E-MAIL EXCHANGE:

Wed 11/19/2008 12:22 AM

Subject: RCCAM Meeting Tampa -- Your opinion: Written presentation would violate Sunshine Law?

Ms. Edwards,

I listened quite a few times to the recording of the RCCAM meeting in Tampa on Friday, November 7, 2008.

Actually, the discussion about allowing or disallowing council member Terence Brennan to make a presentation titled:  "PROPOSALS FOR RESTORING TRUST IN CAM LICENSES" took 28 minutes, including a 5-minute break that lasted 10 minutes.  In my opinion it was a waste of valuable meeting time caused by your opinion that allowing this presentation to be made would violate the Sunshine Law.

Allow me to ask how you came up with that interpretation?  I hope you were not just shooting from the hip and that you have more factual legal reasons to back up your opinion than what you stated in the ensuing discussion?  Even after Mr. Benson quoted the Florida Attorney General Advisory Legal Opinion Number: AGO 75-305, subject: Acting on matter not on agenda, you insisted on being correct.

I would like to give you the opportunity to offer me any good reasons why you opined that this presentation would violate the Sunshine Law before going public with this matter.  Considering that Mr. Brennan had asked DBPR staff that such an agenda item should be included on the agenda in the first place, your action can only be construed as trying to censor a council member, especially if certain people don't want to hear what Mr. Brennan has to say.

Just for your information: As a member of the HOA Task Force, created by Governor Jeb Bush in 2003, we listened to many presentations of Task Force members, who distributed these presentations as well in writing.  We considered it good policy, because we were able to take this "opinion" home and come well prepared to the next meeting for the discussion.

For your info: A member of the AG's office was a HOA Task Force member, there was always minimum one DBPR attorney present to oversee procedure, and 7 (seven) more attorneys served as HOA Task Force members.  Never even an argument about violating the Sunshine Law.  And I can assure you that the agendas didn't list items like : Presentation by Task Force member (name)....!

There was only once an argument about me distributing a written document to the HOA Task Force members.  This argument was caused by two attorneys who objected that I handed every member the copy of a malpractice lawsuit filed against one of these attorneys.  The dispute was decided in my favor.

As much as I understand that some opinions and written presentations may be disliked by some, the Sunshine Law should be the last thing used to hamper free speech and hinder open discussions.

Or maybe the Council members should bring a friend to the meetings to make these kinds of presentations in order to avoid violating the Sunshine Law, as interpreted by you?

I'm looking forward to hearing from you if you have some legal quotes available that would back up your "opinion" that the presentation would have violated the Sunshine Law before we bring this issue to the attention of our Governor and the Florida legislators!

Thank you!

Warm Regards,

Jan Bergemann, President
Cyber Citizens For Justice, Inc.

RESPONSE RECEIVED:

Fri 11/21/2008 12:06 PM

Mr. Bergemann:

I advised the Council not to consider information that was not on the agenda. Mr. Brennan, a new

Council member, brought a lengthy document that he wanted to distribute and talk about. The 2008

Government-In-The-Sunshine-Manual, prepared by the Office of the Attorney General, quotes AGO 03- 53, as follows: "In the spirit of the Sunshine Law, the city commission should be sensitive to the

community's concern that it be allowed advance notice and, therefore, meaningful participation on

controversial issues coming before the commission." 2008 Sunshine Manual @ 41. However, the

decision in that instance and the case cited, Yarborough v. Young, 462 So.2d 515 (Fla. 1st DCA 1985) therein, turns on the fact that the Sunshine law does not mandate an agenda unlike the Administrative Procedure Act, Chapter 120.525(2), Florida Statutes, which does. "An agenda shall be prepared by the agency in time to ensure that a copy of the agenda may be received at least 7 days before the event by any person in the state who requests a copy and who pays the reasonable cost of the copy. The agenda shall contain the items to be considered in order of presentation. After the agenda has been made available, a change shall be made only for good cause, as determined by the person designated to preside, and stated in the record. Notification of such change shall be at the earliest practicable time." Id. Taken together, the requirements of the Sunshine law and the Administrative Procedure Act, formed the basis for my opinion. I did make it clear during my various presentations at the meeting, that my opinion is not binding on the Council. Members are free to disregard my advice. In this instance, the Council determined to follow my advice. You are certainly free to disagree with m y opinion. Additionally, although Mr. Brennan is a new Council member, and as such is not familiar with the prior decisions of the Council, the Council agreed and voted that the Chair and the ED discuss and determine what is to be included on the Agenda. The agenda for the CAMS Council does not include a “New Business” heading or an “Other Council Action” heading, as was the situation in AGO 75-305, but does have a heading entitled “Suggested Topics for the Next Meeting” which provides for the identification of

subjects that either Council Members or the Public would like the Council to address at its next meeting. I do not believe that Mr. Brennan decided to proceed that way, but my recollection may be incorrect on that point. I do believe I suggested it as a way forward.

Yours truly,

(No Signature on attached pdf file)