From the Legal Hotline (877-NEWS-LAW)

Political advertising rates, independent contractors and more in today’s Legal Hotline recap.

Q. Can you clarify the distribution requirements for the delinquent tax and tangible tax notifications? One of our local counties is meeting publication requirements by circulating in their county and two surrounding counties. This is the specific example: the county is required to publish 2,000 copies of the delinquent tax notification. The publication they are using only has 800 subscribers in said county, and, therefore, is meeting the 2,000 copy requirement by circulating the other 1,200 copies in two neighboring counties. Does this meet the legal requirement for the county?

A. The statute in this case is silent on circulation requirements and, therefore, you will need to look to the bid/contractual requirements for the standard used in determining compliance.
In other words, what are the actual circulation/newspaper run requirements in County X’s bid award/contract?

If, for example, the publication requirement language does not require 2000 copies to be actually circulated in County X (but rather, arguably only generally requires 2000 copies be circulated wherever (County X and neighboring counties)), then the 800 copies circulated in County X would be sufficient. On the other hand, if the bid spec/contract does indeed require 2000 copies to be actually circulated all in County X, then if that is not being complied with, there would be an issue I would think.

(It may even be that the language is vague on this issue, and in that case, either side would argue for their own interpretation.)

Q. This seems a matter of common sense, but I have a nagging voice in my head hinting that some vague rule applies: can a political candidate be approached to advertise in a special section or promotion this newspaper charges a higher ad rate for? Must all political ad inches cost the same, for everyone, all the time?

A. Your inner voice is guiding you correctly—section 106.16 prohibits newspapers or other periodicals from charging one candidate for state or county public office for political advertising in a county at a rate in excess of that charged another political candidate. An older Division of Elections opinion further explains that the law requires the “same rate for all candidates for similar advertising” and that the “intent is to equalize charges so that one candidate does not have a favored advantage over another.” DE 79-02 – August 20, 1979 Political Advertising; Rates Charged Candidates.

Q. Hate to belabor the above q and a, but does that mean if we apply the same upcharge for our special promo page to all candidates, it is within the law? Or does that mean all political ads must have the exact same pricing; there can be no special promo-page rate? Not all candidates will participate in the promo page. In our case, our ad department sold a special promo to one candidate without contacting any others but the page is now sold out.

A. The way I read the law is your rate has to be the same for each candidate for the same type of ad services you provide. So…. if you have a special promo page, you can upcharge to all candidates at the same rate. If some decide not to participate, that is their choice.

What you can’t do is upcharge some candidates and not upcharge others. Similarly, I would avoid approaching/notifying some candidates about opting into the higher-priced promo page and leaving others out of that option—they might complain if they don’t appear for reasons they may not have realized or understood. Hopefully that makes sense and is feasible.

Q. We are having some difficulty in obtaining an administrative investigative report. Our city manager has received a report but maintains that this report is not a public record as the investigation is ongoing. Meanwhile: 1) after six months of paid leave the employee has been brought back to work in a different position in a different department and 2) the city has created a new position for the employee (the former assistant CM, which was brought to city council last night.) The city’s position is “the report will be public upon completion of the final disciplinary action.” However, this does not seem consistent with the exemption it previously provided in denying the initial request—that is, section 119.071(2)(k), F.S.,

Our interest is the accuracy of the position of …”completion of the final disciplinary action” as it applies to the statute cited, which actually says “exempt until the investigation ceases to be active, or until the agency provides written notice to the employee who is the subject of the complaint, either personally or by mail, that the agency has either: a. concluded the investigation with a finding not to proceed with disciplinary action or file charges; or b. concluded the investigation with a finding to proceed with disciplinary action or file charges.”

A. I’m not sure where the city is getting the language “completion of the final disciplinary action.” The applicable language states (as you point out) that the exemption applies until the “investigation ceases to be active” or the agency “provides written notice that the agency has concluded the investigation with a finding….”

It is not clear, but the city is apparently taking the position that they have yet to provide the employee with notice that the city has officially concluded the investigation (i.e., completed the final disciplinary action). But if that is indeed their position, I would point out that they still cannot rely on that part of the language if the investigation for all intents and purposes has “cease[d] to be active.” That appears to be the case here.

Are there AG opinions or cases that help in this regard? Yes, but a little background is necessary. The above general exemption for all agency employee complaints was enacted in 2013 so there is not a lot of authority on the meaning of “ceases to be active” or “concluded.” However, similar, earlier exemptions applicable to particular types of governmental employees (i.e. law enforcement officers) predated the general exemption and there is relevant authority.

For example, the exemption is of “limited duration.” AGO 95-59. (For example, law enforcement personnel complaints are presumed to be inactive after a very short period–where no finding is made within 45 days after the complaint is filed (contained in 112.533)). Also, there is an opinion indicating that where the officer resigns prior to completion of the investigation, the exemptions no longer applies, even if active investigation is still ongoing. AGO 91-73.

Further, note that the exemption relating to public school employee complaints [section 1012.3] defines an “inactive” investigation in further detail than the general exemption. The school employee exemption says the material is only active as long as it is “continuing with a reasonable, good faith anticipation that an administrative finding will be made in the foreseeable future,” and also imposes a 60 day deadline.

So…. I would take that position that in light of six months of paid leave, the employee returning to work in a different position, and the city creating a new position for the employee—all this indicates that the investigation is inactive and the exemption no longer applies—regardless of whether the city says it hasn’t officially concluded the investigation or completed the final disciplinary action.

Q. I have a question regarding our independent contractor’s delivery. Can we set a limit regarding customer complaints where we can monetarily penalize them for non-performance? The specific example is: We have a resident that has called in 3 to 4 consecutive/regular times that they either have not received or don’t want to receive our paper. The contractor has received notice each time of the call. After four or five notices, can we institute a financial penalty (i.e. $1 for each new call).

The obvious is to cancel their contract, but we’ve almost reached a point where a warm body is better than nobody.

I think the “overall” question is can we place any type of financial penalty on an IC if they keep delivering when they been told to stop or for missed delivery after notice.

A.This is a contractual rights question that we asked Jim McGuire at Thomas & LoCicero to weigh in on. Jim notes that the two parties can certainly enter into a contract where, when one party fails to perform, there are financial repercussions. But the contract should be clear that this is not a penalty. It should also be clear that the IC has a contractual duty to abide by customer demands for no delivery, etc. The contract could provide that each time the IC fails to abide by a customer demand for no delivery, the IC’s compensation will be reduced by a certain dollar amount. Jim also thinks the paper should be careful of doing this unilaterally, without any provision in the contract. The contract may need to be amended.