Florida Senate - 2014                              CS for SB 564
       
       
        
       By the Committee on Banking and Insurance; and Senator Richter
       
       
       
       
       
       597-01764-14                                           2014564c1
    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 a bank,
   16         savings bank, or savings association; amending s.
   17         280.10, F.S.; providing that a bank, savings bank, or
   18         savings association that is not a qualified public
   19         depository and acquires Florida public deposits is
   20         subject to certain requirements; amending s. 280.11,
   21         F.S.; conforming provisions to changes made by the
   22         act; amending s. 280.16, F.S.; deleting obsolete
   23         provisions; revising provisions relating to required
   24         reports and forms; amending s. 280.17, F.S.; deleting
   25         obsolete provisions; deleting a provision requiring
   26         public depositories to request confirmation
   27         information from qualified public depositories by a
   28         certain date; providing that a protection from loss is
   29         effective when a public depositor does not comply with
   30         certain provisions under specified circumstances;
   31         providing an effective date.
   32          
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Section 280.02, Florida Statutes, is reordered
   36  and amended to read:
   37         280.02 Definitions.—As used in this chapter, the term:
   38         (1) “Affiliate” means an entity that is related through a
   39  parent corporation’s controlling interest. The term also
   40  includes a any financial institution holding company or a any
   41  subsidiary or service corporation of such holding company.
   42         (2) “Alternative participation agreement” means an
   43  agreement of restrictions that a qualified public depository
   44  completes as an alternative to immediately withdrawing from the
   45  public deposits program due to financial condition.
   46         (3) “Average daily balance” means the average daily balance
   47  of public deposits held during the reported month. The average
   48  daily balance shall must be determined by totaling, by account,
   49  the daily balances held by the depositor and then dividing the
   50  total by the number of calendar days in the month. Deposit
   51  insurance is then deducted from each account balance and the
   52  resulting amounts are totaled to obtain the average daily
   53  balance.
   54         (4) “Average monthly balance” means the average monthly
   55  balance of public deposits held, before deducting deposit
   56  insurance, by the depository during any 12 calendar months. The
   57  average monthly balance of the previous 12 calendar months shall
   58  must be determined by adding the average daily balance before
   59  deducting deposit insurance for the reported month and the
   60  average daily balances before deducting deposit insurance for
   61  the 11 months preceding that month and dividing the total by 12.
   62         (5) “Book-entry form” means that securities are not
   63  represented by a paper certificate but represented by an account
   64  entry on the records of a depository trust clearing system or,
   65  in the case of United States Government securities, a Federal
   66  Reserve Bank.
   67         (26)(6)“Tangible equity capital” “Capital account” means
   68  total equity capital, as defined on the balance-sheet portion of
   69  the Consolidated Reports of Condition and Income or (call
   70  report) or the Thrift Financial Report, less intangible assets,
   71  as submitted to the regulatory banking authority.
   72         (7) “Collateral-pledging level,for qualified public
   73  depositories, means the percentage of collateral required to be
   74  pledged by a qualified public depository as provided under in s.
   75  280.04 by a financial institution.
   76         (8) “Current month” means the month immediately following
   77  the month for which the monthly report is due from qualified
   78  public depositories.
   79         (9) “Custodian” means the Chief Financial Officer or a any
   80  bank, savings association, or trust company that:
   81         (a) Is organized and existing under the laws of this state,
   82  any other state, or the United States;
   83         (b) Has executed all forms required under this chapter or
   84  any rule adopted hereunder;
   85         (c) Agrees to be subject to the jurisdiction of the courts
   86  of this state, or of the courts of the United States which are
   87  located within this state, for the purpose of any litigation
   88  arising out of this chapter; and
   89         (d) Has been approved by the Chief Financial Officer to act
   90  as a custodian.
   91         (10) “Default or insolvency” includes, without limitation,
   92  the failure or refusal of a qualified public depository to pay a
   93  any check or warrant drawn upon sufficient and collected funds
   94  by a any public depositor or to return a any deposit on demand
   95  or at maturity together with interest as agreed; the issuance of
   96  an order by a any supervisory authority restraining such
   97  depository from making payments of deposit liabilities; or the
   98  appointment of a receiver for such depository.
