Senate Bill 2186

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    Florida Senate - 2000                                  SB 2186

    By Senator Dyer





    14-27-00

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

29

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

31  Florida Statutes, to read:

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  1         11.066  Suits seeking monetary damages against the

  2  state or its agencies; payment of judgments; appropriations

  3  required.--

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

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

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

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

  8  lien unless expressly authorized by law.

  9         Section 2.  Section 112.3175, Florida Statutes, is

10  amended to read:

11         112.3175  Remedies; contracts voidable.--

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

13  violation of this part is voidable:

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

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

16  action, by:

17         1.(a)  The commission.

18         2.(b)  The Attorney General.

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

20  and residing in the jurisdiction represented by the officer or

21  agency entering into such contract.

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

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

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

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

26  capacity such former agency employee.

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

28  Statutes, is amended to read:

29         112.3185  Contractual services.--

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

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

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  1  contractual relationship with any business entity other than

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

  3  employee participated personally and substantially through

  4  decision, approval, disapproval, recommendation, rendering of

  5  advice, or investigation while an officer or employee.

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

  7  Statutes, is amended to read:

  8         287.058  Contract document.--

  9         (1)  Every procurement of contractual services in

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

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

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

13  treatment of sick or injured state employees or the providing

14  of other benefits as required by the provisions of chapter

15  440, shall be evidenced by a written agreement embodying all

16  provisions and conditions of the procurement of such services,

17  which provisions and conditions shall, where applicable,

18  include, but shall not be limited to:

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

20  compensation for services or expenses be submitted in detail

21  sufficient for a proper preaudit and postaudit thereof.

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

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

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

25         (c)  A provision allowing unilateral cancellation by

26  the agency for refusal by the contractor to allow public

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

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

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

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

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

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

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

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

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

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

  7  contract.

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

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

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

11  of the original contract, whichever period is longer,

12  specifying the terms under which the cost may change as

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

14  and specifying that renewals shall be contingent upon

15  satisfactory performance evaluations by the agency and subject

16  to the availability of funds.

17

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

19  the use of a purchase order for classes of contractual

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

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

22  for proposals.  The purchase order shall include an adequate

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

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

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

26  agencies may incorporate the requirements of paragraphs

27  (a)-(f) by reference.

28         Section 5.  Section 287.059, Florida Statutes, is

29  amended to read:

30         287.059  Private attorney services.--

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

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

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

  4  organization, however designated, of the executive branch of

  5  state government, community and junior colleges, and

  6  multicounty special districts exclusive of those created by

  7  interlocal agreement or which have elected governing boards.

  8         (2)  No agency shall contract for private attorney

  9  services without the prior written approval of the Attorney

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

11  private attorney services:

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

13  or any department under the exclusive jurisdiction of a single

14  Cabinet officer.

15         (b)  Provided by legal services organizations to

16  indigent clients.

17         (c)  Necessary to represent the state in litigation

18  involving the Florida Casualty Insurance Risk Management Trust

19  Fund pursuant to part II of chapter 284.

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

21  universities of the State University System.

22         (e)  Procured by community and junior colleges and

23  multicounty special districts.

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

25  School for the Deaf and the Blind.

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

27  private attorney services shall first offer to contract with

28  the Department of Legal Affairs for such attorney services at

29  a cost pursuant to mutual agreement. The Attorney General

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

31  provide such attorney services as staffing, expertise, or

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  1  other legal or economic considerations warrant.  If the

  2  Attorney General declines to provide the requested attorney

  3  services, the Attorney General's written approval shall

  4  include a statement that the private attorney services

  5  requested cannot be provided by the office of the Attorney

  6  General or that such private attorney services are

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

  8  Attorney General shall not consider political affiliation in

  9  making such decision.  The office of the Attorney General

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

11  approval within 10 working days after receiving such request.

12  The Attorney General may request additional information

13  necessary for evaluation of a request.  The Attorney General

14  shall respond to the request within 10 working days after

15  receipt of the requested information. Those agencies exempt

16  from written approval from the Attorney General, as described

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

18  Legal Affairs for attorney services.  The Attorney General

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

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

21  considerations warrant.  The Attorney General may adopt, by

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

23  private attorney services shall provide information

24  concerning:

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

26  and the issues involved.

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

28  agency staff attorneys, utilizing the criteria provided in

29  subsection (9)(8).

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

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

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

  4         (d)  Competitive fees for similar attorney services.

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

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

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

  8  analysis.

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

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

11  time will be billed to the agency.

