The opinion
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
FLORIDA CITIZENS ALLIANCE, INC.,
a Florida not for profit corporation;
DOUGLAS LEWIS; BRANTLEY OAKEY;
and ERIC KONUK,
Appellants,
v.
THE SCHOOL BOARD OF COLLIER COUNTY,
Appellee.
No. 2D20-739
September 10, 2021
Appeal from the Circuit Court for Collier County; Elizabeth V. Krier,
Judge.
Brantley Oakey of The Law Office of Brantley Oakey, Naples, for
Appellants.
Christopher D. Donovan and James D. Fox of Roetzel & Andress,
LPA, Naples, for Appellee.
SILBERMAN, Judge.
This dispute arose from the selection of textbooks for the
Collier County Public School District (the District). Florida Citizens
Alliance, Inc., Douglas Lewis, Brantley Oakey, and Eric Konuk (the
Plaintiffs) appeal a final judgment in favor of the School Board of
Collier County (the School Board) that dismisses the four counts of
the Plaintiffs' complaint with prejudice. We affirm the dismissal of
counts two, three, and four without further discussion. Count one
alleged violations of the Sunshine Law, section 286.011, Florida
Statutes (2016), in the selection of the textbooks. We reverse the
dismissal of count one and remand to the trial court.
In count one, the Plaintiffs alleged that the School Board
created a process whereby "Instructional Materials Review
Committees" (also referred to herein as Textbook Committees)
reviewed textbooks, ranked them, eliminated some from
consideration, and recommended a single textbook for each class
subject. The Plaintiffs alleged that the School Board delegated a
substantial portion of its authority regarding textbook selection to
the Textbook Committees and that the Textbook Committees met in
closed sessions without public meeting notices. Further, the
Plaintiffs alleged that this resulted in violations of the Sunshine Law
2
because they and the public were denied the opportunity to view
the full process by which the textbooks were reviewed, ranked,
eliminated, and selected for recommendation before the School
Board approved the recommendations. As a remedy, the Plaintiffs
sought declarations that, among other things, the School Board
violated the Sunshine Law; the School Board's final approval of the
textbooks on April 11, 2017, is void ab initio; and the School Board
is enjoined from permitting future Textbook Committees "to rank,
eliminate, and select textbook recommendations without requiring
that those meetings are publicly noticed and open to the public" in
accord with the Sunshine Law.
The Plaintiffs filed an emergency motion to enjoin the School
Board from approving the textbook purchases at a meeting on June
13, 2017, and a predecessor trial court judge denied the motion.1
The School Board subsequently filed a motion to dismiss the
complaint. In the final judgment ruling on the School Board's
1 The purchase of the textbooks was approved at the June 13,
2017, meeting, and an appeal of the order denying the emergency
motion for temporary injunction was dismissed as moot. See Fla.
Citizens All., Inc. v. School Bd. of Collier Cnty., 247 So. 3d 720 (Fla.
2d DCA 2018).
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motion to dismiss, the trial court stated that "its ruling [wa]s based
on prior rulings of the Court," apparently referring to the prior order
denying the Plaintiffs' emergency motion for temporary injunction.2
In the final judgment, the court dismissed count one with prejudice
for lack of standing.3 The court also found with respect to count
one that the Textbook Committees "are not an agency for purposes
of the Sunshine Law," relying on Knox v. District School Board of
Brevard, 821 So. 2d 311 (Fla. 5th DCA 2002), and School Board
Policy 2520, attached as an exhibit to the complaint.
Applicability of the Sunshine Law to the Textbook Committees
On appeal, the Plaintiffs argue that the Textbook Committees
are governed by the Sunshine Law. We agree and determine that
the trial court erred in dismissing count one.
2On appeal, both parties rely upon the testimony and exhibits
presented at the evidentiary hearing on the Plaintiffs' earlier
injunction motion.
3 The School Board concedes on appeal that the trial court
erred in ruling that the Plaintiffs lacked standing to raise a
Sunshine Law violation. The Sunshine Law "on its face[] gives the
appellant standing without regard to whether he suffered a special
injury." Godheim v. City of Tampa, 426 So. 2d 1084, 1088 (Fla. 2d
DCA 1983); see also Smith v. City of Fort Myers, 944 So. 2d 1092,
1095 (Fla. 2d DCA 2006) (citing Godheim and recognizing that the
Sunshine Law expressly confers standing).
