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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: February 9, 1997
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TIME: Commenced at 1:00 p.m.
11 Concluded at 5:50 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
JULIE L. DOHERTY
15 MONA L. WHIDDON
Court Reporters
16 Division of Administrative Hearings
The DeSoto Building
17 1230 Apalachee Parkway
Tallahassee, Florida
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1 APPEARANCES
2 W. DEXTER DOUGLASS, CHAIRMAN
3 CARLOS ALFONSO
CLARENCE E. ANTHONY
4 ANTONIO L. ARGIZ (ABSENT)
JUDGE THOMAS H. BARKDULL, JR.
5 MARTHA WALTERS BARNETT
PAT BARTON
6 ROBERT M. BROCHIN
THE HONORABLE ROBERT A. BUTTERWORTH
7 KEN CONNOR
CHRIS CORR (EXCUSED)
8 SENATOR ANDER CRENSHAW
VALERIE EVANS
9 MARILYN EVANS-JONES
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS
12 THE HONORABLE GERALD KOGAN
DICK LANGLEY
13 JOHN F. LOWNDES
STANLEY MARSHALL
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT
18 H. T. SMITH (EXCUSED UNTIL 4:21 p.m.)
ALAN C. SUNDBERG
19 JAMES HAROLD THOMPSON
PAUL WEST
20 JUDGE GERALD T. WETHERINGTON (ABSENT)
STEPHEN NEAL ZACK
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IRA H. LEESFIELD (ABSENT)
22 LYRA BLIZZARD LOGAN (EXCUSED)
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1 PROCEEDINGS
2 (Roll taken and recorded electronically.)
3 SECRETARY BLANTON: Unauthorized visitors, please
4 leave the chamber. All commissioners indicate your
5 presence.
6 CHAIRMAN DOUGLASS: Madam Secretary, are we
7 ready?
8 SECRETARY BLANTON: Quorum present, Mr. Chairman.
9 CHAIRMAN DOUGLASS: All right. If everybody
10 would please take their seats. Will the commissioners
11 and guests in the gallery please rise for the opening
12 prayer, given this afternoon by the Reverend John F.
13 Green by the Bethel A.M.E. Church in Tallahassee.
14 Reverend Green, if you would come forward, please.
15 REVEREND GREEN: Let us pray. Eternal God, who
16 committest to us the swift and solemn trust of life,
17 since we know not what a day may bring forth but only
18 that the hour for serving thee is always present, may
19 we approach the afternoon of this day with the zeal to
20 do thy holy will. Increase in us, O God, a true
21 knowledge of thy holy will so that we may devote
22 ourselves to thy service in word and deed, and that
23 doing thy will with cheerfulness and diligence, and
24 bearing all of our trials with patience, we may go on,
25 through thy mercy into the joy of everlasting life.
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1 Amen.
2 CHAIRMAN DOUGLASS: Thank you. Commissioner
3 Langley, will you come forward, please, and lead us in
4 the Pledge of Allegiance.
5 (Pledge of Allegiance.)
6 CHAIRMAN DOUGLASS: I have been informed that
7 Commissioner Corr's father died over the weekend. He
8 was apparently in a tractor accident resulting in his
9 death. And so Commissioner Corr will not be with us
10 this week because of that, and we all, I think, really
11 want to extend to him and his family our sincere
12 sympathy during their bereavement. Sudden deaths of
13 this nature are always quite hard and we know what
14 he's going through.
15 All right. We'll now proceed to the daily order
16 of business. And I recognize the Chairman of Rules
17 Committee, Commissioner Barkdull.
18 COMMISSIONER BARKDULL: Thank you, Mr. Chairman.
19 Members of the Commission, you have on your desk the
20 calendar of the Commission for today and the remainder
21 of this week; it's blocked out on the first page. You
22 will note that you also have on your desk a gold
23 packet. This is the order of the proposals that will
24 be considered on the special order. And if we do not
25 conclude these today, of course, retain these because
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1 we will pick up tomorrow where we left off today.
2 There are committee meetings scheduled, as you
3 will notice on the block calendar, for this afternoon,
4 the Select Committee on Initiatives, and tomorrow
5 afternoon, the Select Committee on Sovereign Immunity.
6 And Commissioner Mills, do you have any report on the
7 Select Committee on Article V?
8 CHAIRMAN DOUGLASS: Commissioner Mills, you are
9 recognized.
10 COMMISSIONER MILLS: Mr. Chairman, yes, we met
11 this morning and have made some progress. We intend
12 to meet again this afternoon in Room 317C at five
13 o'clock.
14 COMMISSIONER BARKDULL: As you have indicated in
15 the materials that were indicated to you last week,
16 the Chairman has set three public hearings. The one
17 in March, which will be up here, on Friday, March the
18 20th, will be a televised call-in program from around
19 the state. As has been indicated in the previous
20 materials sent to you, there will only be a limited
21 participation by members of the Commission. Those of
22 you that would like to attend that, I suggest that you
23 deliver your names to the executive director or
24 another member of the staff.
25 And with that, Mr. Chairman, that concludes
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1 announcements, and we are ready to proceed to the
2 order of business on reconsideration and special
3 order.
4 CHAIRMAN DOUGLASS: All right. The first item on
5 reconsideration is Proposal 107, which we have
6 deferred a couple of times, and it was on a motion to
7 reconsider. The motion to reconsider has not been
8 voted on as to whether or not it will be reconsidered.
9 I believe that's correct; is it not, Commissioner?
10 Correct.
11 So, what we have to do first is vote whether or
12 not to reconsider Proposal 107, which was -- did not
13 receive a majority vote when it came up on
14 January 14th, 1998, and therefore it's here now on
15 reconsideration. Incidentally, the rules allow the
16 debate on a motion to reconsider on the issue of
17 whether or not to reconsider since the underlying
18 question is a proposal. Therefore, the debate is
19 limited to whether or not we grant reconsideration.
20 It's not to be a debate on the merits. The debate on
21 the merits would come if the vote for reconsideration
22 carries. And it requires a majority of those present
23 and voting to carry.
24 With that, I believe I'm right, am I not, Madam
25 Secretary? Reasonably close. And who would like to
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1 be recognized on the motion to reconsider? I think it
2 was made by Commissioner Connor. You are recognized,
3 Commissioner Connor.
4 COMMISSIONER CONNOR: Thank you. It's not my
5 intention to belabor the discussion that we have
6 already had as it relates to this matter. In terms of
7 why I believe you should reconsider this matter, I
8 would simply call your attention to two different news
9 articles that have come to light since our last
10 discussion which I feel may have a bearing on your
11 decision to reconsider or not.
12 One of those articles published in the Orlando
13 Sentinnel most recently reported on a settlement in a
14 lawsuit that was arrived at with respect to a claim
15 filed on behalf of parents against a church in the
16 Orlando area where the church had, without the
17 parents' consent, baptized their children.
18 As a consequence of that, and frankly, I don't
19 know if they were sprinkled and dunked, as far as that
20 goes, but the upshot of it was that a claim was
21 brought against the church or a violation of privacy
22 rights and the rights of the parents to secure and to
23 protect and to bring forth the upbringing of their
24 children and said that this church acted in a tortious
25 manner in acting without their consent.
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1 So, by sprinkling them or dunking the children,
2 under those circumstances, that gave rise to a private
3 cause of action, which ultimately resulted in a
4 settlement.
5 In a second case, I read a report in the Saturday
6 edition of the St. Petersburg Times in which the State
7 Supreme Court ruled that two 15-year-old Ocala boys
8 who had had sex with 12-year-old girls could be
9 prosecuted under one of Florida's statutory rape laws.
10 That was a unanimous decision. The Court stated that
11 whatever privacy interest a 15-year-old minor has in
12 carnal intercourse is clearly outweighed by the
13 State's interest in protecting 12-year-old children
14 from harmful sexual conduct, irrespective of whether
15 the 12-year-old consented to the sexual activity.
16 Justice Harry Lee Amstead wrote for the Court,
17 according to the report of the Times.
18 I only bring those matters to the body's
19 attention, Mr. Chairman, to demonstrate what I believe
20 is a schizophrenic pattern that's developed as it
21 relates to the ability of minor children to consent to
22 medical treatments, specifically, to abortion. And I
23 urge your favorable reconsideration of the vote.
24 Thank you.
25 CHAIRMAN DOUGLASS: Your debate was well within
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1 the limits of anybody's requirements. Commissioner
2 Langley.
3 COMMISSIONER LANGLEY: Thank you, Mr. Chairman.
4 I would like to add to that, in conversation with
5 Commissioner Connor and others, if perhaps this matter
6 could be reconsidered and tabled for now, that a
7 fall-back position, so to speak, a parental
8 notification might be considered that would solve a
9 lot of the problems that were brought up by some of
10 the opponents of this. We did not have that
11 opportunity previously and that opportunity would be
12 before us if we were to reconsider it.
13 CHAIRMAN DOUGLASS: All right. Does anyone else
14 want to be heard on the motion to reconsider? If not,
15 we'll proceed to vote. All in favor of
16 reconsideration, say aye. Opposed?
17 (Verbal vote taken.)
18 CHAIRMAN DOUGLASS: Chair is in doubt, unlock the
19 machine. All right. Everybody vote? I think there
20 were more present than have voted.
21 (Vote taken and recorded electronically.)
22 READING CLERK: Thirteen yeas, 14 nays,
23 Mr. Chairman.
24 CHAIRMAN DOUGLASS: If I voted and made it a tie,
25 it wouldn't help, would it? Record me -- oh, you have
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1 already announced it. Record me as voting yea. All
2 right. We'll move on the next item. Committee
3 Substitute for Proposals 138 and 89 by the Committee
4 on Education. Commissioners Nabors and Riley. Let's
5 see, it's on reconsideration. The motion was made to
6 reconsider by somebody. Who made the motion to
7 reconsider? Commissioner Barkdull.
8 COMMISSIONER BARKDULL: The journal or calendar
9 indicates that it was made by Commissioner Alfonso.
10 CHAIRMAN DOUGLASS: All right. Commissioner
11 Alfonso moved to reconsider the vote by which
12 Committee Substitute for Proposals 138 and 89 by the
13 Committee on Education and Article IX, by
14 Commissioners Nabors and Riley. Would you read that
15 please?
16 READING CLERK: Committee Substitute for Proposal
17 Nos. 138 and 89, a proposal to revise Article IX,
18 Section 15, Florida Constitution; limiting the use of
19 State Lottery net proceeds to financing certain
20 educational facilities or funding early childhood care
21 and education programs.
22 CHAIRMAN DOUGLASS: All right. Who wants to be
23 heard on the motion to reconsider?
24 COMMISSIONER NABORS: Mr. Chairman, I would urge
25 a motion to reconsider. If you will recall, we
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1 discussed whether or not -- what some of the committee
2 uses should be, particularly the parent councils. We
3 had a conference call this week and worked out all of
4 the language. It's not on the desk yet, but I would
5 like us to reconsider it and temporarily table it to
6 the amendments on the desk.
7 CHAIRMAN DOUGLASS: All right. The sponsor, one
8 of the sponsors and I presume the other one, urges you
9 to vote for the motion to reconsider. All in favor of
10 reconsideration say yea.
11 (Verbal vote taken.)
12 CHAIRMAN DOUGLASS: It is reconsidered. Now,
13 it's on reconsideration. You have a motion,
14 Commissioner Nabors?
15 COMMISSIONER NABORS: Chairman, I would like to
16 temporarily table it. We have an amendment which
17 deals with the issue of potential appropriations to
18 school advisory councils and also the issue of the
19 phasing in of the Lottery money, which has been agreed
20 to in a conference call, but I don't think the
21 amendment is on the table as yet.
22 CHAIRMAN DOUGLASS: I can tell you that I have
23 had indications that there's more amendments than that
24 that are going to be posed, and this will not be just
25 a single amendment process. Commissioner Scott, you
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1 are recognized.
2 COMMISSIONER SCOTT: Mr. Chairman, I tried to be
3 recognized on that motion to reconsider and I wasn't.
4 And those motions are debatable.
5 CHAIRMAN DOUGLASS: That's right. And we allowed
6 the debate in the previous one.
7 COMMISSIONER SCOTT: Well, I just wanted to make
8 a point. I tried to be recognized.
9 CHAIRMAN DOUGLASS: Well, go ahead and make your
10 point. I would love for you to make it.
11 COMMISSIONER SCOTT: That was the point. Did it
12 fail?
13 CHAIRMAN DOUGLASS: I didn't see you or I would
14 have recognized you. All right. We are moving on to
15 the special order. Oh, wait, all in favor of
16 temporarily passing Proposals 138 and 89, signify by
17 saying yea. Opposed?
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: To temporarily pass it. I'm
20 going to rule it passed. Commissioner Barkdull.
21 COMMISSIONER BARKDULL: How long, until the end
22 of the day or until when?
23 CHAIRMAN DOUGLASS: I think the proper motion is
24 to postpone to a time certain, which requires a
25 majority vote. There was no motion to a time certain.
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1 I would so recognize such a motion.
2 COMMISSIONER BARKDULL: Well, if we don't have
3 that, it's going to reoccur tomorrow on our motions
4 for reconsideration; is that correct?
5 CHAIRMAN DOUGLASS: It'll just go back on the
6 calendar, not for reconsideration. But if you want to
7 move to delay it to a time certain, I think that's
8 appropriate.
9 COMMISSIONER BARKDULL: I'll consider it. I want
10 to wait a while though.
11 CHAIRMAN DOUGLASS: All right. Well, right now
12 it's in limbo for the rest of the afternoon. It can
13 be brought back up. At this point, we move to the
14 special order calendar for today. We left Proposal
15 No. 40 by Commissioner Marshall when we adjourned or
16 recessed last meeting. And at this point, it was
17 amended and consideration deferred until today. Now,
18 can you read, first of all, can you read the proposal
19 as amended?
20 READING CLERK: Proposal 40, Proposal to revise
21 Article IX, Section 4 of the Florida Constitution;
22 authorizing certain counties to be divided into more
23 than one school district.
24 CHAIRMAN DOUGLASS: Can you read those? All
25 right. There have been two amendments that were
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1 adopted at the last session, one by Commissioner Riley
2 and one by Commissioner Butterworth. I would like to
3 ask the clerk to read those two amendments.
4 All right. They are in the journal if you will
5 turn to your journal we won't have to read them.
6 Those amendments were adopted, one by Commissioner
7 Riley and one by Commissioner Butterworth. They are
8 on Page -- the last page of what we got today, which
9 is 161. Is everybody in tune on this now?
10 We are going to proceed with the debate on the
11 proposal. And there were two amendments that have
12 already been adopted. The first amendment, which you
13 will see in the journal, changed the number -- 45,000
14 to 75,000. That was by Commissioner Riley. And then
15 Commissioner Butterworth moved the -- was moved by
16 Commissioner Marshall on Page 1, Line 14, delete and
17 add. And what it did, you will have to read it, it's
18 fairly long. All right.
19 Who is ready to debate this, Commissioner
20 Marshall? We have another amendment on the table.
21 Commissioner Mills has an amendment on the table.
22 Would you read the amendment, please?
23 READING CLERK: By Commissioner Mills, on page 1,
24 Line 14, through Page 2, Line 4, delete those lines
25 and insert lengthy amendment.
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1 CHAIRMAN DOUGLASS: Commissioner Mills, you are
2 recognized to explain your amendment.
3 COMMISSIONER MILLS: Mr. Chairman, actually this
4 is not a lengthy amendment, it's only the inclusion of
5 the words, After Federal law, on Line 11 and, To
6 ensure racial and ethnic balance. Let me explain the
7 purpose of this. It's my understanding that the
8 intention of this is to create school districts that
9 are smaller, more manageable, provide additional
10 access and are better for our students and for
11 parents, a cause with which I agree.
12 It's also my understanding it's not the intention
13 to return to separate but equal schools in an
14 unconstitutional way. I have a particular case that I
15 think demonstrates the need to consider racial and
16 ethnic balance. This is a 1989 case, and it is
17 Spencer vs. State. There was a statute, which is
18 surprisingly analogous, 40.015, which authorizes
19 counties of more than 50,000 to determine their
20 boundaries of jury districts at a smaller number,
21 6,000, specifically. This particular case involved a
22 Palm Beach district which was divided north and south,
23 in which the west half of the district ended up being
24 approximately a jury pool of 50 percent
25 African-American. And the jury pool on the east side
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1 of the county ended up being 90 -- approximately
2 97 percent white.
3 The Supreme Court decided that this was
4 unconstitutional, and all I would suggest here is that
5 this Commission needs to emphasize that any passage of
6 smaller districts is not done for the purpose of
7 creating racial divisions or apartheid. And this
8 simply adds the words, And to ensure racial or ethnic
9 balance. I will be glad to answer your questions.
10 CHAIRMAN DOUGLASS: All right. Does everybody
11 understand the amendment? Commissioner Marshall, this
12 is your original proposal, which has now been amended
13 to be 75,000 population counties, and has now, it's
14 been amended before, but now it's being amended to add
15 the provisions that were discussed by Commissioner
16 Mills. Would you like to be heard on the amendment?
17 COMMISSIONER MARSHALL: Yes, Mr. Chairman, thank
18 you. With respect to the two earlier amendments, I am
19 in favor of those, I think they strengthen the
20 proposal. And maybe this one does too, I'm not sure.
21 If you will grant me the opportunity to ask
22 Commissioner Mills a question or two.
23 CHAIRMAN DOUGLASS: You have that opportunity.
24 COMMISSIONER MARSHALL: The sentiment being
25 expressed by those words, those new words,
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1 Commissioner Mills, I'm totally in harmony with. As a
2 matter of fact, if I thought this proposal intended to
3 order or provide an opportunity for any kind of racial
4 resegregation or that kind of differentiation of
5 communities, I wouldn't have proposed it. So, the
6 idea you advance, I'm very much in favor of. My
7 question has to do with the meaning of racial and
8 ethnic balance. I would not want to deny anybody in
9 the community, racial groups, ethnic groups, or
10 anybody else, the right to express themselves on what
11 sort of schools they attend and what kind of division
12 they would undertake. Can you define further racial
13 and ethnic balance, as the courts might interpret
14 that?
15 CHAIRMAN DOUGLASS: Commissioner Mills.
16 COMMISSIONER MILLS: Commissioner Marshall, the
17 case I referred to, in talking about the jury pool's
18 unconstitutionality suggested that what a
19 constitutional jury pool would be would be one that
20 reflected a true cross-section of the county with no
21 systematic exclusion of any group in the jury
22 selection process, and it does not otherwise violate
23 the protection requirements. So, it would be my
24 intention and understanding that this would emphasize
25 that requirement. And as it's articulated in this
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1 section, it says, All of which shall be -- all issues
2 shall be subject to review and approval by the circuit
3 court in compliance with state and federal law and to
4 ensure racial and ethnic balance.
5 In the context, it would be my intention that the
6 circuit court would consider the racial and ethnic
7 balance as representative of the county. And I simply
8 think that it's almost in the sense fair notice
9 because I believe that if they didn't do it, it would
10 be unconstitutional.
11 CHAIRMAN DOUGLASS: All right. Does everybody
12 understand? Any further debate on the amendment?
13 Does everybody understand the amendment? Do you have
14 anything further? You had the floor, Commissioner
15 Marshall.
16 COMMISSIONER MARSHALL: Thank you, Mr. Chairman.
17 With Commissioner Mills' response to my question and
18 with the understanding that the meaning might be
19 further clarified, since we agree on the intent by
20 style and drafting, I would support the amendment.
21 CHAIRMAN DOUGLASS: All right. Any further
22 discussion on the amendment? If not, we'll vote on
23 the amendment. All in favor, say aye. Opposed?
24 (Verbal vote taken.)
25 CHAIRMAN DOUGLASS: It's adopted. Now, we are on
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1 the proposal as amended. It's been amended now three
2 times. Would you like to close, or at least tell us
3 now what it really tells, Commissioner Marshall, it's
4 your proposal? Commissioner Sundberg, I'll call on
5 you if you have a proposal.
6 COMMISSIONER SUNDBERG: I have a question, but it
7 can wait until he has explained this.
8 CHAIRMAN DOUGLASS: Let's, for the benefit of all
9 of us, to refresh us on where we were Friday,
10 Commissioner Marshall, can you give us briefly what
11 this does and then let Commissioner Sundberg ask his
12 question and then you may proceed then.
13 COMMISSIONER MARSHALL: Mr. Chairman, I heard
14 that comment about briefly and I heard you use the
15 word close.
16 CHAIRMAN DOUGLASS: I didn't really mean close.
17 COMMISSIONER MARSHALL: Let me point out that
18 there were only 21 or 22 members of the Commission in
19 the chamber when we debated this the last time.
20 CHAIRMAN DOUGLASS: You are absolutely right.
21 COMMISSIONER MARSHALL: So, if it's not an
22 imposition, I would like to as briefly as possible go
23 through the brief arguments in favor of this proposal.
24 May I do that, sir? When we considered this proposal
25 on January the 28th, I distributed a packet of
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1 information, or rather the staff did, on selective
2 aspects of Florida's public schools. And I walked you
3 through those, those of you who were present. And I
4 won't take time to do that again, but I think the data
5 included there does have some bearing on this issue
6 and I hope to get your vote on it. And I suspect that
7 the staff still has copies of those, and if they are
8 available and those of you that weren't here on the
9 28th of January and would like a copy, I suspect one
10 would be available.
11 That information, those data were provided in
12 belief that facts ought to trump assumptions. I beg
13 your pardon, trump opinions. Most of the time, if we
14 are fully in possession about the facts about our
15 schools, we can avoid much of the time-wasting
16 arguments about whether the schools are good or bad.
17 The facts are stubborn things, and the schools are
18 what the facts show them to be.
19 Incidentally, in the exchange on the 28th,
20 Commissioner Morsani discovered a discrepancy that
21 escaped our attention. This one having to do with the
22 percentage of staff members who are classroom
23 teachers. We had two sets of data, one prepared by
24 the Department of Education showing the figure to be
25 88 percent, another prepared by a national
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1 organization that collects school data showing it to
2 be 48 percent. Those two figures are not easy to
3 reconcile.
4 I went back to the Department of Education and
5 had them recalculate their figures, and they now give
6 me a figure of about 81 percent of professional staff
7 who are teachers, to clear up that discrepancy,
8 Commissioner Morsani. Proposal 40 would authorize the
9 Legislature, subject to local referendum, to subsidize
10 our larger county school districts into smaller
11 districts, which I believe would be more manageable,
12 more accountable, and more responsive. The idea
13 behind proposal 40 was a proposal by Representative
14 Tom Warren, a Republican, and Senator Ron Kline, a
15 Democrat.
16 Proposal 40 addresses the matter of school
17 district size by stipulating the following, this is
18 the brief part. Counties with more than 75,000,
19 75,000 students would be permitted to vote to divide
20 the district into two or more districts. The newly
21 established districts would have no fewer than 15,000
22 students.
23 A special law must be enacted to establish a
24 commission which would draw school district boundary
25 lines. The boundary lines drawn by the commission
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1 would then be subject to review and approved in
2 circuit court for compliance with applicable state and
3 federal law. Funding for operations and capital
4 outlay would be calculated on a county-wide basis and
5 allocated as provided by general law.
6 The school districts eligible to conduct a
7 referendum on the question of subdividing would be
8 Dade, Broward, Hillsborough, Palm Beach, Duval,
9 Orange, and Pinellas. Polk County appears to be right
10 at about 75,000, so that could possibly make an eighth
11 county.
12 Research by professor Lawrence Kenney at the
13 University of Florida indicates that the lowest
14 administrative cost, per student, occurs in school
15 districts with 30 to 50,000 students, and that test
16 scores are significantly higher in those districts.
17 But the most compelling argument, Commissioners,
18 in favor of Proposal 40 is not reduced costs, or
19 improved student performance, in my opinion, but the
20 opportunity smaller school districts would provide for
21 better accountability and better responsiveness.
22 The historic theme of the American public school
23 is that of a neighborhood institution in which
24 citizens elect from among their friends and neighbors
25 people to serve on school boards, and so to represent
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1 the interest of parents and taxpayers, and what is
2 surely the most important and the most personal
3 involvement of citizens in their government.
4 The system worked well throughout most of our
5 country's history, but the condition of many public
6 schools today, especially those in the large cities,
7 compels us to reexamine the structure of public
8 education.
9 Dade is Florida's most populous county. It has
10 350,000 students and nine school board members. I
11 find it beyond belief to think that any of the parents
12 of those 350,000 students has any realistic
13 expectation of getting his or her ideas or opinions
14 about the schools into the hands of a member of the
15 school board. A little Florida history might be in
16 order. The Newman (phonetic) Foundation that
17 established this 67 school districts in 67 counties
18 was established by the Legislature in 1947. That's
19 when the decision was made to organize school
20 districts on a county-wide basis. Florida's
21 population then was 2,221,305 people. And the student
22 population in Dade County was 55,539 students.
23 One of the issues on which the people, and nearly
24 all professional educators, agree is that the
25 management of our schools should be decentralized.
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1 That's why we have gone to site-based management,
2 school advisory councils, and greatly increased
3 authority by school principals. We seem to have
4 sought every available opportunity within the present
5 structure to move the authority and responsibility for
6 schools closer to the site where teaching and learning
7 occur.
8 Meanwhile, we have clung to an organizational
9 structure that is the very antithesis of local
10 control. And if you are refuting how other states are
11 organized for the delivery of educational services,
12 for your information, the number of school districts
13 in the United States is today about 15,000 down from
14 about 150,000 a few years ago. Today, Alabama has 127
15 districts; California about 1,000; Colorado, 176;
16 Georgia, 181; Michigan, 555; New Jersey, 582; New
17 York, 711; Ohio, 611; Texas, 1,044; Wisconsin, 427,
18 and so on. A few states have districts -- a few
19 states have fewer districts than Florida, but they are
20 mostly the less populous states; Nevada, Rhode Island,
21 Utah, Delaware, and Wyoming.
22 Commissioner Freidin, in our debate on
23 January 28th, asked whether school boards now have the
24 authority to undertake organizational changes that
25 would bring decision-making closer to individual
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1 schools and the parents that they now serve. And the
2 answer is that school boards do have a good bit of
3 authority to do that sort of thing. But the question
4 in return is, then, why haven't they? I know the
5 answer to that, and I suspect that most of you do too.
6 The superintendents and the school boards preside as
7 an organization that provides their basic power, their
8 standing in the community, and their resources. I
9 would not expect them to be enthusiastic about
10 reducing in size the organization over which they
11 preside, and in some cases, which they helped to
12 create.
13 School administrators seem to be looking for ways
14 to accomplish in a limited way what Proposal 40 will
15 provide. The superintendent in Orange County has
16 recently proposed a decentralization plan, about which
17 the Orlando Sentinnel on January the 28th wrote to
18 describe the present school beuracracy. And I quote,
19 "The principal reports to a senior director who
20 reports to an associate superintendent, who reports to
21 a deputy superintendent, who reports to the
22 superintendent." Yes, the school board has the
23 authority to change that, and I believe they would be
24 more inclined to do so in smaller districts.
