Transcript of Constitution Revision Commission Proceedings, Afternoon Session, March 8, 1978

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Title:
Transcript of Constitution Revision Commission Proceedings, Afternoon Session, March 8, 1978
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Unknown
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English
Creator:
Florida Constitution Revision Commission
Publication Date:
Physical Location:
Box: 4
Folder: Hearing. March 8, 1978

Subjects

Spatial Coverage:
North America -- United States of America -- Florida -- Leon -- Tallahassee

Record Information

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University of Florida
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
sobekcm - AA00005257_00001
System ID:
AA00005257:00001

Full Text



PKY !~RARY



CONSTITUTION REVISION COMMISSION

TALLAHASSEE, FLORIDA







FULL COMMISSION

FULL COMMISSION


voi\. 2]


TALBOT D'ALEMBERTE,

Wednesday, March 8,
AFTERNOON SESSION


Commenced:
Terminated:


Chairman


1978


1:35 P.M.
5:00 P.M.


Old Sena-te Chambers
The'Capitol
Tallahassee, Florida


REPORTED BY:


Catherine Wilkinson, CSR, CP, RPR


ctccuzate cStenotype cRepoz


Do 0006451
Ie0 .


dttiirLd Suite 608, .Lwii gallakasiea glolada 32301


BEFORE:


DATE:


TIME:


PLACE:










TRANSCRIPT FOR: March 8, 1978 P.M.

Article Section Amendment No.


VII 1 10.
VII 4 9 (sub am)
VII 4(d) 1

VII 5 3

VII 12 4
VII 13
VII 16, 17 11

VII 17 5

VIII 2

VIII 1 3

VIII 1 4

VIII 4 1

IX withdrawn

IX 2(c) 2

IX 2 8

IX 2 11

IX 4 7

IX 4 9

IX 6 5

IX 7 10

X 13 1

X 15 3

XI 2 3

XI 3 4

XI 3 4 (am to)

XII 9 1


Page (s)

D006591
D006580-1
D006454-6
D006481-6

D006466-78

D006456-6
D006584-90
D006479-81

D006462

D006498

D006487-8

D006486-7

D006488-98;

D006504

D006498-9

D006500-1

D006526-9

D006504-15

D006515-22

D006522-5

D006501-4

D006529-58

D006559-64

D006568-75

D006564-8

D006568

D006582-4


Proposal No.

14

240
210

140

86
206
88, 156

156



237

237


D006576-80


194



194





182

93

197








1 APPEARANCES: (AFTERNOON SESSION)

2 COMMISSIONERS:

3

4 TALBOT D'ALEMBERTE, Chairman
EDWARD R. ANNIS
5 JAMES W. APTHORP
DUBOSE AUSLEY
6 THOMAS H. BARKDULL, JR.
WILLIAM O. BIRCHFIELD
7 LEW BRANTLEY
YVONNE B. BURKHOLZ
8 WILLIAM C. CLARK
LeROY COLLINS
9 JOHN M. DeGROVE
DEXTER DOUGLASS
10 WILLIAM H. GARDNER
FREDDIE L. GROOMES
11 LOIS HARRISON
MARK C. HOLLIS
12 WILLIAM G. JAMES
JAMES W. KYNES, JR.
13 JOHN E. MATHEWS, JR.
JESSE J. McCRARY, JR.
14 JOHN H. MOORE, II
RICHARD V. MOORE
15 JON C. MOYLE
MARCELINO OLIVA
16 BEN F. OVERTON
KENNETH A. PLANTE
17 JAN KAMINIS PLATT
NATHANIEL W. POLAK
18 DONALD H. REED, JR.
NATHANIEL REED
19 B. K. ROBERTS
JOHN L. RYALS
S20 ROBERT L. SHEVIN
20
J. B. SPENCE
SSTELLA F. THAYER
21
JOHN T. WARE
22

23 ALTERNATES:

24 WARREN W. MORGAN

25


0: 0064535








1 P-R-O-C-E-E-D-I-N-G-S

2

3 MR. SECRETARY: A quorum is present.

4 MR. CHAIRMAN: If the quorum is present,

5 please take your seats, and we will begin deliberations.

6 Please read the next amendment.

7 MR. SECRETARY: Article 7, Amendment 9, by

8 Brantley and Mathews. On Page 7, line 22, insert

9 after 73 -- insert after "system" the words "and such

10 other energy efficient systems as may be prescribed by

S law."


12 COMMISSIONER MATHEWS: Mr. Chairman.

13 MR. CHAIRMAN: Yes, you are recognized.

14 COMMISSIONER MATHEWS: This was suggested to

15 us -- and I think all of you got a letter from Senator

16 Tom Gallen, who pointed out that there are no energy

1 efficient commercially made solar systems that are on

18 the market today, except for a hot water heater; nor

19 is it contemplated that there will be any before the

next Constitution Revision Commission meets.
20
2 And his thought was that there are some
21

22 fairly expensive energy saving devices other than solar

heat that, if you really wanted to put out the tax
23

deduction or abatement incentive for energy saving
24

devices, and you were not just putting it out as a piece
25


D1 0. 5 i


. II-







1 of candy that was not available for anybody to use that

2 you should add something like this.

3 So, that is the purpose, to let the

4 Commission address it squarely. Commissioner Brantley

5 may have some further information on that, but that's

6 what I understand the purpose was.

7 MR. CHAIRMAN: I understand there is a

8 substitute amendment by Commissioner Ausley on the desk.

9 MR. SECRETARY: A substitute amendment by

10 Commissioner Ausley. On Page 73, lines 18 through 26,

11 strike all of Subsection 2.

12 MR. CHAIRMAN: Commissioner Ausley to discuss

13 the substitute.

14 COMMISSIONER AUSLEY: Mr. Chairman and

15 members of the Commission, basically what this does is

16 frontally what Senator Gallen has suggested we do

17 obliquely; and that is, eliminate the exemption for

18 solar forms of energy because there really is nothing

19 in the state at this time that anybody can tell us that

20 operates effectively. And I just feel like we are

21 dealing with something that ought not to be in the

22 constitution. And this is an opportunity to clean it

23 up and get some language out of the constitution.

24 MR. CHAIRMAN: Is there further debate? As
24

25 many as favor the substitute proposal by Commissioner



us ,'








1 Ausley, please signify by saying aye; opposed by saying

2 nay.

3 All right. Show a unanimous roll call of all

4 members present. Please read the next amendment.

5 MR. SECRETARY: By Commissioner Birchfield.

6 Article 7, Section 12, Amendment 4, on Page 80, lines

7 28, 29, and 30. Strike the sentence beginning on line

8 28 in its entirety.

9 COMMISSIONER BIRCHFIELD: Mr. Chairman and

10 members of the Commission, I think you need to pay

11 attention here because if.you don't -- the amendments

12 came up in reverse order of what I would have done it

13 if I were doing it. If you will take your booklet,

14 on Page 80, commencing on line 28, there is a sentence

15 that makes it possible to sell bonds that are to be
15

16 repaid by what has become known as tax increment.

7 Now, if you will flip over to about 83 -- 85,
17

18 you will find Section 17, which also provides a system

19 of tax increment financing. There are two differences

I between what is permissible in Section 12 and what is
20

1 permissible in Section 17.
21
22 Section 17 restricts what this type of
22

2 financing can be done or used for to blighted areas,
23

the redevelopment of a blighted area. Section 12 just
24says redevelopment.
says redevelopment.
25





6

1 So, Section 17 is more restrictive than

2 Section 12. Section 12 -- in terms of how the bonds

3 can be used.

4 Section 17, however, is more restrictive

5 than is Section 12 in terms of the repayment of the

6 bond. Section 17 says that the bonds may be paid from

7 solely -- solely the tax increment. Section 17, on the

8 other hand, says that it may be repaid from the tax

9 increment and income from the project that you built.

10 We think that there is a way to have the best

Sof both of these revisions. And that's for you to

12 determine, which is the best. But the approach I am

13 taking by the amendments I have offered, where you would

14 end up if you support this amendment and the one that

15 follows, is that you will approve the more restrictive

16 utilization of these bonds; that is, they will be

17 limited to utilization in blighted areas only. And you

18 will approve the liberalized provision in terms of how

19 they may be repaid, because that should, in fact, allow

the bonds to be sold at a lower interest rate without

21 any detriment to the taxpayer, because there is a loan

2 involved to tax increment and income that might be

2 developed from the project.

24 I had hoped that they would come up wrong

25 side out from the way you've got them. That's where I
25.'-








1 am trying to head. Now, if you want to be more liberal

2 in how these bonds may be utilized or how this gimmick

3 may be utilized, you will vote no on this amendment.

4 If you want to restrict the utilization of this

5 procedure, you will vote yes on this amendment, and yes

6 on the amendment that follows.

7 MR. CHAIRMAN: Commissioner Moyle.

8 COMMISSIONER MOYLE: Mr. Birchfield, did this

9 come up in the committee hearings?

10 COMMISSIONER BIRCHFIELD: I thought this up

11 all on my very own, Commissioner. No, in all

12 seriousness, it did not come up in our committee hearing

13 because we had Section 12 that came out of our committee

14 and Section 17 came out of Finance and Tax.

15 Then I appointed a select ad hoc committee

16 of two persons, chaired by two co-people -- Senator

17 Mathews and I -- and we went and talked to Frank Watson

18 and said, "Explain to us what we've done with these

19 two provisions." And he took the temperature and gave

2 the diagnosis of the case and told us these were our

21 options. And Commissioner Mathews and I, like two owls

2 in a tree by ourselves, decided to come to you and

2 recommend this approach.

24 COMMISSIONER MOYLE: These are good amendments

25 COMMISSIONER BURKHOLZ: Yes, that is right.
25








1 MR. CHAIRMAN: Commissioner Ausley has a

2 question.

3 COMMISSIONER AUSLEY: Commissioner Birchfield,

4 after you go through this process and get it cleaned up,

5 do you intend to support the cleaned-up version?

6 COMMISSIONER BIRCHFIELD: I am going to have

7 to tell this Commission that I do not like tax increment

8 financing. I do not like tax abatement. And I am not

9 a supporter of the housing provision. But despite my

10 own feelings, I thought these were issues that this

11 Commission wanted to address. And we have tried to

12 in a craftsman-like fashion bring them to you. And we

13 are trying now to melt two provisions that approach the

14 same problem on a rational basis so that this Commission

15 can understand the two policy questions.

16 I advocate the support of these two amendments

1 to get to an end; and that is, a restriction on how the

18 funds can be used, a liberalization of sources of

19 revenue that are to be paid back. I do that, however,

not with prejudice to my opportunities to go out and
20

take the other side on these issues, if I so choose.
21

COMMISSIONER N. REED: Would the gentleman
22

2 yield?
23

COMMISSIONER BIRCHFIELD: I yield.
24
COMMISSIONER N. REED: My question was: I did
25







1 not get to Jacksonville or Miami. So, I am interested

2 in whether there was any weight of testimony on the

3 subject.

4 COMMISSIONER BIRCHFIELD: This ain't no big

5 deal with anybody.

6 COMMISSIONER N. REED: Well, it should be.

7 COMMISSIONER BIRCHFIELD: But that is not the

8 case in terms of the public testimony.

9 COMMISSIONER N. REED: There was no

10 substantial support or opposition to these proposals?

11 COMMISSIONER BIRCHFIELD: Not in Jacksonville.

12 COMMISSIONER BURKHOLZ: None at all.

13 MR. CHAIRMAN: Commissioner Overton has a

14 question.

15 COMMISSIONER OVERTON: Commissioner Birchfield,

16 by striking the lines beginning with line 28, and in

17 effect taking out the matter of paying the bonds from

18 both revenues and from tax increments, aren't we then
,

19 saying, say the revenues from an auditorium could not

20 be used to pay off those type revenue bonds under a

S21 redevelopment project? I have a problem with that.

22 COMMISSIONER BIRCHFIELD: Commissioner, you

23 remind me of some judges that don't listen to all of an

24 explanation.

25 COMMISSIONER OVERTON: I guess maybe sometimes



II" oeij
I-..------. L.------- .,--,







1 COMMISSIONER BIRCHFIELD: What I have tried to

2 say rather inartfully, is that we are dealing with two

3 provisions in the hymnal that relate to the same subject

4 matter. Now, the effect of the amendments that I have

5 offered, the first one has been read, is to take it out

6 of Section 12. Then the next amendment will deal with

7 the same concept in Section 17. And then that portion

8 which you were worried about being lost in Section 12

9 will be offered as a clone to Section 17.

10 COMMISSIONER OVERTON: Listening to that,

11 I think my question went to the matter -- in order for

12 the revenue from a particular project to be used to pay

13 off the revenue bonds, that it has to be inserted in

14 17 because if you take it out of 12 and don't put it in

15 17, then you end up with the problem of not being able

16 to use the revenue from, say, an auditorium.

17 COMMISSIONER BIRCHFIELD: The Commissioner is

18 exactly right.

19 COMMISSIONER OVERTON: I do listen.

20 COMMISSIONER BIRCHFIELD: I will keep my eye

21 out. I think perhaps, Mr. Chairman, that it might be

22 better if we -- with the Commission's indulgence --

23 took up the amendment that follows this, though it is

24 out of order numerically in that it deals with a higher

25 numbered section. It would make sure that everybody is



"Jis Di








1 pinged in on what Commissioner Overton has rightfully

2 pointed out is a very important matter that should be

3 considered in addition to 17. Then if that is approved,

4 I would recommend that we then go back and do away with

5 the inabling provision that is in the other section.

6 MR. CHAIRMAN: Is there any objection to that?

7 If not, then let's now take up the Birchfield amendment.

8 MR..SECRETARY: Article 7, Page 85, lines 28,

9 29. Strike "solely from such tax increments" and

10 insert "from the increment in taxes or revenues derived

11 from redevelopment projects."

12 MR. CHAIRMAN: Commissioner Birchfield to

13 explain.

14 COMMISSIONER BIRCHFIELD: Now, that is the

15 same language that Commissioner Overton highlighted for

16 you; that we would engraft in Section 17. And I would

17 urge its adoption.

