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Election Law Update

The First District Court of Appeal reversed the determination of the Division of Administrative Hearings that Rule 2B-1.002, Florida Administrative Code, exceeds the rulemaking authority of the Florida Elections Commission (FEC) and contravenes the law being implemented.  Florida Elections Commission v. Blair, Case No. 1D10-1353 (Fla. 1st DCA December 8, 2010), which can be found here.  The rule defined the terms “willful” and “willfully” for the purpose of the FEC imposing a civil penalty for violating Chapter 104 and Chapter 106, Florida Statutes.

In determining that the rule was an invalid exercise of legislative authority, the administrative law judge applied the definition of “rulemaking authority” set forth in Section 120.52(17), Florida Statutes, added by the Legislature in 2008 to the Administrative Procedures Act (APA), which defined the term to mean “statutory language that explicitly authorizes or requires an agency to adopt, develop, establish, or otherwise create any statement coming within the definition of the term ‘rule.’”  The administrative law judge construed Section 120.52(17) as an additional restriction on agency rulemaking authority. 

The First District rejected that construction. The court concluded that the definition of “rulemaking authority” in Section 120.52(17) was “merely intended” to codify existing law and not to impose new additional restrictions on agency rulemaking authority “beyond what was already expressed in the ‘flush left’ paragraph in section 120.58(2), as construed by this court in Save the Manatee Club and subsequent cases.”

As a consequence, because the FEC is authorized to adopt rules to consider sworn complaints, and because an evaluation of “willfulness” is a necessary component of this consideration, the court concluded that the rule defining “willful” falls within statutory language that explicitly authorizes or requires an agency to adopt, develop, establish, or otherwise create a rule. 

Prepared by:    Mark Herron

                        mherron@lawfla.com

MANY BUSINESSES TO BE EXEMPTED FROM RED FLAGS RULE

It looks like the long road to the enforcement of the Fair and Accurate Credit Transactions Act of 2003, commonly known as the “Red Flags Rule”, is coming to an end for many businesses.  With the recent passage of Senate Bill S.3987, entitled the “Red Flag Program Clarification Act of 2010”, both houses of Congress agreed to exempt certain “creditors” from Red Flag Program regulations.

 By way of review, you may recall that the Red Flags Rule, (“the Rule”), was designed to protect consumers from identity theft.  The Rule, which has undergone numerous enforcement delays, including the current delay scheduled to end on December 31, 2010, broadly applied to businesses that met the definition of a “creditor” under the Equal Credit Opportunity Act, (15 U.S.C. 1691a).  Included as “creditors” were business that:

 “advances funds to or on behalf of a person, based on an obligation of the person to repay the funds or repayable from specific property pledged by or on behalf of the person”

 Under the above definition many business were considered creditors if they did not require payment in full at the time a service or good was provided and/or allowed a client to defer all or a portion of the client’s debt.  S.3987, which is expected to be signed into law by President Obama before December 31, 2010, specifically excludes business that were classified as creditors based solely on the above listed definition of a creditor.  Accordingly, unless a business is otherwise considered a creditor they are exempted from the requirements of the Rule. 

 Although many businesses can breath a sigh of relief by being exempted from yet another regulation, they may wish to continue following the policies and procedures that they previously put in place to prevent consumer identity theft. Generally, adherence to previously implement identity theft prevention policies will continue to benefit both the businesses and the clients they serve. 

 William P. Dillon is Board Certified Health Law attorney with the law firm of Messer, Caparello & Self, P.A.

Election Law Update: Resign-to-Run Updates

Florida’s resign-to-run law has been front and center in this election cycle in a number of challenges to the determination that a candidate has properly qualified for the ballot. The resign-to-run law states: “No officer may qualify as a candidate for another state, district, county, or municipal public office if the terms or any part thereof run concurrently with each other without resigning from the office he or she presently holds.”  Section 99.012(3)(a), Florida Statutes.

 

Most notable to date is the case of Ruiz v. Farias, Case No. 3D-2070 (Fla. 3d DCA August 20, 2010), which can be found here.  In that case, Ms. Ruiz served as a member of Doral City Council qualified as a candidate for the Democratic nomination for District 112 seat in the Florida House of Representatives. If elected, she would take office on the day of the election, pursuant to Article III, Section 15 of the State Constitution. Under the Doral Municipal Charter, her successor would take office on the day following the election. Mr. Ruiz did not submit a letter resigning from the Doral City Council.

