THE FLORIDA BAR The Government Lawyer Section R E P O R T E R · 2020. 1. 23. · Volume VII, No. 1...

“No Higher Calling” Fall 1999Volume VII, No. 1

The Government Lawyer Section

R E P O R T E R

THE FLORIDA BAR

continued, page 12

Message from the Chair:

An American Citizen’s View of Our Legal Systemby Joseph P. George, Chair

“Are citizens jus-tified in being sus-picious of the lawand the legal sys-tem?” was the ques-tion the Justice putbefore members ofthe judiciary, laweducators, and prac-titioners. This wasthe same question

posed by United States SupremeCourt Justice William J. Brennan inMiami in 1989. I thought of this whilehearing the thoughtful comments ofour newest Florida Supreme Court

Justice, the Honorable Peggy Quince,at a recent luncheon given in herhonor in Miami by the Dade CountyBar Association.

It is said that many citizens’ suspi-cion of the law and legal system takestwo forms: (1) the belief that the le-gal system is unfair to those less for-tunate, and (2) the view that law isan obstacle to, rather than an instru-ment of, the creation of a just andgenerous society. Justice Brennanstated that the second form of suspi-cion has an, “even more ominous por-tent because it brings under a cloudthe rule of law itself. To overcome

this distrust society must providefreedom and equality of rights andopportunities in a realistic and notmerely a formal sense to all people ofthis nation.” Moreover, it is impera-tive for all lawyers to become in-volved in this effort.

Continued Brennan in 1989,“Twenty years ago the increase inlegal aid, neighborhood legal services,and public defender activities was anencouraging beginning. We were be-ginning to understand that many cur-rent problems will not yield to tradi-tional methods of solution throughcounseling, negotiation or judicial oradministrative proceedings.” Now,however, “the rosy beginning hasdimmed,” according to the United

INSIDE:

Letter to the Chair:August 12, 1999

RE: Public Guardianship —The State ModelDear Joe:

Sorry we didn’t have time at the Florida State Guardianship AssociationConference to pursue your questions about the nature of public guardian-ship and what my role is as a lawyer employed by the State to administer apublic guardianship office.

Thirteen years ago I would not have had the hands-on experience to con-dense this into a few hundred words, but perhaps the doing of the matter hasmade me more able to explain it.

First, why public guardianship to begin with? Have not our most vulner-able citizens gotten along quite adequately without guardians until now?Without argument because of the lack of space the answer is no. Anyonewho lacks the functional ability to exercise one’s rights absolutely deserves a

See “Letter,” page 11

1999 - 2000 Section Officers &Executive Council ... 2Tech for the Tech-Impaired: “NETZERO,”

Defenders of the free world— free internetaccess & e-mail .................................................. 3

Government Lawyer Section Gathers atBar’s Annual Meeting in June ................................... 4Ethically Speaking... Public Officials, or Their Firms,

Representing Clients Before the GovernmentalBodies on Which They Serve ............................ 6

The School Board Attorney: Counsel to 200,000Clients ................................................................. 8

Seminar: Public or Private? Sunshine or Online?Perspectives on the Public Records and

Government in the Sunshine Laws ................ 13Happenings at the August ABA Annual Meeting: .. 14Minutes of the Government Lawyer Section

Executive Council Meeting ............................. 15

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• Government Lawyer Section Newsletter • Fall 1999 •

THE GOVERNMENT LAWYERSECTION REPORTER

Jeanne A. Clougher, Editor

This newsletter is prepared and pub-lished by the Government Lawyer Sec-tion of The Florida Bar.

Joseph P. George, ChairLaw Offices of Joseph P. Geroge

7943 SW 104th St., #C210Miami, FL 33156(305) 275-3280

FAX: (305) 275-3296Email: [email protected]

Howard A. Pohl, Chair-electOffice of the State Attorney

1350 NW 12th AvenueMiami, FL 33136-2111

(305) 547-0546FAX: (305) 547-0534

Email: [email protected]

Stephanie A. Daniel, TreasurerOffice of the Attorney General

PL01 The CapitolTallahassee, FL 32399

(850) 414-3666FAX: (850) 488-4872

Email:[email protected]

Clark R. Jennings, SecretaryFlorida Dept. of Citrus

P.O. Box 148Lakeland, FL 33802-0148

(941) 499-2530FAX: (941) 284-4315

Email: [email protected]

Anthony C. Musto,Immediate Past Chair

P.O. Box 2956Hallandale, FL 33008-2596

(954) 336-8575

Susan Cabrera,Program Administrator

The Florida Bar650 Apalachee Parkway

Tallahassee, FL 32399-2300850/561-5625

Statements or expressions of opinion orcomments appearing herein are those ofthe editor and contributors and not of TheFlorida Bar or the Section.

ARTICLES FOR THE WINTERISSUE ARE DUE October 15, 1999.

Articles may be submitted on computerdisc formatted for Word Perfect 5.0 OR6.0 with hard copy attached. Please con-tact Jeanne Clougher at 813/643-4520

Notice to all “connected” members:E-mail your information to the web [email protected].

... and visit the Section’s WEBSITE athttp://www.flgovlaw.org

CHAIR:Joseph P. GeorgeLaw Offices of Joseph P. George7943 SW 104th St., #C210Miami, FL 33156(305) 275-3280FAX: (305) 275-3296Email: [email protected]

CHAIR-ELECT:Howard A. PohlOffice of the State Attorney1350 NW 12th AvenueMiami, FL 33136-2111(305) 547-0546FAX: (305) 547-0534Email: [email protected]

TREASURER:Stephanie A. DanielOffice of the Attorney GeneralPL01 The CapitolTallahassee, FL 32399(850) 414-3666FAX: (850) 488-4872Email: [email protected]

SECRETARY:Clark R. JenningsFlorida Dept. of CitrusP.O. Box 148Lakeland, FL 33802-0148(941) 499-2530FAX: (941) 284-4315Email: [email protected]

IMMEDIATE PAST CHAIR:Anthony C. MustoP.O. Box 2956Hallandale, FL 33008-2596(954) 336-8575

BOARD LIAISON:Don L. Horn, Miami

EXECUTIVE COUNCIL:Membership:Joseph C. Mellichamp, Tallahassee

Claude Pepper Award:Dan R. Stengle, Tallahassee

Legislative/Long Range:Edward G. Labrador, Ft. Lauderdale

Pro Bono:Pamela D. Cichon, St. Petersburg

Publications:Jeanne A. Clougher, Seffner

CLE:Keith W. Rizzardi, West Palm Beach

District Representatives:M. Catherine Lannon, First DistrictRobert J. Krauss, Second DistrictPhilip W. Maniatty, Third DistrictDenise M. Dytrych, Fourth DistrictMichelle E. Jackson, Fifth DistrictLisa George Wilhelmy, Out-of-State

At-Large Representatives:Elizabeth Hubbart, MiamiSheryl G. Wood, West Palm BeachPatrick L. “Booter” Imhof, TallahasseeMitchell D. Franks, LakelandJoseph Lewis, TallahasseeRandall H. Rowe, DelandJoel M. Silvershein, Ft. LauderdaleV. Tanner-Otts, Palm CityE. Jon Whitney, TallahasseeBarbara C. Wingo, Gainesville

