Legal Report, February 2018

General Counsel, Jennifer G. Ashton

  1. City of St. Petersburg v. Wright, 2018 Fla. App. LEXIS 2179 (Fla. 2d DCA 2018). Sunshine Law; Shade Meetings.

Wright sued the City of St. Petersburg (“City”) seeking injunctive relief and a declaratory judgment, alleging that the City violated Florida’s Government in the Sunshine Law. The City held a “shade” meeting on October 13, 2011 in response to litigation against the City filed by four homeless plaintiffs challenging the City’s trespass ordinance. Immediately following the shade meeting, the Council took up and voted to approve an ordinance amendment that had been discussed during the shade meeting. The trial court held that the Council did not break the law during the shade meeting, but did violate statutory notice requirements in voting on an ordinance after emerging from the shade meeting.  Both parties appealed the decision.

On appeal, the Second DCA affirmed the statutory notice violation for the ordinance, but reversed the trial court’s ruling on the Sunshine Law.  The Second DCA held that the Council did in fact violate the Sunshine Law during its private attorney-client session. The court reiterated that there is only a limited exemption from the open meeting requirement for meetings between a public body and its attorney in Section 286.011(8)(b), F.S. That body may meet in private with the attorney to discuss pending litigation to which the entity is presently a party, provided that: 1) the attorney shall advise the entity at a public meeting that he/she desires advice concerning the litigation, and 2) the subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.

Here, the transcript from the City’s October 13, 2011 shade meeting conclusively reflected that the participants did not limit themselves to discussing settlement or litigation expenditures. Instead, there was only brief discussion of how the City would avoid attorney’s fees in the litigation.  The majority of the discussion involved the specifics of a proposed amendment to the City’s trespass ordinance and the need to quickly resume issuing trespass warnings to homeless individuals.  Specifically during the shade meeting, the Assistant City Attorney presented a draft ordinance to the Council that would allow for appeals of trespass warnings, Council Members reviewed the draft amendment together, discussed the urgency of and policy reasons for adopting the amendment, and expressed their consensus in favor of the amendment.  The Court held that “the shade meeting was used to crystallize a secret decision to a point just short of ceremonial acceptance, in violation of Florida's Sunshine Law.”