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I can visualize my media-oriented colleagues cringing as I type these words. "Of course," they will protest, "the right of access can never be waived. Why, it's even preserved in the Constitution!" Indeed, it is. But consider the recent discussion by the Florida Supreme Court in this case involving a proposed Bar rule implementing the contingency fee limitation adopted by Constitutional amendment in the November 2004 election:
"The comments in opposition to the Bar’s proposal center around two main issues: first, whether the right granted in the constitution may be waived; and, second, whether the courts must approve any waiver. The first contention is that the personal right granted to medical liability claimants by article I, section 26 may never be waived because it embraces certain policies that are beyond the control of the claimants themselves. We note, however, that on its face, article I, section 26 unquestionably creates a personal right, one for the direct benefit of a medical malpractice claimant. It is entitled “Claimant’s right to fair compensation” and provides that “the claimant is entitled to receive” the stated percentages of the damages. Art. I, § 26(a), Fla. Const. Further, the Bar and other commentators point out that most personal constitutional rights may be waived. See In re Shampow’s Estate, 15 So. 2d 837, 837 (Fla. 1943) (“It is fundamental that constitutional rights which are personal may be waived.”); see also City of Treasure Island v. Strong, 215 So. 2d 473, 479 (Fla. 1968) (“[I]t is firmly established that such constitutional rights designed solely for the protection of the individual concerned may be lost through waiver . . . .”). Numerous instances of judicial recognition of the right to waive constitutional rights have been cited to the Court. For example, even the most basic fundamental constitutional rights, such as the Fifth Amendment right to remain silent and the Sixth Amendment right to counsel may be knowingly and voluntarily waived. See Miranda v. Arizona, 384U.S. 436, 444 (1966). Additionally, Florida’s highly valued constitutional homestead protection is subject to waiver. See Hartwell v. Blasingame, 564 So. 2d 543, 545 (Fla. 2d DCA 1990) (“Although the constitution and statute do not expressly recognize a person’s right to waive [homestead] protection, it has long been recognized that an individual is free to knowingly and intelligently forego a right which is intended to protect only the property rights of the individual who chooses to make the waiver.”), approved 584 So. 2d 6 (Fla. 1991). We also note that nothing in the plain language of article I, section 26 prohibits a waiver of the rights granted."
That's a whole panoply of constitutional rights that can, apparently, be waived. So why should the right of access to a government meeting be treated any differently?
How might this issue arise? There are surely other possibilities, but here's one. Consider the case of Port Everglades Authority vs. International Longshoremen's Ass'n, Local 1922-1, 652 So.2d 1169 (Fla. 4 DCA 1995), in which the Authority "suggested" that bidders in a competetive procurement might not want to attend the oral presentations of the other bidders. The Fourth District said that was a violation of the Sunshine Law, but why does it have to be? Why can't the affected bidder waive its personal right to attend the meeting, provided it does so freely, kowingly and voluntarily?
Any thoughts?
2 comments:
You raise an interesting issue. If the right is personal as to potential open meeting attendees, then a prior waiver might only clarify that an otherwise public meeting could exclude parties who have waived their attendance right. Has any court weighed potential attendee waivers as being unenforceable as against the open meetings public policy? It'd be awfully tempting for government staff to rely on prior waivers from contract bidders, for instance (hard to tell if there is any coercion in such a situation). I'd think that any real reliace a governmental agency has on protection from damages to a potential attendee or sanctions from a court for open meetings violations would be even clearer if the potential attendee just chose not to show up or is admitted to the meeting despite any prior waiver.
Certainly, the governmental agency involved can't close the meeting even if all of the potential attendees it knows of provide prior waivers, as there's no way to know if the advertisement will cause someone to become interested and show up without any such waiver. That rules out any ability to close meetings on a personal right waiver or avoid advertising them, right? Even if the right is personal, it can't be effectively waived by all potential attendees, because they can't all be known to the governmental agency holding the meeting before its over. If it's not a personal right, then it can't be waived anyway. That may be why the 4th DCA ruled against the Port Everglades Authority.
I think this leaves two questions when a public employee refuses to allow someone who clearly waived their attendance right to enter an otherwise open meeting. First, the person who waived their right may have provided a good defense to the governmental employee or agency regarding any damages the potential attendee might have claimed (think contract bidder losing claim that he/she was unfairly excluded from a public meeting). Second, sanctions for violations of open meetings law might be effectively brought anyway if enforcing such a waiver (other than as a governmental defense against damages claims) could be construed to be fundamentally against the public policy of open meetings law, although that is far from certain.
Because of the public policy issue, I can't see any scenario where I'd advise a governmental client that it can rely on such a waiver, even if made, unless there is some clear case law that is right on point. Governmental employees' only safe route is to advertise properly and let in anyone who shows up, relying on potential attendees actual choice over any prior waiver.
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