2017 FEBRUARY FASD LEGISLATIVE REPORT

Terry E. Lewis, General Counsel and M. Christopher Lyon, Legislative Counsel

The 2017 Florida Legislature will convene March 7, 2017 in Tallahassee to take up the State’s business for the year.  Our Constitution mandates a 60-day Session and adoption of a budget as the only legislation that must pass.  However, for a variety of reasons, largely related to widely divergent priorities between the Speaker of the House and Senate President as to what should pass, the early betting is that the Legislature may be in Session for considerably longer than the mandated 60 day session.  One of them wants big money for the Everglades.  The other one wants to shrink State government.  Individual committee meeting have begun and will run through the third week of February with a break before the House and Senate reconvene March 7, 2017.  The general setting for the Session is described in the following paragraphs.

While the November 2016 elections brought a shift of power at the national level, no such shift occurred at the state level.  With the Fair Districts constitutional amendment adopted in 2010, and the subsequent redistricting of Florida Senate and House districts, the Democrats hoped to gain large numbers of seats in both chambers.  However, the gains for Democrats in both the House and Senate were minimal.

In the Senate, the Democrats picked up one seat so that the Republicans now hold a 25-15 member majority.  In the House, the Democrats picked up three seats so that the Republicans now hold a 79-41 member majority.  While the Republicans hold a sizeable majority in both the Senate and House, they do not hold a 2/3 majority in either chamber which means they cannot “waive the rules” and ramrod bills through the process.  The elections also brought many new members to both chambers, including 19 new Senators and 39 new Representatives.

There is new leadership in both chambers with Sen. Joe Negron (R-Palm City) being elected as Senate President and Rep. Richard Corcoran (R-Lutz) being elected Speaker of the House.  With his election as Speaker, Rep. Corcoran has ushered in new rules for the House, which include new requirements for lobbyists.  Prior to lobbying any House member or staff, lobbyists must now disclose via the House website any issue, bill or amendment on which they are working.  Lobbyists for local government must also submit copies of their lobbying contracts with local governments.  Lobbyists are also now prohibited from texting a House member while he or she is in committee or on the floor.  The rules also provide a 6-year ban from lobbying for members of the House after leaving their seat, require House members to disclose any employment relationships with taxpayer-funded entities and prohibit House members from flying on airplanes owned by lobbyists.  Speaker Corcoran has also implemented new rules for the appropriations process, requiring a stand-alone appropriations project bill be filed for each new project.

On the economic front, while the national and state economies seem to be improving, Florida’s economic forecasters predict a relatively flat budget for the 2017-2018 fiscal year.  However, the forecasts show about a $1 billion deficit for the 2018-2019 fiscal year and a $2 billion deficit for the 2019-2020 fiscal year.  The economists attribute the predicted deficits to increased health care and education expenses, coupled with impacts now being felt from tax cuts passed in recent years.  Discussions have already begun about the need to begin cutting State spending to prepare for the impending deficits.

Following is a summary of the bills we are currently tracking for the Florida Association of Special Districts:

The bills that have already been filed that can have some effect on FASD members generally cover topics such as the environment (water and the release of pollutants into the environment), fire rescue, Florida’s Code of Ethics, taxes, the Florida Retirement system and municipal conversion of special taxing districts to municipalities.  The specific legislation includes.

1. Water – SB 10 (Bradley)

SB 10 is the number one priority for the Senator Negron, the President of the Senate, for the next two Sessions. Parenthetically the legislation doesn’t appear to be a priority for the leadership of the House at this time.  The bill would create a funding source for land acquisition for a 60,000 acre reservoir south of Lake Okeechobee by designation up to $800 million dollars during fiscal year 2017/18 and $400 million dollars for fiscal year 2018/19 for land acquisition from willing sellers. The money would come from Amendment #1, documentary stamp tax revenue.  If there are no willing sellers, the law will obligate the South Florida Water Management District (SFWMD) to exercise the option they hold to purchase essentially all the land owned by United States Sugar, more than 150,000 acres and expedite the process to implement the reservoir plan.  The ostensible purpose for the program is to provide water storage south of Lake Okeechobee during high water periods and prevent algae blooms from supposedly polluted Lake water now being released to the Caloosahatchee and St. Lucie rivers and into sensitive estuaries.

At the bill’s first hearing before the Senate Environmental Preservation and Conservation Committee February 7, 2017 many farmers from the Everglades Agricultural Area and the citizens and elected officials of the Lakeside communities of Pahokee, Belle Glade, South Bay and Clewiston indicated there would be no willing sellers of land and the program would devastate the economy of that part of Florida, wiping out a significant portion of a billion dollar a year agricultural industry.  Environmental interests were equally avid in support of the bill.  It eventually passed the Committee unanimously after several hours of testimony.

2. Pollution Reporting – SB 532 (Galvano)

SB 532 directs the Department of Environmental Protection (DEP) to establish and publish a list of substances that, at a specified quantity, present an immediate and substantial risk to the public health, safety or welfare.  Any operator of a potential source of such a substance that experiences a release of such a substance into the environment must report the release to DEP pursuant to Dep rules.  The reporting requirement are substantial.  Once reported to DEP, DEP must publish the release on a website accessible to the public. DEP must also create an electronic mailing list for such notices and allow local governments, new media and interested individuals to subscribe to and receive periodic announcements of any notices.

