Judges: Robert A. Butterworth Attorney General
Filed Date: 7/14/1998
Status: Precedential
Modified Date: 7/5/2016
Mr. Stuart L. Litvin, President Hollywood Economic Growth Corporation 330 North Federal Highway Hollywood, Florida 33020
Dear Mr. Litvin:
As President of the Hollywood Economic Growth Corporation, you have asked for my opinion on the following question:
Are meetings of the Hollywood Economic Growth Corporation subject to the requirements of the Government in the Sunshine Law when the corporation is assisting the City of Hollywood in implementing the federal HUD 108 loan program?
In sum:
The Hollywood Economic Growth Corporation is not subject to the requirements of the Government in the Sunshine Law when it counsels and advises private business concerns on their participation in the HUD 108 loan program made available through the City of Hollywood.1
The Hollywood Economic Growth Corporation (HEGC) was created as a not-for-profit organization in 1994. The corporation "is separate, independent and autonomous from the City of Hollywood, Florida, and is not intended to exist or to be construed as an agency or arm of the City of Hollywood, Florida."2 The purpose of HEGC is "[t]o promote economic development and investment within the City of Hollywood, Florida."3 The corporation is empowered "[t]o coordinate business development activities, including the creation of new business in Hollywood, Florida, and the attraction of new business thereto, the development and expansion of minority businesses, the encouragement of existing businesses to remain and expand within Hollywood, Florida."4
The corporation exists "[t]o plan, foster, encourage, support and promote economic development and growth in the City of Hollywood, Florida, in an effort to expand the local tax base, increase local employment, and improve the general welfare, prosperity and quality of life of the residents of the City of Hollywood, Florida."5 HEGC may solicit, receive or generate funds from persons, entities or any unit or agency of government and is charged with collecting and disseminating economic data and research in cooperation with local, state and federal governments to promote economic development in Hollywood.6 The corporation is also authorized by its bylaws "[t]o undertake, alone or in cooperation with other interested organizations or persons, programs, activities or appearances designated to encourage and assist the creation, location or expansion of compatible industries in Hollywood, Florida[.]"7
Members of HEGC include the City of Hollywood, the Greater Hollywood Chamber of Commerce, the Chairman of the Hollywood Strategic Planning Committee, and individuals and business entities from the private sector who satisfy the criteria for membership established by the board of directors and are invited to become members.8 The direction and management of the corporation's affairs is vested in a board of directors made up of private sector directors elected by the voting membership, public sector directors,9 an ex officio director and the chamber director.10
According to your letter, the City of Hollywood has chosen to become involved in the federal HUD 108 loan program. Section 108 of the Housing and Community Development Act of 1974 is a loan guarantee provision of the Community Development Block Grant Program. This program provides communities such as Hollywood with a source of financing for economic development, housing rehabilitation, public facilities and large-scale physical development projects. Eligible applicants include metropolitan cities and urban counties.
Information you have provided indicates that neither the City of Hollywood nor the Hollywood Economic Growth Corporation will actively "market" the HUD 108 program. Rather, the corporation makes companies aware of the availability of many incentive or financial programs for which businesses in the area may be eligible, such as the Ad Valorem Tax Incentive, Local Alternative Economic Development Incentive, Qualified Targeted Industry Incentive, HUD 108 program, Urban Job Tax program, Broward County Cash Grant program, Small Business Association Loan program and Industrial Revenue Bond financing. These are just some of the federal, state and local business incentive programs available in your area for which local businesses may apply and for which HEGC provides counseling and assistance.
In this regard, HEGC will provide services to applicants for the HUD 108 program as it does for other incentive or financial programs. For example, a business applicant may request that HEGC review its finances and business plan prior to submission of this material to the city for participation in one of these programs. The Hollywood Economic Growth Corporation will advise the applicant of weaknesses or omissions in its documentation and options for proceeding. This advice is not binding on the applicant, who may proceed without contacting the HEGC, and the city has no access to the advice given to individual applicants. The City of Hollywood will have its own loan review committee to make decisions for the city on accepting businesses for the HUD program and will be the sole source for determining acceptance of a particular applicant to the program.
Under the HUD 108 program, HEGC will not process applications, will not take a position on the acceptance of applications, and will not administer or monitor the progress of projects. HEGC will not control the deposit or disbursal of funds and will not monitor their repayment or collect repayments. HEGC will play no part in the City of Hollywood's decision-making process as to who eventually qualifies for and receives the benefits of the program.
