Agenda 06/28/2016 Item #10A 6/28/2016 10.A.
EXECUTIVE SUMMARY
Report to the Board of County Commissioners regarding the Clerk's legal duty to follow
the Collier County Procurement Ordinance and state statutes to include the Prompt
Payment Act.
OBJECTIVE: The Clerk of Courts is bound by local law until such law is overturned by the courts.
The county's Purchasing ordinance is valid local law prescribing that no disbursement of public funds
shall be made ahead of the Board of County Commissioners declaring that a valid public purpose is being
served and voting to approve payment of the legal purchase. The Board of County Commissioners shall
only approve legal expenditures for payment. The Clerk of Courts is required to preaudit county
expenditures for legality. The Board relies on the Clerk's determination of legality and(if needed)that of
an independent external auditor, in deciding if the expenditure is legal and should be paid. At this time,
the Clerk is sidestepping the Prompt Payment Act, other state statutes and the Board's local Purchasing
ordinance. The Clerk has the burden of establishing the Purchasing ordinance's invalidity. He has not
done so. An appellate court will indulge every reasonable presumption in favor of an ordinance's
constitutionality.
To advise the Clerk of his legal duty to present all preaudit expenditures to the Board of County
Commissioners for Board approval ahead of the Clerk disbursing county funds within the time frame and
in the manner stated in the Prompt Payment Act.
CONSIDERATIONS:
The Board of County Commissioners is statutorily vested with discretionary decision making authority to
promulgate local ordinances provided such laws are not inconsistent with state law, and to adopt those
procedures necessary to implement its decisions. Where no preemption applies, such ordinances may be
more restrictive than state statutes. Board approved ordinances are deemed valid until overturned by the
courts.The County Manager is vested with the administrative authority to execute the Board's procedures
to implement the Board's decisions and directions.
As to county purchases and payments of such purchases: Only the Board of County Commissioners can
approve the spending of public funds for preaudited legal county expenditures that are deemed by the
board to serve a valid public purpose. (See 125.01 F.S.) The County Manager shall make county
purchases as prescribed by the county's Purchasing ordinance. (See Ord. No. 2015-37, 2013-69, Sec. 2-
188(d)) The board is prohibited from paying illegal expenditures.(See 129.0 F.S.)
The role of the Clerk of Courts,by contrast to the Board of Commissioners,is purely administrative. The
Clerk's functions are statutorily defined and limited to ministerial functions. (See Overholser v.
Overstreet) He is not vested with discretionary authority. The Clerk is further bound by the county's
ordinances. He has no authority to dictate county procedures. More specifically as to the payment of
county purchases, he has no discretionary authority to spend public funds. The Clerk is prohibited from
paying any claim against the county not authorized by law,or county ordinance. (See 129.09 F.S.)
TheBoardof-County Commissioners adopted-a-Purchasing ordinancewhich-makes.clear-thatprior-to the
payment of public funds, the Board shall approve all legal expenditures with a finding that such
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expenditures serve a valid public purpose. Such payments shall be made in accordance with the Prompt
Payment Act. (See Ord. No. 2013-69, 2015-37(2-201)) (See also Prompt Payment Act 218.71 F.S.) The
county's Purchasing ordinance has not been overturned by any court, and as such is binding on both the
Board and the Clerk of Courts. (See Brock v. Ochs,Markiewicz,and Collier County,Final Order entered
in favor of defendants on February 18,2016.)
The expenditures subject to the Board's approval for payment shall first be preaudited by the Clerk of
Courts as prescribed by the Florida Supreme Court in Alachua County v. Powers. The Clerk shall
preaudit to determine the legality of the county's expenditure which includes that the funds are spent for a
public purpose, that the funds are spent in conformity with county purchasing procedures or statutory
bidding procedures, and that the expenditure does not overspend an account or fund of the Board's
approved budget. If the Board becomes concerned, it has the authority to require a performance audit or
post-audit by an independent accounting firm. Such a performance or post-audit is separate from the
statutory year-end Single Audit requirement. Therefore, it is clear that the Board shall only approve
payment for those expenditures that have been preaudited by the Clerk and additionally by the
independent external auditor, if deemed necessary. To do otherwise places the Board at risk of
improperly paying illegal expenditures.(See 129.08 F.S.)
Florida Statute 136.06(1)provides that the withdrawal of funds from the county's depositories"shall"be
signed by the chair of the board and attested to by the clerk or secretary of said board. Further that the
procedures and controls over the county's electronic fund transfers shall be set by Board and that
electronic signatures shall be treated in the same manner as hard copy signatures. (See 668.06 F.S.) Since
136.06(1) F.S. requires the chair of the Board of County "Commissioners to sign ("shall"), clearly the
Clerk of Courts disburse county funds ahead of the chair signing/authorizing on the board's behalf. No
county commissioner can act on behalf of the board without a majority vote of the board at a publicly
noticed meeting.As such,the Clerk necessarily must present preaudited purchases to the Board of County �1
Commissioners for payment approval ahead of disbursement of the public funds. The time frame for
payment under the Prompt Payment Act allows for sufficient time to obtain such approval.
At this time, the Clerk is improperly making disbursements of public funds without the Board's prior
approval and signature, contrary to local law. The Clerk refuses to present a schedule of preaudited
expenditures at the Board's publicly noticed meeting for the Board's approval of payment and declaration
that a valid public purpose has been served as required by local ordinance. Further,The Clerk is violating
the Prompt Payment Act. He is not bringing forward discrepancies identified during his preaudit in the
manner and within the time frame of the statute. As such, he is blocking the board's ability to address
concerns with an outside auditor, if it so chooses, and he is denying vendors the opportunity to correct
defects and be paid within the statute's promulgated timeframe. The Clerk's failure to comply with
applicable statutes and local ordinance is causing harm to the Board, the county and local vendors doing
business with the county. The county's Purchasing ordinance is binding upon the Clerk and to date has
not been overturned by any court.
FISCAL IMPACT: None
GROWTH MANAGEMENT IMPACT: None
LEGAL CONSIDERATIONS: No Board action requested.
APPROVED BY: Commissioner Georgia Hiller,District 2 Date:June 28,2016 P'""\
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COLLIER COUNTY
Board of County Commissioners
Item Number: 10.10.A.
Item Summary: Report to the Board of County Commissioners regarding the Clerk's legal
duty to follow the Collier County Procurement Ordinance and state statutes to include the
Prompt Payment Act. (Commissioner Hiller)
Meeting Date: 6/28/2016
Prepared By
Name: BrockMaryJo
Title: Executive Secretary to County Manager, County Managers Office
6/22/2016 3:55:54 PM
Submitted by
Title: Executive Secretary to County Manager, County Managers Office
Name: BrockMaryJo
6/22/2016 3:55:55 PM
Approved By
Name: OchsLeo
Title: County Manager,County Managers Office
Date: 6/22/2016 5:06:55 PM
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' • //4t, ' -.;+- '\ \
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i OFFICE OF THE ATTORNEY GENERAL
Opinions Section
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ATTORNEY GENERAL Phone(850)245-0158 F (4'0)9117-39.51tz-Pi
STATE OF FLORIDA http://www.myfloridalegaLcom 0 ,_
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August 9, 2012
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The Honorable Dwight E. Brock
Clerk of the Circuit Court
P.O. Box 413044
Naples, Florida 34101-3044
Dear Mr. Brock:
As Clerk of Courts for Collier County, Florida, you have requested an
opinion on a number of questions which have generally been characterized as:
1. The legality of making advance payments to:
A. FPL utilizing public funds generated by a Collier County created ...---..
municipal services taxing unit,the Vanderbilt Beach Municipal
Services Taxing Unit(hereinafter"MSTU")for the underground
conversion of overhead electrical utility lines within Collier County
road rights of way(the "MSTU Project"; and,
B. the FDOT(using public funds generated by the Collier County
Water-Sewer District, hereinafter"CCWSD")to pay the expense of
relocating existing underground utility lines owned by the CCWSD,
during FDOT roadway expansion work on a state roadway; and,
2. Whether the MSTU Project must be competitively awarded
pursuant to section 255.20, Florida Statutes.
This office has no authority to review contracts and construe contractual
terms nor will this office comment on the duties and responsibilities of another
governmental agency or private actor at the request of the clerk of court unless
those entities join in your request. Our authority is statutory and grants us the
power to issue legal opinions on questions of state law to governmental actors on
their own duties and responsibilities. Thus, in an effort to assist you I have take
the liberty of rephrasing your questions in a fashion that would allow this office to
comment.
..--,
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The Honorable Dwight E. Brock
Page Two
In light of this office's statutory limitations and in an effort to provide you
with some direction in this matter, I have recharacterized your questions as;
1) Whether the Clerk of Courts is authorized by the Florida
Statutes to make advance payments and for what purposes; and
2)Whether an electrical project undertaken by an MSTU must be
competitively bid.
The following informal comments are provided in an effort to assist you in
performing your duties as auditor of county funds.
As this office has previously stated,the clerk of the circuit court, although
a constitutional officer, possesses only such powers as have been expressly or
by necessary implication granted by statute. Thus, the clerk's powers,like those
of other constitutional county officers, are limited to those powers which have
been expressly granted or are clearly necessary to give meaning and effect to
those powers which have been expressly granted.2
In the case of Alachua County v. Powers,3 the Clerk of the Circuit Court of
Alachua County sought a declaratory judgment to clarify his fiscal duties as clerk
of the county commission in four capacities: as auditor, accountant, custodian,
and investor of county funds. The Florida Supreme Court stated that the trial
court had correctly determined that"the Clerk was to act as county auditor in all
auditing functions except when the board employs an independent auditing firm
pursuant to Section 125.01(1)(x), Florida Statutes (1975)." As the Court in
Alachua County v. Powers, stated:
' See,e.g.,Op.Att'y Gen.Fla.78-95(1978),concluding that,in the absence of any authorizing
statute,the clerk of the circuit court was not authorized to enter into a contract for insurance as
specified therein,and Ops.Att'y Gen.Fla.77-76(1977)and 79-70(1979);cf.Op.Att'y Gen. Fla.
80-59(1980). And see Security Finance Co.v. Gentry,109 So.220,222(Fla. 1926),in which
the Florida Supreme Court stated that"[t]he clerk's authority is entirety statutory,and his official
action,to be binding upon others,must be in conformity with the statutes." Cf. Pan American
World Airways v. Gregory, 96 So.2d 669,671 (Fla. 3d DCA 1957),stating that"[Os clerk is an
officer of the court whose duties are ministerial and as such he does not exercise any discretion."
2 See Overhoiser v. Overstreet,383 So.2d 953(Fla.3d DCA 1980)(clerk's authority is entirely
statutory,and his official action to be binding upon others,must be in conformity with such
statutes); Ferlita v.State,380 So.2d 1118(Fla.2d DCA 1980)(clerk of court's power to act must
clearly appear from particular statute). Gessner v.Del-Air Corporation, 17 So.2d 522(Fla.1944);
and 67 C.J.S.Officers s. 190(a). See also Ops.Att'y Gen.Fla.86-94(1986),78-95(1978)and
75-161 (1975).
a Alachua County v. Powers,351 So.2d 32(Fla. 1977).
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The Honorable Dwight E. Brock
Page Three
The clerk has the authority and responsibility to perform the
auditing functions both as an arm of the board in auditing the
records of constitutional officers and as a watchdog of the board in
the case of pre-auditing accounts of the board in determining
legality of expenditure. The phrase'legality of expenditure' includes
that the funds are spent for a public purpose, that the funds are
spent inconformity with county purchasing procedures or statutory
bidding procedures,that the expenditure does not overspend any
account or fund of the budget as finally adopted and recorded in the
office of the clerk, If the board becomes concerned, it has the
authority to require a performance audit or post-audit by an
independent accounting firm. 4
Thus, while the clerk of court is charged with performing certain auditing
functions, it appears that his inquiry into the"legality of expenditure"should be
directed to determining whether the funds being audited are spent for a public
purpose,whether they are spent in conformity with county purchasing
procedures or statutory bidding procedures, and whether the expenditure is
within the limits of any account or fund of the budget as finally adopted and
recorded in the office of the clerk.
In regard to your first question you have referred to the authority granted
the Clerk of Court by sections 28.235 and 215.422(14), Florida Statutes. Section
28.235, Florida Statutes, authorizes the clerk of the circuit court to make advance
payments for goods and services:
The clerk of the circuit court is authorized to make advance
payments on behalf of the county for goods and services, including,
but not limited to, maintenance agreements and subscriptions,
pursuant to rules or procedures adopted by the Chief Financial
Officer for advance payments of invoices submitted to agencies of
the state.
Thus, the statutory authority is broad, includes maintenance agreements and
subscriptions but is not limited to those types of services and must be
accomplished with reference to rules or procedures adopted by the Chief
Financial Officer that apply to advance payments by state agencies.
4 id., at 37.