25 Let me close with a plea of desperation. No, I'm
26
1 not making a desperate plea for your support; you will
2 exercise your own good judgment and your conscience as
3 you vote on this issue. The desperate part comes as I
4 express my feelings about the need to do something to
5 rescue the children in some of our schools. I remind
6 you that it's been 44 years since the United States
7 Supreme Court handed down their opinion in Brown vs.
8 Board of Education. The minority children who were to
9 benefit are still the major victims in an inadequate
10 system of education. It's been 15 years since we were
11 told in a nation at risk that the state of American
12 public education was the moral equivalent of war
13 against our people. And I ask you, is there anyone
14 here who believes we are winning that war?
15 Finally, let me remind you that Proposal 40 does
16 not impose anything upon the people of Florida; it
17 simply gives the people the freedom to vote on a
18 structural change in the way their schools are
19 operated. And if they fail to exercise that option
20 now or if we fail to give them the opportunity to
21 exercise that option now, it's very unlikely that they
22 will have it again for at least another 20 years. I
23 respectfully ask for your support of Proposal 40.
24 CHAIRMAN DOUGLASS: All right. Anybody else want
25 to be heard? Commissioner Sundberg.
27
1 COMMISSIONER SUNDBERG: For a question of
2 Commissioner Marshall.
3 CHAIRMAN DOUGLASS: He yields.
4 COMMISSIONER SUNDBERG: Commissioner Marshall, I
5 would like to understand how the mechanics, or you
6 perceive the mechanics for work to divide a county up
7 into more than one district and how financing will
8 take place after that. At Line 8 of the amendment, it
9 says that this commission made up of residents shall,
10 among other things, allocate assets and provide for
11 contractual obligations, debts, bonded indebtedness to
12 the school district. How will they provide for bonded
13 indebtedness; do you perceive that it would be divided
14 amongst the new districts? And also, at Line 12, we
15 are starting at Line 11, it says, Funding for
16 operation and capital outlay in school districts,
17 divided pursuant to this section, shall be determined
18 on a county-wide basis.
19 And then it goes on to say, Local taxes in
20 counties shall be divided pursuant to the section,
21 include voted millage for bonded indebtedness shall be
22 levied on a county-wide basis. How is the debt to be
23 divided amongst more than one district and then at the
24 same time, thereafter, there be county-wide
25 participation? How do you perceive that working, sir?
28
1 COMMISSIONER MARSHALL: Commissioner Sundberg, I
2 don't perceive. There are many questions and many
3 answers in this proposal that I simply cannot answer,
4 because I don't know how it'll work. I express in
5 supporting the proposal, express my confidence in the
6 Legislature to appoint a commission that would address
7 those questions in some detail. I acknowledge that
8 it's complex, it's not a simple matter. I do not know
9 the answer to either of those questions.
10 CHAIRMAN DOUGLASS: Commissioner West.
11 COMMISSIONER WEST: I have a question for the
12 Commissioner.
13 CHAIRMAN DOUGLASS: He yields.
14 COMMISSIONER WEST: And I apologize, Commissioner
15 Marshall, for not being here when it was discussed
16 last time. And the question that I am going to ask
17 you, you know, may have been fully explained. But
18 have you gotten any feedback? You mentioned how seven
19 counties are affected by that 75,000 threshold,
20 possibly an eighth with Polk County; was that right?
21 Have you gotten any feedback or a response from these
22 eight counties?
23 COMMISSIONER MARSHALL: We haven't gotten a
24 response from the eight counties that could be
25 affected. And I would expect that the school
29
1 establishment would begin by asking some very probing
2 questions, that their support might very well depend
3 upon the answers to those questions.
4 I suspect that many of those very delicate
5 questions will be answered, I know they will be, by
6 the commissions, the commission established by the
7 Legislature. And that, if adequate answers cannot be
8 provided to such complex questions, the people will
9 simply not vote for approval of the redistricting.
10 CHAIRMAN DOUGLASS: All right. Anybody else want
11 to be heard? Commissioner Morsani.
12 COMMISSIONER MORSANI: Commissioner Marshall, you
13 and I discussed briefly the size of 15,000. I get a
14 little worried about the 22 districts in Dade County,
15 as an example, and the eight or nine in Hillsborough
16 County and these counties that are continuing to grow.
17 I think all of us are in sympathy with the idea. How
18 to get there is what we are struggling with.
19 And the idea of 15,000 students in today's
20 environment, we go back to the size. I mean, today
21 executives can handle a lot more numbers of employees
22 than they could in a former time because of our
23 education that we have been privileged to enjoy in
24 this nation. I question that size because a school
25 board members are paid, addressing Mr. Sundberg's
30
1 question a little bit in that how we can, in today's
2 environment, can -- what is going to be the cost of
3 these additional -- to these additional districts,
4 from just management of the school board.
5 I get very concerned about that, even though I'm
6 very in sympathy with change, but where did the 15,000
7 component come from? I think in major counties that
8 is too small of a component, personally, in today's
9 environment. So, that's where I have a concern. I
10 need some comfort in those arenas, sir.
11 COMMISSIONER MARSHALL: Well two or three things,
12 Commissioner. Thank you. It's a pretty
13 well-established fact in school administration that
14 when school districts increase in size they become
15 less efficient. They need more support personnel at
16 various levels as we demonstrated a moment ago in
17 Orange County, when you have large complex school
18 systems. In other words, the per-pupil cost of
19 administration is higher in large districts' per-pupil
20 cost, that's demonstrated by the research, than it is
21 in larger districts.
22 So when you look at the administration of a large
23 district that's divided into subdistricts, I don't
24 mean subzones, one school district. Dade County, for
25 example, has multiple subdistricts, each headed by an
31
1 associate superintendent. As the Orlando Sentinel
2 pointed out, when you get from the superintendent down
3 to the principal, you go through a lot of layers.
4 That system is less efficient, then by any way you
5 measure it, than small districts that have more direct
6 lines of responsibility and accountability and
7 therefore less cost.
8 Where the 15,000 figure came from, commissioner,
9 I don't know. I think from the research of Professor
10 Kenny, I think he showed to Senator Klein and
11 Representative Warner that that's a good place to draw
12 the minimum size for the -- applying for the minimum
13 size in terms of efficiency.
14 Mr. Chairman, while I'm on my feet, let me
15 respond, if I may, a little bit to the question
16 Commissioner West asked a few minutes ago. At least I
17 think it's to the point. There is a certain tenancy
18 of all -- on the part of all of us, me included, to
19 resist anything that we don't understand fully in
20 terms of how it's going to work, its operation. We
21 don't like to think that we support the status quo
22 always but we do a good bit of that always.
23 History shows that most great changes in public
24 policy don't happen in quantum leaps but by small
25 incremental steps. That's almost always the case.
32
1 The present broad-scale movement in the reform of
2 education however may be an exception to this rule,
3 for the changes now overtaking the country are not
4 incremental steps in the way we teach our children.
5 There is change in the delivery of education services,
6 the building wall of educational reform.
7 Let me illustrate. The City of Pembroke in
8 Broward County presents one of the most interesting
9 innovations I have seen. The people of Pembroke Pines
10 have expressed their displeasure for some time over
11 what they have regarded as neglect for the Broward
12 County School Board and they found a creative way to
13 solve their problem. The City will build and operate
14 a school for the children of Pembroke Pines to be
15 established as a charter school but with the use of
16 city tax revenues to augment funds, funds from the
17 state which is about $3500 per student per year for
18 charter schools. The mayor of the city commission of
19 Pembroke Pines, along with several other citizens,
20 constitute the school board.
21 The City, through a bond issue, will provide
22 $10 million of capital construction money to be
23 retired by city taxes. The city fathers anticipated a
24 court challenge of the bond issue and they've headed
25 that one off by building not a school, but a community
33
1 facility that will house the school and also serve
2 other community functions.
3 The resistance to most education reform movements
4 like this one naturally comes from those who want to
5 preserve the status quo. In this case, the people in
6 the establishment have something to lose if change
7 occurs. But the news for those of us, for those who
8 would preserve the status quo, is you are too late.
9 The change is now in education, occurring in
10 education, in the past half dozen years in the United
11 States and in Florida, have set in motion profound
12 movements in education policy and practice which for
13 some children and their parents are changing the
14 political landscape.
15 And I could go on, Mr. Chairman, Commissioners.
16 I mentioned Pembroke Pines, that is one of four
17 municipalities in Florida that is now attempting to
18 start their own schools, they will very likely succeed
19 as Pembroke Pines has. And if you look around, you'll
20 see Writer System (phonetic) operating a preschool in
21 their facility in Miami that they are now trying to
22 expand to elementary school through, I think, grade
23 five or six. This is the kind of change that is
24 overtaking the system of ours.
25 The educational establishment, I regret to say,
34
1 is the major impediment to that change for reasons we
2 can all understand. As a matter of fact, if this were
3 a confessional rather than a session of this group, I
4 would say that as a school administrator, as a public
5 education administrator, I've seen all those arguments
6 against changing the status quo and I've used most of
7 them, I've been there. But I now have an independent
8 view and I think the opportunity to express it as a
9 member of this commission that says it's time to
10 reexamine some very basic things in education
11 including the structure of our 67 county school
12 districts. Thank you very much.
13 CHAIRMAN DOUGLASS: All right. Commissioner
14 Butterworth?
15 COMMISSIONER BUTTERWORTH: Question for
16 Commissioner Marshall. Commissioner Marshall, I
17 really applaud you on this proposal. And the way it
18 sits right now, I think, it is really very good. I'm
19 concerned also like Commissioner Morsani on the
20 15,000. Would you be amenable if we can pass this out
21 with a majority vote and we're going to be going to
22 two of the areas in the state that would be the most
23 affected by this, the Broward area, Dade, Broward,
24 Palm Beach, and also the Pinellas, Hillsborough. And
25 if, in fact, during those committee meetings or public
35
1 meetings if, in fact, 15,000 should be raised, would
2 you be willing to do that?
3 COMMISSIONER MARSHALL: Yes, I would, sir.
4 COMMISSIONER BUTTERWORTH: Thank you.
5 CHAIRMAN DOUGLASS: All right. Anything further?
6 Commissioner Riley.
7 COMMISSIONER RILEY: Mr. Chairman, I'd like to
8 speak in favor if that's the appropriate time to do
9 that.
10 CHAIRMAN DOUGLASS: All right.
11 COMMISSIONER RILEY: Which might surprise
12 Commissioner Marshall. I have bounced back and forth
13 on this issue. I wanted desperately to support it but
14 it made me very uncomfortable. And the change in the
15 amendment from the 45,000 to the 75,000, I think, made
16 it better and I was still uncomfortable. And I am
17 very pleased with the amendment that Commissioner
18 Mills did providing some balance on the commission
19 that would divide this county. That makes me a lot
20 more comfortable.
21 I think also, Commissioner Marshall, that
22 changing the 15,000 to a higher number would also
23 strengthen it. I respect Commissioner Marshall's
24 experience in education. He certainly has more than
25 anyone else in this room, I think. And he is right,
36
1 something needs to be done. I respect his opinion
2 when he says, Let's look at some other options, let's
3 look at other ways to do it. And I'm certainly
4 willing to do this. The uncomfortableness on the
5 indebtedness, I can tell you this, Commissioner
6 Sundberg, as a borrower, it does not go away. And I'm
7 surprised that with 23 lawyers on this commission
8 somebody doesn't stand up as a lawyer and say, This is
9 exactly how you do it.
10 But the debt to that county is going to remain a
11 debt to that existing school board. And the logistics
12 of it, I'm sure can be worked out. I don't have any
13 doubts, I don't know what the specifics are, but the
14 debt is not going to go away. The bondholders are
15 still going to get paid and the county, if it's
16 decided by the local voters, could still be divided.
17 So I support this amendment and I encourage you to do
18 the same.
19 COMMISSIONER SUNDBERG: Will she yield for a
20 question?
21 CHAIRMAN DOUGLASS: Yes.
22 COMMISSIONER SUNDBERG: Commissioner Riley, I was
23 really more concerned about, but let's assume that
24 it's, hypothetically that it's divided, that a
25 particular county is divided into three fairly equal
37
1 subdistricts or now new districts. And how do you
2 accommodate the fact that in one of those districts,
3 let's just say geographically is in the northern part
4 of the county, and that all the growth for some reason
5 or another that goes -- that comes after this is
6 accomplished tends to move into that area so that it
7 is greatly in need of additional, you know, buildings,
8 facilities, busses, what have you, resources?
9 What is going to be the ability of the county,
10 once you say it's done on a FTE or per capita basis,
11 how do you accommodate where the needs are greater in
12 those areas? I mean, would you have that flexibility
13 to bond --
14 COMMISSIONER RILEY: So you're not talking
15 existing bond or existing indebtedness at the time of
16 splitting it out?
17 COMMISSIONER SUNDBERG: I'm talking about both to
18 be frank with you. I still don't know how you
19 accommodate -- I'm not saying there's any legal
20 impediment to its being a continuing obligation.
21 You're right, they can make all the deals they want to
22 but the obligation is going to remain. But how you
23 allocate it amongst those new districts and how you
24 accommodate growth in the future without --
25 COMMISSIONER RILEY: But I don't see how it being
38
1 a smaller district is going to make the question any
2 different than it is if you have a county that is in
3 itself growing and how do they prepare for the growth
4 within that county. I mean the question is the same
5 the population is just smaller.
6 COMMISSIONER SUNDBERG: Well, the point is
7 though, that if you're talking about the entire county
8 of Broward, their bonding capacity is much greater
9 than some subunit of the county of Broward. I mean,
10 Broward County now, if the growth is in the northwest,
11 I guess there is no east because you're in the ocean,
12 there is east -- but in any event, if the growth
13 occurs there, you have the bonding capacity of that
14 entire county to address that growth in a particular
15 geographic area. If it is, you know, if the bonding
16 capacity and the debt capacity is -- follows the
17 lines, which it would have to as I see it, the ability
18 to accommodate that would be less.
19 COMMISSIONER RILEY: Was that a question,
20 Commissioner Sundberg?
21 COMMISSIONER SUNDBERG: I'm not sure.
22 COMMISSIONER RILEY: The answer is no.
23 CHAIRMAN DOUGLASS: All right. You got the
24 answer there, Commissioner Sundberg. Okay. Anybody
25 know what the question was, let us know. All right.
39
1 Do we have any further debate, Commissioner Marshall?
2 COMMISSIONER MARSHALL: Mr. Chairman, not further
3 debate, but I think I heard the question and I think
4 the answer to it, Commissioner Sundberg, lies in --
5 well, it was finally -- the amendment of the Attorney
6 General, Commissioner Butterworth, Funding for
7 operation in capital outlay in school districts
8 divided pursuant to this section shall be determined
9 on a countywide basis. Does that not mean,
10 Commissioner Sundberg, that bonds will be retired by
11 revenues derived on a countywide basis and therefore
12 every district, will it not, have the same ability to
13 retire bonds and meet indebtedness as every other
14 district?
15 COMMISSIONER SUNDBERG: I'm not just sure how you
16 do that, but assuming your legal ability to do it,
17 isn't there a political reality? I really don't know.
18 It seems to me it is complex and it seems to me your
19 ability to -- your flexibility for bond financing is
20 diminished once you start breaking these into smaller
21 units.
22 COMMISSIONER MARSHALL: Well, once again,
23 Commissioner Sundberg, my reaction is that, those are
24 the facts that will be exposed by the work of the
25 commission appointed by the Legislature. And if it's
40
1 not a workable plan, if it has serious holes in it,
2 the voters will not approve it.
3 CHAIRMAN DOUGLASS: All right. There is nothing
4 further, are we ready to vote? There are some people
5 aren't in the chamber that might want to vote. All
6 right. We'll open the machine and we'll vote.
7 (Vote taken and recorded electronically.)
8 CHAIRMAN DOUGLASS: Record the vote.
9 READING CLERK: Twenty-two yeas, and 10 nays,
10 Mr. Chairman.
11 CHAIRMAN DOUGLASS: All right. By your vote you
12 have passed the proposal and we'll proceed to the next
13 order of business which is Proposal No. 2 by
14 Commissioner Sundberg. And would you read it, please?
15 READING CLERK: Proposal 2, a proposal to revise
16 Article I, Section 2, Florida Constitution; providing
17 for citizens to enjoy equal opportunity to employment,
18 housing, public accommodations, public education, and
19 other benefits and authorizing governmental agencies
20 to take actions to remedy the effects of past
21 discrimination in certain areas.
22 CHAIRMAN DOUGLASS: Commissioner Sundberg, didn't
23 we have extensive discussion on this previously?
24 COMMISSIONER SUNDBERG: Yes, we have, Mr.
25 Chairman, and we were in an amendatory process. An
41
1 amendment -- and I'm not sure what the status of those
2 amendments is.
3 CHAIRMAN DOUGLASS: Right now there are no
4 amendments on the table. One has been adopted. The
5 No. 1 was adopted and now there are more on the desk.
6 Two more on the desk.
7 COMMISSIONER SUNDBERG: Probably what's on the
8 desk is one by Commissioner Connor.
9 CHAIRMAN DOUGLASS: Should we proceed -- I guess,
10 the proper way to proceed would be to recognize you to
11 explain the proposal again just briefly and then move
12 to the amendments and go to the first one on the desk
13 and then to the second one on desk. Would that be
14 agreeable to you, Commissioner Sundberg?
15 COMMISSIONER SUNDBERG: Frankly, Mr. Chairman,
16 I'll be glad to proceed in whatever fashion. I think
17 it will shorten the process. If I'm not mistaken, I
18 think Commissioner Connor is going to withdraw his
19 amendment which is one of the two on the desk which
20 will mean we can recur to the amendment by
21 Commissioner Smith which now represents really the
22 language that we want to be addressing with some minor
23 exception that we'll deal with in debate.
24 CHAIRMAN DOUGLASS: All right. Commissioner
25 Connor, you're recognized.
42
1 COMMISSIONER CONNOR: Yes, sir, I do,
2 Mr Chairman, withdraw the amendment that is on the
3 desk. I do have a proposal to make a slight amendment
4 which I understand is viewed as a friendly amendment
5 and acceptable to the Smith Amendment.
6 CHAIRMAN DOUGLASS: All right. At the moment
7 then, without objection, Commissioner Connor's
8 amendment which is No. 1, is that correct -- No. 2, is
9 withdrawn and we'll now proceed with Amendment No. 1.
10 This will be No. 2. All right. This is Commissioner
11 Smith's amendment which is offered by Commissioner
12 Sundberg as Amendment No. 2. Would you read it,
13 please?
14 READING CLERK: By Commissioner Smith on Page 1,
15 Line 25 through Page 2, Line 4, delete those lines and
16 insert, Because of race, religion, or physical
17 handicap.
18 CHAIRMAN DOUGLASS: Commissioner Sundberg on the
19 amendment.
20 COMMISSIONER SUNDBERG: Mr. Chairman, what the
21 amendment proposes to accomplish is to strike the
22 sentence in its entirety that currently reads, All
23 citizens shall enjoy equal opportunity to employment,
24 housing, public accommodations, public education, or
25 the benefits of citizenship.
43
1 It then goes on, the language following that
2 sentence, is revised in this amendment because the
3 language following that sentence that's stricken deals
4 with the ability of state agencies and institutions
5 and local agencies and institutions, their ability to
6 take actions to remedy the past or the present affects
7 of past discrimination on any group of people.
8 I think we have narrowed it down. It is clear
9 that we're only talking about currently protected
10 classes. This does not intend to expand any protected
11 classes. It has been amended to address, I think, a
12 concern that Commissioner Langley had and others, and
13 I think perhaps Commissioner Barkdull, having to do
14 with financial reparations and you will see at Line 19
15 it specifically excludes financial reparations as
16 actions which these agencies may take to remedy the
17 present effects of past discrimination.
18 The term "public" has been inserted in each of
19 the actions or functions to make it clear that this
20 only addresses the actions of public entities and
21 agencies. For example, it talks about -- it has added
22 the word "public" before procurement of goods and
23 services. And Mr. Connor -- or Commissioner Connor,
24 and I think also on behalf of Commissioner Langley
25 would like to have added at Line 21 of this amendment
44
1 where it reads -- yes.
2 It has now been offered by Commissioner Connor
3 and it is acceptable to me and through me acceptable
4 to Mr. Smith -- Commissioner Smith.
5 CHAIRMAN DOUGLASS: This is an amendment to the
6 amendment; is that correct, Commissioner Connor?
7 COMMISSIONER CONNOR: Yes.
8 CHAIRMAN DOUGLASS: All right. Let's get the
9 amendment to the amendment. It's on the table and
10 moved by Commissioner Connor. So we'll go to the
11 amendment to the amendment. Read it. You don't have
12 it? Okay. Go ahead and tell us what it does while
13 we're waiting on it.
14 COMMISSIONER CONNOR: Mr. Chairman, it just
15 changes the term "public housing" to "publicly-owned
16 housing."
17 CHAIRMAN DOUGLASS: So Line 21?
18 COMMISSIONER CONNOR: Yes, sir, on Line 21.
19 CHAIRMAN DOUGLASS: And so instead of reading in
20 the areas of public housing, it should read in the
21 areas of --
22 COMMISSIONER CONNOR: Publicly-owned housing.
23 CHAIRMAN DOUGLASS: Publicly-owned housing.
24 COMMISSIONER CONNOR: Yes.
25 CHAIRMAN DOUGLASS: Now the amendment to the
45
1 amendment is on the table. I'd have it read, please.
2 READING CLERK: By Commissioner Connor on Page 1,
3 Line 21, delete the words "public housing" and insert
4 "publicly-owned housing".
5 CHAIRMAN DOUGLASS: All right. As I understand
6 it, Commissioner Sundberg, you agree to the amendment?
7 COMMISSIONER SUNDBERG: I do.
8 CHAIRMAN DOUGLASS: All right. All in favor of
9 the amendment to the amendment, say aye. Opposed.
10 (Verbal vote taken.)
11 CHAIRMAN DOUGLASS: It carries. Now we're on the
12 amendment as amended.
13 COMMISSIONER SUNDBERG: Ladies and gentlemen,
14 Commissioners all, we've debate this at some great
15 length. Commissioner Smith has outlined all the very
16 good reasons why his amendment should be adopted. I
17 suggest to you that for all of the reasons which have
18 heretofore been expressed in debate, this is the
19 right, correct, and meat thing to do. I urge all of
20 you to, please, favorably vote for this and that's my
21 close.
22 CHAIRMAN DOUGLASS: All right. Now anybody else
23 need to -- want to discuss this? Commissioner
24 Morsani?
25 COMMISSIONER MORSANI: Well, I hope we all
46
1 remember the debate two weeks ago or discussion,
2 whatever we are having at these commission meetings.
3 I objected then and I must say, as I said, our hearts
4 are all in the right place in this commission. But I
5 think we've already discussed in past where we say
6 race, religion, and physical handicap. I think we put
7 that and we're going to propose that in Article I,
8 Section 1, for the public.
9 We can't fix past discrimination. All we can
10 hope is we have an intellectual community that -- an
11 intelligent community, that we are no longer going to
12 have that. I urge -- I don't think this -- we've gone
13 far enough. We just can't keep rehashing these
14 issues. I don't think we need this at this time in
15 our Constitution and I think that we have addressed
16 the principal elements and with great deal of respect
17 for the former Supreme Court Justice.
18 I think that we just addressed this. I said
19 race, religion, or physical handicap. We've taken
20 this out of our minds. I just urge you to remember my
21 dissertation of two weeks ago. We don't need this
22 today and I urge you to vote against this proposal.
23 CHAIRMAN DOUGLASS: Commissioner Lowndes?
24 COMMISSIONER LOWNDES: Yes, I'd like to rise in
25 opposition to this. I think that affirmative action
47
1 is a good thing and is something most of us are in
2 favor of. My concern is this proposal doesn't do
3 anything to change the law. The affirmative action
4 programs exist today in most of the cities and most of
5 the counties and they are working and they are helping
6 the people that they are designed to help.
7 If you put this on the ballot and take it to the
8 people, on the one hand, it doesn't change the
9 existing law if they vote in favor of it. If they
10 vote against it, I think it threatens what's happening
11 today in the affirmative action area.
12 I think these programs which exist today and
13 which are working today and which are bringing the
14 minorities into the economic mainstream of the
15 country, which in my view is really the only real
16 solution to the so-called racial problem, I think it
17 threatens those programs. I think it would be much
18 more difficult to carry out if the people of the state
19 voted against them.
20 I think this is the kind of thing also that kind
21 of pits people against people and there's nothing
22 wrong with doing that if there is some real end to
23 being served. But my sense is is what has been
24 characterized in here as an aspirational proposition
25 that doesn't do anything except kind of say, Gee,
48
1 whiz, the folks up here think that what's going on is
2 a good thing and should go on. I just don't think
3 it's going to help and I would urge you all to vote
4 against it.
5 CHAIRMAN DOUGLASS: Commissioner Langley?
6 COMMISSIONER LANGLEY: Mr. Chairman, if I may. I
7 think we really need to step back and take a look at
8 what we're doing. I'm going to quote someone who
9 wasn't one of my favorites in history but probably was
10 a favorite to many of you and that's Franklin Delano
11 Roosevelt. And if I ever get caught quoting him, I'm
12 in trouble. But let me tell you what he said once in
13 the midst of some similar problems:
14 "We are a nation of many nationalities, many
15 races, many religions. We are bound by a single
16 unity, that unity of freedom and equality. Whoever
17 seeks to set one nationality against another seeks to
18 degrade all nationalities. Whoever seeks to set one
19 race against another seeks to enslave all races.
20 Whoever seeks to set one religion against another
21 seeks to destroy all religion."
22 This proposal absolutely sets one race against
23 another or one gender against another. If you want to
24 truly help people get into the mainstream of the
25 American economy, you know the real class out there
49
1 that's discriminated against, the poor. They don't
2 have a color and they don't have a sex. They are the
3 financially poor.
4 They can't qualify for bonds to deal with Leon
5 County or the state of Florida. They don't have the
6 educational background to compete for other jobs. If
7 you want to help somebody, do it on the financial
8 basis that ignores these racial and gender and
9 nationality lines.
10 You know that 80 percent of the small businesses
11 that start in this state fail within a year. And, you
12 know, almost without exception the reason for failure
13 is not lack of talent and not lack of ideas, lack of
14 money because it takes money to make that business
15 run. Who is in more need of help, the million dollar
16 minority-owned company that's already getting a lot of
17 the contracts or the poor white or male-owned company
18 that is fledgling and trying to get started in
19 business?
20 What we've done and what we have in place is make
21 a bunch of fat cats very rich. When we discussed this
22 before, I gave you a couple of examples. A friend of
23 mine, his grandmother was a full-fledged Indian. He
24 has two companies, one's a minority, one's regular.
25 And when he gets -- when somebody else gets the big
50
1 bid, he gets the 2 percent because his grandmother was
2 an Indian. Didn't have to bid, just fill the slot.
