HOUSE AMENDMENT
                                                Bill No. CS/HB 623
    Amendment No. 1 (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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 5                                           ORIGINAL STAMP BELOW
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11  Representative(s) Mack offered the following:
12  
13         Amendment (with title amendment) 
14  Remove from the bill:  Everything after the enacting clause
15  
16  and insert in lieu thereof:  
17         Section 1.  Subsection (5) is added to section 11.066,
18  Florida Statutes, to read:
19         11.066  Suits seeking monetary damages against the
20  state or its agencies; payment of judgments; appropriations
21  required.--
22         (5)  The property of the state, the property of any
23  state agency, or any monetary recovery made on behalf of the
24  state or any state agency is not subject to a lien of any
25  kind.
26         Section 2.  Section 112.3175, Florida Statutes, is
27  amended to read:
28         112.3175  Remedies; contracts voidable.--
29         (1)  Any contract that which has been executed in
30  violation of this part is voidable:
31         (a)(1)  By any party to the contract.
                                  1
    File original & 9 copies    04/27/01                          
    hit0001                     12:56 pm         00623-0091-264393

HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 (b)(2) In any circuit court, by any appropriate 2 action, by: 3 1.(a) The commission. 4 2.(b) The Attorney General. 5 3.(c) Any citizen materially affected by the contract 6 and residing in the jurisdiction represented by the officer or 7 agency entering into such contract. 8 (2) Any contract that has been executed in violation 9 of this part is presumed void with respect to any former 10 employee or former public official of a state agency and is 11 voidable with respect to any private-sector third party who 12 employs or retains in any capacity such former agency employee 13 or former public official. 14 Section 3. Subsection (1) of section 287.058, Florida 15 Statutes, is amended to read: 16 287.058 Contract document.-- 17 (1) Every procurement of contractual services in 18 excess of the threshold amount provided in s. 287.017 for 19 CATEGORY TWO, except for the providing of health and mental 20 health services or drugs in the examination, diagnosis, or 21 treatment of sick or injured state employees or the providing 22 of other benefits as required by the provisions of chapter 23 440, shall be evidenced by a written agreement embodying all 24 provisions and conditions of the procurement of such services, 25 which provisions and conditions shall, where applicable, 26 include, but shall not be limited to: 27 (a) A provision that bills for fees or other 28 compensation for services or expenses be submitted in detail 29 sufficient for a proper preaudit and postaudit thereof. 30 (b) A provision that bills for any travel expenses be 31 submitted in accordance with s. 112.061. A state agency may 2 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 establish rates lower than the maximum provided in s. 112.061. 2 (c) A provision allowing unilateral cancellation by 3 the agency for refusal by the contractor to allow public 4 access to all documents, papers, letters, or other material 5 subject to the provisions of chapter 119 and made or received 6 by the contractor in conjunction with the contract, unless the 7 records are exempt from s. 24, (a) Art. I of the State 8 Constitution and s. 119.07(1). 9 (d) A provision dividing the contract into units of 10 deliverables, which shall include, but not be limited to, 11 reports, findings, and drafts, that must be received and 12 accepted in writing by the contract manager prior to payment. 13 (e) A provision specifying the criteria and the final 14 date by which such criteria must be met for completion of the 15 contract. 16 (f) A provision specifying that the contract may be 17 renewed on a yearly basis for a period of up to 2 years after 18 the initial contract or for a period no longer than the term 19 of the original contract, whichever period is longer, 20 specifying the terms under which the cost may change as 21 determined in the invitation to bid or request for proposals, 22 and specifying that renewals shall be contingent upon 23 satisfactory performance evaluations by the agency and subject 24 to the availability of funds. 25 26 In lieu of a written agreement, the department may authorize 27 the use of a purchase order for classes of contractual 28 services, provided the provisions of paragraphs (a)-(f) are 29 included in the purchase order, invitation to bid, or request 30 for proposals. The purchase order shall include an adequate 31 description of the services, the contract period, and the 3 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 method of payment. In lieu of printing the provisions of 2 paragraphs (a)-(f) in the contract document or purchase order, 3 agencies may incorporate the requirements of paragraphs 4 (a)-(f) by reference. 