Procurement Lawyer

What a Bright Idea! Florida’s First District Court of Appeal Applies Common Sense to the Government in the Sunshine Law

by Andrew Schwartz

Andrew Schwartz is an associate at Shutts & Bowen LLP in Fort
Lauderdale, in its Government Contracts and Litigation Practice Groups.

As Florida’s First District Court of Appeal recently noted in Carlson v. State:

Florida is the Sunshine State. It has long had the “Government in the Sunshine Law,” which generally requires open meetings for boards, commissions, state agencies, and the like. See § 286.011, Fla. Stat. (2017); see also Art. I, § 23, Fla. Const. The statute, which the [Florida] Legislature “enacted in the public interest to protect the public from ‘closed door’ politics,” is serious business: not only is there criminal liability for officials who knowingly disregard it, e.g., § 286.011(3)(b), Fla. Stat. (2017), but also Florida law provides that “where officials have violated section 286.011, the official action is void ab initio.”1

However, an open door policy is not necessarily the best thing for public procurements — especially negotiated ones. Basically, engaging in open door negotiations gives an unfair advantage to whomever gets to negotiate last.2 The Florida legislature recognizes the natural conflict or tension between the competing needs for open government and fair competition, and enacted Florida Statutes section 286.0113(2) as a work-around. Section 286.0113(2)(b)(2) exempts from the public meeting requirements “[a]ny portion of a team meeting at which negotiation strategies are discussed.”3 “But the exempted meetings do not forever remain out of public view”4: section 286.0113(2)(c) provides that “[a] complete recording shall be made of any portion of an exempt meeting,” and the recordings become publicly available at “such time as the agency provides notice of an intended decision or … 30 days after opening the bids, proposals, or final replies, whichever occurs earlier.”

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