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BCC Minutes 09/29/2009 Closed Session (#12C-Brock) MINUTES Brock September 29 , 2009 I • .,. ' • VN • N IN THE CIRCUIT COURT OF THE TWENTIETH JUDICAL CIRCUIT IN ANDRR COLLIER COUNTY,FLORIDA CIVIL ACTION ro x. DWIGHT E.BROCK,CLERK OF CIRCUIT m A9 COURT OF COLLIER COUNTY,FLORIDA, 14 IA r Plaintiff co V Case No.04441-CA Consolidated with Case Na:05-953-CA,and Case No.05-1506-CA COLLIER COUNTY,FLORIDA,a political I won of the State ofFlorida,BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY,FLORIDA,AS EX-OFFICIO THE GOVERNING BOARD OF THE OCHOPEE ; AREA FIRE CONTROL AND EMERGENCY ,74 iV P MEDICAL CARE SPECIAL TAXING P '" DISTRICT,A/IVA/THE OCHOPEE FIRE 7,c , g DISTRICT,a erg "_ Municipal Services T Unit r, � '� pursuant to Section 125.01(1)(g),F.S.; '' cn �r LINDA T.SWISHER o 7<q and PAUL W.WILSON, H 4 o a Q N Defendants. " UI• o-4 s FINAL JUDGMENT IN CONFORMANCE WITH APPELLATE DECISION AND MANDATe THIS MATTER having come before the Court on the Plaintiffs Motion to Conform Judgment to Appellate Decision; the Court having considered the Motion and the mutual agreement of the patties and being otherwise duly apprised in the premises; hereby GRANTS the Plaintiff's Motion. Based upon the Appellate Mandate, and to enforce the mandate as directed by the Second District Court of Appeal, and not to vary it or allow acts at odds with it, it is further ORDERED AND ADJUDGED as follows: 1. The Clerk's Motion for Partial Summary Judgment filed August 1, 2007 and . II I • • • previously denied by the Trial Court is hereby GRANTED in conformance with and for the reasons set forth in the Opinion of the Second District Court of Appeal in Brock v.•Board of County Commissioners of Collier County,dated September 23,2009,found at 21 So.3d 844(Fla. 2ND DCA 2009). 2. Collier Calmly's Cross Motion Bcr Summary Judgment as to the Clerk's Declaratory Judgment Count Sled August 2, 2007 and previously gnmted by the Trial Court is hereby DENIED in conformance with and for the renew set forth in the Opinion of the Second District Court of Appeal in Brock v. Board of County Commissioners of Collier County, dated September 23,2009,found at 21 So.3d 844(Fla.2ND DCA 2009). 3. Collier County's Motion for Summary Judgment as to Cash Number 05-953-CA And The Issuance of a Writ In Quo Warranto filed June 11, 2007 and previously granted by the Trial Court is hereby DENIED in past and GRANTED in pact, in conformance with and for the reasons set forth in the Opinion of the Second District Court of Appeal in Brock v, Board of County Commissioners of Collier County, dated September 23, 2009, found at 21 So3d 844 (Fla.2ND DCA 2009). Specifically,only the Trial Court's ruling regarding the source of the Clerk's authority to prepare financial stalemate,and the discretion of the Board of County Commissioners to mod*the scope of its delegation of that authority,is upheld. It at 846. 4. Collier County's Cross Motion for Summary Judgment On The Undisputed Role of the Clerk of Courts filed August 2,2007(which also incorporated"Collier County's Cross-Motion For Summary Judgment as to the Clerk's Declaratory Relief Count" filed with the court on August 2, 2007)and previously granted by the Trial Court is hereby DENIED in part and GRANTED in part, in conformance with and for the reasons set forth in the Opinion of the Second District Court of Appeal in Brock v. Board of County Commissioners of Collier County. dated September 23,2009, found at 21 So3d 844(Fla.2M)DCA 2009). Specifically,only the Trial Court's ruling regarding the source of the Clerk's authority to prepare financial statements,and the discretion of the Board of County Commissioners to modify the scope of its delegation of that authority,is upheld kL 2 • at 846. Based upon the foregoing, the Sumnmry Final Judgment Orders referred to herein are modified as noted, and, as modified, are entered as Final Judgments on the claims presented. DONE AND ORDERED this 1 day of U @ ' ,2011. ��J L Honorable/Michael T.Mck igh CIRCUIT COURT JUDGE Conformed Copies to: • 1. Anthony P. Fires, Jr. Esquire Woodward,Fires&Lombardo,PA. 3200 Tamiami Trail N.,Suite 200 " Naples,Florida 34103 ,\t` / v/ 2. Yale T.Freeman,P.A. • ((t 2325 Stanford Court Naples,FL 34112 /3. David P. Ackerman, Esq. Ackerman,Link,and Sartory,P.A. 222 Lakeview Ave,Suite 1250—Esperanto West Palm Beach,FL 33401 ✓4, Theodore Tripp,Esq. Hahn Loeser&Parks LLP 2532 East First Street Fort Myers,FL 33901 2. Jacqueline Williams Hubbard, Esq. Collier County Attorney's Office 3299 E. Tamiami Trail, Suite 800 Naples,FL 34112 3 • uprente Court otjftortba ,71,,- t; .z., ...0,... Ct1' ;2..... . co c.,. No SC09-2190 `. 1�. BOARD OF COUNTY COMMISSIONERS OF COLLIER CO , FLORIDA,etc., I. Petitioner, vs. DWIGHT E.BROCK,etc., Respondent. [November 10,2010] PER CURIAM. We initially accepted jurisdiction to review Brock v. Board of County Commissioners of Collier County,21 So. 3d 844 (Fla.2d DCA 2009),reyie 26 So. 3d 581 (Fla. 2010)(table),on the basis that the district court's decision expressly affected a class of constitutional or state officers. After er, full consideration,we have determined that we should exercise our discretio and discharge jurisdiction. Accordingly, this case is dismissed. It is so ordered. 1 PARIENTE, LEWIS, POLSTON,LABARGA, and PERRY, II., concur. QUINCE,J., dissents. CANADY,C.J., recused. I NO MOTION FOR REHEARING WILL BE ALLOWED. , Application for Review of the Decision of the District Court of Appeal—Class of Constitutional Officers Second District- Case No. 2D07-4549 (Collier County) Jacqueline Williams Hubbard,Litigation Section Chief, Office of the County Attorney,Naples,Florida, and Christine David Graves of Carlton Fields,P.A., Tallahassee,Florida, for Petitioners David P.Ackerman and Richard J. Brener of Ackerman Link and Sartory,P.A., West Palm Beach,Florida,Anthony P.Piers,Jr. and Steven.V. B:ounl of Woodward,Pires and Lombardo,P.A.,Naples, Florida, Jon L. Mills and Timothy McLendon,Gainesville,Florida,and Larry A. Klein of Holland and Knight, West Palm Beach,Florida, for Respondents David Hallman, President, Yulee,Florida,Virginia Delegal, General Counsel, Tallahassee,Florida,Herbert W.A. Thiele and Patrick T. Kinni,Tallahassee, Florida, on behalf of the Florida Association of County Attorneys, Inc.; and Fred W. Baggett and M.Hope Keating of Greenberg Traurig,P.A.,Tallahassee, on behalf of the Florida Association of Court Clerks, Inc., As Amici Curiae -2- IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA SECOND DISTRICT, POST OFFICE BOX 327, LAKELAND, FL 33802-0327 November 13,2009 CASE NO.:2D07.4649 L.T. No.: 04-0941-CA Dwight E.Brock,Collier v. Board Of County County Clerk Circuit Ct. Commissioners, Et AL Appellant/Pet loner(s), _ Appellee/Responds (e). BY ORDER OF THE COURT: Appelee's motion for rehearing is denied. 6 r. Appelee's motion for certification is denied. 0 I HEREBY CERTIFY that the foregoing is a true copy of the original court order. Served: Leonard Berger, Esq. Virginia Delegai, Esq. Thomas R.Grady, Esq. Richard J. Brener, Esq. Jacqueline Williams Hubbard, Esq. Theodore L Tripp,Jr., Esq. Herbert W.A.Thiele,Dkector Dwight E. Brock,Clerk David Hallman, Esq. me Jams.Bbidmfd co C ` VC.* �;:_ - • NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ", DWIGHT E. BROCK, CLERK OF THE ) CIRCUIT COURT OF COLUER COUNTY, ) y Appellant, ) _ a v. ) Case No. 2D07-454g ) BOARD OF COUNTY COMMISSIONERS ) OF COLLIER COUNTY,as ex-officio the ) Governing Board of the Ochopee Area Fire ) Control and Emergency Medical Care ) Special Taxing District afida the Ochopee ) Fire District, a Municipal Services Taxing ) Unit pursuant to Section 125.01(1)(q), F.S., ) and on behalf of Collier County,a Political ) Subdivision of the State of Florida; LINDA T.) SWISHER; and PAUL WILSON, ) ) Appellees. ) ) Opinion filed September 23, 2009. Appeal from the Circuit Court for Collier County; Michael T. McHugh, Judge. David P. Ackerman and Glory P. Ross of Ackerman Link&Sartory, P.A.,West Palm Beach,Anthony P. Pires, Jr.and Steven V. Blount of Woodward, Pires&Lombardo, P.A., Naples,and Jon L Mills and Timothy McLendon, Gainesville,for Appellant. Theodore L Tripp,Jr. of Garvin&Tripp, P.A., Fort Myers,Jacqueline W. Hubbard of Office of the County Attorney, Naples, and Elise S.Worthington of Elise S. Worthington, P.A.,Pineland,for Appellee Board of County Commissioners of Collier County. No appearance for Appellees Linda T. Swisher and Paul Wilson. Fred W. Baggett and M. Hope Keating of Greenberg Traurig, PA,Tallahassee,for Amicus Curiae Florida Association