PROGRAM ADMINISTRATOR:Susan Cabrera650 Apalachee ParkwayTallahassee, FL 32399-2300(850) 561-5625FAX: (850) 561-5825Email: [email protected]

1999 - 2000 Section Officersand Executive Council


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Tech for the Tech-Impaired:

“NETZERO,” Defenders of the free world—free internet access & e-mailby Joseph P. George

The following information is of-fered to those government ludditeswho still do not have the benefits ofaccess to: 1) the Internet at work, and2) free Internet access at work. Thebenefit of free access speaks for itself.NetZero is the first company to pro-vide completely free internet accessand email (www.netzero.com). Thetrade off is you must put up withsome advertising and allow the com-pany to build a real-time profile of youwith their proprietary zCast software.This allows ad campaigns to be tai-lored to key Uniform ResourceLocator’s (URL’s) and web sites. Theprofile allows the company to makesure the ads you receive are only forthe things that interest you. NetZerosays the user profile is kept in strictconfidence and your data is alwaysseparated from your name and per-sonal information. AOL members al-ready put up with advertising and paya fee for it, $264.00 per year. WithAOL, before you hear the initial“you’ve got mail” screen, you mustclick through advertising anyway. Sowhy pay? If you keep AOL withNetZero as the Internet Service Pro-vider (ISP), AOL is $9.95 per month.

NetZero offers advertisers “themost sophisticated targeting capabili-ties available today. NetZero’s rev-enue is generated through advertis-ing and electronic commerce(e-commerce) sponsorships. With

headquarters in Westlake Village,California, NetZero, Inc., is funded byDraper Fisher Jurvetson, FoundationCapital, and Idealab Capital Partners,and maintains strategic allianceswith AGIS, NetGravity, and GTE.NetZero is a member of TRUSTe, anindependent, nonprofit, privacy initia-tive that requires participating Websites to disclose their online informa-tion gathering and disseminationpractices to consumers.”

NetZero is the leader, so far, inproviding free internet access. Fami-lies can have multiple accounts at nocharge, and keep their AOL screennames.

Internet Search EnginesWhen you do get on the internet

to find information about somethingyou will ask an internet search en-gine to help you. Search engines en-able a computer user to find informa-tion by typing in a word orcombination of words. A recently pub-lished about the internet and internetsearch engines suggest that as thevolume of information on theinternet continues to explode, ourability to tap its riches is declining.The search engines most people useto find internet information are in-dexing only about 16% of the publiclyaccessible Web, down from 34% inDecember 1997.

The Web now contains about 800million pages. It also contains about180 million images. The internetsites most likely to be indexed andfound by ordinary users are thosethat have many links connectingthem to other heavily traveled sites.

The problem of information over-load on the Web will eventually besolved by Moore’s Law, which predictsthat the amount of information thatcan be processed by a computerdoubles every 18 months. Moore’sLaw says that our machines will mul-tiply in power for at least anotherdecade but that the amount of infor-mation that humans might load onthe internet is unlikely to grow asquickly.

How to change your homepage

If you have Microsoft Internet Ex-plorer and want to change your homepage (the page that comes up whenyou connect) do this:1. Open the browser (double click

your internet icon).2. Go to the URL (address) you want

which we expect to bewww.flgovlaw.org

3. On the file menu go to view, downto internet options.

4. In the first template you’ll see“Current” Click this and that URLbecomes your home page.

Introducing a NEW SERIES: “ What it’s like”Please offer to write a short article about your position with the government sothat we can help each other develop insight into other positions and responsibili-ties. Send your article to: [email protected] or fax to 813/651-0167.

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Treasurer, Stephanie Daniel

Government Lawyer Section Gathers atBar’s Annual Meeting in June

Bob Krauss and Justice Peggy Quince share a moment at the Re-ception

Claude Pepper Award winner,Jim Peters.

See? If you clean your plate like this, you get abigger dessert!

Phil Maniatty and Chair-elect, Howard Pohl.


5

Florida Bar ProgramsDivision Director, MikeTartaglia and new GLS Chair,Joseph George

Immediate Past Chair,Tony Musto.

Booter Imhof, “Party Animal,” and friend

Jeanne Clougher,GLS newsletter editor.

Past Chair, Tom Hall (center) enjoys some time with Chair Joe George and aGovernment Lawyer Section member.

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Ethically Speaking...

Public Officials, or Their Firms,Representing Clients Before theGovernmental Bodies on Which They Serveby Phil Claypool, General Counsel, Florida Commission on Ethics

Attorneys and other professionalswho volunteer to serve in a publiccapacity as members of a collegialboard or other body eventually willfind themselves in a situation wherethey must vote on a matter that af-fects the interests of one of their cli-ents. Generally, these sorts of con-flicts are resolved through disclosureand/or abstention from voting in ac-cordance with the requirements ofSection 112.3143, Florida Statutes. Insome instances, however, the ques-tion arises whether the official, orsomeone from his or her firm, mayrepresent that client in the matterpending before the board or otherbody on which the official is serving.It is both unfortunate, and too com-mon, an understanding that the offi-cial may step down from sitting as amember of the board to represent theclient, or that a member of theofficial’s firm may engage in the rep-resentation before that board, so longas the official recuses himself or her-self.

In a series of decisions dating backto 1977, the Ethics Commission hasconcluded that Section 112.313(7)(a),Florida Statutes, prohibits a memberof a governmental board, as well asthe member’s firm, from represent-ing a client before that same board,regardless of whether the memberabstains from voting on the client’smatter. Section 112.313(7)(a) prohib-its a public officer from having or hold-ing “any employment or contractualrelationship that will create a continu-ing or frequently recurring conflictbetween his or her private interestsand the performance of his or herpublic duties or that would impedethe full and faithful discharge of hisor her public duties.”

The first opinion rendered by theCommission in this area was CEO 77-126,1 involving a member of a city

planning board privately represent-ing as architect clients before theboard. There, the Commission foundthat a prohibited conflict of interestwas created where a member of amunicipal planning board privatelyrepresented clients before that board.The opinion states:

Where a public officer representsclients before his own agency, his in-dependence and impartiality arejeopardized. In our view he is un-able to perform his public dutiesefficiently and faithfully, and theappearance of public office beingused for private gain underminesthe confidence of people in their gov-ernment. Moreover, it is our opinionthat the subject situation fallssquarely within the definition of‘conflict of interest’ containedwithin the Code of Ethics:

‘Conflict’ or ‘conflict of interest’means a situation in which regardfor a private interest tends to leadto a disregard of a public duty orinterest. [Section 112.312(6), F. S.(1976 Supp.).]

Next, in CEO 78-86 the Commis-sion considered a situation where aboard of adjustment member occa-sionally was representing clients be-fore the board of adjustment andfound:

In other words, any representationof a client for compensation beforea board of which one is a memberimpedes the full and faithful dis-charge of one’s public duties, in vio-lation of s. 112.313(7)(a). When oneis employed to make several suchrepresentations, a frequently recur-ring conflict of interest arises, infurther violation of that section.

