The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

NEXT CASE ON THE COURT'S CALENDAR IS FRANKEN MOOUT MUTUAL INSURANCE -- FRANK: ENMUTT -- IS FRANKENMUTH MUTUAL INSURANCE VERSUS MAGAHA.

MAY IT PLEASE THE COURT. MY NAME IS FRANK MITCHELL ON BEHALF OF FRANKENMUTH MUTUAL INSURANCE COMPANY ON THE ESSENCE OF TWO APPEALS. THE FIRST DEALS WITH RATIFICATION OF CONTRACTS BY COUNTIES. PARTICULARLY THE QUESTION WAS PHRASED IN TERMS OF SEX 125.031 FLORIDA STATUTES, BUT IT, REALLY, GOES MORE TOWARD RATIFICATION IN GENERAL. WE HAVE SUGGESTED A SUBSET QUESTION AS WELL, WHICH THE COURT MAY WANT TO CONSIDER, WHEN DETERMINING THE CERTIFIED QUESTIONS, REGARDING WHETHER A COMPTROLLER, WHO IS THE CONSTITUTIONAL ALTER EGO, THE CLERK OF COURTS CAN ENTER INTO CONTRACTS INDEPENDENTLY OF A COUNTY. THE SECOND CERTIFIED QUESTION DEALS WITH ARTICLE SEVEN SECTION 12 OF THE 1968 CONSTITUTION AND TO WHAT EXTENT THAT PROVISION MAY AFFECT THE AGREEMENT HERE AT ISSUE. WITH RESPECT TO THE ISSUES PRESENTED AGAINST MR. MAGAHA, WHO IS THE CURRENT CLERK OF COURTS AND THE COMPTROLLER, I DON'T INTEND TO ADDRESS MUCH OF MY ARGUNIT TO THOSE. I WOULD BE HAPPY TO ANSWER ANY QUESTIONS. I WILL PROBABLY RESPOND, MOSTLY IN REBUTTAL, TO MR. DRUMMOND. FURTHER THE OTHER ISSUES THAT WERE CERTIFIED WE BRIEFED TO ALL OF THE COURTS THAT CONSIDERED THIS CASE, AND IF THIS COURT DEEMED IT TO BE THE DETERMINATION AT ISSUE THAT IS PRESENTED HERE TODAY, THE COURT CAN AUTHORIZE THOSE DECISIONS TO TAKE UP AND MAKE A DECISION AS TO THE COMPTROLLER'S ABILITY TO INDEPENDENTLY LEASE ON BEHALF OF THE COUNTY.

WAS THIS CLERK OF COURT THE CLERK OF COURT AT THE TIME THAT THE OTHER GENTLEMAN WAS THE COMP TROLER?

THAT'S CORRECT. UNDER THE FLORIDA CONSTITUTION, THE DUTIES CAN BE SPLIT, BUT THAT DOES NOT ELIMINATE THE POSITION OF CLERK OF COURTS.

I AM TALKING ABOUT THIS PARTICULAR INDIVIDUAL WAS THE CLERK OF COURT DURING THE SAME TIME PERIOD?

DURING THE TIME PERIOD OF THE FACTS AT ISSUE, THE COMPTROLLER OF ESCAMBIA COUNTY ONLY SERVED FOR 25 YEARS. I DON'T KNOW IF THE CLERK SERVED FOR THAT ENTIRE PERIOD OR NOT, BUT DURING THE TIME PERIOD THAT WE ARE DISCUSSING, ERNIE LEE MAGAHA WAS THE CLERK OF COURTS.

WOULD YOU ADDRESS, IN YOUR ARGUMENT, A COUPLE OF QUESTIONS THAT WE HAVE WITH REGARD TO THE STATUS OF THIS RECORD. THE DISTRICT COURT BELOW, TRIAL COURT, MADE REFERENCE TO A 194 INDEPENDENT AUDIT, AND I WAS WONDERING IF THAT IS THE SAME AS THE 1993 AUDIT AND, ALSO, THE QUESTION OF WHETHER THE 1991 AUDIT CONTAINS THE SAME TERMINOLOGY AS THE 1993 AUDIT, INDEPENDENT AUDIT, JUST GENERALLY SUGGESTING THAT THERE WAS SOME CONTRACTS THAT HAVE BEEN EXECUTED WITHOUT APPROVAL, AS OPPOSED TO IDENTIFYING THIS CONSIDERATE.

AND I -- IDENTIFYING THIS CONTRACT.

I WILL GO AHEAD AND DO THAT NOW, BECAUSE I THINK IT HAS BEEN ADDRESSED. THE '93 AND '94 ARE BOTH SEPARATE DOCUMENTS SENT DOWN TO THIS COURT. IT ONLY ADDRESSES THE POTENTIAL OF THEIR HAVING BEEN ENTERED INTO CONTRACTS BY CERTAIN OFFICIALS WITHOUT SPECIFIC COUNTY APPROVAL. IT DOES NOT IDENTIFY ANY SPECIFIC CONTRACTOR ANY SPECIFIC OFFICER IN THOSE DOCUMENTS. THE AUDITOR WAS AN AUDITOR RETAINED BY ESCAMBIA COUNTY, AN ACCOUNTING FIRM IN PENSACOLA, A FLORIDA, AND THEY LOOKED AT THE COUNTY'S RECORDS, AND THAT WAS ONE OF THE RECORDS THEY MADE TO THE COUNTY. IN THE 1991 AUDIT, IT WAS DONE AT A TIME WHEN THERE WAS A COMPUTER SYSTEM, THE PREDECESSOR TO THIS COMPUTER, THAT HAD, IN FACT, BEEN APPROVED BY FORMAL RESOLUTION?

THERE WAS, IN FACT, COMPUTER EQUIPMENT THAT HAD BEEN APPROVED, PURSUANT TO A LEASE WITH BURROWS, AND I BELIEVE IN 1995, THEY HAD BEEN APPROVED BY THE BOARD OF COUNTY COMMISSIONERS. THE LEASE IS NEARLY IDENTICAL.

I SAW THAT, BUT THAT IS THE ONE THAT HAD BEEN APPROVED. THERE WAS NO ISSUE ON THAT, AND THAT WAS IN EXISTENCE AT THE TIME THIS SAME AUDIT CAME ABOUT, SO THE ISSUE WITH REGARD TO WHETHER THIS '94 AUDIT CAUSES ATTENTION TO BE DRAWN TO THIS PARTICULAR LEASE IS, REALLY, NOT SOMETHING WE CAN REALLY ANSWER FROM THIS RECORD?

NOT FROM THE RECORD.

OKAY. IT IS CLEAR, FROM THE RECORD AND FROM OUR PRESENTATION TO THE DISTRICT COURT AND THE ELEVENTH CIRCUIT THERE, IS ABSOLUTELY NO QUESTION THAT THE BOARD OF COUNTY COMMISSIONERS HAD DIRECTED, TO THEIR ATTENTION, BY THE COMPTROLLER, THE FACT THAT HE HAD REPLACED COMPUTER EQUIPMENT. THAT HE WAS IMPLEMENTING A WIDE AREA NETWORK IN THE COUNTY AND INVITED THE COUNTY TO JOIN IN ON THAT, AND IN FACT, COUNTY STAFF SAID, YES, WE SHOULD DO THAT, AND AT A COUNTY COMMISSIONER MEETING IN 1994, IT WAS VOTED IN FAVOR OF DOING. THAT I WOULD LIKE TO ADDRESS, BRIEFLY, 1 A.031, SINCE THE ELEVENTH CIRCUIT COUCHED THEIR FIRST CERTIFIED QUESTION IN TERMS OF THAT PROVISION. 125.031 IS BASICALLY A LEGISLATIVE LIMITATION ON THE POWERS GRANTED IN 1 TAKE .0 1, WHICH IS A VERY -- IN 125.01, WHICH IS A VERY BROAD GRANT OF HOME RULES IN THE COUNTIES OF THE STATE OF FLORIDA, THAT ARE NECESSARY AND APPROPRIATE FOR UNDERTAKING THEIR OBLIGATIONS. 125 .0 031 DOES NOT HAVE ANY BEARING ON THIS CASE, TO ANY EXTENT THAT I CAN SEE, THAN IS WHAT THE FEDERAL DISTRICT JUDGE FOUND AS WELL. SAID THAT IT DOES NOT PERMIT RATIFICATION OF THE CONTRACT, AND HE, IN FACT, LOOKED AT THE FACTUAL MATTERS THAT WERE PRESENTED TO HIM ON SUMMARY JUDGMENT AND DETERMINED THE FACT THAT THE COUNTY HAD RATIFIED THE CONTRACT. AS YOU HAVE NOTED FROM THE BRIEFS IN THE RECORD, THE DISTRICT COURT JUDGE DID NOT ADDRESS, AT ALL, THE ISSUE OF WHETHER MR. MAGAHA AND HIS PREDECESSOR OR ALTER EGO, THE COMPTROLLER, HAD THE INDEPENDENT AUTHORITY TO ENTER INTO A CONTRACT, SO THAT IS WHY WE ADDRESS THAT ISSUE HERE TODAY, AND IF THE COURT DETERMINES THAT IT SHOULD ADDRESS ISSUE, THAT WILL BE -- THAT ISSUE, IT WILL BE FOR THE COURT TO DETERMINE UPON.

