Title: Opinion File 73-3 thru 73-12
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Full Citation
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Permanent Link: http://ufdc.ufl.edu/WL00003339/00001
 Material Information
Title: Opinion File 73-3 thru 73-12
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 73-3 thru 73-12
General Note: Box 14, Folder 3 ( Opinions 1972 - 1973 - 1972 - 1973 ), Item 24
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003339
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



0T 3

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May 30, 1973



Mr. Donald R. Feaster
Executive Director
Southwest Florida
Water Management District
P. O. Box 457
Brooksville, Florida 33512

Dear Dons

I am enclosing a copy of some research I asked one of our lawyers
to do concerning the matter of delegating authority to you to sign
a contract on behalf of the District. The matter which brought it
up was the motion authorizing you to sign agreements in the Lower
Hillsborough Basin with the deputies and highway patrolmen.

As you can see from the enclosed opinion, it is very difficult, if
at all possible, for the Board to delegate authority to you to sign
contracts on its behalf. If there is any independent judgment, dis-
cretion or authority, then you cannot execute the contracts. I cer-
tainly am not, in any way, trying to restrict this or to restrict
what you could be authorized to do by the Board, but I feel that we
have to be quite careful. I suggest that at anytime there is any
question about executing contracts, that you request my opinion if
you can sign the contract on behalf of the District. Then both the
Board and you will be protected if I say, in my opinion, you can or
cannot execute the contract on behalf of the District.

After you have gone over this, if you have any questions or sugges-
tions, please call me.

Yours very truly,



Myron G. Gibbons

Mgg/bl
End.









P. O. BOX 457 BROOKSVILLE, FLORIDA 33512

S DERK1.1 MIATtER, Chairman, Brooksvlli HF-RMAN HEVll E l" I Iuhn I HO)MAS VAN &hr VFFR, Ynkc-ton
S. C. HBXLEY, JR. Vice Chairman, I.nd O'Lakes JOI E. HILl., l.cbchurn Rll:KRT F VAUI;(IN, r do,
JOHN A. ANDLHSON, Treasurer, St 'etersburg PEI ER J. NECRI, Otla J MASON \INI:S, I.akela:.i




June 14, 1973 "

v.jj 1t973 i;




Mr. Myron G. Gibbons
Post Office Box 1363
Tampa, Florida 33601

Re: Delegation of Authority to Sign

Dear Myron:

Thanks for your letter of May 30th which pointed out that the Board can-
not delegate authority for me to sign contracts on its behalf if there
is any independent judgment discretion or authority. The next time any-
thing of the nature of the security agreements comes up I'll try to
remember and ask for your opinion.

My whole point in asking the Board to delegate authority to me to sign
the agreements for security in our flood detention areas was to remove
from the agenda, hopefully saving the Board members some of their valuable
time, those items which I consider to be of lesser importance and upon
which I could act.

Please give me your opinion on the security agreements. Can I execute
future contracts on behalf of the Governing Board or must I continue to
take them to the Governing Board for approval?

Very truly yours,





DONALD R. FEASTER
Executive Director


DRF:ce


cc: District Governing Board


I












July 11, 1973




Mr. Donald R. Feaster
Executive Director
Southwest Florida
Water Management District
P. O. Box 457
Brooksville, Florida 33512

Re: Delegation of Authority to Sign

Dear Dons

Receipt is acknowledged of your letter of June 14, 1973.

I do not believe that you can execute security agreements without
approval of the Governing Board unless they are exactly the same,
with just a difference in the name of the person. Since there
would also be a difference in the number of hours they are to work
and a difference in the value of the particular property that they
are renting, I think that the best thing for you to do is bring it
up at the Board meetings each time, saying that you have tentatively
made an agreement with this man and that he is to move in, and then
the Board can give its approval. I do feel that because of the
differences in the value of the property and the number of hours to
be worked, there is some discretion in these agreements.


Yours very truly,



Myron G. Gibbons


M4gg/bl







RESEARCH MEMORANDUM


TO: MGG

FROM: RVW

RE: SWFWMD

QUESTION

CAN THE BOARD OF GOVERNORS OF THE SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT DELEGATE ITS AUTHORITY TO THE EXECUTIVE
DIRECTOR TO SIGN A CONTRACT ON BEHALF OF THE SWFWMD?


DISCUSSION

Section 5(c), Art. II of the Florida Constitution of

1968 provides:

"The powers, duties, compensation
and method of payment of state
and county officers shall be fix-
ed by law."