   99         (11) “Effective date of notice of withdrawal or order of
  100  discontinuance” pursuant to s. 280.11(3) means that date which
  101  is set out as such in any notice of withdrawal or order of
  102  discontinuance from the Chief Financial Officer.
  103         (11)(12) “Eligible collateral” means securities, Federal
  104  Home Loan Bank letters of credit, and cash, as designated in s.
  105  280.13.
  106         (12)(13) “Financial institution” means, including, but not
  107  limited to, an association, bank, brokerage firm, credit union,
  108  industrial savings bank, savings and loan association, trust
  109  company, or other type of financial institution organized under
  110  the laws of this state or any other state of the United States
  111  and doing business in this state or any other state, in the
  112  general nature of the business conducted by banks and savings
  113  associations.
  114         (13)(14) “Governmental unit” means the state or any county,
  115  school district, community college district, state university,
  116  special district, metropolitan government, or municipality,
  117  including any agency, board, bureau, commission, and institution
  118  of any of such entities, or any court.
  119         (14)(15) “Loss to public depositors” means loss of all
  120  principal and all interest or other earnings on the principal
  121  accrued or accruing as of the date the qualified public
  122  depository was declared in default or insolvent.
  123         (15)(16) “Market value” means the value of collateral
  124  calculated pursuant to s. 280.04.
  125         (16)(17) “Operating subsidiary” means the qualified public
  126  depository’s 100 percent 100-percent owned corporation that has
  127  ownership of pledged collateral. The operating subsidiary may
  128  not have no powers beyond those that its parent qualified public
  129  depository may itself exercise. The use of an operating
  130  subsidiary is at the discretion of the qualified public
  131  depository and must meet the Chief Financial Officer’s
  132  requirements.
  133         (18) “Oversight board” means the qualified public
  134  depository oversight board created in s. 280.071 for the purpose
  135  of safeguarding the integrity of the public deposits program and
  136  preventing the realization of loss assessments through
  137  standards, policies, and recommendations for actions to the
  138  Chief Financial Officer.
  139         (17)(19) “Pledged collateral” means securities or cash held
  140  separately and distinctly by an eligible custodian for the
  141  benefit of the Chief Financial Officer to be used as security
  142  for Florida public deposits. This includes maturity and call
  143  proceeds.
  144         (18)(20) “Pledgor” means the qualified public depository
  145  and, if one is used, operating subsidiary.
  146         (19)(21) “Pool figure” means the total average monthly
  147  balances of public deposits held by all qualified public
  148  depositories during the immediately preceding 12-month period.
  149         (22) “Previous month” means the month or months immediately
  150  preceding the month for which a monthly report is due from
  151  qualified public depositories.
  152         (20)(23) “Public deposit” means the moneys of a
  153  governmental unit the state or of any state university, county,
  154  school district, community college district, special district,
  155  metropolitan government, or municipality, including agencies,
  156  boards, bureaus, commissions, and institutions of any of the
  157  foregoing, or of any court, and includes the moneys of all
  158  county officers, including constitutional officers, which that
  159  are placed on deposit in a bank, savings bank, or savings
  160  association and for which the bank, savings bank, or savings
  161  association is required to maintain reserves. This includes, but
  162  is not limited to, time deposit accounts, demand deposit
  163  accounts, and nonnegotiable certificates of deposit. Moneys in
  164  deposit notes and in other nondeposit accounts such as
  165  repurchase or reverse repurchase operations are not public
  166  deposits. Securities, mutual funds, and similar types of
  167  investments are not considered public deposits and are shall not
  168  be subject to the provisions of this chapter.
  169         (21)(24) “Public depositor” means the official custodian of
  170  funds for a governmental unit who is responsible for handling
  171  public deposits.
  172         (22)(25) “Public deposits program” means the Florida
  173  Security for Public Deposits Act contained in this chapter and
  174  any rule adopted under this chapter.
