Agenda 03/27/2018 Item #11H03/27/2018
EXECUTIVE SUMMARY
Recommendation to approve the attached draft ballot language and ordinance for the
Infrastructure Surtax or One-cent Sales Tax referendum to be on the General Election ballot
November 6, 2018; and authorize the County Attorney to advertise the ordinance for a final
reading and direct the County Manager to begin public education about the process and the
proposed projects in an amount not to exceed $100,000.
OBJECTIVE: To allow the electorate an opportunity to decide how we fund the construction,
maintenance, and repair of needed capital projects in Collier County by educating them on the options
and placing the decision on a referendum ballot.
CONSIDERATIONS: Through the development of the FY 2017 and 2018 budgets, the Board of
County Commissioners and staff have discussed the need to fund deferred capital projects and future
growth-related projects with the planned issuance of debt. Through deliberations and input from the
public and the Chamber of Commerce, another option to fund the deficit was brought forward in the form
of a one-penny sales tax. The sales tax infrastructure funding option has been used successfully in 61 out
of 67 Florida counties. The sales tax funding would be used in lieu of planned debt service and avoid an
estimated $187 to $255 million in interest payments through the life of the debt depending on interest
rates and term of the bond.
After several public discussions, on January 23, 2018, the Board directed the County Manger to bring
back draft ballot language in an ordinance for the Boards consideration. Florida Statute 101.161 sets a
limit of 75 words for the explanatory statement that follows the referendum title. The current draft meets
this requirement and covers all the categories of projects to be covered by the Sales Tax. Attached to this
executive summary is a copy of the draft ordinance which contains the draft ballot language, which is as
follows:
COLLIER COUNTY AND MUNICIPAL INFRASTRUCTURE
IMPROVEMENTS ONE-CENT SALES SURTAX
To enhance safety, mobility, and hurricane preparedness in Collier
County and its cities by constructing, repairing, and maintaining roads,
bridges, signals, sidewalks, parks, evacuation shelters, governmental
facilities, including emergency services facilities; acquire land and
support construction for workforce housing and career and technical
training, veterans’ nursing home and expand mental health facilities;
shall the County levy a one-cent sales surtax beginning January 1, 2019
and automatically ending December 31, 2025, with oversight by citizen
committee?
_______ FOR THE ONE-CENT SALES TAX
_______ AGAINST THE ONE-CENT SALES TAX
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Upon adoption, the County will educate the public without lobbying for a specific result. Using existing
staff and outside support services, the County Manager would begin an outreach program to explain to the
public the need for and specific details of the proposed projects with the funding options. The budget for
the outreach is not expected to exceed $100,000. The outreach would include public information
meetings, website development, and media distribution.
Based upon legislative action taken during this year’s session, there will be an additional requirement
effective July 1, 2018. An amendment to CS/HB 7087 requires that a performance audit must be
completed with an audit report, including any findings, recommendations, or other accompanying
documents and made available on the official County website at least 60 days before the referendum is
held and remain online for two years.
The independent certified public accountant (CPA) must be procured by the Office of Program Policy
Analysis and Government Accountability (OPPAGA), which may use carryforward funds to procure and
pay for the CPA’s services. This performance audit is an examination of the County finances and
programs related to the following:
The economy, efficiency, or effectiveness of the county or school district;
The structure or design of the county government or school district to accomplish it s goals and
objectives;
Alternative methods of providing county or school district services or products;
Goals, objectives, and performance measures used by the county or school district to monitor and
report program accomplishments;
The accuracy or adequacy of public documents, reports, or requests prepared by the county or
school district; and
Compliance of the county or school district with appropriate policies, rules, or laws.
FISCAL IMPACT: The external audit services are procured by the OPPAGA and there is no cost to the
County to complete the Performance Audit. The County Manager’s Office requests a budget up to
$100,000 to deliver an effective public information program.
Approval to move this item to the electorate in and of itself has no fiscal impact. Should the voters
approve the sales tax, the revenue generated is estimated at approximately $70,000,000 per year for seven
years. This would provide the County with $420,000,000 for capital projects. It would also distribute
$70,000,000 to the municipalities by State formula. Should the referendum fail, the County expects to
issue up to $450,000,000 of future debt in various tranches. The interest on $450,000,000 is estimated at
$185,000,000 to $255,000,000 depending on the principal amount borrowed, interest rate and term of
debt.
GROWTH MANAGEMENT IMPACT: There are no Growth Management Impacts associated with
this Executive Summary
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney. Florida Statutes
Sec. 106.113 (Expenditures by local governments.) provides as follows:
(1) As used in this section, the term:
(a) “Local government” means:
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1. A county, municipality, school district, or other political subdivision in this state; and
2. Any department, agency, board, bureau, district, commission, authority, or similar body of a
county, municipality, school district, or other political subdivision of this state.
