HomeMy Public PortalAbout2024-14 Authorizing participation in a lawsuit seeking a declaration that the provisions of section 112.3144(1)(d), Florida Statutes is unconstitutional and invalidRE SO LUTIO N NO . 2024-14
A RE SO LUTIO N O F TH E VILLAG E CO UN CIL OF TH E
VILLA G E O F K EY BISCAYNE, FLO RI DA , AUTH O RIZING
PARTICIPATIO N IN A LAW SUIT SEEK ING A
DECLARA TIO N TH A T TH E PRO VISIO N S O F SE CTIO N
11 2.3144(l)(d), FLO RI DA STATUTES, TH AT RE Q UIRE
M UNICIPAL ELECTED O FFICIALS TO FILE FO RM 6
FINANCIAL DISCLO SURE FO RM S IS
UNCO NSTITUTIO NAL AND INVALID ; AND PRO VIDING
FO R AN EFFECTIVE DATE.
W H EREA S, since 1976, Article II, Section 8 of the Florida Constitution has required that
all elected State constitutional officers file a full and public disclosure of their financial interests,
which is done through a state-adopted form ("Form 6") that requires, among other things, the
disclosure of the specific amounts of an official's net worth, income and asset values; and
WHEREAS, historically, municipal elected officials have been required to make a more
limited financial disclosure that is done through a different state-adopted form ("Form 1 ") that
requires, among other things, the disclosure of information related to sources of income, real
property, intangible personal property liabilities and interests in specified businesses, but does not
include the specific amounts of an official's net worth, income and asset values; and
WHEREAS, the Mayor and all current elected members of the Village Council (the
"Village Elected Officials") were elected by the voters of the Village subject to and in reliance
upon Florida law that required the Mayor and Council Members to annually file Form 1 (not Form
6) financial disclosures forms; and
WHEREAS, although the State Legislature has the power in the Florida Constitution to
require that additional public officers file a full and public disclosure of their financial interests, it
must do so consistent with other constitutional limitations; and
W H E RE A S , in 1980, the voters of Florida amended the Florida Constitution by adopting
Article 1, Section 23, the "Right to Privacy," which states that"[ e ]very natural person has the right
to be let alone and free from governmental intrusion into the person's private life except as
otherwise provided herein"; and
WHEREAS, because the right of privacy is a fundamental right within Florida's
constitution, the Florida Supreme Court has consistently required that any law intruding on the
right is presumptively unconstitutional and must be justified by a "compelling state interest" which
the law serves or protects through the "least restrictive means;" and
WHEREAS, the First Amendment to the United States Constitution, and Article 1, Section
4 of the Florida Constitution, protects the freedom of speech, which includes the right to choose
what to say and what not to say, any impairment of which must be justified by a "compelling state
interest" which the law serves or protects through the "least restrictive means;" and
WHEREAS, during the 2023 legislative session, Senate Bill 774 was passed and codified
at Law of Florida 2023-09, amending Fla. Stat. § 112.3144, to change the financial disclosure
requirements and now require that all elected municipal mayors and elected members of the
governing board file a Form 6 financial disclosure, which is substantially more burdensome and
personally intrusive than the Form 1; and
WHEREAS, the imposition of the Form 6 disclosure requirements at the municipal level
(a) represents an unwarranted intrusion into the privacy rights of municipal elected officials, most
of which receive little or no compensation for their service, (b) unnecessarily risks the safety of
such officials (making them targets of, among other things, burglary, identity theft and extortion),
and ( c) will deter many otherwise qualified and interested citizens from running for office; and
W HERE AS, in fact, many municipal officials resigned from office prior to December 31,
2023, as a result of the new disclosure requirements, disrupting the ability of some local
governments to operate for lack of a quorum; and
WHEREAS, the imposition of the intrusive Form 6 disclosure requirements at the
municipal level is not the least restrictive means of serving the governmental interests of
preventing abuse of the public trust, as demonstrated by, among other things, the lack of such
requirements at the municipal level in other states and at the federal level ( even the President of
the United States and members of the U.S. Congress are not required to make such extensive
disclosures); and
WHEREAS, requiring that unpaid ( or low paid) municipal elected officials disclose their
precise net worth, income and assets does not serve (let alone constitute the least restrictive means
of serving) any compelling interest - Form 1 disclosures constitutes sufficient transparency to
inform the public of potential conflicts; and
WHEREAS, the imposition of new financial disclosure requirements upon municipal
elected officials who were elected without such requirements violates due process, is
fundamentally unfair and violates fundamental constitutional rights; and
WHEREAS, the Village desires to participate in a lawsuit seeking a declaration that the
provisions of Section 112.3144( 1 )( d), Florida Statutes, that require municipal elected officials to
file Form 6 financial disclosure forms are unconstitutional and invalid and should be enjoined (the
"Lawsuit"); and
WHEREAS, the Village Council finds that this Resolution is in the best interest
and welfare of the citizens of the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. Recitals. Each of the above-stated recitals are hereby adopted, confirmed,
and incorporated herein.
Section 2. Participation. The Village Council hereby authorizes the participation of
the Village, and any of individual Council Members who choose to participate as plaintiffs, in a
lawsuit seeking declaratory, injunctive and other appropriate relief challenging the provisions of
Section 112.3144(1 )( d), Florida Statutes, that require municipal elected officials to file Form 6
financial disclosure forms, based upon any appropriate legal theories, including those set forth
above, subject to the participation of at least ten municipalities.
Section 3. Attorney Retention. Weiss Serota Helfman Cole Bierman, PL (the
"Firm") is hereby retained to represent the Village in this litigation. The Firm will charge the
Village a flat fee, inclusive of attorneys' fees and costs, of $10,000 to represent the Village and
the individual elected officials who choose to participate as plaintiffs, for the litigation in the trial
court. The Village and elected officials recognize that such flat fee may be less than the actual
attorneys' fees and costs incurred, and that if the Village and elected officials prevail in the
Lawsuit, the Firm may apply with the Court for its actual reasonable attorneys' and costs from the
defendants. The filing of any appeals will be authorized by separate resolution under the terms
thereof. The Village and its elected officials also acknowledges that the Firm will be representing
other local governments and officials in this lawsuit and waives any conflicts related to such
representation.
Section 4. Authorization. That the Village Manager is hereby authorized to do all
things necessary and expedient to carry out the aims of this Resolution.
Section 5. Effective Date. That this Resolution shall be effective immediately upon
adoption.
PASSED and ADOPTED this _23rd_ day of_Janu~~O~•
JOE I. RASCO, MAYOR
ATTEST:
VILLAGE CLERK
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
WE ISS SEROTA HELFMAN COLE & BIERM AN, P.L.
VILLAGE ATT ORN EY