of Court Clerks. Herbert W.A.Thiele,Tallahassee,for Amicus Curiae Florida Association of County Attorneys, Inc. Waiter T. Dartland,Tallahassee,for Amicus Curiae Common Cause. CANADY,Associate Judge. In this case involving a dispute between appellant,the Clerk of the Circuit Court of Collier County(Clerk), and appellee,the Board of County Commissioners of Collier County,we consider questions concerning the scope of the powers exercised by the Clerk acting in his capacity as county auditor and custodian of all county funds. The establishment by county employees of a checking account for a fire district controlled by the county precipitated the dispute underlying this litigation. Although the funds in the fire district checking account were ultimately surrendered to the Clerk,the G igation of a declaratory judgment action instituted by the Clerk and quo warranto proceedings instituted by the county moved forward. In the declaratory judgment action,the Clerk sought a determination that it was appropriate for hkn to make inquiries regarding an account such as the fire district account and to obtain custody of the funds contained In the account. In addition,the Clerk sought a -2- determination that certain other actions were within the scope of his powers with respect to the county's fiscal affairs. In the quo war anto proceedings,the county sought a judgment limiting the Clerk's activities related to the county's fiscal affairs. In the consolidated declaratory Judgment and quo warranto proceedings, the circuit court entered summary judgment in favor of the county. On appeal, the Clerk challenges the circuit court's ruling on three Issues. First,the Clerk challenges the ruling that the Clerk has no authority to investigate the status of county funds which were not in the actual custody of the Clerk. Second,the Clerk challenges the ruling that the Clerk is not authorized to conduct postpayment internal audits concerning county expenditures. Third,the Clerk challenges the ruling that the Clerk does not have independent authority to prepare the county's financial statements. With respect to the third issue,the trial court ruled that"the Clerk's authority to prepare financial statements on behalf of the County is not derived from a specific grant of constitutional or statutory power, but rather is derived from a delegation of authority by the Board of County Commissioners"and that the"scope of this delegation is within the discretion of the Board of County Commissioners,and may be granted, removed or modified." We affirm the trial courts ruling on this issue without further comment. With respect to the other two issues, however,we reverse the trial court's ruling for the reasons we explain below. On the issue of the Clerk's power to investigate county funds which are not in the Clerk's custody,the circuit court ruled as follows: [Tic the extent that the Clerk is the custodian of all County funds, he necessarily can only be the custodian of those funds to which he has been given custody,which would presumably encompass all County funds. Even ff the Clerk -3- beasnes aware or suspects that there are County funds of which he has not been given custody, this Court is unaware of any constitutional or statutory authority that would allow the Clerk to initiate an independent investigation or attempt to recover those funds,absent Instruction from the Board of County Commissioners. The court went on to state that this"does not preclude the Clerk from seeking authority to pursue these funds or making these funds known to any appropriate authority, but. . . the Court cannot acquiesce to the Clerk's]making unilateral investigations into these funds." On the issue oflhe Clerk's authority to conduct postpayment audits with respect to county expenditures,the circuit court ruled as follows: (P]rior to signing any warrant for the payment of any claim, bill or indebtedness from county funds,the Clerk is required to insure that the payment is lawful. Consequently, any auditing necessary to insure the legality of the expenditure prior to the payment is proper. However,the Court is unable to find that the Clerk has been granted any specific constitutional or statutory authority to perform further audits beyond the time that the warrant is signed, unless so directed by the Board of County Commissioners. Article 8, section 1(d)of the Florida Constitution provides that"[w]hen not otherwise provided by county charter or special law approved by vote of the electors, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds." There is no special law or charter provision divesting the Clerk of the duties specified in this constitutional provision. As is the case with other state and county officers,the powers and duties of the clerk of the circuit court"shall be fixed by law." Art. II, §5(c), Fla. Cond. Section 28.12, Florida Statutes(2007), provides that the"clerk of the circuit court shall be clerk and accountant of the board of county commissioners,"and that the Clerk"shall keep the minutes and accounts and perform such other duties as provided by law." Section -4- 136.08, Florida Statutes (2007), provides that the"accounts of each and every board and the county accounts of each and every depository. . . shall at ail times be subject to the inspection and examination by the County auditor." Section 136.08(1)requires that checks or warrants drawn on county accounts shall be"attested by the clerk." Section 129.09, Florida Statutes (2007), imposes both personal civil liability and criminal liability • on any clerk of the circuit court acting as county auditor who signs a warrant for any liegal or unauthorized payment of county funds. . "A statutory grant of power or right carries with it by implication everything necessary to carry out the power or right and make It effectual and complete." Corp. v, Fla.Pub. Serv. Corro'n,220 So.2d 905, 907(Fla. 1969). It is the well settled rule in this state that if a statute imposes a duty upon a public officer to accomplish a stated governmental purpose, it also confers by implication every particular power necessary or proper for complete exercise or performance of the duty,that is not in violation of law or public policy. Peters v. Hansen, 157 So. 2d 103, 105(Fla.2d DCA 1963);wake Palley v.V p Pelt 82 So, 789,792(Fla. 1919). We conclude that the trial court's ruling prohibiting the Clerk from investigating county funds that have not been placed in his custody unduly limits the Clerk's ablilty to carry out his responsibilities as the custodian of ail county funds. A public officer with the right and responsibility to maintain custody of public funds necessarily has the authority both to investigate circumstances in which public funds have wrongfully been withheld from the officer's custody and to seek to obtain custody of the withheld funds. Restricting the Clerk's authority to do so is inconsistent with the goal of protecting public funds from misappropriation, and it is inconsistent with the -5- effectual and complete exercise of the Clerk's authority as custodian of all county funds. We make no comment on the availability of any specific legal processes that the Clerk may seek to utilize In investigating county funds that have been withheld from his custody. Similarly,we conclude that the trial court's ruNng prohibiting postpayment audits is inconsistent with the Clerk's statutory power to inspect and examine all county accounts at all times and with the Clerk's statutory duty to ensure that all payments of county funds comply with applicable legal requirements. Postpayment audits to verify the legality of payments that have been made are necessary to effectively carry out the Clerk's duty to ensure that county funds are expended only as authorized by law. Verification of the legality of payments already made--a process which tests the. soundness of existing internal controls—is directly related to ensuring that future payments are legal. To deny the Clerk the ability to conduct such postpayment audits would compromise the Clerk's duty and power to guard against the Regal use of county funds. Such audits are distinct from the`financial audits"of financial statements defined in sections 11.45(1)(c)and 218.31(17), Florida Statutes(2007). Affirmed M part and reversed In part FULMER,' J., Concurs. SILBERMAN,J.,Concurring In part,dissenting in part,with opinion. 