House Bill hb0623c1

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    Florida House of Representatives - 2001              CS/HB 623

        By the Committee on State Administration and
    Representatives Mack, Byrd, Dockery, Argenziano, McGriff and
    Haridopolos




  1                      A bill to be entitled

  2         An act relating to government accountability

  3         and legal proceedings; amending s. 11.066,

  4         F.S.; providing that property of the state or a

  5         monetary recovery made on behalf of the state

  6         is not subject to a lien; amending s. 112.3175,

  7         F.S.; providing that certain contracts executed

  8         in violation of part III of ch. 112, F.S., are

  9         presumed void or voidable; amending s. 287.058,

10         F.S.; clarifying current requirement that

11         contractor on certain state contracts must

12         allow access to public records unless the

13         records are exempt; amending s. 287.059, F.S.;

14         providing additional requirements for contracts

15         for private attorney services; providing

16         requirements for contingency fee contracts;

17         providing for binding arbitration in fee

18         disputes; providing requirements if multiple

19         law firms are parties to a contract; providing

20         requirements for private attorneys with respect

21         to maintaining documents and records and making

22         such documents and records available for

23         inspection; creating s. 60.08, F.S.; providing

24         for injunctions without bond when sought by the

25         state or its agencies; amending s. 86.091,

26         F.S.; providing that the State of Florida, the

27         Governor, any state department, agency,

28         officer, or employee shall not be made a party

29         in certain proceedings; amending s. 16.01,

30         F.S.; clarifying that certain provisions are

31         not intended to authorize the joinder of the

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  1         Attorney General as party; amending s. 48.121,

  2         F.S.; clarifying that the section is not

  3         intended to authorize the joinder of the

  4         Attorney General or a state attorney as a

  5         party; amending s. 45.062, F.S.; providing

  6         additional requirements with respect to

  7         notification of certain settlements or orders;

  8         providing that certain settlements or orders

  9         shall be contingent upon and subject to

10         legislative appropriation or statutory

11         amendment; providing for the disposition of

12         funds; providing legislative intent; amending

13         s. 216.023, F.S.; providing for an inventory of

14         all litigation in which an agency is involved

15         which may require additional appropriations to

16         the agency or amendments to the law under which

17         the agency operates as a part of legislative

18         budget requests; amending s. 284.385, F.S.;

19         revising provisions relating to the reporting

20         and handling of claims by the Department of

21         Insurance covered by the State Risk Management

22         Trust Fund; providing for severability;

23         providing an effective date.

24

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

26

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

28  Florida Statutes, to read:

29         11.066  Suits seeking monetary damages against the

30  state or its agencies; payment of judgments; appropriations

31  required.--

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

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

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

  4  kind.

  5         Section 2.  Section 112.3175, Florida Statutes, is

  6  amended to read:

  7         112.3175  Remedies; contracts voidable.--

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

  9  violation of this part is voidable:

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

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

12  action, by:

13         1.(a)  The commission.

14         2.(b)  The Attorney General.

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

16  and residing in the jurisdiction represented by the officer or

17  agency entering into such contract.

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

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

20  employee or former public official of a state agency and is

21  voidable with respect to any private-sector third party who

22  employs or retains in any capacity such former agency employee

23  or former public official.

24         Section 3.  Subsection (1) of section 287.058, Florida

25  Statutes, is amended to read:

26         287.058  Contract document.--

27         (1)  Every procurement of contractual services in

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

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

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

31  treatment of sick or injured state employees or the providing

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  1  of other benefits as required by the provisions of chapter

  2  440, shall be evidenced by a written agreement embodying all

  3  provisions and conditions of the procurement of such services,

  4  which provisions and conditions shall, where applicable,

  5  include, but shall not be limited to:

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

  7  compensation for services or expenses be submitted in detail

  8  sufficient for a proper preaudit and postaudit thereof.

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

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

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

12         (c)  A provision allowing unilateral cancellation by

13  the agency for refusal by the contractor to allow public

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

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

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

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

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

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

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

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

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

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

24  contract.

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

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

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

28  of the original contract, whichever period is longer,

29  specifying the terms under which the cost may change as

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

31  and specifying that renewals shall be contingent upon

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  1  satisfactory performance evaluations by the agency and subject

  2  to the availability of funds.

  3

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

  5  the use of a purchase order for classes of contractual

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

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

  8  for proposals.  The purchase order shall include an adequate

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

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

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

12  agencies may incorporate the requirements of paragraphs

13  (a)-(f) by reference.

