Clerk - Investigative Powers (County Funds and Post Audit Internal Audits)
Brock v. Collier County – Clerk Audit Powers
Case No. 2D07-4549, Second District Court of Appeal
The county has been embroiled with the clerk over several issues related to the clerk’s and BoCC’s powers. The main issues in the most recent round of litigation were over the post-audit authority of the clerk, the investigative powers of the clerk over what were and were not county funds and over independent auditing functions of the BoCC. The county received favorable circuit court rulings on all three issues. The clerk has appealed.
The county’s main arguments are based on the following conclusions of the court that:
- Under the Florida Constitution, the rights and duties of all public officials, including the clerk, must be defined by and derived from general law;
- The Board of County Commissioners, by general law, must control the oversight, audit and management of all county operations;
- The clerk is given authority to perform audits, and prepare financial statements, only through the delegation of that power from the BoCC.
Accordingly, the court concluded that the clerk had no unilateral independent authority to: (1) investigate whether certain funds were “county funds” when the BoCC had neither delegated such investigative authority nor given the clerk custody of the funds; (2) that the auditing power, absent a delegation of authority of the BoCC given to the clerk stops at the point in time when the clerk has determined that a requested payment can be lawfully made (“pre-audit”); “post-audit” reviews, as a matter of right, require legal authorization; (c) no specific grant of authority for the clerk to prepare the financial statements on behalf of the county exists in the law and would be derived from a delegation from the BoCC.
The Florida Association of County Attorneys (“FACA”) filed an amicus brief on behalf of the county. The Second District Court of Appeal issued its opinion in September 2009, reversing the circuit court's conclusions. You can link to the opinion here. The court denied the county's post-opinion relief but the Supreme Court has accepted jurisdiction. You can link to the docket and the briefs (Case No. 09-2190) here. The Supreme Court will hear oral argument on September 2, 2010.