meeting and "public to be heard" after all business is concluded. After the business of the commission has been completed, speakers are not permitted to address any agenda item, but are not specifically limited otherwise on what they can talk about. The "written requests," however, are limited to "topics over which the commission has authority."

Despite its groundbreaking open-government philosophy, right to speak did not gain solid support under the Florida Sunshine Law. Consequently, tolerance of open discussion at the local government level depended mostly on what the local government wanted to do. A Florida court recently upheld a local board that did not allow any public input at all at its meetings.

Now, that's changed. Effective Oct. 1, 2013, by state law, "Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission."

To its credit, under its rules of procedure, the Deerfield city commission offers a broader opportunity for the public "to be heard on any matter that was not on the agenda" at the end of the meetings and before the meetings by written request, subject only to limitations on the amount of time each speaker is allowed. However, it is important to note that such opportunities are not required by state law nor a legal right. The commission has the authority to limit public discussion of non-agenda matters or eliminate it altogether.

Ideally, city commission meetings would be short and sweet, focused, and models of decorum. The new state statute recognizes the need to maintain "orderly conduct" and "proper decorum in a public meeting," but nothing in law can actually guarantee civility.

The law cannot, as a practical matter, limit the right to speak to people who are intelligent, knowledgeable, relevant, and courteous. If only it could.

Unless we have a firm hand on the gavel and a clear set of rules for the conduct of speakers and members, a public meeting opened up for practically any discussion can easily degenerate into a raucous, circus-like affair. In fact, we've had plenty of examples of this in Deerfield Beach over the years.

The bottom line is that a dream come true right to speak could become our worse nightmare.



Citizens Now Have the Right to Speak - 07/03/13

It has been a long time in the making, but starting Oct. 1, 2013, citizens of Deerfield Beach will at last have the statutory right to speak at city commission meetings. The new law provides: "Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission."

And if any should be denied that right, they can seek court relief.

The State of Florida is renowned for its open-government laws, some parts of which go back over 100 years. The basic idea is simple enough: governments, including city governments, should operate in full view of the public, except when impossible or imprudent.

It would seem almost obvious that if the public has the right to hear what city commissioners (or like officials) are talking about in their deliberations, they would have the right to be heard as well. Still, except in certain specific cases prescribed by state law, that's not what the courts have decided.

Look at any city commission agenda and you see that very few matters allow citizens to speak on what's being considered. Members of the public are permitted to speak at the end of the meeting, but not on any agenda item; and then, not as a matter of right, but by the grace of God and the commission.

If you think about it, this is the way most legislative bodies operate. Congress and the state legislatures don't allow public comment during their business meetings on the floor. Courts don't allow people in the gallery to stand up and shout "Guilty!" You can write to your Congressman all you want, but you don't have the right to appear before a committee considering legislation. If you do get to testify, it's likely you've been invited or subpoenaed.

Starting with recommendations of Gov. Crist's Commission on Open Government Reform, several legislators, including Sen. Joe Negron (R-Palm City), have introduced bills that would embed the right to be heard at public meetings into state law. None of the proposals made it to a vote in past sessions. Negron's bill (S.B. 50) did, this year. It passed both the Senate and House (with only two negative votes in the House) and was signed by Gov. Scott on June 28.

You know the old trope "Watch out what you wish for?" This could be an example.

The new law is codified as Fla. Stat. 286.0114. Here's what it provides (I've omitted some provisions and broken it down into segments that don't appear in the actual statute for easier reading):

["Board or commission" defined.]

(2) Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission.

The opportunity to be heard need not occur at the same meeting at which the board or commission takes official action on the proposition if the opportunity occurs at a meeting that is during the decisionmaking process and is within reasonable proximity in time before the meeting at which the board or commission takes the official action.

This section does not prohibit a board or commission from maintaining orderly conduct or proper decorum in a public meeting. The opportunity to be heard is subject to rules or policies adopted by the board or commission, as provided in subsection (4).

