Category: Volume 47 Page 1 of 2

Taking the “Urgent” Out of Financial Urgency in Florida Public Sector Labor Law

The “Financial Urgency” provision of the Florida law governing public sector labor relations went all but unnoticed in the courts for nearly fifteen years after it was enacted. That changed dramatically in 2008. Battered by the Great Recession and desperate, some local governments saw Financial Urgency as a possible way out. On its face, the provision allows governments to force public employee unions to bargain when they might otherwise refuse. That, in turn, could permit the employer to enforce cost‐saving changes to labor contracts, a powerful and attractive tool for a local government in financial straits. Predictably, the unions sued. The administrative and court decisions were essentially standing up for local governments. Then the Florida Supreme Court kicked the legs out from under it all in Headley v. City of Miami. Financial Urgency is now effectively meaningless.

Pilot Agreements Have Liftoff: City of Largo v. AHF-Bay Fund, LLC

Despite their long history, payment in lieu of taxes (“PILOT”) agreements recently came under attack at the Florida Supreme Court. Local governments use PILOT agreements to contract with otherwise tax‐exempt land owners to secure payment for municipal services that would normally be paid for through tax revenue. This allows local governments to encourage development that provides a public benefit without bearing the entire loss. The propriety of such agreements was at issue in City of Largo v. AHF-Bay Fund, LLC. The question was whether these agreements were valid as contracts despite being calculated in the same manner as ad valorem taxes. Upholding PILOT agreements as enforceable contracts—not unconstitutional taxes—the Court went a step further, taking the opportunity to elucidate other issues of municipal government and property law. This case clarified the difference between taxes and the voluntary, bilateral agreements that can take their place while exploring the public policy behind PILOT agreements, like supporting affordable public housing and promoting freedom of contract. This Article provides context for the AHF-Bay Fund decision and analyzes how this case now serves as a valuable precedent for local government practitioners.

You Can’t Fight City Hall (Unless You’re Crazy)

Have you ever worked as a public employee for the city of St. Petersburg? Have you ever been wrongfully terminated and wondered what it would take to vindicate your rights against the city? Well, look no further! This Article details the true story of my client Mr. Meaton’s journey through the legal system to do just that. As a public employee, you have a constitutionally protected property interest in your job, which means you must be afforded due process under the law before that property interest can be taken from you. The issue in this case, however, was not whether Meaton was provided a due process hearing, which he was, but rather whether he was fired for just cause and whether the city of St. Petersburg (not the employee?) was entitled to multiple hearings once the just cause issue was decided as a matter of law. After all, the employee is the one who is entitled to a due process hearing, not the employer, right? Wrong (according to this case). In Florida, if an individual (or, as in this case, an employee) wants to appeal the quasi‐judicial decision of such an agency (here the Civil Service Board), the only vehicle the employee can use is common law certiorari. But here is the kicker: Florida courts have held that a circuit court, acting in its appellate certiorari capacity, cannot order affirmative relief. That means that when the court quashes an order of an agency, the controversy is treated as if no order or judgment had been entered at all, and it is back to the drawing board (no pun intended) for the employee. He or she will have to bring their case again to the same Board that just denied their claim! In short, finding for an employee but remanding a case back to the Board is not justice. It is a violation of that employee’s due process rights. This Article details exactly why.

Florida’s Statutory Sentencing Provisions, the Sixth Amendment, and the Province of the Jury: A Study in Constitutional Conformity

This Article analyzes a criminal defendant’s right to a public trial as it pertains to criminal sentencing regimes to demonstrate the unconstitutionality of Florida’s current sentencing regime and ultimately to propose a legislative rewrite. First, the Article discusses the historical evolution of the Sixth Amendment in the United States, including an analysis of the Supreme Court’s seminal decisions in this realm. Second, the Article focuses on the ways in which Sixth Amendment jurisprudence have shaped the criminal sentencing landscape in Florida. Specifically, the Article asserts that a Florida statute requiring the court to make factual findings resulting in an increased sentence beyond statutory maximums is unconstitutional in part in light of the Sixth Amendment, which reserves the evaluation of such judicial fact finding to the jury. Lastly, the Article proposes a legislative rewrite to cure the statute’s deficiencies to bring it under the umbrella of constitutional, criminal sentencing regimes.