We previously have advised thatthe Code of Ethics does not prohibit

a public officer’s appearing in hisown behalf before any agency of gov-ernment, including his own agency.See CEO 77-119. However, a differ-ent situation is presented when, asa part of his profession or occupa-tion, an individual undertakes torepresent another person’s inter-ests before his own board. Whenthat occurs, the board member hasthe advantage of knowing inti-mately board procedures as well asthe particular interests, views, andvoting records of its members, andhe can tailor his representation ac-cordingly. In addition, the publicofficer’s independence and impar-tiality are jeopardized. Finally, theappearance of public office beingused for private gain underminesthe confidence of people in their gov-ernment. Such a situation would besimilar to a member of the Com-mission on Ethics being retained torepresent one who is charged witha violation of the Code of Ethics, orto a legislator acting as a paid lob-byist before the Legislature. See s.112.311, F. S., in this regard.

We do not feel that this conflict ofinterest could be mitigated oravoided by having another memberor an employee of the public officer’sprofessional firm represent the cli-ent before his board. The same con-flict of interest and appearance ofconflict of interest would be in-volved in this type of representa-tion, as well as the same direct pri-vate gain to the public officer.

This line of authority was followedin subsequent opinions CEO 79-7 (Cityplanning board member representingclients before planning departmentand other city departments); CEO 81-84 (Town planning commission mem-ber privately serving as president ofconstruction and land development


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corporation); CEO 82-14 (Airport au-thority board member leasing prop-erty from authority and engaging inbusiness with tenant of authority);CEO 85-52 (County commissioner’sspouse attorney with law firm repre-senting client before county commis-sion); CEO 86-41 (City council mem-ber engineer retained by utilitycompany purchasing water from city);and CEO 87-78 (County commis-sioner retained as attorney by publichospital in county).

In CEO 88-40 the question waswhether a city council member orpartners of his law firm would be pro-hibited from representing clients be-fore the city council, and the Com-mission reiterated its conclusion:

In a previous opinion, CEO 77-126,we advised that representing a cli-ent before a public board of whichone is a member would violate thisprovision. Subsequently, in CEO78-86 we advised that such a con-flict of interest could not be miti-gated or avoided by having anothermember or employee of the publicofficer’s professional firm repre-sent the client before his board.

We have advised that a city councilmember could represent clients asa consulting engineer before boardsof the city other than the city coun-cil and that such representationshould be disclosed as provided inSection 112.3145(4), Florida Stat-utes. See CEO 86-47. However, wesuggest that you contact TheFlorida Bar for its opinion on thesetypes of situations, as we note thatOpinion 74-27 of the ProfessionalEthics Committee advised that acity board member could representa client before other city agenciesprovided that the matter had norelationship to any decision madeby the board, the board had no con-trol over any administrative officerbefore whom the attorney wouldappear, and the board had no con-trol over any public official whomight appear in a proceeding as awitness and whose testimony theattorney might have to attack.

Accordingly, we find that a prohib-ited conflict of interest would becreated were you or another part-ner of your law firm to represent a

client before the city council in azoning matter or a request for avariance, if you serve as a memberof the city council.

This conclusion also was referencedin CEO 89-29 (City commissioner em-ployed as executive director of citychamber of commerce) and in CEO 89-47 (County commissioner’s law firmrepresenting local developer).

Most recently, in an opinion thatwas upheld on appeal to the First Dis-trict Court of Appeal, CEO 96-01, percuriam aff ’d.,Korman v. State Com’non Ethics, 710 So.2d 553 (Fla. 1st DCA1996), the Commission considered asituation where a city electric author-ity board member served as “specialcounsel” to a law firm that had repre-sented bond underwriters on author-ity bond issues and had representedclients doing business with the au-thority, concluding:

In past opinions, we have concludedthat representing a client beforethe board of which one is a memberviolates Section 112.313(7)(a), as itinterferes with the full and faithfuldischarge of one’s public dutiesand, where such representationsare frequent, presents a continuingor frequently recurring conflict. SeeCEO 77-126 and CEO 78-86. Wealso have concluded that the sameconflict exists when another mem-ber or employee of the publicofficer’s professional firm under-takes to represent a client beforethe officer’s board. See CEO 78-86and CEO 88-40. On the other hand,in CEO 94-41 we advised that Sec-tion 112.313(7)(a) did not prohibita city council member’s employ-ment as a paralegal with a law firmthat infrequently represented cli-ents before the city council. Thus,essentially, we have followed theBar’s imputed disqualificationrules in this context.

Therefore, we find that, because ofthe Board member’s close, regular,and continuing relationship withthe law firm and duty of loyalty tothe clients of the law firm, a prohib-ited conflict of interest under thesecond part of Section 112.313(7)(a) would exist when the law firmappears before the JEA on behalfof a client, notwithstanding thatthe Board member’s special coun-

sel position does not entail advis-ing the firm about JEA bond is-sues, projects, or contracts. An im-pediment to public duties couldexist for the Board member to fa-vor the law firm or the client (hisprivate interests) and to disregardhis public duty to act independentlyand impartially in the best inter-ests of the JEA, when the firm’srepresentation of the client in-volves the JEA.

The Commission has reached thesame conclusion in complaint pro-ceedings where a board member hasrepresented a client before the boardon which he or she served. In Com-plaint No. 94-115, In re William AllanKing (Final Order No. 95-26, 10/17/95), the Commission concluded thata member of a County Code Enforce-ment Board violated Section 112.313(7)(a) by representing a private clientbefore the Code Enforcement Board.In Complaint No. 95-136, In re JamesNaus (Final Order No. 97-16, 7/22/97), the Commission found that amember of a municipal Planning andZoning Board violated 112.313(7)(a) byrepresenting a private client beforethat Board. In that case, the Admin-istrative Law Judge had concluded:

A violation of Section 112.313(7)(a), Florida Statutes (1993), islikewise proven if it is establishedthat Respondent’s contractual re-lationship with Toucans [as a li-censed contractor contracting withthe bar/restaurant to add an addi-tional story onto its existing build-ing] will impede the full and faith-ful discharge of his public duties. Inthis case, Respondent had a con-tractual relationship with Toucansand represented that client beforethe Zoning Board for the purpose ofseeking a parking variance. By rep-resenting a client before the ZoningBoard on which he served,Respondent’s independence andimpartially were jeopardized; Re-spondent was given an undeniableadvantage over other members ofhis profession or occupation in suchmatters; and strongly presentedthe appearance of public office be-ing used for private gain.

The Commission’s decisions havefollowed the rationale and result of a

continued, page 8

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line of decisions by the Florida Barand the Florida Legislature reachingthe same conclusion, includingFlorida Bar Opinion 65-2, and FloridaBar Opinions 67-5 and 67-5 Supple-ment (both of which were withdrawnby the Board of Governors earlier thisyear). [As this article was being pre-pared, the Bar’s Professional EthicsCommittee was considering ProposedAdvisory Opinion 99-1, noticed in theJuly 15, 1999 issue of The Florida BarNews, addressing the questionwhether a law firm may representclients before a public board or gov-erning body when one of the firm’spartners or associates is a member.]In Opinion 16, the Florida House ofRepresentatives Committee on Stan-dards and Conduct found that in viewof the Bar’s rulings in Opinions 67-5and 67-5 Supplement and its ownopinion issued during the 1967 legis-lative session under Rule 5.9, a con-flict of interest would be created by amember, his law partner, or his lawfirm receiving a fee and participatingin sharing any fees derived fromclaimant cases. Opinion 16 concludedthat a conflict of interest would existif the law partner of a legislativemember caused to be introduced aclaims bill on behalf of a client. SeeJournal, House of Representatives,1971, February 4, p. 119. In Opinion27, the House Committee opined thatwere a member of the Legislature topractice with or be associated with anattorney who is a lobbyist, a “conflictwith the best interests of the Legis-lature and the constituents [he]serve[s]” would exist. Journal, Houseof Representatives, 1974, January 30,page 14.

