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County of Collier
CLERK OF THE CIRCUIT COURT
COLLIER COUNTY COURTHOUSE
Dwight E.Brock-ClerkircUt Court
3315 TAMIAMI TRL E STE 102 P.O.BOX 413044
NAPLES,FL 34112-5324 NAPLES,FL 34101-3044
Clerk of Courts • Comptroller • Auditor•Custodian of County funds
May 5,2015
CDM SMITH INCg ° •
FOMERLY CAMP DRESSER MCKEE INC •
2180 W FIRST ST, STE 400 MAY1 3205
FORT MYERS, FL 33901
CDM Smith
FORT lYElS, FLORIDA
Dear Vendor:
Pursuant to Florida Statute §125.01(3)(a), it is the responsibility of the Board of County
Commissioners (Board) to approve contracts for the benefit of Collier County. Florida Statute
§125.74(1)(nl) states that the County Administrator (County Manager) is limited to negotiating
leases, contracts and other agreements"subject to the approval of the Board."
In compliance with Florida law, the Clerk is unable to make payments to persons under
agreements entered into by the County Manager or his staff without the approval of the Board.
We apologize for any inconvenience to you or your company. The Board, however, has the
ability to ratify and approve agreements signed by staff without the prior approval of the Board
provided certain requirements are met. Please contact the Board of County Commissioners
agency if you are concerned your contract was not approved by the Board at a public meeting in
order to have your contract brought before the Board.
Please be aware that under Florida law, anyone who contracts with a governmental body is
charged with knowing the limitations of that governmental body's contracting authority.
Respectfully,
ty t (,/ c '.
Crystal K. Kinzel
Director Finance and Accounting
Collier County Clerk of Courts
*Please see attached Florida Attorney General Opinion 88-61 which gives us official direction
regarding this matter.
Phone-(239)252-2646 Fax-(239)252-2755
Website-www C_llierClerk,.con? Email-Collie Clet kgeollierclerk.co»
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Advisory Legal Opinion- Circuit clerk acting as county auditor Page 1 of 4
Florida Attorney General
Advisory Legal Opinion
Number: AGO 88-61
Date: December 30, 1988
Subject: Circuit clerk acting as county auditor
Mr. Fred W. Baggett
Attorney for the Florida Association of Court Clerks
Post Office Drawer 1838
Tallahassee, Florida 32302
RE: CLERKS, CIRCUIT COURT-COUNTIES-COUNTY FUNDS-payment due on contracts or
leases executed by the county administrator executing contracts or leases
on behalf of county commission.
Dear Mr. Baggett:
You ask on behalf of The Honorable Danny L. Kolhage, Clerk of the Circuit
Court, Monroe County, and the Association of Court Clerks substantially the
following questions:
(1) May the circuit court clerk acting as county auditor accept and pay
claims for payment due on contracts or leases executed by the county
administrator with delegated authority from the board of county
commissioners?
(2) If so, may the circuit court clerk acting as county auditor accept and
pay claims for payment due on contracts or leases executed by the assistant
county administrator with delegated authority from the county
administrator?
In sum, I am of the following opinion:
(1) The circuit court clerk acting as county auditor may accept and pay
claims for payments on contracts or leases executed by a county
administrator in the event the clerk determines the administrator has the
authority to execute contracts or leases on behalf of the county
commission.
(2) The clerk of the circuit court may also accept and pay claims for
payment due on contracts or leases executed by the assistant county
administrator in the event the clerk determines the assistant administrator
has the authority to execute contracts or leases on behalf of the county
commission.
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Advisory Legal Opinion-Circuit clerk acting as county auditor P e rot'4
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Section 16, Art. V, State Const. , provides that the clerk of the circuit
court in each county shall also serve as "ex officio clerk of the board of
county commissioners, auditor, recorder, and custodian of all county
funds. " As the ex officio auditor of county funds, the clerk has the
authority to refuse to sign and deliver county warrants for payment of an
illegal contract. [1] Moreover, s. 129. 09, F. S. , forbids the clerk acting as
the county auditor from signing illegal warrants and provides both personal
and criminal liability for violating its provisions. [2]
In AGO 70-134, this office addressed the clerk's duty and responsibility as
ex officio auditor of the county's expenditures as follows:
"The auditing function of the clerk includes more than the arithmetical
determination as to the amount of the claim being presented for: payment and
• the clerk has a duty" to determine the legality of an o
"expenditure: befre
dispensing public funds. When an examination by the clerk. as• auditor of a
particular claim presented for payment leads him to believe that the
expenditure is not authorized by law, or is otherwise illegal, the action L
by the clerk is in accord with the apparent purpose of the constitutional
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provision, making the clerk of the circuit court ex officio auditor of the
county, which is to provide a check and balance system that insures proper
expenditure of public funds. "
Thus, it is clearly within the duty and responsibility of the circuit court
clerk acting' as county auditor to make a determination of the legality of
the claims which are presented for payment by the clerk as custodian of the
county funds in order to pay only those obligations which are proper
expenditures of public funds. [3]
While the determination of the legality of any given claim is one for the
clerk and cannot be delegated to this office, I make the following general
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observations.
