Agenda 07/09/2024 Item #16F5 (Authorize Budget Amendments to align the Conservation Collier Budgets to facilitate the partial transfer of funds from Conservation Collier Acquisition Fund and the Conservation Collier Collier Management Fund)07/09/2024
EXECUTIVE SUMMARY
Recommendation to authorize Budget Amendments to align the Conservation Collier Budgets to facilitate
the partial transfer of funds from Conservation Collier Acquisition Fund and the Conservation Collier
Management Fund to the General Fund in a total amount $29,619,397.
OBJECTIVE: To facilitate the transfer of funding totaling $29,619,397 from Conservation Collier Acquisition
Trust Fund and the Conservation Collier Management Fund to the General Fund.
CONSIDERATIONS: The Conservation Collier Program enabling Ordinance was adopted in 2002 by the Board
of County Commissioners. The primary objective of the Program is to "acquire, preserve, restore, and maintain
vital and significant threatened natural lands, forest, upland and wetland communities located in Collier County,
for the benefit of present and future generations." The Ordinance created two Trust Funds.
The first Trust Fund is the Conservation Collier Acquisition Trust Fund for the acquisition of environmentally
sensitive lands. The second Trust Fund is the Conservation Collier Management Trust Fund that is largely
intended for the preservation, enhancement, restoration, conservation and maintenance of enviromnentally
sensitive lands that have been purchased with monies from the Lands Acquisition Trust Fund. The Ordinance
contemplates that the Board of County Commissioners can transfer moneys between the two funds.
At the Board's September 21-22, 2023 final FY 2024 Budget Hearing, the Board approved a $60,911,358
reduction in taxes from the proposed millage neutral budget. As part of the strategy to achieve rolled back millage
rates for the coming year transfers of funds within the Conservation Collier Acquisition Trust Fund and the
Conservation Collier Management Trust Fund were established. The budgeted transfers from the two trust funds
total $53,522,300 as depicted in the table below.
Fund
General Fund
001/0001
Water Pollution
Control 114/1017
Unincorporated
Area General
Fund 111/1011
Total
Conservation Collier Acquisition 172/1061
8,560,600
6,416,300
14,976,900
,Conservation Collier Management 174/1062
38,150,200
395,200
38545400
ITotal Transfers
46,710,800
395,200
On October 10, 2023, the Board approved an amendment to the Ordinance allowing for the use of the
Conservation Collier Acquisition and Management Trust Funds for any County Purpose deemed to be in the best
interest of the public.
On March 26, 2024, the Board approved a subsequent amendment to the Ordinance deleting the provision added
by the October 10, 2023, amendment, and adding language allowing for withdrawal of funds from the
Conservation Collier Acquisition and Management trust funds in the event of an emergency as determined by the
Board of County Commissioners, provided all such funds shall be replaced as soon as practicable.
Per a draft memo dated April 12, 2024, written by Clerk of Courts legal counsel:
• Ad valorem tax revenue received pursuant to the Ordinance prior to October 10, 2023, can only be
disbursed per the Ordinance prior to that date.
• Ad valorem tax revenue received pursuant to the Ordinance between October 10, 2023 and March 26,
2024 can be transferred.
Ad valorem tax revenue received after March 26, 2024, can be disbursed in the event of an emergency
provided they are paid back as soon as practicable.
To facilitate the transfer of these funds budget amendments will be required.
I Packet Pg. 833
07/09/2024
FISCAL IMPACT: The total amount of ad valorem revenue collected between October 10, 2023 and March 26,
2024 is $29,619,397. The tables below depict the adopted and anticipated transfers along with the variance by fund.
