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1 STATE OF FLORIDA
CONSTITUTION REVISION COMMISSION
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COMMISSION MEETING
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DATE: January 28, 1998
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TIME: Commenced at 9:00 a.m.
11 Concluded at 3:00 p.m.
12 PLACE: The Senate Chamber
The Capitol
13 Tallahassee, Florida
14 REPORTED BY: KRISTEN L. BENTLEY
MONA L. WHIDDON
15 JULIE L. DOHERTY
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 (EXCUSED)
7 KEN CONNOR
CHRIS CORR
8 SENATOR ANDER CRENSHAW
VALERIE EVANS (EXCUSED UNTIL 9:45 a.m.)
9 MARILYN EVANS-JONES (ABSENT)
BARBARA WILLIAMS FORD-COATES
10 ELLEN CATSMAN FREIDIN
PAUL HAWKES (ABSENT)
11 WILLIAM CLAY HENDERSON
THE HONORABLE TONI JENNINGS (EXCUSED UNTIL 1:15 p.m.)
12 THE HONORABLE GERALD KOGAN (EXCUSED)
DICK LANGLEY (ABSENT)
13 JOHN F. LOWNDES
STANLEY MARSHALL (EXCUSED UNTIL 1:15 p.m.)
14 JACINTA MATHIS
JON LESTER MILLS
15 FRANK MORSANI
ROBERT LOWRY NABORS
16 CARLOS PLANAS (EXCUSED)
JUDITH BYRNE RILEY
17 KATHERINE FERNANDEZ RUNDLE
SENATOR JIM SCOTT
18 H. T. SMITH
CHRIS T. SULLIVAN (ABSENT)
19 ALAN C. SUNDBERG
JAMES HAROLD THOMPSON
20 PAUL WEST (ABSENT)
JUDGE GERALD T. WETHERINGTON (ABSENT)
21 STEPHEN NEAL ZACK (EXCUSED UNTIL 1:15 p.m.)
22 IRA H. LEESFIELD (ABSENT)
LYRA BLIZZARD LOGAN (ABSENT)
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1 PROCEEDINGS
2 (Roll taken and recorded electronically.)
3 SECRETARY BLANTON: All commissioners indicate
4 your presence. All commissioners indicate your
5 presence. Quorum call. Quorum call.
6 (Quorum taken and recorded electronically.)
7 SECRETARY BLANTON: Quorum present, Mr. Chairman.
8 CHAIRMAN DOUGLASS: If everybody would take their
9 seats and then promptly rise. And if you would, rise
10 for the morning prayer. This morning we have Reverend
11 Larry Killburn, who is the pastor of John Wesley
12 United Methodist Church in Tallahassee. Reverend
13 Killburn, welcome.
14 REVEREND: May we pray. Holy God, we thank you
15 for waking us up this morning to another day of life.
16 "This is indeed the day the Lord has made; we will
17 rejoice and be glad in it." Thank you Father, that we
18 live in a country where freedom is embraced, and,
19 Father, we pray for those who still live in places
20 where oppression and fear prevail. We pray this
21 morning for all of those in authority over us: for
22 our President and Vice-President, for our other
23 elected officials in Washington, D.C., Father, give
24 them wisdom and patience to govern rightly.
25 We also pray today for those in state government
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1 here in Florida -- our Governor and Cabinet, our state
2 legislators and, especially for those represented here
3 on the State Constitution Revision Commission. Watch
4 over their deliberations today, Father, guard them
5 against a spirit of protectionism and partisanism.
6 Allow their discussions to flow freely so that in the
7 end your will may be done in regard to this most
8 precious document, our state Constitution.
9 And we'll be careful, Father, to give you the
10 glory and honor, because, O God, you are so worthy and
11 so deserving of our praise. In your Heavenly Name, we
12 pray. Amen.
13 CHAIRMAN DOUGLASS: Thank you, Reverend. This
14 morning, please remain standing for the Pledge of
15 Allegiance, which is led this morning by students from
16 Deer Lake Middle School who will serve as our pages
17 today. As I call your name, would you come up and
18 stand in front of the group, and they include Lindsey
19 Hartsfield, Mollie Snyder, Lindsey Johnson, Catlin
20 Curts, Holly Monroe, Branden Gokey, James Martinez,
21 Christian Baker, Eric Nash and Bryce Young. Their
22 chaperones are Carla Cramer and Shane Seifert. If you
23 young people would now turn and face the flag and lead
24 us in the Pledge of Allegiance.
25 (Pledge of Allegiance.)
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1 CHAIRMAN DOUGLASS: Well, I think we all agree
2 that it's certainly a beautiful morning and the
3 weather is great. It kind of put a little
4 invigoration in some of us older people, but one of
5 the most invigorating days we had was pointed out to
6 me was yesterday.
7 I don't know whether you realized it, but we
8 dealt with subjects that have torn the country up for
9 a number of years and we did it with great class and
10 with debate and with respect for each other's
11 opinions, and I'm very proud to be a part of this
12 group. We dealt with all forms of the abortion issue,
13 we dealt with income tax, and we dealt with
14 affirmative action, and we dealt with all of those
15 things that really have been critically disruptive
16 throughout the country. And if others were watching
17 and could see how you handled it and how the debate
18 was handled, I think they could take it as a great
19 example of how to deal with these very difficult
20 subjects.
21 The one thing that I think that has occurred in
22 this group that doesn't occur in many is that you have
23 the right to state your position and state it on the
24 record and state what you really think should be done
25 in the Constitution on all issues, and you have done
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1 it in such a fine manner that you make, all of you,
2 you make me proud to be Chairman of this group, but
3 also I think those who appointed you would have to be
4 well pleased. The daily order of this morning -- do
5 we have any other announcements that we need to make?
6 Commissioner Scott.
7 COMMISSIONER SCOTT: Mr. Chairman, Commissioners,
8 there are four proposals that I want to waive out of
9 the Finance and Tax Committee. We discussed it with
10 the members last night, that we did not -- we have no
11 recommendation on them simply because we didn't get to
12 them. We handled some of the more controversial
13 issues, 121, 26, 99, and 41.
14 Two of these are by Commissioner Langley, one by
15 Commissioner Mathis, which should -- it relates to the
16 leasehold, but she wanted to keep that separate from
17 the committee substitute so that we may -- so, I would
18 move at this time to withdraw those from the Committee
19 on Finance and Tax. And we have acted on everything
20 else that was in there. Okay, 121 by Commissioner
21 Freiden, 26 and 99 by Langley, it relates to the water
22 management department, and 41 by Mathis, without
23 objection.
24 CHAIRMAN DOUGLASS: Commissioner Barkdull.
25 COMMISSIONER BARKDULL: I recommend to the
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1 Commission that we have included these four items on
2 the calendar, they start on Page 4, and the bottom one
3 on the right-hand column on Page 4 is the first one
4 identified by Commissioner Scott and the top next
5 three on Page 5, so they are in your packet and they
6 are before us if we reach them today.
7 CHAIRMAN DOUGLASS: I don't see 41 on here.
8 Commissioner Scott.
9 COMMISSIONER SCOTT: It shouldn't be, because it
10 relates to the seaport part of this leasehold issue.
11 And it was kept separate. We made committee
12 substitutes out of all of the rest of them.
13 CHAIRMAN DOUGLASS: Forty-one won't come up
14 really until our next meeting is what you are saying,
15 and then because it is germane to the other issues
16 we'll be taking up. Okay, so you move that we add to
17 the calendar, 121, 26, 99 and 109?
18 COMMISSIONER BARKDULL: Correct.
19 CHAIRMAN DOUGLASS: All right. They are added
20 without objection. Commissioner Connor.
21 COMMISSIONER CONNOR: Mr. Chairman, I request
22 unanimous consent of the body to simply carry the
23 motion for reconsideration by which 107 failed and
24 forward it in a pending mode until the next session.
25 CHAIRMAN DOUGLASS: All right. Before we do
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1 that, I think Commissioner Barkdull, Chairman of
2 Rules, hasn't finished his announcements, but that's
3 fine.
4 COMMISSIONER CONNOR: I am sorry.
5 COMMISSIONER BARKDULL: That's fine, I have no
6 objection to that, because there are two commissioners
7 that are interested and there's one that's sick.
8 CHAIRMAN DOUGLASS: So, it's been proposed by
9 Commissioner Connor that we carry over the pending
10 motion to reconsider on 107 which has been pending
11 until our next meeting. Commissioner Morsani, you
12 rose. Do you want to speak to that?
13 COMMISSIONER MORSANI: Yes.
14 CHAIRMAN DOUGLASS: Okay, go ahead.
15 COMMISSIONER MORSANI: Maybe this isn't the
16 proper time. Mr. Conner, with all due respect, I
17 think we have debated some of these issues, we keep
18 debating them. I think we have got to draw a line in
19 the sand at some point. I think we drew a line in the
20 sand on that issue. It's not only the issue that
21 bothers me, but the time schedules bother me. I
22 reluctantly decline to accept that, if I'm saying the
23 right words.
24 CHAIRMAN DOUGLASS: Well, it has to be unanimous,
25 and therefore, we'll have to take it up today,
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1 Commissioner Connor. Am I right on that, Commissioner
2 Barkdull?
3 COMMISSIONER BARKDULL: Yes, sir. Commissioner
4 Connor, would you like to defer or would you like to
5 take it up now?
6 COMMISSIONER CONNOR: It doesn't matter.
7 CHAIRMAN DOUGLASS: Commissioner Barkdull.
8 COMMISSIONER BARKDULL: Let me conclude the
9 special order report which is on your desk. You have
10 an additional volume three, which is your green
11 volume. We'll be working out of all three books
12 today. I want to call your attention to the fact that
13 the Select Committee on Sovereign Immunity is to meet
14 at noon today.
15 I also want to call your attention to the fact
16 that we are next scheduled to meet on Monday,
17 February 9th. We'll come in at 1:00. Your calendar
18 that's been submitted to you indicates that we'll
19 conclude at 1:00 on Thursday. I think you better hold
20 that a little bit flexible, because depending on how
21 well our work goes, we may have to go until five that
22 day. I just wanted to alert you to that.
23 The last meeting is in February and most of our
24 work is going to have to be completed by the end of
25 February, is the week of the 23rd, in which we come in
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1 at 1:00 on Monday and it shows us concluding at
2 1:00 on Friday. Once again, on that Friday, you
3 better be flexible, we may not get out of here at
4 1:00 on Friday. I just call that to your attention
5 because I know reservations are going to be difficult
6 this time of year.
7 In that connection, you have received on your
8 desk and you will receive in your home offices when
9 you get back there, the information relative to these
10 sites and particular hotels for the public hearings in
11 Fort Lauderdale and St. Petersburg. I ask you to make
12 your reservations for those planning to attend
13 promptly, because there's a cutoff date of
14 February 12th and 13th of February.
15 The public hearing in Tallahassee has not been
16 formally scheduled yet and we will notify you as soon
17 as possible when that is because we recognize, also,
18 that it'll occur during the time of the Legislature
19 being in session, so hotel rooms and transportation
20 may be difficult up here.
21 We have a fairly ambitious calendar today and
22 hopefully we can conclude all of the items on there.
23 Some of them are going to be controversial, which is
24 understandable. The -- I would be interested in
25 whether Commissioner Mills who had a Style and
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1 Drafting Committee meeting this morning wants to make
2 any comments to the group in reference to that.
3 CHAIRMAN DOUGLASS: Commissioner Mills, I guess
4 you can comment on that.
5 COMMISSIONER MILLS: Thank you, Mr. Chairman.
6 The style and drafting committee did meet this morning
7 at 8:00, full attendance, all attended, and that
8 committee will meet again next Wednesday here. We
9 all -- we appreciate any questions or input you may
10 have. We have, I think at this point, passed about 35
11 propositions. I think it is worth saying one thing,
12 Mr. Chairman, that it seems that thematically, this
13 commission has been consistent. It has dealt with a
14 series of important issues that we heard about, in
15 terms of education, environment, access to government.
16 And I think although it's hard to see the forest
17 when you are in the trees here, I think that
18 ultimately you are going to see that this commission
19 has done a very sound job of responding to what people
20 were saying.
21 But since this commission possesses so much
22 intelligence and interest in these issues, we
23 appreciate, if anybody wants to attend the meeting
24 next Wednesday, I will certainly notice that. And if
25 any members want to come and give their opinions, we
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1 appreciate it. But it's next Wednesday from 10:00
2 until 5:00 p.m. in the commission conference room.
3 Thank you, Mr. Chairman.
4 CHAIRMAN DOUGLASS: All right. Commissioner
5 Barkdull.
6 COMMISSIONER BARKDULL: That concludes the action
7 of the Rules Committee. I suggest we revert to the
8 special order calendar, the item on reconsideration by
9 Commissioner Connor.
10 CHAIRMAN DOUGLASS: Okay. Commissioner Freiden,
11 did you have something on this subject?
12 COMMISSIONER FREIDEN: I just wanted to -- if
13 it's an appropriate time, to withdrawal Proposal 121,
14 the one that Commissioner Scott referred to, one of
15 the ones that he waived out of the committee.
16 CHAIRMAN DOUGLASS: All right. Without
17 objection, Proposal No. 121 is withdrawn from your
18 consideration. We'll now proceed with the special
19 order, Proposal 107, by Commissioner Connor. It was
20 disapproved by the Committee on Declaration of Rights,
21 it failed on its appearance before the commission, the
22 pending motion to reconsider by Commissioner Argiz,
23 and then it was abandoned.
24 But then on unanimous consent, we allowed
25 Commissioner Connor to move to reconsider, and it's on
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1 that motion that we are presently scheduled to hear.
2 And I would like to ask, with your permission, the
3 clerk to read.
4 READING CLERK: Proposal 107, a proposal to
5 revise Article I, Florida Constitution, providing that
6 the state Constitution does not restrict the right of
7 parents to consent to medical treatment for their
8 minor children.
9 CHAIRMAN DOUGLASS: Now, do you recall the vote
10 by which that --
11 COMMISSIONER CONNOR: I believe it was 12 to 18.
12 CHAIRMAN DOUGLASS: Eighteen to 12, 12 yeas, 18
13 nays?
14 COMMISSIONER CONNOR: Yes, sir.
15 CHAIRMAN DOUGLASS: Okay. Proceed with your
16 presentation.
17 COMMISSIONER CONNOR: Mr. Chairman, it's not my
18 intent to re-debate the merits of the issue. The
19 rationale simply behind this motion is as follows,
20 there were several folks who were unable to be present
21 in the body at this time this matter came up and who
22 wanted to vote and could not vote on the motion.
23 We don't have enough votes, frankly, to pass that
24 motion. It's not my intent to re-debate it, but
25 Commissioner Argiz, who voted on the prevailing side,
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1 made the motion because Commissioner Planas, who felt
2 very strongly about the issue, had been unable to be
3 in attendance.
4 Commissioner Planas because of medical problems
5 has been unable to be in attendance at this meeting as
6 well. And I simply wanted to request that we be
7 permitted to carry the matter forward to the next
8 session so that those folks would have the opportunity
9 to vote on it if they were able to be in attendance at
10 that time. That is the sole basis for the motion.
11 CHAIRMAN DOUGLASS: Commissioner Alfonso.
12 COMMISSIONER ALFONSO: Comment. I also, because
13 of my situation at home, had to leave that afternoon
14 of that session last time and I also felt strongly
15 about the issue, so I would be another vote for it.
16 CHAIRMAN DOUGLASS: In other words, you didn't
17 have parental consent to be here that day; is that
18 right?
19 COMMISSIONER ARGIZ: That's correct, Mr.
20 Chairman.
21 CHAIRMAN DOUGLASS: Commissioner Evans.
22 COMMISSIONER EVANS: Mr. Chairman, I didn't have
23 parental consent, but I had the Chairman's consent not
24 to be here that day.
25 CHAIRMAN DOUGLASS: You are right.
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1 COMMISSIONER EVANS: And this is an issue of
2 particular importance to me. It's one that, if
3 you-all will remember in our legislative careers, the
4 Legislature dealt with and, in fact, was challenged,
5 was found unconstitutional.
6 So, this is the only way we can ever address this
7 particular issue because the Legislature has addressed
8 it. I can't remember the year, can you, Senator
9 Scott? '88, that it did pass, and it passed the
10 Legislature and it was not vetoed by the Governor, but
11 it was challenged in court and was found
12 unconstitutional.
13 So, this is the only remedy, we are the only spot
14 in which we can deal with this particular issue. If
15 you can find it in your heart to allow one more debate
16 on this, I would ask that, in fact, you allow
17 Commissioner Connor to move for reconsideration to be
18 extended until our next meeting. And I would ask
19 Commissioner Connor, as we try to do in the
20 Legislature, to at least get everybody who is
21 interested in this subject in one spot at one time.
22 CHAIRMAN DOUGLASS: We are on the motion to
23 reconsider already. It has been -- while you were not
24 here, it did not achieve being carried over so -- at
25 this point, on the motion to reconsider. And I will
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1 ask that you open the machine and vote on whether or
2 not we'll reconsider. If you vote to reconsider, we
3 will have full debate again on this matter. Announce
4 it.
5 READING CLERK: Twelve yeas and 14 nays,
6 Mr. Chairman.
7 CHAIRMAN DOUGLASS: We vote not to reconsider,
8 Commissioner Connor. We'll move to -- on the special
9 order calendar to Proposal No. 135 by Commissioner
10 Henderson. Would you read it, please?
11 READING CLERK: Proposal 135, a proposal to
12 revise Article VII, Section 4 of the Florida
13 Constitution; adding lands used for conservation
14 purposes to those lands that may, by law, be assessed
15 for tax purposes on the basis of their character or
16 use.
17 CHAIRMAN DOUGLASS: All right. Commissioner
18 Henderson, you are recognized.
19 COMMISSIONER HENDERSON: Mr. Chairman, there
20 should be an amendment at the desk. I don't know that
21 it has been distributed.
22 READING CLERK: On the desk, Mr. Chairman.
23 CHAIRMAN DOUGLASS: There is an amendment on the
24 desk by Commissioner Henderson to his proposal. Would
25 you read the amendment, please?
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1 READING CLERK: By Commissioner Henderson, delete
2 everything after the proposing clause and insert
3 lengthy amendment.
4 CHAIRMAN DOUGLASS: All right. As I understand
5 the amendment -- maybe you better just explain it.
6 COMMISSIONER HENDERSON: Thank you, Mr. Chairman.
7 This -- and Mr. Mills is rising to assist me with the
8 amendment. There were two matters that were
9 considered by Finance and Tax, both received favorable
10 recognition or favorable report. Yesterday afternoon,
11 the Finance and Tax Committee approved this language
12 after a very good debate and a very good staff
13 analysis on this issue. And what we have here is what
14 we think is a very good two-step process to
15 accommodate this issue.
16 It'll require general law on the subject and also
17 it'll require a local vote or vote at the local level.
18 What this does is provide an ability to give
19 incentives to landowners who are good stewards of the
20 land, who are using their property for conservation
21 purposes. This is a way to reward them for their
22 practices.
23 It is -- we have worked long and hard with
24 representatives of the land-owning community and
25 private landowners throughout the state and it's come
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1 to this point, and so this is a good way to effect
2 additional conservation rewards from the other areas
3 that we have discussed. And I think Mr. Mills would
4 like to contribute to this as well.
5 CHAIRMAN DOUGLASS: Commissioner Mills.
6 COMMISSIONER MILLS: Well, Mr. Chairman, what
7 this amendment is, was my Proposal 109, which was
8 referred to the Committee on Finance and Fax and it
9 passed yesterday unanimously. And what it does is
10 accord local governments the discretion to implement a
11 conservation easement as an exemption. Commissioner
12 Henderson's original proposal dealt with assessments.
13 Constitutional authority is required to allow an
14 exemption. Now, the exact design of that exemption
15 and the definition of conservation, which,
16 Mr. Chairman, you were concerned about your lake, will
17 be defined by general law.
18 During yesterday's debate, Finance and Tax have
19 used the definition in the current law for land
20 acquisition, but it was the thought of the committee
21 that more constitutional language, to accord it to the
22 Legislature to define that. This is a rational way to
23 encourage conservation and preserve private property
24 rights. And it leaves it in the discretion of the
25 counties and the cities to do that.
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1 How this practically would work is, since you now
2 have constitutional authority to have an exemption,
3 the Legislature can implement that exemption,
4 otherwise they couldn't because there's limited
5 authority to grant exemptions. So the Legislature may
6 now define a conservation easement, in terms of what
7 kind of activity would be conservation.
8 Yesterday, and again, very good staff work by
9 Commissioner Scott's staff, they used the land
10 acquisition language for conservation to define it.
11 It was the committee's view that that was too much
12 language to put in the Constitution, and just by
13 saying general law here, the Legislature will do that.
14 And once this has been approved by the
15 Legislature, then any county or city may opt in to the
16 process designed by the Legislature. What this does
17 is it allow counties and cities to make their own
18 tax-based decisions. And there's some counties and
19 cities that may want to do it, some that may not.
20 And practically what would happen is either
21 conservation organizations or landowners, seeing this
22 as an option, will go to their county and say, I would
23 like to place my land in conservation under this
24 definition and I will not use it for a period of years
25 as provided by the statute, and for that I wish to
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1 apply for this property tax exemption, so therefore
2 there is an incentive for the person to do it. And if
3 the county does not want to do it, they don't have to.
4 CHAIRMAN DOUGLASS: Incidentally, I don't want to
5 break this debate, but I think my ruling on the motion
6 to reconsider was incorrect. It takes a waiver of the
7 rules to do what Commissioner Connor wanted to do and
8 that only -- that requires a two-thirds' vote, it
9 doesn't require a unanimous vote. And therefore, if
10 somebody would raise the point of order that I've
11 raised on myself here, we'll revert to that and vote
12 on whether or not the motion that was made by
13 Commissioner Connor, which was to defer the
14 reconsideration until the next meeting, we should
15 waive the rules and allow that to carry it forward.
16 And I think maybe some of the people that felt that,
17 they didn't get an opportunity to discuss this again,
18 which they wanted.
19 And in looking at it, I think I made a mistake,
20 and the 18 to 12 vote would indicate that we don't
21 have the necessary votes to defeat the waiver of the
22 rule and I made an incorrect ruling by requiring
23 unanimous vote.
24 With your permission, without objection, I would
25 ask that we revisit that now before we get too far
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1 away from it and vote on whether or not we waive the
2 rules to carry over the motion to reconsider Proposal
3 107 by Commissioner Connor until the January -- until
4 the next meeting of the commission. Commissioner
5 Scott was up.
6 COMMISSIONER SCOTT: Well, I was going to, at
7 your request, Mr. Chairman, I will make the point of
8 order. And the motion, then, would be to postpone the
9 reconsideration.
10 CHAIRMAN DOUGLASS: Correct, which was
11 Commissioner Connor's motion.
12 COMMISSIONER SCOTT: Which would require a
13 two-thirds vote to waive the rules. And I just want
14 to say one thing. I mean, Commissioner Jennings has
15 asked that this be deferred because it was taken up on
16 a day that she was not here. I don't like
17 particularly debating these issues for the second and
18 third time. They are very heartrendering, emotional
19 issues, but we have already done it five or six times.
20 And what's wrong with doing it once more as a courtesy
21 to commissioners that have asked for this
22 consideration?
23 So, I would speak in favor of reconsidering --
24 regardless of how you vote on the merits of it, you
25 know, I think it could well be one of you who could be
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1 in this position at some point on the main issue or
2 the most important issue that you have up here. So I
3 would ask that we defer it, it's not a vote on the
4 merits, and give them a chance to reconsider it.
5 CHAIRMAN DOUGLASS: Okay.
6 COMMISSIONER BARKDULL: Mr. Chairman.
7 CHAIRMAN DOUGLASS: I think Commissioner Zack was
8 up.
9 COMMISSIONER BARKDULL: Mr. Chairman, first off,
10 this motion, first takes a two-thirds vote of the full
11 motion, secondly, it's without debate, and thirdly,
12 I'm going to vote for it.
13 COMMISSIONER ZACK: Mr. Chairman, each of us have
14 issues that are very, very important to us and I
15 venture to say, other than the Chairman, there won't
16 be anybody who will be in attendance every day on
17 every vote in this chamber. My concern, and I'm very
18 sensitive to this issue and to the strong feelings
19 that people have regarding this issue, there are like
20 issues that each of us have.
21 However, my point of information is, this matter
22 was extremely well debated and I don't believe that
23 anything more could be added to either side of this
24 debate. Is there a way that those people who wish to
25 state their support of one position or the other who
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1 were not in attendance can do that in some other way,
2 such as being put on the record, having their position
3 put on the record as being, had they been here, would
4 have adopted the positions that have been stated by
5 either side? My concern again is a time concern.
6 CHAIRMAN DOUGLASS: Let me say it again, that's
7 not before --
8 COMMISSIONER ZACK: For point of information, can
9 that be done?
10 CHAIRMAN DOUGLASS: My answer to that is, I'm
11 going to rule it, it hasn't been done, and to my
12 knowledge we haven't provided a vehicle for it. What
13 we are on is, correctly on, is the motion of -- which
14 we were not correctly on, Commissioner Connor's motion
15 to put off the vote on reconsideration on this
16 Proposal No. 107 until the next meeting. And I think,
17 in response to your inquiry, my understanding, that I
18 have been told by Commissioner Connor, and he stated
19 this, maybe not as directly as I'm going to, but he
20 stated it on the floor that there were members who
21 were here today who were not here in the debate that
22 wanted to speak, cannot speak something on the record.
23 And when I realized what I had done, I reversed
24 that and we are now on Commissioner Connor's motion to
25 delay the reconsideration of this matter until the
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1 next meeting. And the Chair, if you will give me your
2 attention, I feel, and this is a matter of personal
3 feeling on this, that we should honor the motion of
4 Commissioner Connor for the reasons he's stated.
5 And even though I tend to agree with those who
6 say that we have debated this and re-debated it and so
7 on, that is not the feeling of a substantial number of
8 members, and I think we should afford that courtesy to
9 Commissioner Connor.
10 That's my own view, and that's one of the reasons
11 I went back and asked about the rules and found out
12 that I had improperly interpreted the rules. So, if
13 you want to speak to the motion which is on the floor,
14 which is to -- to go forward -- commissioner Thompson.
15 COMMISSIONER THOMPSON: Mr. Chairman, I don't
16 care how we come out here. I voted with him last
17 time, I am going to vote with him this time, but the
18 rules are the rules and a motion to waive the rules is
19 non-debatable in every parliamentary forum I've ever
20 been in and under 9.2 it's that way here.
21 CHAIRMAN DOUGLASS: You are absolutely right, the
22 point of order is well taken. We will proceed to
23 vote. All in favor of Commissioner Connor's motion,
24 say aye. Opposed?
25 It passes by two-thirds vote and it is delayed
25
1 until the next meeting of the commission.
2 (Verbal vote taken.)
3 CHAIRMAN DOUGLASS: Let's go ahead now that I
4 have completely interrupted Commissioner Henderson and
5 Commissioner Mills with my inept performance in the
6 Chair, we'll go forward. Commissioner Mills, you have
7 the floor.
8 COMMISSIONER MILLS: Mr. Chairman, I think that
9 we have explained it and if there were any questions.
10 CHAIRMAN DOUGLASS: Well, there were some people
11 not in the chamber, and I'm sure Commissioner
12 Henderson can explain again what he's doing, or you
13 can.
14 COMMISSIONER MILLS: Okay. This is a proposal
15 for a conservation easement. It was passed
16 unanimously out of Finance and Tax yesterday. What it
17 does is accords to local governments the authority to
18 grant an easement for conservation purposes.
19 Conservation purposes will be defined by general law.
20 Yesterday we had a staff that did tremendous work
21 on this, had defined conservation in the Constitution
22 as the language of the conservation recreation lands
23 program, which includes all of the purposes for which
24 you can -- the public can buy land.
25 So, it made sense that if you are going to grant
26
1 an exemption it should be for the same purposes that
2 the public would otherwise spend money. So, what this
3 does is say it will be defined by general law. Also,
4 the process will be defined by general law. But the
5 decision and negotiation is on the county level.
6 And the reason for that is each individual
7 county, there may be some counties that may not want
8 to do it, there may be some counties that do. And
9 once the general law has passed, the county has that
10 option. And the other result is the land owner has
11 the incentive to put their land in conservation and
12 use it for conservation purposes and they get a real
13 tax break. The need for it is the Legislature cannot
14 give an exemption unless the Constitution so
15 authorizes.
16 CHAIRMAN DOUGLASS: Commissioner Scott. All
17 right. Would those in the back of the room please --
18 that are caucusing there, un-caucus a little bit for
19 us, will you? Thank you very much.
20 COMMISSIONER SCOTT: Just briefly in favor of
21 this. There is a definition in the statutes in what's
22 called the Carl (phonetic) program for purchase of
23 environmental lands for conservation. The first draft
24 of this had that laid out in the Constitution, but
25 upon reflection, after the committee deliberated, we
27
1 felt that it would be better to just leave it to
2 general law because we might want to change it or it
3 might not be what we want.
4 So, I think this version will accomplish the
5 purpose and I think it is a very worthwhile purpose.
6 We are going to hopefully see more and more of people
7 doing this in the Legislature and the county or
8 municipality would have to approve it under whatever
9 terms and conditions they want to put it on.
10 CHAIRMAN DOUGLASS: Commissioner Scott is
11 chairman of Finance and Tax. This then puts it in the
12 Legislature, the power, so what can be exempted --
13 define what can be exempted, is that correct?
14 COMMISSIONER SCOTT: For what purpose, yes, it
15 does.
16 CHAIRMAN DOUGLASS: And then the counties, under
17 the framework of the general law, can do it; is that
18 correct?
19 COMMISSIONER SCOTT: Right.
20 CHAIRMAN DOUGLASS: The reason I ask that, this
21 is not something that would create a loss of revenue,
22 necessarily, to the counties; it would have to be for
23 a specific purpose and go through the legislative
24 definition and then through some action by the local
25 body before it was done?
