House Bill 1851

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    Florida House of Representatives - 1999                HB 1851

        By Representative Edwards






  1                      A bill to be entitled

  2         An act relating to government accountability;

  3         amending s. 11.066, F.S.; providing that

  4         property of the state or a monetary recovery

  5         made on behalf of the state is not subject to a

  6         lien unless authorized by law; amending s.

  7         112.3175, F.S.; providing that certain

  8         contracts executed in violation of part III of

  9         ch. 112, F.S., are presumed void or voidable;

10         amending s. 112.3185, F.S.; prohibiting a state

11         employee from holding certain employment or

12         contractual relationships following resignation

13         of such employment; amending s. 287.058, F.S.;

14         requiring that certain state contracts be

15         subject to cancellation upon refusal by the

16         contractor to allow access to public records;

17         amending s. 287.059, F.S.; providing additional

18         requirements for contracts for private attorney

19         services; providing requirements for

20         contingency fee contracts; providing

21         requirements if multiple law firms are parties

22         to a contract; providing requirements for

23         private attorneys with respect to maintaining

24         documents and records and making such documents

25         and records available for inspection; providing

26         an effective date.

27

28         WHEREAS, the Legislature is advised that monetary

29  recoveries made on behalf of the people of this state have

30  become the subject of attorney-charging liens that have

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  1  frustrated access to such recoveries by and on behalf of the

  2  people of this state, and

  3         WHEREAS, such attorney-charging liens are not

  4  authorized under the common or statutory laws of this state,

  5  and

  6         WHEREAS, such attorney-charging liens are anathema to

  7  the sovereign immunity of the State of Florida, disrupt the

  8  orderly administration of government, encroach upon the public

  9  treasury, and are not authorized by the Legislature, and

10         WHEREAS, the Legislature reaffirms its intention that

11  such attorney-charging liens are contrary to its will and to

12  the well-being of the State of Florida and to the state's

13  sovereign immunity, and

14         WHEREAS, the Legislature reaffirms its intention that

15  all conflicts of interest between agency employees and the

16  private sector are prohibited regardless of the manner in

17  which agency employment is ended and regardless of the nature

18  of the personal and substantial role of the agency employee,

19  and

20         WHEREAS, the Legislature reaffirms its intention that

21  the payment of state-contracted attorney's fees shall be

22  subject to appropriation, shall be commercially reasonable,

23  and may not result in a "windfall"; that documentation

24  substantiating such services shall be maintained and be

25  reasonably accessible to the public; and that the sanctity of

26  the attorney-client relationship shall be honored and

27  enforced, NOW, THEREFORE,

28

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

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

  2  Florida Statutes, to read:

  3         11.066  Suits seeking monetary damages against the

  4  state or its agencies; payment of judgments; appropriations

  5  required.--

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

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

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

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

10  lien unless expressly authorized by law.

11         Section 2.  Section 112.3175, Florida Statutes, is

12  amended to read:

13         112.3175  Remedies; contracts voidable.--

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

15  violation of this part is voidable:

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

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

18  action, by:

19         1.(a)  The commission.

20         2.(b)  The Attorney General.

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

22  and residing in the jurisdiction represented by the officer or

23  agency entering into such contract.

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

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

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

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

28  capacity such former agency employee.

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

30  Statutes, is amended to read:

31         112.3185  Contractual services.--

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

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

  3  contractual relationship with any business entity other than

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

  5  employee participated personally and substantially through

  6  decision, approval, disapproval, recommendation, rendering of

  7  advice, or investigation while an officer or employee.

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

  9  Statutes, 1998 Supplement, is amended to read:

10         287.058  Contract document.--

11         (1)  Every procurement of contractual services in

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

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

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

15  treatment of sick or injured state employees or the providing

16  of other benefits as required by the provisions of chapter

17  440, shall be evidenced by a written agreement embodying all

18  provisions and conditions of the procurement of such services,

19  which provisions and conditions shall, where applicable,

20  include, but shall not be limited to:

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

22  compensation for services or expenses be submitted in detail

23  sufficient for a proper preaudit and postaudit thereof.

