Lazaro Aleman
ECB Publishing, Inc.
A legal battle that has been brewing behind the scenes via emails for the last week between county officials is sure to break out into the open at the Jefferson County Commission on Thursday evening, April 7.
The battle stems from the commission’s unanimous decision on March 17 to hire the services of the CPA firm of Thomas Howell Ferguson to conduct a limited scope financial audit of certain expenditures of county funds by Clerk of Court Kirk Reams, despite the latter’s protest via his attorney.
On Tuesday, March 29, Commissioner Betsy Barfield emailed Reams asking that the clerk’s office make an advance payment of $25,000 to
Thomas Ferguson, which is charging a total of $40,000 for the audit.
In a follow-up email on March 31, Reams responded that he was prevented from releasing the requested check, because, as his attorney had informed the board on March 17, it lacked “legal authority to initiate or perform independent financial or performance audits of constitutional officers, including the clerk of circuit courts.”
In declining to make the payment, Reams pointed to Florida Statutes and a Florida Attorney General Opinion from 2002 that his attorney had cited to the board on March 17, calling the board’s resolution authorizing the audit “an unlawful exercise of authority.”
Reams’ argument, in brief, is that per the Florida Constitution, he is the county’s auditor, as well as the ex-officio clerk of the board, recorder and custodian of all county funds. He cites specific state law that he argues prohibits the clerk, in the role of county auditor, from paying any illegal charge against the county or any claim not unauthorized by law, as he could face personal or criminal liability for such a violation if “done willfully and knowingly.”
In other words, Reams argues, Florida law requires that the clerk in the role of county auditor “refuse to pay for an unlawful or unauthorized expenditure, even though approved by the board of county commissioners.”
As county auditor, Reams argues, the clerk has a duty to determine the legality of an expenditure before releasing the funds. And if the clerk auditor determines that a claim presented for payment “leads him to believe that the expenditure is not authorized, or is otherwise illegal, the clerk may properly withhold his approval of payment.”
So in essence, he argues, he is fulfilling his county auditor function, which is to provide a check and balance system that ensures proper expenditure of public funds.
Barfield in her response of March 31 clarifies that the check to Thomas Ferguson is due on April 1. She then goes on to state that the purpose of her request is not to argue or fight with Reams.
“I just want good, transparent government for the people that we serve,” Barfield emailed. “Simple at that. This is a serious neglect and breach of your duties.”
She goes on to state that the board’s decision to move forward with the forensic audit was made with the blessing of County Attorney Scott Shirley, and she calls Reams and his attorney’s legal opinion, “just that, an opinion.”
She instructs Reams to follow the board’s directive and prepare the requested check for pickup by noon April 1 “or you will be hearing from our attorneys.”
“Additionally,” she emailed, “I will feel compelled to report your neglect and breach of duties to the following agencies: Florida Department of Law Enforcement (FDLE), State Attorney, Florida Ethics Attorney and General Auditor General.”
The FDLE already has an ongoing investigation into Reams’ alleged misuse of public funds, as requested earlier by the commission.
Reams’ response to Barfield on April 1 reiterated his refusal to release the money, again citing the unauthorized nature of the board’s resolution.
He also wasn’t trying to argue or fight with Barfield, Reams emailed. Nor was he neglecting or breaching his duties, he added. But as he had explained before, he emailed, Florida law prohibited him, in his role as county auditor, from paying an unlawful charge, or any claim not authorized by law, even if such were approved by commissioners.
“Florida law simply does not authorize a county commission to perform post-audit functions (e.g., forensic audit) on the Article VIII, §1(d) county officers, including the…clerk of court…” Reams emailed.
“Thus, despite the vote of the BOCC to move forward with a forensic audit of the Office of the Clerk of Court, as county auditor, I am prohibited by Florida law from ‘cutting a check’ for such a charge unauthorized by law,” his email continued.
On April 1 also, Shirley, who researched the state law and Attorney General’s opinion cited by Reams’ attorney on the commission’s behalf, gave the board his legal interpretation of its authority to investigate the clerk of court.
Shirley’s conclusion, after reviewing the stated documents, was that the AG opinion does not apply to non-charter counties such as Jefferson.
Emailed Shirley: “Jefferson County operates under a general grant of authority for non-charter counties in Section 1(f) of Article III of the Constitution of the State of Florida, which provides, in relevant part, that ‘Counties not operating under county charters shall have such power of self-government as is provided by general or special law.’”
General law, according to Shirley, is a body of law enacted by the Florida Legislature with statewide applicability and codified in Florida Statutes.
Shirley goes on to cite Chapter 125 of Florida Statutes as the part of general law that he says grants the powers of self-government to counties. He then quotes the section of Chapter 125 that he states clearly confers upon county commissions the power to “make investigations of county affairs; inquire into accounts, records, and transactions of any county department, office, or officer; and, for these purposes, require reports from any county officer or employee and the production of official records.”
The question then becomes, Shirley underscores in his email, whether the Clerk of Circuit Court is a “county officer?” In this regard, Shirley writes, the first sentence of Section 1(d) of Article VIII of the State Constitution specifically provides that county officers are those elected by the electors of each county, for terms of four years, and include the clerk of circuit court.
“As may be noted, the above clearly includes the clerk of circuit court within the category of elected local officials referred to as “county officers,” Shirley emailed.
“Accordingly,” he concluded, “based on the plain meaning of the section of the State Constitution and Florida Statutes cited above, the Board of County Commissioners has the clear authority to make an inquiry into the accounts, records and transaction of the office of the Clerk of Circuit Court.
“Further, the office of the Clerk of Circuit Court is legally required, and has the official duty, to cooperate with, and assist, the Board’s inquiry by providing such official records and reports as the Board investigation may reasonably require.”
You must be logged in to post a comment.