Role of the Clerk as Comptroller As Interpreted by the Courts

1. Role of the Clerk as ComptrollerAs Interpreted by the Courts FCCC Winter Conference Jacksonville, FL January 30, 2014 Facilitators: Hon. Dwight E. Brock, Esq., CPA, Clerk of Court, Collier County Crystal Kinzel, Finance Director, Collier County

2. Clerk’s Role Florida Constitution Article VIII: Section 1 (d) COUNTY OFFICERS. There shall be elected by the electors of each county, for terms of four years, a sheriff, a tax collector, a property appraiser, a supervisor of elections, and a clerk of the circuit court; except, when provided by county charter or special law approved by vote of the electors of the county, any county officer may be chosen in another manner therein specified, or any county office may be abolished when all the duties of the office prescribed by general law are transferred to another office. When not otherwise provided by county charter or special law approved by vote of the electors, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds.

3. Role: Further Defined by the Court Supreme Court of Florida ALACHUA COUNTY v. A. Curtis POWERS, Clerk of the Circuit Court of Alachua County 1977 The Supreme Court, Adkins, J., held that: • Clerk was county auditor, accountant and custodian of all funds of county • Preaudits were to be conducted by clerk in his capacity as county auditor • … • Clerk had investment discretion of county funds except for those surplus funds directed by resolution of board to be invested pursuant to their directions

4. Accountant & Auditor Accounts Payable: Disbursements FS 129.09 Payroll Processing Cash Management Debt Management Investment of Funds FS 28.33 Responsibility for Comprehensive Annual Financial Report (CAFR): FS 218.32

5. Accountant & Auditor • Prior to Payment • Board Approved • Determination of Valid Public Purpose • Legality of Payment: Fiscal Review • Internal Audit Role: After Payment • Brock v. Collier County 2010

6. FLORIDA STATUTE: 28.33 The clerk of the circuit court in each county shall invest county funds in excess of those required to meet expensesas provided in s. 218.415. No clerk investing such funds shall be liable for the loss of any interest when circumstances require the withdrawal of funds placed in a time deposit and needed for immediate payment of county obligations. Except for interest earned on moneys deposited in the registry of the court, all interest accruing from moneys deposited shall be deemed income of the county and may be expended as receipts of the county as approved by the board of county commissioners pursuant to chapter 129…

7. Brock v. Collier County04-941CA Circuit Court Order The Court finds no grant of authority to the Clerk that gives him the duty of preparing and certifying the accuracy of the County’s financial statements, including the annual management representation letter. Affirmed on Appeal

8. FLORIDA STATUTE: 218.32(b) The chair of the governing body and the chief financial officer of each local governmental entity shall sign the annual financial report submitted pursuant to this subsection attesting to the accuracy of the information included in the report. The county annual financial report must be a single document that covers each county agency.

9. FLORIDA STATUTE: 129.09 Any clerk of the circuit court, acting as county auditor, who shall sign any warrant for the payment of any claim or bill or indebtednessagainst any county funds in excess of the expenditure allowed by law, or county ordinance, or to pay any illegal charge against the county, or to pay any claim against the county not authorized by law, or county ordinance, shall be personally liablefor such amount, and if he or she shall sign such warrant willfully and knowingly he or she shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

10. What istheClerk’s role in determining legality?

11. Do you verify the receipt of goods and services?How thorough are you?

12. OkaloosaAudit Description: 2011 MARQUIS 420SC #MQYU30731011 Yacht promotional campaign, overnight summer giveaways, wedding promotions, snow bird campaigns and National contest giveaway. One year advertising & marketing support of the campaign developed and managed by Zimmerman, TDC partnership with Legendary Marine.

13. Vendor Comment on Contract Discount

14. Are you ActuallyReceiving theGoods & Services? Wardrobe 1 Wardrobe Purchase $ 5,988.16 1 Wardrobe Rental $ 2,000.00 Miscelleanous Catered Breakfast & Lunch 20 people (1 day) $ 3,066.22 Note: ($76.67 per meal per person) $ 11,054.38

15. How many of you have acounty purchasing policythat delegates the authorityto purchase under a certain dollar amount without board approval?