4
A "district school board has the constitutional duty and
responsibility to select and provide adequate instructional materials
for all students." § 1006.28(1), Fla. Stat. (2016);4 see also art. IX,
§ 4(b), Fla. Const. (requiring each school board to "operate, control
and supervise all free public schools within the school district"). A
school board has final decision-making authority on the selection
and purchase of instructional materials. See §§ 1006.28(1), .40(2).
Among a district school superintendent's duties with respect to
instructional materials are to recommend plans for providing those
materials and to "provid[e] for an evaluation of any instructional
materials to be requisitioned that have not been used previously in
the district's schools." § 1006.28(2)(a).5
A district school board is permitted by statute to "implement
an instructional materials program that includes the review,
recommendation, adoption, and purchase of instructional
materials." § 1006.283(1). School Board Policy 2520 governs
4 The statute was amended, and the provision is now found in
section 1006.28(2). See ch. 2017-177, §§ 2, 7, Laws of Fla. (eff.
July 1, 2017).
5 This provision is now found in section 1006.28(3)(a). See id.
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instructional materials and resources and contains a materials
adoption policy. Policy 2520 recognizes the School Board's
"constitutional duty and responsibility to select and provide
adequate instructional materials for all its students to enhance
student achievement and development." Policy 2520 also
recognizes the statutory responsibility of the district superintendent
(the Superintendent) to evaluate and recommend instructional
materials to be requisitioned that previously had not been used in
the District's schools.
Policy 2520 directs that "the Superintendent shall establish
Instructional Materials Review Committees." These Textbook
Committees must use a quantitative "rubric of evaluation" to
enhance objectivity and must prepare minutes and reports to aid in
the School Board's review. The Textbook Committees submit their
reports "to the Superintendent for transmittal to the Board."
Policy 2520 also provides that parents may file a petition form
objecting to "any instructional materials to be considered by the
Board for adoption" in accord with section 1006.28. The School
Board then holds a public hearing on timely filed objections, and its
decision after the hearing is final and not subject to further review.
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The Sunshine Law provides as follows:
(1) All meetings of any board or commission of any state
agency or authority or of any agency or authority of any
county, municipal corporation, or political subdivision,
except as otherwise provided in the Constitution,
including meetings with or attended by any person
elected to such board or commission, but who has not
yet taken office, 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 or made at such
meeting. The board or commission must provide
reasonable notice of all such meetings.
§ 286.011(1); see also art. I, § 24(b), Fla. Const. Thus, the statute
generally requires meetings of a governmental board at which
official action is taken to be open to the public.
The purpose of the Sunshine Law is "to protect the public from
'closed door' politics"; therefore, "the law must be broadly construed
to effect its remedial and protective purpose." Sarasota Citizens for
Responsible Gov't v. City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010)
(quoting Wood v. Marston, 442 So. 2d 934, 938 (Fla. 1983)). Unless
specifically exempted, all Florida governmental authorities are
subject to the Sunshine Law's requirements. Id. (citing art. I, §
24(c), Fla. Const.). It is "an irreparable public injury" to violate the
Sunshine Law; thus, when an official has violated the Sunshine
7
Law, it renders the official action void ab initio. Id. (quoting Town of
Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974)).
The requirements of the Sunshine Law "may also apply to
committees subordinate to or selected by traditional governmental
authorities." Id. We must consider "the dispositive question" of
"whether 'decision-making authority' has been delegated to the
committee." Id. (quoting Wood, 442 So. 2d at 939). When decision-
making authority has been delegated to the committee, its
"meetings must be open to public scrutiny, regardless of the review
procedures eventually used by the traditional governmental body."
Id. To determine whether a delegation is one of decision-making
authority, "the 'nature of the act performed' " must be evaluated
rather than "the make-up of the committee or the proximity of the
act to the final decision." Id. at 763 (quoting Wood, 442 So. 2d at
939).
