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Cypen & Cypen
NEWSLETTER
for
JUNE 20, 2003

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. FLORIDA PUBLIC TRAVELERS GET PER DIEM AND SUBSISTENCE RELIEF:
For months we have been railing against Florida’s out-of-date system for reimbursing public travelers for lodging and meals (see C&C Newsletters for March 28, 2003, Item 1, March 20, 2003, Item 1 and January 15, 2003, Item 1). Well, lo and behold, on June 10, 2003, Governor Bush signed into law CS/SB 1426, creating Chapter 2003-125, basically exempting municipalities and agencies (including pension boards) from Section 112.061, Florida Statutes, dealing with per diem and travel expenses of public travelers. First a review of what has been replaced. Section 112.061(6), Florida Statutes, deals with rates of per diem and subsistence allowance. Public travelers had the option to receive $50.00 per diem or, if actual expenses exceed $50.00, the actual expenses for lodging at a single-occupancy rate plus the following amounts for subsistence: Breakfast - $3, Lunch - $6 and Dinner - $12. In AGO 2003-01 (January 3, 2003) the Florida Attorney General held that the foregoing rates apply to municipalities, are the maximum allowable and may not be modified at the local level. The new law avoids the dilemma in a rather inventive way: it amends Section 166.021, Florida Statutes, part of the Municipal Home Rule Powers Act, to provide that the governing body of a municipality or an agency may provide for a per diem and travel expense policy for its travelers that varies from the provisions of Section 112.061, Florida Statutes. A municipality or an agency that provides any per diem and travel expense policy pursuant to newly-created Section 166.021(10), Florida Statutes, shall be deemed exempt from all provisions of Section 112.061, Florida Statutes. A municipality or agency that does not provide a per diem and travel expense policy pursuant to new subsection(10) remains subject to all provisions of Section 112.061, Florida Statutes. Further, any such policy provided by a municipality or an agency on January 1, 2003 shall be valid and in effect for that municipality or agency until otherwise amended. (In other words, any city or pension board that was in technical violation of Section 112.061, Florida Statutes, by virtue of AGO 2003-1, is protected.) And in order to insure the foregoing retroactive protection, Chapter 2003-125 is retroactive to January 1, 2003. We recommend that all pension boards examine their current travel expense policies in light of the new provision. As a convenience to our readers, full text of the amendment follows.

ENROLLED

2003 Legislature CS for SB 1426, 4th Engrossed
An act relating to governmental per diem and
travel expenses; amending s. 166.021, F.S.;
providing definitions; authorizing
municipalities and agencies thereof to adopt
per diem and travel expense policies for
travelers, notwithstanding s. 112.061, F.S.;
providing for retroactive application;
providing for applicability of s. 112.061,
F.S., if per diem and travel expense policies
are or are not adopted; providing for offenses
related to false or fraudulent travel claims;
providing misdemeanor penalties; providing for
civil liability; amending s. 112.061, F.S.;
providing that counties, county officers,
district school boards, and certain special
districts may increase specified rates;
providing effective dates.