3. Firefighter Cancer Presumption – HB 143 (Fitzenhagen)/SB 158 (Latvala)

These bills create a presumption that a full time firefighter or paramedic who contracts cancer did so in the line of duty and is eligible for death and disability benefits. Similar legislation was filed in 2016 and received no hearings in the House and only one in the Senate.  SB 158 was heard and approved unanimously by its first committee (Governmental Oversight and Accountability) February 7, 2017.  HB 143 has not yet received a hearing.

4. Public Records – SB 80 (Steube)/HB 163 (Burgess)/ SB 246 (Garcia)

These bills provide a circuit court judge with discretion in determining whether attorney’s fees should be granted to a plaintiff who filed a civil action to enforce the provisions of the public records act.  Similar legislation passed the Senate in 2016 but did not pass the House.

SB 80 requires a complainant to provide written notice of a public records request at least 5 days prior to filing suit and provides that a judge may (rather than shall) award attorney’s fees if it finds the complaint provided the required written notice and the agency unlawfully refused to provide the records listed in the written notice.

SB 80 was heard and approved on a 4 to 3 vote by the Senate Governmental Oversight and Accountability Committee on February 7, 2017.  The primary opposition to the legislation is the First Amendment Foundation which generally opposes any exceptions to Florida’s public records laws.  HB 163 has not yet received a hearing.  FASD supports passage of this legislation.

HB 163 and SB 246 provide that a court shall assess reasonable attorney’s fees if it finds the agency unlawfully refused to permit a public record to be inspected or copied and the complainant provided written notice to the agency’s custodian of records at least five (5) days prior to filing suit.  The bills further provide that a court may not award attorney’s fees if it determines the records request was made primarily to harass the agency or cause a violation of the public records law.  Finally, the bills provide that a complainant is not required to provide written notice of the public records request if the agency does not prominently post the contact information for the custodian of records on its website and in the agency’s primary administrative building in which records are routinely created, sent, received, maintained and requested.

5. Ethics – PCB PIE 17-03 ( House Public Integrity and Ethics Committee PCB)

Ethics reform and governmental transparency are top priorities of the House Speaker, Richard Corcoran and this proposed committee bill is one of the House initiatives that we expect to pass the House in some form. How it might be received in the Senate is unknown.  There is no current Senate companion.  As the bill currently affects special districts its provisions provide:

  1. Beginning January 1, 2018, all elected members of the governing board of a special district must complete four (4) hours of ethics training each calendar year which address the ethics requirements for public officers within the Florida Constitution, the Code of Ethics for Public Officers and Employees and the public records and public meeting laws of the state of Florida.
  2. Specific subjects for ethics training such as doing business with one’s agency, conflicting employment, voting conflicts and gift and honoraria restrictions and reporting are listed in the legislation.
  3. Section 112.32612 is created to require that anyone lobbying a local government must register as a lobbyist with the Florida Commission on Ethics. This is a departure from the attempts the last two legislative sessions to require certain special districts to establish procedures for lobbyist registration.  As currently proposed, FASD would have on objection to the legislation.

6. Ethics – SB 306 (Clemensu)

SB 306 amends 112.3143, Florida Statutes governing voting conflicts of public officials by eliminating the definition of “special private gain or loss” and inserting language that would allow a public official to vote on a matter that would result in an economic benefit or harm to the public generally or to a broad segment of the public.  The bill has no House companion and has not been heard by a Senate committee yet.

7. Local Tax Referenda – HB 139 (Ingoglia)/SB 278 (Steube)

These bills require that any referendum to approve a local government discretionary surtax under Section 212.055, F.S., must be held at a general election.

The purpose behind the legislation is to prevent certain taxes that require a referendum for approval from being voted on at a special election when a significant portion of the electorate is not present as is the case in many of Florida’s retirement communities in the summer.  HB 139 has been approved unanimously by the House Local, Federal and Veterans Affairs Subcommittee.  SB 278 has not been heard.

8. Municipal Conversion of Special Districts – SB 422 (Lee)/HB 719 (Roth)

These bills prohibit the conversion of a special district into a city pursuant to Florida’s municipal incorporation laws unless the special district, within a county with a population of 75,000 or less, had a minimum of 1500 resident electors. Conversion could not be initiated in a county with a population of more than 75,000 unless the special district had at least 5,000 resident electors.

9. Retirement/Pensions – HB 353(Fischer)/SB 422 (Brandes)

These bills would limit employees of a local government that applies to join FRS on or after January 1, 2017 to participation in the FRS defined contribution plan.  Employees would not be able to participate in the FRS defined benefit plan.  If passed the bills are retroactive to January 1, 2017.

As of February 9, 2017, 1,269 bills have been filed.  We expect that ultimately 2500 or more individual bills dealing with substantive legislation will be filed.  Additionally, the Speaker has required that individual member projects (“Turkeys”) cannot be included in a general appropriations bill and must be filed as separate free standing bills.  To date, 354 project bills have been filed with a value of $762,000,000.