28
1 COMMISSIONER SCOTT: That's correct. They would
2 then have to do it if they wanted to under whatever
3 term. We talked about some years, ten years, or
4 whatever, but I think that should be -- and what would
5 happen if somebody started doing it and then quit, but
6 we will deal with that, the Legislature can deal with
7 that, and the county or municipality in their
8 ordinance can deal with it.
9 COMMISSIONER MILLS: And, Mr. Chairman, that's
10 why the option is local, because they would make that
11 decision as to revenue loss.
12 CHAIRMAN DOUGLASS: All right. So, basically,
13 from our standpoint, the Constitution is
14 revenue-neutral on this?
15 COMMISSIONER MILLS: Correct.
16 CHAIRMAN DOUGLASS: It has to be action before
17 anything is done. All right. Any more proponents?
18 Any opponents? To close, Commissioner Henderson.
19 COMMISSIONER HENDERSON: Mr. Chairman, first of
20 all, not necessarily -- I will close, but the staff
21 prepared this amendment and I think the record should
22 accurately reflect that this is Mr. Mills' amendment.
23 Mr. Mills has been telling me all along he had a
24 better idea on this mater than I did, and the
25 committee has proved him right on this.
29
1 We have spent a lot of time working with private
2 property owners in the state in trying to come up with
3 a way to create incentives for private conservation.
4 This does it. And I think it'll go a long way with us
5 rewarding good stewardship.
6 CHAIRMAN DOUGLASS: You know, you are closing on
7 the amendment.
8 COMMISSIONER HENDERSON: Yes, sir, this is it. I
9 am going to sit down and it'll be over. I got what I
10 came for, Mr. Chairman.
11 CHAIRMAN DOUGLASS: Okay. You are closing on
12 everything, then. All right. All of those in favor
13 of the amendment, say aye. Opposed?
14 (Verbal vote taken.)
15 CHAIRMAN DOUGLASS: The amendment is adopted and
16 now we will vote on the proposal. I'll ask
17 Commissioner Henderson to just read us that last
18 little line that you are adding to the Constitution,
19 and then we'll vote.
20 COMMISSIONER HENDERSON: Thank you. We the
21 people of the United States -- sorry, wrong page.
22 (Laughter.)
23 CHAIRMAN DOUGLASS: That was last night.
24 COMMISSIONER HENDERSON: Wrong page. Any county
25 or municipality may, for the purposes of its
30
1 respective tax levy and as authorized by general law,
2 grant ad valorem tax exemptions to owners of property
3 used for conservation purposes as defined by general
4 law.
5 CHAIRMAN DOUGLASS: All right. Open the machine
6 and we'll vote.
7 CHAIRMAN DOUGLASS: Has everybody voted? Lock
8 the machine and announce the vote.
9 (Vote taken and recorded electronically.)
10 READING CLERK: Twenty-three yeas and zero nays,
11 Mr. Chairman.
12 CHAIRMAN DOUGLASS: All right. We'll proceed to
13 the next proposal, which is committee substitute for
14 Proposal 184 by the Committee on Ethics and Elections,
15 and Commissioner Mills recommended as a committee
16 substitute by the Committee on Ethics and Elections
17 and it was deferred until this week with pending
18 amendment number one by Commissioner Mills and
19 Freiden. Is the amendment on the table?
20 READING CLERK: It's on the desk, Mr. Chairman.
21 CHAIRMAN DOUGLASS: First of all, read the
22 proposal.
23 READING CLERK: Committee substitute for proposal
24 No. 184, a proposal to revise Article VI, s.1, Florida
25 Constitution, providing that the Legislature shall
31
1 prohibit certain conduct in connection with elections.
2 CHAIRMAN DOUGLASS: Commissioner Mills moves the
3 amendment.
4 COMMISSIONER MILLS: Mr. Chairman.
5 CHAIRMAN DOUGLASS: You have got another one?
6 COMMISSIONER MILLS: Commissioners Freiden and
7 Rundle have a substitute. And if you want to argue
8 with them, go right ahead.
9 CHAIRMAN DOUGLASS: I wouldn't dare. So, what we
10 are fixing to deal with is the latest one, which is
11 really your amendment, you withdrew the other one and
12 this is your amendment; is that correct? It's moved
13 by you?
14 COMMISSIONER MILLS: Commissioner Freiden.
15 CHAIRMAN DOUGLASS: Commissioner Frieden. All
16 right. Would you read the amendment, which is this
17 one? All right. He gave me the wrong one. She is
18 going to read it.
19 READING CLERK: By Commissioners Freiden and
20 Rundle, delete everything after the proposing clause
21 and insert lengthy amendment.
22 CHAIRMAN DOUGLASS: All right. Who wants -- what
23 you have done is just rewritten it, right; is that
24 correct? And that's the amendment. So, if we adopt
25 the amendment, then we'll move to vote on the
32
1 proposal. And you are now recognized to explain the
2 amendment. And Commissioner Freiden, who moved it,
3 yields to you.
4 COMMISSIONER MILLS: Mr. Chairman, let me explain
5 how we got here briefly so people will at least
6 understand what this proposal deals with. The issue
7 that we were concerned with was fraud and deceit
8 during elections and the fact that it was difficult or
9 impossible to remove people for their conduct during
10 elections. It is available to remove people for their
11 conduct in office.
12 There are, of course, First Amendment issues that
13 we had to deal with. And I think we were at a point
14 where we thought it would be difficult, if not
15 impossible, to do it, but with terrific staff work and
16 with Commissioner Freiden's and Rundle's advice, they
17 have simplified this to the point where it may
18 actually accomplish that purpose with just a phrase.
19 Commissioner Freiden I think might want to explain how
20 she reached this conclusion.
21 COMMISSIONER FREIDEN: Commissioners, really I --
22 CHAIRMAN DOUGLASS: Commissioner Rundle.
23 COMMISIONER RUNDLE: Thank you, Mr. Chairman.
24 You may remember that the previous amendment, we
25 really tried to outline all of the types of behavior
33
1 that occurs during an election and we tried to
2 prohibit those activities. And instead what we found
3 was this language was much clearer.
4 And essentially what it does is what Commissioner
5 Mills said, it now allows for suspension removal for
6 the bad acts that are done during an election. And so
7 the amendment really basically says, Not only as a
8 public officer, but also as a candidate. So, we would
9 urge that you adopt this amendment.
10 CHAIRMAN DOUGLASS: All right.
11 COMMISSIONER RUNDLE: I do believe that copies do
12 need to be distributed.
13 CHAIRMAN DOUGLASS: I think they have been
14 distributed, I think.
15 COMMISSIONER FREIDEN: Mr. Chairman, I believe
16 they are being distributed or about to be distributed.
17 Has the language been read?
18 CHAIRMAN DOUGLASS: Yes. What she said is delete
19 everything after the proposing clause and insert
20 Section 1.
21 COMMISSIONER FREIDEN: Why don't I read to the
22 commissioners while it's being handed out because it
23 really is a very simple -- we went from a very
24 complicated amendment to a very simple amendment, a
25 very simple proposal.
34
1 CHAIRMAN DOUGLASS: Before we go forward, I have
2 got two or three amendments that's been handed to me
3 and I think the commissioners do too. This doesn't
4 have that language in it about evidencing -- you took
5 that out?
6 COMMISSIONER FREIDEN: No, that's why I want to
7 read this to you. This is what it says. I'm going to
8 read you the existing language and I am going to tell
9 you when we get to the language what we want to add
10 in.
11 It says, this is under Article IV, s.7
12 Suspensions, filling office during suspensions,
13 Subsection A, by executive order stating the grounds
14 and filed with the Secretary of State the Governor may
15 suspend from office any state officer not subject to
16 impeachment, any officer of the militia not in the act
17 of service of the United States, or any county officer
18 for misfeasance -- I'm sorry, for a malfeasance or
19 misfeasance while in office or as a candidate for
20 office.
21 Now, what we have done, the added language is
22 "while in office or as a candidate for an office, at
23 the present time the Governor can suspend an officer
24 if that person engages in malfeasance or misfeasance
25 in office." All we are doing is adding in language
35
1 here that includes the possibility for the Governor to
2 suspend one of these people in these -- a state
3 officer or others in these categories from office if
4 they have engaged in malfeasance or misfeasance during
5 the course of their campaign; in other words, if they
6 got to that point as a result of some kind of
7 malfeasance or misfeasance.
8 Now, you ask -- I knew you were going to ask
9 this. What is malfeasance or misfeasance? And I've
10 been handed by our general counsel a -- what is this,
11 Debbie? This is the manual of practice and procedure
12 on executive suspensions, and in here there is a
13 definition of malfeasance and a definition of
14 misfeasance, and apparently these are terms of art
15 that have been used in connection with executive
16 suspensions forever, through Florida history.
17 Malfeasance has reference to evil conduct or an
18 illegal deed, the doing of that of which one ought not
19 to do, the performance of an act by an officer in his
20 official capacity that is wholly illegal and wrongful,
21 which he has no right to perform or which he has
22 contracted not to do.
23 Misfeasance is sometimes loosely applied in the
24 sense of malfeasance, appropriately used, misfeasance
25 has reference to the performance by an officer in his
36
1 official capacity of a legal act in an improper or
2 illegal manner, while malfeasance is the doing of an
3 official act in an unlawful manner. Misfeasance is
4 literally a misdeed or a trespass while nonfeasance
5 has reference to the neglect or refusal.
6 We are not talking about nonfeasance here, so
7 essentially, we had originally proposed this with a
8 list of categories of things that included things like
9 fraud and deceit, a judgment of liable or slander,
10 commission of a felony, commission of a hate crime.
11 And I think all of you who read that amendment
12 looked at this and got a little uncomfortable with the
13 length of it, and I think this essentially does the
14 same thing but leaves the determination of what is
15 misfeasance and what is malfeasance up to traditional
16 interpretations of those words.
17 CHAIRMAN DOUGLASS: Commissioner Corr. And
18 you're next, Commissioner Nabors.
19 COMMISSIONER CORR: A question, please.
20 CHAIRMAN DOUGLASS: Do you yield for a question?
21 And she does.
22 COMMISSIONER CORR: Thank you. It appears to me
23 that in the amendment, that this would allow a
24 candidate for office that is not currently an
25 incumbent to do whatever they want, but the
37
1 incumbent -- tell me how it is different because the
2 original proposal went to a candidate for office, and
3 this doesn't include a candidate for office unless
4 they are already an officer.
5 COMMISSIONER FREIDIN: No, this is -- this would
6 include a candidate who wins, they could then be
7 suspended or removed from office. It doesn't have to
8 be an incumbent.
9 COMMISSIONER CORR: What if he loses?
10 COMMISSIONER FREIDIN: Well, it's not okay to
11 have done that conduct. If what you did during the
12 course of the campaign arises to the level of a crime
13 or a civil -- a violation of a tort or any other
14 violation, then of course, the loser would be subject
15 to appropriate sanctions.
16 COMMISSIONER CORR: Thank you.
17 CHAIRMAN DOUGLASS: All right. Commissioner
18 Nabors.
19 COMMISSIONER NABORS: Ms. Freidin, let me ask you
20 a question and make sure I understand this.
21 Commissioners Mills and Sundberg, get your attention
22 too, as I read this, and I think I read it correctly,
23 that it gives the Governor the right to suspend a
24 Senator or a House member who is elected for
25 activities that occurred while they were a candidate
38
1 because they are not impeachable. So it would apply
2 to a House member or Senator --
3 COMMISSIONER FREIDIN: No.
4 COMMISSIONER NABORS: It would not?
5 COMMISSIONER FREIDIN: Now, because if you look
6 at the way it exists presently the Governor may
7 suspend from office any state officer not subject to
8 impeachment.
9 COMMISSIONER NABORS: But only while in office.
10 COMMISSIONER FREIDIN: I am told that Article III
11 provides that the Legislature is the sole judge of the
12 seating of its members.
13 COMMISSIONER NABORS: Well, that's my question,
14 that's what I'm concerned about. I'm concerned
15 whether this creates a conflict between that because
16 this is the first time that we have a provision -- I
17 mean, House members and Senate members are not subject
18 to impeachment. Okay. Now that's one principle. The
19 other principle is we have a provision that says that
20 the House members are the sole judges of the
21 qualification. This gives the right of the Governor
22 then to suspend for an activity that occurred prior to
23 elections.
24 I'm concerned there is an inconsistency we have
25 built in as to who is the judge of the qualifications
39
1 for an alleged campaign violation because we are now
2 giving the Governor the right to suspend prior to --
3 while something happened during the campaign.
4 In other words, well, I think there is an
5 ambiguity there. I think we have a provision that
6 says the House is the sole judge of its members.
7 CHAIRMAN DOUGLASS: Commissioner Barkdull, it is
8 my understanding this doesn't affect any other
9 provision of the Constitution such as that one he is
10 talking about, the House and the Senate still judge
11 the qualifications of their members. And
12 traditionally they have the authority to expel from
13 their membership anybody for any reason that they
14 collectively decide.
15 COMMISSIONER BARKDULL: Yes, sir.
16 CHAIRMAN DOUGLASS: And, therefore, this wouldn't
17 apply and is not necessary because the Legislature can
18 now remove or expel or censor for whatever they did,
19 because I've been involved in a couple of those where
20 they did. I want to make that clear. The Governor,
21 on the other hand, only suspends now. And then the
22 suspension is submitted to the Senate, and this would
23 still be the case, and if the Senate doesn't act or
24 they confirm it, the person is then removed.
25 And if the Senate refuses to go along with the
40
1 Governor, then it is a non-event, he retains his
2 office. All this does, as I understand it from
3 Commissioner Freidin, Commissioner Sundberg, I think
4 you will agree, all this does is add to the Governor's
5 power of suspension acts that occurred in the -- while
6 he was a candidate, and he would have to be elected
7 before the Governor could suspend him. Isn't that
8 right, Commissioner Freidin?
9 COMMISSIONER FREIDIN: That's my understanding
10 and intent.
11 CHAIRMAN DOUGLASS: Commissioner Freidin.
12 COMMISSIONER FREIDIN: I said that's my
13 understanding and that's the intent.
14 COMMISSIONER NABORS: I want to make sure because
15 of the amendments we are not affecting the current
16 process in terms of the abilities of the House and
17 Senate to judge the qualifications of its own members.
18 COMMISSIONER SUNDBERG: Mr. Chairman, I believe
19 that that extends to whether or not a candidate who is
20 elected is seated in the body, it doesn't just have to
21 do with expulsion. I think if they -- my recollection
22 is that each of those bodies has the authority to say,
23 You say you have been elected but we refuse to seat
24 you here.
25 CHAIRMAN DOUGLASS: And they could do that.
41
1 COMMISSIONER SUNDBERG: Right. So that will
2 never, under the current state of the law, and in the
3 Constitution, the Governor will never be able to or
4 should not be able to remove someone for -- you know,
5 any House or Senate member for activities even
6 preceding their activities in the chamber.
7 CHAIRMAN DOUGLASS: And this wouldn't do that, as
8 I understand it. And not only wouldn't, it can't
9 under the separation of powers doctrine.
10 COMMISSIONER SUNDBERG: Right, correct. But I
11 wasn't sure that you were including in there they have
12 the abilities to seat or not seat.
13 CHAIRMAN DOUGLASS: You're absolutely right, they
14 don't have to expel, they can just say, We are not
15 going to take you in the first place and you never get
16 seated. And probably this type thing, you are right,
17 would probably come up in that manner unless it was
18 discovered after he was seated. Commissioner
19 Barkdull.
20 COMMISSIONER BARKDULL: I want to be heard as an
21 opponent.
22 CHAIRMAN DOUGLASS: All right. Are there any
23 more proponents who want to address this? If not,
24 Commissioner Barkdull, you are recognized as an
25 opponent.
42
1 COMMISSIONER BARKDULL: Mr. Chairman, Members of
2 the Commission, I support the proposition generally
3 that people ought to obey the law and the election
4 laws, but I don't think this is going to cure what the
5 proponents want to do and it is going to raise a
6 problem which history teaches us can occur.
7 We had a change in Governors here about 40 years
8 ago and the Governor that came in wiped out every one
9 of the previous appointees because of misfeasance or
10 nonfeasance in office.
11 And it then was submitted to the Senate, the next
12 one of their occasions that they met. Now, the
13 Governor when he does that doesn't necessarily have to
14 cite the grounds. All he did was just say that they
15 weren't doing their jobs and he removed every one of
16 them, the Road Board and the Regents and everything
17 else. That was Governor Johns.
18 And what you are doing here is giving the Chief
19 Executive the power by simply executing an executive
20 order to remove people that have been elected to
21 office.
22 CHAIRMAN DOUGLASS: Suspend.
23 COMMISSIONER BARKDULL: Suspend. Well, they will
24 not be able to function in their office until the
25 Senate takes it up.
43
1 CHAIRMAN DOUGLASS: That's correct, but he can't
2 remove them.
3 COMMISSIONER BARKDULL: You suspend them, the
4 Senate is the only one that can remove them. The
5 first place, as I pointed out, malfeasance and
6 misfeasance relates to something in an office. As
7 candidates, they are in an official office. And I
8 think this will not -- I think it opens the door. For
9 instance, you could get some Governors that have
10 exercised some arbitrary power every now and then. I
11 realize it doesn't happen often.
12 But if they didn't like a particular person that
13 was elected for one reason or another, they could
14 suspend them immediately and they don't -- the
15 candidates have been elected under this, as I
16 understand the way this proposal is supposed to
17 operate, then the Governor immediately has power once
18 they are seated to suspend them without any hearing
19 until they get to the Senate.
20 I think you are creating a very dangerous
21 situation.
22 CHAIRMAN DOUGLASS: Commissioner Scott as an
23 opponent.
24 COMMISSIONER SCOTT: I had a race one time
25 where --
44
1 CHAIRMAN DOUGLASS: I wonder if you-all would pay
2 attention, I think it is an important issue.
3 COMMISSIONER SCOTT: I had a race one time where
4 my opponent took great liberty with the truth. Among
5 other things, he said that I was a member of the John
6 Birch Society. My wife went to a large function with
7 a lot of Jewish constituents and someone said that to
8 her. And she said, John Birch, is he from New Jersey?
9 But in any event -- and at one point, you know,
10 you do reach a point with this where I basically used
11 my best New York accent and said, at a large gathering
12 in English and Hebrew, susichripsnach (phonetic), and
13 I can't say it any more, but it meant that he was a
14 liar, you know.
15 So I suppose, technically, if I were elected to
16 the county -- you know, whatever offices this covered,
17 that the Governor could suspend me, if I had said he
18 was a liar and somehow somebody said, Well, he really
19 wasn't a liar, or something like that.
20 I just think that the precedent of carrying over
21 from conduct as a candidate to people in office -- I
22 mean, we have had some rip-roaring campaigns where
23 people have said and did whatever, and I just think
24 that that's not -- I mean you have got an Elections
25 Commission, you have got other ways, and to put that
45
1 in the Constitution -- first of all, I don't know that
2 it is constitutional, I mean, under the Federal
3 Constitution.
4 I just don't think it is a good idea. It is one
5 of the very few ideas that Commissioner Freiden has
6 had that I didn't think was the greatest one. So, I
7 would urge that we don't do this.
8 CHAIRMAN DOUGLASS: Commissioner Brochin, does it
9 violate the First Amendment?
10 COMMISSIONER BROCHIN: I think it has got
11 problems, yes.
12 CHAIRMAN DOUGLASS: I knew you were pretty versed
13 in that area.
14 COMMISSIONER BROCHIN: Well, I want to join in in
15 the opposition. Although I think it is very well
16 intended, I agree with Commissioner Scott and
17 Commissioner Barkdull that this goes beyond, I think,
18 the intent in terms of trying to make fair campaigns.
19 The problem is simply the First Amendment, if you
20 consider that a problem. But the First Amendment
21 highly protects political speech, so to allow a
22 Governor to suspend immediately upon somebody's
23 election for actions dealing with political speech,
24 which essentially would be because of terms known as
25 misfeasance or malfeasance, which are broad in their
46
1 context and definition, I think overreaches. And it
2 is a good idea in terms of trying to get at it, and it
3 is a very, very difficult subject to get at, but I
4 don't think this is the way to do it.
5 CHAIRMAN DOUGLASS: Commissioner Sundberg.
6 COMMISSIONER SUNDBERG: I too must speak in
7 opposition. I believe Commissioner Barkdull is
8 absolutely correct. I think misfeasance and
9 malfeasance, while well-defined, are terms of art that
10 relate only to acts by people in office and not to
11 those.
12 So, if you wanted to do this you would have to
13 say malfeasance or misfeasance while in office, and
14 then describe conduct by people who were candidates
15 because I just don't think that that definition will
16 get you where you need to be and I think that
17 introduces confusion. Moreover I agree with
18 Commissioner Brochin, I think you have some very, very
19 serious First Amendment problems with this.
20 I mean, time and again the courts have said that
21 political speech is supposed to be very robust and it
22 is hard to draw the line between that which is
23 permissible and it could conceivably have a chilling
24 effect, so I must oppose it.
25 CHAIRMAN DOUGLASS: Commissioner Nabors.
47
1 COMMISSIONER NABORS: I add to the reasons why I
2 oppose this, in addition to the others, is this is
3 classically an area that needs legislative thought.
4 We are dealing with these words of art and these types
5 of interrelationships between free speech, public
6 office and the power of the Governor. It is a classic
7 thing that we need legislation on, not constitutional
8 amendments or we may have a misintended consequence.
9 CHAIRMAN DOUGLASS: Don't you have a statute now
10 that allows people to be kept out of office if they do
11 certain things, Commissioner Brochin, are you familiar
12 with that?
13 COMMISSIONER BROCHIN: The Governor has certainly
14 powers to suspend for misfeasance and malfeasance,
15 neglect of duty, I think drunkenness is cited in
16 there, and other reasons. But as Commissioner
17 Sundberg pointed out, those terms deal directly with
18 while they are in office, and there is no statute that
19 I know of at least that deals with the ability to
20 suspend for activity or conduct prior to being seated
21 for office.
22 CHAIRMAN DOUGLASS: Commissioner Rundle, you are
23 blocked out by the supporters, the general counsel.
24 COMMISSIONER RUNDLE: They are very good
25 blockers.
48
1 CHAIRMAN DOUGLASS: Right, they are experts.
2 COMMISSIONER RUNDLE: You know, I have been in
3 discussion and I have listened to what my colleagues
4 have said and I must admit that I too and many are now
5 of the opinion that it does not really accomplish what
6 we were trying to accomplish. And we did try to do
7 what Commissioner Sundberg said and we tried to list
8 out the bad acts, and what we were trying to do was to
9 give the Governor the power for -- that would extend
10 for the activities of the bad acts before they became
11 a public officer. But try as we did, I'm afraid that
12 we have failed.
13 And now the question becomes whether or not --
14 what do we do?
15 CHAIRMAN DOUGLASS: Let's vote.
16 COMMISSIONER RUNDLE: Do we withdraw this or go
17 back, or what we may want to do is go back to the
18 original one. All right, so we will withdraw.
19 CHAIRMAN DOUGLASS: You can withdraw the
20 amendment and we will be back on the Mills' amendment.
21 COMMISSIONER RUNDLE: All right. Do you want to
22 try that? Let's try that. Let's try that.
23 CHAIRMAN DOUGLASS: Let's save some time.
24 Commissioner Mills, they don't know you up there.
25 COMMISSIONER MILLS: That may be good.
49
1 Mr. Chairman, with all these good efforts we still
2 haven't quite got there. My intention would be to
3 withdraw the whole thing if we can't get these
4 scholars on something that everybody agrees to, so I
5 would propose we temporarily pass it and I'm going to
6 withdraw it at the end of the day if we can't get
7 there. Because I mean this has been --
8 CHAIRMAN DOUGLASS: The end of the day will be at
9 1:30.
10 COMMISSIONER MILLS: That's fine.
11 CHAIRMAN DOUGLASS: Okay. It won't be the end of
12 the day for the session, but it will be the end of day
13 for this. We are going to take it up at 1:30.
14 COMMISSIONER MILLS: It may already be the end of
15 the day for this.
16 CHAIRMAN DOUGLASS: I think you may be just
17 delaying the ultimate result here. All right. Now,
18 let's see, here is where we are. Commissioner Rundle
19 withdrew her amendment. Commissioner Mills has
20 withdrawn his amendment; is that correct, Commissioner
21 Mills?
22 COMMISSIONER MILLS: (Inaudible).
23 CHAIRMAN DOUGLASS: She withdrew her amendment,
24 and that leaves your amendment pending. And you want
25 to defer consideration of your amendment and the whole
50
1 thing until 1:30?
2 COMMISSIONER MILLS: Perfect.
3 CHAIRMAN DOUGLASS: Then so be it, without
4 objection. Incidentally, somebody answer this, aren't
5 judges subject to being removed from office for things
6 they committed before they took office?
7 COMMISSIONER BARKDULL: They are, and under the
8 jurisdiction of the JQC they take up items that
9 occurred prior to the time they took office. That has
10 been an amendment that was approved I think in the
11 '70s.
12 CHAIRMAN DOUGLASS: And that's still up to the
13 Supreme Court as to what action is taken, correct?
14 All right. We are now moving to Committee Substitute
15 for Proposal 64 by the Committee on Bonding and
16 Investments. And Commissioner Nabors recommended as a
17 committee substitute and approved by the Committee on
18 Bonding and Investments with a pending amendment by
19 Commissioner Henderson. First read the proposal.
20 READING CLERK: Committee Substitute for Proposal
21 64, a proposal to revise Article VII, Section 11,
22 Florida Constitution; providing for state bonds
23 pledging all or part of a dedicated state tax revenue
24 or the full faith and credit of the state for certain
25 uses as provided by general law.
51
1 CHAIRMAN DOUGLASS: All right. Now read the
2 amendment by -- which is moved by Commissioner
3 Henderson.
4 READING CLERK: By Commissioner Henderson, on
5 Page 2, Lines 10 through 21, delete those lines and
6 insert lengthy amendment.
7 CHAIRMAN DOUGLASS: Now, has the amendment been
8 distributed? This is Proposal 64 with the amendment
9 which has been distributed, and it is in the red book;
10 am I right? Yes, it is in the red book toward the
11 end. If everybody would turn to it. I'm corrected,
12 this is a pink book.
13 COMMISSIONER HENDERSON: Mr. Chairman, I am
14 trying to make it easier for you.
15 CHAIRMAN DOUGLASS: You are going to withdraw
16 your amendment, right?
17 COMMISSIONER HENDERSON: I'll be glad to. I'm
18 trying to fix your problem, Mr. Chairman.
19 CHAIRMAN DOUGLASS: Not mine, I don't have a
20 problem.
21 COMMISSIONER HENDERSON: Mr. Chairman, the
22 easiest -- the easiest place to see the amendment is
23 on Page 156 of the journal. That is where it was
24 presented yesterday and it appears in the upper
25 right-hand corner of the page in italics, that is the
52
1 language which is Amendment 1. This is yesterday's
2 Journal, Page 156, up at the top right-hand corner,
3 Committee Substitute for Proposal 64, Amendment 1 is
4 in italics.
5 CHAIRMAN DOUGLASS: And that is the amendment
6 that you are proposing and that you are now wise to
7 offer?
8 COMMISSIONER HENDERSON: That is correct. And
9 then when we complete this, I understand there is
10 another amendment on the desk, I keep wanting to say
11 Senator Crenshaw, Commissioner Crenshaw.
12 CHAIRMAN DOUGLASS: But it has not been moved; is
13 that right?
14 COMMISSIONER HENDERSON: That's right, but I am
15 just saying, that is the posture that we are in.
16 CHAIRMAN DOUGLASS: Okay. So, on Page 156 of the
17 Journal is the Amendment No. 1 which is being offered
18 by Commissioner Henderson and he rises in support.
19 COMMISSIONER HENDERSON: Thank you, Mr. Chairman
20 I'll be very brief to try to simplify this. This is
21 similar to the language which we adopted in January
22 concerning the extension of bond authority to continue
23 to allow us to purchase conservation lands.
24 The question was raised about whether or not we
25 even needed to reference the issue, the question of
53
1 the issuance of full faith and credit. So we have
2 deleted that reference from this language, which again
3 we have already adopted. So this will simplify the
4 matter, it would go to the Committee on Style and
5 Drafting and we will put all this to bed.
6 CHAIRMAN DOUGLASS: All right. Commissioner
7 Barkdull.
8 COMMISSIONER BARKDULL: Commissioner Henderson,
9 if this passes, this will substitute or replace 39?
10 COMMISSIONER HENDERSON: This is a --
11 technically, no, because they are both live. That one
12 is already in the past, we are beyond
13 reconsiderations. My representation to you is that
14 this is the one that needs to go forward, and that's
15 what we would expect the Committee on Style and
16 Drafting to do.
17 COMMISSIONER BARKDULL: That's the point that I
18 wanted to be sure, that Style and Drafting was aware
19 of, that this was to substitute for 39.
20 COMMISSIONER HENDERSON: In actuality, yes, sir.
21 COMMISSIONER BARKDULL: Thank you.
22 CHAIRMAN DOUGLASS: All right. Does everybody
23 understand -- does anybody want to debate the
24 amendment? If not, all in favor of the amendment say
25 aye. Opposed?
54
1 (Verbal vote taken.)
2 CHAIRMAN DOUGLASS: It carries. Now we are on
3 the Proposal 64 as amended. Another amendment.
4 Amendment on the desk by Commissioner Crenshaw. Would
5 you read his amendment, please?
6 READING CLERK: By Commissioner Crenshaw on
7 Page 2, Line --
8 CHAIRMAN DOUGLASS: Pay attention please, we need
9 some order in the chamber. Just a moment.
10 READING CLERK: And insert solely between payable
11 and from.
12 CHAIRMAN DOUGLASS: Read it again, please.
13 READING CLERK: By Commissioner Crenshaw, on
14 Page 2, Line 8, and insert solely between payable and
15 from.