HOW CAN YOU RATIFY, IF A COURT DETERMINES IT IS NECESSARY? WHAT ARE THE SPECIFIC ELEMENTS THAT WOULD BE INVOLVED?

WE DON'T QUESTION WHETHER THAT HAS GOT TO BE APPROVED. YOU CAN'T HAVE A MEETING OF THE MINDS, IF YOU DON'T HAVE APPROVAL. WHAT I WOULD LIKE TO SUGGEST TO THIS COURT IS THAT THE LEGISLATURE HAS CUT A LOT OF ITS PATH CERTAINLYISTIC TIES TO THE COUNTIES. THEY BASICALLY SAID HERE IS A BROAD GRANT OF POWER TO GO OUT AND DO WHAT YOU NEED TO DO IN THE COUNTY, AND THERE IS THE COUNTY CASE WHICH WE CITED IN OUR BRIEF AND WHICH THE PARTY WAS A PARTY TO, ESCAMBIA COUNTY, WHAT PARTIES ARE AVAILABLE TO THE COUNTY AND HOW THEY CAN EXERCISE THOSE POWERS, AND THE SABT AROSE A CASE AND -- AND THE SANTA ROSA CASE AND THE CASES THAT HAVE COME OUT SINCE THEN HAVE SAID THAT THOSE POWERS ARE EXTREMELY BROAD. WITH RESPECT TO LEASE/PURCHASES, 121.01, THERE IS NO QUESTION ABOUT THAT, BUT THE GENERAL GRANT IN 125.01, IS EXTREMELY BROAD. I WOULD SUGGEST TO THIS COURT THERE IS ATTENTION BETWEEN THIS CASE AND ESCAMBIA COUNTY AND IT MURE HE WILL ENGINEERING CASE -- THE MURELL ENGINEERING CASE, WHILE THE RIGHT RESULT WAS ACHIEVED, IT IS BASICALLY WRONGLY DECIDED ON THE LEGAL APPLICATION. IN THAT CASE THERE WAS A CLEAR REQUIREMENT IN THE CONTRACT FOR CHANGE ORDERS. THAT WAS IGNORED. THERE IS CONTRACTOR CASES THAT SAY, IF YOU HAVE A REQUIREMENT FOR WRITTEN CHANGE ORDERS, THEN YOU HAVE TO UNDERTAKE THOSE, IF YOU WANT TO GET PAID, UNDER THE TERMS OF THE CONTRACT. THE CASE COULD HAVE BEEN CITED ON THAT BASIS. WE HAVE GOT TO GO BACK TO SOVEREIGN IMMUNITY ISSUES, I DON'T THINK THAT IS THE RIGHT ANALYSIS. THE LEGISLATURE, IN A VERY BROAD GRANT, IN 125.01, SAID WE ARE WAIVING SOVEREIGN IMMUNITY. GO OUT AND CONTRACT. IT DIDN'T SAY GO OUT AND CONTRACT, AND THEN THE COURTS CAN MAKE SPECIAL LAWS FOR COUNTIES, IF THEY MAKE POOR DECISIONS WITH REGARD TO CONTRACTING. IT SAYS CONTRACT. THE LAW HAS DEVELOPED OVER THE YEARS WITH RESPECT TO CONSIDERATING -- -- WITH RESPECT TO CONTRACTING. IT CERTAINLY PUTS IT ON EVERYBODY ELSE. IT SAYS YOU HAVE THE POWER TO CONTRACT. YOU DEAL WITH IT.

WHY ISN'T IT CONTRACTING, WITH RESPECT TO THE GOVERNMENT, TO REQUIRE THOSE ENTITIES THAT ARE GOING TO CONTRACT WITH THE GOVERNMENT, TO DO THE THEIR I'S AND CROSS THEIR T'S, SO THAT THE TAXPAYER IS PROTECTED AGAINST SOME ROGUE OFFICIAL GOING OUT AND ENTERING INTO SOME KIND OF -- THE LAW IS CLEAR. GOT TO GET AUTHORITY FROM THE ELECTED COUNTY COMMISSION, AND IF YOU DON'T GET IT, YOU DO BUSINESS AT YOUR OWN PERIL?

AND THAT IS A GOOD POINT, JUSTICE WELLS. YOU CERTAINLY CAN GO BACK AND FIND PLENTY OF CASES FROM THE '30s AND '40s AND '50s, AND THOSE HAVE BEEN CITED BY COUNTY, WITH RESPECT TO THAT VERY ISSUE. WHAT I WOULD SUGGEST IS THE LEGISLATURE, IN RESPONSE TO THE 1968 CONSTITUTION, BASICALLY CHANGED THE RULES OF THE GAME IN THAT RESPECT AND THE COURTS JUST SIMPLY HAVE NOT CAUGHT UP TO THAT YET. THE COURTS, I WOULD SUBMIT, AND THE MURRELL ENGINEERING CASE IS A GOOD EXAMPLE OF THAT, STILL TAKE A PATERNALISTIC VIEW IN THOSE CASES. IF SOMEBODY IS INVOLVED IF A SCANDAL, THEY GO TO PERSONNEL. THAT IS A SIMPLE AND DIRECT RESPONSE TO. THAT I THINK THE LEGISLATURE, IN 1 A.01, HAS BEEN VER -- IN 125.01, HAS BEEN VERY CLEAR. THEY HAVEN'T MADE EXCEPTIONS FOR SPECIAL RULES FOR CONTRACTING FOR THE COUNTY, OTHER THAN 125.01.

I AM NOT SURE I HEARD THE ANSWER TO JUSTICE LEWIS'S QUESTION, WHICH IS WHAT WOULD BE THE CRITERIA THAT SHOULD BE APPLIED, IN DETERMINING WHETHER THERE HAS BEEN AN APPROVAL?

AND I APOLOGIZE FOR THAT. BECAUSE I HAVEN'T GIVEN IT YET, AND I CERTAINLY AM GLAD THAT YOU POINTED ME BACK TO THAT. WE BRIEFED, OBVIOUSLY, THE ISSUE YOU, WITH RESPECT TO-HE THE ISSUE, WITH RESPECT TO, WHAT HAPPENS, WHAT WAS -- THE ISSUE, WITH RESPECT TO WHAT HAPPENED IN THE PANAMA CITY CASE, AND THE JAM THAT THEY FOUND THEMSELVES IN. IT WAS AN AUTHENTIC RATIFICATION IN THAT CASE. COMMON SENSE IS WHAT YOU APPLY, AND WE THINK THAT, IF YOU APPLY REASON AND COMMON SENSE TO THE MULTIPLE FACTS THAT SHOW THAT, TO ANYBODY ELSE OTHER THAN THE COUNTY, RATIFICATION CLEARLY WOULD HAVE OCCURRED IN THIS CASE.

IS THAT BY ESTOPPEL OR WHAT IS THE LEGAL PRINCIPLE?

