Senate Bill sb2186e2

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    SB 2186                                       Second Engrossed



  1                      A bill to be entitled

  2         An act relating to government accountability

  3         and legal proceedings; creating s. 60.08, F.S.;

  4         providing for injunctions without bond when

  5         sought by the state or its agencies; providing

  6         for severability; amending s. 11.066, F.S.;

  7         providing that property of the state or a

  8         monetary recovery made on behalf of the state

  9         is not subject to a lien unless authorized by

10         law; amending s. 112.3175, F.S.; providing that

11         certain contracts executed in violation of part

12         III of ch. 112, F.S., are presumed void or

13         voidable; amending s. 112.3185, F.S.;

14         prohibiting a state employee from holding

15         certain employment or contractual relationships

16         following resignation of such employment;

17         amending s. 287.058, F.S.; requiring that

18         certain state contracts be subject to

19         cancellation upon refusal by the contractor to

20         allow access to public records; amending s.

21         287.059, F.S.; providing additional

22         requirements for contracts for private attorney

23         services; providing requirements for

24         contingency fee contracts; providing

25         requirements if multiple law firms are parties

26         to a contract; providing requirements for

27         private attorneys with respect to maintaining

28         documents and records and making such documents

29         and records available for inspection; amending

30         s. 45.062, F.S.; providing additional

31         requirements with respect to notification of


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    SB 2186                                       Second Engrossed



  1         certain settlements or orders; providing that

  2         certain settlements or orders shall be

  3         contingent upon and subject to legislative

  4         appropriation or statutory amendment; providing

  5         for the disposition of funds; providing

  6         legislative intent; amending s. 216.023, F.S.;

  7         providing for an inventory of all litigation in

  8         which an agency is involved that may require

  9         additional appropriations to the agency or

10         amendments to the law under which the agency

11         operates as a part of legislative budget

12         requests; amending s. 284.385, F.S.; revising

13         language with respect to the reporting and

14         handling of claims by the Department of

15         Insurance covered by the Florida Casualty

16         Insurance Risk Management Trust Fund; providing

17         an effective date.

18

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

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

22  Florida Statutes, to read:

23         11.066  Suits seeking monetary damages against the

24  state or its agencies; payment of judgments; appropriations

25  required.--

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

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

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

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

30  lien unless expressly authorized by law.

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    SB 2186                                       Second Engrossed



  1         Section 2.  Section 112.3175, Florida Statutes, is

  2  amended to read:

  3         112.3175  Remedies; contracts voidable.--

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

  5  violation of this part is voidable:

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

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

  8  action, by:

  9         1.(a)  The commission.

10         2.(b)  The Attorney General.

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

12  and residing in the jurisdiction represented by the officer or

13  agency entering into such contract.

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

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

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

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

18  capacity such former agency employee.

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

20  Statutes, is amended to read:

21         112.3185  Contractual services.--

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

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

24  contractual relationship with any business entity other than

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

26  employee participated personally and substantially through

27  decision, approval, disapproval, recommendation, rendering of

28  advice, or investigation while an officer or employee.

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

30  Statutes, is amended to read:

31         287.058  Contract document.--


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    SB 2186                                       Second Engrossed



  1         (1)  Every procurement of contractual services in

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

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

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

  5  treatment of sick or injured state employees or the providing

  6  of other benefits as required by the provisions of chapter

  7  440, shall be evidenced by a written agreement embodying all

  8  provisions and conditions of the procurement of such services,

  9  which provisions and conditions shall, where applicable,

10  include, but shall not be limited to:

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

12  compensation for services or expenses be submitted in detail

13  sufficient for a proper preaudit and postaudit thereof.

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

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

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

17         (c)  A provision allowing unilateral cancellation by

18  the agency for refusal by the contractor to allow public

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

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

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

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

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

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

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

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

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

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

29  contract.

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

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


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    SB 2186                                       Second Engrossed



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

  2  of the original contract, whichever period is longer,

  3  specifying the terms under which the cost may change as

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

  5  and specifying that renewals shall be contingent upon

  6  satisfactory performance evaluations by the agency and subject

  7  to the availability of funds.

