Florida Senate - 2014                                     SB 564
       
       
        
       By Senator Richter
       
       
       
       
       
       23-00533A-14                                           2014564__
    1                        A bill to be entitled                      
    2         An act relating to security for public deposits;
    3         amending s. 280.02, F.S.; revising definitions;
    4         amending s. 280.03, F.S.; clarifying provisions
    5         relating to public deposits that are exempt from state
    6         security requirements; amending s. 280.04, F.S.;
    7         lowering the collateral-pledging level for public
    8         deposits; amending s. 280.05, F.S.; conforming
    9         provisions to changes made by the act; amending s.
   10         280.051, F.S.; updating terms; repealing s. 280.071,
   11         F.S., relating to the qualified public depository
   12         oversight board; amending s. 280.085, F.S.; providing
   13         that a notice of the default or insolvency of a
   14         qualified public depository is not required if the
   15         Florida public deposits are acquired by another
   16         insured depository; amending s. 280.10, F.S.;
   17         providing that the depository institution acquiring
   18         the Florida public deposits is subject to certain
   19         requirements; amending s. 280.11, F.S.; conforming
   20         provisions to changes made by the act; amending s.
   21         280.16, F.S.; deleting obsolete provisions; revising
   22         provisions relating to required reports and forms;
   23         amending s. 280.17, F.S.; deleting obsolete
   24         provisions; deleting a provision requiring public
   25         depositories to request confirmation information from
   26         qualified public depositories by a certain date;
   27         providing that a protection from loss is effective
   28         when a public depositor does not comply with certain
   29         provisions under specified circumstances; providing an
   30         effective date.
   31          
   32  Be It Enacted by the Legislature of the State of Florida:
   33  
   34         Section 1. Section 280.02, Florida Statutes, is reordered
   35  and amended to read:
   36         280.02 Definitions.—As used in this chapter, the term:
   37         (1) “Affiliate” means an entity that is related through a
   38  parent corporation’s controlling interest. The term also
   39  includes a any financial institution holding company or a any
   40  subsidiary or service corporation of such holding company.
   41         (2) “Alternative participation agreement” means an
   42  agreement of restrictions that a qualified public depository
   43  completes as an alternative to immediately withdrawing from the
   44  public deposits program due to financial condition.
   45         (3) “Average daily balance” means the average daily balance
   46  of public deposits held during the reported month. The average
   47  daily balance shall must be determined by totaling, by account,
   48  the daily balances held by the depositor and then dividing the
   49  total by the number of calendar days in the month. Deposit
   50  insurance is then deducted from each account balance and the
   51  resulting amounts are totaled to obtain the average daily
   52  balance.
   53         (4) “Average monthly balance” means the average monthly
   54  balance of public deposits held, before deducting deposit
   55  insurance, by the depository during any 12 calendar months. The
   56  average monthly balance of the previous 12 calendar months shall
   57  must be determined by adding the average daily balance before
   58  deducting deposit insurance for the reported month and the
   59  average daily balances before deducting deposit insurance for
   60  the 11 months preceding that month and dividing the total by 12.
   61         (5) “Book-entry form” means that securities are not
   62  represented by a paper certificate but represented by an account
   63  entry on the records of a depository trust clearing system or,
   64  in the case of United States Government securities, a Federal
   65  Reserve Bank.
   66         (26)(6)“Tangible equity capital” “Capital account” means
   67  total equity capital, as defined on the balance-sheet portion of
   68  the Consolidated Reports of Condition and Income or (call
   69  report) or the Thrift Financial Report, less intangible assets,
   70  as submitted to the regulatory banking authority.
   71         (7) “Collateral-pledging level,for qualified public
   72  depositories, means the percentage of collateral required to be
   73  pledged by a qualified public depository as provided under in s.
   74  280.04 by a financial institution.
   75         (8) “Current month” means the month immediately following
   76  the month for which the monthly report is due from qualified
   77  public depositories.