3 Another part of this that bothers me is housing.
4 I have asked several lawyers around my seat here, What
5 is public housing? Nobody really seems to know.
6 Certainly we know some big complexes that are public
7 housing. But when my aunt decides to rent out a room,
8 is that then public housing?
9 CHAIRMAN DOUGLASS: Commissioner Langley, that
10 was amended.
11 COMMISSIONER LANGLEY: It was publicly owned.
12 CHAIRMAN DOUGLASS: Correct.
13 COMMISSIONER LANGLEY: I don't know but that one
14 either.
15 CHAIRMAN DOUGLASS: That's what we're addressing
16 at the moment.
17 COMMISSIONER LANGLEY: I understand, sir. But
18 let me tell you about a situation that happened.
19 California has this same or similar language in their
20 Constitution now. There is a lady out there now who
21 lost in the Agency hearing, who lost in the lower
22 courts and has appealed to the California Supreme
23 Court because she was an elderly widow. She didn't
24 have much money, she had a big old house and she
25 wanted some work done so she ran an ad in the paper,
51
1 Wanted: Single, white Christian male, ablebodied to
2 help with carpentry work in exchange for a room.
3 She so far has been assessed over $11,000 in
4 fines and possibly faces the loss of her house for a
5 judgment for those fines. That's not America. Good
6 gracious. Look at the language that's in the
7 Constitution right now that precedes the underlying
8 language, No person shall be deprived of any right
9 because of race, religion or physical handicap. Why
10 must you go any further, it's there now. Thank you.
11 CHAIRMAN DOUGLASS: Thank you, Commissioner
12 Langley. Commissioner Mathis?
13 COMMISSIONER MATHIS: I sometimes wonder if I
14 should even bother about standing up to some of the
15 proposals that I've proposed but I took a licking and
16 I'm keeping on ticking.
17 CHAIRMAN DOUGLASS: We're delighted to hear from
18 you, proceed.
19 COMMISSIONER MATHIS: Why should we have this
20 proposal in the Constitution is because the laws that
21 discriminated against African-Americans were in the
22 Constitution. The floor had black codes. Black codes
23 were passed in the response to the 1862 Emancipation
24 Proclamation and they sought to institutionalize a
25 segregated racial class system within the rubric of
52
1 democracy.
2 We are not calling for broad scale, open the
3 doors and let any black person come in. I mean,
4 that's a misconception, I think. Affirmative action
5 has a lot to do with letting everyone in and being
6 inclusive. Why this proposal? Why now if the people
7 of Florida vote against it? Why this proposal is
8 because we are clear about the wording of the
9 proposal, that this proposal will be discussed and
10 debated freely among the voters of Florida rather than
11 like with Proposition 209 in California, a kind of
12 sleight of hand game being played with wording and
13 language and passage.
14 It would be better to have this proposal on the
15 ballot, it is clear, we can discuss it openly and
16 have, I think, an intellectually honest debate about
17 this issue of affirmative action. Nat Ford
18 (phonetic), who is a city commissioner in Orlando was
19 responding to the issue of affirmative action and he
20 says when he was growing up in Orlando, and reached
21 working age, he perused the want ads for job
22 possibilities. Kind of like what Commissioner Langley
23 was talking about some advertisement here.
24 And ad for jobs with half-decent salaries and
25 working conditions ended with four words, "colored
53
1 need not apply." Was this negative action for blacks?
2 Was this affirmative action for whites or a plain old
3 case of racism pure and simple? He goes on to say
4 later in the article that after 245 years of blacks
5 being held in bondage and another century or so being
6 denied opportunities based solely on race, he doesn't
7 think that 30-odd years of trying to give
8 African-Americans and others, other denied groups,
9 equal access to the workplace or any other place, for
10 participation in our society is enough.
11 I disagree that this language is aspirational. I
12 think this language is clear. Recent Supreme Court
13 decisions have held that in order to have a basis for
14 remedial programs that remedy past discrimination
15 local governments must show past history of
16 discrimination. I think this language gives a
17 constitutional basis upon which to base these programs
18 on.
19 Mr. Langley talks about all the contracts going
20 do minorities. That is not true. Take the Greater
21 Orlando Aviation Authority, still 85 percent of their
22 contracts go to nonwhite, non-women contractors, 85
23 percent. We have had programs instituted that only
24 give 33 percent, 10 percent to non-female minorities
25 and the rest going to white female.
54
1 Having this basis in our Constitution provides, I
2 think, a strong foundation for those remedial programs
3 and I would urge you to pass this amendment.
4 CHAIRMAN DOUGLASS: All right. Commissioner
5 Barkdull was next, Commissioner Connor.
6 COMMISSIONER BARKDULL: Point of inquiry,
7 Mr. Chairman. We're on the amendment as amended as I
8 understand it and not on the original proposal; is
9 that correct?
10 CHAIRMAN DOUGLASS: That is correct.
11 COMMISSIONER BARKDULL: I'm going to vote for the
12 amendment because I think it makes a better bad
13 proposal.
14 CHAIRMAN DOUGLASS: All right. You remind me
15 we're on the amendment and I've allowed debate to
16 wander. Would all of those in favor of the
17 amendment -- are you on the amendment, Commissioner
18 Connor, or are you going to speak to the proposal?
19 COMMISSIONER CONNOR: I'm on the amendment which
20 has been amended as I understand it.
21 CHAIRMAN DOUGLASS: That is correct. You
22 certainly are welcome to speak on that.
23 COMMISSIONER CONNOR: What I'd like to do, if the
24 Chair pleases, is to ask some questions and I'd like
25 to reserve my right to address it if I may.
55
1 CHAIRMAN DOUGLASS: Certainly, who do you want to
2 address the question to?
3 COMMISSIONER CONNOR: Commissioner Sundberg.
4 CHAIRMAN DOUGLASS: Commissioner Sundberg yields
5 to you for questions.
6 COMMISSIONER CONNOR: Commissioner Sundberg, so
7 the record is abundantly clear, am I correct in
8 understanding that the classes that you deem to be
9 affected by this proposed amendment are those which
10 include race, religion, gender, and physical handicap?
11 COMMISSIONER SUNDBERG: National origin, yes,
12 that's correct.
13 COMMISSIONER CONNOR: And that would represent
14 the universe of protected classes that you envision
15 under this proposal.
16 COMMISSIONER SUNDBERG: It's my understanding
17 those are the classes which have been identified in
18 the decisions of -- the federal decisions.
19 COMMISSIONER CONNOR: Right. Is it your
20 understanding or intention that this amendment would
21 be broader in its effect than what you understand to
22 be the current federal decisions which address this
23 particular area?
24 COMMISSIONER SUNDBERG: No, it is not my intent,
25 sir.
56
1 COMMISSIONER CONNOR: And would this proposal,
2 for instance, as it relates to the physically
3 handicapped, in your estimation require any greater
4 burdens on a public body than those already imposed by
5 the Americans with Disabilities Act, for example?
6 COMMISSIONER SUNDBERG: No.
7 COMMISSIONER CONNOR: When the term is used to
8 remedy the present effects of past discrimination,
9 does that mean, as you understand the current federal
10 decisions, that in order to qualify for an affirmative
11 action program you would have to identify a group that
12 presently was suffering from the past effects of
13 discrimination? In other words, by virtue of some of
14 these practices or laws or other actions by government
15 in the past such that that past discrimination
16 actually has a present adverse effect on one of these
17 protected classes that you make reference to?
18 COMMISSIONER SUNDBERG: Yes, sir, it is my
19 understanding of the current state of the law that in
20 order for, you know, an action program, an affirmative
21 action program, to pass constitutional muster based on
22 the premise that it is remedying the present effects
23 of past discrimination the record must be clear that
24 in fact some present group or some group is presently
25 being disadvantaged because of a clear record of past
57
1 discrimination against that group.
2 COMMISSIONER CONNOR: Thank you. Those are all
3 the questions I have at this time, Mr. Chairman.
4 Thank you. Thank you, Commissioner Sundberg.
5 CHAIRMAN DOUGLASS: All right. We're on the
6 amendment. Is everybody prepared to vote on the
7 amendment then we'll get to the proposal. All those
8 in favor of the amendment say aye. Opposed.
9 (Verbal vote taken.)
10 CHAIRMAN DOUGLASS: The amendment carries. Now
11 we're on the proposal as amended and we will entertain
12 debate on the proposal as amended. Commissioner
13 Sundberg, do you have additional opening remarks on
14 the proposal as amended?
15 COMMISSIONER SUNDBERG: No, but I'm prepared to
16 close if there are any other comments on the other
17 side.
18 CHAIRMAN DOUGLASS: There may be some people that
19 want to speak in opposition to it as amended because
20 it was indicated by at least one member that he was
21 voting for the amendment --
22 COMMISSIONER SUNDBERG: That's precisely my
23 point, Mr. Chairman, I'd like to bat cleanup if I may.
24 CHAIRMAN DOUGLASS: Does anybody want to speak
25 for or against the proposal as amended? All right.
58
1 Commissioner Anthony.
2 COMMISSIONER ANTHONY: Yes, thank you, Mr. Chair.
3 I stand asking the members of the commission to
4 support and vote yes on this proposal. A civil rights
5 advocate named Fanny Lou Hamer used to say, I'm sick
6 and tired of being sick and tired. And the reason she
7 was saying that was because of present government
8 policy that she was fighting for years and years and
9 accepting public policy that was not inclusive. I too
10 feel sick and tired of being sick and tired of
11 discussing this concept and this issue and also
12 aggravated, I must say, that the lack of understanding
13 and sensitivity and tolerance to what is occurring in
14 our nation.
15 If this wasn't an issue and if this language was
16 not needed, our president of the United States would
17 not right now be promoting America as one approach in
18 communities. We would not need this type of proposal,
19 in fact, if it was not still in our state. People
20 that are not getting selected for jobs and homes
21 because of their skin color, their gender or their
22 religious orientation. That still exists in our
23 state.
24 Many of you would ask the question perhaps,
25 Clarence, how can you say that? You're standing
59
1 amongst us in this collegial body. This is clearly a
2 protected environment where all of us have an
3 opportunity here to share our viewpoints without being
4 judged and I do judge anyone and their comments,
5 that's your principle, those are your values, that's
6 what you believe in, Commissioner Langley. And I
7 respect you for that.
8 But outside this protected environment, I can
9 tell you it still exists where because of who you are
10 you still get treated differently. Because of who you
11 are when you travel, I travel, I still get treated
12 differently. Until I walk into a room -- and I've
13 done this with a city manager of mine for eight
14 years -- he and I used to schedule a meeting, and he'd
15 schedule a meeting as Mayor Anthony.
16 And we would say to each other, I wonder who the
17 person is going to walk to when they walk out of their
18 office and he happens to be Caucasian, and he would
19 say, I bet, I wager you that they will walk to me
20 instead of you and I would say, I bet they will as
21 well. For eight years we used to have a fun game. It
22 was fun for him because he always won the wager. They
23 would always walk out to him to get -- to take in the
24 mayor to meet with whoever that is.
25 The assumptions that we still carry in the state
60
1 of Florida is what we are trying to develop public
2 policy around and to be able to, as affirmative action
3 is defined, if there is a level playing field, the
4 assumption to me, in affirmative action is if you and
5 I, Commissioner Zack, are applying for a job, applying
6 for housing and we're both qualified to get that
7 housing, no, that job, if you do not have diversity
8 within your workforce, affirmative action saying,
9 Being we're both qualified, select a person who may be
10 underrepresented. That happens in every setting. It
11 happens to us based upon political parties,
12 geographical areas, gender, our age. It happens.
13 What we're saying in this statement, in this
14 proposal, is that Florida is inclusive, Florida is
15 looking toward the future, Florida is making an
16 investment in the future for not only us that are
17 sitting in this room but also for our kids so when
18 they look at the state of Florida and they travel
19 around this nation they will say the state of Florida
20 is a state that really feels that people should have
21 an opportunity.
22 Now why is this issue a big issue, and it's
23 becoming more and more, because economics is beginning
24 to play a role in this issue.
25 COMMISSIONER ANTHONY: As long as we were giving
61
1 people the right to vote, long as we were saying, you
2 have the right to public housing, that's okay. But
3 when we started saying that minority and women should
4 also have the right to participate in the State of
5 Florida's economic growth, that is when the challenges
6 and the threats of our state really started occurring.
7 It was all right to sit at the dinner table and
8 to go in the same restaurants, but when I was able to,
9 and others were able to start participating as
10 minority business persons, that's when the challenge
11 began.
12 Seven years ago I had my own consulting firm, and
13 through minority business programs I would get
14 business opportunities. And let me tell you what
15 would happen, I would get on a team and they would
16 give me 10 percent of that business, 10 percent when I
17 was qualified to get the entire 100 percent. The
18 assumption when there were problems with that contract
19 and the contract was higher was because we had
20 minority business programs as a part of that local
21 community. I beg to differ.
22 There are problems by major contractors, whatever
23 color they are, whatever gender they are, and we
24 should not judge based upon that. I say to you,
25 Commissioners, if we really want to show America that
62
1 Florida is an inclusive state, one that sets a playing
2 field for everybody to be able to participate in the
3 economic growth of this state, and that's what I'm
4 basically supporting as well, housing, economics, then
5 this is the proposal to do so. And I encourage you to
6 do that.
7 And truly, I'm sick and tired of being sick and
8 tired of this proposal. We need to do the right thing
9 and vote yes on this proposal.
10 CHAIRMAN DOUGLASS: Further debate. Commissioner
11 Langley.
12 COMMISSIONER LANGLEY: For a friendly question.
13 It is amazing that you can even refer to the level
14 playing field. The current Constitution levels the
15 playing field. What you are talking about is
16 reparation. What you are talking about, and
17 Commissioner Morsani said, you know, you can't remedy
18 the losses of the past. Well, Commissioner Morsani,
19 you can, but it's going to be at a cost to an innocent
20 person today, a person who didn't participate in the
21 discrimination of the past.
22 But you know there's only that one pie, that one
23 pie, Commissioner Anthony. If you want a larger part,
24 with no bidding, you are going to have to take it from
25 somebody else who is equally qualified or perhaps even
63
1 more qualified, you are going to take from them.
2 There's no endless pot of money from which the
3 government can satisfy the reparations of the past.
4 So, you are going to cost the taxpayers of this
5 state, and you already have. And you can get figures
6 from the Department of Transportation to satisfy these
7 minority set-asides. You are going to cost them and
8 cost them and cost them here. You know, the
9 vernacular, there ain't no free lunch. So, you are
10 going to make the taxpayers continue to buy these
11 lunches or you are going to take away from innocent
12 third parties who didn't have anything to do with
13 this.
14 I never owned a slave. I think I am one to the
15 government, but I've never owned one. So, you know,
16 it's not right, you are not treating those other
17 people who are just as qualified the truly level
18 playing field, you are not treating them equal. Do
19 you have a way that you can do this without hurting
20 someone else?
21 COMMISSIONER ANTHONY: Yes, I think, Commissioner
22 Langley, your assumptions are not really based fairly,
23 and I truly feel that. The assumption is that
24 minority businesses are not as qualified and can't
25 provide the same quality and level of service. And
64
1 when we base our discussion on that type of
2 assumption, it's really difficult for me to share with
3 you how we can move forward when we are basing it on
4 not an accurate assumption.
5 The real assumption, the real challenge for us in
6 our state and in our nation is that if two attorneys,
7 Langley I and Langley II come in for an opportunity
8 and Langley I has, or you know, you are in a race and
9 Langley I has been running that same race and gotten
10 100 years of a start over Langley II, clearly it may
11 not be your fault that you were given that privilege
12 to run 100 years prior to Langley II, but in fact that
13 gives you an upper hand on opportunities in every
14 setting.
15 I will tell you that there are government
16 contractors throughout this state that are five to six
17 to seven months behind on government projects that
18 have not one percentage of minority participation. I
19 will tell you, in Orange County, the courthouse, they
20 were months late, and it was not the cause of minority
21 contractors. So the assumption is for us,
22 Commissioners, that wherever there are minority --
23 wherever there are government contracts and private
24 contracts, if minority contractors are there, does not
25 mean that it's going to be higher, and it does not
65
1 mean that it's going to be on time or late. But let's
2 try to have this discussion based upon the assumption
3 that this will provide an opportunity for all in the
4 State of Florida. And I thank you for that question,
5 again, Commissioner Langley, it was friendly.
6 CHAIRMAN DOUGLASS: Commissioner Marshall.
7 COMMISSIONER MARSHALL: Thank you, Mr. Chairman.
8 I rise with some reluctance to, I think, oppose this
9 measure. At the moment I'm not sure how I'm going to
10 vote, but I'll tell you how I'm leaning and I would
11 like to tell you why. Commissioner Anthony, who said
12 a moment ago, he appealed to us to vote, to do the
13 right thing and vote for this measure. It may be the
14 right thing, but I think it is the wrong reason.
15 I think it's a potentially devisive issue. It is
16 a question that doesn't need to be asked. I think
17 Florida -- I think this is the wrong time and Florida
18 is the wrong place to ask this question. In the
19 debate on this last, two weeks ago, Commissioner
20 Sundberg, if I remember correctly, was asked, wouldn't
21 this run the risk of calling unfavorable attention to
22 other amendments that we are going to take to the
23 people, maybe even to the whole package. And
24 Commissioner Sundberg, if I heard him correctly, said
25 I'm willing to take that risk.
66
1 I'm not willing to take that risk. In a personal
2 sense, any one of us has a right to take whatever risk
3 we want to. But I think we are risking something on
4 behalf of this commission that I happen to believe is
5 wrong. I'm not satisfied with the progress that's
6 being made. I think Commissioner Mathis and
7 Commissioner Anthony have made very compelling
8 statements, moving.
9 And it's not that I'm saying that the people of
10 Florida are prejudiced, that they are, you know, they
11 are bigots. That's not why I'm suggesting that people
12 will be turned against it; it's because it is the
13 wrong question at the wrong time. We are making
14 progress. Not as fast as I would like, not as fast as
15 we ought to be. But I can talk about some very
16 significant progress that was made at Florida under my
17 direction at State University over a period of 15 or
18 20 years, very substantial progress. I want to keep
19 fighting that battle, and I think there are many other
20 people who want to continue fighting that battle and
21 winning victories. Not as many as we would like, not
22 as fast as we would like, but winning some victories.
23 And I think that putting this issue in the
24 Constitution will crystallize our position and serve
25 as a devisive function in our society. And for that
67
1 reason, I think I'm going to vote against it.
2 CHAIRMAN DOUGLASS: All right. Commissioner
3 Mathis and Connor, and Sundberg, you want to close
4 when it comes time; is that correct, Commissioner
5 Sundberg?
6 All right. Commissioner Mathis, you are next
7 again.
8 COMMISSIONER MATHIS: When I got an offer to sit
9 on this commission, I called by grand-daddy. My
10 grand-daddy lives in New Orleans, Louisiana. He was a
11 chef in New York and moved back home. And I said,
12 Grand-daddy, they are going to have me sit on a
13 commission and we are going to discuss the
14 Constitution of the State of Florida. He was really
15 quiet for a while and he said, Well, Jacinta, you know
16 what I want you to do, I want you to get me my
17 40 acres and a mule. And then he said, No, I don't
18 want no mule, I want a Mercedes. But the issue there
19 was that my grandfather knew that he had been
20 disenfranchised by a number of laws. And I consider
21 my grandfather rather successful. He owns his own
22 home, he had his own business, but I also know that he
23 was denied opportunities to succeed that were freely
24 given and open to others.
25 When I was in law school, I worked with the Clerk
68
1 of the House of Representatives because I had to work
2 in order to help me get through law school. And I was
3 walking up from FSU Law School to the Capitol, and a
4 fellow student, we'll just call him Carlton, was
5 walking by me. And Carlton said, Jacinta, you know,
6 we have really come far. He said, Not too long ago,
7 my father, my great-grandfather owned slaves. And he
8 said, Now here we are, both walking up to the Capitol,
9 we are both interns, we are both in law school. We
10 have reached some sort of plateau. And I looked at
11 Carlton and I said, If my father had been able to own
12 property like your father had, if my father had been
13 able to go into motels and hotels, own businesses, get
14 loans from banks, I would be in the damn Governor's
15 Mansion by now instead of walking up to the capitol
16 with you.
17 There is that issue that, Where would I be had
18 there been opportunities? I don't know. We don't
19 know. But we can, as a state, take steps to remedy
20 the denial of opportunities to a number of different
21 groups.
22 And I disagree that that means that we are going
23 to have to take from another to give to one, because I
24 think and I believe there's a principle of alchemy
25 working here, that the broader our participation, the
69
1 bigger the economic pie and the more there is for
2 everyone. We are a better state when we are
3 inclusive. And I think this makes a statement about
4 our desire to be inclusive. And I would urge you to
5 support this amendment.
6 CHAIRMAN DOUGLASS: Commissioner Connor.
7 COMMISSIONER CONNOR: Mr. Chairman, President
8 Woodrow Wilson once made this statement. He said, A
9 nation that does not remember what it was yesterday
10 does not know what it is today nor what it is trying
11 to do. We are trying to do a futile thing if we do
12 not know where we came from or what we have been
13 about.
14 As we reflect upon American history, I think we
15 have many, many things to be proud of. The founding
16 fathers of our country were, without a doubt, some of
17 the most far-sided people that ever came upon the
18 scene of history. And because of their vision and
19 because of their concern for freedom and democracy, we
20 have enjoyed the greatest measure of freedom of any
21 people on the face of the earth.
22 But if you look at the whole of American history,
23 you know that there are some dark spots that have
24 appeared in our past, not the least of which has been
25 profound and significant discrimination against racial
70
1 minorities. From the owning of slaves to the
2 segregation of the races, in the areas of education,
3 and in just about every other kind of arena that you
4 can think of, and certainly even within my memory,
5 during the time that I have grown up. Now, I can
6 certainly understand and appreciate Senator Langley's
7 concern that affirmative action programs may in some
8 way inure to the detriment and create new victims
9 among those who did not engage in past discrimination.
10 But I think all of you will acknowledge as we
11 stand here today, that there are many of us here today
12 who are the beneficiaries, as we stand here today, of
13 past discrimination. We didn't engage in that,
14 necessarily, ourselves. We weren't -- we didn't have
15 the same copability of others who may have gone before
16 us, but without a shadow of a doubt, because of what
17 has happened in the past, and because of much of the
18 economic prosperity in this country was built upon the
19 backs of people who were being oppressed, many of
20 those simply by an accident of birth are beneficiaries
21 of past discrimination that has gone on.
22 I have really struggled and wrestled, as
23 Commissioner Marshall has, with this issue. And
24 basically what it comes down to for me is this. I
25 don't want, under any circumstances, Commissioner
71
1 Sundberg, to perpetuate in an adverse manner the
2 present effects of past discrimination. I want to be
3 judged on the basis of my conduct, of my acts or
4 omissions, not on the basis of someone else's.
5 And while I may not be able to remedy the
6 injustices of the past, Lord willing, Lord willing, I
7 will have the boldness and the courage to try to
8 remedy in the present the injustices that have
9 resulted as a consequence of past discrimination.
10 And this has not been an easy issue for me to
11 come to grips with, and I would appreciate,
12 Commissioner Sundberg and Commissioner Smith, working
13 with me in an effort to draw this language in such a
14 way so that it didn't suffer from overbreath. And as
15 I understand it, the goal, the purpose as stated here,
16 very simply is to enable these, basically, public
17 bodies in the public arena to remedy the present
18 effects, the present adverse effects of past
19 discrimination. In other words, to overcome the
20 adverse affects that people now suffer in the present
21 because of what has gone on in the past.
22 I share Commissioner Lowndes' concern that this
23 may very well have an adverse affect in the future,
24 and I'm interested and eager in hearing from the
25 public as we go in our public meetings about the
72
1 effect of that in the future, but I'll tell you, I was
2 mortified and chagrined and had been fearful and was
3 concerned when we had a presenter in Orlando who,
4 under the Florida Civil Rights Initiative, I believe
5 it was called, was proposing to advance a proposal
6 that would put us in the very same imbroglio that the
7 people in California got into, which I think was very
8 productive of a lot of racial disharmony.
9 And so, in terms of how the issue was framed, as
10 I perceive it, this may be one of the most positive
11 ways in which the issue can be framed. And so I
12 intend at this juncture to support this proposal.
13 Martin Luther King made a statement that I think we
14 might all ponder as we reflect the direction in which
15 we are going to go as we address this issue.
16 He made this observation, he said, cowardess asks
17 the question, is it safe; expediency asks the
18 question, is it politic; vanity asks the question, is
19 it popular; but conscience asks the question, is it
20 right. And there comes a time when one must take a
21 position that is neither safe nor politic nor popular,
22 but he must take it because conscience tells him it is
23 right.
24 Ladies and gentlemen, my conscience tells me that
25 this is the right position to take, and that to the
73
1 extent we preserve the opportunity for government, to
2 engage in affirmative action programs in the future in
3 the Sunshine, I have every confidence that when a
4 public body steps over the line, when a public body
5 goes to excess, when a public body simply pays back
6 for political support, those are the kind of things
7 that the public can address, register concern about
8 and tweak in order to make sure that the programs that
9 we have and the way in which we order ourselves comes
10 back into equilibrium.
11 Unquestionably, unquestionably, the Constitution
12 of the United States and of the State of Florida
13 accords equal protection to all people, most all
14 people. You know the exception that I'm concerned
15 about and that I've not been able to persuade you
16 about. But that's for another day, and I'm going to
17 continue to try to persuade you in that vein for the
18 same reasons that I'm advancing here, and it is
19 because every human being, rich or poor, black or
20 white, old or handicapped, male or female, pre-born or
21 post-born is a creature created in God's image, and
22 because of that, if for no other reason, entitled to
23 be accorded basic human dignity, and to be treated
24 fairly and equitably with their fellow man. I
25 encourage your support of this proposal. Thank you.
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1 CHAIRMAN DOUGLASS: All right. Before
2 Commissioner Sundberg closes, any further debate?
3 Commissioner Sundberg, you are recognized to close.
4 COMMISSIONER SUNDBERG: Thank you, Mr. Chairman.
5 I'm almost reluctant to rise after the eloquence of
6 Commissioner Anthony and Mathis and Commissioner
7 Connor. Commissioner Lowndes, you pose a very serious
8 question, and I know it's of conscience, as to whether
9 or not this doesn't represent simply a restatement of
10 the law, and by serving it up we run the risk of
11 someone rejecting it.
12 Well, I tell you that I believe as sincerely as I
13 can believe anything, that we must do this, because I
14 am satisfied to a moral certainty there are those
15 groups out there, Commissioner Connor mentioned one,
16 and they all have the most democratic egalitarian
17 names of any that you have ever heard, who are going
18 to make presentations, they are going to urge on the
19 people of this state, by petition initiative or
20 otherwise, the same sort of rules that they
21 accomplished by Proposition 209 in California.