18 MR. CHAIRMAN: Is there any objection to this?

19 If not, may I show a unanimous roll call. Without

20 objection, show a unanimous roll call'on the adoption
20

S21 of the amendment proposed by Commissioner Birchfield.

22 So ordered.

23 Now, let's return to Commissioner Birchfield.

24 COMMISSIONER BIRCHFIELD: Now, the single

25 issue remaining to the attention of this Commission on








1 tax increment financing for a decision by this

2 Commission is. whether the utilization of this as a

3 financing vehicle should be limited to the redevelopment

4 of blighted areas. If you favor that limitation, you

5 would vote to support this amendment, which would delete

6 the provision in Section 12 which is brought. And you

7 would have the ability to deal with blighted areas under

8 Section 17.

9 COMMISSIONER OVERTON: May I ask a question

10 in this regard. Assuming we have a project that is

11 authorized by law that is not in a blighted area, as

12 such, now where do we go under Section 12?

13 COMMISSIONER BIRCHFIELD: All right. The

14 Commissioner's question is suppose there is a project

15 that does not fit within the definition of a blighted

16 area, and the local government wants to take a whirl

17 at doing something with this area through the vehicle

18 of tax increment financing. That would be clearly

19 constitutionally permissible if Section 12 is left as

20 it is. If you delete this provision and Section 17

21 remains as it is, as now amended, you would have clear

22 constitutional authority for dealing with a blighted

23 area. And so far as I know, the constitution would be

24 solid as to the question which is raised by Commissione

25 Overton as it is today silent. And so anybody who has








1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20
p. 20

21

22

23

24

25


started on that ain't no worse off or ain't no better

off, and is in the hands of the court.

And in that regard, he may be better off or

worse off.


COMMISSIONER OVERTON:


That is what I'm


worried about.

MR. CHAIRMAN: Commissioner Collins has a

question of Commissioner Birchfield.

COMMISSIONER COLLINS: Commissioner, as I

understood you to say, you wanted to restrict that

to blighted areas to support your amendment?

COMMISSIONER BIRCHFIELD: Yes.

COMMISSIONER COLLINS: Now, the way I look at

17 here, it just defines slum or blighted areas. Do

you construe the slum to be a broader term than

blighted?


idea what




synonyms,

make it?


COMMISSIONER BIRCHFIELD: I don't have any

that means. I frankly read them as a synonym.

COMMISSIONER COLLINS: I can think of other

too. How is it broader now than you want to


COMMISSIONER BIRCHFIELD:


No, no.


Okay.


Let me --


COMMISSIONER COLLINS: Are you going to make

it broader? L '








1 COMMISSIONER BIRCHFIELD: Commissioner

2 Collins, I guess great minds work alike. And two

3 committees came out with a proposal relating to tax

4 increment financing.

5 COMMISSIONER COLLINS: Yes.

6 COMMISSIONER BIRCHFIELD: Section 17, which

7 you allude to, dealing with slum or blighted areas,

8 came from Finance and Tax.

9 COMMISSIONER COLLINS: Right.

10 COMMISSIONER BIRCHFIELD: Section 12 came

11 from Bonding and Investments. The language that would

12 be affected by the amendment that is now pending is the

13 language in Section 12. And that amendment would strike

14 any reference in Section 12 to tax increment financing,

15 which would take with it the ability to use tax

16 increment financing for reinvestment, whatever that

17 means. That would leave us then with the language that

18 is now in Section 17, which is restricted to slum or

19 blighted areas.

20 If you do not vote for this amendment, we will

21 have two ways of going. We will have redevelopment in

22 all its pristine glory, and we will also have

23 redevelopment of a slum or blighted area.

24 And this is Utopia. If you like both of them,

25 vote no. I





15

1 COMMISSIONER COLLINS: What I was trying to

2 find out, Commissioner, is what does your amendment do

3 precisely to 17?

4 COMMISSIONER BIRCHFIELD: It don't do nothing.

5 COMMISSIONER COLLINS: Oh, well, that was

6 confusing. Excuse me.

7 MR. CHAIRMAN: Are you prepared to vote now?

8 Is there further debate? If not, if you favor the

9 proposal by Commissioner Birchfield, you will signify

10 by saying aye; opposed by saying nay. All right. Let'

11 call the roll.

12 (Whereupon, a voice vote was taken.)

13 MR. SECRETARY: 25 yeas, 4 nays.

14 MR. CHAIRMAN: The proposal is adopted.

15 Please read the next proposal.

16 Commissioner Barkdull, would you preside

Sfor a moment.

18 COMMISSIONER BARKDULL: Yes.

19 (At this time Commissioner Barkdull took the

SChair acting as Chairman.)
20

21 MR. SECRETARY: By Commissioner D'Alemberte,

22 Article 7, Section 5, on Page 75, lines 20 through 29,

23 strike all of lines 20 through 29. Amendment No. 3.

24 CHAIRMAN BARKDULL: Commissioner D'Alemberte

25 is recognized to explain the proposal.







1 COMMISSIONER D'ALEMBERTE: Mr. Chairman and

2 ladies and gentlemen, this is the so-called leadership

3 housing matter that has been before us in the past.

4 I don't intend to argue on this a great deal more, but

5 I did want to make sure the Commissioners had called to

6 their attention the fiscal note.

7 Now, when we sat here and debated this subject

8 earlier, there were a number of people who doubted the

9 fiscal note that had been sent to us by the Department

10 of Revenue. We now have a fiscal note developed by

11 Commissioner Brantley's committee, and it's on Page 6

12 of that report. It is the large item on that.

13 Let me read this to you and make sure you have

14 your attention called to it, because the very reason we

15 wanted a responsible and carefully staffed Fiscal Impact

16 Committee is to draw material like this to your

17 attention. It does say it is an undetermined fiscal

18 impact.

19 We then proceed through that lengthy..note and

20 it shows there will be an annual loss each year of

21 two to six million dollars.

22 Now, I don't think for those of you who have

23 been wondering why we have had so many people helping us

24 on this issue,.and why the issue was so well attended

25 by volunteer staff from various places, you probably




0: 44
HI, ,P06'7
w9'- ^"*"








1 now understand why that is. I think you all know that

2 this is an issue that can be presented to the legis-

3 lature. This can be presented to the legislature, whicl

4 can make the choice that you now want to compel in the

5 constitution.

6 Now, these people with that much money at

7 stake can go to the legislature and lobby it just as

8 well. They have demonstrated their capacity to lobby.

9 You would be doing them a favor to let them present

10 this to the legislature. You do something for the

11 economy of the state to keep these people employed.

12 It really might substantially reduce

13 unemployment in this state, and would give the legis-

14 lature something to do in this coming session. So,

15 to help our friends in the lobby and to help our friends

16 in the legislature, and to staff this state, two to

S17 six million dollars each year, I urge you to adopt this

18 amendment and reverse your earlier vote.

19 CHAIRMAN BARKDULL: I will line up debate.

20 Proponents. Commissioner Gardner against. Anybody

21 else? Commissioner Reed. Commissioner Overton is for.

22 Commissioner Reed, which way? Down. Commissioner

23 Jimmy Kynes down. Commissioner Hollis down.

24 Any proponents? The only proponent I have is

25 Commissioner Overton, Commissioner D'Alemberte, and
25



I~l"' ,-'^^^.








1 Commissioner DeGrove. Is there anyone else who wishes

2 to be heard who has not been noted? I have as opponents

3 Gardner, Reed, Kynes -- Don Reed -- Kynes and Hollis.

4 All right. We will hear from Commissioner

5 Gardner as an opponent.

6 COMMISSIONER GARDNER: Mr. Chairman and

7 Commissioners, if you all want to cut this thing real

8 short, I will make it easy for you. Just adopt debate

9 on January the 24th, Pages 213 through 258. It's 38

10 pages of debate. We all know what we said before.

11 Commissioner D'Alemberte has led you to believe this is

12 a fat-cat issue, but it isn't. Everybody that does

13 business in the State of Florida that is in a corporate

14 form it affects. Everybody -- that little old red and

15 white grocery store that is a corporation -- everybody.

16 It is not a fat-cat issue. It does affect large

17 corporations, but it affects Commissioner Clark. He's

18 in a corporation. It affects Commissioner Ryals. He's

19 got a little corporation. You wouldn't call those two

20 individuals fat cats; would you?

21 COMMISSIONER DOUGLASS: I will call for a vote

22 on the last issue.

23 COMMISSIONER GARDNER: I tell you, the

24 consistent inconsistency of this Commission is getting

25 to be overwhelming. We have been through this thing







1 before. Commissioner D'Alemberte knows it is not that

2 type of issue. We can talk about recognizable income

3 when and where. Commissioner Overton knows that. We

4 have been through this thing. It is just a bad

5 proposal.

6 We are going through 38 pages of plowed

7 ground. Give it time to germinate. There is going to

8 be so much manure on this thing that it ain't never

9 going to grow.

10 CHAIRMAN BARKDULL: Commissioner D. Reed as

11 an opponent.

12 COMMISSIONER D. REED: I just want to say just

13 a couple of words. I think that where Commissioner

14 D'Alemberte has gotten off the track, or at least where

15 he has pulled it up behind him, as Mr. Birchfield would

16 say, is that he has already concluded that this language

17 will cause a loss to the State of Florida in revenue.

18 Now, for there to be a loss there must have

19 been an amount collected lawfully which will be reduced

20 by this language. Those of us who support the language

8 as it is take issue with Commissioner Overton and the
21

22 opinion rendered by the court and with others who would

2 say that the appreciation in value on which a tax can be

2 based can be reached back beyond the date that the act

25 was even in effect. That's really what it is all about,
925~








1 is ex post facto taxation. That is essentially where

2 it is coming from.

3 I don't think anybody is arguing from the

4 effective date of the act forward that the tax should

5 be imposed. I think the question is how can you go

6 beyond that date in order to impose or collect a tax

7 regardless of the fact that the time the tax is due

8 is when the sale occurs or when the funds are received

9 after the point in time in which the earnings manifest

10 themselves.

11 It is the date the tax -- when the statute

12 says -- the statute itself says this tax, or words to

13 this effect, shall be deemed to be prospective in

14 nature. That means into the future and not in the past.

15 That is all we are arguing about.

16 So, I would submit to you that the state is

17 not losing any money. The state is presently under that

18 Supreme Court decision taking money on a tax basis to

19 which it is not entitled. Fortunately, we live in a

20 country in which I can disagree with what that court

21 decision was. I respect the members of that -court who

22 made that decision. From time to time even members of

23 the Supreme Court make bad decisions. When that occurs,

24 it takes lay groups such as this to give them some

25 direction, and the people of the State of Florida some








1 opportunity to explain to them that in most instances

2 they are right, but in this one they are wrong.

3 CHAIRMAN BARKDULL: Commissioner Overton as

4 a proponent.

5 COMMISSIONER OVERTON: Well, I guess if the

6 court is wrong, it is in pretty good company because

7 the legislature also rejected this proposal. Now, it

8 has been proposed and even was recognized in a public

9 hearing. It was proposed and submitted to the legis-

10 lature initially that this matter of computation --

11 and this is what we are talking about, a computation of

12 times. It was proposed and submitted to the legislature

13 in 1972. And I am to understand it has been submitted

14 subsequently, although I haven't seen what the record

15 is on that.

16 I will be frank with you. But it is not a

17 matter that should be in the constitution because it is

18 a matter of tax computation.

19 I might say to you in this regard, you know,

20 we are talking about a capital gain. Nothing is mentioned

21 about the capital loss that is an offset and the fact

22 that they can go back to a basis period to 1971 for

23 that capital loss offset.

24 COMMISSIONER GARDNER: Will the Commissioner

25 yield?








1 COMMISSIONER OVERTON: The Commissioner will

2 yield.

3 COMMISSIONER GARDNER: Commissioner Overton,

4 the Florida corporate income tax starts with line 30

5 on the Federal return. The Federal return does not

6 recognize a capital loss except to the extent of a

7 capital gain. You can have a capital loss, and it

8 doesn't affect your Florida taxable income one dime

9 because you can't use it.

10 CHAIRMAN BARKDULL: Would you believe.

11 COMMISSIONER OVERTON: If you had a capital

12 gain, would you believe that you could offset that

13 with a capital loss dated back prior to 1972?

14 COMMISSIONER GARDNER: No, sir, I would not.

15 COMMISSIONER OVERTON: If you had a capital

16 gain?

17 COMMISSIONER GARDNER: If you have a capital

18 gain, you have to have -- if you have a capital loss,

19 you have to have a gain to use it. If you have a loss,

20 you can't use it under the present 220 statute.

21 COMMISSIONER OVERTON: But if you have a

2 capital gain, you can use loss; can you not?

23 COMMISSIONER GARDNER: Yes.

24 COMMISSIONER OVERTON: All right. Now --

25 Dexter, you never had any losses.
25








1 COMMISSIONER MATHEWS: Will the Commissioner

2 yield?

3 CHAIRMAN BARKDULL: Will you yield to

4 Commissioner Mathews?

5 COMMISSIONER OVERTON: I yield.

6 COMMISSIONER MATHEWS: Will you explain to us

7 how you can have a capital gain and a capital loss on

8 the same piece of property when you sell it?

9 COMMISSIONER OVERTON: I didn't say on the

10 same piece of property, Commissioner Mathews, but on

11 the computation of the tax -- and this is what we are

12 talking about now. I recognize, you know -- it

13 surprises me how much -- and every one of us has been

14 contacted, I guess, and many more than one time each

15 concerning this particular subject matter. And it

16 surprises me that it didn't get farther in the legis-

17 lature. But it did not.

18 I suggest that we leave it up to the legis-

19 lature. That is the body that should deal with this

20 subject matter, not the Constitution Revision Commission

21 I urge your adoption of the amendment.

22 CHAIRMAN BARKDULL: The gentleman yields the

23 floor. Commissioner Kynes as an opponent.

24 COMMISSIONER KYNES: Mr. Chairman and members
24

25 of the Commission, just a couple of brief comments.








