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Item O02 02 BOARD OF COUNTY COMMISSIONERS COUNTY of MONROE Mayor Craig Cates,District 1 The Florida Keys Mayor Pro Tern Holly Merrill Raschein,District 5 Michelle Lincoln,District 2 James K.Scholl,District 3 m' David Rice,District 4 Board of County Commissioners Meeting September 20, 2023 Agenda Item Number: 02 2023-1341 BULK ITEM: No DEPARTMENT: County Attorney TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger n/a AGENDA ITEM WORDING: Charter County discussion update. ITEM BACKGROUND: The BOCC authorized the County Attorney to begin drafting proposed charter. This item is intended to provide the Board with a monthly update on relevant issues and progress. Attached is a memo prepared by the County Attorney providing basic information on county charters, including how they may be proposed, the required provisions, and some optional provisions. He has also attached a "one pager" that outlines some basic information on charter counties and the charter county transportation sales surtax. A copy of the relevant portion of the charter county transportation surtax statute follows. Finally, an outline on charter counties prepared by Kurt Spitzer of Kurt Spitzer &Associates, who has helped 10 different counties on charter issues. Mr. Spitzer is a former executive director of the Florida Association of Counties. PREVIOUS RELEVANT BOCC ACTION: 5/17/23, BOCC discussed pursuing a charter and directed the County Attorney to start drafting a proposal that: 1. Authorized a charter county transportation surtax; 2. Respected municipal independence both in the short term and the long term; and 3. Maintained the current structure of County government. 7/19/23, BOCC directed County Attorney to use November 5, 2024 General Election as the target date for seeking voter approval of the proposed charter. CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATION: none 3661 DOCUMENTATION: Charter Memo 28 July 2023.pdf F.S. 212.055(1) Charter County and Regional Transportation System Surtax.pdf General Discussion of County Home Rule by Kurt Spitzer.pdf FINANCIAL IMPACT: n/a 3662 Memo To: Mayor and Commissioners From: Bob Shillinger, County Attorney Date: July 28, 2023 re: Charter Government 101 INTRODUCTION This memo is intended to provide an introduction to charter government by outlining the charter process, the differences between charter and non-charter counties, and the options to be considered should the charter process go forward. The FAC website also includes a link' to all 20 county charters should you desire to read further. Florida's 67 counties fall into one of two general categories: charter and non- charter.2 The non-charter form of county government is the default version of local government established by the State Constitution. The essential difference between a charter and non-charter county is that a charter county enjoys all the powers of local government not pre-empted by state law whereas a non-charter county must look for the authority to act in state law. In other words, charter counties already possess all powers of local governance not pre-empted by the state whereas non-charter counties can only act if the Legislature has authorized them to act. Some key examples of this distinction will be discussed below. In the words of the Fifth District Court of Appeal, under Article VI I I, § 1(a) of Florida's Constitution, "the state is divided into political subdivisions called counties, . . . so that much of the state's police power' can be controlled and exercised at the 'http://www.fl-counties.colii/Pages/About Floridas Counties/Charter®County®Infornlation.aspX 2 Article Vlll, § 1 of the State Constitution authorizes both charter and non-charter counties,so any use of the term"constitutional"to distinguish a non-charter form of county government from a charter county is misleading. 1 3663 community level. Generally, the constitution provides for non-charter counties, which are permitted to exercise only those powers expressly authorized by the Legislature through general or special laws, Article VI11, § 1(f), Florida Constitution, and charter counties, which are broadly granted 'all powers of local self-government' not inconsistent with general or special law." Article VI11, § 1(g)3. To date, twenty of Florida's 67 counties have adopted charters. Of those twenty, eighteen have populations larger than Monroe. Columbia (70,617) and Wakulla (33,981) are the two charter counties that have populations which are smaller than Monroe (82,874). Of the fourteen most populous counties in Florida, thirteen are charter counties. Nearly 74% of Floridians (16,101,242 out of 21,781,128) live in a charter county. THE CHARTER PROCESS There are generally three methods by which a county can propose a charter for consideration by the voters. First, the County Commission can adopt a proposed charter by ordinance and submit it to the voters for approval. Second, a charter commission can be created either by resolution of the County Commission or upon receipt of a petition of at least fifteen percent of the registered voters in the County. Finally, the Legislature can create a charter commission to pursue consolidation of county government with at least one municipality. Regardless of the option chosen, final approval of a charter rests with the voters through a binding referendum. 3 Demings v. Orange County Citizens Review Board, 15 So.3d 604,606(Fla. 5"'DCA 2009). 2 3664 Option 1. Charter by Ordinance. Florida law also authorizes county commissions to propose their own charters, which must be proposed by ordinance and approved by the voters through a referendum. See, F.S. 125.82. This option is by far the simplest and least expensive when compared to the charter commission options. Under this option, there would be no charter commission to formally vet the proposed charter. Instead, the BOCC would function as the charter commission through its normal legislative process. Public input would be made during public meetings and hearings on the adoption of the ordinance calling for a referendum vote on the proposed charter. Under this option, the BOCC would be able to exercise greater control over the expenses associated with the process as well as complete control over the text of the document submitted to the voters for consideration. This option has the added benefit of having no statutorily required time limits for submitting the proposed charter to the electorate for approval by referendum. Unlike the