22 As has been mentioned here, then it becomes
23 necessary how the issue is presented, how it is
24 framed. This goes one step farther, this says, We
25 don't care in how high-minded language you may frame
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1 an issue to address this particular issue, that you
2 are going to have to repeal some language that's
3 there, and you can't do it by sneak attack; you are
4 going to have to do it up front and say, we are
5 proposing a repeal of action in the State of Florida
6 that is intended to remedy the present effects of past
7 discrimination. And I think that serves an extremely
8 important function. It is not just aspirational, it
9 is necessary and needed.
10 Commissioner Morsani, again, I know that you are
11 as genuine as you can be in your feelings that, you
12 know, we now do have the level playing field, and
13 everybody likes to use this sports or athletics
14 analogy, level playing field. The problem with the
15 level playing field is that for hundreds of years, it
16 was tilted in a direction where these minorities who
17 are addressed by this proposal were going to go up a
18 45 degree angle.
19 And so, they say, all right, that's okay, we have
20 leveled the playing field, it's no longer tilted. The
21 problem is, the score is now 100 to nothing and what
22 we are trying to do is say, maybe we are going to have
23 to, in some instances where we can demonstrate that
24 that playing field was in fact tilted at a 90 degree
25 angle against you and you can show there are present
76
1 effects of that, not just that it occurred, but you
2 can demonstrate the present effects of that, then we
3 are going to tilt it back in the other direction for a
4 while until you catch up.
5 And you say, Well -- and Commissioner Langley
6 says that this is, you know, how can you justify doing
7 that to innocent people? Well, and I don't propose
8 for a moment that anyone in this room or anybody that
9 I know currently has deliberately discriminated
10 against women, blacks, but it has happened, and as
11 Commissioner Connor points out, those of us who were
12 not discriminated against have enjoyed a heritage of
13 advantage that those who were discriminated against
14 did not enjoy, so that we have, in fact, benefited
15 from that discrimination just like the team that is
16 100 to nothing ahead have enjoyed all of the state
17 championships, their players got to go to the best
18 colleges on scholarships because of those advantages
19 they enjoyed. And so, simply saying the playing field
20 is level today doesn't, doesn't erase those present
21 effects of that past discrimination.
22 Lastly, I'm willing to render the unequivocal
23 opinion, as one lawyer in this room, that this
24 amendment will not cause the least bit of distress to
25 any widow lady in the State of Florida who wants to
77
1 rent a room to anybody she chooses to rent a room to.
2 Thank you. I urge you folks to support the
3 proposition.
4 CHAIRMAN DOUGLASS: All right. We'll unlock the
5 machine. Proceed to vote.
6 (Vote taken and recorded electronically.)
7 CHAIRMAN DOUGLASS: Lock the machine.
8 READING CLERK: Twenty-three yeas, eight nays.
9 Mr. Chairman.
10 CHAIRMAN DOUGLASS: All right. We'll move to the
11 next proposal on special order. By your votes, you
12 have adopted the amended proposal. Would you read
13 Committee Substitute for Proposals 172 and 162 by the
14 Committee on Legislative Matters by Commissioners
15 Thompson and Evans-Jones.
16 READING CLERK: Committee Substitute for
17 Proposals 172 and 162, a proposal to repeal Article
18 III, Section 16 of the Florida Constitution, relating
19 to legislative apportionment and create Article II,
20 Section 10, Florida Constitution; providing for a
21 commission to establish legislative and congressional
22 districts; providing for the appointment of members to
23 the commission; requiring that the Chief Justice of
24 the Supreme Court fill certain vacancies on the
25 commission; requiring meetings and records of the
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1 commission to be open to the public; providing certain
2 exceptions; requiring that the commission file its
3 final report with the Secretary of State within a
4 specified period.
5 CHAIRMAN DOUGLASS: All right. Commissioner Ms.
6 Evans-Jones.
7 COMMISSIONER EVANS-JONES: Thank you, Mr.
8 Chairman. What I would like to do first is just walk
9 you through the bill and then I would like to tell you
10 why it is such an excellent bill.
11 (Gavel.)
12 COMMISSIONER EVANS-JONES: Thank you,
13 Mr. Chairman.
14 CHAIRMAN DOUGLASS: Wait just a second and we'll
15 get order.
16 (Pause.)
17 CHAIRMAN DOUGLASS: Okay.
18 COMMISSIONER EVANS-JONES: You have to listen to
19 little old ladies in tennis shoes, everybody, so
20 listen up here. There are nine commissioners who
21 would be on this independent reapportionment
22 commission. And let me tell you how they are
23 selected; they are appointed members.
24 The President of the Senate and the Speaker of
25 the House each appoint two commissioners. A member of
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1 a non-majority party would also appoint two members,
2 in the Senate and in the House. And those eight
3 commissioners would elect their chair. And if the
4 commissioners can't agree on a chairman, the Chief
5 Justice would make the appointment.
6 Are there any restrictions on who could be on the
7 commission? Yes, there are. Commissioners could not
8 be an elected public official, a party officer, a
9 lobbyist, a legislative employee, a congressional
10 employee, or a relative of a Florida Legislature
11 member or of the United States House of
12 Representatives. Additionally, commissioners would
13 take an oath that they would not run for legislative
14 office or they would not lobby for two years.
15 Does the commission have standards that they
16 would have to go by? This is extremely important, and
17 yes, they would. The commission would be required to
18 use sensible and fair redistricting standards in
19 drawing the maps. Those standards are that districts
20 should have equal population, that they shall be
21 composed of contiguous territory and the district
22 shall be drawn so as not to dilute minority voting
23 strengths. And commissioners will have to consider
24 drawing districts that are compact.
25 Would the Legislature get to vote on the
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1 redistricting maps? No, they would not. And this is
2 extremely important because we are trying to take some
3 of the power away from the Legislature.
4 Could the commission's redistricting plans be
5 challenged? Yes, they could. Parties could present
6 adversary interests before the state Supreme Court.
7 What if the Court declares the plan invalid? The
8 commission would draw a new plan to conform to the
9 Court's judgment. Are there single-member districts
10 required? Yes, there are. Forty single-member Senate
11 districts, and a 120-member House, and as many
12 congressional districts as are apportioned to the
13 state.
14 Are the meetings noticed and open to the public?
15 And this again is extremely important, because they
16 are not now; and, yes, they would be. And they would
17 also have public hearings when it was deemed
18 necessary.
19 How will the committee be funded? And the
20 committee would be funded by the Legislature. How
21 many commissioners must vote to approve the plan? It
22 would have to be a majority of the commission. What
23 are the time requirements? The plan filed with the
24 Secretary of State, 150 days after the chairman has
25 been appointed, so it would be very timely.
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1 Who supports an independent commission besides
2 myself? Common Cause has been a long time advocate of
3 an independent commission. The League of Women Voters
4 is a long time advocate of this proposal. The AARP
5 legislative committee is an advocate of this proposal.
6 And I think that you have to understand -- well,
7 I presented this bill in 1982. At that time, we
8 allowed, in my proposal, to have the Governor appoint
9 some members, but we have determined after going
10 through the committee process, that indeed it should
11 be legislative appositeness, but the difference being
12 that there will be Democrats and Republicans. There
13 will be a fairness that has not been done before.
14 And you stop and think, How can the Legislature
15 really be impartial in redistricting their own seats?
16 I'm here to tell you that indeed they cannot. And I
17 would like to just tell you a little story about when
18 my seat was being redistricted. We lived in
19 multi-member districts at that time and were going to
20 single-member districts.
21 One of the staff members gave me a call and said,
22 Mrs. Evans, I would like to ask you which Republican
23 you would like to run against? We have looked at the
24 voting records and we have recognized that you can
25 defeat any of them, so, who do you want in your
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1 district, we are drawing your district today? And I
2 said, Well, I don't really want any of them, thank
3 you, and if you really do that to me, my children are
4 grown, I can move anywhere in the county, and I will
5 run. And if you really look at your records, I could
6 beat the Democrat who is also a member of the
7 delegation, and that's what I would do.
8 Well, they gave me my seat; however, they knew
9 how to apportion, and since I left, the district that
10 was drawn, even though I won it one more time and
11 decided not to run again, it's been a Democrat seat
12 ever since.
13 You have to realize that who knows who is going
14 to be in power later. Right now the Republicans are
15 in power in the House and the Senate, and I'm sure
16 there's feelings of some of the members, well the
17 Democrats have been able to do this for many, many
18 years and now it's our turn. But I'm telling you that
19 that's not the way that we should operate and we are
20 not here as partisan politicians; we are here trying
21 to respond to the citizens of the State of Florida.
22 You all remember, in every single public hearing
23 that we attended, people wanted to take this
24 responsibility away from the Legislature and to put it
25 into an independent commission. And I'm here to tell
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1 you that that is indeed the way to go. I think that
2 the proposal before you is very fair; it's something
3 that should be given deep thought and consideration.
4 And I think that what you have to remember is
5 that we are all appointed, not as Republicans and not
6 as democrats, but as members of this state. And we
7 need to look at what's best for the state. Nobody
8 really should be allowed to tell us how to vote; we
9 have to look at our own conscience and determine what
10 is best for the citizens of Florida.
11 I can tell you that this is something that many,
12 many people want, and I believe that if you allow it
13 to get on the ballot, that the people of Florida will
14 have an opportunity to express themselves. I can
15 assure you that the Legislature itself would never
16 allow this to happen, so we have a unique
17 responsibility here to be able to put it on the
18 ballot. It would be 20 years before we would have
19 that opportunity again. And I ask you to please,
20 please let's consider this and let's do what the
21 citizens of Florida will have an opportunity to
22 express themselves as they have in the public
23 hearings, saying this is the right thing to do, it is
24 the fair thing to do. And who knows who is going to
25 be in charge down the road, just make it equitable,
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1 and may the best woman or man win.
2 CHAIRMAN DOUGLASS: Thank you, ma'am. There is
3 an amendment on the table by Commissioner Zack. If
4 you would read the amendment, please. It's been moved
5 by Commissioner Zack.
6 READING CLERK: By Commissioner Zack on Page 2,
7 Line 22, after the period, insert, except to meet the
8 foregoing requirements, division of counties should be
9 avoided whenever possible. When counties are divided,
10 the number of municipalities, town, and territories
11 contained in more than one district of the same house
12 shall be as small as possible.
13 CHAIRMAN DOUGLASS: Commissioner Zack.
14 COMMISSIONER ZACK: Actually, the proposal you
15 have in front of you is a combination of three
16 different proposals that we worked through on the
17 committee to combine the best of each of them. And
18 when it came to this issue, frankly, I think what
19 happened was we just ran out of time more than
20 anything else. And this is to deal with the concerns
21 that were raised by various people at the public
22 hearings, they wanted the political subdivisions to
23 remain together as much as possible. And that's just
24 to make sure that you don't, when you can avoid it,
25 have five different districts for one county. So it's
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1 intending to put into effect what we heard the wishes
2 of the people in those subdivisions are.
3 CHAIRMAN DOUGLASS: Commissioner Evans-Jones.
4 COMMISSIONER EVANS-JONES: That is a friendly
5 amendment, Mr. Chairman, and I urge people to vote for
6 it.
7 CHAIRMAN DOUGLASS: Okay. On the amendment.
8 Commissioner Scott.
9 COMMISSIONER SCOTT: Mr. Chairman, Commissioners,
10 what we have here is two competing ideas. In Florida,
11 as you well know, at least in Broward, and I think in
12 Tampa, Pinellas, maybe Orange, what city boundaries
13 and political jurisdictions are is not really
14 determined by anything other than maybe if they got a
15 local law passed in the Legislature, somebody wanted
16 their land annexed by petition to some city.
17 To say what this amendment says would, in effect,
18 tell the people in Tampa Bay that they can't have a
19 district like Senator Jim Hargrades (phonetic), which
20 has now been approved by the United States Supreme
21 Court. And I'm concerned, I have expressed this all
22 the way along, if we are going to have an outline and
23 direction to somebody other than the Legislature to do
24 reapportionment, that we don't put in there political
25 subdivisions, counties and so forth because the most
86
1 important criteria that I think should be in there is
2 to maintain minority voting rights to the extent
3 possible, which in Florida is now possible, at least
4 under the Supreme Court decision.
5 So, I'm not sure -- and I'm kind of -- I thought
6 we were told, the staff was told that this wouldn't be
7 coming up today, so I thought we would have a chance
8 to look and see exactly what his amendment is and get
9 better prepared on it. But I think his amendment is
10 going in the direction of more political subdivisions
11 which, at least in many instances, would have the
12 effect of depriving or may have the effect of
13 depriving minority voting rights. So, if that's true,
14 I would oppose this amendment.
15 And I think in the bill there was a mention that
16 they should consider geographic and political
17 subdivisions, and I really didn't think that should be
18 in the basic bill to begin with. I haven't had a
19 chance to get an amendment ready on that.
20 CHAIRMAN DOUGLASS: I don't know who told you it
21 wasn't coming up today. It's been scheduled for some
22 time.
23 COMMISSIONER SCOTT: Your staff director of the
24 committee.
25 CHAIRMAN DOUGLASS: Commissioner Zack.
87
1 COMMISSIONER ZACK: This amendment does not
2 change any of the fundamental law of the United States
3 as it deals with reapportionment, would not allow
4 cracking of -- it's called cracking of minority
5 districts, or packing of minority districts; so
6 nothing contained herein would change the rights of
7 minorities to have their protection under the voting
8 rights amendment.
9 CHAIRMAN DOUGLASS: Commissioner Mills.
10 COMMISSIONER MILLS: Commissioner Zack, yield for
11 question.
12 COMMISSIONER ZACK: Yield.
13 COMMISSIONER MILLS: As I read this, this is
14 inserted on Line 22.
15 COMMISSIONER ZACK: Yes.
16 COMMISSIONER MILLS: After the period, it seems
17 to me the language, Except to meet the foregoing
18 requirements -- well, part of the foregoing
19 requirements are the consideration of racial matters,
20 right?
21 COMMISSIONER ZACK: That's correct. That's why I
22 said there's absolutely no way this could be
23 interpreted to violate that.
24 COMMISSIONER MILLS: This explicitly references
25 that?
88
1 COMMISSIONER ZACK: Right, that is the first four
2 words.
3 CHAIRMAN DOUGLASS: All right. Commissioner
4 Zack, do you have anything further?
5 COMMISSIONER ZACK: I have nothing further to
6 say, except that I believe this is consistent with
7 everything that we have heard, and frankly how the
8 courts are ruling these days.
9 CHAIRMAN DOUGLASS: All right. We are voting on
10 the amendment, Commissioner Zack's amendment number
11 one. All of those in favor of the amendment, say aye.
12 Opposed?
13 (Verbal vote taken.)
14 CHAIRMAN DOUGLASS: It carries; it is amended.
15 We are now on the proposal as amended.
16 Who wants to be heard? Commissioner Evans-Jones,
17 do you care to make any further remarks now that it's
18 been amended?
19 COMMISSIONER EVANS-JONES: Well, I would like to
20 ask my co-sponsor, Commissioner Thompson, to speak on
21 the bill at this point.
22 CHAIRMAN DOUGLASS: Commissioner Thompson.
23 COMMISSIONER THOMPSON: Well, she's done a great
24 job so I don't know that I can add to this. I think
25 my role here as Chairman of the Committee on
89
1 Legislative Matters was to try to bring you a proposal
2 that would make a -- give you the opportunity to
3 address the issue of whether or not you thought that
4 legislative apportionment ought to be done by somebody
5 other than the Legislature.
6 And we considered quite a few alternatives in
7 doing that. And I think the summary of this bill
8 that's been placed on your desk, or for these two
9 Proposals, 172 and 162, explain that very well. The
10 selection of the members will be done by seated
11 members of the Legislature. That was something I
12 think that was very important to our committee.
13 One of those members will be chosen as chair, and
14 that person will be selected by the other eight. That
15 also was important to our committee so that they would
16 at least have to get a majority vote to figure out who
17 chairs the committee, and from there, hopefully, they
18 would build a consensus.
19 Another important aspect of this, and one of the
20 things that one of the Senate staff members, John
21 Guthrey, did a very good job for us on was to lay out
22 in sequence the things that would have to be done and
23 under the time periods that are applicable, and you
24 will see that as an issue throughout. And that's to
25 try to work with the framework of the real world out
90
1 there and have a practical proposal so that it would
2 work and you would have elections in a timely manner.
3 The qualifications that are involved for these
4 Commissioners, I think, are safeguards for the public,
5 in that you wouldn't have a lot of special interests
6 and people who were interested in running themselves,
7 establishing themselves a district.
8 We had a lot of pressure to do all kinds of
9 things about the diversity of the members, not only
10 the members, but then standards to apply. We tried to
11 do our best to comply with what we understood the law
12 to be today and not get ourselves into a posture where
13 we had, in our state Constitution, things that would
14 be in conflict with future court decisions; and
15 particularly, future court decisions that were based
16 on the Federal Constitution.
17 The other things that we tried to do were provide
18 in a timely way, as I said, for things such as
19 judicial review. And also, to take care of problems
20 that might occur, as far as whether Senators who were
21 presently elected for four-year terms are in or out of
22 office when the election occurs.
23 So, what we have tried to do is give you, if this
24 is the way you want to go, we tried to give you a plan
25 that will work. We have had a lot of meetings on
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1 this, and a lot of input from, not only from the
2 public, but from members of the committee. So, I
3 think if you want to go the route of not having the
4 Legislature apportion the Legislature anymore, then I
5 think this is a good, solid plan. The other
6 alternative, I guess, will be explained by other
7 members of the committee who were in disagreement with
8 that position. Thank you.
9 CHAIRMAN DOUGLASS: Commissioner Scott.
10 COMMISSIONER SCOTT: Commissioners, first of all,
11 I need to apologize to Commissioner Zack. I did not
12 have a chance to see that his amendment does, in fact,
13 modify, and we need to make sure in style and
14 drafting, that it does modify the minority district.
15 So, it does modify that.
16 Let me talk to you a minute about redistricting.
17 This to me is, although it's been, at times, a blood
18 bath; although we have had instances of self-interest,
19 not just in reapportionment, I might add in the
20 Florida Legislature in the last 20 years, but in
21 probably some other areas, anything from lawyers or
22 trial lawyers or whatever, business people, and
23 others.
24 So, there's been House members that have tried to
25 draw a seat for Congress and there have been
92
1 discussions about people's districts and so on. In
2 the first reapportionment in 1982, Senator Barron and
3 I, I was the Republican minority leader of the Senate,
4 and we insisted on single-member districts for the
5 first time in this state. And we fought that battle,
6 and the House ultimately, the Speaker agreed with us,
7 as I recall, but we did go forward and get
8 single-member districts.
9 There were no minority members of the Senate when
10 I came here. And we had our first one, thanks to the
11 single-member district proposal, when Senator Carrie
12 Meek came here. And today we have five members of
13 African-American descent in the Senate and others.
14 COMMISSIONER SCOTT: Hispanic and other
15 minorities. So that reapportionment we needed to make
16 some changes in the process. Now, the last
17 reapportionment, the political landscape in this state
18 was changing. It had become a very balanced two-party
19 state for probably the first time in modern history
20 and we had a lot of battle about that. We had battles
21 of how we were going to draw the seats.
22 As it turned out, basically in the Senate, you
23 know, it worked out. We had, as I recall, 20
24 Republicans, 20 Democrats. But in that process you
25 learn something that's hard for me to put into words
93
1 to you that haven't been through it.
2 What you learn is, is this is really the heart of
3 what the democratic process is about and there is no
4 way that and -- this commission, let's just say right
5 now we were going to reapportion the state. There is
6 no way that someone who hasn't lived and breathed
7 Homestead, Florida, the Florida Keys, South Florida,
8 Downtown Miami, that's going to know how to deal with
9 the most important right that people have.
10 And so the first thing -- and I have been -- let
11 me back up a minute. As Marilyn Evans-Jones knows,
12 what's proposed here, I would agree with Commissioner
13 Thompson, if you're going to go this route, it's about
14 as good as you can make it. But what I would submit
15 to you is that to not -- to tell the legislators they
16 can do everything else including change laws involving
17 your freedom and your business and your contracts and
18 tell the people and I'd at least have them to be in a
19 position to address this subject.
20 Florida is not like these other states. I'm
21 usually better prepared for a speech than this. But
22 if you'll look at the states in the summary, I mean
23 it's Arkansas and some others and some others.
24 Florida is a very diverse state, more so than any
25 other state, even California. I mean, when you go
94
1 from Pensacola and come into north Florida and central
2 Florida and then go to south Florida.
3 Now, to tell us that we're going to have
4 everybody's rights to elect their members of the
5 House, minority or otherwise, members of the Senate
6 and their Congressmen by an eight-person commission,
7 none of whom is elected, none of whom is elected, no
8 matter how benevolent, no matter how great they may
9 be, is a pretty big departure for a state like
10 Florida. I think this proposal, if there was a time
11 for it, and again we worked on it in fairness of the
12 committee, I've been back and forth. Let me stop
13 right now and tell you something. It won't affect the
14 partisan balance.
15 A fair reapportionment today in the Florida
16 Senate, two months from now, perhaps, is maybe 25, 15,
17 24, 18, two-thirds of the members of the congressional
18 delegation are Republicans. It's not going to affect
19 that, I mean, when you go with a fair reapportionment.
20 So let's put that aside for the moment and think
21 about whether the case of former Speaker Mills that
22 some commission, maybe none of whom are from around
23 Gainesville, Florida is going to know what the
24 communities of interest are. And in Tampa Bay, what
25 are the communities of interest between Pinellas and
95
1 Hillsborough? In Jacksonville? I mean, I just think
2 that it's hard to argue about an idea, it sounds good.
3 But to me, it's not part of our system in this country
4 to not have the Legislature do this. If they fail to
5 do it, it goes to the courts.
6 I have another concern, having served in
7 positions where you have appointments to the
8 commission. There is no way to get ethnic or racial
9 minority balance on this commission when you think
10 about it because two are by the Speaker, two by the
11 minority leader of the Senate, and two by the House
12 and two by the president and two by the minority
13 leader, there's no way. They each have two, who is
14 going to decide whose appointment would represent
15 minorities?
16 I guess the other concern I have is, and I'm not
17 prepared on the technical legalities of this, but
18 every case, I sat down in Tampa with a three-judge
19 panel and Judge Chovat (phonetic) said, We're going to
20 give deference to the Legislature. The Legislature
21 are the elected -- elected by the people of the state.
22 We're going to give deference to them in
23 reapportionment. They may need to fix this seat and
24 we're going to give them the chance to do that, that
25 was basically the idea.
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1 Now I'm not sure what the federal courts will do,
2 but to me, I think on balance at this moment as we
3 stand here today that while you can say, Sure, it's
4 self-interested for legislators to reapportion
5 themselves, that there just isn't a great enough sin
6 out there for this type of remedy to take it totally
7 away from them. In the case of Congress, even more
8 so. Right now for Congress, you might have had, as I
9 said, an occasional House member, never a Senator, try
10 to draw a congressional seat. But in general, what's
11 wrong with having the Legislature of this state, who
12 are elected by all the people, draw the seats for
13 Congress?
14 I mean, we certainly get their attention every
15 ten years when you have got concerns and you want help
16 from your local state Senator or Representative about
17 something they are doing, we get a chance to talk to
18 them fairly regularly. In fact, they move down here
19 and get hotel rooms. I don't think there's been a
20 showing.
21 It's true, as Commissioner Zack was involved, and
22 represented the Senate that the congressional plan
23 didn't get drawn, it was drawn by the federal courts.
24 And it might not be the best plan in the world. But
25 twice since Senator Jennings and I -- Commissioner
97
1 Jennings and I have been in leadership in the Senate
2 here we've had problems coming up on reapportionment,
3 and in both instances, in the Tampa case we went back
4 and fixed it and we submitted a plan.
5 In the case of Corey Brownseed (phonetic) in
6 Jacksonville, within ten days or thereabouts we
7 presented this, we had hearings, we had committee
8 meetings and we addressed and redefined her seat to
9 satisfy the federal court requirements and she since
10 has been reelected in it. So I just don't think that
11 there is a big enough evil. I have great respect for
12 Marilyn Evans-Jones. I've tried my best to carry
13 through in liking this proposal but I just feel like
14 it's such a basic right for people to have elected
15 people do this that we should not go the direction of
16 an independent commission so I just wanted to share my
17 feelings with you on this and I would hope that you
18 would think long and hard about putting something like
19 this on the ballot because it's hard for me, having
20 been through two of these now, to explain to you how
21 it works.
22 And you can go back and pick some bad things to
23 talk about. But if it's hard for me to explain to
24 you, the people of the state, I'm afraid, may not ever
25 quite understand until perhaps it's too late, that
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1 maybe they are jeopardizing their rights if they voted
2 to approve this. And it's like sounds good, but it is
3 really a basic concern. And I wanted to emphasize
4 again the question of the minority issue.
5 The Legislature is diverse. The Senate and the
6 House both have minority members. There is no way
7 that an independent commission accountable to no one
8 of 8 people or 11 or whatever number you pick can ever
9 share and address the concerns or at least empathize
10 with them. They may address them, I'm not saying they
11 couldn't do it. But to me, I just don't think there
12 is enough evil shown here especially for the future
13 and especially in view of Florida's diversity to put
14 it in this category with some of the states, and there
15 are 8 or 10 of them that do have this system.
16 On the balance, I agree again with Chairman
17 Thompson that we've tried to make this, if that's the
18 direction we're going to go, as viable as possible.
19 One other idea was discussed to let the Legislature
20 try to do it, it had this as a backup, but that would
21 be all right too. At least they would get a chance.
22 And if they failed, as has happened on occasion, then
23 they would fail. So I would ask you not to go forward
24 with this.
25 CHAIRMAN DOUGLASS: Commissioner Barkdull.
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1 You're next, Commissioner Morsani.
2 COMMISSIONER BARKDULL: Mr. Chairman, members of
3 the commission, a lot of what Commissioner Scott said
4 was what I said on this floor of this commission 20
5 years ago. I think the present chairman of this
6 commission and myself and possibly one other, were the
7 only three that voted against having a commission at
8 that time.
9 Since that time, I've come to the conclusion that
10 we need to try something else. We've gone through two
11 reapportionment battles in '82 and '92, run up
12 considerable bills and also considerable acrimony. I
13 think it's time for us to try something different.
14 The members of the Legislature will pick who
15 serves on this commission. And I think it will be an
16 opportunity for Florida to have reapportionment in 'O2
17 and not suffer through the trauma that we went through
18 and I know the legislators went through up here. But
19 those of us that watch government in action cannot
20 have thought it was a very pretty thing. I think we
21 ought to try an independent commission appointed by
22 the members of the Legislature and see if they can't
23 do a better job.
24 CHAIRMAN DOUGLASS: Thank you. Commissioner
25 Morsani?
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1 COMMISSIONER MORSANI: Well, Commissioner
2 Barkdull took the words out of my mouth.
3 Unfortunately, you know, with all due respect,
4 Mr. Scott -- Commissioner Scott, I agree with you. I
5 think it should be like with the Legislature, however,
6 that said in some of the -- in many of the -- our
7 hearings, our public hearings, we go back to
8 credibility. I think that, honestly, I think the
9 leadership of the House, the Senate, the last couple
10 of sessions have demonstrated great leadership in this
11 state and I think if the Legislature is acquiring a
12 great deal of credibility, has required a great deal
13 of credibility in recent years.
