Legal Report, October 2017

General Counsel, Jennifer G. Ashton
Davis & Ashton, P.A.


1. Carlson v. State, 2017 Fla. App. LEXIS 13757 (Fla. 1st DCA 2017). Sunshine Law; negotiation strategies exception.

The Florida Department of Revenue (“Department”) maintains a child-support program that processes and disburses child-support payments, relying on outside vendors to support the system. Xerox State and Local Solutions, Inc., (“Xerox”) was the Department’s vendor until 2013, when it issued an invitation to negotiate and ultimately selected Systems and Methods, Inc. (“SMI”) as the new vendor. After losing the contract, Xerox unsuccessfully challenged the procurement decision. In a separate action, a Xerox employee sued the Department contending that the procurement process violated Florida's Sunshine Law. In his action, the Xerox employee sought a declaration that the contract award was void, and sought an injunction prohibiting the Department from continuing with the contract, and attorney's fees. After hearing, the trial court entered summary judgment in favor of the Department.

On appeal, the 1st DCA affirmed the lower court’s decision. Section 286.0113, Florida Statutes, exempts from public meeting requirements any portion of a team meeting at which negotiation strategies are discussed.  Here, the Department had an evaluation team and a negotiation team.  The evaluation team’s job was to evaluate the proposals and share their evaluations with the negotiation team.  The negotiation team’s job was to conduct negotiations with the bidders and ultimately decide the winner.

The evaluation team never met.  Its members independently reviewed the proposals and passed along their independent evaluations and recommendations to the negotiation team.  The evaluation team never collaborated, and never discussed competing proposals.  The 1st DCA held that under these facts, the evaluation team had no obligation to conduct a public meeting, or even meet for that matter, because no formal action occurred.

The negotiation team met multiple times.  Some meetings included interaction with vendor representatives and some did not.  At one private meeting, the negotiation team decided to proceed only with SMI and to solicit SMI’s best and final offer.  At the final negotiation team meeting, the team decided that SMI should win, and the team members formalized their decision—still in private session—by signing an award memorandum.  The 1st DCA held that the negotiation team meetings were exempt from the Sunshine Law per Section 286.0113 even though the last meeting resulted in the final decision being made in private.  The Court held that all the meetings, even the last one, included negotiation-strategy discussions.  Although the last meeting had an ultimate award decision made, that decision was intertwined with negotiation strategy discussions without a clear dividing line between them.  Therefore, the entire meeting was exempt from sunshine requirements.  The Court concluded that the exempted portion of the meeting included not only the negotiation-strategy discussions themselves, but also meeting activities inextricably intertwined with those discussions.

Finally, the Court reviewed whether the Sunshine Law was violated because the negotiation team had certain audio recordings of its private negotiation-strategy meetings that were inaudible.  Section 286.0113 provides that governments holding exempt negotiation-strategy meetings must make a “complete recording” of the exempt portions.  The Court concluded that because there were no allegations of bad faith or tampering with the recordings, the fact that the recordings were accidentally inaudible did not constitute a statutory violation.


2. City of Cooper City v. Joliff, 2017 Fla. App. LEXIS 13587 (Fla. 4th DCA 2017). Special assessments.

The City of Cooper City (“City”) passed an ordinance levying a special assessment for Fire Rescue Services.  In 2006, 2007, 2008, and 2009, the City passed annual resolutions implementing the special assessment.  In 2011, the Plaintiffs filed a class action lawsuit against the City seeking damages for assessments collected from 2006 through present and declaratory judgment determining "the Fire Protection Assessment set forth in the Ordinance lacks foundation and thus is improperly apportioned." Plaintiffs filed a motion for summary judgment. The City filed its own motion for summary judgment, asking the court to decide whether a 20-day challenge deadline contained in the City’s ordinance barred the Plaintiffs' claims. The court granted Plaintiffs' motion for summary judgment, denied the City's motion, and found the special assessments void.  The trial court entered a final judgment in favor of the Plaintiffs.

On appeal, the 4th DCA reversed the lower court, remanding the case for entry of judgment in favor of the City. The Court stated that Florida has a two-prong test for the imposition of a valid special assessment.  First, the property to be assessed must derive a special benefit from the service provided.  Second, the assessment must be fairly and reasonably apportioned among the properties that receive the special benefit.  Here, Plaintiffs did not challenge whether they received a special benefit from the service provided.  They only challenged the amount of the assessments.  This means that the assessment could not be void in its totality, but only voidable as to particular properties. 

The Court further held that Plaintiff’s challenge was time barred.  The City’s ordinance discussing special assessments provided that any court challenges to a special assessment shall be made no later than twenty (20) days from the date the city commission takes action on the final assessment resolution.  The Court held that limitations such as the limitation period in this case have been consistently enforced in this state.  Therefore, although the twenty (20) day limitation to file suit was short, it was lawful.