The Cabinet Hires a Law Firm: Delegating Authority in the Sunshine

The Cabinet Hires a Law Firm: Delegating Authority in the Sunshine

Tuesday, the Florida Cabinet hired a law firm to defend itself, as a body, from a lawsuit brought against it by a group of news organizations and government watchdog groups. The lawsuit alleges violations of Florida’s Government in the Sunshine Law in the handling of the removal of Gerald Bailey as head of FDLE back in December.

This comes on top of each of the Cabinet officers having hired attorneys separately to defend them individually, since they are also individually named in the suit.

Can you hear the meter running?

The irony here is that the process by which the Cabinet selected its lawyer to defend the Cabinet may, itself, have violated the Sunshine Law.

The concern centers on the decision by the Cabinet to assign responsibility for receiving and reviewing proposals for legal services, as well as making a recommendation to the Cabinet, to one member of the Cabinet, Attorney General Pam Bondi. She may, or may not, have relied upon input from her staff in conducting her review and arriving at her recommendation.

And what’s wrong with that, you ask?

Well, in Florida’s Sunshine provisions, if a collegial body delegates to one member important decision-making authority (e.g., reviewing proposals for services and making a recommendation to the full board), that individual’s activities related to the delegated authority may become subject to the Sunshine.  (See the discussion here, page 19 and following of the document.) Various AGO opinions indicate the “may” tends to become “does” if the individual takes any action, like rejecting some applications or forming recommendations that have the potential to directly affect the decision-making process of the collegial body. And if the law does apply, that means that if that individual, say, meets with members of her staff to solicit their input on the proposals in helping her formulate a recommendation, that meeting ought to be public.

I can hear you shaking your head in disbelief.

“Really? An executive meets with her own staff to discuss the merits of various proposals. That’s definitely a kind of privileged communication. If the staff have to worry about how they will be reported in the press, their advice may be less candid and the discussion less thorough than otherwise. Surely the attorney general is entitled to the unguarded recommendations of her staff?”

Well . . . probably not in Florida, at least not when the attorney general acts on behalf of a public collegial body governed by the Sunshine . . . like the Cabinet.

Of course, the attorney general insists that everything was done properly:

“My office lawyers know this work. They know it well. . . . They’ve reviewed with me the submissions we’ve received because this is what they do.”

Of course.

But Florida’s Sunshine Law at times flies in the face of any otherwise logical and reasonable way of doing the things we do. With tremendously good intentions, the law creates huge obstacles to conflict resolution on local boards, reduces efficiency in government decision making, and may undermine the quality of decisions made out of fear that a candid comment, perhaps taken out of context or misinterpreted, could have serious consequences.

Reportedly, the Cabinet as a whole spent just a few minutes hiring the law firm that will represent them in this complicated and important case. The likely cost to the taxpayers, whose dollars the Cabinet has a fiduciary responsible to safeguard, runs to six figures. There were multiple credible proposals. Yet, essentially without debate, the Cabinet made a choice, the choice recommended by the attorney general. Talk about efficiency!

But that efficiency was the result of delegation. And if, as even the attorney general’s comments suggest, the attorney general consulted with her staff in developing that recommendation, there may be one more alleged infraction to litigate, and one more need to decide which law firm will represent the Cabinet over Sunshine in the Sunshine State.

General Bondi, welcome to our world!

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