'Judge Fulmer has been substituted for Judge Stringer, an original panel member in this proceeding, and she has viewed and listened to a recording of the oral argument -6- SILBERMAN, Judge,Concurring in part and dissenting in part. The majority correctly states that the issues before us involve the scope of the power of the Clerk to perform certain functions. In my view, the trial court correctly resolved the questions before it. Thus, I concur in the majority's decision to affirm on one of the Issues,but I dissent from the decision to reverse on the remaining Issues. Background Procedurally,the Clerk brought a declaratory judgment action against the Board of County Commissioners of Collier County(the county), as ex-officio the Governing Board of the Ochopee Area Fire Control and Emergency Medical Care Special Taxing District(the fire district),and county employees, Paul Wilson and Undo T. Swisher. Wilson is the fire chief of the fire district and he supervises Swisher, an administrative secretary? The trial court entered final summary judgment in favor of the county and its employees. In cases that were consolidated with the declaratory judgment action,the county and Wilson each instituted quo warranto proceedings against the Clerk,and the trial court entered final summary judgment In favor of the county and Wilson in those actions as well. All three cases deal with,the scope of the Clerk's authority in financial matters of the county. This dispute arose when the Clerk discovered that county employees controlled a fire district checking account in the name of"Ochopee FCD Volunteers." The Clerk did not have custody over the funds deposited in the account, and the account was not subject to the normal financial controls of the county. The county 'Wilson and Swisher have not made an appearance In this appeal. -7- contended that only funds raised by volunteers were deposited in the account and that the funds were used to purchase equipment for the fire department. The Clerk sought a determination that it was appropriate for him to inquire Into such an account and have the employees account for and return the funds to him.3 The Clerk also sought a determination of the general rights and duties of the Clerk. In the quo warranto action, the county sought to prohibit the Clerk from exercising powers to which he is not entitled relating to fiscal affairs of the county. The trial court determined that there were no disputed Issues of material fact and that the determination of the rights,powers, and duties of the Clerk involved issues of law. An appellate court's review of a trial court's ruling on a motion for summary judgment concerning issues of law is by the de novo standard of review. Pinellas Count/v. City of Largo, 984 So.2d 847,851 (Fla.2d DCA 2007). The Clerk and the county agreed,and the trial court found as a matter of law,that"the Clerk is the auditor,recorder and custodian of al County funds,that the Clerk is the accountant for the Board of County Commissioners,and that the Clerk has the duty to determine the legality of all County expenditures before issuing a warrant for payment" The Clerk challenges the trial court's rulings that the Clerk's powers do not include(1)preparing and certifying the accuracy of the county's financial statements; (2) controlling funds not in his custody and conducting Investigations of outside bank accounts that he suspects may contain county funds; and (3)conducting internal audits beyond the Clerk's pre-audit function required before a warrant for payment Is signed. 3The county later had its employees turn over the remaining funds in the account to the Clerk and account for how funds had been spent -8- The Clerk argues that the powers at Issue are necessarily Implied from a constitutional or statutory source. In Coca-Cola Co.. Food Division. Polk County v. State. Department of Citrus,406 So. 2d 1079, 1081-82(Fla. 1981),the Florida Supreme Court addressed Implied powers and explained that they include powers that are necessary to acc ompifsh a stated governmental purpose and those that are necessary to carry out a power and make it effectual and complete. The county contends that the trial court ruled properly as a matter of law because the Clerk, as a constitutional officer, has no power that is not conferred upon him by the Florida Constitution or general law. §fte Escambla County v. Bel, 717 So. 2d 85, 87(Fla. 1st DCA 1998)(citing Fite y. Crandon, 158 So. 303, 305 (Fla. 1934)). The Clerk"only has such authority as Is clearly conferred by statute or is necessarily implied from express statutory powers or duties." jsi,(citing Whits. 158 So. at 305). In Escambia County.the court recognized that"'while an express power duly conferred may include implied authority to use means necessary to make the express power effective, such implied authority may not warrant the exercise of a substantive power not conferred:" ,( , at 88(quoting Op.Att'y Gen. Fla.82-95(1982)). "'(WJhere there is doubt as to the existence of authority, It should not be assumed.'" J(quoting White. 158 So.at 305). V IIth these principles in mind, I would resolve each of the issues as follows. Preparation of Annual Financial Startements. As to this issue, I agree with the majority's decision to affirm. The Clerk is an elected county officer, and unless otherwise provided by county charter or special law, "the Berk of the circuit court shall be ex officio Berk of the board of county -9- commissioners, auditor, recorder and custodian of all county funds." Art.VIII,§ 1(d), Fla. Const. The powers and duties of the Clerk, as a county officer,"shall be fixed by law." Art. II, §5(c), Fla. Const. Section 28.12, Florida Statutes(2007), provides,"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." Section 125.17, Florida Statutes(2007), provides,"The clerk of the circuit court for the county shall be clerk and accountant of the board of I ' county commissioners. He or she shall keep their minutes and accounts, and perform such other duties as their clerk as the board may direct" Thus, other than keeping the minutes and accounts,the Clerk shall perform other duties only as provided by law or as the board directs. The Clerk must.keep"books of account and of record In accordance with s.218.33." § 116.07, Fla. Stat. (2007). Section 218.33(2), Florida Statutes(2007), provides that a local governmental entity shall follow uniform accounting practices and procedures as promulgated by rule of the department to assure the use of proper accounting and fiscal management by such units. Such rules shall include a uniform classification of accounts." Section 136.05, Florida Statutes(2007), provides that"(tJhe board of county commissioners shall keep an accurate and complete set of books showing the amount on hand,amount received, amount expended and the balances thereof at the end of each month for each and every fund carried by"the board. General law does not specifically give the Clerk the duty to prepare the annual financial statements. instead, it is the board's duty to prepare and submit the annual financial statements. Section 218.32(1 Xa) provides as follows: - 10- 1. 218.32 Annual financial reports; local governmental entitlea- (1)(a) Each local governmental entity that is determined to be a reporting entity, as defined by generally accepted accounting principles,and each Independent special district as defined In s. 189.403,shall submit to the department a copy of Its annual financial report for the previous fiscal year in a format prescribed by the department The annual financial report must include a list of each local governmental entity included in the report and each local governmental entity that failed to provide financial information as required by paragraph(b). The chair of the governing body and the chief financial officer of each local governmental entity shall sign the annual financial report submitted pursuant to this subsection attesting to the accuracy of the information included in the report. The county annual financial report must be a single document that covers each county agency. In accord with section 218.39(1), unless the county Is notified that the Auditor General will perform a financial audit in that fiscal year,the county must have an annual financial audit performed by an Independent certified public accountant. Section 218.32(1)(d) requires that the county submit the audit report and financial report to the Department of Financial Services. The county argues that nowhere in the Florida Statutes is there a requirement that the Clerk prepare the financial report or that he serve as the county's chief financial officer. Therefore, any duty for the Clerk to prepare the financial statement is"as the board may direct." § 125.17. Thus,the trial court properly determined that the Clerk's authority to prepare financial statements is derived from a delegation of authority by the board and that the scope of that delegation is within the board's discretion to grant,remove, or modify. -11 - Power to Imresiiaats Outside Accounts and to Collect and Deposit Funds, I disagree with the majority's analysis of this issue and would affirm. In my view the county,and not the Clerk, has the power and the duty to investigate into accounts that are not maintained by the Clerk and to pursue remedies for wrongdoing. The Clerk, as ex officio clerk of the board of county commissioners, is "custodian of all county funds." Art V, § 18,Art.VIII, § 1(d), Fla. Const His powers and duties in this regard must be"fixed by law." Art li,§5(c), Fla.Const. General law provides for county officers who are authorized to collect funds due to the county to pay those sums into the county treasury"not later than 7 working days from the close of the week in which the officer received the funds." §§ 116.01(1), 219.07. AN persons who receive county funds must turn them over to the Clerk by depositing the funds in a qualified county depository. 