(b) “Public funds” means all moneys under the jurisdiction or control of the local government.
(2) A local government or a person acting on behalf of local government may not expend or authorize
the expenditure of, and a person or group may not accept, public funds for a political advertisement or
electioneering communication concerning an issue, referendum, or amendment, including any state
question, that is subject to a vote of the electors. This subsection does not apply to an electioneering
communication from a local government or a person acting on behalf of a local government which is
limited to factual information.
(3) With the exception of the prohibitions specified in subsection (2), this section does not preclude
an elected official of the local government from expressing an opinion on any issue at any time.
History.-s. 1, ch. 2009-125.
Included in the back-up is an opinion from the Division of Elections (10-06) which discusses this
statute and which should be relied upon as guidance. The Summary of the Opinion states as follows:
“Section 106.113(2), Florida Statutes, prohibits a "local government or a person acting on behalf of
local government" from expending or authorizing the expenditure of public funds for a "political
advertisement" or an "electioneering communication" that concerns a (referendum)….Section 106.113,
Florida Statutes, is not violated for an expenditure of public funds if the communication only provides
factual information. Factual information means verifiable actualities, not subjective, qualitative
statements or comments. Unless the prohibitions in section 106.113(2) are applicable, an elected official
of local government may express an opinion on any issue at any time. A non-elected local government
official or any other person who is acting on behalf of local government may do likewise if he or she does
not violate the prohibitions in section 106.113(2). No violation of section 106.113, Florida Statutes
(2009), occurs if an opinion about an issue or referendum is stated in direct conversation.”
With that noted, this item is approved as to form and legality and requires majority vote for approval.
-JAK
RECOMMENDATION: To approve the attached draft ballot language and ordinance for the
Infrastructure Surtax or One-cent Sales Tax referendum to be on the General Election ballot November 6,
2018; and authorize the County Attorney to advertise the ordinance for a final reading and direct the
County Manager to begin public education about the process and the proposed projects in an amount not
to exceed $100,000 and authorize any necessary budget amendments.
Prepared by: Geoff Willig, Operations Analyst for the County Manager’s Office
ATTACHMENT(S)
1. Draft Infrastructure Surtax Ordinance (DOCX)
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2. Project List 18-03-27 Meeting (PDF)
3. DE-10-06 (PDF)
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COLLIER COUNTY
Board of County Commissioners
Item Number: 11.H
Doc ID: 5179
Item Summary: ***This item to be heard at 9:30 a.m.***Recommendation to approve the
attached draft ballot language and ordinance for the Infrastructure Surtax or One-cent Sales Tax
referendum to be on the General Election ballot November 6, 2018; and authorize the County Attorney to
advertise the ordinance for a final reading and direct the County Manager to begin public education about
the process and the proposed projects in an amount not to exceed $100,000. (Geoff Willig, Operations
Analyst, County Manager's Office)
Meeting Date: 03/27/2018
Prepared by:
Title: Operations Analyst – County Manager's Office
Name: Geoffrey Willig
03/21/2018 2:48 PM
Submitted by:
Title: County Manager – County Manager's Office
Name: Leo E. Ochs
03/21/2018 2:48 PM
Approved By:
Review:
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 03/21/2018 3:04 PM
Budget and Management Office Mark Isackson Additional Reviewer Completed 03/21/2018 3:09 PM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 03/21/2018 3:33 PM
County Manager's Office Nick Casalanguida Level 4 County Manager Review Completed 03/21/2018 4:37 PM
Board of County Commissioners MaryJo Brock Meeting Pending 03/27/2018 9:00 AM
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ORDINANCE NO. 2018-_____
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA, IMPOSING A COUNTYWIDE LOCAL
GOVERNMENT INFRASTRUCTURE SURTAX OF ONE PERCENT (1%)
ON ALL AUTHORIZED TAXABLE TRANSACTIONS OCCURRING
WITHIN COLLIER COUNTY, AS AUTHORIZED BY SECTION
212.055(2), FLORIDA STATUTES, EFFECTIVE BEGINNING JANUARY
1, 2019, FOR A PERIOD OF UP TO SEVEN (7) YEARS OR UNTIL THE
AGGREGATE FUNDS OF $490,000,000 ARE COLLECTED, WHICHEVER
IS SOONER; PROVIDING THAT THE IMPOSITION OF THE SURTAX
SHALL BE CONTINGENT ON APPROVAL AT A COUNTYWIDE
REFERENDUM; PROVIDING FOR DISTRIBUTION OF SURTAX
REVENUES AMONG THE COUNTY AND THE MUNICIPALITIES
WITHIN THE COUNTY; PROVIDING FOR CITIZEN OVERSIGHT;
PROVIDING BALLOT LANGUAGE AND DIRECTING THE
SUPERVISOR OF ELECTIONS TO HOLD A COUNTYWIDE PRECINCT
REFERENDUM ELECTION ON NOVEMBER 6, 2018.
