Sunday, August 08, 2004

Secret deliberations after hearings violate the Sunshine Law

A couple of months ago I linked an opinion in which the 4th DCA found that the way that Palm Beach County handled an employment termination decision violated Sunshine.

The basic facts appear to be that a "hearing" before a designee of the County Administrator was held, with a number of other department heads, etc., in advisory roles who could participate. After the hearing, the employee and the employee's attorney were forced to leave the room while the decision was deliberated.

This violated the Sunshine Law because in the hearing context, the group functioned as a committee for participation and deliberation, even if the authority was vested in the single person of the delegee.

On motion for rehearing, the 4th released this opinion re-affirming the result and bolstering it against the County's complaint that the decision made any private consultation between a decision maker and staff subject to Sunshine.

The lesson: committees with authority can be created by practice, and government officials should beware of using artifice and "hide the ball" games to try to cloak their actions from scrutiny. It should be obvious that the Palm Beach County procedure was to create a star-chamber, where a group of "judges" would sit on an employee's fate, without the procedural and other safeguards that should attend such a proceeding.

If the administrator or her designee needs the "advice" of other department heads over an employment action, she has several options: she can pass around a summary and ask for a memo; she can have the head testify and be cross examined by the employee's attorney, or she can make the person a "hearing officer" to hear the testimony and render an opinion. What she can't do is play a game where a "fair" hearing is held based on closed-door deliberations in which there is a pretense that the person isn't really part of the decision making process [and let's just laugh in advance of any claim that because judges can confer behind closed doors, these folks should be have the same privilege].

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