All diligent city officials and parties dealing with municipalities should have a basic familiarity with their state constitution. The nature of the document, as well as the scope of subjects that are addressed within a constitution, makes this a practical necessity. The Florida Constitution is the basic source for all state legal questions, and it answers questions regarding the following: the operation of municipalities; the ability of a municipality to regulate and enforce ordinances, to provide services, to raise revenues, to borrow money, and to acquire property; and the process for accomplishing these activities. The Florida Constitution also deals with subjects like city-county relationships, the right of city employees to bargain terms and conditions of employment, the right to be sued, the right to create courts and administrative boards, and even the very existence of municipalities.
The purpose in writing this Article is to educate people about municipal issues by exploring the importance of constitutions, providing an overview of the Florida Constitution, and surveying different sections of the Florida Constitution affecting municipalities.
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We all make mistakes. Often, once we become aware of our mistakes, we are able to fix them. We retrace our steps, and the second time around, we do correctly what we could have done and should have done in the first place. It is common knowledge that local governments also make mistakes.
Less well-known is that governments have the opportunity under Florida law to fix certain mistakes through legislation enacted after the fact for an express, curative purpose. Like any person, a government may be permitted to retrace its steps and correct its mistakes. There are, however, a few caveats. Not all governmental mistakes can be as easily fixed as our own. And, unlike the rest of us, a government must be careful not to enact legislation that works retroactively to deprive its citizens of their vested rights.
This Article explores the ability of local governments within Florida to enact legislation to cure defects in flawed governmental actions. Surprisingly, curative legislation may be valid even if it is enacted only in response to a lawsuit initiated by unhappy citizens who have sued their government to challenge its mistake.
Whether it is discussed in the context of homeland security, economic implications, or allegations of racism, the issue of immigration is a perennial hot-button topic. Though much of the debate and discussion takes place at the national level as various “talking heads” argue the merits of guest-worker programs versus fence-building initiatives, the task of actually dealing with immigration on a tangible scale most often falls to city and town governments. Local officials, not federal immigration officers, bear the burden of dealing with the problems presented by an influx of undocumented workers. While some local governments or citizens have attempted to “round up” illegal immigrants and report them to the nearest Immigration and Naturalization Service (INS) branch office, or have simply tried to run illegal immigrants out of town, not all municipalities choose such harsh tactics. Factors such as lack of adequate law enforcement, feared economic disruption, and simple human compassion have compelled some municipalities to seek alternative methods of addressing the problems created by growing immigrant populations.
In fall 2006, four classes of second- and third-grade boys and girls started back to school at Belcher Elementary, a public school in Clearwater, Florida, but this year these students learned apart from each other. In addition to these segregated classes, the Florida House Education Committee considered requiring single-sex classes at schools that earned a D or F on the state’s annual report card. These four single-sex classes joined the then 262 public schools in the United States offering single-sex educational programs, 3 and more are forthcoming. In 1995, only three public schools offered single-sex classes in the United States. Barely ten years later, single-sex schools and classes are on the rise, especially since 2002 when the Department of Education6 (DOE) indicated its intent to amend Title IX of the education Amendments of 19727 (Title IX) to “provide more flexibility for educators to establish single-sex classes and schools at the elementary and secondary levels.”
In the fall of 2006, the DOE announced new rules (Amendments) permitting single-sex public education. These Amendments represent a major change in Title IX, which prohibits sex discrimination in educational programs or activities that receive federal funds, generally public schools. According to the amended regulation, states and school districts may have public single-sex classes, schools, or activities as long as students, or their parents, volunteer to participate in them and there is a “substantially equal” coeducational (or another single-sex) class, school, or activity for students of the excluded gender.
Steven B. Stanton was Largo, Florida’s longest tenured city manager. For fourteen years, he oversaw the city’s 1,200 employees and $130.6 million budget. City commissioners gave him good performance evaluations and had recently increased his pay. But Stanton was fired from his $140,000-a-year job when the news media revealed that he would be undergoing sexreassignment surgery and returning to work as Susan Ashley Stanton. Several city commissioners said he had violated their trust by keeping his transition a secret. They insisted Stanton
was not fired because he was transgender but because they had lost faith in his honesty, integrity, judgment, and ability to lead.
