House Bill hb0577

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    Florida House of Representatives - 2002                 HB 577

        By Representatives Flanagan, Waters, Brummer and Alexander






  1                      A bill to be entitled

  2         An act relating to governmental reorganization;

  3         amending s. 20.04, F.S.; providing an exception

  4         to departmental structure requirements;

  5         deleting reference to the Department of Banking

  6         and Finance and substituting the Department of

  7         Insurance and Financial Services; creating s.

  8         20.121, F.S.; creating the Office of Chief

  9         Financial Officer; providing duties; providing

10         for a Division of Financial Investigations;

11         creating s. 20.131, F.S.; creating the

12         Department of Insurance and Financial Services;

13         providing for an executive director; providing

14         for departmental structure; creating the

15         Offices of Commissioner of Insurance and

16         Commissioner of Financial Services; providing

17         for subpoenas, sworn statements, and

18         enforcement proceedings; providing for

19         appointment and specifying qualifications for

20         each commissioner; providing jurisdiction for

21         each commissioner's office; transferring

22         certain powers, duties, functions, rules,

23         records, personnel, property, and unexpended

24         balances of appropriations, allocations, and

25         other funds to the Office of Chief Financial

26         Officer, the Department of Insurance and

27         Financial Services, the Department of Law

28         Enforcement, and the Department of Agriculture

29         and Consumer Services; specifying that rules of

30         the Department of Banking and Finance and the

31         Department of Insurance become rules of the

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  1         Department of Insurance and Financial Services;

  2         specifying that such rules become rules of the

  3         Office of Chief Financial Officer under certain

  4         circumstances; specifying that certain rules of

  5         the Department of Insurance become rules of the

  6         Department of Law Enforcement and the

  7         Department of Agriculture and Consumer

  8         Services; providing for preservation of

  9         validity of judicial or administrative actions

10         involving such departments; providing for

11         substitution of certain parties in interest in

12         such actions; creating the Office of Transition

13         Management; specifying powers and duties

14         thereof; requiring reports to the Governor and

15         the Legislature; providing duties of the

16         Division of Statutory Revision; repealing ss.

17         20.12 and 20.13, F.S., relating to the

18         Department of Banking and Finance and the

19         Department of Insurance, respectively;

20         providing an appropriation; providing effective

21         dates.

22

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

24

25         Section 1.  Effective January 7, 2003, subsection (3)

26  of section 20.04, Florida Statutes, is amended to read:

27         20.04  Structure of executive branch.--The executive

28  branch of state government is structured as follows:

29         (3)  For their internal structure, all departments,

30  except for the Department of Insurance and Financial Services

31  Banking and Finance, the Department of Children and Family

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  1  Services, the Department of Corrections, the Department of

  2  Management Services, the Department of Revenue, and the

  3  Department of Transportation, must adhere to the following

  4  standard terms:

  5         (a)  The principal unit of the department is the

  6  "division." Each division is headed by a "director."

  7         (b)  The principal unit of the division is the

  8  "bureau." Each bureau is headed by a "chief."

  9         (c)  The principal unit of the bureau is the "section."

10  Each section is headed by an "administrator."

11         (d)  If further subdivision is necessary, sections may

12  be divided into "subsections," which are headed by

13  "supervisors."

14         Section 2.  Section 20.121, Florida Statutes, is

15  created to read:

16         20.121  Office of Chief Financial Officer.--Effective

17  January 7, 2003, there is created the Office of Chief

18  Financial Officer. The head of the office is the Chief

19  Financial Officer. Pursuant to s. 4, Art. IV of the State

20  Constitution, the duties of the Chief Financial Officer are to

21  serve as the chief fiscal officer of the state, to settle and

22  approve accounts against the state, and to keep all state

23  funds and securities. The Chief Financial Officer is also the

24  administrator of the Government Employees Deferred

25  Compensation Plan and is responsible for carrying out laws

26  relating to unclaimed property and security for public

27  deposits. There is created as a subunit within the Office of

28  Chief Financial Officer the Division of Financial

29  Investigations. The Division of Financial Investigations shall

30  function as a criminal justice agency within the meaning of s.

