Bill Summary – FastDemocracy

The Florida Senate
                  BILL ANALYSIS AND FISCAL IMPACT STATEMENT
              (This document is based on the provisions contained in the legislation as of the latest date listed below.)
                     Prepared By: The Professional Staff of the Committee on Ethics and Elections
BILL:           CS/CS/SB 734
INTRODUCER:     Committee on Ethics and Elections, Committee on Community Affairs, and Senator
                Ingoglia
SUBJECT:        Government Accountability
DATE:           February 6, 2024                REVISED:
           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Hackett                          Ryon                                  CA              Fav/CS
2. Cleary                           Roberts                               EE              Fav/CS
3.                                                                        RC
                     Please see Section IX. for Additional Information:
                                   COMMITTEE SUBSTITUTE - Substantial Changes
  I.    Summary:
        CS/CS/SB 734 makes various changes related to ethics regulations for local governments.
        Specifically, the bill:
         Prohibits certain state and local officials from soliciting or accepting anything of value from
           a foreign country of concern.
         Establishes requirements for lobbyist registration for individuals lobbying local governments
           by:
           o Requiring a person to register as a lobbyist solely with the State Commission on Ethics if
               he or she wishes to lobby a county, municipality, or special district.
           o Making the State Commission on Ethics solely responsible for naming persons registered
               to lobby a county, municipality, or special district in a public database and requiring the
               State Commission on Ethics to publish registrations of such persons on its website.
           o Mandating that all required documentation and information involving the filing,
               amending, or canceling of a registration to become a lobbyist to lobby a county,
               municipality, or special district be filed with the State Commission on Ethics.
           o Requiring that the State Commission on Ethics be the entity to receive and investigate all
               complaints involving violations of the lobbying registration requirements to lobby a
               county, municipality, or special district.
           o Requiring that the State Commission on Ethics report its findings and recommendations
               from its investigations of complaints to the chief executive officer of the applicable
               county or municipality, or the governing body of the special district.
BILL:     CS/CS/SB 734                                                                                             Page 2
               o Allowing the chief executive officer of the county or municipality, or the governing body
                   of the special district, to enforce the State Commission on Ethics’ findings and
                   recommendations involving complaints.
               o Making the bill provisions preempt and supersede any ordinary charter provision that
                   establishes a lobbyist registration program adopted before July 1, 2024.
              Provides that certain local government employee contracts shall not be renewed, extended, or
               renegotiated within 8 months of a general election for members of the applicable governing
               body.
           The bill takes effect July 1, 2024.
    II.    Present Situation:
           Commission on Ethics
           The Commission on Ethics (Commission) was created by the Legislature in 1974 “to serve as
           guardian of the standards of conduct” for state and local public officials and employees.1 The
           Florida Constitution and state law designate the Commission as the independent commission
           provided for in s. 8(g), Art. II of the Florida Constitution.2 Constitutional duties of the
           Commission consist of conducting investigations and making public reports on all breach of trust
           complaints towards public officers or employees not governed by the judicial qualifications
           commission.3 In addition to constitutional duties, the Commission, in part:
            Renders advisory opinions to public officials;4
            Makes recommendations to disciplinary officials when appropriate for violations of ethics
               and disclosure laws;5
            Administers the Executive Branch Lobbying Registration and Reporting Law;6
            Maintains financial disclosure filings of constitutional officers and state officers and
               employees;7 and
            Administers automatic fines for public officers and employees who fail to timely file a
               required annual financial disclosure.8
           Code of Ethics for Public Officers and Employees
           The Code of Ethics for Public Officers and Employees (Code of Ethics)9 establishes ethical
           standards for public officials and is intended to ensure that public officials conduct themselves
           independently and impartially, not using their office for private gain other than compensation
1
  Florida Commission on Ethics, Guide to the Sunshine Amendment and Code of Ethics for Public Officers and Employees, p.
1, available at https://ethics.state.fl.us/Documents/Publications/GuideBookletInternet.pdf?cp=2023310 (last visited January
31, 2024); see also s. 112.320, F.S.
2
  Section (8)(j)(3), art. II, Fla. Const.; s. 112.320, F.S.
3
  Section (8)(g), art. II., Fla. Const.
4
  Section 112.322(3)(a), F.S.
5
  Section 112.322(2)(b), F.S.
6
  Sections 112.3215 and 112.32155, F.S.
7
  Section 112.3144, F.S.
8
  Sections 112.3144, 112.3145, and 112.31455, F.S.
9
  See pt. III. Ch. 112, F.S.