21 § 138.03. The Clerk's duty is to keep accounts of the funds In county depositories. Section 138.08 provides that"[t]he accounts of each and every board and the county accounts of each and every depository, mentioned or provided for in this chapter, shall at all times be subject to the inspection and examination by the county auditor and by the Auditor General." Thus,the Clerk, as county auditor, has the power to inspect and examine the accounts In county depositories. This allows the Clerk to keep accounts of county funds. As the county argues,the duty to collect and deposit county funds does not shift to the Clerk if the county officers fail to perform these duties. Section 219.08 provides that"[eject'of the duties required to be performed or done under the provisions of thls act which is not done or performed at or within the time or times herein prescribed shall continue to be the duty of the person charged therewith until it is - 12- actualiy and completely performed." The Clerk has not pointed to any statutory provision that gives him the authority to collect funds or compel their cojection, and in my view, it is not necessary to find that the Clerk has an implied power to undertake such actions when that responsibility is already specified by law as the responsibiitty of county officers. Therefore, I agree with the trial courts ruling that to the extent that the Clerk Is the custodian of all County funds, he necessarily can only be the custodian of those funds to which he has been given austody,;which would presumably encompass al County funds. Even if the Clerk becomes aware or suspects that them are County funds of which he has not be[sic]given custody,this Court Is unaware of any constitutional or statutory authority that would allow the Clerk to initiats an Independent investigation or attempt to recover those funds,absent instruction from the Board of County Commissioners. The trial court further determined that"[t]his does not preclude the Clerk from seeking authority to pursue these funds or making these funds known to any appropriate authority, but as stated above absent any constitutional or statutory grant of power the Court cannot acquiesce to the Clerk making unilateral investigations Into these funds." With respect to investigations,section 125.01(1)(s),Florida Statutes (2007), gives the board of county commissioners,as governing body of the county,the power to"[m]ake Investigations of county affairs; inquire into accounts, records,and transactions of any county department, office, or officer,and,for these purposes, require reports from any county officer or employee and the production of official records." Further,section 125.01(1)(b)gives the board the power to"Ipirovide for the prosecution and defense of legal causes"on behalf of the county. Section 125.74(1)(g) gives the county administrator the power to"[sJupervise the care and custody of all county property." The trial court correctly concluded, 'This Court is unable to find any - 13- constitutional or statutory authority that would give the Clerk the power to investigate the nature of funds not currently in its custody or to supervise the care and custody of funds not currently in its custody or to file a lawsuit regarding those funds." Canductina Poetaavment Audits, I also disagree with the majority's conclusion as to this issue and would affirm. The Clerk contends that the trial court erred In concluding that the Clerk's duty to determine the legality of payments ends once the warrant for payment is signed. The Clerk argues that no statute or case law places time limits on the actual exercise of his role to determine legality of payments. He further argues that,as a matter of modern accounting,this time restriction on his auditing role makes his Job impossible. The trial court ruled as follows: [The Court finds as a matter of law,that prior to signing any warrant for the payment of any claim,bill or indebtedness from County funds,the Clerk is required to insure that the payment is lawful. Consequently, any auditing necessary to insure the legality of the expenditure prior to the payment is proper. However,the Court is unable to find that the Clerk has been granted any specific constitutional or statutory authority to perform further audits beyond the time that the warrant Is signed, unless so directed by the Board of County Commissioners. The county contends that the supreme court's decision In Mighua County v. Powprs, 351 So.2d 32(Fla. 1977), supports the trial court's ruling. In Alachua County,the supreme court addressed the cleric's role as auditor.'` The Clerk contends, however, that because iA achua unto determined that the clerk could not perform"post-audits" `Note, however,that section 218.31(15)defines"auditor"as"an independent certified public accountant licensed pursuant to chapter 473 and retained by a local governmental entity to perform a financial audit." Thus,the Clerk's role as "auditor"must have a different meaning because the Clerk is clearly not an external auditor as defined by section 218.31. - 14- i and that term has been replaced in the statutes by"financial audW'that Alachua County has no application to the internal audits the Clerk performs to assure good payment controls. The Clerk's constitutional and statutory role as county auditor"shalt be fixed by law." Art. II,§5(c), Fla. Const. The supreme court recognized that the clerk's pre-auclit function stems from the responsibility to refuse to sign illegal warrants and the corresponding civil and criminal liability imposed for violating this requirement. flea 351 So. 2d at 38; § 129.09. The court stated that"there must be 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." 351 So. 2d at 38. The court described the clerk's role as pre-auditor of county funds but also recognized that"the board has the right to audit its own funds and make such investigations as may be necessary before the use of any public funds." !d at 37;see also§ 125.01(1)(s)(providing for the board's power to investigate county affairs and inquire Into county"accounts, records, and transactions"); § 125.01(1)(x) (providing for the board's power to employ an independent accounting firm to conduct audits). The court declared that [t]he constitutional and statutory language discussed above require that the auditing function in making such an investigation be carried out by one of three entities: pre- auditing by the clerk in his capacity as county auditor, performance audit by an independent certified public accountant(or independent accounting firm), and post-audit by the auditor general or the independent auditing firm. 351 So. 2d at 37. The supreme court further explained as follows: 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 - 15- determining legality of expenditure. The phrase legality of expenditure" 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,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. EL The term"postaudit"was defined In section 11.45(1xc), Florida Statutes (1975), and is no longer In the statutes. Chapter 11 now contains the term"financial audit" Lim§ 11.45(1)(c), Fla Stat. (2007). The Clerk does not claim to have authority to do a financial audit, because a financial audit is an external audit. Rather, he contends that Alachua County does not prohibit him from performing internal audits after transactions occur as part of determining the legality of payment