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The Honorable Dwight E. Brock
Page Four
Rule 691-40.120, Florida Administrative Code, is the administrative rule of
the Department of Financial Services and Chief Financial Officer relating to
advance payments and makes such payments valid when made in accordance
with several statutes.5 Section 215.422(14), Florida Statutes,6 is cited in the rule
as authority for certain advance payments:
(3)Advance payment may be made under the provisions of Section
215,422(14), Florida Statutes, in accordance with the following:
(a)Advance payment may be made for maintenance agreements,
software license agreements, and subscriptions which meet one of
the following criteria:
1. Advance payment will result in a savings to the State which is
equal to or greater than the amount the State would earn by
investing the funds and paying in arrears.
2. The goods or services are essential to the operation of a State
agency and are available only if advance payment is made. . 9
3. Payments which are equal to or less than the threshold of
5--Qcc,(allegory two s defined in Section 287.017, F.S., and which meet
one oft a above criteria do not require prior approval of the Chief
Financial Officer. The voucher requesting payment must document
that the payment meets one of the above criteria. - 9 /.
4. Prior approval of the Chief Financial Officer is required for
advance payment in excess of the threshold of category two ---' '
efined in Section 287.017, F.S.
(b)Advance payment may be made for other goods 9 services if t.\.% V
4-..-t>2. approved in advance by the Chief Financial Officer(Criteria for ; •
G pproval shall include:
1. Advance payment will result in a savings to the State which is
equal to or greater than the amount the State would earn by
investing the funds and paying in arrears.
2. The goods or services are essential to the operation of a State
agency and are available only if advance payment is made.
5 The rule also recognizes advance payments made pursuant to section 216.181(6),Fla.Stat.,
which deals with moneys appropriated by the Legislature and does not appear to apply to your
situation.
6 The statute requires that the Chief Financial Officer must adopt rules to authorize advance
payments for goods and services and that"ls)uch rules shall provide objective criteria for
determining When it is in the best interest of the state to make payments in advance and shall
also provide for adequate protection to ensure that such goods or services will be provided."
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• The Honorable Dwight E. Brock
Page Five
A determination of whether a particular project or agreement meets these criteria
is outside the scope of this office's authority but both section 28.235, Florida
Statutes, and
Rule 691-40.120, Florida Administrative Code, contemplate and authorize
advance payments upon satisfaction of the prescribed criteria.
Your second question appears to involve the issue of whether an electrical
project undertaken by an MSTU (municipal services taxing unit) must be
competitively bid pursuant to section 255.20, Florida Statutes.
Section 255.20(1), Florida Statutes, in part, provides:
A county, municipality, special district as defined in chapter 189, or
other political subdivision of the state seeking to construct or
improve a public building, structure,or other public construction
works must competitively award to an appropriately licensed
contractor each project that is estimated in accordance with
generally accepted cost-accounting principles to have total
construction project costs of more than $300,000. For electrical
work, the local government must competitively award to an
appropriately licensed contractor each project that is estimated in
accordance with generally accepted cost-accounting principles to
cost more than $75,000.
As used in the statute, the term"competitively award" means:
to award contracts based on the submission of sealed bids,
proposals submitted in response to a request for proposal,
proposals submitted in response to a request for qualifications, or
proposals submitted for competitive negotiation.
However, the provisions of subsection (1) above requiring competitive
awards do not apply:
To construction, remodeling, repair, or improvement to a public
electric or gas utility system if such work on the public utility system
is performed by personnel of the system.
According to your letter and information submitted with that letter,the
MSTU project under consideration is to be performed by Florida Power and Light,
7 Section 255.20(1)(c)3., Fie.Stat.
•
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The Honorable Dwight E. Brock
Page Six
a public utility, using personnel of the system. In light of these assertions, it
would appear that the exemption in section 255.20 (1)(C)3., Florida Statutes,
would apply.
I trust that these informal comments will provide you with some guidance.
I regret that this office could not be of more direct assistance to you but trust you
understand that our statutory authority is limited.
Sincerely,
6X76,67 6eni/21 o"Y'i
Gerry Hammond
Senior Assistant Attorney General
GHftgh
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Statutes& Constitution :View Statutes : Online Sunshine 6/28/2016 10.A.
Select Year2016 Go
The 2016 Florida�K�I� � ^�^^^^� StatuIe8
Title XI Chapter 125 View Entire
COUNTY ORGANIZATION AND INTERGOVERNMENTAL COUNTY Chapter
RELATIONS GOVERNMENT
125'01 Powers and duties.—
(1) The legislative and governing body of a county shall have the power to carry on county
government. To the extent not inconsistent with general or special law, this power includes, but is not
restricted to, the power to:
(a) Adopt its own rules of procedure, select its officers, and set the time and place of its official
meetings.
(b) Provide for the prosecution and defense of legal causes in behalf of the county or state and
retain counsel and set their compensation.
(c) Provide and maintain county buildings.
(d) Provide fire protection, including the enforcement of the Florida Fire Prevention Code, as
provided in ss. 633.206 and 633.208, and adopt and enforce local technical amendments to the Florida
Fire Prevention Code as provided in those sections and pursuant to s. 633.IO2.
(e) Provide hospitals, ambulance service, and health and welfare programs.
(f) Provide parks, preserves, pioygrounds, recreation areas, bbraries, museums, historical
commissions, and other recreation and cultural facilities and programs.
(g) Prepare and enforce comprehensive plans for the development of the county.
(h) Establish, coordinate, and enforce zoning and such business regulations as are necessary for the
protection of the public.
(i) Adopt, by reference or in fuLl, and enforce housing and related technical codes and regulations.
(j) Establish and administer programs of housing, slum clearance, community redevelopment,
conservation, flood and beach erosion control, air pollution control, and navigation and drainage and
cooperate with governmental agencies and private enterprises in the development and operation of such
programs.
(k)1. Provide and regulate waste and sewage collection and disposal, water and alternative water
suppUes, inciuding, but not Limited to, reclaimed water and water from aquifer storage and recovery
and desalination systems, and conservation programs.
Z. The governing body of a county may require that any person within the county demonstrate the
existence of some arrangement or contract by which such person will dispose of solid waste in a manner
consistent with county ordinance or state or federaL Law. For any person who wilt produce special wastes
or biomedical waste, as the same may be defined by state or federal Law or county ordinance, the
county may require satisfactory proof of a contract or similar arrangement by which such special or
biomedical wastes will becoihected by aquab�ed and duh licensed collector disposed of in
accordance with the laws of Florida or the FederaL Government.
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(I) Provide and operate air, water, rail, and bus terminals; port facilities; and public transportation
systems.
(m) Provide and regulate arterial, toll, and other roads, bridges, tunnels, and related facilities;
eliminate grade crossings; regulate the placementof signs, lights, and other structures within the right-
of-way limits of the county road system; provide and regulate parking facilities; and develop and
ight-of'wmyiimitsofthecountyroadsystcm; pnnvideandregvlateporkinghac8ides: anddevebopand
enforce plans for the control of traffic and parking. Revenues derived from the operation of toll roads,
bridges, tunnels, and related facilities may, after provision has been made for the payment of operation
and maintenance expenses of such toll facilities and any debt service on indebtedness incurred with
respect thereto, be utilized for the payment of costs related to any other transportation facilities within
the county, including the purchase of rights-of-way; the construction, reconstruction, operation,
maintenance, and repair of such transportation facilities; and the payment of indebtednesincurred
with respect to such transportation facilities.
(n) License and regulate taxis, jitneys, limousines for hire, rental cars, and other passenger vehicles
for hire that operate in the unincorporated areas of the county; except that any constitutional charter
county as defined in s. 125.011(1) shall on July 1, 1988, have been authorized to have issued a number
of permits to operate taxis which is no less than the ratio of one permit for each 1,000 residents of said
county, and any such new permits issued after June 4, 1988, shall be issued by lottery among individuals
with such experience as a taxi driver as the county may determine.
(0) Establish and enforce regulations for the sale of alcoholic beverages in the unincorporated areas
of the county pursuant to general law.
(p) Enter into agreements with other governmental agencies within or outside the boundaries of the
county for joint performance, or performance by one unit in behalf of the other, of any of either
~�^
agency's authorized functions.
(q) Ejtabhsh, and subsequently merge or abolish those created hereunder, municipal service taxing
or benefit units for any part or alt of the unincorporated area of the county, within which may be
provided fire protection; law enforcement; beach erosion control; recreation service and facilities;
water; alternative water supplies, including, but not limited to, reclaimed water and water from aquifer
storage and recovery and desalination systems; streets; sidewalks; street lighting; garbage and trash
collection and disposal; waste and sewage collection and disposal; drainage; transportation; indigent
health care services; mental health care services; and other essential facilities and municipal services
from funds derived from service charges, special assessments, or taxes within such unit only. Subject to
the consent by ordinance of the governing body of the affected municipality given either annually or for
a term of years, the boundaries of a municipal service taxing or benefit unit may include all or part of
the boundaries of a municipaLity. If ad valorem taxes are Levied to provide essential faciLities and
municipal services within the unit, the rniLtage levied on any parcel of property for municipal purposes
by all municipal service taxing units and the municipality may not exceed 10 mills. This paragraph
authorizes all counties to levy additional taxes, within the limits fixed for municipal purposes, within
such municipal service taxing units under the authority of the second sentence of s. 9(b), Art. VII of the
State Constitution.
1(r) Levy and collect taxes, both for county purposes and for the providing of municipal services
within any municipal service taxing unit, and special assessments; borrow and expend money; and issue
bonds, revenue certificates, and other obligations of indebtedness, which power shall be exercised in
such manner, and subject to such limitations, as may be provided by general law. There shall be no
~—+
referendum required for
�the levy bya countyof advalorem taxes, bothfor coUrty purposes and for the
providing of municipal services within any municipal service taxing unit.
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(s) Make investigations of county affairs; inquire into account , records, and transactions of any
county department, office, or officr; and, for these purposes, require reports from any county officer
or employee and the production of official records.
(t) Adopt ordinances and resolutions necessary for the exercise of its powers and prescribe fines and
penalties for the violation of ordinances in accordance with Law.
(u) Create civil service systems and boards.
(v) Require every county official to submit to it annually, at such time as it may specify, a copy of
the official's operating budget for the succeeding fiscal year.
(w) Perform any other acts not inconsistent with law, which acts are in the common interest of the
people of the county, and exercise all powers and privileges not specifically prohibited by law.
(x) Employ an independent certified pubLic accounting firm to audit any funds, accounts, and
financial records of the county and its agencies and governmental subdivisions. Entities that are funded
wholly or in part by the county, at the discretion of the county, may be required by the county to
conduct a performance audit paid for by the county. An entity shall not be considered as funded by the
county by virtue of the fact that such entity utilizes the county to collect taxes, assessments, fees, or
other revenue. If an independent special district receives county funds pursuant to a contract or
interlocal agreement for the purposes of funding, in whole or in part, a discrete program of the district,
only that program may be required by the county to undergo a performance audit. Not fewer than five
copies of each complete audit report, with accompanying dmcuments, shall be filed with the clerk of the
circuit court and maintained there for public inspection. The clerk shall thereupon forward one
complete copy of the audit report with accompanying documents to the Auditor General.
(y) Place questions or propositions on the ballot at any primary election, general election, or
otherwise called special election, when agreed to by a majority vote of the total membership of the
legislative and governing body, so as to obtain an expression of elector sentiment with respect to
matters of substantial concern within the county. No special election may be called for the purpose of
conducting a straw ballot. Any election costs, as defined in s. 97.021, associated with any ballot
question or election called specifically at the request of a district or for the creation of a district shall
be paid by the district either in whole or in part as the case may warrant.
(z) Approve or disapprove the issuance of industrial development bonds authorized by law for
entities within its geographic jurisdiction.
(aa) Use ad valorem tax revenues to purchase any or all interests in land for the protection of
natural floodplains, muohes, or estuaries; for use as wilderness or wildlife management areas; for
restoration of altered ecosystems; or for preservation of significant archaeological or historic sites.
(bb) Enforce the Florida Building Code, as provided in s. 553.80' and adopt and enforce local
technical amendments to the Florida Building Code, pursuant to s. 553.73(4)(b)and (c).
(cc) Prohibit a business entity, other than a county tourism promotion agency, from using names as
specified in s. 125.0104(9)(e) when representing itself to the public as an entity representing tourism
interests of the county levying the local option tourist development tax under s. 125.0104.
(2) The board of county commissioners shall be the governing body of any municipal service taxing
or benefit unit created pursuant to paragraph (1)(q).
(3)(a) The enumeration of powers herein may not be deemed exclusive or restrictive, but is deemed
to incorporate all implied powers necessary or incident to carrying out such powers enumerated,
inciuding, specifically, authority to employ personnel, expend funds, enter into contractual obligations,
and purchase or lease and sell or exchange real or personal property. The authority to employ personnel °~"~
includes, but is not Limited to, the authority to determine benefits available to different types of
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personnel. Such benefits may include, but are not limited to, insurance coverage and paid leave. The
~~~~
provisions of chapter 121 govern the participation of county employees in the Florida Retirement
System.
(b) The provisions of this section shall be liberally construed in order to effectively carry out the
purpose of this section and to secure for the counties the broad exercise of home rule powers authorized
by the State Constitution.