14         Section 4.  Section 287.059, Florida Statutes, is

15  amended to read:

16         287.059  Private attorney services.--

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

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

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

20  organization, however designated, of the executive branch of

21  state government, community and junior colleges, and

22  multicounty special districts exclusive of those created by

23  interlocal agreement or which have elected governing boards.

24         (2)  No agency shall contract for private attorney

25  services without the prior written approval of the Attorney

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

27  private attorney services:

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

29  or any department under the exclusive jurisdiction of a single

30  Cabinet officer.

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  1         (b)  Provided by legal services organizations to

  2  indigent clients.

  3         (c)  Necessary to represent the state in litigation

  4  involving the State Risk Management Trust Fund pursuant to

  5  part II of chapter 284.

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

  7  universities of the State University System.

  8         (e)  Procured by community and junior colleges and

  9  multicounty special districts.

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

11  School for the Deaf and the Blind.

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

13  private attorney services shall first offer to contract with

14  the Department of Legal Affairs for such attorney services at

15  a cost pursuant to mutual agreement. The Attorney General

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

17  provide such attorney services as staffing, expertise, or

18  other legal or economic considerations warrant.  If the

19  Attorney General declines to provide the requested attorney

20  services, the Attorney General's written approval shall

21  include a statement that the private attorney services

22  requested cannot be provided by the office of the Attorney

23  General or that such private attorney services are

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

25  Attorney General shall not consider political affiliation in

26  making such decision.  The office of the Attorney General

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

28  approval within 10 working days after receiving such request.

29  The Attorney General may request additional information

30  necessary for evaluation of a request.  The Attorney General

31  shall respond to the request within 10 working days after

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  1  receipt of the requested information. Those agencies exempt

  2  from written approval from the Attorney General, as described

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

  4  Legal Affairs for attorney services.  The Attorney General

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

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

  7  considerations warrant.  The Attorney General may adopt, by

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

  9  private attorney services shall provide information

10  concerning:

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

12  and the issues involved.

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

14  agency staff attorneys, utilizing the criteria provided in

15  subsection (9) (8).

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

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

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

19         (d)  Competitive fees for similar attorney services.

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

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

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

23  analysis.

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

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

26  time will be billed to the agency.

27         (g)  Any other information which the Attorney General

28  deems appropriate for the proper evaluation of the need for

29  such private attorney services.

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

31  Attorney General, the general counsel for the agency shall

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  1  review the form and legality of the contract for private

  2  attorney services and shall indicate his or her approval by

  3  signing the contract written final approval must be obtained

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

  5  the contracting for private attorney services. After a

  6  contract is approved and signed by the general counsel, in

  7  order to effectuate that contract the agency head must sign

  8  the contract.  The agency head shall also maintain custody of

  9  the contract.

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

11  approval prior to contracting for private attorney services

12  for all agencies exempt from written approval of the Attorney

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

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

15  standard fee schedule for private attorney services using

16  hourly rates or an alternative billing methodology. The

17  Attorney General shall take into consideration the following

18  factors:

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

20  legal services needed.

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

22  be provided.

23         (c)  Novelty of the legal questions involved.

24         (d)  Amount of experience desired for the particular

25  kind of attorney services to be provided.

26         (e)  Other factors deemed appropriate by the Attorney

27  General.

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

29  methodology.

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

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

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  1  reasonable" means no more than the amount permissible pursuant

  2  to rule 4-1.5 of the rules regulating The Florida Bar and case

  3  law interpreting that rule.

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

  5  counsel retained by the state shall participate in mandatory

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

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

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

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

10  litigation or settlement posture.

11         (8)(7)  All agencies, when contracting for private

12  attorney services, must use the standard fee schedule for

13  private attorney services as established pursuant to this

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

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

16  deviating from the schedule in writing to the Attorney

17  General.  Such waiver must demonstrate necessity based upon

18  criteria for deviation from the schedule which the Attorney

19  General shall establish by rule.

20         (9)(8)  The Attorney General shall develop guidelines

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

22  and appropriate to seek private attorney services in lieu of

23  staff attorney services.

24         (10)(9)  Agencies are encouraged to use the following

25  criteria when selecting outside firms for attorney services:

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

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

28         (c)  The firm's minority status.

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

30  agency.

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

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

  2  issues.

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

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

  5  or conflict of interest, with the agency.

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

  7  agency to minimize costs.

  8         (11)(10)  The Attorney General shall develop a standard

  9  addendum to every contract for attorney services that must be

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

11  describing in detail what is expected of both the contracted

12  private attorney and the contracting agency. The addendum must

13  address the internal system of governance if multiple law

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

15  require that each firm identify one member who is authorized

16  to legally bind the firm.