   78         (9) “Custodian” means the Chief Financial Officer or a any
   79  bank, savings association, or trust company that:
   80         (a) Is organized and existing under the laws of this state,
   81  any other state, or the United States;
   82         (b) Has executed all forms required under this chapter or
   83  any rule adopted hereunder;
   84         (c) Agrees to be subject to the jurisdiction of the courts
   85  of this state, or of the courts of the United States which are
   86  located within this state, for the purpose of any litigation
   87  arising out of this chapter; and
   88         (d) Has been approved by the Chief Financial Officer to act
   89  as a custodian.
   90         (10) “Default or insolvency” includes, without limitation,
   91  the failure or refusal of a qualified public depository to pay a
   92  any check or warrant drawn upon sufficient and collected funds
   93  by a any public depositor or to return a any deposit on demand
   94  or at maturity together with interest as agreed; the issuance of
   95  an order by a any supervisory authority restraining such
   96  depository from making payments of deposit liabilities; or the
   97  appointment of a receiver for such depository.
   98         (11) “Effective date of notice of withdrawal or order of
   99  discontinuance” pursuant to s. 280.11(3) means that date which
  100  is set out as such in any notice of withdrawal or order of
  101  discontinuance from the Chief Financial Officer.
  102         (11)(12) “Eligible collateral” means securities, Federal
  103  Home Loan Bank letters of credit, and cash, as designated in s.
  104  280.13.
  105         (12)(13) “Financial institution” means, including, but not
  106  limited to, an association, bank, brokerage firm, credit union,
  107  industrial savings bank, savings and loan association, trust
  108  company, or other type of financial institution organized under
  109  the laws of this state or any other state of the United States
  110  and doing business in this state or any other state, in the
  111  general nature of the business conducted by banks and savings
  112  associations.
  113         (13)(14) “Governmental unit” means the state or any county,
  114  school district, community college district, state university,
  115  special district, metropolitan government, or municipality,
  116  including any agency, board, bureau, commission, and institution
  117  of any of such entities, or any court.
  118         (14)(15) “Loss to public depositors” means loss of all
  119  principal and all interest or other earnings on the principal
  120  accrued or accruing as of the date the qualified public
  121  depository was declared in default or insolvent.
  122         (15)(16) “Market value” means the value of collateral
  123  calculated pursuant to s. 280.04.
  124         (16)(17) “Operating subsidiary” means the qualified public
  125  depository’s 100 percent 100-percent owned corporation that has
  126  ownership of pledged collateral. The operating subsidiary may
  127  not have no powers beyond those that its parent qualified public
  128  depository may itself exercise. The use of an operating
  129  subsidiary is at the discretion of the qualified public
  130  depository and must meet the Chief Financial Officer’s
  131  requirements.
  132         (18) “Oversight board” means the qualified public
  133  depository oversight board created in s. 280.071 for the purpose
  134  of safeguarding the integrity of the public deposits program and
  135  preventing the realization of loss assessments through
  136  standards, policies, and recommendations for actions to the
  137  Chief Financial Officer.
  138         (17)(19) “Pledged collateral” means securities or cash held
  139  separately and distinctly by an eligible custodian for the
  140  benefit of the Chief Financial Officer to be used as security
  141  for Florida public deposits. This includes maturity and call
  142  proceeds.
  143         (18)(20) “Pledgor” means the qualified public depository
  144  and, if one is used, operating subsidiary.
  145         (19)(21) “Pool figure” means the total average monthly
  146  balances of public deposits held by all qualified public
  147  depositories during the immediately preceding 12-month period.
  148         (22) “Previous month” means the month or months immediately
  149  preceding the month for which a monthly report is due from
  150  qualified public depositories.
  151         (20)(23) “Public deposit” means the moneys of a
  152  governmental unit the state or of any state university, county,
  153  school district, community college district, special district,
  154  metropolitan government, or municipality, including agencies,
  155  boards, bureaus, commissions, and institutions of any of the
  156  foregoing, or of any court, and includes the moneys of all
  157  county officers, including constitutional officers, which that
  158  are placed on deposit in a bank, savings bank, or savings
  159  association and for which the bank, savings bank, or savings
  160  association is required to maintain reserves. This includes, but
  161  is not limited to, time deposit accounts, demand deposit
  162  accounts, and nonnegotiable certificates of deposit. Moneys in
  163  deposit notes and in other nondeposit accounts such as
  164  repurchase or reverse repurchase operations are not public
  165  deposits. Securities, mutual funds, and similar types of
  166  investments are not considered public deposits and are shall not
  167  be subject to the provisions of this chapter.