SIMPLE RATIFICATION IN THE AGREEMENT IS ALL THAT IS REQUIRED, ALTHOUGH IN ESSENCE IT IS AN ESTOPPEL, WHICH IS AN EQUITABLE PRINCIPLE, BUT CONTRACT LAW RECOGNIZES RATIFICATION.

ISN'T RATIFICATION, REALLY, MORE RESIZE THAN JUST AN ESTOPPEL?

I THINK THAT IT IS. AGAIN, ESTOPPEL IS AN EQUITABLE THEORY, AND THERE CAN BE SOME DEFENSES RAISED TO IT THAT, PERHAPS, CANNOT BE RAISED TO RATIFICATION.

CERTAINLY YOU WOULD AGREE THAT THAT APPROVAL, AS THAT BROAD PHRASE IS USED THAT, THEY WOULD HAVE TO APPROVE IT IN A FORM THAT COUNTIES CAN DO BUSINESS. YOU WOULD AGREE WITH THAT?

I WOULD AGREE WITH THAT, TO THE EXTENT THAT THE ONLY THING THAT I AM AWARE OF, WITH RESPECT TO ESCAMBIA COUNTY, SIMPLY HAVING A MEETING IN THE SUNSHINE, WHICH THEY DID IN 1994. THEY HAD A MEETING AND APPROVED IT, AND THEN IN 199 A THEY HAD A MEETING AND AGREED TO ACCEPT THE EQUIPMENT, ALTHOUGH THAT IS NOT A RATIFICATION, BECAUSE THEY DIDN'T WANT A RATIFICATION.

IT MUST BE DONE IN PUBLIC. YOU AGREE WITH THAT. IT MUST BE DONE IN PUBLIC.

DON'T DISAGREE WITH THAT, AND IT WAS DONE, TWICE, IT IN PUBLIC.

CERTAINLY HERE THERE IS EVIDENCE IN THE RECORD THAT THEY DID NOT SEE A CONTRACT AND KNOW ITS TERMS, UNTIL '95, AND THEN THEY GET INVOLVED IN THIS LITIGATION, SO WHAT IS IT THAT A COUNTY MUST HAVE TO SAY, A HA! YOU HAVE RATIFIED IT.

THE COUNTY SUGGESTS THAT THEY HAVE BEEN GIVEN ALL OF THE INFORMATION.

WHAT DO YOU SUGGEST?

THIS COURT CITES THE OXFORD CASE, WHICH THEY CITE, BACK IN 1988, ALTHOUGH DID ACKNOWLEDGE THAT FULL KNOWLEDGE WAS ONE OF THE COMPONENTS OF RATIFICATION. ATTENTION TO DON'T THE UNAUTHORIZED ACT OF AN AGENT, ALSO, AND WILLFUL KNOWLEDGE -- WILLFUL IGNORANCE, AND IN THIS CASE IF YOU DON'T HAVE WILLFUL IGNORANCE, I DON'T KNOW HOW YOU WOULDN'T.

FOR PARED, DO WE NOT, HAVE A REQUEST FOR A BUDGETARY APPROVAL THAT WE HAVE FOR A CERTAIN PERIOD OF TIME, AND IT IS ALMOST IDENTICAL TO THE AMOUNT TO THE PRIOR EQUIPMENT THAT WAS USED, SO DOESN'T THAT REALLY RATIFY AND GIVE NOTICE TO EVERYONE THAT, HEY, WE HAVE GOT SOME NEW DEAL IN PLACE?

CLEARLY THE BUDGETARY TIME WAS NOTICE THAT THEY WOULD HAVE HAD. THERE WAS AN EXTENDED PERIOD OF TIME WHERE THEY DISCUSSED THE SYSTEM. LETTERS WENT BACK AND FORTH FROM MR. FLOUTORIES THE THEN-SITTING BOARD. THEY DISCUSSED IT AT PUBLIC MEETINGS. AGAIN THEIR STAFF RECOMMENDED WE JOIN IN WITH THE COMCOMPTROLLER WITH THE SYSTEM. THAT WAS VOTED AND APPROVED AT THE BOARD OF COUNTY COMMISSIONERS' OPEN MEETING. THERE WERE FURTHER DISCUSSIONS THEN, AND ULTIMATELY, MANY MONTHS LATER, THE COUNTY DECIDEDED WAS GOING TO KEEP THE EQUIPMENT BUT NOT RECOGNIZE THE LEASE, AND I WOULD LIKE TO GET TO THE UCC ISSUES, BUT I THINK I DOLL THAT ON REBUTTAL AND, ALSO, TRY TO FINISH THE QUESTION REGARDING THE STANDARDS.

THANK YOU. NOW, MR. DRUMMOND, I UNDERSTAND THAT YOU HAVE ASKED FOR FIVE MINUTES AND MR. TUCKER FOR 15.

YES. THAT'S CORRECT.

YOU HAVE TO MAKE THAT DIVISION, AND YOU ARE FREE TO GET UP AND PULL ON HER COATTAIL AS SHE GOES OVER THAT, MR. TUCKER.

THANK YOU. MAY IT PLEASE THE COURT. I AM PAULA DRUMMOND, AND I REPRESENT ERNIE LEE MAGAHA, THE CLERK OF THE COURT FOR ESCAMBIA COUNTY. THE ISSUES OF THE COURT TODAY INVOLVE A LONG-TERM LEASE WHICH WAS ENTERED INTO BY THE COMPTROLLER OF ESCAMBIA COUNTY, WITHOUT THE CONSENT OR KNOWLEDGE OF THE CLERK OR COUNTY COMMISSIONERS. THE EQUIPMENT COST IN EXCESS OF $4 MILLION AND HAD A TERM OF SEVEN YEARS. THE INTEREST ON THE LEASE WAS DESIGNATED AS TAX EXEMPT IN THE NAME OF THE HOLDER AND WAS THERE FOR IN THE NATURE AFTER COUNTY TAX-EXEMPT BOND. THE COUNTY COMPTROLLER WAS ABOLISHED BY THE LEGISLATURE IN 1995. THE FORMER COMPTROLLER ASKED AS CLERK TO THE BOARD AND ORDERED WITH COUNTY FUNDS. AFTER THE COUNTY COMPTROLLER WAS ABOLISH, IT WAS BY THE CLERK UNDER FLORIDA LAW. THE COMPTROLLER HAD THE POWER TO ENTER INTO THE LEASE WITHOUT COUNTY APPROVAL, AND THEREFORE THE CLERK OF THE COURT, AS SUCCESSOR TO THE COMPTROLLER, SHOULD BE RESPONSIBLE FOR THE OBLIGATIONS OF THE LEASE FORM THE CLERK OF THE -- OF THE LEASE. THE CLERK OF THE COURT DENIES ANY RESPONSIBILITY FOR OR OBLIGATION UNDER THIS LEASE FOR SEVERAL REASONS, WHICH ARE OUTLINED IN HIS BRIEF. THE PRIMARY BASIS IS THAT THE -- ONLY THE COUNTY HAD THE POWER TO ENTER INTO SUCH A LEASE AND TO INCUR DEBT OF THIS NATURE, AND ANY LEASE INSTRUMENT HAD TO, FIRST, BE APPROVED BY THE BOARD OF COUNTY COMMISSIONERS. THE FEDERAL DISTRICT COURT IN PENSACOLA AGREED THAT THE CLERK'S OFFICE HAD NO LIABILITY UNDER THE LEASE, AND THE CLERK MAINTAINS THAT THE DISTRICT COURT'S OPINION WAS CORRECT. FRANKENMUTH HAS ASKED THE COURT TO TAKE UP THE ISSUE OF THE CLERK'S LIABILITY UNDER THE LEASE AND THE AUTHORITY TO ENTER INTO SUCH AN INSTRUMENT, INDEPENDENT OF ESCAMBIA COUNTY. THE THE ELEVENTH CIRCUIT COURT OF APPEALS DID NOT ADDRESS OR PERTAIN TO ANY QUESTIONS INVOLVING THE VIABILITY LIABILITY OF THE CLERK AND IT APPEARS FROM CERTIFYING THE QUESTIONS THAT THE 11th DISTRICT AGREES THAT THE CLERK OF COURT DOES NOT HAVE ANY OBLIGATION UNDER THE LEASE. WHILE MR. MAGAHA ACKNOWLEDGES THAT THIS COURT MAY CONSIDER ANY MATTER THAT IS RAISED IN LITIGATION, MR. MAGAHA ASKS THIS COURT NOT TAKE UP ANY ISSUES WHICH ARE NOT CERTIFIED BY THE ELEVENTH CIRCUIT. HOWEVER, SHOULD THE COURT DECIDE TO CONSIDER THE POWER OF COUNTY CONSTITUTIONAL OFFICERS TO ENTER INTO LONG-TERM DEBT OBLIGATION WITHOUT THE APPROVAL OF THE BOARD OF COUNTY COMMISSIONERS, MR. MAGAHA ASKS THIS COURT TO FIND THAT COUNTY CONSTITUTIONAL OFFICERS DO NOT HAVE SUCH POWERS. THIS COURT HAS REPEATEDLY HELD THE COUNTIES AND THEIR OFFICERS HAVE ONLY SUCH POWERS AS ARE CREATED BY THE LEGISLATURE. THE CONSTITUTIONAL AND STATUTORY PROVISIONS, WHICH GOVERN THE DUTIES AND RESPONSIBILITIES OF THE CLERK OF THE COURT AND OTHER CONSTITUTIONAL OFFICERS, DO NOT AUTHORIZE THEM TO INDEPENDENTLY ENTER INTO LONG-TERM DEBT OBLIGATIONS OR TO ENTER INTO LONG-TERM LEASE PURCHASE CONTRACTS. AND IN THIS CASE, A LONG-TERM DEBT OBLIGATION IS ONE WHICH EXCEEDS 12 MONTHS IN DURATION.