charter commission option, under the "charter by ordinance" option, it is possible to schedule the referendum on the proposed charter at the next regularly scheduled election instead of having to call a special election. See, F.S. 125.82(1). The ability to avoid holding a county-wide special election represents a savings of at least $250,000 to the general fund, according to estimates provided by the Supervisor of Elections office. Option 2 — Charter Commission Under F.S. 125.60 through 125.64, counties are authorized to create charter commissions to draft proposed charters. The charter commission may be created in 3 3665 one of two ways: by resolution of the BOCC or by citizens' initiative via petition. F.S. 125.61(1). To become effective, a citizens' petition to the county commission must be signed by at least fifteen percent of the qualified electors in the county. F.S. 125.61(1). The charter commission must be appointed within 30 days upon adoption of such a resolution or presentation of a citizens' petition. Id. Charter commission members shall be appointed by the BOCC unless the citizen's petition directs that the County's Legislative delegation4 make the appointments. F.S. 125.61(2). The charter commission must contain 11, 13, or 15 members. Id. County commissioners and members of the Florida Legislature are not eligible to serve on a charter commission. Id. While F.S. 125.61(1) is silent on the issue of the date when the number of registered voters are measured so as to establish the threshold number of signatures required in order for the petition drive to be successful, general election law principles would measure the number of voters eligible to vote in the last general election. The Supervisor of Elections Office reports that the number of eligible voters for the November 2022 election was 55,183. Accordingly, a charter commission would have to be created if 8,278 registered voters sign petitions calling for its creation, assuming the last general election date is the operative date for establishing the threshold. The statute sets forth the organizational requirements of the charter commission. F.S. 125.62(1). The statute also authorizes the expenditure of public funds and the employment of staff, consultants and experts to assist the commission in its duties. F.S. 4 The statute does not address how the delegation shall resolve conflicts among itself if it cannot agree on committee members. 4 3666 125.62(2). The Attorney General has opined in AGO 96-76 that the BOCC "may regulate the expenditures of the charter commission." Donations from public and private entities to help offset those expenses are authorized. F.S. 125.62(2). Adopting a charter via a charter commission is not a quick process. The statute imposes a requirement upon that panel to "conduct a comprehensive study of the operation of county government and of the ways in which the conduct of county government might be improved or reorganized." F.S. 125.63. The statute contemplates that the charter commission will present a proposed charter in draft form to the county commission within 18 months from the date of its first meeting unless that time period has been extended by resolution of the BOCC. Id. After the draft is presented to the BOCC, the charter commission must hold three public hearings spaced between 10 and 20 days from each other to accept public comment on the proposed charter. Id. At the final public hearing, the charter commission shall vote on a final version of the proposed charter and forward that document to the BOCC so the BOCC may call a referendum of the voters for consideration. Id. Upon receipt of the proposed charter from the charter commission, the BOCC is obligated to schedule a special election that must be held between 45 and 90 days after the date when the BOCC receives the proposed charter. F.S. 125.64(1). If no regularly scheduled election falls within that 45 to 90 day window, county taxpayers would be obligated to fund a special election for that sole issue. As mentioned above, the Supervisor of Elections estimates that such an election would cost in excess of $250,000. She also reports that single issue, special elections historically have the lightest voter turnout. 5 3667 Neither the BOCC nor the leaders of the citizens' petition drive will control what elements are included in a charter proposed under this option as that decision rests with the appointed members of the charter commission. In other words, once the "charter commission fuse is lit" by either the BOCC or fifteen percent of county electors, those appointed to serve on the charter commission will decide what to include in the charter. To be sure, the BOCC and the petition drive leaders may have input, but the final decision on what to include in the final draft will rest with members of the charter commission. Ultimate approval of the charter commission's work product rests with the voters. If approved by a simple majority vote of the electors, the charter shall take effect on the following January 1 st or upon such time as the charter provides. F.S. 125.64(2). After adoption, the charter may only be amended or repealed by referendum. Id. If rejected by the voters, no new charter referendum may be held during the next two years. F.S. 125.64(3). Upon acceptance or rejection of the charter by the voters, the charter commission will be dissolved and all property of the charter commission will become property of the county by operation of law. F.S. 125.64(4). Option 3— Municipal Consolidation The third method for adopting a charter is through the process of consolidation with at least one municipality. See, Article VIII, § 3 of Florida Constitution (1968). In 1936, the Florida Constitution of 1885 was amended to create a provision establishing a process whereby Monroe County and the City of Key West could be consolidated. That provision is currently found at Article VIII, section 10 of the 1968 Constitution. 