WHEREAS, Section 212.055(2), Florida Statutes, authorizes the Collier County Board of
County Commissioners (“Board”) to impose a 1.0 percent (1%) local government infrastructure
surtax (“Surtax”) upon transactions occurring within Collier County (“County”) which are taxable
under Chapter 212, Florida Statutes; and
WHEREAS, a 1.0 percent (1%) Surtax would, under current State sales tax rates, result in
a one cent (1¢) Surtax on each one dollar ($1.00) sale as specifically provided by law and will be
applied to each fractional part of one dollar accordingly; and
WHEREAS, the Surtax differs from the transactions subject to the State sales tax in that
the local option sales tax base applies only to the first $5,000 of the purchase price of an item of
taxable personal property while the State sales tax applies to the entire purchase price regardless
of amount, pursuant to Section 212.054(b), Florida Statutes; and
WHEREAS, the Surtax does not apply to certain groceries, medical products and supplies,
fuel, and other specifically identified goods and services listed in Section 212.08, Florida Statutes;
and
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WHEREAS, the funds derived from the imposition of the Surtax shall be distributed to
the County and the municipalities of the County (“Municipalities”), as set forth in Section 218.62,
Florida Statutes, if no interlocal agreement is entered into; and
WHEREAS, funds received from the Surtax authorized by Section 212.055(2), Florida
Statutes, may be utilized by the County and Municipalities to finance, plan, construct, reconstruct,
renovate and improve needed infrastructure, as defined in Section 212.055(2)(d), Florida Statutes;
and
WHEREAS, the County and the Municipalities are presently without sufficient fiscal and
monetary resources to adequately fund their infrastructure needs; and
WHEREAS, adequate public infrastructure facilities of the types herein described promote
the safe, efficient and uninterrupted provision of numerous essential public services provided by
the County and the Municipalities, including but not limited to roads, bridges, signals, sidewalks,
parks, evacuation shelters, governmental facilities, including emergency services facilities;
acquiring land and construction for workforce housing and career and technical training, veterans’
nursing home and expand mental health facilities; and
WHEREAS, a brief description of the projects to be funded is set forth in the ballot
language contained in this Ordinance; and
WHEREAS, the County and the Municipalities shall establish a citizen oversight
committee to provide for citizen review of the expenditure of Surtax proceeds.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of
Collier County, Florida, that:
SECTION ONE. Incorporation of Recitals.
The above recitals are true and correct and are hereby incorporated by reference.
SECTION TWO. Imposition of Local Government Infrastructure Surtax.
There is hereby imposed a one percent (1%) local government infrastructure surtax
(“Surtax”) upon all authorized taxable transactions occurring within the County.
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SECTION THREE. Administration, Collection and Distribution of Proceeds.
The Surtax shall be administered, collected, and enforced in accordance with the provisions
of Section 212.054, Florida Statutes, and the rules promulgated by the Florida Department of
Revenue. The proceeds of the Surtax shall be distributed by the Department of Revenue directly
to the County and Municipalities, in accordance with Section 218.62, Florida Statutes.
SECTION FOUR. Referendum Election.
(a) The Surtax imposed in Section Two hereof shall not take effect unless and until
approved by a majority of the electors of the County voting in a countywide precinct referendum
election on the Surtax.
(b) The Collier County Supervisor of Elections is hereby directed to hold such
countywide precinct referendum election on November 6, 2018.
(c) The Collier County Supervisor of Elections shall cause the following proposition
to be placed on the ballot:
COLLIER COUNTY AND MUNICIPAL INFRASTRUCTURE
ONE-CENT SALES SURTAX
To enhance safety, mobility, and hurricane preparedness in Collier
County and its cities by constructing, repairing, and maintaining
roads, bridges, signals, sidewalks, parks, evacuation shelters,
governmental facilities, including emergency services facilities;
acquire land and support construction for workforce housing and
career and technical training, veterans’ nursing home and expand
mental health facilities; shall the County levy a one-cent sales surtax
beginning January 1, 2019 and automatically ending December 31,
2025, with oversight by citizen committee?
_______ FOR THE ONE-CENT SALES TAX
_______ AGAINST THE ONE-CENT SALES TAX
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SECTION FIVE. Advertisement.
The Collier County Clerk of Court shall insure that notice of this referendum be advertised
in accordance with the provisions of Section 100.342, Florida Statutes. Proof of publication shall
be provided to the Chair of the Board.
