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October 28, 2013 (Revised Oct. 30, 2013) Jorge Exposito, Commissioner CITY OF MIAMI BEACH Miami Beach, Florida Subject: City Attorney Jose Smiths Memorandum of Law on Floridas Government-in-theSunshine Law Dear Sir: I congratulate you for making your inquiry into the question as to whether or not Floridas Sunshine Law applies to transactions between city commissioners and city attorneys on the dais at public meetings of the city commission. It is crystal clear from Chapter 286 of the Florida Statutes, common law decisions, and Attorney General opinions that 1) the commission hearing on Sept. 22. 2013, during which you were observed whispering with City Attorney Jose Smith on the dais, was a public hearing subject to the Sunshine Law, 2) the city attorney is a local public official, who under the city
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charter can make recommendations on legislation, and to whom the Sunshine Law applies, and 3) that the city and the city attorney did not have the benefit of attorney-client privilege during the public meeting, therefore the other commissioners and the public were entitled to hear or to read a verbatim transcript of your whispered conversation in order to have sufficient information to hold everyone accountable for their performance. You posed your question to City Attorney Jose Smith because you were informed that I had posed the question to higher authority since it is of great public importance, and, not to the city attorney, because he has been demonstrably hostile towards me for asking questions about his the performance of his duties as a public official, denigrating, defaming and threatening me with retaliation on several occasions, and emailing me on two occasions that I would not be living in his city for long. For example, I was curious why his Source of Income Statements required by county ordinance to be filed annually with the city clerk had not been included in the response to my public records request to the city clerk for statements filed by all the attorneys in his office. Only his were missing. I asked the city clerk about it, and was informed that he filed his with the state and would only provide a copy as a courtesy. I was simply curious about the process itself and not whether he was mistake. I wondered whether the county allowed a state filing to substitute for a filing with the city that could be conveniently accessed with all such filings as intended by the local ordinance another attorney his office filed both forms in both places. Mr. Smith intervened on August 30, 2013, as follows: Ralph, In preparation for a defamation lawsuit against Davie (sic) Walters, please provide me with copies of all public record requests he has ever made about me, as well as all lobbyist registration forms or disclosures he has ever filed with your office while lobby (sic) on behalf of any city employee or property owner over the last 5 years. In addition, I would like to see any and all occupation licenses, business tax receipts of permits ever issued to him on any property he owns or controls. Specifically, please forward any documents showing him to do business in the city as a journalist. I am happy to pay in advance for the costs of this request. Thank you for your cooperation. Jose. (Mr. Smith uses the denigrating term Davie when referring to me because he believes I should grow up instead of reporting his bullying behavior, and asking his boss, the city commission, to review his conduct for impropriety.) However that may be, the whisperings between your good self and the estimable city attorney Jose Smith at the Sept. 11, 2013 commission meeting are merely incidental to the question. I believe that that inaudible transaction and yet another one off camera behind the dais violated at least the spirit of the Sunshine Law, but that you and your colleague were innocent of any intent to violate the Sunshine Law, because of a tradition that inculcates ignorance.

