However, a discussion or activity that is not a meeting for purposes of the Sunshine Law shall not be construed to waive the attorney-client privilege established in s. 90.502, F.S. Section 90.502(6), F.S. See Collier County Public Schools v. Mason Classical Academy, Inc., 342 So. 3d 753 (Fla. 2d DCA 2022), in which the court observed that s. 90.502(6), F.S., permits school district employees to claim the attorney-client privilege if they can establish that their conversations with counsel were protected by the privilege.
There are statutory exemptions, however, which apply to some discussions of pending litigation between a public board and its attorney.
a. Settlement Negotiations or Strategy Sessions Related to Litigation Expenditures
Section 286.011(8), F.S., provides:Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity’s attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, provided that the following conditions are met:
(a) The entity’s attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation.
(b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.
(c) The entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter’s notes shall be fully transcribed and filed with the entity’s clerk within a reasonable time after the meeting.
(d) The entity shall give reasonable public notice of the time and date of the attorney-client session and the names of persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney-client session and the names of the persons attending. At the conclusion of the attorney-client session, the meeting shall be reopened, and the person chairing the meeting shall announce the termination of the session.
(e) The transcript shall be made part of the public record upon conclusion of the litigation. (e.s.)
(1) Strict Compliance with Statutory Conditions
It has been held that the Legislature intended a strict construction of s. 286.011(8), F.S. City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995). “The clear requirements of the statute are neither onerous nor difficult to satisfy.” Id. at 1027. Accord School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996).While section 286.011(8), F.S., does not specify who calls the closed attorney-client meeting, it requires that the governmental entity’s attorney “shall advise the entity at a public meeting that he or she desires advice concerning the litigation.” Thus, the exemption merely provides a governmental entity’s attorney an opportunity to receive necessary direction and information from the governmental entity regarding pending litigation. AGO 04-35. Accordingly, one of the conditions that must be met prior to holding a closed attorney-client meeting is that the city attorney must indicate to the city council at a public meeting that he or she wishes the advice of the city council regarding the pending litigation to which the city is presently a party before a court or administrative agency. Inf. Op. to Vock, July 11, 2001. “If the city attorney does not advise the city council at a public meeting that he or she desires the council’s advice regarding the litigation, the city council is not precluded from providing such advice to the city attorney but it must do so at a public meeting.” Id.
The requirement that the board’s attorney advise the board at a public meeting that he or she desires advice concerning litigation is not satisfied by a previously published notice of the closed session; such an announcement must be made at a public meeting of the board. AGO 04-35. The request may be made during a special meeting provided that the special meeting at which the request is made is open to the public, reasonable notice has been given, and minutes are taken. AGO 07-31.
In City of Dunnellon v. Aran, supra, the court said that a city council’s failure to announce the names of the lawyers participating in a closed attorney-client session violated the Sunshine Law. The court rejected the city’s claim that when the mayor announced that attorneys hired by the city would attend the session (but did not give the names of the individuals), his “substantial compliance” was sufficient to satisfy the statute. Cf. Zorc v. City of Vero Beach, 722 So. 2d at 901, noting that deviation from the agenda at an attorney-client session is not authorized; while such deviation is permissible if a public meeting has been properly noticed, “there is no case law affording the same latitude to deviations in closed door meetings.”
(2) Permitted Discussions During Closed Session
Section 286.011(8)(b), F.S., states that the subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. If a board goes beyond the “strict parameters of settlement negotiations and strategy sessions related to litigation expenditures” and takes “decisive action,” a violation of the Sunshine Law results. Zorc v. City of Vero Beach, 722 So. 2d at 900. And see AGO 99-37 (closed-meeting exemption may be used only when the attorney for a governmental entity seeks advice on settlement negotiations or strategy relating to litigation expenditures; such meetings should not be used to finalize action or discuss matters outside these two narrowly prescribed areas). Accord AGO 04-35.Section 286.011(8), F.S., “simply provides a governmental entity’s attorney an opportunity to receive necessary direction and information from the government entity. No final decisions on litigation matters can be voted on during these private, attorney-client strategy meetings. The decision to settle a case, for a certain amount of money, under certain conditions is a decision which must be voted upon in a public meeting.” School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99, 100 (Fla. 1st DCA 1996), quoting Staff of Fla. H.R. Comm. on Gov’t Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement 2 (Fla. State Archives), at 3.
Thus, “[t]he settlement of a case is exactly that type of final decision contemplated by the drafters of section 286.011(8) which must be voted upon in the sunshine.” Zorc v. City of Vero Beach, 722 So. 2d at 901. Accord AGO 08-17 (any action to approve a settlement or litigation expenditures must be voted on in a public meeting).
