Senate Bill sb2792
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Florida Senate - 2004 SB 2792
By Senator Geller
31-1055-04
1 A bill to be entitled
2 An act relating to the Public Counsel;
3 providing legislative intent; transferring and
4 amending s. 350.061, F.S.; expanding duties of
5 the Public Counsel with respect to insurance
6 matters and representations before the
7 Department of Financial Services; transferring
8 and amending s. 350.0611, F.S.; prescribing
9 powers and duties of the Public Counsel with
10 respect to insurance rate cases; transferring
11 and amending s. 350.0612, F.S.; revising
12 provisions that specify where the Public
13 Counsel's office is located; transferring and
14 amending s. 350.0613, F.S.; providing for the
15 Public Counsel to retain the services of
16 actuaries and economists; amending s. 624.319,
17 F.S.; providing access of the Public Counsel to
18 examination and investigation files of the
19 Department of Financial Services; amending ss.
20 112.3145, 408.40, F.S.; conforming
21 cross-references; providing an effective date.
22
23 Be It Enacted by the Legislature of the State of Florida:
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25 Section 1. Legislative intent.--It is the intent of
26 the Legislature that the Public Counsel be a unit of the
27 legislative branch of state government as that term is defined
28 in section 216.011(1)(w), Florida Statutes. The Public Counsel
29 created in chapter 350, Florida Statutes, is transferred to
30 chapter 11, Florida Statutes, and the authority of the office
31 is expanded as provided in this act.
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1 Section 2. Section 350.061, Florida Statutes, is
2 transferred, renumbered as section 11.95, Florida Statutes,
3 and amended to read:
4 11.95 350.061 Public Counsel; appointment; oath;
5 restrictions on Public Counsel and his or her employees.--
6 (1) The Joint Legislative Auditing Committee shall
7 appoint a Public Counsel by majority vote of the members of
8 the committee to represent the general public of Florida
9 before the Florida Public Service Commission and the
10 Department of Financial Services. The Public Counsel must
11 shall be an attorney admitted to The Florida Bar practice
12 before the Florida Supreme Court and shall serve at the
13 pleasure of the Joint Legislative Auditing Committee, subject
14 to annual reconfirmation by the committee. Vacancies in the
15 office shall be filled in the same manner as the original
16 appointment.
17 (2) The Public Counsel shall take and subscribe to the
18 oath of office required of state officers by the State
19 Constitution.
20 (3) No officer or full-time employee of the Public
21 Counsel shall actively engage in any other business or
22 profession; serve as the representative of any political party
23 or on any executive committee or other governing body thereof;
24 serve as an executive, officer, or employee of any political
25 party, committee, organization, or association; receive
26 remuneration for activities on behalf of any candidate for
27 public office; or engage on behalf of any candidate for public
28 office in the solicitation of votes or other activities in
29 behalf of such candidacy. Neither the Public Counsel nor any
30 employee of the Public Counsel shall become a candidate for
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1 election to public office unless he or she shall first resign
2 from his or her office or employment.
3 Section 3. Section 350.0611, Florida Statutes, is
4 transferred, renumbered as section 11.951, Florida Statutes,
5 and amended to read:
6 11.951 350.0611 Public Counsel; duties and powers.--It
7 is shall be the duty of the Public Counsel to provide legal
8 representation for the people of the state in proceedings
9 before the Public Service Commission and the Department of
10 Financial Services and in proceedings before counties pursuant
11 to s. 367.171(8). The Public Counsel shall have such powers as
12 are necessary to carry out the duties of his or her office,
13 including, but not limited to, the following specific powers:
14 (1) To recommend to the commission or the counties, by
15 petition, the commencement of any proceeding or action or to
16 appear, in the name of the state or its citizens, in any
17 proceeding or action before the commission or the counties.
18 (2) To recommend to the department, by petition, the
19 commencement of, and to appear in the name of the state or its
20 citizens in, any proceeding or action before the department
21 relating to:
22 (a) Rules governing all motor vehicle insurance or
23 residential property insurance; or
24 (b) Rate filings for all motor vehicle insurance or
25 residential property insurance which request rate increases of
26 10 percent or greater or rate decreases of 5 percent or
27 greater within a 12-month period.