  175         (23)(26) “Qualified public depository” means a any bank,
  176  savings bank, or savings association that:
  177         (a) Is organized and exists under the laws of the United
  178  States or, the laws of this state or any other state or
  179  territory of the United States.
  180         (b) Has its principal place of business in this state or
  181  has a branch office in this state which is authorized under the
  182  laws of this state or of the United States to receive deposits
  183  in this state.
  184         (c) Has deposit insurance pursuant to under the provision
  185  of the Federal Deposit Insurance Act, as amended, 12 U.S.C. ss.
  186  1811 et seq.
  187         (d) Has procedures and practices for accurate
  188  identification, classification, reporting, and collateralization
  189  of public deposits.
  190         (e) Meets all the requirements of this chapter.
  191         (f) Has been designated by the Chief Financial Officer as a
  192  qualified public depository.
  193         (24)(27) “Reported month” means the month for which a
  194  monthly report is due from qualified public depositories.
  195         (25)(28) “Required collateral” of a qualified public
  196  depository means eligible collateral having a market value equal
  197  to or in excess of the amount required under pursuant to s.
  198  280.04.
  199         (6)(29) “Chief Financial Officer’s custody” is a collateral
  200  arrangement governed by a contract between a designated Chief
  201  Financial Officer’s custodian and the Chief Financial Officer.
  202  This arrangement requires that collateral to be in the Chief
  203  Financial Officer’s name in order to perfect the security
  204  interest.
  205         (27)(30) “Triggering events” are events set out in s.
  206  280.041 which give the Chief Financial Officer the right to:
  207         (a) Instruct the custodian to transfer securities pledged,
  208  interest payments, and other proceeds of pledged collateral not
  209  previously credited to the pledgor.
  210         (b) Demand payment under letters of credit.
  211         Section 2. Paragraph (e) of subsection (3) of section
  212  280.03, Florida Statutes, is amended to read:
  213         280.03 Public deposits to be secured; prohibitions;
  214  exemptions.—
  215         (3) The following are exempt from the requirements of, and
  216  protection under, this chapter:
  217         (e) Public deposits that which are fully secured pursuant
  218  to a collateral requirement under federal regulations.
  219         Section 3. Subsections (1) and (2) of section 280.04,
  220  Florida Statutes, are amended to read:
  221         280.04 Collateral for public deposits; general provisions.—
  222         (1) The Chief Financial Officer shall determine the
  223  collateral requirements and collateral-pledging collateral
  224  pledging level for each qualified public depository following
  225  procedures established by rule. These procedures must shall
  226  include numerical parameters for 25 percent, 50 percent, 110
  227  percent, and 150 percent 25-percent, 50-percent, 125-percent,
  228  and 200-percent pledge levels based on nationally recognized
  229  financial rating services information and established financial
  230  performance guidelines.
  231         (2) A qualified public depository may not accept or retain
  232  any public deposit which is required to be secured unless it
  233  deposits has deposited with the Chief Financial Officer eligible
  234  collateral at least equal to the greater of:
  235         (a) The average daily balance of public deposits which that
  236  does not exceed the lesser of its tangible equity capital
  237  account or 20 percent of the pool figure multiplied by the
  238  depository’s collateral-pledging level, plus the greater of:
  239         1. One hundred ten twenty-five percent of the average daily
  240  balance of public deposits in excess of its tangible equity
  241  capital accounts; or
  242         2. One hundred ten twenty-five percent of the average daily
  243  balance of public deposits in excess of 20 percent of the pool
  244  figure.
  245         (b) Twenty-five percent of the average monthly balance of
  246  public deposits.
  247         (c) One hundred ten twenty-five percent of the average
  248  daily balance of public deposits if the qualified public
  249  depository:
  250         1. Has been established for less than 3 years;
  251         2. Has experienced material decreases in its tangible
  252  equity capital accounts; or
  253         3. Has an overall financial condition that is materially
  254  deteriorating.
  255         (d) One Two hundred fifty percent of an established maximum
  256  amount of public deposits which that has been mutually agreed
  257  upon by and between the Chief Financial Officer and the
  258  qualified public depository.