GIVE US SOME INSIGHT, IF YOU CAN, AS TO WHAT IS HAPPENING OUT THERE IN THE REAL WORD, AS FAR AS WHAT CLERKS ARE DOING. IT IS NOT AN UNUSUAL SITUATION TO BE SEEN, ESPECIALLY IN THE LAST 20 YEARS, WE HAVE SEEN THESE SORT OF TURF DISBUTS -- DISPUTES ABOUT INFORMATION SYSTEMS. CAN YOU GIVE US ANY INSIGHT INTO WHAT IS HAPPENING OUT THERE, IN THE REAL WORLD, ABOUT CONTROVERSIES BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND THE CLERKS? AND INFORMATION SYSTEMS?

IN ESCAMBIA COUNTY, AS FAR AS MR. MAGAHA IS CONCERNS CONCERNED -- IS CONCERNED, I DON'T BELIEVE THERE IS ANY CONTROVERSY OVER THE COMMUNICATION SYSTEMS AND COMPUTER SYSTEMS.

DOES EVERYBODY COME TOGETHER, THEN, AND AGREE THAT THERE IS GOING TO BE A SINGLE INFORMATION SYSTEM FOR THE -- I REALIZE, IN A WAY, THESE QUESTIONS ARE PERIPHERAL TO THE -- BUT YET I THOUGHT MAYBE YOU COULD GIVE US SOME INSIGHT INTO THAT. THAT IS DO THEY ALL COME TOGETHER AND SAY, WELL, WE HAVE GOT A LOT OF CONSTITUTIONAL OFFICERS AND DEPARTMENTS OF THE COUNTY GOVERNMENT THAT NEED THE COMPREHENSIVE INFORMATION SYSTEM? LET'S ALL AGREE THAT THE CLERK WILL MANAGE ONE. WE WILL GET IT, AND IT WILL BE, YOU KNOW, AN INTEGRATED SYSTEM, OR DOES THE COUNTY COMMISSION GET ONE, OR DOES EACH OF THE CONSTITUTIONAL OFFICERS GET A DIFFERENT ONE?

IT IS MY UNDERSTANDING THAT, WITH RESPECT TO ESCAMBIA COUNTY, THAT THE WAY THE PRACTICE IS AT THIS POINT AND THE WAY THE APPROACH THAT MR. MAGAHA HAS HAD, OVER THE COURSE OF OPERATING HIS BOYS ABOUTNESS, THAT IN -- HIS BUSINESS, THAT IN THE EVENT THERE WAS A LOCAL NETWORK SYSTEM THAT WAS REQUIRED, THAT THE COUNTY AND THE CONSTITUTIONAL OFFICERS, THAT THEY WERE ALL GOING TO BE LOOKED UP TO IT, WOULD WORK ON THAT PROCESS TOGETHER. AT THE TIME THAT THE COMPTROLLER ENTERED INTO THIS LEASE AGREEMENT, HE WAS PURCHASING A LOCAL AREA NETWORK SYSTEM, AND HE DID NOT NOTIFY ANYONE IN THE COUNTY OR ANY OTHER CONSTITUTIONAL OFFICERS, THAT HE INTENDED TO IMPLEMENT THIS SYSTEM, AND THAT WAS, REALLY, A MAJOR PROBLEM AT THAT TIME, AND I THINK AT THIS POINT IN TIME, THE IDEA IS THAT YOU WOULD ALL WORK TOGETHER ON IT, BECAUSE IT IS AN INTEGRATED COUNTY. THE CONSTITUTIONAL OFFICERS DON'T STAND ALONE AND OPERATE IN A VACUUM. EVERYONE IS WORKING FOR THE COMMON GOOD OF THE COMMUNITY AND THE COUNTY. OKAY. THANK YOU VERY MUCH.

THANK YOU.

MAY IT PLEASE THE COURT. I AM DAVID TUCKER, AND I AM THE COUNTY ATTORNEY FOR ESCAMBIA COUNTY. WE HAVE TO SAY FLORIDA, BECAUSE WE HAVE AN ESCAMBIA COUNTY RIGHT ACROSS THE BOARDER. I WOULD LIKE TO START MY ARGUMENT THIS MORNING BY ADDRESSING QUESTIONS RAISED BY JUSTICE LEWIS AND JUSTICE WELLS, BECAUSE, IN FACT, THE LAW THE CASE LAW OF FLORIDA DOES PROVIDE CRITERIA OF WHAT CONSTITUTES RATIFICATION, AND IT IS ESSENTIALLY IF YOU READ THE CASES THAT WE HAVE CITED, THERE ARE THREE ELEMENTS THAT MANIFEST THEMSELVES, AND ALL THREE HAVE TO BE MANIFESTED, FOR RATIFICATION TO OCCUR. I WOULD LIKE TO POINT OUT THAT THE COURTS OF THIS STATE AND THE LEGISLATURE OF THIS STATE, OVER THE LAST 10 ON YEARS, HAVE, REALLY, DEVOTED A TREMENDOUS AMOUNT OF TIME, EFFORT, AND I THINK AND PAPER, TO -- AND INK AND PAPER, TO DETERMINE WHAT IT TAKES FOR LOCAL GOVERNMENT TO CREATE A CONTRACT THAT WOULD BIND IT, AND WE SEE THAT IN C CNA. WE SEE THAT IN COMPETITIVE BIDDING STATUTES. WE SEE THAT IN ALL OF THE LITIGATION OF UNSUCCESSFUL BIDDERS, VENDORS, AND SO I THINK THAT THAT IS A VERY IMPORTANT QUESTION, AND I THINK, FRANKLY, THE ELEVENTH CIRCUIT WAS A LITTLE BAFFLED, BECAUSE THE STANDARDS MAY NOT NECESSARILY HAVE NOT BEEN WRAPPED UP IN A GIFT WRAP, AS IT WERE, AND BASICALLY WE BELIEVE THAT THOSE THREE ELEMENTS WHICH HAVE TO BE SATISFIED ARE, FIRST, THE CONTRACT HAS TO BE ONE THAT THE COUNTY LEGALLY HAS THE POWER TO ENTER. WE CONTEND THAT THIS CONTRACT, BECAUSE IT, IN EFFECT, ACTUALLY AND EXPLICITLY COMMITS THE COUNTY'S ADVALOREM TAXING POWER TO A TERM IN EXCESS OF 12 MONTHS IS ILLEGAL AND COULD NOT BE ENTERED. THAT IS THE FIRST ONE THAT IS NOT SATISFIED, BUT IF YOU GET PAST THAT, THE SECOND TEST IS THAT IT HAS TO BE RATIFIED IN THE SAME MANNER IN WHICH IT MIGHT HAVE BEEN ENTERED. THAT REQUIRED THAT THE COUNTY COMMISSION ACTUALLY VOTE ON THE TERMS AND CONDITIONS OF THE CONTRACT. AND THE CASE LAW IS CLEAR THAT, WHERE THERE IS NOT AN EXPRESS VOTE ON THE CONTRACT, TO CREATE THE EXPRESS CONTRACT, THAT THE CONTRACT IS NOT CREATED. NOW, SOME OF THE OLD --

