Times Pub. Co. v. Williams, 68--369

• Decision Date: 09 May 1969
• Docket Number: No. 68--369,68--369
• Citation: 222 So.2d 470
• Parties: TIMES PUBLISHING COMPANY, etc., et al., Appellants, v. William WILLIAMS et al., Appellees.
• Court: Florida District Court of Appeals

Page 470

222 So.2d 470

TIMES PUBLISHING COMPANY, etc., et al., Appellants, v. William WILLIAMS et al., Appellees.

No. 68--369.

District Court of Appeal of Florida, Second District.

May 9, 1969.

Baynard, McLeod & Nelson, St. Petersburg, for appellants.

McClure & Turville, St. Petersburg, for appellees.

Earl Faircloth, Atty. Gen., T. T. Turnbull and Arthur C. Canaday, Asst. Attys. Gen., Tallahassee, amici curiae.

LILES, Chief Judge.

The 1967 session of the Florida Legislature enacted Chapter 67--356, Laws of Florida, 1967, ¹ which became effective July 1, 1967, and appears in Florida Statutes as § 286.011, F.S.A. It has appropriately been labeled Florida's 'Government in the Sunshine Law.'

Appellants, Times Publishing Company, Charles Patrick and Betty Orsini, filed a complaint in the Circuit Court of Pinellas County alleging that the Pinellas County School Board had held various secret meetings during 1967 and 1968 subsequent to the enactment of the above statute. The complained that these meetings were in violation of this statute and asked for an injunction enjoining the Board from holding future meetings from which the public was to be excluded. At the conclusion of appellants' testimony, the trial judge dismissed the complaint with prejudice and refused to grant appellants an injunction. This appeal followed.

It is urged by appellants that under the aforesaid Chapter 67--356, injunctive relief is available to the members of the public to enjoin and prohibit the Board of Public Instruction of Pinellas County, Florida, from holding meetings at which official acts are to be taken if the public is to be excluded. They also urge that whenever the Board meets 'informally' for any purpose relating to the operation of schools Richard, Fla.1950, 47 So.2d 543, merely it is violating the statute and should be enjoined from holding such a secret meeting.

The Attorney General of the State of Florida asked for and was granted permission to file a brief and argue amicus curiae in this matter.

Prior to the enactment of Chapter 67--356, Florida already had an open meeting statute, § 165.22, F.S.A., relating to the meetings of city councils. This section provides that as to city or town governing bodies, 'all meetings * * * shall be held open to the public.' There is no language in that act referring to 'official acts' or 'formal action,' as there is in the act before us; nor is there any provision relating to injunctive relief as here.

In the only case construing § 165.22, F.S.A., our Supreme Court in Turk v. Richard, Fla.1950, 47 So.2d 543, merey limited the application of the 'All meetings' provision thereof to 'such formal assemblages of the (city) council sitting as a joint deliberative body as were required or authorized by law to be held for the transaction of official municipal business * * *.' It was therein noted that such a 'formal assemblage' existed when the governing body was sitting 'as a board of entity * * *, for the purpose of joint Discussion, decision and Action with respect to municipal affairs * * *.' (Italics supplied.) 'For at no other type of gathering,' it was said, 'whether attended by all or only some of the members of the city council, could any Formal action be taken or Agreement be made that Could officially bind the municipal corporation * * *.' (Italics supplied.) That case really only stands for the proposition therefore, that a 'meeting,' within the purview of the act, is a joint assemblage at which 'formal action' Could be taken, though not necessarily certain to be taken. Furthermore, the Turk case does not limit application of the 'All meetings' provision only to those 'formal' assemblages at which the ritual of voting to confirm or ratify an official decision is ceremoniously carried out, or to those occasions on which some formal execution is performed to make a document binding or legally affective.