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That is not to say that I believe you are innocent of participating in the denial of due process in that travesty conducted by the commission on Sept. 11 when it considered the bids for a contract to manage the tennis centers, and then arbitrarily, capriciously, and unreasonably rejected all bids because the reactionary regime desired to keep possession of public facilities in the hands of the incumbent bidder, the last-named on the list presented by the qualifications committee. That is not to say that I believe you are innocent of participating in the denial of due process in that travesty conducted by the commission on Sept. 11 when it considered the As Luigi Facciuto famously said, When wrong is done long enough, wrong seems right. For example, when I pointed out what I perceived to be a conspiracy to defraud the city of building permit fees and its ability to keep the public safety, I heard the refrain, Everybody knows that everybody does it, and nobody cares. Mr. Smith taught me that, ultimately, the city and city officials regulate themselves and enjoy Sovereign Impunity for gross negligence, and cannot be held responsible for what is within their discretion. That is, they are self-regulating as if little kings crowned by the city. The only crown I have is at Burger King. Similarly, Michael Murawski, Advocate for the Miami Dade County Commission on Ethics and Public Trust, in his June 21, 2007, Memorandum closing out an investigation of Jose Smith and other city officials, most of whom were lawyers, exonerated them from wrongdoing, stating that, first of all, the officials acted with apparent full knowledge, advice and approval of the City Attorneys office and we have generally declined to file complaints in the past in such situations. Now you have the advice of your city attorney and can act accordingly. Lawyers, unlike insurance agents such as you and your colleagues, regulate themselves, purportedly to maintain the nobility and honor of the profession. But that power has two edges, one held to the throat of the public as some members of the profession raise themselves above the principles and laws that they should honor, forging traditions that ignore and even legalize unethical conduct. Now it is due to my presumption of your innocence, if my understanding of the spirit of the Sunshine Law is correct, as well as Mr. Smiths innocence that I asked City Manager Jimmy Morales on Oct. 18, 2013, to improve the indoctrination of board members on the Sunshine Law as required by Miami Beach Code Sec. 2-22 (14), and to include new city lawyers, managers, and commissioners in that introductory indoctrination. The City Clerk provided me, in response to my public record request, a copy of the Sunshine Law package currently given to incoming board members, and it was wholly insufficient, including only the amendment to the law but not the substance of the law and a clear explanation of same.
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Now, then, I am moved to address Mr. Smiths Memorandum after citing it in full, and to consider all the citations he included to support his view. You will see that that his citations are a slew of references slapped together to support his begging of the question and serve as red herrings that do not go to the point. I believe that you will realize from the malicious tenor of the Memorandum that you have inquired of the wrong person, someone whose conduct has been questioned in the matter and whose response is so hostile that it is obviously that he has forgotten that his duty is not to himself and the party with whom he may have violated the Sunshine Law,but to the citys best interest. That city is not merely him and you and the coterie of ruling officials whom he identifies with, but to the community. Furthermore, the question has already been put to higher authorities than the city attorney; therefore, putting the question to him was inutile. I did not submit the question for the reason I gave when putting the question to higher authorities: his extreme hostility towards me for questioning his performance as city attorney would render his opinion inutile. # Jose Smiths Sunshine Law Memorandum and Citations in Support of his Legal Opinion opining that Discussions Between City Attorneys and City Commissioners on the Dais at Public Meetings are not subject to the Sunshine Law. SMITH CITATION: Memorandum on Sunshine Law, City of Miami Beach Attorney Jose Smith to City of Miami Beach Commissioner Jorge Exposito, October 23, 2013. Smiths Memorandum must be cited in full: You have asked me for a legal opinion regarding an e-mail from Rebecca Boyce which included an e-mail exchange from blogger David Arthur Walters and Victoria Frigo, Senior Staff Attorney for the Miami-Dade County Commission on Ethics and Public Trust. I concur completely with Ms. Frigo's conclusion that "the Sunshine Law is not violated when one commissioner speaks to someone who does not serve as a co-commissioner on the same collegiate body." Her opinion is entirely consistent with settled case law, attorney General opinions and the "Government in the Sunshine Manual" Mr. Walters cites in his continued efforts to defame public officials. Simply put, these legal authorities confirm that the Sunshine Law only applies to TWO OR MORE MEMBERS of the same City Commission (or the same public body) when discussing city business. Since I am not a member of the city commission, our conversations (private or not) are not subject to the Sunshine Law. Otherwise, commissioners could never have a private conversation with me or the city manager (i.e. agenda reviews). That would be absurd. While it is true that our "whispering" may not necessarily be subject to the