Pdopted Transfers
Fund
GeneralFund0001 WaterFbI1L#ionCbntrof10I7 UnincorporatedA-ea
General 1011
Totaf
(bnservation 0:)IlierA-,quistion 1061
$
8,560,600 $
6,416,300
$ 14,976,900
O)nser\rati on CA I i er Wnagernent 1062
$
38,150,200 $ 395,200
$ 38,545,400
Total Adopted Transfers
$
46,710,800 $ 395,200 $
6,416,300
$ 53,522,300
Antici pated Transfers
Fund
Generaf Fund 0001 Water FbIlutimi Control 1017 Lkiincorporated*ea
General 1011
Totaf
Conservation WlierPcquistion 1061
$
28,895,865
$ 28,895,865
O)nser\rati on OA I i er k1anagement 1062
$
723,532
$ 723,532
Total %Ased Transfers
$
29,619,397 $ - $
-
$ 29,619,397
General Fund 0001 Water FbIlLdion Controf 1017 UnincorporatedAlrea
General 1011
Totaf
Variance
$
(17,091,403) $ (395,200) $
(6,416,300) $
(23,9OZ903)
Budget Amendments totaling $20,335,265 are required to realign FY 2024 budgeted transfers to facilitate the
disbursement of the funds from Conservation Collier Acquisition Fund (1061) and Conservation Collier
Management Fund (1062) to General Fund (0001). Revenue shortfalls resulting from the reduction in the
anticipated transfers have been accounted for as part of the FY 2025 budget process.
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to form and
legality and requires majority vote for approval. -JAK
GROWTH MANAGEMENT IMPACT: None.
RECOMMENDATION: That the Board authorize Budget Amendments to align the Conservation Collier
Budgets to facilitate the partial transfer of funds from Conservation Collier Acquisition Fund and the Conservation
Collier Management Fund to the General Fund in a total amount $29,619,397.
Prepared by: Christopher Johnson - Director of Corporate Financial and Management Services.
ATTACHMENT(S)
1. Clerk Conservation Collier Transfer - Memo 4-12-24 (PDF)
I Packet Pg. 834
07/09/2024
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.F.5
Doe ID: 29315
Item Summary: Recommendation to authorize Budget Amendments to align the Conservation Collier Budgets to
facilitate the partial transfer of funds from Conservation Collier Acquisition Fund and the Conservation Collier
Management Fund to the General Fund in a total amount $29,619,397.
Meeting Date: 07/09/2024
Prepared by:
Title: — Office of Management and Budget
Name: Debra Windsor
06/26/2024 3:11 PM
Submitted by:
Title: Accountant, Senior — Office of Management and Budget
Name: Christopher Johnson
06/26/2024 3:11 PM
Approved By:
Review:
Office of Management and Budget
Office of Management and Budget
County Attorney's Office
Office of Management and Budget
County Manager's Office
Board of County Commissioners
Debra Windsor Level 3 OMB Gatekeeper Review
Laura Zautcke OMB Reviewer
Jeffrey A. Klatzkow Level 3 County Attorney's Office Review
Christopher Johnson OMB Reviewer
Ed Finn Level 4 County Manager Review
Geoffrey Willig Meeting Pending
Completed
06/26/2024 3:14 PM
Completed
06/27/2024 2:07 PM
Completed
07/01/2024 9:13 AM
Completed
07/01/2024 10:07 AM
Completed
07/02/2024 4:59 PM
07/09/2024 9:00 AM
I Packet Pg. 835 1
Crystal K. Kinzel
Collier County
Clerk of the Circuit Court and Comptroller
3315 Tamiami Trail East, Suite 102
Naples, Florida 34112-5324
CONSERVATION COLLIER
BACKGROUND
The electorate of Collier County on November 5, 2002, authorized
Collier County to levy an additional ad valorem tax not exceeding .25 mil for
up to ten (10) years, and authorized Collier County to issue up to $75 million
dollars worth of limited tax general obligation bonds payable fi-om the
additional ad valorem tax proceeds. The authorized bonds and revenue were
to be used to finance the acquisition and management of environmentally
sensitive lands, wildlife habitat and public open space in perpetuity for
put -poses of the Conservation Collier Program.
At a public hearing on January 28, 2020, the County Commissioners
determined that it would be in the best interests of the Conservation Collier
Program and the public to determine whether the electorate wanted to
continue the levy for the Conservation Collier Prograrn for an additional ten
(10) years.
A "referendum election" was ordered to be held on November 3, 2020, for
the purpose of the electors deteiming whether to establish the levy for ten (10)
years. The resolution, No. 2020-22, noted that the ballot is in the nature of a
"straw" ballot to understand the desires of the electorate, and that the County
had the legal right to continue or discontinue the levy regardless of the vote.
The electorate approved the extension of the Conservation Collier Program ad
valorem tax not exceeding .25 mil for the ten (10) years.