31  943.045(10)(e) and shall have a separate budget.

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  1         Section 3.  Section 20.131, Florida Statutes, is

  2  created to read:

  3         20.131  Department of Insurance and Financial

  4  Services.--Effective January 7, 2003, there is created the

  5  Department of Insurance and Financial Services. The Governor

  6  and Cabinet shall serve as head of the department.

  7         (1)  EXECUTIVE DIRECTOR.--The executive director of the

  8  Department of Insurance and Financial Services is the chief

  9  administrator of the department and shall be appointed by the

10  Governor and Cabinet, subject to confirmation by the Senate.

11  The executive director serves at the pleasure of the Governor

12  and Cabinet. The functions of the executive director are

13  limited to personnel, administrative, and budgetary matters,

14  including administrative coordination of issues that affect

15  areas under the Offices of the Commissioner of Insurance and

16  the Commissioner of Financial Services, and coordination of

17  legislative activities.

18         (2)  DEPARTMENTAL STRUCTURE.--The Governor and Cabinet,

19  as head of the Department of Insurance and Financial Services,

20  shall adopt rules establishing the organizational structure of

21  the department. It is the intent of the Legislature to provide

22  the Governor and Cabinet with the flexibility to organize the

23  department in any manner they determine appropriate to promote

24  both efficiency and accountability, subject to the following

25  requirements:

26         (a)  The major structural unit of the department is the

27  "office." Each office is headed by a "commissioner." The

28  offices are established as follows:

29         1.  Office of the Commissioner of Insurance.--The

30  Office of the Commissioner of Insurance is responsible for all

31  activities of the department relating to the regulation of

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  1  insurance and state government risk management. The head of

  2  the office is the Commissioner of Insurance.

  3         2.  Office of the Commissioner of Financial

  4  Services.--The Office of the Commissioner of Financial

  5  Services is responsible for all activities of the department

  6  relating to the regulation of banks, credit unions, other

  7  financial institutions, finance companies, funeral and

  8  cemetery services, and securities. The head of the office is

  9  the Commissioner of Financial Services.

10         a.  The office shall include a Division of

11  Investigations and Enforcement, which is headed by a director

12  who is appointed by and serves at the pleasure of the

13  commissioner. The division shall function as a criminal

14  justice agency for purposes of ss. 943.045-943.08 and shall

15  have a separate budget. The Division of Investigations and

16  Enforcement may conduct investigations within or outside this

17  state as the division deems necessary to aid in the

18  enforcement of this section.  If during an investigation the

19  division has reason to believe that any criminal law of this

20  state has or may have been violated, the division shall refer

21  any records tending to show such violation to state or federal

22  law enforcement or prosecutorial agencies and shall provide

23  investigative assistance to those agencies as required.

24         b.(I)  The Commissioner of Financial Services may

25  demand and require full answers on oath from any person or

26  party privy to any account, claim, or demand against or by the

27  state, such as it may be the commissioner's official duty to

28  examine, which answers the commissioner may require to be in

29  writing and to be sworn to before the commissioner or the

30  office or before any judicial officer or clerk of any court of

31

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  1  the state so as to enable the commissioner to determine the

  2  justice or legality of such account, claim, or demand.

  3         (II)  In exercising authority under this section, the

  4  commissioner or his or her designee may:

  5         i.  Issue subpoenas, administer oaths, and examine

  6  witnesses.

  7         ii.  Require or permit a person to file a statement in

  8  writing, under oath or otherwise as the commissioner or his or

  9  her designee requires, as to all the facts and circumstances

10  concerning the matter to be audited, examined, or

11  investigated.

12         (III)  Subpoenas shall be issued by the commissioner or

13  his or her designee under seal commanding such witnesses to

14  appear before the commissioner, the commissioner's

15  representative, or the office at a specified time and place

16  and to bring books, records, and documents as specified or to

17  submit books, records, and documents for inspection. Such

18  subpoenas may be served by an authorized representative of the

19  commissioner or the office.