1 What we are really talking about here is what was the

2 intent of the people of Florida when they passed or

3 approved the amendment back in 1971. It intended just

4 as the "Tampa Tribune" said this morning, that it would

5 not apply to profits that were earned by a company

6 before enactment of the tax in 1971. That is what the

7 "Tribune" said. That is a proper interpretation of

8 what the people did in 1971.

9 And in the words of a great philosopher --

10 and before I quote that philosopher, I don't mean to

11 infer that Commissioner D'Alemberte has a lover -- but

12 as that philosopher said, "Never begrudge your lover's

13 kiss to another when it was never intended for you in

14 the first place."

15 And when you say that we are going to take

16 away from the state two to six million dollars, when

17 it was never intended for the state in the first place,

18 is running a red herring across this floor. And I urge

19 you to defeat this proposal.

20 CHAIRMAN BARKDULL: Commissioner DeGrove

21 waives his time. Commissioner Hollis as an opponent.

22 COMMISSIONER HOLLIS: I waive my time.

23 CHAIRMAN BARKDULL: Commissioner D'Alemberte

24 to close.

25 COMMISSIONER D'ALEMBERTE: Ladies and








1 gentlemen, you have heard from some real experts. You

2 heard from Commissioner Gardner, who is a fine tax

3 expert. You have heard from Commissioner Overton

4 who has told you a great deal about the philosophy

5 of leaving this to the legislature. And you have heard

6 from Commissioner Kynes in his area of great expertise,

7 red herrings. He may have another area of expertise,

8 but we have been instructed to be discreet.

9 Ladies and gentlemen, I know that there are

10 many in this chamber who feel strongly on this issue.

11 And the only basis I take this for is not to disagree

12 with Commissioner Gardner except as to the role of the

13 Constitution Revision Commission. And I just

14 respectfully submit to you we haven't got any business

15 sitting here trying to handle the tax policy questions

16 which the legislature is fully competent to handle.

17 Now, Commissioner Reed and Commissioner Kynes

18 and others who argued with this have not told you,

19 would not dare tell you that this is a subject beyond
220
20 the legislature's ability to handle.

21 We have been criticized in the past for

22 touching things that are better left to the legislature.

23 And we are in such an area again now. And I

24 respectfully submit that we should leave this subject

25 to the legislature and let those people who have








1 lobbied us so effectively return to the legislature.

2 Springtime Tallahassee is a marvelous, marvelous

3 event. They can be here and share their talents with

4 the legislature.

5 I have no doubt if they do as fine a job as

6 they have done here, that they will be able to carry

7 the issue to the legislature. That will save us the

8 embarrassment of doing something we should not be doing,

9 I hope you will adopt this proposal.

10 CHAIRMAN BARKDULL: Will the gentleman yield

11 to Commissioner Hollis?

12 COMMISSIONER D'ALEMBERTE: I yield.

13 COMMISSIONER HOLLIS: Can the legislature go

14 to single-member districts? Does that have to be in

15 the constitution?

16 COMMISSIONER D'ALEMBERTE: I am sure that is

17 not required in the constitution.

18 And I can go through an enormous number of

19 other issues, Commissioner Hollis, which would fit the

20 same category. You are dealing now -- this is a tax

21 inequity. The fiscal note, you are just getting ready

22 to hand out as much as -- and maybe more -- as much as

23 six million dollars a year. And you are going to

24 throw that in a document and let the people of Florida

25 vote on that when the legislature has the difficulty of








1 making up that revenue loss. And I respectfully submit

2 that you don't want to do that.

3 You should be leaving that up to the legis-

4 lature, and let the legislature make those determi-

5 nations. It may be the legislature will decide this is

6 not a very fair tax. But the legislature can look at

7 all tax policies and decide where it needs to get the

8 revenue. And it hopefully will try to get it in the

9 most fair method.

10 I feel strongly we are moving into areas

11 that we shouldn't be in, and the legislature is quite

12 competent to be in. I hope you will vote for part of

13 the proposal.

14 CHAIRMAN BARKDULL: All right. The matter

15 recurs on the adoption of the amendment by Commissioner

16 D'Alemberte that has the impact of removing the

17 exemption for corporations, for capital gains prior to

18 1971. Call the roll.

19 (Whereupon, a voice vote was taken.)

20 MR. SECRETARY: 13 yeas, 21 nays.

21 CHAIRMAN BARKDULL: By your vote you have

22 failed to pass the amendment. Before I relinquish the

23 podium to the Chairman, I would like to indicate that

24 the last series of speakers used an average of three

25 minutes each, and the introducers used five minutes. I








1 hope everyone else the rest of the afternoon does the

2 same thing.

3 COMMISSIONER MATHEWS: Or less.

4 (At this time Chairman D'Alemberte resumed

5 the Chair.)

6 MR. CHAIRMAN: Thank you, Commissioner

7 Barkdull. Please read the next proposal.

8 MR. SECRETARY: By Commissioner D. Reed,

9 Article 7, Amendment No. 11, on Pages 84, 85, and 86.

10 Beginning at line 17 on Page 84, strike all of Sections

11 16 and 17.

12 MR. CHAIRMAN: Commissioner D. Reed is

13 recognized.

14 COMMISSIONER D. REED: This basically reduces

15 the size of the proposed new document by about two and

16 a half pages. I would like to just reserve a moment or

17 two to close, and would urge the adoption of the

18 amendment.

19 MR. CHAIRMAN: Will you yield to Commissioner

20 Barkdull?

21 COMMISSIONER D. REED: Yes.

22 COMMISSIONER BARKDULL: What are you taking

23 out?

24 COMMISSIONER D. REED: Some language that was

25 put in that was not in the original document.








1 COMMISSIONER BARKDULL: What does it do?

2 COMMISSIONER D. REED: I'm not too sure.

3 That is why I am trying to take it out.

4 COMMISSIONER BARKDULL: What is the subject

5 matter?

6 COMMISSIONER D. REED: Taxes.

7 COMMISSIONER BARKDULL: Maybe you had better

8 read it off to us, Commissioner.

9 MR. CHAIRMAN: I think this is on housing and

10 finance?

11 COMMISSIONER D. REED: Yes. I really don't

12 want to belabor the point. All it does is go to

13 revenue bonds for housing and related facilities and

14 all that mishmash on redevelopment of slums or blighted

15 areas. What it does is put us back into the status quo

16 for those of you who were wondering.

z 17 MR. CHAIRMAN: Is there debate? Commissioner

18 Burkholz, Commissioner Shevin briefly in opposition.

19 COMMISSIONER BURKHOLZ: Very briefly in

20 opposition. These are two essential proposals. We

21 have heard massive amounts of testimony for the needs

22 for these. You come down to South Beach, Commissioner

23 Reed, and I will take you on a tour and show you what

24 needs to be done. The only way it can be done in a

25 reasonable amount of time is through tax increment








financing. We are losing millions of dollars because

of the lack of a housing proposal. And I urge you to

reject this very, very bad amendment.

MR. CHAIRMAN: Commissioner Shevin waives his

time. Commissioner DeGrove waives his time.

Commissioner D. Reed to close.

COMMISSIONER D. REED: It is a sad day when

we come to the point at which government is going to

get involved in the development of private property.

I would urge that you adopt my very good amendment.

MR. CHAIRMAN: Please call the roll on

Commissioner D. Reed's amendment.

(Whereupon, a voice vote was taken.)

MR. SECRETARY: 7 yeas, 26 nays.

MR. CHAIRMAN: Please read the next amendment.

The amendment fails adoption.

MR. SECRETARY: By the Committee on Style and

Drafting. Article 7, Section 4(b), 3, on Page 73,

line 30, strike to the end. On Page 74, line 1, strike

"the National Register of Historic Places" and insert

"historic" after "of" on line 30.

COMMISSIONER MATHEWS: I think that is

something we have already referred back to Style and

Drafting.


MR. CHAIRMAN: Yes, s








1 not know whether you had worked it out and were

2 proposing that at this time or not.

3 COMMISSIONER MATHEWS: I just think that

4 happens to be up there in the package.

5 MR. CHAIRMAN: You want that to go back to

6 Style and Drafting?

7 COMMISSIONER MATHEWS: Yes.

8 COMMISSIONER OVERTON: It just went back to

9 Style and Drafting, as I understand it, to put a

10 declaration of intent with it? Did you want to bring

11 that declaration of intent back to be voted on by the

12 Commission?

13 COMMISSIONER DeGROVE: Language and schedule.

14 COMMISSIONER OVERTON: That is what I meant,

15 language or the scheduled language, which was the

16 intent.

17 MR. CHAIRMAN: I think the idea expressed on

18 the floor was the scheduled language would define

19 historic homes as homes listed on the National Registry;

20 is that right?
20
21 COMMISSIONER N. REED: Using the present

22 criteria of the National Historic Housing Register.

23 MR. CHAIRMAN: If that amendment can be

24 drafted, the scheduled amendment can be drafted, then

25 there is no reason it can't come before us while we are








1 here rather than going back to Style and Drafting.

2 COMMISSIONER MATHEWS: All right.

3 MR. CHAIRMAN: Is the language now available?

4 COMMISSIONER MATHEWS: Yes. We have an

5 amendment to the amendment.

6 MR. CHAIRMAN: All right. The basic amendment

7 now is that proposed by Style and Drafting, and just

8 refers to historic property. This amendment to the

9 amendment would add language to the schedule. Please

10 read that language.

11 MR. SECRETARY: Amendment to the amendment

12 in the schedule. "The term 'historic' is intended to

13 mean only the locations that meet the present criteria

14 established by the National Register of Historic

15 Places."

16 COMMISSIONER MATHEWS: I move the adoption of

17 the amendment to the amendment.

18 MR. CHAIRMAN: If you favor the amendment to

19 the amendment, please signify by saying aye; opposed

20 by saying nay. The amendment to the amendment is

21 adopted.

22 Now may we now have a final vote on the

23 amendment as amended. Is there objection to it now?

24 If not, may we show a unanimous roll call?

25 COMMISSIONER BIRCHFIET I .~u'd l.air tC -sk

f w. Pt :







a question. Will the gentleman yield?

MR. CHAIRMAN: Would you please take the floor

Commissioner Mathews.

COMMISSIONER MATHEWS: Yes.

COMMISSIONER BIRCHFIELD: Commissioner, is

this intended to lock in, in perpetuity the present

definition?

COMMISSIONER MATHEWS: Yes.

COMMISSIONER BIRCHFIELD: So, a subsequent

redefinition by this body that would broaden it would

not have any --

COMMISSIONER MATHEWS: It would not affect

it. And we will double-check to make sure there is

no question about it.

COMMISSIONER BIRCHFIELD: So, if it ain't

historical now, it ain't going to get historical?

COMMISSIONER MATHEWS: You know, the historic

place in Mandarin where you and I have had several

meetings --

COMMISSIONER BIRCHFIELD: Yes.

COMMISSIONER MATHEWS: It is not my intention

to include that.

COMMISSIONER BIRCHFIELD: Within our lifetime

COMMISSIONER MATHEWS: Right.

MR. CHAIRMAN: With.. hat explanation, is there


Siilw^ /.s' ** H
JP^ *^J^ j








1 objection? Show Commissioner Collins as out of the

2 room or disqualified. Are there no objections?

3 Then show a unanimous roll call. I am sorry, show

4 Commissioner J. Moore voting in the negative. All other

5 members present are voting in the affirmative.

6 Commissioner Moyle?

7 COMMISSIONER MOYLE: Mr. Chairman and

8 Commissioner Mathews, don't you think rather than saying

9 "the criteria" that we should word it so that it is not

10 less than a criteria, so that we could have some

11 flexibility?

12 COMMISSIONER MATHEWS: As I understand it,

13 this has flexibility.

14 COMMISSIONER MOYLE: It is not less than

15 the criteria? It could be more. You don't know what

16 is going to happen to the criteria in Washington. It

17 may be dropped.

18 COMMISSIONER MATHEWS: This sets into concrete

19 what the express intent of the criteria as they now

20 exist.

21 MR. CHAIRMAN: All right. Now we have

22 already taken the roll call vote of all members voting

23 in favor except Commissioner J. Moore. And unless

24 there are others who wish to vote in the negative, then

25 we will show all other members present voting in the





35

1 affirmative. Without objection. Thank you.

2 Read the next amendment.

3 MR. SECRETARY: No further amendments on

4 Article 7.

5 Article 8, Section 1, by Commissioner Mathews.

6 On Page 87, line 16, insert after "determined"

7 "under a procedure prescribed by law."

8 MR. CHAIRMAN: Commissioner Mathews.

9 COMMISSIONER MATHEWS: I move the adoption

10 of the amendment. Now, Mr. Chairman and Commissioners,

11 the way that this now reads, I think there would be

12 some confusion and perhaps litigation in trying to

13 determine how this works. This simply provides that

14 there should be a legislative enactment to prescribe

15 the procedures under which this -- this is on Page 87.

16 Would you read the amendment, please, Mr. Clerk.

17 MR. SECRETARY: On Page 87, line 16, insert

18 "under a procedure prescribed by law" after the word

19 "determined."

20 COMMISSIONER DeGROVE: And is that right?

21 In other words, you are going to let the legislature

22 figure out just how the county commissioners will put

23 it to a vote?

24 COMMISSIONER MATHEWS: That is the procedure.

25 COMMISSIONER DeGROVE: That sounds all right.








1 MR. CHAIRMAN: Commissioner Mathews.

2 COMMISSIONER MATHEWS: Nothing is stricken.

3 It doesn't change any substance.

4 MR. CHAIRMAN: Does everybody understand?

5 Is there debate? Is there opposition? If not, may we

6 show a unanimous roll call of all members present.

7 It is so ordered.

8 Please record all members present voting in

9 the affirmative. Please read the next amendment.

10 MR. SECRETARY: By Commissioner DeGrove,

11 on Page 87, line 19, strike the words "on November 7th,

12 1978."