However,as the county points out,the Clerk cannot exercise any authority unless that authority Is conferred upon him by law. In Alachua County.the court recognized that the clerk has the authority to inspect and examine county accounts° §itu 351 So. 2d at 36; see also § 138.08("The accounts of each and every board and the county accounts of each and every depository, mentioned or provided for in this chapter, shall at all times be subject to the inspection and examination by the county auditor and by the Auditor General."). The Clerk cites to W&F Ltd.v. Dunide,444 So. 2d 554(Fla.4th DCA 1984),to support his view that he has the power to do more than pre-audit before a warrant is signed. In W&F Ltd,a board of county commissioners created a nonprofit `It seems sell-evident that the inspection and examination of accounts Is less extensive than whet is contemplated by an audit, a financial audit, an operational audit, or a performance audit,as those terms are defined In section 11.45(1)(a), (c), (g), (h). - 18- corporation that controlled disbursements for a public construction project, and the trial court determined that the corporation was the alter ego of the county. j.at 557. The Fourth District stated that the issue on appeal was"whether there is substantial competent evidence in the record, supported by applicable law,to justify affirmance of the trial court's determination that the appellee clerk has the authority to pre-audit the contemplated expenses of this project and to audit those which have been " at 557(emphasis added). It appears that the clerk in W&F Ltd. never had the opportunity to perform his pre-auditing function as to funds that had already been expended. file kg,,at 658. This may explain the Fourth District's determination that the clerk could audit expenses of the project that had already been paid. in affirming the trial court's judgment,the Fourth District quoted Alachua County, reiterating the role of the clerk, as county auditor,to perform pro-audit review of disbursements to ensure they are not made for an unlawful purpose. j at 557-58 (quoting Micbja.Ounti, 351 So. 2d at 38). The W&F Ltd,court recognized that the legislature had"wisely not done anything since[the Alachua Cgyjd decision to devitalize the caretaking of public funds." at 558. As noted,Alachua County recogpized the clerk's authority to inspect and examine accounts under section 136.08. gea 351 So.2d at 36. I would affirm the trial court's ruling that any auditing by the Clerk "necessary to insure legality of the expenditure prior to the payment is proper"and, • under the circumstances here, that the Clerk does not have the power to conduct a postpayment audit absent authorization by the county. I make one observation as to the folowing statement that the trial court made: "However,the court Is unable to find -17- that the Clerk has been granted any specific constitutional or statutory authority to perform further audits beyond the time that the warrant is signed, unless so directed by the Board of County Commissioners." Concerning that statement,while the Clerk's ma powers are limited by law,the Clerk remains entitled to inspect and examine county accounts. § 138.08;amigo§ 125.17(providing that,as accountant for the board,the clerk shall keep the board's accounts). The statutory provisions contain no time limits; In fact, section 138.08 states at all times°regarding the Clerk's authority to inspect and examine county accounts. For these reasons, I would affirm the final judgment - 18- September 29, 2009 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, September 29, 2009 CLOSED SESSION Item #12C — DWIGHT E. BROCK LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special district as has been created according to law and having conducted business herein, met on this date at 12:03 p.m., in CLOSED SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Donna Fiala Fred Coyle Jim Coletta Frank Halas Tom Henning ALSO PRESENT: Leo Ochs, Deputy County Manager Jeffrey A. Klatzkow, County Attorney Jacqueline Hubbard, County Attorney's Office Page 1 — Item #12C (Brock) September 29, 2009 Item #12C THE BOARD IN EXECUTIVE SESSION WILL DISCUSS: STRATEGY SESSION RELATED TO LITIGATION EXPENDITURES AND SETTLEMENT NEGOTIATIONS IN THE PENDING CASE OF DWIGHT E. BROCK, CLERK OF COURTS V. COLLIER COUNTY, FLORIDA, BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS EX- OFFICIO GOVERNING BOARD OF THE OCHOPEE AREA FIRE CONTROL & EMERGENCY MEDICAL CARE SPECIAL TAXING DISTRICT, A/K/A THE OCHOPEE FIRE DISTRICT; LINDA T. SWISHER AND PAUL W. WILSON, CASE NO. 04- 941-CA CONSOLIDATED WITH BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA VS. DWIGHT E. BROCK, CLERK OF THE CIRCUIT COURT OF COLLIER COUNTY, FLORIDA — CLOSED SESSION MR. KLATZKOW: Okay. Well, this will commence the shade session. CHAIRMAN FIALA: Say that again. MR. KLATZKOW: This will commence the shade session, say that five times. As you know, the Second DCA came down with an opinion 2-1. It was a split opinion imparted in favor of the clerk. COMMISSIONER COYLE: It's hard to hear you from down here. MR. KLATZKOW: I'm sorry. I found -- it was very emotional. The Second DCA came down with an opinion. The opinion reaffirms the clerk's right to do post audits on the county as well as to search out funds that should be deposited with the county; however, the Court said that the clerk doesn't have the right to conduct the -- well, to prepare the financials for the county. Page 2 — Item #12C (Brock) September 29, 2009 Commissioner Coletta and I were up at the FAC conference last week, had a chance to speak to a number of people there, and the general consensus is that this is a very important state issue, that the Court didn't follow the law but created law, which they sometimes do, to be blunt, and that if we decided to take this to the Supreme Court, we would have the support of the Florida Association of County Attorneys all the way. Whether we have FAC support, I don't know. I'm under some significant time deadlines right now, which is why we're having this meeting. We've only had 15 days to ask for a motion to rehear or to certify to the Florida Supreme Court for a hearing, and if we don't do that, then there's no chance of really proceeding with this. What I'd ask you is that you authorize me to at least file the papers, and hopefully we will resolve our dispute with the clerk in the relatively near future and we won't have to proceed. If I don't file the paperwork in the relatively near future, we'll be barred from seeking that relief. I personally think that if the Florida Supreme Court hears this, we'd have an excellent chance of winning. I also believe that if the legislature takes a look at this, they will support the clerk. Because at the end of the day, I think it's good government practice that somebody be an auditor for the county. CHAIRMAN FIALA: That somebody what? MR. KLATZKOW: Somebody be the auditor for the county. I thought that the Court got it wrong on the interest and the legislator got it right in that the interest belongs to the board. But I think at the end of the day if we continue this, eventually there will be a legislative solution to this that the clerk will get these functions. That legislative -- that legislation will be good for us, because right now we're not sure with this opinion what the clerk's duties are. It's a very nebulous opinion. And, frankly, if the board would want as part of its legislative priorities to get this issue to the Page 3 — Item #12C (Brock) September 29, 2009 legislature that we can form some sort of bill that we can give to the clerk, that might not be a bad idea. At the end of the day, you hold the clerk's purse strings. That part of the litigation is clear so that you hold the ultimate hammer on the clerk if you're dissatisfied with the clerk. You can also cut his budget. So I guess what I'm saying is that, I'd like the -- I'd like your permission to file these papers but work towards, perhaps, an ultimate resolution with the clerk so that we wouldn't have to proceed to the Florida Supreme Court. We're probably looking at a year to year and a half before we get a decision out of them, to give you the time frame. COMMISSIONER HENNING: Question. CHAIRMAN FIALA: Okay. COMMISSIONER COLETTA: No, you go first. I don't mind. CHAIRMAN FIALA: No, that's all right. I have a question, but I'll -- I don't know who was first. COMMISSIONER HENNING: It doesn't matter. COMMISSIONER COLETTA: Go ahead, Commissioner Henning. CHAIRMAN FIALA: Just jump, guys. You don't need me to call on