20         (IV)  In the event of noncompliance with a subpoena

21  issued pursuant to this section, the commissioner or the

22  office may petition the circuit court of the county in which

23  the person subpoenaed resides or has his or her principal

24  place of business for an order requiring the subpoenaed person

25  to appear and testify and to produce books, records, and

26  documents as specified in the subpoena. The court may grant

27  legal, equitable, or injunctive relief, including, but not

28  limited to, issuance of a writ of ne exeat or the restraint by

29  injunction or appointment of a receiver of any transfer,

30  pledge, assignment, or other disposition of such person's

31  assets or any concealment, alteration, destruction, or other

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  1  disposition of subpoenaed books, records, or documents, as the

  2  court deems appropriate, until such person has fully complied

  3  with such subpoena and the commissioner or the office has

  4  completed the audit, examination, or investigation. The

  5  commissioner or the office is entitled to the summary

  6  procedure provided in s. 51.011, and the court shall advance

  7  the cause on its calendar. Costs incurred by the commissioner

  8  or the office to obtain an order granting, in whole or in

  9  part, such petition for enforcement of a subpoena shall be

10  charged against the subpoenaed person, and failure to comply

11  with such order shall be a contempt of court.

12         (b)  For purposes of final orders under chapter 120,

13  each commissioner is the agency head for all areas within that

14  commissioner's jurisdiction and shall be responsible for, and

15  take final agency action related to, orders within the

16  regulatory authority delegated to that commissioner's office.

17         (3)  APPOINTMENT AND QUALIFICATIONS OF

18  COMMISSIONERS.--Each commissioner shall be appointed by, and

19  shall serve at the pleasure of, the executive director.

20  Appointment of a commissioner is subject to the approval of

21  the Governor and Cabinet. The minimum qualifications of the

22  commissioners are as follows:

23         (a)  Prior to appointment as commissioner, the

24  Commissioner of Insurance must have had, within the previous

25  10 years, at least 5 years of responsible private sector

26  experience working full-time in an area under the regulatory

27  jurisdiction of the Office of the Commissioner of Insurance or

28  at least 5 years of experience as a senior examiner or other

29  senior employee of a state or federal agency having regulatory

30  responsibility over insurers or insurance agencies.

31

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  1         (b)  Prior to appointment as commissioner, the

  2  Commissioner of Financial Services must have had, within the

  3  previous 10 years, at least 5 years of responsible private

  4  sector experience working full-time in an area under the

  5  regulatory jurisdiction of the Office of the Commissioner of

  6  Financial Services or at least 5 years of experience as a

  7  senior examiner or other senior employee of a state or federal

  8  agency having regulatory responsibility over financial

  9  institutions, finance companies, or securities companies.

10         Section 4.  Transfers.--

11         (1)  TRANSFERS TO THE OFFICE OF CHIEF FINANCIAL

12  OFFICER.--

13         (a)  All powers, duties, functions, rules, records,

14  personnel, property, and unexpended balances of

15  appropriations, allocations, and other funds of the Office of

16  the Comptroller;

17         (b)  All powers, duties, functions, rules, records,

18  personnel, property, and unexpended balances of

19  appropriations, allocations, and other funds of the Department

20  of Banking and Finance that relate to the constitutional

21  functions of the Comptroller or to duties relating to

22  unclaimed property;

23         (c)  All powers, duties, functions, rules, records,

24  personnel, property, and unexpended balances of

25  appropriations, allocations, and other funds of the Office of

26  the Treasurer, including the Government Employees Deferred

27  Compensation Plan and duties relating to security for public

28  deposits; and

29         (d)  All powers, duties, functions, rules, records,

30  personnel, property, and unexpended balances of

31  appropriations, allocations, and other funds of the Department

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  1  of Insurance that relate to the constitutional functions of

  2  the Treasurer

  3

  4  are transferred by a type two transfer, as defined in s.