LET ME ASK A QUESTION THERE. IF WE HAVE A PROPOSED CONTRACT, AND GENERALLY COUNTY STAFF WILL PRESENT JUST A SUMMARY OF THE TERMS, I WOULD THINK, TO A COUNTY COMMISSION, RATHER THAN HANDING THEM THE FORM OF THE CONTRACT. IF THEY HAVE THE ESSENTIAL TERMS OF THE CONTRACT, IS THAT PERMISSION, OR MUST THEY HAVE BEFORE THEM THE EXPRESS WRITTEN CONTRACT?

AT SOME POINT, THEY HAVE TO HAVE, AND EVEN IF IT IS NOT NECESSARILY IN THEIR LITTLE HANDS, I WOULD SAY IN THE BOARDROOM, THE CONTRACT HAS TO BE THERE. AND THE EXPRESS TERMS HAVE TO BE ABLE TO BE ASCERTAINED BY THE COUNTY COMMISSION AT THAT TIME THAT MEETING. -- AT THAT MEETING. THAT IS WHAT THE STAFF IS DOING. THAT IS WHAT THE BOARD COMMITS. PARTICULARLY THERE ARE OBVIOUSLY CONTRACTS AND THERE ARE CONTRACTS. BUT IF ONE CONSIDERS WHAT IS NECESSARY IN A CONTRACT, TO, FOR EXAMPLE, CREATE A DEBTOR TO CREATE A FINANCIAL OBLIGATION, THERE IS EXCRUTIATING DETAIL THAT IS PRESENTED TO THE COUNTY COMMISSIONS TO APPROVE THAT. NOW, AS A PRACTICAL MATTER, I WOULD CONCEDE THAT THERE ARE CONTRACTS THAT YOU KNOW, WE NEED TO GO GET STOP SIGNS AND MAYBE THE ACTUAL SPECIFICATIONS FOR THE STOP SIGNS AREN'T THERE, BUT ON THE OTHER HAND, MANY TIMES THEY ARE, AND I THINK THAT THAT IS KIND OF VARYING FROM COUNTY TO COUNTY. I CAN TELL YOU THAT IT IS ALMOST UNIVERSALLY THE PRACTICE, WHEN YOU HAVE SOMETHING THAT IS SOME FORM OF INDEBTEDNESS, THAT YOU WILL SEE, AS I SAID EARLIER, EXCRUTIATING DETAIL BEFORE THE COUNTY COMMISSION. AT LEAST, YOU KNOW, AND I WOULDN'T SPECULATE WHETHER EACH COMMISSIONER READS EVERY LINE, BUT IT IS THERE. SECONDLY, SO IT HAS TO BE RATIFIED IN THE SAME WAY THAT IT MIGHT HAVE BEEN ENTERED, AND THAT MEANS THAT THAT KIND OF TIES IN TO THE MIERELLI DECISION, AND THAT MEANS A NONEXPRESS CONTRACT IN WHICH IT DIDN'T ENTER INTO, AND THEN THE THIRD PRONG OF THE TEST IS THAT IT HAS TO HAVE FULL KNOWLEDGE OF ALL OF THE MEANINGFUL TERMS AND CONDITIONS. CERTAINLY IF YOU HAD A CONTRACT THAT HAD IMPOSED A SEVERE SANCTION ON THE COUNTY FOR SOMETHING LIKE NONAPPROPRIATION, LIKE NONSUBSTITUTION CLAUSE, ONE WOULD CERTAINLY REQUIRE, I THINK, THAT THE COUNTY COMMISSION BE AWARE OF SUCH A CRUCIAL ELEMENT OF THAT CONTRACT. THE RECORD SHOWS THAT, UNTIL --

BEFORE YOU MOVE AWAY FROM THAT, THE ELEMENTS OF RATIFICATION COULD THE COUNTY BE ESTOPPED BY ITS ACTIONS AND YOU WOULD GET INTO DIFFERENT ELEMENTS THERE, RELATIVE TO ESTOPPEL? DO YOU AGREE THAT, BY ITS ACTIONS, THE COUNTY COULD BEES TOPPED?

THE COUNTY -- COULD BE ESTOPPED?

THE COUNTY COULD NEVER BE ESTOPPED, IF THE CONTRACT WAS ILLEGAL, AND WHAT DEFINITELY CONSTITUTES AN ILLEGAL CONTRACT THAT WOULD DEFEAT ESTOPPEL, I THINK, VARIES. FOR EXAMPLE, IN THE DISSENT IN MIERELLI, IN FOOTNOTE 6, IT RELIES ON AN OLD CASE, I THINK IT IS KENT V LYNN, FOR CONTRACT LABOR, AND THERE THE STATE ESSENTIALALLY SUBSTITUTED ONE CONTRACT FOR, I THINK IT WAS 30 ON INMATES AND SOMEONE CAME IN WITH A BETTER DEAL, LATER, TO LEASE OUT ALL THE IN NIGHTS -- THE INMATES, AND THE COUNTY WAS NOT ESTOPPED FROM THE EXECUTION OF THAT CONTRACT, SO I DON'T THINK THAT, UNDER THE LAW OF FLORIDA, THE COUNTY OR THE STATE COULD EVER BE ESTOPPED TO DENY AN ILLEGAL CONTRACT, AND WHAT WE HAVE SEEN IS THAT THE ESTOPPEL DOESN'T WORK, EVEN WHERE YOU HAVE, I GUESS UNLESS -- THE ONLY CASES I AM AWARE OF WHERE THERE IS AN ESTOPPEL, IS YOU HAVE GOT SOME SORT OF WRITING, AN EXPRESS CONTRACT WITH AN IMPLIED CONDITION.

WHAT WOULD BE THE RESULTS, IF THE COUNTY COMMISSIONERS JUST CLOSED THEIR EYES TO THE OBVIOUS, THAT WE HAVE THIS COMPUTER. WE KNOW WE ARE INTO THE COMPUTER AGE. WE HAVE A MILLION DOLLARS' WORTH OF COMPUTER EQUIPMENT HERE AND WE JUST DON'T WANT TO GIVE DETAILS OF IT, AND THE COUNTY USES IT AND GETS THE BENEFIT OF IT. BUT IT NEVER COMES BEFORE THEM FOR A FORMAL APPROVAL. WHERE ARE WE THERE?

WITH ALL DUE RESPECT, JUSTICE SHAW, THAT PRESUMES, I THINK, CERTAIN FACTS THAT ARE DIFFERENT FROM THOSE IN THE RECORD. IF, FOR EXAMPLE, THE COUNTY'S PROCUREMENT OFFICE AND AGENTS WHO HAVE THE APPARENT AUTHORITY OF THE COUNTY TOOK THAT EQUIPMENT AND THE COUNTY GOT TO BENEFIT, THAT MIGHT YIELD A DIFFERENT RESULT, BUT THAT IS NOT THE SITUATION IN THIS CASE. IN THIS CASE, YOU HAD AN INDEPENDENT OFFICER WHO IS PRODUCING HIS OWN EQUIPMENT, WHO IS BRINGING THAT, WHO, YOU KNOW, EVERY TIME THE COUNTY TRIED TO DEVELOP ITS OWN SYSTEM, WOULD SEND THESE LETTERS SAYING I HAVE GOT MY OWN THING AND YOU HAVE TO FUND IT, SO I DON'T KNOW THAT THAT IS REALLY, I GUESS, APPROPRIATE.