5 Section 4. Section 287.059, Florida Statutes, is 6 amended to read: 7 287.059 Private attorney services.-- 8 (1) For purposes of this section, the term "agency" or 9 "state agency" includes state officers, departments, boards, 10 commissions, divisions, bureaus, councils, and units of 11 organization, however designated, of the executive branch of 12 state government, community and junior colleges, and 13 multicounty special districts exclusive of those created by 14 interlocal agreement or which have elected governing boards. 15 (2) No agency shall contract for private attorney 16 services without the prior written approval of the Attorney 17 General, except that such written approval is not required for 18 private attorney services: 19 (a) Procured by the Executive Office of the Governor 20 or any department under the exclusive jurisdiction of a single 21 Cabinet officer. 22 (b) Provided by legal services organizations to 23 indigent clients. 24 (c) Necessary to represent the state in litigation 25 involving the State Risk Management Trust Fund pursuant to 26 part II of chapter 284. 27 (d) Procured by the Board of Regents and the 28 universities of the State University System. 29 (e) Procured by community and junior colleges and 30 multicounty special districts. 31 (f) Procured by the Board of Trustees for the Florida 4 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 School for the Deaf and the Blind. 2 (3) An agency requesting approval for the use of 3 private attorney services shall first offer to contract with 4 the Department of Legal Affairs for such attorney services at 5 a cost pursuant to mutual agreement. The Attorney General 6 shall decide on a case-by-case basis to accept or decline to 7 provide such attorney services as staffing, expertise, or 8 other legal or economic considerations warrant. If the 9 Attorney General declines to provide the requested attorney 10 services, the Attorney General's written approval shall 11 include a statement that the private attorney services 12 requested cannot be provided by the office of the Attorney 13 General or that such private attorney services are 14 cost-effective in the opinion of the Attorney General. The 15 Attorney General shall not consider political affiliation in 16 making such decision. The office of the Attorney General 17 shall respond to the request of an agency for prior written 18 approval within 10 working days after receiving such request. 19 The Attorney General may request additional information 20 necessary for evaluation of a request. The Attorney General 21 shall respond to the request within 10 working days after 22 receipt of the requested information. Those agencies exempt 23 from written approval from the Attorney General, as described 24 in paragraphs (2)(a)-(f), may contract with the Department of 25 Legal Affairs for attorney services. The Attorney General 26 shall determine on a case-by-case basis whether to provide 27 such attorney services as staffing, expertise, or other legal 28 considerations warrant. The Attorney General may adopt, by 29 rule, a form on which agencies requesting written approval for 30 private attorney services shall provide information 31 concerning: 5 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 (a) The nature of the attorney services to be provided 2 and the issues involved. 3 (b) The need for use of private attorneys, rather than 4 agency staff attorneys, utilizing the criteria provided in 5 subsection (9) (8). 6 (c) The criteria by which the agency selected the 7 private attorney or law firm it proposes to employ, utilizing 8 the criteria provided in subsection (10) (9). 9 (d) Competitive fees for similar attorney services. 10 (e) The agency's analysis estimating the number of 11 hours for attorney services, the costs, the total contract 12 amount, and, when appropriate, a risk or cost-benefit 13 analysis. 14 (f) Which partners, associates, paralegals, research 15 associates, or other personnel will be used, and how their 16 time will be billed to the agency. 17 (g) Any other information which the Attorney General 18 deems appropriate for the proper evaluation of the need for 19 such private attorney services. 20 (4) When written approval has been received from the 21 Attorney General, the general counsel for the agency shall 22 review the form and legality of the contract for private 23 attorney services and shall indicate his or her approval by 24 signing the contract written final approval must be obtained 25 from the agency head, or designee of the agency head, prior to 26 the contracting for private attorney services. After a 27 contract is approved and signed by the general counsel, in 28 order to effectuate that contract the agency head must sign 29 the contract. The agency head shall also maintain custody of 30 the contract. 