Editor’s Note: The Fernandina Observer posted video of Judge Foster’s appearance before the Nassau County Board of Commissioner on June 19, 2013. We have chosen to post the full text of Clerk of Courts, John Crawford’s response to the commission. The letter was written on June 20 and addressed to “The Honorable Danny Leeper, Chairman and the Nassau County Board of Commissioners.
Re: Petition for Writ of Certiorari, Case No. 13-2807, First District Court of Appeal
“Since the Board authorized its attorneys to draft an amicus brief on the Board’s behalf in the above-referenced matter yesterday without giving notice to me or the public by including the item on a properly noticed and advertised Board agenda, I offer the following.
As you know, in Nassau County, the Clerk of Court constitutionally and statutorily serves as auditor and custodian of all county funds. Pursuant to section 129.09, Florida Statutes, the Clerk can be held personally and criminally liable if he pays an illegal charge against the county. Accordingly, the Clerk takes his auditor role very seriously as “watchdog of county funds” as outlined by the Florida Supreme Court in Alachua v. Powers.
Since January of this year, the Clerk and Chief Judge and Administrative Judge have disagreed about the proper interpretation of sections 939.185, 29.004, and 29.008, Florida Statutes. The dispute initially arose over whether payment to a Senior Judge filling a vacancy left after the passing of The Honorable Granville C. Burgess was properly payable from county funds collected pursuant to s. 939.185(1)(a), F.S. (“939.185 county funds”).
On February 4, the Chief Judge, Administrative Judge, County Attorney, and Board Chairman met with the Clerk, and the Clerk agreed to pay the Senior Judge invoice if the Chief Judge issued an administrative order directing him to do so. Subsequently, the Chief Judge issued Administrative Order 2013-3, directing the Clerk to pay the Senior Judge with 939.185 county funds. However, the Clerk’s research revealed that Art. V, section 14(a) of the Florida Constitution explicitly requires that judges are to be paid only from state funds. Therefore, the Clerk could not pay the Senior Judge invoice with 939.185 county funds. No invoices were presented to the Clerk for payment under Administrative Order 2013-3.
On February 12, the Chief Judge, Administrative Judge, and County Attorney, arrived at the Clerk’s office, unannounced, and met with the Clerk. However, neither the Clerk’s Chief of Staff nor his General Counsel were in attendance at this second meeting. Despite having issued Administrative Order 2013-3, the Chief Judge stated that he agreed with the Clerk’s position that a Senior Judge could not be paid with 939.185 county funds. It was proposed that Administrative Order 2013-3 would be changed to reference payment of “magistrates” and “hearing officers.” The Clerk agreed that he would authorize payments pursuant to such order if the order were issued. The Chief Judge then issued Administrative Order 2013-4, and the Clerk authorized a budget transfer of funds for such purpose. However, no invoices were presented to the Clerk for payment to the Senior Judge acting as a “magistrate.”
On February 28, approximately a month after the first meeting with the Judges, the Clerk discovered, through a public records request he made to the Office of the State Courts Administrator (“OSCA”), that on February 1 – three days prior to his first meeting with the Clerk – the Chief Judge had received a legal opinion from OSCA’s General Counsel stating unequivocally that payments to Senior Judges from 939.185 county funds would not be proper and that state funds were already appropriated and are the proper source for such payments. The Chief Judge had received this opinion prior to his meeting with the Clerk, but had not disclosed this critical information to the Clerk. The Clerk is unaware of whether the Chief Judge had disclosed the opinion to the County Attorney and Board Chairman. Significantly, the Clerk discovered the opinion only after he made a public records request to OSCA approximately a month after the Chief Judge, Administrative Judge, County Attorney, and Board Chairman met with him.
In the Board meeting on Wednesday, June 19, Judge Foster (speaking, as he said, on his own and Chief Judge Moran’s behalf) stated that there was an agreement that the Clerk would pay Senior Judge invoices from 939.185 county funds. It is axiomatic that an agreement does not exist where a party fails to disclose information (such as OSCA’s opinion) where it has an obligation to do so. Also, the Clerk (and the Judges, and, for that matter, the public) are prohibited from making agreements that would violate the law; therefore, the Clerk concluded that in light of OSCA’s opinion, the Clerk could not issue payment to Senior Judges from 939.185 county funds, regardless of Administrative Order 2013-4. The Clerk then sought any records of payment of Senior Judges from OSCA. While conducting this research, the Clerk was visited by Judge Foster and, at that time, the Clerk advised Judge Foster of his position. The Judges’ complaint that the Clerk did not keep his word and surprised the Judges is thus belied by the fact that (1) the Judges were aware of OSCA’s opinion, (2) an agreement in violation of law is void, and (3) the Clerk promptly informed Judge Foster of his position. Ultimately, the Judges never presented an invoice to the Clerk for Senior Judge services, and the Court submitted the Senior Judge invoices to the State, which promptly paid them, as is the ordinary method throughout Florida. In fact, the Clerk’s questioning of the invoices and the Administrative Orders appears to have possibly prevented double payment of the Senior Judge invoices by the State and the County.