  168         (21)(24) “Public depositor” means the official custodian of
  169  funds for a governmental unit who is responsible for handling
  170  public deposits.
  171         (22)(25) “Public deposits program” means the Florida
  172  Security for Public Deposits Act contained in this chapter and
  173  any rule adopted under this chapter.
  174         (23)(26) “Qualified public depository” means a any bank,
  175  savings bank, or savings association that:
  176         (a) Is organized and exists under the laws of the United
  177  States or, the laws of this state or any other state or
  178  territory of the United States.
  179         (b) Has its principal place of business in this state or
  180  has a branch office in this state which is authorized under the
  181  laws of this state or of the United States to receive deposits
  182  in this state.
  183         (c) Has deposit insurance pursuant to under the provision
  184  of the Federal Deposit Insurance Act, as amended, 12 U.S.C. ss.
  185  1811 et seq.
  186         (d) Has procedures and practices for accurate
  187  identification, classification, reporting, and collateralization
  188  of public deposits.
  189         (e) Meets all the requirements of this chapter.
  190         (f) Has been designated by the Chief Financial Officer as a
  191  qualified public depository.
  192         (24)(27) “Reported month” means the month for which a
  193  monthly report is due from qualified public depositories.
  194         (25)(28) “Required collateral” of a qualified public
  195  depository means eligible collateral having a market value equal
  196  to or in excess of the amount required under pursuant to s.
  197  280.04.
  198         (6)(29) “Chief Financial Officer’s custody” is a collateral
  199  arrangement governed by a contract between a designated Chief
  200  Financial Officer’s custodian and the Chief Financial Officer.
  201  This arrangement requires that collateral to be in the Chief
  202  Financial Officer’s name in order to perfect the security
  203  interest.
  204         (27)(30) “Triggering events” are events set out in s.
  205  280.041 which give the Chief Financial Officer the right to:
  206         (a) Instruct the custodian to transfer securities pledged,
  207  interest payments, and other proceeds of pledged collateral not
  208  previously credited to the pledgor.
  209         (b) Demand payment under letters of credit.
  210         Section 2. Paragraph (e) of subsection (3) of section
  211  280.03, Florida Statutes, is amended to read:
  212         280.03 Public deposits to be secured; prohibitions;
  213  exemptions.—
  214         (3) The following are exempt from the requirements of, and
  215  protection under, this chapter:
  216         (e) Public deposits that which are fully secured pursuant
  217  to a collateral requirement under federal regulations.
  218         Section 3. Subsections (1) and (2) of section 280.04,
  219  Florida Statutes, are amended to read:
  220         280.04 Collateral for public deposits; general provisions.—
  221         (1) The Chief Financial Officer shall determine the
  222  collateral requirements and collateral-pledging collateral
  223  pledging level for each qualified public depository following
  224  procedures established by rule. These procedures must shall
  225  include numerical parameters for 25 percent, 50 percent, 110
  226  percent, and 150 percent 25-percent, 50-percent, 125-percent,
  227  and 200-percent pledge levels based on nationally recognized
  228  financial rating services information and established financial
  229  performance guidelines.
  230         (2) A qualified public depository may not accept or retain
  231  any public deposit which is required to be secured unless it
  232  deposits has deposited with the Chief Financial Officer eligible
  233  collateral at least equal to the greater of:
  234         (a) The average daily balance of public deposits which that
  235  does not exceed the lesser of its tangible equity capital
  236  account or 20 percent of the pool figure multiplied by the
  237  depository’s collateral-pledging level, plus the greater of:
  238         1. One hundred ten twenty-five percent of the average daily
  239  balance of public deposits in excess of its tangible equity
  240  capital accounts; or
  241         2. One hundred ten twenty-five percent of the average daily
  242  balance of public deposits in excess of 20 percent of the pool
  243  figure.
  244         (b) Twenty-five percent of the average monthly balance of
  245  public deposits.