No appellate decision has been rendered on the above language

since the adoption of the 1968 Constitution. Accordingly,

its interpretation must be governed by case law pertaining

to its predecessor Section 27, Art. III, Const. of 1885.

(In my opinion the change in wording was changed merely as

to style, and not as to meaning; therefore, the old cases

should remain applicable.)

A review of case law construing former Section 27, Art III,

1885 Const., "seems to contemplate that essential state and

County governmental powers and authority be exercised by duly

commissioned officers." Atty. Gen. Opinion 68-44, citing

several cases. Moreover in Blitch v. Bachanan, 131 So. 151,






7l3-7
the Supreme Court of Florida held that in view of Section 27,

Art. III., "governmental functions requiring independent

judgment, discretion, and authority can in general legally

be exercised only by officers who are elected by the people

or appointed by the Governor, unless otherwise permitted by

the Constitution. Blitch, at 154 (emphasis added). The

court also stated in Blitch, however, that there are:

Many functions that are not among
"the powers of government" .
that do not involve independent official
judgment, discretion and authority, may
be performed under statutory authority
by persons who are not elected or ap-
pointed to fill offices, when such
functions may be so performed under
the command or direction of officers
who are elected by the people or ap-
pointed by the Governor. Blitch at 154.

The power of the state to contract is a legislative

prerogative and no board or officer can contract for it

without legislative authority. Atty. Gen. Opinion 68-44.

However:
"Where the state authorizes a certain
officer or legal body to contract for
it in regard to certain purposes and
subjects, no other officer or agency can
exercise the authority to contract re-
lating to those purposes and subjects, nor
exercise authority to contract relating to
ratify or give effect to a contract not
actually made by the authorized person or
body. The duty of doing and performing
the essential things necessary to the
creation of a contract and the acts
which involve discretion cannot be delegated
to another, but must be exercised by the
authorized agent or agency of the state.
Where the authority and power to contract
is conferred upon a board or commission,
such authority must be exercised by the
board or commission as an entity.
Atty. Gen. Opp. 68-6. (Emphasis supplied).






In other words, although the state may delegate the power

to contract to its boards and officers, the duty of doing

the essential things necessary to the creation of a

contract and acts which involve discretion cannot be

delegated by the authorized agency of the state to another.


CONCLUSION:


I can find no statutory authority which expressly

grants to the Board of Governors the power to delegate its

authority to sign contracts to the Executive Director of

SWFWMD. Moreover, in view of a lack of express authority,

it must be concluded that the answer to the question

presented must be determined by the above discussed ap-

plicable law. Thus I would conclude, pursuant to Att. Gen

Opp. 68-44, that if the question presented contemplates

the exercise of any independent judgment, discretion or

authority by the executive director in connection with

the execution of contracts, the answer would be no. If

on the other hand the signing of a contract for SWFWMD

merely constitutes the performance of his authorized public

ministerial duties, functions, and powers, involving no

independent judgment, discretion or authority, then it

appears safe to resolve the question in the affirmative.



Note: Copies of Atty. Gen. Opinions 68-06 and 68-44 are
attached.








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234 BIENNIAL REPORT OF THE ATTORNEY GENERAL

and was not intended to permit exemption of the employees of certain
agencies from parts of the law, such as the provisions dealing with
suspensions, discharges, reductions, demotions, layoffs, and transfers.
The personnel board, accordingly, would have no authority without
further legislative consent to apply the law piecemeal to state employees
or engage in widespread establishment of further exempt positions.
Questions 1 and 2 require a negative answer.