YOU SAY THAT WE MIGHT GET A DIFFERENT RESULT. UNDER WHAT LEGAL THEORY WOULD WE GET --

I AM SORRY?

YOU SAY WE MIGHT GET A DIFFERENT RESULT, BUT I AM ASKING UNDER WHAT LEGAL THEORY, THEN, WOULD WE POSSIBLY GET THIS DIFFERENT RESULT? IT WOULDN'T BE ESTOPPEL, AND IT WOULDN'T MEET ALL THE ELEMENTS OF RATIFICATION, SO HOW WOULD IT BE DIFFERENT?

HOW HAD -- WELL, ACTUALLY I AM NOT -- I WAS THINKING, SPEAKING OFF THE TOP OF MY HEAD AT THAT POINT, AND I AM NOT SURE THAT YOU NECESSARILY WOULD, EXCEPT THAT AT SOME POINT, YOU WOULD HAVE TO HAVE THAT APPARENT AGENCY, AND I SUPPOSE YOU WOULD HAVE TO HAVE A LAPSE OF MANY YEARS OF TIME.

JUDGE COLLIER REACHED THE FACT THAT YOU HAVE GOT APPROVAL HERE, ON THE BASIS OF THE FACT THE COUNTY KEPT PAYING THE BILLS, WHEN THEY CAME IN, AND THEN IT WAS SORT OF THE NATURE OF AN ESTOPPEL, BUT IT WAS, IN FACT, HE WAS SAYING, AS I READ WHAT HE WAS SAYING, THAT THERE CAN BE AN APPROVAL, WITHIN THE TERMS OF THE STATUTE, BY THE COUNTY, PROCEEDING AS, ON THE BASIS THAT IT, IN FACT, RECOGNIZED THE CONTRACT. ISN'T THAT WHAT HE WAS SAYING?

WELL, THAT IS WHAT HE SAID, AND I THINK THAT THE COUNTY'S POSITION IS THAT THAT IS NOT A CORRECT UNDERSTANDING OF THE LAW. THE CASE LAW IS THAT JUST MERE ACT OF -- THAT YOU HAVE APPROPRIATED SOMETHING OR EVEN MADE SOME PARTIAL PAYMENTS ON IT DOES NOT AMOUNT TO RATIFICATION. THAT IS, I THINK, WE GET THAT FROM THE HOSKINS CASE AND, POSSIBLY, CITY OF KISS ME AND RAMSEY.

SO -- OF KISSIMMEE AND RAMSEY.

SO WHAT IS THE IMPORTANCE OF THE COUNTY HAVING -- AS I UNDERSTAND IT, THEY WERE DISCUSSING GETTING SOME KIND OF COMPUTER SYSTEM, AND THEN THEY DECIDED THAT THEY WOULD GET WHATEVER SYSTEM WAS COMPATIBLE WITH WHAT THE COMPTROLLER ALREADY HAD, SO WHAT IS THE RAMIFICATIONS OF THAT? THAT DOESN'T MEAN ANYTHING, IN THE SCHEME?

IT DOESN'T MEAN ANYTHING AS TO RATIFICATION. WHAT IT MEANS IS THAT YOU HAVE AN INDEPENDENT PERSON WHO HAS THE ACTUAL AND THE APPARENT AUTHORITY TO ESSENTIALLY GET WHATEVER MONEY HE WANTS FROM THE COUNTY COMMISSION, BOTH UNDER THE FLOWERS V ESCAMBIA COUNTY CASE, UNDER THE FACT THAT HE IS A FEE OFFICER. IN FACT ONE OF HIS LETTERS TO THE COUNTY COMMISSION THAT IS IN THE RECORD SAYS, IF YOU DON'T GIVE ME THE BUDGET REQUEST, I AM GOING TO INCREASE THE FEES THAT I CHARGE YOU, AND SO THE COUNTY COMMISSION, IN THAT CASE, WOULD HAVE BEEN FACED WITH EITHER HAVING TWO COMPUTER SYSTEMS THAT THEY PAID FOR, WHICH THEY WOULD HAVE THE RIGHT TO DO OR MAKING A FISCAL DECISION THAT THE COMPTROLLER IS CHARGING THEM ALL THIS MONEY FOR THAT.

DID THE COUNTY, AS A RESULT OF THAT, GET COMPUTER EQUIPMENT THAT WAS, IN FACT, COMPATIBLE, AND FROM THE SAME COMPANY?

THE COUNTY NEVER GOT COMPUTER EQUIPMENT. ALL THE COUNTY DID WAS IT TIED ITSELF INTO WHATEVER COMPUTER SYSTEM THE COMPTROLLER HAD, BECAUSE AT EACH TIME, THE CONTRACT WAS CONSISTENTLY BEING AMENDED. THERE ARE DIFFERENT EQUIPMENT SCHEDULES, DIFFERENT -- WHICH ARE EACH ALMOST NEW LITTLE SUBCONTRACTS THAT ARE COMING THROUGH, AND NONE OF THOSE IS REPRESENTED -- BOO BY -- BY TYING IN, YOU MEAN USING THE SAME COMPUTER AS THE COMPANY -- AS THE COMPTROLLER.

IN THIS LANGUAGE IN THE STATUTE, WHERE IT SAYS YOU HAVE GOT TO GET APPROVAL OF THE COUNTY COMMISSION, MEANS THAT YOU HAVE GOT TO GET A RESOLUTION OF THE COUNTY COMMISSION OR YOU DO BUSINESS WITH THE COUNTY AT YOUR PERIL. WHAT IS THE PRACTICAL EFFECT GOING TO BE, UPON PEOPLE DOING BUSINESS WITH THE COUNTY? ISN'T THAT GOING TO SORT OF BUNGLE THINGS UP FOR THE COUNTY?

NO, SIR. I THINK THAT WHAT IT DOES IS IT ENFORCES PEOPLE TO DEAL HONESTLY AND FAIRLY WITH THE TAXPAYER. THAT IS, REALLY, WHAT THIS IS ABOUT, YOU KNOW, PROTECTING THE TAXPAYER FROM ROGUE PHYSICIANS WHO MIGHT GO OUT AND COMMIT, AS HERE -- OFFICIALS, WHO MIGHT GO OUT AND COMMIT, AS HERE, ILLEGAL DEBT WHICH COULD NEVER BE RATIFIED.

ISN'T YOUR ANSWER TO THAT IN YOUR OWN CODE PROVISIONS, RATHER THAN READING IT INTO THE STATE STATUTE, THAT APPROVAL IS A PRETTY BROAD CONCEPT, AND YOU, BY COUNTY APPROVAL, SAY YOU CAN ONLY APPROVE A, B, C, D, THEN THE COURTS MANDATE THAT. DON'T YOU SEE THAT AS A DIFFERENT CONCEPT? SOME COUNTIES REQUIRE THAT A CONTRACT HAVE A RESOLUTION, FROM MY UNDERSTANDING, BUT YOU DON'T HAVE SUCH A CODE PROVISION, DO YOU?

I AM NOT SURE AT THE RELEVANT TIME THAT WE WOULD HAVE BEEN, AND I AM NOT SURE THAT THE CONSTITUTION REQUIRES A FORMAL RATIFICATION. THERE HAS TO BE A FORMAL MOTION, PERHAPS, BUT GETTING BACK TO JUSTICE WELLS ---.

WHEN YOU SAY APPROVAL, YOU HAVE NO COUNTY CODE PROVISION THAT REQUIRES A RESOLUTION. WE HAVE THE COURTS?

THIS COURT HAS COME OUT WITH A DECISION THAT WOULD LAY OUT THOSE CRITERIA THAT WOULD SERVE AS A GUIDE FOR FUTURE DECISION-MAKERS AND WOULD SAY THAT THESE CRITERIA MUST BE SATISFIED, TO CONSTITUTE APPROVAL, AND THAT WOULD BE THE EFFECT. I DON'T KNOW THAT THERE IS A COUNTY ORDINANCE THAT COULD HAVE A COUNTY STANDARD TO WHAT THIS COURT DECIDED.

WOULD IT BE SIGNIFICANT AT ALL THAT COUNTY HAD A HISTORY OF DOING BUSINESS THIS WAY? WOULD THIS BE A FACTOR TO BE CONSIDERED?