6 3668 Consolidation could be pursued with one or more of the other municipalities under Article VI I I, § 3, not just Key West. Consolidation with a municipality requires the Legislature to create a charter commission. Given the geography and history of Monroe County, this option seems the least likely to be invoked. Accordingly, no further analysis will be done on this option unless directed to do so by the BOCC. CHARTER POWERS CREATED BY STATE LAW State law vests charter counties with certain powers simply because of their status as charter counties. The two most noteworthy are the power to recall officials elected under the charter and the power to levy certain taxes. Under F.S. 101.361, a county commissioner elected by a charter county can be recalled regardless of whether the charter authorizes a recall or not. The Legislature has spelled out the process for recall elections and the charter cannot deviate from that process. According to FAC, recalls have only occurred in one of the twenty charter counties. However, recalls have occurred multiple times in Miami-Dade County. Additionally, recalls have happened in various cities, which by law must operate under a charter. In addition to recall elections, charter counties have the power to levy a municipal utility taxes under F.S. 166.231 and the charter county transportation surtax under F.S. 212.055. In short, "charter counties are deemed to be equivalent to municipalities" under the Florida Constitution, at least as to the ability to levy taxes. See Stork V. Bellsouth Corp., 847 So.2d 1098, 1099 (Fla. 4t" DCA 2003). 3669 Under F.S. 166.231, a charter county "may levy a tax on the purchase of electricity, metered natural gas, liquefied gas either metered or bottled, manufactured gas either metered or bottled, and water service." Under F.S. 212.055(1), a charter county may levy a discretionary sales surtax of up to 1 penny if approved by a majority of the voters at referendum held at a November general election. The funds may only be used for transportation and transit related expenses authorized in the statute. F.S. 212.055(1). OPTIONAL CHARTER PROVISIONS As the Florida Association of Counties' chart comparing the provisions of the 20 different charter counties indicates, the scope and treatment of subjects covered in charters differ from county to county. Generally, however, the main issues to be decided when proposing a charter include whether: a) county ordinances preempt municipal ordinances, or whether the cities maintain the ability to "opt out" of some or all county ordinances; b) county commissioners are elected in single member or at-large districts or some combination thereof; c) there are specific requirements, limitations, or conditions placed upon those running for and/or holding charter offices such as term limits, campaign finance limits, and partisan or non-partisan elections; d) citizens can initiate changes to the charter and county code via the initiative process and if so, whether that power is limited with respect to any particular subject matter; g 3670 e) there will be a residency requirement for some or all appointed officers; and f) there will be different requirements for municipal annexation than provided for under state law. The courts have weighed in on some of these issues. See, e.g., Browning v. Sarasota Alliance for Fair Elections, 968 So.2d 637 (Fla. 2007); Cook v. Jacksonville, 823 So.2d 86 (Fla. 2002); Broward County v. Ft. Lauderdale, 480 So.2d 631 (Fla. 1985); Demings v. Orange County Citizens Review Board, 15 So.3d 604 (Fla. 4t" DCA 2009); Elected County Mayor Political Committee, Inc. v. Shirk, 939 So.2d 1267 (Fla. 2d DCA 2008); Pinellas County v. City of Largo, 964 So.2d 847 (Fla. 2d DCA 2007); and Seminole County v. City of Winter Springs, 935 So.2d 521 (Fla. 5t" DCA 2006). The most controversial of these issues will be addressed below. Municipal Pre-emption The most controversial optional provision is whether County ordinances will pre- empt those adopted by municipalities located within the county. While the BOCC has directed me to only draft a charter that preserves the authority of the five municipalities to retain their current authority to opt out of County ordinances, in the interests of fully explaining this issue, I provide the analysis below. This Board has made it clear that it has no interests in preempting the legislative authority of the governing bodies of our five municipalities. 9 3671 In a non-charter county, a county may enact ordinances having county-wide application provided that the ordinance is not in conflict with general or special laws, but that ordinance is not effective within a municipality if the municipality adopts an ordinance in conflict with the county ordinance. See, Art. VIII, § 1(f). However, in a charter county, the "charter shall provide which shall prevail in the event of conflict between county and municipal ordinances." Art. VIII, § 1(g). It is not necessarily an "all or nothing" proposition because some county charters limit the subject matter in which the County code prevails over municipal ordinances, while others permit the County to set the minimum standards for a particular subject matter but allow the cities to have stricter rules. Not surprisingly, this issue has led to litigation between cities and counties over the interpretation of the relevant charter's pre-emption provision. See, e.g., Seminole County v. City of Winter Springs, 935 So.2d 521; and Broward County v. Ft. Lauderdale, 480 So.2d 631. Early on in the process, I mentioned the possibility of protecting the independence of the five municipalities by drafting a charter provision that would require a supermajority of the electorate to change this provision of the charter. Unfortunately, I subsequently learned that a similar attempt was found to be unconstitutional in 2008. See, Citizens for Term Limits & Accountability, Inc., v. Lyons, 995 So.2d 1051 , 1057 (1 st DCA 2008) (Proposed amendment to county's home rule charter, requiring sixty percent majority for approval of future amendments to charter, violated state constitutional requirement of simple majority vote). I am currently researching other language s An example of a state general law that prohibits a county from adopting an ordinance that is effective county-wide would be F.S. 163.3171(1)&(2),which limits a county's ability to regulate zoning within the territorial limits of a municipality. 