HomeMy WebLinkAboutDocumentation_Pension General_Tab_18_02/01/2010THE LAW OFFICES OF
PERRY ~ JENSEN, LLC
ANN H. PERRY
aperry@perryjensenlaw.com
MEMORANDUM
To: Board of Trustees
Tequesta General Employees Pension Plan
From: Bonni S. Jensen, Legal Counsel
The Law Offices of Perry & Jensen, LLC
BONNI SPATARA JENSEN
bsjensen@perryjensenlaw.com
Subject: Attorney General Advisory Legal Opinion AGO 2009-56
Date: January, 2010
The Attorney General's office recently issued an Advisory Legal Opinion (copy
attached) regarding meetings of a retirement board via electronic technology and how this
is impacted by the Sunshine Law.
By way of background, Florida's Government in the Sunshine Law was enacted to
ensure access to government proceedings at all levels of Florida government. The
Sunshine Law protects the public from "closed door" politics and decisions and requires
that entities subject to the provisions of the Sunshine Law are "open to the public."
Additionally, the meetings require notice to the public.
The Attorney General's opinion can be divided into two parts: Electronic informal
discussions (workshop meetings) and meetings where a quorum is required. In the first
part of the opinion, the Attorney General has advised that a pension board may use the
Internet or other electronic media to conduct informal discussions provided that access is
provided to all members of the public who want to attend. Thus, access must be available
not only to those with a computer but those who do not have a computer. If such types of
workshop meetings are to be used, the board must designate a place where computers
or teleconference equipment with access to the meeting will be made available to the
public.
In the second part of the opinion, the Attorney General discussed the formal
meetings where a quorum is required. Provided a quorum is physically present in the
room, a board may use electronic technology in order to allow an absent member to attend
a public meeting.
400 EXECUTIVE CENTER DRIVE, SUITE 207•:• WEST PALM BEACH, FLORIDA 33401-2922
PH: 561.686.6550 •:• Fx: 561.686.2802
13
YQRM14b1a4tl
Memorandum -AGO 2009-56
Board of Trustees
Tequesta General Employees Pension Plan
January, 2010
Page 2 of 2
Plan of Action
If the Board believes that it may use such electronic media to allow Trustees to
participate in the meetings, I suggest that the following be added to any notice and agenda
for the meeting:
"This meeting may be conducted by or with electronic media technology.
The public access point for the meeting is [insert location for the meeting
where the quorum will be present]."
Please add this memo to your next meeting agenda for discussion and action.
BSJ/adt
January 26, 2010
H:1All MiscellaneousWLL BOARDS~2010WG0 2009-56.wpd
Florida Attorney General
Advisory Legal Opinion
Number: AGO 2009-56
Date: December 11, 2009
Subject: Quorum, participation by electronic means
Mr. Alan E. Greenfield
Alan E. Greenfield, P.A.
Post Office Box 801706
Aventura, Florida 33280-1706
RE: RETIREMENT - ADMINISTRATIVE AGENCIES - GOVERNMENT IN THE
SUNSHINE LAW - MEETINGS - QUORUM - authority of administrative
agency to adopt rule allowing participation by electronic means to
constitute quorum. s. 286.011, Fla. Stat.
Dear Mr. Greenfield:
On behalf of the retirement board of the City of Coral Gables, you
have asked for my opinion on substantially the following question:
May members of the City of Coral Gables retirement board promulgate
a rule allowing the use of electronic media technology in conducting
board meetings and stating that there is no physical presence
requirement to constitute a quorum for the conduct of official
business,-that is, that participation by a member of the board by
electronic media technology constitutes his or her presence for
purposes of establishing a quorum?
In sum:
The City of Coral Gables retirement board is not authorized to adopt
a rule allowing the use of electronic media technology in conducting
board meetings and providing that participation by a member of the
board by electronic media technology constitutes his or her physical
presence at the meeting for purposes of establishing a quorum.