068-44-March 29, 1968
CITRUS CODE

POWER OF CITRUS COMMISSION TO AUTHORIZE ITS
GENERAL MANAGER TO EXECUTE CONTRACTS

To: William P. Tomasello, Attorney, Florida Citrus Commission, Bartow
QUESTION:
After the Florida Citrus Commission has authorized a spe-
cific program and budgeted specific funds therefore, may the
commission authorize its general manager to execute contracts
in furtherance of the specific program in line with its adminis-
trative duties?
Section 27, Art. III, State Const., seems to contemplate that essential
state and county governmental powers and authority be exercised by
duly commissioned officers (Florida Dry Cleaning and Laundry Board
v. Economy Cash & Carry Cleaners, 143 Fla. 859, 197 So. 550; State
v. Lee, 150 Fla. 35, 7 So.2d 110; Dade County v. State, 95 Fla. 463,
116 So. 72; City of Miami Beach v. State, 95 Fla. 697, 116 So. 480). It
was stated in Blitch v. Buchanan, 100 Fla. 1202, 131 So. 151, that, in
view of 27, Art. III, State Const., governmental functions requiring
independent judgment, discretion and authority can in general legally
be exercised only by officers who are elected by the people or appointed
by the governor, unless otherwise permitted by the Constitution.
It was also stated in Blitch v. Buchanan, supra, that 27, Art. III,
State Const, does not prevent a statute from requiring public ministerial
duties, not involving the exercise of official judgment or authority, to
be performed by persons who are engaged in public service, though
not officials, when some other provision of the Constitution is not
thereby violated. It is stated in Blitch v. Buchanan, 131 So. 151:
Many functions that are not among "the powers of gov-
ernment" which are by the Constitution divided into three
departments, and that do not involve independent official judg-
ment, discretion and authority, may be performed under statu-
tory authority by persons who are not elected or appointed to
fill offices, when such functions may be so performed under
the command or direction of officers who are elected by the
people or appointed by the Governor. (Emphasis supplied.)
It appears from Dade County v. State, 95 Fla. 465, 116 So. 72,
and City of Miami Beach v. State, 95 Fla. 697, 116 So. 480, that
essential governmental functions, as well as essential governmental
power or authority are required to be performed by and through com-
missioned officers.
In Advisory Opinion to the Governor, Fla., 63 So.2d 321, the
Justices of the Supreme Court of Florida held that the hotel and
restaurant commissioner then existing was not an officer as required
under 27, Art. III, State Const., but an employee of the state, and


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could not ex,
said duties b(
State Const.
court found t
not those of
performed by
Livestock Sai
state veterin,
that by reasi
said state ve
exercise inde
was, therefore
State Const.
The powo
no board or
Such power i
legislature. 'I
agents are d
So. 529, 531.
its boards an
to the creatii
be delegated
068-6, Jan. I
The Floi
F. S., 601.0;
commission i
traced with,
If the q
dependent ju
connection w
question wou
of the gene
him by stat
functions ar
or authority
statutes vest
all purposes
ments" vest,
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does not tra
out its dutie
of a genera
generally.

068-45-ApI


INSTALL
PR

To: Fred
QUESTIOb
Do
F. S, a
taxes,





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s of certain
dealing with
id transfers.
rity without
te employees
pt positions.


FE ITS
CTS
iaswrartow


*d a spe-
may the
-ontracts
adminis-

that essential
exercised by
mndrapoard
5. 5f 3tate
95 i,. 463,
I So. 480). It
151, that, in
,ns requiring
aneral legally
-or appointed
fitution.
,27, Art. III,
ic ministerial
authority, to
vice, though
ution is not
;o. 151:
of gov-
ito three
ial judg-
ter statu-
ointed to
ed under
d by the
;uprl..)
S1. So. 72,
So. 480, that
governmental
through com-

b.2d 321, the
she hotel and
r as required
Ihe state, and
r-


BIENNIAL REPORT OF TIE ATTORNEY GENERAL 235

could not exercise the duties then imposed on the said commissioner,
said duties being governmental in nature and within said 27, Art. III,
State Const. In Blitch v. Buchanan, 100 Fla. 1202, 131 So. 151, the
court found that the duties and obligations of a state executioner were
not those of an officer within 27, Art. III, State Const., and may be
performed by a person who was not an officer. In McSween v. State
Livestock Sanitary Board, 97 Fla. 749, 122 So. 239, the status of the
state veterinarian as a state official was questioned, and the court held
that by reason of the powers, duties and obligations imposed on the
said state veterinarian by the Statutes of Florida he was required to
exercise independent official judgment, discretion and authority and
was, therefore, an official of the State of Florida within 27, Art. III,
State Const.
The power of the state to contract is a legislative prerogative and
no board or officer can contract for it without legislative authority.
Such power must be exercised in manner and form as directed by the
legislature. The authority and powers of particular state officers and
agents are determined by law. Wadsworth v. State (Ala. 1932), 142
So. 529, 531. Although the state may delegate the power to contract to
its boards and officers, the duty of doing the essential things necessary
to the creation of a contract and acts which involve discretion cannot
be delegated by the authorized agency of the state to another. AGO
068-6, Jan. 12, 1968.
The Florida Citrus Commission derives its authority from Ch. 601,
F. S., 601.05 of which in terms confers upon or delegates to the citrus
commission as a body corporate the power to contract and be con-
tracted with.
If the question above-stated contemplates the exercise of any in-
dependent judgment, discretion or authority by its general manager, in
connection with the closing of the transaction, the answer to the above
question would appear to be in the negative. If the duties and functions
of the general manager are performed under or are conferred upon
him by statutory authority, and are purely public ministerial duties,
functions and powers, involving no independent judgment, discretion
or authority, then the answer might be otherwise. The fact that the
statutes vest in the commission "all the powers of a body corporate for
all purposes necessary for carrying out the provisions and require-
ments" vests in it merely the powers of a public corporation for the
purpose of carrying out its statutory duties, functions and powers, and
does not transform it into a general corporation. It operates and carries
out its duties, functions and powers in a manner like or similar to that
of a general corporation, but is not given the status of a corporation
generally.