16 CHAIRMAN DOUGLASS: Commissioner Crenshaw, you
17 are recognized on your amendment.
18 COMMISSIONER CRENSHAW: It is fairly
19 self-explanatory, it adds the word solely. What it
20 does, Commissioners, it just puts the law back the way
21 we all want it to be before we went too far the last
22 time. So now it says that if you issue these bonds,
23 the proceeds have to be payable solely from a
24 dedicated source of revenue, it takes away the whole
25 issue of the full faith and credit of the state.
55
1 CHAIRMAN DOUGLASS: All right. Do you agree to
2 that amendment, Commissioner Henderson? All in favor
3 of the amendment say aye. Opposed?
4 (Verbal vote taken.)
5 CHAIRMAN DOUGLASS: It carries. It is amended.
6 And now we are on the proposal as amended, which
7 really is the language that appears on 156 adding the
8 word solely as proposed by Commissioner Crenshaw. Is
9 everybody aware now of what we are going to vote on
10 after we debate, or is there further debate on this
11 proposal? It is also pointed out by Commissioner
12 Barkdull that this is intended to replace Proposal 39
13 which we previously passed. Commissioner Henderson.
14 COMMISSIONER HENDERSON: Mr. Chairman, in
15 response to some of the whispering questions on this
16 side of the table, I will inform the Chair that this
17 is the last conservation measure that I am going to
18 stand on on this chamber.
19 CHAIRMAN DOUGLASS: Well, the Audubon Society
20 owes you a raise, you have done extremely well, and
21 obviously this is a green body that we have here.
22 Now, without further debate, we will take this measure
23 up on final passage. Would you open the machine and
24 we will vote.
25 (Vote taken and recorded electronically.)
56
1 CHAIRMAN DOUGLASS: Has everybody voted? There
2 is one more coming. One more coming. All right.
3 Lock the machine and announce the vote.
4 READING CLERK: Twenty-six yeas, zero nays,
5 Mr. Chairman.
6 CHAIRMAN DOUGLASS: All right. We will now move
7 to Committee Substitute for Proposals 138 and 89 by
8 the Committee on Education, and Commissioners Nabors
9 and Riley, recommended as a committee substitute,
10 combined with Proposal 89 and approved by the
11 Committee on Education. Would you read it, please?
12 READING CLERK: Committee Substitute for Proposal
13 Nos. 138 and 89, a proposal to revise Article X,
14 Section 15, Florida Constitution; limiting the use of
15 State Lottery net proceeds to financing certain
16 educational facilities or funding early childhood care
17 and education programs.
18 CHAIRMAN DOUGLASS: Commissioner Riley, you are
19 recognized to present the proposal.
20 COMMISSIONER RILEY: Thank you, Mr. Chairman.
21 I'm going to give you a little bit of a history of it,
22 because we didn't have a special select committee for
23 Lottery funds. So what we did instead was to take the
24 different proposals and we have worked out a
25 compromise between three of those four proposals and
57
1 present that to you today. We heard around the state
2 about a lot of things, but we heard about the lack of
3 the correct use of Lottery funds as seen by the people
4 who voted in Lottery fund around the state. And we
5 were told that in fact Lottery funds would be used to
6 enhance education and that's not what the public has
7 seen.
8 So what we have tried to do with these proposals
9 is to put before you some very specific enhancement
10 ideas of how these Lottery funds can be used.
11 Commissioner Sundberg, Commissioner Nabors and myself
12 all had separate proposals and those have been pulled
13 together with this.
14 Commissioner Corr has a separate one which will
15 stand on its own. And also Commissioner Zack had one
16 on Lottery funds, and he is in agreement with this.
17 So I would ask your support. And Commission Nabors is
18 going to speak to the finer details.
19 CHAIRMAN DOUGLASS: Before you do that, we have
20 four amendments on the table -- three amendments on
21 the table. The first amendment is by Commissioner
22 Corr. And he has another one, and we will read
23 Commissioner Corr's first amendment. Please read it.
24 He moves this amendment incidentally.
25 READING CLERK: By Commissioner Corr, on Page 2,
58
1 Lines 1 through 4, delete those lines and insert
2 lengthy amendment.
3 CHAIRMAN DOUGLASS: Commissioner Corr on your
4 amendment.
5 COMMISSIONER CORR: Thank you, Mr. Chairman. The
6 current proposal that was worked out -- I'm sorry, I
7 just want to make sure I'm working off the right
8 proposal. Is this the one in the red book or the pink
9 book or whatever color it is?
10 CHAIRMAN DOUGLASS: It's in the pink book and it
11 is the last one in there.
12 COMMISSIONER CORR: Okay. What this amendment --
13 what this proposal would do is, speaking to the
14 proceeds of the Florida Lottery, is to allow those
15 proceeds to be used to build schools and allow the
16 proceeds to be used for early childhood education.
17 That's it. It would limit it to those two things. Is
18 that correct, Mr. Nabors? I'll put that in the form
19 of a question.
20 CHAIRMAN DOUGLASS: It is not the last one in
21 there, but it is about fourth from the last.
22 COMMISSIONER NABORS: The current proposal, and
23 basically the substitute which we have agreed upon
24 which will be taken up, basically allows three uses of
25 Lottery proceeds. One is it recognizes the current
59
1 use the Legislature decided to finance public schools.
2 Secondly, it recognized the Legislature's
3 commitment existing to pre-kindergarten programs to
4 the tune of about $107 million. But then it says that
5 any additional monies would be used to either
6 establish new programs in early childhood education or
7 enhance funding levels of those that are in existence.
8 And so that's the uses that the amendment addresses.
9 COMMISSIONER CORR: All right, thank you,
10 Commissioner Nabors. So please listen carefully.
11 What has happened here, the proposal that follows
12 this, the proposal that I worked out and was passed by
13 the Committee of Education talks about some of these
14 proceeds going directly to school advisory councils.
15 That is what this amendment does.
16 What this amendment would do is take out the
17 ability for Lottery proceeds to be used to finance the
18 building of public schools. Now, we heard in every
19 public hearing, everybody that's ever served in an
20 elected office has heard since 1986 that voters are
21 upset about the fact that Lottery proceeds have not
22 been used to enhance education fully. We could argue
23 that it has been used to enhance education somewhat
24 but never probably to the degree to what was promised
25 when it was originally placed on the ballot in 1986.
60
1 Today about $2 million is raised by the Lottery,
2 at least in 1987. More than half of that goes to
3 proceeds -- I mean to prizes. It also goes to fund
4 the administration of the Lottery. What finally
5 happens is about 36 percent of the proceeds goes to
6 education.
7 You can argue that all of the way the money is
8 being used is good, it is used for scholarships, it is
9 used to help bond and build schools, it is used to
10 distribute -- a small percentage actually goes to
11 school districts. But the question of whether
12 enhancement is really taking place, obviously we have
13 heard that 100 million times, is debatable.
14 What we will do with this proposal is move in the
15 right direction of pure enhancement with the early
16 childhood programs. I would argue that that is
17 enhancement of the current education system and we
18 ought to leave that in place. But if we put in here
19 that we are going to build schools with Lottery
20 proceeds, I think that flies directly in the face of
21 what the original proposal was all about and it
22 subjects this to defeat. What we are going to do is
23 go right back to the ballot and tell people that
24 building schools is not the responsibility of the
25 state already, that building schools is an
61
1 enhancement. Well, that's not true. Building schools
2 has got to be the responsibility of the Legislature
3 with or without the Lottery.
4 So what this proposal would do is take that out,
5 it would not allow Lottery proceeds to be used -- to
6 be bonded to build public schools, but what it would
7 do is allow Lottery proceeds to go directly to school
8 advisory councils. Since the Lottery was passed, the
9 state passed Blueprint 2000 legislation in 1980, '91,
10 somewhere thereabouts, and it set up local-based
11 school advisory councils made up of parents and
12 teachers that happen at every school around the state
13 now that recommend to the Commissioner of Education
14 enhancements to their schools.
15 The best place to hand this extra money if you
16 want to really enhance education is right to the
17 parents of the individual school. Every school is
18 different. Every school has different needs for
19 enhancement. Some may need to build new facilities,
20 some may need to buy computers, some may want to spend
21 money to buy football helmets, whatever it is, the
22 enhancement ought to be decided by the teachers and
23 the parents at the individual school.
24 So what this proposal would do is allow the money
25 to be distributed directly to school advisory
62
1 councils. It will bypass the bureaucracy, bypass the
2 Department of Education and go directly to parents and
3 teachers in the individual schools themselves. This
4 is the right way to enhance the Lottery.
5 CHAIRMAN DOUGLASS: Commissioner Barkdull.
6 COMMISSIONER BARKDULL: Question of Commissioner
7 Corr. Commissioner Corr, where is the definition of
8 the advisory council found?
9 COMMISSIONER CORR: It is found in the original
10 Blueprint 2000 legislation, so it is found in Florida
11 Statute.
12 COMMISSIONER BARKDULL: It is not in the
13 Constitution?
14 COMMISSIONER CORR: No, sir.
15 COMMISSIONER BARKDULL: I don't think this is
16 appropriate language to do what you want to do. You
17 are referring to some body that is not established in
18 the Constitution, it is only established by the
19 Legislature and they can turn around and abolish it
20 tomorrow.
21 COMMISSIONER CORR: What this does is allow it to
22 be used for school advisory councils as defined by the
23 Legislature's general law. If the Legislature decides
24 not to do that, that's fine, they can decide not to do
25 it today as well.
63
1 COMMISSIONER BARKDULL: I don't understand the
2 Constitution speaking to a body that is not created.
3 COMMISSIONER CORR: Currently in law exist school
4 advisory councils.
5 COMMISSIONER BARKDULL: I don't understand the
6 Constitution to understand it that you have got to
7 refer to statutes.
8 COMMISSIONER CORR: I'm not sure that matters.
9 What I think, what this does is allow that money to be
10 used to be funded directly to school advisory councils
11 as long as they exist. The Legislature can -- what
12 this does is tell the Legislature it can't be used for
13 any other things other than early childhood
14 development and the fund -- direct funding to school
15 advisory councils for enhancement.
16 CHAIRMAN DOUGLASS: Commissioner Corr, what you
17 are trying to do as I understand it is just strike at
18 the part that allows the use of Lottery funds to issue
19 bonds or build schools or renovate them?
20 COMMISSIONER CORR: That's correct.
21 CHAIRMAN DOUGLASS: That's your main goal?
22 COMMISSIONER CORR: No, that's not my main goal
23 at all. There are two things. One is to strike that.
24 The other is to allow Lottery proceeds to be
25 distributed directly to school advisory councils for
64
1 enhancements.
2 CHAIRMAN DOUGLASS: All right. And that was the
3 question that was posed to you by Commissioner
4 Barkdull, as to the propriety of doing that is what
5 you were responding to?
6 COMMISSIONER CORR: Yes, sir. And that passed
7 the Committee on Education. And I'm not sure why it
8 wasn't included in this sort of joint proposal, but it
9 was something that received favorable vote, and it is
10 also a proposal that stands on its own that we will
11 hear later today.
12 CHAIRMAN DOUGLASS: All right. Commissioner
13 Smith was up next.
14 COMMISSIONER SMITH: Thank you. Commissioner
15 Corr, I am very, very sympathetic to what you are
16 trying to do because I too feel that we need to try to
17 get in the local level with the parents and the
18 teachers, they know best. My concern is the
19 accountability for the money, for these groups who may
20 or may not have any experience whatsoever in handling
21 money, especially if you are talking about millions
22 and millions of dollars.
23 When you thought about it, I'm sure -- it's
24 obvious that I thought through this process and you
25 came up with advisory councils. We are all concerned
65
1 about the accountability of the month to these parents
2 and teachers who I'm sure have never handled millions
3 and millions of dollars. Maybe they had like, you
4 know, raised a little money to send the football team
5 off to the state championship, which is what mine did,
6 so did you consider that and do you have a comfort
7 level for the people that will be a little concerned
8 about the money being accounted for.
9 COMMISSIONER CORR: Thank you. Commissioner
10 Smith, I do have a comfort level for a few reasons.
11 Number one is the Legislature already directs money
12 directly to school advisory councils. They are
13 already letting school advisory councils make
14 financial decisions to enhance their own institutions.
15 The second reason I have comfort with it is because I
16 trust parents and teachers to do what's right for the
17 school. Nothing is more sacred to any of us.
18 We have heard it many times on this floor, than
19 the education of our children. And I think when they
20 get that money to be used for enhancements they are
21 going to use it right, they are going to decide what
22 their school needs on an individual basis and they are
23 going to use it right. I have trust in that.
24 The third reason is probably the weakest, but in
25 terms of accountability, this is the Lottery and it
66
1 was designed for enhancement. We could take the
2 proceeds from the Lottery and flush them down the
3 toilet and we still ought to be funding public schools
4 to a maximum level in the State of Florida. So
5 accountability or not, this is enhancement dollars.
6 You know, last year there was 821 million after
7 prizes and administration. That ought to go to the
8 teachers and parents and they ought to use it to
9 enhance their schools. If some of them waste a little
10 bit of it, well, it won't be the first time in state
11 government that money was wasted. I'll bet it is
12 going to be wasted less by those individuals right in
13 their local classrooms.
14 CHAIRMAN DOUGLASS: Commissioner Rundle.
15 COMMISSIONER RUNDLE: Question, Commissioner
16 Corr. I too am very sympathetic to your proposition
17 and what it is you are trying to accomplish. My
18 concern is if you wanted to put your skeptic's hat on,
19 are you not concerned that the Legislature could
20 abolish these advisory school councils, advisory
21 boards rather, and then allow them the control to deal
22 with these Lottery monies; and how do we prevent that?
23 COMMISSIONER CORR: Well, first of all, if this
24 amendment passed, the Legislature could do away with
25 school advisory councils but at that point the only
67
1 place they could -- the only way they could spend
2 money is on early childhood programs because it will
3 say that right in the Constitution.
4 So, if they do away with school advisory
5 councils, they can't distribute those lottery proceeds
6 anywhere else other than early childhood education.
7 There is no reason for the Legislature to ever do away
8 with those school advisory councils that provide input
9 back to them for what's best for their school. And it
10 is also -- will be now, under this proposal, the place
11 that Lottery enhancements end up being spent.
12 So that's a valid issue. But they would be
13 limited in the Constitution from spending the money
14 anywhere else if they did that, other than early
15 childhood programs.
16 CHAIRMAN DOUGLASS: Commissioner Riley.
17 COMMISSIONER RILEY: Mr. Chairman, I have an
18 amendment to Commissioner Corr's amendment. And
19 perhaps if we could TP this issue for a short bit of
20 time we can work that out and come to a total
21 agreement. What I would --
22 CHAIRMAN DOUGLASS: Is it on the table?
23 COMMISSIONER RILEY: They are preparing it.
24 CHAIRMAN DOUGLASS: We have got three others, or
25 two others.
68
1 COMMISSIONER CORR: Can I inquire what the nature
2 of the amendment is?
3 COMMISSIONER RILEY: What I would like to do is
4 add back in the financing and refinancing portion and
5 to leave in the student advisory council section, but
6 add to that "as defined by general law" which takes
7 care of Commissioner Barkdull's -- does it not? Well,
8 whatever words would take care of that problem.
9 CHAIRMAN DOUGLASS: What you are asking to do is
10 to TP 138 and 89 as we are now on and 118 which is the
11 subject matter of what he is doing here, and allow you
12 an opportunity to work on this and bring it back up
13 today; is that right?
14 COMMISSIONER RILEY: In addition, it would be
15 143, which is Commissioner Sundberg's Lottery fund
16 proposal which is part of this, and Commissioner
17 Zack's proposal 54, which also deals with Lottery fund
18 use, and all of those would be wrapped into this one
19 proposal.
20 CHAIRMAN DOUGLASS: I'll tell you what, we have
21 had a lot of meetings on this. If we start taking a
22 recess every time somebody can't agree on an
23 amendment, you can vote this one down and offer your
24 own if you don't like it. Commissioner Crenshaw?
25 COMMISSIONER CRENSHAW: Mr. Chairman, I have an
69
1 amendment that if I offer I think will frame the issue
2 and then we can kind of discuss it, and if it passes,
3 all this stuff will kind of take a backseat. I would
4 propose, and I'd like to offer that amendment right
5 now as a substitute.
6 CHAIRMAN DOUGLASS: Can you wait just a minute?
7 The Secretary informs me the best way to do this is TP
8 Commissioner Corr's amendment and move to the next
9 amendment and then you can file your amendment and put
10 it on the table and it will come in order.
11 COMMISSIONER CRENSHAW: What, Mr. Chairman, what
12 my amendment does is basically say we are not going to
13 decide as a commission that we are going to supersede
14 the Legislature. I think we have a debate on that and
15 we decide, if that's not the philosophy, then we can
16 talk about how you want to spend it. But if we decide
17 the philosophy is we are not going to tell them how to
18 spend it, then we will get rid of this issue.
19 CHAIRMAN DOUGLASS: Just offer yours as an
20 amendment and then we will -- is it on the table?
21 COMMISSIONER BARKDULL: It is on the desk.
22 Everybody has got it.
23 CHAIRMAN DOUGLASS: Everybody has got it, all
24 right. We are going to TP the Corr amendment and the
25 other amendments, and at this time we are going to
70
1 move to Commissioner Crenshaw's amendment which is on
2 the table. Would you read it?
3 READING CLERK: By Commissioner Crenshaw, on
4 Page 1, Lines 27 through 30 and Page 2, Lines 1
5 through 16, delete and insert lengthy amendment.
6 CHAIRMAN DOUGLASS: Commissioner Crenshaw, tell
7 us what that does.
8 COMMISSIONER CRENSHAW: Well, you've got to read
9 what it inserts and basically it just says this,
10 Commissioners, it says the net proceeds derived from
11 the Lottery shall be used to support improvements in
12 public education and such proceeds shall not be used
13 as a substitute for existing resources for public
14 education.
15 And the reason I offer that, Mr. Chairman, is so
16 we can decide as a body on whether we want to take the
17 place of the Legislature and decide how we ought to
18 spend the money and write that in the Constitution, or
19 we can simply say, as this amendment proposes, that we
20 are going to use the money for education. Because if
21 you read the Constitution, the amendment that was
22 passed in 1986 by 86 percent of the people didn't say
23 the money had to go to education, but everybody felt
24 like it did, and for the last 12 years every year it
25 has gone for education.
71
1 And so what this simply does is write into the
2 Constitution -- I have been moved by some of the
3 people who talk about aspirational language, this is
4 aspirational language. It says once and for all, when
5 somebody says, A, is this enhancing or is this being
6 substituted, you can all go back and point to the
7 Constitution and say, It says in the Florida
8 Constitution that this money goes to education, it
9 goes to enhance education, and you can't use it to
10 substitute other monies.
11 Now, if you believe that you will vote for this
12 amendment, and, frankly, I don't see how you cannot
13 vote for that because that's what everybody believes.
14 And once you do that, then you can later on decide if
15 you want to tell the Legislature how to spend their
16 money, that's your business. And that's what these
17 proposals do.
18 And I can tell you from a perspective of history,
19 over the years there have been raging debates about
20 how to spend the money. When the Lottery was first
21 adopted in 1987 I thought the best thing to do would
22 be put the money in the bank, wait until the end of
23 the year and say at the end of the year, Here is some
24 money we would not have had if we didn't have a
25 Lottery.
72
1 And that first year was $315 million, and then we
2 could say to the people of Florida, Look, we have a
3 Lottery, we have got $315 million, let's decide how we
4 are going to spend it. And you could all see, maybe
5 we buy a school bus, maybe we build a new building,
6 whatever it is, people could see, in my view, a great
7 public relations tool. That's the way I think we
8 should have done it.
9 But I was a freshman Senator at the time and I
10 had just chaired the Lottery committee and had spent a
11 year and a half writing the law, and they said, That
12 is a good law, but $315 million, we will spend that
13 the way we want to spend it, and it was spent. And
14 that's been the raging debate for the last 12 years.
15 And every year people say, Are they enhancing
16 education, are they not enhancing education. This
17 says that once you draw it into the Constitution, it
18 is going to enhance education and it is not going to
19 be used to substitute existing funds, it is as simple
20 as that.
21 CHAIRMAN DOUGLASS: All right. So, as I
22 understand it, you are proposing that to be in the
23 first part of the amendment that says the net proceeds
24 are going to be used to enhance education; is that
25 right?
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1 COMMISSIONER CRENSHAW: Well, actually what I was
2 going to do, Mr. Chairman, was offer that as a
3 substitute and then all of the other amendments would
4 go away, but -- so right now we are on this amendment.
5 If we adopt it, that's going to be part of the
6 Constitution. You can still proceed with these other
7 provisions and decide how you want to spend it if
8 that's the will. But I think to start with, this
9 settles that issue once and for all.
10 CHAIRMAN DOUGLASS: You are not trying to address
11 deleting these other items at this point, you are just
12 making sure that the statement is that it is going to
13 be used?
14 COMMISSIONER CRENSHAW: Now I'm deleting -- if
15 you adopt this amendment, you will do away with where
16 you spend the money. Somebody can come back and amend
17 that to do that, but my amendment will do away with
18 where you spend the money and just simply say the
19 language.
20 CHAIRMAN DOUGLASS: You are then moving --
21 COMMISSIONER CRENSHAW: It strikes all of the
22 other language in your 138 book.
23 CHAIRMAN DOUGLASS: Okay. So what's on Page 2
24 would be struck in your amendment. And then what you
25 are saying is you can revisit that if we adopt your
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1 amendment; is that right?
2 COMMISSIONER CRENSHAW: That's right.
3 CHAIRMAN DOUGLASS: Okay. Does everybody
4 understand that? Commission Jennings.
5 COMMMISSIONER JENNINGS: Question of Commissioner
6 Crenshaw, and it is more to get some dialogue so we
7 can share this with the body I think. Commissioner
8 Crenshaw you know during our special session we just
9 appropriated a portion of the revenues from the
10 Lottery to support the bonds for the next 20 years for
11 school construction.
12 I think if your amendment would pass, and the
13 issue should pass on the ballot, we would then have
14 some problem with our bond collateral. Since this is
15 sort of your business, would you explain to me if
16 there is something we need to be concerned about, or
17 could we just go find some other revenue source to
18 collateralize the bonds?
19 COMMISSIONER CRENSHAW: As I understand --
20 COMMISSIONER JENNINGS: And the only reason I'm
21 asking that is because there are those who would
22 define the fact that school construction and the
23 building of schools is not an enhancement to education
24 because that is a responsibility -- we had that debate
25 as well, that is a responsibility of the state and the
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1 local school system to build these schools.
2 So, just because we are building more schools
3 isn't an enhancement, that's our original
4 responsibility. So I'm concerned that it gets into
5 the issue of your nomenclature about used a substitute
6 for existing resources when we should be using
7 existing money to build schools.
8 COMMISSIONER CRENSHAW: I don't think you need to
9 be concerned about that because actually, I have a
10 confession to make, the language that's in my
11 amendment was taken from the statute that is in the
12 book up there. So, if you did something bad this year
13 in violation of the statute, then you have already
14 done that.
15 But I don't think that has anything to do with
16 it. This is what we have all believed all along, that
17 the Lottery money went to enhance education. And
18 spending it on financing of bonds certainly falls in
19 that category, it enhances education. Simple as that,
20 Senator Jennings, you need not fear.
21 COMMISSIONER JENNINGS: Well, Commissioner,
22 Mr. Chairman and Commissioners, I would not fear if
23 you tell me not to, but I fear anyway, just because.
24 I think Commissioner Crenshaw is headed where all of
25 us were headed, that we want to restore the public's
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1 faith in the Lottery and where it's going. And
2 actually that's exactly what the Legislature has tried
3 to do for the last couple of years. And since I have
4 the floor I'll just kind of talk a little bit.
5 CHAIRMAN DOUGLASS: You just keep on, you have
6 the privilege of the floor.
7 COMMISSIONER JENNINGS: Well, then you won't have
8 to listen to me again. And I'll make a couple of
9 points because they are probably as cogent to this as
10 they would be to the argument of the amendment or the
11 issue as a whole.
12 What we have got is a situation of money that we
13 have already obligated out of the Lottery. We had $75
14 million to the Bright Futures scholarships that we
15 have already obligated. That was a new program this
16 year, dedicated and replaced with general revenue, I
17 mean, when we took it from other places, we replaced
18 it with general revenue, $75 million for Bright
19 Futures scholarships that just started this year.
20 We had the money that we have utilized for the
21 bonding of the additional classroom space for the next
22 20 years. We have the pre-K programs that are
23 currently in existence that were an enhancement. The
24 pre-K programs were not here before the Lottery. We
25 used Lottery dollars to fund them.
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1 And the issue of readiness is one that I am
2 extremely committed to doing, as I shared with
3 Commissioner Nabors, serving on the Governor's
4 Commission on Education, they are running a
5 subcommittee which is chaired by David Lawrence of the
6 Miami Herald who, if you watched the tape, was one of
7 the presenters about this issue. And he came to us,
8 and I am convinced that that's exactly where we change
9 what's happening with our young people today, and it
10 is in those early years of stimulation.
11 The Senate is working on that at the moment. I
12 mean, we have a major readiness initiative, but again,
13 it is going to be a legislative statutory initiative,
14 not one in the Constitution. And then, by the way,
15 when we get ready to dedicate these funding sources
16 someplace, we have $454 million today that goes to our
17 public school system, K through 12, our university
18 system, and our community college system.
19 So, when we get ready to determine that we are
20 going to do these other things, I want you-all to
21 think in terms of the fact that in the year 2000, or
22 when this goes into effect, it is on the '98 ballot,
23 that the Legislature will be back here looking for at
24 least $454 million to put back into education that I
25 can tell you at this point I have no idea, other than
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1 new taxes, where we go get that money that's currently
2 there in education right now working in those school
3 systems every day.
4 So I am committed to the fact that we need to
5 continue to make sure these dollars keep going to
6 education, that they try to enhance the public school
7 system, that they don't supplant dollars that we
8 should be putting there.
9 But, again, I guess I ask that you go back to our
10 original premise that we started with back in June
11 when we were here together, is this where we want it?
12 Is the Constitution where we want to designate exactly
13 where all of the Lottery dollars go? And you-all may
14 agree that it is. I have some concerns that it is the
15 place.
16 And I think I would perhaps appreciate and
17 support Senator Crenshaw's amendment more than the
18 original bill just because it gives some latitude. I
19 have some concerns about that, so I've given you the
20 50 cents tour all at one time.
21 CHAIRMAN DOUGLASS: And you speak then as a
22 proponent of Commissioner Crenshaw's amendment?
23 COMMISSIONER JENNINGS: Um --
24 CHAIRMAN DOUGLASS: Well, I'm asking a question.
25 COMMISSIONER JENNINGS: Shall we say,
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1 Mr. Chairman, I think it at least gives us more
2 latitude as we go forward than the original proposal
3 will.
4 CHAIRMAN DOUGLASS: So can I say you are for it?
5 COMMISSIONER JENNINGS: Out of deference, say I
6 like it better than the original proposal. How about
7 that?
8 CHAIRMAN DOUGLASS: Well, when you vote we'll
9 find out. Commissioner -- the Secretary told me to
10 leave you alone. She's got a lot of power with me
11 too. Commissioner Thompson.
12 COMMISSIONER THOMPSON: I just wanted to ask her
13 a question or two about it.
14 CHAIRMAN DOUGLASS: He doesn't have to leave you
15 alone.
16 COMMISSIONER THOMPSON: I am in the middle of the
17 same struggle, and I certainly like
18 Commissioner Crenshaw's idea better than I do anything
19 that we have seen on the table at this point. But I
20 do question, and I think that's what you are saying,
21 is your question, what does it mean as a substitute
22 for existing sources. Does that mean that you take
23 all of the money that's spent on education right now,
24 or whenever this is effective, and then you take away
25 the Lottery dollars that are involved there, and then
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1 whatever comes in next year as Lottery dollars, you
2 stack it on top of that; is that your understanding?
3 I mean, what is the understanding? This doesn't
4 look too refined to me to go in the Constitution. I
5 understand it's somewhat conceptual, but I am a little
6 worried about putting this in the Constitution when I
7 don't understand what it means and it sounds like you
8 don't understand everything that it means.
9 COMMISSIONER JENNINGS: Well, Commissioner
10 Thompson, that's part of my problem too and that's why
11 I was sort of wanting to get a dialogue with
12 Commissioner Crenshaw to at least get us thinking
13 about where we were headed with this. Because, in
14 fact, I am not sure what he means. I know what he
15 intends to do, and I think that's what we are
16 intending to do by focusing on the fact that we would
17 like some language in the Constitution as it deals
18 with the Lottery and a commitment to education.
19 CHAIRMAN DOUGLASS: Commissioner Mills, question.
20 COMMISSIONER MILLS: I think this may be a
21 question for Commissioner Crenshaw. It seems to me,
22 from what I understand, what Commissioner Jennings
23 said, that there is a certain amount of this money
24 dedicated to the basic funding of the Florida
25 Educational Finance Program; is that correct? Is that
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1 true?
2 CHAIRMAN DOUGLASS: Commissioner Jennings.
3 COMMISSIONER JENNINGS: I'm using our staff
4 analysis here, and it may not be dedicated to the
5 FEFP, but it's going into the school districts. And
6 232 million is going to the local school districts in
7 their discretion, they can use it for whatever.
8 And the same thing, 109 million is going to the
9 community college system, 88 million to the state
10 university system, another 23 million for specific
11 operations of IFAS at USF and at the University of
12 Florida, and then another 2.5 million for
13 performance-based incentives at the community college.
14 COMMISSIONER MILLS: It seems to me, if I were to
15 have to interpret this, that all of those things would
16 have to be replaced.