10 3672 intended to provide city residents protection against a future amendment that would alter the protections against County preemption. Qualifications and Term Limits for County Commissioners A charter can impose additional qualifications or limits on candidates for county commission. For example, county charters can impose term limits on county commissioners. See, Snipes v. Telli, 57 So.3d 415 (Fla. 2011). Similarly, a charter can contain a provision requiring that charter officers, i.e., county commissioners run in non- partisan elections. See, Volusia County v. Quinn, 700 So.2d 474 (Fla. 5t" DCA 1997). Citizen's Initiative and Binding Referendums Citizens in non-charter counties do not have the ability to bypass their elected county commissions and place items on the ballot for consideration of the voters in a binding referendum. In short, the State Constitution vests the legislative power in a non-charter county with the County Commission and state law does not contain a provision which authorizes a County to adopt an ordinance or otherwise delegate that legislative power to the electorate. In fact, in the absence of specific statutory authority, the Commission can only seek input from county voters through a non-binding referendum as provided for at F.S. 125.01(1)(y). County charters may include a citizens' initiative provision, but one is not required. As the FAC materials make clear, this issue has been addressed in a variety of methods by the 20 charter counties. If such a provision is to be included, issues to be addressed include the threshold number of petitioners necessary to trigger the provision; whether any time limits have been imposed on gathering signatures on petitions; and whether the BOCC must act on the petition or hold a referendum within a 11 3673 certain period of time or, alternatively, whether the referendum can wait until the next county-wide general election. Given the expense associated with holding a county-wide special election, this latter issue could have significant financial repercussions. MANDATORY CHARTER PROVISIONS State law requires that charters contain certain provisions regarding a) the process of amending and revising the charter; b) requirements for holding elective charter office; c) determining vacancies in charter office positions; d) salaries for charter officers; e) the transfer of functions from non-charter government to charter government; and f) the form of government that the county will adopt under the charter, including the executive and legislative functions. These issues can be explored in greater depth if the Commission desires further information. INDEPENDENCE OF COUNTY CONSTITUTIONAL OFFICERS In charter counties, the electorate used to have the option of either maintaining these independent constitutional offices or abolishing them and transferring their responsibilities to the board of the charter county or to local offices created by the charter. However, Article VI I I, Section 1(d) of the Florida Constitution was amended in 2018 to prohibit charters from "abolish[ing] the office of a sheriff, a tax collector, a property appraiser, a supervisor of elections, or a clerk of the circuit court; transfer[ring] the duties of those officers to another officer or office; . . . [changing] the length of the four-year term of office; or establish[ing] any manner of selection other than by election 12 3674 by the electors of the county." The 2018 amendment eliminated what was once a contentious issue with County charters. CONCLUSION Becoming a charter county represents a fundamental paradigm shift in local governance. The process can be expensive and time consuming, especially if the decision is made to appoint a charter commission. Adopting a charter provides voters with greater accountability over their commissioners and opens up the potential for two additional revenue sources. The Commission and ultimately the voters will have to decide whether the perceived benefits of a charter outweigh the costs associated with seeking one. 13 3675 Top Ten Highlights on Charter Counties & the Charter County Transportation Surtax 1. Charter counties' and those counties participating in a regional transit authority can levy a surtax [F.S. 212.055(1)] of up to 1 penny for up to 30 years to be used for: a. Development, construction, equipment, maintenance, operation, supportive services, including a countywide bus system, on-demand transportation services, & related costs of a fixed guideway rapid transit system; b. Planning, development, construction, operation, and maintenance of i. roads and bridges in the county; ii. bus and fixed guideway systems; iii. on-demand transportation services; c. Bonds for the payment of principal and interest on qualified projects. 2. 5 counties that have levied a Charter County Transportation Surtax2 a. Broward 1% Charter 1/1/19 to 12/31/48 b. Duval .5% Charter 1/1/89 until repealed (adopted b4 30y rule) c. Hillsborough 1% Charter 1/1/19 to 3/15/21 (terminated by Courts) d. Miami-Dade 1% Charter 1/1/03 until repealed (adopted b4 30y rule) e. Walton .5% RTA 1/1/13 to 12/31/15 (terminated; RTA axed) 3. At least 8 counties that tried but failed to levy a Charter County Transportation Surtax: Alachua (2x), Citrus, Columbia, Hillsborough (2014), Orange (2022), Osceola (2x), Pinellas & Polk (2x) 4. Charter County Transportation Surtax does not count towards tax rate cap. 5. Surtax proceeds may be but are not required to be shared with cities via ILA. That ILA must be revisited no less than every 5 years to include new cities. 6. Surtax Referendum must be held during a November general election. 7. The charter can't direct how the surtax proceeds are spent. BOCC decides.3 8. Charter must be approved separately by the voters. 9. Preemption — BOCC directed staff to draft charter so cities are not preempted. 10. BOCC opting to propose charter itself, without a charter commission. ' Charter counties: Alachua, Brevard, Broward, Charlotte, Clay, Columbia, Duval, Hillsborough, Lee, Leon, Miami-Dade, Orange, Osceola, Palm Beach, Pinellas, Polk, Sarasota, Seminole, Volusia, Wakulla 2 Local Govt. Financial Info. Handbook http://edr.state.fl.us/Content/local-government/reports/lgfih22.pdf 3 Emerson v. Hillsborough County, 312 So.3d 451 (Fla. 2021). Prepared by Monroe County Attorney Bob Shillinger, revised 6.6.23 3676 6/2/23,5:29 PM Statutes&Constitution:View Statutes: Online Sunshine Select Year: 2022 v u Go...� The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B) Title XIV Chapter 212 View Entire Chapter TAXATION AND FINANCE TAX ON SALES, USE, AND OTHER TRANSACTIONS 212.055 Discretionary sales surtaxes; legislative intent; authorization and use of proceeds.—It is the legislative intent that any authorization for imposition of a discretionary sales surtax shall be published in the Florida Statutes as a subsection of this section, irrespective of the duration of the levy. Each enactment shall specify the types of counties authorized to levy; the rate or rates which may be imposed; the maximum length of time the surtax may be imposed, if any; the procedure which must be followed to secure voter approval, if required; the purpose for which the proceeds may be expended; and such other requirements as the Legislature may provide. Taxable transactions and administrative procedures shall be as provided in s. 212.054. (1) CHARTER COUNTY AND REGIONAL TRANSPORTATION SYSTEM SURTAX.