(4) The legislative and governing body of a county shall not have the power to regulate the taking or
possession of saltwater fish, as defined in s. 379.101, with respect to the method of taking, size,
number, season, or species. However, this subsection does not prohibit a county from prohibiting, for
reasons of protecting the public hemiLh, safety, or welfare, saltwater fishing from real property owned
by that county, nor does it prohibit the imposition of excise taxes by county ordinance.
(5)(a) To an extent not inconsistent with general or special law, the governing body of a county shall
have the power to establish, and subsequently merge or abolish those created hereunder, special
districts to include both incorporated and unincorporated areas subject to the approval of the governing
body of the incorporated area affected, within which may be provided municipal services and facilities
from funds derived from service charges, special assessments, or taxes within such district only. Such
ordinance may be subsequently amended by the same procedure as the original enactment.
(b) The governing body of such special district shall be composed of county commissioners and may
include elected officials of the governing body of an incorporated area included in the boundaries of the
special district, with the basis of apportionment being set forth in the ordinance creating the special
district.
(c) It is declared to be the intent of the Legislature that this subsection is the authorization for the
levy by a special district of any millage designated in the ordinance creating such a special district or
amendment thereto and approved by vote of the electors under the authority of the first sentence of s.
9(b), Art. VII of the State Constitution. It is the further intent of the Legislature that a special district
created under this subsection include both unincorporated and incorporated areas of a county and that
such special district may not be used to provide services in the unincorporated area only.
(6)(a) The governing body of a municipality or municipalities by resolution, or the citizens of a
municipality or county by petition of 10 percent of the qualified electors of such unit, may identify a
service or program rendered specially for the benefit of the property or residents in unincorporated
areas and financed from countywide revenues and petition the board of county commissioners to
develop an appropriate mechanism to finance such activity for the ensuing fiscal year, which may be by
taxes, special assessments, or service charges levied or imposed solely upon residents or property in the
unincorporated area, by the establishment of a municipal service taxing or benefit unit pursuant to
paragraph (1)(q), or by remitting the identified cost of service paid from revenues required to be
expended on a countywide basis to the municipality or municipalities, within 6 months of the adoption
of the county budget, in the proportion that the amount of county ad valorem taxes collected within
such municipality or municipalities bears to the total amount of countywide ad valorem taxes collected
by the county, or by any other method prescribed by state law.
(b) The board of county commissioners shall, within 90 days, file a response to such petition, which
response shall either reflect action to develop appropriate mechanisms or shall reject such petition and
state findings of fact demonstrating that the service does not specially benefit the property or residents
of the unincorporated areas.
(7) No county revenues, except those derived specifically from or on behalf of a municipal service
taxing unit, special district, unincorporated area, service area, or program area, shall be used to fund
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any service or project provided by the county when no real and substantial benefit accrues to the
property or residents within a municipality or municipalities.
History.-s. 1, ch. 1882, 1872;s. 1, ch. 3039, 1877; RS 578;GS 769;s. 1,ch.6842, 1915; RGS 1475; CGL 2153; s. 1,ch. 59-
436; s. 1,ch.69-265;ss. 1. 2, 6,ch. 71-14;s.2,ch. 73-208;s. 1,ch.73-272;s. 1, ch.74-150;ss. 1,2,4,ch. 74-191; s. 1,ch.
75-63; s. 1, ch. 77-33; s. 1,ch. 79-87;s. 1,ch. 80-407;s. 1,ch.83-1;s. 17,ch. 83-271;s. 12,ch.84-330;s.2,ch.87-92;s. 1,
ch. 87-263;s. 9,ch.87-363;s. 2, ch. 88-163;s. 18,ch.88-286;s.2, ch. 89-273;s. 1,ch. 90-175;s. 1,ch.90-332;s. 1, ch.
91-238;s. 1,ch.92-90; s. 1, ch. 93-207; s.41,ch. 94-224;s.31,ch.94-237;s. 1,ch.94-332;s. 1433, ch.95-147;s. 1,ch. 95-
323; s.41,ch. 96-397;s.42, ch.97-13;s.2,ch.2000-141;s. 34,ch. 2001-186;s. 36,ch.2001-266;s. 3,ch.2001-372;s.20,
ch. 2002-281;s. 1,ch. 2003-78;ss.27,28,ch.2003-415;s. 184,ch.2008-247;s. 2,ch.2011-143;s. 122,ch.2013-183;s. 1,
ch. 2014-7;s. 1,ch.2016-89.
1Note.-Section 1, ch. 2016-89,amended paragraph(1)(r),effective November 1,2017, to read:
(r) Levy and collect taxes, both for county purposes and for the providing of municipal services within any municipal
service taxing unit, and special assessments; borrow and expend money; and issue bonds, revenue certificates, and other
obligations of indebtedness, which power shall be exercised in such manner, and subject to such limitations, as may be
provided by general law.There shalt be no referendum required for the levy by a county of ad valorem taxes, both for county
purposes and for the providing of municipal services within any municipal service taxing unit. Notwithstanding any other
provision of law, a county may not levy special assessments for the provision of fire protection services on lands classified as
agricultural lands under s. 193.461 unless the land contains a residential dwelling or nonresidential farm building, with the
exception of an agricultural pole barn, provided the nonresidential farm building exceeds a just value of$10,000. Such special
assessments must be based solely on the special benefit accruing to that portion of the land consisting of the residential
dwelling and curtilage, and qualifying nonresidential farm buildings. As used in this paragraph, the term "agricultural pole
barn" means a nonresidential farm building in which 70 percent or more of the perimeter walls are permanently open and
allow free ingress and egress.
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The 2016 '
T�^ ^�Il�� SIaIu[e8
Title XI Chapter 129 View Entire
COUNTY ORGANIZATION AND INTERGOVERNMENTAL COUNTY. ANNUAL Chapter
RELATIONS BUDGET
129.08 County commissioner voting to pay illegal claim or for excess indebtedness.—Each
member of the board of county commissioners who knowingly and willfully votes to incur an
indebtedness against the county in excess of the expenditure aLlowed by law or county ordinance, or to
pay an illegal charge against the county, or to pay any claim against the county not authorized by law or
county ordinance shall be guilty of malfeasance in office and subject to suspension and removal from
office as now provided by law, and shalt be guilty of a misdemeanor, and shall upon conviction be
punished by a fine of not less than $100 nor more than $500 or by imprisonment in the county jail for
not more than 6 months, for each offense.
History.—s. 2,ch.6814, 1915; RGS 5332;CGL 7465;s.4,ch.71-14;s. 1, ch. 71-305.
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The 2016 Florida.��
a Statutes
Title XI Chapter 129 View Entire
COUNTY ORGANIZATION AND INTERGOVERNMENTAL COUNTY ANNUAL Chapter
RELATIONS BUDGET
129.09 County auditor not to sign illegal warrants.—Any clerk of the circuit court, acting as
county auditor, who shall sign any warrant for the payment of any claim or bill or indebtednessagainst
any county funds in excess of the expenditure allowed by law, or county ordinance, or to pay any illegal
charge against the county, or to pay any claim against the county not authorized by law, or county
ordinance, shall be personally Liable for such amount, and if he or she shall sign such warrant willfully
and knowingly he or she shall be guilty of a misdemeanor of the second degree, punishable as provided
in s. 775.082 or s. 775.083.
History.—s. 2,ch.6814. 1915; RGS 5333;CGL 7466;s. 5, ch. 71'14;s. 78, ch. 71'136;s.2,ch. 71'305;s.829,ch. 95-147.
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Select Year: 2016 v Go
The 2016
Florida Statutes
Title XI Chapter 136 View Entire
COUNTY ORGANIZATION AND COUNTY Chapter
INTERGOVERNMENTAL RELATIONS DEPOSITORIES
138.08 Withdrawal of funds from depositories; direct deposit; transfer of funds.—
(1) All money drawn from any depository qualified under the provisions of this chapter shall be upon
a check or warrant issued by the board or officer drawing the same, said check or warrant, both as to
number and amount, person to whom drawn and purpose for which drawn shall be recorded in the
minutes of the board having ordered the same drawn, and each check or warrant so drawn shall be
signed by the chair of said board, attested by the clerk or secretary of said board with the corporate
seal thereof affixed; however, money under the control of any school board may be withdrawn as may
be otherwise provided by Law.
(2) For the purpose of providing for the direct deposit of funds under the circumstances herein
specified, each board or county officer authorized by law to issue checks or warrants for the withdrawal
of money from a depository qualified under the provisions of this chapter is authorized to establish the
form or forms of warrants for the withdrawal, payment, or disbursement of money out of such qualified
depository and to change the form thereof from time to time as such board or officer deems
appropriate. If authorized in writing by the payee, such warrants may provide for direct deposit of the
funds to the account of the payee in any financial institution which is designated in writing by the payee
and which has lawful authority to accept such deposits. The written authorization of the payee shall be
filed with the appropriate board or county officer. Direct deposit of funds may be by any electronic or
other medium approved by such board or officer for such purpose.
(3) Notwithstanding any other provision of law, each board or county officer who has the authority
to deposit or withdraw funds is authorized to transfer funds from one depository to another or within a
depository or to another institution, and may transfer funds wherein the transfer does not represent an
expenditure, advance, or reduction of cash assets. Such transfer may be made by electronic, telephonic,
or other medium; and each transfer shaLL be confirmed in writing and signed by the designee of the
board or officer.
History.—s. 7, ch. 6932, 1915; RGS 1564; CGL 2409; s. 4,ch. 59-23;s. 1, ch.69-300;s. 6,ch. 78-406;s. 1.ch. V2'1uw; s.
835,ch. 95-147.
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•
668.006 CantroF"pr-oceriiares:The lead`of eachagency shall be responsible for adopting and
implementing control:processes and procedures to ensure adequate integrity, security,
confidentiality, nd auditabillfr°o usiness-tiansactions conducted using electronic commerce.
History.—s.7,ch.9624.
Note.—Former s.282.75.
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• Sec.2-201. -Payment of Invoices.
A. Agencies under the purview of the Board of County Commissioners shall be in
compliance with F.S. § 218.70, otherwise known as the "Local Government Prompt
Payment Act." Pursuant to this, the requirements of this section shall apply to the
following transactions:
1. The purchase of commodities and services;
2. The purchase or lease of personal property;
3. The lease of real property.
B. The County Manager shall establish and maintain procedures that authorize minor
payment variances between the purchase order and invoice where warranted. The
authority to pay such variances shall not exceed 5%of the purchase order amount or
$500,whichever is less.
C. The County Manager shall establish and maintain a process that authorizes the payment
of freight and delivery charges that are not specifically identified on the purchase order of
less than $500.
D. It shall be the responsibility of the County Manager, in consultation with the Clerk's
Finance Director and operating Divisions,to establish,procedures for the timely payment
of all transactions as defined under subsection 16.A (subsection A of this section). Such
procedures shall include, but are not limited to the following:
1. Formally defining the County's requirements for the content and submission of a
proper invoice, codifying the County's payment requirements and notifying each vendor
of their availability.
2. Steps required for the receipt of all invoices and the prompt return of improper
invoices.
3. Steps required for the resolution of payment disputes between the County and a
vendor.
E. Each December,the Procurement Services Director and the Clerk of the Courts shall
submit a report to the Board listing the number and total dollar amount of interest penalty
payments made during the preceding fiscal year.
F. Prior to payment,the Board shall approve all expenditures with a finding that such
expenditures serve a valid public purpose.
(Ord.No. 2013-69, § 16; Ord.No. 2015-37, § 6)
(Th
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LOCAL GOVERNMENT PROMPT PAYMENT ACT
218.70 Popular name.
218.71 Purpose and policy.
218.72 Definitions.
218.73 Timely payment for nonconstruction services.
218.735 Timely payment for purchases of construction services.
218.74 Procedures for calculation of payment due dates.
218.75 Mandatory interest.
218.76 Improper payment request or invoice;resolution of disputes.
218.77 Payment by federal funds.
218.78 Report of interest.
218.79 Repeal of conflicting laws.
218.70 Popular name.—This part may be cited as the "Local Government Prompt Payment Act."
History.—s.4,ch.89-297;s. 1, ch.2005-230.
218.71 Purpose and policy.—
(1) The purpose of this part is:
(a) To provide for prompt payments by local governmental entities and their institutions and agencies.
(b) To provide for interest payments on late payments made by local governmental entities and their
institutions and agencies.
(c) To provide for a dispute resolution process for payment of obligations.
(2) It is the policy of this state that payment for all purchases by local governmental entities be made
in a timely manner.
History,s.4,ch.89-297.
218.72 Definitions.As used in this part,the term:
(1) "Agent" means the project architect, project engineer, or other agency or person acting on behalf
of the local governmental entity.The agent who is required to review invoices or payment requests
must be identified in accordance with s.218.735(1).
(2) "Construction services" means all labor, services, and materials provided in connection with the
construction, alteration, repair, demolition, reconstruction,or other improvements to real property.
(3) "Contractor" or"provider of construction services" means the person who contracts directly with a
local governmental entity to provide construction services.