  246         (c) One hundred ten twenty-five percent of the average
  247  daily balance of public deposits if the qualified public
  248  depository:
  249         1. Has been established for less than 3 years;
  250         2. Has experienced material decreases in its tangible
  251  equity capital accounts; or
  252         3. Has an overall financial condition that is materially
  253  deteriorating.
  254         (d) One Two hundred fifty percent of an established maximum
  255  amount of public deposits which that has been mutually agreed
  256  upon by and between the Chief Financial Officer and the
  257  qualified public depository.
  258         (e) Minimum required collateral of $100,000.
  259         (f) An amount as required in special instructions from the
  260  Chief Financial Officer to protect the integrity of the public
  261  deposits program.
  262         Section 4. Subsections (1), (2), (3), and (16) of section
  263  280.05, Florida Statutes, are amended to read:
  264         280.05 Powers and duties of the Chief Financial Officer.—In
  265  fulfilling the requirements of this act, the Chief Financial
  266  Officer has the power to take the following actions he or she
  267  deems necessary to protect the integrity of the public deposits
  268  program:
  269         (1) Identify representative qualified public depositories
  270  and furnish notification for the qualified public depository
  271  oversight board selection pursuant to s. 280.071.
  272         (2) Provide data for the qualified public depository
  273  oversight board duties pursuant to s. 280.071 regarding:
  274         (a) Establishing standards for qualified public
  275  depositories and custodians.
  276         (b) Evaluating requests for exceptions to standards and
  277  alternative participation agreements.
  278         (c) Reviewing and recommending action for qualified public
  279  depository or custodian violations.
  280         (3) Review, implement, monitor, evaluate, and modify all or
  281  any part of the standards, policies, or recommendations of the
  282  qualified public depository oversight board.
  283         (13)(16) Require the filing of the following reports, which
  284  the Chief Financial Officer shall process as provided:
  285         (a) Qualified public depository monthly reports and
  286  schedules. The Chief Financial Officer shall review the reports
  287  of each qualified public depository for material changes in
  288  tangible equity capital accounts or changes in name, address, or
  289  type of institution; record the average daily balances of public
  290  deposits held; and monitor the collateral-pledging levels and
  291  required collateral.
  292         (b) Quarterly regulatory reports from qualified public
  293  depositories. The Chief Financial Officer shall analyze
  294  qualified public depositories ranked in the lowest category
  295  based on established financial condition criteria.
  296         (c) Qualified public depository annual reports and public
  297  depositor annual reports. The Chief Financial Officer shall
  298  compare public deposit information reported by qualified public
  299  depositories and public depositors. Such comparison shall be
  300  conducted for qualified public depositories that which are
  301  ranked in the lowest category based on established financial
  302  condition criteria of record on September 30. Additional
  303  comparison processes may be performed as public deposits program
  304  resources permit.
  305         (d) Any related documents, reports, records, or other
  306  information deemed necessary by the Chief Financial Officer in
  307  order to ascertain compliance with this chapter.
  308         Section 5. Subsections (2), (6), and (12) of section
  309  280.051, Florida Statutes, are amended to read:
  310         280.051 Grounds for suspension or disqualification of a
  311  qualified public depository.—A qualified public depository may
  312  be suspended or disqualified or both if the Chief Financial
  313  Officer determines that the qualified public depository has:
  314         (2) Submitted reports containing inaccurate or incomplete
  315  information regarding public deposits or collateral for such
  316  deposits, tangible equity capital accounts, or the calculation
  317  of required collateral.
  318         (6) Failed to furnish the Chief Financial Officer with
  319  prompt and accurate information, or failed to allow inspection
  320  and verification of any information, dealing with public
  321  deposits or dealing with the exact status of its tangible equity
  322  capital accounts, or any other financial information that the
  323  Chief Financial Officer deems determines necessary to verify
  324  compliance with this chapter or any rule adopted pursuant to
  325  this chapter.
  326         (12) Failed to execute or have the custodian execute a
  327  collateral control public depository pledge agreement before
  328  prior to using a custodian.