(3) [There are certain meetings or actions to which this law does not apply, such as emergency meetings.]

(4) Rules or policies of a board or commission which govern the opportunity to be heard are limited to those that:

(a) Provide guidelines regarding the amount of time an individual has to address the board or commission;

(b) Prescribe procedures for allowing representatives of groups or factions on a proposition to address the board or commission, rather than all members of such groups or factions, at meetings in which a large number of individuals wish to be heard;

(c) Prescribe procedures or forms for an individual to use in order to inform the board or commission of a desire to be heard; to indicate his or her support, opposition, or neutrality on a proposition; and to indicate his or her designation of a representative to speak for him or her or his or her group on a proposition if he or she so chooses; or

(d) Designate a specified period of time for public comment.

(5) If a board or commission adopts rules or policies in compliance with this section and follows such rules or policies when providing an opportunity for members of the public to be heard, the board or commission is deemed to be acting in compliance with this section.

[The remaining provisions pertain to judicial relief if the statute is violated.]

Like most new laws, 286.0114 presents some issues of interpretation. For example, what is a "reasonable opportunity"? Does "a board or commission" include the CRA or DBHA Board? I think it does, but it's not clear whether it would include an advisory body like the P & Z. What is "a proposition"?

Every dictionary I consulted provides a number of possible meanings of the word proposition. An earlier version of S. B. 50 employed different language to describe the mandate of the bill: "Members of the public shall be given a reasonable opportunity to be heard on an item that is of significant interest to the public and that is within the subject matter jurisdiction of the board or commission." So "a proposition" in this version was "an item that is of significant interest to the public."

I am reasonably certain that the term "a proposition" was intended to be somewhat exclusive and not intended to include a matter only under discussion. But what happens if a discussion turns into "a proposition," which sometimes occurs?

There will be some things to be worked out as this law is implemented.

To make it clear, I agree with the proposition (another meaning of the word) stated on the state attorney general's website that "[t]he principle of open government is one that must guide everything done in government" and the statement of the Attorney General that "transparency is not" or at least should not be "up to the whim or grace of public officials." In one of my previous articles on this topic, I stated, "They can't make public officials listen to them or heed what they say, but citizens should have a right to speak their minds at public meetings without unreasonable limitations. They should insist on it."

If people are to have "a reasonable opportunity" to speak to the commission on a matter that interests them, issues that present a "live controversy" to borrow a term from the judiciary should not be hidden in the consent agenda or somehow glossed over; they often are in practice. The new law may take care of that problem.

A greater range of public input arguably makes government, especially at the local level, more "democratic" and responsive to public needs. However, now that we have the law, we must understand a downside, and that is that it invites the "bad," as well as the "good."

It's a bit like the comments on a blog. Once a topic is opened for discussion, the goofballs seem to fall out of the woodwork.

Anyone who has attended a city commission meeting in Deerfield Beach has seen for himself the boorish, stupid, uncivil, time-wasting statements by some of the speakers in some cases, disrespectful of the public officials and citizens that are not constructive. Someone standing before the commission, as recently happened, slamming a member of the commission, and suggesting that he and the city manager should pack up and leave town, doesn't contribute anything to the betterment of the city. It's just blather.

I believe that all comments at city commission meetings should be directed to the mayor and commission, who are the decision-makers, not to city staff members or the audience.

All comments should be on the business of the commission; a speaker's opinion about the city manager or a commissioner is a personal problem, not about city business. Speakers should focus on issues, not personalities, and if they violate this rule should be invited to sit down.

It goes without saying, personal opinions about the character or competence of a city employee or a private citizen should be out of bounds.

Implementing the new law will present some problems, but it may offer an opportunity to make stronger rules with regard to "civility" and "focus." While citizens should have and now do have the right to speak, they also have the right to expect that public meetings of the city commission and other boards will be orderly, civil, smart, and relevant.