(4) "County" means a political subdivision of the state established pursuant to s. 1,Art.VIII of the State
Constitution.
(5) "Local governmental entity" means a county or municipal government, school board, school
district, authority, special taxing district, other political subdivision,or any office,board,bureau, �-
commission, department, branch, division, or institution thereof.
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(6) "Municipality" means a municipality created pursuant to general or special law and metropolitan
and consolidated governments as provided in s.6(e) and (f),Art.VIII of the State Constitution.
(7) "Payment request" means a request for payment for construction services which conforms with all
statutory requirements and all requirements specified by the local governmental entity to which the
payment request is submitted.Such requirements must be included in the contract for the project for
which payment is requested.
(8) "Proper invoice" means an invoice that conforms with all statutory requirements and all
requirements specified by the local governmental entity to which the invoice is submitted. Such
requirements must be included in the contract for the project for which the invoice is submitted.
(9) "Purchase" means the purchase of goods,services,or construction services;the purchase or lease
of personal property;or the lease of real property by a local governmental entity.
(10) "Vendor" means any person who sells goods or services, sells or leases personal property, or
leases real property directly to a local governmental entity.The term includes any person who provides
waste hauling services to residents or businesses located within the boundaries of a local government
pursuant to a contract or local ordinance.
History.—s.4,ch. 89-297;s.1,ch.95-331;s.1,ch.2001-169;s.2,ch.2005-230;s.1,ch.2010-111.
218.73 Timely payment for nonconstruction services.—The time at which payment is due for a
purchase other than construction services by a local governmental entity must be calculated from:
(1) The date on which a proper invoice is received by the chief disbursement officer of the local
governmental entity after approval by the governing body, if required;or
(2) If a proper invoice is not received by the local governmental entity,the date:
(a) On which delivery of personal property is accepted by the local governmental entity;
(b) On which services are completed;
(c) On which the rental period begins;or
(d) On which the local governmental entity and vendor agree in a contract that provides dates relative
to payment periods;
whichever date is latest.
History.—s.4,ch.89-297;s.2,ch.95-331;s.2,ch.2001-169.
218.735 Timely payment for purchases of construction services.—
(1) The due date for payment for the purchase of construction services by a local governmental entity
is determined as follows:
(a) If art agent must approve the payment request or invoice before the payment request or invoice is
submitted to the local governmental entity, payment is due 25 business days after the date on which
the payment request or invoice is stamped as received as provided in s.218.74(1).The contractor may
send the local government an overdue notice.If the payment request or invoice is not rejected within 4
business days after delivery of the overdue notice,the payment request or invoice shall be deemed
accepted, except for any portion of the payment request or invoice that is fraudulent or misleading.
(b) If an agent need not approve the payment request or invoice submittedby the contractor,
payment is due 20 business days after the date on which the payment request or invoice is stamped as
received as provided-in-s.218.74(1):
A local governmental entity shall identify the agent or employee of the local governmental entity, or the
facility or office,to which the contractor may submit its payment request or invoice.This requirement
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shall be included in the contract between the local governmental entity and contractor,or shall be
provided by the local governmental entity through a separate written notice, as required under the
contract, no later than 10 days after the contract award or notice to proceed.A contractor's submission
of a payment request or invoice to the identified agent, employee,facility,or office of the local
governmental entity shall be stamped as received as provided in s. 218.74(1)and shall commence the
time periods for payment or rejection of a payment request or invoice as provided in this subsection
and subsection (2).
(2) If a payment request or invoice does not meet the contract requirements,the local governmental
entity must reject the payment request or invoice within 20 business days after the date on which the
payment request or invoice is stamped as received as provided in s. 218.74(1).The rejection must be
written and must specify the deficiency and the action necessary to make the payment request or
invoice proper.
(3) If a payment request or an invoice is rejected under subsection (2) and the contractor submits a
payment request or invoice that corrects the deficiency,the corrected payment request or invoice must
be paid or rejected on the later of:
(a) Ten business days after the date the corrected payment request or invoice is stamped as received
as provided in s.218.74(1);or
(b) If the local governmental entity is required by ordinance, charter, or other law to approve or reject
the corrected payment request or invoice,the first business day after the next regularly scheduled
meeting of the local governmental entity held after the corrected payment request or invoice is
stamped as received as provided in s. 218.74(1).
(4) If a dispute between the local governmental entity and the contractor cannot be resolved by the
procedure in subsection (3),the dispute must be resolved in accordance with the dispute resolution
procedure prescribed in the construction contract or in any applicable ordinance, which shall be
referenced in the contract.In the absence of a prescribed procedure,the dispute must be resolved by
the procedure specified in s.218.76(2).
(5) If a local governmental entity disputes a portion of a payment request or an invoice,the
undisputed portion shall be paid timely, in accordance with subsection (1).
(6) If a contractor receives payment from a local governmental entity for labor, services, or materials
furnished by subcontractors and suppliers hired by the contractor,the contractor must remit payment
due to those subcontractors and suppliers within 10 days after the contractor's receipt of payment.If a
subcontractor receives payment from a contractor for labor, services,or materials furnished by
subcontractors and suppliers hired by the subcontractor,the subcontractor must remit payment due to
those subcontractors and suppliers within 7 days after the subcontractor's receipt of payment.This
subsection does not prohibit a contractor or subcontractor from disputing, pursuant to the terms of the
relevant contract, all or any portion of a payment alleged to be due to another party if the contractor or
subcontractor notifies the party whose payment is disputed, in writing,of the amount in dispute and the
actions required to cure the dispute.The contractor or subcontractor must pay all undisputed amounts
due within the time limits imposed by this section.
(7) Each contract for construction services between a local governmental entity and a contractor must
provide for the development of a single list of items required to render complete, satisfactory, and
acceptable the construction services purchased by the local governmental entity.
(a) The contract must specify the process for developing the list, including the responsibilities of the
local governmental entity andthecontractor in developing and reviewing the list and a reasonable time
for developing the list:
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1. For construction projects having an estimated cost of Less than $10 million,within 30 calendar days
after reaching substantial completion of the construction services purchased as defined in the contract,
or, if not defined in the contract, upon reaching beneficial occupancy or use;or
2. For construction projects having an estimated cost of$10 million or more,within 30 calendar days,
or, if extended by contract, up to 60 calendar days after reaching substantial completion of the
construction services purchased as defined in the contract,or, if not defined in the contract, upon
reaching beneficial occupancy or use.
The contract must also specify a date for the delivery of the list of items,not to exceed 5 days after the
list of items has been developed and reviewed in accordance with the time periods set forth in
subparagraphs 1.and 2.
(b) If the contract between the local governmental entity and the contractor relates to the purchase of
construction services on more than one building or structure, or involves a multiphased project,the
contract must provide for the development of a list of items required to render complete, satisfactory,
and acceptable all the construction services purchased pursuant to the contract for each building,
structure, or phase of the project within the time limitations provided in paragraph (a).
(c) The final contract completion date must be at least 30 days after the delivery of the list of items.If
the list is not provided to the contractor by the agreed upon date for delivery of the list,the contract
time for completion must be extended by the number of days the local governmental entity exceeded
the delivery date. Damages may not be assessed against a contractor for failing to complete a project
within the time required by the contract, unless the contractor failed to complete the project within the
contract period as extended under this paragraph.
(d) The failure to include any corrective work or pending items not yet completed on the list does not
alter the responsibility of the contractor to complete all the construction services purchased pursuant to
the contract.
(e) Upon completion of all items on the list,the contractor may submit a payment request for all
remaining retainage withheld by the local governmental entity pursuant to this section.If a good faith
dispute exists as to whether one or more items identified on the list have been completed pursuant to
the contract,the local governmental entity may continue to withhold up to 150 percent of the total
costs to complete such items.
(f) All items that require correction under the contract and that are identified after the preparation and
delivery of the list remain the obligation of the contractor as defined by the contract.
(g) Warranty items or items not included in the list of items required under paragraph (a) may not
affect the final payment of retainage as provided in this section or as provided in the contract between
the contractor and its subcontractors and suppliers.
(h) Retainage may not be held by a local governmental entity or a contractor to secure payment of
insurance premiums under a consolidated insurance program or series of insurance policies issued to a
local governmental entity or a contractor for a project or group of projects, and the final payment of
retainage as provided in this section may not be delayed pending a final audit by the local
governmental entity's or contractor's insurance provider.
(i) If a local governmental entity fails to comply with its responsibilities to develop the list required
under paragraph (a)or paragraph (b)within the time limitations provided in paragraph (a),the
contractor may submit a payment request for all remaining retainage withheld by the local
governmental entity pursuant to this section;and payment of any remaining undisputed contract
amount, less any amount withheld pursuant to the contract for incomplete or uncorrected work, must
be paid within 20 business days after receipt of a proper invoice or payment request.If the local
governmental entity has provided written notice to the contractor specifying the failure of the
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contractor to meet contract requirements in the development of the list of items to be completed,the
local governmental entity need not pay or process any payment request for retainage if the contractor
has, in whole or in part,failed to cooperate with the local governmental entity in the development of
the list or to perform its contractual responsibilities, if any,with regard to the development of the list or
if paragraph (8)(f) applies.
(8)(a) With regard to any contract for construction services, a local governmental entity may withhold
from each progress payment made to the contractor an amount not exceeding 10 percent of the
payment as retainage until 50-percent completion of such services.
(b) After 50-percent completion of the construction services purchased pursuant to the contract,the
local governmental entity must reduce to 5 percent the amount of retainage withheld from each
subsequent progress payment made to the contractor. For purposes of this subsection,the term "50-
percent completion" has the meaning set forth in the contract between the local governmental entity
and the contractor or, if not defined in the contract,the point at which the local governmental entity has
expended 50 percent of the total cost of the construction services purchased as identified in the
contract together with all costs associated with existing change orders and other additions or
modifications to the construction services provided for in the contract. However, notwithstanding this
subsection, a municipality having a population of 25,000 or fewer, or a county having a population of
100,000 or fewer, may withhold retainage in an amount not exceeding 10 percent of each progress
payment made to the contractor until final completion and acceptance of the project by the local
governmental entity.
(c) After 50-percent completion of the construction services purchased pursuant to the contract,the
contractor may elect to withhold retainage from payments to its subcontractors at a rate higher than 5
percent.The specific amount to be withheld must be determined on a case-by-case basis and must be
based on the contractor's assessment of the subcontractor's past performance,the likelihood that such .-.
performance will continue, and the contractor's ability to rely on other safeguards.The contractor shall
notify the subcontractor, in writing, of its determination to withhold more than 5 percent of the
progress payment and the reasons for making that determination, and the contractor may not request
the release of such retained funds from the local governmental entity.
(d) After 50-percent completion of the construction services purchased pursuant to the contract,the
contractor may present to the local governmental entity a payment request for up to one-half of the
retainage held by the local governmental entity.The local governmental entity shall promptly make
payment to the contractor, unless the local governmental entity has grounds, pursuant to paragraph (f),
for withholding the payment of retainage.If the local governmental entity makes payment of retainage
to the contractor under this paragraph which is attributable to the labor, services, or materials supplied
by one or more subcontractors or suppliers,the contractor shall timely remit payment of such retainage
to those subcontractors and suppliers.
(e) This section does not prohibit a local governmental entity from withholding retainage at a rate less
than 10 percent of each progress payment,from incrementally reducing the rate of retainage pursuant
to a schedule provided for in the contract, or from releasing at any point all or a portion of any
retainage withheld by the local governmental entity which is attributable to the labor,services, or
materials supplied by the contractor or by one or more subcontractors or suppliers.If a local
governmental entity makes any payment of retainage to the contractor which is attributable to the
labor, services, or materials supplied by one or more subcontractors or suppliers,the contractor shall
timely remit payment of such retainage to those subcontractors and suppliers.
(f) This section does-not require the local governmental entity to pay-or-release-any-amoz amounts_that are
the subject of a good faith dispute,the subject of a claim brought pursuant to s.255.05, or otherwise
the subject of a claim or demand by the local governmental entity or contractor.
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(g) The time limitations set forth in this section for payment of payment requests apply to any
payment request for retainage made pursuant to this section.
(h) Paragraphs (a)-(d)do not apply to construction services purchased by a local governmental entity
which are paid for, in whole or in part,with federal funds and are subject to federal grantor laws and
regulations or requirements that are contrary to any provision of the Local Government Prompt
Payment Act.
(i) This subsection does not apply to any construction services purchased by a local governmental
entity if the total cost of the construction services purchased as identified in the contract is $200,000 or
less.
(9) All payments due under this section and not made within the time periods specified by this section
shall bear interest at the rate of 1 percent per month, or the rate specified by contract,whichever is
greater.
History—s.3,ch.95-331;s.3,ch.2001-169;s.3,ch.2005-230;s.2, ch.2010-111.
218.74 Procedures for calculation of payment due dates.—
(1) Each local governmental entity shall establish procedures whereby each payment request or
invoice received by the local governmental entity is marked as received on the date on which it is
delivered to an agent or employee of the local governmental entity or of a facility or office of the local
governmental entity.