17         (12)(11)  Contracts for attorney services shall be

18  originally executed for 1 year only, except that multiyear

19  contracts may be entered into provided they are subject to

20  annual appropriations and annual written approval from the

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

22  amendments to extend the contract period or increase the

23  billing rate or overall contract amount shall be considered

24  new contracts for purposes of the written approval process

25  described in subsection (3).

26         (13)(12)  The office of the Attorney General shall

27  periodically prepare and distribute to agencies a roster by

28  geographic location of private attorneys under contract with

29  agencies, their fees, and primary area of legal

30  specialization.

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  1         (14)(13)  The office of the Attorney General is

  2  authorized to competitively bid and contract with one or more

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

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

  5  office of the Attorney General shall develop requests for

  6  proposal for court reporter services in consultation with the

  7  Florida Court Reporters Association.  All agencies shall

  8  utilize the contracts for court reporting services entered

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

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

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

12  1993.

13         (15)(14)  The Attorney General's office may, by rule,

14  adopt standard fee schedules for court reporting services for

15  each judicial circuit in consultation with the Florida Court

16  Reporters Association.  Agencies, when contracting for court

17  reporting services, must use the standard fee schedule for

18  court reporting services established pursuant to this section,

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

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

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

22  writing to the Attorney General. Such waiver must demonstrate

23  necessity based upon criteria for deviation from the schedule

24  which the Attorney General shall establish by rule.  Any

25  proposed fee schedule under this section shall be submitted to

26  the Governor, the Speaker of the House of Representatives, the

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

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

29  notice to adopt the rule.

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

31  provide attorney services for the state or a state agency

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  1  shall, from the inception of the contractual relationship

  2  until at least 4 years after the contract expires or

  3  terminates, maintain detailed current records, including

  4  documentation of all expenses, disbursements, charges,

  5  credits, underlying receipts and invoices, and other financial

  6  transactions that concern the provision of such attorney

  7  services. The private attorney shall make all such records

  8  available for inspection and copying upon request in

  9  accordance with chapter 119.

10         Section 5.  Section 60.08, Florida Statutes, is created

11  to read:

12         60.08  Injunctions sought by the state pursuant to

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

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

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

16  injunction sought shall issue without bond or surety and no

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

18  injunction.

19         Section 6.  Section 86.091, Florida Statutes, is

20  amended to read:

21         86.091  Parties.--

22         (1)  When declaratory relief is sought, all persons may

23  be made parties who have or claim any interest which would be

24  affected by the declaration.  No declaration shall prejudice

25  the rights of persons not parties to the proceedings.

26         (2)  In any proceeding concerning the validity of a

27  county or municipal charter, ordinance, or franchise, such

28  county or municipality shall be made a party and shall be

29  entitled to be heard.  If the statute, charter, ordinance, or

30  franchise is alleged to be unconstitutional, the Attorney

31  General or the state attorney of the judicial circuit in which

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  1  the action is pending shall be served with a copy of the

  2  complaint and be entitled to be heard.

  3         (3)  In any proceeding concerning the validity of a

  4  state law or statute or a provision of the State Constitution,

  5  the State of Florida shall not be made a party nor shall the

  6  Governor or any state department, agency, officer, or employee

  7  who is not by the constitution or statute specifically

  8  responsible for the administration and enforcement of the

  9  statute, law, or constitutional provision. If such law,

10  statute, or constitutional provision is alleged to be

11  unconstitutional, the Attorney General and the state attorney

12  of the judicial circuit in which the action is pending shall

13  be served with a copy of the complaint and be entitled to be

14  heard.

15         Section 7.  Subsection (5) of section 16.01, Florida

16  Statutes, is amended to read:

17         16.01  Residence, office, and duties of Attorney

18  General.--The Attorney General:

19         (5)  Shall appear in and attend to such suits or

20  prosecutions in any other of the courts of this state or in

21  any courts of any other state or of the United States. This

22  subsection is not intended to authorize the joinder of the

23  Attorney General as a party in such suits or prosecutions.

24         Section 8.  Section 48.121, Florida Statutes, is

25  amended to read:

26         48.121  Service on the state.--When the state has

27  consented to be sued, process against the state shall be

28  served on the state attorney or an assistant state attorney

29  for the judicial circuit within which the action is brought

30  and by sending two copies of the process by registered or

31  certified mail to the Attorney General.  The state may serve

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  1  motions or pleadings within 40 days after service is made.

  2  This section is not intended to authorize the joinder of the

  3  Attorney General or a state attorney as a party in such suit

  4  or prosecution.