According to your letter, the retirement board of the City of Coral
Gables consists of nine unpaid members, five of whom are appointed
by the city commission and four of whom are representatives from
various employee groups. You advise that the employee
representatives are frequently unable to attend meetings due to
emergency situations or are required to leave meetings to respond to
such emergencies. The professional and business representative
http://www.myfloridalegal.com/ago.nsf/printview/46DF6000A187227685257689006DDC... 1 /26/2010
members "find that their business or professional schedules conflict
with a scheduled Board meeting." Finally, you indicate that the
board's consultants and money managers are located in various parts
of the United States and cannot easily reschedule their calendars to
accommodate meetings that may be cancelled due to the absence of a
quorum. You state that it would facilitate the functions of the
retirement board to be allowed to conduct its business through the
use of electronic media and to meet the quorum requirement by
counting both those board members who are physically present at a
meeting as well as those who could attend remotely through
electronic means. My review of the city's pension plan ordinances
reveals that provisions exist specifically creating separate
retirement systems for police officers and firefighters independent
of this general retirement board for city employees. Thus, no
discussion of any requirements of pension boards operating under
Chapters 175 and 185, Florida Statutes, is contained herein.
Administration of the City of Coral Gables retirement system is
placed in the retirement board. [1] Among the specific powers the
board may exercise in administering the retirement system are the
following:
"(1) To determine all facts with regard to any participant's age,
normal retirement date, disability, amount of compensation, length
of service and credited service and date of initial coverage under
the system and, by application of the facts so determined and any
other facts deemed material, to determine a participant's amount of
benefit.
(2) To make rules and regulations for the administration of the
system which are not inconsistent with the terms and provisions
hereof .
(5) [T]o select, employ and compensate from time to time such
pension consultants, actuaries, accountants, attorneys, investment
managers and other agents and employees as the retirement board may
deem necessary or advisable in the proper and efficient
administration of the system and the trust agreement. .
(11) To cause a general investigation to be made by a competent
actuary, and at least once every five years thereafter, of the
retirement, disability, separation, mortality, interest and employee
earning rates; recommend, as a result of such investigation, the
tables to be adopted for all required actuarial calculations; and
cause an annual determination to be made by a competent actuary of
the liabilities and reserves of the system and the annual
determination of the amount of the contributions required by the
city and to maintain the funds of the system on a sound actuarial
http://www.myfloridalegal.com/ago.nsf/printview/46DF6000A187227685257689006DDC... 1/26/2010
basis. Any investigations, audits, determinations, or actuarial
studies shall be at the expense of the retirement system.
(12) To cause an audit of the affairs of the system to be made
annually by an independent certified public accountant and submit a
copy thereof to all interested parties as soon as possible after the
end of such fiscal year."[2]
The code of ordinances provides a quorum requirement for the board:
"A quorum of the retirement board, for the retirement board to
transact business, shall consist of six retirement board
members . " [ 3 ]
Further, "[a]11 actions and decisions of the retirement board shall
require the concurrence of a majority of the members of the
retirement board."[4]
Florida's Government in the Sunshine Law, section 286.011, Florida
Statutes, ensures a right of access to government proceedings at the
state and local levels. [5] The Sunshine Law was enacted in the
public interest to protect the public from "closed door" politics
and must be broadly construed to effect its remedial and protective
purpose. [6] A fundamental requirement of the Government in the
Sunshine Law is that meetings of entities subject to the provisions
of the Sunshine Law be "open to the public." "Open to the public,"
as that phrase is used in section 286.011, Florida Statutes, means
open to all persons who choose to attend. [7] Further, Florida courts
have held that the Sunshine Law extends to discussions and
deliberations as well as formal actions taken by a public board or
commission. [8]
Although members of municipal boards do not appear to be precluded
from utilizing the Internet to conduct informal discussions, such
discussions which are subject to the Sunshine Law are required to be
accessible to the public. [9] Groups such as the retirement board of
the City of Coral Gables must, therefore, ensure that access is
provided to all members of the public who wish to attend such
discussions.[10]
In addition, access must be available not only to those members of
the public possessing a computer with internet access, but also to
those who may not have access to the Internet. As this office
concluded in Attorney General Opinion 2001-66, places within the
jurisdiction of a board subject to the Sunshine Law must be
designated where computers with internet access will be made
available to members of the public who wish to participate in such
discussions. The notice of these discussions, required under the
Sunshine Law, should include the locations where such computers with
Internet access will be located.