(2) The payment due date for a local governmental entity for the purchase of goods or services other
than construction services is 45 days after the date specified in s. 218.73.The payment due date for the
purchase of construction services is specified in s.218.735.
(3) If the terms under which a purchase is made allow for partial deliveries and a payment request or
proper invoice is submitted for a partial delivery,the time for payment for the partial delivery must be
calculated from the time of the partial delivery and the submission of the payment request or invoice in
the same manner as provided in s.218.73 or s. 218.735.
(4) All payments,other than payments for construction services, due from a local governmental entity
and not made within the time specified by this section bear interest from 30 days after the due date at
the rate of 1 percent per month on the unpaid balance.The vendor must invoice the local governmental
entity for any interest accrued in order to receive the interest payment.Any overdue period of less than
1 month is considered as 1 month in computing interest. Unpaid interest is compounded monthly. For
the purposes of this section,the term "1 month" means a period beginning on any day of one month
and ending on the same day of the following month.
History.—s.4,ch.89-297;s.4,ch.95-331;s.4,ch.2001-169.
218.75 Mandatory interest.—No contract between a local governmental entity and a vendor or a
provider of construction services shall prohibit the collection of late payment interest charges allowable
under this part.
History.—s.4,ch.89-297;s.5,ch.2001-169.
218.76 Improper payment request or invoice;resolution of disputes.—
(1)
isputes.(1) If an improper payment request or invoice is submitted by a vendor,the local governmental entity
shall, within 10 days after the improper payment request or invoice is received, notify the vendor,in
writing,that the payment request or invoice is improper and indicate what corrective action on the part
of the vendor is needed to make-the payment request or invoice proper.
(2)(a) If a dispute arises between a vendor and a local governmental entity concerning payment of a
payment request or invoice,the dispute shall be finally determined by the local governmental entity
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pursuant to a dispute resolution procedure established by the local governmental entity.Such
procedure must provide that proceedings to resolve the dispute are commenced within 45 days after
the date the payment request or proper invoice was received by the local governmental entity and
concluded by final decision of the local governmental entity within 60 days after the date the payment
request or proper invoice was received by the local governmental entity.Such procedures are not
subject to chapter 120 and do not constitute an administrative proceeding that prohibits a court from
deciding de novo any action arising out of the dispute.If the dispute is resolved in favor of the local
governmental entity, interest charges begin to accrue 15 days after the local governmental entity's final
decision.If the dispute is resolved in favor of the vendor,interest begins to accrue as of the original
date the payment became due.
(b) If the local governmental entity does not commence the dispute resolution procedure within the
time required, a contractor may give written notice to the local governmental entity of the failure to
timely commence its dispute resolution procedure.If the local governmental entity fails to commence
the dispute resolution procedure within 4 business days after such notice, any amounts resolved in the
contractor's favor shall bear mandatory interest, as set forth in s. 218.735(9),from the date the payment
request or invoice containing the disputed amounts was submitted to the local governmental entity.If
the dispute resolution procedure is not commenced within 4 business days after the notice,the
objection to the payment request or invoice shall be deemed waived.The waiver of an objection
pursuant to this paragraph does not relieve a contractor of its contractual obligations.
(3) In an action to recover amounts due under this part,the court shall award court costs and
reasonable attorney's fees, including fees incurred through appeal,to the prevailing party.
History.—s.4,ch. 89-297;s.6,ch.2001-169;s.34,ch.2002-1;s.3,ch.2010-111.
218.77 Payment by federal funds.—A local governmental entity which intends to pay for a purchase
with federal funds shall not make such purchase without reasonable assurance that federal funds to
cover the cost thereof will be received.Where payment or the time of payment is contingent on receipt
of federal funds or federal approval, any contract and any solicitation to bid shall clearly state such
contingency.
History.—s.4,ch.89-297.
218.78 Report of interest.If the total amount of interest paid during the preceding fiscal year
exceeds $250, each local governmental entity shall, during December of each year, report to the board
of county commissioners or the municipal governing body the number of interest payments made by it
during the preceding fiscal year and the total amount of such payments made under this part.
History.—s.4,ch.89-297;s, 5,ch.95-331.
218.79 Repeal of conflicting laws.—All laws and parts of laws in conflict with this part are repealed.
History.—s.4, ch.89-297.
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Page 7 of 17
766 So.2d 1199, *1203;2000 Fla.App.LEXIS 11893,**7
there. Lowe's complaint sought a ruling that the DPA HN10 As political subdivisions of the nta¢e, counties
violated Article V0( Section 1(q) of the Florida Consti- "derive their sovereign powers exclusively from the
tution.The county moved to dismiss arguing that Lowe mtate." Hollywood, Inc. « BnowardCounty, 43YSo. 2d
lacked standing to challenge the Act.The circuit judge 0O6.&0D(Fls.4th DCA 1Q83).Acharter county such ao
held that Lowe had standing to bring the case,a finding Broward County obtains its sovereign powers through
that the county has not cross-appealed. The county Article VIII,Section 1(g)of the state constitution.See Id.
filed its answer on April 9, 1999. Lowe filed motions for The supreme court has "broadly interpreted the
summary judgment.The trial court's April 30, 1999 final self-governing powers granted charter counties under
judgment rejected Lowe's constitutional challenge and article VIII, section 1(g).^State uBnnwerdCounty, 468
denied his request for declaratory and injunctive relief. So. 2d965, 959(Fle. /985).
r8] Constitutional Parameters of the Self HN11 The legislature has accorded counties broad
Governing Power of a Charter County self-governing powers. Section 125.01(/). Florida
Statutes (1999), "grants to the governing body of a
Lowe contends that the Act violates Article VIII, Section .
county the fuUpower bzomnyoncounty governmant.
1(q) of the Florida Constitution, which provides in
no] Speer v. Olson, 307So.2d2D7, 211 (Fla. 1978).
pertinent part:
� Seotion /25.01(3)(a). Florida Statutes (1999). states
that the powers enumerated inthe section"shall not bo
HN8Counties operating under county charters shall
restrictive,d��nedexdueivaprbut ohaUbndeemed ha
have all powers of local self-government not
)noonni�en1vvhbgan�ns| |aw( orwidhnpeuio| |mw incorpu �taaUimplied pnv��ronecessary orincident to
approved by the vote of the electors.The governing carrying out such powers enumenmted, induding,
body of a county operating under a charter may specifically,authority to employ personnel.. . ...Section
enact county ordinances not inconsistent with 125.01(3)(b), Florida Statutes(1999), provides that the
general law. provisions of section 125,01"shall be liberally construed
. . . to secure for the counties the broad exercise of
~�~
The bases of Lowe's constitutional argument are that home rule powers authorized by the State Constitution."
the Act improperly encroaches upon an area of exclusive
state authority and that it conflicts with Florida law. Matters Purely of Statewide Concern Under City of
Miami Beach v. Fleetwood Hotel, Inc.
We begin with the applicable standard of review."HN9
A trial court decision on the constitutionality of a statute Lowe's first constitutional argument relies on City of
is reviewed by the de novo standard,because it presents Miami Beach uFleetwood Hotel, /nn.. 2S1So. 2d88Y`
a pure issue of law.The appellate court is not required 804 (Fla. /972). to contend that the Act is invalid
to defer to the judgment of the trial court."State,DeD't of because it involves the county's intrusion into an area
/no. xKevx7itle &AbotractCo.. 7413u. 2d 599, 601 that is one of purely statewide concern. In Fleetwood
/Fla. 1st DCA 1990. revdenied, No. SC96908 (Fla. Hotel, the supreme court confronted a constitutional
July 24, 2000). "A regularly enacted ordinance will be challenge to a rent control ordinance enacted by the
presumed to be valid until the contrary rjis shown, City of Miami Beach. [~11] One holding of the court
and a party who seeks to overthrow such an ordinance was that in passing the ordinance, the City exceeded
has the burden of establishing its invalidity." State ex the power afforded a municipality under Article VIII,
rel. Office Realty Co. x2hinonr, 4GSo. 2d80/' D02 Section 2 of the Florida Constitution.See id.Discussing
!Fla. 1950) (citation omitted). An appellate court will the interplay between local governments and the state,
"indulge every reasonable presumption in favor of an the court declared:
ordinance's constitutionality."City of 12O4] Pompano
Beach uCapalbo. 455So, 2d468, 40Q(Fla. 4th DCA HNI2 "Matters that because of their nature are
1084). inherently reserved for the State alone and among
a Because the county has not cross-appealed the trial court's determination of standing,we do not address the issue of the
trial court's denial of that portion of Lowe's motion to allow amendment of the comp|oint, which sought to bolster Lowe's
standing to bring the lawsuit.
~ We awith Lowe that City of Miami Beach v. Fleetwood Hotel, Inc., 261 So. 2d 801 (Ra. 1972) establishes a����
constitutional principle that is separate from the doctrine of preemption.
Jessica Hayes
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IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL CIRCUIT, IN AND FOR
COLLIER COUNTY, FLORIDA
CASE NO. 2015-CA-0595
DWIGHT E. BROCK, as Clerk of the
Circuit Court of Collier County,Florida,
Plaintiff,
V
C.—
rel
s• "T1
LEO E. OCHS, JR., as Manager / o Cfl t
Administrator of COLLIER COUNTY, a
-t) • c-
c,
Political Subdivision of the State of
Florida and JOANNE MARKIEWICZ, as ,
Purchasing & General Services Division mr-
Director of COLLIER COUNTY, a
Political Subdivision of the State of
Florida, and as an agent of Manager /
Administrator of COLLIER COUNTY,
LEO E. OCHS, JR.,
Defendants.
AGREED ORDER
THIS CAUSE came before the Court for hearing on July 16, 2015, at 1:30 p.m. and the
Court being advised that the parties agree to the entry of this Order, and being otherwise fully
advised in the premises, it is hereby.
ORDERED AND ADJUDGED
1. As to the currently outstanding invoices and reimbursement requests, the Clerk shall
provide the County Manager with a report (a list) of outstanding invoices for which the pre-audit is
complete and for which the Clerk's only objection is a lack of specific Board approval of the contract
or purchase. This requirement shall apply to purchases and contracts entered into by the County
Manager, the Procurement Services Director, or their agents. The County Manager will place this
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CASE NO. 2015-CA-0595
report on an agenda for a special commission meeting to be held as soon as practicable for the Board
of County Commissioner to make a finding with respect to valid public purpose and approve the
expenditures. Following approval at this special meeting, the Clerk will release payment to all the
vendors with outstanding invoices or reimbursement requests set forth on the report within three (3)
business days.
2. For the remaining pendency of this lawsuit,the parties shall perform the pre-audit and
payment functions as follows:
a. Invoice is received by either County or the Clerk.
b. The Clerk performs his pre-audit process.
c. The Clerk places all approved pre-audited expenditures(for which the Clerk's
only objection is lack of specific Board approval and Board finding of public purpose) on a report to
the Board of County Commissioners. Expenditures that are not approved by the Clerk for any other
reason will be resubmitted to the appropriate department through the SAP system (as is the current
practice).
d. The Board approves expenditures and finds a valid public purpose (except
during the summer recess when, pursuant to Resolution 2000-149, County Code Section 2-210 and
past practice of the parties, the County Manager will make that initial finding of valid public purpose
and approval of expenditures, subject to ratification by the Board at the first meeting after the recess).
e. The Clerk releases payment to the vendor.
f. For purchases or contracts under $50,000, the Clerk shall not consider the
lack of Board of Commission approval of the purchase or contract in the pre-audit and shall make
payment so long as the purchase or contract was approved by the County Manager or his staff
pursuant to the County's Purchasing Ordinance, subject to and after the Board's approval in
accordance with 2(d) above.
2
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CASE NO. 2015-CA-0595
3. The parties will meet and confer about the limited discovery required for a final trial
on the merits and present the Court with an agreed-upon case management plan. In the event the
parties cannot agree on the case management plan,they will discuss their disagreements and present
them to the Court.
4. Nothing in this Order prejudices the ability of either party to make whatever
arguments they care to at the final trial before the Court or otherwise. Moreover, the parties
recognize that they have disagreements about various issues, and that neither party is waiving any of
their respective positions or rights by entering into, and performing in accordance with, this Order,
nor are they setting any precedents thereby.
DONE AND ORDERED in Collier County, Florida this C" day of July, 2015.
'(/_,"
HONORABLE JAMES R SHENKO
Circuit Judge
Copies furnished to:
Anthony P. Pires, Jr. • Marni Scuderi
Woodward, Pires & Lombardo, P.A. 3315 Tamiami Trail East
3200 Tamiami Trail North, Suite 200 Naples, FL 34112-5324
Naples,FL 34103 Primary: marni.scuderiOcollierclerk.com
Primary: apiresq?,vpl-le_gal.com General Counsel for Plaintiff
Co-Counsel for Plaintiff
David P. Ackerman , Andrew H. Reiss
Dana E. Foster Clay C. Brooker
Ackerman, Link &Sartory, P.A. Cheffy Passidomo, P.A.