Philip C. Claypool is the GeneralCounsel and Deputy Executive Direc-tor of the Florida Commission on Eth-ics. He graduated from Purdue Uni-versity and received his law degreefrom Florida State University. He haslectured on the ethics laws for publicofficials at national, state, and localconferences and co-authored aStetson Law Review article on votingconflicts of interest for public officials.

1The full text of the Commission’s opinionsis available on the Commission’s website, atwww.ethics.state.fl.us.

The School Board Attorney:Counsel to 200,000 Clientsby Virginia Tanner-Otts, Associate Counsel,General Counsel’s OfficeThe School Board of Palm Beach County, Florida

IntroductionSchool districts are in the national

news on a daily basis. Frequently thearticles deal with incidents of violence,debates on the merits of dress codes,conflicts related to prayer at gradua-tion or on the school premises, andmany other subjects. These issues onlyreflect the tip of the iceberg of legalconcerns for attorneys that representschool districts. The complexity of thelegal issues affecting school districtsreflects the greater systemic problemsthat exist nationwide and also impactschool districts.

School districts are given the altru-istic charge to correct many of the illsof society through the education of itsyouth, a youth that is bombarded bybroken homes, violence in the massmedia and peer pressures that includedrugs, sex and crime. Children cometo a school district with a variety ofintellectual and physical talents, orlack thereof, and the school district ischarged with the task of doing theimpossible, and it often does. But ineffecting the metamorphous, the taskis overlaid and interlaced with manycomplex issues that have resulted inextensive legal disputes and often liti-gation that may involve staff, studentsand the school district in a wide rangeof controversies. In this scenario,school board attorneys assist the schooldistrict in maneuvering successfullythrough the dangerous waters of com-plex legal issues so as to continue withits state mandated mission to take ouryouth from pre-kindergarten topost-high school and produce educatedand successful, fully functioning citi-zens.

Concomitant with school board at-torneys' legal responsibilities is thecompletion of these responsibilitieswithin the larger context of the schooldistrict and community interests anddemands. The school board is the larg-est employer in many counties, andthrough its governing board, the com-munities elected school board members,

it reflects the economics and politicsof its community. The School Board ofPalm Beach County, Florida has overseventeen thousand employees, eightthousand of which are teachers, andhas approximately one hundred andfifty thousand students. It may be pos-ited that the school board attorney inthis large a district represents morethan two hundred thousand clients, ifthe parents of the students are in-cluded.

Given this backdrop, the schoolboard, with its attorneys helping tonavigate its legal waters, and the com-munity pressing for fulfillment of itsneeds, must successfully take its youthdown the educational river filled withcurves, drop-offs, and falls. The com-munity and the school board concernsand issues set the stage for the schoolboard attorney and present the chal-lenges inherent in the position. For theattorney that seeks unending chal-lenge, constant change, and an over-whelming array of legal issues, thereis no greater place to work than for aschool district. In the following para-graphs, the demographics, structure,and responsibilities will be considered.

DemographicsIn Florida there are 67 school dis-tricts, one for each county. Eachschool board, the governing body fora school district, provides for legalservices. Except for the larger schooldistricts, the school board usuallycontracts with an outside law firm,or lawyer, to provide legal services.Typically, the contract outlines thelawyer's retainer responsibilities fora flat fee, and per hour costs for addi-tional work. The retainer obligationsusually include attending all schoolboard meetings, special meetings, orworkshops and serving as legal advi-sor to the school board at those meet-ings. Also, the retainer fees usuallyinclude a provision for the adminis-tration or the school board membersto call the attorney to ask various le-


9

gal questions, when needed. Theschool board attorneys that are em-ployed full-time by school boardshandle all legal work for that district,with the usual exception of insurancecovered areas. The legal work for agiven school board may include hir-ing and monitoring of outside coun-sel when the workload is excessiveor when specialized areas of legalwork are needed.

StructuresIn most school districts in Florida,

the attorney reports directly to theschool board with a shared responsi-bility to the superintendent and ad-ministration for the day-to-day legalneeds of the district. Whether theschool board attorney reports directlyto the school board or to the boardthrough the superintendent, the attor-ney must be responsible for all the le-gal work for the district. In a limitednumber of legal areas there may be aconflict of interest between the schoolboard and the superintendent that willnecessitate that the school board andthe superintendent employ separatecounsel.

There are a limited number of ar-eas where conflict will arise. The ar-eas of conflict between the superinten-dent and school board's statutoryresponsibilities involve personnel andstudent discipline and collective bar-gaining areas regarding impasse. Spe-cifically, school board employees, teach-ers and non-instructional personnel,have statutorily defined property in-terests in their positions, whereas theUnited States and Florida Constitu-tions, in addition to state statues, pro-tect students' interests.

These property and constitutionalinterests are protected further by thesubstantive and procedural due pro-cess rights provided for pursuant toFlorida's Administrative ProcedureAct. School boards are an agency asdefined by the Administrative Proce-dure Act, and are subject to its provi-sions, except where specifically ex-empted. Student discipline is exemptedfrom the Administrative Procedure Actand remains within the discretion ofthe school board. Student disciplinedue process rights are delineated infederal case law. The AdministrativeProcedure Act and the School Code,ensure that each regular employee’sproperty interests in their jobs are pro-

tected.In student expulsion or employee

discipline or termination cases, thesuperintendent and her/his attorneysare in the role of prosecutor and arerequired by law to present the case tothe school board, and then make rec-ommendations for the disposition of thecase. These cases culminate in pro-ceedings before the school board atwhich time the school board meets ina quasi-judicial capacity and indepen-dently and objectively renders a finaldetermination in each case that in-volves a student or employee. Theschool board attorney serving as boardadvisor is prohibited by law from serv-ing as advisor to the school if the at-torney has been involved in the pros-ecution of the case before the board.Therefore, separate attorneys are re-quired, one for the school board asboard legal advisor and the other forthe superintendent as prosecutor.

AuthorizationA school board's authority to engage

legal counsel and to delineate thoseservices is well established in case law.A number of courts have determinedthat an implied power to hire an attor-ney exists as a necessary incident tothe statutory powers of a school dis-trict or board as a separate corporateentity. Florida Statutes are specificand provide a school board with theauthority to authorize legal servicesand to adopt the necessary policies andprocedures thereto.

Specifically, Section 230.23005(10),Florida Statutes states that:

the school board may adopt poli-cies and procedures necessary forthe daily business operation ofthe school board, including, butnot limited to, the provision oflegal services for the schoolboard.

School boards throughout the stateof Florida have adopted policies andprocedures to implement these ser-vices. In Palm Beach County, schoolboard policy provides for the schoolboard to designate a legal advisor torepresent the school board at schoolboard meetings and to carry out otherresponsibilities as provided for by theschool board.