Your question is whether the Hollywood Economic Growth Corporation is subject to the requirements of the Government in the Sunshine Law when it is performing its role relating to the Section 108 program.
The Government in the Sunshine Law, section
Additionally, for section
A private organization that performs services for a public agency and receives compensation for these services is not, by virtue of that relationship alone, subject to section
Recent decisions by Florida courts to determine whether the open government laws apply to a private entity focus on whether the private entity is merely providing services to the public agency or whether it is standing in the shoes of the public agency. For example, the court in Stanfield v. Salvation Army,18 in holding a private corporation subject to Chapter
The Fifth District Court of Appeal in News-Journal Corporation v.Memorial Hospital-West Volusia, Inc.,19 reviewed the relationship between a hospital authority and the not-for-profit company leasing the public hospital's facilities. The court recognized a distinction between a contract in which the private entity provides services to a public body and a contract in which the private entity provides services in place of the public entity:
"If one merely undertakes to provide material — such as police cars, fire trucks, or computers — or agrees to provide services — such as legal services, accounting services, or other professional services--for the public body to use in performing its obligations, then there is little likelihood that such contractor's business operation or business records will come under the open meetings or public records requirements. On the other hand, if one contracts to relieve a public body from the operation of a public obligation — such as operating a jail or providing fire protection — and uses the same facilities or equipment acquired by public funds previously used by the public body then the privatization of such venture to the extent that it can avoid public scrutiny would appear to be extremely difficult, regardless of the legal skills lawyers applied to the task."20
The district court reversed the lower court's holding that the not-for-profit company was outside the scope of the Public Records Law and the Government in the Sunshine Law. The Florida Supreme Court has granted review of this case.21
In the instant inquiry, the Hollywood Economic Growth Corporation is a private nongovernmental organization created to encourage business in that community. The corporation is not a state or local governmental agency and its organization and operation are not regulated by state statute or local ordinance. Further, HEGC does not act in an advisory capacity to a governmental unit that is subject to the Sunshine Law. Rather, HEGC appears to act primarily in the interests of private business concerns and the business community in advising them of the availability of opportunities of which they may take advantage, and in counseling them regarding their suitability to participate in these programs.
An examination of the interaction of the Hollywood Economic Growth Corporation with the City of Hollywood and the HUD 108 program convinces me that HEGC has not been delegated any authority to act on the city's behalf. The HEGC is not performing functions integral to the city's decision-making process in the HUD 108 program nor is the corporation advising the city on the acceptance of any participants to the program.
In sum, it is my opinion that the Hollywood Economic Growth Corporation is not subject to the requirements of the Government in the Sunshine Law when it counsels and advises private business concerns on their participation in the HUD 108 loan program made available through the City of Hollywood.
Sincerely,
Robert A. Butterworth Attorney General
RAB/tgh
Like any attorney providing legal advice to clients, this office relies on a complete and accurate disclosure of information upon which Attorney General Opinions are based. This office does not generally reconsider opinion requests. However, this case is unique in that your attorney was not communicating with you nor was he providing this office with information essential to the resolution of this issue. The following discussion more accurately reflects the factual circumstances that currently concern the Hollywood Economic Growth Corporation.
Wood v. Marston , 442 So. 2d 934 ( 1983 )
Canney v. Board of Pub. Instruction of Alachua Cty. , 278 So. 2d 260 ( 1973 )
Krause v. Reno , 366 So. 2d 1244 ( 1979 )
Board of Public Instruction of Broward Cty. v. Doran , 224 So. 2d 693 ( 1969 )
City of Miami Beach v. Berns , 245 So. 2d 38 ( 1971 )
Town of Palm Beach v. Gradison , 296 So. 2d 473 ( 1974 )
Hough v. Stembridge , 278 So. 2d 288 ( 1973 )
Marston v. Gainesville Sun Pub. Co., Inc. , 341 So. 2d 783 ( 1976 )
Cape Coral Medical Ctr. v. NEWS-PRESS PUBLISHING , 390 So. 2d 1216 ( 1980 )
News-Journal Corp. v. Memorial Hosp. , 695 So. 2d 418 ( 1997 )
Stanfield v. Salvation Army , 695 So. 2d 501 ( 1997 )
IDS Properties, Inc. v. Town of Palm Beach , 279 So. 2d 353 ( 1973 )
Times Publishing Company v. Williams , 222 So. 2d 470 ( 1969 )