Senate Bill 2186e1

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    SB 2186                                        First Engrossed



  1                      A bill to be entitled

  2         An act relating to government accountability

  3         and legal proceedings; creating s. 60.08, F.S.;

  4         providing for injunctions without bond when

  5         sought by the state or its agencies; providing

  6         for severability; amending s. 11.066, F.S.;

  7         providing that property of the state or a

  8         monetary recovery made on behalf of the state

  9         is not subject to a lien unless authorized by

10         law; amending s. 112.3175, F.S.; providing that

11         certain contracts executed in violation of part

12         III of ch. 112, F.S., are presumed void or

13         voidable; amending s. 112.3185, F.S.;

14         prohibiting a state employee from holding

15         certain employment or contractual relationships

16         following resignation of such employment;

17         amending s. 287.058, F.S.; requiring that

18         certain state contracts be subject to

19         cancellation upon refusal by the contractor to

20         allow access to public records; amending s.

21         287.059, F.S.; providing additional

22         requirements for contracts for private attorney

23         services; providing requirements for

24         contingency fee contracts; providing

25         requirements if multiple law firms are parties

26         to a contract; providing requirements for

27         private attorneys with respect to maintaining

28         documents and records and making such documents

29         and records available for inspection; providing

30         an effective date.

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    SB 2186                                        First Engrossed



  1  Be It Enacted by the Legislature of the State of Florida:

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  3         Section 1.  Subsection (5) is added to section 11.066,

  4  Florida Statutes, to read:

  5         11.066  Suits seeking monetary damages against the

  6  state or its agencies; payment of judgments; appropriations

  7  required.--

  8         (5)  The property of the state, the property of any

  9  state agency, or any monetary recovery made on behalf of the

10  state or any state agency is not subject to a lien of any

11  kind, and a person may not institute an action on any such

12  lien unless expressly authorized by law.

13         Section 2.  Section 112.3175, Florida Statutes, is

14  amended to read:

15         112.3175  Remedies; contracts voidable.--

16         (1)  Any contract that which has been executed in

17  violation of this part is voidable:

18         (a)(1)  By any party to the contract.

19         (b)(2)  In any circuit court, by any appropriate

20  action, by:

21         1.(a)  The commission.

22         2.(b)  The Attorney General.

23         3.(c)  Any citizen materially affected by the contract

24  and residing in the jurisdiction represented by the officer or

25  agency entering into such contract.

26         (2)  Any contract that has been executed in violation

27  of this part is presumed void with respect to any former

28  employee of a state agency and is voidable with respect to any

29  private-sector third party who employs or retains in any

30  capacity such former agency employee.

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    SB 2186                                        First Engrossed



  1         Section 3.  Subsection (3) of section 112.3185, Florida

  2  Statutes, is amended to read:

  3         112.3185  Contractual services.--

  4         (3)  No agency employee shall, after retirement, or

  5  termination, or resignation, have or hold any employment or

  6  contractual relationship with any business entity other than

  7  an agency in connection with any contract in which the agency

  8  employee participated personally and substantially through

  9  decision, approval, disapproval, recommendation, rendering of

10  advice, or investigation while an officer or employee.

11         Section 4.  Subsection (1) of section 287.058, Florida

12  Statutes, is amended to read:

13         287.058  Contract document.--

14         (1)  Every procurement of contractual services in

15  excess of the threshold amount provided in s. 287.017 for

16  CATEGORY TWO, except for the providing of health and mental

17  health services or drugs in the examination, diagnosis, or

18  treatment of sick or injured state employees or the providing

19  of other benefits as required by the provisions of chapter

20  440, shall be evidenced by a written agreement embodying all

21  provisions and conditions of the procurement of such services,

22  which provisions and conditions shall, where applicable,

23  include, but shall not be limited to:

24         (a)  A provision that bills for fees or other

25  compensation for services or expenses be submitted in detail

26  sufficient for a proper preaudit and postaudit thereof.

27         (b)  A provision that bills for any travel expenses be

28  submitted in accordance with s. 112.061.  A state agency may

29  establish rates lower than the maximum provided in s. 112.061.