Consistent with its policy, the PalmBeach County School Board engagesby contract full-time legal counsel to

represent its interests and those of theSuperintendent. Provisions for outsidecounsel, and for representation withrespect to conflict of interests areas,are set forth in contractual provisions.The Palm Beach County School Boardemploys five full-time attorneys, withthe following legal specializations: con-struction, real estate, personnel, em-ployment, procurement, special educa-tion, and administrative law.

ResponsibilitiesPursuant to the National School

Board Association (NSBA), Council ofSchool Attorneys, the school board at-torney should provide the school boardand school administration with legalcounsel and representation in the dailyeducational and business affairs of theschool district. The school boardattorney's responsibilities, like anyother corporate attorney, are addressedmore fully by the American Bar Asso-ciation Model Rules of Conduct, thathave been modified and adopted in thevarious states. In Florida, attorneyprofessional responsibilities for repre-sentation are defined by The FloridaBar Rules of Professional Conduct.

The position of the NSBA Councilof School Attorneys is that an attor-ney employed by a school district owesthe same professional obligation to theschool board client that is no differentthan that owed to any other client thatan attorney may represent. These pro-fessional responsibilities of the schoolboard attorney include the duty to pro-vide competent legal representation, toabide by the client's decisions concern-ing the objectives of legal representa-tion, to act with reasonable diligenceand promptness, and to keep the cli-ent reasonably informed. The respon-sibilities of school board counsel alsoinclude service on legal issues concern-ing governance, finance, real property,pupils, employees, liability, and otherlegal concerns of the schooldistrict.Specifically, the major areas includereview and interpretation of state andfederal constitutions, statutes, andcase decisions; tort law (negligent, con-stitutional, or intentional acts of liabil-ity); contract law and bid specifica-tions; assistance in preparation ofagendas, notices, and minutes; assis-tance with employee discipline and dis-missals, student placement or disci-pline matters, intergovernmental

continued, page 10

10


matters, employment law negotiations,copyrights, condemnation, capital im-provement, legislation, dispute settle-ment negotiations, and litigation in thecourts or administrative tribunals.

The school board attorney has noauthority to advise beyond the confinesof legal matters. The role of the schoolboard attorney is that of legal advisornot policy-maker. The attorney pre-pares and renders legal opinions at therequest of the superintendent, thestaff, the school board, or any memberof the board. In rendering advice andin assessing the legality of alterna-tives, the attorney may help thepolicy-making process by definingproblems. However, the administrationrecommends and the board adopts poli-cies of the school district.

The school board attorney must beknowledgeable in a number of legalareas to carry out effectively the com-plex legal tasks required. These tasksinclude counseling staff and the board,serving as legal advisor at board meet-ings, handling the litigation of theschool district, reviewing and draftingcontracts for the district, advising onemployment and student personnel is-sues, and responding rapid fire to thedaily array of legal questions positedby staff and the school board. One ofthe responsibilities of the school boardattorney is to provide legal counsel toadministrators, teachers, and otheremployees throughout the school dis-trict. Legal questions come to theschool board attorney's attention bymeans of telephone calls, e-mail, andfax. In Palm Beach County, the Gen-eral Counsel's Office designates an at-torney to function as duty attorneyeach day to respond to questions re-ceived from staff throughout the schooldistrict. It is not unusual for the officeto receive in excess of twenty questionsper day. These questions may rangefrom a simple custody issue on releaseof a child at a school site or examina-tion of student records, to a complexcontract issue. The research time nec-essary to respond to each question willvary depending on the issue and mayrequire several hours of legal re-search.

Another area of responsibility in-volves contract drafting and/or reviewand approval with respect to legalform and sufficiency. The contractsdrafted or reviewed include buildingand construction contracts, leases,

easements, interlocal agreements andvarious other consulting and techni-cal service contracts as well as grantproposals and awards. All requests forproposals for services (RFP's) or Re-quests for Information (RFI's) are re-viewed for legal form and sufficiency.Issues related to bids or bid protestsare handled by the school board attor-ney.

A major legal area of concern forschool boards involves the county'sconcurrency requirement that ensuresthat an infrastructure exists for theconstruction of new buildings, includ-ing schools. School boards must workclosely with county officials on the fitbetween school construction andcounty plans for growth. Likewise theschool board has the authority tocharge a school impact for newhomebuyers. Impact Fees are chargedhomebuyers for a new residence, pro-vided there is a countywide school im-pact fee ordinance in place. The schoolboard's authority to require impactfees is dependent on county adoptionof a school impact fee ordinance. Thelegal work necessary for the adoptionof a school impact fee ordinance re-quires extensive knowledge of countyand school statutory provisions, andrequires a cooperative, close workingrelationship between county andschool legal representatives, staffs, andtheir elected officials. Also, cooperativelegal work is required when the countyand school board develop and enterinto interlocal agreements to build,share, and/or maintain playgrounds,athletic fields or other facilities. An-other major area of responsibility forthe school board attorney is as legaladvisor the school board at schoolboard meetings, special school boardmeetings and workshops. These meet-ings require the attorney to be pre-pared to respond to legal questionswith respect to all agenda items. Also,the attorney may serve as the schoolboard's parliamentarian at these meet-ings. Guidelines and materials for pub-lic hearings are prepared by the attor-ney and at those hearings the attorneyserves as legal counsel to the schoolboard.

A complex area of responsibility fora school board attorney is reviewingand updating all school board policiesand procedures. The policies and pro-cedures must be monitored carefullyand updated in detail to reflect all

changes in law. Any policy changemade must comply with the criteriaset forth in Administrative ProcedureAct. The Administrative Procedure Actdoes exempt school boards from manyof the rule making requirements setforth in the Act. School boards are stillrequired to provide appropriate noticeand to advertise policy changes, andto provide public workshops and hear-ings on policy changes. In addition, thechanges are reviewed and discussedextensively by staff members prior tosubmission to the school board. Theprocess of making or changing policycan be complex, demanding and timeconsuming.

School board attorneys in large dis-tricts may also be responsible for over-seeing and monitoring outside attor-ney fees. This process can includereview of legal bills for services as wellas coordination and assistance withdiscovery and other aspects of litiga-tion. In addition, mediation sessionsgenerally require the presence of theschool board attorney.

QualificationsQualifications for the school board

attorney position may vary depend-ing on the availability of expertise inthe areas needed. It is advisable foran attorney that is interested in aposition with a school board to havebeen in practice at least for five yearsand have extensive litigation experi-ence in state and federal courts aswell as before administrative agen-cies. Specialized legal knowledge inthe areas of administrative law, em-ployment law and/or school law isessential. Since the school board at-torney advises in the areas of con-struction and real property, procure-ment, and special education law themore experience the attorney has thebetter. Education, training and expe-rience in the education professioncan be valuable assets. The schoolboard attorney advises also in theareas of Florida's sunshine and pub-lic record laws, the administrativeprocedure act, the collective bargain-ing laws, and a host of additional fed-eral laws. In addition to these quali-fications, the school board attorneyneeds to have solid interpersonalskills in handling legal work amidsta background of the complex andchanging needs of staff, the superin-tendent, and the school board. The


11

attorney will be reporting to severalbosses at the same time and shouldbe ready to adjust when those bosses,who comprise the elected schoolboard, change from time to time be-cause of the electoral process.