  259         (e) Minimum required collateral of $100,000.
  260         (f) An amount as required in special instructions from the
  261  Chief Financial Officer to protect the integrity of the public
  262  deposits program.
  263         Section 4. Subsections (1), (2), (3), and (16) of section
  264  280.05, Florida Statutes, are amended to read:
  265         280.05 Powers and duties of the Chief Financial Officer.—In
  266  fulfilling the requirements of this act, the Chief Financial
  267  Officer has the power to take the following actions he or she
  268  deems necessary to protect the integrity of the public deposits
  269  program:
  270         (1) Identify representative qualified public depositories
  271  and furnish notification for the qualified public depository
  272  oversight board selection pursuant to s. 280.071.
  273         (2) Provide data for the qualified public depository
  274  oversight board duties pursuant to s. 280.071 regarding:
  275         (a) Establishing standards for qualified public
  276  depositories and custodians.
  277         (b) Evaluating requests for exceptions to standards and
  278  alternative participation agreements.
  279         (c) Reviewing and recommending action for qualified public
  280  depository or custodian violations.
  281         (3) Review, implement, monitor, evaluate, and modify all or
  282  any part of the standards, policies, or recommendations of the
  283  qualified public depository oversight board.
  284         (13)(16) Require the filing of the following reports, which
  285  the Chief Financial Officer shall process as provided:
  286         (a) Qualified public depository monthly reports and
  287  schedules. The Chief Financial Officer shall review the reports
  288  of each qualified public depository for material changes in
  289  tangible equity capital accounts or changes in name, address, or
  290  type of institution; record the average daily balances of public
  291  deposits held; and monitor the collateral-pledging levels and
  292  required collateral.
  293         (b) Quarterly regulatory reports from qualified public
  294  depositories. The Chief Financial Officer shall analyze
  295  qualified public depositories ranked in the lowest category
  296  based on established financial condition criteria.
  297         (c) Qualified public depository annual reports and public
  298  depositor annual reports. The Chief Financial Officer shall
  299  compare public deposit information reported by qualified public
  300  depositories and public depositors. Such comparison shall be
  301  conducted for qualified public depositories that which are
  302  ranked in the lowest category based on established financial
  303  condition criteria of record on September 30. Additional
  304  comparison processes may be performed as public deposits program
  305  resources permit.
  306         (d) Any related documents, reports, records, or other
  307  information deemed necessary by the Chief Financial Officer in
  308  order to ascertain compliance with this chapter.
  309         Section 5. Subsections (2), (6), and (12) of section
  310  280.051, Florida Statutes, are amended to read:
  311         280.051 Grounds for suspension or disqualification of a
  312  qualified public depository.—A qualified public depository may
  313  be suspended or disqualified or both if the Chief Financial
  314  Officer determines that the qualified public depository has:
  315         (2) Submitted reports containing inaccurate or incomplete
  316  information regarding public deposits or collateral for such
  317  deposits, tangible equity capital accounts, or the calculation
  318  of required collateral.
  319         (6) Failed to furnish the Chief Financial Officer with
  320  prompt and accurate information, or failed to allow inspection
  321  and verification of any information, dealing with public
  322  deposits or dealing with the exact status of its tangible equity
  323  capital accounts, or any other financial information that the
  324  Chief Financial Officer deems determines necessary to verify
  325  compliance with this chapter or any rule adopted pursuant to
  326  this chapter.
  327         (12) Failed to execute or have the custodian execute a
  328  collateral control public depository pledge agreement before
  329  prior to using a custodian.
  330         Section 6. Section 280.071, Florida Statutes, is repealed.
  331         Section 7. Section 280.085, Florida Statutes, is amended to
  332  read:
  333         280.085 Notice to claimants.—
  334         (1) Upon determining the default or insolvency of a
  335  qualified public depository, the Chief Financial Officer shall
  336  notify, by first-class mail, all public depositors that have
  337  complied with s. 280.17 of such default or insolvency. The
  338  notice must shall direct all public depositors having claims or
  339  demands against the Public Deposits Trust Fund occasioned by the
  340  default or insolvency to file their claims with the Chief
  341  Financial Officer within 30 days after the date of the notice.
  342         (a)(2)A No claim against the Public Deposits Trust Fund is
  343  binding on the fund only if unless presented within 30 days
  344  after the date of the notice.