777 S. Flagler Drive, Suite 800 East 821 Fifth Avenue South
West Palm Beach, FL 33401 Naples, FL 34102
Primary: dackerinan@a1SlaW.corn Primary: ahreiss@,naplcslaw.com
Primary: dfoster(a),alslaw.com Primary: ccbrooker@,naple.slaw.corn
Secondary: tcainpbell@alslaw.com Secondary: raricci@napleslaw.com
Secondary: stephen(ivalslaw.com Counsel for Defendant Markiewicz
Co-Counsel for Plaintiff
3
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• 6/28/2016 10.A.
CASE NO. 2015-CA-0595
Jamie A. Cole
John J. Quick
Adam A. Schwartzbaum
• Weiss Serota Hellman Cole&Bierman,P.L.
200 East Broward Blvd., Suite 1900
Ft. Lauderdale, FL 33301
Primary:jcolc(alwsh-law.com
Primary:jvick(cowsh-law.com
Primary: aschwartzbaummwsh-law.eom
Secondary: msarrafficpwsh-law.com
Secondary: Imartinez(g)msh-law.com
Secondary: imunovcowsh-law.com
Counsel for Defendant Ochs
10C1916
4
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR '1
COLLIER COUNTY,FLORIDA CIVIL ACTION
DWIGHT E.BROCK,as Clerk of the Circuit CASE NO.: 15-00595 CA 01
Court of Collier County,Florida,
Plaintiff,
vs.
LEO E.OCHS,JR.,as Manager/Administrator
Of Collier County,Florida,and JOANNE o /7
MARKIEWICZ,as Purchasing& General Services
Director of Collier County,Florida,
Defendants, W c r
And <: -a _,0
,_1y
COLLIER COUNTY,FLORIDA, G-1 .c
Intervenor. :c=
FINAL SUMMARY JUDGMENT
THIS CAUSE having become before this Court upon the motion for final summary
judgment filed by Defendant, Leo E. Ochs,Jr.(the"County Manager"),the motion for summary
judgment filed by Collier County, Florida(the"County"), and a joinder in these motions by
Joanne Markiewicz(the"Purchasing Director")(collectively,the"Defendants"),as well as the
motion for partial summary judgment filed by Dwight E. Brock(the"Clerk"),and the Court
having reviewed said motions and the exhibits thereto,having heard the argument of counsel and
being otherwise fully advised in the premises,the Court makes the following determinations.
1. This action stems from a dispute raised by Plaintiff, Dwight E.Brock,Clerk of
the Circuit Court of Collier County(hereinafter"Clerk")against Defendants, Leo E. Ochs,Jr.,as
Manager/Administrator of Collier County(hereinafter"the County Manager"),and Joanne
Markiewicz,as Purchasing and General Services Division Director of Collier County thereinafter
1
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"County Purchasing Director"). The County later intervened in the action brought by Plaintiff,
and filed a Counterclaim,
2. Collier County is a non-chartered political subdivision of the State of Florida and
is governed by a Board of County Commissioners.
3. Leo E. Ochs,Jr.,has served as the County Manager for Collier County since
September 2009. His responsibilities including serving as the chief executive officer,carrying
out the policy directive of the Board of County Commissioners and running the County's day-to-
day operations.
4. Joanne Markiewicz serves as Collier County's Director of Procurement Services and
Purchasing Director. As the senior employee within Collier County's procurement department,
Ms.Markiewicz reports to the department head in administrative services, who reports to the
County Manager.
5. Dwight E. Brock has served as the Clerk of Courts for Collier County since being
first elected to the position in 1993.
6. The underlying facts of this case are that On or about July 2,2014, Swain Hall, a
Procurement Strategist in the County purchasing section, issued Invitation to Bid, Solicitation:
14-6265 Online Safety Training Program("TB 14-6265"). On or about July 22,2014, Skillsoft
Corporation("Skillsoft")submitted its bid in response to ITB 14-6265,the "Skillsoft Bid". On or
about December 2, 2014, (with a contract date of November 2,2014)Agreement 14-6265 for
Online Safety Training Program(the"Skillsoft Contract")was executed by Mark Murray on
behalf of Skillsoft Corporation d/b/a Skillsoft Direct and the Defendant MARK IEWICZ in the
name of COLLIER COUNTY on behalf of the BOARD.
7. Counts I and II of the Clerk's complaint as well as Count I of the County's
Counterclaim and Count I of the County Manager's counterclaim all seek declaratory and
injunctive relief related to whether a County Commission in a non-charter county may lawfully
delegate to its county administrator the authority to make purchases and enter into associated
2
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contracts below a legislativeined threshold amount. Under the Florida Constitution, a
non-charter county may take any action thais not expressly prohibited by general or special law.
State v. Orange County, 281 So. 2d 310, 312(Fla. 1973).
8. On December 31, 2015, Entervenor,the County, and Defendant,the County
Manager, both filed Motions for Summary Judgment with this Court. Defendant, County
Purchasing Director, filed a Motion to join in both Motions for Summary Judgment. That same
day, Plaintiff filed his Motion for Partial Summary Judgment.
9. The first issue in this case involves a challenge by the Clerk to the Collier County
Board of County Commissioner ` (the"County")authority to delegae to the County Manager
(and his designees, including the Purchasing Director),the ability to make small purchases(and
enter into associated contracts) below a legislatively-determined threshold amount of$50,000 and
in accordance with policies and procedures established by Collier County ordinances and
resolutions. The main question presented is whether the County Commission possesses authority,
pursuant to the County Administration Law of 1974, § 125.70-74, Fla. Stat. (1974) (the
"Administration Law"),to delegate these powers and duties.
10. The second issue in this case is the Clerk's challenge of the process by which
The County approves all expenditures. Specifically, the Clerk states in his amended wherefore
clause to Count I that he seeks a declaration that"before making payment,the Clerk's office may
require documentation of each expenditure in sufficient detail to establish that the Board of
County Commissioners' approval of the contract,agreement or purchase, decision of the
authorized public purpose sorvcd, and how that particular expenditure serves to further the
idcntificdpub|iupurpos*."
The third and final issue is the County and County Managers' claims seeking
injunctive relief requesting th*Court compel the Clerk's performance of his duties.
ll' Summaryjudgment is proper when there are no genuine issues of material fact
and that the moving party hoenti%hedtwajudgment asmmatter mflaw. See Fla.QLCiv. P. 1.510 /--~
3
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(c); Volusia Cry. V. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130(Fla. 2000). The
interpretation of a statute central to a summary judgment is a matter of law. See Eng'g
Contractors Ass'n of S. Fla, Inc. vs. Broward Cray., 789 So. 2d 445,449-50 (Fla.4th DCA
2001).
12. Ordinances of the County are presumed valid and legal until proven otherwise.
Miami-Dade County v. Malibu Lodging, 64 So. 3d 716 (Fla. 3d DCA 2011).
13. COLLIER COUNTY is a non-charter county under Article VIII, Section 1(f), Florida
Constitution, which provides in pertinent part:
"Counties not operating under county charters shall have such power of self-
government as is provided by general or special law. The Board of county
commissioners of a county not operating under a charter may enact, in a manner
prescribed by general law, county ordinances not inconsistent with general or
special law,..." (emphasis added)
14. Pursuant to the provisions of Section 129.09, F.S., if the CLERK acting as county
auditor, signs any wan-ant to pay any illegal charge against COLLIER COUNTY or to pay any
claim agains COLLIER COUNTY not authorized by law or COLLIER COUNTY ordinance, the
CLERK shall be personally liable for such amount, and if the CLERK signs the warrant willfully
and knowingly the CLERK is guilty of a second degree misdemeanor.
15. The BOARD of County Commissioners is the elected governing body of COLLIER
COUNTY. Section 125.01, F.S. outlines various powers and duties of the BOARD
as the governing body of COLLIER COUNTY,a non-charter county. The BOARD
can only take action in public at noticed public meetings.
Section 125.01(3)(a), F.S. provides,as to the powers of the BOARD, that:
"(3)(a) The enumeration of powers herein shall not be deemed exclusive or
restrictive, but shall be deemed to incorporate all implied powers necessary or
incident to carrying out such powers enumerated, including specifically,authority to
employ personnel, expend funds, enter into contractual obligations, and purchase
or lease and sell or exchange real or personal property." (emphasis added)
4
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16. In 1974,the Florida Legislature enacted the Administration Law that outlines the
powers and duties of the"County Administration". The Legislature specifically
codified the purpose of the Administration Law at section 125.71 stating:
It is the legislative intent that it is necessary to authorize a form of county
administration that best assures an adequate and efficient provision of
services to the citizens in this state,that provides for coordinated administration
of county departments to better protect the health, welfare,safety,and quality of
life of the residents in each of the more urbanized counties,and that places in
the hands of a county administrator the multitude of details which must
necessarily arise from the operation of a county as a unit of local
government and,thus,enables the board of county commissioners to
perform freely,without unnecessary interruption,its fundamental intended
purpose of making policies within the framework of law applicable to county
government in this state. It is the further legislative intent to provide a formula
and structure for the economic and efficient conduct of county affairs by making
the county administrator established by this act responsible for handling of all
things necessary to accomplish and bring to fruition the policies established
by the board of county commissioners.
§125.71, Fla. Stat. (emphasis added).
Section 125.74 defines the County Manager's powers and duties. It states, in relevant
part:
1. The administrator may be responsible for the administration of all departments
responsible to the board of county commissioners and for the proper administration
of all affairs under the jurisdiction of the board. To that end,the administrator
may, by way of enumeration and not by way of limitation, have the following
specific powers and duties to:
5
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(a) Administer and carry out the directives and policies of the board of county
commissioners and enforce all orders, resolutions,ordinances, and regulations of the board to
assure that they are faithfully executed.
(g) Supervise the care and custody of all county property.
(i) Develop, install,and maintain centralized budgeting, personnel, legal and
purchasing procedures.
(k) Select, employ,and supervise all personnel and fill all vacancies,positions,or
employment under the jurisdiction of the board. However,the employment of all department
heads shall require confirmation by the board of county commissioners.
(m) Negotiate leases, contracts, and other agreements, including consultant services,
for the county,subject to approval of the board, and make recommendations concerning the
nature and location of county improvements.
(q) Perform such other duties as may be required by the board of county
commissioners.
(2) [i]t is the intent of the Legislature to grant to the county administrator only those
powers and duties which are administrative or ministerial in nature and not to delegate any
government power imbued in the board of county commissioners as the governing body of
the county pursuant to s. 1(e),Art.VIII of the State Constitution. To that end,the above
specifically enumerated powers are to be construed as administrative in nature, and in any
exercise of governmental power the administrator shall only be performing the duty of advising
the board of county commissioners in its role as the policy-setting governing body of the county.
§ 125.74, Fla. Stat. (emphasis added).
17. In 1978, Collier County expressly adopted section 125.74 of the Administration
Law. See Collier Cnty. Ord.No. 78-18.
18. For decades,the Collier County Commission,through a series of resolutions
6
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and ordinances, specifically delegated to the County Manager and his designees the power and
duty to make purchases and enter into associated contracts below a legislatively-determined
dollar threshold amount. Collier County first established the procedure for adopting a purchasing
policy with the passage of Collier County Ordinance No. 1987-25. Pursuant to that procedure,
the County further adopted a complete Purchasing Policy.
On June 27,2000,the County amended its Purchasing Policy to authorize the
Purchasing/General Services Director, or designee,to approve all bilateral contracts for
commodities and services under a formal competitive threshold authorized by the County
Commission.
The most current Purchasing Policy was adopted by Resolution 2009-30. Resolution
2009-30 authorized the Purchasing Director,under the direction of the County Manager,to
approve of purchase orders,purchasing card charges,or formal agreements,without first having
to go before the County Commission, so long as the amount does not exceed$50,000. The
County Commission retained jurisdiction of all contracts for commodities and services in excess
of the$50,000 threshold amount.
Thereafter, in 2013,the County adopted a Purchasing Ordinance which repealed and
replaced Ordinance No. 87-25 and codified and formalized the County's Purchasing Policy.
Although the Purchasing Ordinance made the Purchasing Department of the County responsible
for preparing and recommending for adoption the administrative procedures known as the
Purchasing Manual for the implementation of this Purchasing Ordinance,the County Commission
elected,for purchases under$50,000,to continue to utilize the Purchasing Policy adopted by
Ordinance No.2009-30 until a Purchasing Manual could be approved.
Ordinance No.2013-69 was subsequently amended by Ordinance No.2015-37.
Ordinance No.2015-37 contained "a formal legislative finding" by the County Commission that
the "power to make purchases and enter into agreements and contracts under$50,000.00" is
"administrative and ministerial and promote(s)the efficient administration of County
7
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government, anCountyd�a�hu�iu�the ManagerProcurement aodSemioeoC6reotornndue
purchases and enter into contracts under$50,000 is in the best interest of the County and secures
the maximum efficiency for the benefit of the public." Ordinance 20 15-27 also specifically
"delegates the County Manager and Procurement Services Director or designees,the authority to
make purchases and enter into contracts for purchases or awards in an amount not to exceed
$50.000.00."
