Press organizations file brief in workers’ compensation rate hike appeal


The Associated Press, Florida Press Association, and Florida First Amendment Foundation have entered the legal battle over whether the state’s Sunshine Law covered the organization behind the state’s workers’ compensation premium increase.

In a friend-of-the-court brief, the three accused the National Council on Compensation Insurance, or NCCI, of employing “an evasive device” to get around its legal obligation to calculate premiums in the sunshine.

They pointed to a section of the insurance code requiring organizations like NCCI, which proposes rates to the Office of Insurance Regulation, to open deliberations and documents to the public.

“NCCI’s construction of (the law) turns the statute on its head and, through the evasive act of delegation, writes transparency out of the statute. It is for this reason that Florida courts have rejected efforts to skirt Florida’s vaunted Sunshine Law and have held that sunshine follows delegation,” the amicus brief says.

“Otherwise, public officials would be incentivized to avoid transparency through the fiction of allowing one individual, through a series of meetings with numerous others, to perform a public function behind closed doors even though the Legislature decreed that very function should be open to the public.”

The organizations are not attacking the rate increase itself, said Barbara Peterson, president of the First Amendment Foundation.

“We are not interested in the substantive decision. We want to make sure they comply with the (open government) process, and they did not,” she said.

The argument tracks those by lawyers for James Fee, a Miami workers’ compensation attorney challenging the 14.5 percent rate increase that began taking effect in December.

He complained he was denied access to NCCI’s internal deliberations and some documents.

The insurance office subjected NCCI’s proposed 19.6 percent rate increase to a public hearing in August before approving a scaled-back increase.

A Leon County trial judge in December sided with Fee and against NCCI and the insurance office. That ruling is now under appeal to the 1st District Court of Appeal, which let the increase begin taking effect pending the outcome of the case.

NCCI and the insurance office argued the law applies only to internal rating committees — and NCCI disbanded its own such committee in 1991 over antitrust concerns.

Instead, a single actuary — Jay Rosen — did the work, although he consulted with other NCCI employees.

Fee’s reading of the law would constitute a “dramatic expansion” of the Sunshine Law and insurance code, NCCI argued. The insurance office offered a similar argument in its own legal brief.

To the contrary, the amicus brief, filed last week, argues, “if NCCI’s construction is upheld it would gut the Sunshine Law by allowing a delegation exception rejected by prior precedent.”

The document cites language in the Florida Constitution demanding openness whenever “public business” is “transacted or discussed.”

“The Florida Supreme Court expanded upon the breadth of the Sunshine Law when it explained that the frustration of all evasive devices requires that every step in the decision-making process be made in public, not merely that the proposed act be aired in public meetings,” it says.

The brief calls NCCI’s argument “akin to issuing itself a rider on an insurance policy allowing it to operate behind closed doors.”

“At the end of the day, it matters not whether the rate determination is made by a committee or one individual, or whether they are private or public. It is the public function performed — rate filing — under an explicit statutory provision that requires it to be in the Sunshine.”

Michael Moline

Michael Moline is a former assistant managing editor of The National Law Journal and managing editor of the San Francisco Daily Journal. Previously, he reported on politics and the courts in Tallahassee for United Press International. He is a graduate of Florida State University, where he served as editor of the Florida Flambeau. His family’s roots in Jackson County date back many generations.

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