— (a) Each charter county that has adopted a charter, each county the government of which is consolidated with that of one or more municipalities, and each county that is within or under an interlocal agreement with a regional transportation or transit authority created under chapter 343 or chapter 349 may levy a discretionary sales surtax, subject to approval by a majority vote of the electorate of the county or by a charter amendment approved by a majority vote of the electorate of the county. (b) The rate shall be up to 1 percent. (c)1. The proposal to adopt a discretionary sales surtax as provided in this subsection and to create a trust fund within the county accounts shall be placed on the ballot in accordance with law and must be approved in a referendum held at a general election in accordance with subsection (10). 2. If the proposal to adopt a surtax is by initiative, the petition sponsor must, at least 180 days before the proposed referendum, comply with all of the following: a. Provide a copy of the final resolution or ordinance to the Office of Program Policy Analysis and Government Accountability. The Office of Program Policy Analysis and Government Accountability shall procure a certified public accountant in accordance with subsection (11) for the performance audit. b. File the initiative petition and its required valid signatures with the supervisor of elections. The supervisor of elections shall verify signatures and retain signature forms in the same manner as required for initiatives under s. 100.371(11). 3. The failure of an initiative sponsor to comply with the requirements of subparagraph 2. renders any referendum held void. (d)1. Except as set forth in subparagraph 2., proceeds from the surtax shall be applied to as many or as few of the uses enumerated below in whatever combination the county commission deems appropriate: a. Deposited by the county in the trust fund and shall be used for the purposes of development, construction, equipment, maintenance, operation, supportive services, including a countywide bus system, on-demand transportation services, and related costs of a fixed guideway rapid transit system; b. Remitted by the governing body of the county to an expressway, transit, or transportation authority created by law to be used, at the discretion of such authority, for the development, construction, operation, or maintenance of roads or bridges in the county, for the operation and maintenance of a bus system, for the operation and maintenance of on-demand transportation services, for the payment of principal and interest on existing bonds issued for the construction of such roads or bridges, and, upon approval by the county commission, such proceeds may be pledged for bonds issued to refinance existing bonds or new bonds issued for the construction of such roads or bridges; and c. Used by the county for the planning, development, construction, operation, and maintenance of roads and bridges in the county; for the planning, development, expansion, operation, and maintenance of bus and fixed guideway systems; for the planning, development, construction, expansion, operation, and maintenance of on-demand transportation services; and www.leg.stateftus/STATUTES/index.cfm?App_mode=Display_Statute&URL=0200-0299/0212/Sections/0212.055.htm1 3677 6/2/23,5:29 PM Statutes&Constitution:View Statutes: Online Sunshine for the payment of principal and interest on bonds issued for the construction of fixed guideway rapid transit systems, bus systems, roads, or bridges; and such proceeds may be pledged by the governing body of the county for bonds issued to refinance existing bonds or new bonds issued for the construction of such fixed guideway rapid transit systems, bus systems, roads, or bridges. Pursuant to an interlocal agreement entered into pursuant to chapter 163, the governing body of the county may distribute proceeds from the tax to a municipality, or an expressway or transportation authority created by law to be expended for the purpose authorized by this paragraph.Any county that has entered into interlocal agreements for distribution of proceeds to one or more municipalities in the county shall revise such interlocal agreements no less than every 5 years in order to include any municipalities that have been created since the prior interlocal agreements were executed. 2.a. To the extent not prohibited by contracts or bond covenants in effect on that date, a county as defined in s. 125.011(1) shall use proceeds from the surtax only for the following purposes: F.S. 125.011(1) is code for Miami-Dade County (1) The planning, design, engineering, or construction of fixed guideway rapid transit systems,....r................... ail systems, and bus systems, including bus rapid transit systems, and for the development of dedicated facilities for autonomous vehicles as defined in s. 316.003. (11) The acquisition of rights-of-way for fixed guideway rapid transit systems, rail systems, and bus systems, including bus rapid transit systems, and for the development of dedicated facilities for autonomous vehicles as defined in s. 316.003. (111) The purchase of buses or other capital costs for bus systems, including bus rapid transit systems. (IV) The payment of principal and interest on bonds previously issued related to fixed guideway rapid transit systems, rail systems, or bus systems. (V) As security by the governing body of the county to refinance existing bonds or to issue new bonds for the planning, design, engineering, or construction of fixed guideway rapid transit systems, rail systems, bus rapid transit systems, or bus systems. (VI) For the operation and maintenance of fixed guideway rapid transit systems and bus routes or extensions thereof, including bus rapid transit systems, which were implemented or constructed subsequent to the passage of the surtax, and for operation and maintenance of services authorized by electors in passing the surtax or included in the ordinance authorizing the levy of the surtax subject to the electorate's approval. b. To the extent not prohibited by contracts or bond covenants in effect on October 1, 2022, no more than 25 percent of the surtax proceeds may be distributed to municipalities in total in a county as defined in