A LOOK AT SENATE BILL 50 -- WHAT ARE MY OPTIONS? Patrick F. McCormack County Attorney St. Johns County, Florida November 13, 2013
Road Map Background – why SB 50 was approved Key provisions and options Conclusions Questions
Background HOA Example Court decisions triggering SB 50 2011 Legislation (Failed) 2012 Legislation (Failed) 2013 Legislation (SB 50)
HOA Right to Speak (2004) 720.306(6) RIGHT TO SPEAK.—Members and parcel owners have the right to attend all membership meetings and to speak at any meeting with reference to all items opened for discussion or included on the agenda. Notwithstanding any provision to the contrary in the governing documents or any rules adopted by the board or by the membership, a member and a parcel owner have the right to speak for at least 3 minutes on any item. The association may adopt written reasonable rules governing the frequency, duration, and other manner of member and parcel owner statements, which rules must be consistent with this subsection.
Two Cases Keesler v. Community Maritime Park Associates, Inc. , 32 So.3d 659 (Fla. 1 st DCA 2010) Kennedy v. St. Johns Water Management District , (Trial Court Order)
SB 310 (2011) Would have amended Section 286.011 to provide an opportunity for members of the public to be heard before or during consideration of any agenda item on which an official act will be taken, subject to reasonable rules or policies… Provided exceptions for emergency situations and ministerial acts Died in Governmental Oversight and Accountability
SB 206 (2012) Substantially similar to SB 50 (2013) unanimously approved by Senate Died in messages in the House
PROBLEMS With SB 206 First, the text provides for a limitation on board rules or policies and we believe such limitation, as currently stated, would preclude or undermine reasonable civility and decorum rules meant to preserve good order for the benefit of the public and the board. The limitations on board rules or policies would possibly negate or undermine board rules or policies against yelling, screaming, name calling, scandalous commentary, and other inappropriate behavior disruptive to the public process. Second, the text limitations on board rules or policies would appear to even prohibit rules and policies unrelated to public comment, such as rules on setting the agenda, duties of the presiding chair, rules of debate, etc. Third, the term “proposition” in the text is not defined, and is sure to cause a lot of confusion. For example, if a motion is amended, is that a new “proposition” that must be opened again for public comment? Fourth, while the text provides a number of exceptions, including for ministerial acts and quasi- judicial proceedings (which are subject to their own rules), there is no exception for traditionally executive decisions such as choosing the chair and vice-chair, directing staff, etc. Fifth, while the text provides sanctions against individuals for bad faith or frivolous filings under the section, the text should clarify that such provision is supplemental to and does not replace Section 57.105, Florida Statutes.
SB 50 (2013) Adds definition of “Board or Commission” Provides that nothing prohibits a Board or Commission from maintaining orderly conduct or proper decorum in a public meeting
Key Provisions of SB 50 – (Ch. 2013-227, Laws of Florida Section 286.114, F.S.) (1) For purposes of this section, “board or commission” means a board or commission of any state agency or authority or of any agency or authority of a county, municipal corporation, or political subdivision.
“Board or Commission” Board or Commission includes BCC and all BCC appointed boards or commissions Probably includes “staff” development review committees (DRC’s), procurement selection panels, etc. for on-quasi-judicial matters
(2) Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission. The opportunity to be heard need not occur at the same meeting at which the board or commission takes official action on the proposition if the opportunity occurs at a meeting at which the board or commission takes the official action. This section does not prohibit a board or commission from maintaining orderly conduct or proper decorum in a public meeting. The opportunity to be heard is subject to rules or policies adopted by the board or commission, as provided in subsection (4).
Reasonable opportunity to be heard Notice required Must board respond to questions?
S Published i regular g “Red agenda n Folder” i Added at f beginning of i meeting c a Added n during c meeting e Notice
Published Agenda Item: “Additions and Deletions to Agenda” should be part of the published agenda. This gives public notice that the agenda may change.
Right to be heard, but not responded to, except e.g., F.S. 200.065(2)(e)(1) – During such discussion, the governing body shall hear comments regarding the proposed increase and explain the reasons for the proposed increase over the rolled-back rate. The general public shall be allowed to speak and to ask questions prior to adoption of any measures by the governing body.
on a proposition What is proposition – the agenda item, or each motion and amended motion? Reason to believe it means the item, not each individual motion Reasonability test
The opportunity to be heard need not occur at the same meeting at which the board or commission takes official action on the proposition if the opportunity occurs at a meeting at which the board or commission takes the official action. Committee of Board or Commission?
This section does not prohibit a board or commission from maintaining orderly conduct or proper decorum in a public meeting. Restriction on person who makes “personal, impertinent or slanderous remarks or who shall become boisterous” at public comment is content neutral and may be used as a permissible time, place, and manner regulation. Brown v. City of Jacksonville, Fla. – Not reported in F.Supp.2d, 2006 WL 385085; M.D.Fla., 2006 See also, Jones v. Heyman, 888 F.2d 1328, C.A.11 (Fla.), 1989 Local government public meeting is limited public forum Cleveland v. City of Cocoa Beach , 221 Fed.Appx. 875, 2007 WL 869055 (C.A. 11 (Fla.)) Direct comments to the Board (SJC decorum)
The opportunity to be heard is subject to rules or policies adopted by the board or commission, as provided in subsection (4).
( 3)The requirements in subsection (2) do not apply to: Emergency situation when compliance would cause unreasonably delay Ministerial act Meeting that is exempt from s. 286.011 Meeting at which board acting in a quasi-judicial capacity
(4) Rules or policies of a board or commission which govern the opportunity to be heard are limited to those that: Provide guidelines regarding the amount of time an individual has to address the board or commission; Prescribe procedures for allowing representatives of groups or factions on a proposition to address the board or commission, rather than all members of such groups or factions, at meetings in which a large number of individuals with to be heard; Prescribe procedures or forms for an individual to use in order to inform the board or commission of a desire to be heard; to indicate his or her support, opposition, or neutrality on a proposition; and to indicate his or her designation of a representative to speak for him or her or his or her group on a proposition if he or she so chooses; or Designate a specified period of time for public comment.
(5) If a board or commission adopts rules or policies in compliance with this section and follows such rules or policies when providing an opportunity for members of a public to be heard, the board or commission is deemed to be acting in compliance with this section.
Conclusions Don’t be sneaky When in doubt, let them spout Maintain reasonable order
Questions?
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