In spite of the representations by Judge Foster regarding a purported agreement leading to Administrative Order 2013-4, that order is not the subject of the appeal. Instead, the current issue on appeal involves an invoice for a mediator in a family law case that Judge Foster presented to the Clerk’s Finance office for payment from 939.185 county funds, after which the Chief Judge issued a third order – Administrative Order 2013-06 – ordering payment of the mediator’s invoice from 939.185 county funds. In his statements to the Board, Judge Foster claimed that the Clerk did not reach out and communicate and instead initiated a lawsuit without any warning – leaving a false impression with you, in light of your comment, “Seems like a phone call would have gone way further than filing a suit.” In fact, the Clerk advised the Judge both in a letter and in a personal meeting on Friday, April 5, 2013 why he believed the invoice should be submitted to the State instead of the County for payment. During that conversation, the Judge stated that the Chief Judge would enter an order and the Clerk would be forced to appeal Administrative Order if he did not agree to pay the mediator’s invoice.
On May 13, the Chief Judge entered Administrative Order 2013-06, directing the mediator to be paid from 939.185 county funds within 30 days. The Clerk reached out by letter to the Chief Judge, asking if the Order carried the threat of contempt. The Chief Judge did not respond, but instead had an attorney contact the Clerk by phone. During that conversation, the Clerk invited the Chief Judge to lift Administrative Order 2013-06 in light of the impending deadline to appeal – a deadline resulting entirely from the Chief Judge’s order – and to join with him in requesting an opinion from the Florida Attorney General regarding the propriety of paying a mediator from 939.185 county funds. The Chief Judge’s counsel consulted with the Chief Judge, and then again contacted the Clerk by phone, indicating that the Chief Judge was not interested in jointly seeking an Attorney General opinion, and that the Clerk should appeal Administrative Order 2013-06 if he objected to it. In a subsequent letter responding to the Clerk’s inquiry about the threat of contempt, the Chief Judge, through his counsel, advised the Clerk that the Chief Judge “fully expects [the order] will be followed.” Faced with being held in contempt of the Order, the Clerk had no option but to pay the invoice under protest and file the appeal (which had been expressly invited by the Chief Judge, through his counsel), in order to stop the pattern of attempts to use 939.185 county funds for unauthorized purposes.
At the June 19 Board meeting, the Clerk was criticized for spending more county money fighting the Administrative Order than the amount of the mediator’s invoice. This appeal is not about a single invoice against county funds or attorneys’ fees involved in the dispute; it is about the Clerk doing his job. The Clerk is legally bound to ensure that county funds are spent in accordance with the law, and he is the only official who, by Florida Statute 129.09, potentially faces personal liability if illegal payments are made, even when authorized by the Board or a Judge.
Had the Clerk not questioned the Senior Judge invoices, the County would possibly have paid approximately $14,000.00 to a Senior Judge, funds that are squarely the constitutional responsibility of the State, not the County. Defining the law will result in savings to the citizens of possibly hundreds of thousands of dollars over time. Here again, in the case before the First DCA, the Clerk is trying to follow the law and ensure that county funds are not spent to pay state expenditures when state funds are available and appropriated for such purposes. Indeed, the state funds that are to be used to cover such expenditures have already been collected from Nassau County citizens through filing fees and taxes.
As custodian of all county funds, the Clerk is bound by section 129.09, F.S., to assure that the law is followed regarding county expenditures, even when those expenditures are being requested by a judge. I am disappointed that I have been compelled to respond to personal accusations that do not involve the issue on appeal – i.e., a chief judge’s authority to order a county to use county funds to pay an obligation that is payable from already-appropriated state funds.”
Sincerely,
John A. Crawford
Posted June 21, 2013 9:55 a.m.