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attorney-client privilege, I assure you that the Sunshine Law does not prohibit it and that Mr. Walters is wrong. In closing, while blogger Walters is entitled to his own opinion on the tennis RFQ process, he is not entitled to make up law. Sadly, he has chosen to live in a different universe and it is for that reason he is no longer a writer for the Sun Post or any legitimate publication. COMMENT: Mr. Smith begs the question asked. It is agreed that a Sunshine Law applies to certain kind of public meeting. A public meeting is defined by the Attorney Generals Manual (and not by the statute) as Mr. Smith hath loosely pronounced. But the question appertains not to the definition of a meeting but to what happens at that meeting when held. It is certainly not illogical or absurd to deduce from the definition the city attorney adheres to that there should be no private or secret meetings of two or more commissioners with city managers and city attorneys for reviews if some city business were discussed that the commissioners might act on, although one may imply from his Memorandum that that is the practice. Mr. Smith believes that I am not entitled to make up the law, although that is what he himself has done, and he apparently believes that his interpretation is authoritative. Reason should hold sway instead of social position or status. His reason is obviously clouded by personal animosity and his logic is fallacious. As a human being, Mr. Smith has my sympathy because he is publicly defaming his estimable self with personal character attacks on others, when he should just answer to the facts and law and be done with it. Dale Carnegie related the story of a man who broadcast to millions of people the public attacks made by someone on his character, so malicious that the attacks served as selfdenouncements. Also pertinent here isMr. Carnegies advice in How to Stop Worry and Start Living, Chapter Twenty, How to Keep from Worrying About Criticism. Remember that unjust criticism is often a disguised compliment. Remember that no one every kicks a dead dog. The more important a dead dog is, the more satisfaction people get in kicking him. Many people get a sense of satisfaction out of denouncing those who are better educated than they are or more successful. Vulgar people take huge delight in the faults and follies of great me. Of course Carnegies oracles, like those rendered in screams by Pythias at Delphi and interpreted by priests, or the interpretations by Chinese sages of the sorting of yarrow stalks, a divination ritual derived from the cracks on the sacred turtles shell heated in the fire,rendered reasonable in the Book of Changes, are ambiguous, so it is best that both sides
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take it to heart and wonder, Who is the dog, and do I think I am the word dog spelled backwards? Likewise, there is a saying in the Orthodox Jewish bible that, The right hand, Hashem, is become glorious in koach (strength): The right hand, Hashem, hath dashed into pieces the oyev (enemy). (Shemot 15:6). One must understand the meaning of oyev, the nature of the friendly enemy, that the enemy may be within us all, that to hate the enemy and give him no quarter, to not for-give (to open ones hand or let go) him, may be an act of groundless hatred, or hatred of ones own kind, that may lead to the total destruction of the template for that kind. Sometimes an enemy does a man greater service than a friend. It seems that the city attorney has honored me with that designation. Tamerlane let go of his worst enemy when captured so his enemy would live to fight him another day. He allowed the elders of a small tribe to criticism: the rest he had beheaded. It is said that the law is no respecter of persons. Neither should the law disrespect persons. Still, the truth of a proposition, when it cannot rely on immediate empirical proof, may be deemed probable by the testimony of experience if practice results in wisdom on the subject at hand. It is necessary to respond here to the question of the authority. It appears that Mr. Smiths use of the argumentum ad hominem fallacy in his attempt to impeach me as an opinionator, as if I were a vicious alien from a different universe, is motivated by his apprehension that my wisdom is superior to his. Still, an ethical principle moves me to point out that he is, by credentialed formal education in and the licensed practice of the law, success in business, and many years of good service to the community despite his mistakes, far superior to me in certain respects. Yet this language I speak, these words and opinions of mine before you, are not my property but the property of Man, wherefore he indicts not me