  329         Section 6. Section 280.071, Florida Statutes, is repealed.
  330         Section 7. Section 280.085, Florida Statutes, is amended to
  331  read:
  332         280.085 Notice to claimants.—
  333         (1) Upon determining the default or insolvency of a
  334  qualified public depository, the Chief Financial Officer shall
  335  notify, by first-class mail, all public depositors that have
  336  complied with s. 280.17 of such default or insolvency. The
  337  notice must shall direct all public depositors having claims or
  338  demands against the Public Deposits Trust Fund occasioned by the
  339  default or insolvency to file their claims with the Chief
  340  Financial Officer within 30 days after the date of the notice.
  341         (a)(2)A No claim against the Public Deposits Trust Fund is
  342  binding on the fund only if unless presented within 30 days
  343  after the date of the notice.
  344         (b) The notice is not required if the default or insolvency
  345  is resolved in a manner whereby all Florida public deposits are
  346  acquired by another insured depository institution.
  347         (2)(3) This section does not affect any proceeding to:
  348         (a) Enforce any real property mortgage, chattel mortgage,
  349  security interest, or other lien on property of a qualified
  350  public depository that is in default or insolvency; or
  351         (b) Establish liability of a qualified public depository
  352  that is in default or insolvency to the limits of any federal or
  353  other casualty insurance protection.
  354         Section 8. Present subsections (3) through (6) of section
  355  280.10, Florida Statutes, are redesignated as subsections (4)
  356  through (7), respectively, and a new subsection (3) is added to
  357  that section, to read:
  358         280.10 Effect of merger, acquisition, or consolidation;
  359  change of name or address.—
  360         (3) If the default or insolvency of a qualified public
  361  depository results in the acquisition of some or all of its
  362  Florida public deposits by another depository institution that
  363  is not a qualified public depository, the depository institution
  364  acquiring the Florida public deposits is subject to subsection
  365  (1).
  366         Section 9. Subsection (3) of section 280.11, Florida
  367  Statutes, is amended to read:
  368         280.11 Withdrawal from public deposits program; return of
  369  pledged collateral.—
  370         (3) A qualified public depository that which is required to
  371  withdraw from the public deposits program pursuant to s.
  372  280.05(17) may s. 280.05(1)(b) shall not receive or retain
  373  public deposits after the effective date of withdrawal. The
  374  contingent liability, required collateral, and reporting
  375  requirements of the withdrawing depository shall continue until
  376  the effective date of withdrawal. The effective date of
  377  withdrawal means the date set out as such in a notice of
  378  withdrawal or (order of discontinuance) from the Chief Financial
  379  Officer which is shall be mailed to the qualified public
  380  depository by registered or certified mail. Penalties incurred
  381  because of withdrawal from the public deposits program are shall
  382  be the responsibility of the withdrawing depository.
  383         Section 10. Subsection (1) of section 280.16, Florida
  384  Statutes, is amended to read:
  385         280.16 Requirements of qualified public depositories;
  386  confidentiality.—
  387         (1) In addition to any other requirements specified in this
  388  chapter, qualified public depositories shall:
  389         (a) Take the following actions for each public deposit
  390  account:
  391         1. Identify the account as a “Florida public deposit” on
  392  the deposit account record with the name of the public depositor
  393  or provide a unique code for the account for such designation.
  394         2. When the form prescribed by the Chief Financial Officer
  395  for acknowledgment of receipt of each public deposit account is
  396  presented to the qualified public depository by the public
  397  depositor opening an account, the qualified public depository
  398  shall execute and return the completed form to the public
  399  depositor.
  400         3. When the acknowledgment of receipt form is presented to
  401  the qualified public depository by the public depositor due to a
  402  change of account name, account number, or qualified public
  403  depository name on an existing public deposit account, the
  404  qualified public depository shall execute and return the
  405  completed form to the public depositor within 45 calendar days
  406  after such presentation.
  407         4. When the acknowledgment of receipt form is presented to
  408  the qualified public depository by the public depositor on an
  409  account existing before July 1, 1998, the qualified public
  410  depository shall execute and return the completed form to the
  411  public depositor within 45 calendar days after such
  412  presentation.
  413         (b) Within 15 days after the end of each calendar month, or
  414  when requested by the Chief Financial Officer, submit to the
  415  Chief Financial Officer a written report, under oath, indicating
  416  the average daily balance of all public deposits held by it
  417  during the reported month, required collateral, a detailed
  418  schedule of all securities pledged as collateral, selected
  419  financial information, and any other information that the Chief
  420  Financial Officer deems determines necessary to administer this
  421  chapter.
