Legal Report, August 2013
General Counsel, Trela J. White
1. Posting of Budget on Municipality’s Official Website
Section 166.241, Florida Statutes, states that a municipality’s tentative budget must be posted on the municipality’s official website at least 2 days before its budget hearings. The final adopted budget must be posted on the municipality’s official website within 30 days after adoption. If the municipality does not operate an official website, then the municipality must, within a reasonable period of time, transmit the tentative budget and final budget to the county administrator who shall post the budgets on the county’s website.2. Chapter 2013-154, Laws of Florida. Amendment to Public Records Law Requiring New Contract Language.
The Florida Legislature recently adopted Section 119.0701, Florida Statutes, which places public record access and retention obligations on all contractors who have contracts with municipalities to provide services. This section also requires certain language be included in all such contracts to inform the contractor of the obligations with respect to public record retention and access. Specifically, this section states that each municipal contract for services must include a provision requiring a contractor to comply with the public records laws as follows: (a) keep and maintain public records that ordinarily and necessarily would be required by the municipality in order to perform the service; (b) provide the public with access to these public records on the same terms and conditions that the municipality would provide them and at a cost that is in accordance with law; (c) ensure that public records that are exempt or confidential are not disclosed except as authorized by law; (d) meet all requirements for retaining public records; and (e) after a contract is terminated, transfer such records, at no cost, to the municipality and destroy all duplicate records that are exempt or confidential from disclosure. The new law can be found in Chapter 2013-154, Laws of Florida. The new law has an effective date of July 1, 2013.
3. Town of Gulf Stream et al vs. Palm Beach County, and Sharon R. Bock, as Clerk and Comptroller of Palm Beach County, Intervenor
Case No. 502011CA017953XXXXMB. Inspector General Funding Lawsuit.
Fourteen municipalities have sued Palm Beach County challenging the method of funding for the Inspector General Program (the “OIG Program”). The current funding method authorizes the Board of County Commissioners to set an amount municipalities must pay for the OIG Program and to bill municipalities for that amount. The municipalities contend that the current funding method is an unlawful tax and invades municipal home rule budgetary authority. On July 11, 2013, a hearing was held on the municipalities’ motion to dismiss the County’s amended counterclaims. The County’s two counterclaims demanded payment from the municipalities for the OIG Program. The municipalities argued in their motion to dismiss that there had been no express waiver of municipal sovereign immunity allowing the County to collect money from them for the OIG Program. Municipal sovereign immunity can be waived only if the Florida Legislature has passed a law requiring such a payment (which it hasn’t), or if the municipalities have agreed to pay pursuant to a written interlocal agreement with the County (which they haven’t). At the hearing, the Trial Court agreed with the municipalities and dismissed the County’s counterclaim for breach of implied contract/unjust enrichment on grounds that it was barred by municipal sovereign immunity. This dismissal was with prejudice, meaning that the counterclaim could not be re-filed. The County informed the Trial Court that it agreed the counterclaim should be dismissed with prejudice. The Trial Court also dismissed the County’s counterclaim for breach of ordinance. This dismissal was without prejudice, meaning the County could re-file the counterclaim within ten days. The Trial Court, however, stated that the County could re-file only if it was able to allege how the municipalities’ sovereign immunity had been expressly waived. The County never re-filed its counterclaim. The time allowed by the Trial Court for re-filing has passed.
On July 25, 2013, the County noticed the case for trial. A trial date has not been assigned yet. Also, on August 8, 2013, the Trial Court granted the municipalities’ request to file an amended complaint for declaratory relief. The amended complaint adds a new claim that the County’s attempt to collect monies from the municipalities for the OIG Program is barred by the doctrine of sovereign immunity. The County has not yet filed a response to the amended complaint.
4. City of Orlando and Lasercraft, Inc. vs. Michael Udowychenko, etc.Case Number SC12-1471. Red Light Cameras.
This case was reported on at the July 2012 League meeting and the details are contained in the July Legal Update, which is located on the League’s website. On November 6, 2012, the Florida Supreme Court accepted jurisdiction of the case. The parties have filed their respective briefs. No further action has been taken by the Florida Supreme Court at this time.
5. South Florida Water Management District v. RLI Live Oak LLC
Case Number SC12-2336. New Heightened Evidentiary Burden To Enforce Regulatory Programs Through Monetary Penalties.
This case was reported on at the January 2013 League meeting and the details are contained in the January 2013 Legal Update, which is located on the League’s website. On March 7, 2013, the Florida Supreme Court accepted jurisdiction of the case. The initial brief, answer brief and reply brief have been filed. The Florida Department of Environmental Protection and Office of the Attorney General have been granted leave to file amicus curiae briefs in support of the South Florida Water Management District. No further action has been taken by the Florida Supreme Court at this time. This case is important to municipalities because it involves what standard must be used in imposing regulatory penalties on code violators. The South Florida Water Management District argues they should only have to prove a regulatory violation by the traditional “preponderance of the evidence” standard. The landowners involved in the case argue that a regulatory violation must be proven by the higher “clear and convincing evidence” standard before monetary penalties may be imposed.