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:

24  

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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    Florida Senate - 2004                                  SB 2792
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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

31  

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    Florida Senate - 2004                                  SB 2792
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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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    Florida Senate - 2004                                  SB 2792
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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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    Florida Senate - 2004                                  SB 2792
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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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