SECTION SIX. Expiration Date; Survival of Certain Restricted Uses.
(a) Sunset. In all events, this Ordinance shall be in effect only through December 31,
2025. It shall sunset and expire thereafter, without further action by the Board and the electors, at
which time it shall be deemed repealed and of no further force and effect, and the Surtax levied
hereunder shall terminate. Alternatively, this Ordinance shall sunset on December 31st of any year
during the term of this Ordinance in the event that the total aggregate distributions of Surtax
proceeds equal or exceed the amount of $490,000,000 at any time during that calendar year, in
which event the Board shall take necessary action to repeal this Ordinance and notify the Florida
Department of Revenue prior to the applicable deadline so that the Surtax will not continue for the
following year.
(b) Survival of restrictions on use of Surtax proceeds. Notwithstanding the provisions
of subsection (a) for the expiration and repeal of this Ordinance, so long as any Surtax proceeds
shall remain unspent, the restrictions hereby imposed concerning the distribution and use of such
Surtax proceeds as well as the proceeds of any borrowings payable from Surtax proceeds, and all
interest and other investment earnings on either of them shall survive such expiration and repeal
and shall be fully enforceable in a court of competent jurisdiction.
SECTION SEVEN. Infrastructure Surtax Citizen Oversight Committee.
(a) Creation. Upon the approval of the Surtax by the electors of Collier County, the
Board shall hereby assemble an Infrastructure Surtax Citizen Oversight Committee (“Committee”)
to provide for citizen review of the expenditure of the Surtax proceeds by the County, as soon as
possible after the Surtax becomes effective, but not later than the date on which the funds are first
expended. The Committee shall serve as an ad hoc advisory and reporting body to the County.
(b) Composition. The Committee shall be comprised of seven (7) members. There
shall be one (1) member appointed from each County District, and two (2) at-large members. Upon
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confirmation that said individuals meet the requirements herein, the Board shall appoint said
individuals to this Committee. Appointment of positions, unless otherwise stated herein, shall be
governed by Collier County Ordinance No. 2001-55, as may be amended, or by its successor
ordinance.
(c) Membership Qualifications. All members shall have the following qualifications:
(1) Member shall be a resident of Collier County;
(2) Member shall not be an elected official;
(3) Member shall not be a current employee of any governmental body within
Collier County;
(4) Special consideration shall be given to nominees that have financial or
business management backgrounds and experience; and
(5) Member shall meet the qualifications set forth in Collier County Ordinance
No. 2001-55, as may be amended or its successor ordinance.
(d) Term. The initial terms for the at-large seats shall be one year; the remainder of the
at-large terms shall be for two years or until the Committee sunsets. The initial terms and all terms
thereafter for each District seat shall be for two years or until the Committee sunsets. All members
shall be eligible for reappointment upon the expiration of their term. Upon resignation or removal
of a member from a seat, that seat will be filled for the remainder of its term.
(e) Removal. Removal of members from the Committee shall be in accordance with
the provisions of Collier County Ordinance No. 2001-55, as it may be amended, or its successor
ordinance.
(f) Sunset. The Committee shall sunset and terminate without further action by the
Board within 2 months of the final expenditure of all of the Surtax proceeds collected by the
County. At its final meeting after the Surtax proceeds have been expended, the Committee shall
prepare a final report to the Board with its findings and recommendations.
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(g) Duties. The Committee shall have the responsibility to review the expenditure of
Surtax proceeds against the ballot referendum approved by the voters and this Ordinance. The
Board may expend proceeds of the Surtax on projects not specifically stated herein or in the
County’s back-up materials to the Board, so long as those projects (1) comply with the intent of
the ballot language, (2) have a positive recommendation by this Committee, and (3) fall within the
projects and categories identified. The Committee shall not recommend alternative projects,
unless requested by the Board.
(h) Officer; Meetings; Quorum; Rules of Procedure.
(1) Annually the members of the Committee shall elect a chairperson and vice
chairperson from among the members. The chairperson’s and vice chairperson’s terms in such
positions shall be for one (1) year with eligibility for re-election by the members of the Committee.
(2) The Committee shall meet monthly, or as otherwise needed to fulfill their
duties and responsibilities.
(3) The presence of at least five (5) members shall constitute a quorum of the
Committee necessary to take action and transact business. In addition, an affirmative vote of a
super majority (majority present plus one) shall be necessary in order to take official action.
Furthermore, by simple majority vote, but never with less than 5 members present, the Committee
shall adopt rules of procedure for its meetings, and thereafter shall be governed by its procedures,
as amended from time to time.
(4) The Committee shall keep a written record of meetings, resolutions,
findings and determinations. Copies of all Committee minutes, resolutions, reports and exhibits
shall be submitted to the Board. The Committee shall submit an annual report of its findings and
recommendations to the Board.
