From the Legal Hotline (1-877-NEWS-LAW)

From the Legal Hotline (1-877-NEWS-LAW)

Q. Our city manager has set up an invitation-only cocktail party to introduce the three finalists for the position of police chief to invitees. All city council members have been invited as have city department heads and, we have been told, select members of the public. The choice of chief is the city manager’s; council only votes if his recommendation is to go above-mid scale compensation and then only on the compensation question.

Should this meeting be open to the public?

Should it have been advertised?

Would the meeting be open if the city manager limits it to members of council and staff, with no “outside” parties to the be included? (The city sometimes uses a “stakeholder group” to include some members of the public. “Stakeholders” are individuals so designated by the city manager. Would this make a difference?)

A .Members of the council are not prohibited under the Sunshine Law from meeting together socially, provided that matters which may come before the board or commission are not discussed at such gatherings. Here, all the city council members, the city manager, and the finalists will be there. So, while they might not intend to discuss the hiring, it seems like a poor format to bring the council members together to interact with each other, which could lead to discussion about the hiring. While the hiring isn’t the council’s decision, they could be potentially involved re: compensation.

AGO 72-158. Cf. AGO 71-295, cautions that “[p]ublic bodies should avoid secret meetings, from which the public and the press are effectively excluded, preceding official meetings, even though such secret meetings are held ostensibly for purely social purposes only and with the understanding that the members of the public body will, in good faith, attempt to avoid any discussion of official business.”

As for whether the meeting should be advertised, it would only have to be advertised/noticed if the meeting is subject to the Sunshine Law, although, technically, it does not have to be in a newspaper ad if there are other methods that provide adequate/reasonable notice.

Regarding your last question, the Sunshine Law applies to meetings of elected or appointed boards; it does not ordinarily apply to staff committees or meetings. Thus, a committee composed of staff (city manager and staff) that is responsible for advising and informing the decision-maker through fact-finding consultations is not subject to the Sunshine Law.

We also asked Virginia Hamrick counsel at First Amendment Foundation. She agrees that this is a poor format. The Sunshine Law is meant to frustrate all evasive devices. There could be an opportunity to discuss competitions and matters that will foreseeably come before the board for consideration.

Q. Our county recently updated its protocols for media covering the board of county commissioners meetings. The protocols require media to coordinate with the county public relations office prior to attendance of or coverage of any meetings. Media must check in at the front desk of the building, and a representative will escort media members to their desired location. Further, no interviews of county commissioners or staff will be allowed prior to or following any meetings without prior coordination with the public relations office and “preferably outside.” Finally, there are restrictions on location and set up of video equipment and personnel. Are these restrictions valid?

A. The general rule is that in the absence of a compelling governmental interest, agencies may not single out and exclude a particular news organization or reporter from press conferences. Yet, this is what the county is doing by imposing these special requirements on the media. As a result, they appear improper and unenforceable for the most part.

We also asked Jim McGuire at Thomas, LoCicero firm, who agrees. He indicates that these are open meetings. Why do members of the media have to coordinate their attendance when no one else does? Can the public record the meetings on their phones? If so, then the media can as well without seeking permission. And the county can’t tell the media not to interview commissioners without first getting permission. Media can talk to whoever they want. If a commissioner doesn’t want to speak, he doesn’t have to.

Rachel Fugate with the Shullman Fugate law firm in Tampa and an expert in media access, also had many of the same concerns, as follows:

  • Requiring media to coordinate with the county prior to coverage and to check in and be escorted to the meeting: I’m not sure if this was designed more for camera coverage of proceedings (it may make more sense in this context so that a pool camera can be arranged – similar to coverage of court proceedings), but on its face, it applies to any reporter that simply wants to attend and cover a meeting. I think this could easily restrict or chill media coverage. First, it places a prerequisite on access. Any threshold, affirmative barrier to entry is highly suspect because it can be a tool to limit undesirables or even catch the reporter who is running late or is re-assigned or simply forgot to coordinate. (Also, how soon beforehand must the coordination take place?). Second, it is not a content-neutral restriction, either, as it specifically limits the press in a way that it does not the general public. Third, the potential problem of policing who qualifies as “media” for purposes of this section—as well as no apparent policy for either determining who qualifies or enforcing this section—could lead to arbitrary and capricious results
    Finally, requiring the media to check in and be escorted to the meeting, essentially requires permission for them to attend. This issue was addressed by an advisory opinion. See AO 96-55 (considering a policy invalid under the Sunshine Law “where permission must be given in order to enter the room where the meeting is held”). This policy, especially absent any security concerns, truly appears to chill attendance.
    • Interviews: Aside from its burdensome nature, this language is vague, as what constitutes “out of the way” leaves potential violations in the hands of whoever happens to be present at the time, which poses a significant chilling effect on expression. “Preferably” is also untenable policy language. There may also be a First Amendment issue; the judge in the CNN v. Trump case punted on the issue of whether the First Amendment prevented the White House from revoking Jim Acosta’s press pass (and instead ruled on narrower Fifth Amendment grounds), but the question remains open.
    • Video restrictions: These provisions are probably okay, and are similar to what media face when recording court proceedings. We should keep an eye on this, however, to make sure the policy is not used to stifle recording. Practically, one possible problem could be ensuring that a running camera or other equipment set up behind the dais is still functioning properly without constant attention. I’d like to know how the policy is actually being implemented and enforced. Perhaps local media could form a coalition and try and have a sit down with the county to discuss.

[Epilogue–Note that after the above concerns and others were relayed to the county, officials reversed course and rejected the changes saying they never approved them before being sent out.]

Q. We are trying to come up with a policy on letters to the editor with the goal of not making the disclaimer too detailed or onerous. How about the following—”Letters to the editor may have factually incorrect information. The newspaper has an open-door policy on what letters are published as this is an opinion section and we believe in giving readers a forum.”

A. Technically, a newspaper can be held liable for anything that appears within its pages, even false content in letters to the editor—although many defenses exist. As a result, I would not acknowledge that the paper might be printing false information. Maybe something like: “The newspaper believes in giving our readers a forum to express their views. The views expressed are those of the authors and not necessarily those of the newspaper.”