Proposed Law Seeks to Pry Open Government Meetings - 01/12/12

Open government implies the right of citizens to access public records, to attend public meetings of a government body, and to speak at such meetings in support of, or opposition to, a proposed action of the government body. Open government is supposed to insure that citizens are fully informed of what's happening at City Hall (or other places of government) and that public officials can be held accountable for their actions and decisions.

The first two rights are guaranteed by the Florida Constitution 1, the Public Records Act 2, and Fla. Stat. 286.011 (the "Sunshine Law"), which states: "All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting." 3

The law also states that "The board or commission must provide reasonable notice of all such meetings. 4

As noted in my previous articles on this subject 5, the courts have held that there is no right to speak at public meetings (except in specific cases set out by statute), and the state supreme court has, in effect, upheld these decisions. 6 In only one decision, no longer firm precedent, did the supreme court hold that the statutory phrase "public meetings open to the public at all times" implies the right to speak. 7

This could change. State Sen. Joe Negron (R-Palm City) has proposed legislation that would remedy this deficiency in the law. The bill (SB 206) is co-sponsored by Sens. Don Gaetz (R-Niceville) and Greg Evers (R-Baker). Similar legislation (HB 355) has been filed in the House by State Rep. Martin Kiar (D-Davie). The legislation appears to have some bi-partisan support.

If passed and signed into law in the form proposed, Negron's bill would amend the "Public Meetings Act" by adding a subsection 1(b) as follows:

1. Members of the public shall be given a reasonable opportunity to be heard on an item that is of significant interest to the public and that is within the subject matter jurisdiction of the board or commission. The opportunity to be heard need not occur at the same meeting at which the board or commission takes official action on the item, if the opportunity occurs at a meeting that is during the decisionmaking process and within reasonable proximity before the board or commission takes the official action. The opportunity to be heard is subject to reasonable rules or policies adopted by the board or commission to ensure the orderly conduct of a public meeting, as provided in subparagraph 3. A resolution, rule, or formal action is not binding unless taken or made in compliance with this paragraph.

2. The requirements in subparagraph 1. do not apply to:

xxa. An official act that must be taken to deal with an emergency situation affecting the public health, welfare, or safety, when compliance with the requirements would cause an unreasonable delay in the ability of the board or commission to act;

xxb. An official act involving no more than a ministerial act; or

xxc. A meeting in which the board or commission is acting in a quasi-judicial capacity with respect to the rights or interests of a person. This sub-subparagraph does not affect the right of a person to be heard as otherwise provided by law.

3. [The board or commission may adopt rules or policies to]:

xxa. Limit the time an individual has to address the board or commission;

xxb. Require, at meetings in which a large number of individuals wish to be heard, that a representative of a group or faction on an item, rather than all of the members of the group or faction, address the board or commission; or

xxc. Prescribe procedures or forms for an individual to use in order to inform the board or commission of a desire to be heard.

The bill contains additional provisions (not quoted here) which pertain to state rulemaking agencies and which do not appear to apply to cities.

While the proposed bill is not perfect, it is a step in the right direction. The Sun-Sentinel supports the legislation: "[S]tate law ought to emphatically assert the right of the public to be heard by its representatives at a government meeting. It's necessary to do so to make sure elected officials can't silence or exclude the citizenry from speaking up." 8 Well said.

City officials should take note. If they wanted, they could ease up on the current rules pertaining to addressing the city commission at the various meetings. If. City officials in Deerfield Beach have sent mixed messages as to their desire to hear the public by restricting the public from speaking on agenda items on which there was no opportunity to speak on the agenda and by sometimes assigning items "of significant interest to the public" to the consent or general items agendas.

If people want to speak (or don't) on these matters, it should be up to them. The commission should not decide for their own convenience.

City officials could also make it easier for citizens to access public records and information. Even though they can 9, why charge people for public records if the cost of finding and reproducing such documents is nominal, say less than $100?