14 However, the public has very, very short
15 memories. And throughout the 13 public hearings there
16 was a strong sentiment to have such a commission. I
17 don't disagree that I think they were being measured
18 against the wrong states. However, I do think that
19 it's time that we, as Commissioner Barkdull said, that
20 we have a change, we attempt a different road.
21 Yes, there are serious problems that you've
22 adequately outlined, Commissioner Scott. However, I
23 would open that those that are appointed by the
24 Speaker and the President of the Senate would be of
25 stature, that they would have the -- they would get
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1 the input necessary to make good judgments on these
2 matters. For all those reasons, I encourage the
3 members of the commission to support this proposal.
4 If I had my druthers, I would rather be on your side
5 of the aisle on this issue, Mr. Scott, but I think
6 it's probably wrong today.
7 I think that we probably need to put this to the
8 people because they do want a different voice than
9 have experienced in the past. Therefore, I would
10 encourage your support.
11 COMISSIONER THOMPSON: Further debate? Further
12 debate, Commissioner Connor?
13 COMMISSIONER CONNOR: Mr. Chairman, I rise to
14 speak in opposition to the proposal and I've worked
15 hard, as have others of the Legislative Committee, to
16 try to make the best proposal that we could get and I
17 told Commissioner Evans-Jones that during the course
18 of those discussions that I was leaning in favor of
19 the proposal. But on reflection, and after a good
20 deal of consideration and deliberation, I'm going to
21 vote against it and I'm going to tell you why.
22 Pretty soon, we're not going to need a
23 Legislature -- pretty soon, we're not going to need a
24 Legislature. The Supreme Court regularly, in my
25 estimation, usurps legislative authority. This body
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1 regularly puts forth issues that are more appropriate
2 for legislative consideration in my estimation, rather
3 than for inclusion in the Constitution. And now we're
4 in a position of considering taking away what has been
5 one of the most time-honored and traditional roles and
6 responsibilities that the Legislature has had.
7 The Constitution, as it's presently structured,
8 states the Legislature, at its regular session, and it
9 goes on to talk about its responsibility for
10 reapportionment. Why is it that I do support the
11 legislative role? Let me mention several reasons,
12 some of which have been mentioned by Commissioner
13 Scott, but let me amplify on them if I may.
14 First, diversity. There is no more diverse body,
15 there is no more diverse branch of government than the
16 Legislature of the state of Florida among the three
17 branches of government. It doesn't take long to
18 reflect upon who occupies what positions to see that
19 that is exactly true. The Legislature reflects the
20 greatest geographic diversity. The Legislature
21 reflects the greatest racial diversity. The
22 Legislature reflects the greatest religious diversity.
23 The Legislature reflects the greatest ethnic
24 diversity, and the Legislature reflects the greatest
25 gender diversity of any of the three branches of
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1 government.
2 And that, I would submit to you, in large part,
3 accounts for why this is not always a very pretty
4 process because these diverse interests, geographic,
5 racial, you are name it, come into attention once
6 every ten years as the Legislature goes about
7 performing this work and it is all performed in the
8 public view, it is not a pretty sight.
9 But as has been pointed out in large measure, it
10 works and it fosters, I would submit to you, the
11 democratic process in a very positive way and the
12 public in the final analysis, I would submit to you,
13 can have great confidence in its end product knowing
14 that every segment of our society in this great and
15 very diverse state has been represented in the
16 process. And had the opportunity to put in their two
17 cents and make their case.
18 Now, if you think about it, you're talking about
19 four different people who will appoint two different
20 representatives. There is no way you're going to
21 achieve any kind of racial balance, any kind of gender
22 balance, any kind of religious balance, any kind of
23 ethnic balance. No, way. Why? Because each of the
24 four authorities only get to appoint two people. You
25 can count on the fact that they will not, that the
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1 minority and majority will not consult with one
2 another in terms of who they are going to appoint, so
3 that so-and-so can appoint the south Florida seat and
4 somebody else can appoint the north Florida seat.
5 Each are going to act in the blind to do what they
6 think they need to do.
7 Look at the Florida Supreme Court. We have one
8 appointing authority who appoints the court, we have
9 seven members, seven members. Do you think that
10 reflects the kind of diversity that the Legislature
11 represents in this process, heavens no.
12 I would submit to you, as ugly as the process can
13 sometimes be, that the end result is a result that the
14 public can affirm knowing that very different and very
15 diverse groups had the opportunity to participate in
16 the process.
17 Secondly, on the issue of deference. Let me, if
18 I may, read to you from the 11th Circuit opinion in
19 the case of the Tallahassee branch of the NAACP versus
20 Leon County, decided in 1987, commenting on the
21 important role of the Legislature in this process in
22 comparison to the court to give you an idea of the
23 kind of deference the federal courts have accorded the
24 Legislature in this process.
25 Federal court -- and this is a quote from the
105
1 case -- federal courts must defer to the judgment of a
2 state legislative body in the area of reapportionment.
3 Principles of federalism and common sense mandate
4 deference to a plan which has been legislatively
5 enacted. First, the elected representatives of the
6 people must understand the existing political system
7 and the changes which would result from
8 reapportionment. Rarely, if ever, will the federal
9 district court have the benefit of such insight.
10 Second, political compromise can produce a voting
11 system tailored to the city, county, or state to be
12 reapportioned. The district court however is required
13 to lay voting lines with mathematical exactness.
14 Third, federalism is preserved when
15 reapportionment is performed by the legislative body
16 of the state. Reapportionment produces a fundamental
17 change in state government and affects who will
18 represent the people. Consequently that determination
19 is best left to the people rather than the federal
20 judiciary.
21 Now my point simply is this, all of those
22 principles that were enunciated by the federal courts,
23 I would submit to you, speak to the important role
24 that the Legislature has historically played in this
25 process. Is this issue political, you bet it's
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1 political, you bet it's political. You've been pulled
2 and tugged by Republicans and Democrats along the way.
3 Republicans who have said, in effect, we need a period
4 of time to overcome the present effects of past
5 discrimination so let us reapportion in the future.
6 Democrats who have come to you and said, Oh, what
7 a nightmare. This is just a terrible kind of process.
8 And everybody is well aware that the Democrats are out
9 of favor in the legislative arena and that both houses
10 are currently run by Republicans. So I think you can
11 look at both those arguments with no small amount of
12 skepticism as you address what interests ought to be
13 served here. And I would submit to you that it is the
14 historic role of the elected Legislative body which is
15 at issue here.
16 Are we going to so emasculate the Legislature in
17 the state of Florida through usurpation of legislative
18 authority by other branches of government, through the
19 delegation of its authority to appointed bodies within
20 government so that it really represents nothing more
21 than a figurehead or are we going to have responsible
22 people in these positions whom we will hold
23 accountable for the carrying out of their
24 responsibilities that have been accorded to them under
25 the Constitution?
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1 Yes, there have been folks who have tried to draw
2 their own congressional districts. We all know who
3 they are. The public is not stupid. The public knows
4 who they have been as well and typically they have met
5 with little to no success when they tried to
6 manipulate that process to their personal political
7 advantage and you can go back and you count the races
8 and you can name the names and you'll know that that's
9 true in large measure.
10 In the final analysis, ladies and gentlemen, it
11 is the Legislature who is accountable to the public,
12 who had been elected by the public. It is an open
13 process and it is one that I would submit to you,
14 after careful study, that we should not jettison, that
15 we should carry forward however cumbersome and however
16 unattractive it may be. You get eight folks in there
17 who in turn pick a ninth, you're going to have eight
18 folks who, no doubt, are on a short leash by the
19 appointing authority. I would submit to you it won't
20 be any less political than it has been in the past but
21 the politics will be below, in large measure, the
22 radar screen.
23 I believe that the most important of our branches
24 of government, frankly, in terms of crafting public
25 policy, and shaping how we're going to order ourselves
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1 politically within our state is the Legislature and I
2 encourage you and implore you to preserve this
3 important legislative function. Thank you.
4 COMISSIONER THOMPSON: Further debate? Further
5 debate? Commission Ford-Coates, you're recognized.
6 COMMISSIONER FORD-COATES: I rise to speak in
7 favor of the measure. I believe this commission is,
8 perhaps, one of the best examples of an appointed body
9 in which there are only four of us in elected office
10 who meet to do their work with a great commitment to
11 providing a fine work product. As such in our process
12 we have traveled the state and we have heard from
13 people all over the state of Florida. And I don't
14 think there is any one of us who has not been
15 impressed by the diversity of the state and the
16 difference of needs ranging from the Panhandle to
17 south Florida.
18 Because of that, I think that this commission, as
19 proposed, is one which can meet the needs of providing
20 for the diversity in the neighborhoods around the
21 state of Florida. In addition, I believe the
22 Legislature's job is to legislate. And every time
23 reapportionment comes around, a great deal of their
24 time is spent working on reapportionment. I think
25 it's time to take reapportionment out of the hands of
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1 the Legislature not only because it's the right thing
2 to do but because I believe the public perceives it as
3 the right thing to do.
4 Those of us who do run for elected office know
5 very well the perception is reality. The public
6 perceives it as an inefficient political process. I
7 think that we make a large step forward by putting it
8 the hands of an independent reapportionment commission
9 allowing the Legislature to do its job as the
10 Legislature, allowing the people to have confidence
11 that reapportionment will be done in a fair and
12 equitable manner and I urge your support for this good
13 proposal.
14 COMISSIONER THOMPSON: Further debate?
15 Commissioner Zack, you're recognized.
16 COMMISSIONER ZACK: I've lived with this issue
17 for, I guess, the last ten years and I have been truly
18 privileged to have represented the democratic Senate
19 and the Republican Senate. And there is no one who
20 sits in this chamber who managed to receive an
21 appointment to sit in this chamber that doesn't
22 understand partisan politics. The best quote that I
23 think we should focus on when thinking about
24 reapportionment comes from Will Rogers as he had a way
25 of getting to the heart of the matter very quickly
110
1 when he said, Where you stand depends on where you
2 sit.
3 And today we all sit here in this chamber. We
4 don't leave all our partisan beliefs or ideological
5 beliefs on the other side of the door when we walk
6 into this chamber. However, we do try to do what's
7 right and I've seen it time and time again as we have
8 all witnessed that we've tried very desperately at
9 times to listen to what we have heard around the state
10 and fix the problems that exist and not deal with
11 imaginary problems.
12 And I agree with Senator Scott when he said that
13 reapportionment is, and I quote, The heart of the
14 democratic process, it really is. And when we look at
15 what occurred during the last reapportionment, that
16 heart flat-lined. It was an absolute dead on arrival.
17 The fact is that there was no ability to reapportion
18 congressional seats and we had a quote, unquote,
19 expert come in from out of state and we were there. I
20 tried a case for six months right down the street and
21 I know Senator Scott came and watched and a number of
22 other people came and watched that case and that
23 expert came in with a pair of scissors and a roll of
24 Scotch tape and took three maps and cut them up and
25 Scotch taped them back together and it looked like a
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1 camel when he was trying to produce a horse. The fact
2 is, he had no idea of communities of interest.
3 And when -- I suggest to you, that when the
4 meetings occur around a computer at midnight in this
5 building, which is when those districts are drawn and
6 redrawn and now it's done like that by those
7 computers, communities of interest is not -- is being
8 discussed at that moment.
9 The fact of the matter is that when we talk about
10 ethnicity and diversity, we are not talking about the
11 ethnicity and diversity of this commission. Or
12 frankly of the Senate or the House. We're talking
13 about reproducing a reapportionment plan that has the
14 ethnicity and diversity constitutional considerations
15 as part of that plan. And we don't do it by going and
16 walking the neighborhood.
17 The way it's done today, by the sophisticated
18 data that's available, is we can tell this commission,
19 whoever this commission is going to be if there is a
20 commission, can tell block by block, house by house
21 who lives there, how they voted, what their color is,
22 what their ethnicity is, what cereal they eat in the
23 morning. The fact is that this commission will have
24 that information before it and will produce a plan, I
25 suggest, that will consider all those matters and will
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1 be a plan that we will be proud of.
2 I guess if there is anyone who has a conflict of
3 interest here it's myself because I guess I'm going to
4 legislate myself out of a job. But I generally
5 believe that the citizens of the state of Florida who
6 we've heard from, know that it's time for this
7 proposal. And I am very happy, frankly, for different
8 reasons than some people may be here that we don't
9 have a 20/20 Senate anymore.
10 I agree this will not affect a single partisan
11 vote probably. I would suggest that it will not
12 affect one seat in the Republican/Democratic scheme of
13 things and it shouldn't. What it should do is produce
14 a better plan. And the last issue that was discussed
15 about federalism, federalism is about the Tenth
16 Amendment of the United States Constitution, talking
17 about state action. And the same exact principles of
18 federalism that apply to a legislative plan, which are
19 correctly stated by Commissioner Connor, will apply to
20 this commission because this commission will be a
21 state commission, state authorized commission. And
22 federal courts, in exercising the principles of
23 federalism, must defer, must defer to those state
24 considerations.
25 I believe that we took -- well, I know because I
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1 sat on it with Commissioner Scott and Commissioner
2 Langley, Commissioner Evans-Jones, and who else,
3 Commissioner Thompson, and we struggled mightily,
4 mightily over the three different proposals. And we
5 agreed because I believe people of common sense and
6 good judgment can agree that this is the best possible
7 proposal for a reapportionment commission.
8 Now not everybody agreed to vote on it and I
9 respect those people who do not want to vote on it for
10 their own reasons that are valid reasons. But I
11 suggest to you that if we are going to have a
12 reapportionment and redistricting that is concerned
13 with the issues of diversity, ethnicity and what is
14 right for the people of the state of Florida, vote for
15 this commission.
16 COMISSIONER THOMPSON: Further debate?
17 Commissioner Crenshaw?
18 COMMISSIONER CRENSHAW: Thank you, Mr. Chairman.
19 Just one brief point because I went through
20 reapportionment like some of the other people that
21 were here and it was a fairly messy process and I
22 think in part it was because there are actually,
23 Senator Scott, there were 21 Democrats and 19
24 Republicans but one of the Democrats felt
25 disenfranchised so he voted with the Republicans all
114
1 along and so nothing ever happened. And I would fear
2 that. And I would like to figure out a way to kind of
3 take the politics out, take the partisanship out of
4 it.
5 And I would say to you, that if you believe this
6 proposal is going to take the politics out of
7 reapportionment or take the partisanship out of
8 reapportionment, I think you're living in Alice in
9 Wonderland. But I've got to confess, I took a trip to
10 Alice in Wonderland, I didn't go all the way to
11 Wonderland, but I proposed a solution similar to this.
12 But -- in one sense it was similar but I think it was
13 a much, much more far-reaching proposal to try to get
14 rid of the politics, to try to get rid of the
15 partisanship. And what it did was create this
16 independent commission. But it didn't let the Speaker
17 and the President and the minority leader in each
18 house appoint the membership. Because I think when
19 you do that, you just lock in the partnership.
20 Instead of having 160 members in the House and
21 the Senate, you've got eight partisans, four
22 Democrats, four Republicans and somehow they are going
23 to go off and elect the magical ninth person. I don't
24 know how they do that, but I'm sure they are able to
25 do that.
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1 But I don't know when you-all went through this
2 process to try to figure out how to really remove it
3 from politics I don't know if any consideration was
4 given to the proposal that I made about five years ago
5 to actually allow the chief justice of the Supreme
6 Court, given a lot of power in appointing that
7 authority.
8 Actually having a six-member authority and the
9 chief judge would appoint five people that would be
10 recommended to him by the chief judge in each one of
11 those districts, and each one of them would give the
12 chief justice three and he would pick one and they had
13 to have all those kinds of backgrounds and diversity
14 and I didn't know either who the chief justice of the
15 Supreme Court was. And now that I've met one, not a
16 bad guy, probably a pretty fair-minded person.
17 And I'm not concerned about whether they put
18 Democrats on there or Republicans on there, but it
19 seems to me that's the way you really remove this from
20 politics. And so without something like that, I think
21 you just narrowed the political field from 160 down to
22 8. It's not going to change anything, it's still
23 going to be foggy, it's still going to be messy. But
24 in my view, this really doesn't accomplish the goal
25 that's set out to be accomplished and so I would urge
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1 people to vote against it.
2 COMISSIONER THOMPSON: Commissioner Mills, you're
3 recognized.
4 COMMISSIONER MILLS: Mr. Chairman, ever since I
5 believe it was Governor Eldridge Jerry invented the
6 gerrymander, or at least was given credit for
7 inventing it a long time ago, most of the judicial
8 intervention has been a result of legislative action
9 and Florida really is no different. During the series
10 of reapportionment sessions which I guess occurred,
11 Judge Barkdull, during the '60s and I think there were
12 five or six legislative sessions simply to try to get
13 the Legislature to adhere to one man, one vote. We
14 had districts in Miami that were 50,000 and districts
15 in the Panhandle that were 5,000, which I suppose has
16 some merit, Commissioner Thompson.
17 But, somehow the one person, one vote concept
18 didn't seem to be adhered to. So the legislative
19 history, and I certainly admire the Legislature, has
20 not been one of complying with the Constitution and
21 the law over the last 100 years and in Florida over
22 the last 30. And I think virtually every time we have
23 had reapportionment there has been litigation and that
24 is a result which I think people would choose to
25 avoid.
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1 And whenever the League of Women of Voters and
2 common sense ends up on the same side, it's time to
3 pay attention, not that the League of Women Voters is
4 not always on the side of common sense. But there is
5 a gas station close to where I occasionally live and
6 work and I go there for common sense advice. And when
7 you describe that the Legislature draws their own
8 district, they have a tough time thinking that is done
9 objectively.
10 Now I served on the Legislature during
11 reapportionment. I'll say there was not only a good
12 bit of nobility involved, I think actually a number of
13 people tried to do the right thing. But it was
14 difficult to convey that to the public that spoke to
15 us over and over again when they hear stories of maps
16 with pins in them where legislators lived, there must
17 be some consideration given to who lives where.
18 And the other matter in terms of priorities, yes,
19 I think voting is about the most important thing we do
20 as a democracy, but the Legislature has a lot of other
21 duties. And one thing that I think you can get
22 unanimous consent from any legislative person that's
23 been in the reapportionment process is, during the
24 reapportionment process everything else takes a
25 backseat. And I'm sure Commissioner Evans-Jones will
118
1 be able to tell you that, that irrespective of the
2 interest of the state, in terms of the appropriations
3 process, in terms of the important issues in education
4 and environment growth and economic development,
5 somehow there is a distinction.
6 Therefore, it seems to me that the bottom line on
7 this proposal, which I believe is a good one and
8 intend to support, is it intends to do one of the
9 things that we can do most effectively and that is
10 restore public faith in the process. I think this is
11 one of the issues which the public most repeatedly
12 identified as one which they thought would improve the
13 overall elections process and their faith in it.
14 This, I think, could be one of the most
15 outstanding proposals we have. I think, Commission
16 Thompson, the committee worked hard on this to develop
17 the technical aspects of it. And I think, as
18 everybody has said, if you want to do a commission,
19 this is the best commission you can do. And I think
20 that we should do a commission.
21 COMISSIONER THOMPSON: Further debate?
22 Commissioner Douglass, you are recognized.
23 CHAIRMAN DOUGLASS: I'm not sure that anybody
24 could add a great deal to the eloquence and the
25 persuasive arguments that have been made for both
119
1 sides of this issue but there are a few observations
2 that I'd like to make on this. My first real contact
3 with the state capitol was when I was a youngster
4 about 14, 15 years old, Governor Millard Caldwell was
5 governor. My father sent me over here on the bus from
6 Crestview with $1300 sewed into my pocket to pay for a
7 piece of land that he was buying from Governor
8 Caldwell. My father had great confidence in me, I
9 guess he figured nobody would think I was rich enough
10 to be robbed.
11 But I came in and I went in and I waited in the
12 outer office as people do to see the Governor. And it
13 was, for me, it was like going to someplace on high,
14 Millard Caldwell was the greatest person on earth to
15 me. He was the Governor, he had been the Congressman,
16 you looked up to him and you still did.
17 So when I went in, and it was a hot summer day,
18 and the Legislature had gone and come back, they were
19 here. And I walked in and the Governor said, Come in,
20 young man. If any of you ever heard him talk, he had
21 sort of a Virginia accent. He sent, I want you, when
22 you leave here, to walk over to the Senate to the
23 gallery and watch the most ridiculous exercise in
24 self-interest you will ever see. I thought, Okay. He
25 said, It's called reapportionment. He said, It's the
120
1 absolute wrong way to do this. He took my $1300 that
2 my daddy gave me and he suggested that John
3 Wiggington, his secretary, would take me to lunch at
4 the Dutch Kitchen which is now near where the Baptist
5 Church was. I still remember this sort of like it was
6 yesterday.
7 But I also remember that I did go down there
8 after lunch and I watched the great Senator Louis from
9 Marianna and some of the other greats of the time
10 debate this and I wasn't sure what they were doing.
11 But when I left, I was sure Governor Caldwell was the
12 brightest man and the most intelligent man I had ever
13 met because he was absolutely right. And I watched it
14 again and again and again. And I've heard these
15 arguments about -- and as Commissioner Barkdull told
16 you, in '78 I voted against this because the
17 appointment was not made by the legislative branch of
18 government.
19 This proposal has the legislative branch doing
20 the legislative job without engaging the entire
21 process in the greatest exercise of self-interest that
22 can be imagined. Now I commend to you that this
23 proposal by Commissioner Evans-Jones and others meets
24 any objections that anybody has to the separation of
25 powers which my friend -- the commissioner from
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1 Jacksonville overlooks in saying that -- your name is
2 Crenshaw, correct, I was thinking of your
3 father-in-law -- at the moment it slipped me, but age
4 does catch you.
5 And I will say this, however, that what was wrong
6 with that proposal is the judicial branch was being
7 asked to make the decision. This proposal does not
8 suffer from the infirmities of that proposal. This
9 one meets the objections. The other things that have
10 been said, many of them can be said, but in '67 the
11 Legislature could not -- did not reapportion itself,
12 the federal court did. It completely turned the
13 entire election around that had just been held in '66
14 and new elections were held, and they were held under
15 entirely different districts with multimember
16 districts and it was done by the federal court order,
17 nothing else.
18 Every other reapportionment that's occurred has
19 wound up being done by the federal court, not by
20 anybody else. When it got through, it was pointed out
21 by Commissioner Zack, the federal court is the one
22 that finally does it with some expert from out of town
23 with a large briefcase, now computer. I submit to you
24 that that's wrong.
25 One of the other things that was said is that
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1 this commission, if it's appointed, will operate in
2 the sunshine, will operate where you can see what they
3 are doing, what you can hear what they are doing.
4 That's not done when it's done in the wee hours of the
5 morning, as he will tell you. It's done by a few
6 people who are running things to see how they come out
7 on some sort of partisan line. One thing that I'm
8 very proud of with this commission, we have been
9 nonpartisan. We have voted right for what we thought
10 was right.
11 And I know it takes courage for some people to
12 step forward and vote for this because things have
13 changed. And things will continue to change. But
14 looking back over the years the millions of dollars in
15 wasted time by the Legislature that we've observed as
16 we live here in Tallahassee and looking back over at
17 what might happen again in 2000 if we don't do this, I
18 think that the only thing that we can do is submit
19 this to the people and see if they too agree as they
20 seem to in the public hearings to support this concept
21 of better government that's supported by common cause
22 among others and common sense among others, and also
23 the League of Women Voters and also such great people
24 as commissioners that are in this chamber.
25 I would leave you with this thought, there may be
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1 some legacy for this commission, this is one of those
2 items that's important because this will truly improve
3 the government of Florida but retain the separation of
4 powers which is the basic argument that I had against
5 it in '78, it did not. I think this does it, this is
6 fair, it's just and it's equitable. It will be in the
7 sunshine so the people will see. And we will observe
8 and have a better government for it. I urge you to
9 vote for this proposal by Commissioner Evans-Jones.
10 COMMISSIONER THOMPSON: Further debate?
11 Commissioner Evans-Jones to close.
12 COMMISSIONER EVANS-JONES: Thank you,
13 Mr. Chairman. We have heard a lot of arguments as to
14 why we should not have a commission and we have heard
15 a lot of arguments about why we should have a
16 commission. And I want to answer some of the
17 questions. You are saying that we would have more
18 diversity with the Legislature, you would have 160
19 members participating. Well, I can tell you right now
20 that 160 members don't get in there and work with
21 those maps, just a very few people, probably less than
22 nine get in there and make the determinations as to
23 how these districts are going to be apportioned.
24 We have never, ever had public hearings when we
25 did reapportionments. This committee, this group will
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1 have public hearings. They will also have it open to
2 the public, which we have never had before. They will
3 also have guidelines that they really must follow.
4 And that's going to be very helpful and very -- excuse
5 me. I'm hearing everything that she's saying and
6 losing my train of thought.
7 There will be all of the things that we have
8 mentioned are going to be important to this
9 commission. They have to look at the racial, all of
10 the ethnicity that Commissioner Zack was telling you
11 about. They must do it in these guidelines. And,
12 yes, it is certainly going to be a partisan group of
13 people who are in there, they are going to be
14 affected, but they are going to have to answer to what
15 they have done.
16 And Commissioner Scott mentioned that the people
17 who were in Congress came up here during the
18 reapportionment session, and that's quite true, and
19 they do lobby very excessively for their seats and you
20 can understand that. The legislators themselves, how
21 can you possibly expect them not to be concerned about
22 their own seat and their own district, of course they
23 are, they are human beings just like you and I are.
24 But if we have this one step removed, we are
25 going to have a better process, we are going to have a
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1 fairer process, and I can assure you that the public
2 is going to feel a whole lot more comfortable with
3 this. We are giving the legislators an opportunity to
4 appoint these people, and I think that's good, I think
5 that's important.
6 But the most important thing is to be able to
7 have people all over the State of Florida to be able
8 to say, Yes, this is the very best possible way that
9 we could do reapportionment; this is indeed the
10 fairest way that we could do reapportionment. They
11 will definitely abide by the guidelines because they
12 have to.
13 And let me tell you that it has been done in the
14 shade, as I like to call it, for many, many years. So
15 let's bring it out in the Sunshine where people will
16 have to answer to the general public. I urge you, I
17 implore you to vote for this because it is the right
18 thing to do, and it was the fair thing to do, and
19 it'll be fair for Republicans and for Democrats. But
20 it'll be fair for all of the citizens of Florida; and
21 that indeed, my friends, is what it's all about. And
22 that's your responsibility, and it's my
23 responsibility. Thank you.
24 COMMISSIONER THOMPSON: Chairman. The Lady
25 having closed, the question recurs on final passage of
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1 Committee Substitute for Proposal No. 172 and Proposal
2 162. The Secretary will unlock the machine and the
3 members will proceed to vote. All members voting.