31 (5) The agency head or a designee shall give written 6 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 approval prior to contracting for private attorney services 2 for all agencies exempt from written approval of the Attorney 3 General as described in paragraphs (2)(a)-(f). 4 (6) The Attorney General shall, by rule, adopt a 5 standard fee schedule for private attorney services using 6 hourly rates or an alternative billing methodology. The 7 Attorney General shall take into consideration the following 8 factors: 9 (a) Type of controversy involved and complexity of the 10 legal services needed. 11 (b) Geographic area where the attorney services are to 12 be provided. 13 (c) Novelty of the legal questions involved. 14 (d) Amount of experience desired for the particular 15 kind of attorney services to be provided. 16 (e) Other factors deemed appropriate by the Attorney 17 General. 18 (f) The most cost-effective or appropriate billing 19 methodology. 20 (7)(a) A contingency fee contract must be commercially 21 reasonable. As used in this subsection, the term "commercially 22 reasonable" means no more than the amount permissible pursuant 23 to rule 4-1.5 of the rules regulating The Florida Bar and case 24 law interpreting that rule. 25 (b) If the amount of the fee is in dispute, the 26 counsel retained by the state shall participate in mandatory 27 binding arbitration. Payment of all attorney's fees is subject 28 to appropriation. Attorney's fees shall be forfeited if, 29 during the pendency of the case, the counsel retained by the 30 state takes a public position that is adverse to the state's 31 litigation or settlement posture. 7 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 (8)(7) All agencies, when contracting for private 2 attorney services, must use the standard fee schedule for 3 private attorney services as established pursuant to this 4 section unless the head of the agency, or his or her designee, 5 waives use of the schedule and sets forth the reasons for 6 deviating from the schedule in writing to the Attorney 7 General. Such waiver must demonstrate necessity based upon 8 criteria for deviation from the schedule which the Attorney 9 General shall establish by rule. 10 (9)(8) The Attorney General shall develop guidelines 11 that may be used by agencies to determine when it is necessary 12 and appropriate to seek private attorney services in lieu of 13 staff attorney services. 14 (10)(9) Agencies are encouraged to use the following 15 criteria when selecting outside firms for attorney services: 16 (a) The magnitude or complexity of the case. 17 (b) The firm's ratings and certifications. 18 (c) The firm's minority status. 19 (d) The firm's physical proximity to the case and the 20 agency. 21 (e) The firm's prior experience with the agency. 22 (f) The firm's prior experience with similar cases or 23 issues. 24 (g) The firm's billing methodology and proposed rate. 25 (h) The firm's current or past adversarial position, 26 or conflict of interest, with the agency. 27 (i) The firm's willingness to use resources of the 28 agency to minimize costs. 29 (11)(10) The Attorney General shall develop a standard 30 addendum to every contract for attorney services that must be 31 used by all agencies, unless waived by the Attorney General, 8 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 describing in detail what is expected of both the contracted 2 private attorney and the contracting agency. The addendum must 3 address the internal system of governance if multiple law 4 firms are parties to the contract and must, at a minimum, 5 require that each firm identify one member who is authorized 6 to legally bind the firm. 7 (12)(11) Contracts for attorney services shall be 8 originally executed for 1 year only, except that multiyear 9 contracts may be entered into provided they are subject to 10 annual appropriations and annual written approval from the 11 Attorney General as described in subsection (3). Any 12 amendments to extend the contract period or increase the 13 billing rate or overall contract amount shall be considered 14 new contracts for purposes of the written approval process 15 described in subsection (3). 16 (13)(12) The office of the Attorney General shall 17 periodically prepare and distribute to agencies a roster by 18 geographic location of private attorneys under contract with 19 agencies, their fees, and primary area of legal 20 specialization. 21 (14)(13) The office of the Attorney General is 22 authorized to competitively bid and contract with one or more 23 court reporting services, on a circuitwide basis, on behalf of 24 all state agencies in accordance with s. 287.057(2). The 25 office of the Attorney General shall develop requests for 26 proposal for court reporter services in consultation with the 27 Florida Court Reporters Association. All agencies shall 28 utilize the contracts for court reporting services entered 29 into by the Office of the Attorney General where in force, 30 unless otherwise ordered by a court or unless an agency has a 31 contract for court reporting services executed prior to May 5, 9 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 1993. 