The Conservation Collier Implementation Ordinance, Ord. No. 02-63,
Code of Ordinances Chapter 54, Article IX, remained as previously enacted
and amended. Sect. 54-276, of that Ordinance created "The Conservation
Collier Acquisition Trust Fund."
This "Acquisition Trust Fund" "shall be maintained in a separate and
segregated trust fund of the County to be used solely for the authorized
purposes set forth herein." The Ordinance goes on to specify thirteen (13)
purposes related to acquisition for which the Trust Fund could be utilized.
I Packet Pg. 836
See. 54-277 creates "The Conservation Collier Management Trust Fund"
which "shall be maintained in a separate and segregated trust ftind to be used
solely for the authorized purposes set forth herein."
Contrary to the provisions of the Trust Funds established by the
Implementation Ordinance, the Board of County Commissioners at their
September 21-22, 2023, Final FY 2024 Budget Hearing, approved a transfer
of $53,522,300 from the Conservation Collier Acquisition Trust Fund and
Management Trust Fund. These transfers were intended to offset a portion of
the Board's rolled back millage rates for FY 2024.
In the opinion of the County Attorney, the Board of County
Commissioners had the implicit ability to do this as part of the "Board's broad
budget powers." An amendment to the Implementation Ordinance "simply
makes it an explicit power" according to the County Attorney.
Ordinance 2023 - 47 enacted on October 10, 2023, amended the
Conservation Collier Implementation Ordinance so that the Acquisition Trust
Fund and Management Trust Fund could be used solely for the authorized
purposes set forth herein and for any other County purpose deemed to be in
the best interest of the public by majority note of the Board of County
Commissioners.
This amended language remained in the Implementation Ordinance until
March 26, 2024, when the Ordinance was again amended.
This most recent amendment deleted the provisions that were added by the
October 10, 2023 amendments, which allowed the use of the Acquisition and
Management Trust Funds "for any other County purpose deemed to be in the
best interest of the public by majority vote of the Board of County
Commissioners."
Section Six was amended in part to allow the Board to transfer ffinds
between the Acquisition and Management Trust Funds, and "In the event of
emergency as determined by the Board of County Commissioners, funds may
be withdrawn provided all such diverted funds shall be replaced as soon as
practicable."
ISSUE: Does The Conservation Collier Implementation Ordinance
Allow For The Transfer of $53,522,300 from the Conservation Collier
funds 1061 and 1062 to the General Fund, Unincorporated Area General
Fund, and the Pollution Control Fund?
2 1 Packet Pg. 837
CONCLUSION: Only those funds collected between October 10, 2023
and March 26, 2024 may be transferred from the Conservation Collier
Funds.
First: The E.vpress Terins of the Conservation Collier Implementation
Ordinance (CCIO) Precludes Ittiplied Budget Power of Board.
The CCIO from its enactment until October 10, 2023 expressly provided
that disbursement from the Acquisition Trust Fund shall be made solely for
the acquisition of properties approved by the Board and costs associated with
that property acquisition. See. 54-276 (3)
During that same period of time the CCIO expressly limited the
Management Trust Fund to the preservation, enhancement, restoration,
conservation and maintenance of lands acquired by Conservation Collier. See.
54-277.
These express limitations of disbursements from the Acquisition or
Management Trust Funds preclude any implication that the Board may seek
disbursement for an unexpressed purpose. The meaning or intent of the CCIO
must be discerned solely by reference to the Ordinance. Gomez v. Village o
Pinecrest, 41 So. 3d 1805 185 (Fla. 2010). In Castellano v. Halpern, 2023 WL
900698% the Second District Court of Appeals stated that "We are precluded
from construing an unambiguous Statute in a way which would extend,
modify or limit its express terms or its reasonable and obvious implications.
Halpern, emphasis in original, citing Lawnwood Med. Ctr. v. Sadow., 43 So.
3d 710, 721 (Fla. 4"' DCA 20 10).
When authority and powers with reference to particular
subjects are expressly conferred in specific terms, other
authority and powers that in their nature or extent would
materially increase or be inconsistent with the powers that are
expressly given in specific and limited terms are not to be
implied.
Malone v. Ci!y of Quincy, 66 Fla. 52, 58, 62 So. 922 (Fla. 1913)
Accordingly, the board of County Commissioners were limited to
disbursing the Acquisition and Management Fund solely for the acquisition
and management of Conservation Collier lands.