Accordingly, a court found that a city did not comply with s. 286.011(8), F.S., when it held closed meetings that “covered a wide range of political and policy issues not connected to” settlement of pending litigation regarding a comprehensive plan amendment or litigation expenses relating to the pending cases which at that point were on appeal. “While some of the discussion at these meetings did in fact involve the costs associated with the pending litigation, by and large the meetings pertained to finding a way to readopt the comprehensive plan amendment that had been invalidated by the court and to avoid future litigation regarding the readopted amendment.” Anderson v. City of St. Pete Beach, 161 So. 3d 548, 553 (Fla. 2d DCA 2014).
Similarly, a city council violated the Sunshine Law where the “great majority” of the discussion at an attorney-client session concerned the specifics of a proposed amendment to the city’s trespass ordinance which was designed to address concerns expressed in a federal court decision finding the ordinance to be unconstitutional. City of St. Petersburg v. Wright, 241 So. 3d 903 (Fla. 2d DCA 2018). The participants at the closed meeting “did not limit themselves to discussing settlement or litigation expenditures” in the federal litigation. Id. See also Freeman v. Times Publishing Company, 696 So. 2d 427 (Fla. 2d DCA 1997) (discussion of methods or options to achieve continuing compliance with a long-standing federal desegregation mandate [such as whether to modify the boundaries of a school zone to achieve racial balance] must be held in the sunshine). Compare Bruckner v. City of Dania Beach, 823 So. 2d 167, 172 (Fla. 4th DCA 2002) (closed city commission meeting to discuss various options to settle a lawsuit involving a challenge to a city resolution, including modification of the resolution, authorized because the commission “neither voted, took official action to amend the resolution, nor did it formally decide to settle the litigation”).
(3) Entity Involved in Pending Litigation
Section 286.011(8) permits an entity to use the exemption if the entity “is presently a party before a court or administrative agency....” For example, a city council and its attorney may hold a closed-door meeting pursuant to this statute to discuss settlement negotiations or strategy related to litigation expenditures for pending litigation involving a workers’ compensation suit against the city because the system prescribed in ch. 440, F.S., “operates as a means of adjudicating workers’ compensation claims and would be considered litigation before an administrative agency.” AGO 96-75.In Brown v. City of Lauderhill, 654 So. 2d 302 (Fla. 4th DCA 1995), the court said it could “discern no rational basis for concluding that a city is not a ‘party’ to pending litigation in which it is the real party in interest.” And see Zorc v. City of Vero Beach, 722 So. 2d at 900 (city was presently a party to ongoing litigation by virtue of its already pending claims in bankruptcy proceedings); and AGOs 09-15 (exemption applicable when city is real party in interest of a pending lawsuit despite not being a named party at the time of the meeting), and 08-17 (health care district may hold a closed attorney-client meeting to discuss settlement negotiations and strategies related to litigation expenditures for pending litigation in which its wholly-owned subsidiary holding company is the named party).
Although the Brown decision established that the exemption could be used by a city that was a real party in interest on a claim involved in pending litigation, that decision does not mean that an agency may meet in executive session with its attorney where there is only the threat of litigation. See AGOs 04-35 and 98-21 (s. 286.011[8] exemption “does not apply when no lawsuit has been filed even though the parties involved believe litigation is inevitable”).
Similarly, s. 286.011(8), F.S. “may not be used to conduct a closed meeting during a mandatory arbitration proceeding, when there is no pending legal proceeding in a court or before an administrative agency.” AGO 13-17. And see AGOs 06-03 (exemption not applicable to pre-litigation mediation proceedings), 09-14 (exemption not applicable to discussion of terms of mediation in conflict resolution proceedings under the “Florida Governmental Conflict Resolution Act,” ss. 164.101-164.1061, F.S.), and 09-25 (town council which received pre-suit notice letter under the Bert J. Harris Act, s. 70.001, F.S., is not a party to pending litigation for purposes of s. 286.011[8], F.S).; and Inf. Op. to Barrett, February 17, 2016 (board not authorized to use exemption to discuss pending investigation and subpoena where there is no ongoing judicial or administrative proceeding).
(4) Persons Authorized to Attend Closed Session
Only those persons listed in the statutory exemption, i.e., the entity, the entity’s attorney, the chief administrative officer of the entity, and the court reporter are authorized to attend a closed attorney-client session. Thus, other staff members, consultants, or officials are not allowed to be present. School Board of Duval County v. Florida Publishing Company, 670 So. 2d at 101. See Zorc v. City of Vero Beach, 722 So. 2d 891, 898 (Fla. 4th DCA 1998), review denied, 735 So. 2d 1284 (Fla. 1999) (city charter provision requiring that city clerk attend all council meetings does not authorize clerk to attend closed attorney-client session; municipality may not authorize what the Legislature has expressly forbidden); AGO 01-10 (clerk of court not authorized to attend); and AGO 09-52 (attorneys representing superintendent not authorized to attend closed session to discuss settlement of administrative action in which school board is the named party). Cf. AGO 95-06 (s. 286.011(8), F.S., does not authorize the temporary adjournment and reconvening of meetings in order for members who are attending such a session to leave the room and consult with others outside the meeting).Since the entity’s attorney is permitted to attend the closed session, if the school board hires outside counsel to represent it in pending litigation, both the school board attorney and the litigation attorney may attend a closed session. AGO 98-06. See Zorc v. City of Vero Beach, 722 So. 2d at 898 (attendance of special counsel authorized). And see AGO 08-42 (qualified interpreters for the deaf are treated by the Americans with Disabilities Act as auxiliary aids in the nature of hearing aids and other assistive devices and may attend litigation strategy meetings of a board or commission to interpret for a deaf board member without violating section 286.011(8), F.S). Cf. AGO 15-13 (mayor who is a voting member of the city council is not precluded from attending closed session relating to pending litigation in which city council is a party, even though plaintiffs have also sued the mayor in his individual capacity).
