HomeMy WebLinkAbout02-06-2003 Attorney General Opinion 2003-01 - Travel ReimbursementBROWN, WARD, SALZMAN & WEISS, P.A.
Attorneys at Law
Usher L. BrownOffices in Orlando, Kissimmee, Debra S. Babb
Suzanne D'Agresta° Cocoa & Viera Jeffrey P. Buak
Anthony A. Garganese° ^ Todd K. Norman
S. Salzman* ��c�', John U. Biedenham, Jr.
Gary H. Ward' �le Joseph E. Blitch
John Jennifer A. Michael
S
Jeffrey S. Weiss p q Michelle A. Reddin
F�D
003 Vincent E. Scarlatos
'Board Certified Civil Trial Lawyer
*Board Certified Business Litigation Lawyer
°Board Certified City, County & Local Government Law
CITY OF: Man e'SPRINGS
February 6, 2003
Sent Via Facsimile & U.S. Mail
407-327-4753
Ms. Louise Frangoul, Finance Director
City of Winter Springs
1126 East State Road 434
Winter Springs, FL 32708
Re: Attorney General Opinion 2003-01 - Travel Reimbursement
City of Winter Springs - General
Our File No.: 1193
Dear Louise:
Erin J. O'Leary
Of Counsel
Please allow this correspondence to serve as a follow-up to our telephonic
discussion of January 30, 2003, regarding the above referenced matter. In that regard, we
have attached a copy of the Attorney General's Opinion for your review and records.
As you will glean from a review of the Attorney General's Opinion, historically local
governments have operated under the premise that Section 112.061, Florida Statutes,
applied to municipalities, but that as there was no express preemption, local governments
were free to enact per diem and travel allowances which varied from Section 112.061,
Florida Statutes. See. Fla. Op. My. Gen. 74-18 (1974) Recently, however, the Florida
Attorney General's Office has released two separate opinions relating to travel
reimbursement. The first in late 2002 and most recently in January of this year, which
specifically stated local governments do not have the authority to enact per diem
allowances in excess of those provided in Section 112.061(6), Florida Statutes. See. Fla.
Op. Att'y. Gen. 2002-65 (2002) and 2003-01 (2003)
225 East Robinson Street, Suite 660 • P.O. Box 2873.Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566
Website: www.odandolaw.net • Email: firm@orlandolaw.net
Andrea Bowers, City Treasurer
February 6, 2003
Page 2
In response to a statewide e-mail transmission from the Florida Auditor General's
Office, wherein the Auditor General warned local governments of the aforementioned
opinions, we contacted your office to discuss the City's policy on travel reimbursement.
You indicated the City has not formally adopted a policy but generally followed the
guidelines of Section 112.061, Florida Statutes. Based upon the position taken by the
Auditor General we recommend the City strictly adhere to the per diem and travel
reimbursement allowances provided in Section 112.061, Florida Statutes.
It is our understanding, you would like for us to prepare a travel policy in accordance
with the Florida Statutes. We recommend waiting a short time to let the dust settle from
these recent pronouncements. Once we are sure of the status of the law we would be
happy to prepare the necessary and appropriate instruments.
For your information, we have been in contact with the Florida League of Cities
regarding its position on this matter. The League indicated that it has not taken an official
position at this time, but that it did not necessarily agree with the Florida Attorney General.
Be that as it may, the league is cautioning its clients to proceed with caution as the Auditor
General clearly does agree with the Attorney General, and has all but warned local
governments that it will be looking for travel reimbursement inconsistencies.
If you have any questions regarding this matter please do not hesitate to call our
offices.
Very truly yours,
i
Je y P. Buak
Assistant City Attorney
JPB/jd
Attachment:
Attorney General Opinion
cc: Ronald McLemore, City Manager
FAl_awyer\jeffb\City of winter Springs\Correspondence\Frangoul - Travel Reimbursement Policy.wpd
Page 1 of 4
Advisory Legal Opinion
Number: AGO 2003-01
Date: January 3, 2003
Subject: Municipalities, per diem and travel expenses
Mr. James C. Brady
Fort Lauderdale City Attorney
501 Northeast 8th Street
Fort Lauderdale, Florida 33304
RE: MUNICIPALITIES -OFFICERS AND EMPLOYEES -TRAVEL EXPENSES -PER DIEM -
expense accounts for municipal officers and volunteers for per diem
expenses. s. 112.061, Florida Statutes.