s. 125.011(1). Such municipalities may use the surtax proceeds to plan, develop, construct, operate, and maintain roads and bridges in the municipality and to pay the principal and interest on bonds issued to construct roads or bridges. The governing body of the municipality may pledge the proceeds for bonds issued to refinance existing bonds or new bonds issued to construct such roads or bridges. Additionally, each such municipality may use surtax proceeds for transit systems within the municipality. (e) As used in this subsection, the term "on-demand transportation services" means transportation provided between flexible points of origin and destination selected by individual users with such service being provided at a time that is agreed upon by the user and the provider of the service and that is not fixed-schedule or fixed-route in nature. (f) Any discretionary sales surtax levied under this subsection pursuant to a referendum held on or after July 1, 2020, may not be levied for more than 30 years. ((2a) LOCAL O M INFRA STRUCTURE SURTAX.— governing authorityin county may levy a disc ti""" Illay„ ales surtax of 0.5 perce„ "or 1 percent. The levy sult,x shall be pursuant to ordinance e ed by a majority of t„ of thehe members of the county'governing authority and r on �, I °the governing bodies of the municipalities repws y g majority "s��p a n adopt uniform resol appi t of the electors of the county o'"u nm a referendum on h�„ p surtax.s establishing the rate of the ntm a ma ont of the co e unt l h surtax and calling foran the ballot and shall take effect if �erenum on the sur�a"��, the levy of the rtax shall be plat o approved by a majorityectors of,,fhb county voting in the refe dum qrY'"the surtax. 2. If the surtax was levied pu'1 aapt° o a referendum held before July 1, I,3 93, the surtax may ndt be levied beyond the years. f S�'°cor w e ordinance did not limit the P,ehpot more than 15 ears. The le t5 x y e pro Majority of the electors 6 be levied for such v to a le the surtax ma surta„ Ap od . n al of 1 tors „the county r, , ime es a is e m e o be extended onl b � hic theprojects to be fu(b)g A statemept w en the surtax. d f` nded the surtax and whit e h includes a brief general d voting in a refer conforms to r, escr�o by h�""*„„„�III he ballot by the ng rd q g p vy drtax or in whi ch then,ove nin bodies of the munici aliti enacts an d'"' mance callin for a referendum on the le of the s""""" ty of any county which � requirements o s. 101.161 shall a ac t g g N'NII. www.leg.stateftus/STATUTES/index.cfm?App_mode=Display_Statute&URL=0200-0299/0212/Sections/0212.055.htm1 3678 6/2/23,5:29 PM Statutes&Constitution:View Statutes: Online Sunshine N'1 1111 ,4. The county currently l�vies a local government infrastructure surtax pursuant to subsection (2) which is scheduled to terY inate and is not subject to„renewal. M „ effect�i l the 5P „� fe g ibed in sub a graph 4. is terminated. II f cal government infrastructure surtax des The pension liability ity surtax does not take e a described d hich (b) A'°11referendum to adopt a pen on liabilityurtax must meet the"Mi,requirements of s. 101.161 and myst include a brief g P d e , O u s° c the surtax proceeds w and eneru" rs`— O, p ,n be used. this less 'n administrative fee nt to s. 212.054 4 t e ds of the surtax collected u �" �, Phe � escri ion o e ur finent,�hall be distributed b the de arty° l",government. that may be retIs h may use the ent to the iota ned by t depart y P r' � (d) The local gernmo y pension liability surtax proceeds in 'rhe following "fianner: government mus„t°"dis �"„ p �• I 'plao rovided in s. 112.64(6), the local 1. If the roceed f the pension liability s'turtax have been actuarially recog' iz trib''Nte the roceeds to an e 'uible defined benefit retireme r system, not including the Florida RetiremenSystem. 2. If"""the proceeds of the pension liability surtax ha' e not been actuari„al"(y recognid, the local government is authorized to distribute the proc'l ,eds to an eligible defined benefit ret rement plan or system, not including the Florida etfrpment System, to pledge the oceeds of the surtax to""'IVe'pay "its incurred for the p rpose of making advanced paymeht;s toward the unfunded liability of an underfunded deij4d benefit retirement plan Mor system, and to reimburse itself from,the proceeds of the surtax for,,any borrowing co„st's ass fated with such debts. (e) The1°'10rdinance providing for the imp9sition of tF "pension ha hty surtax must specify ho',w the proceeds will be used: "" 1. The ordinance must specify the method„If determining the percente of the proceeds, and th�e",frequency of such payments, distributed"°�o each eligible def mie beV Iefit retirement plan or sys"tem if the proceeds of the pension liability surtax are actuarially rec �nized as provided in s. Ll'h .64(6). " 2. The ordinance must s cify tV a local governmen't',s intention to incur debt„for the purpose of making ad vanced pension liabilitysu tax are u iabilit Y an ugnderfund pro vifinded bs.n112.64(6) m�,n p y p 'reds of the payments nd4 y O,„ t plan or stem if the rocs in "not acl ariall recognized as (f) A pension lial ty surtax im 16wd pursuant to this subsecti n shall terminate on1"'D,pcember 31 of the year in vi hich 11, the actuarial fun„0l'ng level is expected t'6,reach or exceed 100 pert ent for the defined benefit retirement plan or syst for 111 which the su„rtax was levied or December 3� , 2060, whichever occurs°"'^first. The most recent actuarial report submitted t" the Depar,kwnent of Management Services purse„giant to s. 112.63 must be°'' sed to establish the levee°pf actuarial funding. (g) otwithstanding any other provision of t"hjs section, a county may�not levy local option sales rtaxes authorized in 11, this subsection and subsections (2), (3), (4), and ( ^) in excess of a combin�d rate of 1 percent. (10) DATES FOR REFERENDA.—A referendum to adopt or amend a local government discretionary sales surtax under this section must be held at a general election as defined in s. 97.021. (11) PERFORMANCE AUDIT.— (a) To adopt a discretionary sales surtax under this section, an independent certified public accountant licensed pursuant to chapter 473 shall conduct a performance audit of the program associated with the proposed surtax. (b)1. At least 180 days before the referendum is held, the county or school district shall provide a copy of the final resolution or ordinance to the Office of Program Policy Analysis and Government Accountability. 