WHEREAS, the Municipal Home Rule Powers Act, chapter
166, Florida Statutes, provides that the governing body of
each municipality has the power to enact legislation
concerning any subject matter upon which the Legislature may
act, and
WHEREAS, the Florida Attorney General, in AGO 1974-18,
stated that municipalities, under the Municipal Home Rule
Powers Act, have the home rule powers to enact per diem and
travel allowances that vary from those specified in section
112.061, Florida Statutes, and
WHEREAS, numerous municipalities in the state have
relied on the grant of home rule powers and AGO 1974-18 to
enact reasonable per diem and travel allowances as determined
by the governing body of the municipality, and
WHEREAS, the Florida Attorney General, in AGO 2003-01,
has essentially reversed the opinion set forth in AGO 1974-18
and has now stated that section 112.061, Florida Statutes,
applies to municipalities and controls the maximum rate of per
diem and other allowances paid to officers, employees, or
others authorized to act on behalf of the municipality, and
WHEREAS, AGO 2003-01 clearly violates the intent of the
Municipal Home Rule Powers Act, and places municipalities that
have relied on AGO 1974-18 into the position of having to
repeal their policies on reasonable per diem and travel
allowances in order to comply with AGO 2003-01, NOW,
THEREFORE,
Be It Enacted by the Legislature of the State of Florida:
Section 1. Subsection (10) is added to section
166.021, Florida Statutes, to read:
166.021 Powers.--
(10)(a) As used in this subsection, the term:
1. "Authorized person" means a person:
a. Other than an officer or employee, as defined in
this paragraph, whether elected or commissioned or not, who is
authorized by a municipality or agency thereof to incur travel
expenses in the performance of official duties;
b. Who is called upon by a municipality or agency
thereof to contribute time and services as consultant or
advisor; or
c. Who is a candidate for an executive or professional
position with a municipality or agency thereof.
2. "Employee" means an individual, whether
commissioned or not, other than an officer or authorized
person as defined in this paragraph, who is filling a regular
or full-time authorized position and is responsible to a
municipality or agency thereof.
3. "Officer" means an individual who, in the
performance of his or her official duties, is vested by law
with sovereign powers of government and who is either elected
by the people, or commissioned by the Governor and who has
jurisdiction extending throughout the municipality, or any
person lawfully serving instead of either of the foregoing two
classes of individuals as initial designee or successor.
4. "Traveler" means an officer, employee, or
authorized person, when performing travel authorized by a
municipality or agency thereof.
(b) Notwithstanding s. 112.061, the governing body of
a municipality or an agency thereof may provide for a per diem
and travel expense policy for its travelers which varies from
the provisions of s. 112.061. Any such policy provided by a
municipality or an agency thereof on January 1, 2003, shall be
valid and in effect for that municipality or agency thereof
until otherwise amended. A municipality or agency thereof that
provides any per diem and travel expense policy pursuant to
this subsection shall be deemed to be exempt from all
provisions of s. 112.061. A municipality or agency thereof
that does not provide a per diem and travel expense policy
pursuant to this subsection remains subject to all provisions
of s. 112.061.
(c) Travel claims submitted by a traveler in a
municipality or agency thereof which is exempted from the
provisions of s. 112.061, pursuant to paragraph (b), shall not
be required to be sworn to before a notary public or other
officer authorized to administer oaths, but any claim
authorized or required to be made under any per diem and
travel expense policy of a municipality or agency thereof must
contain a statement that the expenses were actually incurred
by the traveler as necessary travel expenses in the
performance of official duties and shall be verified by a
written declaration that it is true and correct as to every
material matter; and any person who willfully makes and
subscribes any such claim that he or she does not believe to
be true and correct as to every material matter, or who
willfully aids or assists in, or procures, counsels, or
advises the preparation or presentation of such a claim that
is fraudulent or is false as to any material matter, whether
or not such falsity or fraud is with the knowledge or consent
of the person authorized or required to present such claim,
commits a misdemeanor of the second degree, punishable as
provided in s. 775.082 or s. 775.083. Whoever receives an
allowance or reimbursement by means of a false claim is
civilly liable in the amount of the overpayment for the
reimbursement of the public fund from which the claim was
paid.

Section 2. Subsection (14) is added to section
112.061, Florida Statutes, to read:
(14) APPLICABILITY TO COUNTIES, COUNTY OFFICERS,
DISTRICT SCHOOL BOARDS, AND SPECIAL DISTRICTS.--
(a) Rates that exceed the maximum travel reimbursement
rates for nonstate travelers specified in s. 112.061(6)(a) for
per diem, in s. 112.061(6)(b) for subsistence, and in s.
112.061(7)(d)1. for mileage may be established by:
1. The governing body of a county by the enactment of
an ordinance or resolution;
2. A county constitutional officer, pursuant to
Article VIII, s.1.(d) of the State Constitution, by the
establishment of written policy;
3. The governing body of a district school board by
the adoption of rules; or
4. The governing body of a special district, as
defined in s. 189.403(1), except those special districts that
are subject to s. 166.021(10), by the enactment of a
resolution.
(b) Rates established pursuant to paragraph (15)(a)
must apply uniformly to all travel by the county, county
constitutional officer and entity governed by that officer,
district school board, or special district.
(c) Except as otherwise provided in this subsection,
counties, county constitutional officers and entities governed
by those officers, district school boards, and special
districts, other than those subject to s. 166.021(10), remain
subject to the requirements of this section.

Section 3. This act shall take effect upon becoming a
law and section 166.021(10)(a) and (b), Florida Statutes, as
created in section 1, of this act shall apply retroactively to
January 1, 2003.


CODING: Words stricken are deletions; words underlined are additions.

Copyright, 1996-2004, all rights reserved.

Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.


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