Dear Mr. Brady:
You have requested my opinion on substantially the following question:
Is a municipality authorized to provide an expense account to its city
officials and to citizen volunteer members without a limitation on the
per diem rates established pursuant to section 112.061(6), Florida
Statutes?
In sum:
Section 112.061(6), Florida Statutes, applies to municipalities and
controls the maximum rates of per diem and subsistence allowance to be
paid to officers, employees or others authorized to act on behalf of
the municipality. While a municipality may legislate on the subject of
per diem and subsistence allowances for governmental travelers, the
rates established by section 112.061(6), Florida Statutes, may not be
exceeded.
Section 112.061, Florida Statutes, governs the per diem and travel
expenses of public officers, employees and authorized persons in this
state. The enactment of section 112.061 represents the Legislature's
efforts to establish uniform maximum rates and limitations, with
certain exceptions, applicable to public officers, employees, and
authorized persons whose travel expenses are paid by a public agency.
(11 Municipalities are included within the scope of the act.[2)
To ensure uniformity, the statute provides that section 112.061,
Florida Statutes, will prevail over any conflicting provisions in a
general law to the extent of the conflict, unless the general law
contains a specific exemption. However, section 112.061(1)(b)2.,
Florida Statutes, expressly states that "[t]he provisions of any
special or local law, present or future, shall prevail over any
conflicting provisions in this section, but only to the extent of the
conflict." A "local law" does not ref o local codes or ordinances,
but to enactments of the Legislature [3)
Page 2 of 4
Section 112.061(6), Florida Statutes, provides the rates at which
travelers may be reimbursed for official travel. The statute provides:
"(a) All travelers shall be allowed for subsistence when traveling to a
convention or conference or when traveling within or outside the state
in order to conduct bona fide state business, which convention,
conference, or business serves a direct and lawful public purpose with
relation to the public agency served by the person attending such
meeting or conducting such business, either of the following for each
day of such travel at the option of the traveler:
1. Fifty dollars per diem; or
2. If actual expenses exceed $50, the amounts permitted in paragraph
(b) for means, plus actual expenses for lodging at a single -occupancy
rate to be substantiated by paid bills therefor.
When lodging or meals are provided at a state institution, the traveler
shall be reimbursed only for the actual expenses of such lodging or
meals, not to exceed the maximum provided for in this subsection.
(b) All travelers shall be allowed the following amounts for
subsistence while on Class C travel on official business
1. Breakfast..............................$3
2. Lunch...................................$6
3. Dinner $12"
These rates are established statutorily and apply to "[a]11 travelers."
A "traveler" for purposes of section 112.061 is defined in (2)(f) as
"[a] public officer, public employee, or authorized person, when
performing authorized travel." An "authorized person" is defined as:
111. A person other than a public officer or employee as defined herein,
whether elected or commissioned or not, who is authorized by an agency
head to incur travel expenses in the performance of official duties.
2. A person who is called upon by an agency to contribute time and
services as consultant or adviser.
3. A person who is a candidate for an executive or professional
position."[4]
These definitions apply equally to state and local governmental
travelers.[5] Citizen volunteers would appear to come within the scope
of the term "authorized person" assuming their activities fit within
the scope of the definition above.
The municipal home rule powers act gives broad home rule powers to
municipalities. Pursuant to section 166.021(3), Florida statutes, the
legislative body of a municipality has the power to enact legislation
concerning any subject upon which the state Legislature may act except:
"(a) The subjects of annexation, merger, and exercise of
extraterritorial power, which require general or special law pursuant
to s. 2(c), Art. VIII of the State Constitution;
(b) Any subject expressly prohibited by the constitution;
(c) Any subject expressly preempted to state or county government by
the constitution or by general law; and
(d) Any subject preempted to a county pursuant to a county charter
adopted under the authority of ss. l(g), 3, and 6(e), Art. VIII of the
State Constitution."