2. Within 60 days after receiving the final resolution or ordinance, the Office of Program Policy Analysis and Government Accountability shall procure the certified public accountant and may use carryforward funds to pay for the services of the certified public accountant. 3. At least 60 days before the referendum is held, the performance audit must be completed and the audit report, including any findings, recommendations, or other accompanying documents, must be made available on the official website of the county or school district. 4. The county or school district shall keep the information on its website for 2 years from the date it was posted. 5. The failure to comply with the requirements under subparagraph 1. or subparagraph 3. renders any referendum held to adopt a discretionary sales surtax void. (c) For purposes of this subsection, the term "performance audit' means an examination of the program conducted according to applicable government auditing standards or auditing and evaluation standards of other appropriate authoritative bodies.At a minimum, a performance audit must include an examination of issues related to the following: 1. The economy, efficiency, or effectiveness of the program. 2. The structure or design of the program to accomplish its goals and objectives. www.leg.stateftus/STATUTES/index.cfm?App_mode=Display_Statute&URL=0200-0299/0212/Sections/0212.055.htm1 3679 6/2/23,5:29 PM Statutes&Constitution:View Statutes: Online Sunshine 3. Alternative methods of providing program services or products. 4. Goals, objectives, and performance measures used by the program to monitor and report program accomplishments. 5. The accuracy or adequacy of public documents, reports, and requests prepared by the county or school district which relate to the program. 6. Compliance of the program with appropriate policies, rules, and laws. (d) This subsection does not apply to a referendum held to adopt the same discretionary surtax that was in place during the month of December immediately before the date of the referendum. History.-s. 2,ch. 76-284; s. 5,ch.82-154;s. 3, ch. 83-3; s. 1, ch.84-373;s. 1, ch. 84-555;s. 25,ch.85-180; s. 70,ch.85-342; s.8, ch. 87-99;s. 1, ch. 87-100;s. 2,ch.87-239; s. 12,ch.87-548; s.85, ch. 90-132;s.4, ch. 90-203; s. 1,ch.90-282; ss.2, 3,ch.91-81; s.29,ch.91-112; s.2, ch. 91-418;s. 1, ch. 91-423;s. 148, ch. 92-279;ss. 1,2, ch. 92-309;s. 55, ch. 92-326;s. 3,ch.93-207; s. 3, ch. 93-222;s. 51, ch. 94-356;s. 1,ch.95- 258;s. 1,ch.96-240; s. 1, ch. 97-83;s. 17,ch.97-384; s. 7,ch.98-258; s.9, ch. 98-342;s.4,ch.99-4;s. 1, ch. 99-340;s. 54,ch.99-385; s.40,ch. 2000-151; ss. 10, 11, 13, 16,ch. 2000-312;s. 78, ch. 2000-318;s. 33, ch. 2001-60;s. 100, ch. 2002-20;s. 7,ch.2002-196;s. 1,ch.2003-77; ss. 33, 42, ch. 2003-254; s.91, ch. 2003-402; s.6, ch. 2004-41;s. 1, ch. 2004-66;s. 1,ch.2004-259;s. 3,ch.2005-55; s. 1,ch.2005-56; s. 1, ch. 2005-96;s. 1, ch. 2005-242;s. 1, ch. 2006-66;s. 2,ch.2006-223;s. 14,ch.2007-196;s. 19, ch. 2009-96;s. 1,ch.2009-132;s. 1,ch.2009-146; s. 1,ch.2009- 182;s. 1,ch.2010-154; s. 1,ch.2010-225; s. 5,ch.2011-15; s. 3, ch. 2012-117; s. 14, ch. 2013-198; s.6, ch. 2015-100;s. 1, ch. 2015-169;s. 2, ch. 2016-146; s.2, ch. 2016-225; s.64,ch.2016-241; s.27,ch.2017-173; ss. 34, 35, 62, ch. 2018-118;s. 22, ch. 2018-158; s. 1, ch. 2019-64;s. 12, ch. 2019-159; s. 3, ch. 2019-169; s. 18,ch.2020-10; s.23, ch. 2021-2;s. 21, ch. 2022-97. 1 Note.-Section 26,ch.2021-2, provides that: "(1) The Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules pursuant to s. 120.54(4), Florida Statutes, for the purpose of administering this act. "(2) Notwithstanding any other law, emergency rules adopted pursuant to subsection (1) are effective for 6 months after adoption and may be renewed during the pendency of procedures to adopt permanent rules addressing the subject of the emergency rules. "(3) This section shall take effect upon this act becoming a law and expires July 1,2023." 2Note.-Section 22,ch.2022-97, provides that"[t]he additional uses of surtax proceeds authorized by the amendments made by this act to s. 212.055(6)(c), Florida Statutes, may apply to a surtax in effect on the date this act becomes a law only to the extent such use was authorized in the original referendum adopting the surtax or is authorized pursuant to a subsequent resolution conditioned to take effect only upon approval of a majority vote of the electors of the county voting in a referendum." Copyright© 1995-2023 The Florida Legislature • Privacy Statement • Contact Us www.leg.stateftus/STATUTES/index.cfm?App_mode=Display_Statute&URL=0200-0299/0212/Sections/0212.055.htm1 3680 General Discussion of County Home Rule Kurt Spitzer (850)228-6212 Article VIII, section 1(a) of the Florida Constitution provides that the State shall be divided by law into political subdivisions called "counties" and further authorizes the creation, abolition or change of counties by law. However, Article VIII, sections 1(c)-(g) invite consideration of alternatives to the structure, powers and duties established by law for non-charter counties through the creation of charter counties. The below is a short summary comparing the powers of non-charter versus charter counties. It is not intended to be comprehensive. 1. Creation and Powers of Non-charter Counties Article VIII, 1(f) —Non-charter counties have "such powers of self-government as is provided by general or special law." The Constitution further limits the extent of any such powers, to exclude the power to enforce county ordinances within municipal boundaries where there is a conflicting, authorized municipal ordinance. a. Unless the Legislature adopts a law giving authority to a county, the county has no authority. Although the Constitution provides for a Board of County Commissioners and five constitutional officers in each county, neither the Board nor the constitutional officers have any duties or powers unless the Legislature adopts a law conferring powers and creating duties. (Exception: the clerk of circuit court has certain responsibilities to the court system, created under Article V.) ■ Without such authority from the Legislature, non-charter counties are powerless. ©Kurt Spitzer and Associates-August 2019 3681 ■ Nothing in the Constitution requires the Legislature to adopt the current statute conferring power on noncharter counties, and nothing prevents the Legislature from limiting or repealing it at any time. 2. Creation of charter counties Article VIII, 1(c) - Charter counties established pursuant to "general or special law" and the Charter shall be adopted, amended or repealed only upon vote of the county electors. a. General law. ■ Chapter 125.64, FS, authorizing the appointment of a charter (study) commission to propose a charter for consideration of electorate. ■ Chapter 125.70, FS, authorizing proposal by the BCC of an optional form of county charter for consideration of electorate. b. Special law. Charters may be proposed for the consideration of the electorate by local law or"special act" of the Legislature. Pinellas and Volusia County's charters originated via special acts of the Legislature. 