Hough v. Stembridge

• Decision Date: 22 May 1973
• Docket Number: Nos. 72--85,72--1228,s. 72--85
• Citation: Hough v. Stembridge, 278 So.2d 288 (Fla. App. 1973)
• Parties: J. Robert HOUGH, Individually and as a member of the Council of the City of North Miami, et al., Appellants, v. John STEMBRIDGE, Appellee. The STATE of Florida ex rel. CITY OF NORTH MIAMI, a municipal corporation, et al., Relators, v. Thomas A. TESTA, as Judge of the Circuit Court of the Eleventh Judicial Circuit, In and For Dade County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 288

278 So.2d 288

J. Robert HOUGH, Individually and as a member of the Council of the City of North Miami, et al., Appellants, v. John STEMBRIDGE, Appellee.

The STATE of Florida ex rel. CITY OF NORTH MIAMI, a municipal corporation, et al., Relators, v. Thomas A. TESTA, as Judge of the Circuit Court of the Eleventh Judicial Circuit, In and For Dade County, Florida, Respondent.

Nos. 72--85, 72--1228.

District Court of Appeal of Florida, Third District.

May 22, 1973.

Rehearing Denied June 15, 1973.

Kahn & Clein and Alan J. Kan, North Miami, for appellants-relators.

John E. Bassett, North Miami, for Stembridge.

Leo Greenfield, North Miami, for Thomas A. Testa.

Before PEARSON, CHARLES CARROLL and HAVERFIELD, JJ.

HAVERFIELD, Judge.

These consolidated causes grow out of a final summary judgment issued by Circuit Court Judge Thomas A. Testa in a case involving alleged violations of the Florida Government in the Sunshine Law, F.S. § 286.011, F.S.A.

The first, an appeal by J. Robert Hough, Martin D. Kahn, Arthur Wilde and the City of North Miami, involves alleged violations of Florida Statute 286.011 by these members of the North Miami City Council. The second matter, a writ of prohibition filed against Judge Testa, is based on part of the verbiage contained in the final summary judgment.

The factual situation out of which these matters arose is as follows:

On May 18, 1971 the City of North Miami held a runoff election in which Robert Hough, Jr., an incumbent councilman, was elected to the office of Mayor and Arthur Wilde and Michael Colodny were elected to the office of councilman. Plaintiff, John Stembridge, in his petition for injunction, alleged that following this election several violations of Florida Statute 286.011 had occurred on various occasions and in particular: (1) on May 19, 1971 in Robert Hough's home at a meeting at which in attendance were Hough, Wilde, Colodny, Martin Kahn ¹ and several other individuals, and (2) on June 1, 1971 with no notice having been given nor agenda having been published at a meeting of all the North Miami councilmen with E. May Avil, the City Clerk and Acting City Manager.

In order for there to be a violation of F.S. § 286.011, F.S.A., a meeting between two or more public officials must take place which is violative of the statute's spirit, intent, and purpose. The obvious intent of the Government in the Sunshine Law, supra, was to cover any gathering of some of the members of a public board where those members discuss some matters on which foreseeable action may be taken by the board. Board of Public Instruction of Broward County v. Doran, Fla.1969, 224 So.2d 693 and Canney v. Board of Public Instruction of Alachua County, Fla.1973, 278 So.2d 260 (1973).

Appellants contend that the trial court erred in holding that the meeting of May 19, 1971 came within the ambit of Florida Statute 286.011 in that this gathering was not a meeting of members of a governing body. In support of their contention they argue that Arthur Wilde and Michael Colodny were councilmen-elect on May 19, 1971 and only J. Robert Hough, Jr. was undisputedly a member of the council, as Group 2 Councilman. Thus, Mr. Hough was the only individual whose conduct was meant to be within the purview of F.S. § 286.011 and, therefore, there was no assemblage of a board or commission.

We simply cannot accept this line of reasoning. To adopt this viewpoint would in effect permit as in the case sub judice members-elect of a public board or commission to gather with impunity behind closed doors and discuss matters on which foreseeable action may be taken by that board or commission in clear violation of the purpose, intent, and spirit of the Government in the Sunshine Law.

We find the position untenable to hold on the one hand that Florida Statute 286.011 is applicable to elected board or commission members who have been officially sworn in and on the other hand inapplicable to members-elect who as yet merely have not taken the oath of public office. An individual upon immediate election to public office loses his status as a private individual and acquires the position more akin to that of a public trustee.

Therefore, we hold that members-elect of boards, commissions, agencies, etc. are within the scope of the Government in the Sunshine Law. To hold otherwise would be to frustrate and violate the intent of the statute which 'having been enacted for the public benefit, should be interpreted most favorably to the public.' See Canney v. Board of Public Instruction of Alachua County, supra.

Turning to the case at bar we find the trial judge to be eminently correct in determining that the meeting of May 19, 1971 was a meeting of members of a governing body in which matters concerning city business were discussed and, therefore, a violation of the Florida Sunshine Law resulted. Accordingly, we affirm that part of the summary judgment as it affects the meeting of May 19, 1971.

Next, we carefully considered the details and circumstances of the June 1, 1971 meeting and find them to be neither clear nor complete in the record on appeal. However, the only relief prayed for by the plaintiff in this case was an injunction to restrain the defendant officials from holding such future meetings in violation of the Sunshine Law and a showing was made that members of the council were pursuing a practice of informal meetings of conferences which appeared to be of the kind prohibited by the Sunshine Law. See City of Miami v. Berns, Fla.1971, 245 So.2d 38; Times Publishing Company v. Williams, Fla.App.1969, 222 So.2d 470, and cases cited hereinabove. Therefore, we are in agreement with the court's granting the injunction ² prayed for by the plaintiff insofar as that injunction (to be discussed at some length hereafter) enjoins the defendants from so meeting without notice to the public in violation of Florida Statute 286.011.

The judgment entered by the trial court contained four ordered provisions. First, the court ruled that any action taken by the council as a result of discussions at meetings held on May 19, 1971 and June 1, 1971 were in violation of § 286.011 Fla.Stat., F.S.A., the Sunshine Law. Second, it was held that legislation enacted as a result of said improper meetings could be made effective by the city council if subsequently re-enacted or ratified at a public meeting held pursuant to § 286.011. Third, the court awarded certain costs to the...