BILL:   CS/CS/SB 734                                                                                            Page 3
         provided by law.10 The Code of Ethics addresses various issues, such as ethics trainings, voting
         conflicts, full and public disclosure of financial interests, standards of conduct, and the
         Commission on Ethics, among others.11
         Gifts and Contracts
         Public officers, state agency employees, local government attorneys, and candidates for office
         are prohibited from soliciting or accepting anything of value, including a gift, loan, reward,
         promise of future employment, favor, or service, based upon the understanding that their vote,
         official action, or judgment would be influenced.12 A state agency, political subdivision, or
         public school authorized to expend state-appropriated funds or levy ad valorem taxes may not
         participate in any agreement with or accept any grant from a foreign country of concern, or any
         entity controlled by a foreign country of concern which:
          Constrains the freedom of contract of such public entity;
          Allows the curriculum or values of a program in the state to be directed or controlled by the
             foreign country of concern; or
          Promotes an agenda detrimental to the safety or security of the United States or its
             residents.13
         A “foreign country of concern” is defined as the People’s Republic of China, the Russian
         Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the
         Republic of Cuba, the Venezuelan regime of Nicolás Maduro, or the Syrian Arab Republic,
         including any agency of or any other entity under significant control of those nations.14
         Lobbyist Registration and Compensation Reporting
         Lobbyist must register to lobby the executive branch or the legislative branch in Florida.
         Executive branch lobbying is regulated by the Code of Ethics and administered by the
         Commission.15 Legislative branch lobbying is regulated primarily by Joint Rule of the House and
         Senate and administered by the Office of Legislative Services.16 Both registration systems
         require lobbyists to register annually for each principal represented and to indicate the entities to
         be lobbied.17 In addition, lobbying firms must file quarterly compensation reports.18 Both the
         Commission and the Legislature have instituted electronic registration and compensation
         reporting.19 Executive branch lobbyists, however, must supply a written oath to complete each
         registration as well as a signed statement of authority from the principal.20
10
   Florida Commission on Ethics, Guide to the Sunshine Amendment and Code of Ethics for Public Officers and Employees,
p. 1, available at https://ethics.state.fl.us/Documents/Publications/GuideBookletInternet.pdf?cp=2023310 (last visited
January 31, 2024)
11
   See pt. III. 112, F.S.
12
   Section 112.313(2), F.S.
13
   Section 288.860(2), F.S.
14
   Section 288.860(1)(a), F.S.
15
   Section 112.3215, F.S.
16
   Section 11.045, F.S. and Joint Rule 1.
17
   Section 112.3215(3), F.S.; Joint Rule 1.2.
18
   Section 112.3215(5)(a)1., F.S.; Joint Rule 1.4.
19
   Section 112.32155, F.S.; Joint Rule 1.1(2)(f)
20
   Section 112.3215(3), F.S.
BILL:   CS/CS/SB 734                                                                                              Page 4
         State agency employees and employees of legislative and judicial branch entities acting in the
         normal course of their duties are exempt from executive branch lobbying registration.21
         However, local government officers and employees must register to lobby the state executive
         branch.
         Compensation reporting is subject to random audits, and findings of non-compliance are reported
         to the Commission, in the case of executive branch lobbying firms, for investigation. 22
         The executive branch lobbyist registration law provides specific procedures for its
         enforcement.23 The Commission reports probable cause findings to the Governor and Cabinet for
         appropriate action, which can include a fine up to $5,000 and prohibition from lobbying for up to
         two years.24 A person accused of violating the lobbyist registration law may request a hearing
         within 14 days of the mailing of the probable cause notification.25
         Local Government Employees
         Local governments have broad authority to contract with or employ personnel for the wide
         variety of tasks they accomplish. This authority is limited only narrowly by statute, which
         generally forbids the payment of extra compensation and sets limits on severance pay for all
         employees of a governmental unit.26 Severance pay may not exceed 20 weeks’ compensation,
         and must not be granted when the employee has been fired for misconduct.27
         County Administrator
         Counties are required to employ a county administrator, who acts as the administrative head of
         the county and is responsible for the administration of all departments of the county
         government.28 The county administrator is appointed by a majority of the board of county
         commissioners and must reside within the county during his or her tenure.29 The board of county
         commissioners fixes the county administrator’s compensation.30
         School Superintendents
         A school superintendent, the administrative head of a district school board, may be either
         appointed by the district school board or elected for four-year terms.31 A district school board
         must enter into an employment contract with an appointed district school superintendent which
         provides a reasonable salary not exceeding $225,000 in total remuneration.32 These contracts are
21
   Section 112.3215(1)(h)(2), F.S.
22
   Section 112.3215(8)(c), F.S.
23
   Section 112.3215(8)-(9), F.S.
24
   Section 112.3215(9)-(10), F.S.