17 COMMISSIONER JENNINGS: Right.
18 COMMISSIONER MILLS: And that means, I think,
19 basically what Commissioner Thompson and Commissioner
20 Jennings said, that this would create about a
21 $400 million hole in education funding that would have
22 to be funded by general revenue because this, as I
23 read it, would prohibit it being funded by the
24 Lottery.
25 Now, having said that, the footnote to this whole
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1 Lottery thing is, having been involved in this
2 education issue, there is no single issue that's made
3 the public as angry as the Lottery. The Lottery and
4 its expenditure has been equivalent to fraud to the
5 public. I was in the Legislature when it passed and I
6 don't claim innocence, but I think that what has
7 happened in the area of the Lottery is clearly a major
8 public irritant.
9 It is -- the Lottery is in the Constitution. If
10 we are going to try to fix it, a couple of comments
11 from Commissioner Jennings is very relevant. I mean
12 the Legislature has obligated itself for 20 years for
13 school construction. I think anything that we do that
14 would impair that would be a problem, in some way. If
15 we want to decide how to spend it, that may be a
16 problem.
17 But we have to decide, as a matter of policy, if
18 we are going to try to decide on how to spend it, and
19 if it's supplemental, it's going to create a hole.
20 That has to be considered, though, an admission of
21 guilt that, in fact, the Lottery has not been spent
22 for supplemental purposes.
23 And I think over the course of the last eight
24 years or so, the basic, what everybody understands is
25 the basic level of funding, that is the Florida
83
1 Educational Finance Program, I think, was 4 or 5
2 million. The Lottery has gone for basic funding of
3 schools. That's why the public is mad.
4 Now, we can decide here to try to remedy that.
5 But if we are going to try to do that, I think that
6 both Commissioners Thompson and Jennings are right, it
7 is a significant financial issue. If you say it is as
8 a matter of constitutional mandate that you can't
9 spend it, it is -- I mean, we have to treat it
10 intellectually as a $400 million issue.
11 CHAIRMAN DOUGLASS: Commissioner Mills, history
12 doesn't do any good in these matters, but when this
13 was argued in the Supreme Court before it went on the
14 ballot, I had the great privilege of arguing, even
15 though I voted against the Lottery, for the Lottery
16 being put on the ballot, as the lawyer for Flamingo or
17 whoever they were.
18 And it was stated by me, in oral argument,
19 exactly what you said, that this amendment does not
20 guarantee that this money will go into education, what
21 it guarantees is that we'll get this amount of money
22 which we want to go into education, but it's up to the
23 Legislature as to how they appropriate the general
24 revenue. The court, in its opinion, said that. And
25 it said the ballot language was clear on that. The
84
1 argument against it was the ballot language led you to
2 the impression that all of it was going into the
3 Lottery.
4 And, of course, what happened was exactly what
5 was predicted in the court opinion; that the
6 Legislature chose to use the Lottery funds to make up
7 what would normally have been in general revenue. And
8 that was not a partisan matter at all, everybody from
9 every party in the Legislature joined in that.
10 So, where we are today, as I understand it, they
11 are trying to remedy what couldn't be done under the
12 single subject rule on the initiative, which was to
13 make it dedicated, the funds, that could not be used
14 to offset other appropriations. What you are pointing
15 out is when we do that, there's a $400 million hole
16 that's built up over the years which nobody can really
17 blame anybody for, because it was done pretty much
18 because they had to do it or raise taxes, which they
19 couldn't do.
20 And so consequently, what this group was saying,
21 let's now dedicate the funds for the Lottery and make
22 it clear not to use them over here, creating a
23 $400 million hole in the general revenue. But they
24 pointed out on that tape, which Commissioner Jennings
25 pointed out, that's not quite right, because what they
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1 have dedicated here, a portion of this would take up
2 some funds that are in general revenue. So, it's not
3 the total amount. Now, am I correct on my explanation
4 of the tape, Commissioner Jennings? Did everybody
5 look at the tape? You know, it was sent to us. I'm
6 sure you did.
7 Okay. Now, we are on the amendment. And,
8 Commissioner Corr, you and Commissioner Nabors here
9 are in my line of sight. Who was up first? Okay,
10 Commissioner Nabors.
11 COMMISSIONER NABORS: Let me draft the amendment
12 to Commissioner Crenshaw. I think we have really got
13 to listen carefully on this and put in perspective,
14 and I will take the language that Commissioner Mills
15 used, that the general public feels like the Lottery
16 has been a fraud on them because they felt that when
17 they voted for the Lottery they were enhancing
18 education in some manner.
19 I've been involved, as I know Commissioner
20 Crenshaw has in the last 10 years, in trying to figure
21 out how to rewrite in the law something to guarantee
22 what the people thought they voted on they got. I
23 think this is a sincere attempt by you to do that.
24 But let me tell you what the problem with this
25 language is. There are two problems with this
86
1 language.
2 One is, if it creates the fraud of the past -- if
3 it cures the fraud of the past by saying all future
4 money has to be supplemental funds, then you have a
5 $400 million hole under this proposal or under the
6 proposal that is a consensus proposal. Because you
7 have $400 million or so that's being used for things
8 that would not fit the definition of this proposal or
9 the proposal that is a consensus proposal.
10 So, you have the fraud of the past, which is
11 going to create the $400 million hole no matter what
12 you do. In addition to that, we have got a debate
13 that happened last year, whether you agree with it or
14 not, there was a fair debate in the Legislature
15 process as to whether or not the financing of public
16 schools was enhancement or not. That debate carried
17 the day. That was a debate that occurred, and most
18 people accepted that.
19 So, the problem is on Commissioner Crenshaw's, I
20 think, as the ugly word, bond lawyer, you do have a
21 problem with your bonds that are outstanding by the
22 fact that you now have a constitutional amendment
23 which talks to the future.
24 So, as to the fraud of the past, you may have
25 created a $600 million hole with Commissioner
87
1 Crenshaw's language and a $400 million hole with the
2 language that consists in the proposal. That's fraud
3 of the past.
4 Fraud of the future is what Commissioner Thompson
5 is talking about. What do you mean when you use the
6 language, supplemental financing of education? That
7 is exactly the problem with what people thought was in
8 there in the beginning, so every dollar, from the time
9 this was adopted, can be used to do the same thing as
10 the fraud of the past, continue to be used as
11 supplemental appropriations to education programs.
12 You haven't cured the problem. You don't cure the
13 problem with this language.
14 Ten years ago when the Lottery was first adopted,
15 I worked with some other people, with Commissioner
16 Caster. How could we write some language in the
17 Legislature to make sure that the money goes for
18 enhancements? You cannot do that because of the
19 imprecision in the definition. Any new dollars after
20 the day you enact is then these supplemental dollars,
21 but it's dollars that everybody thinks is really for
22 growth and other issues.
23 So, the only way that you could prevent the fraud
24 of the future, the only way you can prevent it, is to
25 enumerate in the Constitution how it can be used.
88
1 That's the only way you are going to get to the people
2 and make them understand. Now, when we get to the
3 debate on the issue, on the main issue, hopefully, we
4 can talk about the tape, and those who haven't viewed
5 it, I hope you have the time to view it before we take
6 the final vote.
7 What this amendment intends to do is to recognize
8 that we have enhanced education to the extent of a
9 fair debate on the financing of public schools. Okay,
10 so we recognize that. There's no question that the
11 pre-K kindergarten program is an enhancement in
12 education. It wasn't in existence at the time that
13 the amendment was adopted.
14 What this simply says is, we need to isolate, we
15 need to isolate supplemental educational funds out of
16 the basic educational structure. And the way to do
17 that is to dedicate it to programs like early child
18 care and education, which is what pre-K is. And what
19 this amendment does, it says, in the future, in the
20 future, it asks to be for new programs or for enhanced
21 funding of existing programs. There's no question of
22 any baiting switch, it goes to the enhanced funding of
23 education.
24 The question that you want to ask yourself is,
25 what's meant by early childhood care and education.
89
1 That was the purpose of the compelling testimony that
2 we had at committee and why the tape was sent out by
3 the consensus group. And when we get to the full
4 debate we can talk about that. That is a term that
5 has a meaning in the real world, it is not a made-up
6 term.
7 So, the difficulty we face with this proposal is,
8 if we are truly going to prevent a fraud of the past,
9 we have got to enumerate what we meant by enhanced
10 education in the Constitution. I argue all of the
11 time about, is this a constitutional provision or
12 statutory. This is one where we can't avoid the fraud
13 of the future.
14 Now, we have a $400 million hole that's going to
15 be created. We have talked about that in committee.
16 That is a legitimate concern Commissioner Jennings
17 had, Commissioner Marshall had, and others. We have
18 that under Mr. Crenshaw's language, the fraud of the
19 future under the consensus language.
20 What we talked about at the committee is we have
21 got to deal with that before the final vote. We can't
22 responsibly vote 22 for this proposal until we deal
23 with that issue. There's several ways to deal with
24 it. One way is, like we have ultimately, like we have
25 with Article V, we may have to phase it in over a
90
1 number of years. Phase it in over a number of years.
2 Secondly, I've got a proposal I have talked to
3 many about, I feel passionately about, which is a
4 reform of the sales tax, which is to basically lower
5 the rate, expand the base if it's there in Florida's
6 future.
7 We could do that if we -- without constraint on
8 the Legislature, we could reduce the rate to 5 and
9 come up with $400 million. If that gets 22 votes, we
10 have been responsible for filling up that hole. But
11 what would be irresponsible would be to try to deceive
12 the people one more time by saying we have created a
13 $400 million hole by eliminating the fraud of the
14 past, but we have done nothing to prevent the fraud of
15 the future.
16 I would urge you strongly to vote against this
17 amendment, let's debate on the merits, as to whether
18 or not we need to enumerate this in the Constitution,
19 we can talk about the tape, about what early childhood
20 education means and what nexus that has to the
21 enhancement of education.
22 CHAIRMAN DOUGLASS: All right. Who is next? We
23 are on the amendment. Commissioner Corr, you are
24 next.
25 COMMISSIONER CORR: Thank you, Mr. Chairman. Let
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1 me find where that little thing went. Here we go.
2 Let me read this from the Orlando Sentinel. If you
3 will indulge me, it'll only take a second, I read
4 fast. The headline in the editorial, Tell Whole
5 Lottery Story.
6 Over the last 10 years, the Florida Lottery has
7 contributed over 8 billion to public education.
8 Sounds great, right? Too bad that line, contained in
9 the latest Florida television radio commercials
10 continues the same misleading take on the game that
11 has been repeated for 10 years. The impression is
12 that thanks to the lottery, public education in
13 Florida has received 8 billion it wouldn't have had
14 otherwise. It's no wonder that voters around the
15 state have rejected local tax referendums to give more
16 money to schools. That is a sore spot with Orange
17 County.
18 If you believe that hype, the Florida Lottery has
19 been the icing on the cake for school districts, why
20 give them even more money? In fact, in the past
21 decade, the Lottery has ended up being the egg in the
22 batter, a basic element that schools have needed just
23 to continue delivering the same services.
24 That was last week's Orlando Sentinel. It could
25 have been any week over the last 10 years. What this
92
1 amendment would do is basically tell the same lie all
2 over again and put it back on the ballot. We passed
3 that lie once in 1986, what this would do -- if you
4 really want to make people mad, do it to them twice,
5 this is like the double punch. It's okay, it sounds
6 good, but it's like the first one, it sounds good but
7 it won't make a difference. So, if you want to make
8 people mad, do it to them twice. I'm worried about
9 that.
10 What I think Commissioner Nabors said is correct,
11 the Legislature has had the chance, Commissioner
12 Jennings told us about it a couple of minutes ago, the
13 Legislature has had a chance to be responsible, they
14 have had 12 years now, it hasn't worked, they have had
15 their chance.
16 Voters have continued to tell them that it's
17 important to them, they continue to send them back up
18 here, they haven't made a difference. We have to make
19 this change in the Constitution. I'm sympathetic to
20 the potential, quote, hole that's going to be created.
21 But like Mr. Nabors said, that hole is a result of
22 fraud on behalf of -- if you want to call it fraud,
23 though that sounds awfully strong, on behalf of the
24 Legislature over the last 10 years. They have used
25 that money incorrectly.
93
1 So, it's going to be an issue, yes, where that
2 money comes from next is going to be an issue, yes,
3 and I'm sympathetic, but we have to now reverse the
4 problems that have been created rather than waiting
5 even longer.
6 So, we can vote for this, if we vote in favor of
7 it, again, what we don't want to do is wipe away the
8 other amendments because they are the ones that
9 actually get back to responsibility. And Commissioner
10 Crenshaw mentioned, when offering this proposal, that
11 this would potentially wipe those other amendments
12 away. I want to make sure that that's not the case,
13 this would not wipe any other amendments away if we
14 were to pass it.
15 CHAIRMAN DOUGLASS: Commissioner Morsani.
16 COMMISSIONER MORSANI: Fraud, the fraud was
17 created by the Teachers Union of the State of Florida,
18 they perpetuated it and they sold it to the people of
19 this state. It was never a part of the Legislature.
20 And they did not commit fraud. And I don't think that
21 is a good theme for us to have, that our Legislature
22 committed fraud on the people of this state, they did
23 not do that. And yet nobody wants to tell the public
24 who really created the fraud.
25 Now, that is the end of the conversation on that.
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1 I happen to be opposed to the -- to all of it. So,
2 that's my vote, is no, because the Legislature should
3 handle these and should be by statute. We don't need
4 any of this in the Constitution, including Mr. Nabors'
5 proposal, because that's not where we are; let's not
6 do this. But I know we are on the amendment, and I'm
7 opposed to the whole thing. So, that's my vote.
8 CHAIRMAN DOUGLASS: Commissioner Sundberg.
9 COMMISSIONER SUNDBERG: On the amendment,
10 Mr. Chairman. I speak against this amendment for
11 several reasons. The first has already been raised by
12 Commissioner Thompson. I don't know what existing
13 resources are. I think it is too imprecise for us to
14 work with. I don't know if that represents a
15 percentage, I don't know if it represents real
16 dollars. But I have a much more serious objection to
17 this. And if I may, if you will bear with me for some
18 anecdotal information.
19 And I don't think anybody was a party to a fraud
20 here. I think that is a mischaracterization. I think
21 what the problem is is that you cannot ask the
22 Legislature to have the institutional fortitude to
23 resist using revenues that are available when they get
24 in the appropriations process.
25 I will tell you, anecdotally, at a former time in
95
1 my life I represented on several occasions a former
2 Governor in litigation with the Legislature over the
3 exercise of the veto. And I had occasion then to look
4 very, very carefully at the appropriations bill in
5 each of those years. I was appalled when I saw what
6 Lottery revenues were appropriated for. Would you
7 believe the state motor pool? That wasn't even
8 vaguely resembling an educational purpose.
9 So, we are not just talking about funds being
10 used to replace general revenues that were not devoted
11 to education, we are talking about, in trying to come
12 together in conference committee and in an
13 appropriations bill, here is some money, and the
14 temptation is simply too great. There's nothing
15 malicious or venal about that, it is just a fact of
16 life.
17 Which brings me to my other anecdotal point. I
18 was a member of an institution called the Florida
19 Supreme Court. The Florida Supreme Court dealing
20 with, and I won't get into the complexities of this,
21 but it had to do with the jurisdiction of that court
22 to accept certain kinds of cases. By case law, the
23 court had ruled that it could accept a certain kind of
24 case. There was a majority on the court who believed
25 that was really wrong. But I'll guarantee you that,
96
1 as an institution, we did not have the institutional
2 fortitude to change that court-made rule, and we could
3 have.
4 So, we, in fact went to the people with a
5 constitutional amendment in 1980 saying, Change the
6 Constitution so it expressly prohibits us from taking
7 these cases. And that's what I perceive needs doing
8 now.
9 No -- and the Commissioner candidly concedes,
10 it's not by any secret that these moneys were to be
11 used to enhance, everybody has said that, everybody
12 understood that it was to be used to enhance
13 education. We have not been able to do that. The
14 Legislature has been incapable of that, for some
15 really pretty good reasons.
16 But that's why I oppose this amendment and
17 strongly suggest -- we may have to debate what those
18 purposes of enhancement should be, but I am satisfied
19 to a moral certainty that we must put those precise
20 purposes or uses in the Constitution so that the
21 Legislature will not be tempted to use these revenues
22 for something other than enhancement.
23 CHAIRMAN DOUGLASS: All right. This is on the
24 amendment. And would you like to close on the
25 amendment, Commissioner Crenshaw?
97
1 COMMISSIONER CRENSHAW: Mr. Chairman, just let me
2 say a couple of things. I think Commissioner Sundberg
3 said it best, and that is, when people passed this
4 amendment in 1986, all it said was we were going to
5 have a Lottery and everybody thought the money was
6 going to go for education and everybody thought the
7 money was going to go to enhance education. And it
8 seems to me that this language is fairly simple and
9 straightforward. And it says just that, that you have
10 got to use it for education, and you have got to use
11 it to enhance education.
12 And as a matter of policy, I don't think it is a
13 good idea to write in the Constitution where money
14 ought to be spent. Commissioner Henderson had a
15 proposal to start with that we just passed to have to
16 do with continuation of Preservation 2000. His
17 original proposal said that you would dedicate
18 $400 million a year forever to pay for environmentally
19 dangered lands. I've always supported the concept of
20 P2000, and they have issued bonds every year. And I
21 think they ought to continue to do that. But I told
22 him, I didn't think it was a good idea to write into
23 the Constitution they are going to set aside
24 $400 million, and it actually would grow from year to
25 year, I just thought that was a bad public policy.
98
1 And for whatever reason, he decided that maybe it
2 was not the best public policy. And I am just trying
3 to be consistent with this, to say that, if we tell
4 the Legislature, You have got to spend it on
5 education, you have got to spend it to enhance
6 education, I'll let them make that decision.
7 All of this business about holes and this and
8 that, I don't know what that means because the
9 language that we have got here has been in the
10 statute, I guess. If the Legislature has been doing
11 something that's illegal, those of you would argue now
12 they are going to do something unconstitutional, but I
13 don't think that's the case. If they have been
14 violating the statute, shame on them. I don't think
15 they have.
16 And I think if you simply put this on the
17 ballot -- if this had been on the ballot in 1986 I
18 guarantee you it would have passed because that's what
19 people thought they were voting on. And that's all
20 I'm saying is, give them a chance. If there is some
21 kind of legal problem with that, I understand that.
22 But the broader public policy is that I don't think
23 we, as the Constitution Revision Commission, should
24 try to decide how to spend state dollars. So, I would
25 urge the adoption of the amendment. Thank you.
99
1 CHAIRMAN DOUGLASS: All right. Now, we are on
2 the amendment offered by Commissioner Crenshaw. And
3 does everybody remember what the amendment said?
4 Let's read it again.
5 READING CLERK: By Commissioner Crenshaw, on
6 Page 1, Lines 27 through 30, and Page 2, Lines 1
7 through 16, delete and insert, The net proceeds
8 derived from the Lottery shall be used to support
9 improvements in public education and such proceeds are
10 not be used as a substitute for existing sources for
11 public education.
12 CHAIRMAN DOUGLASS: All right. Everybody --
13 well, let's open the machine and vote on the amendment
14 which has the effect of making that the proposal.
15 (Vote taken and recorded electronically.)
16 CHAIRMAN DOUGLASS: Lock the machine and announce
17 the vote.
18 READING CLERK: Nine yeas, 16 nays, Mr. Chairman.
19 CHAIRMAN DOUGLASS: All right. The amendment
20 fails. Commissioner Jennings, I want you to know that
21 you and I voted together on that --
22 COMMISSIONER JENNINGS: Good.
23 CHAIRMAN DOUGLASS: -- after that long discussion
24 that we had.
25 COMMISSIONER JENNINGS: I took note of that.
100
1 CHAIRMAN DOUGLASS: All right. Now, let's move
2 to the next amendment. We revert to the Corr
3 amendment? Yes, we revert to the Corr amendment,
4 which has been previously discussed, but we can have
5 additional discussion to refresh your memory on what
6 it does.
7 Commissioner Corr, if you would close on your
8 amendment, perhaps we can go ahead and vote on it.
9 COMMISSIONER CORR: Thank you, Mr. Chairman.
10 What I will do then is remind the commission what this
11 amendment does. What this amendment does is delete
12 the language that allows Lottery proceeds to be used
13 to finance the building of public schools. The debate
14 that we have talked about previously is that that, the
15 responsibility to build public schools is already the
16 responsibility of the Legislature.
17 What it does is delete that and add in that, the
18 proceeds from the Lottery may be used to enhance local
19 school education programs through distribution to the
20 local school advisory councils made up of teachers and
21 parents, the people that can decide best how to
22 enhance their own local schools.
23 CHAIRMAN DOUGLASS: All right. Are you ready to
24 vote on the amendment? Question, Commissioner --
25 Commissioner Riley.
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1 COMMISSIONER RILEY: Riley. Commissioner Corr,
2 the proposal now then takes out the financing bonding
3 portion, then what is the amendment that I have on my
4 desk that doesn't do that but just adds the student
5 advisory council?
6 COMMISSIONER CORR: That is another amendment.
7 COMMISSIONER RILEY: It is a backup?
8 CHAIRMAN DOUGLASS: That one has not been
9 offered, has not come forward.
10 COMMISSIONER RILEY: Can we debate the amendment?
11 CHAIRMAN DOUGLASS: No, we have debated it. We
12 just reverted to him for his closing on this
13 amendment. We debated it for 15 minutes before we got
14 to the --
15 COMMISSIONER RILEY: So I couldn't speak against
16 it?
17 CHAIRMAN DOUGLASS: Well, obviously, you spoke
18 against it already I think. I certainly recorded you
19 as a no vote. Commissioner Jennings.
20 COMMISSIONER JENNINGS: Mr. Chairman, point of
21 information to the body, how about that?
22 CHAIRMAN DOUGLASS: Absolutely.
23 COMMISSIONER JENNINGS: As we are going along and
24 delineating those areas where we would like our
25 Lottery funds to go, I thought I would share with you
102
1 that, in fact, the Legislature does believe that the
2 school advisory councils are an integral part of what
3 we do. And during the last legislative session we
4 appropriated $10 per student per school to the SACs,
5 directly to the SACs for them to utilize as they
6 deemed appropriate within their own school.
7 So, the Legislature agrees with the importance of
8 the SACs and their involvement in the utilization.
9 And it was actually our long-term goal to take those
10 dollars that flow to the schools through this
11 $232 million that flows to the discretion of the
12 school district and try to get those directly into the
13 schools. That was our legislative long-term goal.
14 Whether that's what we want to do in the Constitution
15 or not, I just thought I would share that with you, in
16 fact, that is the direction that the Legislature is
17 headed.
18 CHAIRMAN DOUGLASS: Thank you for your point of
19 information. It was a pretty good bit of information.
20 We'll now vote on the Corr amendment. Open the
21 machine. Everybody hasn't voted, I don't think.
22 (Vote taken and recorded electronically.)
23 CHAIRMAN DOUGLASS: Lock the machine and announce
24 the vote.
25 READING CLERK: Three yeas and 20 nays,
103
1 Mr. Chairman.
2 CHAIRMAN DOUGLASS: The next amendment, you can
3 read it, please, if you can figure out which one it
4 is. Commissioner Nabors moves this amendment.
5 READING CLERK: By Commissioner Nabors, on
6 Page 1, Line 27, through Page 2, Line 16, delete those
7 lines and insert lengthy amendment.
8 CHAIRMAN DOUGLASS: Is that on our desk? Did
9 everybody have this Nabors' amendment?
10 COMMISSIONER NABORS: It was on the desk
11 yesterday.
12 CHAIRMAN DOUGLASS: All right. Tell us,
13 Mr. Nabors, Commissioner Nabors, what that does and
14 then we can see if we can find it on our desk.
15 COMMISSIONER NABORS: Mr. Chairman, this is
16 the -- yeah, this is the consensus amendment that was
17 sent out to every member.
18 CHAIRMAN DOUGLASS: I don't want you to debate
19 this, I want you to tell us what it says so we can see
20 if we have got it and then you can debate it. So, go
21 ahead and tell us what it is.
22 COMMISSIONER NABORS: This is a consensus
23 amendment that was sent out to each member. It makes
24 two changes to the language that is in the packet.
25 You should have had it on your desk yesterday. The
104
1 first change is, it adds as a permitted use, the
2 provision of pre-kindergarten programs. In the
3 education committee, there was a debate that the
4 original bill that I filed didn't recognize that the
5 existing funding of $107 million on pre-kindergarten
6 was an enhancement, so it adds that.
7 The only other thing is that it changes the
8 introductory language as to the fact that, just to
9 change the style of the language to make sure that
10 it's clear that the appropriation of Lottery funds is
11 used to be enhanced solely for the following purpose.
12 It is a stylistic change.
13 The change that is a substantive change is the
14 fact that it adds to the enumerated uses a Subsection
15 2 provision of pre-kindergarten programs.
16 CHAIRMAN DOUGLASS: All right. Does everybody
17 understand? Commissioner Barnett you are recognized.
18 COMMISSIONER BARNETT: Commissioner Nabors,
19 please explain to me in a --
20 CHAIRMAN DOUGLASS: I'm not sure your mike is on.
21 COMMISSIONER BARNETT: Please give me an example
22 of the difference of what's intended in Paragraph 3
23 and Paragraph 4, just a practical example.
24 COMMISSIONER NABORS: Paragraph 3 is to recognize
25 that you may have appropriations for early childhood
105
1 care programs that aren't in existence on the day that
2 this amendment was adopted. So, you might have a new
3 program. An example, there might be a new program
4 dealing with disabilities, programs to determine
5 disabilities at an early age. It's not existing in
6 the current legislative scheme.
7 Four is enhanced funding while an existing
8 program. For example, it permits the enhanced funding
9 of a pre-K program, subsidized day care, and there are
10 other types of programs that are in existence. The
11 reason for the language is to make sure that once we
12 go along permitted uses, that any new use is any new
13 program for an enhanced funding level of an existing
14 program.
15 CHAIRMAN DOUGLASS: Does that answer your
16 question?
17 COMMISSIONER BARNETT: I think so. I just don't
18 fully understand why you need to make that
19 distinction. Maybe I am the only one that doesn't,
20 but try again. I mean, I like the idea, I just don't
21 know why you have to make that distinction. It seems
22 if you are looking for a document, that would be --
23 COMMISSIONER NABORS: Well, the concern would be
24 if we are trying to make sure it's enhanced, for
25 example, the concern is the future Legislature might
106
1 take Lottery funds and just fund the existing
2 subsidized day care programs just like they did on
3 basic education.
4 So, the problem is we want to make sure that the
5 money is used to enhance an existing program funding
6 level or to new programs, so they would not be used
7 within the arena of preschool or in the arena of
8 childhood care and education programs, we wouldn't
9 have the same problem we have had in the past with
10 basic education.
11 CHAIRMAN DOUGLASS: Commissioner Mills, question.
12 Do you yield to him?
13 COMMISSIONER MILLS: Commissioner Nabors.
14 COMMISSIONER NABORS: Yes.
15 COMMISSIONER MILLS: Is it clear -- I think it's
16 clear that anything that would relate to scholarships
17 would not be -- would therefore be unconstitutional?
18 COMMISSIONER NABORS: We do not have -- no, I
19 didn't -- it cannot be funded from Lottery proceeds,
20 it would have to be funded from general revenues,
21 correct.
22 COMMISSIONER MILLS: And there were several kinds
23 of expenditures I think in higher education, those
24 would be unconstitutional as well?
25 COMMISSIONER NABORS: Any expenditure
107
1 unconstitutional as funded from Lottery proceeds.
2 COMMISSIONER MILLS: Right, right. And then the
3 one in which I agree with as a matter of principle. I
4 mean, the basic educational finance program, that it
5 would be unconstitutional to expend Lottery funds on
6 the basic educational finance program?
7 COMMISSIONER NABORS: You are correct.
8 CHAIRMAN DOUGLASS: And, as I understand, I think
9 through Commissioner Jennings, that's about
10 $232 million this year. Given this has no -- given
11 the effective date of this as written would be next
12 January, if it passed, the Legislature, next spring,
13 would have to deal with that issue.
14 A question I have -- because I think there are a
15 lot of people probably, as a matter of principle, are
16 interested in trying to get this towards a true
17 enhancement, because I think a lot of people thought
18 that that was the purpose when it was passed. Would
19 you consider deferring the date of implementation in
20 some way so that, as Commissioner Jennings has said,
21 it would give the Legislature a period of time to
22 adjust to that as a concept?
23 COMMISSIONER NABORS: Yes. We talked about that.
24 Yes, I would. Let me explain that, if I could. We
25 have talked about that at the Education Committee.
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1 One of the difficulties with our process is, is that
2 we deal with things as they come along, and often we
3 have to reconcile all of them as a package group. One
4 of the things that's coming along in the process is a
5 proposal that I've talked to many of you about, which
6 I feel passionately about, and that is a mechanism to
7 deal with the sales tax base, to remove those
8 exemptions that don't advance a public purpose and to
9 reduce the rate from 6 to 5.
10 It is my view, it may not be a prevailing view,
11 that that process would generate enough dollars to do
12 this within an early time frame. If, for some reason
13 that doesn't get the majority vote, then I think we
14 will have to look at this over a phased period of
15 time. It doesn't matter to me whether we do it now
16 and then try to reconcile it later. But my view is we
17 would wait and see at the end of the day, as we
18 schedule these things, what other mechanisms we have
19 to do to fund this, obviously, deficiency of the
20 general fund.
21 It's my view, and I have talked to Commissioner
22 Jennings is, is if my tax fairness initiative doesn't
23 pass, I'll represent to her, it's acknowledged to
24 everybody that's involved in this that there has to be
25 some schedule of funds.
109
1 CHAIRMAN DOUGLASS: Does that answer your
2 question?
3 COMMISSIONER MILLS: Yes.
4 CHAIRMAN DOUGLASS: Commissioner Scott.
5 COMMISSIONER SCOTT: Just briefly, Commissioners,
6 this, to put something like this in the Constitution
7 and pick out pre-K and any particular thing, not that
8 they are not all worthwhile, is just a very bad idea.
9 I mean, when you think back, I mean nobody ever
10 heard of the Internet, what if we had written
11 something in there that said we couldn't spend state
12 money on something that might have prohibited that?