with his contumely but his self, kith, and kin. As for me, I am relatively nobody, an impoverished old man with an elementary education who took up the ancient Trivium at the crossroads. But remember that the Cyclops tribe heard Polyphemus, the one-eyed giant, crying out from his cave, so his ilk came to its opening and asked what was the matter with him; When he answered, Nobody has put my eye out, because Jason had given his name as Nobody, they retired back to their beds, thinking the poor giant had had a nightmare. Then the thieving Greeks made off with Polyphemus sheep. Thus is the figurative fate of those who can see only one side of the story. Although this is not the place to dwell at too much length on the details of the city attorneys contumely in his formal legal memorandum, I must say that his aspersions are false and absolutely irrelevant to the question of whether or not he and his colleague on the
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dais violated the Sunshine Law. He has resorted to false and misleading statements, and to vulgar, malicious and unprofessional character attacks and threats of retaliation in response even to questions innocently put. Even if I were a convicted bank robber, which I am not, my character would have no bearing on the question he was moved to answer in his Memorandum of Law supporting the opinion of the senior attorney for the Ethics Commission, an opinion I believe is a mistaken application of a sentence that appears in the Attorney Generals Manual on the Sunshine Law. In the recent conflict-of-interest case involving Miami Commissioner Frank Carollos telephone call to Police Chief Manny Orosa when he was stopped for crossing a doubleyellow line because another vehicle was blocking his way, Mr. Carollos defense at the Sept. 3 trial, presented by famed lawyer Benjamin Kuehne, included calling the person who brought the complaint, Albert Crespo, a bank robber. Mr. Crespo has freely admitted to his criminal past, but points out that he has not robbed a bank in 35 years and was released from prison 30 years ago. If he were again charged with bank robbery, his previous convictions could not be presented as evidence of guilt. Public policy recognizes the proven fact that people change, that one who commits a crime is not forever a criminal. Likewise, the rules of evidence would preclude impeaching him as a witness unless it could be shown that he is of bad character, that he has a pertinent pattern of bad behavior, say, as a known pathological liar. But here he is simply a member of the public offended by favoritism allegedly shown to public official. Maybe he is a witch hunter who would illuminate black magic witches with the Sunshine Law instead of bonfires, yet the public has a right to know whether such witches exist or not. Michael Murawski, Advocate for the Miami Dade Commission, made a Motion in Limine to prohibit Carollos lawyer from using the vulgar criminal-past tactic to defend his client. That motion read, in part: The instant complaint was filed by Albert Crespo. Mr. Crespo is not listed as a witness in this case and was not a witness to the incident. During his deposition, Respondent referred to the complainant as a convicted armed bank robber. In the deposition of another witness, the complainant was referred to as a criminal. The reputation and /or character of the complainant is totally irrelevant to the facts of the case. The public hearing in this matter should not be an opportunity for the respondent to publicly denigrate the complainant. Likewise, Mr. Smiths personal attack on my character is totally irrelevant to the question that I brought, not in the form of a complaint against him and your good self, but simply as a question of general law to which your conduct was merely incidental. Indeed, this sort of malicious behavior on his part, of which I can show a pattern, should be barred at the very

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threshold (limine) of ethical conduct, and should not be a part of any legitimate memorandum of law, notwithstanding the vulgar practice of Rambo lawyers. Despite Mr. Murawskis defense of Mr. Crespos complaint, in which he found probable cause that Mr. Carollo should be brought to trial, Mr. Crespo, a controversial blogger who is a sort of expert on the Sunshine Law, has in his blogs impeached the Ethics Commissions reliability and damning it for violating the Sunshine Law: I have argued repeatedly that they have violated my rights, disrespected my complaints, and generally shit on the Rule of Law. I would have never believed however, that even after all the times that I have written about these people, and more importantly, shown up at their meetings with a video camera, that they would be either so stupid, brazen, or both, to flagrantly violate the Florida Open Government Law in front of me and a room full of TV cameras at last weeks hearing on my complaint against Commissioner Frank Carollo. Its a revelation of how little any of these people either know or care about the law, that I was able to record what you are about to view. Mr. Crespo states that officials hid their lips from view behind a blue folder as they conferred out of range of the microphone. His blog on the subject including