WELL, I THINK THAT NO, I DON'T BELIEVE THAT IT WOULD, BECAUSE IF THE COUNTY HAS BEEN DOING SOMETHING ILLEGAL FOR 20 YEARS, THAT DOESN'T SERVE TO MAKE IT LEGAL IN THE 21st YEAR, AND SO IF THERE WAS SOME ILLEGALITY PREVIOUSLY, THE FACT THAT IT HAD GONE ON FOR SO LONG WOULDN'T NECESSARILY CLARIFY THAT, WOULDN'T NECESSARILY MAKE THAT LEGAL, BUT HERE THE COUNTY HASN'T BEEN DOING BUSINESS. THE ISSUE WAS THE COMPTROLLER. HERE YOU HAD A SEPARATE ENTITY. THE EXPRESS LANGUAGE CONTEMPLATES THAT THE COUNTY IS NOT THE ENTITY TO BE BOUND BY THE LEASE. IT IS NOT THE LESSEE, AND TO THE EXTENT THAT THE COUNTY INSERTS ITSELF, ALL SORTS OF PROVISIONS, PENALTIES FOR NONAPPROPRIATION, WHICH ARE SPECIFICALLY GROUND ON IN BOTH THE BREVARD COUNTY AND THE SARASOTA COUNTY COME INTO THE CASE, IN THAT THE COUNTY, ON BEHALF OF THE TAXPAYER, REALLY TAKES A HIT FOR A CONTRACT THAT FRANKLY CREATES AN ILLEGAL DEBT, AND THAT IS, I GUESS, A RESULT THAT YOU HAVE. JUST DECADES OF PUBLIC POLICY, TO PREVENT THE TAXPAYERS FROM THIS VERY KIND OF SITUATION.

IS IT SIGNIFICANT THAT THE COUNTY COMMISSIONERS KNEW THAT THEY HAD A TREMENDOUS COMPUTER AND THE COUNTY -- BUT SOMEBODY WAS PAYING FOR IT, AND HAD BEEN PAYING FOR IT FOR SOME TIME, AND SOMEBODY HAD CONTRACTED FOR, AND YET THE BUDGETARY, AT THE END OF THE BUDGETARY YEAR FOR A COUPLE OF YEARS, IT MAY GO AHEAD AND PAY BACK?

WELL, JUSTICE SHAW, FIRST OF ALL, AGAIN, THE LAW IS THAT CONSTRUCTIVE KNOWLEDGE OF THE ACTS OF AN UNAUTHORIZED AGENT IS NOT ENOUGH, AND JUST A DUTY TO INQUIRE IS NOT ENOUGH TO CONSTITUTE RATIFICATION. THE RECORD IN THIS CASE DOESN'T SHOW ANYTHING BEYOND, AT BEST, CONSTRUCTIVE KNOWLEDGE OR DUTY TO INQUIRE, WHICH IS INSUFFICIENT, JUST AT COMMON LAW, TO CONSTITUTE THAT ACT. THE SECOND PART OF YOUR QUESTION IS THAT EVEN IF THEY DID APPROPRIATE YOU KNOW, IN PREVIOUS YEARS, IN ORDER TO AVOID THE CONSTITUTIONAL DEBT RESTRICTION, ONCE THEY MADE A DECISION TO NONPROPOSE RATE, THE -- TO NONAPPROPRIATE, THEN WE SHOULDN'T BE HERE, BECAUSE IF IT ISN'T A REAL AGREEMENT AND IF IT IS NOT DEBT, THEN THE COUNTY, REGARDLESS OF WHAT THEY KNEW, EVEN IF THEY HAD VOTED ON IT, THEY SHOULD HAVE BEEN ALLOWED TO MAKE A DECISION NOT TO APPROPRIATE AND WALK AWAY.

THANK CHED -- THANK YOU. REBUTTAL?

TAKING ESCAMBIA COUNTY'S WISHES FOR STANDARD, IN REVERSE ORDER, SO THAT WE CAN WORK BACK TO LEGALITY, THEY HAVE FULL KNOWLEDGE WITH REFERENCE TO THE MATERIAL FACTS. I EXPLAINED THAT FULL KNOWLEDGE IS NOT THE ONLY WAY THAT YOU CAN GET FULL RATIFICATION. DID THEY KNOW WHAT WAS GOING ON HERE? YES, THEY DID. THEY HAD THEIR HEAD IN THE SAND, IF THEY DIDN'T, AND WILLFUL I GO NORBS IS NOT -- IGNORANCE IS NOT GOING TO SAVE YOU. THERE IS NO PUBLIC OR PRIVATE LAW THAT SAYS THE COUNTY, GO OUT AND CONTRACT, WITH THE SAME RESULT, FOR RATIFICATION. SAYING THAT THEY DIDN'T KNOW ABOUT THE CONTRACT IS, ALSO, A LITTLE BIT DISINGENIOUS, TOO, WHEN YOU HAD A 1995 CONTRACT WITH THE COMPTROLLER FOR ALMOST IDENTICAL TERMS.

DO YOU AGREE THAT THE COUNTY CANNOT BE ESTOPPED, THE LAW?

DO I AGREE THAT IT IS THE LAW THAT THE COUNTY CANNOT BEES TOPPED?

RIGHT.

I THINK HE IS TOPPLE IS A DIFFERENT THING AND A RATIFICATION, WHICH WE ADDRESSED A LITTLE WHILE AGO, CAN OCCUR UNDER APPROPRIATE CIRCUMSTANCES, AND I THINK THOSE CIRCUMSTANCES EXIST HERE.

YOU ARE RELYING UPON RATIFICATION?

THAT IS CORRECT.

NOT ESTOPPEL.

I AM NOT RELYING ON ESTOPPEL. I THINK RATIFICATION EXISTS HERE.

YOU ARE CHARGING HEAD IN THE SAND, WHATEVER. WOULDN'T IT BE DIFCONSULT TO EXCEPT -- WOULDN'T IT BE DIFFICULT TO ACCEPT, AS A PROPOSITION, THAT A MAJOR CORPORATION LIKE WE HAVE HERE, PROVIDING THESE COMPUTERS, WOULD NOT REALIZE THAT THEY ARE ACTING AT THEIR PERIL, TO A GREAT EXTENT, IN CONTRACTING WITH A CONSTITUTIONAL OFFICER AND THEN LOOKING TO THE COUNTY TO BE RESPONSIBLE FOR THAT? I MEAN, ISN'T THERE A MINEFIELD OUT THERE, WITH REFERENCE TO ALL OF THE CONSTITUTIONAL OFFICERS AND THE COUNTY COMMISSION, AND SO DOESN'T THAT HEAD-IN-THE-SAND THING, REALLY, WORK BOTH WAYS?

SHOULD IT HAVE BEEN DONEA BETTER FASHION? YES. NO -- DONE IN A BETTER FASHION? YES. NO QUESTION ABOUT THAT. DOES IT PREVENT AN ENFORCEABLE CONTRACT? NO.

THERE WAS A CONTRACT ENTERED INTO, HERE, WITH THE COMPTROLLER. IS THAT RIGHT? NOT WITH THE COUNTY COMMISSION.

THERE WOULD BE NO RATIFICATION ISSUE, IF IT WOULD HAVE BEEN DIRECTLY WITH THE COUNTY COMMISSION, SO AGREE IT COULD HAVE BEEN DONE IN A BETTER FASHION. WITH RESPECT TO THE SECOND ISSUE, RATIFIED IN THE SAME MANNER, IT COULD BE ORIGINAL HERE. THE COUNTY DON'T ADD PURCHASINGORD NANCY, AFTER THIS -- PURCHASING ORDINANCE, AFTER THIS ISSUE CAME UP, SO THEY NOW ADDRESS ISSUES LIKE THAT THROUGH RESOLUTION, AND THEY COULD HAVE DONE THAT BEFORE. THAT WAS THE ANSWER TO THE QUESTION THAT WAS POSED TO MR. TUCKER. THE COUNTY HAS TO APPROVE IT, AS THE COURTS NOTED. THAT IS VERY BROAD LANGUAGE, AND, AGAIN, ON THE RATIFICATION ISSUE, WE THINK EVERYTHING IS THERE TO FIND APPROVAL OF THIS AGREEMENT.