In the past, I've proposed a citizens' bill of rights similar to the one adopted by county voters. 10 Even short of this, city officials could act now to make city government more open.

Conclusion: SB 206 and HB 355 are basically good proposals. It's simple; it's reasonable; it's right. If passed and signed into law, city officials may have no choice but to rethink their position on open government.

NOTES:

1 Fla. Const. art. I, 24.

2 Fla. Stat. ch. 119.

3 Fla. Stat. 286.011(1).

4 Id.

5 "The Citizen's Right to Speak," Oct. 26, 2011; "Do You Have a Right to Speak?" Mar. 15, 2010.

6 E.g., Keesler v. Community Maritime Park Associates, Inc., 32 So.3d 659 (Fla. 1st DCA 2010), review denied, 47 So.3d 1289 (Fla. 2010), citing Wood v. Marston, 442 So.2d 934 (Fla. 1983) (dicta). See, also, Kennedy v. St. Johns Water Management District, 2011 WL 5124949 (Fla. 5th DCA 2011), which held, the water management district did not violate the Sunshine Law by limiting participation in a large meeting to the representative and attorney of a particular group. Noted in Fla. Senate, BILL ANALYSIS AND FISCAL IMPACT STATEMENT (SB 206), Dec. 20, 2011.

7 Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969).

8 Editorial, "Win for open government," Jan. 11, 2012, sun-sentinel.com.

9 Fla. Stat. 119.07(4)(a).

10 Broward County Charter 1.04.



The Citizen's Right to Speak - 10/26/11

If the goal is open and honest city government which does its job well and respects its residents, why is the right of citizens to air their views at public meetings of the commission and other public bodies so limited? When city officials in Deerfield Beach are asked why they don't allow citizens to speak on agenda items or at special meetings and workshops except when legally required, they say they don't have to.

The truth is they don't want to listen to the grievances and opinions of residents more than they have to. The current state of the law is they don't have to very much.

This could change. The legislature could rewrite the open government laws to provide for stronger rights to speak and to be heard. At the local level, we could amend the city charter to protect the citizens' right to speak. Instead of the pointless effort to repeal the utility tax, why not a voter drive for a Citizens' Bill of Rights? 1

The citizens' right to speak at public meetings is not only an issue in Deerfield Beach. Many towns, counties, and public agencies limit citizens' rights at public meetings in some cases to the point of not allowing any participation. And that's okay from the legal standpoint. A Florida District Court of Appeal held last year, in effect, that people have no constitutional right to speak at public meetings. 2 This has stimulated statewide interest in the issue and even in the state legislature.

The Attorney General's Government in the Sunshine Manual supports the view that governmental bodies are pretty much in charge.

Public agencies are allowed to adopt reasonable rules and regulations which ensure the orderly conduct of a public meeting and which require orderly behavior on the part of the public attending. This includes limiting the amount of time an individual can speak and, when a large number of people attend and wish to speak, requesting that a representative of each side of the issue speak rather than every one present. 3

The courts may be right as to the constitution, but that doesn't mean the policy is right, nor does it explain the rationale for the rule as applied to city commission meetings in the City of Deerfield Beach. The purpose of open government is to bolster democratic institutions by keeping people informed and making public officials more accountable. It should enable citizens to let officials and other attendees know what they think. The potential for public opposition and criticism is part of what makes public officials accountable.

As a consequence of the state court ruling, there have been moves in the state legislature and in local governments to clarify the rights of citizens to speak at public meetings. A few proposals have been positive, some less so. Some politicians would like to go a different direction to make open meeting rules more restrictive and less open.

Bill Rufty, political editor of The Ledger, Lakeland, Florida, on the last legislative session:

Sunshine Law changes aren't just from those who want to close off public access. One of the best pieces of legislation in years, public records advocates said, was filed before the session. Unfortunately, advocates say, it is dying in both chambers of the Florida Legislature this year.

