Wood v. Marston

• Decision Date: 01 December 1983
• Docket Number: No. 63341,63341
• Citation: 442 So.2d 934
• Parties: 15 Ed. Law Rep. 616 Terri WOOD, as Editor of the Verdict, Thomas R. Julin, and Campus Communications, Inc., Petitioners, v. Robert Q. MARSTON and Fletcher Baldwin, Respondents.
• Court: Florida Supreme Court

Page 934

442 So.2d 934

15 Ed. Law Rep. 616

Terri WOOD, as Editor of the Verdict, Thomas R. Julin, and Campus Communications, Inc., Petitioners, v. Robert Q. MARSTON and Fletcher Baldwin, Respondents.

No. 63341.

Supreme Court of Florida.

Dec. 1, 1983.

Thomas R. Julin of Steel, Hector & Davis, Miami, Terri Wood, Marathon Shores, Sandra Bieber-Allen, and Larry G. Turner, Gainesville, for petitioners.

Chesterfield Smith, Julian Clarkson, Michael Fogarty, and Gregg Thomas of Holland & Knight, Tampa, for respondents.

Jim Smith, Atty. Gen., Joslyn Wilson and John J. Rimes, III, Asst. Attys. Gen., Tallahassee, amicus curiae for State of Fla., Dept. of Legal Affairs.

Joseph W. Little, Gainesville, amicus curiae for Joseph W. Little and Winston P. Nagan, faculty members of the University of Florida College of Law.

Steven Carta of Smith, Carta & Ringsmuth, Fort Myers, amicus curiae for News-Press Pub. Co., Inc., Cape Publications, Inc., The Tribune Co., Palm Beach News Papers, Inc., and News & Sun-Sentinel, Inc.

Parker D. Thomson, Sanford L. Bohrer, and Charles V. Senatore of Paul & Thomson, Miami, amicus curiae for The Miami Herald Pub. Co.

EHRLICH, Justice.

The decision of the First District in Marston v. Wood, 425 So.2d 582 (Fla. 1st DCA 1982), is before us on grounds of direct and express conflict with decisions of this Court and other district courts. Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974); News-Press Publishing Co. v. Carlson, 410 So.2d 546 (Fla. 2d DCA 1982); Krause v. Reno, 366 So.2d 1244 (Fla. 3d DCA 1979). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash the decision of the First District.

At issue is the applicability of Florida's Sunshine Law, section 286.011, Florida Statutes (1979), to a faculty committee which seeks out and screens applicants for a university position to which the university president must make the final appointment. When Joseph Julin announced his retirement as the dean of the University of Florida College of Law, university president Robert Q. Marston set in motion the mechanism by which a university dean is appointed. Sections 240.227(1) and (5), Florida Statutes (1979), vest in the university president authority to appoint academic deans. However, this authority is subject to a provision in the university constitution.

In making this appointment [a college dean] the President shall give consideration to the opinion of the faculty of the college concerned by consultation with a special committee of at least three faculty members elected by the faculty of the college.

Chapter IV, section 2(A)(3), Constitution of the University of Florida. (Emphasis supplied.) The president was also required to consult the faculty on the appointment by the accreditation standards of the American Association of Law Schools (AALS) and the American Bar Association (ABA). ¹ Nothing, however, required Marston to make the final choice from the recommended panel. Marston instructed the law school faculty to elect a search-and-screen committee. The ten-person committee consisted of seven faculty members, Chesterfield Smith, a prominent attorney and benefactor of the school, and two non-voting student members. The purpose of the committee was to solicit and screen applications for the deanship and to submit for faculty approval a list of the best qualified applicants before forwarding the list to Marston for the final selection. The committee was advised by a university vice president, Dr. Robert Bryan, in a document entitled "Openness Procedures for Search for Dean for the College of Law," to treat any discussion of the qualifications of particular candidates as privileged communication to take place only in executive session. In other words, the evaluation process was to take place "out of the sunshine."

Petitioners, representing local news media interests, filed a complaint against Marston and Professor Fletcher Baldwin, the chairman of the committee, seeking a declaratory judgment and temporary and permanent injunction prohibiting Marston and Baldwin from excluding the press or the public from meetings of the search-and-screen committee. On April 2, 1980, Circuit Judge R.A. Green, Jr., entered an order granting the requested temporary injunction upon the posting of a bond. Marston and Baldwin filed an appeal which resulted in an automatic stay of the injunction, but Green vacated the stay upon motion of the petitioners. The First District denied a motion to reinstate the stay and affirmed the temporary injunction without opinion.