30         (c)  A provision allowing unilateral cancellation by

31  the agency for refusal by the contractor to allow public


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    SB 2186                                        First Engrossed



  1  access to all documents, papers, letters, or other material

  2  subject to the provisions of chapter 119 and made or received

  3  by the contractor in conjunction with the contract, unless the

  4  records are exempt from s. 119.07(1).

  5         (d)  A provision dividing the contract into units of

  6  deliverables, which shall include, but not be limited to,

  7  reports, findings, and drafts, that must be received and

  8  accepted in writing by the contract manager prior to payment.

  9         (e)  A provision specifying the criteria and the final

10  date by which such criteria must be met for completion of the

11  contract.

12         (f)  A provision specifying that the contract may be

13  renewed on a yearly basis for a period of up to 2 years after

14  the initial contract or for a period no longer than the term

15  of the original contract, whichever period is longer,

16  specifying the terms under which the cost may change as

17  determined in the invitation to bid or request for proposals,

18  and specifying that renewals shall be contingent upon

19  satisfactory performance evaluations by the agency and subject

20  to the availability of funds.

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22  In lieu of a written agreement, the department may authorize

23  the use of a purchase order for classes of contractual

24  services, provided the provisions of paragraphs (a)-(f) are

25  included in the purchase order, invitation to bid, or request

26  for proposals.  The purchase order shall include an adequate

27  description of the services, the contract period, and the

28  method of payment. In lieu of printing the provisions of

29  paragraphs (a)-(f) in the contract document or purchase order,

30  agencies may incorporate the requirements of paragraphs

31  (a)-(f) by reference.


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    SB 2186                                        First Engrossed



  1         Section 5.  Section 287.059, Florida Statutes, is

  2  amended to read:

  3         287.059  Private attorney services.--

  4         (1)  For purposes of this section, the term "agency" or

  5  "state agency" includes state officers, departments, boards,

  6  commissions, divisions, bureaus, councils, and units of

  7  organization, however designated, of the executive branch of

  8  state government, community and junior colleges, and

  9  multicounty special districts exclusive of those created by

10  interlocal agreement or which have elected governing boards.

11         (2)  No agency shall contract for private attorney

12  services without the prior written approval of the Attorney

13  General, except that such written approval is not required for

14  private attorney services:

15         (a)  Procured by the Executive Office of the Governor

16  or any department under the exclusive jurisdiction of a single

17  Cabinet officer.

18         (b)  Provided by legal services organizations to

19  indigent clients.

20         (c)  Necessary to represent the state in litigation

21  involving the Florida Casualty Insurance Risk Management Trust

22  Fund pursuant to part II of chapter 284.

23         (d)  Procured by the Board of Regents and the

24  universities of the State University System.

25         (e)  Procured by community and junior colleges and

26  multicounty special districts.

27         (f)  Procured by the Board of Trustees for the Florida

28  School for the Deaf and the Blind.

29         (3)  An agency requesting approval for the use of

30  private attorney services shall first offer to contract with

31  the Department of Legal Affairs for such attorney services at


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    SB 2186                                        First Engrossed



  1  a cost pursuant to mutual agreement. The Attorney General

  2  shall decide on a case-by-case basis to accept or decline to

  3  provide such attorney services as staffing, expertise, or

  4  other legal or economic considerations warrant.  If the

  5  Attorney General declines to provide the requested attorney

  6  services, the Attorney General's written approval shall

  7  include a statement that the private attorney services

  8  requested cannot be provided by the office of the Attorney

  9  General or that such private attorney services are

10  cost-effective in the opinion of the Attorney General.  The

11  Attorney General shall not consider political affiliation in

12  making such decision.  The office of the Attorney General

13  shall respond to the request of an agency for prior written

14  approval within 10 working days after receiving such request.

15  The Attorney General may request additional information

16  necessary for evaluation of a request.  The Attorney General

17  shall respond to the request within 10 working days after

18  receipt of the requested information. Those agencies exempt

19  from written approval from the Attorney General, as described

20  in paragraphs (2)(a)-(f), may contract with the Department of

21  Legal Affairs for attorney services.  The Attorney General

22  shall determine on a case-by-case basis whether to provide

23  such attorney services as staffing, expertise, or other legal

24  considerations warrant.  The Attorney General may adopt, by

25  rule, a form on which agencies requesting written approval for

26  private attorney services shall provide information

27  concerning:

28         (a)  The nature of the attorney services to be provided

29  and the issues involved.

