Sunshine Law Controversy in the Sunshine State

Tallahassee, FL (WorkersCompensation.com) - All 50 states have some version of an open-meeting law, or what is colloquially known as a Sunshine Law. These laws require government entities to allow public access to their meetings. There are some exceptions such as personnel matters, attorney consultations etc., but as a general rule, most proceedings need to be open to the public and sufficient notice of the proceeding needs to be provided.

The National Counsel on Compensation Insurance (NCCI) is an organization that, according to its website, “gathers data, analyzes industry trends, and prepares objective insurance rate and loss cost recommendations.” In Florida, these recommendations are then made to the Florida Office of Insurance Regulation (FLOIR). At a meeting on Aug. 16, 2016, NCCI recommended to the FLOIR a 19.6% increase in workers’ compensation insurance premiums. According to NCCI, one person determined the proposed increase: its chief actuary, Jay Rosen. Ultimately, the FLOIR approved a smaller 14.5% increase. James Fee, a Miami workers’ compensation attorney, filed suit claiming that all of NCCI’s deliberations that led to its recommendation should have been open to the public under Florida’s workers’ compensation Sunshine Law.

Codified in Title XXXVII, Chapter 627, Sec. 627.091(6), the law reads as follows:

Whenever the committee of a recognized rating organization with responsibility for workers’ compensation and employer’s liability insurance rates in this state meets to discuss the necessity for, or a request for, Florida rate increases or decreases, the determination of Florida rates, the rates to be requested, and any other matters pertaining specifically and directly to such Florida rates, such meetings shall be held in this state and shall be subject to s. 286.011. The committee of such a rating organization shall provide at least 3 weeks’ prior notice of such meetings to the office and shall provide at least 14 days’ prior notice of such meetings to the public by publication in the Florida Administrative Register.

Fee argued that this law required NCCI to open up all its deliberations to the public and not just the one meeting in August wherein the premium increase was proposed. The FLOIR argued that since one person, Rosen, made the determinations, there was not the statutorily required “committee.” In December of last year, Leon County Circuit Judge Karen Gievers agreed with Fee’s argument, and the FLOIR appealed to the First District Court of Appeals.

“It is candidly ludicrous to suggest that Sunshine Law requirements don’t apply to NCCI when they are determining rate hikes impacting tens of thousands of Florida businesses,” Geoff Bichler said, a partner in the firm of Bichler, Oliver, Longo & Fox, in an email to WorkersCompensation.com.

“Their technical argument that ‘there was no committee,’ because a single individual actuary came up with the proposed rate increase, laughably flies in the face of the plain intent and meaning of the statute,” Bichler continued. “If we are going to essentially tax Florida employers with substantially higher work comp premiums, the process should be transparent and open to public debate where faulty assumptions could be challenged. This will allow policy makers to reach conclusions based on a full vetting of relevant information and competing ideas; that’s the American way,” Bichler concluded.

Recently, the First District Court of Appeals did allow the proposed rate hike to go into effect while this matter is still pending, which further irks Bichler. “Transparency and competitive ratemaking could essentially eliminate the need for the rate hike that has already gone into effect,” he said. In conclusion, “I fail to understand why anyone concerned about the competitiveness of the Florida business climate is not embracing these ideas.”

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