Brock v. Board of County Com'rs of Collier County: a case for reconciliation.

• Author: Kinni, Patrick T.
• Position: City, County and Local Government Law

The Florida Constitution creates a system of checks and balances with regard to county expenditures that acts to protect public funds from improper disposition. While it is the board of county commissioners that authorizes the expenditure of public funds, it is the clerk of the court who actually approves the warrant for payment. (1) The role of the clerk, as auditor and custodian of all county funds, has been a subject of contention between the boards of county commissioners and the clerks of court for decades. This conflict should not be surprising, given that both the county commissioners and the clerks of court are autonomous elected county officers with overlapping authority, duties, and control over county funds. Now, as a result of the Florida Supreme Court's decision to discharge jurisdiction over the appeal of Brock v. Bd. of County Com'rs of Collier County, 21 So. 3d 844 (Fla. 2d DCA 2009), a case involving the clerk's relationship with the board as its auditor, the Second District Court of Appeal's opinion in Brock will have to be reconciled with existing case law on the subject. (2)

In Brock, a dispute arose between the clerk and the board over the scope of the clerk's audit and custodial authority over certain funds of a fire district. Those funds had been placed in a bank account under the control of county employees rather than the clerk. The clerk filed suit against the county seeking a declaration by the court that the clerk had the authority to examine and audit any and all accounts operated, controlled, or maintained by the county, wherever situated, and to obtain custody of all county funds contained in those accounts. The board followed by filing a quo warranto action against the clerk alleging usurpation of the board's power and authority to conduct postpayment audits. The trial court consolidated the proceedings and entered summary judgment in favor of the board ruling that "any auditing necessary to insure the legality of the expenditure [of county funds] prior to payment is proper." (3) However, audits performed "beyond the time that the warrant is signed, unless so directed by the [b]oard," are impermissible. (4) Overturning that decision on appeal, the Second District held that "the trial court's ruling prohibiting postpayment audits is inconsistent with the Clerk's statutory power to inspect and examine all county accounts at all times and with the Clerk's statutory duty to ensure that all payments of county funds comply with applicable legal requirements." (5)

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In reaching this conclusion, the court explored the constitutional and statutory grants of power to the clerk as county auditor. The division or separation of the clerk's duties as clerk of court from the clerk's functions as auditor and custodian of all county funds is established in two articles of the Florida Constitution, one of which provides that "the duties of the clerk of the circuit court may be divided by special or general law between two officers, one serving as clerk of court and one serving as ex officio clerk of the board of county commissioners, auditor, recorder, and custodian of all county funds," and another, which states that, "the clerk of the circuit court shall be ... auditor, recorder and custodian of all county funds." (6) Based on these two constitutional provisions, absent alternative designation under county charter or special law approved by a vote of the electors, the clerk of court is the clerk of the board as a result of his or her office and its auditor and the custodian of all county funds.

There are several implementing statutory provisions that give shape to the role of the clerk in this capacity as clerk of the board and to the numerous and diverse powers and duties of the clerk concerning fiscal matters of the board. For example, the clerk is required to act as the board's accountant and its accounts, (7) checks, or warrants drawn on county accounts must be "attested by the clerk," (8) and all "county accounts of each and every depository ... shall at all times be subject to the inspection and examination by the county auditor[.]" (9) To emphasize the significance of the clerk as county auditor, the legislature imposes personal liability for the payments of any claim or bill against county funds in excess of the amount permitted by law, or any illegal charge against the county, or any claim not authorized by law, and subjects the clerk to criminal penalties if improper payment is made willfully and knowingly. (10)

As with the clerk's powers, the statutory authority of the board with respect to its funds, accounts, and financial records are broad in scope. For example, Florida law requires the board to maintain a complete and accurate set of financial ledgers (11)...