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

10  the use of a purchase order for classes of contractual

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

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

13  for proposals.  The purchase order shall include an adequate

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

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

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

17  agencies may incorporate the requirements of paragraphs

18  (a)-(f) by reference.

19         Section 5.  Section 287.059, Florida Statutes, is

20  amended to read:

21         287.059  Private attorney services.--

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

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

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

25  organization, however designated, of the executive branch of

26  state government, community and junior colleges, and

27  multicounty special districts exclusive of those created by

28  interlocal agreement or which have elected governing boards.

29         (2)  No agency shall contract for private attorney

30  services without the prior written approval of the Attorney

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    SB 2186                                       Second Engrossed



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

  2  private attorney services:

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

  4  or any department under the exclusive jurisdiction of a single

  5  Cabinet officer.

  6         (b)  Provided by legal services organizations to

  7  indigent clients.

  8         (c)  Necessary to represent the state in litigation

  9  involving the Florida Casualty Insurance Risk Management Trust

10  Fund pursuant to part II of chapter 284.

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

12  universities of the State University System.

13         (e)  Procured by community and junior colleges and

14  multicounty special districts.

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

16  School for the Deaf and the Blind.

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

18  private attorney services shall first offer to contract with

19  the Department of Legal Affairs for such attorney services at

20  a cost pursuant to mutual agreement. The Attorney General

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

22  provide such attorney services as staffing, expertise, or

23  other legal or economic considerations warrant.  If the

24  Attorney General declines to provide the requested attorney

25  services, the Attorney General's written approval shall

26  include a statement that the private attorney services

27  requested cannot be provided by the office of the Attorney

28  General or that such private attorney services are

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

30  Attorney General shall not consider political affiliation in

31  making such decision.  The office of the Attorney General


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    SB 2186                                       Second Engrossed



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

  2  approval within 10 working days after receiving such request.

  3  The Attorney General may request additional information

  4  necessary for evaluation of a request.  The Attorney General

  5  shall respond to the request within 10 working days after

  6  receipt of the requested information. Those agencies exempt

  7  from written approval from the Attorney General, as described

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

  9  Legal Affairs for attorney services.  The Attorney General

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

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

12  considerations warrant.  The Attorney General may adopt, by

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

14  private attorney services shall provide information

15  concerning:

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

17  and the issues involved.

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

19  agency staff attorneys, utilizing the criteria provided in

20  subsection (9)(8).

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

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

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

24         (d)  Competitive fees for similar attorney services.

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

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

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

28  analysis.

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

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

31  time will be billed to the agency.


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    SB 2186                                       Second Engrossed



  1         (g)  Any other information which the Attorney General

  2  deems appropriate for the proper evaluation of the need for

  3  such private attorney services.

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

  5  Attorney General, the general counsel for the agency shall

  6  review the form and legality of the contract for private

  7  attorney services and shall indicate his or her approval by

  8  signing the contract written final approval must be obtained

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

10  the contracting for private attorney services. After a

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

12  shall sign and maintain custody of the contract.

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

14  approval prior to contracting for private attorney services

15  for all agencies exempt from written approval of the Attorney

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

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

18  standard fee schedule for private attorney services using

19  hourly rates or an alternative billing methodology. The

20  Attorney General shall take into consideration the following

21  factors:

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

23  legal services needed.

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

25  be provided.

26         (c)  Novelty of the legal questions involved.

27         (d)  Amount of experience desired for the particular

28  kind of attorney services to be provided.

29         (e)  Other factors deemed appropriate by the Attorney

30  General.

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    SB 2186                                       Second Engrossed



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

  2  methodology.

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

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

  5  reasonable" means the amount permissible pursuant to Rule

  6  4-1.5 of the Rules Regulating The Florida Bar and case law

  7  interpreting that rule.

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

  9  counsel retained by the state shall participate in mandatory,

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

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

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

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

14  litigation or settlement posture.

15         (8)(7)  All agencies, when contracting for private

16  attorney services, must use the standard fee schedule for

17  private attorney services as established pursuant to this

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

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

20  deviating from the schedule in writing to the Attorney

21  General.  Such waiver must demonstrate necessity based upon

22  criteria for deviation from the schedule which the Attorney

23  General shall establish by rule.

24         (9)(8)  The Attorney General shall develop guidelines

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

26  and appropriate to seek private attorney services in lieu of

27  staff attorney services.