13 There are so many changes, I just think that the basic
14 premise here of representative government, and I for
15 one, I never have bought this idea.
16 What happened to the Lottery was when it went
17 into effect, the Governor had campaigned against it
18 and ever since then they have been saying it was some
19 sort of a misrepresentation or fraud or whatever, and
20 that's not true. But aside from that, Lottery or no,
21 you shouldn't write in here that proceeds from any
22 source of revenue can only be spent for itemized
23 things within a general area like education because
24 you don't know what contingencies might come up.
25 And I would urge you, I just think that this, I
110
1 know the goal is good, but I just think that it is a
2 bad idea to start writing -- itemizing four things and
3 pre-K and early childhood education and things like
4 that in the Constitution.
5 We already have in there and we have tried to
6 reaffirm, I think, that adequate provision for
7 education will be made. But beyond that I think we
8 need to keep in mind on some of these things, I mean
9 like the U.S. Constitution, I mean you just don't, you
10 have to leave some of this that if you don't like what
11 the people are doing, then elect somebody else, you
12 know, into the Legislature.
13 But I would urge you to really, seriously
14 consider putting this kinds of financial restraints on
15 what we do with the state revenues.
16 CHAIRMAN DOUGLASS: Commissioner Morsani.
17 COMMISSIONER MORSANI: I am not opposed to
18 motherhood and the flag. I think they're wonderful.
19 And I --
20 CHAIRMAN DOUGLASS: We were all worried about
21 that.
22 COMMISSIONER MORSANI: I know. And I'm sorry I
23 get upset about subjects, but you do know where I
24 stand on subjects anyway. But let's, again, and with
25 my dear friend Commissioner Nabors, I have tremendous
111
1 respect for everyone, I have great respect for
2 Commissioner Nabors and others, of course, all the
3 others in this room.
4 But I ask that we review history a little bit in
5 light of these kinds of proposals. In 1950, now
6 remember, I ask you to look at history. In 1950, the
7 United States created 55 percent of the world's gross
8 national product. We thought that we were pretty
9 good. We had just come through the great war, and the
10 rest of the world was devastated, and we thought that
11 we could do no wrong as public policy-makers.
12 So our public policy-makers started, and we
13 started to enhance, I use that word, I hate that word,
14 we started to tax people, and then -- and we had the
15 great society under Mr. Johnson. I never will forget,
16 ladies and gentlemen, I happen to have dealt early on
17 in the early '70s with Mr. Wilbur Mills and with
18 Mister -- with Senator Humphreys.
19 I never will forget when I told Mr. Humphreys in
20 1972 when they were starting to increase the Social
21 Security taxes, I said, Senator, with all due respect,
22 within 10 years the population at large in our nation
23 will be spending more money in Social Security taxes
24 than they are paying in in their federal income taxes.
25 I was wrong. I apologized to him later, it only
112
1 took five years. And when we attempt to do this, when
2 we attempt to delineate what we expect to have the
3 money spent for, and as Commissioner Scott said, like
4 computers, what if computers or the Net, if we had put
5 those in the Constitution 20 years ago or when the
6 first one, 30 years ago, of course in 1968 -- this is
7 not good policy.
8 Yes, we may have some problems periodically in
9 our Legislature, not adequately using some of the
10 funds that we think they should use them for. I'm
11 afraid, all of you -- all of us probably watched the
12 President's State of the Union message last night. I
13 happen to think big government is back. If you don't
14 think it is, just keep an eye on it.
15 If those weren't more government programs than we
16 have seen in the last 10 years, then you are wrong.
17 Because they are. And they are going to spend the
18 money for the very things that we would delineate --
19 that are delineated here, at least they are going to
20 be attempted to anyway. I hope they are not.
21 But I encourage you, as much as I -- and I'm not
22 against motherhood and the flag, I'm not against
23 educating our children, but I am opposed to the
24 impediments that we would put on the legislative
25 bodies with this kind of proposal to put this in our
113
1 Constitution. I urge you to vote against this
2 proposal.
3 CHAIRMAN DOUGLASS: All right. We have an
4 amendment to the amendment that is offered by
5 Commissioner Corr which we will -- he has moved it, an
6 amendment to this amendment and it is on the table.
7 And it will be read.
8 READING CLERK: Amendment to amendment by
9 Commissioner Corr, on Page 1, Line 30, insert for
10 distribution directly to school advisory councils by
11 the Legislature and as prescribed by general law for
12 the sole purpose of enhancing school programs.
13 CHAIRMAN DOUGLASS: Commissioner Corr, on the
14 amendment to the amendment.
15 COMMISSIONER BARKDULL: Point of order. This is
16 a repetitive amendment.
17 CHAIRMAN DOUGLASS: I have already looked at that
18 and it is not --
19 COMMISSIONER CORR: It is not anywhere close to
20 the other amendment.
21 COMMISSIONER BARKDULL: It is in a different
22 section, but it is the same language.
23 CHAIRMAN DOUGLASS: No, we have looked at it and
24 the Secretary has concluded and I agree with her that
25 it is not the same, although the argument is going to
114
1 be the same. Commissioner Corr.
2 COMMISSIONER CORR: Well, the argument is
3 somewhat the same. The other amendment that failed
4 had a challenge with it, and that was that it was
5 removing the language that is currently on Line 18 and
6 No. 1, that would allow Lottery proceeds to be used to
7 build schools.
8 This proposal doesn't do that anymore. All this
9 proposal does is add another No. 5 and allows Lottery
10 proceeds to be used to go directly to school advisory
11 councils where teachers and parents can decide best
12 how to enhance all their own schools.
13 In addition, it would allow all the other four
14 things to happen too, you can still build schools, you
15 can use the money for pre-K programs, early childhood
16 care and education. And in addition to that, Lottery
17 proceeds can be used to go directly to K through 12
18 schools to be spent by parents and teachers to enhance
19 their own school programs.
20 CHAIRMAN DOUGLASS: All right. Everybody
21 understand the amendment? All in favor say aye.
22 Opposed?
23 (Verbal vote taken.)
24 CHAIRMAN DOUGLASS: The nos have it, it fails.
25 Move on back to the original amendment. Commissioner
115
1 Riley.
2 COMMISSIONER RILEY: Mr. Chairman, can we get a
3 specific vote on this?
4 CHAIRMAN DOUGLASS: I don't think you want one,
5 we will be here all day. It was the same argument we
6 defeated 20 to 3. It doesn't really change except
7 where he put it and how he structured it, that's why
8 the point of order was not well taken because he put
9 in a separate section. But he is talking about
10 appropriating funds to the school advisory councils.
11 And we went through that and that was part of it.
12 COMMISSIONER RILEY: We didn't.
13 CHAIRMAN DOUGLASS: We are going to move back to
14 the amendment. We are going to get on with this
15 debate. Yes, sir.
16 COMMISSIONER CORR: I'll settle for the voice
17 vote, but I need to correct your statement. It is not
18 the same argument as before, and if people voted for
19 it with that misunderstanding, then we didn't have a
20 real vote. The previous --
21 CHAIRMAN DOUGLASS: Let's open the machine and
22 vote. And you can read the amendment.
23 COMMISSIONER CORR: Is there some
24 misunderstanding? Is there a misunderstanding on what
25 we are doing? Okay.
116
1 CHAIRMAN DOUGLASS: I don't think so. We can
2 read it and then we will vote. Everybody listen.
3 We'll let everybody make up their minds as to what
4 this does and whether or not it is in the same
5 category as the other one, it doesn't matter. Just
6 listen to this amendment and then vote yes or no on
7 it. We are going to open the machine. But read the
8 amendment.
9 READING CLERK: Amendment to amendment by
10 Commissioner Corr. On Page 1, Line 30, insert, For
11 distribution directly to school advisory councils out
12 of Legislature and as prescribed by general law for
13 the sole purpose of enhancing school programs.
14 CHAIRMAN DOUGLASS: No? We are going to vote.
15 She asked for a recorded vote, and we will have it.
16 Open the machine and vote.
17 (Vote taken and recorded electronically.)
18 CHAIRMAN DOUGLASS: Lock the machine and announce
19 the vote.
20 READING CLERK: Twelve yeas, 12 nays,
21 Mr. Chairman.
22 CHAIRMAN DOUGLASS: It fails. Now let's move to
23 the amendment. We were debating the amendment, and I
24 believe, Commissioner Riley, you wanted the floor on
25 the amendment; is that correct? That's the Nabors'
117
1 amendment that we are debating.
2 COMMISSIONER RILEY: Yes, yes, and to clarify in
3 case anyone is not sure, it basically says that the
4 funds can be used to enhance education, and then it
5 gives four specific areas that can be used to enhance
6 education. And I would like to encourage your vote.
7 I have listened to everything, I respect what
8 Commissioner Crenshaw was trying to do. I don't think
9 he did, or that amendment did what we all want to do.
10 I don't want to tell the Legislature where to spend
11 their money. We have taken one of these proposals
12 that had about 15 very specific percentages of how
13 these dollars can be spent, but it is real clear that
14 the dollars have not been spent to enhance education.
15 The original proposal that I had said Lottery
16 funds can be used to enhance education. The problem
17 with some of the proposals originally was that what is
18 enhancement today is not going to be enhancement, 10,
19 15, 20 years from now. Computers were enhancements
20 when lotteries first went in and they are not an
21 enhancement today, they are necessary in the
22 classrooms today.
23 I don't want to tie the hands of the Legislature,
24 and I think what we have done with this proposal is
25 said, If you need it to finance, such as they did with
118
1 the construction, it is available for that. If you
2 listen to what the experts are saying about the
3 importance of early childhood education and care, this
4 allows those programs.
5 If you think it is really important, and I'm
6 sorry that Commissioner Corr's didn't pass, because it
7 would have allowed some local dollars to go to the
8 student advisory council, but what this says is that
9 the programs that you are doing now, the additional
10 programs such as pre-K, are still important. You can
11 still do that. But if you want to make it better,
12 start at the beginning. And that's what this proposal
13 does.
14 It doesn't say percentages. It doesn't tie up
15 with numbers. It says, Here is where you need to
16 spend your dollars. And if you need to refinance, you
17 can do that. I would hope that with this direction
18 that the people who spoke to us all around the state
19 that said, You are not doing what they said they were
20 going to do. Now I'm in sales, I know sales. The
21 word "enhancement" was used, not because it is in the
22 Constitution, but because that was a good selling
23 point. And it sold it.
24 So let's make that real. And I suggest that we
25 support this proposal and make the Legislature
119
1 enhance. That's all we are trying to do.
2 CHAIRMAN DOUGLASS: Commissioner, you are not
3 ready to close because you still have some debate.
4 Commissioner Sundberg.
5 COMMISSIONER SUNDBERG: Very briefly. For all
6 the reasons I opposed Commissioner Crenshaw's
7 amendment, I support this amendment and I urge each of
8 you to do likewise.
9 CHAIRMAN DOUGLASS: All right. Does anybody else
10 want to speak pro or con on the amendment?
11 Commissioner Jennings. This amendment, or do you want
12 to wait and speak --
13 COMMMISSIONER JENNINGS: Thank you, but I don't
14 want to wear out my welcome. Why don't I wait and
15 speak out on the issue when we get to the final vote?
16 CHAIRMAN DOUGLASS: You are very welcome.
17 Commissioner Corr, you want to speak in opposition?
18 COMMISSIONER CORR: Yes, of the sponsor. Which
19 one is it, Commissioner Nabors?
20 CHAIRMAN DOUGLASS: Commissioner Nabors.
21 COMMISSIONER CORR: I'm not sure about the way
22 the language reads. I could read this two ways. The
23 first one is that if this passes there will be two
24 ways we can spend Lottery money. Number one is to
25 finance or refinance bonds to build schools, and the
120
1 second one is for pre-K or early childhood programs.
2 Two ways, only. Is that correct?
3 COMMISSIONER NABORS: Yes.
4 COMMISSIONER CORR: Okay.
5 COMMISSIONER NABORS: Well, scratch that. Let me
6 answer it this way, what it says is you could continue
7 funding the existing pre-K program or any additional
8 use of the money beyond bonds and existing pre-K would
9 have -- could be used for new programs or early
10 childhood and education or by enhanced funding of
11 existing programs of early childhood education.
12 COMMISSIONER CORR: Okay. So, just to clarify
13 it, what you have here is a proposal that only allows
14 the Lottery money to be spent two ways. Firstly, to
15 build and construct schools. And secondly, for early
16 pre-K childhood programs.
17 If this amendment passes, no money can be spent
18 in the classroom, K through 12, ever again from the
19 Lottery because you just killed my proposal. So if
20 you do this, just do it realizing that all you are
21 going to be able to spend Lottery money for is pre-K
22 programs and for the construction of schools.
23 CHAIRMAN DOUGLASS: Commissioner Nabors to close.
24 COMMISSIONER NABORS: Let me address a couple of
25 things. First, to kind of equip myself, fraud was
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1 Mr. Mills' language not mine, I just thought it was a
2 good idea, but I didn't bring the word "fraud" up.
3 But specifically, Commissioner Scott, on your issue,
4 and I would say that this is, that we are different,
5 as we heard in the very beginning, that we are
6 different than the Federal Constitution in the sense
7 that one of the appropriate things in the State
8 Constitution is to place limitations on the
9 Legislature. We are not a grant of power, one of the
10 things we do is place limitations on the power of the
11 Legislature.
12 And it is my view, listening to the people,
13 following this issue for 10 years, this is a classic
14 example of necessary-based limitations on the
15 Legislature in the use of Lottery monies.
16 Any other, any other solution to it is going to
17 basically muddle the issue as to whether or not there
18 is an increase in funding because of its use for basic
19 education. You can never find the ball in the
20 appropriation process.
21 The other thing I would say, Commissioner Corr,
22 the other thing I would say to you is that it doesn't
23 mean that the Legislature would lose its ability to
24 funnel this money through the local school advisory
25 boards, it would just have to be for these types of
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1 programs, which many are totally integrated within the
2 school system.
3 One of the reasons why it is important to have
4 this in a more generalized way is because we need to
5 encourage, and the Legislature would encourage the
6 formation of partnerships on a regional basis.
7 One of the things that I want everybody to
8 understand on this proposal is, is that you should
9 have heard the testimony. It was very compelling
10 testimony about the needs for early childhood care and
11 education. That's why we took the time and expense of
12 sending you a tape. I urge all of you, hopefully
13 before the final vote, to look at that tape.
14 We had as, just to give you -- we had as
15 testimony, we had David Lawrence as a publisher of the
16 Miami Herald who is a hard-nosed newspaper person,
17 hard-nosed, who testified that when he was appointed
18 to the Readiness Committee, that intuitively he had no
19 understanding of the importance of these programs.
20 But he has become a passionate advocate of early
21 childhood care and education.
22 We had Chancellor Reed, and you know, the
23 chancellor of the university system, whose commitment
24 is to education at the university level who testified
25 that money spent in early childhood education on
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1 readiness programs is the most valuable way that money
2 can be spent in terms of enhancing education at the
3 university level.
4 And we had Dr. Blackman, who is a nationally
5 known physician, testify on the issue of how important
6 and what we know now about the early development of
7 infant brain cells and how these programs are critical
8 for their ability to succeed in life. And we also had
9 an advocate businessman, Ted Granger, who's head of
10 the Florida United Way talk about the difficulty in
11 the appropriation process because of the temptation of
12 advocating for programs of early childhood care and
13 education. They are always the last programs to be
14 funded, and they are absolutely essential for the
15 future success of so many of our children.
16 And, Commission Morsani, this isn't apple pie and
17 the flag, these are real world serious problems that I
18 would ask you before, and hopefully before the final
19 vote on this, we all are busy, to look at that tape
20 and where it explains and you get an understanding
21 more clearly of what's meant by the term "early
22 childhood care and education." We are talking about
23 children that have disabilities and the things that
24 need to be done that aren't being done now to make
25 these children so they can succeed in school.
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1 And not only will this serve the purpose, serve
2 the purpose of enhancing education consistent with
3 what the people want to have done, it also is a
4 dedicated funding source for these essential programs
5 that never compete. There is no galvanized lobby for
6 these programs. There is no Associated Industries,
7 there is no Florida Association of Counties.
8 These are programs with serious needs that nobody
9 lobbies in a galvanized way and in the appropriations
10 process they are lost. So we get a win-win situation.
11 We arm the people's understanding of enhancement by
12 taking it out of general education. At the same time
13 we have a dedicated source to deal with these
14 fundamental, essential programs of how our children
15 will be able to learn in the future.
16 The chancellor of the university system says this
17 is the best place to spend money. He is not saying
18 buy computers for the university, he is saying spend
19 it where the kids are ready to learn. I recognize
20 that we cannot do something ultimately, when the day
21 is done, when the day is done, to create this kind of
22 funding problem, we are going to have to phase this in
23 over a period of years. I have talked to Commissioner
24 Jennings and we all have an understanding of that, but
25 that's to be decided later. We see what we have on
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1 the table at the end of the day.
2 We may -- I may be able to persuade this body
3 that my idea of fundamental tax reform is proper. If
4 that's done, we may not need to phase it as long as if
5 we did it today. So what I would urge you to do, this
6 is too important an issue to lose today. All of you
7 need to carry this along, look at the tape, debate it,
8 talk about it in the ultimate day if you feel like it
9 doesn't have merit, it is an improper limitation of
10 the Legislature, vote against it, but let's keep it
11 alive.
12 One of the difficulties in our process is, and
13 this is not a fault of anybody, is these kinds of
14 issues are hard to debate. They are hard to get
15 public testimony on. We had the Education Committee,
16 it was one of the most compelling testimonies I have
17 ever seen in the public arena and I have been around a
18 long time. All men testifying for early childhood
19 care and education. Very compelling testimony.
20 People from all walks of life.
21 If we are going to go through a public hearing
22 process, we are going to hear from people. And maybe
23 when the day is done we will decide to vote against
24 this, but this isn't the day to vote against it. We
25 need to keep it alive so everybody has got time to
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1 watch the tape and see what we saw at the Education
2 Committee so a reasoned judgment can be made. I urge
3 your vote on this. It is one of the most serious
4 issues we are going to vote on as our deliberations
5 occur.
6 CHAIRMAN DOUGLASS: Now, that was closing on the
7 amendment which turned out to be closing on the
8 proposal. Would you read the amendment which is on
9 the floor?
10 READING CLERK: By Commissioner Nabors on Page 1,
11 Line 27, through Page 2, Line 16, delete and insert
12 lengthy amendment.
13 CHAIRMAN DOUGLASS: Everybody understand the
14 amendment? It added pre-K; is that what it did, as
15 one of the items that it could be used for? All
16 right. All in favor of the amendment, this is not for
17 vote on the proposal, all in favor of the amendment
18 say aye. Opposed?
19 (Verbal vote taken.)
20 CHAIRMAN DOUGLASS: The amendment is adopted.
21 Now with that amendment, the proposal has been closed
22 on by -- beg your pardon, that last was certainly a
23 close on the proposal.
24 (Inaudible.)
25 CHAIRMAN DOUGLASS: All right. Would you get up
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1 and tell us -- does anybody want to debate the
2 amendment; I mean, the actual proposal, proposal?
3 Very well. Then that's -- who wants to go first, you
4 or --
5 COMMISSIONER SCOTT: Let me go first. I'll be
6 quick.
7 CHAIRMAN DOUGLASS: Commissioner Scott. This is
8 on the proposal.
9 COMMISSIONER SCOTT: I'm not going to repeat all
10 of this, but I want to emphasize one point which
11 Commissioner Morsani made. Let's assume that the
12 federal government comes out with programs that put
13 more than ample money in this list of early childhood
14 and pre-K and whatever. If we put this in the
15 Constitution, then we are still going to have to take
16 all of the available Lottery money and spend it on top
17 of whatever they might spend. That's just one example
18 of what's wrong with putting this type of thing in the
19 Constitution. So I'm -- I would urge you not to adopt
20 this and put it in the Constitution.
21 CHAIRMAN DOUGLASS: Now Commissioner Jennings.
22 COMMMISSIONER JENNINGS: Thank you, Mr. Chairman.
23 Commissioners, as I said, I don't want to wear out my
24 welcome. And I know we are a little suspect.
25 Commissioner Scott and I standing here saying, sharing
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1 some of these thoughts with you because we are
2 currently in the Legislature and we have been dealing
3 with this.
4 And in all honesty, I need to share with you that
5 my first year as President, and through Jim Scott's
6 years as President, and Andrew Crenshaw's years as
7 president, we did more, we put more money into
8 education each year than had happened the year before.
9 We were committed to making sure that we tried to
10 convince the people that in fact we were keeping faith
11 with the Lottery, that we were doing other things with
12 the Lottery instead of just supplanting those dollars
13 that were being used.
14 And when we talk about the fraud that was
15 perpetrated on the public, the worst part of that was
16 just the general misunderstanding, the general public
17 things that the Lottery should run all of education.
18 They think it was the answer to everything, that it
19 should have been lots of new money and that everything
20 would just be peachy keen and rosy. In fact, the
21 Lottery wouldn't even keep our schools open for 10
22 days, total. So that's the problem that we have got
23 out there, is the perception.
24 And the Legislature has tried diligently to
25 restore that confidence, because of course we have
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1 lost confidence -- the people have lost confidence in
2 us thinking we have taken it someplace else. And I
3 won't belabor the point as to where that money went,
4 it went to the Medicaid match that, for year after
5 year, starting with Speaker Mills and Speaker
6 Thompson, I mean year after year we had to come up
7 with those dollars to match those federal funds for
8 our Medicaid match, that's where a lot of our
9 education dollars went, and I will share that with
10 you. We are trying to get them back now, and there
11 will be more dollars with the tobacco settlement. But
12 that's all for the Legislature to deal with.
13 My greater concern, and it is a concern that I
14 have some trepidation in sharing with you only because
15 I am so committed and this Senate that you are sitting
16 in right here is so committed to doing more for
17 education. That's where Bright Futures came from last
18 year. That's where the pre-K programs came from that
19 are currently in existence.
20 The major initiative this year is on readiness
21 for early childhood education. I mean, that is one of
22 our major initiatives that we have within our
23 proposals that we are working for with the House right
24 this minute.
25 My concern is that when we put it in the
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1 Constitution, we realize we have already made a hole
2 here, a $454 million hole right this minute. Now,
3 Commissioner Nabors has said that he understands that,
4 and maybe we will give the Legislature a little bit of
5 time to work themselves out of that hole, well that's
6 good, that's better than this showing up next January
7 of 1999 and the Legislature saying, Whoa, you know, we
8 are going to have to find this money and perhaps the
9 money for Article V. And Commissioner Nabors is right
10 in saying perhaps he needs to couple this with his tax
11 increase proposals, because, in fact, that's exactly
12 what you are asking us to do.
13 We don't have 454 extra million dollars floating
14 around. I suggested from Commissioner Rundle that I
15 would start with the State Attorney's budget. It is
16 just not there. So, in fact, I want to share with you
17 that we need to think in terms of making some kind of
18 commitment to a revenue source if we are going to do
19 this or to tie it to a phase-in that the Legislature
20 can deal with without just saying to the voters, We
21 are asking you for a tax increase because, in fact,
22 that won't pass, we know that if we put it out there
23 that way.
24 So today I am going to vote against this proposal
25 with heavy heart, because in fact, everything in here
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1 is where the Legislature has been going and where,
2 under Senator Scott and Senator Crenshaw and hopefully
3 under myself, we have been trying to take the
4 Legislature to restore that credibility.
5 Commissioner Corr had it right. Those dollars
6 should be going down to the student advisory councils,
7 that's why we pledged those dollars to them. But is
8 the Constitution the place that we want to make that
9 decision? You may share that, yes, we do. I guess at
10 this point there are some of us that have been too
11 involved in this process for too long that see the
12 ghosts that will sit on our shoulders as we vote for
13 this knowing full well where we are down the road.
14 And I share that with you, as I said, as one
15 committed to making a difference in education in this
16 state, one committed to starting with those early
17 childhood years, because that's how we are going to
18 have achievement, high academic achievement in our
19 state, and it is the only way. But I cannot vote for
20 this proposal today. Thank you.
21 CHAIRMAN DOUGLASS: Commissioner Barton and then
22 Commissioner Barnett.
23 COMMISSIONER BARTON: This is an unlikely
24 position for me, but I am going to be voting for this
25 proposal today because I want the dialogue to
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1 continue. I am a student of Dr. Blackman's, I serve
2 on a number of advisory boards that relate to juvenile
3 justice and children and families.
4 And I would say to you that I believe that if we
5 invested in this early childhood area, that we would
6 have some unintended consequences and those would be
7 cutbacks in funding that we need to make now in those
8 areas of juvenile justice and children and families.
9 We have neglected to do the prevention work in
10 this state for decades, the prevention work that would
11 save us the hard dollars and the bad dollars we spend
12 at the other end of the spectrum. We need to start
13 now. And I am voting for this because I,
14 philosophically, need to do that. Thank you.
15 CHAIRMAN DOUGLASS: Now Commissioner Barnett.
16 COMMISSIONER BARNETT: Just for a point of
17 information, Mr. Chair. I just want to let you-all
18 know, I know where there is a great source of new
19 revenue, and actually this debate underlines some of
20 the points I was trying to make yesterday. So just
21 wanted to add that as information in case you-all had
22 forgotten.
23 CHAIRMAN DOUGLASS: Incidentally, we all loved
24 your picture in all of the papers today. Same vote on
25 this one as you did the last one, huh?
133
1 COMMISSIONER SMITH: I'd like to know whether the
2 Commissioner feels strongly enough to tie that
3 proposal to any other proposal that she feels
4 heartfelt about and bundle them?
5 (Laughter.)
6 CHAIRMAN DOUGLASS: I don't believe we better
7 touch that one, Commissioner Smith. All right. You
8 are not -- are you ready to close again?
9 COMMISSIONER NABORS: Is there anyone else? I'm
10 not going to do the same close, I wanted to talk
11 briefly to respond to Commissioner Jennings a little
12 bit.
13 Everybody knows the issue. What I'm trying to
14 say is, Look at the tape, let's keep this issue alive.
15 This isn't your final vote on this issue, and this is
16 important enough to keep alive. If I was sure -- if I
17 was sure that we would always have a Senate President
18 like Commissioner Jennings and Commissioner Scott, we
19 wouldn't need this. They have a commitment to
20 education. We wouldn't need that.
21 That's why, I guess, well I don't know, but also
22 Commissioner Crenshaw. But the point is is that the
23 purpose of a Constitution is to step in and put
24 limitations on legislative power where necessary in
25 every other situation where, because of pressures
134
1 unrelated to the goodwill of the people in leadership,
2 they haven't been able to fulfill what the
3 understanding of the people was in the use of Lottery
4 money. And that's just a fact, and it is not going to
5 change over time.
6 There are pressures in terms of the appropriation
7 process that interfere with that even though the
8 intentions are good. So we need to limit their
9 ability in this regard, otherwise the people are going
10 to continue to be, whatever the reason of their
11 misunderstanding is real and it is there.
12 I agree that if, you know, down the line that we
13 have to phase this in if my proposal I feel passionate
14 about on sales tax doesn't pass, it is not a tax
15 increase. If everybody pays their fair share,
16 everybody pays the same. We will debate that in
17 February. It is not a tax increase, it is the next
18 best thing to what has been proposed in terms of
19 income tax. But that's a debate for later on.
20 We need to keep this debate alive. This is not
21 anything against the current leadership of the Senate
22 or the House, but the point is this is a classic
23 example of how we need to limit the power of the
24 Legislature. And I ask you, look at the tape, come to
25 your own judgment, and we will debate this again when
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1 it takes the 22 votes. Thank you.
2 CHAIRMAN DOUGLASS: All right. We will vote on
3 the proposal as amended. Open the machine and take
4 the vote.
5 (Vote taken and recorded electronically.)
6 CHAIRMAN DOUGLASS: Lock the machine and announce
7 the vote.
8 READING CLERK: Fifteen yeas, 9 nays,
9 Mr. Chairman.
10 CHAIRMAN DOUGLASS: By your vote you have passed
11 the amended proposal and we will now suggest to the
12 rules chairman that we break for lunch, returning at
13 1:00 p.m.
14 COMMISSIONER BARKDULL: A little longer,
15 Mr. Chairman, 1:15.
16 CHAIRMAN DOUGLASS: Are you recommending 1:15?
17 COMMISSIONER BARKDULL: Yes, sir.
18 CHAIRMAN DOUGLASS: All right. Without
19 objection, we will take lunch and return at 1:15. Try
20 to be right on time so we can get started. And if we
21 can finish this calendar we will leave when we finish
22 it. Commissioner Morsani.
23 COMMISSIONER MORSANI: The Sovereign Immunity
24 meeting.
25 CHAIRMAN DOUGLASS: The Sovereign Immunity
136
1 meeting, I had forgotten that, pardon me, is that --
2 it is an organizational meeting, isn't it?
3 COMMISSIONER CONNOR: Yes, sir.
4 CHAIRMAN DOUGLASS: It is organizational, so it
5 won't take very long I don't believe. We will be able
6 to come back at 1:15.
7 COMMISSIONER MORSANI: Is it still Room 309?
8 CHAIRMAN DOUGLASS: Yes, it is.
9 COMMISSIONER MORSANI: Thank you.
10 CHAIRMAN DOUGLASS: We will stand adjourned until
11 1:15.
12 (Lunch recess had at 12:00 p.m. Return from
13 lunch recess at 1:15 p.m.)
14 SECRETARY BLANTON: All commissioners indicate
15 your presence. All authorized visitors leave the
16 chambers. All commissioners indicate your presence.
17 CHAIRMAN DOUGLASS: Come to order. We have a
18 bare minimum quorum.
19 SECRETARY BLANTON: Quorum present, Mr. Chairman.
20 CHAIRMAN DOUGLASS: All right. We'll proceed on
21 the special order. Commissioner Corr, Proposal 118 is
22 the next proposal. Everybody take their seats,
23 please. (Pause.) Could everybody take their seats,
24 please? Thank you.