  345         (b) The notice is not required if the default or insolvency
  346  is resolved in a manner whereby all Florida public deposits are
  347  acquired by a bank, savings bank, or savings association.
  348         (2)(3) This section does not affect any proceeding to:
  349         (a) Enforce any real property mortgage, chattel mortgage,
  350  security interest, or other lien on property of a qualified
  351  public depository that is in default or insolvency; or
  352         (b) Establish liability of a qualified public depository
  353  that is in default or insolvency to the limits of any federal or
  354  other casualty insurance protection.
  355         Section 8. Present subsections (3) through (6) of section
  356  280.10, Florida Statutes, are redesignated as subsections (4)
  357  through (7), respectively, and a new subsection (3) is added to
  358  that section, to read:
  359         280.10 Effect of merger, acquisition, or consolidation;
  360  change of name or address.—
  361         (3) If the default or insolvency of a qualified public
  362  depository results in the acquisition of all or part of its
  363  Florida public deposits by a bank, savings bank, or savings
  364  association that is not a qualified public depository, such
  365  bank, savings bank, or savings association is subject to
  366  subsection (1).
  367         Section 9. Subsection (3) of section 280.11, Florida
  368  Statutes, is amended to read:
  369         280.11 Withdrawal from public deposits program; return of
  370  pledged collateral.—
  371         (3) A qualified public depository that which is required to
  372  withdraw from the public deposits program pursuant to s.
  373  280.05(17) may s. 280.05(1)(b) shall not receive or retain
  374  public deposits after the effective date of withdrawal. The
  375  contingent liability, required collateral, and reporting
  376  requirements of the withdrawing depository shall continue until
  377  the effective date of withdrawal. The effective date of
  378  withdrawal means the date set out as such in a notice of
  379  withdrawal or (order of discontinuance) from the Chief Financial
  380  Officer which is shall be mailed to the qualified public
  381  depository by registered or certified mail. Penalties incurred
  382  because of withdrawal from the public deposits program are shall
  383  be the responsibility of the withdrawing depository.
  384         Section 10. Subsection (1) of section 280.16, Florida
  385  Statutes, is amended to read:
  386         280.16 Requirements of qualified public depositories;
  387  confidentiality.—
  388         (1) In addition to any other requirements specified in this
  389  chapter, qualified public depositories shall:
  390         (a) Take the following actions for each public deposit
  391  account:
  392         1. Identify the account as a “Florida public deposit” on
  393  the deposit account record with the name of the public depositor
  394  or provide a unique code for the account for such designation.
  395         2. When the form prescribed by the Chief Financial Officer
  396  for acknowledgment of receipt of each public deposit account is
  397  presented to the qualified public depository by the public
  398  depositor opening an account, the qualified public depository
  399  shall execute and return the completed form to the public
  400  depositor.
  401         3. When the acknowledgment of receipt form is presented to
  402  the qualified public depository by the public depositor due to a
  403  change of account name, account number, or qualified public
  404  depository name on an existing public deposit account, the
  405  qualified public depository shall execute and return the
  406  completed form to the public depositor within 45 calendar days
  407  after such presentation.
  408         4. When the acknowledgment of receipt form is presented to
  409  the qualified public depository by the public depositor on an
  410  account existing before July 1, 1998, the qualified public
  411  depository shall execute and return the completed form to the
  412  public depositor within 45 calendar days after such
  413  presentation.
  414         (b) Within 15 days after the end of each calendar month, or
  415  when requested by the Chief Financial Officer, submit to the
  416  Chief Financial Officer a written report, under oath, indicating
  417  the average daily balance of all public deposits held by it
  418  during the reported month, required collateral, a detailed
  419  schedule of all securities pledged as collateral, selected
  420  financial information, and any other information that the Chief
  421  Financial Officer deems determines necessary to administer this
  422  chapter.