Specifically,the Purchasing Ordmunce, as amended, sets forth detailed procedures
for: (1)very small purchases(less than$3,000); (2) informal competition for small purchases
(exceeding$3`000 but not greaer than $50'880);(3)and formal competition and County
Commission approval for large purchases(in excess of$50,000).
All purchases greater than$50,000 are awarded by the County Commission;
however, purchases of$50,000 and under are awarded by the Purchasing Director,subject to the
procedures set forth in the Purchasing Ordinance. Very small purchase(those less than $3,000),
may be approved by the Purchasing Director without formal or informal competition, by means
of a purchase order, purchasing card, or formal agreement, in conformity with the provisions of
Section 27 of the Purchasing Ordinance, regulating the County's purchasing card program. For
small purchases(exceeding$3,000, but not greater than $50.080), and where a Board approved
contract is not applicable, purchases may be solicited by obtaining at least three competitive
quotes. Awards"shall be made to the lowest, qualified and responsive quote in accordance with
the standards set forth in this Purchasing Ordinance." The Purchasing Ordinance directs the
manner in which the Purchasing Director is to solicit quotes and orders her to keep records of all
quotes submitted for public inspection. Finally,all purchases and contracts under$50,000 are
subject to the Clerk's pre-audit and must be ultimately approved by the County Commission as
serving a valid public purpose prior to any disbursement of funds. The County Commission may
always refuse to approve a purchase made by the County Manager or his designees.
19. The process for the paymentmf expenditures in Collier ounty beginswith a���
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purchase pursuant to a Board-approved contract or either(1)a contract under$50,000 approved
by the County Manager or his staff, (2)a purchase order for an item less than $50,000 by the
County Manager or his staff, or(3)a P-Card purchase for less than $3,000.
20. When the County Manager or his staff make purchases and enter into contracts under
$50,000,they first refer to their overall budgets and then make a determination as to whether the
good or services needed would serve the public.
21. Next, invoices for goods or services received are reviewed by the procurement staff
and then loaded into the Count's financial accounting system. The accounting system contains a
field that requires the County Manager's staff to insert language explaining the purpose of any
particular purchase.
22. Once staff completes this process, all of the foregoing information, including stafrs
Preliminary determination of a public purpose, is submitted to the Clerk for pre-audit.
23. The"pre-audit"or"prepayment audit" is the audit performed by the Clerk before an
expenditure is actually paid with a final check. In performing his pre-audit function, the Clerk
must determine the legality of all county expenditures before payment is made.
24. Following pre-audit, the expenditures are presented to the County Commission in a
disbursement report for them to expressly approve those expenditures and make the final
determination of valid public purpose prior to the payment being disbursed by the clerk. This
disbursement report, which is prepared by the Clerk's office, includes a list of expenditures, with
a column for information indicating the purpose of each expenditure.
25. It is undisputed that the County itself has the authority to enter into contracts and
make purchases for public purposes. See § I25.01(3Xa), Fla. Stat. ("The enumeration of powers
herein may not be deemed exclusive or restrictive, but is deemed to incorporate all implied
powers necessary or incident to carrying out such powers enumerated, including, specifically,
authority to employ personnel,expend funds,enter into contractual obligations, and purchase or
f"—•
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lease and sell or exchange real or personal property."). Therefore, the issue is solely whether this
authority may be delegated to the County Manager,or other designees employed by the County.
26. The Clerk relies upon a Florida Attorney General opinion that the Board of County
Commissioners cannot delegate contracting authority to the County Manager. 88-61 ("AGO 88-
61"). In that case in 1988, the Monroe County Clerk sought the Attorney General's opinion
concerning whether the clerk could"accept and pay claims for payment due on contracts or leases
executed by the county administrator"and his designees"with delegated authority from the board
of county commissioners[.}" AGO 88-61 at 1. The Attorney General concluded"that the
authority to execute contracts which obligate the county involves the exercise of independent
discretion and judgment which may not be delegated absent statutory authority,"and that it had
not found"any statutory authority which would allow a county administrator to be delegated
discretionary powers held by the board of county commissioners." Id.
AGO 88-61 is distinguishable because it concerned the delegation of the power to enter
into all contracts, without limitation. It does not consider whether the authority to make small
purchase and contracts under a legislatively-determined threshold dollar amount could be
delegated. The Court does not find AGO 88-61 persuasive authority.
27. The Clerk argues that the County Commission may not delegate limited purchasing
and contracting authority to the County Manager because the non-exclusive list of powers in
section 125.74(1)contains provision"(m)" granting county administrators the power to
"negotiate leases, contracts, and other agreements, including consultant services,for the county,
subject to approval of the board, and make recommendations concerning the nature and
location of county improvements employees added." In interpreting subsection 125.74(1)(m),
"however, we cannot read [it] in isolations, but must read it within the context of the entire
section in order to ascertain legislative intent for the provision." Florida Dept of Envt'I
Protection v. ContractPoint Fla. Parks. LLC, 986 So.2d 1260, 1265 (Fla. 2008). Further,"a
statute should be interpreted to give effect to every clause in it,and to accord meaning and
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harmony to all of its parts' and is not to be read in isolation, but in the context of the entire
section." Id. (quoting Jones v. ETS of New Orleans, Inc., 793 So. 2d 912, 914-15 (Fla. 2001).
Reading this subsection as a limitation on the County Commission's ability to
delegate limited purchasing and contracting authority to the County Manager(a) ignores the
statutes' clear admonition that the listed powers are"by way of enumeration,and not by way of
limitation,"(b) ignores the interaction between subsections 125.74(1)(q)and 125.74(2), which
permit the County Commission to delegate additional administrative and ministerial powers, and
ignores the distinction between"administrative"and "ministerial"powers and duties.
Under the plain language of the Administration Law,the County Commission is
authorized to grant the County Manager the power to"[p] erform such other duties as may be
required by the board of county commissioners." § 125.74(1Xq), Fla. Stat. Pursuant to this
provision, the County Commission can grant the County Manager any powers and duties that
further the legislative intent stated in section 125.71, limited only to the extent that those powers
and duties must be"administrative or ministerial in nature and not to delegate any government
power imbues in the board of county commissioners as the governing body of the county
pursuant to s. 1(e),Art. VIII of the State Constitution." § 125.74(2),Fla. Stat.
28. "Ministerial"powers and duties are those"imposed expressly by law, not by contract
or arising necessarily as an incident to the office, involving no discretion in its exercise, but
mandatory and imperative." City of Tarpon Springs v. Planes, 30 So. 3d 693, 695 (Fla. 2d DCA
2010).
29. Florida courts have not articulated a similarly concise definition of"administrative"
powers and duties. Generally, however,the Florida Supreme Court has explained that"[w]hile
'the powers of government,' that are divided and limited by the constitution cannot legally be
delegated or exercised except as authorized by the constitution,yet valid and appropriate statutes
may,within organic limitations,confer upon officers or commissions or boards, administrative or
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ministerial authorities and duties, which may require the exercise of administrative discretion
and judgment." Williams v. Kelly, 182 So. 881 (Fla. 1938)(emphasis added).
An official exercises"administrative"discretion when his acts are guided by
standards for making decisions and are subject to meaningful oversight. See Thomas v. City of
West Palm Beach,299 So.2d 11, 14(Fla. 1974)(holding that a city ordinance which delegated to
city officials discretion to determine if dwellings were unfit or unsafe for human habitation if they
met certain criteria were valid and a lawful delegation of discretion to the officials). Thus,a
municipal official acts lawfully pursuant to an ordinance providing"more than sufficiently
definite guidelines" to restrain delegated discretionary authority. United Sanitation Servs. Of
Hillsborough, Inv. V. City of Tampa, 302 So. 2d 435,438(Fla. 2d DCA 1974);see also
Mistretta v. United States,488 U.S. 361, 372-73 (1989)(holding that executive officials may
exercise governmental power so long as Congress lays down an "intelligible principle"that
"clearly delineate[es] the general policy"an agency is to achieve and specifies the"boundaries of
[the) delegated authority"). In these situations,the"fact that some authority, discretion or
judgment is necessarily required to be exercised in carrying out a purely administrative or
ministerial duty imposed by statute does not invalidate the statute." Conner v. Joe Hatton, Inc.,
216 So. 2d 209, 211 (Fla. 1968). Rather,"the true distinction is between the delegation of power
to make the law, which necessarily involves a discretion as to what the law shall be, and the
conferring of authority or discretion in executing the law pursuant to and within the confines of
the law itself." Id.
30. "[G]overnment power imbued in the board of county commissioners as the governing
body of the county"are those essential governmental powers reserved to the governing body as
policymaker(such as the powers to pass laws,adopt a budget, or create a zoning code),which
interpretation is consistent with the stated purpose of the Administration Law to enable the
County Commission to place"in the hands of a county administrator the multitude of details
which must necessarily arise from the operation of a county as a unit of local government'and
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thereby enable"the board of county commissioners to perform freely, without unnecessary
interruption,its fundamental intended purpose of making policies within the framework of law
applicable to county government in this state." § 125.71,Fla. Stat.
31. The Court finds as to the first issue,that the Purchasing Ordinance adopted by the
County Commission constitutes a lawful delegation of administrative authority. The standards
and layers of review established by the County Commission appropriately limit the County
Manager's discretion and assure that he only exercises"administrative"powers and duties that do
not intrude on the County Commission's role as the"policy-setting governing body of the
county."
32. The second issue is a challenge by the Clerk to the"process"by which the County
approves all expenditures. Specifically,the Clerk states in his amended wherefore clause to
Count I that he seeks a declaration that"before making payment,the Clerk's office may require
documentation of each expenditure in sufficient detail to establish that the Board of County
Commissioners' approval of the contract, agreement or purchase,decision of the authorized
public purpose served,and how that particular expenditure serves to further the identified public
purpose."
At no other point in the operative complaint are there any allegations as to the
process of County approval,nor are there any allegations that the County,County Manager,or
Purchasing Director are acting in violation of any statute,ordinance,or other source of law.
The Clerk has asserted that the issues to be resolved as to his process claim are: (1)
who is responsible for inputting the purpose of each expenditure in the report submitted to the
Board prior to approval of payment of each expenditure;(2)whether the Board's finding of valid
public purpose needs to come before or after the Clerk's writes(but has not yet issued)each
check; and (3)what information should be included in the expenditure report submitted to the
Board prior to approval of payment of each expenditure. Not one of these three issues is a legal
issue. �`\
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Prevailing law holds that"[a] party seeking declaratory relief must show that... [the]
relief sought is not merely giving of legal advice by the courts..." Santa Rosa County v.
Administration Comm'n, Div. of Admin. Hrngs.,661 So. 2d 1190, 1193 (Fla. 1995)(quoting
Martinez v. Scanlan, 582 So.2d 1167, 1170(Fla.1991); see generally McIntosh v. Harbour Club
Villas Condo. Ass 468 So.2d 1075, 1081 (Fla. 3d DCA 1985)(declaratory judgment is not
proper to advise as to the correct procedure to follow).
Further,the mere"[d]isagreement with a constitutional or statutory duty,or the means
by which it is to be carried out,does not create a justiciable controversy or provide an occasion to
give an advisory judicial opinion." Department of Revenue of State of Fla. V. Markham, 396 So.
2d 1120, 1121 (1981)(superseded on other grounds).
Accordingly,the Clerk's disagreement with the County's current payment approval
process is not appropriate for this Court to issue a declaration. See,e.g.,Askew v. City of Ocala,
348 So. 2d 308, 310 (Fla. 1977)("the courts have no power to entertain a declaratory judgment
action which involves no present controversy as to the violation of the statute").
Therefore,the Clerk's"process"claim fails as a matter of law.
33. The third and final issue is the County's and County Manager's claims for relief
seeking mandatory injunctive(or possibly mandamus)relief.
The injunctive relief sought by both the County and County Manager cannot be
ordered by the Court because neither the County nor County Manager pled a cause of action for
injunctive relief. Each purported to seek only declaratory relief. "[C]ourts are not authorized to
award relief not requested in the pleadings. To grant unrequested relief is an abuse of discretion
and reversible error." Worthington v. Worthington, 123 So. 3d 1189, 1190(Fla 2d DCA 2013).
34. The rulings herein are not based upon any comparison of other county ordinances nor
any opinion testimony of Dr. Robert E. Lee.
CONCLUSION
The County Commission,pursuant to sections 125.01(1)(a)and 125.01(3 Xa),Florida
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Statutes, has the power and duty to adopt its own rules of procedures and has implied powers
necessary or incident to carrying out such enumerated powers. The County Manager and his
designees have been lawfully granted authority from the County Commission through the
Purchasing Ordinance to make purchases and enter into associated contracts below$50,000. The
Administration Law authorizes this delegation of administrative powers and duties.
Accordingly, it is ORDERED AND ADJUDGED that:
1. The County Manager's Motion for Final Summary Judgment is GRANTED.
2. The County's Motion for Summary Judgment is GRANTED.
3. The Clerk's Motion for Partial Summary Judgment is DENIED.
4. Final Judgment as to Counts I and II of the Clerk's Complaint is entered in
favor of the County Manager, the Purchasing Director and the County,and
against the Clerk. The Clerk shall take nothing by this action and the
Defendants shall go hence without day.