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

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

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

27         (c)  A provision allowing unilateral cancellation by

28  the agency for refusal by the contractor to allow public

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

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

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

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

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

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

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

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

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

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

  9  contract.

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

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

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

13  of the original contract, whichever period is longer,

14  specifying the terms under which the cost may change as

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

16  and specifying that renewals shall be contingent upon

17  satisfactory performance evaluations by the agency and subject

18  to the availability of funds.

19

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

21  the use of a purchase order for classes of contractual

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

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

24  for proposals.  The purchase order shall include an adequate

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

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

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

28  agencies may incorporate the requirements of paragraphs

29  (a)-(f) by reference.

30         Section 5.  Section 287.059, Florida Statutes, is

31  amended to read:

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  1         287.059  Private attorney services.--

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

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

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

  5  organization, however designated, of the executive branch of

  6  state government, community and junior colleges, and

  7  multicounty special districts exclusive of those created by

  8  interlocal agreement or which have elected governing boards.

  9         (2)  No agency shall contract for private attorney

10  services without the prior written approval of the Attorney

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

12  private attorney services:

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

14  or any department under the exclusive jurisdiction of a single

15  Cabinet officer.

16         (b)  Provided by legal services organizations to

17  indigent clients.

18         (c)  Necessary to represent the state in litigation

19  involving the Florida Casualty Insurance Risk Management Trust

20  Fund pursuant to part II of chapter 284.

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

22  universities of the State University System.

23         (e)  Procured by community and junior colleges and

24  multicounty special districts.

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

26  private attorney services shall first offer to contract with

27  the Department of Legal Affairs for such attorney services at

28  a cost pursuant to mutual agreement. The Attorney General

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

30  provide such attorney services as staffing, expertise, or

31  other legal or economic considerations warrant.  If the

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  1  Attorney General declines to provide the requested attorney

  2  services, the Attorney General's written approval shall

  3  include a statement that the private attorney services

  4  requested cannot be provided by the office of the Attorney

  5  General or that such private attorney services are

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

  7  Attorney General shall not consider political affiliation in

  8  making such decision.  The office of the Attorney General

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

10  approval within 10 working days after receiving such request.

11  The Attorney General may request additional information

12  necessary for evaluation of a request.  The Attorney General

13  shall respond to the request within 10 working days after

14  receipt of the requested information. Those agencies exempt

15  from written approval from the Attorney General, as described

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

17  Legal Affairs for attorney services.  The Attorney General

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

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

20  considerations warrant.  The Attorney General may adopt, by

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

22  private attorney services shall provide information

23  concerning:

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

25  and the issues involved.

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

27  agency staff attorneys, utilizing the criteria provided in

28  subsection (9)(8).

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

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

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

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  1         (d)  Competitive fees for similar attorney services.

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

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

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

  5  analysis.

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

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

  8  time will be billed to the agency.

  9         (g)  Any other information which the Attorney General

10  deems appropriate for the proper evaluation of the need for

11  such private attorney services.

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

13  Attorney General, the general counsel for the agency shall

14  review the form and legality of the contract for private

15  attorney services and shall indicate his or her approval by

16  signing the contract written final approval must be obtained

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

18  the contracting for private attorney services. After a

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

20  shall sign and maintain custody of the contract.

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

22  approval prior to contracting for private attorney services

23  for all agencies exempt from written approval of the Attorney

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

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

26  standard fee schedule for private attorney services using

27  hourly rates or an alternative billing methodology. The

28  Attorney General shall take into consideration the following

29  factors:

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

31  legal services needed.

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

  2  be provided.

  3         (c)  Novelty of the legal questions involved.

  4         (d)  Amount of experience desired for the particular

  5  kind of attorney services to be provided.

  6         (e)  Other factors deemed appropriate by the Attorney

  7  General.

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

  9  methodology.

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

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

12  reasonable" means a reasonable fee that does not exceed:

13         1.  Thirty percent of any recovery of an amount less

14  than $2 million.

15         2.  Twenty percent of any recovery of an amount equal

16  to $2 million but less than $10 million.