In contrast, when Mike Penner, a veteran sportswriter at the Los Angeles Times, revealed he was transgender, his employer supported his decision and allowed him to come out to readers. Penner was reluctant to go public and had considered resigning after seeing what happened to Stanton. Penner’s editor, however, insisted, “we don’t want what happened to Susan Stanton to happen here.” Not only did Penner (now known as Christine Daniels) receive a promotion, the Times gave her a blog, “Woman in Progress,” to write about her transition.
In 1997, the National Conference of Commissioners on Uniform State Laws (NCCUSL)1 adopted the revised Uniform
Guardianship and Protective Proceedings Act (UGPPA). The 1997 version contains significant revisions to the UGPPA, especially to Articles 1 and 3. After a two-year process of debate, drafting, and revisions, the Commissioners adopted the final version of the Act.
It is now ten years after the adoption of the UGPPA6 and issues in guardianship law have evolved since its adoption. In the past ten years, more emphasis is being placed on court monitoring, mediation has been used to resolve some disputes in guardianships, significant issues regarding interstate and cross-border guardianships have developed, a new Uniform Power of Attorney Act has been adopted, a uniform act for resolving guardianship-jurisdiction questions was adopted, and the Uniform Trust Code was adopted.
The durable power of attorney, widely used in every jurisdiction, is a statutorily sanctioned vehicle for creating an agency relationship that survives the principal’s incapacity. The Uniform Probate Code first included durable power provisions in 1969 to offer an inexpensive method of surrogate decisionmaking. Although originally promoted as beneficial for those whose modest assets did not justify pre-incapacity planning with a trust or post-incapacity property management with a guardianship, the durable power of attorney is now used by both the wealthy and non-wealthy for incapacity planning as well as convenience. After more than three decades of using durable powers of attorney, we have the benefit of common experiences, best practices, and legislative trends to inform our assessment of durable powers as an alternative to guardianship. This Article examines that aggregate experience to distill important lessons not only for the use of durable powers, but also for legislative reform to improve their efficacy as a means of surrogate property management.
I want to ask a simple question. Just what is the relation of a guardian to the ward? Certainly, it is a fiduciary relationship, with the guardian having a duty of care and loyalty to the ward, but that does not quite capture it. A guardian is a particular type of fiduciary; one different in authority and accountability from, say, a trustee acting under a trust instrument or a corporate director whose authority derives from the shareholders and who is accountable to them. The fiduciary duties of both a trustee and corporate director are created by private arrangements. Courts become involved, if at all, only when the private arrangement breaks down—when those to whom the fiduciary owes a relationship, the shareholder or the beneficiary of the trust, do not receive satisfaction from the fiduciary.
Elder law attorneys, guardians, conservators, and judges are frequently faced with sorting out complex jurisdictional issues caused by our society’s increasing mobility. For example, a person with declining capacity may need the assistance of a guardian, but if she has spent time in more than one jurisdiction, or needs to be moved to another area to receive care, where should the guardianship petition be filed? If two or more probate courts have jurisdiction, which is the more appropriate forum to hear the matter? After a guardian has been appointed, can that guardian place the ward in a nursing home in another jurisdiction? Will the conservator be able to transact the ward’s business in another state? If the court in another state appointed the guardian, will its order be given full faith and credit by another jurisdiction? Which court will oversee the guardianship if the ward, guardian, or both move to a different state? What criteria should the court employ to determine if it has jurisdiction to appoint a guardian for an incapacitated person who is temporarily located in the state or for a resident who is now living in a long-term care facility in another state?
In 1991, the American Bar Association (ABA) Commission on the Mentally Disabled and Commission on Legal Problems of the Elderly conducted a national study on guardianship monitoring and recommended steps courts could take to strengthen guardian accountability (1991 ABA study). The intervening fifteen years have seen vast changes in demographics, court technology, and adult guardianship law. These developments provide a compelling need to review guardianship-monitoring practices and assess changes since the ABA study. Therefore, in 2005 the AARP Public Policy Institute, in conjunction with the ABA Commission on Law and Aging, conducted an updated survey to examine current court practices for guardian oversight (2005 AARP survey). This Article presents the 2005 survey findings.