you. COMMISSIONER HENNING: The -- are we limited to discussing this item only in closed session? MR. KLATZKOW: What I noticed was the discussion of this item, yes. If we go beyond that, I think we'd be -- I need to discuss -- well, I can discuss anything related to this case, litigation expenditures and settlement negotiations in the Brock case. COMMISSIONER HENNING: And that is the auditing case that was ruled on by the Second DCA? MR. KLATZKOW: Yes, it was, sir. COMMISSIONER HENNING: And that's the only issue that we Page 4 — Item #12C (Brock) September 29, 2009 can discuss? MR. KLATZKOW: Yes, but as part of settling this, we can -- as long as the discussions have to do with settling this, you can bring in other things, such as what was delivered to us by the clerk today, because that could settle everything if the board so chose. COMMISSIONER HENNING: Well, as far as this issue is, I mean, it's clear where my issue is on this, and I'm not going to change from it. And, you know, if somebody wants to go to the Supreme Court, do it, but don't use Collier County Government to do so. That's my opinion. COMMISSIONER HALAS: I think we need to go to the Supreme Court. COMMISSIONER COLETTA: I agree with going to the Supreme Court, but there's one thing I wanted to bring up. You mentioned the fact that there needs to be some oversight. Every municipality out there that has a clerk, the clerk works for the city. They have oversight in the way the audits are performed. So it's not a necessary function that has to be performed by the clerk; however, with that said, I do agree at the end of the day, the state legislative body will probably weigh in with something. MR. KLATZKOW: This isn't my opinion. I've talked to John Wayne and a bunch of the FAC people who lobby there, and that's their opinion where this is ultimately headed. It's the FAC legislative lobbyists, and that's sort of their take on where this is ultimately headed. COMMISSIONER COLETTA: But to repeat what you said, the cost is minimal to be able to -- have to go forward? MR. KLATZKOW: To go forward, the cost is minimal. COMMISSIONER HALAS: Fine. COMMISSIONER COLETTA: And once we get it going to the Supreme Court, while it's there it becomes more of an issue for the state legislative body to try to come up with a solution. Page 5 — Item #12C (Brock) September 29, 2009 MR. KLATZKOW: Absolutely. COMMISSIONER COLETTA: If we don't do it and we stop everything now, everything will be in limbo forever. MR. KLATZKOW: Absolutely. COMMISSIONER COYLE: Can we discuss the issue of the audit responsibility of the clerk? MR. KLATZKOW: Yes, sir. CHAIRMAN FIALA: That's exactly what I wanted to do as well. COMMISSIONER COYLE: I need a real, clear specific answer, because one of the court cases we took to an appeal court, I believe, the judges essentially ridiculed our case and said that legislation is very clear, and they just ran all over us. MR. KLATZKOW: That was the interest portion of the -- COMMISSIONER COYLE: Yes. MR. KLATZKOW: And they're wrong, by the way. COMMISSIONER COYLE: Well, they -- MR. KLATZKOW: And the legislature responded very quickly on that. COMMISSIONER COYLE: But had the legislature not done something, we would be in a really bad situation. MR. KLATZKOW: Yes, but -- COMMISSIONER COYLE: Now, is there anything anywhere in any document that says the clerk is the independent auditor of the Board of County Commissioners? MS. HUBBARD: No. COMMISSIONER COYLE: Nowhere? MS. HUBBARD: Nowhere. COMMISSIONER COYLE: It can't be read that way? It can't be interpreted that way? There's nothing that says that or even implies that? MS. HUBBARD: No. Page 6 — Item #12C (Brock) September 29, 2009 MR. KLATZKOW: No, they made it up. COMMISSIONER COYLE: Okay. MS. HUBBARD: It just says auditor undefined. COMMISSIONER COYLE: Okay. MR. KLATZKOW: It was a policy decision, and courts sometimes do that. They basically said, well, we're going do infer it into his powers. COMMISSIONER COYLE: Yeah. Well -- MR. KLATZKOW: And the sense that you can't do that is that you have to actually have a piece of legislation. COMMISSIONER COYLE: So you've just told me that there is nothing in writing that says the clerk's responsibilities include the auditing of decisions of the county commissioners? MS. HUBBARD: No. COMMISSIONER COYLE: Okay. Now, there are only -- MS. HUBBARD: Only to the extent that -- and this is very important. The only Supreme Court case that talks about this is a 1977 case in which the Supreme Court basically said, the clerk has a preaudit function. COMMISSIONER COYLE: Okay. MS. HUBBARD: The board may hire an independent auditor to do performance audits and what have you, and post audits. There have been a number of attorney general opinions regarding this type of thing. But in none of those opinions -- none of those opinions state that the clerk has the ability to conduct post audits. The other thing that's -- that I think is interesting about the opinion that was delivered by the second district court of appeals recently is that the term that they use in the opinion is post payment internal audit. That's not a term that the clerk has ever used in the litigation, and it's not a term that the county has used in the litigation. I believe that they, what they mean by that is the clerk is internal -- it could mean a couple things. They could mean that the clerk is an Page 7 — Item #12C (Brock) September 29, 2009 internal component of the county; therefore, he can conduct internal post audits. The dissenting opinion, which, by the way, is almost twice as long as the opinion of the other two judges, that judge speaks about this issue. And basically the dissenting judge says his understanding is that the clerk of courts may examine and inspect books of account of the county, which we don't even disagree about, which means that if the majority opinion means by internally post audit that he can look at the books of record and books of accounting anytime, before or after an expenditure, we don't really even have a disagreement. The question is whether or not the Court meant audit in the sense that that term is generally used, you know, which is a term of a professional. And all of the -- all of the terms and definitions of audit require that the auditor be independent. Even the internal auditing standards require that the internal auditor be independent. And in most of the rules and regulations pertaining to internal auditing, there is some type of an agreement between the internal auditor and the governing body that ensurers the independence of the audit, so -- COMMISSIONER COYLE: Well, that's the thing I want to get to. It's important that you understand what it is we're really arguing about, because I don't have a problem with people examining our books. MS. HUBBARD: Right. COMMISSIONER COYLE: Okay? So I don't want to get in a fight about that. MS. HUBBARD: No. We've never taken that position. COMMISSIONER COYLE: Furthermore, I don't see anything wrong with some agency having the responsibility of auditing the Board of County Commissioners, okay? I don't have a problem with that at all. But the point is, a prepayment audit by the clerk is absolutely essential, and I think we all agree with that, and we're not Page 8 — Item #12C (Brock) September 29, 2009 going to interfere with his ability to do that at all. MS. HUBBARD: Right, I don't think you could. COMMISSIONER COYLE: And never have, never have. A post payment audit can only audit two things. It can audit whether or not the prior payment was done properly, and since it was done by the clerk, the clerk is auditing his own work, which is absolutely ridiculous. The other thing that can be audited is whether or not the payment was made because the Board of County Commissioners improperly authorized it. The clerk does not have that authority to tell us whether we made the right decision or the wrong decision. That is not his job. That's the Court's job. It's not the clerk's job. So, you know, somehow we need to clarify what it is we're going to fight about and what we're not going to fight about. And if we have a good chance of prevailing on that issue that the clerk doesn't have the right to sit around for three or four years and then decide, hey, I need to get some publicity. I'm going to audit the Board of County Commissioners and allege that they did something wrong. You know, that's a politically inspired audit, and that's what he does. So, that shouldn't be permitted by anyone. So what I would suggest we do, go ahead and file an appeal to the Supreme Court, won't cost us much, but we get