28 (3) To initiate or intervene in any rate proceeding or
29 action within 30 days after the rate filing is made. To do so,
30 the Public Counsel must file notice with the Chief Financial
31 Officer stating that, based upon a preliminary review, the
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1 Public Counsel believes that the rates filed are excessive,
2 inadequate, or unfairly discriminatory. For purposes of this
3 section, an approval or retraction of objections to a rate
4 filing by the Department of Financial Services constitutes
5 final agency action, may be appealed only to the district
6 court of appeal, and may not be stayed.
7 (4) To and urge in any proceeding or action to which
8 he or she is a party therein any position which he or she
9 deems to be in the public interest, whether consistent or
10 inconsistent with positions previously adopted by the
11 commission, the department, or the counties, and utilize
12 therein all forms of discovery available to attorneys in civil
13 actions generally, subject to protective orders of the
14 commission, the department, or the counties which shall be
15 reviewable by summary procedure in the circuit courts of this
16 state.;
17 (5)(2) To have access to and use of all files,
18 records, and data of the commission, the department, or the
19 counties available to any other attorney representing parties
20 in a proceeding before the commission, the department, or the
21 counties.;
22 (6)(3) In any proceeding in which he or she has
23 participated as a party, to seek review of any determination,
24 finding, or order of the commission, the department, or the
25 counties, or of any hearing examiner designated by the
26 commission, the department, or the counties, in the name of
27 the state or its citizens.;
28 (7)(4) To prepare and issue reports, recommendations,
29 and proposed orders to the commission, the Governor, and the
30 Legislature on any matter or subject within the jurisdiction
31 of the commission, and to make such recommendations as he or
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1 she deems appropriate for legislation relative to commission
2 procedures, rules, jurisdiction, personnel, and functions.;
3 and
4 (8)(5) To appear before other state agencies, federal
5 agencies, and state and federal courts in connection with
6 matters under the jurisdiction of the commission, in the name
7 of the state or its citizens.
8 Section 4. Section 350.0612, Florida Statutes, is
9 transferred, renumbered as section 11.952, Florida Statutes,
10 and amended to read:
11 11.952 350.0612 Public Counsel; location.--The Public
12 Counsel shall maintain his or her office in Leon County on the
13 premises of the commission or, if suitable space there cannot
14 be provided, at such other place convenient to the offices of
15 the Public Service Commission or Department of Financial
16 Services commissioners as will enable him or her to carry out
17 expeditiously the duties and functions of his or her office.
18 Section 5. Section 350.0613, Florida Statutes, is
19 transferred, renumbered as section 11.953, Florida Statutes,
20 and amended to read:
21 11.953 350.0613 Public Counsel; employees; receipt of
22 pleadings.--The Legislative Auditing Committee may authorize
23 the Public Counsel to employ clerical and technical assistants
24 whose qualifications, duties, and responsibilities the
25 committee shall from time to time prescribe. The committee may
26 from time to time authorize retention of the services of
27 additional attorneys, actuaries, economists, or experts to the
28 extent that the best interests of the people of the state will
29 be better served thereby, including the retention of expert
30 witnesses and other technical personnel for participation in
31 contested proceedings before the Public Service Commission or
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1 Department of Financial Services. The commission or
2 department shall furnish the Public Counsel with copies of the
3 initial pleadings in all proceedings before the commission or
4 department, and if the Public Counsel intervenes as a party in
5 any proceeding he or she shall be served with copies of all
6 subsequent pleadings, exhibits, and prepared testimony, if
7 used. Pleadings shall include, but are not limited to, all
8 rate filings for all motor vehicle insurance and residential
9 property insurance filed under chapter 627. Upon filing notice
10 of intervention, the Public Counsel shall serve all interested
11 parties with copies of such notice and all of his or her
12 subsequent pleadings and exhibits.
13 Section 6. Paragraph (a) of subsection (3) of section
14 624.319, Florida Statutes, is amended to read:
15 624.319 Examination and investigation reports.--
16 (3)(a) Examination reports, until filed, are
17 confidential and exempt from the provisions of s. 119.07(1).