068-45-April 1, 1968
TAXATION
INSTALLMENT PAYMENT OF AD VALOREM TAXES AS
PROVIDED BY 193.50, F. S.-APPLICATION TO
MUNICIPAL TAX COLLECTIONS
To: Fred O. Dickinson, Jr., State Comptroller, Tallahassee
QUESTION:
Does Ch. 67-533, Laws of Florida, which amends 193.50,
F. S., and which relates to installment payments of ad valorem
taxes, apply to the several municipal tax collections?


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ERAL

necessarily
an instru-
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the deci-
as, where
writing is
,olves not
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Smy view
n his own
who has

cry as to
tiouproc-
sc i\ers
4ect_ the
therefore,*
contribu-
it. (The
ate trans-
ments ef-
; supervi-
Ivice and
So.2d 605
18, p 1

General then

,ared," as
the per-
employed
Selection
i purpose,
employed
sons have
iployed in
:on unless
-rove, the
.d to have
disclosed

bution to
of typing
seemed to
of Section

di "are
ed,. ,ar-
a firm of
irm name
individual

the Attorney
:ly.


BIENNIAL REPORT OF THE ATTORNEY GENERAL 169

In answer to question 3 I again refer to the provisions of 695.24(1),
F. S., which provide in part: "No instrument shall be recorded by
the clerk of the circuit court of any county of this state unless. .."
(Emphasis supplied.) This language would indicate that unless the re-
quirements of 695.24, F. S., are met, the instrument should not be
recorded by the clerk. I am inclined toward the position that no clerk
could suffer any personal liability by refusing to record an instrument
which does not meet the requirements of 695.24. In fact it would appear
that if an instrument were recorded where the prerequisites of 695.24,
had not been met there would be an improper and invalid recordation.

068-6-January 12, 1968
FLORIDA DEVELOPMENT COMMISSION
AUTHORITY OF COMMISSION'S EXECUTIVE DIRECTOR
TO ENTER INTO CONTRACTS

To: Louis Wolfson, II, Legislative Council, Miami
QUESTION:
Under existing Florida Statutes, may the Executive Direc-
tor of the Florida Development Commission enter into a contract
obligating funds of the commission without approval by official
action of the commission?
Your question is answered in the negative.
The state has the power to contract. The state is only a corporate
name for all the citizens within its territorial limits. The people acting
as a public corporation have a right to enter into contracts and make
purchases, but in so doing they must act through some governmental
agency. In the absence of constitutional restrictions, the legislature
may delegate its authority to contract to boards and commissions, whose
action in making contracts is the action of the state. See 49 Am. Jur.
(States, etc.) 276, Sec. 63; 81 C.J.S. (States) 1084-1085, Sec. 112, 113.
The state has delegated the power to contract and be contracted
with to the Florida Development Commission insofar as necessary to
administer the duties within the scope of its lawful authority. Chapter
288, F. S., grants to and vests in the development commission the
power to make and enter into such contracts as may be necessary in
order to carry out the objectives and purposes of the statute. See
288.06, 288.12, 288.13, 288.15, 288.24, and 288.27, F. S.
Where the state authorizes a certain officer or legal body to con-
tract for it in regard to certain purposes and subjects, no other officer
or agency can exercise the authority to contract relating to those
purposes and subjects, nor exercise authority to ratify or give effect
to a contract not actually made by the authorized person or body. The
duty of doing and performing the essential things necessary to the
creation of a contract and the acts which involve discretion cannot be
delegated to another, but must be exercised by the authorized agent or
agency of the state. Where the authority and power to contract is con-
ferred upon a board or commission, such authority must be exercised
by the board or commission as an entity. See Charles Scribner's Sons
v. Marrs, State Supt. of Public Instruction (Tex. 1924), 262 S.W. 722,
728 (14); also see 81 C.J.S. (States) 1086-1087. The development com-
mission as a body, and not its executive director, is the governing agency
set up by law to administer Ch. 288, F. S. The sovereign power and