our place mark there, then begin to work through the Florida Association of Counties for legislation that will clearly specify the clerk's duties, and the -- but with a focus on an independent audit function that is not a political manipulation by us or by the clerk. And I would like to see us explore some independent authority, whether it's inspector general or somebody like that, that we could call upon to come down and do an audit on us and/or the clerk. That would be truly independent and it would satisfy the requirements of making sure we stay honest and the clerk stays honest. But we ought to fight tooth and nail against any audit that lets the Page 9 — Item #12C (Brock) September 29, 2009 clerk audit his own work. That is crazy, and even the clerk shouldn't want to do that if he's being honest about it. If he were an accountant, he wouldn't accept that kind of engagement for ethical reasons. No accountant would do that. So why he's biding for that right is beyond me, except that it gives him an opportunity to generate headlines through the Naples Daily News. So that's -- that would be my recommendation, file a Supreme Court thing, work with Florida Association of Counties about a legislative solution that clearly defines what the clerk's job is with respect to audits. And it ought to be reasonable. They ought to subject us to oversight, everything else. CHAIRMAN FIALA: Well -- and I was going to make the same comment about -- I don't know about the same. I would never be able to do it as eloquently as you, but -- COMMISSIONER COYLE: Oh, sure you can. CHAIRMAN FIALA: Yeah, right. But I -- what I was concerned with is, we keep being accused of not wanting him to audit, and I don't know if there's any of us that feel that way. I mean, I feel that we are so above board and honest, just have at it, look at anything we have, look at it, look at it all. COMMISSIONER HALAS: Yep, plus -- CHAIRMAN FIALA: But I do agree with Commissioner Coyle when he said, you know, you don't ask the auditor to audit his own stuff. You do ask somebody else. And I mean, that's just -- and I don't -- I can't imagine anybody who would want to audit their own stuff. They would want somebody to come in and give them, you know, a vote of approval. You did a good job. We just audited you. But for some reason he keeps blasting us through the Naples Daily News. We keep asking him, you especially, have said, please, just come to us, but he never does. He always goes to the Daily News, and that's Page 10 — Item #12C (Brock) September 29, 2009 too bad because we could have a nicer relationship. COMMISSIONER HENNING: Can I say something? CHAIRMAN FIALA: Sure. COMMISSIONER HENNING: I don't know anybody in this room that's perfect that didn't make mistakes, and that's what a post audit would do is catch the mistakes and hopefully correct the mistakes, okay. CHAIRMAN FIALA: Right. Nobody has any problem with that. COMMISSIONER HENNING: So -- and you know, the second thing, you've got to remember what started this all. It was an employee that sold a boat. It was caught after the fact, and -- COMMISSIONER HALAS: No, no, no, he didn't sell a boat. COMMISSIONER HENNING: And there was moneys that was given to the -- to a volunteer fire department, or the volunteers, their account. It was -- once it was brought out, Jim Mudd did the right thing. I mean, those are some of the things that a post audit is going to catch. And it was only brought up because, I'm sure of, it was somebody from the outside that said -- COMMISSIONER COYLE: Well, yeah. It was the clerk's attorney who set the account up in the first place. Lombardo set the -- COMMISSIONER HENNING: We should give him a proclamation for doing it. What do we have to hide? I don't have anything to hide. COMMISSIONER COYLE: Nobody was hiding anything. It was there. The money was still there. COMMISSIONER HALAS: It was just put in the wrong account. COMMISSIONER COYLE: It was just put into the wrong account. COMMISSIONER COLETTA: Coyle summed it up wonderfully. The word you used in front of it is political audit, and Page 11 — Item #12C (Brock) September 29, 2009 that's what it's getting to. I think that this is -- I never looked at it this way before, but you're correct. How can an auditor audit himself? And it only makes logical sense. You know, when it comes time for the state legislative body to bring some finality to it -- because I'm sure that's where it's going to end up -- CHAIRMAN FIALA: Why wouldn't he want that? I mean, you know, we don't have anything to hide. We're saying come on in and audit. He should say the same thing. You want a public audit, you know, and you want an outside auditor to audit my stuff, go ahead, have at it. COMMISSIONER COYLE: He has thrown up road blocks every time we've tried to go have an audit. We tried a CPA firm to do an audit, and they got so frustrated they resigned the assignment because they could not get a straight answer out of the clerk. I have tried to get a straight answer out of the clerk in a public meeting about how much does it cost to process our payroll? We wind up with $7 a transaction to some other nebulous number that he says he doesn't know how much it is. You know, the guy simply is one of the most devious people I have ever encountered in my entire life, and I don't know how to ever deal with him. I don't think you can negotiate an agreement with that guy. You're going to have to do it legislatively or through the courts. And if the courts decide against us, then so be it. That's the way it is. But I don't understand how anybody can let him get away with what he gets away with. He would have one of us in jail somewhere for doing what he himself has done. COMMISSIONER COLETTA: You're right. COMMISSIONER COYLE: There's absolutely no doubt about it. So, yeah, he completely distorted that case down there. The Friends of the Museum and the Friends of the Libraries and the Friends of the Fire Departments have been around here for years. The thing I didn't know, which I suspect nobody else knew, was that Page 12 — Item #12C (Brock) September 29, 2009 some lawyers in this case, Chris Lombardo, had set up an account for the Friends for the Ochopee Fire Department, and that money for that boat found its way into the Friends' accounts. And it wasn't our account. It was the Friends' account, but they had been given an account number by Lombardo that I understand was a county account. And so all of a sudden we get trapped in it because Lombardo tells Pires and Pires tells the clerk -- and, oh, by the way, the clerk's employee is also on the board of the Friends of the Museum. So, you know, all of a sudden he begins to drag all these things in that had really nothing to do with the Ochopee Fire Department. Our position, at least my position was, that those people were not working for us. They were citizens who were gathering it from -- gathering funds to help the museums, just like people in District 2 are gathering money to keep the libraries open up there. Now, you better make sure those accounts are straight; otherwise, you're going to get sued by the clerk. But we -- you know, he's distorted this thing to the point where we can't -- COMMISSIONER HALAS: The other thing that's interesting in this case, too, Commissioner Coyle, is the fact that when it was found, that the county manager did due diligence and he made sure that that account was straightened out before the close of business on a Friday; and then the clerk, as you said, wanted to get maximum political gain out of this thing, so then he ends up suing us for this -- this infraction that was corrected by the county manager. MR. KLATZKOW: I hear a lot of frustration. At the end of the day I'm going to need board direction on two issues. One is whether or not I can ask for a rehearing, and the second, in the alternative, go to the Florida Supreme Court. COMMISSIONER HALAS: Yes. MR. KLATZKOW: And that's what I need the direction from the board on. COMMISSIONER COLETTA: Do we have to go on those Page 13 — Item #12C (Brock) September 29, 2009 steps? We can't just go right to the Supreme Court? MR. KLATZKOW: I think you'd want a motion to re-argue, because you've got a good chance of actually getting one here. COMMISSIONER COLETTA: Same judges would be hearing it, right? MS. HUBBARD: Yes. MR. KLATZKOW: Yes. Because one of the judges never heard the oral arguments. COMMISSIONER HALAS: One judge came out halfway through the proceedings, I believe, right? MS. HUBBARD: That's correct. MR. KLATZKOW: And this decision's gotten a lot of criticism. So they hear