(i) Reimbursement of Expenses. Committee members shall receive no compensation
for the performance of their duties, but shall be entitled to receive reimbursement for expenses
reasonably incurred in the performance of their duties upon prior approval by the Board.
(j) Duties of the County Manager’s Office. The County Manager’s Office will provide
such documentation, information, descriptions of procedures, secretarial support and general
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assistance to the Committee as may be necessary for the Committee to carry out its functions as
set forth herein.
(k) The Committee, its members, and all its proceedings shall be governed by and
comply with the provisions of the Florida Sunshine Law, Chapter 286, Florida Statutes, the Florida
Public Records Law, Chapter 119, Florida Statutes, and the Florida Ethics Code, Chapter 112,
Florida Statutes, and all other applicable local or state statutes, ordinances, or rules.
SECTION EIGHT. Conflict and Severability.
In the event this Ordinance conflicts with any other Ordinance of Collier County or oth er
applicable law, the more restrictive shall apply. If any court of competent jurisdiction holds any
phrase or portion of this Ordinance invalid or unconstitutional, such portion shall be deemed a
separate, distinct and independent provision and such holding shall not affect the validity of the
remaining portion.
SECTION NINE. Inclusion in The Code of Laws and Ordinances.
The provisions of this Ordinance shall become and be made a part of the Code of Laws and
Ordinances of Collier County, Florida. The sections of the Ordinance may be renumbered or re-
lettered to accomplish such, and the word “ordinance” may be changed to “section,” “article,” or
any other appropriate word.
SECTION TEN. Effective Date.
This Ordinance shall be effective upon filing with the Florida Department of State.
[The remainder of this page intentionally left blank.]
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PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier
County, Florida, this ______ day of ________________, 2018.
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA
By:_____________________________ By:_____________________________
, Deputy Clerk Andy Solis, Chairman
Approved as to form and legality:
_______________________________
Jeffrey A. Klatzkow, County Attorney
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FLORIDA DEPARTMENT 01 STATE
o b
CHARLIE CRIST DA WN K. ROBERTS
Governor Interim Secretary of State
June 14,2010
Honorable R. B. Johnson, Chairman
Don Crane, Member of Board of Directors
Tim Garling, Executive Director
Pinellas Suncoast Transit Authority
3201 Scherer Drive
St. Petersburg, Florida 33716
RE: DE 10-06
Advertising; Expenditures -Use of Local
Government Funds.
§ 106.113, Florida Statutes.
Dear Chairman Johnson, Mr. Crane, and Mr. Garling:
This letter responds to a request for an advisory opinion your attorney submitted on your behalf
regarding your activities on the Pinellas Suncoast Transit Authority (PSTA). Because you have
questions relating to the propriety of political activities you may take under Florida's Election
Code, the Division of Elections has authority to issue you an opinion pursuant to section
106.23(2), Florida Statutes (2009).
Your attorney states that the PSTA is an independent special district, a political subdivision of
the state, and is governed by a IS-member board of directors appointed by Pinellas County and
the 24 cities located in the county. The special law creating the PSTA requires 13 members to be
elected officials with the remaining two being non-elected officials. Your attorney further relates
that Mr. Crane is one of the non-elected members on PSTA 's board of directors, Mr. Garling is
the PSTA's Executive Director, and Mayor Johnson, the elected mayor ofIndian Rocks Beach,
is the Chairman of PSTA's board of directors. Your attorney poses several questions regarding
section 106.113, Florida Statutes (2009), as applied to your positions with the PSTA. Section
106.113 provides:
106.113 Expenditures by local governments.-
(1) As used in this section, the term:
(a) "Local government" means:
1. A county, municipality, school district, or other political subdivision in this
R. A. Gray Building • 500 South Bronough Street • Tallahassee, Florida 32399-0250
Telephone: (850) 245-6536 • Facsimile: (850) 245-6128
www.dos.state.fl.us
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Packet Pg. 283 Attachment: DE-10-06 (5179 : Infrastructure Surtax Ordinance and Ballot Language)
Honorable R. B. Johnson, Chairman
Don Crane, Member of Board of Directors
Tim Garling, Executive Director
June 14,2010
Page 2 of7
state; and
2. Any department, agency, board, bureau, district, commISSIOn, authority, or
similar body of a county, municipality, school district, or other political
subdivision of this state.
(b) "Public funds" means all moneys under the jurisdiction or control of the local
government.
(2) A local government or a person acting on behalf of local government may not
expend or authorize the expenditure of, and a person or group may not accept,
public funds for a political advertisement or electioneering communication
concerning an issue, referendum, or amendment, including any state question, that
is subject to a vote of the electors. This subsection does not apply to an
electioneering communication from a local government or a person acting on
behalf of a local government which is limited to factual information.