Condemnation Blight as a Per Se Taking: Clarifying the Limits of The Government’s Power of Eminent Domain Under Florida Law

Condemnation blight is defined as the physical and economic deterioration suffered by private property subject to the government’s announcement of condemnation. This deterioration is attributable to the cloud of uncertainty imposed on the property by the announcement of condemnation or by the unreasonable passing of time between the announcement and the acquisition of property. During this period, property owners may suffer damages such as the depreciation in the market value of the property, loss of use, loss of rental income and business profits, among other incidental damages. However, in most jurisdictions, including Florida, property owners cannot recover such damages because the government’s planning activities in anticipation of condemnation do not constitute a taking of property subject to compensation. Instead, property owners need to wait until the government exercises its power of eminent domain to receive “just compensation” for what they lost. Interestingly, the concept of “just compensation” or “full compensation” under the federal and state constitutions may not necessarily include compensation for damages other than depreciation in the market value of the property. In order to balance the right of property owners to be fully compensated for damages suffered during precondemnation planning and the importance of planning as a tool to achieve public goals, this Article proposes the existence of an inverse condemnation action structured on a prima facie basis that allows for the shifting of the burden of proof from plaintiffs (landowners) to defendants (municipalities, cities, etc.). The purpose of this action is to limit the negative effects of the process of condemnation while helping the government to be an effective planner.

Symposium Introduction

Corporations as Conduits: A Cautionary Note About Regulating Hypotheticals

In this Article, prepared as part of a Symposium on the intersection of corporations and money in politics, I illustrate the various ways that corporations can spend their money to influence politics in America and the relevant disclosure rules (or lack thereof)that track this political activity. I also highlight opportunities for individuals to exploit corporate transparency loopholes to illegally spend money in American politics and address the question whether proof of possible nefarious activity is sufficient to justify regulations targeting actual nefarious activity, drawing on recent debates about voter fraud. Finally, I argue that campaign finance laws have been created, justified, implemented, and interpreted in relative isolation from one another, creating unnecessary (though perhaps anticipated) loopholes in enforcement that undermine the goals of oversight and accountability in campaigns and elections. Campaign finance regulations can only be effective insofar as they respond to the dynamic character of political campaigns. Thus, policymakers should refine their “comprehensive” reforms to better address the integrated nature of campaign finance. Given the strategic nature of political actors, this shift will likely result in more emphasis on as‐applied challenges in the courts.

After the “Change Election,” the Money in the Political Landscape

The increased ease of infusing money into our political system has made it much harder to fight the problem of excessive billionaire, corporate, and special interest money in politics. The money flow has been helped by the deadlocked Federal Election Commission’s oversight of the issue, overreaching court cases stripping or nullifying our current system significantly, and the Senate Republican leader’s personal attention to the issue of money in politics. The good news is that defenders of our campaign finance system continue to be creative and are stepping up efforts in new areas. In particular, organizations are working on pushing the envelope inside corporations, supporting shareholder resolutions calling for the companies to be completely honest about how they attempt to influence politics. This strategy is particularly meaningful in the era of President Trump, where corporate to government connectivity has reached new heights. At this critical juncture, a twofold strategy is needed: advocates must call out our new Administration on its conflicts and corruption while simultaneously pushing for corporate‐level affirmative changes, such as enhanced transparency on influence peddling.

Risk to Science-Based Policy Under the Trump Administration

The United States has a long history of reliance on science to inform policy decisions. Today, science is employed on a daily basis to protect Americans’ health and safety, to bolster technological advancement, and to help the nation predict and prepare for security threats. It informs, illuminates, and steers our nation’s direction on everything from global security policy down to keeping safe the food and products in your home. As the ability of science to impact policy increases, however, the temptation also increases for political, ideological, and financial interests to manipulate or suppress inconvenient data. When science is undermined in such a manner, the public is left with laws and regulations that inadequately meet the needs of citizens. Today, the use of science in government is under threat from multiple fronts. Political, ideological, and financial interests are working to undermine the ability of science to inform federal decision‐making, harming the public good. The initial months of the Trump Administration have already raised new concerns. Executive orders, cabinet appointments of individuals with little expertise and clear conflicts of interest, and a sympathetic Congress all create new threats to the government’s ability to make science‐informed policy decisions. In recent cases, politics have overridden what should have been science‐based decisions by federal agencies. This Article will survey the history of federal scientific integrity and discuss the current risks to the federal scientific enterprise in three main areas: (1) corporate capture of the federal government; (2) dismantling the process of science‐based rulemaking; and (3) intimidation and control of scientists.

Digital Disclosure Cheats: An Anthology of Cautionary Tales and Pro Tips for the Public Interest Advocate

The Internet spawned hopes for a golden age of government transparency, but while many government agencies have adopted digital technology, functional transparency remains elusive. Achieving transparency means becoming aware of how data can, through deliberate manipulation or technical ignorance, be locked away in formats that make it difficult to access or analyze. This Article identifies how the shift to the digital world has fallen short of its potential, analyzes why advances in technology have not yielded commensurate advances in transparency, and how public interest advocates can work to improve both the quality and access to public data.

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