http://www.myfloridalegal. com/ago.nsf/printview/46DF6000A187227685257689006DDC... 1/26/2010
For meetings where a quorum is required, this office, in a number of
formal and informal opinions, has stated that concerns about the
validity of official actions taken by a public body when less than a
quorum is present suggest a very conservative reading of the
statute.[11] This office has concluded that, in the absence of a
statute to the contrary, the requisite number of members must be
physically present at a meeting in order to constitute a quorum.[12]
While a quorum is not required for a meeting to be subject to the
Government in the Sunshine Law,[13] to the extent that any advisory
body is required to have a quorum in order to conduct official
business, it appears that the members of these bodies must, in the
absence of a statute to-the contrary, be physically present in order
to constitute a quorum.[14]
The term "quorum" is defined as "the number of members of a group or
organization required to be present to transact business legally,
usually a majority [ ; ] " [ 15 ] and " [t] he minimum number of members
(usu. a majority of all the members) who must be present for a
deliberative assembly to legally transact business."[16] (e.s.)
Thus, a quorum requirement, in and of itself, contemplates the
physical presence of the members of a board or commission at any
meeting subject to the requirement. While I acknowledge that the
City of Coral Gables ordinances creating the retirement board and
empowering it do not contain language referring to the physical
presence of a quorum of the members for the transaction of board
business, I believe that the legislative requirement of a quorum and
the designation of the number required to constitute a quorum argues
for the physical presence of that number of board members at a
meeting.
You have called to my attention provisions of Chapter 120, Florida
Statutes, the Administrative Procedures Act, which authorizes state
agencies and their boards and commissions to adopt rules providing
procedures for conducting public meetings, hearings, and workshops,
in person and by means of communications media technology.[17] This
office, in Attorney General Opinion 98-28, considered whether this
statute would authorize a school board, granted home rule powers and
exercising those powers for school purposes, to adopt its own rules
governing the use of electronic media technology for its meetings.
The opinion notes provisions of the school code requiring the
physical presence of a quorum and concludes that the district's
grant of home rule authority would allow the district to adopt its
own rules governing the use of electronic media technology for its
meetings, subject to the limitation that a quorum of the board's
members must be physically present at the meeting. However, unlike a
school board or municipality, an administrative agency possesses no
home rule powers and may only act within the scope of its
http://www.myfloridalegal. com/ago.nsf/printview/46DF6COOA187227685257689006DDC... 1 /26/2010
legislative authorization.[18]
The retirement board of the City of Coral Gables is a local board
made up of "citizens of the city" and persons employed by the city.
You have advised this office that problems have arisen not because
of the physical disability of the members of the board or the fact
that members are scattered throughout the state, but that business
and professional schedules conflict with scheduled board meetings
and members of the board have been called away to respond to work-
related emergencies. In addition, the board's consultants and money
managers find it difficult to schedule meetings with the board under
these circumstances. In discussing the Legislature's determination
that state agencies and their boards and commissions can conduct
meetings via communications media technology, this office recognized
the practicality of members from throughout the state participating
in meetings of the board or commission and noted that:
"While the convenience and cost savings of allowing members from
diverse geographical areas to meet electronically might be
attractive to a local board or commission such as a school board,
the representation on a school board is local and such factors would
not by themselves appear to justify or allow the use of electronic
media technology in order to assemble the members for a
meeting."[19]
The overarching concern of the Legislature with meaningful
interaction by the public with their local representatives would not
appear to be well served by allowing local governmental entities to
conduct business at arms length through the use of communications
media technology.
Likewise, in this situation, the occasional inconvenience to local
board members of attending a meeting of the retirement board in
person would not appear to this office to overcome the quorum
requirements in the Coral Gables ordinance and the public policy
consideration of meaningful interaction by the public with their
local representatives as required by the Government in the Sunshine
Law. This office has issued a number of opinions condoning the use
of electronic media technology when an absent member is physically
unable to attend a meeting due to medical treatment or physical
infirmity. The retirement board of the City of Coral Gables may use
electronic media technology in order to allow a physically absent
member to attend a public meeting if a quorum of the members of the
board is otherwise physically present at the meeting site. This
office has also suggested that local governmental entities may
conduct informal discussions and workshops over the Internet,
provided proper notice is given and interactive access by members of
the public is provided. However, those opinions specifically
recognize that where a quorum is necessary for action to be taken,
physical presence of the members making up the quorum is required in
http://www.myfloridalegal.com/ago.nsf/printview/46DF6000A 187227685257689006DDC... 1 /26/2010
the absence of a statute providing otherwise.[20]
Accordingly, it is my opinion that the City of Coral Gables
retirement board is not authorized to promulgate a rule allowing the
use of electronic media technology in conducting board meetings and
providing that participation by a member of the board by electronic
media technology constitutes his or her physical presence for
purposes of establishing a quorum.