4 All members voting.
5 (Vote taken and recorded electronically.)
6 COMMISSIONER THOMPSON: The Secretary will lock
7 the machine and announce the vote.
8 READING CLERK: Eighteen yeas and 13 nays,
9 Mr. Chairman.
10 COMMISSIONER THOMPSON: The proposal passes.
11 Let's take up the next proposal, Proposal 148.
12 Proposal 148, a proposal to revise Article III,
13 Section 16 of the Florida Constitution --
14 Mr. Barkdull, you are recognized.
15 COMMISSIONER BARKDULL: Chairman, I would like to
16 withdraw the proposal.
17 COMMISSIONER THOMPSON: Show that proposal
18 withdrawn without objection. Pick up No. 155,
19 Proposal 155 by --
20 COMMISSIONER LANGLEY: I object to the withdrawal
21 of it. I think it ought to be kept alive. That is
22 the one that delays --
23 COMMISSIONER THOMPSON: Use your microphone.
24 COMMISSIONER LANGLEY: Mr. Chairman, that is the
25 one that has the year for the Legislature to do it and
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1 then the committees take charge at that time if the
2 Legislature doesn't. I would ask Mr. Barkdull just to
3 keep it alive.
4 COMMISSIONER BARKDULL: I think, frankly,
5 Commissioner Langley, I concur with what the action of
6 the Commission was on the last vote, and that's why I
7 voted to withdraw it. I thought you would offer an
8 amendment to that one to do what you are talking
9 about. Without that amendment, I'm done with it and I
10 want to withdraw it.
11 CHAIRMAN DOUGLASS: Commissioner Langley.
12 COMMISSIONER LANGLEY: Commissioner, that
13 amendment could be offered at any other time also.
14 That's not the final product, I would just like for
15 you to keep it alive. I mean, it is your baby.
16 COMMISSIONER BARKDULL: It's down.
17 COMMISSIONER THOMPSON: Well, he can withdraw it
18 any time he wants to, though, can't he?
19 COMMISSIONER LANGLEY: No, he can't without --
20 COMMISSIONER THOMPSON: Well, he can make a
21 motion and by simple majority withdraw it, can't he?
22 What is the rule on that? We better check it out. We
23 are studying on that right now.
24 Now, the rest of you that haven't served in the
25 Legislature, you see what we go through. But I'll
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1 tell you what you could do, if anybody knows, they can
2 advise the Chair. I'm ready to listen. Is there a
3 provision in the rules for a motion to withdraw?
4 COMMISSIONER BARKDULL: I don't think there is.
5 But if anything, it would constitute the waiver of the
6 rules and it would take a two-third's vote.
7 COMMISSIONER THOMPSON: We are waiting for
8 somebody to advise us.
9 (Pause.)
10 COMMISSIONER THOMPSON: Okay, the rule doesn't
11 speak to it. I'll tell you what we are going to do.
12 We are going to just temporarily pass that motion to
13 withdraw, or the consideration of whether to allow the
14 withdrawal at this point and go forward.
15 Commissioner Scott, we'll take up your Proposal
16 155. He wants to temporarily pass that one. Show it
17 temporarily passed without objection.
18 Read the next one, Committee Substitute for
19 Proposal 6, Commissioner Nabors.
20 READING CLERK: Committee Substitute for Proposal
21 No. 6, a proposal to create Article VII, Section 19 of
22 the Florida Constitution; providing lenience on the
23 adoption of exemptions and exclusions from the general
24 state sales tax, reducing the rate of a general sales
25 tax to 5 percent.
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1 COMMISSIONER THOMPSON: Commissioner Nabors is
2 recognized to explain his proposal.
3 COMMISSIONER NABORS: Mr. Chairman, there is an
4 amendment on the floor, on the table.
5 CHAIRMAN DOUGLASS: By whom?
6 COMMISSIONER NABORS: By myself. It is a
7 substitute to Langley's.
8 CHAIRMAN DOUGLASS: Okay. Read Commissioner
9 Nabors.
10 READING CLERK: By Commissioner Nabors, on Page
11 1, Line 15 to Page 3, Line 6, delete those lines and
12 insert lengthy amendment.
13 COMMISSIONER NABORS: Members of the Commission,
14 I think the amendment is being handed out. The
15 amendment is the exact language -- the amendment to
16 the amendment is the exact language that was included
17 in the memo I sent to everyone and faxed out on
18 February the 3rd. It makes two changes, really; a
19 clarification in the proposal. And let me tell you
20 briefly what they are. Does everybody have the
21 amendment to the amendment?
22 Essentially the amendment to the amendment does
23 not change the substance of the proposal, it makes it
24 clear that in the, as you recall, and we have
25 discussed this with many of you, that one of the
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1 proposals, one of the concepts in the proposal is to
2 require that any future amendment or exclusion to the
3 general sales tax has to be in a single bill dealing
4 with that single subject matter alone. The bill also
5 includes a tax fairness initiative in the year 2000
6 and 2001.
7 One thing the substitute does, it clarifies on
8 Page 2, Line 10, that when the Legislature goes
9 through that process of the tax fairness initiatives,
10 it's not bound by the single subject matter, you could
11 do it in a series of general bills, which is always
12 the intent if there's confusion about that. So that
13 clarifies that.
14 The other clarification, if you listen up, the
15 other clarification is, is in the revenue neutrality
16 guarantee, if you look on Page 2, Line 23, as you
17 recall, and I'll explain in detail, the major
18 amendment, bill, basically advised that when the
19 Legislature goes through the tax fairness initiative,
20 it does so on a revenue neutrality concept in the
21 sense that it generates the same amount of sales tax
22 dollars as the previous year.
23 It allows that concept to include any moneys lost
24 as a result of a restrictional use of Lottery proceeds
25 as adopted other simultaneously. It is the issue we
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1 talked about in the Lottery. Those are the two
2 changes, the others are stylistic in terms of titles.
3 And I would move the substitute to the amendment.
4 COMMISSIONER THOMPSON: Commissioner, if you
5 will, I think these copies have just been passed out.
6 And before we go forward, this is going to take us a
7 little while. It's been suggested to me that some of
8 the members would like to take about a five-minute
9 break. Do you have an objection to that, Commissioner
10 Nabors?
11 COMMISSIONER NABORS: No, sir.
12 CHAIRMAN DOUGLASS: Okay. Let's just stand in
13 informal recess for about five or ten minutes.
14 (Brief recess.)
15 (Chairman Douglass resumes Chair.)
16 SECRETARY BLANTON: All commissioners indicate
17 your presence. All Commissioners indicate your
18 presence.
19 CHAIRMAN DOUGLASS: We need to go, we only have
20 40 minutes. Call it again.
21 SECRETARY BLANTON: Quorum call. All
22 Commissioners indicate your presence.
23 (Vote taken and recorded electronically.)
24 SECRETARY BLANTON: Quorum present, Mr. Chairman.
25 CHAIRMAN DOUGLASS: All right. Commissioner
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1 Barkdull, you are recognized.
2 COMMISSIONER BARKDULL: I make a motion.
3 CHAIRMAN DOUGLASS: All right, a motion.
4 COMMISSIONER BARKDULL: That the time of
5 adjournment be extended until we conclude the debate
6 on Committee Substitute for No. 6 and announcements,
7 motions to withdraw, and motions for reconsiderations.
8 CHAIRMAN DOUGLASS: All right. You have heard
9 the motion that the time for adjournment be extended
10 until we complete this item that we are on. All in
11 favor, say aye. Opposed?
12 (Verbal vote taken.)
13 CHAIRMAN DOUGLASS: It's so done. Now, let's
14 pick up where we left off. I think you had the floor,
15 Commissioner Nabors, it's your proposal. You offered
16 an amendment, which is essentially a new proposal.
17 And has it been read? Okay, then you may proceed.
18 COMMISSIONER NABORS: Members of the Commission,
19 let me explain to you what this amendment does. It
20 really doesn't change the substance of the proposal
21 that's being considered. This is the exact language
22 included in the packet that was sent out to each of
23 you this week by Federal Express from myself. It
24 basically does two things in clarification.
25 Does everybody have the amendment to the
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1 proposal? It has some stylistic changes which style
2 and drafting will have to look at in terms of titles
3 to the subsections, but the primary change is on Page
4 2, Line 10.
5 As you recall, this proposal basically requires
6 that each exemption or exclusion to the sales tax has
7 to be in a single bill, has to be a bill dealing with
8 that subject matter only, has to declare the State
9 public purpose is advanced. It also requires that
10 during fiscal year 2000-2001, that the Legislature is
11 mandated by the people to go through a tax fairness
12 initiative.
13 The language that is added is on page -- a new
14 sentence on 10 through 13 to make it clear that the
15 single subject requirement doesn't apply to that tax
16 initiative process. There's a lot of confusion over
17 that. The Legislature during that year of adoption of
18 the budget for the 2000-2001 could do that in a series
19 of general laws.
20 The second major change -- the second
21 clarification is on Page 2, Line 23, one of the
22 concepts, which I'll explain in great detail, is a
23 concept of revenue neutrality. When this tax base
24 initiative occurs, it occurs within the context of
25 revenue neutrality. And what this language says is
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1 the concept of revenue equality means the sales tax
2 generated the previous year, plus historical growth,
3 plus any amounts necessary to restore the Lottery from
4 general revenues, if there's a simultaneous amendment
5 adopted, it goes to that Lottery issue. So, those are
6 the only two changes in the language in the amendment.
7 CHAIRMAN DOUGLASS: There is another amendment on
8 the table to the amendment by Commissioner Hawkes.
9 Would you read the amendment, please?
10 READING CLERK: Amendment to the amendment by
11 Commissioner Hawkes, on Page 1, Line 26, after the
12 words, 2000 through 2001, and insert "may".
13 CHAIRMAN DOUGLASS: Commissioner Hawkes.
14 COMMISSIONER HAWKES: Thank you, Mr. Chairman.
15 This might be called the revenue neutrality
16 enhancement amendment. What this allows, and
17 actually, there's another amendment that follows this
18 one, is it allows the Legislature, if they wish, to
19 not raise as much revenue as what they may have raised
20 under the formula that's set forth in this proposal.
21 For instance, if the Legislature, if they came up
22 and it was $14 billion, let's say, and the Legislature
23 felt they could get by with 13.8, they would be
24 allowed to only do 13.8, if they thought that that was
25 in the best public policy. So, this creates the
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1 permissive language by saying "may". And the next
2 amendment basically puts the language, Unless the
3 Legislature determines that the needs of the state can
4 be met --
5 CHAIRMAN DOUGLASS: Wait a minute. Is that one
6 on the table too?
7 COMMISSIONER HAWKES: That one is also on the
8 table, Mr. Chairman.
9 CHAIRMAN DOUGLASS: All right. So, we have to
10 take the first one first. The amendment to the
11 amendment. Does everybody understand the first one?
12 Yes, sir, Commissioner Nabors.
13 COMMISSIONER NABORS: The only difference is that
14 in order to -- what we might want to do is go ahead
15 and take the amendment, my amendment to have that in
16 order so I can explain the total proposal because I
17 have to explain the whole proposal to indicate why I
18 think this is unwise. Whatever the Chair wants me to
19 do.
20 CHAIRMAN DOUGLASS: The Chair doesn't have a
21 choice here because there's an amendment to the
22 amendment on the floor.
23 COMMISSIONER NABORS: All right. I would like to
24 speak against it again.
25 CHAIRMAN DOUGLASS: All right. If we read the
136
1 amendment. You mean, he's got another amendment?
2 There are two separate amendments.
3 (Pause.)
4 CHAIRMAN DOUGLASS: The first amendment is to the
5 amendment offered by Commissioner Nabors, which is
6 what is before us at the moment. The amendment to his
7 amendment which we were taking up just before we
8 recessed. And just very shortly, what does your
9 amendment to the amendment say?
10 COMMISSIONER HAWKES: It inserts the word "may"
11 in the first reference to revenue neutrality, and it
12 caps the Legislature at revenue neutrality, but it
13 creates the possibility that the Legislature could
14 raise less revenue if they wanted to provide a tax cut
15 or something, they could do that. It is permissive
16 language for the Legislature. Still caps it at what
17 they would have raised but allows less if the
18 Legislature determines.
19 CHAIRMAN DOUGLASS: Now, on that amendment,
20 Commissioner Nabors, you wanted to speak in
21 opposition; is that correct?
22 COMMISSIONER NABORS: Yes, Mr. Chairman.
23 CHAIRMAN DOUGLASS: All right. You have the
24 floor.
25 COMMISSIONER NABORS: Members of the Commission,
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1 listen up, because this amendment appears to be a
2 simple amendment, but it goes to the heart, it goes to
3 the heart of the concept of revenue neutrality. Okay.
4 What the proposal does, let me tell you exactly what
5 the proposal does, in the main proposal and in my
6 amendment to the proposal, it basically -- the first
7 thing it does, it goes to the Constitution, and it
8 says, and I'm talking about by amendment to the
9 amendment, which his amendment is to that. It goes to
10 the Constitution and says that any new exemption or
11 exclusion to the general sales tax, any exemption or
12 exclusion in general sales tax has to advance a state
13 public purpose.
14 It defines what a state public purpose is. To
15 advance the state public purpose or encourage economic
16 development and competitiveness, supporting education,
17 governmental, religious, or charitable initiatives or
18 institutions or securing tax fairness. So that's the
19 fundamental concept and exemptions or exclusions have
20 to advance that stated public purpose. It then says
21 that from that -- once the amendment is adopted, from
22 that day on, from that day on, the Legislature is
23 limited in how it considers exemptions or exclusions
24 to the sales tax by requiring that each one appear,
25 each one appear, in a bill dealing with that subject
138
1 matter only and that bill has to declare a state
2 public purpose advance. The reason for that is that
3 then you would eliminate the tax trains, people would
4 know what the exemptions were, the Governor could --
5 all of the good public policy reasons why there should
6 be an open disclosure process where we do exemptions
7 to the sales tax and we don't service special
8 interests, and there's a public debate on those
9 exemptions.
10 The other main part of the bill is that it
11 requires a tax fairness initiative in the year
12 2000-2001. The reason that is, is that having changed
13 the Constitution to limit the power in which the
14 Legislature handles exemptions or exclusions, we have
15 given so many away and there's so many currently that
16 the people mandate the Legislature to go in, has two
17 sessions to look at and to make a determination as to
18 which exemptions do not advance the state public
19 purpose and which do. But it does that within the
20 concept of the rollback of the rate from the current
21 6 percent to the 5 percent, so there's a ceiling,
22 there's a ceiling on the rate for that one moment in
23 time only, for that year, 2000-2001. And at the same
24 time it has the concept of the revenue neutrality.
25 And what's meant by that is, is that the amount
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1 of money they would estimate in the appropriations
2 bill, at that moment in time, even at the reduced rate
3 of 5 percent, would be not less than the amount of
4 sales tax money they receive in the previous year,
5 adjusted for historical growth, adjusted to the
6 consequence of the Lottery amendment, okay. So it
7 gives assurances from sales tax revenue to people that
8 are concerned about the state budget, people in the
9 education community, all of those types of
10 constituencies, that this process is revenue
11 neutrality, that there has to be a floor from sales
12 tax revenue not less than the amount generated the
13 previous year, during that moment in time, that
14 2000-2001 budget, adjusted by growth plus Lottery
15 money.
16 What this amendment does, it makes that floor
17 discretionary. And the argument that's been made to
18 me about the amendment is, what if the state wants to
19 reduce the budget? There's two arguments. What if we
20 get a lot of money in, somehow more than we anticipate
21 in year 2000-2001, so we get a lot of money in, sales
22 tax money that's unanticipated.
23 What would happen under the amendment is that the
24 Legislature could reduce the rate in that
25 circumstance, so they could reduce the rate from five
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1 to four. To the extent that they did reduce the rate
2 and they generated more money than the revenue
3 neutrality concept, the provision implies that the
4 money is used to reduce school property taxes, it
5 eliminates any windfall. So, it has a self-balancing
6 process.
7 So, the argument is made that we need to make
8 these discretionary on these two amendments because
9 the Legislature may want to cut the state budget.
10 Well, the Legislature can still cut the state budget,
11 they can cut intangible taxes, they can cut all sorts
12 of taxes to cut the budget. This is not -- it doesn't
13 limit their ability to cut the budget, but it gives
14 assurances that this process that people mandate will
15 be done in terms of revenue neutrality.
16 What is going to happen, if you put this
17 amendment in here, in my judgment, it's going to
18 completely destroy the fundamental concept of revenue
19 neutrality as to sales tax revenue and it's going to
20 put all of the educational community and other people
21 who are concerned about the process, that they may
22 have a situation of rate reduction and a devastation
23 of the budget.
24 There's no need to do that. We are not tying the
25 strings of the Legislature. If they want to reduce
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1 the budget, they can reduce tangible tax revenue, they
2 can reduce corporate tax revenues, and a myriad of
3 fees and other revenues that they have that they can
4 reduce the budget. This requires revenue neutrality
5 as to the sales tax and the sales tax only. I ask you
6 to vote against these amendments because they destroy
7 the basic concept of revenue neutrality.
8 CHAIRMAN DOUGLASS: On the amendment. Do you
9 want to close, Commissioner Hawkes? You have the
10 floor.
11 COMMISSIONER HAWKES: Thank you, Mr. Chairman. I
12 don't think it destroys revenue neutrality, I think it
13 gives the Legislature flexibility. If you look at
14 what kind of fees and revenues the Legislature raises,
15 probably close to 80 percent comes from sales tax that
16 goes into general revenue.
17 Now, when you go buy a gallon of gas, obviously
18 the Legislature taxes that, but that goes into a trust
19 fund and that builds roads, and when you buy a Lottery
20 ticket, that money is spent and goes into trust funds.
21 I mean, it is not discretionary money.
22 So, if the Legislature feels that they are having
23 a lot of revenue coming in and they want to give some
24 of that back to Florida's families because maybe,
25 maybe they believe that the government ought not grow
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1 at a rate two or three times the rate of household
2 income and they want to give some of that back, the
3 easiest way to give that back is, perhaps, in sales,
4 or maybe they want to do economic development. It
5 just gives the Legislature flexibility.
6 It caps it at revenue neutrality, and it says, We
7 are not going to raise money by doing this, we are
8 going to roll back the rate, but it caps at the
9 revenue neutrality. And if the Legislature has a
10 small amount that they want to give flexibility, it
11 just allows that. Thank you, Mr. Chairman.
12 CHAIRMAN DOUGLASS: All right. We'll vote on the
13 amendment. Lock the machine.
14 (Vote taken and recorded electronically.)
15 CHAIRMAN DOUGLASS: Has everybody voted? Lock
16 the machine and announce the vote.
17 READING CLERK: Fourteen yeas, ten nays,
18 Mr. Chairman.
19 CHAIRMAN DOUGLASS: By your vote, you have
20 adopted the amendment. Now, there's another amendment
21 on the table by Commissioner Hawkes. Would you read
22 the amendment, please?
23 READING CLERK: Amendment to the amendment by
24 Commissioner Hawkes, on Page 2, Line 28 after the word
25 proceeds, insert, unless the Legislature determines
143
1 that the needs of the state may be met with less than
2 the amount of revenue debt would ensure revenue
3 neutrality.
4 CHAIRMAN DOUGLASS: Commissioner Hawkes on the
5 amendment.
6 COMMISSIONER HAWKES: Thank you, Mr. Chairman.
7 The first amendment that we just voted on, basically
8 was the enabling language to this. This is really
9 conforming language, it just clarifies that the
10 Legislature has the authority. It is just conforming
11 with the first amendment, and I would ask for your
12 favorable consideration. Thank you, Mr. Chairman.
13 CHAIRMAN DOUGLASS: Commissioner Nabors to oppose
14 it.
15 COMMISSIONER NABORS: Well, I would just like to
16 say, for those of you who voted yes to the prior
17 amendment who liked this proposal, you be careful what
18 you are voting on in this, because basically this is
19 another example of the concept that revenue neutrality
20 will be severely weakened by this.
21 There's no windfall to the Legislature in this
22 process. If money is received greater than the amount
23 received the previous year, plus the amount, if the
24 Lottery amendment is approved, is basically, is all
25 that can be raised, plus historical growth. Anything
144
1 above that has to be used for school property taxes.
2 There is plenty of flexibility. If the Legislature
3 wants to cut the budget by cutting other revenue, so I
4 would urge you to vote against this.
5 CHAIRMAN DOUGLASS: Commissioner Scott.
6 COMMISSIONER SCOTT: These two amendments are the
7 exact question that, ever since we started discussing
8 this proposal that some of us have been asking,
9 because -- I mean, you look at what's happened in
10 Washington, I mean because of the committee, I mean
11 existing sources of revenue, we now even have a
12 balanced budget. And the question is, are they going
13 to have tax relief, are they going to spend the money
14 on something, or whatever. But you really need to
15 have an amendment in there that doesn't mandate that
16 the Legislature has to raise taxes $2 billion on
17 services in this state just to maintain revenue
18 neutrality because we are rolling back the sales tax.
19 If the money is not needed or they determine their
20 needs are less than that, they shouldn't have to do
21 that. And if you put -- I just think it is a bad idea
22 and I would be for the amendment.
23 CHAIRMAN DOUGLASS: All right. Do you need to
24 close on the amendment? That was good close? Okay.
25 All right. Unlock the machine and let's vote.
145
1 (Vote taken and recorded electronically.
2 CHAIRMAN DOUGLASS: Unlock the machine and
3 announce the vote.
4 READING CLERK: Seventeen yea, nine nay,
5 Mr. Chairman.
6 CHAIRMAN DOUGLASS: You are gaining, Commissioner
7 Hawkes. By your vote you have adopted the amendment.
8 Now we are now on the amendment as amended.
9 Commissioner Nabors.
10 COMMISSIONER NABORS: Unless someone has a
11 question, I think we can explain the differences in
12 this amendment and the main proposal, and I would like
13 to move the amendment to the proposal so that we can
14 debate the merits of the bill.
15 CHAIRMAN DOUGLASS: Commissioner Langley.
16 COMMISSIONER LANGLEY: I would like to ask
17 Commissioner Nabors a question. Will you give me, in
18 twenty words or less, what the title of this is going
19 to be on the ballot?
20 COMMISSIONER NABORS: Well, I can give it to you
21 in 75 words or less, but I don't know about 20.
22 COMMISSIONER LANGLEY: How about 20 pages or
23 less? Tell me how I explain this at the coffee shop.
24 COMMISSIONER NABORS: I think the title is fairly
25 easy, it would be a -- we have looked at title
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1 language. A lot of us who have worked on this have
2 looked at title language. And I think it can be
3 drafted. It basically would say, Do you approve a tax
4 payer's initiative that lowers that rate of the sales
5 tax from six to five by eliminating those exemptions
6 that service special interests.
7 COMMISSIONER LANGLEY: That sounds more like a
8 political speech than a title.
9 CHAIRMAN DOUGLASS: Let me suggest that maybe,
10 you know, that will have to come when we have the
11 styling and draft committee. But if you want to ask
12 that as a question, I think that's perfectly in order.
13 And you asked it, and he answered it. I think.
14 Commissioner Barnett.
15 COMMISSIONER BARNETT: I have a number of
16 questions, but I can wait until after you adopt the
17 amendment or whichever, whatever is appropriate.
18 CHAIRMAN DOUGLASS: Does it relate to the
19 amendment or the proposal?
20 COMMISSIONER BARNETT: No, it relates
21 generally --
22 CHAIRMAN DOUGLASS: Okay. Let's move on the
23 amendment, where we are at the moment. All of those
24 in favor of the adoption of the amendment as amended,
25 say yea. Opposed?
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1 (Verbal vote taken.)
2
3 CHAIRMAN DOUGLASS: Now, we are on the proposal
4 as amended by three amendments, two amendments to the
5 amendment and one amendment. Commissioner Barnett,
6 you wanted to speak now.
7 COMMISSIONER BARNETT: I would like to ask a
8 series of questions, and at an appropriate time I
9 would also want to be recognized.
10 CHAIRMAN DOUGLASS: You are recognized and he
11 yields for questions.
12 COMMISSIONER BARNETT: Commissioner Nabors, would
13 you explain to me the time frame that's actually going
14 to work, that's contemplated? If adopted, this
15 amendment would go into effect, the effective date
16 would be July, year 2000, or --
17 COMMISSIONER NABORS: No, the proposal, the
18 effective date would be immediate. And that is any,
19 the beginning of the next legislative session after
20 the people approve this, then the single subject
21 requirement for any new exemptions or exclusions would
22 apply.
23 COMMISSIONER BARNETT: That's for granting any
24 new?
25 COMMISSIONER NABORS: Right.
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1 COMMISSIONER BARNETT: And that would be in
2 November of '98, presuming it was adopted?
3 COMMISSIONER NABORS: Right.
4 COMMISSIONER BARNETT: But I would like, the
5 question that I want to talk about is, how will it
6 apply to those exclusions or exemptions currently on
7 the books? Will the Legislature have two years,
8 essentially, to come in and address those outstanding
9 exemptions?
10 COMMISSIONER NABORS: Yes, then the issue would
11 be, they mandated for one moment in time, for the
12 budget year 2000-2001, the sales tax rate would be
13 reduced to 5 percent, with any raise in the future.
14 For that moment in time, revenue neutrality hopefully
15 would be retained by the broadening of the base. Let
16 me finish.
17 Then the Legislature then has two sessions before
18 that budget has to be adopted. So, they will have two
19 sessions in order to go through the process of a
20 series of general laws determining which exemptions
21 currently and which excluded services do not advance a
22 state public purpose and serve a special interest to
23 get to the revenue neutrality concept.
24 COMMISSIONER BARNETT: So, for fiscal year
25 '98-'99, and fiscal year, '99-2000, will the
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1 Legislature be required during either of those two
2 years to address the question of whether the current
3 exemptions meet the stated state policies?
4 COMMISSIONER NABORS: Not required to do that.
5 Strictly within the legislative arena is how we
6 address that. By the time they adopt the state
7 appropriation bill for fiscal year 2000-2001, that
8 labor has to be concluded.
9 COMMISSIONER BARNETT: But as a practical matter,
10 what I am trying to get to is, as a practical matter,
11 during the two ensuing legislative sessions, will the
12 Legislature have to address the outstanding current
13 exemptions that are not preserved in this proposal?
14 COMMISSIONER NABORS: They'll have to. How they
15 do that is left up to them. For example, they might
16 want to during the first session after the voters
17 speak, they could address it and have the effective
18 date delayed. They could do a myriad of things. What
19 this does though it has the people basically mandating
20 that this process be concluded prior to the budget
21 year, fiscal year 2000, 2001.
22 COMMISSIONER BARNETT: What I'm really trying to
23 get to is the practical realities of the process that
24 the Legislature is going to be facing during that
25 two-year period. And what I think I hear you saying
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1 is that through general law, somehow the Legislature
2 is going to have to address each of the exemptions and
3 exclusions that is contained on this handout that you
4 gave to us prior to the fiscal year 2000 budget being
5 approved with a goal -- just practically is that
6 what's going to happen?