16. Florida Statute 125.74County Organization - County Government: “County Administrator Powers” … (m) Negotiate leases, contracts, and other agreements, including consultant services, for the county, subject to approval of the board, and make recommendations concerning the nature and location of county improvements. … (2) It is the intent of the Legislature to grant to the county administrator only those powers and duties which are administrative or ministerial in nature and not to delegate any governmental power imbued in the board of county commissioners as the governing body of the county pursuant to s. 1(e), Art. VIII of the State Constitution. To that end, the above specifically enumerated powers are to be construed as administrative in nature, and in any exercise of governmental power the administrator shall only be performing the duty of advising the board of county commissioners in its role as the policy-setting governing body of the county.

17. Attorney General Opinion 2001-29 The county commission must make a determination that an expenditure serves a county purpose prior to the clerk of court issuing a warrant for payment. The initial determination of whether an expenditure serves a county purpose may not be delegated to the clerk of court. However, once the county commission finds that an expenditure serves a county purpose, for example, by entering into an agreement for the purchase of goods or services, and the clerk of court determines that the expenditure is not illegal, the clerk may issue a warrant without further action by the commission. This language suggests that the board of county commissioners is responsible for approving the payment of any claim against the county prior to its being presented to the clerk of court for payment. Thus, the statutory scheme contemplates that the board of county commissioners initially order the payment of warrant, prior to the clerk’s pre-audit determination of whether the payment is for a legal purpose. Accordingly, it is my opinion that the clerk of court in a non-charter county is not authorized to pay county bills that have not been previously approved for payment by the county commission.

18. Attorney General Opinion 88-61 This office has previously recognized the general rule that a public officer cannot delegate his or her discretionary powers, except as prescribed by statute. [9] Thus, in determining whether a delegation of authority is proper, a distinction between ministerial duties and discretionary functions must be made. [10] Those duties which do not involve the exercise of an independent governmental discretion, judgment or authority are considered ministerial and may be delegated. [11] By contrast, those duties involving the exercise of independent judgment and discretion may not be delegated, absent statutory authority. It appears that the authority to execute contracts which obligate the county involves the exercise of independent discretion and judgment which may not be delegated absent statutory authority. I have not found, nor have you brought to my attention, any statutory authority which would allow a county administrator to be delegated discretionary powers held by the board of county commissioners. On the contrary, as noted above, the Legislature has specifically provided that the county administrator’s powers are limited to administrative or ministerial duties. In the absence of any statutory authority therefor, I am unable to conclude that the power to execute contracts on behalf of the county commission may be delegated to a county administrator. Ultimately, however, whether a claim for payment is valid is a determination which must be made by the clerk of the circuit court acting as county auditor.

19. How many of you are making advance payments forgoods and services?FPL, FDOT, Non-Profits

20. Attorney General Opinion056-151 This constitutional provision contemplates that as “ex-officio auditor of the county” the clerk of the circuit court shall audit all claims against the county that are presented for payment by the county (State v. Wheat, 103 Fla. 1, 137, So 277, text 283). Where county funds are delivered to a non-county agency, association or corporation, although such funds be used for a county purpose, to be paid out and distributed by such agency, association or corporation, this constitutional provision is violated. Sections 129.08 and 129.09, F.S., clearly contemplate that county funds, unless otherwise expressly provided by statute or the constitution, be paid out by the warrant of the county commissioners after the account or claim has been audited and approved by the clerk of the circuit court.

21. Advance Payments: FS 28.235 The clerk of the circuit court is authorized to make advance payments on behalf of the county for goods and services, including, but not limited to, maintenance agreements and subscriptions, pursuant to rules or procedures adopted by the Chief Financial Officer for advance payments of invoices submitted to agencies of the state.