5. Final Judgment as to Count I of the County Manager's Counterclaim for
declarative relief and Count I of the County's Counterclaim for declarative
relief is entered in favor of the County Manager and the County and against
the Clerk.
6. The Court declares:
(A)That the County's Purchasing Ordinance is legal and not in conflict
with any provisions of general or special law;
(B) That the County Manager and his designees have the lawful
authority to make purchases, and enter into contracts for purchases,
under$50,000(including the Skillsoft Contract) pursuant to the
Purchasing Ordinance and that such authority was properly delegated
by the County Commission to the County Manager and his designees
as an exercise of'administrative or ministerial' powers and duties;
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7. The Court reserves jurisdiction to consider any supplementary proceedings
and post-judgment rulings,if any, including costs.
DONE AND ORDERED in Chambers in Collier County, Florida this /0"day
of February,2016.
THE H e 10RABLE JA ES R. SHENK°
Circui"burr.Judge
Copies to:
All counsel of record
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Advisory Legal Opinion-County commission, clerk,payment of county bills 6/28/2016 10.A.
Florida Attorney General
Advisory Legal Opinion
Number: AGO 2001-29
Date: April 23, 2001
Subject: County commission, clerk, payment of county bills
Mr. Gary E. Eckstine
Flagler County Attorney
1200 East Moody Boulevard, #11
Bunnell, Florida 32110
RE: COUNTIES--CLERKS OF COURT--DELEGATION OF POWERS--PUBLIC PURPOSE-
-county commission may not delegate power to declare public purpose.
ss . 28. 12, 125.01, 125.17, 129.08, 129.09 and 136. 06, Fla. Stat. ;
Art. V, s. 16, and Art. VIII, s. 1, Fla. Const.
Dear Mr. Eckstine:
On behalf of the Flagler County Commission and the Clerk of Circuit
Court, you ask substantially the following questions:
1 . Is the clerk of court in a non-charter county authorized to pay
county bills without prior approval of each specific bill by the
county commission?
2 . If not, may the county commission delegate the authority to pay
county bills to the clerk of court without prior approval of the
commission for each bill?
In sum:
1 . The county commission must make a determination that an
expenditure serves a county purpose prior to the clerk of court
issuing a warrant for payment.
2 . The initial determination of whether an expenditure serves a
county purpose may not be delegated to the clerk of court. However,
once the county commission finds that an expenditure serves a county
purpose, for example, by entering into an agreement for the purchase
of goods or services, and the clerk of court determines that the
expenditure is not illegal, the clerk may issue a warrant without
further action by the commission.
Question One
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The clerk of the circuit court is a constitutional county officer.
[1] Section 125.17, Florida Statutes, makes the clerk of circuit
court the "clerk and accountant of the board of county
commissioners. " [2] Pursuant to this section, the clerk for the
commission "shall keep their minutes and accounts, and perform such
other duties as their clerk as the board may direct. " When not
otherwise provided by county charter or special law approved by vote
of the electors, the clerk also serves as the "ex officio clerk of
the board of county commissioners, auditor, recorder, and custodian
of all county funds . " [3]
You have not directed my attention to, nor does there appear to be,
any special law approved by the electors that would vary the clerk' s
duties in Flagler County, and the county is not governed by a county
charter. Under the applicable constitutional provisions, therefore,
the Clerk of Circuit Court in Flagler County is the ex officio clerk
of the board of county commissioners, auditor, recorder and
custodian of all county funds.
As the ex officio auditor of county funds, the clerk is authorized
to refuse to sign and deliver county warrants for payment of an
illegal contract. [4] Furthermore, the clerk is both personally and
criminally liable for signing illegal warrants. [5]
The authority to refuse to sign illegal warrants and the attendant
liability imposed upon the clerk should an illegal warrant be
signed, however, does not necessarily include the power to sign
warrants absent prior approval by the board of county commissioners.
The clerk of court is a ministerial officer whose authority and
responsibility are derived from both constitutional and statutory
provisions. [6] Accordingly, absent some constitutional or statutory
authority, the clerk of court may not sign warrants without approval
of the board of county commissioners.
Section 129.08, Florida Statutes, provides :
"Each member of the board of county commissioners who knowingly and
willfully votes to incur an indebtedness against the county in
excess of the expenditure allowed by law or county ordinance, or to
pay an illegal charge against the county, or to pay any claim
against the county not authorized by law or county ordinance shall
be guilty of malfeasance in office and subject to suspension and
removal from office as now provided by law, and shall be guilty of a
misdemeanor, and shall upon conviction be punished by a fine of not
less than $100 nor more than $500 or by imprisonment in the county
jail for not more than 6 months, for each offense. " (e.s. )
This language suggests that the board of county commissioners is
responsible for approving the payment of any claim against the
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county prior to its being presented to the clerk of court for
payment. The clerk may refuse to pay an illegal warrant, even though
it has been approved by the board of county commissioners. [7] As the
court in Alachua County v. Powers noted, the clerk performs "some
type of pre-audit review of the disbursement in order to be sure
that the funds will not be used for an unlawful purpose. " [8]
Section 136.06 (1) , Florida Statutes, requires that all county funds
drawn from any qualified depository
"be upon a check or warrant issued by the board or officer drawing
the same, said check or warrant, both as to number and amount,
person to whom drawn and purpose for which drawn shall be recorded
in the minutes of the board having ordered the same drawn . . .
. " (e.s. )
Thus, the statutory scheme contemplates that the board of county
commissioners initially order the payment of a warrant, prior to the
clerk' s pre-audit determination of whether the payment is for a
legal purpose. Accordingly, it is my opinion that the clerk of court
in a non-charter county is not authorized to pay county bills that
have not been previously approved for payment by the county
commission.
Question Two
This office has previously recognized the general proposition that a
public officer may not delegate his or her discretionary powers,
except as prescribed by statute. [9] Thus, the authority of the
county commission to delegate its authority to approve the payment
of county bills depends upon whether such power is discretionary
(governmental) or ministerial (operational) . Duties involving the
exercise of independent judgment and discretion are governmental,
and may not be delegated absent statutory authority. [10] Those that
do not require the exercise of independent governmental discretion,
judgment or authority are considered ministerial and may be
delegated. [11)
The Florida Constitution gives non-charter counties "such power of
self-government as is provided by general or special law. " [12]
Section 125.01 (1) , Florida Statutes, implements this constitutional
grant of power, stating that " (t)he legislative and governing body
of a county shall have the power to carry on county government. " In
enumerating the powers that are included, the Legislature has stated
that a county has the power to " (p)erform any other acts not
inconsistent with law, which acts are in the common interest of the
people of the county, and exercise all powers and privileges not
specifically prohibited by law. " [13] County funds, therefore, must
be expended for a county purpose. [14] That determination involves
the exercise of the county commission' s independent judgment and
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must be made by that body.
In this instance, there is a distinction between the county
commission' s determination that an expenditure serves a county
purpose and the pre-auditing approval exercised by the clerk before
signing the warrant for payment. There is nothing in Florida law
that allows the clerk' s pre-auditing function to supplant the
commission' s duty to make a legislative finding that expenditures of
county funds are for a county purpose. Clearly, as set forth above,
the clerk' s function operates as a check or balance on the exercise
of the commission' s power to expend county funds . To attempt a
delegation of such power to the clerk would disrupt the
legislatively created system that ensures that county funds will
only be expended for a county purpose.
It would seem redundant, however, for the county commission to make
an initial determination that an expenditure serves a county
purpose, then to re-evaluate the expenditure when a bill is
presented to the county for payment by the clerk. In Attorney
General Opinion 70-134, this office was asked whether a clerk of
court could rely upon an ordinance authorizing the disbursement of
funds in determining whether an expenditure was legal. The opinion
cited to an earlier opinion, Attorney General Opinion 58-236,
stating the well-settled duty of the clerk of court as ex officio
auditor of county funds:
"The auditing function of the clerk includes more than the
arithmetical determination as to the amount of the claim being
presented for payment and the clerk has a duty to determine the
legality of an expenditure before dispensing public funds. When an
examination by the clerk as auditor of a particular claim presented
for payment leads him to believe that the expenditure is not
authorized by law, or is otherwise illegal, the clerk may properly
withhold his approval of payment. This action by the clerk is in
accord with the apparent purpose of the constitutional provision,
making the clerk of the circuit court ex officio auditor of the
county, which is to provide a check and balance system that insures
proper expenditure of public funds. " (e.s. )
This office concluded that absent clear unreasonableness or an
obvious abuse of discretion by the county' s governing body in
enacting the ordinance, the clerk could rely upon the ordinance as a
legislative declaration that a county purpose was served. In
accordance with the rationale underlying the conclusion in Attorney
General Opinion 70-134, a clerk of court should be able to rely upon
a county commission' s determination that an expenditure fulfills a
county purpose when it has obligated the county through a contract
or agreement_
In practical terms, when the goods or services secured by the county
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commission have been delivered or performed and the vendor seeks
payment, there would be no need for the commission to make another
determination that it serves a county purpose to issue a warrant for
payment. At that point, the issuance of a warrant, once the clerk of
court makes a determination that the expenditure is not illegal,
would appear to be a ministerial act requiring no further action by
the board of county commissioners.
Accordingly, the county commission may not delegate its governmental
duty to make a determination that an expenditure serves a county
purpose. However, once such a determination has been made and the
clerk of court finds that the expenditure is not illegal, the clerk
may issue a warrant without further action by the commission.
Sincerely,
Robert A. Butterworth
Attorney General
RAB/tls
[1] See Art. VIII, s. 1 (d) , Fla. Const.
[2] See also s . 28. 12 , Fla. Stat. , stating:
"The clerk of the circuit court shall be clerk and accountant of the
board of county commissioners. He or she shall keep the minutes and
accounts and perform such other duties as provided by law. The clerk
shall have custody of the seal and affix the same to any paper or
instrument as required by law. "
[3] See Art. VIII, s. 1 (d) , Fla. Const. And see Art. V, s . 16, Fla.
Const. , which provides:
"There shall be in each county a clerk of the circuit court who
shall be selected pursuant to the provisions of Article VIII section
1 . Notwithstanding any other provision of the constitution, the
duties of the clerk of the circuit court may be divided by special
or general law between two officers, one serving as clerk of court
and one serving as ex officio clerk of the board of county
commissioners, auditor, recorder, and custodian of all county
funds . "
See Alachua County v. Powers, 351 So. 2d 32 (Fla. 1977) , recognizing
that the clerk' s judicial functions may be separated from his or her
county officer functions as auditor, accountant, custodian of county
funds and official recorder.
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[4] Mayes Printing Company v. Flowers, 154 So. 2d 859 (Fla. 1st DCA
1963) . And see Alachua County v. Powers, supra, n. 3 at 36 (clerk
forbidden to sign illegal warrants) .
[5] See Ops. Att'y Gen. Fla. 79-70 (1979) ; 86-38 (1986) ; and 97-67
(1997) . See also Alachua County v. Powers, supra, n. 3 at 36.
[6] See s. 129 .09, Fla. Stat. , providing:
"Any clerk of the circuit court, acting as county auditor, who shall
sign any warrant for the payment of any claim or bill or
indebtedness against any county funds in excess of the expenditure
allowed by law, or county ordinance, or to pay any illegal charge
against the county, or to pay any claim against the county not
authorized by law, or county ordinance, shall be personally liable
for such amount, and if he or she shall sign such warrant willfully
and knowingly he or she shall be guilty of a misdemeanor of the
second degree, punishable as provided in S. 775.082 or s. 775.083. "
[7] See Mayes Printing Company, supra, n. 4.
[8] 351 So. 2d at 36.
[9] See Op. Att'y Gen. Fla. 88-61 (1988) , citing Op. Att'y Gen. Fla.
74-116 (1974) and 67 C.J.S. Officers s . 194) . See also State v.
Inter-American Center Authority, 84 So. 2d 9 (Fla. 1955) ,
recognizing that absent statutory authority, public officer cannot
delegate powers, even with court approval.
[10] See Inter-American Center Authority, supra, n. 9 at 14 .
[11] See Blitch v. Buchanan, 131 So. 151, 154 (Fla. 1930) .
[12] Article VIII, s. 1 (f) , Fla. Const.
[131 Section 125.01 (1) (w) , Fla. Stat. And see s. 125.01 (3) (b) , Fla.
Stat. , stating:
"The provisions of this section shall be liberally construed in
order to effectively carry out the purpose of this section and to
secure for the counties the broad exercise of home rule powers
authorized by the State Constitution. "
See also Speer v. Olson, 367 So. 2d 207, 211 (Fla. 1978) (s. 125. 01
(1) , Fla. Stat. , grants governing body of a county the full power to
carry on county government; unless Legislature has pre-empted a
particular subject relating to county government by either general
or special law, the county governing body has full authority-- to act
through the exercise of its home rule powers) .
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[14] See Art. VII, s . 10, Fla. Const. , requiring that public funds
be used for public purposes .
,FLas
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