The legislature is presumed to have been aware of the ruling case law as it relates to the subject matter of a statute, and to have drawn it with those cases in mind. It is obvious that the legislature intended to extend application of the 'open meeting' concept so as to bind every 'board or commission' of the state, or of any county or political subdivision over which it has dominion and control. In so doing, it expressly provided that the act related to 'All meetings (of the governing bodies involved) * * * at which Official acts are to be taken * * *' (italics supplied), and as One of the remedies for a violation thereof it effectively voided any 'formal action' taken by such bodies at closed meetings. There is nothing in the language of the act from which it can be said that the legislature intended to avoid or limit the holding in Turk. As far as it goes, the Turk case is helpful as it relates to the nature of the meetings covered by such an act, and insofar as it defines 'meetings.'

But the question still remains as to just what is meant by the terms 'official acts' and 'formal action' which were added in Chapter 67--356; and the Turk case cannot help us there because these phrases were not in the act before that court. However, in Walling v. Carlton, 1933, 109 Fla. 97, 147 So. 236, the court defined an 'official act' as, 'any act done by the officer in his official capacity under color and by virtue of his office.' This case is also helpful, but the court there was concerned with an Affirmative act of the officer involved, and does not fully answer the question before us, because it does not talk about Passive acts or about non-formal acts such as: the Act of discussion; the Act of deliberating; the Act of deciding; or the Act of listening to reports or expert advice about which an official might thereafter be charged with actual knowledge. These passive and non-formal Acts are certainly 'official' if they relate to the affairs and duties of that boty; yet they couldn't be said to constitute 'formal action' of the body.

Every thought, as well as every affirmative act, of a public official as it relates to and is within the scope of his official duties, is a matter of public concern; and it is the entire Decision-making process that the legislature intended to affect by the enactment of the statute before us. This act is a declaration of public policy, the frustration of which constitutes irreparable injury to the public interest. Every step in the decision-making process, including the decision itself, is a necessary preliminary to formal action. It follows that each such step constitutes an 'official act,' an indispensable requisite to 'formal action,' within the meaning of the act.

We think then that the legislature was obviously talking about two different things by the use of these phrases, and we can't agree with appellee that 'official acts' are limited to 'formal action,' or that they are synonymous. Clearly the legislature must have intended to include more than the mere affirmative formal act of voting on an issue or the formal execution of an official document. These latter acts are indeed 'formal,' but they are matters of record and easily ascertainable (though perhaps ex post facto), notwithstanding such legislation; and indeed the public has always been aware sooner or later of how its officials voted on a matter, or of when and how a document was executed. Thus, there would be no real need for the act if this was all the framers were talking about. It is also how and why the officials Decided to so act which interests the public. Thus, in the light of the language in Turk, supra, and of the obvious purpose of the statute, the legislature could only have meant to include therein the Acts of Deliberation, discussion and Deciding occurring prior and leading up to the affirmative 'formal action' which renders official the final decisions of the governing bodies.

It is our conclusion, therefore, that with one narrow exception which we will discuss later, the legislature intended the provisions of Chapter 67--356 to be applicable to every assemblage of a board or commission governed by the act at which any discussion, deliberation, decision, or formal action is to be had, made or taken relating to, or within the scope of, the official duties or affairs of such body. This is the latest legislative expression on the subject; and if it intends to qualify this mandate insofar as it may impair the proper exercise of certain other specific duties of such governmental bodies, ² it can expressly do so either as an amendment to the instant act or in supplementary legislation specifically relating to such other duties.

The next question to be decided is whether there may be any exception to the open meeting mandate of the act.

First of all, as has been noted, the act on its face provides for no exceptions; and unless there is a constitutional impediment to such a mandate it is conclusive. Nevertheless, appellee takes the position that it may meet privately behind closed doors, notwithstanding the act, to discuss matters relating to school personnel or to go into secret consultation with its attorney on all legal matters.

Concerning personnel matters, it contends that innocent school personnel may be ruined for life or their character assassinated if hearings relating to charges of misconduct are aired publicly and prove to be ill-founded. Be that at it may, the act is regulatory in nature and deals with the powers and discretion of certain governmental agencies. It is not in and of itself concerned with any rights or privileges of third parties dealing with such agencies. Any rights or privileges these third parties might have must be found elsewhere, and the governmental agencies involved cannot rely on such rights or privileges or...