2 (15)(14) The Attorney General's office may, by rule, 3 adopt standard fee schedules for court reporting services for 4 each judicial circuit in consultation with the Florida Court 5 Reporters Association. Agencies, when contracting for court 6 reporting services, must use the standard fee schedule for 7 court reporting services established pursuant to this section, 8 provided no state contract is applicable or unless the head of 9 the agency or his or her designee waives use of the schedule 10 and sets forth the reasons for deviating from the schedule in 11 writing to the Attorney General. Such waiver must demonstrate 12 necessity based upon criteria for deviation from the schedule 13 which the Attorney General shall establish by rule. Any 14 proposed fee schedule under this section shall be submitted to 15 the Governor, the Speaker of the House of Representatives, the 16 President of the Senate, and the Chief Justice of the Florida 17 Supreme Court at least 60 days prior to publication of the 18 notice to adopt the rule. 19 (16) Each private attorney who is under contract to 20 provide attorney services for the state or a state agency 21 shall, from the inception of the contractual relationship 22 until at least 4 years after the contract expires or 23 terminates, maintain detailed current records, including 24 documentation of all expenses, disbursements, charges, 25 credits, underlying receipts and invoices, and other financial 26 transactions that concern the provision of such attorney 27 services. The private attorney shall make all such records 28 available for inspection and copying upon request in 29 accordance with chapter 119. 30 Section 5. Section 60.08, Florida Statutes, is created 31 to read: 10 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 60.08 Injunctions sought by the state pursuant to 2 statute shall issue without bond.--In any action for 3 injunctive relief sought by the state or one of its agencies 4 as provided in ss. 501.207(1)(b), 542.23, and 895.05(5), any 5 injunction sought shall issue without bond or surety and no 6 bond or surety shall be required during the term of the 7 injunction. 8 Section 6. Subsection (5) of section 16.01, Florida 9 Statutes, is amended to read: 10 16.01 Residence, office, and duties of Attorney 11 General.--The Attorney General: 12 (5) Shall appear in and attend to such suits or 13 prosecutions in any other of the courts of this state or in 14 any courts of any other state or of the United States. This 15 subsection is not intended to authorize the joinder of the 16 Attorney General as a party in such suits or prosecutions. 17 Section 7. Sections 45.051, Florida Statutes, is 18 amended to read : 45.051 Execution of supersedeas bond when 19 required of the state or its political subdivisions.-- 20 (1) When a supersedeas bond is required by the 21 appellate court under Rule 9.310(b)(2), Florida Rules of 22 Appellate Procedure or an appeal or other proceeding is taken 23 in any court and there is no court rule or statute exempting 24 the parties from giving supersedeas, cost, or other required 25 bond, the parties are authorized to make and execute the 26 required bond with a corporate surety thereon duly licensed to 27 do business in this state. The premium or other cost for the 28 bond may be paid from the general necessary and regular 29 appropriation of the party taking the appeal, in the case of 30 the state or any of its officers, boards, commissioners or 31 other agencies, and from the county general fund, district 11 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 school general fund, or otherwise as the case may be, in the 2 case of a political subdivision of the state or any of its 3 officers, boards, commissions or other agencies. The officers 4 of the state and its political subdivisions and the executive 5 officers of their boards, commissions, and other agencies 6 aforesaid, are authorized to make and execute the bonds on 7 behalf of the parties. 8 (2) In connection with an appeal taken by a state 9 employee or official of a judgement against that employee or 10 official in an individual capacity, as part of the legal 11 defense being provided by the state risk management program, 12 the Division of Risk Management may enter into an 13 indemnification agreement for the purpose of securing an 14 appellate supersedeas bond, provided that, under any such 15 agreement, the liability of the State of Florida is limited to 16 the amount of the judgment being appealed and any costs 17 imposed by law or the appropriate court. 18 Section 8. Section 48.121, Florida Statutes, is 19 amended to read: 20 48.121 Service on the state.