IF WE FIND THAT THE CONTRACT WAS, IN FACT, RATIFIED, WHAT DO WE DO ABOUT THE SECOND PART OF THE CERTIFIED QUESTION, WHERE WE ARE ASKED WHETHER OR NOT THAT NONSUBINSTITUTION CLAUSE IS -- THAT NONSUBSTITUTION CLAUSE IS VIOLATE I HAVE OF THE -- VIOLATIVE OF THE CONSTITUTION?

THE COUNTY KEPT REFERRING TO IT AS "THAT ILLEGAL CONTRACT" BUT NEVER GIVING MORE SPECIFICS THAN. THAT WE NEED TO ADDRESS THAT NEXT. THE QUESTION IS IS THERE AN ILLEGAL CONTRACT? WITHOUT ASSUMPTION, I AM GOING TO ADDRESS, FIRST, THE STATE VERSUS BREVARD COUNTY CASE AND THE SCHOOL BOARD VERSUS SARASOTA COUNTY CASES. I WILL TRY TO SAVE A LITTLE TIME TO GIVE AN EXPLANATION OF MY THOUGHTS ON THAT, BUT IN THE BREVARD COUNTY CASE, WE HAVE GOT A SIMILAR CASE, BUT ON ONE END OF THE SPECTRUM, WE ARE GOING TO BE IN THE MIDDLE ANSAR A SOCIETY A COUNTY, I THINK, IS PERHAPS -- ANSAR A SOCIETY A COUNTY, I THINK, IS PERHAPS ON THE OTHER END OF THE SPECTRUM. IN BREVARD COUNTY, IT WAS CLEAR THAT THERE WOULD BE NO OBLIGATION TO PAY AND IT WAS, ALSO, REPRESENTED THAT THERE WOULD BE ABILITY TO SUBSTITUTE EQUIPMENT, IF THE COUNTY DECIDED NOT TO APPROPRIATE, AND THERE WAS NEVER A COMMITMENT OF ANY ADVALOREM FUNDS IN THAT CASE. THE COUNTY SAID THAT IT WAS AN ACCEPTABLE AGREEMENT. IT SAID IT APPROVED BONDS THAT HAD A MUCH GREATER IMPACT ON ADVALOREM CASES. THERE WASN'T MENTION MADE OF A LACK OF NONSUBSTITUTION BY THIS COURT. WHAT NORR GIVES US OR WHAT, EXCUSE ME, BREVARD COUNTY GIVES US, BASICALLY, IS THAT IT IS NOT A PROBLEM FOR A COUNTY TO BE ABLE TO SAY WE DON'T WANT THIS EQUIPMENT ANYMORE. WE ARE GOING TO STOP PAYING. GIVE IT BACK TO YOU. THE LESS OR TAKES IT BACK, AND THE COUNTY NO LONGER HAS A RIGHT TO IT. THE QUESTION IS, IF THERE IS A NONSUBSTITUTION PROVISION, DOES THAT CREATE, AS IN SECTION 12. I THINK WITH THE BREVARD COUNTY CASE, IF WE LOOK AT WHAT WENT ON THERE, IN THAT CASE YOU HAD A LEASE OF CONSTRUCTION FACILITIES AND THEN LEASED BACK TO THE SCHOOL BOARDS. THERE WAS MORE THAN ONE LEASE INVOLVED AND THE LEASES INVOLVED 15 TO 30-YEAR TERMS. IT WAS CLEAR THAT THE BOARD COULD NOT APPROPRIATE. THEY HAD COMMITTED ADVALOREM TAX DOLLARS TO SATISFY SOME OF THE BOND FUNDS, BUT THEY COULDN'T BE COMPELLED TO MAKE PAYMENTS. THEY WERE JUST COMMITTING THE MONEY. IF THEY DECIDED TO NONAPPROPRIATE, THEY COULD DO ONE OF TWO THINGS. THEY COULD PURCHASE THE FACILITIES, IT THEY DECIDED TO DO THAT, OR THEY COULD GIVE UP THE FACILITIES FOR THE REMAINDER OF THE LEASE TERM. FOR SARASOTA COUNTY, THAT WOULD BE 30 YEARS, IF THEY DID NOT APPROPRIATE IN THE FIRST YEAR. THE COURT BASICALLY SAID THAT IT WAS NOT SUPPORTED BY AN ADD VALUE CORE EM-- AN ADVALOREM PLEDGE, SO IT WAS NOT TO BE PAID FOR BY TAX DOLLARS, AND THE TAXATION POWER, THE ANSWER WAS NO. THAT WAS THE ANSWER TO THE COURT'S INQUIRY, BECAUSE THE COURT DOESN'T, AGAIN, LOOK TO FISCALABILITY, AND THIS COURT IS AWARE OF THAT. IT MAY HAVE BEEN A BAD DEAL ARE A MEDIUM DEAL OR A GOOD DEAL, BUT THE COURT DOESN'T LOOK AT THAT IN THE CONSTITUTION.

HERE WE ARE TALKING ABOUT A DECISION UPON WHICH THE GOVERNMENT IS PROPERLY DEPENDENT. HOW CAN IT OPERATE, IF IT DOESN'T HAVE KRIMENT, AND THIS CONTRACT IS, IN ESSENCE, SAYING IF YOU DON'T KEEP OUR EQUIPMENT, YOU CAN'T OPERATE YOUR GOVERNMENT. IT IS, ALMOST, LIKE SAYING IF YOU DON'T KEEP ALL OF OUR POLICE VEHICLES, YOU CAN'T HAVE POLICE VEHICLES.

I UNDERSTAND THAT, WITH RESPECT TO THIS BOND CASE, WITH SCHOOLS BEING BUILT, HOW LIKELY DO WE THINK IT IS, IN THE REAL WORLD, THAT ONE OF THE SCHOOLS WAS GOING TO OPEN UP AND THE SCHOOL BOARD WOULD DECIDE NOT TO APPROPRIATE AND DO WITHOUT THE SCHOOL FOR 30 YEARS. I DON'T THINK THAT IS REASONABLE THAT THEY WERE GOING TO DO. THAT IN ESSENCE, THEY WERE AS TIED IN TO THAT LEASE AS THESE FOLKS WERE TO THAT EQUIPMENT PROVISION. THE ALTERNATIVE WOULD BE THAT, IF YOU FEEL LIKE YOU HAVE GOT A MISSION OR COUNTY CRITICAL PIECE OF EQUIPMENT THAT NEEDS TO BE FINANCED, YOU DO IT THROUGH A LEASING MECHANISM THAT DOESN'T HAVE A SUBSTITUTION CLAUSE AND YOU ARE GOING TO PAY MORE FOR IT. THE MARKET IS GOING TO ADJUST TO THAT FACT, BUT NONPROVISION CLAUSE ISN'T PROHIBITED. THE LEGISLATURE KNEW ABOUT THIS SITUATION IN THE '80s AND DIDN'T SEEK TO -- SPEAK TO COUNTIES. THEY DID SPEAK TO SCHOOL BOARDS. IT IS A NOT A CONSTITUTIONAL ISSUE, BASED ON THE SARASOTA COUNTY PROVISION. IT IS APPLES AND APPLES, IF YOU LOOK AT WHAT THE SCHOOL BOARD WAS DOING. WE ARE HERE FOR 30 YEARS, BARRING SOME ECONOMIC CATASTROPHE.

THANK YOU VERY MUCH.

THANK YOU.

BEFORE WE TAKE A RECESS, WE WANT TO ACKNOWLEDGE THE PRESENCE OF RUSH LAND TREE AND SOME STUDENTS FROM FSU, NORTHERN HIGH SCHOOL AND FLORIDA CHRISTIAN, WHO ARE PART OF THE SCALES PROJECT, MEANING STRENGTHENING CITIZENSHIP AND LAW AND EDUCATION IN SOCIETY. WE WELCOME YOU. WE WILL BE IN RECESS FOR TEN MINUTES. BAILIFF: PLEASE RISE.