13 MR. CHAIRMAN: Commissioner DeGrove.

14 COMMISSIONER DeGROVE: Commissioners, the

15 purpose of this is it was my intent at the time we

16 acted on this, and I later talked to Commissioner

17 Barkdull about it, was to have the charter counties

18 have the right to prescribe their own districting

19 systems, both present and prospective, future charter

20 counties. This would apply to counties that become

21 charter counties in the future, if any of them do.

22 It is not a process of just running down, trying to --

23 we have only adopted three under the Chapter 163. That

24 excludes Dade and Jacksonville. But it would make

25 this -- would exempt future charter counties from this







1 provision that we just reconfirmed. And that will be

2 its sole impact.

3 MR. CHAIRMAN: Will you yield to Commissioner

4 Barkdull?

5 COMMISSIONER DeGROVE: I yield.

6 COMMISSIONER BARKDULL: Commissioner DeGrove,

7 then if your amendment is adopted, the impact of this

8 will be to eliminate those counties that have charters

9 on the date of their adoption, and would also eliminate

10 those counties that might adopt a charter in the future?

11 COMMISSIONER DeGROVE: Yes. And the only

12 thing new is it would apply to those that might adopt

13 it in the future.

14 MR. CHAIRMAN: Is there further debate? If

15 not, is there opposition? Is there opposition? May we

16 show a unanimous roll call on the proposal by

17 Commissioner DeGrove. It is so ordered without

S18 objection.

S19 Please read the next proposal.

20 MR. SECRETARY: By Commissioner DeGrove.

S21 On Page 90, lines 7 through 14, strike all of Section 4.

22 COMMISSIONER DeGROVE: Commissioners, what

23 this does it take out of the constitution something

2 that I think we don't really need in there. Now, that

25 is with regard to transferring of powers. We have good


A 09648,
^J^,Ole,_





38

1 statutory provisions now on things like local agreements,

2 And that stuff doesn't need to be in the constitution.

3 If you will read Section 4, what it is, it

4 is kind of a roadblock put up in the way of functional

5 consolidation; now, not governmental but functional

6 consolidation. I think taking it out would make it

7 easier to achieve autonomy and efficiency in local

8 government through functional consolidation.

9 Let me give you an example. If you want to

10 have a county-wide solid waste treatment facility, the

11 provision for that can clearly be made. And this

12 transfer of powers thing, although there are other ways

13 to do this to get the functional consolidation, I think

14 this is just one more roadblock in the way of local

15 government deficiency. I don't see any need for it.

16 I think we should just take it out unless there is

17 something in it that I am just overlooking.

18 MR. CHAIRMAN: Will you yield to questions

19 from Commissioner Collins and then from Commissioner

20 Birchfield?

21 COMMISSIONER DeGROVE: Certainly.

22 COMMISSIONER COLLINS: Commissioner, we have

23 had struggles here to try to consolidate our own county

24 with the city of Tallahassee.

25 COMMISSIONER DeGROVE: Yes, sir.







COMMISSIONER COLLINS: And over and over

again there have been bitter fights, and the result

has been a negative vote.

COMMISSIONER DeGROVE: Yes.

COMMISSIONER COLLINS: On the other hand,

the county and city have developed a progressive

program of cooperating by going with each other to

jointly sponsor various elements of government --

operation by government. In other words, we have a

consolidating piecemeal, in fact.

COMMISSIONER DeGROVE: Functional consoli-

dation.

COMMISSIONER COLLINS: It looks to me like

you are going to strike out our powers to do that.

COMMISSIONER DeGROVE: No. You have done

that under the interloper agreements, contracting with

each other. The transfer of power is a different thing.

COMMISSIONER COLLINS: Okay. We still have

the power to do so?

COMMISSIONER DeGROVE: Yes. You certain do,

I believe, now -- I know you do in that.

COMMISSIONER BIRCHFIELD: Commissioner DeGrove

is it your position that municipalities and counties

are, in fact, creatures of the legislature?

COMMISSIONER DeGROVE: Yes, sir.



LI" i N 4
f^v LI T


I








COMMISSIONER BIRCHFIELD: Therefore, the

legislature does not need constitutional grant of power

to do that which it does over?

COMMISSIONER DeGROVE: Yes, that is my

position.

MR. CHAIRMAN: Commissioner Overton, do you

have a question for Commissioner DeGrove?

COMMISSIONER OVERTON: Well, basically this

particular provision has been construed by the court;

has it not?


COMMISSIONER

COMMISSIONER

matters concerning the

is the -- the takeover

functions of municipal

COMMISSIONER

COMMISSIONER

you want it removed is

prohibits that manner o

those functions to the

COMMISSIONER


DeGROVE: Yes, sir.

OVERTON: And it involves some

takeover by what is asserted

by the county of certain

ties; does it not?

DeGROVE: It has.

OVERTON: And the reason why

because you feel this provision

f weighing, of transferring

county?


DeGROVE:


As it has been


interpreted in that case. I happen to think that is

an erroneous interpretation.

COMMISSIONER OVERTON: A lot of people feel

that way about it.








1 COMMISSIONER DeGROVE: But just generally,

2 also, Commissioners, going beyond that, this is just

3 a roadblock. This is a roadblock. It is a roadblock

4 and is something standing in the way of our ability

5 to modernize and strengthen and streamline our

6 delivery of functions at the local area. We don't need

Sit in the constitution. We should take it out.

8 COMMISSIONER DOUGLASS: Will you yield?

9 COMMISSIONER DeGROVE: Yes.

10 COMMISSIONER DOUGLASS: Did I understand you

11 to say the court held we needed this, but you did not

12 think we really needed this?

13 COMMISSIONER DeGROVE: No.

14 COMMISSIONER DOUGLASS: What did you say?

15 COMMISSIONER DeGROVE: Okay. Sarasota versus

16 Longboat Key is a case in which the court ruled that

Seven a charter county, which could not under the powers
f 17

18 granted to a charter county, to have a county ordinance

19 be -- override a local ordinance in terms of a

functional consolidation. In other words, it went
20

21 really not only to Section 4, but to other sections.

2I don't agree to that. Just generally my
22

2 purpose in getting this out is, one, we don't need it
23

in the constitution. And, two, I think it does -- as
24
is illustrated in this case and others -- get in the wa,
25





42

1 of effective, functional consolidations that are

2 mandated, can be mandated by general law by the state.

3 We don't need it. We ought to take it out.

4 We don't have any local agreement authority in there.

5 We don't need this in there.

6 COMMISSIONER COLLINS: Will the Commissioner

7 yield?

8 COMMISSIONER DeGROVE: Yes, sir, sure will.

9 COMMISSIONER COLLINS: You gave me assurance

10 that these local relationships that we have worked out

11 here would not be affected by removing this Section 4.

12 And don't you agree with me further, though, that

13 Commissioner Overton overruled that conclusion of yours.

14 COMMISSIONER DeGROVE: No, sir. This has to

15 do with charter counties. Leon is not a charter county

16 COMMISSIONER COLLINS: Wouldn't the logic --

17 wouldn't the logic that supported that case also apply?

18 COMMISSIONER DeGROVE: It is very difficult

19 for me to find any logic in that case, Commissioner,

20 but --

21 COMMISSIONER COLLINS: Your interpretation --

22 COMMISSIONER DeGROVE: Absolutely not. If

23 anything, this would make it easier for you to make

24 those agreements you make. It would make it easier,

25 Commissioner Collins. I guarantee you that those






43

1 interloper agreements that you have in Leon County were

2 not brought about by the electorate in each of the

3 counties and cities voting for it. They were brought

4 about by the county and city commissions. Is that

5 correct, sir?

6 COMMISSIONER COLLINS: In a technical sense

7 they were brought about essentially because both bodies

8 felt that the people of this county wanted it that way.

9 COMMISSIONER DeGROVE: Yes, sir. If you had

10 to go into this section, you couldn't do it that way.

11 COMMISSIONER COLLINS: Under that pressure

12 of thinking here --

13 COMMISSIONER DeGROVE: All right.

14 COMMISSIONER COLLINS: -- they got it down.

15 COMMISSIONER DeGROVE: If you look at

16 Section 4, if you had to do what you have done under

17 that, you couldn't have done it that way. You would

18 have had to have separate votes of the people, not

19 actually of the electorate -- of the governing bodies.

S20 COMMISSIONER COLLINS: I see that.

S21 (At this time Commissioner Barkdull took the

22 Chair acting as Chairman.)

23 CHAIRMAN BARKDULL: Will the Commissioner

24 yield to Commissioner R. Moore?

25 COMMISSIONER DeGROVE: Ye .
f|lflf2Ac
f~ws n~ySQi\


___







1 COMMISSIONER R. MOORE: We have in Volusia

2 County -- a charter county -- now would this affect

3 some agreements made with the county and the city,

4 and then --

5 COMMISSIONER DeGROVE: Yes, sir. Let me

6 answer that. That is a very good question. Only in

7 a positive way. It would make sure that in the future

8 some court didn't come along and rule out those

9 grievances that you now have.

10 CHAIRMAN BARKDULL: Does any Commissioner

11 wish to be heard as an opponent? Does any Commissioner

12 wish to be heard as a proponent? Commissioner

13 D'Alemberte.

14 COMMISSIONER D'ALEMBERTE: I want to, first

15 of all, declare my conflict of interest openly. The

16 case which Commissioner DeGrove has referred to is one

17 which I applied all of my talents to and lost by a

18 seven/zero vote to the Supreme Court.

19 Commissioner Annis observed a moment ago that

20 I did not seem to be having much more success from this

21 Chair than I did with the voting of that court. But I

22 want to clear that up.

23 Commissioner DeGrove saw that case and took

24 this action independently. I just wanted to make sure

25 that you understood that I have a client who has paid



Ur:





45

1 me to argue this. And I am not being paid at this

2 point, unfortunately. I do want to point out to you

3 one provision of the Florida Constitution that relates

4 to charter government that you ought to know about.

5 The Jacksonville people have had some experience in

6 charter government, probably better than anyone else

7 in the state.

8 There is a provision in the Florida

9 Constitution in Article 8, Section 1 that says that

10 counties can adopt charters. And then it goes on to

11 say that the county charter may contain a provision

12 which would make county ordinances supreme to municipal

13 ordinances.

14 Now, if you think that through for a moment,

15 I think you will come to the conclusion, if adopted,

16 and approved by the voters, that would allow, really,

17 the preemption of power by county charter government.

18 At least that is what I had always thought, in agreement

19 with Commissioner DeGrove. A recent decision that I

20 managed to lose raises grave questions about that.

21 That is the purpose of the DeGrove amendment.

22 I do'support that. But I also wanted to take the floor

23 and declare my interest in this matter. It is

24 interesting philosophy.

25 CHAIRMAN BARKDULL: Commissioner Ausley.





46

1 COMMISSIONER AUSLEY: Commissioner D'Alemberte,

2 as I read Section 4 now, it would permit counties to

3 consolidate functions with counties. And is that

4 mentioned elsewhere in the constitution?

5 COMMISSIONER D'ALEMBERTE; I don't think so.

6 And, frankly, there may be some other way to reach the

7 result that Commissioner DeGrove seeks to reach. My

8 understanding is that those are not prohibited if they

9 are not included in the constitution. He is just

10 saying this is the purpose. I think he is correct in

11 that.

12 COMMISSIONER AUSLEY: In other words, it is

13 your opinion that if we strike this out, Wakulla and

14 Liberty counties could consolidate functions if they

15 so desire?

16 COMMISSIONER D'ALEMBERTE: Yes, sir. And I

17 have consulted with one of the fine experts on local

18 government who may be willing to make himself available

19 for greater service to local government in a consoli-

20 dated area.

21 CHAIRMAN BARKDULL: Commissioner DeGrove

22 to close on the amendment.

23 COMMISSIONER DeGROVE: Commissioners, I think

24 you understand this. I think it is a good change. I

25 think it would strengthen our capacity to give the








1 taxpayer more bang at the bucket at the local level.

2 CHAIRMAN BARKDULL: The matter occurs on

3 final adoption of the amendment which has the impact

4 of striking Section 4 of Article 8. Call the roll.

5 (Whereupon, a voice vote was taken.)

6 MR. SECRETARY: 24 yeas, 7 nays.

7 CHAIRMAN BARKDULL: By your vote you have

8 adopted the amendment. The Chairman is batting 500

9 today.

10 Take up the next amendment.

11 MR. SECRETARY: By Commissioner DeGrove, on

12 Page 90, line 14, after the word "law" insert the words

13 "general or special law or county charter."

14 COMMISSIONER DeGROVE: I will withdraw that.

15 MR. SECRETARY: Withdrawn. There are no

16 other amendments on Article 8.

17 Article 9, amendment to by Commissioner James,

18 Page 105, line 3, strike the comma after "board" and

19 strike "with approval of the governor."

20 CHAIRMAN BARKDULL: Commissioner James is

21 recognized to explain the amendment.

22 COMMISSIONER JAMES: Mr. Chairman and members

23 of the Commission, during the testimony at the public

24 hearings, one of the main areas I heard some concern

25 over was this portion, "with the approval of the








1 governor."

2 I think it ought to be done by the board.

3 And they ought to do it totally, without having to get

4 his approval. And, therefore, I have offered this

5 amendment to reduce four or five words in the article.

6 CHAIRMAN BARKDULL: For what purpose does

7 Commissioner Kynes rise?

8 COMMISSIONER KYNES: I would like to join

9 with Commissioner James.

10 CHAIRMAN BARKDULL: You are a proponent.

11 Opponents?

12 Can we hear from Commissioner Kynes now.

13 COMMISSIONER KYNES: I don't have anything to

14 say. There is no objection to it.

15 CHAIRMAN BARKDULL: Are there any

16 Commissioners who desire to be opposing this amendment?

17 Without objection. The Clerk will please note a

18 unanimous vote of all members present.

19 COMMISSIONER BURKHOLZ: No, Mr. Chairman.

20 CHAIRMAN BARKDULL: All right. Call the roll.

21 (Whereupon, a voice vote was taken.)

22 MR. SECRETARY: 25 yeas, 4 nays.

23 CHAIRMAN BARKDULL: By your vote you have

24 adopted the amendment.

