A Cloudy Day for Sunshine Laws
Government in the Sunshine has possibly been dealt a setback by a ruling of the 5th Circuit Court of Appeals in New Orleans.
The Reporters Committee for Freedom of the Press reports:
"…(E)lected officials have First Amendment rights to speak to each other in private. As a result, open meetings laws that prohibit private speech between elected officials have to pass stringent constitutional muster, the court said.”
Obviously, this ruling could have broad reaching implications. The case centers around two members of the Alpine, Texas City Council who were prosecuted under that state’s open records act after exchanging e-mails in which they discussed the content of a meeting. They sued, citing their First Amendment right to free speech, and the 5th Circuit Court agreed. Judge James Dennis said that elected officials have the same -right to free speech as a private citizen, and that the e-mails are protected.
In the past couple of years, the Jacksonville City Council has had its own issues with Sunshine Laws and communications between council members. A Grand Jury was convened to investigate possible sunshine violations, and though nothing criminal was found, the taint of the investigation was used against at least one former council member seeing election to the state legislature. Whether that was a deciding factor in that election is un-knowable, but it certainly carried at least some weight with some voters. That same investigation caused then-Council President Daniel Davis to have the door to the “Green Room” off the council chambers removed. The green room is used by members to discuss issues, sometimes passionately, with constituents. But many saw it as a place where deals were made with lobbyists and among council members. Having never been in the green room, I can’t attest to firsthand knowledge one way or the other. Still, a new door with a glass panel has since been installed under current Council President Ronnie Fussell. Some still say that, under sunshine laws, the green room should be abandoned entirely. The investigation was also instrumental in changing the way contracts are considered at City Hall, which certainly had an effect on the recent Trail Ridge debate. It was a far-reaching investigation with broad impact.
According to the training given last June to member of the City Council, Florida has the only Sunshine Law that extends to “any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable actions will be taken by the public board or commission.” That is a very broad definition, and should Florida’s sunshine laws be challenged under a similar scenario, it’s difficult to say how a court might rule given the absolute rights under the First Amendment.
Gary Burbank, a former radio personality on WLW in Cincinnati, used to joke “Your right to know supersedes your right to exist”. An exaggeration, to be sure, but most everyone agrees sunshine laws are a good thing. The public does have a right to know how the people they elect to office at any level conduct business. This 5th Circuit ruling will principally effect elected officials in Louisiana, Texas, and Mississippi, but could be cited as case law in other jurisdictions.
The discussion is far from over. The Texas Attorney General has filed for a re-hearing of the case, and has been joined by the Reporters Committee for Freedom of the Press and the Freedom Foundation of Texas through Friend of the Court briefs. No matter the outcome, it has all the ingredients to make it a good candidate for the Supreme Court of Texas, and perhaps even the U.S. Supreme Court. It may not determine if your right to know supersedes your right to exist, but it may determine if an elected officials’ right to free speech supersedes your right to know.