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Florida Attorney General
Advisory Legal Opinion
Number: AGO 2020-03
Date: March 19, 2020
Subject: Public meeting quorums using technology
The Honorable Ron DeSantis
Governor
The Capitol
Tallahassee, Florida 32399-0001
Dear Governor DeSantis:
Our office has received your letter dated March 17, 2020, requesting an opinion
pursuant to Section 16.01(3), Florida Statutes, in light of recent developments
arising from the spread of COVID-19. On March 9, 2020, you issued Executive
Order No. 20-52, declaring a state of emergency statewide and requiring Florida
government officials to take necessary and timely precautions to protect their
communities.
You state that, as a result of the dangers of COVID-19, public safety directives
encourage citizens to engage in "social distancing" and to avoid public gatherings,
where possible. As a result, your office "has been contacted by numerous county
and local government bodies regarding concerns for public meetings held in light
of the COVID-19 public health emergency. These entities raise issues involving
Florida Statutes and Attorney General Advisory Opinion interpretations that limit
the ability to hold public meetings using communications media technology."1
Question Presented
Under these circumstances, you ask the following question:
Whether, and to what extent, local government bodies may utilize
teleconferencing and/or other technological means to convene
meetings and conduct official business, while still providing public
access to those meetings?
It is my opinion under existing law that, if a quorum is required to conduct official
business, local government bodies may only conduct meetings by
teleconferencing or other technological means if either (1) a statute permits a
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quorum to be present by means other than in person, or (2) the in -person
requirement for constituting a quorum is lawfully suspended during the state of
emergency. If such meetings are conducted by teleconferencing or other
technological means, public access must be afforded which permits the public to
attend the meeting. That public access may be provided by teleconferencing or
technological means.
Discussion
Article I, Section 24(b) of the Florida Constitution provides that "[a]II meetings...of
any collegial public body of a county, municipality, school district, or special
district, at which official acts are to be taken or at which public business of such
body is to be transacted or discussed, shall be open and noticed to the public[.]"
Florida's Sunshine Law, found in chapter 286, Florida Statutes, provides that "[a]II
meetings of any...agency or authority of any county, municipal corporation, or
political subdivision, except as otherwise provided in the Constitution,...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 at such meeting." § 286.011(1), Fla. Stat. (2019). Section
286.0114, Florida Statutes, also provides, with respect to certain "propositions"
before a board or commission, that an opportunity for public comment must be
afforded.
Though the Florida Constitution and the Sunshine Law both require that, unless
exempt by law, meetings of a local government body must be "public meetings"
that are "open to the public," the text of neither provision requires that members of
the public body be physically present during the meeting. Nor does either
provision prescribe any particular means of holding meetings. Since 1997, Florida
law has allowed many state agencies to conduct public meetings, hearings and
workshops by "communications media technology" in full compliance with the
Sunshine Law, and they regularly do so. See § 120.52(5)(b)2., Fla. Stat. (2019);
Ch. 28-109, Fla. Adm. Code. No reported judicial decision has held that meetings
conducted by such means violate the Florida Constitution or the Sunshine Law.
The Legislature has also, by statute, permitted certain public entities other than
state agencies to conduct meetings using communications media technology.2
When asked similar questions by local government bodies in the past, the
Attorney General's office has made it clear that any requirement for physical
presence of members derives from other law specifying that a quorum be present
to lawfully conduct public business or that the meeting of a local government body
be held at a place within the body's jurisdiction. See Ops. Att'y Gen. Fla. 1983-
100 (1983), 1998-28 (1998), 2006-20 (2006). How a quorum is lawfully
constituted, or where a meeting is "held," are questions distinct from the Sunshine
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Law and governed by other law. Indeed, a quorum is not required to be present
for a meeting to be otherwise subject to the Sunshine Law.3
Some statutes governing the conduct of business by local government bodies
(such as section 166.041, Florida Statutes) specifically include the requirement of
a "quorum" or that a quorum be "present" to conduct certain kinds of public
business, such as the adoption of ordinances or resolutions. See § 166.041(4),
Fla. Stat. (providing that, for municipalities, a majority of members constitutes a
quorum and an affirmative vote of a "majority of a quorum present" is necessary
to adopt an ordinance or resolution). Other statutes require that meetings be held
in a place within the jurisdiction of the local government body. For example,
section 125.001(1), Florida Statutes, requires that meetings of a board of county
commissioners "may be held at any appropriate place in the county." These
statutes have not defined the term "quorum" or what it means to be "present." Nor
have they defined what it means for a meeting to be "held" in a place.
Absent any statutory definition of these terms, the Attorney General's office has,
in prior opinions, relied upon the plain meanings of the terms "quorum" and
"present" by resorting to legal dictionaries and dictionaries of common usage. See
Op. Att'y Gen. Fla. 2010-34 n.5-6 (referring to unabridged dictionary and legal
dictionary for definition of term "quorum", which included the word "present", and
concluding that "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."). Doing so is a universally accepted mode of interpretation
repeatedly endorsed by Florida courts. See Lee Mem. Health Sys. v. Progressive
Select Ins. Co., 260 So. 3d 1038, 1043 (Fla. 2018); Berkovich v. Casa Paradiso
North, Inc., 125 So. 3d 938, 941 (Fla. 4th DCA 2013) ("The common usage of the
term 'quorum' requires the presence of individuals.") (citing Black's Law Dictionary
1284 (8th ed.2004)).