7 COMMISSIONER NABORS: Let me respond directly to
8 your question is that what the Legislature has to do,
9 it has to go through a process in a general bill or a
10 series of general bills to eliminate those exemptions
11 that don't satisfy a state public purpose and serve a
12 special interest. It doesn't mean it has to vote up
13 and down on every exemption. That's why we did the
14 clarification. It's not a sunset, it doesn't require
15 a vote, not every exemption is at risk in a single
16 bill.
17 But the Legislature has to go through its normal
18 process of saying, we feel, in a general law or a
19 series of general laws, that these exemptions would be
20 repealed and we would extend the base to these
21 services.
22 COMMISSIONER BARNETT: But every exemption that's
23 listed on this handout in some fashion in the two-year
24 period would have to be addressed by the Legislature,
25 either in a single bill making a decision to keep it
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1 or in a bill that combines one or more of the
2 exemptions to keep more --
3 COMMISSIONER NABORS: It could be one omnibus
4 bill.
5 COMMISSIONER BARNETT: Or one omnibus bill. But
6 in some way the Legislature has to address every one
7 of these exemptions.
8 COMMISSIONER NABORS: The only reason they are at
9 risk, any more than they are today or tomorrow, is
10 because the people have told them they want it to be
11 done.
12 CHAIRMAN DOUGLASS: Incidentally, for your
13 information, we're going off TV at 4:45 and then you
14 can still proceed.
15 COMMISSIONER BARNETT: I didn't know we were on
16 TV, Mr. Chairman.
17 CHAIRMAN DOUGLASS: You're our star. Go ahead,
18 Commissioner Barnett.
19 COMMISSIONER BARNETT: I'm just trying frankly to
20 understand how this in a practical way is going to
21 work.
22 The Lines 29 through 31 on Page 1 and Lines 1 to
23 3 on Page 2 talk about certain items that are not
24 going to be subject to this implementation phase of
25 this provision. Are those items, and what it refers
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1 to are some things that are traditionally exempt from
2 the sales tax like food, medicine, drugs, energy for
3 households, is it possible that after the year 2000
4 the Legislature could, in its wisdom, they could
5 subject those to taxation?
6 COMMISSIONER NABORS: Absolutely, just as they
7 could raise the rate.
8 COMMISSIONER BARNETT: So there is no
9 constitutional protection beyond this implementation
10 period for household services or food or medicine -- I
11 mean, household utilities or food or medicine?
12 COMMISSIONER NABORS: That's right. Beyond the
13 taxpayer initiative which is mandated for that one
14 moment in time fiscal year, the rate is reduced and
15 the revenue neutrality kicks in, but off the table in
16 that process they determine the revenue neutrality of
17 those exemptions that are enumerated.
18 COMMISSIONER BARNETT: Those exemptions are
19 eliminated from that two-year implementation period.
20 That's what that language means?
21 COMMISSIONER NABORS: Right.
22 COMMISSIONER BARNETT: But thereafter they would
23 be subject to the Legislature to deal with as they
24 thought appropriate.
25 COMMISSIONER NABORS: Just as they are now.
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1 COMMISSIONER BARNETT: Okay. Please explain --
2 one last question, on the revenue neutrality
3 guarantee, I've tried to walk through the formula for
4 the adjusted growth in the sales tax. Can you give me
5 a layman's discussion of actually how that adjusted,
6 that formula will work to adjust the revenue because I
7 frankly haven't been able to really come up with
8 something that I could explain in two or three
9 sentences.
10 COMMISSIONER NABORS: Well it works essentially
11 exactly the way the current revenue limitation works
12 in Article VII, Section 1, except rather than dealing
13 with state revenues in general it deals solely with
14 sales tax.
15 What it says is if you look at the average growth
16 in sales tax over the last five years, last 20
17 quarters, what the average percentage growth is, and
18 then you take the prior year's revenue in sales tax,
19 adjusted by that growth, you add to it any loss in
20 state revenues, if any, resulting from restriction of
21 the Lottery to come up with an adjusted sales tax
22 amount.
23 And the amount received from state revenue
24 cannot -- has to be that amount of money during that,
25 that's estimated during that budget process. Anything
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1 beyond that has to be used to reduce school property
2 taxes in the school formula.
3 COMMISSIONER BARNETT: Thank you.
4 COMMISSIONER NABORS: It's exactly the same
5 language with the -- that's in the current revenue
6 limitation except it's more restrictive in saying it
7 applies to state sales tax and not to all state
8 revenues.
9 Mr. Chairman.
10 CHAIRMAN DOUGLASS: Okay. Who's next?
11 COMMISSIONER NABORS: Did we vote on the
12 amendment?
13 CHAIRMAN DOUGLASS: We adopted the amendment, the
14 proposal. Any more debate or questions on the --
15 Commissioner Barnett -- Commissioner Morsani, did you
16 want to address the issue?
17 COMMISSIONER MORSANI: I have a question.
18 CHAIRMAN DOUGLASS: All right. You're
19 recognized.
20 COMMISSIONER MORSANI: I apologize for missing a
21 little bit of the debate but the office is calling.
22 Are you tied into that debate we had the other day,
23 are you tying this in to the Lottery debate,
24 specifically in the areas of early education? Is this
25 going down that same path?
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1 COMMISSIONER NABORS: This would be ultimately --
2 there is nothing in this proposal which binds this
3 commission to any use of Lottery money, but there is
4 language in here which recognizes that if we do
5 something like that, that this is a mechanism to fill
6 up the hole in the budget we talked about.
7 Ultimately, you go through the public hearings, we get
8 down to the final list of proposals, we'll have to
9 decide whether that language stays in or out depending
10 on what's done on the Lottery.
11 COMMISSIONER MORSANI: My question though --
12 another question. Are you delineating with the --
13 what money the Legislature can spend their money for
14 in those specific areas -- in any specific area?
15 COMMISSIONER NABORS: Not in this proposal. I'm
16 not trying to be cute by that answer.
17 The question is we have a separate proposal on
18 restriction of use of the Lottery money, which we had
19 debate upon and which is actually on reconsideration.
20 And we had debate -- we talked about that that created
21 a hole in the state budget and you were concerned with
22 the designated uses.
23 All this says is that we have to recognize that
24 if that proposal went through the process and survives
25 and was put on the ballot, then this is drafted to
156
1 work with that to allow that hole in the revenue to be
2 made up to give the Legislature that flexibility
3 before they have to do property tax relief.
4 But ultimately Style and Drafting is going to
5 have to deal with that when we come back after the
6 public hearing process.
7 CHAIRMAN DOUGLASS: Any further questions? If
8 not -- Commissioner Scott.
9 COMMISSIONER SCOTT: Commissioner Nabors, this
10 proposal, it's changed a couple of times but
11 everything that you're talking about here could be
12 done under the current Constitution by the
13 Legislature; is that correct?
14 COMMISSIONER NABORS: Yes, it could. And that
15 goes to the fundamental point is that most of us who
16 have worked on this, this isn't something I've been
17 sitting in a closet working on by myself. As you
18 know, we've talked about this among each other and
19 I've talked with a lot of you individually, tried to
20 talk to all of you.
21 Those of us who support this feel like the
22 Legislature as an institution cannot deal with this
23 issue, that it's just too far-reaching reform that
24 it's just incapable of dealing with it. And so that's
25 the reason for the proposal.
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1 Its underpinning is the fact it goes to the
2 question that Commissioner Barnett asked, is that the
3 Legislature, unless mandated by the people to do that
4 would be institutionally incapable of dealing with it.
5 All of you received and you have on your desks a
6 list of exemptions and exclusions which we've given to
7 you before. And one of the things we debated is how
8 far do we roll back -- do we go to the people and say
9 the rate has to be mandatorily rolled back? We looked
10 at frankly 4 percent, 4« and other types of rollback.
11 In terms of trying to not strain the Legislature
12 in this process, to give them the flexibility, they
13 could roll it back further if they wanted to under
14 revenue neutrality concepts, we felt that the
15 5 percent was the most reasonable reduction in order
16 to establish the incentive to broaden the base.
17 If you look at the charts which I explained in my
18 memorandum, if you assume that the Legislature did
19 exactly what it did in '87, which we don't know, they
20 could do better or they could do worse, they had to
21 pick and chose in '87 in an unusual political
22 environment to broaden the sales tax base.
23 The problem in '87 is they didn't roll back the
24 rate so there was a windfall of money which this is
25 intended to address, which I have talked to many of
158
1 you about. If you assume they did the same thing they
2 did in '87, if they made the same choice they made in
3 '87 at a 5 percent rate, you would come up with the
4 same dollars that you do now at 6 percent, plus
5 approximately $400 million in additional revenue which
6 would be used either to, if we go with the Lottery to
7 fill the hole in the Lottery, or it could go for
8 property tax relief.
9 COMMISSIONER SCOTT: Mr. Chairman --
10 CHAIRMAN DOUGLASS: Commissioner Scott.
11 COMMISSIONER SCOTT: -- I have a further
12 question. I note on Lines 27, 28 in there that you're
13 saying that you -- that the Legislature would be
14 mandated to tax all exempt goods and excluded services
15 if it -- the exemption or exclusion serves a special
16 interest by failing to satisfy or advance a state
17 public policy.
18 I mean, if you went down the list of those
19 exemptions, let's just take feed, seed and fertilizer,
20 I mean, agriculture is a state policy somebody could
21 argue. How would this work? How would the
22 Legislature be able to go through and decide what is a
23 special interest using that word in the Constitution?
24 I don't think it's anywhere else in the
25 Constitution, but if you were going to use that word
159
1 in the Constitution, how would they decide what that
2 means and what is a state public policy?
3 COMMISSIONER NABORS: They would decide like they
4 would any other issue, Commissioner Scott. I think
5 what the courts would do, I think the courts would
6 defer to legislative determinations and whether or not
7 a public purpose was advanced or not. So the
8 Legislature would go through and make those
9 fundamental decisions, just like currently the Senate
10 is looking at a list of exemptions that possibly are
11 subject to repeal. This would be no different than
12 that.
13 The courts will defer to the Legislature, but the
14 Legislature would have to make that decision based
15 upon the framework of a rollback in the rate from six
16 to five.
17 So I would say that it would be no different than
18 any other decision the Legislature makes except there
19 would some message from the people as to what are the
20 types of public purposes that are advanced,
21 competitiveness, economic development, advancing
22 charitable, education, governmental initiatives and
23 tax fairness. Beyond those, then the public would be
24 saying, eliminate those that don't do that.
25 Every person's exception is his good tax policy.
160
1 And everybody else's exception is their special
2 interest, I recognize that. But that is fundamentally
3 a legislative process that you go through every time
4 the Legislature grants an exemption or removes one.
5 CHAIRMAN DOUGLASS: Commissioner Scott.
6 COMMISSIONER SCOTT: If the Legislature doesn't
7 do, doesn't do this or if they just say, We've looked
8 at all of them and we think agriculture is important,
9 we think devices or whatever that exempt, we think
10 printing shouldn't be taxed twice by whatever and on
11 and on down the list. And people that have to have
12 lawyers and have to -- then what happens then?
13 Then it still, it just -- somebody sues us I
14 guess, that's one thing, they go to court. But other
15 than that there would then be a mandated something.
16 What's going to happen?
17 COMMISSIONER NABORS: I would have to assume if
18 the people pass this, what would happen is the rate
19 would be rolled back for that one year. And then
20 under the revenue neutrality concept, which has been
21 somewhat weakened by the one amendment, the revenue
22 neutrality concepts, they would have to in good faith
23 generate the same dollars as the previous year and it
24 would force them to go through that process.
25 If they refuse to do that, if they say, Despite
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1 what the people said in this amendment, we think that
2 all of them advance a state public purpose and all the
3 services should be excluded, then I think you could
4 have litigation. You could have a mandamus action or
5 some other action to force them to go through the
6 process.
7 COMMISSIONER SCOTT: Mr. Chairman.
8 CHAIRMAN DOUGLASS: Commissioner Scott.
9 COMMISSIONER SCOTT: So the way I am seeing this
10 then, you're going to ask the people to amend the
11 Constitution to force the Legislature to tax items
12 that are not now taxed such as services or whatever.
13 Isn't that what this proposal --
14 COMMISSIONER NABORS: And lower the rate on many
15 of those that are so you have revenue neutrality.
16 This proposal would not generate any additional
17 dollars that were generated in the prior state budget.
18 If there are additional dollars generated, it has to
19 be used for a reduced -- for a period of three years
20 to reduce school property taxes.
21 After that three-year period, you'd have your
22 general revenue limitations provision, Article VII,
23 Section 1(a) or Section 1, which requires refunds to
24 be made. This is a revenue neutral concept. The only
25 change this amendment does is allow them to reduce it
162
1 below the prior years, providing that the ceiling is
2 right there. There could not be additional dollars
3 raised. Obviously some people are going to pay
4 perhaps more, some people less. But generally if
5 everybody pays their fair share, everybody will pay
6 less.
7 CHAIRMAN DOUGLASS: All right. Commissioner
8 Smith?
9 COMMISSIONER SMITH: Thank you, Mr. Chairman.
10 CHAIRMAN DOUGLASS: And welcome.
11 COMMISSIONER SMITH: I'm glad I could finally
12 make it, Mr. Chairman. Question for Commissioner
13 Nabors.
14 I'm sympathetic to the issue of reducing the
15 rate. I'm a little concerned now about the question
16 that Commissioner Scott raised. Since this proposal
17 will, in fact, mandate a reduction in the rate, if the
18 Legislature basically holds a tax meeting or some
19 meeting and says, We find that all of these exemptions
20 that are presently in effect do advance a special
21 interest, what happens revenuewise?
22 COMMISSIONER NABORS: Well, under the revenue
23 neutrality concept, they couldn't do that. They would
24 have to expand the base in order to generate the same
25 dollars. But what's so different, and let's say we
163
1 just pass the amendment on reapportionment, what if
2 they refuse to appoint the members to the
3 reapportionment commission? Some court would have to
4 tell them to do that. The Legislature would not have
5 the discretion -- you have to assume that the
6 Legislature would respond fairly to what the people
7 told them to do. And what the concept is is, you have
8 a ceiling and a floor.
9 COMMISSIONER SMITH: Okay. But with regard to
10 the amendment that we passed, the Hawkes' amendments,
11 which allowed the Legislature to appropriate less than
12 the amount of money that had been appropriated in the
13 trial budget and if the tax rate is mandated to be
14 reduced and none of these exemptions are, you know,
15 excluded or whatever, won't we have a shortfall --
16 COMMISSIONER NABORS: That's why I spoke against
17 the Hawkes' Amendment --
18 COMMISSIONER SMITH: I understand that. But I'm
19 saying now the reality is it's in the there.
20 COMMISSIONER NABORS: We'll, what I would say is,
21 we'll get another bite at that apple, whether that
22 "may" stays in or not. And one of the things that I
23 think is very important in this proposal is that it
24 gets into Style and Drafting so we can go through the
25 public hearing process to hear about this. And if we
164
1 have 22 votes ultimately to pass the amendment, people
2 are concerned about that as I am. And once they
3 understand it, I think would have the same notes to
4 take that "may" out.
5 CHAIRMAN DOUGLASS: All right. Who's next in the
6 debate? Commissioner Brochin?
7 COMMISSIONER BROCHIN: I'd like to speak in
8 support of this proposal. In the Finance and Tax
9 Committee meetings we heard quite a bit of testimony
10 on our tax structure and it didn't matter who came
11 before us to speak, didn't matter from what political
12 or economic source they were. The testimony was
13 unrefutable in this regard, and that is, the narrower
14 your tax base, the more chaotic it is. And the higher
15 the rate is on that narrow tax base, the more
16 distorted it becomes.
17 The proposal may seem somewhat complex because of
18 Commissioner Nabors' intellectually honest mind. But
19 it is a rather simple proposal and it is this. It
20 says that we have to, in the state of Florida, spread
21 the tax base. Those of you that are being lulled into
22 the idea this is a tax increase are simply wrong.
23 This has nothing to do with raising taxes, this has
24 nothing to do with lowering taxes, and now that the
25 amendment has been done, it may not have anything to
165
1 do with revenue neutrality.
2 But what this does have a lot to do with is
3 getting Florida into a base where its taxes are spread
4 out to a more fair and equitable way.
5 Now, some of you may say, Well, the Constitution
6 is not the place to put tax policy. I agree. The
7 Constitution is not the place. But our Constitution
8 has it. When we came forward and said, Allow the
9 Legislature to spread the base by imposing a personal
10 income tax, no. In fact, some argued that it would
11 hold this commission in ill repute. So the
12 Constitution fortunately or unfortunately is the state
13 of Florida's place where tax policy is apparently
14 going to be made.
15 And what this proposal begins to do is simply
16 reduce the rate to 5 percent to require a flattening
17 of that base so it is more fairly and equitably
18 imposed. The state of Florida generates, I think, up
19 to 80 percent of its general revenue from
20 transactional sales. That is an extraordinary amount
21 of reliance on a transactional-based revenue system.
22 And the problem, and many people talk about waste in
23 government, I would suggest that if they want to do
24 something about waste in government, they'd look at
25 the tax system that we have in place.
166
1 When you have a narrow tax base and the economy
2 expands and the economy contracts, the only way the
3 Legislature can deal with that is by raising revenues
4 to put into programs and when the base contracts they
5 have to draw it back. And that spins off quite a bit
6 of waste. So that's why most Constitutions don't get
7 in the way of trying to dictate to the Legislature how
8 to raise the money, how to tax the money. They hold
9 them accountable for what they do with the money.
10 They hold them accountable for how they impose those
11 programs on the people, but they have to and should
12 give them the flexibility to impose the proper
13 revenue-generating streams so they can be accountable
14 for the people.
15 The other simple, but I think essentially
16 compelling part of this amendment says, and it hasn't
17 even been mentioned, deals with future exemptions that
18 will be passed by the Legislature, and this is
19 Constitutional in nature, and what it says is, is that
20 if the Legislature is going to impose a policy that
21 continues to narrow the base, that is puts another
22 exemption in place, then it has to be done only on
23 that subject and that subject alone. So no longer
24 will this Legislature be able to pass bills that may
25 contain 100 good ideas and one tax exemption.
167
1 If they are going to pass a tax exemption and
2 they're going to narrow the base one more time, they
3 got to take that bill, hold it up to the sunshine, let
4 everybody see what they are doing, analyze it to see
5 if it's good public policy and then pass it. And I
6 think that part of Subsection B is an outstanding idea
7 and deserves our support.
8 CHAIRMAN DOUGLASS: Commissioner Ford-Coates?
9 COMMISSIONER FORD-COATES: I rise to speak in
10 favor of this proposal. And the one thing that seems
11 to ring truest, in my review of the proposal, is the
12 question of why is it that we have exemptions if sales
13 tax is our primary source of revenue to run this state
14 and we all agree that a broad base is reasonable, I
15 think those are not unreasonable conclusions, then the
16 exemptions that we have, should they not be based,
17 quite simply, on what's in this proposal, the
18 encouraging of economic development and
19 competitiveness; the support of educational,
20 governmental, religious or charitable initiatives and
21 securing tax fairness.
22 The list that we have here, of all the different
23 exemptions, the question is, do they meet those basic
24 requirements. And I would submit to you that, no,
25 some of them do not. And, yes, it's a tough thing for
168
1 the Legislature to deal with those because there are
2 interests that are going to come up here and say, I
3 should be exempt. But I submit to you that the
4 question is, Are these three reasons for exemptions
5 not appropriate? And if you agree that they are
6 appropriate because they affect everyone else's taxes,
7 then I think it's time for us to require the
8 Legislature to take those into consideration and,
9 again, we have limits on taxation in other areas of
10 our Constitution. This one simply assures the public
11 that when exemptions are enacted that affect the basic
12 tax structure of our state, that they are based on
13 sound principles and that they are done in an open
14 forum in a single bill setting.
15 I don't know what's more honest in government
16 than to give the people the option of saying, Yes,
17 when taxes are voted on, I want to be able to see and
18 understand why it's happening. I urge your support
19 for this good proposal.
20 CHAIRMAN DOUGLASS: All right. Commissioner
21 Morsani was next.
22 COMMISSIONER BARKDULL: Amendment on the desk.
23 CHAIRMAN DOUGLASS: Oh, we have an amendment?
24 All right. There's an amendment on the desk.
25 Commissioner Morsani, we'll take up the amendment then
169
1 you'll have the floor following the amendment. Would
2 you read the amendment please, it's the amendment to
3 the proposal as amendment; is that correct, by
4 Commissioner Barkdull. Read the amendment, please.
5 READING CLERK: By Commissioner Barkdull moved
6 the following amendment on Page 1, Line 26, delete
7 2000 through 2001 and insert 2001 through 2002.
8 COMMISSIONER BARKDULL: Mr. Chairman, Members of
9 the Commission, this is a simple amendment. It pushes
10 the effective date back a year. And the reason for
11 that is to enable the electorate to elect a
12 Legislature in the intervening time between the time
13 the proposal would be adopted and the time that they
14 would -- the last time that they would have an
15 opportunity to put back in exemptions. And I think
16 that's something that they ought to have that
17 opportunity and that's the reason and purpose of the
18 amendment. Instead of making it applicable for the
19 year 2000, 2001, it makes it applicable for the year
20 2001, 2002 so that there can be an intervening
21 election in the year 2000.
22 CHAIRMAN DOUGLASS: All right. Any discussion on
23 the amendment? Commissioner Nabors?
24 COMMISSIONER NABORS: With reluctance, I'd like
25 to speak against this amendment, Commissioner
170
1 Barkdull. Let me tell you why.
2 I think there has to be -- I think two years is
3 plenty of time to deal with this process. The people
4 will speak in the aggregate about this fundamental tax
5 reform, this tax initiative. I don't see where a
6 campaign, you know, the next year is going to add any
7 more to the directions of the people as to what should
8 occur.
9 In many ways it seems to me that this decision
10 would be best made after hearing from the people by
11 the Legislature, let's do it for the budget year 2000,
12 2001. It would be the more senior people who have
13 dealt with these issues and struggled with them over a
14 number of years and they will be in a cusp for their
15 last term, I think that's the appropriate time to deal
16 with it.
17 This is not -- this is issues that would be, I
18 think, chaotic to try to deal with that. Here you
19 have two years with one group of legislators to deal
20 with it, and then an election where another group
21 comes in. I think it's being prudent to extend this
22 out any further than it is now. I ask you to vote
23 against the proposed amendment.
24 CHAIRMAN DOUGLASS: Anything further on the
25 amendment? Commissioner Barkdull to close.
171
1 COMMISSIONER BARKDULL: Only for the purpose of
2 saying that the public ought to have a right to know
3 what the position of their legislators are in a
4 campaign as to how they would stand with the
5 exemptions. If you leave it the way it is they will
6 not know.
7 CHAIRMAN DOUGLASS: All right. Ready to vote on
8 the amendment? Everybody understand the amendment?
9 Unlock the machine, vote on the amendment. Lock the
10 machine.
11 (Vote taken and recorded electronically.)
12 READING CLERK: Thirteen yeas, 15 nays,
13 Mr. Chairman.
14 MR. CHAIRMAN: Amendment fails. Back on the
15 proposal. Now, Commissioner Morsani, you've been
16 patient, it's your turn.
17 COMMISSIONER MORSANI: Thank you, Mr. Chairman.
18 If I might, I know that Commissioner Jennings may be
19 hesitant to discuss this and we haven't talked to her
20 about it. I'm sorry, Commissioner. We're not on TV
21 now. The rogers have all gone home.
22 Commissioner Jennings, would you please address
23 the issue in two parts? The number one issue that I
24 would ask is, do you think this is good public policy?
25 And do we need to really change our revenue stream,
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1 that's all one question because the other one is do we
2 have the cart in front of the horse on the issue,
3 i.e., and we talked about this a little bit here, and
4 that is management of government. I guess, and I'd
5 like to -- I'd like to ask if you would address those
6 two questions and then I would like to discuss it
7 further after your reply.
8 CHAIRMAN DOUGLASS: Commissioner Jennings.
9 COMMISSIONER JENNINGS: Mr. Chairman, before I
10 answer, what is the rule about removing appointees?
11 (Laughter.)
12 CHAIRMAN DOUGLASS: Well, you know, you don't
13 need one when you've got the power.
14 COMMISSIONER JENNINGS: Gee, Commissioner
15 Morsani, you've asked a mouthful here. Let me talk
16 for a moment and see if I can share some thoughts with
17 you and perhaps answer your question. The first
18 being, do we have the cart before the horse. I think
19 earlier in the discussion we heard very candidly that
20 this is something that the Legislature can do. I
21 think Senator Scott asked the question, or somebody
22 asked the question, of Commissioner Nabors.
23 Yes, in fact, it is not only something that the
24 Legislature can do, it is something that they did do
25 at one point. Was it '86? '87? It was the '87
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1 session. And some of us that are still here to live
2 to tell about it will share with you. In fact, there
3 was a repeal of all the sales tax exemptions and we
4 came back the deal with it the next year to talk about
5 replacing those that we thought were essential to
6 have. It became -- and in fact that did happen. Some
7 were replaced, the majority were repealed, there was
8 no movement downward on the tax at that point. In
9 hindsight that may have been a strategic error
10 because, in fact, it didn't become revenue neutral.
11 But there was a reason. And some of you may
12 remember the Zwik Commission (phonetic) of the
13 mid-'80s that brought to us a huge number of required
14 infrastructure needs the state of Florida was going to
15 have. I mean, you have to remember where the repeal
16 of the tax exemptions and the so-called services tax
17 came from. It was to meet these huge unfunded needs
18 or the potential needs that the Zwik Commission saw no
19 way in which for us to address.
20 So there was a reason that we were moving towards
21 a different tax base. At the time, a number of us
22 supported it. I supported it, Senator -- Commissioner
23 Scott supported it. Senator Langley is gone so I
24 can't remember. I do know somebody who didn't support
25 it. Commissioner Crenshaw said it was a bad idea and
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1 he turned out to be right as we got a little further
2 down the line.
3 But part of it was our support was also because
4 it was important to broaden the base, it was important
5 to do those things, it was important to answer these
6 unfunded needs. What happened was a huge hue and cry
7 afterwards from a lot of people, and I look around
8 this room and it would be mostly us. There are a few
9 of us who are here today who are in the retail
10 business. We are in the service business. I'm in
11 construction, Commissioner Scott is in law. You're
12 probably about one of those few people here that
13 already pays that sales tax because you're in the
14 retail auto business as is Commissioner Planas. So,
15 you know, you pay that sales tax on a regular basis.
16 The hue and cry sort of went out. And if you-all
17 will remember, with such pressure we came back in a
18 special session -- or in about five special sessions I
19 think it took when we got to that point -- and we
20 replaced the revenue with an extra penny on the sales
21 tax because again we were concerned about those unmet
22 needs that were ahead of us and removed or reenacted
23 the exemptions that were on most of those service
24 industries which most of us here today participated.