School board actions are subject to the Sunshine Law. Knox,
821 So. 2d at 314. When a school board delegates part "of its
decision-making authority to an advisory group, those meetings
must be open to the public." Id. (citing Wood, 442 So. 2d 934). In
contrast, the Sunshine Law does not apply "when a governmental
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executive uses staff for a fact-finding and advisory function in
fulfilling his or her duties." Id. at 315. A school board's staff,
"which includes the superintendent, is generally not subject to the
Sunshine Law." Id. at 314.
In Knox, an area superintendent appointed a team of
employees, including herself, to interview applicants for a principal
position. Id. at 312-13. The team evaluated the applicants "and
assigned them numerical scores." Id. at 313. Based on the team's
input, the area superintendent recommended at least two
candidates to the county superintendent. Id. The county
superintendent received all applications, and he decided which
applicants he would interview and nominate to the school board.
Id. The court determined that "[e]ven if the school superintendent
is viewed as an 'agency' subject to the Sunshine Law," the role of
the interview team was only "fact-finding or advisory," and thus the
Sunshine Law did not apply to the team's meetings. Id. at 314.
In doing so, the court contrasted cases where the Sunshine
Law did apply, including Silver Express Co. v. District Board of
Lower Tribunal Trustees of Miami–Dade Community College, 691 So.
2d 1099 (Fla. 3d DCA 1997). The Knox court noted that in Silver
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Express the "committee was governed by [the] Sunshine Law where
its function was to weed through various proposals, determine
which were acceptable and to rank them accordingly." Knox, 821
So. 2d at 314.
More recently, the First District also recognized that advisory
committees which present "structured recommendations" that
"eliminate opportunities for alternative choices by the final
authority, or which rank applications for the final authority [] have
been determined to be agencies governed by the Sunshine Law."
Carlson v. State, 227 So. 3d 1261, 1265-66 (Fla. 1st DCA 2017)
(alteration in original) (quoting Silver Express, 691 So. 2d at 1101).
In Silver Express, a college's purchasing director, not the college's
board, appointed the committee to evaluate contract proposals.
691 So. 2d at 1100. The court noted that "the committee's action
helped to crystalize the decision to be made by the College." Id.
Therefore, the committee was governed by the Sunshine Law. Id. at
1101.
Here, although the Superintendent has the statutory duty to
recommend textbooks to the School Board, the School Board has
the final decision-making authority to select the textbooks. In
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addition, Policy 2520 directed the Superintendent to establish the
Textbook Committees to review the textbooks and evaluate them
using a quantitative rubric; thus, the Textbook Committees ranked
the textbooks. In fact the Textbook Committees' selections for
recommendation are the textbooks "with the highest number of
points."
The School Board voted at its April 11, 2017, meeting to adopt
the textbooks that the nine Textbook Committees had
recommended—the textbooks with the highest number of points in
each category. The Plaintiffs assert that the School Board did not
discuss the substance of any of the textbooks that were
recommended or of any of the other textbooks that were not
recommended. Some members of the public spoke for a few
minutes, and the School Board's discussion on the textbooks lasted
under thirty minutes. The attachments to the complaint show that
the School Board approved thirty-six recommended titles at that
meeting. It is telling that if the School Board fails to ratify a
Textbook Committee's selection, the School Board does not select
another textbook that was reviewed. Rather, that Textbook
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Committee would "reconvene" so that the "review and selection
process will continue until the Board approves the selection."
The Textbook Committees' evaluation and ranking of the
textbooks clearly "helped to crystalize the decision to be made by"
the School Board. Silver Express, 691 So. 2d at 1100. In fact,
under Policy 2520 the School Board cannot select a textbook on its
own if it disagrees with a Textbook Committee's evaluation. Thus,
the recommendations "eliminate[d] opportunities for alternative
choices by the final authority" as well as "rank[ed] applications for
the final authority." Silver Express, 691 So. 2d at 1101. Therefore,
we conclude that the Textbook Committees have been delegated
decision-making authority, that the Sunshine Law applies to
meetings of the Textbook Committees, and that those meetings
must be open to the public with reasonable notice provided. See
§ 286.011(1); Sarasota Citizens, 48 So. 3d at 762; Silver Express,
691 So. 2d at 1100-01.
Reasonable Notice
The Plaintiffs contend that the School Board failed to give
reasonable notice for the meetings of the Textbook Committees. See
§ 286.011(1) (requiring reasonable notice of public meetings). The
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Sunshine Law does not define reasonable notice, "and the type of
notice that must be given for a meeting is variable and depends on
the facts of the situation." Transparency for Fla. v. City of Port St.
