Secret Meetings

By Michael J. Gelfand, Esq. / Published July 2023

S

ecret Meetings: Convictions and Jail Time; Warnings To Community Association Directors?

     Being in the wrong place at the wrong time must have been the understatement of a lifetime for two city council members. Important lessons can be learned by Florida community associations from how the courts address meetings that are not properly noticed and are held contrary to the law.

     The consequences of an improper meeting were recently addressed by a Florida appellate court. In two related cases, the appellate court ruled that two Sebastian city council members violated Section 286.011, Fla. Stat. (2019), Florida’s Sunshine Law, when they held a meeting after an announcement that the meeting was canceled.

     The facts in Parris v. State of Florida, 48 Fla. L. Weekly D 733 (Fla. 4th DCA, April 12, 2023), and Gilliams v. State of Florida, 48 Fla. L. Weekly D 739 (Fla. 4th DCA, April 12, 2023), indicate that a City of Sebastian council meeting was scheduled for April 22, 2020. The date, time, and agenda were publicized to the city’s residents. That afternoon at 2:36 p.m., the city manager sent an email postponing the meeting. Nonetheless, later that night Gilliams, Parris, and Mauti proceeded to hold a meeting where they voted to terminate the employment of the city manager, the city attorney, and the city clerk, as well as voting to remove and replace the city’s mayor with Gilliams.

     Gilliams and Parris were charged with a number of offenses. Tried together in one trial, both were found guilty and then appealed. In both cases the appellate court affirmed the convictions based on Sunshine Law violations.

     In both decisions, the appellate court noted that the Sunshine Law provides the following:

All meetings of any board or commission of any state agency or authority of any county, municipal corporation, or political subdivision…at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

     This wording will seem familiar. The Sunshine Law is similar to Florida’s Condominium Act and Homeowners’ Association Act requirements for open board of directors’ meetings!

     Although the Sunshine Law does not apply to condominium and homeowners’ associations, similarities in the condominium and homeowners’ laws open meeting wording and the policies behind those laws allow Florida community associations that question open meeting requirements to be guided by court decisions applying the Sunshine Law.

     The court made clear that open meeting requirements must be taken very seriously. One of the appellate judges wrote in both decisions that city open meeting requirements were necessary to take decisions out of the “rear smoke-filled rooms.” The same can be said of many Florida community association situations. Reinforcing the process for open city meetings, the court noted that reasonable notice of their meeting must be given in Florida community associations, similar to meetings of public officials.

     Important also for general application in other circumstances, the appellate court rejected the defendants’ argument that the Sunshine Law was unconstitutionally vague, the defendants asserting that the phrase “reasonable notice” was not defined in the statute. In a very practical approach, the court looked up the dictionary definition! “Reasonable” is defined as “fair and sensible.” “Notice” is defined as “information or warning that something is going to happen.”

     The court appeared to conclude, easily, that both Parris and Gilliams knowingly participated in a meeting that was not “open to the public” and for which “reasonable notice” was not given.

     The bottom line is that Florida community associations need to also take open board of directors’ meeting requirements seriously. This starts with providing proper notice. Then there is the need to allow members to attend, albeit subject to limited statutory exceptions. Though not addressed by the two decisions, associations are reminded of members’ general ability to speak on agenda topics. Last but not least, if after noticing a meeting the meeting is canceled, rescheduling likely requires notice.

     A little bit of effort up front saves time and consternation, as well as hopefully avoiding claims of “rear smoke-filled room” improprieties and litigation challenging the validity of meeting decisions!

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the senior partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar board-certified lawyer in condominium and planned development law and in real estate law, a certified circuit and county civil court mediator, a homeowners association mediator, an arbitrator, and parliamentarian. He is a past chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or 561-655-6224.