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:
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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.
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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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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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