videos can be viewed at this URL: http: / / www.thecrespogramreport.com /Site_10 /SUNSHINE_LAW_VIOLATION.html Mr. Crespo is not the only one who has little faith in the Ethics Commission and other local officials to regulate themselves, causing people to go over their heads to Governor Scott, who is charged with upholding the laws of the state, and to Pamela Bondi, his Attorney General. However, they are automatically referred back down to the local officials from whom they can obtain no satisfaction and from whom they might expect retaliation, in a tendency for parochial rights to ruin the strong central state necessary for the equal protection of universal law. Notably, Joe Centorino, the Director of the Ethics Commission, was formerly the corruption prosecutor for the State Attorney, and is an expert on Sunshine Law. The Ethics Commission advertises that it forwards violations of law beyond its jurisdictional ken to the State Attorney, the implicating being that special access is available to people who feel they have been previously ignored by the local State Attorney. In all fairness, it must be said that the Ethics Commission and State Attorney are probably inundated with complaints of ethics violations and public corruption. Perhaps the entire staff of the Ethics Commission would have to be devoted to the complaints involving a relatively small city like the City of Miami Beach if every complaint were diligently investigated and publicly reported. After all, the City of Miami Beach has been denied the services of the Inspector General and the budget for the police departments Internal
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Affairs department to expand its investigations of police personnel to all allegations of official misconduct. Wherefore we are left waiting on the F.B.I. to which our only corruptions detective is assigned. The State Attorney has set up a triage system to handle complaints at its office, as do emergency rooms, to handle the most critical cases first of all. However, the perception is that cases are expedited on a random basis or as a favor to powerful politicians who are given privileged access. For instance, a recent Sunshine Law violation was alleged by an anonymous Miami Beach city commissioner; it was taken up immediate by the State Attorneys office to much fanfare in the press. Now, then, the only true statement that Mr. Smith, whom the esteemed SunPost editor anointed Best City Official 2013 for reasons I cannot divulge without betraying her confidence, is that I have indeed gone my own way: that way began when I left home for the streets of Chicago 55 years ago, and first slept at night in the entranceway of the public library in the LoopI suppose this bit of information will cause the city attorney and /or his assistant to search for something further to assassinate my character with. I do not charge for the writings that I offer to publications although I have received honorariums from an organ of the Catholic Church. I am not nor never have been employed by Granma or any other publication including the SunPost, although the SunPost and other publications have claimed me as their writer. The importance of knowing the content of the whisperings between Mssrs. Smith and Exposito is made clear by the following response from the private citizen to whom the Memorandum was copied, Rebecca Boyce, President of the Miami Beach Tennis Association: Thank you, Mr. Smith for your response, although I find the attack on Mr. Walters, a concerned person, to be unprofessional and quite disturbing. I am a simple resident without legal training. I am concerned with the processes and standards upheld by our government and would like to understand better the events that led to Mr. Exposito's motion in the 9 /11 / 13 commission meeting. In this context, please clarify the content of the whispering, and also, the actual 'ambiguities' that the tennis RFP contains. Thank you. Respectfully, Rebecca Boyce. The ambiguities were alleged in this exchange between Commissioners Jorge Exposito and Jonah Wolfson around 8:14 pm: Exposito: At the end of the day, I think the trouble we are having is that there are so many ambiguities and so many uncertainties in this RFP. I am not seeing it as a qualification, but we have to look at the satisfaction of what we are giving our community at the end of the day because that to me is more important than $120,000. I am going to make a motion that
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the RFP be thrown out. Come back, rehash it. Come back with very specific criteria. So we can measure apples to apples. That is my motion. Wolfson: What are the ambiguities? Exposito: Everything in terms of staffing and maintenance. The fact of the matter was that the only management and maintenance ambiguities, referred to by Mr. Exposito as reason to sneakily throw out all the bids in order to retain the incumbent contractor after conferring with Mr. Smith, were in the proposal of the insolvent incumbent contractor, who was forced onto the last of the list after a decade of continuing breaches tolerated and condoned by city officials. # SMITH CITATION: Attorney General Opinion. Number: AGO 74-47, Date: February 13, 1974, Subject: Meetings with city