  5  20.06(2), Florida Statutes, to the Office of Chief Financial

  6  Officer.

  7         (2)  TRANSFERS TO THE DEPARTMENT OF INSURANCE AND

  8  FINANCIAL SERVICES.--

  9         (a)  All powers, duties, functions, rules, records,

10  personnel, property, and unexpended balances of

11  appropriations, allocations, and other funds of the Department

12  of Banking and Finance not otherwise transferred by this act;

13  and

14         (b)  All powers, duties, functions, rules, records,

15  personnel, property, and unexpended balances of

16  appropriations, allocations, and other funds of the Department

17  of Insurance not otherwise transferred by this act

18

19  are transferred by a type two transfer, as defined in s.

20  20.06(2), Florida Statutes, to the Department of Insurance and

21  Financial Services.

22         (3)  TRANSFERS TO THE DEPARTMENT OF LAW

23  ENFORCEMENT.--All powers, duties, functions, rules, records,

24  personnel, property, and unexpended balances of

25  appropriations, allocations, and other funds of the Division

26  of Insurance Fraud of the Department of Insurance are

27  transferred by a type two transfer, as defined in s. 20.06(2),

28  Florida Statutes, to the Department of Law Enforcement.

29         (4)  TRANSFERS TO THE DEPARTMENT OF AGRICULTURE AND

30  CONSUMER SERVICES.--All powers, duties, functions, rules,

31  records, personnel, property, and unexpended balances of

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  1  appropriations, allocations, and other funds of the Division

  2  of State Fire Marshal of the Department of Insurance are

  3  transferred by a type two transfer, as defined in s. 20.06(2),

  4  Florida Statutes, to the Department of Agriculture and

  5  Consumer Services, and the Commissioner of Agriculture is

  6  designated as the State Fire Marshal.

  7         (5)  This section shall take effect January 7, 2003.

  8         Section 5.  (1)  Effective January 7, 2003, the rules

  9  of the Department of Banking and Finance and of the Department

10  of Insurance that were in effect on January 6, 2003, shall

11  become rules of the Department of Insurance and Financial

12  Services and shall remain in effect until specifically amended

13  or repealed in the manner provided by law.

14         (2)  Notwithstanding subsection (1):

15         (a)  Any such rules that relate to the constitutional

16  functions of the Comptroller or the Treasurer shall instead

17  become rules of the Office of Chief Financial Officer and

18  shall remain in effect until amended or repealed in the manner

19  provided by law.

20         (b)  Any such rules that relate to the functions of the

21  Division of Insurance Fraud of the Department of Insurance

22  shall instead become rules of the Department of Law

23  Enforcement and shall remain in effect until amended or

24  repealed in the manner provided by law.

25         (c)  Any such rules that relate to the functions of the

26  Division of State Fire Marshal of the Department of Insurance

27  shall instead become rules of the Department of Agriculture

28  and Consumer Services and shall remain in effect until amended

29  or repealed in the manner provided by law.

30         Section 6.  (1)  This act shall not affect the validity

31  of any judicial or administrative action involving the

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  1  Department of Banking and Finance or the Department of

  2  Insurance pending on January 7, 2003, and the Department of

  3  Insurance and Financial Services shall be substituted as a

  4  party in interest in any such action.

  5         (2)  Notwithstanding subsection (1),

  6         (a)  If the action involves the constitutional

  7  functions of the Comptroller or Treasurer, the Office of Chief

  8  Financial Officer shall instead be substituted as a party in

  9  interest.

10         (b)  If the action involves the functions of the

11  Division of Insurance Fraud of the Department of Insurance,

12  the Department of Law Enforcement shall instead be substituted

13  as a party in interest.

14         (c)  If the action involves the functions of the State

15  Fire Marshal or of the Division of State Fire Marshal of the

16  Department of Insurance, the Department of Agriculture and

17  Consumer Services shall instead be substituted as a party in

18  interest.

19         Section 7.  Transitional provisions.--

20         (1)  The office of executive director of the Department

21  of Insurance and Financial Services is created effective July

22  1, 2002. By no later than August 1, 2002, the Governor and

23  Cabinet shall appoint a person, subject to confirmation by the

24  Senate, who will serve as the executive director of the

25  department. However, until the creation of the department

26  takes effect on January 7, 2003, that person shall serve as

27  the head of the Office of Transition Management under

28  subsection (2).