12         (g)  Any other information which the Attorney General

13  deems appropriate for the proper evaluation of the need for

14  such private attorney services.

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

16  Attorney General, the general counsel for the agency shall

17  review the form and legality of the contract for private

18  attorney services and shall indicate his or her approval by

19  signing the contract written final approval must be obtained

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

21  the contracting for private attorney services. After a

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

23  shall sign and maintain custody of the contract.

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

25  approval prior to contracting for private attorney services

26  for all agencies exempt from written approval of the Attorney

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

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

29  standard fee schedule for private attorney services using

30  hourly rates or an alternative billing methodology. The

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  1  Attorney General shall take into consideration the following

  2  factors:

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

  4  legal services needed.

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

  6  be provided.

  7         (c)  Novelty of the legal questions involved.

  8         (d)  Amount of experience desired for the particular

  9  kind of attorney services to be provided.

10         (e)  Other factors deemed appropriate by the Attorney

11  General.

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

13  methodology.

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

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

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

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

18  than $2 million.

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

20  to $2 million or greater, but less than $10 million.

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

22  $10 million or greater.

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

24  counsel retained by the state shall participate in mandatory,

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

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

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

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

29  litigation or settlement posture.

30         (8)(7)  All agencies, when contracting for private

31  attorney services, must use the standard fee schedule for

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  1  private attorney services as established pursuant to this

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

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

  4  deviating from the schedule in writing to the Attorney

  5  General.  Such waiver must demonstrate necessity based upon

  6  criteria for deviation from the schedule which the Attorney

  7  General shall establish by rule.

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

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

10  and appropriate to seek private attorney services in lieu of

11  staff attorney services.

12         (10)(9)  Agencies are encouraged to use the following

13  criteria when selecting outside firms for attorney services:

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

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

16         (c)  The firm's minority status.

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

18  agency.

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

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

21  issues.

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

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

24  or conflict of interest, with the agency.

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

26  agency to minimize costs.

27         (11)(10)  The Attorney General shall develop a standard

28  addendum to every contract for attorney services that must be

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

30  describing in detail what is expected of both the contracted

31  private attorney and the contracting agency. The addendum must

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  1  address the internal system of governance if multiple law

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

  3  require that each firm identify one member who is authorized

  4  to legally bind the firm.

  5         (12)(11)  Contracts for attorney services shall be

  6  originally executed for 1 year only, except that multiyear

  7  contracts may be entered into provided they are subject to

  8  annual appropriations and annual written approval from the

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

10  amendments to extend the contract period or increase the

11  billing rate or overall contract amount shall be considered

12  new contracts for purposes of the written approval process

13  described in subsection (3).

14         (13)(12)  The office of the Attorney General shall

15  periodically prepare and distribute to agencies a roster by

16  geographic location of private attorneys under contract with

17  agencies, their fees, and primary area of legal

18  specialization.

19         (14)(13)  The office of the Attorney General is

20  authorized to competitively bid and contract with one or more

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

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

23  office of the Attorney General shall develop requests for

24  proposal for court reporter services in consultation with the

25  Florida Court Reporters Association.  All agencies shall

26  utilize the contracts for court reporting services entered

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

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

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

30  1993.

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  1         (15)(14)  The Attorney General's office may, by rule,

  2  adopt standard fee schedules for court reporting services for

  3  each judicial circuit in consultation with the Florida Court

  4  Reporters Association.  Agencies, when contracting for court

  5  reporting services, must use the standard fee schedule for

  6  court reporting services established pursuant to this section,

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

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

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

10  writing to the Attorney General. Such waiver must demonstrate

11  necessity based upon criteria for deviation from the schedule

12  which the Attorney General shall establish by rule.  Any

13  proposed fee schedule under this section shall be submitted to

14  the Governor, the Speaker of the House of Representatives, the

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

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

17  notice to adopt the rule.

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

19  provide attorney services for the state or a state agency

20  shall, from the inception of the contractual relationship

21  until at least 4 years after the contract expires or

22  terminates, maintain detailed current records, including

23  documentation of all expenses, disbursements, charges,

24  credits, underlying receipts and invoices, and other financial

25  transactions that concern the provision of such attorney

26  services. The private attorney shall make all such records

27  available for inspection and copying upon request in

28  accordance with chapter 119.

29         Section 6.  This act shall take effect July 1, 2000.

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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 limitations on contingency fee contracts.
  8    Requires that a private attorney who contracts with the
      state maintain documents and records and make such
  9    documents and records available for inspection. (See bill
      for details.)
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