The bill would protect citizens' rights to speak at public meetings.

The legislation, Senate Bill 310 by Sen. Joe Negron, R-Palm City, and House Bill 285 by Eric Eisnaugle, R-Orlando, would guarantee that members of the public have the right to speak in a public meeting.

If that seems a "no brainer," the 1st District Court of Appeal has ruled that the public does not have the right to speak at a public meeting.

The Florida Supreme Court refused to hear the case. So, that means in any conflict over the right to speak at a public meeting, First Amendment Foundation officials said, the 1st District court ruling stands.

Neither the House nor the Senate leaders have allowed the bill guaranteeing those rights to be heard.

But like many bills, which don't get heard the first time it is introduced, it will come back, public records advocates said.

[Sen. Paula Dockery, R-Lakeland,] and Rep. Will Weatherford, R-Wesley Chapel, introduced a bill last year from [Gov. Crist's Commission on Open Government] titled the "Open Government Act," with far reaching rules allowing greater access to government records by the general public. It did not pass. 4

If citizens' rights legislation has met resistance in the state legislature, it has nonetheless been noticed by editors around the state.

An Orlando Sentinel editorial, dated Nov. 7, 2010, noted abusive practices of the Orange County Commission which resulted in changes to the county charter. Also discussed, legislative efforts in Tallahassee:

Orange County Mayor Rich Crotty didn't let citizens at meetings speak to issues outside the County Commission's agenda until a couple of years ago, when he relaxed the policy under mounting public pressure. Later that year, Orange voters overwhelmingly approved an amendment to the county charter to require citizens to have at least 15 minutes a month before the commission to raise issues, regardless of whether they deal with anything on the agenda.

Four years ago, Ormond Beach city commissioners adopted a policy to bar citizens speaking at meetings from raising the same issue more than twice. They also backed down under public pressure.

In 2008, Rep. Dorothy Hukill, a Port Orange Republican, introduced legislation to require all government bodies to offer at least 15 minutes at the start of their meetings for citizens to speak. Her "Voice of the People Act" passed the House unanimously but stalled in the Senate amid opposition from lobbyists for local governments.

Last year, Gov. Charlie Crist's Commission on Open Government Reform reported that some local bodies were routinely barring citizens from speaking during workshops, and preventing them from meaningful participation in regular meetings. The commission called on the Legislature to guarantee "a reasonable opportunity for public participation at all meetings subject to the Sunshine Law."

Some government bodies in Central Florida have made it a policy to invite public input. The Seminole County Commission, for example, provides multiple chances for citizens to speak at its meetings. But if such a policy is not written into law, a different set of commissioners in the future could change it on a whim.

A law requiring government bodies to let citizens speak does not have to be a license for gadflies to hijack public meetings. Ms. Hukill's bill, for example, said speakers would have to abide by time limits, and deliver their comments in a civil manner. 5

The Orange County Charter provides as follows and is similar to a charter provision approved by voters in Broward:

The right to be heard and the right to public input. Any citizen has the right to appear before the board on an agenda item for the presentation, adjustment or determination of an issue, matter or request within the county's authority and jurisdiction, so far as the orderly conduct of public business permits. Matters shall be reasonably scheduled for the convenience of the general public, and specific portions of each agenda shall provide for designated times so that the public may know when a matter has been scheduled. In addition, to encourage and ensure citizen participation in county government and to afford citizens an opportunity to speak to the board, the board shall set aside at least fifteen (15) minutes at the beginning of each regular meeting of the board for citizens to speak to the board on any matter of public interest under the board's authority and jurisdiction regardless of whether the public issue is on the board's agenda. 6

From another Orlando Sentinel editorial on the subject, Oct. 20, 2011:

Last year, a state appeals court in Tallahassee decided that Floridians have the right to be seen but not heard by their own government. The First District Court of Appeal ruled that the state's constitutional guarantee of government in the sunshine grants citizens access to meetings of public bodies but not the right to speak at them.