25 Incidentally, before we broke at lunch there was
137
1 a group that was in the gallery who was here from the
2 Ukraine. And over the lunch period, our Secretary
3 spoke with them and they are not here now so I can't
4 recognize them, but she said they were just absolutely
5 astounded that they could walk into this building and
6 walk in and sit and watch a group like this, that they
7 didn't believe people did that. And I didn't ask her
8 why, it might have been a group like this might have
9 meant more than we thought.
10 I think what they meant was the democratic
11 process working in this country was just amazing to
12 them. One of the people had come to Florida for the
13 purpose of going to Shands Hospital for treatment. So
14 we forget a lot of times how attractive our state is
15 all over the world and we have medical facilities that
16 are unparalleled in a lot of places, but we also
17 forget the freedom we enjoy and we need to be reminded
18 from time to time that we do have it.
19 And speaking of that, Commission Corr, you are
20 free to offer Proposal 118. And if you would read
21 118. Commissioner Corr, we're going to read your
22 Proposal 118.
23 READING CLERK: Proposal 118, a proposal to
24 revise Article X, Section 15, Florida Constitution;
25 providing that lotteries may be operated by the state
138
1 for the sole purpose of raising proceeds to enhance
2 funding for public education programs; providing that
3 proceeds be appropriated directly to school advisory
4 councils for the sole purpose of enhancing school
5 programs.
6 CHAIRMAN DOUGLASS: All right. Commissioner
7 Corr, you are recognized.
8 COMMISSIONER CORR: Thank you, Mr. Chairman. I'm
9 going to yield to Mr. Alfonso.
10 CHAIRMAN DOUGLASS: Commissioner Alfonso.
11 COMMISSIONER CORR: Sorry, Commissioner Alfonso.
12 CHAIRMAN DOUGLASS: Commissioner Alfonso, you
13 have the floor.
14 COMMISSIONER ALFONSO: I would like to move that
15 we reconsider committee substitute for Proposals No.
16 138 and 89 based on -- and just reconsider it on the
17 next calendar next meeting.
18 CHAIRMAN DOUGLASS: It's on reconsideration and
19 will carry over until the next meeting. We won't have
20 another meeting tomorrow, so it will be the first day
21 when we come back. You could wait and make that even
22 at that meeting if you chose, 138 and 89, the one we
23 just passed.
24 COMMISSIONER ALFONSO: Okay. That is the one we
25 just passed. The reasoning for that is we have some
139
1 language that we are trying to work out with
2 Commissioner Nabors, and just to try to get that a
3 little bit more --
4 CHAIRMAN DOUGLASS: All right. It will be left
5 pending on reconsideration for the next meeting.
6 COMMISSIONER ALFONSO: Thank you, Mr. Chairman.
7 CHAIRMAN DOUGLASS: Commissioner Corr.
8 COMMISSIONER CORR: Mr. Chairman, I'd like to
9 withdraw this Proposal 118.
10 CHAIRMAN DOUGLASS: All right. Without
11 objection, Proposal No. 118 is withdrawn from further
12 consideration. Proposal 123 -- 43 by Commissioner
13 Sundberg. Would you read it, please?
14 READING CLERK: Proposal 143, a proposal to
15 revise Article X, Section 15, Florida Constitution;
16 establishing the Education Enhancement Trust Fund for
17 the deposit of proceeds from the lotteries operated by
18 the state; requiring the State Board of Education, or
19 its successor, to appropriate moneys from the trust
20 fund; providing allowable uses of moneys from the
21 trust fund.
22 COMMISSIONER SUNDBERG: Mr. Chairman, I'd like to
23 withdraw, in view of the action we took on the other
24 Lottery proposal, I would withdraw this proposal.
25 CHAIRMAN DOUGLASS: Without objection, Proposal
140
1 143 is withdrawn from further consideration. Proposal
2 54 by Commissioner Zack. He had to leave to go to
3 Nashville. Commissioner Barkdull.
4 COMMISSIONER BARKDULL: On his behalf.
5 CHAIRMAN DOUGLASS: He wanted to withdraw this,
6 as I understood it?
7 COMMISSIONER BARKDULL: Correct.
8 CHAIRMAN DOUGLASS: So, without objection,
9 Commissioner Barkdull on Proposal 54 is withdrawn.
10 Proposal 169 by Commissioner Hawkes.
11 COMMISSIONER BARKDULL: Mr. Chairman, for the
12 benefit of the Commission, that now appears in your
13 yellow book, Proposal 169.
14 CHAIRMAN DOUGLASS: All right. Would you read it,
15 please?
16 READING CLERK: Proposal 169, a proposal to
17 revise Article V, Sections 1 and 4, the Florida
18 Constitution; establishing courts of criminal appeals;
19 providing for a court of appeals to be located in each
20 of three regional divisions; providing for justices of
21 the courts of criminal appeals to be appointed by the
22 Governor and be subject to confirmation by the Senate;
23 providing for compensation of the justices; providing
24 for terms of office; providing for the courts to have
25 final appellate jurisdiction of criminal appeals,
141
1 appeals of capital cases, and appeals based on habeas
2 corpus or other post-conviction claims; providing for
3 the courts to convene an en banc panel to hear capital
4 cases and to resolve conflicting rulings; authorizing
5 the courts to issue specified writs; providing for the
6 appointment of clerks for the courts; providing
7 applicability of rules.
8 CHAIRMAN DOUGLASS: All right. This was referred
9 to the Judicial Committee and it was disapproved by
10 the committee, and consideration referred back to
11 Judicial, and it was to be reported by February 9.
12 But it's now on the calendar and was reported out
13 disapproved by the committee. Is there anyone on the
14 committee that wants to address this proposal?
15 Commissioner Hawkes hasn't returned to the chamber.
16 Commissioner Barkdull?
17 COMMISSIONER BARKDULL: I am not a proponent, but
18 if there are proponents, I want to be an opponent.
19 CHAIRMAN DOUGLASS: Are there any proponents?
20 Commissioner Barnett.
21 COMMISSIONER BARNETT: Well, I don't know if I am
22 or not, and I'd like some debate on it. I just came
23 from a lunch, for example, that we had in our office.
24 We regularly have somebody in, you know, about once
25 every couple of weeks just to try to keep us current
142
1 as lawyers with what's going on, and this was a member
2 of the appellate First DCA and they talked about -- we
3 asked them about good points and bad points about
4 being an appellate judge, and one of the things this
5 judge mentioned was the enormous burden now on the
6 appellate courts from criminal cases.
7 And I don't practice in that arena, and I don't
8 have a lot of personal knowledge about it, but just
9 having heard that not 30 minutes ago, I would really
10 like to hear some debate and discussion on this. So
11 maybe we should wait for the proponent of it.
12 CHAIRMAN DOUGLASS: Well, I want you to know, you
13 have in the chamber a person who served on the
14 appellate courts longer than any other person in
15 Florida who probably disagrees with the idea that they
16 are overworked. Commissioner Barkdull.
17 COMMISSIONER BARNETT: Judge Barkdull's memories
18 and reflections and opinions will carry great weight
19 with Lawyer Barnett, but nevertheless, my only point
20 is I think this issue should be debated and I hope we
21 can do that. And without Commissioner Hawkes here, I
22 would rather move on to something else though, that
23 perhaps we could engage in the debate when he comes
24 back.
25 CHAIRMAN DOUGLASS: You know, you present
143
1 something that causes us a problem. If people are
2 present in the building or at the meeting and then
3 they are not here when we start and we're three down
4 the list, how much deference do we give to people when
5 they haven't asked to be excused or otherwise? A lot
6 of people leave the chamber and are not here, and a
7 lot of people have left. And it seems to me that
8 somewhere we have to draw a line, which we tried to do
9 and didn't understand how bad people wanted to debate
10 that. I don't want to preclude debate, Commissioner
11 Barnett, but are you moving to temporarily pass this?
12 COMMISSIONER BARNETT: I'm trying to give
13 deference to the proposal, Mr. Chairman, as opposed to
14 the individual.
15 CHAIRMAN DOUGLASS: We'll have a motion to give
16 deference.
17 COMMISSIONER BARNETT: I'll be glad to make a
18 motion to temporarily pass it just because I would
19 like to hear the debate on this.
20 CHAIRMAN DOUGLASS: Assuming there is nobody here
21 to debate it other than Commissioner Barkdull, who I
22 think could probably be illuminating on this, there's
23 been a motion that we temporarily pass it. All in
24 favor say aye. Opposed?
25 (Verbal vote taken.)
144
1 CHAIRMAN DOUGLASS: I think it takes a
2 two-thirds' vote, we've decided that. It takes a
3 vote. I'm going to rule that it's temporarily passed.
4 Based on the voice vote I think it passed. Anybody
5 who wants to challenge it we'll open the machine and
6 let everybody vote on it.
7 Okay. On the very next one, we have the same
8 problem that's on the proposal here on the death
9 sentence, and Commissioner Butterworth, who had to be
10 absent, wanted to be present on this and asked me to
11 report that to the body. And I didn't report it to
12 the Rules Committee, but under the same circumstances
13 we just did it, he was excused until -- he is supposed
14 to be back some time this afternoon but that doesn't
15 mean he's going to make it. I would entertain a
16 motion to temporarily pass it pending return to the
17 chamber of others that are involved. I think
18 Commissioner Zack wanted to be heard on this too.
19 COMMISSIONER RUNDLE: Mr. Chairman.
20 CHAIRMAN DOUGLASS: Commissioner Rundle.
21 COMMISSIONER RUNDLE: Yes, Mr. Chairman, in
22 deference to Commissioner Butterworth who I know does
23 wants to address this issue, I would ask that this be
24 temporarily passed until he's available to be here.
25 That could be this afternoon. I'm not sure how
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1 Commissioner Brochin feels about that.
2 COMMISSIONER BROCHIN: I agree if somebody has
3 made a request that wants to be present and heard, we
4 ought to wait for him to be present. I would only
5 note those requests are forthcoming, it would be
6 helpful if we knew about it a little bit farther in
7 advance just for preparation purposes.
8 CHAIRMAN DOUGLASS: We understood that
9 Commissioner Butterworth was going to be back and he
10 was out involved in a matter he couldn't get out of as
11 Attorney General and he isn't back.
12 COMMISSIONER BROCHIN: I mean, I know there are
13 others like Commissioner Kogan and Commissioner
14 Wetherington who also want to be heard on this matter
15 as well. I don't object to us having full debate --
16 CHAIRMAN DOUGLASS: All in favor of temporarily
17 passing this say aye. Opposed?
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: Temporarily passed. Now
20 Proposal 144 by Commissioner Barnett, who is present.
21 And if you would read it, please?
22 READING CLERK: Proposal 144, a proposal to
23 revise Article I, Section 17, Florida Constitution
24 relating to punishment for crime.
25 COMMISSIONER BARNETT: If I had known this was
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1 going to advance my moment in the sunshine so rapidly,
2 I might not have spoken to try and give Mr. Hawkes an
3 opportunity. So, you never know, you get what you
4 wish for sometimes. I'd ask you to look at Proposal
5 144 in your books, it's the last item in your yellow
6 package. Because I want to read -- I want to read the
7 language to you.
8 This proposal is an amendment to Section 17 of
9 Article I which deals with punishments, the question
10 of punishments, and it says, No punishment may be
11 imposed or inflicted in an arbitrary, capricious or
12 discriminatory manner. It's a very simple statement.
13 It's a very narrow proposal.
14 It only applies to punishment. It does not
15 address the underlying criminal activity in any way,
16 nor the procedures set forth related to the underlying
17 criminal activity, but only to the question of
18 punishments.
19 It is broad, however, in its application. It
20 will apply to all crimes, all situations where someone
21 is involved in a criminal activity and it's
22 appropriate to impose a punishment for that activity.
23 And that does include the death penalty. But this is
24 not a death penalty proposal, per se. It is not
25 intended to, in any way, do away with the death
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1 penalty.
2 So it's been linked with Commissioner Brochin's
3 proposal I think because both of them impact the death
4 penalty, but I think it's important to distinguish
5 this a little bit, it applies across the board to all
6 criminal activities and it is not an effort to stop or
7 otherwise impede the appropriate imposition of the
8 death penalty, and I think it's important to make that
9 distinction just because I think that some people
10 thought that that was the main thrust. It really --
11 it is a broad application although the language is
12 very narrow and applies only to the punishment phase.
13 Now the concept of not having a punishment
14 imposed in an arbitrary, capricious or discriminatory
15 matter, some people would say, Isn't that what the law
16 already is, isn't that what the law of our state
17 already is? And I say, Yes, that's what the law is
18 supposed to be, that's the way it's supposed to be
19 administered, but unfortunately that's not the way it
20 is actually administered. Through probably no fault
21 of anyone's, no deliberate fault of anyone's, it is
22 certainly a hope and a desire that any punishment be
23 administered in a way that's not arbitrary, capricious
24 or discriminatory.
25 It's an aspirational statement. I think that
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1 reflects what most Floridians believe, and that
2 punishments should be fair and equitable and impose
3 equitability across the board, depending on the
4 particular crime. It really is an aspirational
5 statement that reflects what the law is and what it's
6 supposed to be, and I think it is an appropriate place
7 to have this in our Constitution, to have our
8 Constitution reflect that these are our values as
9 citizens of Florida. You say, Then if it's what the
10 law is supposed to be, tell me why it's not being
11 administered in that way.
12 Well, I've looked at some studies. I've looked
13 at a number of studies that have tried to address this
14 question. And we go back to, and I'll just cite you a
15 couple, and if you'll bear with me, I'll just give you
16 some quotes from a couple of them. One of them in the
17 Florida Supreme Court having a Racial and Ethnic Bias
18 Study Commission issued its report in 1991.
19 Some of the findings, one of the findings, the
20 report, these are quotes from the report. It
21 documents practices and policies existing in or
22 impacting upon Florida's judicial system which are
23 resulting in the unequal administration of justice for
24 racial and ethnic minorities in Florida.
25 Another study, the Joint Legislative Management
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1 Committee of the Legislature did an empirical
2 examination of the application of Florida's habitual
3 offender statute. Here are some findings from that.
4 This is in August of 1992. Black offenders are more
5 likely to be sentenced as habitual offenders than
6 white offenders. Even after taking into consideration
7 differences in criminal history and current offenses,
8 this result is more pronounced in some circuits than
9 others.
10 And here I want to pause and compliment
11 Commissioner Rundle and Commissioner Ford-Coates
12 because Sarasota County and Dade County are two areas
13 where those statistics don't prove to be true. So,
14 there are some counties who have gotten this right and
15 have learned how to do this, and compliments to them,
16 but that's two of our circuits. These are findings by
17 the Joint Legislative Management Committee. Another
18 quote, At all offense seriousness levels, at all
19 offense serious levels, blacks are more likely than
20 nonblacks to be habitualized.
21 Another study, and this one now dealing with the
22 death penalty. The others were across the board in
23 punishment questions. This one is a study dealing
24 with the death penalty, and it is a Florida Law Review
25 article entitled, Choosing Those Who Will Die, Race
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1 and Death Penalty in Florida. Among defendants who
2 kill whites, strong race differences are apparent.
3 Black defendants are over twice as likely as white
4 defendants by a percentage of 12.6 percent to
5 4.5 percent, respectfully, to be sentenced to death.
6 A black defendant suspected of killing a white
7 victim is 15 times more likely to be sentenced to
8 death than a black defendant suspected of killing a
9 black victim, convicted of killing. I used the wrong
10 word, suspected. Those are dramatic statistics in
11 this state. Those are dramatic statistics.
12 Again, this is a quote: One of the strongest
13 predictors of a death sentence is the victim's race.
14 This is a simple finding of this study I just referred
15 to, and when you control for every other factor, every
16 other factor, the odds of a death sentence are 3.4
17 times higher for defendants who are suspected of
18 killing whites than defendants suspected of killing
19 blacks. These are compelling statistics to me that,
20 despite what our law ought to be, today it's not
21 necessarily being administered in a nondiscriminatory,
22 noncapricious, nonarbitrary manner.
23 Now I doubt there is one person in this room, in
24 fact I'm sure there is not one person in this room
25 that would stand up and say, Well, I think the law
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1 ought to be discriminatory, I think it ought to be
2 arbitrary, I think it ought to be capricious. I can't
3 imagine that.
4 And so I ask you, if that's the way you feel, and
5 we're talking about our justice system and people's
6 faith in our justice system, let's put that
7 aspirational goal in our Constitution that says this
8 is what we as Floridians want to have. And I think
9 what it does, does this have impact? Yes, it will
10 have impact. It will be something judges can use when
11 they are imposing these sentences.
12 It probably will impact prosecutors as they come
13 up with their proposals, but it will have impact. But
14 I don't think it's going to destroy the system, I
15 think it's going to enhance it. Now some raised at
16 the committee meeting, why don't our existing
17 constitutional protections cover this? Why don't the
18 provisions we have in Article II deal with equal
19 protections, or Article IX dealing with due process,
20 or Article XVI that deal with the rights of the
21 accused, why don't they cover this? And I say to you
22 that that deals more with the process, you know, the
23 process of bringing people to trial for crimes.
24 This deals with the punishment phase. This is
25 something unique to the punishment phase. It doesn't
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1 affect those others. It is something in addition and
2 only applies to the punishment phase. And if in fact
3 those other provisions were comprehensive enough and
4 worked, I wouldn't be bringing this forward because
5 the equal protection and the due process and those
6 other clauses would have kept us from being in a
7 situation where, from all apparent statistics, despite
8 the best interest and the best efforts of many, today
9 our laws are not yet meeting the standard we all hope
10 they will.
11 So I ask you to join me in putting in the
12 Constitution what I think is a very simple, just
13 statement of what we all want to have happen when
14 punishments are imposed for various crimes.
15 CHAIRMAN DOUGLASS: All right. Any amendments?
16 All right. Who wants to be heard on this?
17 Commissioner Rundle.
18 COMMISSIONER RUNDLE: I'd like to start with a
19 question to Commissioner Barnett. If I could also
20 make a statement at the same time. You know, let
21 there be no question that I couldn't agree more with
22 you and I do believe that sentences should not be
23 imposed in a capricious, arbitrary or discriminatory
24 manner. And I don't believe anybody in this chamber
25 would say that they should be.
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1 I disagree with you on your statement of law. I
2 do believe that is the law today. And I do believe
3 that the courts have explicitly and implicitly used
4 that very language when they have actually reviewed
5 the Florida habitual offender act in King v. State,
6 when they looked at the death penalty phases. They
7 have looked at those discriminatory practices that you
8 have mentioned, and I abhor those.
9 I don't think anybody, any single person in this
10 room with any sense of dignity could not say that the
11 way in which people who should get the death penalty
12 and do not get it, that's what those studies show. It
13 doesn't show that in those particular cases, that it
14 has been applied in a discriminatory, arbitrary and
15 capricious way. What those studies show is other
16 people who should have gotten the death penalty did
17 not get it. And my question to you, really, pertains
18 to when you say "aspirational statement." I don't
19 know what that means. And I'm trying to get from you
20 what your intent behind this is.
21 Is your intent to create a new standard to be
22 applied that will be in our Constitution which would
23 then open the door for a re-litigation of all past
24 cases, existing cases? Is it your intent that this
25 would work prospectively? Is this a statement, when
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1 you say aspirational statement, is it a statement of
2 the policy for us as the courts have said, no
3 sentencing shall be applied in a capricious, arbitrary
4 and discriminatory way. What exactly is your intent?
5 COMMISSIONER BARNETT: I want to assure you there
6 is no hidden agenda here. It is not my intent to
7 reopen litigation, to give an opportunity to retry
8 cases or to revisit the sentencing phase. I don't
9 know if that will or will not happen, but that is not
10 my intent.
11 I believe this is what the law is. I'm sorry I
12 misspoke. I believe that this is the law and this is
13 the way it is supposed to be imposed. But today I
14 think there are instances, and I think everyone
15 acknowledges, where it does not -- it just isn't
16 happening. I believe putting it as a constitutional
17 standard raises it maybe to a higher level and will, I
18 hope, go a long way towards meeting the aspirational
19 goal of having our sentences imposed in a
20 nondiscriminatory, nonarbitrary, non-capricious
21 manner.
22 I think having it as a constitutional standard
23 may help judges, may help the process, may give them
24 additional reasons to review evidence regarding
25 discrimination. I'm not exactly sure, but it's really
155
1 not a hidden agenda, it is simply to take what I
2 believe is the law, what I believe everyone wants the
3 law to be and raise it to a constitutional standard
4 and say, We as citizens of this state, these are the
5 principles that we want to apply when a punishment is
6 imposed.
7 COMMISSIONER RUNDLE: If I may, because I think
8 it's very important that we understand how you intend
9 it to be used because people will look at this record,
10 and I couldn't agree with you more that if it's a
11 restatement of the existing law, as has already been
12 litigated, I support it full-heartedly, that that is a
13 proper statement, it is good public policy, that is
14 what sentencing should be.
15 But my concern is that a number of folks, and I'm
16 not an expert in the appellate area, I wish the
17 Attorney General was here to elaborate a bit, but I
18 think that many have said to me their concern is that
19 this would create unnecessary litigation in past cases
20 where the standard has already been applied by case
21 law.
22 Now putting it in the Constitution may create a
23 higher standard which would then open the door for a
24 flood of re-litigation, and I think that's really my
25 concern.
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1 CHAIRMAN DOUGLASS: All right. Do you want to
2 respond to her statement?
3 COMMISSIONER BARNETT: Only to say that it is not
4 my intent to open a Pandora's box of litigation with
5 this amendment, that is not my intent, nor I think the
6 intent of people who support it. It is to just state
7 constitutionally what we all believe the law to be and
8 to have that standard embodied in our Constitution in
9 the area of punishment.
10 CHAIRMAN DOUGLASS: Commissioner Mills.
11 COMMISSIONER MILLS: Thank you. Would
12 Commissioner Barnett yield for a question? We
13 discussed this in committee and I just wanted to
14 reinforce this. As I understand this, it is an
15 important point that this is imposition to penalty.
16 COMMISSIONER BARNETT: Yes.
17 COMMISSIONER MILLS: In other words, as I
18 understand this language, it does not affect the
19 ability of the Legislature to pass any given penalty?
20 COMMISSIONER BARNETT: Absolutely. It doesn't
21 affect the underlying definition of what's a criminal
22 activity or the penalty that would be imposed. That's
23 a legislative function.
24 COMMISSIONER MILLS: So, the existence of this is
25 not going to declare any legislatively-mandated
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1 penalty unconstitutional?
2 COMMISSIONER BARNETT: No.
3 CHAIRMAN DOUGLASS: Commissioner Morsani.
4 COMMISSIONER MORSANI: I would like my three
5 advisors to address this.
6 CHAIRMAN DOUGLASS: That's everybody in here, you
7 know.
8 COMMISSIONER MORSANI: I know that. No, I really
9 support this but in everything that Commissioner
10 Barnett says, but I'd really like to hear, to help me,
11 from Mr. Brochin, Commissioner Barkdull and
12 Commissioner Sundberg, if these three gentlemen who --
13 I would really appreciate their input if that
14 wouldn't -- and what the ramifications are, like is it
15 going to open up some of these problems that
16 Commissioner Rundle articulated, I would like to know
17 that.
18 CHAIRMAN DOUGLASS: Commissioner Barkdull.
19 COMMISSIONER BARKDULL: Mr. Chairman,
20 Commissioner Morsani, I oppose this proposal. It's
21 already the law. The courts are already undertaking
22 at the time of sentencing statistical information like
23 Ms. Barnett has referred to into account in making
24 those records, and the sentences are being tested
25 against those surveys. That's going on right now in
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1 Florida. And I have to believe that if this language
2 is included in the Constitution, which I realize is a
3 statement of what's happening right now, believe me,
4 you are going to see more litigation, more collateral
5 attacks.
6 Commissioner Barnett opened her remarks by saying
7 at noon she had been addressed by a member of the DCA
8 up here in Tallahassee and they were complaining about
9 the number of criminal appeals they have got, well,
10 they haven't seen nothing yet because I can tell,
11 because our volume in the court that I was privileged
12 to serve on has doubled in the last three years in
13 criminal cases, and most of those are in criminal
14 cases contesting the sentencing.
15 This just gives them another reason to try, if
16 this should be included and should be adopted, because
17 now the people have said, You have to go back and look
18 at my sentencing.
19 CHAIRMAN DOUGLASS: All right. Anybody else want
20 to be heard? Commissioner Brochin.
21 COMMISSIONER BROCHIN: I am honored I am on your
22 list now. I think the answer to the question, in
23 terms of if it's going to cause more litigation, it is
24 probably not known and we probably can't say for sure.
25 I think Commissioner Barkdull is right to some extent
159
1 that there will be an attempt to litigate it because
2 it's a change, it's a change in the Constitution and
3 it makes a statement of what the law is. So there
4 will be attempts to re-litigate issues that have
5 already been re-litigated.
6 Courts though have the ability to summarily
7 dispose of those issues if they believe they ruled
8 appropriately the first time around. So although the
9 number may go up I'm not sure the intensity or
10 quantity in terms of court occupation of time will
11 significantly increase.
12 But I think the honest answer to that is, I don't
13 know. I do know this, I've read quite a bit of death
14 cases in this state and I've had the experience of
15 reading them not just from one community but from all
16 of our communities in the state. And I'll debate when
17 we do talk about the death penalty, I am convinced
18 that there is an arbitrary and capricious result of
19 the imposition of that penalty.
20 And it may be very worthy to put into our
21 Constitution and aspirational statement that allows us
22 to address that arbitrary and capricious result. Is
23 it going to eradicate it? No. Is the proposal we're
24 going to talk about on the death penalty going to
25 eradicate it? No. But it's a step in that direction,
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1 so it's there in our Constitution and says, Penalties
2 shall not be imposed in an arbitrary and capricious
3 way.
4 It is correct, as Commissioner Barkdull points
5 out, it is the law and that's the way the law should
6 be imposed today. Not because it's in our
7 Constitution, it is not. But if it is in the
8 Constitution, it will make the statement of the people
9 that this is the way we want our penalties imposed in
10 a nonarbitrary and in a non-capricious fashion. And
11 because it's that fundamental that's why, essentially,
12 I think it's a good idea.
13 CHAIRMAN DOUGLASS: Anybody else want to be
14 heard? Commissioner Sundberg.
15 COMMISSIONER SUNDBERG: In response, with respect
16 to what will be the impact on the courts, I believe
17 that this will -- well, let me tell you what I
18 understand the law to be with respect to sentences.
19 The law has been that so long as a sentence was
20 imposed within the legal limits prescribed by the
21 Legislature it could not appealed, okay? So, if it
22 was at the very maximum or if it was at the very
23 minimum or anywhere in between, that simply was not a
24 basis for appeal.
25 Now in -- under a very enlightened Chief Justice
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1 in, I believe it was in 1981 or '82 --
2 CHAIRMAN DOUGLASS: Was that Justice Sundberg by
3 chance?
4 COMMISSIONER SUNDBERG: Beg your pardon?
5 CHAIRMAN DOUGLASS: Was that Justice Sundberg by
6 chance?
7 COMMISSIONER SUNDBERG: It was actually his
8 father. But we installed in our law sentencing
9 guidelines to address in a more specific way,
10 sentencing disparity, and that's unreasonable
11 disparity in sentencing. The premise being that if
12 you stole a hog in Dade county, you ought to get the
13 same load if you stole a hog in Gadsden County, and
14 sometimes that didn't happen.
15 And one reason you wanted that unreasonable
16 disparity out of it is because those two guys may end
17 up in the same cell and one says, You know, I'm doing
18 one year and you're doing five years and we both stole
19 a hog and that doesn't make much sense.
20 But the sentencing guidelines did give you an
21 opportunity to appeal a sentence that was not
22 therefore available to you. But in those appeals,
23 your basis of appeal was that the guidelines had not
24 been properly applied, because even under the
25 guidelines, and the guidelines set up indices by which
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1 you could -- it set forth sentencing ranges. And you
2 could exceed the range or go below the range if the
3 judge set forth reasons to either enhance or diminish
4 the sentence.
5 So it was a -- there was at least standards by
6 which that could be judged. So I think what this does
7 do is provide an opportunity outside the area of
8 sentencing guidelines in an area that there heretofore
9 has not been a basis for appeal of sentence alone, the
10 opportunity to appeal a sentence on the premise that
11 it was arbitrary or capricious or discriminatory and
12 that, you know, you would make the assertion, Hey, I
13 stole a hog in Gadsden County, everybody else is
14 getting a year for stealing a hog and I got three
15 years for stealing a hog and that's discriminatory.
16 I have to agree with Judge Barkdull, I think the
17 law is that that sort of discrimination, arbitrary and
18 discriminatory sentences, that the law prohibits them.
19 I agree with Commissioner Brochin that, nonetheless,
20 we do have, and, Commissioner Barnett, we do have
21 these sorts of inequities in sentencing. It is most
22 acute in the area of the death sentence, and I frankly
23 just personally, I think we can do this language all
24 day long and the death sentence is never going to
25 work. I don't believe it works.
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1 But that doesn't mean -- but I think what I would
2 do, were it me, I think I would install this language
3 with respect to death sentences. I think otherwise,
4 if you do it across the board, I think you are going
5 to be inviting appeals of sentences without regard to
6 whether it's applied retroactively or prospectively or
7 what have you.
8 CHAIRMAN DOUGLASS: Commissioner Sundberg, how
9 many death penalties have been carried out in Florida
10 in the last five years?
11 COMMISSIONER SUNDBERG: I don't know the number.
12 CHAIRMAN DOUGLASS: Ten.
13 COMMISSIONER SUNDBERG: Ten, I'll accept that.
14 CHAIRMAN DOUGLASS: Oh, in the last two and a
15 half years there's only been four.
16 COMMISSIONER SUNDBERG: Carried out, but
17 there's --
18 CHAIRMAN DOUGLASS: Carried out.
19 COMMISSIONER SUNDBERG: But there's a whole lot
20 of them on death row.