  5         Section 9.  Section 45.062, Florida Statutes, is

  6  amended to read:

  7         45.062  Settlements, conditions, or orders when an

  8  agency of the executive branch is a party.--

  9         (1)  In any civil action in which a state executive

10  branch agency or officer is a party in state or federal court,

11  the officer, agent, official, or attorney who represents or is

12  acting on behalf of such agency or officer may not settle such

13  action, consent to any condition, or agree to any order in

14  connection therewith, if the settlement, condition, or order

15  requires the expenditure of or the obligation to expend any

16  state funds or other state resources, or the establishment of

17  any new program, unless:

18         (a)  The expenditure is provided for by an existing

19  appropriation or program established by law; and

20         (b)  Prior written notification is given within 5

21  business days of the date the settlement or presettlement

22  agreement or order is to be made final to the President of the

23  Senate, the Speaker of the House of Representatives, the

24  Senate and House minority leaders, and the Attorney General.

25  Such notification shall specify how the agency involved will

26  address the costs in future years within the limits of current

27  appropriations.

28         (2)  The state executive branch agency or officer shall

29  negotiate a closure date as soon as possible for the civil

30  action.

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  1         (3)  The state executive branch agency or officer may

  2  not pledge any current or future action of another branch of

  3  state government as a condition for settling the civil action.

  4         (4)  Any settlement that commits the state to spending

  5  in excess of current appropriations or to policy changes

  6  inconsistent with current state law shall be contingent upon

  7  and subject to legislative appropriation or statutory

  8  amendment. The state agency or officer may agree to use all

  9  efforts to procure legislative funding or statutory amendment.

10         (5)  State agencies and officers shall report to each

11  substantive and fiscal committee of the Legislature having

12  jurisdiction over the reporting agency on all potential

13  settlements that may commit the state to:

14         (a)  Spend in excess of current appropriations; or

15         (b)  Policy changes inconsistent with current state

16  law.

17

18  The state agency or officer shall provide periodic updates to

19  the appropriate legislative committees on these issues during

20  the settlement process.

21         Section 10.  Subsection (13) is added to section

22  216.023, Florida Statutes, to read:

23         216.023  Legislative budget requests to be furnished to

24  Legislature by agencies.--

25         (13)  As a part of the legislative budget request, the

26  head of each state agency shall include an inventory of all

27  litigation in which the agency is involved which may require

28  additional appropriations to the agency or amendments to the

29  law under which the agency operates.  No later than March 1

30  following the submission of the legislative budget request,

31  the head of the state agency shall provide an update of any

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  1  additions or changes to the inventory. Such inventory shall

  2  include those items specified annually in the legislative

  3  budget instructions.

  4         Section 11.  Section 284.385, Florida Statutes, is

  5  amended to read:

  6         284.385  Reporting and handling of claims.--All

  7  departments covered by the State Risk Management Trust Fund

  8  under this part shall immediately report all known or

  9  potential claims to the Department of Insurance for handling,

10  except employment complaints which have not been filed with

11  the Florida Human Relations Commission, Equal Employment

12  Opportunity Commission, or any similar agency. When deemed

13  necessary, the Department of Insurance shall assign or

14  reassign the claim to counsel.  The assigned counsel shall

15  report regularly to the Department of Insurance and to the

16  covered department on the status of any such claims or

17  litigation as required by the Department of Insurance.  No

18  such claim shall be compromised or settled for monetary

19  compensation without the prior approval of the Department of

20  Insurance and prior notification to the covered department.

21  All departments shall cooperate with the Department of

22  Insurance in its handling of claims.  The Department of

23  Insurance, the Department of Management Services, and the

24  Department of Banking and Finance, with the cooperation of the

25  state attorneys and the clerks of the courts, shall develop a

26  system to coordinate the exchange of information concerning

27  claims for and against the state, its agencies, and its

28  subdivisions, to assist in collection of amounts due to them.

29  The covered department shall have the responsibility for the

30  settlement of any claim for injunctive or affirmative relief

31  under 42 U.S.C. s. 1983 or similar federal or state statutes.

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  1  The payment of a settlement or judgment for any claim covered

  2  and reported under this part shall be made only from the State

  3  Risk Management Trust Fund.

  4         Section 12.  If any provision of this act or the

  5  application thereof to any person or circumstance is held

  6  invalid, the invalidity does not affect other provisions or

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

  8  invalid provision or application, and to this end the

  9  provisions of this act are declared severable.

10         Section 13.  This act shall take effect July 1, 2001.

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CODING: Words stricken are deletions; words underlined are additions.