Now open-government advocates are counting on a better result from a similar case pending before another state appeals court, in Daytona Beach. They're hoping the Fifth District Court of Appeal will establish a right for citizens to speak.

But instead of just waiting on the uncertain prospect of a favorable outcome in the courts contradictory appellate rulings would have to be reconciled by the state Supreme Court the advocates should be focusing their attention and efforts in the meantime on another branch of government.

The bills would compel governmental bodies to give citizens the opportunity to speak. There would be a few exceptions, such as emergencies where prolonging a meeting and postponing official action would threaten public safety.

Plenty of local governments follow this practice. Leaders in those governments are savvy enough to realize they often get input from speakers that improves policies while building public support for them.

The bills from Negron and Kiar would let governmental bodies set time limits for speakers, so gadflies couldn't monopolize the microphone and turn meetings into marathons. For the same reason, the bills would let bodies that hold meetings overflowing with would-be orators to choose representatives of viewpoints to be heard.

There is one condition in the bills, however, that could be exploited by some officials who would rather not hear from citizens. Speakers would have the right only to address "matters of significant interest to the public." That's a highly subjective condition. The bills would be better if lawmakers removed it.

Two similar bills died earlier this year. But Gov. Rick Scott, who lists making government more accountable among his priorities, could show his sincerity by throwing his support behind the latest versions of the legislation.

Lawmakers shouldn't stand for government bodies that gag citizens at public meetings. 7

To paraphrase the editorial, instead of waiting for something to happen at the state level, citizens could make the right to speak at public meetings, without the limitations even the commission can't explain, a right instead of a mere indulgence on its part.

It took a long time to get a code of ethics in Deerfield Beach, but it happened. Many politicians don't want ethics laws and many don't like open government or anything that inconveniences them. Citizens should tell public officials in no uncertain terms that public meetings aren't just for them to grandstand and take potshots at critics.

Conclusion: They can't make public officials listen to them or heed what they say, but citizens should have the right to speak their minds at public meetings without unreasonable limitations. They should insist on it.

NOTES:

1 Proposed Revisions of City Charter Article VIII.

2 Keesler v. Community Maritime Park Associates, Inc., 32 So.3d 659 (Fla. 1st DCA 2010), review denied, 47 So.3d 1289 ( Fla. 2010). I discussed this case in "Do You Have a Right to Speak?" Mar. 15, 2010.

3 State AG FAQs, "Can a city restrict a citizen's right to speak at a meeting?"

4 Bill Rufty, "Advocates Say Sunshine Law Under Attack," The Ledger, Apr. 18, 2011, theledger.com.

5 Editorial, "Let the people speak," Orlando Sentinel, Nov. 7, 2010, orlandosentinel.com.

6 Orange County, Florida, Charter 209B. Cf. The Citizens' Bill of Rights, Broward County Charter 1.04D:

Any Person has the right to appear before the County Commission, a Board, or Committee for the presentation, adjustment or determination of an issue, matter or request within the County's jurisdiction. Matters shall be scheduled for the convenience of the public, and specific portions of each agenda shall provide for designated times so that the public may know when a matter may be heard. The County may establish reasonable procedures relating to public hearings, including limitations on the time members of the public may speak on an issue.

7 Editorial, "Let citizens be heard by their government," Orlando Sentinel, Oct. 20, 2011, orlandosentinel.com.



Do You Have the Right to Speak? - 03/15/10

You can't get any farther north and west in Florida than Escambia County up in the Panhandle. It has the unique distinction of being one of the few counties in the U.S. to border on a county with the same name, Escambia County, Alabama.

The county seat is Pensacola. Pensacola is also where you will find the Vince Whibbs Sr. Community Maritime Park. Community Maritime Park Associates, Inc. is a non-profit corporation which oversees the development of the park.

You can attend CMPA Board meetings, but don't try to speak on any agenda item. It ain't allowed.