28         (10)(9)  Agencies are encouraged to use the following

29  criteria when selecting outside firms for attorney services:

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

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


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    SB 2186                                       Second Engrossed



  1         (c)  The firm's minority status.

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

  3  agency.

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

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

  6  issues.

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

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

  9  or conflict of interest, with the agency.

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

11  agency to minimize costs.

12         (11)(10)  The Attorney General shall develop a standard

13  addendum to every contract for attorney services that must be

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

15  describing in detail what is expected of both the contracted

16  private attorney and the contracting agency. The addendum must

17  address the internal system of governance if multiple law

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

19  require that each firm identify one member who is authorized

20  to legally bind the firm.

21         (12)(11)  Contracts for attorney services shall be

22  originally executed for 1 year only, except that multiyear

23  contracts may be entered into provided they are subject to

24  annual appropriations and annual written approval from the

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

26  amendments to extend the contract period or increase the

27  billing rate or overall contract amount shall be considered

28  new contracts for purposes of the written approval process

29  described in subsection (3).

30         (13)(12)  The office of the Attorney General shall

31  periodically prepare and distribute to agencies a roster by


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    SB 2186                                       Second Engrossed



  1  geographic location of private attorneys under contract with

  2  agencies, their fees, and primary area of legal

  3  specialization.

  4         (14)(13)  The office of the Attorney General is

  5  authorized to competitively bid and contract with one or more

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

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

  8  office of the Attorney General shall develop requests for

  9  proposal for court reporter services in consultation with the

10  Florida Court Reporters Association.  All agencies shall

11  utilize the contracts for court reporting services entered

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

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

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

15  1993.

16         (15)(14)  The Attorney General's office may, by rule,

17  adopt standard fee schedules for court reporting services for

18  each judicial circuit in consultation with the Florida Court

19  Reporters Association.  Agencies, when contracting for court

20  reporting services, must use the standard fee schedule for

21  court reporting services established pursuant to this section,

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

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

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

25  writing to the Attorney General. Such waiver must demonstrate

26  necessity based upon criteria for deviation from the schedule

27  which the Attorney General shall establish by rule.  Any

28  proposed fee schedule under this section shall be submitted to

29  the Governor, the Speaker of the House of Representatives, the

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

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    SB 2186                                       Second Engrossed



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

  2  notice to adopt the rule.

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

  4  provide attorney services for the state or a state agency

  5  shall, from the inception of the contractual relationship

  6  until at least 4 years after the contract expires or

  7  terminates, maintain detailed current records, including

  8  documentation of all expenses, disbursements, charges,

  9  credits, underlying receipts and invoices, and other financial

10  transactions that concern the provision of such attorney

11  services. The private attorney shall make all such records

12  available for inspection and copying upon request in

13  accordance with chapter 119.

14         Section 6.  Section 60.08, Florida Statutes, is created

15  to read:

16         60.08  Injunctions sought by the state pursuant to

17  statute shall issue without bond.--In any action for

18  injunctive relief sought by the state or one of its agencies

19  as provided in ss. 501.207(1)(b), 542.23, and 895.05(5), any

20  injunction sought shall issue without bond or surety and no

21  bond or surety shall be required during the term of the

22  injunction.

23         Section 7.  If any provision of this act or the

24  application thereof to any person or circumstance is held

25  invalid, the invalidity does not affect other provisions or

26  applications of the act which can be given effect without the

27  invalid provision or application, and to this end the

28  provisions of this act are declared severable.

29         Section 8.  Section 45.062, Florida Statutes, is

30  amended to read:

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    SB 2186                                       Second Engrossed



  1         45.062  Settlements, conditions, or orders when an

  2  agency of the executive branch is a party.--

  3         (1)  In any civil action in which a state executive

  4  branch agency or officer is a party in state or federal court,

  5  the officer, agent, official, or attorney who represents or is

  6  acting on behalf of such agency or officer may not settle such

  7  action, consent to any condition, or agree to any order in

  8  connection therewith, if the settlement, condition, or order

  9  requires the expenditure of or the obligation to expend any

10  state funds or other state resources, or the establishment of

11  any new program, unless:

12         (a)  The expenditure is provided for by an existing

13  appropriation or program established by law; and

14         (b)  Prior written notification is given within 5

15  business days of the date the settlement or presettlement

16  agreement or order is to be made final to the President of the

17  Senate, the Speaker of the House of Representatives, the

18  Senate and House minority leaders, and the Attorney General.

19  Such notification shall specify how the agency involved will

20  address the costs in future years within the limits of current

21  appropriations.

