Court finds 'pending litigation' exemption to be narrow

FLORIDA–The state District Court of Appeal in West Palm Beach held in early December that the Vero Beach city council repeatedly violated that state’s Sunshine Law by holding three closed-door meetings to discuss pending litigation against a bankrupt aircraft manufacturer.

The appellate court held that the state’s recently enacted exemption to the Sunshine Law, enabling a government entity to meet privately with its attorney under certain conditions, must be interpreted narrowly. The court also held that the council’s remedial attempt to “cure” the Sunshine Law violations was ineffective.

Writing for the appellate court, Justice George Shahood declared that the attendance of individuals other than the council and its attorney at a closed meeting was improper. One of the closed meetings also moved beyond the permissible scope of a strategy session, he wrote.

Shahood noted that although no bright line separates permissible “advice” from impermissible “decisive action,” the record showed that the council improperly took decisive action during one of the closed sessions. Discussions authorizing the city’s counsel to settle pending litigation constituted formal actions that must be voted on in public session, he wrote.

The city’s attempt to “cure” the violations by holding an open public meeting to reconsider the actions previously taken in private was ineffective, the court wrote. The issues previously raised were not fully reexamined at the later meeting and the public was not allowed to fully participate in discussions. Without full discourse, the city’s attempt to cure violations could not succeed, Shahood wrote.

The case arose after Appellant Frank Zorc leased property adjacent to a Piper aircraft facility in the city. During an environmental cleanup of pollution from the Piper property, Piper filed for bankruptcy and the city filed a claim against it as a creditor. The city then held a series of three closed meetings where it planned its strategy regarding the Piper litigation and later discussed settlement.

In the course of these closed meetings, the council discussed the city’s legal obligations to Zorc, the status of negotiations between Piper and the Environmental Protection Agency, and the filing of objections to a consent decree in the bankruptcy proceeding.

Although by the third meeting concerns about the closed status of the meeting had been raised by a councilman, the city’s attorney justified the closures as “strategy sessions.” The council decided to make the record public after the conclusion of the city’s role in the bankruptcy litigation.

In response to a suit filed by Zorc, the council held a meeting to publicly air issues that were previously raised privately.

In 1997, the trial court determined that no Sunshine Law violations had occurred, and if they had, they were cured by the open public meeting. (Zorc v. City of Vero Beach; Media Counsel: Jonathan D. Kaney Jr., Daytona Beach)