A case decided last week by a Florida court of appeal reminds me of a bumper sticker I saw: Welcome to Our Beach. Now Go Home.

Keesler v. CMPA involved the application of the Sunshine Law to the quango-like organization and this question: Does the Sunshine Law give citizens the right to speak at public meetings?

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

That's what Florida law 286.011(1) says. All meetings, etc., are "public meetings open to the public at all times."

What the law does not say is that members of the public in attendance have the right to speak at such meetings.

Does the absence of explicit language to that effect mean that the public does not have that right as a matter of state law, or is it implied that if citizens have the right to attend, they have the right to speak also?

A local website covering the Pensacola case states: "The CMPA?s arguments is essentially that members of the public have merely the right to observe ? to be spectators, nothing more."

But it appears that the Florida Supreme Court may have held to the other view in its seminal Sunshine Law decision, Board of Public Instruction of Broward County v. Doran (1969).

Florida's Sunshine Law is one of the best in the nation by reputation. Passed in 1967, it was later elevated to constitutional status. Doran is still considered the key decision on the Sunshine Law and is widely cited in Florida cases, in advisory opinions, and by courts and attorneys-general of other states with similar statutes.

The Doran opinion referred to the right of the public to be present and the right to be heard conjunctively and singularly, as if to suggest that these rights were one right. This part of the Supreme Court's opinion was specifically quoted by the court of appeal in the Keesler case:

The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country. . . . Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.

Note: this inalienable right, x and y.

Seems clear enough, but not clear enough for the court of appeal last week to adopt it as the controlling principle. Instead the three-judge appellate panel affirmed the trial court?s determination that the Sunshine Law does not give the public the right to speak at CMPA meetings. There were no dissents.

Both courts relied upon dicta in a post-Doran Supreme Court decision.

In [Wood v. Marston (1983)], the court reviewed the applicability of the Sunshine Law to a committee delegated by the president of the University of Florida to solicit and screen applicants for the deanship of the college of law. The Marston court determined that the committee?s meetings were improperly closed to the public. However, the court also stated, "nothing in this decision gives the public the right to be more than spectators. The public has no authority to participate in or to interfere with the decision-making process."

[Citations omitted.]

Those of you who attend city meetings know that the public is not allowed to speak at most, although members of the public may be given the floor at the whim or discretion of the chair in some cases. The public usually remains silent at CRA Board meetings. At the commission meetings public comment is confined to the so-called quasi-judicial hearings and proposed ordinances. The commission gives time for presentations at the beginning of regular meetings (requested in advance) and short speeches by citizens at the end.

I noted in an earlier article that public input was not permitted by the ethics committee, except at the last meeting after all key decisions were made. I think the public, while granted not a lot of people attended the meetings, could have made an important contribution if there had been more interaction. But that's water under the bridge.

In practice then, it's pretty much up to the city commission. If Doran is the law on this issue, it is not followed religiously. The implication of the court of appeal opinion last week in the First District is that cities, counties, and public agencies have broad discretion in deciding who has the right to be heard, and when.

On the other hand, Doran reflects the spirit of the Sunshine Law that the public should be given an opportunity to participate in public meetings to the fullest extent. It would be useful if there were practical guidelines for state agencies and local governments.

Of course, we don't have to wait for state lawmakers to draw up such guidelines. The city could draft its own rules to optimize the public's right to be heard at city meetings. Unfortunately, the commission doesn't seem anxious to extend that right any further than they have to and might even restrict it if they thought they could get away with it.

It wasn't too long ago that the city commission considered measures to limit the right to speak at the "written requests" or to eliminate them altogether. "Open government" in Deerfield Beach, and probably in most cities, only goes so far, until it annoys or inconveniences those in charge. Not very much in the spirit of the Sunshine Law, but a fact of political life.

Meanwhile, we may soon have another Florida Supreme Court decision on the subject to ponder.



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