--When the state has 21 consented to be sued, process against the state shall be 22 served on the state attorney or an assistant state attorney 23 for the judicial circuit within which the action is brought 24 and by sending two copies of the process by registered or 25 certified mail to the Attorney General. The state may serve 26 motions or pleadings within 40 days after service is made. 27 This section is not intended to authorize the joinder of the 28 Attorney General or a state attorney as a party in such suit 29 or prosecution. 30 Section 9. Section 45.062, Florida Statutes, is 31 amended to read: 12 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 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 13 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 amendment. The state agency or officer may agree to use all 2 efforts to procure legislative funding or statutory amendment. 3 (5) State agencies and officers shall report to each 4 substantive and fiscal committee of the Legislature having 5 jurisdiction over the reporting agency on all potential 6 settlements that may commit the state to: 7 (a) Spend in excess of current appropriations; or 8 (b) Policy changes inconsistent with current state 9 law. 10 11 The state agency or officer shall provide periodic updates to 12 the appropriate legislative committees on these issues during 13 the settlement process. 14 Section 10. Subsection (13) is added to section 15 216.023, Florida Statutes, to read: 16 216.023 Legislative budget requests to be furnished to 17 Legislature by agencies.-- 18 (13) As a part of the legislative budget request, the 19 head of each state agency shall include an inventory of all 20 litigation in which the agency is involved which may require 21 additional appropriations to the agency or amendments to the 22 law under which the agency operates. No later than March 1 23 following the submission of the legislative budget request, 24 the head of the state agency shall provide an update of any 25 additions or changes to the inventory. Such inventory shall 26 include those items specified annually in the legislative 27 budget instructions. 28 Section 11. Section 284.385, Florida Statutes, is 29 amended to read: 30 284.385 Reporting and handling of claims.--All 31 departments covered by the State Risk Management Trust Fund 14 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 under this part shall immediately report all known or 2 potential claims to the Department of Insurance for handling, 3 except employment complaints which have not been filed with 4 the Florida Human Relations Commission, Equal Employment 5 Opportunity Commission, or any similar agency. When deemed 6 necessary, the Department of Insurance shall assign or 7 reassign the claim to counsel. The assigned counsel shall 8 report regularly to the Department of Insurance and to the 9 covered department on the status of any such claims or 10 litigation as required by the Department of Insurance. No 11 such claim shall be compromised or settled for monetary 12 compensation without the prior approval of the Department of 13 Insurance and prior notification to the covered department. 14 All departments shall cooperate with the Department of 15 Insurance in its handling of claims. The Department of 16 Insurance, the Department of Management Services, and the 17 Department of Banking and Finance, with the cooperation of the 18 state attorneys and the clerks of the courts, shall develop a 19 system to coordinate the exchange of information concerning 20 claims for and against the state, its agencies, and its 21 subdivisions, to assist in collection of amounts due to them. 22 The covered department shall have the responsibility for the 23 settlement of any claim for injunctive or affirmative relief 24 under 42 U.S.C. s. 1983 or similar federal or state statutes. 25 The payment of a settlement or judgment for any claim covered 26 and reported under this part shall be made only from the State 27 Risk Management Trust Fund. 28 Section 12. If any provision of this act or the 29 application thereof to any person or circumstance is held 30 invalid, the invalidity does not affect other provisions or 31 applications of the act which can be given effect without the 15 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393
HOUSE AMENDMENT Bill No. CS/HB 623 Amendment No. 1 (for drafter's use only) 1 invalid provision or application, and to this end the 2 provisions of this act are declared severable. 3 Section 13. This act shall take effect July 1, 2001. 4 5 6 ================ T I T L E A M E N D M E N T =============== 7 And the title is amended as follows: 8 On page 1, line 25, after the semicolon, through line 9 29, before the semicolon, 10 remove from the title of the bill: all of said lines 11 and On page 2, line 5, 12 remove from the title of the bill: all of said line 13 14 and insert in lieu thereof: 15 party; amending s. 45.051, F.S.; authorizing 16 the Division of Risk Management to enter into 17 indemnification agreements for supersedeas 18 bonds; amending s. 45.062.; providing 19 20 21 22 23 24 25 26 27 28 29 30 31 16 File original & 9 copies 04/27/01 hit0001 12:56 pm 00623-0091-264393