29         (2)(a)  There is created the Office of Transition

30  Management. The office shall function independently but shall

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  1  for administrative purposes be treated as an office of the

  2  Executive Office of the Governor.

  3         (b)  The head of the office is the executive director

  4  appointed pursuant to subsection (1), who shall serve at the

  5  pleasure of the Governor and Cabinet.

  6         (c)  The office shall manage the transition to the new

  7  Department of Insurance and Financial Services and the new

  8  Office of Chief Financial Officer. The management duties of

  9  the office shall include, but not be limited to:

10         1.  Ensuring that, by no later than January 7, 2003,

11  all positions within the Office of the Commissioner of

12  Insurance and the Office of the Commissioner of Financial

13  Services, including all senior management positions, are

14  occupied by qualified persons.

15         2.  Providing written recommendations to the

16  Legislature by no later than February 1, 2003, as to statutory

17  changes that are necessary or desirable to facilitate the

18  operations of the department. These recommendations shall

19  include, but not be limited to, detailed legislative

20  recommendations regarding rulemaking procedures for the

21  Department of Insurance and Financial Services, including

22  proposals to streamline the rulemaking process and proposals

23  regarding adoption of emergency rules.

24         3.  Providing a written report that specifies the

25  placement of those positions that are transferred to the

26  Office of Chief Financial Officer and transferred to the

27  Department of Insurance and Financial Services under this act.

28  The office shall provide the report to the Governor, the

29  President of the Senate, the Speaker of the House of

30  Representatives, and the chair of each fiscal committee or

31  council of the Senate and the House of Representatives.

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  1         4.  Taking action in advance on personnel, purchasing,

  2  and administrative matters.

  3         5.  Submitting to the Governor and Cabinet a proposed

  4  organizational plan for the Department of Insurance and

  5  Financial Services, which plan the Governor and Cabinet may

  6  adopt by rule.

  7         6.  Providing monthly written transition status reports

  8  to the President of the Senate and the Speaker of the House of

  9  Representatives.

10         7.  Providing such other information as may be

11  requested by members or staff of the Legislature.

12         (d)  The Department of Banking and Finance, the

13  Department of Insurance, the Office of the Comptroller, and

14  the Office of the Treasurer shall fully cooperate with the

15  Office of Transition Management and shall promptly provide the

16  office with any requested information.

17         (e)  Funding for the Office of Transition Management

18  shall be as provided in the General Appropriations Act.

19         Section 8.  Current references in the Florida Statutes

20  affected by the passage of this act shall be conformed to

21  reflect the provisions of this act and included in the edition

22  of the Florida Statutes prepared by the Division of Statutory

23  Revision for 2003.

24         Section 9.  Effective January 7, 2003, sections 20.12

25  and 20.13, Florida Statutes, are repealed.

26         Section 10.  There is hereby appropriated $227,984 from

27  the Grants and Donations Trust Fund in the Executive Office of

28  the Governor and two full-time equivalent (FTE) positions for

29  the purpose of funding the Office of Transition Management

30  within the Executive Office of the Governor.  This shall be

31  funded by transfers of $113,992 from the Administrative Trust

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  1  Fund of the Department of Banking and Finance and $113,992

  2  from the Insurance Commissioner's Regulatory Trust Fund of the

  3  Department of Insurance to the Grants and Donations Trust Fund

  4  in the Executive Office of the Governor.  If funding for the

  5  Office of Transition Management is provided in the 2002-2003

  6  General Appropriations Act, this appropriation shall not take

  7  effect.

  8         Section 11.  Except as otherwise provided herein, this

  9  act shall take effect upon becoming a law.

10

11            *****************************************

12                          HOUSE SUMMARY

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      Creates the Department of Insurance and Financial
14    Services and repeals the present Department of Banking
      and Finance and the Department of Insurance. Provides a
15    phase-in period until January 7, 2003. See bill for
      details.
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