The term "quorum" is defined as "who must be present for a deliberative assembly
to legally transact business." Black's Law Dictionary (11 th ed. 2019). The word
"present," is defined as "in attendance; not elsewhere." Black's Law Dictionary
(11th ed. 2019); see also Webster's Third New International Dictionary
Unabridged 1793 (2002 ed.) (defining "present" as "being before, beside, with, or
in the same place as someone or something <both men were present at the
meeting>.").
Thus, in the absence of a statute to the contrary, the Attorney General's office
historically has taken a conservative approach, out of concern for the validity of
actions taken by the public body, concluding that any statutory quorum
requirement to conduct public business requires the quorum of members to be
physically present and that members present by electronic means could not count
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toward establishing the quorum. A long line of opinions by my predecessors
contain conclusions to that effect.
For example, in Attorney General Opinion 83-100, Attorney General Smith
concluded that a county could not conduct a meeting unless members constituting
a quorum were physically present (and, even then, that a physically absent
member could not participate by telephone). Op. Atty' Gen. Fla. 83-100 (1983). In
Attorney General Opinion 92-44, Attorney General Butterworth concluded that a
county commissioner physically unable to attend a meeting because of medical
treatment could participate and vote in commission meetings where a quorum of
other commissioners was physically present. Op. Att'y Gen. Fla. 92-44 (1992). In
Attorney General Opinion 98-28, Attorney General Butterworth concluded that a
school board member could attend a meeting by electronic means, so long as a
quorum was physically present at the meeting site. Op. Att'y Gen. Fla. 98-28. In
Attorney General Opinion 2002-82, Attorney General Doran concluded that
physically disabled members of a city board could participate and vote on matters
as long as a quorum was physically present. Op. Att'y Gen. Fla. 2002-82 (2002).
In Attorney General Opinion 2003-41, Attorney General Crist concluded that a
member of a city human rights board who was physically absent from a board
meeting but participated by telephone conference could not be counted toward
the presence of a quorum. Op. Att'y Gen. Fla. 2003-41 (2003). And in Attorney
General Opinion 2010-34, Attorney General McCollum concluded that the Coral
Gables City Commission could not adopt an ordinance for the city's retirement
board declaring that the requirements to create a quorum would be met if
members of the board appeared via electronic means, because doing so would
conflict with the statutory requirement in section 166.041, Florida Statutes that a
quorum be present. Op. Att'y Gen. Fla. 2010-34 (2010).
Conclusion
The nature, extent, and potential duration of the current emergency involving
COVID-19 present unique circumstances. However, without legislative action,
they do not change existing law. It is my opinion that, unless and until legislatively
or judicially determined otherwise, if a quorum is required to conduct official
business, local government bodies may only conduct meetings by
teleconferencing or other technological means if either a statute permits a quorum
to be present by means other than in -person, or the in -person requirement for
constituting a quorum is lawfully suspended during the state of emergency.
Sincerely,
Ashley Moody
Attorney General
AM/ttlm
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1 Letter from Governor Ron DeSantis to Attorney General Ashley Moody dated
March 17, 2020.
2 Compare, e.g., § 163.01, Fla. Stat. (2019) (authorizing any separate legal entity
created under subsection (7) of the Florida Interlocal Cooperation Act of 1969 to
conduct public meetings and workshops by means of "conference telephone,
video conference, or other communications technology by which all persons
attending a public meeting or workshop may audibly communicate;" providing
specific requirements; and providing that the "participation by an officer, board
member, or other representative of a member public agency in a meeting or
workshop conducted through communications media technology constitutes that
individual's presence at such meeting or workshop"); § 373.079(7), Fla. Stat.
(2019) (authorizing the water management district "governing board, a basin
board, a committee, or an advisory board" to "conduct meetings by means of
communications media technology in accordance with rules adopted pursuant to
s. 120.54"); § 374.983(3), Fla. Stat. (2019) (authorizing the Board of
Commissioners of the Florida Inland Navigation District to conduct board and
committee meetings "utilizing communications media technology, pursuant to s.
120.54(5)(b)2"); § 553.75(3), Fla. Stat. (2019) (authorizing the use of
communications media technology in conducting meetings of the Florida Building
Commission or of any meetings held in conjunction with meetings of the
commission); § 1002.33(9)(p)3, Fla. Stat. (2019) (authorizing members of each
charter school's governing board to attend public meetings to "in person or by
means of communications media technology used in accordance with rules
adopted by the Administration Commission under s. 120.54(5), and specifying
other requirements) with § 349.04(8), Fla. Stat. (2019) (authorizing the
Jacksonville Transportation Authority to "conduct public meetings and workshops
by means of communications media technology, as provided in s. 120.54(5)," but
specifying that "a resolution, rule, or formal action is not binding unless a quorum
is physically present at the noticed meeting location, and only members physically
present may vote on any item").
3 Indeed, a quorum is not required to be present for a meeting to be otherwise
subject to the Sunshine Law. See Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d
DCA 1973).
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