(3) With the exception of the prohibitions specified in subsection (2), this section
does not preclude an elected official of the local government from expressing an
opinion on any issue at any time.
Before addressing your questions, we emphasize that our authority is limited to interpreting
chapters 97 through 106, Florida Statutes, entitled "The Florida Election Code." We have no
authority to interpret laws regarding the Code of Ethics for Public Officers and Employees or
other matters outside our jurisdiction. Therefore, our conclusion that a proposed activity may not
violate the Election Code (e.g., use of the PSTA photocopier in expressing an opinion about an
issue) does not address whether the activity is permissible under other laws or regulations that
may otherwise govern your conduct. I
We further note that the answers to your questions primarily rest upon application of relevant
definitions in chapter 106, Florida Statutes, to your factual situations. Section 106.113, Florida
Statutes (2009), prohibits the PSTA (a "local government") or a person acting on its behalf from
expending or authorizing the expenditure of "public funds" for a "political advertisement"
(defined in s. 106.011 (17), Florida Statutes (2009)) or an "electioneering communication,,2
1 For example, section 1l0.233(4)(b), Florida Statutes (2009), prohibits employees in the career
service from using the authority of their positions to secure support for or oppose any issue in a
partisan election. Local governments may have imposed a similar provision on their employees;
therefore, local government officials or persons acting on behalf of local government must be
aware of any local laws or regulations concerning restrictions on an employee's political
activities.
2 Effective May 28, 2010, the definition of "electioneering communication" applies only to
certain communications about candidates. The definition does not apply to communications
about issues. Ch. 2010-167, § 19, at 18, Laws of Fla. Furthermore, the communication is limited
to those that are publicly distributed by a television station, radio station, cable television system,
satellite system, newspaper, magazine, direct mail, or telephone that refers to or depicts a clearly
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Packet Pg. 284 Attachment: DE-10-06 (5179 : Infrastructure Surtax Ordinance and Ballot Language)
Honorable R. B. Johnson, Chairman
Don Crane, Member of Board of Directors
Tim Garling, Executive Director
June 14,2010
Page 3 of7
(defined in s. 106.011(18), Florida Statutes), that concerns an "issue.,,3 A "political
advertisement" requires a "paid expression" in a "communications media" as defined by section
106.011(13), Florida Statutes (2009). Also, a "political advertisement" excludes any expression
that is by "the spoken word in direct conversation." §§ 106.011(17), Fla. Stat. (2009). Based on
the definitions of "political advertisement" and "electioneering communication," if the opinion is
stated in direct conversation, no violation of section 106.113, Florida Statutes (2009), occurs.
The bottom-line answer to most of your questions is: The activities at issue are only prohibited
if they satisfy the definitions of the terms in section 106.113(2), Florida Statutes.
We first address the five questions asked by your attorney that relate to all three of your positions
on the PSTA.
(1) Does section 106.113 prohibit you from expressing an opinion on any issue or referendum at
any time?
Section 106.113(3) expressly permits an elected official (e.g., Chairman Johnson) to express an
opinion on any issue at any time subject to the limitations of subsection (2). We interpret
subsection (3) as an affirmation that elected officials have a right to say which course of action
they think best on any issue and to use their offices for that purpose.4 This express statutory
affirmation for elected officials does not preclude other persons acting on behalf of local
government from expressing any opinion at any time if the statement of the opinion does not
violate the prohibition contained in section 106.113(2), Florida Statutes (2009), regarding
political advertisements and is not contrary to other laws or regulations governing the conduct of
such persons. Because the definition of "electioneering communication" now only applies to
candidates and not issues, that portion of the section 106.113 containing a prohibition on any
activity that relates to an "electioneering communication concerning an issue, referendum, or
identified candidate for office without expressly advocating the election of defeat of a candidate,
but which is susceptible of no reasonable interpretation other than an appeal to vote for or against
a specific candidate. The communication must be made within 30 days before a primary or
special primary election or 60 days before any other election for the office sought by the
candidate and be targeted to the relevant electorate in the geographic area the candidate would
represent if elected. ld.
3 The definition of "issue" in s. 106.011 (7), Florida Statutes (2009), encompasses the other terms
listed in section 106.113(2), that is, "referendum, or amendment, including any state question,
that is subject to the vote of the electors."
4 See Bill Analysis and Fiscal Impact Statement, Senate Ethics and Elections Committee, SB 216
(March 12, 2009) at 4 (creating section 106.113, Florida Statutes (2009)), quoting People
Against Tax Revenue Mismanagement, Inc. v. County ofLeon, 583 So. 2d 1373, 1375 (Fla. 1991)
("Leaders have both a duty and a right to say which course of action they think best, and to make
fair use of their offices for that purpose. The people elect governmental leaders precisely for this
purpose.").
