Judges: Robert A. Butterworth Attorney General
Filed Date: 4/12/1994
Status: Precedential
Modified Date: 7/5/2016
The Honorable Tom Gallagher Office of the Treasurer Department of Insurance The Capitol Tallahassee, Florida 32399-0300
Dear Mr. Gallagher:
You ask the following question:
Is the Florida Windstorm Underwriting Association subject to the Government in the Sunshine Law and the Public Records Law?
In sum:
The Florida Windstorm Underwriting Association is subject to the Government in the Sunshine Law and the Public Records Law.
You state that the Florida Windstorm Underwriting Association (FWUA) is a private nonprofit unincorporated association made up of all insurers licensed to transact property insurance on a direct basis in the State of Florida. The FWUA provides windstorm coverage to all applicants who are in good faith entitled to, but are unable to procure, windstorm damage insurance through ordinary methods.1 According to your letter, the authority for the creation of the FWUA arises from section
The department [of Insurance] shall require all insurers licensed to transact property insurance on a direct basis in this state to provide windstorm coverage to applicants from areas determined to be eligible pursuant to [section
Subparagraphs 1.-7. of section
Powers and Duties of the Board — The Plan of Operation shall be administered by the Board, subject to the supervision of the Commissioner.
The Department of Insurance is responsible for adopting a plan for the equitable apportionment or sharing of windstorm coverage.
In fulfilling this responsibility, the Department of Insurance (department) has adopted Rule 4-49.001, Florida Administrative Code, which adopts and incorporates by reference the Florida Windstorm Underwriting Association Amended and Restated Plan of Operation and Restated Articles of Agreement, as revised March 1990 (plan).
The plan recognizes that the FWUA was established in accordance with a Florida Statute enacted by the 1970 Regular Session of the Florida Legislature to "provide a method whereby adequate windstorm insurance may be provided in lawfully designated areas of Florida."2 The board of directors of the FWUA which is responsible for administering the plan is subject to the supervision of the Insurance Commissioner.
GOVERNMENT IN THE SUNSHINE LAW
Section
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 . . . at which official acts are to be taken are declared to be public meetings open to the public at all times. . . .
It is the entire decision-making process to which the Sunshine Law applies and not merely to the formal assemblage of a public body at which the final vote is taken. Thus, the statute extends to the discussions and deliberations as well as to the formal action taken by a public body.3
In determining which entities may be covered by the Sunshine Law, the courts have stated that it was the Legislature's intent to extend application of the law so as to bind "every `board or commission' of the state, or of any county or political subdivision over which it has dominion and control."4 The courts, in interpreting the Sunshine Law, have concluded that the law should be liberally construed so as to give effect to its public purpose.5
While private organizations generally are not subject to the Sunshine Law, section
For example, in Attorney General Opinion 92-80, this office stated that the board of directors of a nonprofit corporation created by the Legislature, Enterprise Florida, Inc., was subject to the Sunshine Law. Membership on the board of directors of the corporation was statutorily prescribed as was the manner of appointment and consisted of both private and public entities. The duties of the corporation were also prescribed by statute.
Based upon a review of relationship between the public agency and the private entity, this office in Attorney General Opinion 83-95 concluded that where a county has accepted the technical services of a nongovernmental advisory committee appointed by a private nonprofit corporation in the recodification and amendment of the county zoning laws, the meetings of such a committee were subject to the Sunshine Law. While the Legislature has "no right to require meetings of civic organizations, unconnected with . . . government, to conform to the government in the sunshine law,"6 the committee appointed to study the zoning code was not, in this office's opinion, unconnected with government but rather had been impliedly delegated the authority to act on behalf of the county commission in the examination and revision of the zoning code.7
In the instant inquiry, the plan, by its own description, recognizes that the FWUA was established in accordance with a Florida statute to develop a method for providing adequate windstorm insurance as mandated by state law. The plan itself was adopted by the Department of Insurance as a rule to fulfill the legislative mandate in section
In light of the above, I am of the opinion the FWUA and its board of directors are subject to the control of the "dominion and control" of the Commissioner of Insurance and are, accordingly, subject to the Government in the Sunshine Law.
PUBLIC RECORDS LAW
Chapter
any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law . . . and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.9
To determine whether a private entity is "acting on behalf of" a public agency, the courts have adopted a test involving analysis of a totality of factors. In making such a determination, the courts will consider:
1) Creation — did the public agency play any part in the creation of the private entity? 2) Funding — has the public agency provided substantial funds, capital or credit to the private entity or is it merely providing funds in consideration for goods or services rendered by the private entity? 3) Regulation — does the public agency regulate or otherwise control the private entity's professional judgment? 4) Decision-making process — does the private entity play an integral part in the public agency's decisionmaking process? 5) Goals — is the goal of the private entity to help the public agency and the citizens served by the agency?10
While there is no single factor which would subject an entity to the requirements of the Public Records Law, the factors viewed together might well require a private entity to comply with chapter
For example, in Attorney General Opinion 92-37, this office concluded that the Tampa Bay Performing Arts Center, Inc., a private nonprofit corporation created for the purpose of providing cultural and educational enhancement to the general public which was authorized by the City of Tampa to operate the city's performing arts facility, was subject to the Public Records Law. More recently, this office concluded that chapter
A review of the association and its relationship with the department leads me to conclude that the association is an agency for purposes of chapter
In light of the above, I am of the opinion that the association is an "agency" as defined in chapter
Sincerely,
Robert A. Butterworth Attorney General
RAB/tjwls
[I]t is the entire decision-making process that the legislature intended to affect by the enactment of the statute before us. . . . Every step in the decisionmaking process, including the decision itself, is a necessary preliminary to formal action. It follows that each such step constitutes an "official act," an indispensable requisite to "formal action," within the meaning of the act.
Wood v. Marston , 442 So. 2d 934 ( 1983 )
Board of Public Instruction of Broward Cty. v. Doran , 224 So. 2d 693 ( 1969 )
News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser ... , 596 So. 2d 1029 ( 1992 )
City of Miami Beach v. Berns , 245 So. 2d 38 ( 1971 )
Times Publishing Company v. Williams , 222 So. 2d 470 ( 1969 )