Board of Public Instruction of Broward County v. Doran, 37763

• Decision Date: 02 July 1969
• Docket Number: No. 37763,37763
• Citation: 224 So.2d 693
• Parties: BOARD OF PUBLIC INSTRUCTION OF BROWARD COUNTY, Appellant, v. Barbara DORAN, Appellee.
• Court: Florida Supreme Court

Page 693

224 So.2d 693

BOARD OF PUBLIC INSTRUCTION OF BROWARD COUNTY, Appellant, v. Barbara DORAN, Appellee.

No. 37763.

Supreme Court of Florida.

July 2, 1969.

Rehearing Denied July 29, 1969.

R. T. Shankweiler, of Patterson, Maloney & Frazier, Fort Lauderdale, for appellant.

Daniel Neal Heller and Tobias Simon and Beverly Gurevitz, Miami, for appellee.

ADKINS, Justice.

This is a direct appeal from a final judgment of the Circuit Court of Broward County, Florida, declaring Fla.Stat., § 286.011, F.S.A. (the Sunshine Law) to be constitutional and entering an injunction against the Board of Public Instruction of Broward County.

In the Court below, the appellant was the defendant and the appellee was the plaintiff.

In her complaint the plaintiff alleged that the defendant board was pursuing a policy of convening meetings at which official acts were to be taken in such fashion as to exclude the public therefrom; that the defendant convened for the purpose of taking official action on April 17, 1968 and ordered the public excluded from the meeting. Thereafter, on April 25, 1968 the defendant again met for the purpose of taking official action and again excluded the public from its meeting.

in its answer the defendant admitted that on April 17, 1968 the members of the board met for an informal conference at which no official acts were to be taken or were taken, and at which time the public was excluded. The defendant alleged that on this date the board officially convened an open meeting for the purpose of receiving recommendations from the superintendent. Defendant also alleged that the members of the board met at an official meeting on April 25, 1968 wherein official action was taken, but the public was not excluded and, in fact, the public attended. Defendant admits that during this meeting the members of the board recessed for an informal conference at which no official action was to be taken or was taken.

Both parties moved for summary judgment upon the pleadings, depositions and affidavits. In one affidavit for the defendant, it is stated that four members appeared at the school board office on April 17, 1968 for the purpose of having an informal conference session at which no official acts were to be taken or were taken. During the conference the defendant invoked 'a long-standing policy of the board' to disallow the presence of the public, although the press was allowed to remain. During this conference the board discussed a proposed salary schedule which had been submitted for formal action at the meeting to be held on April 18th. Changes were suggested in the salary schedule but no vote was taken concerning the same on April 17th. On the latter date the board did call an official meeting to order for the purpose of receiving recommendations of the superintendent, which were required to be received by law. The board acknowledged receipt of the recommendations and took no further action before adjourning. This meeting was open to the public.

Another affidavit states that the entire board appeared on April 25, 1968 for the purpose of having an official meeting. During the official meeting, on advice of counsel that private discussions could be held without violating the Sunshine Law, the meeting was recessed and the members retired to discuss business of the board, where no official action was to be taken. During such discussion no official action was taken by way of resolution, rule, enactment of regulations or otherwise. The informal conference was broken up and the members readjourned the official meeting.

The affidavit of Rose Marie Yeslow, supporting plaintiff's motion, states that she appeared at the conference meeting on April 17, 1968 at the invitation of a member of the board. Another member questioned the advisability of allowing any outsiders to attend the conference meetings, reasoning that 'there would be no stopping-point--even the P.T.A. would want to attend.' The board then passed a motion to exclude all people except the press from the conference meeting. The affiant Yeslow objected but she was nevertheless asked to leave. It was further stated that she attended the meeting held on April 25, 1968. Items were passed by letter and number and it was impossible for the public to understand the items being considered. The Chairman recessed the meeting and the board met in closed session for a period of two and one-half hours. It is further stated that the board returned and 'continued to pass items by letter and number on a roll-call vote.'