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Packet Pg. 285 Attachment: DE-10-06 (5179 : Infrastructure Surtax Ordinance and Ballot Language)
Honorable R. B. Johnson, Chairman
Don Crane, Member of Board of Directors
Tim Garling, Executive Director
June 14,2010
Page 4 of7
amendment, including any state question, that IS subject to the vote of the electors" IS
superfluous and meaningless. 5
(2) If you are being interviewed by the media about your opinion on an issue or referendum,
would you violate section 106.113 if you provided your opinion?
Unless the PSTA or person acting on behalf of local government paid for the media to be present
or otherwise provided remuneration to the media, answering questions from the media would not
constitute a "paid expression" and therefore would not constitute a "political advertisement."
Also, because "electioneering communication" does not include communications about an issue,
no violation of section 106.113 occurs by answering media questions about your opinion on
issues or referenda.
(3) Can you provide factual information from PSTA to entities expressing an opinion on any
issue or referendum?
The definition of "political advertisement" requires a paid expression conslstmg of express
advocacy, so providing factual information without expressing a position in support or
opposition to the issue would not be a "political advertisement." Again, the definition of
"electioneering communication" does not include communications about an issue, so section
106.113, Florida Statutes (2009), is not violated by expending public funds on communications
consisting only of factual information.
(4) What kind of factual information can you provide --does it include declaratory statements
that could be construed as an opinion, such as: "The new tax will improve public transportation
in Pinellas County?"
The term, "factual information" is not defined in section 106.113(2), Florida Statutes (2009);
however, the ordinary dictionary meaning of "factual" is "restricted to or based on fact.,,6 "Fact"
is commonly defined as "a thing done; the quality of being actual; something that has actual
existence; a piece of information as having· objective reality.,,7 The ordinarl meaning of
"information" is "knowledge obtained from investigation, study, or instruction." Based upon
these definitions, we interpret the statute to limit your expressions of "factual information" to
verifiable actualities, such as: "The new tax will permit the county to purchase 25 buses at a cost
of $100,000 each" and not include any kind of subjective, qualitative statement or comment that
"The tax will improve public transportation." Even if 25 buses were purchased, additional
5 This result sterns from the newer definition of "electioneering communication" being inserted
into law in May 2010 and it being the latest expression of legislative intent regarding what
constitutes an electioneering communication.
6 Merriam-Webster Online Dictionary.
7 Id.
8 Id.
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Packet Pg. 286 Attachment: DE-10-06 (5179 : Infrastructure Surtax Ordinance and Ballot Language)
Honorable R. B. Johnson, Chairman
Don Crane, Member of Board of Directors
Tim Garling, Executive Director
June 14,2010
Page 5 of7
criteria would determine whether the additional buses will actually Improve public
transportation.
(5) If you are using a PSTA photocopier, are you prohibited from making copies that might
contain an opinion about an issue or referendum?
Section 106.113, Florida Statutes (2009), is violated only if the document(s) photocopied
satisfies the definitions of a "political advertisement" or "electioneering communication."
Next, we address a question asked about the possible common activities of Mr. Garling, the non
elected PSTA Executive Director, and Mr. Johnson, the elected Chairman, PSTA.
(6) IfMr. Garling and Mr. Johnson are using a telephone provided by PSTA, are they prohibited
from expressing an opinion about an issue or referendum?
The definition of "communications media," includes the following: "but with respect to
telephones, an expenditure shall be deemed to be an expenditure for the use of communications
media only if made for the costs of telephones, paid telephonists, or automatic telephone
equipment to be used by a candidate or a political committee to communicate with potential
voters but excluding any costs of telephones incurred by a volunteer for use of telephones by
such volunteer." § 106.011(13), Fla. Stat. (2009). The use of PSTA's ordinary business
telephones (cellular or landline) by either Mr. Garling or Mr. Johnson would not be a paid
expression in a communications media; therefore, section 106.113 would not prohibit their use of
PSTA's telephones to express their opinions about issues.
We next address the following questions asked only about the possible activities ofMr. Garling,
the non-elected PSTA Executive Director.
(7) If Mr. Garling is using a computer provided by PSTA, is he prohibited from expressing an
opinion about an issue or referendum?
Use of the PSTA's computer would be improper only if what Mr. Garling does on the computer
falls within the statutory prohibition in section 106.113(2), Florida Statutes (2009) (e.g., making
flyers that constitute a "political advertisement" or "electioneering communication"). If Mr.
