4D12-2978-Citizens For Sunshine, Inc. v. The School Board of Martin County, Florida

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State: Florida

Court: Florida Southern District Court

Docket No: 4D12-2978.op

Case Date: 01/23/2013

Plaintiff: 4D12-2978-Citizens For Sunshine, Inc.

Defendant: The School Board of Martin County, Florida

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2013

CITIZENS FOR SUNSHINE, INC., a Florida not-for-profit corporation, Appellant, v. THE SCHOOL BOARD OF MARTIN COUNTY, FLORIDA, SUE HERSHEY, LAURIE GAYLORD and DAVID ANDERSON, Appellees. No. 4D12-2978 [January 23, 2013] GERBER, J. The plaintiff appeals the circuit court's non-final order denying the plaintiff's motion for a temporary injunction against the defendants. The plaintiff primarily argues that the court erred in concluding that the plaintiff did not establish a substantial likelihood of success o n the merits. We affirm, but under reasoning slightly different than that which the circuit court articulated. We write to describe the evidence elicited at the circuit court's hearing, and then to discuss our reasoning. At three school board meetings, various persons expressed concerns about the operation of the district's adult education school. At two of the meetings, th e superintendent asked her adult education director to address the concerns. After the superintendent did so o n the last occasion, one of the board members, defendant Sue Hershey, interjected: Well, actually, I'm a little bit more interested in the whole, looking at it from a global standpoint, and I think . . . [the student is] welcome to talk with [the coordinator] but I think there's just too much going on. . . . I think we need to . . . look at the Adult [Education] School and also look at [another alternative school] and see where we're at here. Programs are our responsibility. All programs are the Board's responsibility. They are not the superintendent's

responsibility. They are by statute assigned to us. Whether a program goes on or is terminated is a board decision. It is not a superintendent decision. So when I say we need to discuss it, we really need to discuss it . . . . . . . And I think we need to address these programs and address them in an expedient manner. The next day, Hershey and two other board members, defendants Laurie Gaylord and David Anderson, visited the adult education school. They had not provided any notice of their visit. The school visit prompted the plaintiff to file a complaint alleging that the defendants violated the Sunshine Law b y conducting the visit without providing reasonable notice. The complaint sought declaratory and injunctive relief, specifically an injunction prohibiting the school board from implementing any action, or continuing any proceeding, related to the school visit. The plaintiff later filed an amended emergency motion for temporary injunction seeking the same injunctive relief. At the evidentiary hearing on the motion, the adult education school's coordinator testified about what occurred during the school visit. Hershey told the coordinator that "some very disturbing things [were] said at the school board meeting last night" about the school. The board members then asked the coordinator about: the coordinator's duties; a summary of which teachers were on contract; the support which the school received; appropriate teaching materials; rumors about whether the school would remain open or would close; and staff morale at the school. The board members also toured classrooms and spoke with teachers and students. According to the coordinator, the board members did not take any formal action during their visit and did not deliberate or decide anything. In the coordinator's words, "They came, and they saw and they left." Hershey testified that the coordinator's testimony was an accurate recollection of what occurred during the visit. She testified that she and the other board members visited the adult education school because a member of the public expressed concerns about the school's operation. She also testified that after the visit, she and other board members did not discuss what they saw and heard during the visit, and the school board took no action as a result of the visit. She further testified that if she had seen or heard something during the visit which bothered her, then she would have notified the superintendent.

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The superintendent testified that school board meetings occurring after the visit did not pertain directly to the adult education school, but instead pertained to district-wide matters. One matter discussed was the superintendent's recommendation for the appointment or reappointment of the district's employees, including the adult education school's employees. Another matter discussed was a district-wide purchase order of equipment and supplies, including purchases for the adult education school. During closing arguments, the plaintiff contended that this was a simple case, in that the defendant board members visited the adult education school without providing reasonable notice. The defendants argued that the court should deny the motion for temporary injunction because the plaintiff had not shown that the school board took any action as a result of the visit, or that a pattern of Sunshine Law violations existed. The defendants argued that even if the school visit constituted a Sunshine Law violation, the board cured the violation by having full and open meetings after the school visit, and the plaintiff did not show the likelihood of a future violation requiring an injunction. After the hearing, the circuit court entered a detailed order denying the motion for temporary injunction. The order stated, in pertinent part: 3. In order to obtain a temporary injunction[,] the Plaintiff must show an irreparable injury for whch there is no legal remedy, a substantial likelihood of successfully proving the claim, and that the requested injunction serves the public interest. 4. In order to prove a violation of the Government-In-TheSunshine law, the Plaintiff must prove that two or more of the School Board members met without reasonable notice to the public and took some official act or had discussions about some matter o n which foreseeable action will be taken by the Board. 5. As evidence of actions allegedly formulated on [the day of the visit to the adult education school], the Plaintiff offers three subsequent actions by the School Board which were foreseeable: (1) adoption of the Superintendent's annual recommendation to reappoint hundreds of teachers including a b o u t five adult education teachers, (2) adoption of the Superintendent's annual recommendation to reappoint non-instructional
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employees including at least o n e adult education employee, and (3) adoption of a recommended purchase order for all 21 schools in the district. It is unreasonable to think that the actions of the Defendant Board members on [the day of the visit] had any connection with these subsequent actions . . . . 6. Contrary to the Plaintiff's claim, the evidence does not show that the three subsequent actions . . . or any other pending or foreseeable action by the School Board were the focus of any questions and statements by [the] School Board members who visited the adult education [school] on [the day of the visit] . . . . 7. Without proof of discussions about some matter on which foreseeable action will be taken by the Board, the element of substantial likelihood of success on the merits is not proven. 8. Furthermore, the injunction requested b y th e Plaintiff would effectively stop the operation of all of the district's schools at the beginning of the school year and forbid the School Board to attempt to rectify the matter. This cannot be said to be in the public interest. This appeal followed. The plaintiff argues that the circuit court erred in concluding that the plaintiff was not entitled to a temporary injunction on the merits. For this argument, we employ a mixed standard of review. See Meadows v. Med. Optics, Inc., 90 So. 3d 924, 925 (Fla. 4th DCA 2012) ("This court reviews a temporary injunction under a mixed standard of review. To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, a n y legal conclusions are subject to de novo review.") (citation and quotation omitted). The circuit court's order correctly stated the elements which the plaintiff had to demonstrate to obtain a temporary injunction. "In order to obtain a temporary injunction, o n e must demonstrate that (1) irreparable harm will result if the temporary injunction is not entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success o n th e merits; and (4) entry of the temporary injunction will serve the public interest." Burtoff v. Tauber, 85 So. 3d 1182, 1183 (Fla. 4th DCA 2012) (citation and quotation omitted).

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The circuit court's order also correctly summarized the Sunshine Law. Article I, section 24(b) of the Florida Constitution provides: 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 b e taken or at which public business of such body is to be transacted or discussed, shall b e open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed b y this Constitution. Further, section 286.011(1), Florida Statutes (2012), provides, in pertinent part: All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, . . . at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

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