25
   Section 112.3215(9), F.S.
26
   Section 215.425, F.S.
27
   Section 215.425(4), F.S.
28
   Section 125.73(1), F.S.
29
   Section 125.73(2), F.S.
30
   Section 125.73(3), F.S.
31
   Article IX, s. 5, FLA. CONST. Districts may decide which system to use, changing from one to the other by referendum.
32
   Sections 1001.50(3) and (5), F.S.
BILL:   CS/CS/SB 734                                                                                                      Page 5
         subject to the provisions of law limiting bonuses and severance pay.33 An elected superintendent
         is not an employee, and he or she receives a statutory salary similarly to other elected officials.34
         Local Government Attorneys and Municipal Chief Executive Officers
         While local governments are not required by law to employ an attorney, and municipalities are
         not required to employ a chief executive officer,35 the practice of hiring such personnel is
         common, such that these roles are referred to by various statutes.36 These roles may be full time
         employees, fulfilled through contract work as needed, or divided into several smaller roles, as
         needed by the local government.
III.     Effect of Proposed Changes:
         Section 1 amends s. 112.313, F.S., to prohibit public officers, state agency employees, local
         government attorneys, or candidates for office from soliciting or accepting anything of value,
         including gifts, loans, rewards, promises of future employment, favors, or services from a foreign
         country of concern.
         Section 2 creates s. 112.3262, F.S., to establish requirements for lobbying before counties,
         municipalities, and special districts. These requirements largely mirror provisions of current law
         regulating lobbying of the executive branch.
         The bill provides that a person may not lobby a county, municipality, or special district unless he
         or she is registered as a lobbyist with the State Commission on Ethics. Such registration must be
         completed upon the person’s initial retention as a lobbyist, may be renewed annually thereafter,
         and must be filed under oath on a lobbyist registration form used by the State Commission on
         Ethics. The bill makes the State Commission on Ethics solely responsible for naming persons
         registered to lobby a county, municipality, or special district in a public database and must
         publish the registrations of such persons on the State Commission on Ethics’ website.
         The bill provides that upon receipt of a sworn complaint alleging that an individual has either
         failed to register or knowingly submitted false information in a report or registration, the State
         Commission on Ethics must investigate the allegations and provide findings and
         recommendations for the local government to act upon. The bill allows the chief executive
         officer of the county or municipality, or the governing body of the special district, to enforce the
         State Commission on Ethics’ findings and recommendations involving complaints.
         The bill’s provisions preempt and supersede any ordinary charter provision that establishes a
         lobbyist registration program adopted before July 1, 2024.
         Sections 3, 4, 5, 6, and 7 amend ss. 125.73, 125.75, 166.021, 1001.50, and 1012.366, F.S., to
         provide that certain local government employee contracts shall not be renewed, extended, or
33
   Section 1001.50(2), F.S.
34
   Section 1001.47, F.S.
35
   Often referred to as a city or town manager.
36
   See, e.g., ss. 193.116 (referring to “the chief executive officer of each municipality”), 194.035 (referring to a school board
attorney), and 409.2554 (referring to county and city attorneys), F.S.
BILL:   CS/CS/SB 734                                                                                                   Page 6
         renegotiated within 8 months of a general election for members of the applicable governing
         body, except upon unanimous vote of the governing body. The bill applies this provision to:
          County administrators;
          County attorneys;
          Municipal chief executive officers;
          Municipal attorneys;
          School superintendents; and
          School board district attorneys.
         The remainder of the bill revises cross-references and incorporates the amendments made by the
         bill.
         The bill takes effect July 1, 2024.
IV.      Constitutional Issues:
         A.       Municipality/County Mandates Restrictions:
                  The county and municipality mandate provisions of Article VII, section 18(a) of the
                  Florida Constitution provide in part that a county or municipality may not be bound by a
                  general law requiring a county or municipality to spend funds or take an action that
                  requires the expenditure of funds unless certain specified exemptions or exceptions are
                  met.
                  Article VII, section 18(d) provides eight exemptions, which, if any single one is met,
                  exempts the law from the limitations on mandates. Laws having an “insignificant fiscal
                  impact” are exempt from the mandate requirements, which for Fiscal Year 2024-2025 is
                  forecast at approximately $2.3 million.37,38 The bill makes local governments responsible
                  for determining whether persons required to register with the State Commission on Ethics
                  have complied with the law. Further, the local governments are charged, in their
                  discretion, to enforce the State Commission on Ethics’ findings and recommendations.
                  However, local government oversight costs associated with the bill are speculative and
                  not readily estimable for purposes of determining whether the exemption for bills having
                  an insignificant fiscal impact applies.
                  If th