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NCCI, state insurance office can’t evade Sunshine Law, brief argues

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The group behind a 14.5 percent workers’ compensation premium can’t get around Florida’s Sunshine Law by arguing that a single individual worked on the matter, and not a full-fledged internal committee, an appellate brief argues.

The law holds that meetings by such committees at rating organizations like the National Council on Compensation Insurance, or NCCI, must be open to the public — and their internal supporting documents, too, the brief says.

Attorneys representing James Fee, a Miami workers’ compensation lawyer challenging the premium increase, argue in a brief filed this week that the law applied even if a single individual — in this case, NCCI chief actuary Jay Rosen — did the number crunching.

“By treating NCCI actuary Rosen as a ‘committee’ and vesting him with decision-making authority, NCCI rendered Rosen’s actions subject to (the Sunshine Law), John Shubin, of the Shubin & Bass law firm, wrote in the pleading.

NCCI proposes premium levels on behalf of most of the workers’ compensation insurers in Florida, subject to approval by the state Office of Insurance Regulation. In this case, NCCI proposed a 19.6 percent hike but the office approved the smaller boost.

A Leon County trial judge ruled in December that NCCI and the office violated the Sunshine Law by failing to open NCCI’s internal deliberations and all underlying documents to the public.

That ruling is now under appeal to the 1st District Court of Appeal.

NCCI and the office argued in their own briefs that the law doesn’t apply because NCCI disbanded its internal rating committee in 1991 over antitrust concerns.

Applying the requirements under these circumstances would constitute a “dramatic” expansion of the law, NCCI argued.

But the law “does not require that a ‘committee’ be comprised of more than one person, and delegation of decision-making authority to an individual did not somehow immunize NCCI from statutory open-government requirements,” the Fee brief argues.

“Because none of NCCI’s actions were taken ‘in the Sunshine,’ a host of violations occurred,” it says.

The document outlines a series of internal meetings during which Rosen ”presented the proposed rate increases and related analysis to large groups of senior NCCI employees, which included both NCCI directors and senior actuaries.”

“NCCI admits that, at these meetings, attendees had the opportunity to ask questions and ‘poke holes’ in the proposals.” Attendees were allowed to “ask various questions; for example, why did you make this selection versus another, give us feedback,” the brief says.

“There is no question that the rate increases were the topic of conversations at a host of meetings, which were attended by decision-maker Rosen, the OIR and senior NCCI staff.

“Thus, these meetings fell squarely within (the Sunshine Law’s) clear and unambiguous ambit. NCCI’s decision not to refer to these groups as ‘committees’ in name did not permit NCCI and the OIR appellants from fulfilling their statutorily established open-government obligations. Any issues that appellants may have had with these obligations would properly be raised with the Legislature, not through ‘self-help’ measures or with this court.”

A public hearing the office held in August to review NCCI’s rate proposal did not cure the alleged violation, the brief concludes.

“In light of a series of open government violations and the withholding of public information, neither appellee nor the public were able to meaningfully participate in the Aug. 16, 2016, hearing,” Fee’s team wrote.

“Indeed, by considering a rate increase proposal generated through a series of open government violations, the hearing actually served to amplify these violations.”

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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