 

Reversing the trial court which had stricken Ms. Ruiz from the ballot, the District Court concluded that the overlap created by the confluence of the State Constitution and the Municipal Charter were “insufficient to trigger the requirements of the ‘resign-to-run’ law on the facts of this case.” Noting that object of the resign-to-run law “is to prevent persons who are running for a new position from a safe haven of a current position to which the candidate can retreat in the event she is unsuccessful,” the Court rejected a mechanistic application of the law with this admonition:

 

The appellees urge a mechanistic application of the “resign-to-run” law. Their stratagem is to accomplish an end-run around the sovereign right of the people to select their own officers.  The right to vote is among the most important rights we share as Floridians and Americans.  The law requires that we resolve doubts about qualifications of a political candidate in favor of the candidate.

 

Other cases involving application of the resign-to-run law have been decided in Hillsborough County. See Lothrop v. Dingfelder, Case No. 2010-CA-14035 (Fla. 13^th Cir. Hillsborough County, August 5, 2010), affirmed per curiam in Lothrop v. Dingfelder, Case No. 2D10-3766 (Fla. 2d DCA August 20, 2010) and Murphey v. Saul-Sena, Case No. 2010-CA-14104 (Fla. 13^th Cir. Hillsborough County, August 13, 2010).  Both Hillsborough County cases involved candidates who were found to have “substantially complied” with the resign-to-run law. 

 

Prepared by:    Mark Herron

                        mherron@lawfla.com

Enforcement Deadline for Red Flags Rule Extended…Again.

In a press release dated May 28, 2010, the Federal Trade Commission, (FTC) at the urging of several Members of Congress, announced that enforcement of the Red Flags Rule will be delayed until December 31, 2010.  The rule, which was created to detect, prevent and mitigate identity theft, has been the subject criticism by a number of industries.

 

In addition to criticism, the FTC has also faced industry directed legal action by both lawyers and physicians.  On October 30, 2009, the U.S. District Court for the District of Columbia ruled that the FTC may not apply the Red Flags Rule to attorneys. (American Bar Association v FTC, Civil Action No. 09-1636 (RBW)).  More recently, on May 21, 2010, the American Medical Association filed suit against the FTC in the U.S. District Court for the District of Columbia alleging essentially the same complaint as the ABA.

A link to the FTC press release is found below.

http://www.ftc.gov/opa/2010/05/redflags.shtm

 

By:

Bill Dillon

Board Certified in Health Law

Federal Criminal Law Update

  Attorney General Eric H. Holder, Jr., recently issued a significant memorandum to all federal prosecutors, dated May 19, 2010.  This memorandum supersedes prior memoranda, including that issued by past Attorney General John Ashcroft.  This new memorandum, dubbed the “Holder Memorandum,” outlines policies for federal prosecutors for purposes of charging decisions, plea agreements and sentencing issues. 

 

  The Holder Memorandum maintains the Department of Justice position that prosecutors should continue to “ordinarily charge the most serious offense that is consistent with the defendant’s conduct and that is likely to result in a sustainable conviction”.  The Holder Memorandum is different from prior directives, however, in providing a basis for a departure from the requirement of charging the most readily provable offense, if the individual facts warrant such a decision.  In the words of the Attorney General, these decisions must always be made in the context of "an individualized assessment of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purpose of the Federal criminal code, and maximize the impact of Federal resources on crime."  This “individualized assessment” is to be applied not only to the original charging decisions, but also to decisions relating to plea negotiations and the application of statutory sentencing enhancements.  The Attorney General stated:  “But consistent with the Principles of Federal Prosecution and given the advisory nature of the guidelines, advocacy at sentencing-like charging decisions and plea agreements must also follow from an individualized assessment of the facts and circumstances of each particular case.”

 

  In our judgment, the Holder Memorandum will have the effect of allowing more discretion for individual federal prosecutors to evaluate their cases based on each individual defendant’s circumstances.  Federal prosecutors should no longer feel bound to the concept of charging every provable count in an indictment in all cases.  In fact, the Memorandum notes that it will not be acceptable to bring charges simply to exert more leverage to extract a plea.  Please contact our firm at tfindley@lawfla.com if you would like more information on the Holder Memorandum.

Ethics Law Update

Section 112.326, Florida Statutes, authorizes the governing body of any political subdivision to impose upon its own officers and employees, by ordinance, additional or more stringent standards of conduct and disclosure requirements than those specified in the Code of Ethics for Public Officers and Employees, Part III of Chapter 112, Florida Statutes, provided that those standards of conduct and disclosure requirements do not otherwise conflict with the provisions of the Code of Ethics.   