18 Investigation reports are confidential and exempt from the
19 provisions of s. 119.07(1) until the investigation is
20 completed or ceases to be active. However, the Public Counsel
21 shall have access to the examination and investigation files
22 and reports pertaining to all motor vehicle and residential
23 property insurance at any time. The Public Counsel shall
24 withhold from public inspection any information so obtained
25 while the department's examination or investigation is still
26 in progress. For purposes of this subsection, an investigation
27 is active while it is being conducted by the department or
28 office with a reasonable, good faith belief that it could lead
29 to the filing of administrative, civil, or criminal
30 proceedings. An investigation does not cease to be active if
31 the department or office is proceeding with reasonable
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1 dispatch and has a good faith belief that action could be
2 initiated by the department or office or other administrative
3 or law enforcement agency. After an investigation is completed
4 or ceases to be active, portions of the investigation report
5 relating to the investigation remain confidential and exempt
6 from the provisions of s. 119.07(1) if disclosure would:
7 1. Jeopardize the integrity of another active
8 investigation;
9 2. Impair the safety and financial soundness of the
10 licensee or affiliated party;
11 3. Reveal personal financial information;
12 4. Reveal the identity of a confidential source;
13 5. Defame or cause unwarranted damage to the good name
14 or reputation of an individual or jeopardize the safety of an
15 individual; or
16 6. Reveal investigative techniques or procedures.
17 Section 7. Paragraph (b) of subsection (1) of section
18 112.3145, Florida Statutes, is amended to read:
19 112.3145 Disclosure of financial interests and clients
20 represented before agencies.--
21 (1) For purposes of this section, unless the context
22 otherwise requires, the term:
23 (b) "Specified state employee" means:
24 1. Public counsel created by chapter 11 350, an
25 assistant state attorney, an assistant public defender, a
26 full-time state employee who serves as counsel or assistant
27 counsel to any state agency, the Deputy Chief Judge of
28 Compensation Claims, a judge of compensation claims, an
29 administrative law judge, or a hearing officer.
30 2. Any person employed in the office of the Governor
31 or in the office of any member of the Cabinet if that person
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1 is exempt from the Career Service System, except persons
2 employed in clerical, secretarial, or similar positions.
3 3. Each appointed secretary, assistant secretary,
4 deputy secretary, executive director, assistant executive
5 director, or deputy executive director of each state
6 department, commission, board, or council; unless otherwise
7 provided, the division director, assistant division director,
8 deputy director, bureau chief, and assistant bureau chief of
9 any state department or division; or any person having the
10 power normally conferred upon such persons, by whatever title.
11 4. The superintendent or institute director of a state
12 mental health institute established for training and research
13 in the mental health field or the warden or director of any
14 major state institution or facility established for
15 corrections, training, treatment, or rehabilitation.
16 5. Business managers, purchasing agents having the
17 power to make any purchase exceeding the threshold amount
18 provided for in s. 287.017 for CATEGORY ONE, finance and
19 accounting directors, personnel officers, or grants
20 coordinators for any state agency.
21 6. Any person, other than a legislative assistant
22 exempted by the presiding officer of the house by which the
23 legislative assistant is employed, who is employed in the
24 legislative branch of government, except persons employed in
25 maintenance, clerical, secretarial, or similar positions.
26 7. Each employee of the Commission on Ethics.
27 Section 8. Subsection (1) of section 408.40, Florida
28 Statutes, is amended to read:
29 408.40 Public Counsel.--
30 (1) Notwithstanding any other provisions of this
31 chapter, the Public Counsel shall represent the public in any
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1 proceeding before the agency or its advisory panels in any
2 administrative hearing conducted pursuant to chapter 120 or
3 before any other state and federal agencies and courts in any
4 issue before the agency, any court, or any agency. With
5 respect to any such proceeding, the Public Counsel is subject
6 to the provisions of and may use the powers granted to him or
7 her by ss. 11.95-11.954 ss. 350.061-350.0614.
8 Section 9. This act shall take effect July 1, 2004.
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11 SENATE SUMMARY
12 Transfers the office of the Public Counsel to the
legislative branch and prescribes its duties before the
13 Department of Financial Services in contesting insurance
rate cases. (See bill for details.)
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