25 Read the next one. _








1 MR. SECRETARY: By Commissioner D'Alemberte,

2 on Page 105, line 14, strike the period and insert

3 "but shall remain Commissioner of Education until a new

4 Commissioner is appointed by the board."

5 CHAIRMAN BARKDULL: The Commissioner is

6 recognized to explain the amendment.

7 COMMISSIONER D'ALEMBERTE: Commissioners,

8 this is something that was pointed out to me by the

9 Department of Education. There is a possibility under

10 the present drafting of Article 9, that there would be

11 a hiatus period. You could have an effective date of

12 the constitution. The board might not then be appointee

13 until after the governor had given some thought to it.

14 Then after the board is appointed, he still has to

15 employ the Commissioner of Education in the design as

16 we said earlier.

17 So, this is to prevent any hiatus period,

18 just like is inserted. That way there would be no

19 disruption in the operation or control over the

20 Department of Education.

21 CHAIRMAN BARKDULL: Are there any opponents

22 to the amendment as offered by Commissioner D'Alemberte'

23 Is there any objection to a unanimous vote being shown?

24 COMMISSIONER BURKHOLZ: Yes.

25 CHAIRMAN BARKDULL: Call the roll.








1 (Whereupon, a voice vote was taken.)

2 MR. SECRETARY: 31 yeas, 1 nay.

3 CHAIRMAN BARKDULL: By your vote you have

4 adopted the amendment.

5 Read the next amendment.

6 MR. SECRETARY: By Commissioners D'Alemberte

7 and Kynes. On Page 107, line 14, strike "provided that

8 the Board of Regents." On Page 107, line 15, strike

9 "shall be" and insert on line 14 "subject to the

10 overall responsibilities of the State Board of

11 Education." And on line 15, after "all" insert a comma.

12 CHAIRMAN BARKDULL: Mr. Kynes to explain the

13 amendment.

14 COMMISSIONER KYNES: Mr. Chairman and members

15 of the Commission, I think you saw in the note to the

16 report of the Committee on Style and Drafting they

17 raised some issues as to the relationship between the

18 Board of Regents provision and the State Board of

19 Education. This is an effort to clarify that.

20 One has been developed in conjunction with

21 several, of which Commissioner D'Alemberte and I are

22 offering jointly.

23 I don't think there is any objection to it.

24 It does, I think, meet the needs as pointed out to us

25 by the Committee on Style and Drafting.







1 CHAIRMAN BARKDULL: Are there any opponents?

2 Excuse me, Commissioner Ware.

3 COMMISSIONER WARE: I would like to ask a

4 question.

5 CHAIRMAN BARKDULL: The gentleman yields.

6 COMMISSIONER WARE: Commissioner, I am sorry

7 I didn't have a chance to read this before this moment.

8 I am trying to find out what it does to the issue of

9 whether or not the applicability of the law, other than

10 those affecting educational policy, would apply to the

11 Board of Regents.

12 COMMISSIONER KYNES: That has no reference

13 to that particular provision, Commissioner Ware. This

14 is a statement which is added.

15 COMMISSIONER WARE: But what do you strike?

16 COMMISSIONER KYNES: We strike "provided that"

17 on line 14. We strike "provided that the Board of

18 Regents shall be," and say -- it should read: "The

19 Board of Regents shall operate, regulate, and be fully

20 responsible for the management of the state university

21 system, subject to the overall coordinating responsi-

22 abilities of the State Board of Education and."

23 Then it goes on and continues just as it was.

24 COMMISSIONER WARE: Commissioner, that takes

25 out the language that says "provided the Board of


oil
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1 Regents shall be subject to general law"?

2 COMMISSIONER KYNES: No, it doesn't. It

3 stops short of that. On line 15 it strikes just the

4 first two words.

5 CHAIRMAN BARKDULL: Are there further

6 questions? Commissioner R. Moore.

7 COMMISSIONER R. MOORE: What relation will

8 this give? Will the State Board of Education be the

9 top party .or the Board of Regents? What is the

10 relation? Does this clarify that?

11 COMMISSIONER KYNES: Yes, sir, it does. The

12 State Board of Education has the overall coordinating

13 responsibility for the entire system and such super-

14 vision as is provided by law.

15 What this does, in effect, is give the State

16 Board of Education the authority to supervise in

17 carrying out the responsibilities mandated by the Board

18 of Education provision as the coordinating agency of

19 public education.

20 CHAIRMAN BARKDULL: Are there any further

21 questions of Commissioner Kynes? Does any member of

22 the Commission want to be recognized as an opponent?

23 Is there any member of the Commission to be noted as

24 voting opposed to the amendment? The Clerk will please

25 cast the unanimous vote of those members present for the
25e








1 amendment.

2 Read the next amendment.

3 MR. SECRETARY: By Commissioners Burkholz and

4 Oliva, on Page 106, line 3, strike all of the line --

5 withdrawn.

6 By Commissioner D'Alemberte, on Page 106,

7 lines 6 through 9, strike the first sentence.

8 CHAIRMAN BARKDULL: What is that page

9 reference again?

10 MR. SECRETARY: Page 106, lines 6 through 9.

11 CHAIRMAN BARKDULL: The Commissioner is

12 recognized to explain the amendment.

13 CHAIRMAN D'ALEMBERTE: Now, Commissioners,

14 this is the subject matter that was discussed on the

15 last day we met up here during our last session. It

16 relates to the ability of the legislature to establish

17 school districts in a size less than a full county size.

18 It is an issue that was addressed by, I believe it's

19 Mr. Carroll, the superintendent of schools in Palm

20 Beach County.

21 I frankly have argued -with myself both ways.

22 I thought yesterday I would not even offer this

23 amendment. And if I had thought a little more, I

24 probably would have withdrawn it. I think it has some

25 perils.-








1 I don't think it is a peril now that we are

2 going to see our school system resegregated.

3 CHAIRMAN BARKDULL: Just a minute. Would the

4 Commissioners take their seats so the other

5 Commissioners can hear this explanation.

6 CHAIRMAN D'ALEMBERTE: I have about concluded

7 the explanation. I don't want to argue this extensively

8 I think this is a policy option that is available to

9 you.

10 I can see many reasons to be in doubt. If

11 the legislature were every to pick up this issue -- if

12 you were to authorize it and the legislature were to

13 pick it up, there would be many problems the legis-

14 latute would have to solve in the process. They would

15 have to figure out some other complicated problems in
15

16 financing. I don't believe those are impossible to

17 solve. They may be desirable.

18 I guess I am worried in counties like my own --

19 and this is going to startle some people to hear,

2 perhaps -- but I am worried in counties like my own that
20

2 the school board has such a large area of responsi-

2 ability that citizens feel somewhat disaffected. And we
22

2 would benefit in local government by seeing more
23

elected school board members. I think it would really
24

involve citizens, again, at the local level. I think
25








1 it would be a good thing.

2 So, I will have no further argument. And I

3 will waive closing, in fact..

4 CHAIRMAN BARKDULL: Commissioner Burkholz is

5 recognized as an opponent. Commissioner Birchfield as

6 a proponent.

7 Does anybody else desire to be heard?

8 Commissioner Burkholz as an opponent.

9 COMMISSIONER BURKHOLZ: Ladies and gentlemen,

10 this is another very serious matter. Commissioner

11 D'Alemberte did raise it the last day of our previous

12 regular meeting session.

13 I suggest to you that his argument that the

14 legislature could deal with the fiscal problems was

15 probably simplistic. We are just in the process of

16 beginning to equalize educational expenditures between

17 67 counties. That is based upon ad valorem property

18 tax rolls. So, we spent a lot of time today talking

19 about ad valorem property taxation.

20 I want to remind you that there are close to

S21 eight hundred million.dollars in property taxes

22 financing the schools of this state in 67 school

23 districts. It would be extremely difficult, if not

24 impossible, to equalize more school districts. I

25 think you also ought to know interms of Commissioner








1 D'Alemberte's home county, which is my home county,

2 the largest in the state and the sixth largest in the

3 nation, the school district in Dade County, our

4 decentralization of school districts has been --

5 CHAIRMAN BARKDULL: Let's give the Commissioner

6 your attention, please.

7 COMMISSIONER BURKHOLZ: Our decentralization

8 of school districts to bring people closer to the

9 school districts has just been drawn back from. Instead

10 of six areas within our district, we now have four.

11 And the decentralization just doesn't work.

12 In New York City -- and I had the rare

13 pleasure, or experience I think is a better word, of

14 spending one day in New York City when they were

15 electing the members of their 37 decentralized school

16 boards. You talk about confusion on election day and

17 chaos. You talk about -- we have had many speeches

18 on this floor about people not knowing who they were

19 voting for. You talk about proventialism and ward

20 politics.

21 I suggest to you that those 37 school boards

22 in New York City have not substantially improved either

23 the people's relationship to their schools or the

24 quality of education. I urge you to reject this

25 proposal. It is far-reaching. It has not been given








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study. I can tell you without exception the

decentralization experience and experiments throughout

this country over the last eight to ten years, one by

one, are being abandoned -- one, because they are not

cost effective; two, because they are not improving

the quality of education; and, three, they are not

consistent with the equalization requirements of the

Supreme Court decisions.

COMMISSIONER DeGROVE: Will the Commissioner

yield?

CHAIRMAN BARKDULL: She yields.

COMMISSIONER DeGROVE: Just to clarify my

understanding of this. We have had some proposals like

this in our own county, Palm Beach County.

COMMISSIONER BURKHOLZ: You have.

COMMISSIONER DeGROVE: I have objected to

those proposals because I fear that the south end of

the county, composed of Boca Raton and other areas,

just wants to separate themselves off so that they can

give more funding to their smaller school districts and

leave the other now smaller school districts in an

even tougher position than it is now.

I want to ask you: Do you think this proposal

has any safeguards in it to assure that as we get all

these smaller school districts back again in the state,
1 bL


9: OO.Cp5j:
W a '; ee
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I J J -








1 that we thought we got rid of in a progressive move of

2 the '40s, of fiscal inequities among school districts?

3 COMMISSIONER BURKHOLZ: No. I think, as a

4 matter of fact, this proposal would encourage fiscal

5 inequities. I think your county, Commissioner, is one

6 that would take advantage of it and one in which

7 equalization between the south and the central and the

8 north part of the county would be most difficult in

9 terms of an ad valorem tax base.

10 COMMISSIONER DeGROVE: Would you agree that

11 unless and until the fiscal inequities problem is

12 clearly and certainly handled, we ought to vote against

13 this?

14 COMMISSIONER BURKHOLZ: I sure do.

15 COMMISSIONER BARKDULL: Commissioner

16 Birchfield as a proponent.

17 COMMISSIONER BIRCHFIELD: Mr. Chairman and

18 members of the Commission, equalization or lack of

19 equalization in today's market is a legislative

20 function. So, let's get that one out in the open and

21 know that that is a horrible that ain't all that bad

22 if you have seen the whole show. And this provision

23 is not self-executing.

24 It would be permissive and would give the

25 legislature flexibility to create a district within a







1 county, and would eliminate the requirement that school

2 districts be in multiples of county units.

3 So, the equalization formula aspect of this

4 thing can be dealt with at the legislative level. I

5 don't believe that they seriously suggested to you,

6 or if they did, they would revisit that if they had

7 another opportunity to explain.

8 That ain't a problem, or that is not a

9 problem that does not already exist. One of the first

10 books I ever read without pictures in it was a book

11 called "My Years With General Motors" by a fellow named

12, Sloan. And he was the big chairman of General Motors.

13 And General Motors at that time had Chevrolet,

14 Oldsmobile, Cadillac, Pontiac -- and maybe one or two -

15 GMAC.

16 And Mr. Sloan was interested in management of

17 a business. And they tried all kinds of models. That'

18 what economists and business administration people called

19 it, to be models. And he finally came to the conclusion -

20 and I think rightly so -- that a division as big as

U 21 Chevrolet would not enjoy any more economies of scale

22 if you added to it Oldsmobile or Pontiac, that they had

23 done about as many as they could enjoy.

24 And, in fact, if you made it any bigger, he

25 couldn't hire anybody smart enough to run At...N.mL

a D oqa0 i








1 that is what is happening in the State of Florida.

2 We've got county school systems that are so big we

3 can't hire anybody smart enough to run them. Or it

4 may well get that way.

5 I would suggest that some of them are already

6 there. Now, what can a legislature do about that under

7 today's constitution? What can a legislature do to

8 address the management problems of school districts

9 in terms of its size?

10 The language in today's constitution makes it

11 pretty clear that there ain't anything you can do

12 because you are stuck with dealing with school districtE

13 that are at least as large as counties. The only way

14 out is to add another county to it.

15 I yield.

16 COMMISSIONER DOUGLASS: Would this have any

17 effect, or is it designed to have any effect on the

18 size of a bargaining unit, for example, that might be

19 involved? Are you suggesting, for example, that in

20 some counties the bargaining unit may be so big that

21 it is unwieldy and doesn't work, and by dividing them

22 it might work more effectively? I know you are not

23 for bargaining units.

24 COMMISSIONER BIRCHFIELD: I hadn't thought of

25 that. And frankly I don't feel we have enough








1 experience in today's market with collective

2 bargaining to know. I don't know whether this helps

3 or hurts which position. It's kind of everybody is

4 going to find out together.

5 I am really dealing in terms of the management

6 of it and the standard of controls. And I frankly

7 think we may well reach the saturation point within the

8 next 20 years. And I would suggest to you that the

9 lobby in Tallahassee in the legislature is more than

10 the legislature can overcome in terms of putting this

11 question on the ballot. I would suggest to you that

12 you ought to give some thought to this as providing an

13 alternative for the legislature to consider.

14 Now, we recently had a little group over in

15 Jacksonville called the Jacksonville Citizens Council

16 on Involvement or Council on Community Involvement or

17 something like that. It was composed of a broad cross

18 section of the community -- blacks, business, labor,

19 housewives, educators, and uneducated.