The purpose of the meeting held April 17, 1968 was to serve the function of giving the board and staff members information and background concerning issues which were to be voted on, or to be considered, or possibly not considered at the formal meeting. It was a routine meeting held every Wednesday before the formal action. The members were given information from various sources and on the basis of this information they formulated to quite a degree what their position would be at the formal meeting the following night.

Neither plaintiff or defendant quarrels with these facts as recited in the final judgment.

The final judgment contains the following findings:

'For at least a year and a half there has been a pattern on the part of the board of holding conferences on Wednesday afternoon in advance of the Thursday night meetings. There were three types of matters in which the board at these conference meetings did arrive at decisions. One dealt with matters involving the possible castigation or suspension of personnel; acquisition of or sale of real estate; and the third were circumstances under which they wanted to confer with their counsel.

'It was plaintiff's counsel's position, and he thought it clear, that at other conferences they discussed matters which came close to but possibly did not reach formal agreement at the conference. One was the salary schedule that was adopted on April 18th. On April 17th the question was discussed for approximately two hours. Between the 17th and the 18th a revised schedule was presented to the board by the superintendent and on the 18th the matter was called up for voting. With none or minimal discussion a formal vote was taken adopting the changed salary schedule.

'On April 25th there was an open official meeting of the board, and at some place during the course of the meeting there was a recess taken and all five members convened in the conference room, to which the public was excluded. At that time matters transpired as to which there is no knowledge, and it does not appear in the record, and the board then convened in open meeting and continued their deliberations.

'Counsel for the defendant stated that there was no doubt that there was a pattern or a policy of the board that they would not discuss in open session litigation, real estate purchases, or personnel matters, but they did not decide on these matters in closed session. They discussed them excluding the press. At the meeting on the 17th the press were present. The only time when everybody is excluded during discussions were on these three matters.

'In reference to the 25th, the record is silent as to what happened during the recess.

'At the conference meeting the decision of the board was to permit the press to be present most of the time, but the public is excluded other than the press from these conference meetings at all times, except on express invitation by the board to members of the public other than the press.'

The Court, after discussing the law, declared Ch. 67--356, Laws of Fla., now Fla.Stat., § 286.11, F.S.A., to be a valid and constitutional law. The Court also ordered:

'The defendant, the BOARD OF PUBLIC INSTRUCTION OF BROWARD COUNTY, a body corporate, be and the same is hereby enjoined from the violation of the aforesaid statute, including, without limitation, the holdings of meetings or conference sessions at which a quorum is present, wherein all or part of the public is excluded, at which official actions are taken or are to be taken; or at which the said board receives reports from its superintendent or other personnel of the BOARD OF PUBLIC INSTRUCTION OF BROWARD COUNTY, or at which are held any discussions on current, or foreseeably so, matters, not privileged, pertaining to the duties and responsibilities of the BOARD OF PUBLIC INSTRUCTION OF BROWARD COUNTY.'

Defendant has appealed from this final judgment contending first that the statute is so vague and ambiguous that it does not afford procedural due process of law to the defendant; that the statute constitutes an unlawful delegation 'without adequate standards' of the legislative prerogative to the judiciary and constitutes a judicial encroachment upon the executive branch of government; and that more than one topic and subject matter is contained within the statute in violation of Art. III, § 16, Fla.Const., F.S.A., and for the further reason that scienter was not made a specific element of this penal statute.

A legislative act which is so vague, indefinite and uncertain that courts are unable by accepted rules of construction to determine with any reasonable degree of certainty what the Legislature intended, or which is so imcomplete, conflicting and inconsistent in its provisions that it cannot be executed, will be declared inoperative and void. If the law can fairly be so construed as to make it lawfully enforceable, the courts should, in deference to the lawmaking power, give it that effect rather than to adjudge the legislative enactment to be illegal or vain. The language used in the statute should be construed...