Lucie, 240 So. 3d 780, 786 (Fla. 4th DCA 2018) (citing Op. Att'y
Gen. Fla. 2000–08 (2000)).
The School Board posts its notices of regular School Board
meetings on the public notice page of the District's website and in
its "iNews" electronic newsletter. The School Board does not
dispute that notice for meetings of the Textbook Committees was
not given on the public notices page of the District's website or in
the newsletter. Rather, the notice was posted to the instructional
materials page of the District's website. If a member of the public
navigated to the instructional materials page and had known to
click on the link for the application to be a member of a Textbook
Committee or to check the calendar for committee members, the
person would have found when the meetings were scheduled. The
Plaintiffs point out that a person would have had to click on nine
different applications—one for each subject—to get all the dates for
all the committee meetings. Nothing indicated that the meetings
were open to the public.
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We agree with the Plaintiffs that burying a notice inside a
committee application and calendar on the instructional materials
page of the District's website is an unreasonable way to give public
notice of a meeting. Under these circumstances, we conclude as a
matter of law that reasonable notice of the committee meetings was
not given.
Cure for Violation
The Plaintiffs also argue that the Sunshine Law violations by
the Textbook Committees have not been cured because the School
Board has never fully reexamined the work performed by those
committees. "Sunshine Law violations can be cured by
'independent, final action in the sunshine,' " as "distinguished from
mere ceremonial acceptance or perfunctory ratification of secret
actions and decisions." Sarasota Citizens, 48 So. 3d at 765 (quoting
Tolar v. School Bd. of Liberty Cnty., 398 So. 2d 427, 429 (Fla. 1981)).
"[O]nly a full, open hearing will cure a defect arising from a
Sunshine Law violation." Id. (alteration in original) (quoting Zorc v.
City of Vero Beach, 722 So. 2d 891, 903 (Fla. 4th DCA 1998)). In
Sarasota Citizens, the Florida Supreme Court determined that any
violations of the Sunshine Law by email exchanges were cured
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when "multiple proposals were discussed and rejected before one
was finally approved" by a board after four public board meetings.
Id. at 766.
The School Board relies upon School Board meetings held on
April 11 and June 1, 2017, as a cure for the violations. It also
argues that all the materials the Textbook Committees considered
were online for the School Board to consider. But as discussed
above, at the April 11 meeting the School Board did not discuss the
substance of the textbooks, and the School Board's discussion
lasted under thirty minutes when it approved all thirty-six
recommended titles. At the June 1 meeting, the School Board
considered objections filed as to six of the thirty-six textbooks that
the School Board had approved. Members of the public spoke at
that meeting. After hearing and considering the objections, the
School Board rescinded its approval of one textbook.
Policy 2520 required that the matter go back to the Textbook
Committee for a new review and recommendation of an alternative
selection. The School Board could not choose a textbook on its own
by considering other alternatives from the textbooks that the
committee had previously considered. We conclude that the School
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Board's two meetings failed to cure the Sunshine Law violations
because a full and open hearing was not had on the Textbook
Committees' recommendations. See id. at 765.
Conclusion
The Sunshine Law applies to the Textbook Committees, and
the failure to give reasonable notice to the public of their meetings
resulted in violations of the Sunshine Law. Further, the School
Board did not cure the violations. Therefore, as to the dismissal of
count one, we reverse the final judgment and remand to the trial
court. We otherwise affirm the final judgment as to the dismissal
with prejudice of the remaining counts.
Affirmed in part, reversed in part, and remanded.
CASANUEVA and SMITH, JJ., Concur.
Opinion subject to revision prior to official publication.
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