20 They took testimony in our county day after

21 day after day. They prepared a report which was

22 approved unanimously by this committee recommending

23 that this be made available in Jacksonville. Our big

24 concern there was -- and Commissioner D'Alemberte

25 alluded to it in his remarks -- what would this do to








1 our efforts to desegregate the schools.

2 Now, in Jacksonville that would not really be

3 a problem because we cannot do anything in our school

4 system without the approval of a Federal judge, who is

5 also the prison warden at Raiford, county school

6 superintendent, and does a lot of other collateral

7 duties. So, that ain't no big problem in Jacksonville.

8 I would suggest to you that if it got to be a

9 problem anywhere else, your district judge would also

10 put on another hat and preclude that from happening.

11 I urge you to support Commissioner

12 D'Alemberte's proposal.

13 CHAIRMAN BARKDULL: Will the gentleman yield

14 to Commissioner Burkholz?

15 COMMISSIONER BIRCHFIELD: I yield.

16 COMMISSIONER BURKHOLZ: Commissioner

17 Birchfield, in terms of the growth and size, would you

18 believe, sir, that all of the projections show a

19 stabilization of the growth of our school population

20 in the elementary and secondary schools? And I think

21 your fear for additional growth is not supported by the

22 facts and projections of all of the experts in that

23 area. Our school systems are, in fact, getting smaller

24 rather than larger in terms of numbers of students.

25 Would you believe that?


I O I
25'








1 COMMISSIONER BIRCHFIELD: I would believe

2 that, Commissioner Burkholz. I will not suggest to

3 you that population and growth are to be declining in

4 the State of Florida as homogeneous in relation to the

5 other counties. You may well have a growth area

6 county that would be faced with this problem, whereas

7 you would have another area that is in decline.

8 COMMISSIONER BURKHOLZ: I don't believe there

9 are those substantial variations in the projections,

10 but I think you are probably right in terms of

11 nonspecifics.

12 COMMISSIONER N. REED: Will the gentleman

13 yield?

14 CHAIRMAN BARKDULL: He yields.

15 COMMISSIONER N. REED: Even believing

16 Commissioner Burkholz's excellent researched figures,

.17 do you believe that there are certain county school

18 districts that are too big right now?

19 COMMISSIONER BIRCHFIELD: That is what is

520 bothering me.

21 COMMISSIONER N. REED: And that there are

22 more than one?


23 COMMISSIONER BIRCHFIELD: I can only deal

24 with one, but I am fairly well convinced that one in

25 the northeastern part of the state is too big.

| p i .. y








1 COMMISSIONER N. REED: And would it not be

2 possible that if the others share their concern through

3 legislative matters, it would be up to the legislature

4 to split them into one, two, three, four, five districtE

5 COMMISSIONER BIRCHFIELD: Yes, sir.

6 COMMISSIONER N. REED: Would that not also

7 represent what the local people want?

8 COMMISSIONER BIRCHFIELD: The study in

9 Jacksonville indicates that would be what the local

10 people who have thought about the problem would

11 conclude.

12 CHAIRMAN BARKDULL: Commissioner D'Alemberte

13 to close. The Commissioner waives his time. Call the

14 roll.

15 (Whereupon, a voice vote was taken.)

16 MR. SECRETARY: 12 yeas, 19 nays.

17 CHAIRMAN BARKDULL: By your vote the amendment

18 fails adoption. Read the next amendment.

19 MR. SECRETARY: By Commissioner D. Reed.

20 CHAIRMAN BARKDULL: Commissioner D. Reed is

21 not in the room.

22 COMMISSIONER D. REED: Yes, he is.

23 CHAIRMAN BARKDULL: You were so quiet I

2 didn't know you were here.

25 MR. SECRETARY: By Commissioner D. Reed, on








1 Page 106, lines 6 through 9, strike the entire sentence

2 and insert: "The state shall be divided into school

3 districts in a manner provided by law."

4 CHAIRMAN BARKDULL: The Commissioner is

5 recognized to explain the amendment.

6 COMMISSIONER D. REED: Mr. Chairman and

7 members of the Commission, basically what this language

8 is intended to do -- and I hold no grief for this

9 language -- is to soften the constitutional language

10 on the size the school districts must be. The effect

11 of my language would be to permit school districts

12 to be smaller in size than counties; but however that

13 would be done, it would have to be done by the legis-

14 lature by law.

15 CHAIRMAN BARKDULL: Commissioner Reed, were

16 you out of the room a moment ago?

17 COMMISSIONER D. REED: No, I was out talking

18 to Don Frye.

19 COMMISSIONER BURKHOLZ: Point of order,

20 Mr. Chairman.

21 CHAIRMAN BARKDULL: State your point.

22 COMMISSIONER BURKHOLZ: I believe that the

23 Commission just dealt with that issue and defeated it

24 about two minutes before Commissioner Reed came back

25 into the room.
2i5^Jr^*








1 COMMISSIONER D. REED: I am glad I came back

2 in the room. I would like to keep going with my

3 amendment.

4 CHAIRMAN BARKDULL: His amendment is a little

5 different, although I agree it appears to be in

6 substance about the same.

7 COMMISSIONER D. REED: Was it badly defeated?

8 CHAIRMAN BARKDULL: What was the last vote?

9 COMMISSIONER BURKHOLZ: 11 to 19.

10 COMMISSIONER D. REED: Well, with me here

11 that would make it 12 to 19. That wouldn't be nearly

12 as bad. I would like to try, if I can keep going.

13 COMMISSIONER BURKHOLZ: Mr. Chairman, would

14 you rule on the point, please.

15 CHAIRMAN BARKDULL: The point of order is not

16 well taken on account of the wording of the proposed

17 amendment.

18 I will ask Commissioner Reed to cut his

19 opening remarks short because we have just had this

20 same thing explained for the last ten minutes.

21 COMMISSIONER D. REED: Did you talk about

22 the people who came to the Ft. Pierce meeting?

23 CHAIRMAN BARKDULL: You will have an

24 opportunity to close. This is on explanation of the

25 amendment.






67

1 COMMISSIONER D. REED: The explanation is

2 very simple. We leave the number of districts up to

3 the legislature to make -- if they want to make one

4 school district out of the entire state or 5,000 school

5 districts or whatever the legislature would want to do.

6 It seems that it is an undue restriction to place in th

7 constitution to limit school districts to the size of

8 counties when some counties in this state are not as

9 large as some small towns in other parts of the state.

10 I will reserve some time to close.

11 CHAIRMAN BARKDULL: Does anybody else desire

12 to be heard on this amendment? Commissioner Reed is

13 recognized to close.

14 COMMISSIONER D. REED: The reason for this

15 particular proposal has nothing to do with busing.

16 It has absolutely nothing to do with busing. It has

17 nothing to do with transportation of students to

18 achieve imbalance. It has nothing to do with anything

19 other than the fact that the people in the county in

S20 which I live, in Palm Beach County, are convinced that
0

S21 there needs to be an approach to the size of school

22 districts which limits the size or could limit the size

23 under criteria established by the legislature to smaller

24 counties.

25 There is optimum size, I suppose, of the
25







1 school districts. And I don't know what it is. What I

2 hear in my county is that Palm Beach County as one

3 school district is too large. It is too large from

4 the standpoint of geographic areas. There are a bunch\'

5 of assistant superintendents and all kinds of other

6 bureaucratic administrative procedures by which they

7 essentially attempt to avoid the fact that it is one

8 school district when it ought to be maybe two or three.

9 I will yield.

10 COMMISSIONER BURKHOLZ: Commissioner Reed,

11 would you believe that all the testimony over the last

12 five years has indicated when a district is too small

13 it is unable to provide the breadth and scope of the

14 program for the students. And in an effort to deal

15 with that, the legislature has produced something

16 called the sparsity factor. It has never been funded,

17 but the problems we have heard around the state over

18 the last five years are from districts where popu-

19 lations are not dense enough, rather than the other.

20 COMMISSIONER D. REED: This amendment would

21 not stop that from occurring.

22 COMMISSIONER BURKHOLZ: I think it would

23 encourage it.

24 CHAIRMAN BARKDULL: Hold on a minute. I

25 can't hear you. There is so much noise going on in



DB: oo-S








1 various parts of the room. Excuse me. Go ahead.

2 COMMISSIONER D. REED: In Palm Beach County,

3 for example, the Boca Raton High School is still on

4 double sessions. The people in my area are convinced

5 that if they or a portion of Palm Beach County were in

6 a separate school district, they would vote to fund

7 that school district at a higher rate than any vote

8 that could be taken countywide would fund. And the

9 people in my area feel that they are being damaged

10 and injured in the public school system, and the public

11 school system is being hurt by the fact that the system

12 too large.

13 Now, I understand that you are an expert,

14 Commissioner Burkholz, but I don't think that the

15 constitution is the place to determine how the school

16 system of this state is going to be administered.

S17 That should be left up to the legislature. And all

18 this amendment does is tell the legislature that it has

19 the authority if it wants to, to make school districts

20 whatever size on whatever formula it might want from
20

21 time to time to do.

22 We are not -- in 1968 when that language went

23 into the constitution, we were not so sacrosanct even

24 then to think that we, the Constitution Revision

25 Commission of 1966-67 -- and the legislature then to








1 let this go in -- were so special. I don't know how

2 this got in. I guess it had something to do with

3 racial considerations at the time.

4 But as you well know, merely the creation of

5 school districts isn't enough on any kind of a racial

6 balance thing to provide for or prohibit busing.

7 And in that instance the legislature could provide

8 prohibitions right in the criteria for the size of the

9 district in any event.

10 I guess you have already made up your mind,

11 and the folks are now back in Palm Beach County and

12 other areas of the state who would like a smaller

13 school district so that they can get down, so that the

14 district is small enough so that if a parent of a child

15 who is in the public school system can come into the

16 school board and sit in front of the school board inste d

17 of having to wade through 15,000 other people to get

18 to talk to that school board because it is so cotton-

19 picking big. They might have a chance to get some

20 response from their school board by having a smaller

21 district.

22 If you are not in favor of it, vote no.

23 CHAIRMAN BARKDULL: The gentleman yields the

24 floor. Call the roll.

25 (Whereupon, a voice vote was taken.)






71

1 MR. SECRETARY: 10 yeas, 22 nays.

2 CHAIRMAN BARKDULL: By your vote you have

3 defeated the amendment. Read the next one.

4 MR. SECRETARY: By Commissioners Brantley and

5 Kynes, on Page 107, line 4, strike the new language.

6 CHAIRMAN BARKDULL: Commissioner Brantley

7 is recognized to explain the amendment.

8 COMMISSIONER BRANTLEY: Mr. Chairman and

9 Commissioners, this proposal, or this language for

10 school funds to be used for a state self-insurance

11 program was added by Commissioner Kynes. We have all

12 done some further work on it. And we find that, number

13 one, it is not necessary; and, number two, we remove

14 the two words from the proposed constitution.

15 CHAIRMAN BARKDULL: Does anybody desire to

16 be heard in opposition to this amendment? Does anybody

17 desire to be recorded -- excuse me, Commissioner Kynes.

18 COMMISSIONER KYNES: I would just like to

19 explain it. I had represented to the Commission at

20 that time some facts which I find were highly inaccurate

21 I received those from the State Department of Education.

22 And I would like to apologize to the Commission.

23 CHAIRMAN BARKDULL: Does anybody desire to

24 be heard on this amendment? Does anybody desire to be

25 recorded as voting in the negative?








1 COMMISSIONER SHEVIN: I would just like --

2 CHAIRMAN BARKDULL: Commissioner Shevin.

3 COMMISSIONER SHEVIN: I would like some more

4 explanation on it because when we were first voting on

5 this, I thought it was a way in which school districts

6 could save dollars on insurance coverage. Now, if that

7 is not so, then I have no objection to voting yes for

8 the amendment to delete it. And I understand that the

9 insurance industry is not particularly happy with it,

10 but I think our main objective should be to do what is

11 in the best interest of the school districts, and

12 whether or not we can save some dollars for those

13 school districts.

14 COMMISSIONER KYNES: Thank you, Mr. Shevin.

15 I would be glad to reply to that. I think I did

16 represent at the time when I proposed this revision

17 that it was authorized under present law. And the

18 legislature can speak for this issue. I understand

19 there is a bill pending presently to do just that.

20 We in Florida do have presently a self-

21 insurance fund on buildings and contents for community

22 colleges and universities, but not for the public

23 school system.

24 I would like to state publicly that I favor

25 strongly that the legislature inquire into that subject,








1 and they do start the ball rolling for a self-insurance

2 fund. I disagree with some of my friends in the

3 insurance industry.

4 The Style and Drafting Committee raised an

5 issue as to whether or not it was mandatory -- mandatory

6 as it relates to the use of the principal, discretionary

7 perhaps as it relates to the interest or income from

8 the principal. The legislature can speak to this

9 subject.

10 I hope they will. My problem with it, I had

11 represented to the Commission that over in the past 20

12 years that only 27 -- the claims paid by the insurance

13 industry in Florida represented 27 percent plus the

14 premiums paid. And I found out subsequent to that

15 that is not the fact. And it is a very complicated

16 subject.

17 There is no way for the public school system

18 in Florida at this point, Commissioner Shevin, to go

19 into a complete 100 percent self-insurance program.

20 It is going to take layers of cover over and above any

21 self-insurance program that they have.

22 For example, in Hillsborough County -- and I

23 did check this independently of the figures I received

24 from the State Department of Education -- they had

25 represented in the past six years that claims paid were








1 $15,000. And an independent check by me in Tampa

2 indicated that claims paid exceeded $1,350,000 over a

3 six-year period.

4 What I am really saying to you is that I think

5 we would be proceeding -- while I would like to

6 encourage us -- see the people of Florida encourage the

7 legislature to do that, it is not needed. And I think

8 that there is some problem today with the language as

9 pointed out by the Style and Drafting Committee,

10 whether it is mandatory.

11 I think the legislature is going to have to

12 speak to it in their own discretion as it relates to

13 the soundness of such a program. That is where it

14 should be left.