17         3.  Ten percent of any recovery of an amount equal to

18  $10 million or greater.

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

20  counsel retained by the state shall participate in mandatory,

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

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

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

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

25  litigation or settlement posture.

26         (8)(7)  All agencies, when contracting for private

27  attorney services, must use the standard fee schedule for

28  private attorney services as established pursuant to this

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

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

31  deviating from the schedule in writing to the Attorney

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  1  General.  Such waiver must demonstrate necessity based upon

  2  criteria for deviation from the schedule which the Attorney

  3  General shall establish by rule.

  4         (9)(8)  The Attorney General shall develop guidelines

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

  6  and appropriate to seek private attorney services in lieu of

  7  staff attorney services.

  8         (10)(9)  Agencies are encouraged to use the following

  9  criteria when selecting outside firms for attorney services:

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

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

12         (c)  The firm's minority status.

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

14  agency.

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

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

17  issues.

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

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

20  or conflict of interest, with the agency.

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

22  agency to minimize costs.

23         (11)(10)  The Attorney General shall develop a standard

24  addendum to every contract for attorney services that must be

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

26  describing in detail what is expected of both the contracted

27  private attorney and the contracting agency. The addendum must

28  address the internal system of governance if multiple law

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

30  require that each firm identify one member who is authorized

31  to legally bind the firm.

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  1         (12)(11)  Contracts for attorney services shall be

  2  originally executed for 1 year only, except that multiyear

  3  contracts may be entered into provided they are subject to

  4  annual appropriations and annual written approval from the

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

  6  amendments to extend the contract period or increase the

  7  billing rate or overall contract amount shall be considered

  8  new contracts for purposes of the written approval process

  9  described in subsection (3).

10         (13)(12)  The office of the Attorney General shall

11  periodically prepare and distribute to agencies a roster by

12  geographic location of private attorneys under contract with

13  agencies, their fees, and primary area of legal

14  specialization.

15         (14)(13)  The office of the Attorney General is

16  authorized to competitively bid and contract with one or more

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

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

19  office of the Attorney General shall develop requests for

20  proposal for court reporter services in consultation with the

21  Florida Court Reporters Association.  All agencies shall

22  utilize the contracts for court reporting services entered

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

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

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

26  1993.

27         (15)(14)  The Attorney General's office may, by rule,

28  adopt standard fee schedules for court reporting services for

29  each judicial circuit in consultation with the Florida Court

30  Reporters Association.  Agencies, when contracting for court

31  reporting services, must use the standard fee schedule for

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  1  court reporting services established pursuant to this section,

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

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

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

  5  writing to the Attorney General. Such waiver must demonstrate

  6  necessity based upon criteria for deviation from the schedule

  7  which the Attorney General shall establish by rule.  Any

  8  proposed fee schedule under this section shall be submitted to

  9  the Governor, the Speaker of the House of Representatives, the

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

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

12  notice to adopt the rule.

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

14  provide attorney services for the state or a state agency

15  shall, from the inception of the contractual relationship

16  until at least 4 years after the contract expires or

17  terminates, maintain detailed current records, including

18  documentation of all expenses, disbursements, charges,

19  credits, underlying receipts and invoices, and other financial

20  transactions that concern the provision of such attorney

21  services. The private attorney shall make all such records

22  available for inspection and copying upon request in

23  accordance with chapter 119.

24         Section 6.  This act shall take effect July 1, 1999.

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Prohibits the placement of a lien upon state property or
      a monetary recovery made on the state's behalf unless
  4    authorized by law. Provides that a contract executed in
      violation of part III of ch. 112, F.S., is presumed void.
  5    Prohibits a state employee from entering into certain
      employment or contractual relationships following the
  6    resignation of state employment. Provides that certain
      state contracts are subject to cancellation upon refusal
  7    by the contractor to allow access to public records.
      Provides certain limitations on contingency fee
  8    contracts. Requires that a private attorney who contracts
      with the state maintain documents and records and make
  9    such documents and records available for inspection. (See
      bill for details.)
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