Garling's use of the computer involves expressing an opinion on the Internet, he should be aware
of the definition of "communications media" as it pertains to the Internet: "with respect to the
Internet, an expenditure shall be deemed an expenditure for use of communications media only if
made for the cost of creating or disseminating a message on a computer information system
accessible by more than one person but excluding internal communications of a campaign or of
any group." § 106.011(13), Fla. Stat. (2009). We interpret the "cost of creating or
disseminating" an Internet message as being a direct cost, for example, paying someone to create
an Internet website on which to post the message or paying for a domain name or an email
distribution list to disseminate the message. The Internet service provider fees one pays for
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Packet Pg. 287 Attachment: DE-10-06 (5179 : Infrastructure Surtax Ordinance and Ballot Language)
Honorable R. B. Johnson, Chairman
Don Crane, Member of Board of Directors
Tim Garling, Executive Director
June 14,2010
Page 6 of7
Internet service already in existence before dissemination of the message would not satisfy the
definition.
(8) If Mr. Garling has a vehicle or car allowance provided by PSTA, is he prohibited from using
the car to attend a speaking event where he may express an opinion about an issue or
referendum?
First, if Mr. Garling is not the speaker at the event and merely engages in direct conversation
with other attendees about an issue or referendum, his conversation is expressly excluded from
the definitions of a "political advertisement" and "electioneering communication." §§
106.011 (17) and (18), Fla. Stat. (2009). Even if Mr. Garling is the speaker at the event, we
reiterate that the prohibition on the use of public funds in section 106.113, Florida Statutes
(2009) only pertains to a "political advertisement" and an "electioneering communication." The
political advertisement must be made in a "communications media," which means "broadcasting
stations, newspapers, magazines, outdoor advertising facilities, printers, direct mail, advertising
agencies, the Internet, and telephone companies." § 106.011(13), Fla. Stat. (2009). Making
comments as the speaker at a civic club, for example, would not normally satisfy the definition
of being made in a "communications media." Also, the definition of "electioneering
communication" would not cover communications about issues or referenda.
(9) Is Mr. Garling prohibited from providing factual information or his opmlOn to Board
members who intend to use the information to make a presentation to others regarding an issue
or referendum?
Mr. Garling would be prohibited from providing factual information or his opinion to board
members only if his factual information or opinion involved the authorization or expenditure of
public funds and constituted a "political advertisement" or "electioneering communication" as
set forth in section 106.113(2), Florida Statutes (2009). When the Executive Director provides
any information to the board members, the board members themselves must thereafter avoid
violating section 106.113(2) in making any subsequent presentation.
Finally, we address the question asked by your attorney concerning Chairman Johnson, an
elected official, and Mr. Crane, a non-elected board member.
(l0) Can they use copies made using a photocopier at PSTA to hand out as part of a presentation
they make about an issue or referendum?
Using a photocopier purchased or leased by PSTA would constitute the use of "public funds;"
however, a violation of section 106.113, Florida Statutes (2009), would only occur if the
documents or presentation satisfy the definitions of a "political advertisement" or an
"electioneering communication."
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Packet Pg. 288 Attachment: DE-10-06 (5179 : Infrastructure Surtax Ordinance and Ballot Language)
Honorable R. B. Johnson, Chairman
Don Crane, Member of Board of Directors
Tim Garling, Executive Director
June 14,2010
Page 70f7
SUMMARY
Section 106.113(2), Florida Statutes (2009), prohibits a "local government or a person acting on
behalf of local government" from expending or authorizing the expenditure of public funds for a
"political advertisement" or an "electioneering communication" that concerns an "issue." The
key to interpreting this statutory prohibition is the application of the definitions in chapter 106,
Florida Statutes. Because the Legislature changed the definition of an "electioneering
communication" in 2010 to include communications only about candidates, the use of
"electioneering communication" in section 106.113 "concerning an issue, referendum, or
amendment" is meaningless. Section 106.113, Florida Statutes (2009), is not violated for an
expenditure of public funds if the communication only provides factual information. Factual
information means verifiable actualities, not subjective, qualitative statements or comments.
Unless the prohibitions in section 106.113(2) are applicable, an elected official of local
government may express an opinion on any issue at any time. A non-elected local government
official or any other person who is acting on behalf of local government may do likewise ifhe or
she does not violate the prohibitions in section 106.113(2) and if not otherwise prohibited by
laws or regulations outside Florida's Election Code. No violation of section 106.113, Florida
Statutes (2009), occurs if an opinion about an issue or referendum is stated in direct
conversation.
Donald 1. Palmer
Director, Division of Elections
cc: Alan S. Zimmet, Esq.
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Packet Pg. 289 Attachment: DE-10-06 (5179 : Infrastructure Surtax Ordinance and Ballot Language)