SummaryEach school board in Florida employslegal counsel and expects that coun-sel to be well versed in the broad andvaried issues of school law, and themany collateral legal issues that im-pact the school district. The schoolboard attorney's legal responsibilitiesare extensive and go from cover tocover in Florida Statutes, while therewards for the work are substantial.Much of what the school board attor-

ney does is not on the nightly news.However, the school board attorney'swork does enable the school board,superintendent, staff, and teachers tofocus their energies on the schooldistrict's mission and vision, to pre-pare children for productive roles inthe community.

Virginia Tanner-Otts (Scigliano)serves as Associate Counsel in theOffice of The General Counsel for thePalm Beach County School Board.She has been a school board attorneyfor eight years, and has been in PalmBeach County for the past two years.She handles a wide range of legal is-sues for the school district. She ob-tained her B.A. and M.R.C. Degrees

from the University of Florida, herPh.D. in Educational Administrationand Management from the Universityof Texas at Austin, Texas, and her J.D.from Cleveland Marshall College ofLaw, Cleveland State University,Cleveland, Ohio. Prior to her schoolboard attorney experience she servedas a Broward County Assistant StateAttorney for five years, was a lawclerk to the Honorable Paul Roney,Circuit Judge, U.S. Court of Appealsfor the Eleventh District, and lawclerk to the Honorable Elizabeth Kova-chevich, U.S. District Court, MiddleDistrict, Florida. In addition, she hasover ten years of teaching and admin-istrative experience in community col-leges, the private university system.

HANDLEY

surrogate to preserve and exercise those rights for them. Our legislature has recognized this need.The public guardianship law 744.701-708 inclusive was enacted in 1986 to provide guardianship for indigents who

have no one to act as guardian. Indigent is defined as roughly Medicaid eligible, so the threshold is very low andcertainly does not interfere with the private practitioner's need to maintain a viable practice.

How pressing is the need for guardians? Anecdotally and experientially it may approach 30,000 to 50,000 statewide.However, a more definitive figure should be forthcoming as a result of HB 213 (1999) research.

You had posed the question, “is being a guardian considered lawyering?” I do act as the named guardian of all of mywards and also function as attorney for each ward in the administration of the guardianship estate as required bySupreme Court rule. I also administer the public guardianship program, make personnel decisions, purchasing andplanning decisions, policy development and decisions concerning all wards' affairs and the methodology of medicaldecision making for wards.

Additionally, I assess the need to address wards' rights through litigation, contracting and housing and I account forand administer all ward spending and accounting.

By utilizing the public guardian as administrator, lawyer, accountant, and manager this kind of system can provideplenary guardianship to 100 to 150 wards at a unit cost of about $2,200.00 per ward per year. Model expansion hasproven to lower unit cost at the 750 ward level to about $1,650.00 per year. The model utilizes a public guardian lawyer,three court counselors, (case managers) an administrative manager and a secretary.

The 2nd, 11th and 17th Circuits have historically operated on the described model with the 17th Circuit adopting acontractual model with a private university over the last year.

The several other attempts at public guardianship differ in both the nature of the ward populationserved; whether elderly, developmentally disabled, mentally incapacitated, or trauma victims and theextent of the function, person or person and property. Funding sources vary from state funding toprivate grants to local efforts.

We have implemented in the 2nd Circuit an indigency fund supported by filing fees that pay all ofthe adjudication expenses including attorneys' fees and examining committee costs.

In summary we serve a caseload of 120 to 150 with six people on staff, offering a plenary guardian-ship of person and property through a paid adjudicatory process. We do so with the most dedicatedstaff and supportive judiciary in the State of Florida. As a government lawyer I serve the ward andthe needs of the Courts.

I also note that while this model is proven, it should not be considered as exclusive. Other modelsand other funding sources should be examined to arrive at an optimum system which encompasses both good guardian-ship and economy of operation.

Best of luck, Joe, in the coming year as you chair the Government Lawyer Section. Your past dedication to theFlorida State Guardianship Association, The Florida Bar and your recognized pro bono efforts lead me to expect abanner year.

Yours Very Truly,Hugh T. Handley

LETTERfrom page 1

12


VisitTHE SECTION’S WEBSITE at

http://www.flgovlaw.org8

CHAIR’S MESSAGEfrom page 1

States Supreme Court Justice. “Alltoo frequently, older lawyers haveviewed the task of remedying the in-equities in our law and legal systemas that of the young members of thebar. The idea that the public sectorshould be serviced by young lawyers,while older, more experienced law-yers concern themselves only withmore lucrative private practice is apernicious one, because the publicsorely needs the talents and experi-ence of the older practitioner.”

Legal education also has a greatresponsibility. Academia must ad-vance to young lawyers the noble con-cepts of undertaking the very difficultand weighty responsibilities ofAmerican society.

Justice Brennan emphasized that“lawyers must respond not only asprofessionals, but also as citizens torectify the shortcomings of the legalsystem. If the credibility and integ-rity of our legal system are impugnedby the actions and omissions of law-yer-citizens, there will be no generalsupport for the law. Over too manyyears we as lawyers and as citizensstood idly by while minority citizenswere deprived of their most basic le-gal rights. How can we expect muchrespect for the law in one who hasseen how readily even lawyer-citizenstolerated such legal inequities? Whywas it that when legal change finallycame it was not initiated by lawyers,but was forced upon the professionby the rebellion of thousands of youngstudents and the zeal of religious lead-ers like Martin Luther King, Jr.?”

Justice Brennan cited the short-

comings of legislation and court deci-sions in effecting meaningful changeas another cause of disaffected citi-zens’ cynicism of the law. Florida’snew Statewide Public Guardian Law(HB 213) is one positive step to an-swer such cynicism. With the help ofFlorida’s 20 Chief Circuit Judges, thenew Secretary of the Florida Depart-ment of Elder Affairs, and the Attor-ney General’s new Elder Abuse Unitthere will be new hope for those inneed of a more unified statewide el-der care system. As we head into the21st Century it can only be hoped thatall involved work together to disprovethe cynicism, in the words of the greatDr. Samuel Johnson, of “the triumphof hope over experience.” JusticeBrennan believed that, “We must re-double our own efforts by leading theeffort for new legislation to achievereal equality. Legislation to date hascost us, the establishment, almostnothing. Real equality will cost ussomething. Unless we are preparedto pay the price,” it was cautioned,“all our good works in legal assistanceprograms, public defender offices, andthe like are meaningless tinkeringswhich do little more than salve ourconsciences.”

However, we must be constantlyvigilant of the “Law of UnintendedConsequences.” As a recent example,consider the Miami case of Ms.Eunice Liberty, the 95 year old formereducator who was adjudicated incom-petent and for her own protection andneeds was placed into the care of theGuardianship Program of Miami-Dade County. Because of the neces-sary restrictions on her freedom hernumerous admirers and friends pro-tested their lack of access to Ms. Lib-erty with a courthouse demonstrationand appeals to the television andnewspaper media. These actions re-

sulted in the program being court di-rected to allow for easier access tothe Ward, Ms. Liberty, although sheis almost totally incapacitated. As aresult, a well-intentioned guardian-ship program was made to appear un-caring and cruel.