that. So you've actually got a shot. And it's very rare you get one, but you've got a shot here to actually get a rehearing. Or in the alternative, you know, if we don't get that, we take it to the Florida Supreme Court. COMMISSIONER COLETTA: Okay. MS. HUBBARD: Yeah. In any event, we have 30 days to make that -- MR. KLATZKOW: We have fifteen days for the motion to rehear. MS. HUBBARD: And 30 days to apply to the Supreme Court. MR. KLATZKOW: Fifteen days for certification. MS. HUBBARD: Correct. MR. KLATZKOW: Okay. And then 15 days to go up on cert. -- 30 days to go up on cert. MS. HUBBARD: Right. MR. KLATZKOW: My time frames are short. MS. HUBBARD: Tight. COMMISSIONER HALAS: Do it. MS. HUBBARD: We can't do it in here. We have to do it. MR. KLATZKOW: I'll need a motion. Page 14 — Item #12C (Brock) September 29, 2009 COMMISSIONER COYLE: But can we do this in a way that clearly communicates that we do not want to interfere in an objective, unbiased audit of anything that we do and we would welcome it? Should we also say we're willing to fund it? Because the problem is that if you fund it, people are going to think you're buying the decision. But, of course, we're funding it with the clerk. So how do we do that? How can we have a truly independent, unbiased, nonpolitical audit of the financial affairs of the Board of County Commissioners? MR. KLATZKOW: You can't take politics out of anything, sir. I mean, I don't know how you do it. MS. HUBBARD: Well -- yeah. MR. KLATZKOW: I don't know how you do it. MS. HUBBARD: But obviously you've hired an independent auditor. And you have one, don't you? MR. OCHS: Yes, ma'am. If I might -- MR. KLATZKOW: But then they're -- you know, then they're going to want to continue the contract with us, and so there's no such real -- there's no real such thing as an independent auditor because they're always deciding for you. It's -- MR. OCHS: Well, I would say you have an annual independent audit performed every year by an accounting firm that audits the books of the board and all the constitutional officers. COMMISSIONER COYLE: But in all honesty, they do not go into the kind of detail that one would expect in a detailed, post audit or even a performance audit of the clerk or the Board of County Commissioners. MR. KLATZKOW: I worked with Ernst and Young for years when they did court audits, and their level of detail is minimal. COMMISSIONER COYLE: Yes, that's the problem. MR. KLATZKOW: That's the problem. COMMISSIONER COYLE: We need somebody that would do Page 15 — Item #12C (Brock) September 29, 2009 it to the level of detail that the clerk would do it. MR. OCHS: Sure. COMMISSIONER COYLE: And who is that going to be? I'm sure any auditing firm can do it. CHAIRMAN FIALA: Yeah, but then the clerk's got to let them do it. I mean -- COMMISSIONER COYLE: Well, he won't. CHAIRMAN FIALA: -- he stopped them the last time, and we really wanted an audit. I mean, he keeps accusing us, continuously accusing us and making us look like we're trying to sneak or hide something saying we don't want an audit, and everybody here in this room, regardless of who it is, wants an audit. We don't care about audits. Go ahead, audit all you please, but then we would like to have an independent auditor come in and audit everything that's been audited just to really cleanse it. And there's -- if he puts up road blocks, that doesn't help us any unless there's something we can do through the court system to -- COMMISSIONER COYLE: Well, that would -- that's the value of a legislative solution. If we can identify the responsibilities clearly enough and if the legislature would agree with that -- and I don't know why they wouldn't. Everybody wants to have a fair and independent audit. If we can identify those, it seems to me that a legislative solution would be the best way to deal with it. We will never reach agreement with the clerk on anything. MR. KLATZKOW: You may get that anyway. This has statewide implications. Florida Association of Counties are talking about this, and the clerks' associations are talking about this. So this is COMMISSIONER COYLE: What is the clerks' association saying? MR. KLATZKOW: They love it. I mean, they want to get legislation in there that memorializes this, from what I'm hearing. Page 16 — Item #12C (Brock) September 29, 2009 COMMISSIONER COYLE: Okay. Then what is the Florida Association of Counties saying? MR. KLATZKOW: They don't love it so much. What they want is clarity. COMMISSIONER COYLE: Why would the clerks' organization want to be able to audit themselves? MR. KLATZKOW: They want the ability to -- they want the ability to audit the Board of County Commissioners at any time they want, before the check is cut and after the check is cut. COMMISSIONER COYLE: But they're cutting the check. MR. KLATZKOW: I understand that. I fully appreciate what you're saying, sir. COMMISSIONER COYLE: Well, that's a perpetuation of the inbreeding of the clerks anyway -- MR. KLATZKOW: Well, you've only -- COMMISSIONER COYLE: -- because they work -- no, it's exactly what it is. They're working for a board and an organization that they created and is staffed and funded by the clerks. The corporation that oversees the clerks in the State of Florida is a corporation that the clerks created and they fund and they select the staff, and so now they think that this organization they have created is going to be fair and unbiased. CHAIRMAN FIALA: And by the way, they'll sign their paycheck. COMMISSIONER COYLE: Oh, yes, yes. That's unbelievable. CHAIRMAN FIALA: Now, what did the clerk say about being an independent auditor? What did somebody say in the beginning? Did somebody say that? MS. HUBBARD: No. COMMISSIONER HENNING: You know, I like the play on words. COMMISSIONER COYLE: Inbreed? Page 17 — Item #12C (Brock) September 29, 2009 COMMISSIONER HENNING: Yeah. I mean, it's -- someone can look at it that way, but you've got to have some levity on some of these issues. COMMISSIONER COYLE: Well, that's what it is to me. COMMISSIONER HALAS: Can we discuss this? MR. KLATZKOW: If that's in the context of directing me on this issue, yeah; otherwise, you know -- COMMISSIONER HALAS: Is there some way that we can go to court immediately? MR. KLATZKOW: On what? COMMISSIONER HALAS: On this issue where he's going to shut down everything and not pay anybody? MR. KLATZKOW: I think you'll be in court October 1st if he does that. COMMISSIONER HENNING: We're going to discuss this out in the -- COMMISSIONER HALAS: Well, I'm just -- I know, but -- we're going to discuss this on the dais, but I just wondered if there was anything that we need to address in this issue. COMMISSIONER COYLE: Well, if you're going to be in court the day after this, the only solution that the Court is going to impose is, you give him the money he's asking for, okay. And that's what he's depending upon. MR. KLATZKOW: Yep. COMMISSIONER COYLE: Okay. So that's all that's going to happen. You're going to go into court on that day, and he's going to say, give him the money. COMMISSIONER HALAS: Well, he's got $6 million. COMMISSIONER COYLE: Well, you see, nobody cares about that. COMMISSIONER COLETTA: That don't exist. COMMISSIONER COYLE: You know, if you get $6 million -- Page 18 — Item #12C (Brock) September 29, 2009 COMMISSIONER HENNING: We can't talk about this. COMMISSIONER COYLE: -- the next day you lay off 46 workers. MR. KLATZKOW: In any event, I think this is a good discussion for later on. COMMISSIONER COLETTA: Are we done? MR. KLATZKOW: I don't have anything more. COMMISSIONER COLETTA: Oh, one last thing about the court case. And now everything is tied into what's happened in the past? Oh, wait. No, it isn't. The agreement we made with the clerk has nothing to do with what we're talking about now, so I'll bring it up out there. COMMISSIONER COYLE: Do we have an agreement with the clerk? MR. KLATZKOW: Nope. COMMISSIONER COLETTA: The agreement we made that was not accepted by him. COMMISSIONER HENNING: That's coming up on the agenda. It's on 9. (The shade session concluded at 12:43 p.m.) ***** Page 19 — Item #12C (Brock) September 29, 2009 STATE OF FLORIDA ) COUNTY OF COLLIER) I, Terri L. Lewis, Notary Public, do hereby certify that the foregoing proceedings were taken before me at the date and place as stated in the caption hereto on Page 1 hereof; that the foregoing computer-assisted transcription is a true record of my Stenograph notes taken at said proceedings. Dated this 12th day of October, 2009. TERRI L. LEWIS, Notary Public, State of Florida; My Commission No. DD 909558 Page 20 — Item #12C (Brock)