73-11


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S170 BIENNIAL I

function of the comn
exercised through it
otherwise expressly
The powers and
Development Commir
vides that he is to "h
and that he shall a
clerical staff as the
conduct of its work.'
executive director is
orders and to see to
commission" for the
the commission and
I find nothing ir
executive director of
any contract whatev
or to exercise or p
commission. His auti
These can be search
with reference to th
commission or with
of the state.
* I thus conclude
the Florida Develol
2 make and enter into

068-7-January 16, 1

HOSPITAL CARE
AND WELFA]
To: Richard S. H
Tampa
QUESTION:
As used in s
what do the fo
tient" "persons
by the welfare
charges" and "
rendered?"
Your main coni
67-1498 which addec
tion 5 of Ch. 67-14
63-1402, all Laws o:
Section 10F
supervision of t
and regular cha
all persons refer
welfare council
Section 7..
lated services pi
be charged to
credited to hos
As I previouslI


----- --- -------- --- a-'.--


7 3-12r


REPORT OF TIE ATTORNEY GENERAL

mission to contract and be contracted with must be
s board and not by its executive director, unless
provided by the statutes.
duties of the Executive Director of the Florida
ssion are prescribed by 288.04, F. S., which pro-
tave general charge of the work of the commission"
appoint "such assistants, experts, technicians and
commission may deem necessary for the efficient
SIt thus appears that the primary function of the
the carrying out of the commission's decisions and
the execution of the same and the "work of the
accomplishment of the purposes and objectives of
the provisions of the statute.
SCh. 288, F. S., which authorizes or empowers the
the development commission to make or enter into
er for or in behalf of the commission or the state,
perform any discretionary act or function of the
hority is circumscribed and limited by the statutes.
ed in vain for any delegation of the contract power
Le duties and responsibilities vested by law in the
respect to obligating funds of the commission or

that under existing law the Executive Director of
pment Commission alone is without authority to
Contracts obligating funds of the commission.


968


BI ENNIA

the same statute,
Under these circi
harmonized so fa
The confusion
terms are used to
sons referred to t
and its agents; ai
the term medicala
its very nature w
and clinics by th
parent that the '
the "full cost of
seem that both c
the normal charp
services necessary:

068-8-January 1

ASSESSMENT
OMISE
To: Fred O. D
STATEMENT 0
After the 19
pared, tax bills I
of the receipts ca
Investigation
were the result c
F. S., were comic
by the statute.
It is not cles
or her agents, th
pursuant to the
programming of
appeared not onl
would mean the
200.35, F. S. I
intentional.
QUESTIONS:
1. Whe
of 1%, inste
posed, much
and distribu
uncollected S
2. Is t
correct the I
penalties af
County Tax
3. Iftt
Tax Assesso
mail out con
4. As
tive taxpayer
Okeelanta S


WELFARE


OF INDIGENT PERSONS-COSTS-HOSPITAL
RE BOARD OF HILLSBOROUGH COUNTY
'odes, State Representative, Hillsborough County,



sections 2 and 5 of Ch. 67-1498, Laws of Florida,
Lowing terms mean: "medically indigent pa-
referred to the several hospitals and clinics
council and its agents"; "usual and regular
full cost of the hospital and related services

cern is with an interpretation of section 2 of Ch.
1 section 10F to Ch. 63-1402, as amended, and sec-
98 as it amended section 7, subsection (4) of Ch.
f Florida, as amended, which read as follows:
. The hospital and clinic facilities under the
he hospital council shall be reimbursed all usual
rges for the medical and hospital treatment of
erred to the several hospitals or clinics by the
or its agents.
. (4). The full cost of any hospital or re-
rovided for medically indigent patient'care shall
welfare services and functions and shall be
pital services and functions.
Stated, these two statutory provisions appear in


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