Legal Update

From the Legal Hotline (877-NEWS-LAW)

Text messaging and the Sunshine Law, newspaper rack ordinances and more in today’s Legal Hotline recap.

Q. Our city manager is discussing controversial matters of public concern with our elected officials one-on-one. The CM uses this method to obtain majority direction for matters that will ultimately be brought forward to the commission as a whole for a vote. Specifically, the CM meets with commission members individually and shares with the member the “consensus” obtained. The example provided was “I have five votes in favor” in the matter being discussed one-on-one. Isn’t this an ethical, if not illegal, breach of the public records/meetings statutes?

We were told this method of communication is being used in lieu of memos (because they are public record) and in lieu of introducing proposals to council as a whole at a public workshop (to avoid controversy.) The most recent issue discussed in this manner is a large-scale in-the-works land swap between the city and a developer.

A. The sunshine law is applicable to meetings between a board member and an individual who is not a board member when the individual is being used as a liaison between, or to conduct a de facto meeting of, board members. See AGO 74-47 (city manager is not a member of the city council and thus may meet with individual council members; however, the manager may not act as a liaison for board members by circulating information and thoughts of individual council members).

Thus, one-on-one meetings where individual city commissioners seek advice or information from the CM ARE acceptable. However, if the CM uses the meetings to engage in the “daisy chaining” you describe, that is considered to be a de facto meeting of the commissioners by using the CM as a conduit between commissioners. See also Inf. Op. to Goren, October 28, 2009. “Rapid-fire succession” of individual meetings with board members are particularly problematic if done to avoid airing of controversial issues.

In general, the CM should refrain from asking each commissioner to state his or her position on a specific matter which will foreseeably be considered by the commission at a public meeting in order to provide the information to the members of the commission. AGO 89-23; 75-59.

Q. We are working on a story for Florida Sunshine Week that addresses the importance of local governments implementing technology to allow the tracking of text messages sent by officials.

As you may know, 20 of Florida’s 67 counties have such methods in place, according to the Florida Association of Counties. Our county is one that lacks this technology. Could you address why such systems, which can be expensive, may well be worth the money?

A. Text messages are public records just like email messages and considering their increasing popularity it is important for local governments to review the technology that can easily capture and archive those sent by county/city officials. There are a few ways to achieve this, for example, using text tracking technology or setting up an in-house system where staff forwards the texts to a central repository of the government. While there will be a cost to keeping tabs on the texts, it seems well worth the benefit of easy compliance with the sunshine law and I understand there are privacy settings that can be used. You also avoid staff time and the headache of tracking down phones and taking screen shots of texts. Finally, it seems a waste if commissioners avoid easy texting simply because they don’t have the official tracking in place.

Q. I have a few concerns regarding the city’s proposed newspaper rack ordinance. The ordinance will reduce the rack presence in the defined area by over 80% and all publications will only have a limited number of rack locations to compete for. My questions: 1) can they choose, limit and restrict the total number of rack locations in the designated area?; 2) once the approved locations are full, can they implement and manage a waiting list of published products?; and 3) overall, does this past the test of case law in Florida?

A. The city is generally allowed to choose, limit and restrict the total number of rack locations in the designated areas. However, there are some limitations on that ability. First and foremost the location criteria must be content-neutral. That does not seem to be a problem here as the installation plan is not based on anything to do with what is contained in the publication. [This is also not a problem with the permit issuance since it states the permit can only be denied based on non-availability and the permit can’t be revoked except for abandonment/lack of maintenance.]

Beyond the content-neutral requirement, the placement limitations must be “narrowly tailored to serve a significant government interest.” Usually in rack cases, the courts will not dispute the local government’s claimed interest of aesthetics, pedestrian safety, traffic management, etc. Rather, they will focus on whether the regulation scheme is narrowly tailored to serve those interests. In other words, the courts will ask if the city’s plan is “substantially broader than necessary.” Here there seems to be a paucity of racks allowed for each location and no rationale for why that is so. Is this arrangement really narrowly focused to serve the city’s interests? Can’t those interests be adequately served by allowing more racks at each location or more locations in general?

Also, the problem with the lack of racks is highlighted by the “first-come, first-served” policy that is in effect. If a newspaper is not at the head of the line at a particular location, it will lose any chance to have a rack “until such time as a location becomes available.” Further, if it is rejected, it appears that this will be in effect for at least a year due to the language in the ordinance that says the existing permits will be “reviewed and renewed on an annual basis.” Also, one permit may be issued to include any number of news racks—that means the vendors who file applications first could conceivably get space at all locations. For these reasons, the cap on racks seems like a pretty broad brushed approach.

This also brings us to your second question regarding the waiting list itself. While a content-neutral waiting list in general is not automatically a problem, it could be if not narrowly tailored. The reason again is that it seems to have harsh results in light of the few racks at each location, the one-year wait, and ability of vendors to race to the head of the line.

Overall, it is hard to predict if a Florida court would find this ordinance valid on its face.

Although the general test for viewing it will be as outlined, different courts have placed greater weight on different components of the test. In the Gold Coast case, for example, the appellate court upheld portions of the rack law that the lower district court had found objectionable.

My thought is that if it looks like the limited space and long waiting list will potentially affect your operations, you could raise those as legitimate issues.

Finally, the ordinance mentions “pre-approved” designs but does not contain any criteria for this design. This does seem to give the city great discretion on what can and cannot be “pre-approved.” Courts have struck down standard-less ordinances that give officials boundless discretion to grant or deny a permit.