Persons violating county ordinances are prosecuted and punished as provided by law. Section 125.69(1), Florida Statutes, provides that violations of county ordinances are prosecuted in the same manner as misdemeanors in the name of the state in a court having jurisdiction of misdemeanors and are punishable by a fine not to exceed $500 and/or by imprisonment in the county jail not to exceed 60 days.

Three bills enacted by Legislature in 2010 impact the enforcement of local government ethics codes that establish more stringent standards of conduct and disclosure requirements than those specified in the Code of Ethics for Public Officers and Employees. 

·    HB 1301 (2010 Session) makes violation of any provision of an ordinance imposing standards of conduct and disclosure requirements pursuant to Section 112.326, Florida Statutes, is punishable by a fine not to exceed $1,000 or a term of imprisonment in the county jail not to exceed one year.  Current law limits penalties to payment of fine to exceed $500 and/or by imprisonment in the county jail not to exceed 60 days.

·    CS/SB 551 (2010 Session) makes confidential the complaint and any record relating thereto held by a county or municipal investigatory process established to enforce more stringent standards of conduct and disclosure requirements pursuant to Section 112.326, Florida Statutes. 

·    HB 7085 (2010 Session) reenacts, pursuant to the Open Government Sunset Review Act, the public record exemption for a complaint or any records relating thereto or to any preliminary investigation by the Commission on Ethics or a Commission on Ethics and Public Trust established by a county or a municipality and the public meeting exemption for any proceedings regarding a complaint or preliminary investigation by such agencies.

These bills have not yet been presented to the Governor for his approval.

Prepared by: Mark Herron

  mherron@lawfla.com

Education Law Update

When a student makes a complaint of sexual harassment against a teacher or other school employee, it is very important that the school district conduct a prompt and thorough investigation of the complaint and take appropriate corrective action.  This is so even if the investigation is inconclusive due to a lack of evidence to prove whether or not sexual harassment occurred.  That is the clear message from the Eleventh Circuit Court of Appeals in the case of Doe v. School Board of Broward County et al., decided on April 27, 2010.     

 

In this case, a female high school student sued the Broward County School Board under Title IX, alleging that her math teacher had sexually assaulted her in the classroom when no other students were present.  Significantly, there had been two prior sexual harassment complaints against the same math teacher.  The high school principal had informally investigated both prior complaints and then also notified the School Board’s Special Investigative Unit (SIU) of each complaint.  However, the principal had failed to advise the SIU that the second complaint related to the same math teacher who was involved in the earlier complaint, and the principal also did not provide all relevant information to the SIU regarding the second complaint.  Thus, the second complaint of sexual harassment was not adequately investigated.  In reviewing each complaint separately, the SIU had determined that each was “inconclusive.”

 

The Eleventh Circuit Court of Appeals held in Doe v. School Board of Broward County that the School Board was not entitled to summary judgment, so the case would have to go to a jury trial.  The Court observed that although an imperfect investigation of a sexual harassment complaint will not be enough, by itself, to create liability under Title IX, a School District is required to exercise care and conduct at least a minimally-reasonable investigation.  This means that the person conducting the investigation should, at a minimum: (i) obtain all relevant facts, (ii) interview the student-complainant, the teacher and all students with relevant information, (iii) interview parents or other persons with relevant information and (iv) take into account any prior complaints of sexual harassment against the same teacher.   

 

Moreover, even where the school district conducts an adequate investigation and is unable to make a definite determination as to whether or not sexual harassment occurred (i.e., he-said, she-said), the School District should still take appropriate corrective measures under the circumstances, such as (i) monitoring the accused teacher, (ii) warning the teacher regarding inappropriate conduct and (iii) admonishing the teacher to avoid even the appearance of impropriety with students.

 

Prepared by:    James Dean

    jdean@lawfla.com

 

Election Law Update

CS/CS/HB 131 also addresses the decision of the Florida Supreme Court in Sarasota Alliance for Fair Elections, Inc. v. Browning, Case No. SC07-2074 (Fla. 2010), which held that portions of an amendment to the Sarasota County Charter relating to election procedures were not preempted by the Florida Election Code. 

 

The charter amendment mandated a voter verified paper ballot, mandatory audits and, additional recount procedures prior to certifying election results. The Court concluded that there was no conflict between the paper ballot requirement and the mandatory audit requirement of the charter amendment and the provision of Florida Election Code.  However, the Court held that the additional recount procedures did conflict with the provisions of Florida’s Election Code. 