3 1 Packet Pg.��8771
Secon(l. Conseriyation Collier Funds Are Trust Funtis
A. EYpress Trust
The CCIO expressly makes the ad valorem funds collected pursuant to the
Ordinances, "Trust Funds". The Ordinance provides that Collier County
"shall establish the Conservation Collier Acquisition Trust Funds." Sec. 54-
276. The Ordinance goes on to provide that the Acquisition Trust Fund "shall
be maintained in a separate and segregated trust fund of the County only to be
used for the authorized purposes set forth herein."
Sec. 54-276 (2).
Disbursements from the Acquisition Trust Fund shall be made only for
acquisition of properties and costs associated with that acquisition See. 54-
276(3)
Similarly, the CCIO creates a Management Trust Fund, and requires that
"trust fund shall be maintained in a separate and segregated trust ffind of the
County's to be used solely for "management of the acquired lands.
Sec 54-277
Accordingly, the funds received under the CCIO are unambiguously trust
funds as intended and established by the Board of County Commissioners.
The Board is bound by the express trusts they created and imposed upon the
Conservation Collier acquisition and management funds.
B. By 0
percition ofLaiv
Florida's decisional law makes clear that tax revenue exacted for a specific
purpose is a trust fund in the hands of the legal custodians of it. Oven v.
Ausle , 106 Fla. 455, 143 So. 588 (Fla. 1932).
The Florida Supreme Court has held that:
It is a violation of an elemental principle in the administration
of public funds for those who are charged with the trust of their
proper expenditure not to apply such funds to the purposes for
which they are raised. When funds are raised by taxation for
one purpose they cannot be diverted to some other purpose
without legislative authority.
Oven, at 589
The Florida Supreme Court in Supreme Forest Woodmen Circle
v. Hobe Sound Co., 138 Fla. 141, 189 So. 249 (Fla. 1939) stated that:
4 1 Packet Pg. 839
"It is a violation of official duty in handling public funds for those
charged by law with the lawful payment thereof to divert the funds
to a purpose contrary to that for which they were raised." Hobe
Sound, at 143-144, citing Oven v. AqL]eA.
Multiple Florida Attorney General Opinions confirm this
precedent. In AGO 86-39 the inquiry was whether tile City of Palm
Bay was permitted to utilize those excess Rinds raised by referendum
for a purpose other than for financing the acquisition and
construction of a "Sport Complex."
Quoting the Florida Supreme Court opinion in Oven v. Au�le the
Attorney General was of the opinion that surplus moneys realized from the
referendum for a stated purpose cannot be diverted to some other purpose in
the absence of another referendum approving such expenditure. AGO 86-39,
1986 WL 219727
The Florida Attorney General was asked to render an opinion on whether
the City of Hialeah Gardens were permitted to borrow monies from a
construction account to provide additional operating funds for the city. AGO
91-945 1991 WL 528214. The construction account was a "special and
separate" account into which water and sewer system connection charges
were deposited pursuant to the city's impact fee ordinance.
The Attorney General was of the opinion that the City of Hialeah Gardens
may not borrow monies from a special and segregated impact fee construction
account which has been established by ordinance with the requirement for
such fees by Florida Case Law.
2
0
5 1 Packet Pg.��0771
EFFECT OF AMENDMENTS
In accordance with the express language of the CCIO and well as Florida
case law, that ad valorem tax revenue received pursuant to the Ordinance prior
to October 10, 2023 were trust funds which can be disbursed only for the
purposes set forth in the Ordinance prior to that date. Ad valorem tax revenue
received pursuant to the Ordinance between October 10, 2023 and March 26,
2024 can be disbursed for any purpose deemed in the best interest of the public
by the Board. Funds received subsequent to March 26, 2024 cannot be
disbursed for any purpose deemed in the best interest of the public. Funds
received after that date may be solely disbursed for acquisition and
maintenance purposes of Conservation Collier Lands, or "in the event of
emergency" as determined by the Board, "provided that these diverted ftinds
are replaced as soon as practicable."
April 12, 2024 Thomas W. Franchino, Legal Counsel
Legal Counsel
(I
I Packet Pg. 841