In urging lawyers to constantlywork to overcome the inequities insociety, Justice Brennan advised,“Moral arguments backed by the hardfacts about discrimination and depri-vation are still the most potent forcein the world, in the courtroom, in thelegislatures, and in the cities. Thelonger the inequities of society re-main unaddressed, the more height-ened oppressed citizens’ protests willbe. There are still large segments ofour population who would keep thecountry’s problems out of sight. Theresult is that disaffected groups feelthey must escalate their protests inorder to be heard. Then some usethese very protests as a smoke screento hide the underlying problems. Butwe cannot focus public attention onthe lawlessness in the streets, andnot on its causes – poverty and preju-dice.”

Justice Brennan concluded thatspeech in 1989 by imploring lawyersto take the lead in adapting the legalprocess for a just and equitable soci-ety. “That process will not fail us ifwe try. But we may delay no longer.Let us begin.”

Taking up these same issues, Jus-tice Quince reemphasized, in a firmand positive manner, that those is-sues continue to confront us todayand must be met by the legal com-munity with the same determinationas recommended by Justice Brennan.

Are citizens justified in being sus-picious of the law and legal systemtoday in the United States ofAmerica? What is your opinion?


13

Speakers:

Frank Bartalone, Boca Raton Catherine Lannon, TallahasseeEarl Black, Jr., Tallahassee Bruce Lamb, Tampa

Mary Helen Campbell, Tampa Karen Lloyd, BrooksvilleDavid Bralow, Orlando Martin Reeder, West Palm Beach

Stephanie A. Daniel, Tallahassee Robert Rivas, Boca RatonPatricia R. Gleason, Tallahassee Ken Selvig, West Palm Beach

John G. Hubbard, Dunedin

9:00 a.m. – 9:05 a.m.Introduction — Stephanie Daniel9:30 a.m. – 10:20 a.m.What’s Hot, What’s NotAn Overview on Public Records and Sunshine LawPatricia R. Gleason, Attorney General’s Office,Tallahassee10:20 a.m. – 10:50 a.m.What Happened to Confidentiality?Another Look at Attorney-Client CommunicationsCathy Lannon, Attorney General’s Office,TallahasseeJohn Hubbard, Frazer, Hubbard et al, Dunedin10:50 a.m. – 11:10 a.m. Break11:10 a.m. – 11:50 a.m.Who Needs Discovery?Using Public Records in LitigationBruce Lamb, Shear, Newman, Hahn, &Rosenkrantz, Tampa12:00 noon – 1:30 p.m. Lunch Break1:00 p.m. – 1:40 p.m.Trying Cases in the Court of Public OpinionPublic Records in Criminal ProceedingsKen Selvig, Chief Assistant, State Attorney’s Office,West Palm Beach

Martin Reeder, Steel Hector & Davis, West PalmBeach1:40 p.m. – 3:00 p.m.Sunshine — It’s Not Just For GovernmentAnymoreHow Delegation of Authority Spreads Sunshinefrom Governmental to Non-GovernmentalOrganizationsFrank Bartolone, South Florida Water ManagementDistrict, West Palm BeachRobert Rivas, Rivas & Rivas, Boca Raton3:00 p.m. – 3:20 p.m. Break3:20 p.m. – 4:10 p.m.Government Online?Public Records and Sunshine Law in the ElectronicEraDavid Bralow, Holland & Knight, OrlandoKaren Lloyd, Southwest Florida WaterManagement District, Brooksville4:10 p.m. – 4:50 p.m.The Color of MoneyShining the Sunshine Spotlight on GovernmentProcurement ProceduresEarl Black, General Counsel, Department ofManagement Services, Tallahassee

The Florida Bar Government Lawyer SectionContinuing Legal Education Committee Presents:

Public or Private? Sunshine or Online?Perspectives on the Public Records

and Government in the Sunshine LawsNovember 18, 1999, Miami

November 19, 1999, Orlando

14


Report from Your ABA Liaisonby Sheryl G. Wood

Resolution Passes at ABA Meeting

The Council of the American BarAssociation's Government & PublicSector Lawyers Division (GPSLD)met in Atlanta on August 7, 1999. Asyour liaison I attended this businessmeeting as well as participating insome functions with the Section of

State and Local Government Lawand the Section of Public ContractLaw. At times the ABA meeting pro-grams appear daunting, however,once you get used to the immensityof this bar association that integratesmany segments of lawyers on a na-tional basis, you can really appreci-ate the value.

At the business meeting of theGPSLD future programs are plannedand discussed. One of the topics wasthe 1998 Leadership Institute thatwas held in San Francisco. SusanKnepel, from the State Bar ofWisconsin's Government LawyersDivision, praised the Leadership In-stitute concept and reported on sub-sequent activities of the governmentlawyers in Wisconsin after participa-tion in the San Francisco event. Pro-grams such as these increase the pro-fessionalism and leadership abilitiesof all government lawyers. TheFlorida Bar's Government LawyerSection was a co-sponsor of the SanFrancisco program and based upon arequest from our current leadership,I offered Florida as a possible venue

for the nextLeadership Insti-tute which is be-ing proposed for2000-2001. TheCouncil was veryreceptive to theidea and will fur-ther explorethose possibili-ties with us.

Membershipis also a hot topicat the nationallevel. Both in-creasing and re-taining membersis a high priority.Some of themembership initiatives within the

John Copelan, former GLS Chair and GPSLDImmediate Past Chair with Roy Barnes, Gov-ernor of Georgia. Pictured at GPSLD AnnualMeeting Dinner at the Carter Center on August6.

Roy Barnes, Governorof Georgia. Pictured atGPSLD Annual Meet-ing Dinner at the CarterCenter on August 6.

Happenings at the August ABA Annual Meeting:

GPSLD that have been very effectiveare the development of the Web-basedPublic Lawyer Career Center, LawStudent Public Lawyer CareerEvents, CLE programs and a targetedpromotional recruitment. These aresome items that our Section maywant to consider and I will be happyto give more details at our Septem-ber meeting in Tampa.

The GPSLD next meets in Madi-son, Wisconsin from October 22through October 24. We will alsomeet at the ABA's Midyear Meetingin Dallas, February 11-12, 2000. If youhave any items that you would likeaddressed at these meetings, pleasefeel free to contact me atmailto:[email protected] /[email protected].

Susan Kidd, Director of the GPSLD,reported adoption of the GPSLDivision’s Resolution by the ABAHouse of Delegates in support of gov-ernment lawyers serving in leader-ship capacities in bar associations aswell as using reasonable amounts ofofficial time for participation in suchactivities. This is a significant resolu-tion, passed by the House of Delegates

at the Annual Meeting in Atlanta.— Sheryl Wood

I am happy to report that at theABA annual meeting in Atlanta, theHouse of Delegates voted to adoptthe Division’s resolution on govern-ment lawyer participation in bar ac-tivities. The wording of the final reso-lution is as follows:

RecommendationResolved, that the American Bar Association encourages governmentalentities at all levels to permit government lawyers, including those in ad-ministrative judicial positions, to serve in leadership capacities within pro-fessional associations and societies.

Further Resolved, that the American Bar Association encourages gov-ernmental entities to adopt standards that would authorize governmentlawyers, including those in administrative judicial positions, to (i) makereasonable use of government law office and library resources and facilitiesfor professional development, continuing education and justice system im-provement activities, including pro bono representation, sponsored or con-ducted by bar associations and similar legal organizations; and (ii) utilizereasonable amounts of official time for participation in such activities.