22. State of Florida: CFO Rules 69I-40.120 Advance Payments (1) Advance payment may be made in accordance with Section 216.181(16), Florida Statutes, Section 215.422(14), Florida Statutes, or as otherwise provided by law. (2) Agencies wishing to make advance payment under the provisions of Section 216.181(16)(b), Florida Statutes, but in a manner other than that required by that section must request a waiver of the section from the Chief Financial Officer. The request for waiver must include the appropriation line item number, justification for advancing funds in a manner other than as required by Section 216.181(16)(b), Florida Statutes, and show why such advance payment is in the best interest of the State. Requests for waiver should be addressed to: Bureau of Auditing, Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-0355 After reviewing the request and consulting with the appropriations committees of both houses of the Legislature, the Chief Financial Officer’s Office will notify the agency in writing of the approval or disapproval of the request. (3) Advance payment may be made under the provisions of Section 215.422(14), Florida Statutes, in accordance with the following: (a) Advance payment may be made for maintenance agreements, software license agreements, and subscriptions which meet one of the following criteria: 1. Advance payment will result in a savings to the State which is equal to or greater than the amount the State would earn by investing the funds and paying in arrears. 2. The goods or services are essential to the operation of a State agency and are available only if advance payment is made. 3. Payments which are equal to or less than the threshold of category two as defined in Section 287.017, Florida Statutes and which meet one of the above criteria do not require prior approval of the Chief Financial Officer. The voucher requesting payment must document that the payment meets one of the above criteria. 4. Prior approval of the Chief Financial Officer is required for advance payment in excess of the threshold of category two as defined in Section 287.017, Florida Statutes. (b) Advance payment may be made for other goods or services if approved in advance by the Chief Financial Officer. Criteria for approval shall include: 1. Advance payment will result in a savings to the State which is equal to or greater than the amount the State would earn by investing the funds and paying in arrears. 2. The goods or services are essential to the operation of a State agency and are available only if advance payment is made. Specific Authority 17.29, 215.422(14) FS. Law Implemented 215.422, 216.181 FS. History–New 1-8-95, Amended 12-29-96, Formerly 3A-40.120.

23. Custodian of Funds: Bank Accounts Qualified Public Depository (QPD) “Private” contributions v. “Public” Funds Accepting Credit/Debit Card Payments

24. Who controls your banking contract? Do departments contract for services independent of your purview?

25. Bank Accounts • Contract for Banking Services (Joint effort between Clerk and Board) • Board, staff, and other groups cannot hold county funds outside purview of the Clerk

26. Can someone explain what a QPD is? Why are they important?

27. Florida Statute: 280.03 Public deposits to be secured; prohibitions; exemptions.—(1)(a) All public deposits shall be secured as provided in this chapter when public depositors comply with the requirements of this chapter. (b) Public deposits shall be made in a qualified public depository unless exempted by law. (2) Public funds shall not be deposited directly or indirectly in negotiable certificates of deposit. (3) The following are exempt from the requirements of, and protection under, this chapter:(a) Public deposits deposited in a bank or savings association by a trust department or trust company which are fully secured under trust business laws. (b) Moneys of the System Trust Fund, as defined in s. 121.021(36). (c) Public deposits held outside the country. (d) Wire transfers and transfers of funds solely for the purpose of paying registrars and paying agents. (e) Public deposits which are fully secured under federal regulations. (f) Public deposits made in accordance with s. 17.57(7) or s. 218.415(23).

28. Do You Have QPD Issues? Red Light Bank Account Credit/Debit Card Processing Individual Department Financial Processing – i.e. Utility billing/Lockbox

29. Have you ever checked with the banking institutions in your area for accounts using the county’s tax ID?

30. Statute Entitling Clerk to Depository Information F.S. 136.08 Accounts subject to examination by authorized persons.—The accounts of each and every board and the county accounts of each and every depository, mentioned or provided for in this chapter, shall at all times be subject to the inspection and examination by the county auditor and by the Auditor General.

31. “Private” Contributionsv. “Public” Funds Freedom Memorial Friends Groups Non-Profits – Program Income

32. Accepting Credit/Debit Card Payments Acceptance of Credit/Debit Card Payments must be under the purview of the Clerk • Departmental Procedures • Funds must be deposited to authorized accounts

33. Credit/Debit Card Purchases How many people in your county have the ability to purchase using a county credit card? Do they need to file financial disclosure forms? Are you applying the same expenditure audits to these purchases as you do to other purchases?

34. Disbursements How many of you have your warrants approved by the Board ? Do you include payroll?

35. Florida Statute: 136.06 Withdrawal of funds from depositories; direct deposit; transfer of funds.—(1) All money drawn from any depository qualified under the provisions of this chapter shall be upon a check or warrant issued by the board or officer drawing the same, said check or warrant, both as to number and amount, person to whom drawn and purpose for which drawn shall be recorded in the minutes of the board having ordered the same drawn, and each check or warrant so drawn shall be signed by the chair of said board, attested by the clerk or secretary of said board with the corporate seal thereof affixed; however, money under the control of any school board may be withdrawn as may be otherwise provided by law.

36. Standardization? How one office performs their functions impacts us all. “The other Clerks don’t do it that way”

37. Thank You Visit the Collier Clerk’s website at: www.collierclerk.com FCCC Winter Conference Jacksonville, FL January 30, 2014