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    SB 2186                                        First Engrossed



  1         (b)  The need for use of private attorneys, rather than

  2  agency staff attorneys, utilizing the criteria provided in

  3  subsection (9)(8).

  4         (c)  The criteria by which the agency selected the

  5  private attorney or law firm it proposes to employ, utilizing

  6  the criteria provided in subsection (10)(9).

  7         (d)  Competitive fees for similar attorney services.

  8         (e)  The agency's analysis estimating the number of

  9  hours for attorney services, the costs, the total contract

10  amount, and, when appropriate, a risk or cost-benefit

11  analysis.

12         (f)  Which partners, associates, paralegals, research

13  associates, or other personnel will be used, and how their

14  time will be billed to the agency.

15         (g)  Any other information which the Attorney General

16  deems appropriate for the proper evaluation of the need for

17  such private attorney services.

18         (4)  When written approval has been received from the

19  Attorney General, the general counsel for the agency shall

20  review the form and legality of the contract for private

21  attorney services and shall indicate his or her approval by

22  signing the contract written final approval must be obtained

23  from the agency head, or designee of the agency head, prior to

24  the contracting for private attorney services. After a

25  contract is approved by the general counsel, the agency head

26  shall sign and maintain custody of the contract.

27         (5)  The agency head or a designee shall give written

28  approval prior to contracting for private attorney services

29  for all agencies exempt from written approval of the Attorney

30  General as described in paragraphs (2)(a)-(f).

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    SB 2186                                        First Engrossed



  1         (6)  The Attorney General shall, by rule, adopt a

  2  standard fee schedule for private attorney services using

  3  hourly rates or an alternative billing methodology. The

  4  Attorney General shall take into consideration the following

  5  factors:

  6         (a)  Type of controversy involved and complexity of the

  7  legal services needed.

  8         (b)  Geographic area where the attorney services are to

  9  be provided.

10         (c)  Novelty of the legal questions involved.

11         (d)  Amount of experience desired for the particular

12  kind of attorney services to be provided.

13         (e)  Other factors deemed appropriate by the Attorney

14  General.

15         (f)  The most cost-effective or appropriate billing

16  methodology.

17         (7)(a)  A contingency fee contract must be commercially

18  reasonable. As used in this subsection, the term "commercially

19  reasonable" means the amount permissible pursuant to Rule

20  4-1.5 of the Rules Regulating The Florida Bar and case law

21  interpreting that rule.

22         (b)  If the amount of the fee is in dispute, the

23  counsel retained by the state shall participate in mandatory,

24  binding arbitration. Payment of all attorney's fees is subject

25  to appropriation. Attorney's fees shall be forfeited if,

26  during the pendency of the case, the counsel retained by the

27  state takes a public position that is adverse to the state's

28  litigation or settlement posture.

29         (8)(7)  All agencies, when contracting for private

30  attorney services, must use the standard fee schedule for

31  private attorney services as established pursuant to this


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    SB 2186                                        First Engrossed



  1  section unless the head of the agency, or his or her designee,

  2  waives use of the schedule and sets forth the reasons for

  3  deviating from the schedule in writing to the Attorney

  4  General.  Such waiver must demonstrate necessity based upon

  5  criteria for deviation from the schedule which the Attorney

  6  General shall establish by rule.

  7         (9)(8)  The Attorney General shall develop guidelines

  8  that may be used by agencies to determine when it is necessary

  9  and appropriate to seek private attorney services in lieu of

10  staff attorney services.

11         (10)(9)  Agencies are encouraged to use the following

12  criteria when selecting outside firms for attorney services:

13         (a)  The magnitude or complexity of the case.

14         (b)  The firm's ratings and certifications.

15         (c)  The firm's minority status.

16         (d)  The firm's physical proximity to the case and the

17  agency.

18         (e)  The firm's prior experience with the agency.

19         (f)  The firm's prior experience with similar cases or

20  issues.