21 CHAIRMAN DOUGLASS: Over 300. They are there on
22 appeals and collateral attacks, for the most part,
23 some almost 15 years. So, my point is to ask you, and
24 I happen to agree with you, that the death penalty
25 needs visiting, but I think that it would -- doesn't
164
1 apply to something like this to the Constitution, to
2 deal only with the death penalty. I feel if this
3 applies, it'll have to apply across the board, which
4 is what I think Commissioner Barnett's proposal does.
5 COMMISSIONER SUNDBERG: Yes, I understand.
6 CHAIRMAN DOUGLASS: Anybody else? Commissioner
7 Smith.
8 COMMISSIONER SMITH: Just briefly. I wanted to
9 add my voice to those who share the view that this is
10 a problem and that it should be shared across the
11 board, or it should be applied across the board. I
12 serve on the First Constitution -- no, I am thinking
13 about Constitution Revision -- the First Sentencing
14 Guidelines Commission which dealt with what were at
15 that time just gross inequities in sentencing, not
16 just with regard to where the sentences were being
17 imposed, but also with regard to gender and other
18 factors like that.
19 You know, almost everything we do that relates to
20 fairness, you know, there seems to be a big concern
21 about litigation. You know, those who convened in the
22 first Constitution were willing to give blood for
23 basic rights like the freedom of religion, freedom of
24 speech, freedom of association, for life, for whether
25 it is the death penalty or fairness in sentencing.
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1 I don't know whether I'm prepared to give blood.
2 I was when I went to Vietnam, but I am prepared to
3 litigate for what's fair to all of the people who
4 happened to get caught up in our criminal justice
5 system, so I'm going to vote yes.
6 CHAIRMAN DOUGLASS: Any further discussion?
7 Commissioner Connor.
8 COMMISSIONER CONNOR: Mr. Chairman, I would like
9 to make an inquiry of several questions of the
10 sponsor.
11 CHAIRMAN DOUGLASS: Proceed. She rises to
12 answer.
13 COMMISSIONER CONNOR: I would like to do so, if I
14 may, without waiving the right to comment later.
15 CHAIRMAN DOUGLASS: You may do so.
16 COMMISSIONER CONNOR: Commissioner Barnett, would
17 you agree that where language is included in the
18 Florida Constitution which may mirror existing law
19 that's a part of the federal jurisprudence, that at
20 least under the principles articulated by our Supreme
21 Court, the court will presume that the Constitution
22 meant something other than and different than that
23 which was already embedded in the federal
24 jurisprudence, and I ask you that on the basis of the
25 TW decision, as an example, based on all that the
166
1 court has stated there.
2 COMMISSIONER BARNETT: I was with you until you
3 made specific reference --
4 CHAIRMAN DOUGLASS: Commissioner Barnett, we have
5 got to get your mike on.
6 COMMISSIONER BARNETT: I was with you, I thought,
7 until you made specific reference to In Re TW, and I'm
8 not sure of the focus of your question.
9 COMMISSIONER CONNOR: I will clarify. My
10 recollection is that In Re TW, the court indicated
11 that where Floridians include explicit language in
12 their Constitution which may mirror something that's
13 already in the federal jurisprudence, the presumption
14 is that the state meant something more than what was
15 already embedded in the existing law. Without regard
16 to TW, would you agree that that is a principle of
17 constitutional jurisprudence in the state?
18 COMMISSIONER BARNETT: Not necessarily,
19 Commissioner Connor. The state may include something
20 in our Constitution really without regard,
21 necessarily, to the federal provisions.
22 COMMISSIONER CONNOR: What more than, if I may,
23 and I asked you this in our committee, and maybe you
24 have had an opportunity to have thought about it, what
25 more than already exists in the federal law under the
167
1 equal protection clause, what more than already exists
2 under Article I, Section 2 does this add in the way of
3 protection when it comes to sentencing than a
4 convicted person would already have by either the
5 federal or state constitutional protection; what more,
6 if anything?
7 COMMISSIONER BARNETT: The intent is to focus on
8 the punishment phase and to make a statement specific
9 to that phase with regard to how punishments are going
10 to be imposed. The current provisions of the federal
11 Constitution and the Florida Constitution which deal
12 with equal protection, due process, rights of the
13 accused, primarily apply to the process, the
14 protections, the process of the accused, and to the
15 degree they apply to the punishment phase, which they
16 do, and should, the evidence that is available
17 indicates that despite that being what the law of
18 Florida is, that so far we have not been able, either
19 through those constitutional provisions or what the
20 law is, to have -- to reach that goal as set forth in
21 the statement that I propose to put in the
22 Constitution.
23 COMMISSIONER CONNOR: Would it mean more than,
24 for instance, with respect to the racial disparity you
25 made reference to, would it mean more than no person
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1 shall be deprived of any right because of race? In
2 other words, the language that you are offering, which
3 I understand in part to be occasioned by the
4 disparities that we see statistically, would, in your
5 estimation, would it mean any more than that language?
6 COMMISSIONER BARNETT: I believe it would be
7 complementary to that language, but it's language
8 related and focused specifically on the punishment
9 phase. It is not an amendment to Article II, IX or
10 XVI.
11 COMMISSIONER CONNOR: I understand.
12 COMMISSIONER BARNETT: It's important to
13 recognize it is only to the punishment stage, and so
14 it is to focus those standards on the punishment
15 phase. It would be complementary to the existing
16 provisions in the Constitution.
17 COMMISSIONER CONNOR: What more, if anything, and
18 I asked this of the public defender who appeared
19 before our committee, what more, if anything, could
20 one argue on behalf of a client than they can already
21 argue today under the existing constitutional
22 jurisprudence?
23 COMMISSIONER BARNETT: I do not try these kinds
24 of cases, so this is an effort, someone who does try
25 them, jump up and correct me if need be,
169
1 discrimination, for example, that it might give them
2 the argument that, to show statistical evidence
3 regarding patterns of discrimination as opposed to
4 discrimination as applied just in that particular
5 case, that's one example.
6 COMMISSIONER CONNOR: Okay. And then just to
7 close and wrap this up, because of the very thing that
8 you mentioned, a two-part question. One, if in fact
9 the data demonstrates statistical deviations that
10 suggest discrimination for a class of people in our
11 criminal justice system, A, would this amendment
12 afford any basis for relief for those who felt that
13 they could demonstrate that they fell within that
14 class? B, what are the implications, if any, of an
15 affirmative action program as it relates to remedying
16 the effects of past discrimination among those who
17 find themselves in the custody of our criminal justice
18 system?
19 COMMISSIONER BARNETT: It certainly would give
20 someone who is currently involved in the sentencing
21 phase or appealing the sentencing phase an opportunity
22 to raise evidence regarding discrimination or an
23 arbitrary application of the law.
24 COMMISSIONER CONNOR: But my question is for
25 those who have already been sentenced then and who are
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1 in the custody of the Department of Corrections?
2 COMMISSIONER BARNETT: I believe that people with
3 far more experience than I have already answered that
4 question, that there is the possibility that it could
5 give them an option to come back and raise those
6 questions and that the courts would have to deal with
7 that, that there is an opportunity. There is not the
8 intent to reopen the litigation. I think Commissioner
9 Kogan commented on the Court's ability to deal with
10 those summarily, or perhaps to, at their discretion,
11 perhaps, to look at them.
12 But it does give an opportunity, I believe, from
13 what I have heard, that that will happen. It's not
14 the intent of this to open that litigation up, but
15 it's not troublesome to me, that if in fact, that
16 occurred because -- because, particularly where the
17 ultimate punishment is being extracted, I would want
18 the opportunity to make sure that it's not being
19 imposed in a discriminatory matter.
20 COMMISSIONER CONNOR: Could you just respond to
21 the affirmative action issue that it may bear on? In
22 other words, if our data demonstrates a racial class
23 has been the apparent victim, at least from a
24 statistical standpoint, a pattern of discrimination,
25 would this language afford the benefit of enhanced
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1 relief under a potential affirmative action program?
2 COMMISSIONER BARNETT: I don't know the answer to
3 that.
4 COMMISSIONER CONNOR: Okay.
5 CHAIRMAN DOUGLASS: Does anybody else want to be
6 heard before Commissioner Connor? I think you wanted
7 the floor to speak on the proposal also in addition to
8 your questions.
9 COMMISSIONER CONNOR: I do. And I would welcome
10 hearing from others before I do that because I have
11 been wrestling, frankly, on this.
12 CHAIRMAN DOUGLASS: Are there any more proponents
13 before Commissioner Connor speaks? Any other
14 opponents before he speaks? Commissioner Connor, it's
15 your turn.
16 COMMISSIONER CONNOR: Mr. Chairman, I am going to
17 vote in favor of this proposal. And I do so, frankly,
18 with a great deal of internal conflict because I don't
19 know what the implications are. Certainly, I affirm
20 the notion that we ought to oppose, with all vigor,
21 arbitrary, discriminatory and capricious sentencing.
22 And I will tell you a story that probably is what
23 turns it for me.
24 When I was a young lawyer, I was attending a
25 trial lawyers meeting in a country club and after our
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1 meeting I had gone through the lounge area on my way
2 out to the car and a judge of that circuit and a group
3 of other lawyers were present, and this particular
4 judge had just recently been assigned to the criminal
5 division. And that was deemed by many judges penance
6 that had to be paid. It was not pleasant duty for
7 most judges.
8 And I asked the judge, I said, Well, Judge, how
9 are you enjoying your service in the criminal
10 division? And he made this response, and it was a
11 response I didn't expect. He said, Oh, Kid, he says,
12 I like it. And then this is a direct quote. He said,
13 I like putting the niggers in jail. You could have
14 knocked me over with a feather. I turned white as a
15 ghost, I was profoundly embarrassed. And there was
16 laughter from the group that was seated in this booth;
17 there were about five or six lawyers in that booth.
18 I made a hasty retreat and couldn't sleep that
19 night. And I later consulted with older, more
20 experienced lawyers in the circuit about what if
21 anything I should do, what if anything I should say
22 about it. And I was assured that those sentiments
23 could certainly not have been genuine, that I would
24 be -- I would be a -- I would prove to be a point of
25 embarrassment for the judge and that nobody would take
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1 that anything other than as coarse humor and that I
2 shouldn't say anything about it, and I didn't. I
3 didn't.
4 And over the course of time I saw this judge
5 cycle through the various assignments on the bench,
6 whether it be civil or family or criminal, and I
7 always worried about that and I always wondered about
8 it. And I was always -- I always wondered about
9 whether I had done the right thing not to say anything
10 about it, not to provoke a controversy about it. And
11 as a very young lawyer who was just feeling his way
12 around and trying to figure out how things are done
13 and listening to older lawyers, I took some comfort in
14 that. And we have all seen most recently in our
15 university system how a kind of, apparently, a casual
16 indiscreet remark could be interpreted.
17 The implications of that remark, I think, coming
18 from where it came from at the time, I think, had I
19 been black, and had I been representing criminal
20 clients, which I did not, I was a civil lawyer at that
21 point, would have, I am confident, provoked even
22 greater concern. Since this happened in my memory as
23 a lawyer. I'm old, but I ain't that old.
24 And after all of the gains that have supposedly
25 been made in the civil rights movement, I am confident
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1 that the public confidence in the administration of
2 justice will be enhanced by the inclusion of this kind
3 of language. I worry that it will produce the
4 potential for collateral attacks. I think that is a
5 legitimate concern and it is a concern I express to
6 you. And I worry about using statistical bases and
7 retrospective analyses for evaluating whether or not
8 discrimination occurred in a given case.
9 But I can tell you on the heels of an actual
10 experience, as a member of the Bar with a judge who
11 sat on the bench and who made that remark, however
12 cavalier it was intended, and however lacking genuine,
13 if it was, it was intended, it's made an impression on
14 me, notwithstanding the reservations and concerns that
15 I have about collateral attacks, that we do well to
16 make this a matter of explicit language within the
17 Constitution. I'm going to support it.
18 CHAIRMAN DOUGLASS: Discussion, further
19 discussion? If not, Commissioner Barnett, you can
20 close. Anyone want to speak? Go ahead.
21 COMMISSIONER BARNETT: Thanks, Mr. Chairman, and
22 thanks to the members of the commission. Because I
23 believe that Commissioner Connor's experience is not
24 unusual or unique in our justice system, then and now,
25 and because I believe the citizens of this state are
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1 fair and are just and want our justice system to
2 reflect our values is why I have brought this forward.
3 I was reading, in preparation for this, the
4 Racial and Ethnic Bias Study Commission. And there
5 was, on the cover of the document, there is a little
6 Aesop's fable and I would like to read it to you. I
7 have to put my glasses on, because like Commissioner
8 Connor, I'm getting older. But this I think was very
9 meaningful.
10 CHAIRMAN DOUGLASS: Commissioner Connor, you may
11 want to rise for personal privilege on that one.
12 (Laughter.)
13 COMMISSIONER BARNETT: Okay. A swallow had built
14 her nest under the eaves of a court of justice.
15 Before her young ones could fly, a serpent gliding out
16 of his hole ate them all up. When the poor bird
17 returned to her nest and found it empty, she began a
18 pitiable wailing. A neighbor suggested by way of
19 comfort that she was not the first bird who had lost
20 her young. True, she replied, but it is not only my
21 little ones that I mourn, but that I should have been
22 wronged in that very place where the injured fly for
23 justice.
24 That is our judicial system, and I believe that
25 when they appear before our system, they need to know
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1 that whatever sentence is imposed will not be
2 arbitrary, will not be capricious, and will not be
3 discriminatory; and I ask for your support.
4 CHAIRMAN DOUGLASS: Is everybody ready to vote?
5 There are people out of the chamber; have we got a
6 quorum? I think we have a quorum. Okay, a bare
7 quorum. Okay. We'll go ahead and vote and then we'll
8 find out if we have got a quorum, I guess. Open the
9 machine and let's vote.
10 (Vote taken and recorded electronically.)
11 CHAIRMAN DOUGLASS: Lock the machine and announce
12 the vote.
13 READING CLERK: Eighteen yeas, 4 nays,
14 Mr. Chairman.
15 CHAIRMAN DOUGLASS: By your vote, you have
16 adopted the proposal. The next proposal is No. 40 by
17 Commissioner Marshall who is back with us. He had
18 been excused for the morning part of the session, he
19 had an unavoidable absence. And I would ask you to
20 read it, please. It was approved by the Committee on
21 Education and re-referred and disapproved. So,
22 Commissioner Marshall, after she reads it, we'll call
23 on you to present the proposal.
24 READING CLERK: Proposal 40, proposal to revise
25 Article IX, Section 4, Florida Constitution;
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1 authorizing certain counties to be divided into more
2 than one school district.
3 CHAIRMAN DOUGLASS: Commissioner Marshall, you
4 are recognized.
5 COMMISSIONER MARSHALL: Thank you, Mr. Chairman,
6 Members of the Commission. Mr. Chairman, I think your
7 report of the action by the Education Committee may be
8 in error.
9 CHAIRMAN DOUGLASS: I was just reading what the
10 special order said.
11 COMMISSIONER MARSHALL: It may not be very
12 important, but my recollection is, and I think the
13 minutes of the Education Committee would bear this
14 out, was that, when it came up the first time on
15 December the 14th or thereabouts, the committee did
16 not take a vote. I had to be out of the room at the
17 time, and as a courtesy to me, they did not vote on
18 it. When it came to a vote last week, it was a tie
19 vote, three to three, I'm really quite sure of that.
20 That may not have any consequence here, but in any
21 case.
22 CHAIRMAN DOUGLASS: No, I think that's
23 appropriate to point out, because a tie vote without a
24 full committee is still a disapproval, but it's not
25 quite the same disapproval as a majority vote.
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1 COMMISSIONER MARSHALL: That's my interpretation,
2 Mr. Chairman.
3 CHAIRMAN DOUGLASS: Right. Commissioner
4 Marshall.
5 COMMISSIONER MARSHALL: I think the pages are
6 being passed out, not just an amendment, but a package
7 of some printed material. Is that it? Yes, under the
8 title of, Data on Selected Aspects of Florida Public
9 Schools. Is that being distributed? Because I would
10 like you to have that, Commissioners, because I want
11 to walk you through it.
12 Can somebody on the staff -- yes, here, it is. I
13 have one, thank you. The information contained in
14 that packet of material with the title -- under the
15 title, Data on Selected Aspects of Florida Public
16 Schools, was prepared originally for the presentation
17 to the Education Committee on December the 14th.
18 I call your attention to that information now, as
19 I did to the committee then, for a specific purpose,
20 to provide background information on the Florida's --
21 on the condition of Florida's public schools, without
22 which I don't think commissioners are in a position to
23 cast an informed vote on Proposal 40.
24 But in addition to that data, I think might play
25 a useful role for commissioners in debating,
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1 considering other issues of education. The advantage
2 of having hard data available on our schools relieves
3 us of the need to use terms like "good" or "bad" in
4 describing our schools. One is able to review the
5 data and then provide your own adjectives as to
6 whether our schools are good or bad.
7 Let me take just a few minutes to lead you
8 through these data, if I may, under the title of
9 selected aspects. And I'll move through this quickly,
10 but I think you will find this information to be of
11 some use. The first sheet after the cover is
12 entitled, Current Expenditures for Pupils in Public
13 Elementary and Secondary Schools. And if you will
14 look down the left-hand column for the years '74 and
15 '75, you will find Florida just a little ways below
16 halfway down at $3197.
17 If you go to the next column, Florida is a little
18 bit higher at $4,053. That's for '80 and '81. For
19 1990 and '91, Florida has moved -- I have one
20 someplace, a little higher, about a third of the way
21 down to $5761. And in the last column, '93 and '94,
22 we are just about at the halfway point among the 50
23 states, I guess it's 51 including the District of
24 Columbia in the nation.
25 If you will turn the page, we have the average
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1 SAT scores by state. That is a pretty good measure of
2 the quality of our public schools. Again, if you look
3 in the first column, 1974, '75, Florida is about
4 two-thirds of the way down of the 51 states in the
5 district. In the second column, 1980 and '81, we are
6 a little bit farther down. In the third column, still
7 a little bit farther, under '82, about four-fifths of
8 the way down, I suppose. And in the last column,
9 another notch or two lower. Again, we are comparing
10 Florida's achievements in terms of SAT scores with
11 other states in the country.
12 The next slide, the next page, shows our scores,
13 SAT combined scores from 1977 to '95 in comparison to
14 the scores from the rest of the country. I want to
15 call your attention in a rather special way to the
16 next page entitled No. 274, scholastic achievement,
17 and so on.
18 Some of the speakers that appeared before the
19 Education Committee in December were using adjectives
20 with which I could not totally agree. They described
21 Florida's public schools as being in pretty good
22 shape. They talked about gains in SAT scores for the
23 last few years, particularly -- or at least holding
24 steady with particular pointing -- making reference to
25 scores of minority groups, students who presumably
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1 were improving their standing.
2 Let me call your attention to this No. 274 point
3 because it starts in 1967. And if you look at -- look
4 first at verbal total for 1967, the score was 466, the
5 average score. It went down to 460 in 1970 and 434 by
6 1975. In fact, 424 by 1980. And then we begin to
7 recover and the scores have indeed increased some
8 since then.
9 But when we are comparing scores in recent years,
10 it's not fair, not wise, to fail to look at where we
11 were in 1967, because that is the reference point that
12 really counts. If you want to compare our students
13 with where they ought to be, you must start with the
14 decline that began about 1967 or '70.
15 The SAT scores were, I think the term is,
16 re-centered or repositioned in 1995 to in fact make
17 the scores look better than they are, and those data
18 are not included here.
19 The next sheet, high school graduation rates, you
20 will see that we are pretty well down two-thirds or
21 three-fourths of the way down in 1992, '93. In last
22 place in '94 and '95. A little better than that in
23 '95 and '96.
24 Let me caution you, however, Commissioners, to
25 say that we do not have a very precise way to measure
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1 graduation rates. And in fairness to our public
2 schools and those who operate them, I don't really
3 think Florida is that bad. But in some reasonable
4 analysis basis, we are near the bottom and not in very
5 good shape. Dropout rates are calculated in different
6 ways even in our own state and certainly in many
7 different ways across the country, so don't take that
8 too literally.
9 On the next page we see teachers as a percent of
10 school district total staff. And I included that to
11 let you know where we stand with respect to other
12 states regarding the number of our total school
13 personnel who are in the classroom.
14 Our teachers oftentimes complain that
15 appropriations for education oftentimes result in more
16 administrators, and counselors, and adjunct people of
17 various kinds and not more teachers. You can see that
18 the ratio is not very favorable; that is, we have,
19 compared to other states, more people, more school
20 personnel in administrative and other posts and fewer
21 in classroom teaching than most other states.
22 Turn to the next page, if you will please, table
23 20-2 shows the average science proficiency of
24 eighth -- scores of eighth grade students by country
25 and sex, and you will find the United States in the
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1 first column under country, about one-third of the way
2 down; not a terribly favorable position.
3 If you will turn the page to the next sheet, you
4 will see comparable scores for mathematics proficiency
5 in the eighth grade, and again you will find the
6 United States, well, a little over halfway down. Not
7 a very comforting set of data.
8 Now, I want to spend just a minute or so on
9 National Education Goals. In 1990, we had established
10 in this country an organization that goes under the
11 title of, The National Education Goals Council. And
12 if you will read the following red sheet under the
13 title, National Education Goals, or glance through it,
14 you will see that that is a bipartisan effort whose
15 purpose was to establish goals and then measure the
16 achievement of our public school students against
17 them.
18 I'm going through this pretty fast, but of course
19 you may go back and read any of that, refer to any of
20 that you like, and I'll be glad to try to respond to
21 it if you wish. The National Education Goals, eight
22 of those are shown on the next page. Those that we
23 are most concerned with are, in terms of academic
24 achievement, are 3, 5, and 7. And I'll refer to some
25 data in a little bit here that focuses on the academic
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1 achievements.
2 If you look at the next sheet under, Data
3 Highlights. That is worth spending a minute on, I
4 think, because it is a summary of the National Goals'
5 panel as to where we stand now with respect to our
6 attempts to achieve those goals. Reading achievement
7 at grade 12 has declined. The percentage of secondary
8 school teachers who hold a degree in their main
9 teaching assignment has increased. Fewer adults with
10 a high school diploma or less are participating in
11 adult education compared to those who have
12 postsecondary education.
13 Student drug use has increased. Attempted sells
14 of drugs at school have increased, threats and
15 injuries to public school teachers have increased.
16 More teachers are reporting disruptions in their
17 classrooms interfere with their teaching.
18 And then the next several sheets, I want to go
19 through those very quickly, give some examples of the
20 goals and our records in our attempts to achieve them.
21 If you look at Exhibit 6 on the next page, reading
22 achievement in grade 4, yes, the goal that the panel
23 hoped would be achieved by the year 2000 is shown on
24 the right as 100 percent achievement purpose.
25 And we were, in 1992, it's shown at 29 percent.
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1 And by 1994, 30 percent. If you look below that, you
2 will see the same corresponding results for grade 8
3 and below that for grade 12. And I won't read those
4 figures, you can see we are not in very good position
5 with respect to achieving those goals that we have set
6 up for the year 2000.
7 The next page shows a comparable result for
8 writing achievement in grades 4 and 8, a little
9 better, however. The next page, comparable results
10 for mathematics achievement in grades 4, 8 and 12, a
11 long ways to go if we were to achieve what we hoped to
12 by the year 2000. The next page, science achievement
13 for grades 4, 8 and 12.
14 And then we get into -- well, history achievement
15 on the next page. And on the next page gets into
16 student drug and alcohol abuse. Which you can see,
17 drug use has increased, alcohol use has maintained
18 pretty much the same level. And next page, sale of
19 drugs at school has increased. The next page,
20 disruptions in class by students has decreased a
21 little bit, increased according to teacher reports.
22 I'm not going to go through the rest of those,
23 Commissioners, because I think they speak for
24 themselves and you are free to examine those data at
25 your leisure.
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1 There are, at the end of the package, two sheets
2 on counties in Florida with elected superintendents
3 and appointed superintendents. I included those, not
4 because they have direct bearing on Proposal 40, but
5 because those -- the comparison of counties with
6 elected superintendents and appointed superintendents
7 is a matter of considerable interest to us in a number
8 of contexts. And if you want to refer to that data,
9 you may do so.
10 Commissioners, my point in taking your time to
11 look at these data is to try to persuade you that we
12 were in a desperate situation with respect to our
13 schools. I say again, I'm not here to criticize the
14 schools, public school bashing is not my niche. The
15 public schools have an enormous number of problems
16 that they are trying valiantly to deal with.
17 I have a very considerable investment in the
18 public schools in this country. I taught for six
19 years at the high school level, high school physics,
20 coaching athletics, and I have spent another good many
21 years in public education, all of my career in tax
22 support of institutions of higher education.
23 But I'm desperate for ways to improve educational
24 opportunities for Florida's children, particularly
25 those from the inner-cities and most particularly the
187
1 children from ethnic minority groups.
2 Proposal 40 would authorize the Legislature,
3 subject to local referendum, to subdivide large county
4 school districts into smaller, more manageable
5 districts, and more responsive districts. It is a
6 proposal that was advanced to us, I think, in Fort
7 Lauderdale, as I recall, by Representative Tom Warner,
8 an idea that was generated by Republican
9 Representative Warner and Senator Ron Kline, a
10 Democrat.
11 The proposal would apply only to school districts
12 with more than 45,000 students, and it would prevent
13 the creation of districts with fewer than 15,000
14 students. School funding in this proposal would not
15 be affected since funding would continue after the
16 action to change the district continued to be based on
17 county-wide tax rolls.
18 Additional safeguards include an independent
19 commission to draw district lines, review by the
20 courts to ensure compliance with applicable state and
21 federal law, and as the starting point in the whole
22 procedure, approval of a referendum by the voters in
23 the entire school district or the county.
24 Data from research shows that, on average, school
25 districts with 30 to -- 30,000 to 50,000 students have
188
1 lower administrative costs per student; those with
2 fewer than 30,000 and those with more than 50,000
3 students have higher administrative costs.
4 Research by Professor Lawrence Kenney of the
5 University of Florida shows similar results in terms
6 of academic performance. He's found that SAT scores
7 are 2 percent higher in states that have over two
8 districts per county than states with one or two
9 districts per county.
10 In other states, Alabama, Mississippi,
11 California, similar results have been shown. But the
12 most compelling argument in favor of Proposal 40, I
13 believe, is not reduce costs or improved student
14 performance, but the opportunities some small school
15 districts would provide for the enhancement of two
16 concepts I believe are essential to improving our
17 schools' accountability and parent participation.
18 I think I skipped over two sheets in the handout
19 materials in my haste to get through those, but if you
20 look back in those you'll find one of the sheets shows
21 that something like 78 percent of the parents surveyed
22 participate in after school meetings with teachers and
23 in other ways participated in the programs of the
24 schools their children attend.
25 At the same time, reports of teachers and
189
1 administrators, in terms of their invitations to
2 parents to participate in school affairs, I think,
3 comes out at something like 43 percent. And that
4 seems to me to contain a message. It's a message that
5 parents are more willing to participate, more eager to
6 participate in the education of their children than
7 the schools are in having them do so.
8 Let me say a few words further about the -- in
9 detail about what Representative Kline and Senator --
10 Representative Warren and Senator Kline have proposed.
11 The Legislature would enact a special law to draw
12 school district boundary lines which would be subject
13 to review, as I said a minute ago, by the circuit
14 court for compliance with applicable state and federal
15 laws. Funding for operation and capital outlay would
16 be calculated on a county-wide basis, which means that
17 tax monies would be earned and allocated to individual
18 schools on the same per student basis as they are now.
19 One of the questions that came up in the
20 committee hearings, committee review of this matter,
21 was what's happening in other states. And the staff
22 has been good enough to do some research on that. Let
23 me just run past you the names of some other states
24 and the numbers of school districts those states have.
25 Alabama has 127; Colorado, 176; Georgia at 101;
190
1 Indiana, 292; Kentucky, 176; Michigan, 555;
2 Mississippi, 153; and so on. There are a few states
3 that have fewer school districts than we do. Hawaii,
4 for example, has one, by act of their Legislature.
5 Most of those states, however, are not populous
6 states. Utah has 40. Wyoming has 49. Nevada has 17.
7 But the great majority of states have far fewer -- beg
8 your pardon, far more school districts than we have.
9 And that reflects an important concept in the
10 development, the evolution of the American public
11 school.
12 It started out to be a neighborhood enterprise,
13 one in which parents, taxpayers, citizens would play
14 an important role and it's difficult to do that in
15 school districts that are as large as some of ours.
16 Thirteen Florida counties would be eligible under
17 proposal 40 to subdivide into smaller districts, those
18 with 45,000 students or more. They are Dade, Broward,
19 Hillsborough, Palm Beach, Duval, Orange, Pinellas,
20 Polk, Brevard, Escambia, Lee, Seminole, and Volusia.
21 CHAIRMAN DOUGLASS: Commissioner Marshall, I hate
22 to interrupt you, but I'm reminded by the timekeeper
23 that you have used ten minutes and you certainly, you
24 know, I don't want to interrupt your presentation, but
25 that's the rule we try to limit to that.
191
1 COMMISSIONER MARSHALL: Thank you, Mr. Chairman.
2 I will wind up in a minute or so, thank you. The
3 major problems of our schools, I believe, are
4 structural. Massive school districts are simply not
5 structured to be accountable and responsive. I've
6 been asked also what the education establishment
7 thinks of this proposal. Commissioner Brogan
8 testified before our committee in one of our earlier
9 meetings and spoke favorably. On the chance that I
10 might have misunderstood him, I called Commissioner
11 Brogan last week to refresh my memory and he stated
12 once again his vigorous endorsement of Proposal 40.
13 I remind you finally that it's been 44 years
14 since Brown vs. Board of Education was handed down by
15 the United States Supreme Court. If you believe that
16 there has been significant progress for black
17 children, for minority children in our schools, you
18 are looking at a different set of data than I. It's
19 been 15 years since the publication of a nation at
20 risk, the publication put out by number of
21 distinguished Americans, in which they called the
22 condition of our public schools the moral equivalent
23 of war. If that's the case, we have lost the war.
