CONSTITUTION REVISION COMMISSION
Wednesday, March 8,
Old Sena-te Chambers
Catherine Wilkinson, CSR, CP, RPR
ctccuzate cStenotype cRepoz
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 16, 17 11
VII 17 5
VIII 1 3
VIII 1 4
VIII 4 1
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
1 APPEARANCES: (AFTERNOON SESSION)
4 TALBOT D'ALEMBERTE, Chairman
EDWARD R. ANNIS
5 JAMES W. APTHORP
6 THOMAS H. BARKDULL, JR.
WILLIAM O. BIRCHFIELD
7 LEW BRANTLEY
YVONNE B. BURKHOLZ
8 WILLIAM C. CLARK
9 JOHN M. DeGROVE
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
16 BEN F. OVERTON
KENNETH A. PLANTE
17 JAN KAMINIS PLATT
NATHANIEL W. POLAK
18 DONALD H. REED, JR.
19 B. K. ROBERTS
JOHN L. RYALS
S20 ROBERT L. SHEVIN
J. B. SPENCE
SSTELLA F. THAYER
JOHN T. WARE
24 WARREN W. MORGAN
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
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.
2 And his thought was that there are some
22 fairly expensive energy saving devices other than solar
heat that, if you really wanted to put out the tax
deduction or abatement incentive for energy saving
devices, and you were not just putting it out as a piece
D1 0. 5 i
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
25 many as favor the substitute proposal by Commissioner
1 Ausley, please signify by saying aye; opposed by saying
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
16 repaid by what has become known as tax increment.
7 Now, if you will flip over to about 83 -- 85,
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
1 permissible in Section 17.
22 Section 17 restricts what this type of
2 financing can be done or used for to blighted areas,
the redevelopment of a blighted area. Section 12 just
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
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.
1 MR. CHAIRMAN: Commissioner Ausley has a
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
take the other side on these issues, if I so choose.
COMMISSIONER N. REED: Would the gentleman
COMMISSIONER BIRCHFIELD: I yield.
COMMISSIONER N. REED: My question was: I did
1 not get to Jacksonville or Miami. So, I am interested
2 in whether there was any weight of testimony on the
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
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
25 COMMISSIONER OVERTON: I guess maybe sometimes
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
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
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
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
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
That is what I'm
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
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
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
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.)
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
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
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
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
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
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
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,
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
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
1 COMMISSIONER OVERTON: The Commissioner will
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
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.
1 COMMISSIONER MATHEWS: Will the Commissioner
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
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
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
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
19 MR. CHAIRMAN: Will you yield to Commissioner
21 COMMISSIONER D. REED: Yes.
22 COMMISSIONER BARKDULL: What are you taking
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
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
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
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
13 COMMISSIONER DeGROVE: Language and schedule.
14 COMMISSIONER OVERTON: That is what I meant,
15 language or the scheduled language, which was the
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?
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
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
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: Yes.
COMMISSIONER BIRCHFIELD: Commissioner, is
this intended to lock in, in perpetuity the present
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
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
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
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
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
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,
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
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
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
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
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-
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
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
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?
matters concerning the
is the -- the takeover
functions of municipal
you want it removed is
prohibits that manner o
those functions to the
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
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
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
21 really not only to Section 4, but to other sections.
2I don't agree to that. Just generally my
2 purpose in getting this out is, one, we don't need it
in the constitution. And, two, I think it does -- as
is illustrated in this case and others -- get in the wa,
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
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
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 .
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
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
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
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.
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
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
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
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.
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
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
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
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
2 Read the next amendment.
3 MR. SECRETARY: By Commissioners Burkholz and
4 Oliva, on Page 106, line 3, strike all of the line --
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
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
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
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
2 the school board has such a large area of responsi-
2 ability that citizens feel somewhat disaffected. And we
2 would benefit in local government by seeing more
elected school board members. I think it would really
involve citizens, again, at the local level. I think
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
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
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
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,
W a '; ee
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
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 -
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
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
12 COMMISSIONER N. REED: Will the gentleman
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
12 CHAIRMAN BARKDULL: Commissioner D'Alemberte
13 to close. The Commissioner waives his time. Call the
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.
1 COMMISSIONER D. REED: I am glad I came back
2 in the room. I would like to keep going with my
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
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
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
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
25 There is optimum size, I suppose, of the
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
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
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
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.)
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
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
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,
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,
.^ 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? _
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
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
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
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
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
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
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
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
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
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-
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
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
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
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
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
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
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
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
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
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
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
10 CHAIRMAN BARKDULL: Commissioner Spence to
11 close for the opponents.
12 COMMISSIONER McCRARY: Will the Commissioner
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
20 CHAIRMAN BARKDULL: Please give the
S21 Commissioner your attention. He is closing for the
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.