manager and sunshine law COMMENT: Smiths citation of this Opinion is irrelevant as it does not appertain to the question but only to individual meetings between city manager and city councilmen. # SMITH CITATION: Attorney General Opinion. Number: AGO 97-61, Date: September 15, 1997, Subject: Sunshine law, board members meeting with board attorney COMMENT: Smith citation directly contradicts his argument because the question upon which the AGO is given is, Are communications between a member of the school board or the school superintendent, and the school board attorney, privileged attorney-client communications? The answer is no, they are not privileged, and therefore are subject to the Sunshine Law. # SMITH CITATION: News and Sun-Sentinel Company, etc., et al. (542 So.2d 1354 (Fla.App.4 Dist. 1989) COMMENT: Smiths citation of this case does not appertain to the question but addresses whether or not a scheduled discussion between mayor and city employee concerning discipline of employee was a "meeting" for purposes of Sunshine Law; discussion was not between two or more public officials and mayor was not acting for a board or commission. The court held that it was not. #

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SMITH CITATION: Deerfield Beach Publishing v. Mayor of Deerfield (No. 87-2195. District Court of Appeal of Florida, Fourth District. Sept. 7, 1988.) COMMENT: Smiths citation is impertinent as this case appertains to a finding that a complaint for the alleged violation of the Sunshine law by a mayor who conferred with other commissioners in a non-public setting must allege by name or sufficient description identity of public official with whom defendant public official has allegedly discussed public decision-making process in nonpublic forum without public notice in violation of law. SMITH CITATION: Chapter 286 Florida States (2012) COMMENT: Smiths Citation tends to contradict his position by way of interpretative inference from the statute. Chapter 286 does not explicitly address the question as to whether or not discussions between city commissioners and those city attorneys, who may, according to the city charter, make recommendations on legislation, are subject to the Sunshine Law. However, the statute does refer to private meetings held by a commission with city attorneys to discuss litigation, and provides that those meetings are indeed subject to the Sunshine Law, and: The entire session shall be recorded by a certified court reporter. The reporter shall record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session shall be off the record. The court reporter's notes shall be fully transcribed and filed with the entity's clerk within a reasonable time after the meeting. The record becomes public on conclusion of the litigation. Notably, the Miami-Dade County Ethics Commission had some difficulty obtaining just such a record (transcripts of meetings held in July 2004) from Smiths office in the case of Leroy Griffith and Club Madonnas suit against city attorneys and commissioners at the time, including Commissioner Jose Smith, for an alleged attempt to extort $30,000 in legal fees from Leroy Griffith so he could get a fair hearing to obtain a liquor license. And a memorandum on the matter was withheld on the claim of executive privilege. Mr. Griffiths complaints, characterized by Mr. Smith as garbage, have been recently revived in state court, now removed to federal court. Mr. Smith blamed Mr. Griffith for making the link between consideration of cause and the payment of the legal fees. Although the ethics investigator deemed the conduct of the city officials inappropriate but not actionable because the commissioners, most of them attorneys, acted on advice of attorneys, the ethics commission sat on the fence after considering that Mr. Griffith had blackmailed the city with lawsuits, therefore the city was entitled to retaliate. That flies in the faces of the ancient maxim on ethics that it is better to suffer a wrong than to do one. Is
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it all right to walk into a courtroom and murder a murderer? Mr. Smith remarked at the close of the 2004 executive sessions that most litigation is extortionate. The July 2004 transcripts of the executive session of city attorneys and city commissioners held in that matter include the statements of Smith to city commissioners. Smith might argue that those statements were made to several commissioners at once, so was information shared between the commissioners, but that the whisperings at the Sept. 11, 2013, commission meeting were between him and a single commissioner, therefore neither he nor the commissioner, both local public officials under the statute, were in violation of the Sunshine Law. He has previously argued that he does not advise on legislation, so he might claim that also exempts him from the Sunshine Law. Sec. 286.0115 appertaining to access to local public officials states that, local public official means any elected or appointed public official holding a county or municipal office who recommends or takes quasijudicial action as a member of a board or commission. Article III of the City of Miami Beach Charter, Sec. 3.011 (e) states that the City Attorney shall recommend to the