3. Powers of charter counties Article VIII, 1(g) - Counties operating under a charter have "all powers of local self-government not inconsistent with general law, or with special law approved by the voters." Home rule power of a charter county is not dependent on legislative authorization and flows directly from the Constitution, with four limitations: a. Conflict with the Constitution. Charters may not supersede provisions of the Florida Constitution. b. Conflict with general law. The Legislature addresses subjects important to the State ©Kurt Spitzer and Associates-August 2019 3682 through general laws. County ordinances are superseded by general laws to the extent of a conflict. There is no specific statutory definition of what a "conflict" is. General examples: ■ Subjects expressly prohibited or pre-empted by the Constitution or general law, or ■ Subjects pre-empted to a charter county. c. Conflict with special laws. Most special laws or acts that apply only to a single county are only effective in a charter county if approved/confirmed by the electors of the charter county. d. Charter provisions for conflict with municipal ordinances. The charter must provide which ordinances prevail in the event of a conflict between a county ordinance and a city ordinance on most standards or policies. Also, a "dual referenda" may be required if a power or function relating to a program or the delivery of a particular service (e.g. fire, police, etc.) is transferred, although two governments may contract with each other for temporary transfers of services without invoking dual vote requirement. 4. Structure of noncharter countygovernment. a. Legislative body. A noncharter government is governed by a board of county commissioners of five or seven members, serving staggered terms of four years, with one commissioner residing in each district as provided by law. b. County officers. Constitution specifies the election in each county, for a four-year term, five enumerated county officers, although county commissioners and school board members are also included within the definition of "county offices" for some purposes. The Constitution does not specify any duties for the county officers but the Legislature has provided by general law for their powers and duties. Partial exception in Constitution: The clerk of the circuit court is the ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds. c. Executive. The Constitution does not specify the head of the executive branch of a ©Kurt Spitzer and Associates-August 2019 3683 noncharter county government. General law distributes executive/administrative authority among the BCC and the county "constitutional" officers. However, 125.70, FS, authorize noncharter counties to adopt an ordinance providing for the employment of a professional county administrator to administer those departments of the county government over which the BCC has control. 5. Structure of charter county government. The Constitution allows (but does not require) a charter county to provide for a different governmental structure so long as the duties otherwise devolving upon county governments under the general laws of the state are all assigned to a responsible office in the charter county. Thus the structure of the charter county government may be different from what is contemplated by the Legislature in general law but the powers of the resulting government may not conflict with general law(s), whatever those laws may be from time to time. a. Legislative body. Charter counties may provide for a form of the legislative body different from the traditional BCC. Some examples: ■ Term lengths ■ Term limits ■ Number of Commissioners ■ At-large, single-member or mixed districting schemes ■ Non-partisan elections ■ Sharing legislative power directly with the electorate through a process for ordinance proposal/adoption process by petition. b. County officers. Five county officers may be chosen in another manner (e.g. non- partisan election, subject recall, etc.) as specified in a charter. County constitutional ©Kurt Spitzer and Associates-August 2019 3684 Paragraph (b) is outdated. See endnote below. office may not be abolished by a charter unless the charter specifies another office to which the duties of the abolished office are to be transferred. [See endnote below.] c. Executive. Charters may reallocate some or all of the executive powers of the BCC to an executive, whether an employed professional executive/manager or an elected "strong mayor" executive. d. Intergovernmental issues. Ordinances of a noncharter county can be effective within a municipality only if there is no conflict. However, the ordinances of a charter county may set uniform standards countywide, if the charter so provides. Most charters which specify pre-emptive legislative authority to the BCC have limited those powers to specific subject matter. 6. Additional powers. Statutes and case law have provided for a limited number of other special powers for charter counties. Examples: a. The BCC is subject to recall as provided instate law b. BCC and local Legislative Delegation may place charter amendments on ballot c. County enjoys increased insulation from unwanted special acts d. BCC has power to levy utility tax in unincorporated area, unless prohibited by the charter e. New municipal CRAB must receive BCC approval ENDNOTE: Florida's voters approved Amendment 10 to the Florida Constitution on November 6, 2018. Among other things, Amendment 10 eliminated the ability of county electors to approve changes to the duties of the County Officers or alter the way in which they are elected via a county charter. As of August 1, 2019, a challenge to Amendment 10 remained in court. The challenge concerns whether the Amendment is effective prospectively or also operates retroactively, thus negating all provisions of those county charters that concern county officers. © Kurt Spitzer and Associates-August 2019 3685