  423         (c) Provide to each public depositor annually by, not later
  424  than October 30, the following information on all open accounts
  425  identified as a “Florida public deposit” for that public
  426  depositor as of September 30, to be used for confirmation
  427  purposes: the federal employer identification number of the
  428  qualified public depository, the name on the deposit account
  429  record, the federal employer identification number on the
  430  deposit account record, and the account number, account type,
  431  and actual account balance on deposit. Any discrepancy found in
  432  the confirmation process must shall be reconciled before
  433  November 30.
  434         (d) Submit to the Chief Financial Officer annually by, not
  435  later than November 30, a report of all public deposits held for
  436  the credit of all public depositors at the close of business on
  437  September 30. Such annual report must shall consist of public
  438  deposit information in a report format prescribed by the Chief
  439  Financial Officer. The manner of required filing may be as a
  440  signed writing or electronic data transmission, at the
  441  discretion of the Chief Financial Officer.
  442         (e) Submit to the Chief Financial Officer not later than
  443  the date required to be filed with the federal agency:
  444         1. A copy of the quarterly Consolidated Reports of
  445  Condition and Income, and any amended reports, required by the
  446  Federal Deposit Insurance Act, 12 U.S.C. ss. 1811 et seq., if
  447  such depository is a bank; or
  448         2. A copy of the Thrift Financial Report, and any amended
  449  reports, required to be filed with the Office of Thrift
  450  Supervision if such depository is a savings and loan
  451  association.
  452         Section 11. Subsections (2), (5), and (8) of section
  453  280.17, Florida Statutes, are amended to read:
  454         280.17 Requirements for public depositors; notice to public
  455  depositors and governmental units; loss of protection.—In
  456  addition to any other requirement specified in this chapter,
  457  public depositors shall comply with the following:
  458         (2) Beginning July 1, 1998, Each public depositor shall
  459  take the following actions For each public deposit account, the
  460  public depositor shall:
  461         (a) Ensure that the name of the public depositor is on the
  462  account or certificate or other form provided to the public
  463  depositor by the qualified public depository in a manner
  464  sufficient to identify that the account is a Florida public
  465  deposit.
  466         (b) Execute a form prescribed by the Chief Financial
  467  Officer for identification of each public deposit account and
  468  obtain acknowledgment of receipt on the form from the qualified
  469  public depository at the time of opening the account. Such
  470  public deposit identification and acknowledgment form shall be
  471  replaced with a current form as required in subsection (3). A
  472  public deposit account existing before July 1, 1998, must have a
  473  form completed before September 30, 1998.
  474         (c) Maintain the current public deposit identification and
  475  acknowledgment form as a valuable record. Such form is mandatory
  476  for filing a claim with the Chief Financial Officer upon the
  477  default or insolvency of a qualified public depository.
  478         (5) Each public depositor shall confirm annually confirm
  479  that public deposit information as of the close of business on
  480  September 30 has been provided by each qualified public
  481  depository and is in agreement with public depositor records.
  482  Such confirmation must shall include the federal employer
  483  identification number of the qualified public depository, the
  484  name on the deposit account record, the federal employer
  485  identification number on the deposit account record, and the
  486  account number, account type, and actual account balance on
  487  deposit. Public depositors shall request such confirmation
  488  information from qualified public depositories on or before the
  489  fifth calendar day of October and shall allow until October 31
  490  to receive such information. Any discrepancy found in the
  491  confirmation process must shall be resolved reconciled before
  492  November 30.
  493         (8) If a public depositor does not comply with this section
  494  with respect to on each public deposit account, the protection
  495  from loss provided under in s. 280.18 is not effective as to
  496  that public deposit account. However, if a public depositor
  497  fails to present the form prescribed by the Chief Financial
  498  Officer for identifying public deposit accounts, the protection
  499  from loss provided under s. 280.18 is effective if the Chief
  500  Financial Officer determines that the defaulting depository has
  501  classified, reported, and collateralized the account as public
  502  deposits.
  503         Section 12. This act shall take effect July 1, 2014.