 

The legislation specifically negates the Court’s decision.  Section 1 of CS/CS/HB 131 provides that “[a]ll matters set forth in chapters 97-105 are preempted to the state, except as otherwise specifically authorized by state or federal law.”

 

Prepared by:    Mark Herron

    mherron@lawfla.com

Election Law Update

 

The Florida Legislature has passed legislation reenacting regulations that would impact the activities of “electioneering communications organizations (ECOs).”  [CS/CS/HB 131] This legislation is intended to address the decision of the United States District Court of the Northern District of Florida in The Broward Coalition of Condominiums, Homeowners Associations and Community Organizations, Inc., v. Browning, Case No. 4:08cv445-SPM/WCS (N.D. Fla. May 22, 2009), which declared the regulations of ECOs in effect in 2008 unconstitutional.  If signed into law by the Governor, the legislation would take effect upon becoming law and would be applicable to the upcoming 2010 election cycle.

 

The legislation reenacts and amends provisions related to electioneering communications and electioneering communication organizations (ECOs) to do the following:

 

·    Redefines "electioneering communication" to remove reference to issues, specify the allowable communication formats, regulate advocacy that is the functional equivalent of express advocacy, and provide timeframes for the communications.

 

·     Removes reference to a specific number of persons who must be targeted in a geographic area in the definition of "electioneering communication" to only refer to targeting to "relevant electorate in the geographic area the candidate would represent if elected."

 

·     Redefines "electioneering communications organization" to clarify that it includes only those organizations with "election-related activities” that are limited to electioneering communications and that its activities would not require the group to register as a political party, political committee, or committee of continuous existence.

 

·    Amends the definition of "political committee" to remove the requirement that an ECO conform to specified requirements of a "political committee" when it is specifically exempt from the definition.

 

·    Provides separate registration and reporting requirements for ECOs.

 

·    Requires an organization to register as an ECO upon receipt or expenditure of an aggregate amount exceeding $5,000, rather than when it "anticipates receipt or expenditure of money."

 

·    Increases the amount an individual can expend before being subject to regulation from $100 to $5,000.

 

·    Removes provisions identified as an impermissible burden on speech.

 

Prepared by:     Mark Herron

     mherron@lawfla.com

 

Florida Supreme Court Issues Opinion on Access to Judicial Branch Records

On March 18, 2010, after 6 1/2 years of meetings by numerous Court and Bar committees, invitations to comment and oral argument, the FSC amended the Rules of Judicial Administration as they relate to public access to judicial branch records.  In case number SC07-2050, the court amended rule 2.420 to provide procedures for the clerks of court to identify a narrow set of records as confidential, procedures for sealing and unsealing court records, with special  procedures for criminal cases, and related appellate procedures.

Recognizing that not all judicial branch records should be made immediately available for public access, in its opinion the court defines the term "confidential," clarifies those records defined as confidential that may not be released except as provided in the rule or that are exempt from the right of public access under article I, section 24(a) of the Florida Constitution, and which may be released only to the persons or organizations designated by law, statute or court order.  The court also made clear that the restriction to access to confidential information will be implemented in a manner that does not restrict access to the portion of the record that is not confidential.

The supreme court also set forth procedures for the clerks of court to designate court records as confidential and limited some records that must be automatically designated confidential to a "finite set" of nineteen statutory exemptions as well as provided a mechanism for a file to seek judicial determination of confidentiality for those records not automatically designated confidential by the clerk.

One of the more important aspects of the amendment to rule 2.420 is the provisions for requesting a confidentiality determination for criminal trial and appellate records.  A new subdivision of the rule is intended to protect the identities of confidential informants and balances the established policy of protecting public disclosure of information that reveals the identity of a confidential informant or concerns an active criminal investigation with the public's constitutional right to access to court records. 

The court, in an effort to narrowly apply the more restrictive procedures that apply to confidential informants and active criminal investigations, plea agreements, and substantial assistance agreements, put in place a procedure that requires a requestor of confidentiality to file a motion with the trial court and the clerk to treat the motion as confidential pending a ruling on the motion.  To ensure the clerk is not creating "false" or "hidden or secret dockets," the motion must be shown on the clerk's docket by the generic title, "Motion to Determine Confidentiality of Court Records," as are other motions to seal trial court records filed under the rule. 

Finally, in addition to amending rule 2.420, the court amended rules 9.040 and 9.100 and created procedures for sealing appellate court records and for expedited rulings on motions made under the rule.

Prepared by:  Tom Bateman

tbateman@lawfla.com