15 CHAIRMAN BARKDULL: Do any other Commissioners

16 desire to be heard on the amendment? Do any

17 Commissioners desire to have their votes recorded in

18 the negative? The Clerk will instruct --

19 MR. SECRETARY: No yeas, no nays.

20 CHAIRMAN BARKDULL: Read the next amendment.

21 MR. SECRETARY: No further amendments in

22 Article 9.

23 CHAIRMAN BARKDULL: Let's go to Article 10.

24 COMMISSIONER AUSLEY: Mr. Chairman and member

25 of the Commission, I would like to introduce a Page.








He has been with us today.

(Discussion off the record)

CHAIRMAN BARKDULL: All right, Commissioners.

We are on Article 10.

MR. SECRETARY: They just handed me an

amendment on Article 9.

CHAIRMAN BARKDULL: Then we are on Article 9.

MR. SECRETARY: By Commissioners D'Alemberte

and Collins, on Page 104, lines 22 -- lines 26 through


28, strike all of said lines and insert: "The

management, supervision, and coordination of the

state system of public education as prescribed by law

is not inconsistent with the provisions of Article 9,

Section 7."

CHAIRMAN BARKDULL: Commissioner Collins is

recognized to explain the amendment.

COMMISSIONER COLLINS: Mr. Chairman and

Commissioners, this deals with the supposition, of

course, that the Cabinet will be abolished. And it

deals with the structure of the State Board of

Education. I don't think that this amendment extends

any responsibility there that was not fully intended

by the Commission. I don't think that in the present

form as it is spelled out, as it should be.

I have talked with Commis.sioner D'Alemberte,




I-V I
H U^92
.^ r*w~ ~








1 who has sponsored this basic proposal, and Commissioner

2 Kynes who has sponsored the Board of Regents proposal,

3 which also has some relationship with this. Both of

4 them are in accord that this is a good and proper

5 change to make.

6 As it reads now, it provides that the

7 responsibility of the Board shall be for the coordi-

8 nation of the state system of public education. Now,

9 nobody knows just what coordination could be determined

10 to mean, but there is a very relatively small segment

11 of the operations of the State Department of Education

12 that deals with coordination now. And there should be

13 some broader language.

14 I have used some broader language, but I will

15 provide that that would be as provided by law. So, it

16 would be up to the legislature to spell out the details

17 of those responsibilities. But this would give them

18 the overall range of the need for that spelling out.

19 And it also has an express provision that nothing in

20 this would be in conflict with the provision over in

21 Section 7 dealing with the Board of Regents.

22 I move its adoption.

23 CHAIRMAN BARKDULL: Will the gentleman yield

24 to Commissioner Kynes? No?

25 Commissioner Hollis, a aa-. -in n? _






77

1 COMMISSIONER HOLLIS: Commissioner, you

2 indicated what this -- what this would do when the

3 Cabinet is abolished. I know the power structure is

4 going to work very hard in one way, but I think the

5 people are going to prove to you that they don't want

6 to abolish the Cabinet.

7 What is going to happen when the people really

8 speak and they preserve the Cabinet? Then what is going

9 to happen?

10 COMMISSIONER COLLINS: It just becomes moot.

11 It has no application at all.

12 COMMISSIONER HOLLIS: It is going to be --

13 COMMISSIONER COLLINS: In the event they do -

14 I started off saying this would be moot. If they do

15 approve this, why they would need this. If they don't

16 approve it, it becomes moot, very much in the same way

17 as the proposal made by Mr. Ausley the other day.

18 CHAIRMAN BARKDULL: Commissioner Kynes, for

19 what purpose do you rise?

20 COMMISSIONER KYNES: I waive.

21 CHAIRMAN BARKDULL: Are there Commissioners

22 that desire to speak in opposition of this amendment?

23 Do any Commissioners desire to be recorded as voting in

24 the negative on this issue? The Clerk will note a

25 unanimous vote in favor. *___-,_
I -_ I-." f t~ tr I








1 COMMISSIONER BURKHOLZ: I don't want to be

2 recorded until I have a chance to look at this.

3 CHAIRMAN BARKDULL: Do you want to vote no?

4 COMMISSIONER BURKHOLZ: I don't want to vote

5 at this time.

6 CHAIRMAN BARKDULL: She passes.

7 MR. SECRETARY: 32 yeas, no nays.

8 CHAIRMAN BARKDULL: Take up the next

9 amendment.

10 MR. SECRETARY: Article 10, by Commissioners

11 Brantley and Platt, Amendment No. 1, Page 112, lines

12 23, 24; strike all of said lines except the title,

13 and reinsert stricken language on lines 25 through 27.

14 CHAIRMAN BARKDULL: That was by Commissioner

15 Brantley and who?

16 MR. SECRETARY: Commissioners Brantley and

17 Platt.

18 CHAIRMAN BARKDULL: Commissioner Platt is

19 recognized to explain the amendment.

20 COMMISSIONER PLATT: The purpose of this

21 amendment is to reinstitute the present language of

22 the constitution, which is the 1968 Constitution dealing

23 with sovereign immunity. It would strike the language

24 that this Commission has -- as a housekeeping measure.

25 It is to eliminate the language that this Commission








1 has passed and to reinstitute the present language of

2 the 1968 Constitution.

3 CHAIRMAN BARKDULL: This is a noncontroversial

4 matter. Commissioners Douglass, Spence, and a few

5 others want to be heard in opposition. Douglass, Spence

6 McCrary -- who else desires to be heard on this

7 amendment? Mathews. Anybody else? Brantley. Platt

8 in favor. James in favor. D'Alemberte opposed.

9 Overton in favor -- you know, you all get to vote.

10 COMMISSIONER SPENCE: That isn't enough.

11 CHAIRMAN BARKDULL: I want to be sure I've

12 got everybody listed that wants to be listed. I have

13 as opponents: Douglass, Spence, McCrary, and

14 D'Alemberte. I have as proponents: Mathews, Brantley,

15 James, Platt, and Overton. Is there anybody else who

16 desires to be heard?

17 As a proponent, Commissioner Mathews.

18 COMMISSIONER MATHEWS: Mr. Chairman and

19 Commissioners, I hope I set a good example, and that

20 no one will exceed the two minutes I am going to use.

21 Let me point out to you, people have accused

22 me -- and correctly so -- of voting all over the

23 landscape on this thing. And I have. I have

24 consistently done one thing. I have voted against

25 retaining sovereign immunity in this state because you







1 don't have sovereign immunity in this state now.

2 Sovereign immunity means that there is no way you can

3 assume the king with the government.

4 Now, under the present language -- and I have

5 been hearing that we should leave so many of these

6 things to the legislature. We have taken a lot of

7 things out of the constitution now. So, we can leave

8 it to the wisdom of the legislature. The present

9 constitution -- we put this in before when we did

10 abolish sovereign immunity back in '68. It says a

11 provision may be made by general law for bringing suits

12 against the state as to all liabilities now existing

13 or hereafter originating.

14 Now, I thought that the legislature had gone

15 to hell after I got out. But after listening to the

16 debates for the last three years -- three days -- I

17 know how wise the legislature is. And they are going

18 to provide these things.

19 What is bothering me about some of the

20 changes -- I am not sure without this amendment how

21 the court would construe the proposal that Commissioner

22 Barkdull and I got adopted before to do away with what

23 went too far, in my judgment, or what had previously

24 been adopted under the sponsorship of Commissioner

25 Douglass. But I think the legislature right now, subject







1 to court decision and as the law is being made, places

2 restriction on such things as malpractice suits --

3 and Commissioner Spence and I are making a lot of money

4 out of those now litigating the subject -- and in other

5 fields.

6 The legislature is responding to modern

7 conditions. It is going to make a lot of changes in

8 these things. I think the legislature should have the

9 same flexibility with reference to suits against the

10 state as it is trying to assert with reference to other

11 things. I just think we will be healthier during this

12 period of evolving state court decisions construing

13 the law to leave the constitution like it is.

14 I will point out one other thing. This is

15 not the main reason, but it is a consideration. There

16 was a lot of literature that was spread around that

17 there would be no effect on impairing the fines and

18 credit of municipalities and counties and so forth

19 if this were adopted. Mr. William E. Sweeney, director

20 of the Division of Bonds and Finance has written to

21 Chairman D'Alemberte to the effect that such a proposal

22 could severely impair the finances and credit of many of

23 the small issuers in our state. "For any issuer, the

24 complete elimination of sovereign immunity would impose

25 confusion and complex disclosure..problmss.". _

Do Ook9 l


81








1 So, I ask you to reconsider this thing and

2 just leave the constitution like it is and up to the

3 wisdom of the legislature as to how these suits against

4 the state are -- city and county -- are going to be

5 brought. I yield.

6 COMMISSIONER SPENCE: Commissioner Mathews,

7 would you believe me if I told you that I have got a

8 copy of Mr. Greenfield's letter here where he states

9 that he has called somebody in New York. And that I

10 have called the head of the municipal bond department

11 in New York, Loeb and Rhoades, at Area Code

12 212-742-7534 -- all day long to ask this gentleman,

13 who is the head of the municipal bond department for

14 this agency in New York; and that he won't come to the

15 phone. And his secretary advises me he is there, but

16 after I stated my business and wanted to know if he

17 had looked at Moody, which is the Bible in this area --

18 that I couldn't persuade this good gentleman, who must

19 be a fraternity brother of Mr. Greenfield, to take the

20 long-distance phone call, which I was willing to pay.

21 Would you believe that.

22 COMMISSIONER MATHEWS: Yes, sir, and I could

23 give you some equally sad tales when I have been trying

24 to round up some people and they won't talk to me.

25 COMMISSIONER SPENCEiHave you read








1 Mr. Tony Cunningham's letter which was sent to the

2 Chairman of our group where he had called New York,

3 got all the figures from Moody -- the Bible -- not

4 somebody's opinion out of this fraternity here -- gone

5 to the source, read books -- and doesn't that

6 information totally refute what we have from

7 Mr. Greenfield?

8 COMMISSIONER MATHEWS: No, sir. It is just

9 like any conflicting testimony. Whether it refutes

10 or nonrefutes is up to the vote of the highest court of

11 the state, which today is the Constitution Revision

12 Commission. If you don't believe me, ask Commissioner

13 Overton.

14 COMMISSIONER SPENCE: May I please ask you

15 one more question.

16 COMMISSIONER MATHEWS: Yes. It's a lot of

17 fun; isn't it?

18 COMMISSIONER SPENCE: Yes. I have lived for

19 this day. I have suffered through ad valorem, school

20 taxes, and bonds and everything else.

21 Do you see any inconsistency,-Commissioner

22 Mathews, in the statement on Page 110 in our handbook

23 where it states that: "No private property shall be

24 taken except for a public purpose and with full compen-

25 station if you take somebody's 1- r-_ -'" from them?








1 Do you see any inconsistency between paying somebody

2 the full dollar for taking their land away from them

3 and not paying them the full dollar when you take their

4 wife or child or arm or leg away from them?

5 COMMISSIONER MATHEWS: You may be sorry you

6 asked that question. Yes, I do. I happened to be

7 Chairman of the Citizens Committee on Eminent Domain

8 when Commissioner Collins was governor. And I was a

9 minority on that commission when they saw the

10 inconsistency, and they wanted to take away, like the

11 other 49 states have, the full compensation feature,

12 like Florida has, where attorneys' fees are on top of

13 the award.

14 Now, brother, I join with you on trying to

15 maintain that inconsistency and not try to eliminate

16 that full compensation in eminent domain cases. And I

17 think you feel the same way.

18 COMMISSIONER SPENCE: Yes, sir.

19 CHAIRMAN BARKDULL: Commissioner Annis, for

20 what purpose do you rise?

21 COMMISSIONER ANNIS: To ask a question of

22 Commissioner Mathews.

23 CHAIRMAN BARKDULL: He yields the floor.

24 COMMISSIONER ANNIS: Commissioner Mathews, I

25 gather from your presentation #eAe4h- iPerailature is








1 addressing itself to the problem of just compensation

2 when municipalities and other instruments of government

3 are involved; is that correct?

4 COMMISSIONER MATHEWS: That is correct.

5 COMMISSIONER ANNIS: Is there any reason

6 why if we eliminate this sovereign immunity that the

7 legislature still cannot address itself to the same

8 problem?

9 COMMISSIONER MATHEWS: If I knew the answer

10 to that, and clearly had an expression from the court

11 how they would interpret that language, maybe we

12 wouldn't need all this debate. But I am concerned that

13 the court, not always being predictable, that if you

14 change the present language, which already ten years

15 ago eliminated sovereign immunity, and the specific

16 spelling out that the legislature has the right to

17 regulate this, somebody not paying close attention to

18 these debates might make a mistake and say that was

19 the real thrust that Commissioner Spence wanted, and

20 take away the power of the legislature to do anything

21 with reference to suits against municipalities.

22 You and I don't want that to happen with

23 reference to medical malpractice or doctors or things

24 like that. And that might be the next step.

25 COMMISSIONER ANNIS: One final question.







1 COMMISSIONER MATHEWS: Yes, sir.

2 COMMISSIONER ANNIS: Do you feel it is fair

3 to give discrimination in favor of a municipality in

4 the event of their compensation for just injuries, as

5 opposed to the members who make up that municipality,

6 the citizens of Florida?

7 COMMISSIONER MATHEWS: No, sir, I don't think

8 that is any fairer than the inequities that now exist.

9 When you go against an average guy and you have an

10 accident, and you are severely injured, if he doesn't

11 have big insurance coverage, you're not going to

12 collect anyway.

13 Now, that is not true with reference to

14 municipalities. If you collect against a municipality,

15 if you get a judgment, you're going to collect it,

16 whether they have insurance or not, because they will

17 have to go tax the citizens to pay it. But that isn't

18 true with reference to the average person.

19 I think I've got a desk drawer full of

20 judgments against people that either were under insured

21 or didn't have enough or didn't even have -- were

22 people who didn't have the uninsured motorists coverage.

23 You just can't collect blood out of a turnip.

24 The municipality is not a turnip.

25 COMMISSIONER APTHORP: Because some people are


0: I O Wf
on r k^j


I I I








1 unable to meet such judgments, is that any reason why a

2 municipality who has a total capability of meeting such

3 judgments shouldn't do so? If the cause is just and

4 the finding is equitable?