On July 24, 1981, after a full evidentiary hearing at which both sides were represented and presented testimony, Circuit Judge Benjamin Tench entered final judgment permanently enjoining Marston and Baldwin from closing to the public any meetings of the search-and-screen committee during which official acts, including evaluations of candidates, would take place. Judge Tench later granted petitioners' motion for attorneys' fees and costs. Marston and Baldwin complied with the injunction in all respects and the search and screen procedures were subject to public scrutiny at all times. Nonetheless, respondents appealed the final judgment and the fee award.

The First District reversed the permanent injunction, the declaratory judgment and the cost and fee award and directed entry of a final judgment for the respondents. In reaching its decision, the First District found that the committee was shielded from the effect of the Sunshine Law ² by two common-law exceptions to its operation, the "staff exception" discussed in Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977) and Bennett v. Warden, 333 So.2d 97 (Fla. 2d DCA 1976), and "remoteness from the decision-making process" discussed in Bennett v. Warden.

We note that the Sunshine Law was enacted in the public interest to protect the public from "closed door" politics and, as such, the law must be broadly construed to effect its remedial and protective purpose. Canney v. Board of Public Instruction, 278 So.2d 260 (Fla.1973); Board of Public Instruction v. Doran, 224 So.2d 693 (Fla.1969). This Court has consistently refused to permit governmental entities to carry out decision-making functions outside the law. Canney; City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971); Doran. Respondents, however, argue that the Sunshine Law was never intended to be applicable to institutions of higher learning and that the search-and-screen committee is not a board or commission within the meaning of the law, contending that the legislature explicitly identifies universities or institutions of higher learning as such when it intends to include those entities within the provisions of an act. An examination of two chapters of Florida Statutes closely related in purpose and policy to the Sunshine Law refutes this contention.

Chapter 119, The Public Records Law, provides for public access to records made "in connection with the transaction of official business by any agency." § 119.011(1), Fla.Stat. (1981). Institutions of higher education are not specifically identified in the definition of agency. § 119.011(2), Fla.Stat. (1981). Nonetheless, the legislature's clear intention that the Public Record Law apply to universities is evidenced by the existence of two narrow exceptions to that law which limit access to certain student and employee records. See §§ 228.093, 240.237, 240.253, Fla.Stat. (1981). Thus, in the Public Records Law, the coverage is expressed generally; exemptions are identified explicitly.

Similarly, Chapter 120, Florida Statutes (1981), the Administrative Procedure Act (APA), which governs the manner in which governmental agencies may take official action, contains no explicit inclusion of universities or institutions of higher learning in its definition of "agency." § 120.52(1), Fla.Stat. (1981). On the other hand "educational unit" is defined to include state universities. § 120.52(6), Fla.Stat. (1981). Significantly, the only use of the term "educational unit" in the APA occurs in expressly excluding preparation and modification of curricula by an educational unit from the definition of "rule." § 120.52(14)(c)(4), Fla.Stat. (1981). Again, the legislature has enacted a law of broad applicability to which it has made an explicit exception for one specific activity of state universities.

A similar pattern emerges in considering the application of the Sunshine Law to institutions of higher learning. The legislature has explicitly exempted search-and-screen committees evaluating applicants for the positions of Chancellor of the Board of Regents and presidents of community colleges from the requirements of section 286.011. §§ 240.209(2), 240.319(3)(n), Fla.Stat. (1981). Thus, the conclusion is inescapable that the university is a state agency not exempted from the provisions of the Sunshine Act by any legislative enactment.

The search-and-screen committee had an admitted "fact-gathering" role in the solicitation and compilation of applications. It had an equally undisputed decision-making function in screening the applicants. In deciding which of the applicants to reject from further consideration, the committee performed a policy-based, decision-making function delegated to it by the president of the university through the faculty as a whole. Nor does the fact that the results were submitted to the faculty as a whole, which had the authority to review the work of the screening committee, render the committee's function any less policy-based or decision-making. The district court placed great emphasis on the fact that the faculty as a whole rejected one entire panel of candidates submitted by the committee and recommended for further consideration a candidate rejected by the committee, but we do not find this point dispositive.

The facts of this case are clearly analogous to the facts in Town of Palm Beach v. Gradison, News-Press Publishing Co. v. Carlson and Krause v. Reno....