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HomeMy WebLinkAboutVII(F) Rescinding The Appointment Of The Negotiating Team With Respect To Charter Schools Hgenaa o-19-LUU1 Item VIIF FOLEY & LARDNER MEMORANDUM CLIENT-MATTER NUMBER 020377-0542 TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, Esq., City Attorney DATE: June 11, 2001 RE: Charter Schools: Discussions between Staffs of the City and Orange County School Board At the January 3, 2001 Joint Meeting between the Ocoee City Commission and the Orange County School Board both of the governing bodies directed their respective staffs to meet regarding Ocoee's Charter School application and to report back to their respective governing bodies. The Ocoee City Commission met on January 4 and appointed a "negotiation team" to meet with the School Board staff. The "team" consisted of then Acting City Manager Gleason as the lead coordinator and the Mayor, City Attorney, Mr. Shapiro, Bond Counsel and the Haskell Group. No decision making authority was delegated to the Ocoee "negotiation team" and they did not have any authority to bind the City. This team was appointed at a time of transition when a permanent City Manager was not in place. Since January 4, City staff have met with School Board staff to gather information and identify issues related to the proposed Ocoee Charter School. Additionally, various members of the City staff, along with the City's legal counsel and consultants, have from time to time met to discuss issues related to charter schools. The Mayor has been present at some but not all of these meetings. The question has arisen whether these meetings (both internally and with the School Board staff) are subject to the Sunshine Law. Attached is a letter which the City has received from Attorney Dennis A. Chen suggesting that the meetings have been held in violation of the Sunshine Law. For the reasons set forth below, we disagree and believe that the Sunshine Law does not apply to these meetings with the School Board staff or to internal meetings held by the City. The City Manager, as part of the discharge of his duties under the City Charter and pursuant to the City Commission action, has been the lead contact in connection with charter school issues. Legal counsel and consultants have assisted and reported to the City Manager and other staff members in this regard. Rather than functioning as a true negotiation team, all of this has been handled as a typical staff function with the exception that every eff t has been 006.221158.1 \I\ made to coordinate staff meetings so that they may also be attended by Mayor Vandergrift. Members of the original negotiation team have attended only at the request of the City Manager. The general law in Florida is that meetings of staffs of boards or commissions covered by the Sunshine Law are not ordinarily subject to the Sunshine Law. The Government in the Sunshine Manual (2001 Edition) sets forth the circumstances under which a staff member may become subject to the Sunshine Law: "When a staff member ceases to function in a staff capacity and is appointed to a committee which is delegated authority to make recommendations to a board or official, the staff member loses his or her identity as staff while working on the committee and the Sunshine Law applies to the committee. Thus, it is the nature of the act performed, not the makeup of the committee or the proximity of the act to the final decision, which determines whether a committee composed of staff is subject to the Sunshine Law. . . On the other hand, a committee composed of staff which is merely responsible for informing the decision maker through fact fmding consultations would not be subject to the Sunshine Law." It is well established that committees which gather information or which serve a fact fmding role and have no decision making authority are not subject to the Sunshine Law. However, staff committees cannot be used to circumvent the Sunshine Law. In practice, the various meetings with School Board staff which have been primarily information gathering and fact finding meetings. These meetings should ultimately lead to negotiations and one might debate whether the discussions constitute "negotiations". No votes have been taken at any meetings and it is not contemplated that any circumstance would arise in which any votes would be taken. Further, the persons attending these meetings have not always been the persons designated as the "negotiation team" established by the City Commission. Based on the foregoing, it remains our opinion that the meetings to date have not been subject to the Sunshine Law. However, we understand that there may be some confusion regarding the applicability of the Sunshine Law in light of the City Commission action establishing a negotiation team. In the event this negotiation team were to function in that capacity and formulate and vote on recommendations to the City Commission, then the activities of this team could become subject to the Sunshine Law. Under such circumstances, all meetings would need to be posted, open to the public and minutes would need to be kept. While the Sunshine Law would make the meetings public, it would not give the public a right to participate in the meetings. It is my recommendation that the City Commission should rescind its establishment of the negotiation team. The reasons for this recommendation are: (1) the 006.221158.1 2 existence of the team could subject future discussions to the Sunshine Law which could inhibit and delay discussions with the School Board, (2) the activities being undertaken are typical staff type functions (with the exception that the Mayor is an active participant) which are not ordinarily subject to the Sunshine Law, (3) with Mr. Gleason having been subsequently appointed as City Manger it is anticipated that he will make the ultimate decision on a recommendation to the Commission, rather than a "team" vote, and (4) this action would eliminate any confusion regarding the applicability of the Sunshine Law and allow Mr. Gleason to continue to perform his duties as City Manager with respect to this subject and on a case by case basis determine the appropriate staffing for any meetings which might be held. This would not preclude the Mayor from continuing to be an active participant who attends meetings on the subject or preclude Mr. Gleason from coordinating with the Education Commission and when appropriate inviting their participation. Alternatively, in the event the City Commission prefers to have these activities undertaken at public meetings, then it is recommended that the City Commission reformulate the membership of the negotiation team and direct that the team comply with the Sunshine Law with respect to its activities. 006.221158.1 3 11 01 02: 34p CITY CLERK OCOEE 4076565725 p. 2 DENNIS A. CHEN, P.A. Telephone(407)290-9902 Attorney at Law Facsimile (407)290-9562 Post e,FL 4B76113 DennisChenLaw@Yahoo.com Ocoee,FL 34761-1309 June 8,2001 Jean Grafton el JUN ii 11:54 fill City Clerk • - City of Ocoee 150 N. Lakeshore Drive. Ocoee,FL 34761 Re: Meetings between OCPS and City of Ocoee Dear Ms. Grafton: I have made several requests to Janet Shira to be informed of the dates and times of any meeting that may be held between representatives c?f the City of Ocoee and Orange County Public Schools. Randy Freeman and Martha Lopez-Ande{son have made the same requests. At the last Education Commission meeting Jim Gleason stated that the meetings are not open to the public. I disagree with that opinion. There is an attorney ge eral opinion which applies to negotiating teams and I believe it applies here,AGO 94-21. Pease request an opinion from the Attorney General's office immediately. I believe the City o Ocoee is violating the Sunshine Law. Sincerely, Dennis A.Chen,Esq.