Legal Report, September 2013
General Counsel, Trela J. White
1. Posting of Budget on Municipality’s Official Website
Section 166.241, Florida Statutes, states that a municipality’s tentative budget must be posted on the municipality’s official website at least 2 days before its budget hearings. The final adopted budget must be posted on the municipality’s official website within 30 days after adoption. If the municipality does not operate an official website, then the municipality must, within a reasonable period of time, transmit the tentative budget and final budget to the county administrator who shall post the budgets on the county’s website.
2. Chapter 2013-37, Laws of Florida. Increased Limits to Campaign Contributions.
Chapter 2013-37, Laws of Florida, amends Section 106.08, Florida Statutes, to provide as follows: “Except for political parties or affiliated party committees, no person or political committee may, in any election, make contributions” to a candidate for municipal office in excess of $1,000.00. This is an increase from the prior law, which limited such contributions to $500.00. The law further provides that a candidate may not accept contributions from a county executive committee of a political party whose contributions in the aggregate exceed $50,000.00, or from the national or state executive committees of a political party, including any subordinate committee of such political party or affiliated party committees, whose contributions in the aggregate exceed $50,000. This law becomes effective November 1, 2013.
3. AGO 2013-03. Fees Charged For Providing Public Records Via Electronic Mail.
A person made a request for public records to the City of Miami Gardens and demanded that the city deliver the records by electronic mail in order to avoid payment for copying costs. The requestor objected to the payment of any fees associated with transmitting the documents by way of email. The city asked the Florida Attorney General whether it could impose a fee for providing documents to a requestor by email in lieu of photocopying. The Attorney General concluded that a city may not charge such a fee. The Public Records Law does not establish a charge for providing copies by electronic mail in lieu of photocopying. Instead, the law only permits the city to charge for the “actual costs of duplication.” The Attorney General concluded that the act of forwarding copies by electronic mail does not constitute an “actual cost of duplication.” The Attorney General did state, however, that a city may always impose a reasonable service charge on a requestor if the nature or volume of the public records request requires the extensive use of information technology resources or extensive clerical or supervisory assistance. The Attorney General summarized as follows: the “fact that the request involves the use of information technology resources is not sufficient to incur the imposition of the special service charge; rather, an extensive use of such resources is required before the special service charge is authorized.”
4. Town of Gulf Stream et al vs. Palm Beach County, and Sharon R. Bock, as Clerk and Comptroller of Palm Beach County, Intervenor
Case No. 502011CA017953XXXXMB. Inspector General Funding Lawsuit.
Fourteen municipalities sued Palm Beach County challenging the method of funding for the Inspector General Program (the “OIG Program”). The current funding method authorizes the Board of County Commissioners to set an amount municipalities must pay for the OIG Program and to bill municipalities for that amount. The municipalities contend that the current funding method is an unlawful tax and invades municipal home rule budgetary authority. The County filed two counterclaims against the municipalities demanding payment for the OIG Program. On July 11, 2013, the Trial Court dismissed both of these counterclaims. Specifically, the County’s counterclaim for breach of implied contract/unjust enrichment was dismissed with prejudice on grounds that it was barred by municipal sovereign immunity. A dismissal with prejudice means that the counterclaim cannot be re-filed. The County agreed that this counterclaim should be dismissed with prejudice. The County’s counterclaim for breach of ordinance was dismissed without prejudice meaning the County could re-file the counterclaim within ten days. The Trial Court, however, stated that the County could re-file only if it was able to allege how the municipalities’ sovereign immunity had been expressly waived. The County never re-filed its counterclaim. The time allowed by the Trial Court for re-filing has passed.
On July 25, 2013, the County noticed the case for trial. A trial date has not been assigned yet.
On August 8, 2013, the Trial Court granted the municipalities’ request to file an amended complaint. The amended complaint adds a new claim that the County’s attempt to collect monies from the municipalities for the OIG Program is barred by the doctrine of sovereign immunity. This new claim asserts that municipal sovereign immunity can be waived only if the Florida Legislature has passed a law requiring municipalities to pay for the OIG Program (which it hasn’t), or if the municipalities have agreed to pay pursuant to a written interlocal agreement with the County (which they haven’t). On August 28, 2013, the County filed its Answer and Affirmative Defenses to the municipalities’ Amended Complaint. The County alleged that municipalities do not have sovereign immunity to avoid paying mandatory invoices from the County. The County also alleged that even if municipalities have sovereign immunity, it was waived by the referendum vote. On September 9, 2013, the municipalities filed a reply refuting the County’s claims.
5. City of Orlando and Lasercraft, Inc. vs. Michael Udowychenko, etc.
Case Number SC12-1471. Red Light Cameras.
This case was reported on at the July 2012 League meeting and the details are contained in the July Legal Update, which is located on the League’s website. On November 6, 2012, the Florida Supreme Court accepted jurisdiction of the case. The parties have filed their respective briefs. The Court has set oral argument for October 8, 2013, at 9:00 a.m. Directions for viewing oral argument are listed at www.floridasupremecourt.org.
6. South Florida Water Management District v. RLI Live Oak LLC
Case Number SC12-2336. New Heightened Evidentiary Burden To Enforce Regulatory Programs Through Monetary Penalties.
This case was reported on at the January 2013 League meeting and the details are contained in the January 2013 Legal Update, which is located on the League’s website. On March 7, 2013, the Florida Supreme Court accepted jurisdiction of the case. The initial brief, answer brief and reply brief have been filed. The Florida Department of Environmental Protection and Office of the Attorney General were permitted to file amicus curiae briefs in support of the South Florida Water Management District. The South Florida Water Management District has requested oral argument, but oral argument has not yet been granted. No further action has been taken by the Florida Supreme Court at this time. This case is important to municipalities because it involves what standard must be used in imposing regulatory penalties on code violators. The South Florida Water Management District argues they should only have to prove a regulatory violation by the traditional “preponderance of the evidence” standard. The landowners involved in the case argue that a regulatory violation must be proven by the higher “clear and convincing evidence” standard before monetary penalties may be imposed.