American Bar Association Government and Public SectorLawyers Division Report to the House of Delegates


15

Minutes of the Government Lawyer SectionExecutive Council MeetingJune 25, 1999 - Boca Raton, Florida

In attendance:Anthony Musto Robert J. KraussStephanie Daniel Booter ImhoffThomas D. Hall Peggy QuinceM. Catherin Lannon Pam CicchoneJoseph George Michelle JacksonPhilip W. Maniatty Keith RizzardiHoward Pohl Joel SilversheinJeanne Clougher Sheryl WoodDenise Dytrych James PetersJim Hendrick

Guests:Irene Kennedy QuincyMelissa Tannenbaum

I. The meeting was called to order by thesection chair, Anthony Musto, at 2:40p.m.

II. The minutes of the May 8, 1999, meet-ing, having been distributed prior tothe meeting, were approved withoutcorrections.

III. Chair’s ReportThe chair reported on the coordinated

meeting schedule concept, discussed bythe Council of Sections.

The chair also reported that, with thecreation of new committees and sections,it is likely that Saturday meetings willbe more significant. A straw vote wastaken to determine whether the ExecutiveCouncil favored Saturday meetings. Thevote (8-4) was in favor of continuing withFriday afternoon meetings.

The chair reported that the mentoringproject has resulted in receipt of a num-ber of offers to mentor young lawyers. Mr.Musto asked that Section members goback to their offices and encourage younglawyers to participate in the program as“mentorees.”

The chair reported that a letter hadbeen received from Howard Coker seek-ing donations for the Supreme Court His-torical Society. The Bar seeks donationsof $250.00 - $5,000 per year, for a five-year period from the sections. Joe Georgewill circulate the letter at the September1999 meeting for further action.

The chair reported that the officers ofthe section had their annual dinner withpresident-elect, Edith Osman. In atten-dance were Anthony Musto, JosephGeorge, Sheryl Wood, and Howard Pohl.Ms. Osman was responsive to requests bythe Section officers to appoint govern-ment lawyers to committees of theFlorida Bar. The Section chair also sug-

gested that the meeting with the chair-elect for the 1999-2000 term, HermanRussomano, be set up to coincide with theSeptember 1999 meeting of the Bar.

IV.CLE ProgramsThe Chair reported on the success of

the two recent CLE programs offered bythe Section— the Professionalism Con-ference and Practicing Before the FloridaSupreme Court. There were approxi-mately 70 registrants and about 100participants in the Professionalism Con-ference. The Supreme Court Advocacyprogram was sold out one month beforethe course. The chair suggested that theSection pursue the idea of partneringwith FSU in presenting the SupremeCourt course in the future. Tom Hall is tostudy the issue and then come back witha proposal. A suggestion was made thatthe Section consider partnering with oneof the other Florida law schools as an al-ternative. That option can be consideredwhen Mr. Hall returns with a proposal tothe Section.

V. There was discussion about a move toeliminate the government lawyer “defer-ment” for the Bridge the Gap CLE pro-gram. A motion was made and secondedto recommend that the deferment be re-tained. The motion passed unanimously.Joe George will draft a letter to the Barregarding this issue. Keith Rizzardi of-fered to provide any necessary assistanceon the issue.

VI.The Chair reported that AttorneyGeneral Robert A. Butterworth has pro-posed a reduction in the costs of certifi-cation for government lawyers. TonyMusto has written a letter in support. TheExecutive Council agreed with this ap-proach.

VII. The Treasurer’s Report was given.The reported expenses to date (see DetailStatement of Operations, dated 6/9/99)do not reflect all of the expenses for theProfessionalism Conference or the Su-preme Court Advocacy program.

VIII. A report was given on the Profes-sionalism Conclave.

IX.A report was given on the All Bar Con-ference. The big issue was the ancillarybusiness movement, which does not ap-pear to impact government lawyers.

Cathy Lannon did offer to put together apresentation on the issues relating to theancillary business movement.

X. The report from the Long Range Plan-ning Committee has not been issued.

XI.Committee ReportsPam Cicchone reported regarding her

pro bono survey efforts. She discoveredthat many offices did not disseminatetheir pro bono policies, if one existed. Shesuggested a need to do some educationregarding pro bono. Joe George mentionedthat he also has materials relating to probono surveys.

XII. Old Business - none.

XIII. New BusinessStephanie Daniel raised a recent rule

adopted by the North Carolina SupremeCourt which provides each attorney withthree protected weeks of vacation. Once anotice of vacation is provided, hearings,etc., shall not be scheduled during the va-cation period. Mr. Musto suggested thatthe matter be studied further and consid-ered at the September 1999 meeting.

A suggestion was made by Jim Petersthat a letter be sent to the Attorney Gen-eral, Carlos McDonald, the LegislativeAffairs Director within the AttorneyGeneral’s Office, and relevant state leg-islators thanking them for their supporton the issue of state agency payment ofbar dues for government lawyers. Mr.Peters mentioned that the issue was amore difficult one this year. Mr. Peterswill work with Mr. George to get him thenames of the pertinent people, so thatletters can be sent.

XIV. Election of OfficersThe following officers were elected for

the 1999-2000 year:

• Joseph George, Chair• Howard Pohl, Chair-Elect• Stephanie Daniel, Treasurer• Clark Jennings, Secretary

Additionally, Appellate District Rep-resentatives and At-Large Council Mem-bers were elected.

XV. AwardsThe chair recognized the following per-

sons for their work in the past year:• Booter Imhoff, for his work on“Demystifying the Legislature”

16


• Tamara Scrudders, for her work on theSection Newsletter• Joe Mellichamp and Tom Hall, fortheir work on “Practice Before the FloridaSupreme Court”• Susan Cabrera, for her work as theBoard Liason

Additionally, a proclamation was pre-sented to Joe George, who will serve asthe first Section chair during the nextmillennium.

XVI. New Chair’s AgendaJoe George discussed several of the

initiatives and projects which he intendsto pursue as Section chair. Mention wasmade of the Pro Bono project, the Govern-ment Lawyer salary survey (being con-ducted by Clark Jennings and Mitch

Franks), the Mentoring project, and thecompilation of a new Section directory.

The new chair mentioned the FloridaBar’s Communications Plan, and the useof the new logo.

Mr. George also discussed the Su-preme Court Historical Society fundingrequest submitted by Howard Coker. Mr.George stated that he plans to recom-mend in September that the ExecutiveCouncil approve the expenditure of $250per year for five years for this purpose.Ms. Wood suggested the possibility of of-fering “in-kind” services.

The new chair also asked that allmembers advise him before the Septem-ber 1999 meeting with HermanRussomano regarding their committeepreferences.

The chair mentioned the July 16,

The Florida Bar650 Apalachee ParkwayTallahassee, FL 32399-2300

BULK RATEU.S. POSTAGE

PAIDTALLAHASSEE, FL

Permit No. 43

1999, Leadership conference for Bar andSection Leaders, which will be held inTallahassee, Florida. Council memberswere encouraged to attend.

XVII. Ms. Clougher asked that Sectionmembers make the Government LawyerSection Web Page their “home page” sothat the section can increase the numberof “hits” to the page.

XVIII. Finally, a presentation wasmade to Anthony Musto, as outgoingchair.

XIX. There being no further business ofthe council, the meeting was adjournedat 4:07 p.m.

Respectfully submitted,Stephanie A. Daniel

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