21         (g)  The firm's billing methodology and proposed rate.

22         (h)  The firm's current or past adversarial position,

23  or conflict of interest, with the agency.

24         (i)  The firm's willingness to use resources of the

25  agency to minimize costs.

26         (11)(10)  The Attorney General shall develop a standard

27  addendum to every contract for attorney services that must be

28  used by all agencies, unless waived by the Attorney General,

29  describing in detail what is expected of both the contracted

30  private attorney and the contracting agency. The addendum must

31  address the internal system of governance if multiple law


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    SB 2186                                        First Engrossed



  1  firms are parties to the contract and must, at a minimum,

  2  require that each firm identify one member who is authorized

  3  to legally bind the firm.

  4         (12)(11)  Contracts for attorney services shall be

  5  originally executed for 1 year only, except that multiyear

  6  contracts may be entered into provided they are subject to

  7  annual appropriations and annual written approval from the

  8  Attorney General as described in subsection (3).  Any

  9  amendments to extend the contract period or increase the

10  billing rate or overall contract amount shall be considered

11  new contracts for purposes of the written approval process

12  described in subsection (3).

13         (13)(12)  The office of the Attorney General shall

14  periodically prepare and distribute to agencies a roster by

15  geographic location of private attorneys under contract with

16  agencies, their fees, and primary area of legal

17  specialization.

18         (14)(13)  The office of the Attorney General is

19  authorized to competitively bid and contract with one or more

20  court reporting services, on a circuitwide basis, on behalf of

21  all state agencies in accordance with s. 287.057(2). The

22  office of the Attorney General shall develop requests for

23  proposal for court reporter services in consultation with the

24  Florida Court Reporters Association.  All agencies shall

25  utilize the contracts for court reporting services entered

26  into by the Office of the Attorney General where in force,

27  unless otherwise ordered by a court or unless an agency has a

28  contract for court reporting services executed prior to May 5,

29  1993.

30         (15)(14)  The Attorney General's office may, by rule,

31  adopt standard fee schedules for court reporting services for


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    SB 2186                                        First Engrossed



  1  each judicial circuit in consultation with the Florida Court

  2  Reporters Association.  Agencies, when contracting for court

  3  reporting services, must use the standard fee schedule for

  4  court reporting services established pursuant to this section,

  5  provided no state contract is applicable or unless the head of

  6  the agency or his or her designee waives use of the schedule

  7  and sets forth the reasons for deviating from the schedule in

  8  writing to the Attorney General. Such waiver must demonstrate

  9  necessity based upon criteria for deviation from the schedule

10  which the Attorney General shall establish by rule.  Any

11  proposed fee schedule under this section shall be submitted to

12  the Governor, the Speaker of the House of Representatives, the

13  President of the Senate, and the Chief Justice of the Florida

14  Supreme Court at least 60 days prior to publication of the

15  notice to adopt the rule.

16         (16)  Each private attorney who is under contract to

17  provide attorney services for the state or a state agency

18  shall, from the inception of the contractual relationship

19  until at least 4 years after the contract expires or

20  terminates, maintain detailed current records, including

21  documentation of all expenses, disbursements, charges,

22  credits, underlying receipts and invoices, and other financial

23  transactions that concern the provision of such attorney

24  services. The private attorney shall make all such records

25  available for inspection and copying upon request in

26  accordance with chapter 119.

27         Section 6.  Section 60.08, Florida Statutes, is created

28  to read:

29         60.08  Injunctions sought by the state pursuant to

30  statute shall issue without bond.--In any action for

31  injunctive relief sought by the state or one of its agencies


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    SB 2186                                        First Engrossed



  1  as provided in ss. 501.207(1)(b), 542.23, and 895.05(5), any

  2  injunction sought shall issue without bond or surety and no

  3  bond or surety shall be required during the term of the

  4  injunction.

  5         Section 7.  If any provision of this act or the

  6  application thereof to any person or circumstance is held

  7  invalid, the invalidity does not affect other provisions or

  8  applications of the act which can be given effect without the

  9  invalid provision or application, and to this end the

10  provisions of this act are declared severable.

11         Section 8.  This act shall take effect July 1, 2000.

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