(5) Determination of “conclusion” of the litigation
Section 286.011(8)(e), F.S., provides that transcripts of closed meetings “shall be made part of the public record upon conclusion of the litigation.” See AGO 15-03 (transcript of a litigation strategy session which was closed to the public while the litigation was ongoing became a public record once the litigation was concluded). Cf. Everglades Law Center, Inc. v. South Florida Water Management District, 290 So. 3d 123 (Fla. 4th DCA 2019), noting that the mediation communications disclosed by a governmental agency during a closed session must be redacted from the transcript of the meeting when it becomes public record; the exemptions from disclosure for mediation communications in ss. 44.102(1) and 44.405(1), F.S., are not inconsistent with the requirements of s. 286.011(8)(e), F.S.The statute does not recognize a continuation of the exemption for “derivative claims” made in separate, subsequent litigation. AGO 13-13. For example, a transcript of a closed meeting to discuss settlement of a quiet title lawsuit became a public record upon the entry of a final judgment in that case, even though the same parties were now embroiled in an inverse condemnation lawsuit. Chmielewski v. City of St. Pete Beach, 161 So. 3d 521 (Fla. 2d DCA 2014). Similarly, a claim for payment of attorney’s fees does not extend the application of the exemption after a final judgment has been entered and a mandate issued. Inf. Op. to Boutsis, December 13, 2012.
Accordingly, a dismissal with prejudice pursuant to a settlement agreement that confers continuing jurisdiction on the court to enforce the terms of the settlement agreement operates as a conclusion of the litigation. AGO 15-03. By contrast, litigation that is ongoing but temporarily suspended pursuant to a stipulation for settlement has not been concluded for purposes of s. 286.011(8), F.S., and a transcript of meetings held between the city and its attorney to discuss such litigation may be kept confidential until conclusion of the litigation. AGO 94-64. And see AGO 94-33 (public agency may maintain the confidentiality of a record of a strategy or settlement meeting between a public agency and its attorney until the suit is dismissed with prejudice or the applicable statute of limitations has run); and Inf. Op. to Boutsis, supra (legislative history of s. 286.011[8], F.S., indicates “that the Legislature intended the exemption to continue through the appeals segment of the litigation”). Cf. Wagner v. Orange County, 960 So. 2d 785 (Fla. 5th DCA 2007), concluding that the phrase “conclusion of the litigation or adversarial administrative proceedings” for purposes of the attorney work product exemption from the public records law found in s. 119.071(1)(d), F.S., encompasses postjudgment collection efforts such as a legislative claims bill.
In AGO 13-21, the Attorney General’s Office observed that s. 286.011(8)(e), F.S., “should be seen as a tool which governmental boards or commissions may employ in their discretion but the statute should not be read as a prohibition against the release of such records prior to the conclusion of... litigation.” Therefore, a city council, as the collegial body to which the exemption applies, may waive the exemption and release transcripts of meetings held pursuant to s. 286.011(8), F.S., prior to the conclusion of litigation. Id.
b. Risk Management Exemption
Section 768.28(16)(c), F.S., states that portions of meetings and proceedings relating solely to the evaluation of claims or to offers of compromise of claims filed with a risk management program of the state, its agencies and subdivisions, are exempt from s. 286.011, F.S. The minutes of such meetings and proceedings are also exempt from public disclosure until the termination of the litigation and settlement of all claims arising out of the same incident. Section 768.28(16)(d), F.S.This exemption is limited and applies only to tort claims for which the agency may be liable under s. 768.28, F.S. AGO 04-35. The exemption is not applicable to meetings held prior to the filing of a tort claim with the risk management program. AGO 92-82. Moreover, a meeting of a city’s risk management committee is exempt from the Sunshine Law only when the meeting relates solely to the evaluation of a tort claim filed with the risk management program or relates solely to an offer of compromise of a tort claim filed with the risk management program. AGO 04-35.
Unlike s. 286.011(8), F.S., s. 768.28(16), F.S., does not specify the personnel who are authorized to attend the meeting. See AG0 00-20, advising that personnel of the school district who are involved in the risk management aspect of the tort claim being litigated or settled may attend such meetings without jeopardizing the confidentiality provisions of the statute.