24 And finally, let me say, reflect the thought
25 passed onto me by Commissioner Brogan. We are locked
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1 into a system of 67 school districts, some as large as
2 about -- one as large as 350,000 students, a system
3 that many people believe does not serve our students
4 very well.
5 If we don't do something about that now with
6 constitutional revision, we'll remain locked into that
7 system for another 20 years. I ask you Commissioners
8 to think carefully about whether or not you want to do
9 that. With that, Mr. Chairman, Commissioners, I
10 conclude my remarks only with a plea that you support
11 Proposal 40. Thank you very much.
12 CHAIRMAN DOUGLASS: Commissioner Scott.
13 COMMISSIONER SCOTT: Mr. Chairman, Commissioners,
14 let me speak briefly in favor of this. This comes out
15 of Palm Beach County, and if you don't know, that's
16 where Senator Kline and Representative Warner -- I
17 also represent part of that district, and it's
18 important for a number of reasons. I mean, we happen
19 to have drawn this county of Palm Beach which goes all
20 the way from Vero or north of Jupiter, I forget
21 exactly where it cuts off, down to Boca Raton.
22 And this proposal is optional, will require a
23 vote of that county and would allow them, if they
24 wanted to, in order to, if they believe, improve their
25 school system to have a south county and a north
193
1 county or whatever school district. It doesn't just
2 apply to them, but it is optional, it does require a
3 vote of the people.
4 And we are trying all sort of things in
5 education, charter schools, smaller schools, smaller
6 classrooms, smaller school districts may well work
7 well in some areas. And I at least think they ought
8 to have a chance to try it. So, we would ask your
9 favorable consideration.
10 I know it's late and on the last day of our
11 meeting, but you know, if you have questions as we go
12 along we can try and address them.
13 Some of the school people won't like this, I'm
14 sure. Perhaps some of the administration may not like
15 it, maybe some of the superintendents, but we think
16 there ought to be a chance for counties to try this.
17 So, I would ask your favorable consideration to
18 Commissioner Marshall's proposal.
19 CHAIRMAN DOUGLASS: Commissioner Riley who is
20 Vice Chairman of the Education Committee.
21 COMMISSIONER RILEY: Mr. Chairman, I had an
22 amendment that should have been passed out.
23 CHAIRMAN DOUGLASS: There is an amendment on the
24 table.
25 READING CLERK: On the desk, Mr. Chairman.
194
1 CHAIRMAN DOUGLASS: It's on the desk. Would you
2 read the amendment, please?
3 READING CLERK: By Commissioner Riley, on Page 1,
4 Line 26, "Delete the number 45,000 and insert 75,000."
5 CHAIRMAN DOUGLASS: All right. Commissioner
6 Riley.
7 COMMISSIONER RILEY: If I may speak to the
8 amendment. The Commission on Education -- the
9 Committee on Education did not support this
10 unanimously. And one -- there were a variety of
11 reasons. One of the main reasons that I did not, and
12 this amendment will fix that, is that as I look at the
13 list of number of students in the counties that we
14 have in the State of Florida, and we look at 20 years
15 of the effect of this amendment in our Constitution,
16 with the population growth that we have in this state
17 now and no doubt will continue to have, the number of
18 counties that this would affect, I think, would be
19 enormous, and that concerns me.
20 So I have, with the agreement of Commissioner
21 Marshall, added or made the amendment that the 45,000
22 instead would be 75,000. I'm more comfortable with
23 this, and I would ask that we support this amendment.
24 CHAIRMAN DOUGLASS: All right. This is on the
25 amendment. Commissioner Barkdull.
195
1 COMMISSIONER BARKDULL: Commissioner Riley, yield
2 for a question, please?
3 CHAIRMAN DOUGLASS: She yields.
4 COMMISSIONER BARKDULL: Commissioner, do you know
5 how many counties, if you go to 75,000, would be
6 impacted today?
7 COMMISSIONER RILEY: I gave my list to
8 Commissioner Marshall and I didn't get it back, but I
9 think it --
10 COMMISSIONER MARSHALL: Seven.
11 COMMISSIONER RILEY: Seven.
12 COMMISSIONER BARKDULL: Seven.
13 COMMISSIONER RILEY: Seven as opposed to the 13.
14 CHAIRMAN DOUGLASS: So, 20 total?
15 COMMISSIONER RILEY: Instead of 13, it would be
16 fewer counties that would be impacted by this.
17 CHAIRMAN DOUGLASS: Okay. So it would be 7
18 instead of 13?
19 COMMISSIONER RILEY: Yes.
20 CHAIRMAN DOUGLASS: On the amendment.
21 COMMISSIONER RILEY: If I may add to that, the
22 break in that is fairly large at that point, and so
23 the chances of those counties having lesser number of
24 students than the 75,000, it would be a good period of
25 time before they would have that number of students
196
1 probably that they would have the option of dividing.
2 CHAIRMAN DOUGLASS: All right. Any further?
3 Yes, Commissioner Barton.
4 COMMISSIONER BARTON: Perhaps I should ask
5 Commissioner Marshall, he has the list.
6 CHAIRMAN DOUGLASS: Go ahead. Commissioner
7 Riley.
8 COMMISSIONER RILEY: And maybe together we can
9 pull them together. But if you go to the paragraph on
10 the staff information on this proposal that has the 13
11 school districts that would be affected, it does not,
12 for instance, then include, I think, Polk, Pinellas,
13 Escambia; those are not affected. Probably those in
14 this group know the ones that are the larger,
15 obviously Dade, obviously Broward, Duval,
16 Hillsborough, Orange.
17 CHAIRMAN DOUGLASS: Pinellas.
18 COMMISSIONER RILEY: The typically larger
19 counties in our state.
20 CHAIRMAN DOUGLASS: Would anybody be able to tell
21 us which counties it affects? We know the large ones,
22 but where is the break?
23 COMMISSIONER MARSHALL: Mr. Chairman, yes, I have
24 some data provided through the kindness of
25 Commissioner Riley, although, Commissioner Riley, you
197
1 might be able to find this more quickly than I.
2 CHAIRMAN DOUGLASS: Well, does anybody -- while
3 we are waiting on this, Commissioner Morsani, do you
4 want to speak to this or do you have a question? You
5 have your choice.
6 COMMISSIONER MORSANI: No, I don't want to speak
7 to the amendment. It's 7 counties; you have already
8 named them.
9 CHAIRMAN DOUGLASS: This is an amendment.
10 COMMISSIONER MORSANI: Yes, I realize that.
11 CHAIRMAN DOUGLASS: Which raises the level to
12 75,000 from 45 which was in the original proposal. I
13 think what they were trying to do was to see what
14 counties were affected by this. But on the amendment,
15 I think if you're ready to vote on the amendment and
16 then we can go to the proposal, everybody in favor of
17 the amendment, say aye. Opposed?
18 (Verbal vote taken.)
19 CHAIRMAN DOUGLASS: It carries. It is now
20 amended and you are on the proposal. Now you can give
21 us that information.
22 COMMISSIONER RILEY: Now that you have voted on
23 them, can I tell you what they are?
24 CHAIRMAN DOUGLASS: Well, it's still there.
25 COMMISSIONER RILEY: Broward, Dade, Duval,
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1 Hillsborough, Orange, Palm Beach and Pinellas.
2 CHAIRMAN DOUGLASS: All right. Now Commissioner
3 Morsani.
4 COMMISSIONER MORSANI: I need a couple of
5 clarifications of Commissioner Marshall. We hear all
6 these statistics and I'm confused about in some of
7 your data, and I just -- I'm sure I just don't
8 understand it. In the data on selected aspects of
9 Florida public schools there's an inconsistency, or
10 there's probably not, but I just don't -- maybe I
11 can't add. You know, in the automobile business, we
12 don't know how to add and multiply, we don't know how
13 to subtract and divide.
14 CHAIRMAN DOUGLASS: You do when you are filling
15 out a contract.
16 COMMISSIONER MORSANI: I said multiply and to
17 add, we know how to subtract and divide. But if you
18 look at where it says, as an example, any part of it,
19 it says "appointed superintendents," you're saying
20 like in Hillsborough County, teachers as a percent of
21 district staff, 89.9 percent and on the average
22 87.6 percent, and without, with elected
23 superintendents, 88.36 percent.
24 However, in your other data sheet, up close to
25 the front, it says that teachers, as a percent of
199
1 total district staff, is 48.76. I don't understand
2 where I'm missing something.
3 COMMISSIONER MARSHALL: The first one showing
4 teachers as percent of total school district staff is
5 a statewide average.
6 COMMISSIONER MORSANI: That's right.
7 COMMISSIONER MARSHALL: And that's a long ways, I
8 admit, 48.76 percent from 88.3 percent reported by --
9 COMMISSIONER MORSANI: No, you go on back and
10 look at both of those sheets.
11 COMMISSIONER MARSHALL: For statewide averages
12 for those counties?
13 COMMISSIONER MORSANI: Well, for the whole
14 county. Look at the statewide average on those two
15 sheets are entirely different numbers than what you
16 have got on the front sheet.
17 COMMISSIONER MARSHALL: Yes, it is indeed,
18 Commissioner, and I have no explanation. I didn't
19 notice that and I should have. This information I
20 obtained from the Department of Education and the
21 National Center for Education Statistics. I have no
22 explanation; they are entirely inconsistent.
23 COMMISSIONER MORSANI: I took my little orange
24 pen and arrived at that because I want to support the
25 proposal, but I am -- also, are the class sizes
200
1 correct? We hear all of the data saying, and we were
2 just looking at -- going back to those two sheets,
3 then, we are saying that the average class size is
4 17.4 or 16.53. So I'm wondering if that's for the
5 whole state, and yet we have been given information
6 that it's 35 or something. What is the right class
7 size in the State of Florida? I don't have any
8 children in these -- in school. I just find this
9 data -- something is wrong.
10 COMMISSIONER MARSHALL: I understand,
11 Commissioner Morsani. I can answer that question
12 without referencing any of this data because I
13 followed that closely for years. The average class
14 size in Florida is now about 17.5 or 17.6. It was 20
15 when I first began to look at this information to be
16 involved 15 or 20 years ago. The 35 figure you hear
17 about may apply to some school districts as an average
18 class size for some grades. But the average, the
19 average class size for the state is about 17.5.
20 COMMISSIONER MORSANI: Well, it's very
21 encouraging, but I just wanted to make sure when I saw
22 the other thing -- I just didn't want to --
23 COMMISSIONER MARSHALL: We're in a much more
24 favorable condition in that regard than most other
25 states.
201
1 CHAIRMAN DOUGLASS: Commissioner Freidin.
2 COMMISSIONER MORSANI: Now, I'm sorry, that is
3 only a couple of questions, I am not through yet, sir.
4 I apologize Commissioner Freidin. The next question,
5 Commissioner Marshall, if I understood the concerns
6 that a lot of us had was to make sure that we didn't
7 have an abnormal number -- we don't want to create
8 what we had in 1955.
9 Now, so on the financial side then if we are
10 spending $5171 per student today or $6,000 per student
11 today, if we were to break up and have these separate
12 districts of 75,000 students but each student would
13 still, regardless of the tax base in that district,
14 i.e., if it was in a ghetto part of town or versus an
15 affluent part of town, that the same dollars would be
16 spent on each student regardless where these schools
17 or students were living. Do we make that assumption?
18 COMMISSIONER MARSHALL: We can indeed,
19 Commissioner. The same number of dollars would be
20 earned by each student and would travel to that school
21 in which that student is enrolled. The actual
22 expenditures, of course, depend upon the
23 administrators. But the earnings per student would
24 remain the same.
25 COMMISSIONER MORSANI: So we don't have any
202
1 disparaging -- any problem in the financial arena?
2 COMMISSIONER MARSHALL: That's correct, sir.
3 COMMISSIONER MORSANI: Thank you, Commissioner.
4 CHAIRMAN DOUGLASS: All right. Commissioner
5 Freidin was next. You're next, Commissioner Mathis.
6 COMMISSIONER FREIDIN: I wanted to ask a question
7 of Commissioner Marshall and I then wanted to make a
8 comment. Commissioner Marshall, is there anything
9 that would be accomplished by this that school
10 districts can't do now already? It seems to me
11 like -- I mean, I must admit that I'm not a well
12 educated -- I'm not well educated in the field of
13 education but that I understand that in Dade County
14 the school -- the Dade County district is divided into
15 divisions, and I understand that certain
16 responsibilities are actually divvied up and given out
17 to the heads of those divisions. And I don't -- not
18 even knowing what the responsibilities are that each
19 division head has, I'm wondering why you couldn't
20 accomplish this by having a school district that then
21 makes the decision on its own to go divide up into
22 divisions and do whatever, you know, whatever you're
23 trying to achieve here.
24 COMMISSIONER MARSHALL: Commissioner, I think
25 the -- there are a couple of answers to that, but
203
1 maybe the most basic answer is that there still is one
2 school board. The policy for all of the schools in a
3 district is established by the school board. They
4 play a very important role in deciding -- determining
5 what happens in those schools. When there is one
6 school board, that school board, in Dade County it's
7 nine people, must respond to the families of 300 and
8 nearly 50,000 students. And if you're going to, as a
9 parent, effect a change in the nature of the schools,
10 you almost have to go to the school board because
11 that's where school policy is established, that's the
12 essence of the neighborhood concept, the concept of
13 neighborhood schools.
14 And when you don't have a school board in charge
15 of a manageable number of students, it's pretty hard
16 for a parent to get to that school board and be heard.
17 I think that's the essential question. The other
18 answer to it may very well be that the superintendent
19 is still the administrator in charge of all the
20 schools in the district, and if he or she divides the
21 district up into smaller units, it's still under the
22 control of one administrative officer and that has
23 meaning in terms of variability, of innovation, of
24 trying new things. And I think it's just more
25 difficult to do where there is one administrator in
204
1 charge of 350,000 students.
2 COMMISSIONER FREIDIN: Is there any reason
3 currently that the school board or the school
4 superintendent could not delegate responsibility to
5 smaller units?
6 COMMISSIONER MARSHALL: I think there is no
7 reason why they could not, no.
8 COMMISSIONER FREIDIN: And that would be true of
9 any function that the school board performs?
10 COMMISSIONER MARSHALL: I think that's true, yes.
11 CHAIRMAN DOUGLASS: Commissioner Marshall, before
12 we go further, Commissioner Butterworth had left an
13 amendment and he's not here to move it; are you
14 familiar with it?
15 COMMISSIONER MARSHALL: I am if it's the
16 amendment that I think it is. I thought that it had
17 been adopted by the Education Committee, if it's the
18 amendment I think it is.
19 CHAIRMAN DOUGLASS: It's not part of the proposal
20 that's in my book. Excuse me, Commissioner Freidin.
21 He has -- Commissioner Butterworth had an amendment to
22 propose but isn't here to propose it, so.
23 COMMISSIONER MARSHALL: Yes, I asked Commissioner
24 Butterworth about that yesterday before he left, and
25 he seemed to be of the opinion too that it had been
205
1 included. The essence of it was that capital outlay,
2 the bonding and all that that implies, would be
3 included --
4 CHAIRMAN DOUGLASS: One of the major differences
5 was in how the, instead of saying you may create a
6 special -- maybe create to say "shall" be create these
7 commissions. And it had some other language in it
8 that seems to be a little different. It was more like
9 mandatory than directly. All right. The amendment,
10 at least, and I hate to do that but I didn't realize
11 that it wasn't being presented. Commissioner Freidin,
12 did you want to speak on this, or did you have other
13 questions?
14 COMMISSIONER FREIDIN: I was in the middle of
15 talking on the proposal. If I should sit down now and
16 get up later, I will be happy --
17 CHAIRMAN DOUGLASS: You stand there because I
18 want to make sure I don't forget you this time. Stay
19 in the line of fire for me.
20 COMMISSIONER MARSHALL: Mr. Chairman, where do we
21 stand?
22 CHAIRMAN DOUGLASS: Well, I just wanted to know
23 if this had any -- what we should do.
24 COMMISSIONER MARSHALL: Mr. Buzzett has just
25 handed me, Mr. Chairman, a copy of the Butterworth
206
1 amendment that includes all of the, yes, the initial
2 proposal, as amended by Commissioner Butterworth, and
3 this includes what has been intended, what I've
4 intended and what I think the committee endorsed all
5 along. So with your permission, I'll move the
6 adoption of the Butterworth amendment now.
7 CHAIRMAN DOUGLASS: What she tells me happened in
8 the committee was this went to the committee, the
9 committee approved it, made it a part of the
10 amendment, then they defeated it 3-3, as you reported,
11 so it never came out with this in it.
12 COMMISSIONER MARSHALL: Then, Mr. Chairman, I
13 would like to move, if it's appropriate, the adoption
14 of the Butterworth amendment.
15 CHAIRMAN DOUGLASS: It's amendment number one
16 which we'll read offered by Commissioner Butterworth
17 and Commissioner Marshall since Commissioner
18 Butterworth isn't here, and it's on the desk. And I'd
19 ask that it be read.
20 READING CLERK: By Commissioner Butterworth, on
21 Page 1, Line 14, through Page 2, Line 4, "Delete those
22 lines and insert lengthy amendment."
23 COMMISSIONER SUNDBERG: Mr. Chairman, a point of
24 order.
25 CHAIRMAN DOUGLASS: Yes, Commissioner Sundberg.
207
1 COMMISSIONER SUNDBERG: Didn't we just adopt an
2 amendment that set the limit at 75,000 students as
3 opposed to 45,000, and this is contrary to that?
4 CHAIRMAN DOUGLASS: We sure did. We sure did.
5 COMMISSIONER SUNDBERG: Who has drafted the
6 amendment?
7 COMMISSIONER RILEY: Starting back again, we
8 fixed that problem.
9 CHAIRMAN DOUGLASS: Commissioner Riley has fixed
10 that problem.
11 COMMISSIONER RILEY: And changed the line number
12 to Line 19.
13 COMMISSIONER SUNDBERG: Has it been fixed in this
14 amendment?
15 COMMISSIONER RILEY: No, that amendment was --
16 CHAIRMAN DOUGLASS: Would you move to amend this
17 amendment to conform with the --
18 COMMISSIONER SUNDBERG: I will indeed, I will
19 indeed for the purpose of considering this amendment.
20 That doesn't mean I'm going to support it.
21 CHAIRMAN DOUGLASS: We now have an amendment to
22 the amendment on the table by Commissioner Riley.
23 We'll read it, please.
24 READING CLERK: By Commissioner Riley, on Page 1,
25 Line 19, "Delete the number 45,000 and insert 75,000."
208
1 CHAIRMAN DOUGLASS: And that's to the amendment
2 that's on the table, on the desk. All right.
3 Everybody in favor of the amendment, signify by saying
4 aye. Opposed?
5 (Verbal vote taken.)
6 CHAIRMAN DOUGLASS: It carries. Now we're on it
7 the way, Commissioner Marshall, that you thought it
8 came out of committee. And, Commissioner Freidin, you
9 had the floor when we started all of this. You're on.
10 You have the floor.
11 COMMISSIONER FREIDIN: The --
12 CHAIRMAN DOUGLASS: Oh, are you ready to take
13 action on the amendment as amended? Do you want to
14 debate?
15 COMMISSIONER BARKDULL: I do not have the
16 Butterworth amendment in front of me.
17 CHAIRMAN DOUGLASS: Hasn't it been passed out?
18 COMMISSIONER BARKDULL: I understood the Chair to
19 say the Butterworth amendment made the division
20 mandatory. The one that's been just handed me still
21 has it permissive.
22 CHAIRMAN DOUGLASS: All right. The Butterworth
23 amendment that we're on, as I read it, it says, "In
24 order to divide a county school district under this
25 provision, notwithstanding any other provisions of the
DIVISION OF ADMINISTRATIVE HEARINGS (850) 488-9675
209
1 Constitution, a commission made up of residents of the
2 county shall be created by special law to draw
3 district boundary lines, allocate assets, and provide
4 for the contractual obligations, debts and bonded
5 indebtedness of the school district, all of which
6 shall be subject to review by approval of the circuit
7 court for compliance with state and federal law," et
8 cetera.
9 That is different from what we had before us
10 before, and this was understood by Commissioner
11 Marshall to have been adopted in committee, but for
12 the reasons that it was explained, it was not. So now
13 it has been adopted with the amendment with the 75,000
14 replacing the 45,000 figure. And we're on this
15 amendment as amended right now.
16 COMMISSIONER BARKDULL: Thank you.
17
18 CHAIRMAN DOUGLASS: Okay Commissioner Barton,
19 question?
20 COMMISSIONER BARTON: Mr. Chairman, on Line 20 it
21 says the county may be divided.
22 CHAIRMAN DOUGLASS: That's correct.
23 COMMISSIONER BARTON: And then where it's talking
24 about shall, it's in order to divide they shall.
25 CHAIRMAN DOUGLASS: It also says, "May be
210
1 divided" in the first sentence of the existing one.
2 This doesn't mean they have to do it, but it says in
3 order to do it they have to have this mandatory
4 commission.
5 COMMISSIONER BARTON: But that's not the enacting
6 point of it. Line 20 is where it may be divided, it
7 seems to me.
8 CHAIRMAN DOUGLASS: No, no, no. The original
9 proposal provided that it may be divided. It's up to
10 the counties, it's not up to the district, it's not up
11 to anybody else. And then if they do vote to do that,
12 then they shall, under this amendment, create the
13 commission as provided there. It shall be created by
14 special law. Is that your understanding, Commissioner
15 Riley, that these may -- that where that may be done
16 is at the very beginning, they don't have to do it.
17 But if they do it, then they shall do it in this
18 matter?
19 COMMISSIONER RILEY: Right, if they decide
20 they'll look at it, this is the procedure that they
21 have to go through to do it, but they certainly don't
22 have to.
23 CHAIRMAN DOUGLASS: Okay. All right. Now,
24 Commissioner Freiden, we're going to get you back into
25 the --
211
1 COMMISSIONER FREIDIN: Thank you, Mr. Chairman.
2 CHAIRMAN DOUGLASS: I don't know. She may be
3 speaking on the amendment. Are you speaking on the --
4 COMMISSIONER FREIDIN: Well, I think that I can
5 talk on the amendment or I can talk on -- it's all the
6 same issue.
7 CHAIRMAN DOUGLASS: Well, all in favor of the
8 amendment, say aye. Opposed?
9 (Verbal vote taken.)
10 CHAIRMAN DOUGLASS: Now we got it right where you
11 can debate it on its merits.
12 COMMISSIONER FREIDIN: Commissioners, I would
13 like very much for us to find something to do about
14 the poor state of affairs that Mr. Marshall has so
15 eloquently shown to us in the packet and that he gave
16 us and in the talk that he has given to us, because it
17 is a very -- it's almost shocking to see how bad we're
18 doing in education in the State of Florida.
19 I'm not convinced, however, that this proposal
20 will do anything to get us where we need to be that
21 can't be done already. And for that reason, I will
22 vote no. But I have another reason as well. For
23 those of you who are listening, who are listening to
24 the questions that I was asking, I --
25 CHAIRMAN DOUGLASS: She is speaking in opposition
212
1 to this, so if you will listen please.
2 COMMISSIONER FREIDIN: For those of you who were
3 listening, you know where I was headed with that, and
4 for those of you who weren't listening, I wanted to
5 repeat it. It seems to me that this is something
6 that, if our goal is to create smaller educational
7 units where families and parents can have more input
8 and where localities can take ownership of the
9 education that's provided to their children, I think
10 that school districts really can do that now, and I
11 think that's been done in other places. And I know
12 that the City of New York did it with some success and
13 also some very major failure. And in the end, I think
14 the City of New York, and this is probably debatable,
15 has found that, in fact, centralized leadership really
16 was very important, that things happen when you divide
17 large counties into small areas, that while it might
18 work in some areas, that it doesn't work in all areas.
19 And that leads me to my second concern which
20 probably is my even greater concern here, and that is
21 in a major metropolitan area I think that there is a
22 grave danger that what will happen is that the
23 districts, the divisions of the county, will be made
24 based on racial, ethnic and economic lines because
25 that's generally people -- how people live. And I
213
1 think that it would be a natural way of doing it. I
2 think it would be a grave danger.
3 I think that we may end up with an educational
4 system that goes back to the old concept of separate
5 but equal. I hope that it would be equal, but I would
6 really hate very much for it to be separate. With
7 that said, I will vote against this and urge you to do
8 the same.
9 CHAIRMAN DOUGLASS: Okay. Commissioner Mills.
10 COMMISSIONER MILLS: Mr. Chairman, will
11 Commissioner Marshall yield for a question?
12 CHAIRMAN DOUGLASS: First thing I want to do is
13 call for a quorum.
14 (Quorum taken and recorded electronically.)
15 CHAIRMAN DOUGLASS: I make the quorum.
16 Commissioners, I want to ask you this though. Are we
17 going to be taking up something as important as this
18 with 17 members missing or should we take up anything
19 else for the rest of the day?
20 We have -- it's unfair one way or the other, it
21 could be, depending on how the votes arrive and then
22 we have to come back on reconsideration and consider
23 all these things again. We can't make people do their
24 duty, we know that, and they all have or have had
25 some -- those that have had to leave have stated what
214
1 were compelling reasons.
2 On the other hand, we knew we had this meeting;
3 we know we have got to complete our work. I think if
4 we can only barely muster 21, including the Chairman,
5 that as important an item as this is, Commissioner
6 Marshall, that we probably should not -- or we should
7 recognize, even if we pass it, that it's not going to
8 get a sufficient number of votes to ever put it on the
9 ballot; in fact, we don't have that many people here.
10 So we have less than three-fifths of the body.
11 I'm willing to do whatever anybody wants to do,
12 but it seems to me it's not fair to you that are here
13 to have to pass on these full-well knowing we may have
14 to come back and sit through it all again. Now I'd
15 entertain a motion to adjourn. Well, let's let our
16 rules chairman -- and he's not even here, he sneaked
17 out. He is here. This shows I don't have eyes in the
18 back of my head anymore. I used to do a lot better
19 when I was younger. Commissioner Barkdull, as the
20 rules chairman, what's your call on this?
21 COMMISSIONER BARKDULL: I think the sentiment is
22 that we recess at this time. I do not want to cut off
23 Commissioner Marshall if he would like to proceed to a
24 vote on this. I would say that we would entertain a
25 motion to recess at the conclusion of the matter
215
1 that's presently before the body.
2 CHAIRMAN DOUGLASS: Commissioner Marshall, what's
3 your pleasure?
4 COMMISSIONER MARSHALL: My choice would be, sir,
5 to recess and to consider this when there are more
6 members of the Commission present. I think it's too
7 important to consider with this limited number.
8 CHAIRMAN DOUGLASS: All right. Then Commissioner
9 Connor has made a motion to, I guess -- how would a
10 motion be, Commissioner Barkdull?
11 COMMISSIONER BARKDULL: Well, it would be to
12 recess until our next scheduled meeting at 1:00 on
13 Monday, February 9. I would ask that before they put
14 that motion, that we have an opportunity for some
15 announcements and whatnot.
16 CHAIRMAN DOUGLASS: Very well. Proceed with the
17 announcements. A motion to adjourn is not debatable.
18 COMMISSIONER CONNOR: I withdraw the motion
19 pending announcement, not the least of which would be
20 I'd like to withdraw Proposal 178, Mr. Chairman.
21 CHAIRMAN DOUGLASS: We'll let you do that right
22 now.
23 COMMISSIONER CONNOR: Valid access issue and
24 that's been resolved.
25 CHAIRMAN DOUGLASS: Without objection, 178 is
216
1 withdrawn. Now, Commissioner Barkdull.
2 COMMISSIONER BARKDULL: Does anybody else have
3 anything they want to withdraw? For the information
4 of the Commission, we're not scheduled to convene at
5 1:00 p.m. on Monday, February 9th. I've been asked,
6 and I'm going to recommend to the Rules Committee,
7 that Proposition 107 which relates to parental
8 consent, Commissioner Connor, I'm talking about 107,
9 parental consent, I'm recommending to the Rules
10 Committee would be the first item up that afternoon.
11 So for the benefit of everybody that knows it.
12 And secondly, it would be the policy of your
13 Rules Chairman, unless overruled by the Chair, to call
14 a point of order every time somebody wants to move or
15 temporarily pass a matter which takes a waiver of the
16 rules, which takes two-thirds of all the Commission.
17 So when we get back in here, please be prepared
18 to go to work, and if you see some of those that are
19 not in here now, please advise them of the sentiment
20 that I have just stated because we only have nine --
21 not full nine working days, nine partial days left to
22 complete this work before we have to give up this
23 chamber and this excellent support staff we have.
24 So we've got to start moving some of these
25 proposals. I have nothing further unless there --
217
1 CHAIRMAN DOUGLASS: Well, do we have to announce
2 for the record we're deferring Proposal 40 and the
3 continuation of it will be the first order of
4 business, then the first proposal taken up, new
5 proposal, will be the one you mentioned.
6 COMMISSIONER BARKDULL: Well, yeah, and we also
7 have some motions for reconsideration that were made
8 and were left pending that will come up.
9 CHAIRMAN DOUGLASS: That's true.
10 COMMISSIONER BARKDULL: They will be, really, the
11 first item. And then we'll finish 40, and the first
12 new proposal we will take up will be 107.
13 CHAIRMAN DOUGLASS: Now, something else -- oh,
14 the journal didn't reflect that Commissioner Scott had
15 been appointed to the Style and Drafting Committee, so
16 I make that announcement again so it will be included
17 in this journal. All right. Is there anything
18 further?
19 COMMISSIONER BARKDULL: I move that we recess
20 until 1:00 p.m., Monday, February 9th.
21 CHAIRMAN DOUGLASS: Very good. Thank all of
22 you-all for staying, and when you see those who are
23 not here, chide them, fiercely chide them.
24 (Session concluded.)
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218
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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