Sincerely,
Bill McCollum
Attorney General
BM/tgh
[1] Art. II, s. 50-82, Code of Ordinances of the City of Coral
Gables.
[2] Id. at s. 50-94.
[3] Supra n.l at s. 50-89.
[4] Supra n.l at s. 50-90.
[5] See also Art. I, s. 24, Fla. Const., providing a right of access
to meetings of collegial public bodies. And see Frankenmuth Mutual
Insurance Company v. Magaha, 769 So. 2d 1012, 1021 (Fla. 2000),
noting that the Sunshine Law "is of both constitutional and
statutory dimension."
[6] See Wood v. Marston, 442 So. 2d 934, 938 (Fla. 1983); Canvey v.
Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla.
1973); Board of Public Instruction of Broward County v. Doran, 224
So. 2d 693 (Fla. 1969).
[7] See, e.g., Ops. Att'y Gen. Fla. 99-53 (1999) and 01-66 (2001).
[8] See Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973)
(Sunshine Law applies to any gathering, whether formal or casual, of
two or more members of the same board or commission to discuss some
matter upon which foreseeable action will be taken by the board or
commission).
[9] See, e.g., Op. Att'y Gen. Fla. 89-39 (1989), stating that a
board of county commissioners may use a computer network in the
course of conducting county business, but cautions that any
discussions between the members of the board via computer on issues
http://www.myfloridalegal. com/ago.nsf/printvi ew/46DF6000A 18 7227685257689006DDC... 1!26/2010
pending before the board would be subject to the provisions of s.
286.011, Fla. Stat.
[10] See Op. Att'y Gen. Fla. 01-66 (2001).
[11] See, e.g., Inf. Op. to John C. Randolph, dated November 24,
1997, and Ops. Att'y Gen. Fla. 01-66 (2001), 03-41 (2003), and 08-65
(2008) .
[12] See, e.g.,Ops. Att'y Gen. Fla. 83-100 (1983), 89-39 (1989), and
01-66 (2001) .
[13] See n.8, supra.
[14] See Op. Att'y Gen. Fla. 98-28 (1998), recognizing that the
authorization in s. 120.54(5)(b)2., Fla. Stat., for the use of
communications media technology to conduct meetings applied only to
state agencies.
[15] Webster's New Universal Unabridged Dictionary p. 1588 (2003).
[16] Black's Law Dictionary p. 1284 (8th ed., 2004).
[17] Section 120.54 (5) (b) 2 . , Fla. Stat.
[18] An administrative agency possesses no inherent power and may
exercise only such authority as is expressly or by necessary
implication conferred by law. See Lang v. Walker, 35 So. 78, 80
(Fla. 1903), Lessner v. Del-Air Corporation, 17 So. 2d 522 (Fla.
1944), Ops. Att'y Gen. Fla. 2004-30, 86-46 (1986), 78-101 (1978), 75
-299 (1975), 71-28 (1971), 73 C.J.S. Public Administrative Law and
Procedure s. 50 (1983). Any reasonable doubt as to the lawful
existence of a particular power sought to be exercised by an
administrative agency must be resolved against the exercise thereof.
State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So.
2d 628 (Fla. 1st DCA 1974), cert. dismissed, 300 So. 2d 900 (Fla.
1974); City of Cape Coral v. G.A.C. Utilities, Inc., of Florida, 281
So. 2d 493 (Fla. 1973).
[19] See Op. Att'y Gen. Fla. 98-22 (1998).
[20] See Ops. Att'y Gen. Fla. 01-66 (2001) and 02-82 (2002) .
http://www.myfloridalegal.com/ago.nsf/printview/46DF6000A 187227685257689006DDC... 1/26/2010