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Part III, Ch. 125, F.S. , the "County Administration Law of 1974" provides a
form--of county administration for those non-charter counties adopting its
terms. [4] I note that Monroe County has not elected to become a charter
county. [5] Under the law,
" [e]ach county to which this part applies shall appoint a county
administrator, , who shall be the administrative head of the county and shall i
be responsible for the administration of all departments of the county 1
government which the board of county commissioners has authority to control
pursuant to this act, the general laws of Florida, or other applicable
legislation. " [6]
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Section 125. 74 (1) , F.S. , enumerates specific powers and duties which the
county administrator possesses, including the power to " fn]egotiate leases,
contracts, and other agreements, including consultant services, for the
county, subject to approval of the board, and make recommendations
concerning the nature and location of county improvements. " [7] (e. s. ) While
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the enumeration of the powers and duties granted the county administrator
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Advisory Legal Opinion-Circuit clerk acting as county auditor Page 3 of 4 G
is stated to be no limitation on the administrator's administrative powers,
the Legislature has stated its intent to
"grant to the county administrator only those powers and duties which are
administrative or ministerial in nature and not to delegate any
governmental power imbued in the board of county commissioners as the
governing body of the county pursuant to s. 1(e) , Art. VIII of the State
Constitution. To that end, the above specifically enumerated powers are to
be construed as administrative in nature, and in any exercise of
governmental power the administrator shall only be performing the duty of
advising the board of county commissioners in its role as the policy-
setting governing body of the county. " [8] (e•s. )
This office has previously recognized the general rule that a public
officer cannot delegate his or her discretionary powers, except as
prescribed by statute. [9] Thus, in determining whether a delegation of
authority is proper, a distinction between ministerial duties and
discretionary functions must be made. [10] Those duties which do not involve
the exercise of an independent governmental discretion, judgment or
authority are considered ministerial and may be delegated. [11] By contrast,
those duties involving the exercise of independent judgment and discretion
may not be delegated, absent statutory authority. [12]
It appears that the authority to execute contracts which obligate the
county involves the exercise of independent discretion and judgment which
may not be delegated absent statutory authority. I have not found, nor have
you brought to my attention, any statutory authority which would allow a
county administrator to be delegated discretionary powers held by the board
of county commissioners. On the contrary, as noted above, the Legislature
has specifically provided that the county administrator's powers are
limited to administrative or ministerial duties. [13]
In the absence of any statutory authority therefor, I am unable to conclude
that the power to execute contracts on behalf of the county commission may
be delegated to a county administrator. Ultimately, however, whether a
claim for payment is valid is a determination which must be made by the
clerk of the circuit court acting as county auditor.
The above discussion and conclusion make it unnecessary to address your
second question.
Sincerely,
Robert A. Butterworth
Attorney General
RAB/t
[1] Mayes Printing Company v. Flowers, 154 So.2d 859 (1 D.C.A. Fla. , 1963) .
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Advisory Legal Opinion- Circuit clerk acting as county auditor Page 4 of 4
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And see Alachua County v. Powers, 351 So.2d 32, 36 (Fla. 1977) (clerk
forbidden to sign illegal warrants) . k
[2] See S. 129.09, F.S. , providing:
in county clerk of the circuit court, acting as auditor, who shall sign
any warrant for the payment of any claim or bill or indebtedness against
any county funds in excess of the expenditure allowed by law, or county
ordinance, or to pay any illegal charge against the county, or to pay any i
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claim against the county not authorized by law, or county ordinance, shall
be personally liable for such amount, and if he shall sign such warrant Y
willfully and knowingly he shall be guilty of a misdemeanor of the second
degree, punishable as provided in s. 775. 082 or s. 775..083. "
[3]-:See Alachua •County v. Powers•, supra 'at 37.. (clerk. .of. the circuit court
has the authority and responsibility to -perform the auditing functions both s
as the arm of the board of county commissioners and. as the. watchdog of the
board in the case of pre-auditing accounts of the board in determining the
legality of expenditures) .
[4] See s. 125.72, E.S. , stating " [t]he provisions of this part may apply
to any county in this state which has not adopted a charter form of county
government upon passage of a county ordinance by the governing body of such
county expressly adopting this part. "
[5] See The Florida Handbook 1987-1988 (21st ed.) , p. 240.
s
[6] Section 125.73 (1) ,: F.S.
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[7] Section 125.74(1) (m) , F.S.
[8] Section 125.74(2) , F.S.
[9] See AGO 74-116, .citing 67 C.J.S. Officers s. 104 [now numbered 194] . G
See also State v. Inter-American Center Authority, 84 So.2d 9 (Fla. 1955) ,
recognizing that in the absence of statutory authority, a public officer
cannot delegate his or her powers, even with the approval of the court.
[10] See Blitch v. Buchanan, 131 So. 151 (Fla. 1930) .
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[11] Id. at 154. l E
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[12] See State v. Inter-American Center Authority, supra at footnote 9.
[13] See s. 125. 74(2) , F.S. i
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Board of Collier County Commissioners
Donna Fiala Georgia A. Hiller, Esq. Tom Henning Penny Taylor Tim Na
District 1 District 2 District 3 District 4 ! District
April 15, 2015
Senator Garrett Richter
404 Senate Office Building
404 South Monroe Street
Tallahassee,FL 32399-1100
Re: Senate Bill 1468-Regulation of Oil and Gas.Resources
Dear Senator Richter,
On behalf of the Collier County Board of Commissioners, I would like to once again express my
appreciation for your leadership in sponsoring legislation that significantly improves regulation
of the State's oil and gas industry. In our view, Senate Bill 1468 provides the regulatory
authority and legal framework necessary to safeguard the health and safety of our residents and
protect the precious natural resources of Collier County.
As the technology and techniques for oil and gas exploration and extraction evolve, equipping
the Florida Department of Environmental Protection with robust rulemaking authority becomes
ever more important. Again,thank you for sponsoring Senate Bill 1468 and know that we are in
full support of your steadfast efforts.
Sincerely,
Tim Nance, Chairman
Board of County Commissioners
Collier County,Florida
3299 Tamiami Trail East,Suite 303•Naples,Florida 34112-5746.239-252-8097•FAX 239-252-3602