25 Now, you would say, Well, that's a good reason
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1 for voting for this because, in fact, it shows that
2 the Legislature will bow to pressure. And what we
3 need to do is put it on the ballot, get it in the
4 Constitution. Well, as I read this, that allows it
5 to -- for all the exemptions to go away again but only
6 after the Legislature does something.
7 We're back to saying, with a few exceptions, food
8 and medicine and medical services and residential rent
9 and utilities and water, things of that nature, that
10 it's all back on the table again. And the Legislature
11 has to determine if it is appropriate public policy,
12 there is a term that you used, Commissioner Nabors --
13 special interest Commissioner Smith said. But it will
14 be back to us one more time. So I'm making a very
15 long answer to something that I have a concern about
16 doing as far as we've put it in the Constitution.
17 If we're looking for an opinion poll, if we're
18 putting it in the Constitution because we're just
19 testing the waters to see if the people are for this,
20 I think that's the wrong use of this. Commissioner
21 Nabors has done a good job of trying to make this
22 revenue neutral which I think is an important aspect
23 of anything we do because if it appears to be a
24 revenue windfall, it's going to have its own set of
25 circumstances.
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1 But I will share with you today, as many of you
2 undoubtedly know, that if you go out and ask the
3 majority of people on the street today if they are
4 willing to pay more for their governmental system, the
5 answer will be no. And we can argue all the great
6 things we've done. We tried to tell you about all the
7 great things we've done with the Lottery. But the
8 public still has a huge, what's the word, suspicion
9 may be as good as any, for what we do and what we do
10 with our money.
11 And so for that reason, I'll just go ahead and
12 disclose at this point, though Commissioner Nabors has
13 been very persuasive in his arguments, I'm not going
14 to vote for this proposal because I think when the
15 level of public support moves to where the Legislature
16 will act on it, that's when we'll have the backing of
17 the public out there.
18 And I think, in truth, I'm not a prognosticator,
19 but I'm betting we put this on the ballot and it will
20 be one of those things that does not pass and
21 potentially could cause a greater problem for every
22 other issue. That was a very long answer to your
23 question.
24 CHAIRMAN DOUGLASS: Commissioner Planas, did you
25 have another question? Commissioner Planas, I think
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1 had a question on that subject.
2 COMMISSIONER JENNINGS: It was a two-part
3 question but I talked so long I couldn't remember the
4 second part.
5 CHAIRMAN DOUGLASS: I thought you had answered
6 them both.
7 COMMISSIONER MORSANI: I thought you answered
8 them well. Thank you. When I first read the proposal
9 and went over it, I wanted to support it, Commissioner
10 Nabors. I don't know, I just think of the pressures
11 that they would be under, the Legislature. As an
12 example, in our industry, your paper says, it is
13 $500 million on trade-in values of automobiles. That
14 is -- there is a -- everyone in the Legislature is
15 familiar with an organization we call the Florida
16 Automobile Dealers Association. We have been very
17 strong, I think, in a lot of things.
18 And I see some others there that I happen to know
19 the executive directors rather well and some
20 organizations, and we all know them just by looking at
21 them. And I worry about the pressures that would be
22 mounted in our own. You know, in my little dogs and
23 cats company, I did a little calculation and it would
24 cost my customers about $20 million additional a year,
25 so my percentage of that is 4 percent at 500 million
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1 that I would have to collect. And that, that's just
2 on used car trade-in value, a little deal that we
3 calculated out.
4 So, it -- I think we need some change. I am just
5 very concerned that we -- I want to support it, but
6 I'm afraid I will have to vote against it, not in a
7 selfish mood or mode either, but I just think that the
8 public, I look -- I'm concerned about the economic
9 fallout on it, how soon these things would transpire.
10 And I've been down that road in our business when we
11 have had these various tax proposals, i.e., like on
12 luxury cars. And we are in other business other than
13 luxury cars, but the luxury car 10 percent tax by the
14 federal government, the impact that that had on that
15 segment of the business. And to attempt to have the
16 exemptions for used car trade-ins, as an example,
17 to -- I'm not lobbying here for the used car trade-in
18 exemption. I'm trying to say that the magnitude of it
19 would probably be overwhelming by the consumers in
20 this state.
21 There's only one other state that I know of where
22 that is exempt, and that is the state of California.
23 And I'm sure that's been used in the lobbying efforts
24 over the years in Florida and many other states. So I
25 just look at that as -- and I'm only using one arena,
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1 and I apologize for being biased in that, but I know
2 more about that than I do outpatient care facilities,
3 so I think that I will have to vote against it,
4 because I really think that the public would not
5 support this change, as much as I think there needs to
6 be some fairness in our tax system.
7 CHAIRMAN DOUGLASS: Commissioner Planas. Next is
8 Commissioner Barnett and then Commissioner Barkdull.
9 COMMISSIONER PLANAS: Thank you, Mr. Chairman. I
10 rise for the opposition here. It says, if it looks
11 like a duck, quacks like a duck, then it must be a
12 duck. Gentleman, this is a tax increase, no question
13 about it. It is a big duck. Commissioner Morsani
14 refers this to, you know, about the auto business, and
15 it's very true. Not too long ago this commission and
16 this committee went ahead and decided not to extend
17 the term limits as far as the Legislators in here.
18 I do not want to put my faith in the new tax
19 increase to the new people that are coming down here.
20 I will urge everybody, everybody, I don't want to send
21 a note out there that this committee is trying to
22 increase taxes because we are going to lose the
23 perspective. I think the Legislative body has done a
24 fairly good job on it, and I think they should keep
25 improving and we should leave it up to them. I urge
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1 you not to vote in favor of this.
2 CHAIRMAN DOUGLASS: Commissioner Barnett and then
3 Commissioner Barkdull.
4 COMMISSIONER BARNETT: Thank you, Mr. Chairman.
5 I too want to rise in opposition to this proposal.
6 And I do so with some reluctance. I wanted to share
7 those reasons with the members of the commission. I
8 served -- first, I am a strong vocal advocate of
9 expanding the sales tax base to include services,
10 strong vocal advocate. I was a member of a commission
11 or committee that was created in 1986 that looked at
12 the question of taxing services and extending the
13 sales taxes to services. I was part of the group that
14 drafted the law that ultimately the Legislature
15 enacted, and I worked on that for several years.
16 And I remain to this day committed to the
17 principle that Commissioner Nabors is trying to raise
18 before the constitutional -- raise in the
19 Constitution. I am opposed to this proposal plain and
20 simple because it does not belong in the Constitution
21 of the state of Florida. It is an example of -- it is
22 a continuation of what I think is bad policy for the
23 state, and that is reflected by having a prohibition
24 on the personal income tax as Commissioner Brochin
25 mentioned, I think that hamstrings our government on
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1 times, changing times when they might need to go to a
2 personal income tax, and I think adding these types of
3 restrictions and mandates to the Constitution will
4 further, will make our system goofier than Charlie
5 Reed already says it is. It's just not the place to
6 have this in the Constitution, and because we have
7 made one mistake and chosen to perpetuate that mistake
8 doesn't persuade me that we should make another.
9 That's just a philosophical reason for me; I
10 mean, that we don't need to have it in the
11 Constitution as you heard Commissioner Nabors say.
12 But for the lack of legislative will. There is the
13 legislative power, but historically there has not been
14 the legislative will. I've seen, this year, the
15 Senate at least begin to look at the question of sales
16 tax exemptions, a review of sales tax exemptions. I
17 don't know what they will do with that, but there's
18 currently a study ongoing.
19 Since 1987, when the services tax was repealed,
20 there have been a number of services actually taxed,
21 and I see more and more of those incrementally being
22 added to the tax base. Not as fast as I would like,
23 but they are being added.
24 There are a couple of technical problems that I
25 have with the proposal, if you get just beyond my
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1 philosophical problems about junking up the
2 Constitution with something this complex. And one is
3 the complexity of the whole question of the sales tax
4 on services and doing away with exemptions.
5 The services tax failed for a number of reasons.
6 One was it taxed advertising, and the advertising
7 industry just, you know, wholesale put on a campaign
8 that really, in many ways, distorted the impact of the
9 tax and I think had a big impact on the then-Governor
10 and the Legislature. So, that was probably one very
11 visible aspect of it. But there was something much
12 more important that I think ultimately had a big
13 impact on why the sales tax on services was repealed,
14 and that was, as implemented by the Department of
15 Revenue, companies who were required to collect the
16 sales tax simply could not administer it; it was too
17 complicated to administer it.
18 You need to think about this. We are not talking
19 about a tangible commodity, so that you know where the
20 sale occurs and you know where to collect the tax, you
21 are talking about a service. Some of them -- those
22 are femoral things. I mean, a lawyer's service, if
23 you are involved in a multi-national transaction, you
24 don't know where that service is rendered. And the
25 way it was set up was that you taxed it based on where
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1 the benefit of the service was enjoyed. No one could
2 figure that out; it was very, very difficult.
3 And they tried to apply income tax principles to
4 determine things like where is a service actually
5 rendered; so does Florida tax it, does New York tax
6 it? Who do we protect existing Florida businesses?
7 It is a very, very complex subject to figure out how
8 to tax services. And I think the only way it's going
9 to be effective is for those issues to be worked out
10 in a legislative arena.
11 To the degree that, you know, this is the list
12 that we are going to have, the Legislature is going to
13 have to look at, there are over 220 exemptions on this
14 list that the Legislature is going to have to consider
15 in a two-year time frame. And it's easy to pick out
16 some that really long since have passed their
17 usefulness of having a public purpose, but there are
18 many, many of these exemptions, whether it's for
19 inventory, or resale, or different things that do
20 serve a public purpose, do affect the economic health
21 of this state.
22 I fear greatly that the Legislature will not have
23 the time in a two-year period, which is why I was
24 asking Commissioner Nabors about the process, a
25 two-year period to adequately give consideration to
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1 the variation exemptions that are on this list. There
2 will be -- maybe there will only be 50 that are really
3 important, maybe there will be 100 out of the couple
4 of hundred, but each of those in and of themselves can
5 take days to really figure out what does it mean to
6 the business or entity involved.
7 I have been involved in getting a number of these
8 exemptions. I know how hard it is to talk about the
9 pros and cons and the economic development aspects and
10 the public policy aspects to exemptions, and to ask
11 the Legislature to mandate that they do that in two
12 years puts an enormous, and I think probably
13 unworkable, burden on the Legislature. So we'll end
14 up with a wholesale repeal and/or nothing; and
15 therefore, we come into some type, probably a deadlock
16 with the Legislature if they are unable to actually
17 come up and resolve this.
18 So, for a lot of reasons, technical as well as
19 just philosophical, I would with great reluctance
20 oppose this because I do not believe that it should be
21 in our Constitution. I do believe and I do hope
22 Commissioner Scott and Jennings and others listen to
23 this. There are many people in the business community
24 who believe it's time for reform in these areas and
25 would be willing to support, willing to support an
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1 overhaul of the exemptions and a look at services.
2 We didn't -- we have got thousands of clients in
3 our law firm. We never had one client who opposed the
4 sales tax on lawyer's services, ever. It just wasn't
5 an issue, although you would have thought it was. And
6 I think that you will find there's a lot of support in
7 the business community. But to do this in our
8 Constitution I think would send a message to the
9 business community of this state and the people who
10 are looking at locating in this state that will be
11 very negative. So, I would ask you to join me and
12 others in opposing this.
13 CHAIRMAN DOUGLASS: Commissioner Barton, you were
14 going to rise in opposition?
15 COMMISSIONER BARTON: No, in support.
16 CHAIRMAN DOUGLASS: Do you want to rise in
17 support?
18 COMMISSIONER BARTON: I just really, quickly
19 wanted to add my own historical perspective to this
20 discussion. At the time that this was debated so
21 thoroughly in the State of Florida, I'm married to an
22 engineer I might add, who was among those to be taxed
23 on services, and initially, of course, the hew and cry
24 was so negative from all of those who were involved,
25 they got used to it, they got okay about it. In fact,
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1 they even began to feel like a lot of it was fair.
2 What really happened, and you alluded to it,
3 Commissioner Barnett, was the advertisers stepped in
4 and we fell victim to Florida's god of tourism and the
5 sales tax was repealed. I was involved with that
6 effort; I'm not exactly proud of it to this day
7 because we still in Florida do not take care of the
8 problems that we have here adequately.
9 We take care of our old people; we don't take
10 care of our young people. We need a broader tax base.
11 And if it's not done this way, then we are going to
12 have to look at other ways to do that. I certainly
13 prefer this to an income tax. Thank you.
14 CHAIRMAN DOUGLASS: Commissioner Lowndes.
15 COMMISSIONER LOWNDES: Yes, I would like to rise
16 in support of this also. It seems to me this does
17 three things, which are fairly simple and fairly good
18 for the state. One of them is, it broadens the tax
19 base. And I think that a lot of people would agree we
20 need a broader tax base, particularly in the times
21 when the recessions hit. We are pretty flush now, and
22 we probably don't need it this year, but we may need
23 it in a couple of years when the Democrats get through
24 with the economy.
25 (Laughter.)
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1 COMMISSIONER LOWNDES: The second thing that it
2 does, it weeds out a lot of exemptions which really
3 probably don't belong, probably don't really serve a
4 public purpose. And also the third thing, of course,
5 is on a going-forward basis. It puts the one law, one
6 exemption as a requirement, which I think would keep
7 from adding a lot of other exemptions which are also
8 bad exemptions. You know, this may well be a return
9 to the services tax.
10 But I don't think the services tax was all that
11 bad. As a member of the business community, and in
12 our law firm, the services tax didn't really affect
13 us. Once we got along three or four months into the
14 services tax, it was really a non-issue. It broadened
15 the base, it made more money available to the state.
16 And I think the big mistake, of course, the
17 advertisers in not reducing the rate, but it really
18 was a tax that we could have lived with and were
19 living with at the time that it was repealed.
20 Actually, what this really gives the state the
21 opportunity to do in broadening the base is to move
22 the tax or portions of the tax to portions of the
23 economy which are not now taxed, and perhaps reduce
24 the rate on people who are taxed. It really is kind
25 of an anti-aggressive movement and an aggressive tax.
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1 And I think that, true, the Legislature can do
2 this. Perhaps it would be helpful to the Legislature
3 if we gave them a reason to do it. I think that
4 perhaps they are much more apt to do it if they had a
5 constitutional reason to do it than not. I don't
6 think that the legislators as such think that it's
7 such a bad idea, but they worry about the lobbyists
8 and the special interests and the constituencies
9 that -- places where they have to raise money to run
10 for office, so it's very difficult for them to deal
11 with it. But if they had a reason to deal with it and
12 had to deal with it, they are much more apt to do it.
13 So I would urge you all to vote in favor of this.
14 Thank you.
15 CHAIRMAN DOUGLASS: Any further debate? Do you
16 need to close? I wish you would try to take not more
17 than five minutes as the rules provide so we can
18 conclude.
19 COMMISSIONER NABORS: I would do the best I can.
20 I mean, I know it's late in the day and we have
21 committee meetings, but in my view this is the most
22 fundamental, important thing that we can do as a
23 Constitution Revision Commission. And we have gone
24 through probably 30 drafts of this, working on
25 language, being thoughtful about it.
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1 Let me respond to some of the questions.
2 Commissioner Barnett, let me respond to your question.
3 I don't think this does junk up the Constitution; I
4 think the Constitution is already junked up with state
5 public policy. We heard in committee, and we heard
6 your eloquent argument on the public service tax and
7 the three-legged stool, three-legged stool. We are
8 limited to where we can go, we are constitutionally
9 prohibited on income tax, it's junked up to that
10 extent.
11 On wealth, the Constitution says the property tax
12 is purely the source of local government, and we have
13 restrictions on other taxes as well. So, where do we
14 go with the state? We have to go to transactions or
15 consumptions, that's where we have to go. And we are
16 taxing the least growth tax portion of those
17 transactions. I think there's four states that don't
18 have a personal income tax. All of those have another
19 source of revenue that prepares them for the 21st
20 Century.
21 Alaska and Texas have severance taxes and other
22 states have a modified type of service tax. What are
23 we going to do in this state if we don't do this, when
24 will it ever occur? Commissioner Barnett talks about
25 she is not convinced the Legislature can do this. If
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1 the Legislature can't do this because people tell them
2 to do it with two sessions, when are they going to do
3 it? When are they going to do it?
4 If the Legislature, because the people said, We
5 think you should do this, we think that this is a
6 revenue neutral proposal, that the base all be spread
7 to all of the problems we have got in the state,
8 whether it's children's issues, criminal justice, no
9 matter what the issue is, people say broaden the base,
10 prepare us for the 21st Century. And if the
11 Legislature can't do it, they will never do it.
12 There's no current proposal in front of the
13 Legislature to deal with services. All of the current
14 proposals deal with exemptions, sales tax exemptions.
15 There is a myth in this town. I live in this town,
16 but I travel this state. I traveled this state in
17 '87, I travel it now. You get outside of this town,
18 business people, other people realize that we have got
19 a problem with our base, we have got a problem with
20 where Florida is going in the future.
21 We are at 6 percent now, we will go 7 percent, we
22 will go 8 percent. Are we ever going to be able to
23 sit down and reconcile and resolve what needs to be
24 done in this state to deal with our needs, whether it
25 is education needs or whatever the need is?
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1 In '87, in my view, the people in this town were
2 way ahead. You travel the state and you talk to
3 people like John Lowndes who is a builder and lawyer,
4 or other people who are involved in services taxes,
5 the people were accepting that. And what happens is
6 that there was a panic in this town because there was
7 basically windfall of money that happened because the
8 rate wasn't rolled back. What happened was that the
9 base was broadened and there was a windfall of money,
10 people didn't like that, there was a frenzy out here.
11 The average person never heard of a (inaudible)
12 commission. They didn't know why there was an
13 infra-structure trust fund and all of that, they just
14 knew that the Legislature had broadened the base on a
15 bunch of money they were spending. This proposal
16 doesn't do that, this proposal doesn't do that. We
17 have got to trust the people on this issue. I think
18 that the people will be smart on this issue. I think
19 there are a lot of groups out there in the educational
20 committee and the other committees that recognize that
21 this is the right thing to do for Florida. Either we
22 are going to do it by the Legislature's vote, which I
23 think the institution will have a very difficult time
24 doing this on voter's reform.
25 We are either going to have a voter's initiative
192
1 which you cannot do because it is a single-subject
2 matter. So, we are the only people that can do that.
3 If we don't do it, who is going to do it in the next
4 20 years? How are we going to deal with criminal
5 justice? How are we going to deal with environmental
6 land? How are we going to deal with education? We
7 have got the responsibility as average citizens to
8 talk to our fellow citizens and say, Look, we think
9 this is the right thing to do, we think this is the
10 right thing to do, we think the Legislature needs to
11 go through and go through and cull out those
12 exemptions that don't advance the state public purpose
13 in a way that saves you money. We are not raising
14 additional taxes, we are broadening the base. And if
15 we don't do it, I don't know who is going to do it.
16 And I think that, we talk about the business
17 community, let's get into the public hearing. We have
18 had a couple of associations write us letters, a
19 couple of associations say, Well, maybe it is a good
20 idea, but remember the services tax. A lot of the
21 associations were behind the services tax. They
22 should not be afraid of putting their exemptions at
23 risk. If they are good exemptions, they will pass;
24 the Legislature will respond to that. If they are bad
25 exemptions, they shouldn't have them, they shouldn't
193
1 have them. Let's go to the people. We at least ought
2 to go to the public hearing process. Let's hear from
3 the various communities. Why would we under any
4 possible reason, why would we try to kill this
5 proposal today? I know we are going to public
6 hearings. I know there's a lot of business people who
7 will say to us, This is the right thing to do.
8 I spent a lot of my lifetime in Broward County in
9 economic development until the bottom fell out in the
10 mid '70s and we had real, major unemployment.
11 Melbourne is the -- Melbourne has probably the highest
12 electronic per capita industry development in the
13 state, per capita manufacturing. And I was involved
14 in those locations, Harris Corporation, GE, or
15 whatever they were. And what the business people ask
16 you when they want to come to Florida, they ask you
17 two questions, Do you have a stable tax base, and how
18 is your education system. Neither of those can be
19 solved with a tax system that has one pong to the
20 stool, one leg to the stool. That's what we have got,
21 that's what we have got.
22 CHAIRMAN DOUGLASS: Commissioner Nabors.
23 COMMISSIONER NABORS: Just one moment,
24 Mr. Chairman.
25 CHAIRMAN DOUGLASS: You have been over the time
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1 limit on the rules and I've been very generous on
2 this. But it is late in the day and I am having
3 trouble maintaining order. I would appreciate your
4 winding up.
5 CHAIRMAN DOUGLASS: Commissioner Nabors, you've
6 been over the time limit in the rules. And I've been
7 very generous on this but it is late in the day and
8 I'm having trouble maintaining order. I'd appreciate
9 your winding up.
10 COMMISSIONER NABORS: I will wind up. What I
11 will say is, is that the instability we have in our
12 tax base from a business standpoint is the quest every
13 year to come up with a ragtag tax to fill the
14 appropriation budget. This will give us stability.
15 If we had done this in '87, lowered the rate to 5,
16 we'd have a 5 percent rate rather than 6 percent and
17 400 million more dollars. I urge you to vote for
18 this. Let's get it into Style and Drafting and let's
19 hear what the public has to say about it during the
20 committee process.
21 CHAIRMAN DOUGLASS: All right. We're going to
22 vote on this as amended, on the proposal as amended.
23 Open the machine.
24 (Vote taken and recorded electronically.)
25 CHAIRMAN DOUGLASS: Everybody voted? Lock the
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1 machine.
2 READING CLERK: Twenty yeas, 12 nays, Mr.
3 Chairman.
4 CHAIRMAN DOUGLASS: All right. We have other
5 business, right now, Commissioner Barkdull? First of
6 all -- go ahead, Commissioner Barkdull.
7 COMMISSIONER BARKDULL: Announcements. We have
8 the Select Committee on Initiatives meeting
9 immediately upon adjournment in Room 214. Keep your
10 gold books, we will need them tomorrow. Anybody that
11 has anything they want to withdraw that's on the
12 calendar, please let us know. We're scheduled to
13 start 9:00 a.m. tomorrow morning.
14 CHAIRMAN DOUGLASS: Incidentally, if there are
15 any motions to reconsider, they should be made now
16 from last meeting. Also, I would like to point out
17 that there was a motion to reconsider that was made at
18 the last session and the item didn't appear on special
19 order today. That was -- what proposal was it,
20 Commissioner Barkdull?
21 COMMISSIONER BARKDULL: Well, after reexamination
22 of the calendar, it appears it is on there.
23 CHAIRMAN DOUGLASS: Oh, it is. Which item was
24 it?
25 COMMISSIONER BARKDULL: That was the one from
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1 Commissioner Alfonso on the Lottery money.
2 CHAIRMAN DOUGLASS: All right. So it's on
3 reconsideration. Commissioner Mills, do you have
4 something on reconsideration?
5 COMMISSIONER MILLS: Yes, Mr. Chairman. We had
6 discussed and we discussed with the sponsor
7 reconsideration on 144, which is Commissioner
8 Barnett's proposal on punishment.
9 CHAIRMAN DOUGLASS: All right. Then that will go
10 on reconsideration. All right. Now, Commissioner
11 Morsani?
12 COMMISSIONER MORSANI: Could I ask a question?
13 CHAIRMAN DOUGLASS: Yes.
14 COMMISSIONER MORSANI: Now, the whatever color
15 this is, our yellow book that we're using today.
16 COMMISSIONER BARKDULL: Commissioner Morsani,
17 maybe I could answer your question. What was your
18 question?
19 COMMISSIONER MORSANI: Well, the special order
20 packet, if we complete these, do we have to go back --
21 I mean, we're carrying briefcases of --
22 COMMISSIONER BARKDULL: You don't have to carry
23 anything. There will be an addition to that prepared
24 for you. You can leave that one here and when we run
25 out of that one there will be another put one on your
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1 desk.
2 CHAIRMAN DOUGLASS: Incidentally, I'm going to
3 clarify one thing. Now, when somebody wants to
4 withdraw a proposal and the question comes up, if
5 somebody objects and wants to vote, if the person
6 moves to withdraw it, it's a majority vote that
7 determines whether or not the motion carries and that
8 is the ruling of the Chair based on examination of the
9 rules by the Secretary. So if you want to move your
10 withdraw at this time, Commissioner Barkdull, you may
11 do so.
12 COMMISSIONER BARKDULL: All right. Mr. Chairman,
13 I move you, sir, that we withdraw Proposal No. 148,
14 this relates to letting the Legislature have a crack
15 at reapportionment before the commission becomes
16 effective.
17 CHAIRMAN DOUGLASS: All those in favor say aye.
18 Opposed.
19 (Verbal vote taken.)
20 CHAIRMAN DOUGLASS: It carries, it is withdrawn.
21 All right. Is there anything else? Commissioner
22 Scott, did you have -- did you want to bring up
23 something or not? Who is it, somebody told me --
24 Mills -- Commissioner Mills, did you want the floor?
25 Hurry up, the floor is disappearing.
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1 COMMISSIONER MILLS: I don't really need the
2 floor, just you. We'd like to do a meeting on Article
3 V tomorrow from noon to 1:00. This is our drop-dead
4 meeting for those that are listening.
5 CHAIRMAN DOUGLASS: Article V Cost Select
6 Committee will meet at 1:00 tomorrow, where?
7 COMMISSIONER MILLS: 12:00 to 1:00. We'll
8 announce the --
9 CHAIRMAN DOUGLASS: Room in the morning.
10 COMMISSIONER MILLS: -- room in the morning.
11 CHAIRMAN DOUGLASS: All right. Commissioner
12 Barkdull -- just a minute, we may need to have your
13 attention just a second.
14 Now, thank you. Now, Commissioner Barkdull, you
15 have the floor.
16 COMMISSIONER BARKDULL: I have nothing else until
17 adjournment -- recess until 9:00 in the morning unless
18 there are some other announcements.
19 CHAIRMAN DOUGLASS: Then we shall recess until
20 tomorrow morning at 9:00.
21 (Session adjourned at 6:00 p.m., to be continued
22 on February 10th, at 9:00 a.m.)
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1 CERTIFICATE
2
3 STATE OF FLORIDA:
4 COUNTY OF LEON:
5
WE, JULIE L. DOHERTY, KRISTEN L. BENTLEY and
6 MONA L. WHIDDON, court Reporters, certify that we were
authorized to and did stenographically report the foregoing
7 proceedings and that the transcript is a true and complete
record of our stenographic notes.
8
9 DATED this ______ day of ____________, 1998.
10
11
_________________________________
12 JULIE L. DOHERTY, RPR
13
14 _________________________________
KRISTEN L. BENTLEY
15
16
_________________________________
17 MONA L. WHIDDON
COURT REPORTERS
18 DIVISION OF ADMINISTRATIVE HEARINGS
1230 APALACHEE PARKWAY
19 TALLAHASSEE, FLORIDA 32399-3060
(850) 488-9675
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