22         (2)  The state executive branch agency or officer shall

23  negotiate a closure date as soon as possible for the civil

24  action.

25         (3)  The state executive branch agency or officer may

26  not pledge any current or future action of another branch of

27  state government as a condition for settling the civil action.

28         (4)  Any settlement that commits the state to spending

29  in excess of current appropriations or to policy changes

30  inconsistent with current state law shall be contingent upon

31  and subject to legislative appropriation or statutory


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    SB 2186                                       Second Engrossed



  1  amendment. The state agency or officer may agree to use all

  2  efforts to procure legislative funding or statutory amendment.

  3         (5)  When a state agency or officer settles an action

  4  in which the state will receive moneys, the funds will be

  5  placed unobligated in the General Revenue Fund or in the trust

  6  fund which is associated with the agency's or official's

  7  authority to pursue the legal action.

  8         (6)  State agencies and officers shall report to each

  9  substantive and fiscal committee of the Legislature having

10  jurisdiction over the reporting agency on all potential

11  settlements which may commit the state to:

12         (a)  Spend in excess of current appropriations, or

13         (b)  Policy changes inconsistent with current state

14  law.

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16  The state agency or officer shall provide periodic updates to

17  the appropriate legislative committees on these issues during

18  the settlement process.

19         Section 9.  Subsection (8) is added to section 216.023,

20  Florida Statutes, to read:

21         216.023  Legislative budget requests to be furnished by

22  agencies.--

23         (8)  As a part of the legislative budget request, the

24  head of each state agency shall include an inventory of all

25  litigation in which the agency is involved that may require

26  additional appropriations to the agency or amendments to the

27  law under which the agency operates.  No later than March 1

28  following the submission of the legislative budget request,

29  the head of the state agency shall provide an update of any

30  additions or changes to the inventory. Such inventory shall

31  include:


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    SB 2186                                       Second Engrossed



  1         (a)  The names of the parties.

  2         (b)  The court with jurisdiction.

  3         (c)  A summary of the complaint.

  4         (d)  The amount of the claim.

  5         (e)  The specific laws challenged.

  6         (f)  The status of the case.

  7         Section 10.  Section 284.385, Florida Statutes, is

  8  amended to read:

  9         284.385  Reporting and handling of claims.--All

10  departments covered by the Florida Casualty Insurance Risk

11  Management Trust Fund under this part shall immediately report

12  all known or potential claims to the Department of Insurance

13  for handling, except employment complaints which have not been

14  filed with the Florida Human Relations Commission, Equal

15  Employment Opportunity Commission, or any similar agency.

16  When deemed necessary, the Department of Insurance shall

17  assign or reassign the claim to counsel.  The assigned counsel

18  shall report regularly to the Department of Insurance and to

19  the covered department on the status of any such claims or

20  litigation as required by the Department of Insurance.  No

21  such claim shall be compromised or settled for monetary

22  compensation without the prior approval of the Department of

23  Insurance and prior notification to the covered department.

24  All departments shall cooperate with the Department of

25  Insurance in its handling of claims.  The Department of

26  Insurance, the Department of Management Services, and the

27  Department of Banking and Finance, with the cooperation of the

28  state attorneys and the clerks of the courts, shall develop a

29  system to coordinate the exchange of information concerning

30  claims for and against the state, its agencies, and its

31  subdivisions, to assist in collection of amounts due to them.


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    SB 2186                                       Second Engrossed



  1  The covered department shall have the responsibility for the

  2  settlement of any claim for injunctive or affirmative relief

  3  under 42 U.S.C. s. 1983 or similar federal or state statutes.

  4  The payment of a settlement or judgment for any claim covered

  5  and reported under this part shall be made only from the

  6  Florida Casualty Insurance Risk Management Trust Fund.

  7         Section 11.  This act shall take effect July 1, 2000.

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