Legal Report, November 2015

General Counsel, Trela J. White
Asst. General Counsel, Jennifer G. Ashton

1. Standardized local election dates, “Super Tuesday”. Proposed Legislation

Representative Caldwell, Chair of the House State Affairs Committee, has proposed legislation (not yet in bill form) to standardize various local government election dates in Florida.  The Florida League of Cities has summarized the proposal as follows: all municipal elections for local office shall be moved to general elections in November on odd-numbered years.  In order to make this transition, the proposal would extend the term of incumbent officeholders until the next general election (November) on an odd-numbered year.  The proposed legislation also calls for moving other elections for items such as bonds, charter amendments, and annexations to the next even- or odd- numbered general election (in November).  If proposed as a bill, the legislation would be considered during the upcoming 2016 Legislative Session. The Florida League of Cities has expressed concern with the effects of the proposed legislation (i.e. it preempts local government flexibility and control, it impacts city officials with 3-year terms and impacts term limits, it potentially increases ballot length and impacts voter turnout, and could necessitate municipal charter amendments due to changes in term length and dates of elections).  We will continue to monitor this proposed legislation.

2. RFP Evaluation Criteria; Tips & Trends #2015-0004 of the Office of Inspector General, Palm Beach County. Municipal Procurement Policies – update

In September, we reported on the Office of Inspector General’s (OIG’s) Contract Oversight Review (2015-R-0001), which generally discussed municipal procurement ordinances, policies, and procedures.  As a follow-up, the OIG has released a Tips & Trends report that outlines best practices to use for evaluation criteria in a request for proposals (RFP) process. The report stresses that effective RFP evaluation criteria should be: clear (unambiguous); relative (meaning all key elements of the project requirements relate to the requirement definition and evaluation criteria); discriminating (separate best, average, and weak proposals); non-discriminatory (fair); realistic; measurable (capable of being quantified and calculable); economical (criteria use should not require unreasonable time or resources); and justifiable (technically and legally sound and justifiable). The report stresses that when selection committee members have significantly distinct scores for the same evaluation criteria, doubt may be raised as to whether the members understood the criteria. The full report can be found on the OIG’s website at www.pbcgov.com/oig. We anticipate that the OIG will issue more Tips & Trends Reports in the future, and will continue to update you on this topic.

3. R. Lee Smith, et al. vs. City of Jacksonville; Case No SC15-534 of the Florida Supreme Court. Bert J. Harris Act - update

The full details of this case are contained in the June 2015 Legal Report.  The Smiths’ property abuts the City of Jacksonville’s property.  The Smiths claim that a Jacksonville ordinance, which allowed Jacksonville’s property to be used as a fire station instead of a recreation area, inordinately burdened their property.  The Florida First District Court of Appeal ruled in favor of Jacksonville and held that the Smiths did not state a claim under the Bert J. Harris Act because the government action was not directly applied to the Smiths’ property.  This case is pending in the Florida Supreme Court, and is still in the briefing stage.  We will continue to monitor this case.

4. Jeffrey Marcus Gray vs. Lutheran Social Services of Northeast Florida, Inc. (LSS); Case No. 1D14-5793 of the Florida First District Court of Appeal. Public Records - update

The full details of this case are contained in the January 2015 Legal Report. In this case, the trial court ruled that the means utilized by Gray to seek records from LSS constituted a flagrant abuse of Chapter 119 and were designed to ambush unsuspecting private entities. The trial court denied Gray’s complaint, which sought attorney’s fees and costs. Gray filed an appeal with the First District Court of Appeal. The briefing is complete. The parties' request for oral argument was denied. We will continue to monitor this case.

5. Parker et al. vs. American Traffic Solutions, Inc. et al.; Case No. 1:14-cv-24010-FAM of the United States District Court for the Southern District of Florida. Red Light Cameras  - update

As a result of the outcome of City of Hollywood, etc. v. Eric Arem case, which was reported in the June 2015 Legal Report, class action lawsuits were filed in the U.S. District Court for the Southern District of Florida against eighty-one towns, the Florida Department of Revenue, and private red light camera operators. The lawsuits were consolidated and Plaintiffs seek reimbursement of fines assessed against motorists by red light camera programs.  Plaintiffs allege the fines were unlawful.  At stake is over $200 million in fines.
Of note, the district court held that the drivers’ claims of unjust enrichment (quasi-contract) were not barred by sovereign immunity. The local governments filed an appeal to the U.S. Circuit Court of Appeals for the Eleventh Circuit from the order determining that they were not entitled to sovereign immunity protections. The appeal is still pending and the municipalities’ briefs were timely filed. In late October, Palm Beach County and several other municipalities were permitted to join the lawsuit. In early November, the appellate court entered an order permitting the local governments to raise their jurisdictional challenges, originally presented to the trial court, at the appellate level. We will continue to monitor this case.

6. Town of Gulf Stream, et al. vs. Palm Beach County, et al.; Case No. 4D15-1753 of the Florida Fourth District Court of Appeal. Inspector General Funding Lawsuit - update

Fourteen municipalities sued Palm Beach County (the “County”) challenging the method of funding for the Office of Inspector General (the “OIG Program”). The current funding method authorizes the Board of County Commissioners to set an amount the 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 March 16, 2015, the trial court entered a Final Judgment in favor of Palm Beach County.  The case has been appealed to the Florida Fourth District Court of Appeal.  On October 14, 2015, the municipalities filed their initial brief with the appellate court.  On October 22, 2015, the Florida League of Cities filed an Amicus Curiae Brief in support of the municipalities.  The County has until December 9, 2015 to file its Answer Brief. We will continue to monitor this case.