Page 3 of 4
Thus, if section 112.061, Florida Statutes, were determined to
constitute a preemption by the state of the subject of travel expenses
and per diem, the provisions of the statute would prevail over any
local legislation adopted to regulate this area.
A previous opinion of this office however, has concluded that section
112.061, Florida Statutes, does not constitute a -^�,ex ress preemption
o
the state of regulation of governmental travel .6)JRather,the mtatute
itself provides that it establishes "uniform maximum rates
applicable to all public officers, a . ees,,,.anq authorized persons
whose travel expenses are paid by a public agency) 1117] (e.s.) Thus,
while local governments may legislat sect of per diem and
subsistence allowances for governmental travelers, the rates
established by section 112.061(6) may not be exceeded.[8]
Therefore, it is my opinion that section 112.061(6), Florida Statutes,
applies to municipalities and controls the maximum rates of per diem
and subsistence allowance to be paid to officers, employees or others
authorized to act on behalf of the municipality. While a municipality
may adopt legislation implementing these maximum rates locally, it may
not act in a manner inconsistent with the provisions of section 112.061
(6), Florida Statutes.[9]
While this office has recently opined in Attorney General's opinion
2002-65 that section 112.061(11), Florida Statutes, requiring the use
of vouchers by state officers and employees does not impose a
requirement to use state vouchers on municipalities, that opinion
should not be understood to conclude that other provisions of section
112.061 do not apply to municipalities.
Sincerely,
Richard E. Doran
Attorney General
RED/tgh
-----------------------------------------------------------
[1] Section 112.061(1)(a), Fla. Stat.
[2] Section 112.061(2)(a), Fla. Stat., defines an "agency" or "public
agency" as "[a]ny office, department, agency, division, subdivision,
Political subdivision, board, bureau, commission, authority, district,
public body, body politic, county, city, town, village, municipality,
or any other separate unit of government created pursuant to
law." (e.s.)
[3] See, Art. X, s. 12(g), Fla. Const.; Advisory Opinion to Governor,
22 So. 2d 398 (Fla. 1945) (ordinance of noncharter county not a "law"
within the purview of s. 5[c], Art. II, State Const.); Op. Att'y Gen.
Fla. 84-39 (1984) (municipal ordinance not a "law" within the meaning
of s. 8, Art. I, State Const.); Op. Att'y Gen. Fla. 79-109 (1979)
(governing body of charter county prohibited in absence of statutory
authorization from providing by ordinance for imposition of civil
penalties by agencies of county); and Brovard County v. Plantation
Imports, Inc., 419 So. 2d 1145 (Fla. 4th DCA 1982) (holding that
provisions of a county ordinance authorizing assessment of penalties by
j,
Page 4 of 4
county agency was unconstitutional, and agreeing with conclusion
reached in Op. Attly Gen. Fla. 79-109 (1979).)
[4] Compare, s. 112.061(11), Fla. Stat., relating to travel
authorization and voucher forms which specifically applies only to
"state officers and employees and authorized persons,, and Op. Attly
Gen. Fla. 02-65 (2002).
[5] section 112.061(2)(e), Fla. Stat.
[6] See, Op. Attly Gen. Fla. 74-18 (1974).
[7] Section 112.061(1)(a), Fla. Stat.
[8] A legislative direction as to how a thing shall be done is, in
effect, a prohibition against its being done in any other way. Alsop v.
Pierce, 19 So.2d 799, 805-806 (Fla. 1944); Dabbs v. Sea Isle Hotel, 56
So.2d 341, 342 (Fla. 1952); Thayer v. State, 335 So.2d 815, 817 (Fla.
1976) .
[9] Cf., Op. Attly Gen. Fla. 92-67 (1992) (charter county required to
follow provisions of section 112.061[7], Fla. Stat.)
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