City Commission for adoption, such measures as he /she may deem necessary or expedient. The record shows that Smith has indeed made numerous recommendations on legislative issues. However, he took exception to that in an email to me in response to a statement I had made to the City Clerk, that a city attorney may have recommended a course action in which he had personal interest: The City Attorney does not advise commissioners on how to vote on an ordinance, he said. The City Attorneys ONLY interest is the best interest of the city. The City Attorney would recuse himself on ANY matter affecting his private interests. You, sir, are delusional! So, on the one hand, he claimed he does not advise commissioners; on the other hand, he says he would have to recuse himself instead of advising them on matters affecting his interest. # SMITH CITATION: a single page of A.G.s Manual: Part I, Sec. A. What is the Scope of the Sunshine Law? COMMENT: The 2012 Manual states: Floridas Government in the Sunshine Law, commonly referred to as the Sunshine Law, provides a right of access to governmental proceedings of public boards or commissions at both the state and local levels. The law is equally applicable to elected and appointed boards, and applies to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action. Emphasis is added to the specific authority that Victoria Frigo, senior attorney for the Ethics Commission, cites as her sole authority, an opinionative clause that does not appear
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in the governing statute. The clause appertains to what constitutes a meeting subject to Sunshine Law, but it does not exempt the discussions of city attorneys sitting on the dais at the meeting from the Sunshine Law. Smith fails to cite a clause in the same manual that declares, In the absence of a legislative exemption, discussions between a public board and its attorney are subject to s. 286.011, F.S. Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985) (s. 90.502, F.S., providing for the confidentiality of attorneyclient communications under the Florida Evidence Code, does not create an exemption for attorneyclient communications at public meetings; application of the Sunshine Law to such discussions does not usurp Supreme Courts constitutional authority to regulate the practice of law, nor is it at odds with Florida Bar rules providing for attorneyclient confidentiality). Cf. s. 90.502(6), F.S., stating that a discussion or activity that is not a meeting for purposes of s. 286.011, F.S., shall not be construed to waive the attorneyclient privilege. And see Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), stating that all decisions taken by legal counsel to a public board need not be made or approved by the board; thus, the decision to appeal made by legal counsel after private discussions with the individual members of the board did not violate s. 286.011, F.S. There are statutory exemptions, however, which apply to some discussions of pending litigation between a public board and its attorney. (2012 A.G. Sunshine Manual Page 24, Legal Matters). In Neu v Miami Herald, the Supreme Court of Florida agreed to declare on the issue because it was of great public importance: Because of the continuing significance of the issue, the court certified the following question of great public importance: Whether the Sunshine Law applies to meetings between a City Council and the City Attorney held for the purpose of discussing the settlement of pending litigation to which the city is a party. State ex rel. Reno, 434 So.2d at 1036. We answer the question affirmatively and approve the decision of the district court. It stands to reason that, where litigation meetings are held between legislative bodies and government attorneys, the law requiring all the transactions including the city attorneys statements to be recorded, that a litigation meeting is a subspecies of a regular meeting, and that the same principle is to be applied to those regular meetings. # SMITH CITATION: Constitution of the State of Florida, Article I, Section 24, Access to Public Records and Meetings. COMMENT: The Constitution section cited by Smith does not exempt public access to the content of whisperings between city attorneys and city commissioners on the dais a public meetings. The clause simply mandates public access so that what transpires in the
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meetings may be known. b) All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public. ## Finally, it has been my desire to simply get an authoritative opinion on the question so that everyone could be adequately instruction on the point, and not to broach the issue with the State Attorney. However, in consideration of the hostility of the city attorney, and upon the advice of the Attorney Generals office in response to my request to Governor Scott to ask the Attorney General for an opinion, I have referred the matter to State Attorney Katherine Fernandez Rundle. Submitted With All Due Respect, DAVID ARTHUR WALTERS Nobody

CC: TO CITY CLERK RAFAEL GRANADO Please place this response to Mr. Smiths Legal Memorandum on the Public Record as a Letter to the Commission

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