5 COMMISSIONER MATHEWS: You know, it is almost

6 like arguing whether anybody ought to have to go to a

7 medical mediation panel before having a right to trial

8 by jury. Why should they have the right -- I mean I am

9 taking your question and giving you the arguments. Why

10 should they have a right to delay that trial another

1i step and all that when you are in an automobile

12 accident if it is the negligence of the doctor?

13 COMMISSIONER ANNIS: The point is the

14 mediation panel in no way interferes with your right to

15 go to court.

16 COMMISSIONER MATHEWS: Well, that is what I

17 have been arguing.

18 COMMISSIONER ANNIS: Or get those damages.

19 COMMISSIONER MATHEWS: But there are those who

20 disagree.

21 COMMISSIONER ANNIS: Thank you.

22 CHAIRMAN BARKDULL: Commissioner Douglass.

23 COMMISSIONER DOUGLASS: I would like, first of

24 all, to pay my respects to Commissioner Mathews for his

25 position, which is now different from his position when



0"* ^'







1 we passed this in the first place. Commissioner

2 Mathews was a very strong proponent of the present

3 provision which provides simply that the defense of

4 sovereign immunity is no longer in existence. He

5 supported that. He supported that on the basis that

6 Commissioner Annis was asking the questions, which he

7 artfully tried to turn back on you about medical

8 mediation and malpractice and all that.

9 The answer is that what is now before us is

10 the proposal by Commissioner Barkdull, which was

11 supported by Commissioner Mathews, which waived

12 sovereign immunity period. It puts the state and all

13 of its political subdivisions on the same footing with

14 every other defendant or potential defendant in court.

15 And that is all this does. It does not create any

16 favortism one way or the other. It does what should

17 have been done many, many years ago.

18 It does away with the king can do no wrong.

19 We have been through that and been through that. There

20 is no way that you can defensibly argue that as a

21 matter of right and justice that the state can injure

22 you and you cannot recover a judgment if you can prove

23 your case before a court of competent jurisdiction,

24 before a jury, and take it to the Supreme Court. And

25 that you should be able to win if there was, in fact, a








1 wrong. It is not a no-fault thing. It is a question

2 of wrong.

3 The other aspect, of which I feel should be

4 addressed because it is not exactly true, there has

5 never been sovereign immunity as such applicable to

6 municipalities in the State of Florida. That has not

7 been the case.

8 Now, Commissioner Mathews alluded to that,

9 but he didn't quite tell you what has happened with

10 this provision that he wants to leave as it is. The

11 legislature, instead of carrying out the mandate that

12 Commissioner Mathews thought they would in 1968, and

13 making sovereign immunity the doctrine as archaic

14 as it is, less applicable and more fair, has attempted

15 and has by statute brought municipalities into what

16 purports to be the protection of sovereign immunity,

17 which is where this all began.

18 Now, if we want to set our consciences straight

19 and the record straight, then we should vote to retain

20 the simple waiver of sovereign immunity sponsored by

21 Commissioner Barkdull, which was passed and supported

22 vigorously by Commissioner Mathews at that time on the

23 basis that it was fair. It would not affect the state

24 if by chance something occurred which reduced liability

25 for individuals. That would apply equally to the state.








1 But it would be equal.

2 And fairness should never be shunned, even by

3 a group that might have some other interests, whether

4 it be us or others. And the people have a right to

5 know that the state can do wrong. And they can be

6 sued for their wrongs. And that is all that is done.

7 So, I urge you to defeat this attempt to do

8 away with one of the best things that this Commission

9 has come forward with in the way of fairness and

10 correction of inequities.

11 CHAIRMAN BARKDULL: Will you yield?

12 COMMISSIONER DOUGLASS: I yield.

13 COMMISSIONER McCRARY: Commissioner Douglass,

14 during the debate during the last two days, everybody

15 has been talking about fiscal impact.

16 COMMISSIONER DOUGLASS: Yes.

17 COMMISSIONER McCRARY: Now, the waiver of

18 sovereign immunity, will that have fiscal impact?

19 COMMISSIONER DOUGLASS: That question has

20 been asked. On the original document put on our desks

21 by the committee studying fiscal impact, the staff said

22 there would be no significant fiscal impact. When the

23 committee went back, they asked for an additional study.

24 And it now says on the documents on your desks,

25 "pending further study." I






91

1 The original thing we had said said no

2 significant impact. Let me say this in answer to that.

3 We had a complete waiver of sovereign immunity in this

4 state that was sponsored by a now U.S. Senator Chiles,

5 and it passed the Senate when Commissioner Mathews was

6 there, I believe. At least if he wasn't there, he was

7 certainly there in spirit because he's always wanted to

8 be fair. But it did pass.

9 We had it a whole year. And it did not do

10 all these bad things. It did not cause any significant

11 fiscal impact to the state. It just equalized it and

12 made it fair. And I think that is the best answer I

13 can give you.

14 COMMISSIONER McCRARY: Let me ask you another

15 question. If a person works for the State of Florida

16 and is injured on the job, does the state restrict its

17 liability in that case relative to workmen's compen-

18 station?

19 COMMISSIONER DOUGLASS: No. The state is

20 subject to the workmen's compensation law the same as

21 any private corporation or employer.

22 COMMISSIONER McCRARY: Even if the state is

23 at fault?

24 COMMISSIONER DOUGLASS: That is correct.

25 COMMISSIONER McCRARY: Is there any








1 difference in that and waiver of sovereign immunity?

2 COMMISSIONER DOUGLASS: Well, the difference

3 is that in waiving sovereign immunity, you have the

4 right to sue the state for your little girl who doesn't

5 work for the state but who has been run over by a

6 state truck negligently. And you can recover if the

7 negligence was there. But it does not affect any other

8 thing other than allowing the state to be put on the

9 same footing as any other individual and be accountable

10 for its wrongs.

11 CHAIRMAN BARKDULL: Commissioner James.

12 COMMISSIONER JAMES: I waive my time.

13 CHAIRMAN BARKDULL: Commissioner D'Alemberte.

14 COMMISSIONER D'ALEMBERTE: I waive my time.

15 CHAIRMAN BARKDULL: Commissioner Overton.

16 COMMISSIONER OVERTON: One of the things that

17 I do think should be mentioned is the fact that this is

18 a broad provision. When we talk about what other states

19 have done, we should remember that what those other

20 state provisions contain is the matter of personal

21 injury and property damage. We are not just talking

22 about that in this instance. And also the matter, you

23 know, the state is a little bit different from the guy

24 that is driving a car down Monroe Street.

25 The state operates prisons. The county





93

1 operates county jails. The cities have building

2 inspectors, zoning -- there are all different functions.

3 And I think that this power and this authority should

4 be put in the legislature. That is where it is. That

5 is where it is put by most states that have taken what

6 this is, very frankly, a liberal view. Many states

7 have not gone that far.

8 But let the legislature work with this with

9 the particular problems in the different areas that you

10 can get into. But this provision is very broad in

11 scope. It is not like the provisions in other states.

12 I ask that you support the amendment.

13 CHAIRMAN BARKDULL: Commissioner Polak as an

14 opponent.

15 COMMISSIONER POLAK: I wish I had the material,

16 Commissioner Spence, that was passed out by

17 Mr. Cunningham, but you know, I just want to state here

18 how I feel on this thing and try to keep it brief.

19 The question has been raised -- and I was

20 interested in this original question. The king can do

21 no wrong. And if we have sovereign immunity, the king

S22 can do no wrong. And I think, Commissioner Spence, and

23 other Commissioners -- and I know of some things right

24 here in this county where there have been drunken bus

25 drivers. There has been an example that we have heard








1 of employees of these municipalities that have done

2 things that are wrong. And they are protected by the

3 king.

4 I guess they are protected by the king

5 because they are his knights. And I will say to you

6 that if that fellow down there in Broward County that

7 ran those red lights, ran both of them, and then he

8 pulls in, you know, with the siren going and pulls

9 into a hamburger stand, if he ran over my child or

10 your child or anybody's child or any natural person,

11 I wouldn't expect them just to get $50,000 or $100,000

12 or submit a claim if they came before the legislature

13 that is negotiated.

14 There is no -- they've got a catch. And all

15 these municipalities that are interested in that, if

16 their rates are raised, our rates are raised because we

17 are the taxpayers. And another point, if I can make

18 the point, I want to know why this government that wants

19 the cap on the king can do no wrong -- I am wondering

20 why they don't put a cap on all of us.

21 If I don't have a cap and, Commissioner

22 Annis, you don't have a cap and Commissioner Moore and

23 the rest of you, then by god the king shouldn't have a

24 cap. I think it is that simple. And I might want to

25 bring up this thing here from Mr. Greenfield. Now, the
"| .





95

1 information that I did see that I don't have here today,

2 he states about major states, you know, that this is --

3 that are particularly active in the bond market. And

4 I hope you will address us on this, Commissioner Spence.

5 That have eliminated sovereign immunity in their

6 constitutions, that they have got a problem with the

7 bonds.

8 Now, I didn't read it that way. And I am

9 wondering if this Mr. Greenfield is lying, then maybe

10 we had better go back to the finance and tax section,

11 which he has taken up here before us, and let's find

12 out who is lying, because if he's lying, we had better

13 review that whole financial and tax section because he

14 worked on it.

15 That is just something that I am thinking

16 about reading. So, if you are not lying, Commissioner

17 Spence, you bring us your statements. But what I am

18 going to tell you on sovereign immunity, I believe that

19 the king can do wrong. And if the king is going to

20 limit himself and not his subjects, the hell with the

21 king.

22 CHAIRMAN BARKDULL: Commissioner McCrary as

23 an opponent.

24 COMMISSIONER McCRARY: Mr. Chairman and

25 members of the Commission, pretty basically there is no




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1 sovereign in a constitutional government except the

2 people. Now, how we derive this concept of sovereign

3 immunity is lost because the original case that dealt

4 with the king and the people did not contain that

5 statement.

6 Now, the people of the State of Florid are

7 sovereign. Those of us in public office are mere

8 trustees. If the people do not object to being sued,

9 I don't think that we ought to be annointed with all

10 the power and be monopolistic about it; that we are

11 the only ones who know what is best for them.

12 Commissioner Brantley said earlier today

13 that anything that did not have one million dollars

14 of fiscal impact they would consider it as minor, so

15 to speak. I assure you that the State of California

16 does a lot more litigation than we do. And since the

17 year 1963, they have waived sovereign immunity, that

18 abortion of the word. It has cost the State of

19 California $1,198,000 per year, including administrative

20 costs. Now, that's not a hell of a lot of money

21 considering what we spent other money for in this state.

22 I suggest to you that what we are talking

23 about is giving the people of Florida, whoever they are,

24 and wherever they may be, a chance to recover against

25 their government if their government is wrong. I








1 suggest to you that you defeat this amendment.

2 Let me point out to you, the only people who

3 are really opposed to this are the people who are

4 trustees of the public trust. You don't hear the

5 private citizen arguing about, "We don't want to be

6 sued." We hear it from all of the officeholders

7 Lest we forget we are not owners of that money, we are

8 merely trustees. And if you want to let the potholes

9 go bad in Tampa and in Pensacola, and you don't want

10 to repair them for those citizens, they ought to

11 recover if they fall.

12 It may suggest that public officials are not

13 doing their jobs if they allow these conditions to

14 exist.

15 I am merely suggesting to you that this is

16 a bad amendment that is not going to have any fiscal

17 impact as defined by the president over there. And

18 that we ought to go ahead and get rid of this and move

19 on, Mr. Chairman, to finishing this constitutional

20 convention that Mr. Roberts would like to call it.

21 CHAIRMAN BARKDULL: Commissioner Platt.

22 COMMISSIONER PLATT: Let me begin by saying

23 for a city the size of Tampa, last year when we sought

24 to insure ourselves through an insurance company, we

25 found it would cost over $700,000 a year. Instead, we



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1 opted to be self-insured. And as a result, we have

2 approximately three and a half million dollars of

3 taxpayers' money laying idle waiting for claims. And

4 that is under our present law, with limits.

5 Now, passing language such as this -- how

6 much money of taxpayers' money -- yours and mine --

7 our money -- shall have to lay idle waiting for people

8 to bring claims against cities? I think there has been

9 a great deal of discussion on this matter. I think we

10 have to ask ourselves as revisionists is our role to

11 create the problems or solve problems? And I cannot

12 help but believe that the language that has been

13 presented and has been adopted by this Commission

14 will cause a great many problems.

15 In the testimony that has come before us at

16 the public hearings, the debate that has been on this

17 floor, you have noticed that every attorney that has

18 spoken has had a different concept of what implications

19 this particular proposal will have.

20 Think back. Varying attorneys have had

21 varying concepts of the implications of this language.

22 Now, the question is: Do we want to create problems?

23 And I can't help but believe that that is what this

24 language will do. And if we do pass this language,

25 and if the voters do act on it favorably, the impact








1 or implications of that language are ultimately going

2 to have to be decided by a court, because there are

3 so many differing opinions.

4 And during that period it will be, I think,

5 fiscal chaos for cities as well as those of us who are

6 trying to insure ourselves. So, I would ask this

7 Commission not to create more problems for us.

8 Leave the language as it presently is in the

9 constitution.

10 CHAIRMAN BARKDULL: Commissioner Spence to

11 close for the opponents.

12 COMMISSIONER McCRARY: Will the Commissioner

13 yield?

14 CHAIRMAN BARKDULL: Excuse me, Commissioner,

15 will you yield the floor? Will you yield for a

16 question? She has yielded the floor. Commissioner

17 Spence to close.

18 COMMISSIONER McCRARY: This is a friendly

19 question.

20 CHAIRMAN BARKDULL: Please give the

S21 Commissioner your attention. He is closing for the

22 opponents.

23 COMMISSIONER SPENCE: Commissioners, I am

24 going to be brief, and I promise you not to be

25 emotional. But I honestly believe in first principles.




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