  422         (c) Provide to each public depositor annually by, not later
  423  than October 30, the following information on all open accounts
  424  identified as a “Florida public deposit” for that public
  425  depositor as of September 30, to be used for confirmation
  426  purposes: the federal employer identification number of the
  427  qualified public depository, the name on the deposit account
  428  record, the federal employer identification number on the
  429  deposit account record, and the account number, account type,
  430  and actual account balance on deposit. Any discrepancy found in
  431  the confirmation process must shall be reconciled before
  432  November 30.
  433         (d) Submit to the Chief Financial Officer annually by, not
  434  later than November 30, a report of all public deposits held for
  435  the credit of all public depositors at the close of business on
  436  September 30. Such annual report must shall consist of public
  437  deposit information in a report format prescribed by the Chief
  438  Financial Officer. The manner of required filing may be as a
  439  signed writing or electronic data transmission, at the
  440  discretion of the Chief Financial Officer.
  441         (e) Submit to the Chief Financial Officer not later than
  442  the date required to be filed with the federal agency:
  443         1. A copy of the quarterly Consolidated Reports of
  444  Condition and Income, and any amended reports, required by the
  445  Federal Deposit Insurance Act, 12 U.S.C. ss. 1811 et seq., if
  446  such depository is a bank; or
  447         2. A copy of the Thrift Financial Report, and any amended
  448  reports, required to be filed with the Office of Thrift
  449  Supervision if such depository is a savings and loan
  450  association.
  451         Section 11. Subsections (2), (5), and (8) of section
  452  280.17, Florida Statutes, are amended to read:
  453         280.17 Requirements for public depositors; notice to public
  454  depositors and governmental units; loss of protection.—In
  455  addition to any other requirement specified in this chapter,
  456  public depositors shall comply with the following:
  457         (2) Beginning July 1, 1998, Each public depositor shall
  458  take the following actions For each public deposit account, the
  459  public depositor shall:
  460         (a) Ensure that the name of the public depositor is on the
  461  account or certificate or other form provided to the public
  462  depositor by the qualified public depository in a manner
  463  sufficient to identify that the account is a Florida public
  464  deposit.
  465         (b) Execute a form prescribed by the Chief Financial
  466  Officer for identification of each public deposit account and
  467  obtain acknowledgment of receipt on the form from the qualified
  468  public depository at the time of opening the account. Such
  469  public deposit identification and acknowledgment form shall be
  470  replaced with a current form as required in subsection (3). A
  471  public deposit account existing before July 1, 1998, must have a
  472  form completed before September 30, 1998.
  473         (c) Maintain the current public deposit identification and
  474  acknowledgment form as a valuable record. Such form is mandatory
  475  for filing a claim with the Chief Financial Officer upon the
  476  default or insolvency of a qualified public depository.
  477         (5) Each public depositor shall confirm annually confirm
  478  that public deposit information as of the close of business on
  479  September 30 has been provided by each qualified public
  480  depository and is in agreement with public depositor records.
  481  Such confirmation must shall include the federal employer
  482  identification number of the qualified public depository, the
  483  name on the deposit account record, the federal employer
  484  identification number on the deposit account record, and the
  485  account number, account type, and actual account balance on
  486  deposit. Public depositors shall request such confirmation
  487  information from qualified public depositories on or before the
  488  fifth calendar day of October and shall allow until October 31
  489  to receive such information. Any discrepancy found in the
  490  confirmation process must shall be resolved reconciled before
  491  November 30.
  492         (8) If a public depositor does not comply with this section
  493  with respect to on each public deposit account, the protection
  494  from loss provided under in s. 280.18 is not effective as to
  495  that public deposit account. However, if a public depositor
  496  fails to present the form prescribed by the Chief Financial
  497  Officer for identifying public deposit accounts, the protection
  498  from loss provided under s. 280.18 is effective if the Chief
  499  Financial Officer determines that the defaulting depository has
  500  classified, reported, and collateralized the account as public
  501  deposits.
  502         Section 12. This act shall take effect July 1, 2014.